Despite the fact that African countries have both produced and hosted refugees for a long time, when the Organisation of African Unity (OAU) was created in 1963, it had limited interest in human rights other than with regards to racial discrimination and the fight for self-determination from colonial rule . In fact, the African Charter on Human and People’s Rights did not come into effect until 1986. With the exception of South Sudan, all African states have signed and ratified the Banjul Charter . Much like in the Inter-American system, the oversight and interpretation of the Charter is the task of the African Commission on Human and Peoples’ Rights. Further instruments were adopted, most notably African Charter on the Rights and Welfare of the Child (1990) and Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003) . In 1998, there was also a protocol to the Charter whereby an African Court on Human and Peoples’ Rights was to be created. The protocol came into effect in 2004, however shortly after the recently established African Union Assembly decided that the Human Rights Court would be incorporated into the African Court of Justice.
Human Rights Commissions and Courts
OAS Charter conferred ACHR and ADHR competence upon the Inter-American Commission, by giving it a mandate to ‘promote the observance and protection of human rights’ . The Commission also serves as a consultative organ to the OAS on human rights matters and has ‘specific competence over matters relating to the fulfilment of obligations undertaken by states parties to all human rights conventions adopted in the regional framework’ . Its protective mandate relates to its power to examine allegations of violation of human rights standards by an OAS State and to make recommendations on the case or indeed refer the case to the Court. However, the bulk of Inter-American Commission’s work, and how it mostly gets involved with issues relating to asylum seekers and refugees, are the country and thematic reports .
Unlike the Commission, the Inter-American Court of Human Rights was created by the American Convention on Human Rights and is therefore only binding on States parties that have ratified it and specifically recognised the Court’s jurisdiction . In addition to hearing petitions referred by the Commission and giving the final binding judgment on the cases presented, on request the Court also offers opinions on the interpretation of the American Convention on Human Rights and whether domestic laws are compatible with relevant treaties concerning the protection of human rights .
Similarly, the African Commission on Human and Peoples’ Rights set up in 1987, is also mandated to oversee and interpret the Banjul Charter intended to promote and protect human rights and basic freedoms in the African continent . Its protective function is quasi-judicial and relates to consideration of individual and (on the unique occasion of DRC against Burundi, Rwanda and Uganda ) State petitions, but its decisions are not binding. As we will see below, the African Commission has interpreted ‘the Charter for the benefit of refugees and displaced persons [… and] has enabled these individuals to use its communication procedure to enforce their rights ’.
Much like its Inter-American counterpart, the African Commission also reports on its country visits, fact-finding missions and country periodic reports. One such report was on the Mission of Good Offices to Senegal, which followed concerns raised about grave human rights violations resulting in mass displacement of people. The visit culminated in a number of recommendations and proposed strategies, including that the government should ‘assist all displaced persons and refugees, encouraging them to return to their homes by guaranteeing their security’ .
The African Commission also includes the office of the Special Rapporteur on Refugees, Asylum Seekers and Displaced Persons in Africa.
Despite its efforts, the African Commission has been criticised for its shortcomings. As well as having its independence questioned, the Commission has been ‘chronically under-resourced and the quality of its jurisprudence has been variable’ . It was also struggling to enforce and monitor the implantation of its recommendations, creating the need for a Court that could issue binding judgements.
As mentioned above, in 1998, the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights was adopted to round-off the Commission’s protective mandate. It eventually started its work in 2006. Soon after, however, it was decided this court will be wound down to make way for the African Court of Justice and Human Rights. This new court is yet to become fully operational and until then the interim African Court on Human and Peoples’ Rights continues to hear cases.
Who Can Bring Cases to The Court
Unlike the African Commission, which allows individuals and NGOs (even when they are not direct victims) to bring cases under the African Charter, the Court does not allow automatic standing to individual victims and NGOs that often act on victims’ account – the state against which they are complaining first has to lodge ‘a special declaration accepting the competence of the Court to hear human rights cases brought in this way’ . In reality, it is expected that most cases will be referred to the Court by the Commission, just like in the Inter-American system in which individuals and NGOs also do not have direct access to the Court, and where the majority of cases are referred by the Inter-American Commission on Human Rights .
