How to use the African Human Rights System in Refugee/Asylum cases or Related Violations
1. Filing a Communication
2. Provisional Measures
3. Taking a case to the Court
States and their institutions can fail to provide adequate help for refugees and asylum seekers. When a decision reached by a State is considered to be in breach of regional rules regarding the adequate treatment of refugees, it is possible to access two regional African Human Rights instruments. These can provide help for asylum seekers and refugees: the African Commission on Human and Peoples’ Rights (The Commission) and the African Court on Human and Peoples’ Rights (The Court).
Individuals and NGOs are encouraged to take their cases to the Commission, a process referred to as 'filing a Communication'. On the other hand, individuals and NGOs can only take cases directly to the Court if the State involved has 'deposited a declaration (Art 34 (6))... accepting the competence of the Court to receive cases from individuals and NGOs with observer status. Up to 31 July 2013, only 7 countries had deposited a declaration: Côte d’Ivoire, Burkina Faso, Ghana, Malawi, Mali, Rwanda and Tanzania. To see whether other countries have subsequently 'deposited a declaration', look here for new press releases.
A document on how to file a communication to the Commission can be found alongside this document. Details about how to take a case to the Court can be found here. In the next few paragraphs, you will find some important details contained in these documents. Before looking at the material provided, you may want to read on so you can assess whether you qualify.
1. Filing a Communication to the Commission
'Communications' can be filed against any state party to the African Charter, and 53 member states of the African Union have ratified it. Individuals and NGOs can file a communication to the Commission without the need of a lawyer. Significantly, NGOs do not need observer status with the Commission to file a complaint. Furthermore, 'the Commission may, either at the request of the author of the communication or at its own initiative, facilitate access to free legal aid to the author in connection with the representation of the case' as long as the author lacks sufficient financial means.
1. An individual/NGO must send a “letter of introduction” to the Commission which must include:
-a brief description of the facts of the alleged violations;
-show attempts to exhaust domestic remedies;
-contacts and other information contained in Rule 93(2) of the Rules of Procedure.
This can be done by email, although it is advisable also to send a hard copy by regular mail.
2. Once the communication is received, the Commission will request the complainant to present evidence and 'arguments on admissibility' within two months. Article 56 of the Charter sets out seven criteria for admissibility, which must all be met:
- Name and address of the author (and not necessarily the victim) must be provided, even if a request for anonymity is made.
- The Communication must specifically address violations of rights guaranteed in the African Charter, not vague statements about the general political situation in a country. The alleged facts must have occurred after the ratification of the Charter by the state in question. The right to asylum is upheld in Article 12(3).
- The Communication must not be 'written in disparaging or insulting language directed against the State concerned and its institutions or to the AU'. For example, in Ligue Camerounaise des Droits de l'Homme v. Cameroon (65/92) a Communication was found to be inadmissible because it contained the following statements: “regime of torturers”; “government barbarisms”; “Paul Biya must respond to crimes against humanity.” You must describe facts and events, not draw conclusions from them.
- Communication cannot be 'based exclusively on news disseminated through the mass media.' This requires that the author provides varied sources if possible. 'Media reports can be used, though not exclusively.'
- Local remedies must be exhausted 'unless it is obvious that this procedure is unduly prolonged.' 'Local remedies are any judicial/legal mechanisms put in place at the domestic level to ensure the effective settlement of disputes.' This criterion is crucial as 'most cases fail because of lack of exhaustion.' The author of the communication must prove that local remedies exist (or not) and have been exhausted wherever possible. Bear in mind that asylum seekers who are no longer residing in their country of origin do not necessarily need to exhaust local remedies as they cannot return to their countries. The document supplied above provides more information regarding this.
- Communications must be submitted 'within a reasonable period from the time local remedies are exhausted.' It is advisable to submit as soon as possible, but recent case-law suggests that approximately 6 months is 'a reasonable time'.
- Communications that have been finalised by some other international mechanism similar to the Commission are inadmissible. 'The Commission will, however, consider communications that have been discussed by non-judicial international bodies, such as UN special rapporteurs'.
If the Commission declares a Communication inadmissible, it is possible to 'reintroduce it to the Commission' to be reviewed. This requires 'the submission of new evidence, contained in a written request to the Commission by the author. For example, when the reason for declaring it inadmissible has been rectified or where the complainant believes that the Commission made a mistake.'
When a Communication is declared admissible and is not settled amicably between the victims and the State, 'the Commission will invite the complainant to make a submission on the merits within 60 days. Generally, the more information that can be submitted to support an alleged violation, the better.'
Practical advice for drafting communication on merits:
• Ensure that all allegations are well supported and based on specific facts.
• Clearly specify the rights that are violated with reference to the African Charter.
• Conduct thorough research on Commission case law and other international human rights jurisprudence dealing with the relevant rights.' African Commission case-law can be found here and here and activity reports by the Commission are here.
2. Provisional Measures
Once the Commission receives the Communication, it may, 'on its initiative or at the request of a party to the Communication, request that the State concerned adopt ' provisional measures' to prevent irreparable harm to the victim or victims of the alleged violation as urgently as the situation demands.'
A request for provisional measures can be submitted to the Commission at any time after the Communication is submitted. What constitutes a risk of irreparable harm is decided on a case by case basis. An example of irreparable harm is a death sentence ( Egyptian Initiative for Personal Rights & Interights v. Egypt (334/06)). 'Other examples where the Commission has requested the respondent state to adopt provisional measures include cases of serious or massive violations; cases where the complainant was forcibly removed from his country of origin and wanted to return pending the outcome of the communication; cases where the complainants were prevented from voting in a national general election'.
It is important to note that 'the request for provisional measures is independent of a decision on the substance [of the case], as its purpose is to protect rights at the time the request is made.' Therefore, whether a provisional measure is granted has no impact on the decision about the Communication filed.
3. Filing a Case in the Court
The Commission, Individuals and NGOs are among those who can take a case to the Court. However, only some individuals and NGOs can take cases to the Court. Only those who allege violations occurring in states which have made a declaration (Art 34 (6)) accepting the jurisdiction of the Court to hear individuals and NGOs can take cases to the Court. If the country in which the alleged violations occurred has made such a declaration, then an individual/NGO can take a case to the Court directly. (Up to January 2014, seven countries (out of the 26 States Parties to the Protocol) have deposited such a declaration: Côte d’Ivoire, Burkina Faso, Ghana, Malawi, Mali, Rwanda and Tanzania. Please see here for press releases on countries that may have recently deposited a declaration.
No statute of limitations applies as to when a matter can be brought before the Court, although you must submit your case within 'a reasonable time from the date local remedies were exhausted' if applicable. There is no fee.
1. Be in writing and in one of the official languages of the Court;
2. Be signed by the applicant or representative;
3. Provide the details of the applicant and respondent;
4. Specify the alleged violations and order sought;
5. Offer proof of exhaustion of local remedies.
Written by Violeta Barrera (BA Law and Sociology, MA Legal and Political Theory), for the Rights in Exile Programme, October 2013.