Malawi African Association v Mauritania

Parties (including notable third parties)

Malawi African Association (First Applicant), Amnesty International (Second Applicant), Ms Sarr Diop (Third Applicant), Union Interafricaine des Droits de l’Homme (UIDH, Inter-African Human Rights Union) (Fourth Applicant), Rencontre Africaine pour la Défense des Droits de l’Homme (RADDHO, African Association for the Defence of Human Rights) (Fifth Applicant), Collectif des Veuves et Ayants-droit (Widows and beneficiaries of victims) (Sixth Applicant), Association Mauritanienne des Droits de l’Homme (AMDH) (Seventh Applicant); State of Mauritania (Respondent)

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Summary of Facts

This application concerned six communications that were brought before the Commission by various organisations and individuals, representing the interests of the victims of widespread human rights violations carried out on by the Respondent State against members of the black ethnic groups of Mauritania between 1986 and 1992.

It was alleged that a large number of black Mauritanians who opposed racial oppression were arrested, tried without due process and imprisoned. Many were physically abused and subject to harsh conditions while detained, and some were executed inhumanely. It was also alleged that black Mauritanian villagers had had their property illegally seized and protesters were tortured and killed, and many black Mauritanians remained de facto slaves after being formally freed.

In addition, all of the communications describe events in 1989 whereby Mauritania expelled almost 50,000 people belonging to black ethnic groups to Senegal and Mali, apparently for political reasons. Many of those people were Mauritanian citizens who had their Mauritanian identity cards torn up by the authorities upon arrest or expulsion. Though the borders were later reopened, this group were given no guarantee of a safe return and, without their identity cards, had no means to prove their Mauritanian citizenship. Many had been living in refugee camps in extremely difficult conditions since the time they were expelled.

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Legal Arguments

The Applicants alleged that the following sixteen articles of the African Charter on Human and People’s Rights were breached by the State:

• Article 2 (right to the enjoyment of the rights and freedoms recognised by the Charter without discrimination of any kind such as on the basis of race, ethnic group, etc)
• Article 3 (equality before and equal protection of the law)
• Article 4 (respect for life and integrity of person)
• Article 5 (prohibition of slavery)
• Article 6 (right to liberty and security of person)
• Article 7 (right to be heard and no punishment for conduct not constituting offence)
• Article 9 (right to express and disseminate opinions)
• Article 10 (freedom of association)
• Article 11 (freedom of assembly)
• Article 12 (freedom of movement and residence, right to return to country)
• Article 14 (right to property)
• Article 15 (right to work under equitable and satisfactory conditions and to equal pay for equal work)
• Article 16 (right to physical and mental health)
• Article 18 (protection of the family)
• Article 19 (equality of all peoples)
• Article 26 (independence of the courts).

The Mauritanian Government generally did not contest the allegations that grave human rights violations had been committed. The representative of the Mauritanian Government ‘expressed wish to work together with the Commission to assist the victims, making it clear that the country’s economy could not allow them all to be compensated. He further declared that it would be difficult to verify the situation of each victim prior to the 1989 events, which would make their resettlement impossible. He continued, saying that all those displaced could return to their native villages' (paragraph 29).

Outcome

The Commission found that there had been violations of Articles 2, 4, 5, 6, 7(1)(a)-(d), 9.2, 10(1), 11, 12(1), 14, 16(1), 18(1) and 26 of the Charter.

Article 12(1) provides that every individual shall have the right to freedom of movement and residence within state borders provided he abides by the law. The Commission held that evicting Black Mauritanians from their houses and depriving them of their Mauritanian citizenship constituted a violation of article 12(1).

The Mauritanian Government described efforts made to assist those who had been expelled to return to Mauritania. The Commission was of the view that those efforts did not annul the violation committed by the State.

The Commission also recommended that the Mauritanian Government ‘take diligent measures to replace the national identity documents of those Mauritanian citizens, which were taken from them at the time of their expulsion'.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	African Charter on Human and People’s Rights	Articles 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 14, 15, 16, 18, 19 and 26
International	International Covenant on Economic, Social and Cultural Rights	Article 7
International	Universal Declaration of Human Rights	Article 23(3)
International	Declaration of the Rights of People Belonging to National, Ethnic, Religious or Linguistic Minorities, UN Doc A/RES/47/135 (18 December 1992)	Article 1(1)

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Laura M Bingham and Julia Harrington, ‘Never-Ending Story: The African Commission Evolving through Practice in Malawi Africa Association et al v Mauritania’ (2013) 7(1) Human Rights & International Legal Discourse 6

• This article examines the effectiveness of the African Commission by tracing how its practices evolved throughout the course of the Mauritania case. It also covers the historical background to the case and the events that followed the Commission’s decision in terms of the Mauritanian government’s attitude towards implementation.
• Reflecting on the history of denials of the events in question, the authors note that ‘having the African regional human rights body describe in detail the violations that had occurred was an important moral victory.’
• In 2003, a New York based organisation, the Open Society Justice Initiative established a program focusing on discrimination in relation to citizenship. The authors argue that at the time, this was ‘the only decision of an international human rights tribunal explicitly focusing on discriminatory deprivation of citizenship.’ After a joint mission to visit camps of Mauritanian refugees deprived of citizenship and expelled from Mauritania in 1989, the IHRDA and the Justice Initiative approached the Commission’s then special rapporteur on refugees, asylum-seekers, migrants and internally displaced people and proposed for the special rapporteur to visit the camps and meet with Mauritanian officials to urge resolution of their situation through implementation of the Commission’s recommendation in the decision.
• The authors note that, following a coup and the coming into power of a new regime, the Mauritanian government adopted a much more positive stance in implementing the Commission’s recommendations. In November 2007, it signed a tripartite agreement with Senegal and the UNHCR to facilitate the return of Mauritanian refugees.