Migration-Related Detention and International Law
Regional Norms and Standards: Africa
The regional African human rights system was created within the framework of the Organization of African Unity (OAU), today African Union (AU). It is primarily based on the African Charter on Human and Peoples’ Rights (1981) (the African or Banjul Charter), which was adopted in 1981 and came into force in 1986.
Article 6 of the charter protects the rights to liberty and security and determines: “Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained” (African Charter on Human and Peoples’ Rights 1981, Art. 6).
Article 12 of the charter protects the right to asylum and the rights of persons legally in the territory of a state party not to be expelled in the absence of a decision taken in accordance with the law. It also prohibits mass expulsion of non-nationals, determining that “Mass expulsion shall be that which is aimed at national, racial, ethnic, or religious groups” (African Charter on Human and Peoples’ Rights 1981, Art. 12).
In June 1998, the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (1998) was adopted to complement the work of the African Commission on Human and Peoples’ Rights. The protocol entered into force in 2004 and the Judges of the Court were elected in January 2006.
The African Commission on Human and Peoples’ Rights was established by the African Charter on Human and Peoples’ Rights. The Commission meets twice a year, either in the Gambia or other member state of the AU.
The African Commission’s overall mandate is to promote and protect human and peoples’ rights and interpret the African Charter on Human and Peoples’ Rights. More specifically the African Commission can collect documents, undertake studies, formulate and lay down principles and rules, and cooperate with other African countries or international institutions involved in the protection of human and peoples’ rights. In carrying out its functions, the commission may carry out country visits. It has also established a number of inquiry mechanisms (Rapporteurships) on specific themes. Similar to the committees set up under a number of the UN human rights treaties, the commission also considers the periodic reports of states parties on the legislative or other measures adopted to give effect to the rights and freedoms recognized and guaranteed in the African Charter on Human and Peoples’ Rights (1981).
Additionally, the commission can receive communications from states parties, individuals, or NGOs regarding allegations of violations of the rights protected under the charter. With the entry into force of the Protocol on the Establishment of an African Court on Human and Peoples’ Rights, the commission may also submit cases to the court.
Two of the commissions’ special mechanisms can be relevant to the situation of non-citizens in detention: the Special Rapporteur on Refugees, Asylum Seekers, Migrants, and Internally Displaced Persons and Migrants in Africa, created in 2004; and the Special Rapporteur on Prisons and Conditions of Detention in Africa , created in 1996.
As of mid-2008, the Rapporteur on Prisons had issued reports based on visits to Cameroon , Ethiopia , and South Africa . The report on South Africa includes a section on the rapporteur’s visit to the Lindela Repatriation Center and recommends that the government provide detained undocumented migrants the opportunity to challenge their arrest and/or detention in a court of law and that measures be adopted to ensure that such persons are repatriated within a certain period of time ( Special Rapporteur on Prisons and Conditions of Detention in Africa 2004 , p. 65, para. k).
Lastly, there is the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) , adopted in 1969, which expanded the definition of a refugee. Under this convention, refugees include not only persons who leave their country as a result of a well-founded fear of persecution, but also those who flee “owing to external aggression, occupation, foreign domination, or events seriously disturbing public order in either part or the whole of his country of origin or nationality” (Convention Governing the Specific Aspects of Refugee Problems in Africa 1969, Art. 1.2). The OAU Convention requires that member states of the OAU “use their best endeavours to receive refugees and to secure the settlement of those refugees” (Convention Governing the Specific Aspects of Refugee Problems in Africa 1969, Art. 2.1).
