Open Society Justice Initiative v Côte d’Ivoire

Parties (including notable third parties)

Open Society Justice Initiative (Complainant); Côte d’Ivoire (Respondent State)

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Summary of Facts

The Complainant, Open Society Justice Initiative Organization, filed a complaint against the Republic of Côte d’Ivoire pursuant to the African Charter on Human and Peoples’ Rights (‘African Charter’ or ‘Charter’), alleging widespread and systematic human rights violations under policies adopted by successive governments of Côte d’Ivoire. The allegations concern the right to nationality and discriminatory treatment of individuals from Côte d’Ivoire’s northern region, especially those belonging to the Dioula ethnic group and those of the Muslim faith.

Following independence in 1960, Côte d’Ivoire experienced a period of economic prosperity and ethnic tolerance under President Félix Houphouët-Boigny, who encouraged migrants from neighbouring countries. Upon his death, his successor, President Henri Konan Bédié, introduced the policy of ‘ivoirité’, which restricted Ivorian nationality to those born in Côte d’Ivoire born to two Ivorian parents.

The Complainant alleged that this policy was introduced as a means to exclude a prominent northern politician, Alassane Ouattara, from presidential eligibility. Subsequent governments reinforced and institutionalised these exclusionary policies. The 2000 Constitution further entrenched the ‘ivoirité’ policy by requiring presidential candidates to have never held another nationality.

According to the Complainant, the ‘ivoirité’ policy and discriminatory application of nationality laws:

• affected approximately 30% of the population, including persons who were born in and had lived in Côte d’Ivoire their entire lives. During this period, individuals from the Dioula ethnic group in the north were subjected to widespread discrimination and violence, such as through extrajudicial killings, arbitrary arrests, denial of identity documents, extortion, denial of access to basic services, property rights and participation in public life based on perceived ethnic or religious background;
• resulted in socio-political exclusion through a ban on access to land, voting and holding of public office; and
• resulted in large-scale statelessness, with allegedly hundreds of thousands of persons unable to obtain identity documents or prove their nationality.

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Legal Arguments

Legal Arguments by the Complainant

The Complainant contended that Côte d’Ivoire’s nationality laws were discriminatory against the Dioulas ethnic group, violating the right to equality under Articles 2 and 3 of the African Charter, and the right to legal status under Article 5.

The Complainant argued that the doctrine of ‘ivoirité’ was legally ambivalent, which simply stated that an Ivorian is someone born by an Ivorian. Accordingly, this gave unlimited discretion to State officials which facilitated the implementation of discriminatory policies and practices. The Complainant pointed to evidence that people from the North, Dioulas or persons perceived as such, received discriminatory treatment despite holding held valid claims to nationality and identity documents.

The Complainant further submitted that the State’s discriminatory laws and policies effectively denied Dioulas from obtaining identification documents and citizenship, causing statelessness and violating the right to legal status under Article 5. Further on this, the complainant pleaded that the right of recognition of the legal status guaranteed by Article 5 imposes an additional positive obligation to prevent statelessness.

The Complainant also contended that the systematic discriminatory treatment of individuals from the North, Dioulas or persons perceived as such, including the denial of nationality and identity documents, had cascading effects resulting in violations of:

• freedom of movement and residence (Article 12);
• right to participate in government (Article 13);
• right to property (Article 14);
• right to work (Article 15);
• State obligation to protect families (Article 18);
• right to economic, social and cultural development (Article 22).

Based on the above, the Complainant further alleged that the Respondent State violated Article 1 by failing to provide the necessary measures towards the respect, protection, promotion and realisation of the rights in the African Charter. The Complainant also argued that admissibility must be assessed based on the circumstances at the time of filing, and that later nationality reforms in Côte d’Ivoire did not cure past violations or provide adequate remedies.

Legal Arguments by the Respondent State

Côte d’Ivoire did not contest the Complainant’s factual allegations, instead asserting that these problems were rampant during socio-political crises and were now being addressed through legislative and administrative reforms.