Petition Admissibility Criteria
In both regional systems, the petitions must fulfil several admissibility criteria before being heard. ‘Exhaustion of domestic remedies’ is the criterion that mostly impacts asylum seekers and refugees. The Inter-American Commission has generally dealt with the issue sympathetically, holding for example ‘that where asylum-seeking petitioners face inadequate procedures for conducting refugee status determination then the relevant exception to the requirement to exhaust domestic remedies is engaged’ .
In the African system, the issue as to whether asylum seekers and refugees who have fled the county against which they are petitioning still need to have exhausted domestic remedies there first, has proven contentious and the jurisprudence is inconsistent, seemingly being more lenient with those who have been granted refugee status than with asylum seekers . For example, in Communication 215/98, Rights International v Nigeria, the complainant is a Nigerian student who was granted refugee status in the US and in his case the ‘Commission declared the communication admissible on the grounds that there was a lack of available and effective domestic remedies for human rights violations in Nigeria under the military regime’ . In contrast, Communication 247/2002, on behalf of Jean Simbarakiye v Democratic Republic of Congo, was declared inadmissible as there was ‘no indication that the complainant attempted to exhaust local remedies’ and ‘did not provide evidence showing the moral and material constraints alleged to have prevented him from exhausting local remedies available under the laws of DRC’ .
Generally, it looks as if the African Commission could be more pro-active in protecting the rights and freedoms of asylum seekers and refugees, given their vulnerability and the fact that in most cases they find it difficult to mobilise resources and engage lawyers to exhaust domestic remedies.
Asylum as a Human Right
The right to asylum is the starting point for the protection of asylum seekers and, crucially, both the Inter-American and the African human rights instruments protect asylum as a human right. Both core OAS instruments use similar language of every person having a right to seek and be granted asylum in accordance with domestic and international law . Equally, Article 12(3) of the African Charter provides that ‘[e]very individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with the laws of those countries and international conventions’.
Since the Haitian refugee litigation case , The Inter-American Commission interprets the right to asylum through reference to International Refugee Law. Among other things, this means that any person who meets the definition of refugee in international protection instruments has the right to be granted asylum and the State has the obligation to provide protection. In other words, the American Commission’s jurisprudence has shifted granting of asylum from State discretion to State obligation .
The African Commission, on the other hand, largely bases its decisions on communications on the African Charter on Human and Peoples’ Rights and does not always invoke 1969 OAU Convention on Refugees or make reference to other refugee-related instruments, even though it is empowered (under Article 60 of the African Charter) to draw inspiration from other African and international human rights treaties as necessary.
Procedural Guarantees
The Inter-American Commission further wanted ‘to ensure that [refugee status] is recognized in every case where it is justified’ stating that International Refugee Law essentially recognises the right of asylum seekers to a hearing . For this purpose, and to protect the asylum seeker from refoulement to torture, the Commission has developed a range of procedural guarantees and consistently applied them in its jurisprudence. These are: (i) the right to apply to the authorities for asylum, (ii) the right to have the claim determined by a fully competent authority; (iii) the right to a fair process of hearing the claim, (iv) the right to receive a proper decision, and (v) the right not to be refouled pending determination of the claim for asylum (and following recognition).
In the African system, the obligation on States parties to the African Charter to establish institutions and fair procedures for status determination is implied in the right to seek and obtain asylum. Article 7(1) of the African Charter reads that ‘[e]very individual shall have the right to have his case heard. This comprises […] the right to an appeal to competent national organs against acts violating his fundamental rights’. This is one of the articles that was invoked in Organisation Mondiale Contre La Torture and Others v Rwanda case , where Rwanda had expelled Burundian long-term refugees without giving them a chance to be heard.
Article 26 further requires States parties to ‘allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter’.
