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317 06 The Nubian Community in Kenya vs The Republic of Kenya

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Summary of the Complaint1
Complaint2
Procedure2
The Law3
Admissibility3
Complainants' Submissions on Admissibility3
Analysis of the Commission5
Merits8
The Complainants' Submissions on the Merits8
Alleged Violation of Article 2 and 38
Alleged Violation of Article 5 of the Charter9
Alleged Violation of Article 1410
Consequential Violations12
Alleged Violation of Article 112
Respondent State's Submission on the Merits12
Alleged Violation of Article 28
Alleged Violation of Article 59
Alleged Violation of Article 1213
Alleged Violation of Article 1410
Alleged Violation of Article 1514
Alleged Violation of Article 1614
Alleged Violation of Article 1714
Amicus Submission of the Allard K Lowenstein International Human Rights Clinic, Yale School of Law15
The Commission's Assessment on the Merits16
Alleged Violation of Article 2 and 38
Alleged Violation of Article 59
Alleged Violation of Article 1410
Consequential Violations22
Alleged Violation of Article 110
Decision of the Commission on the Merits23

317 06 The Nubian Community in Kenya vs The Republic of Kenya

Document

Preview

Type of Document

Decision

Keywords

Cruel and Degrading Treatment
Discrimination
Education
Freedom of Movement
Participation in Government
Right to Equality Before the Law
Right to Health
Right to Nationality and Nationality Rights
Right to Property
Right to Work
Torture and Ill Treatment

Country

Kenya

Outcome: Decided on Merits

Year Decided: 28 فبراير 2015

Rights Alleged to be Violated

ACHPR 1 - General Obligations
ACHPR 12 : Right to Freedom of Movement
ACHPR 12:2: Right to leave any country including his own, and to return to his country
ACHPR 13 : Right to Participate in Government
ACHPR 14: Right to Property
ACHPR 15 : Right to Work
ACHPR 17 : Right to Education
ACHPR 18 : Protection of the Family and Vulnerable Groups
ACHPR 19: Right of All Peoples to Equality and Rights
ACHPR 2: Freedom from Discrimination
ACHPR 22: Peoples' Right to Economic, Social and Cultural Development
ACHPR 24 : Right to a General Satisfactory Environment
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 5: Cruel Inhuman and Degrading Treatment

Rights Violated

ACHPR 1 - General Obligations
ACHPR 12 : Right to Freedom of Movement
ACHPR 13 : Right to Participate in Government
ACHPR 14: Right to Property
ACHPR 15 : Right to Work
ACHPR 16 : Right to Health
ACHPR 2: Freedom from Discrimination
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 5: Cruel Inhuman and Degrading Treatment

Duration of Proceduretest

23 يناير 2006 ~ 28 فبراير 2015

Country Geolocation

خط العرض: -0.023559

خط الطول: 37.906193

Country Geolocation (مرتبط Document): Kenya

المستندات الأولية

317_06 The Nubian Community in Kenya vs The Republic of Kenya.pdf
English
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3. 317_06 The Nubian Community in Kenya vs The Republic of Kenya PT.pdf
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Banjul charter

Treaty

Banjul charter

Article 31.Every individual shall be equal before the law. 2.Every individual shall be entitled to equal protection of the law.

Treaty

Banjul charter

Article 2Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.

Treaty

Banjul charter

Article 15Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.

Treaty

Banjul charter

Article 19All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.

Treaty

Banjul charter

Article 171. Every individual shall have the right to education. 2. Every individual may freely, take part in the cultural life of his community. 3.The promotion and protection of morals and traditional values recognized by the 6community shall be the duty of the State. Article 181. 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 health and moral. 2. The State shall have the duty to assist the family which is the custodian or morals and traditional values recognized by the community. 3. The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions. 4. The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.

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Banjul charter

Article 5Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

Banjul charter

Article 131.Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. 2.Every citizen shall have the right of equal access to the public service of his country. 3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law. Article 14The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.