Legislative measures highlighted include: (i) 2013 changes to marriage laws that established equality between spouses as the basis of family, and provisions in property law relating to the timeline granted for the recognition of customary rights of lands in the customary area; and (ii) ratification of international frameworks, such as the 1954 Convention on the Status of Stateless Persons and 1961 Convention on the Reduction of Statelessness.

As regards administrative reforms, Côte d’Ivoire cited: (i) the establishment of investigatory and reconciliatory units and commissions, and programs concerning social cohesion, and (ii) the rehabilitation and reconstruction of economic and social infrastructure.

Outcome

The African Commission on Human and Peoples Rights (‘the Commission’) found that Côte d’Ivoire’s nationality regime, characterised by vague definitions and excessive discretion granted to State authorities, resulted in the arbitrary denial of nationality and widespread statelessness (both practically and theoretically), particularly affecting the Dioula ethnic group and other northern populations.

Although the African Charter does not explicitly guarantee a right to nationality, the Commission determined that this right is protected under Article 5, which ensures recognition of legal status and is essential for the enjoyment of other fundamental rights and freedoms. Referencing Articles 60 and 61 of the Charter, the Commission noted the importance of interpreting Article 5 in light of international standards, and referred to the 1954 Convention, 1961 Convention and the African Charter on the Rights and Welfare of the Child. From these instruments, the Commission concluded that the State is obliged to grant nationality to individuals born on its territory unless it can prove that the person in question has already acquired or is eligible to another nationality.

The Commission found there was substantial evidence of ‘unjustifiable discrimination’ against Dioulas based on their ‘ethnic origin, consonance of their patronymics and their Muslim religious persuasion’, in violation of Article 2 of the Charter. The State produced no objective and reasonable justification, while the Complainant showed evidence of a difference in treatment. This discriminatory treatment of Dioulas as a group inferior to ‘Ivorians by origin’ under laws and procedures also amounted to a violation of equal protection of the law guaranteed under Article 3 of the Charter.

The Commission distinguishes between first-generation Dioulas, whose presence and integration predate independence and whose claim to nationality “by origin” is historically and legally established, and second-generation Dioulas and other immigrants, who have established rights through long residence and prior state practices, and whose claims should be treated with retroactive effect. Because the reforms did not restore or respect these latter established rights, the Commission was able to find a breach of Article 5. This shows that the Commission was careful to distinguish the generations because Article 5 guarantees recognition of legal status by type of claim (by origin vs. established right through residence/practice).

The Commission further determined that Côte d’Ivoire had violated:

• Article 12 (freedom of movement): denial of identity documents restricted movement;
• Article 13 (right to participate in public affairs): denial of nationality prevented participation in public life;
• potential violation of Article 14 (right to property): risk of expropriation under existing laws, though not yet proven to have occurred against Dioulas prior to the decision;
• Article 15 (right to work): Dioulas ineligible for public office and faced denial access to work or promotion;
• Article 18 (protection of families): restriction on movement created risk of family separation or dislocation;
• serious violation of Article 22 (social, cultural and economic development): multiple denials of access to employment and participation in public and political life.

The Commission recommended that Côte d’Ivoire:

• amend the Constitution and nationality laws to ensure consistent with the Charter and international standards;
• adopt more prompt legislative and administrative mechanisms to recognise Ivorian Dioulas;
• introduce or improve upon an effective and non-discriminatory birth registration system;
• institute access to nationality documents as a right for citizens; and
• return the lands or compensate victims who were expropriated through the application of the rural land law.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	African Charter on Human and Peoples’ Rights	Articles 1, 2, 3, 4, 5, 6, 12, 13, 14, 15, 18, 22
Domestic	Constitution of Côte d’Ivoire (2000)	Articles 35, 65
Regional	African Charter on the Rights and Welfare of the Child	Articles 6(4)
International	1954 Convention on the Status of Stateless Persons	Articles 1
International	1961 Convention on the Reduction of Statelessness	Article 8(1)

