Asylum and refuge

Author
Mary Falconer
Judgment date
Court name
African Commission on Human and Peoples Rights
Flynote local
Resolution
Flynote
Human Rights
Displaced persons
Refugees
Asylum and refuge
Security of the person
Violence

The African Commission on Human and Peoples’ Rights (the Commission), meeting at its 70th Ordinary Session held virtually from 23 February to 9 March 2022;

Recalling its mandate of promotion and protection of human and peoples’ rights in Africa, pursuant to Article 45 of the African Charter on Human and Peoples’ Rights (the African Charter);

Considering Article 3(f) of the Constitutive Act and Article 3(f) of the Protocol Relating to the Establishment of the Peace and Security Council of the African Union, which recommend the promotion of peace, security and stability as well as the encouragement of democratic practices, good governance and the rule of law, the protection of human rights and fundamental freedoms, respect for the sanctity of human life and international humanitarian law, as part of efforts for preventing conflicts;

Also considering Article 23 of the African Charter which guarantees peace and security for all Africans;

Emphasising its Resolutions ACHPR/RES. 332 (EXT.OS/XIX) 2016 on human rights in conflict situations, ACHPR/Res.369(LX) 2017 on the situation of internally displaced persons in Africa, ACHPR/Res.470 (LXVII) 2020 on the protection of refugees, asylum seekers, internally displaced persons and migrants in the fight against the COVID-19 pandemic in Africa, ACHPR/Res.484 (EXT.OS/XXXIII) 2021 on the respect for the principle of non-refoulement of asylum seekers and refugees, and UN Security Council Resolution 1674 (2006) which reaffirms the need to maintain the security and civilian character of camps and stresses the primary responsibility of States in this regard;

Bearing in mind its Press Release of 5 December 2021 on the killings of internally displaced persons in the eastern region of the Democratic Republic of Congo;

Recalling the implementation commitments from the 1st Meeting of the Conference of States Parties to the 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) held in Harare, Zimbabwe, in April 2017;

Further recalling the provisions of the UN Guiding Principles on Internal Displacement;

Considering the commitment of States Parties in the preamble of the Kampala Convention to provide durable solutions to situations of internally displaced persons by establishing an appropriate legal framework for their protection and assistance, and to adopt measures aimed at preventing and putting an end to internal displacements by eradicating the root causes, especially those caused by natural disasters;

Deeply concerned about the sharp increase in violence in sub-Saharan Africa, the continuation of fighting in the eastern part of the Democratic Republic of Congo and the Tigray region in the Federal Democratic Republic of Ethiopia, resulting in increased vulnerability of internally displaced persons (IDPs), loss of life, as well as the double displacement imposed on IDPs seeking safety due to unacceptable attacks on camps in various countries including the Democratic Republic of Congo, Burkina Faso, Niger, Mali and the Federal Democratic Republic of Ethiopia;

Deploring the lack of protection by States at IDP camps and sites;

Recalling the need to meet the requirements of internally displaced persons who generally lack the resources to survive the multiple displacements they have to endure;

Bearing in mind the role of the Commission under Article 45, paragraph 1(a) of the African Charter, which authorises it to “(…) give its views or make recommendations to Governments”;

The Commission:

1. Condemns the multiples  attacks on IDP camps and sites; 

2. Calls on the various actors to respect the civilian and humanitarian character of IDP camps and sites;

3. Calls on States to effectively conduct investigations in order to prosecute and convict the perpetrators and thereby contribute to strengthening the system for combating impunity and ensuring equal justice for all;

4. Reminds States of their treaty obligations and the commitments they have made by embracing the standards and policies of the African Union relating to the protection of asylum seekers, refugees and migrants on the continent, in particular the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and the Kampala Convention;

5. Calls on States that have ratified the Kampala Convention to establish or strengthen early warning mechanisms to support risk prevention and protection, including those relating to attacks on civilians at IDP sites;

6. Urges the African Union to engage in the resolution of the various conflicts which exacerbate forced internal displacement, in particular by restoring the security and presence of the State on sites where displaced persons are hosted, and to protect their rights against all kinds of violations;

7. Calls on States to:

i. ensure that sites for displaced persons are located away from conflict zones and to give priority to stable and secure areas;

ii. to empower national camp coordination and management mechanisms so as to effectively ensure the security of displaced persons;

8. Calls on humanitarian agencies to increase their involvement in the coordination  with nationals actors in the management and protection of sites hosting IDPs in order to secure the sites and provide stability to the displaced populations.

