Institute for Human Rights and Development in Africa v. Angola

Comm. No. 292/04 (2008).
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The Institute for Human Rights and Development in Africa (IHRDA) filed a complaint on behalf of Mr. Esmaila Connateh and 13 other Gambians deported from Angola during March through May of 2004. IHRDA’s complaint alleged that Angola arbitrarily arrested and detained the individuals, along with tens of thousands of foreigners who had legally lived and worked in the diamond-mining regions of that country, in a mass deportation program known as Operaçao Brilhante. According the claimant, the program deported an estimated 126,247 foreigners without providing legal protections to the non-nationals at any phase of their arrest, detainment or expulsion. The complaint further alleged that inhumane treatment of those detained before deportation constituted a violation of Article 5 of the African Charter on Human and Peoples’ Rights, which requires respect for the inherent dignity of every person and prohibits torture and all forms of cruel, inhuman or degrading treatment. The complaint alleged that some detention facilities were originally used for keeping animals and still contained large amounts of animal waste during the detainment of the non-nationals. The complaint also alleged that the Angolan authorities denied to the detainees medical attention and did not regularly provide food. It alleged that one facility had no roof or walls, exposing detainees to the elements for a period of five days, and that another facility forced 500 prisoners to share for bathroom purposes two buckets, which they had to use in the same space where all of the detainees ate and slept. Insofar as detainees could not obtain any information about their arrests or the possible duration of their detainment, the complaint further asserted that the detainees suffered psychological trauma.

The complaint alleged that the mass arrests, detention and expulsion violated Angola’s duty to provide all persons equal treatment under the law pursuant to Article 3(2) (equal protection) of the Charter and that arresting individuals for no reason other than their ethnic origin constituted arbitrary arrest prohibited under Articles 6 (prohibition of arbitrary arrest) and 12(5) (prohibition of mass expulsion of non-nationals) of the Charter. Furthermore, the complaint alleged that lack of access to the Angola judicial system after arrest and before expulsion violated due process rights under Articles 7(1)(a) (right to due process) and 12(4) (prohibition of expulsion of a legally admitted non-national ) of the Charter; that confiscation of property, including personal identification documents, violated the right to property under Article 14; that the abrupt expulsion without due process of lawfully employed individuals violated the right to work under “equitable and satisfactory” conditions in Angola; and that the treatment of individuals arrested, detained and expelled based on their nationality offended both Articles 1 and 2 of the Charter, which prohibited discrimination and disregard for the human rights objectives of the Charter, respectively.

The Commission declared the complaint admissible at its 39th ordinary session. The complainant subsequently submitted a complaint on the merits, which the Secretariat of the Commission forwarded to the Government of Angola on August 21, 2006. The Respondent State, however, did not provide a response despite repeated reminders, and the Commission notified the parties of its decision on the merits on December 19, 2007.

The Commission held that the state violated all implicated Articles of the Charter with the exception of Article 3 (equal protection). The Commission’s Rules of Procedure required it to consider the allegations of the claimant despite the Respondent State’s failure to provide a submission on the merits. Angola did not violate Article 3(2) of the Charter because the complainant did not demonstrate that the Respondent State had comparatively treated the Gambian victims differently from other nationals arrested and detained under the same conditions.

The Commission held that the treatment of detained Gambians, including the extremely unsanitary conditions of their detention facilities, and the authority’s refusal to provide medical attention and regular food constituted a plain violation of Article 5 of the African Charter, as “such treatment [could not] be called anything but degrading and inhuman.”

The Commission held that Angola also violated Article 6 insofar as it provided no defense to the complainant’s allegation of arbitrary arrest and expulsion. Angola violated Article 7(1)(a) because it did not provide detainees an explanation for their arrest or afford the detainees an opportunity to speak with a lawyer or appear before a judge. Additionally, Angola’s refusal to allow detainees to challenge their expulsion under domestic law constituted a violation of due process under Article 12(4).

When undertaking mass expulsions of Gambians to protect its economic interests without concern for human rights, Angola also violated Article 12(5). The state violated Article 14 as well because it did not assert any public need or community interest for its confiscation of personal property. Furthermore, arbitrary arrest, detention and deportation based on the grounds that foreigners could not engage in mining activities in Angola violated the right to equitable and satisfactory work conditions.

The Commission found clear discrimination based on national origin in violation of Article 2, as well as an automatic violation of Article 1 as a result of failures to respect the preceding fundamental rights. Consequently, Angola was ordered to adopt a series of recommendations, which included compensating those who were physically harmed during arrest and detention, ensuring that immigration policies did not discriminate based on national or ethnic origin, and putting in place procedural safeguards that guaranteed recourse for individuals deprived of liberty, regardless of their nationality.

"52. In communication 224/1998 Media Rights Agenda v Federal Republic of Nigeria, the African Commission held the terms “cruel, inhuman or degrading punishment or treatment” to be “interpreted so as to extend to the widest possible protection against abuses, whether physical or mental,” referring to any act ranging from denial of contact with one’s family and refusing to inform the family of where the individual is being held, to conditions of overcrowded prisons and beatings and other forms of physical torture, such as deprivation of light, insufficient food and lack of access to medicine or medical care. The African Commission also reiterates its position taken in Huri-Laws v. Nigeria, in which it ruled that such “treatment meted out to the victim” constituted a breach of Article 5 of the African Charter, as well as the [Standard Minimum Rules for the Treatment of Prisoners] as laid out by the United Nations." Page 8-9.

"84. The African Commission wishes to emphasis[e] that there is nothing in the African Charter that requires Member States of the African Union to guarantee for non-nationals an absolute right to enter and/or reside in their territories. This, however, does not in anyway mean that the African Charter gives Member States the free hand to unnecessarily and without due process deal with non-nationals to such an extent that they are denied the basic guarantees enshrined under the African Charter for the benefit of everyone. Member States may deny entry to or withdraw residence permits from non-nationals for various reasons including national security, public policy or public health. Even in such extreme circumstances as expulsion, however, the affected individuals should be allowed to challenge the order/decision to expel them before competent authorities, or have their cases reviewed, and have access to legal counsel, among others. Such procedural safeguards aim at making sure that non-nationals enjoy the equal protection of the law in their country of residence, ensure that their daily lives are not arbitrarily interfered with, and that they are not sent back/deported/expelled to countries or places they are likely to suffer from torture, inhuman or degrading treatment, or death, among others." Page 18.