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Neha Jain, ‘Manufacturing Statelessness’ (2022) 116 American Society of International Law 237

• Noted that States have been attempting to ‘reset’ the population constituency to the situation prior to colonisation by making citizenship contingent on membership of tribes that pre-dated colonial population transfers.
• Referred to the case as a ‘striking instance of the resulting statelessness’.
• Summarised the case, noting that the government policy was based on the concept of an ‘authentic Ivorian heritage whereby indigenous Ivorians were distinguished from “foreign” immigrants from the North’.
• Identified that subsequent to the decision in 2020, Côte d’Ivoire became the first African country to adopt a national Statelessness Determination Procedure.
• Observed that the adoption of this Procedure, while positive, was influenced by the political developments of President Alassane Ouattara (who faced challenges to his own nationality status) being elected during the period the case was brought to the Commission and when the decision was delivered.

Jamil Ddamulira Mujuzi, 'The African Commission on Human and Peoples' Rights and Its Promotion and Protection of the Right to Freedom from Discrimination' (2017) 17(2) International Journal of Discrimination and the Law 86

• Highlighted that the Commission adopted a definition of discrimination as: ‘any act aimed at distinction, exclusion, restriction or preference based on one of the reasons listed under Article 2 of the Charter, and which aims at or has the effect of annulling or restricting recognition, enjoyment or exercise by all persons and on an equal basis, of all rights and freedoms.’
• Referred to Commission’s reasoning that the ‘spirit of the provisions of Article 2 of the Charter and the definition [above] suggest there is no need to prove an intention to discriminate...’ (emphasis added).
• Observed that the Commission has adopted five different definitions of discrimination across different decisions; while it was promising to see the protection and promotion of rights from discrimination high on the Commission’s agenda, this could give rise to challenges due to the lack of clarity on the definition of ‘discrimination’.

Darren Ekema Ewumbue Monono, 'Peoples' Right to a Nationality and the Eradication of Statelessness in Africa' (2021) 3(1) Statelessness & Citizenship Review 33

• Referred to the decision as a ‘landmark merits opinion’, in ruling that the Government violated Article 5 of the African Charter by depriving the right to nationality to the cross-border Dioula ethnic group split between Côte d’Ivoire and Burkina Faso.
• Examined the decision as part of an analysis of the Commission’s decisions where ‘Article 5 on legal status is used to consecrate the right to nationality, not only to individuals, but also to people and communities’.
• Observed that the Commission has resorted to individual, group and peoples’ rights provisions in the African Charter for nationality-related rights violations.
• Raised concerns about how the Commission, and other bodies such as the African Committee of Experts on the Rights and Welfare of the Child and African Court on Human and Peoples’ Rights, have no real follow-up, implementation and enforceability mechanisms.

Delphine Rodrik, ‘Rights Not Recognized: Applying the Right to Recognition as a Person before the Law to Pushbacks at International Borders' (2021) 33(4) International Journal of Refugee Law 541

• Observed that the Commission linked nationality as a basic component of the right to legal status and that it is a legal and socio-political manifestation, such as the status of a refugee or resident granted by a State for the enjoyment of rights and the exercise of obligations.
• Identified that the Commission linked legal status and dignity as ‘fundamentally interdependent’, explaining its reasoning with specific reference to vulnerabilities of migrants, particularly those who are undocumented.

Tsega Andualem Gelaye, 'The Role of Human Dignity in the Jurisprudence of the African Commission on Human and Peoples' Rights' (2021) 5 African Human Rights Yearbook 116

• Highlighted that the Commission’s reasoning in its decision reflected the importance of human dignity in the African Charter, including that ‘Dignity is…the soul of the African human rights system…’
• Observed that this is so far the strongest statement of the Commission on human dignity, endorsing the centrality of human dignity to the corpus of the African Charter.
• Emphasised the importance of securing human dignity to further the protection of human rights in Africa.