In the above context, fair procedures also mean legal aid, and this seems to apply in both regional frameworks. The Inter-American Commission stated that ‘[t]hose claimants who require legal aid to effectively vindicate their rights within the refugee system as a whole, whether in determination proceedings, detention review, post-claim administrative review or post-claim judicial review, may avail themselves of that important safeguard […]’ .
Broader Human Rights Protection
Of course, the right to asylum is not the only human right provision available to asylum seekers and refugees. The African Charter, for example, includes a host of civil and political rights, as well as economic and social rights, and the Commission has applied all of them when considering cases petitioned by asylum seekers and refugees.
Both regional frameworks offer substantive alternative protection generally available to all nationals and non-nationals, placing an obligation on state parties to safeguard the rights of every person within their jurisdiction. African system frames this requirement in terms of non-discrimination, with Article 2 of the African Charter stating that ‘[e]very individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status’. The American Declaration on the Rights and Duties of Man on the other hand, emphasises that these are ‘essential rights of man… not derived from the fact that he is a national of a certain state’ .
In Africa, the above principle of non-discrimination stated in Article 2 and principle of equality in Article 3, can be used to protect any rights that persons in general are entitled to. Referring back to Organisation Mondiale Contre La Torture and Others v Rwanda case, the Commission found that ‘[t]here is considerable evidence, undisputed by the government, that the violations of the rights of individuals have occurred on the basis of their being Burundian nationals or members of the Tutsi ethnic group. The denial of numerous rights to individuals on account of their nationality or membership of a particular ethnic group clearly violates Article 2 ’.
The principle of equality and equal protection of the law highlighted in Article 3 of the African Charter provides refugees with protection from mistreatment by the legal system of States, specially where domestic refugee legislation is lacking or where they have not been adequately documented, two issues which often prevent refugees from enjoying other Charter rights.
In the case of African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v Guinea , the African Commission found that Guinea had violated articles 2, 4, 5, 12 (5) and 14 of the Banjul Charter. While reference to the Charter found violations of the rights to human dignity, property, life, non-discrimination and against mass expulsion, the Commission would have been able to further extend the protection of Sierra Leonean refugees had it invoked the 1951 Convention that Guinea has ratified in 1983.
While all rights matter, certain provisions hold special relevance for asylum seekers and refugees, in particular those that affect expulsion, liberty and security, and, as we have already seen above, due process.
Right to liberty as expressed in Article I of ADHR is complemented by right to protection against arbitrary arrest of Article XXV. The Inter-American Commission has used the two articles in a number of communications, including in the Haitian Interdictions case where claimants were not imprisoned, but the State nevertheless took control over them. Furthermore, Inter-American ‘jurisprudence makes clear that migrants, even undocumented, are not criminals, nor are they suspected of any crime – as such, they must not be held in regular prisons with criminals’ .
African Commission has also used Article 16 of the Banjul Charter to address the conditions of detention suffered by black Mauritanians , potentially opening up a route through which a host of social and economic rights concerns relating to refugees and asylum seekers can be raised, including the issue of substandard camp conditions. Article 16 not only stipulates that ‘[e]very individual shall have the right to enjoy the best attainable state of physical and mental health’, but also highlights the duty of States to take necessary measures to ensure protection. This case is reminiscent of the case of Rafael Ferrer-Mazorra et al. v. United States , addressing the situation of Mariel Cubans who were illegally detained for unreasonable periods of time. The Inter-American Commission conducted an on-site visit, paying particular attention to the conditions, medical and recreational provisions, and availability of legal counsel, finding violations of Article I (the right to liberty and personal security), article II (right to equality), article XVIII (the right to fair trial) and article XXV (the right to protection from arbitrary arrest) of the ADHR.
Bekker cites a number of cases where the African Commission found violations of the right to non-discrimination; the right to life and integrity of the person; the right to dignity and freedom from torture, cruel, inhuman and degrading treatment; the right to have their cause heard, including an appeal to competent authorities and the rights to asylum; expulsion without due process as well as the prohibition against the mass expulsion of non-nationals contained in the African Charter . A couple of these have implication on the principle of non-refoulement we discuss next.
