th
pour la défense des droits de I'Homme vs. Zambia (20 Session, October 1996), the Commission was
of the view that "the massive nature of the arrests, the fact that the victims were kept in detention
before the expulsions and the pace with which they were carded out did not leave and opportunity to
the Complainants to establish the illegality of these acts before the Courts.” In view of the foregoing,
the Commission notes that local remedies were not accessible to the Complainants.
13. On these grounds, the Commission declared the communication admissible.
Merits
14. Article 12 paragraph 4 stipulates that a non-national legally admitted in a territory of a State party
to the present Charter may only be expelled from it by virtue of a decision taken in accordance with the
law. Paragraph 5 of the same article stipulates that "the mass expulsion of non nationals shall be
prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups."
15. In communication 71/92 cited here above, the Commission indicated that "mass expulsion was a
special threat to human rights. A government action specially directed at specific national, racial ethnic
or religious groups is generally qualified as discriminatory in the sense that, none of its characteristics
has any legal basis or could constitute a source of particular incapacity”.
16. The Commission concedes that African States in general and the Republic of Angola in
particular are faced with many challenges, mainly economic. In the face of such difficulties, States
often resort to radical measures aimed at protecting their nationals and their economies from
non-nationals. Whatever the circumstances may be, however, such measures should not be taken at
the detriment of the enjoyment of human rights. Mass expulsions of any category of persons, whether
on the basis of nationality, religion, ethnic, racial or other considerations "constitute a special violation
of human rights".
17. This type of deportations calls into question a whole series of rights recognised and guaranteed
in the Charter; such as the right to property (Article 14), the right to work (Article 15), the right to
education (Article 17.1) and results in the violation by the State of its obligations under Article
18.1 which stipulates that "the family shall be the natural unit and basis of society. It shall be protected
by the State which shall take care of its physical and moral health” . By deporting the victims, thus
separating some of them from their families, the Defendant State has violated and violates the letter of
this text.
18. Article 2 of the Charter emphatically stipulates that "Every individual shall be entitled to the
enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other
opinion, national and social origin, fortune, birth or other status.” This text obligates States Parties to
ensure that persons living on their territory, are they their nationals or non-nationals enjoy the rights
guaranteed in the Charter. In this case, the victim’s rights to equality before the law were trampled on
because of their origin.
19. It emerges from the case file that the victims did not have the opportunity to challenge the matter
before the competent jurisdictions which should have ruled on their detention, as well as on the
regularity and legality of the decision to expel them by the Angolan government. Consequently, Article
7 paragraph 1 (a) of the Charter [has been violated].
20. The Commission does not wish to call into question nor is it calling into question the right of any
State to take legal action against illegal immigrants and deport them to their countries of origin, if the
competent courts so decide. It is however of the view that it is unacceptable to deport individuals
without giving them the possibility to plead their case before the competent national courts as this is
contrary to the spirit and letter of the Charter and international law.