Treaty

Banjul charter

Article 24All peoples shall have the right to a general satisfactory environment favorable to their development.

Treaty

Rules of Procedure of the African Commission

The Commission may grant an 2. extension which shall not exceed one (1) month, and shall not grant more than one extension per party for any given submission.

ACmHPR Soft Law

Banjul charter

Article 551.Before each Session, the Secretary of the Commission shall make a list of the communications other than those of States parties to the present Charter and transmit them to the members of the Commission, who shall indicate which communications should be considered by the Commission. 2.A communication shall be considered by the Commission if a simple majority of its members so decide.

Treaty

Banjul charter

Article 56Communications relating to human and peoples' rights referred to in 55 received by the Commission, shall be considered if they: 1.Indicate their authors even if the latter request anonymity, 2.Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3.Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4.Are not based exclusively on news discriminated through the mass media, 5.Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6.Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and 7.Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.

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5.Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged,

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Article 15Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work. Article 161. Every individual shall have the right to enjoy the best attainable state of physical and mental health. 2. States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick

Treaty

Banjul charter

Article 19All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.

Treaty

Banjul charter

Treaty

Banjul charter

Treaty

Banjul charter

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Banjul charter

Article 19All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.

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Banjul charter

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Banjul charter

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Banjul charter

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rticle 31.Every individual shall be equal before the law. 2.Every individual shall be entitled to equal protection of the law.

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Banjul charter

Article 14The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.

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rticle 171. Every individual shall have the right to education

Treaty

Banjul charter

Article 161. Every individual shall have the right to enjoy the best attainable state of physical and mental health. 2. States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick

Treaty

Banjul charter

Article 15Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.

Treaty

Banjul charter

Article 121. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law. 2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality. 3. Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions. 4. 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. 55. The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious group

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Article 15Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.

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97 93 14AR John K. Modise Botswana

Document

Banjul charter

Article 1The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them.Article 2Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. 3Article 31.Every individual shall be equal before the law. 2.Every individual shall be entitled to equal protection of the law.

Treaty

Banjul charter

Treaty

Banjul charter

Treaty

Banjul charter

Treaty

Banjul charter

Treaty

Banjul charter

Treaty

Banjul charter

Article 31.Every individual shall be equal before the law. 2.Every individual shall be entitled to equal protection of the law.

Treaty

Banjul charter

Treaty

Banjul charter

Article 31.Every individual shall be equal before the law. 2.Every individual shall be entitled to equal protection of the law.

Treaty

Banjul charter

Treaty

Banjul charter

Treaty

Banjul charter

Article 31.Every individual shall be equal before the law. 2.Every individual shall be entitled to equal protection of the law.

Treaty

294 04 ZLHR and IHRDA on behalf of Andrew Meldrum v Zimbabwe

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Banjul charter

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Article 171. Every individual shall have the right to education

Treaty

Banjul charter

icle 121. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law. 2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality. 3. Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions. 4. 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. 55. The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups. Article 131.Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. 2.Every citizen shall have the right of equal access to the public service of his country. 3. Every individual shall have the right of access to public property and services in strict

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Rules of Procedure of the African Commission

ule 112 Follow-up on the recommendations of the CommissionAfter the consideration of the 1. Commission’s Activity Report by the Assembly, the Secretary shall notify the parties within thirty (30) days that they may disseminate the decision. In the event of a decision against a 2. State Party, the parties shall inform the Commission in writing, within one hundred and eighty (180) days of being informed of the decision in accordance with paragraph one, of all measures, if any, taken or being taken by the State Party to implement the decision of the Commission.Within ninety (90) days of receipt 3. of the State’s written response, the Commission may invite the State concerned to submit further information on the measures it has taken in response to its decision. Part Three : Protection Activities 42If no response is received from 4. the State, the Commission may send a reminder to the State Party concerned to submit its information within ninety (90) days from the date of the reminder.The Rapporteur for the 5. Communication, or any other member of the Commission designated for this purpose, shall monitor the measures taken by the State Party to give effect to the Commission’s recommendations on each Communication.The Rapporteur may make such 6. contacts and take such action as may be appropriate to fulfill his/her assignment including recommendations for further action by the Commission as may be necessary.At each Ordinary Session, the 7. Rapporteur shall present the reportduring the Public Session on the implementation of the Commission’s recommendations.The Commission shall draw the 8. attention of the Sub-Committee of the Permanent Representatives Committee and the Executive Council on the Implementation of the Decisions of the African Union, to any situations of non-compliance with the Commission’s decisions. The Commission shall include 9. information on any follow-up activities in its Activity Report

