Peoples’ Right to a Nationality
Apart from the individual rights, the Commission has also been based its case
law on nationality-related mass expulsions in Africa by invoking art 18 of the
Charter, protecting the collective group rights of families. In the 1996 Amnesty
International v Zambia case, the Commission found Zambia guilty of forcible
expulsion of the complainants and breaking up their families, which was in
violation of arts 18(1) and 18(2) of the Charter. The Commission also condemned
the Angolan Government in the Union Inter-Africaine des Droits de l’Homme v
Angola case for violating art 18 by deporting hundreds of West African migrants,
and thereby separating their families. It maintained the same rationale in the
Malawi African Association v Mauritania case. At the level of the case law
developed at the level of RECs, the East African Community (‘EAC’) Court of
Justice in 2016 condemned the failure of the EAC institutions to investigate and
provide redress for the illegal expulsion of immigrants in Tanzania under its
‘Operation Kimbunga’ of 2003. 127
Apart from the Commission, there is also a growing case law in Africa on the
right to nationality and child statelessness by the African Committee of Experts
on the Rights and Welfare of the Child (‘ACERWC’) based on violations of arts
3 and 6 of its Charter. In March 2011, for instance, the ACERWC passed a
decision on the landmark IHRDA and OSJI on Behalf of Children of Nubian
Descent in Kenya v Kenya case, in which it held that it ‘cannot overemphasize the
overall negative impact of statelessness on children’, stating that:
[A]s much as possible, children should have a nationality beginning from birth …
Moreover, by definition, a child is a person below the age of 18 (Article 2 of the
African Children’s Charter) and the practice of making children wait until they turn
18 years of age to apply to acquire a nationality cannot be seen as an effort on the
part of the State Party to comply with its children’s rights obligations. 128
There was also the ACERWC decision of 2018 on the case of African Centre
of Justice and Peace Studies (ACJPS) and Peoples’ Legal Aid Centre (PLACE) v
the Republic of Sudan, in which the Committee further elucidated the relationship
between the right to a nationality as protected in arts 6 and 3 of the African Charter
on the Rights and Welfare of the Child 129 on non-discrimination, concluding that
the applicant had been arbitrarily deprived of her Sudanese nationality. 130
Since its inception, the African Court on Human and Peoples Rights has also
been contributing to the development of a specific African case law on the right to
nationality and the prevention of statelessness in the continent. On 22 March 2018,
for instance, it handed its first judgment on a case related to the right to nationality
127 See East African Law Society v Secretary General of EAC (Reference No 7 of 2014) [2016]
EACJ 113 (22 March 2016).
128 Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice
Initiative (on Behalf of Children of Nubian Descent in Kenya) v the Government of Kenya
(African Committee of Experts on the Rights and Welfare of the Child, Decision No
002/Com/002/2009, 22 March 2011) 10 [46], 9 [42].
129 The African Charter on the Rights and Welfare of the Child is a regional human rights treaty
that sets out rights and defines principles for the status of children on the continent: African
Charter on the Rights and Welfare of the Child, adopted 11 July 1990, OAU Doc
CAB/LEG/24.9/49 (entered into force 29 November 1999).
130 See African Committee of Experts on the Rights and Welfare of the Child, African Centre of
Justice and Peace Studies (ACJPS) and Peoples’ Legal Aid Centre (PLACE) v the Republic
of Sudan (African Committee of Experts on the Rights and Welfare of the Child, Decision No
002/2018, 31st ord sess, 29 November 2018).
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