Refoulement and Removal
Like the right to asylum, the Inter-American system also defines refoulement and removal in human rights terms, with American Convention on Human Rights being ‘the only broad-based human rights treaty that expressly prohibits refoulement to a risk of human rights abuse’ in its Article 22(8).
In paragraph 151 of the Case of the Pacheco Tineo Family v Plurinational State of Bolivia , the Inter-American Court on Human Rights stated that ‘under the inter-American system, the principle of non-refoulement is broader in meaning and scope and, owing to the complementarity that exists in the application of international refugee law and international human rights law, the prohibition of refoulement constitutes the cornerstone of the international protection of refugees or asylees and of those requesting asylum. This principle is also a customary norm of international law, and is enhanced in the inter-American system by the recognition of the right to seek and to receive asylum.’
The Inter-American Commission further holds that a State will be responsible if it removes a person to another territory where there exists a real risk that Article I of ADHR will be violated. Similarly, the African Commission has interpreted Article 5 of the African Charter as protecting individuals from being returned to a State where they are likely to be subjected to ‘torture, cruel, inhuman or degrading punishment or treatment’, with both frameworks ensuring that in the case of asylum seekers, human rights guarantees are afforded to them ‘whether the asylum claim is to be determined under refugee law or international human rights law’ .
Moreover, the African Commission has interpreted Article 5 to include violations of social and economic rights, such as, for example, enforced homelessness of John K Modise, which was ruled as amounting to inhumane and degrading treatment in violation of Article 5 .
In Africa, the principle of non-refoulement can be implied in Article 12 of the African Charter and the African Commission has ruled in line with this in a number of cases, including in Organisation Mondiale Contre La Torture and Others v Rwanda case we mentioned earlier. In that ruling, the Commission does not refer to any of the International Refugee Law instruments, even though Rwanda has ratified both the 1969 OAU Refugee Convention and 1951 UN Refugee Convention and its Protocol.
However, the use of Article 12 of the Charter to protect refugees from refoulement is most significant for cases involving countries that have not ratified any of the International Refugee Law instruments. We have already seen earlier that all African countries except South Sudan have ratified the Banjul Charter and through its interpretation the Commission has provided the most practical protection granted to refugees by considering their human rights, meaning that refugees cannot be sent back to a country where they will be persecuted without being heard first.
Conclusion
The Inter-American and African human rights instruments are having an ever-increasing role in protecting asylum seekers and refugees in those regions and have made important contributions in three main areas. Both provide for a right to seek and obtain asylum, offer complementary protection from refoulement, and lay out the standards of treatment for all people, including non-nationals.
There is no denying that much progress has been made in both regions by treating refugee situation as a human rights issue. However, while African refugees – on paper – benefit from one of the world’s most progressive protection regimes, the framework itself is yet to develop a coherent policy on human rights for refugees, supported by relevant jurisdiction. While there has been no lack of resolutions and standards relating to the rights of refugees, there has been little interpretation and cross-referencing with international law. The human rights instruments in Africa are in effect playing catch up with the Inter-American system, which has ‘a clear strategy of harmonisation and standardisation of international law when besides the Declaration and the Convention they refer to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, the 1984 Cartagena Declaration, the Guiding Principles on Internally Displaced, the 1949 Geneva Conventions and their 1977 Optional Protocols, respectively in order to better protect refugees ’.
In practice, while the African human rights system has much to offer those advocating better implementation of refugee rights, refugees nevertheless continue to face human rights violations including discrimination, forced return, arbitrary arrest and detention, restricted freedom of movement, and various violations of social and economic rights. A closer integration of various bodies under the auspices of African Union is needed, the mechanism for oversight of human rights for asylum seekers and refugees needs to be strengthened, and a set of coherent benchmarks needs to be set.
One of the problems that both regional systems have in common is their sluggishness. Cases can take a long time to consider. In addition, both lack a proper mechanism to monitor the compliance of the States, making enforcement of implementation a massive issue.
When its precautionary measures were ignored, The Inter-American Commission has in some grave situations, requested the Court to issue provisional measures. Yet even then, as ever, the ‘application still depends on the political will of the States’ .