ACmHPR Soft Law

Rules of Procedure of the African Commission

ACmHPR Soft Law

Achpr33 228 99 eng

29.The rule of exhausting domestic remedies is the most important condition for admissibility of communications, there is no doubt therefore, in all communications seized by the African Commission, the first requirement considered concerns the exhaustion of local remedies in terms ofArticle 56 (5)of the Charter.

Document

Rencontre Africaine pour la Défense des Droits de l’Homme v Zambia

12. When the Zambian government argues that the communication must be declared inadmissible because the local remedies have not been exhausted, the government then has the burden of demonstrating the existence of such remedies. The government of Zambia attempts to do so by referring to the Immigration and Deportations Act which provides for appeal of expulsion orders. The government states that actions for loss of property likewise can be brought under Zambian law.

Document

Achpr26 48.90 50.91 52.91 89.93 eng

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54 91 61 91 96 93 98 93 164 97 196 97 210 98 Malawi African Association, Amnesty...

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19. 25 89 47 90 56 91 100 93 Free Legal Assistance Group, Lawyers' Committee for Human Rights, Union Interafricaine des Droits de l'Homme, Les Témoins de Jehovah v. DRC

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147 95 149 96 Sir Dawda K. Jawara Gambia (The)

Document

Free Legal Assistance Group and Others v Zaire

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47 90 Lawyers Committee for Human Rights Zaire

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19. 25 89 47 90 56 91 100 93 Free Legal Assistance Group, Lawyers' Committee for Human Rights, Union Interafricaine des Droits de l'Homme, Les Témoins de Jehovah v. DRC

36.Article 56 of the African Charter requires that Complainants exhaust local remedies before the Commission can take up a case, unless these remedies are as a practical matter unavailable or unduly prolonged. The requirement of exhaustion of local remedies is founded on the principle that a government should have notice of a human rights violation in order to have the opportunity to remedy such violations before being called before an international body. In this case, the government has had ample notice of the violation

Document

19. 25 89 47 90 56 91 100 93 Free Legal Assistance Group, Lawyers' Committee for Human Rights, Union Interafricaine des Droits de l'Homme, Les Témoins de Jehovah v. DRC

35.After deliberations, as envisioned by Article 58 of the African Charter, the Commission considered that communications 25/89, 47/90, 56/91 and 100/93 against Zaire reveal the existence of serious and massive violations of human rights.36.Article 56 of the African Charter requires that Complainants exhaust local remedies before the Commission can take up a case, unless these remedies are as a practical matter unavailable or unduly prolonged. The requirement of exhaustion of local remedies is founded on the principle that a government should have notice of a human rights violation in order to have the opportunity to remedy such violations before being called before an international body. In this case, the government has had ample notice of the violation.37.The Commission has never held the requirement of local remedies to apply literally in case where it is impractical or undesirable for the Complainant to seize the domestic courts in the case of each violation. This is the situation here, given the vast and varied scope of the violations alleged and the general situation prevailing in Zaire.