Done on 9 March 2022

Author
admin
Judgment date
Court name
African Commission on Human and Peoples Rights
Flynote local
Resolution
Flynote
Refugees
Asylum and refuge

The African Commission on Human and Peoples’ Rights, meeting at its 62nd Ordinary Session held from 25 April to 9 May 2018 in Nouakchott, Islamic Republic of Mauritania;

 

Recognizing its mandate to promote and protect human and peoples’ rights in Africa under Article 45 of the African Charter on Human and Peoples’ Rights (African Charter);

Recalling the provisions of Article 12 of the African Charter, which guarantee the right to freedom of movement and residence for all individuals and prohibit the mass expulsion of non-nationals; 

Recalling the provisions of the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) and international instruments on the protection of migrants;

Recalling further its Resolutions ACHPR/Res.114 (XXXXII) 07, ACHPR/Res.131 (XXXXIII) 08 and ACHPR/Res.333 (EXT.OS/XIX) 16 on the situation of migrants, as well as its Statement on the deteriorating situation of migrants in the Mediterranean adopted at its 56th Ordinary Session held in Banjul, The Gambia, and its press release of 22 November 2017 on trafficking in persons and slavery in Libya;

Recalling the provisions of Article 3(h) of the Constitutive Act of the African Union relating to the promotion and protection of human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights, and Article 5 of the African Charter which condemns all forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment;

Recalling also that in the 2006 African Common Position on Migration and Development, the African Union considered that migration can be an effective tool in the fight against poverty by enhancing income distribution, promoting development and productive work for growth in Africa; 

Considering the steady increase in mixed migratory flows despite the various measures taken by States to separate asylum seekers from people who are not covered by international protection; 

Concerned about the recent migrant and Sub-Saharan refugee crisis in Libya and condemning the treatment of migrants subjected to trafficking in persons and auctioning;

Appalled by the growing number of cases of ill-treatment and other abusive and persistent violations, including police brutality during the expulsion of migrants, in particular unaccompanied children and women in several regions in North and Sub-Saharan Africa, notably in Algeria;

Condemning the transfer and confinement of a significant number of migrants in detention centres and/or prisons under shameful and inhuman conditions, under the guise that they are a serious threat to  public order, internal security or risks related to organised crime and threats of terrorism;

Emphasising the need to adopt concrete and concerted measures for appropriate and lasting solutions to the issue of migration and the protection of migrants and their rights free of any coercive approach;

Welcoming the adoption by the African Union of the Protocol to the Treaty establishing the African Economic Community relating to Free Movement of Persons, Right of Residence and Right of Establishment, as well as the development of the African Union Migration Policy Framework for Africa and its Plan of Action;

 

The Commission:

  1. Condemns trafficking in persons and the sale of migrants, as well as police brutality during the expulsion of migrants;
  2. Calls upon States Parties to view migrants as an economic potential and not as an element of insecurity and to adopt the position of effective governance of migration; 
  3. Calls upon States Parties and the African Union to adopt the necessary measures to guarantee the protection of migrants, by coordinating their efforts in preventing trafficking in persons, forced labour and sexual exploitation;
  4. Urges States Parties, in particular countries of North Africa, to find solutions together with countries of origin, and to introduce and enforce alternative measures to the detention of migrants, in particular vulnerable groups;
  5. Calls upon States to declare their position on the non-derogability of the prohibition of the crime of slavery;
  6. Calls upon States Parties to implement the Protocol to the Treaty establishing the African Economic Community relating to Free Movement of Persons, Right of Residence and Right of Establishment, as well as the African Union Migration Policy Framework for Africa and its Plan of Action;
  7. Encourages States Parties to the African Charter to work with partners, including UNHCR, IOM and national Red Cross and Red Crescent organisations, towards the establishment of special mechanisms for the management of mixed migratory flows, in particular during migrant repatriation operations;     
  8. Calls upon States Parties to promote conventional cooperation ties in the prevention of irregular migration and the return of irregular migrants; 
  9. Urges Libya to authorise and facilitate the conduct of the fact-finding mission assigned by the Chairperson of the African Union Commission on the situation of migrants in Libya.

 

Adopted at the 62nd Ordinary Session of the African Commission on Human and Peoples’ Rights held in Nouakchott, Islamic Republic of Mauritania, from 25 April to 9 May 2018