Document

97 93 14AR John K. Modise Botswana

86. The main point of contention of the Respondent State is that Mr Modise could not and did not become acitizen by descent under the repealed Section 20(2) of the Constitution of Botswana because he wasneither a British protected person nor a citizen of the United Kingdom and Colonies on 29th September1966, being a person who was born outside the former Protectorate of Bechuanaland (now Botswana).Granted that John Modise's father was at all times a British Protected person, the question fordetermination is what then was his son's (John Modise's) nationality? To successfully do this, it isnecessary to look at the relevant provision of the Botswana Constitution. The government has cited threeprovisions, to wit: Sections 20(1) and (2) and 23(1) of the Constitution. Section 20(1) provides:(1) Every person who, having been born in the former Protectorate of Bechuanaland, is on 29th September1966, a citizen of the United Kingdom and Colonies or a British Protected Person, shall become a citizen ofBotswana on 30th September 1966.(2) Every person who having been born outside the former Protectorate of Bechuanaland, is, on 29thSeptember 1966, a citizen of the United Kingdom and Colonies or a British protected person, and is not acitizen of any of other country, shall, if his father becomes, or would, but for his death have become acitizen of Botswana in accordance with the provisions of sub-section (1) of this Section, become a citizen ofBotswana on 30th September 1966.

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Achpr46 276 03 eng

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Achpr30 155 96 eng

54.We now examine the conduct of the Government of Nigeria in relation to Article 16 and Article 24 of the African Charter. Undoubtedly and admittedly, the Government of Nigeria, through NNPC has the right to produce oil, the income from which will be used to fulfil the economic and social rights of Nigerians. But the care that should have been taken as outlined in the preceding paragraph and which would have protected the rights of the victims of the violations complained of was not taken. To exacerbate the situation, the security forces of the government engaged in conduct in violation of the rights of the Ogonis by attacking, burning and destroying several Ogoni villages and homes.

Document

97 93 14AR John K. Modise Botswana

89. John Modise's father was a Tswana at the time of independence, 30th September 1966 and his son, theComplainant not having been shown to have any other citizenship, acquired Botswana citizenship by virtueof Section 20(2) of the Constitution of Botswana in force at the time. The denial of this right is in violation ofArticles 3(2) and 5 of the Charter, which provides: "Every individual shall be entitled to equal protection ofthe law". Article 5 on the other hand provides: "Every individual shall have the right to the respect ...to therecognition of his legal status". Having arrived at this, it is therefore not necessary to consider the otherprovisions of the Constitution cited by the State Party

Document

ACERWC Decision on the Communication submitted by IRDHA on behalf of Children of Nubian Descent Vs The Government of Kenya

50.As a result, the dutyin Article 6(4) of the African Children’s Charter to ensure that a child “...acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth, he is not granted nationality by any other State in accordancewith its laws” is squarely applicable to the present Communicationas an obligation of the Government of Kenya.This, by no means, is an attempt by the African Committee to be prescriptive about the choice States make in providing for laws pertaining to the acquisition of nationality. Therefore, while the African Committee is not suggesting that States Parties to the Charter should introduce the jus soliapproach, in line with the best interests of the child principle, it is explaining the intent of Article 6(4) of the African Children’s Charter that if a child is born on the territory of a State Party and is not granted nationality by another State, the State in whose territory the child is born, in this particular case Kenya, should allow the child to acquire its nationality.

ACERWC Decision on Communication

Achpr45 279.03 296.05 eng

Document

Achpr45 279.03 296.05 eng

227.The African Commission concludes further that Article 1 of the African Charter imposes a general obligation on all State parties to recognise the rights enshrined therein and requires them to adopt measures to give effect to those rights. As such any finding of violation of those rights constitutes violation ofArticle 1.

Document

Treaties and softlaw only104
- Treaty101
- ACmHPR Soft Law3
International cases/decisions18
- Treaty1
- Document16
- ACERWC Decision on Communication1
Cases Referenced2
- Document2
Geolocation1
- Countries geolocation1

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Treaties and softlaw only
International cases/decisions
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Rights Alleged to be Violated
Rights Violated
Type of Document
Right Not Violated
SADC Treaty Rights Violated
SADC Treaty Rights Not Violated
ACHPR Rights Violated
ACHPR Rights Not Violated
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