164. The Complainant argues that Article 7 of the African Charter requires that every individual has a right
to a fair determination of the human rights protected in the Charter.
165. The Respondent State denied that it violated Article 7 of the African Charter. It argued that there is no
uniform process for determination of refugee status and appeals under the international refugee regime. It
stated that it had established a joint determination mechanism involving the Sudanese Commission of
Refugees and the UNHCR to carry out determination for the refugees who did not opt for voluntary
repatriation under EXCOM decision No 69. The Commission, while reiterating the need to adopt judicial
remedies in the event of the failure of such administrative mechanisms, takes note of the EXCOM
stipulated mechanism for the reconsideration of decisions by the same committee or another authority, in
the event of dissatisfaction with a decision of the Joint Committee.
166. The Commission wishes to state that the Complainant raised issues which, in actual fact, had been
taken care of. The Communication appears to have been instituted before the implementation of the
Cessation Clause began. Hence when implementation began, the alleged violation of the refugees' rights
expressed by the Complainant was eventually taken care of by the Respondent State.
167. The Complainant submitted that the refugees continued to consider themselves as de facto refugees
post-the cessation clause based on paragraphs 3, 4 and 5 of Article 12 of the African Charter:
(3) Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in
accordance with the law 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. (5) The mass expulsion of non-nationals shall be prohibited.
Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.
Going by the aforesaid submission, the Commission finds that based on the information before it, there
were only cases of refugees who repatriated voluntarily, or those who remained within the Respondent
State under various recognised legal status, namely those who retained their status or those who became
immigrants upon the grant of residence permits, and the post-1991 refugees who were, in any case, not the
subject of the Communication. The Commission, therefore, finds that there was at no time any case of de
facto refugees.
The Commission finds that the Communication was filed in anticipation of a violation, which did not happen
in actual fact after the implementation of the cessation clause set in motion.
168. The Complainant's allegation that Article 12 of the African Charter was violated has also not been
proved.
Decision of the African Commission
The African Commission finds that the allegations concerning violations of Articles 3, 4, 5, 6, 7, 12(3), (4)
and (5) of the African Charter have not been proved.
Done in Banjul, The Gambia at the 46th Ordinary Session of the African Commission on Human and
Peoples' Rights held from 11th-25th November 2009.
1 See Amnesty International, et al. vs Sudan, Consolidated comm. 48/90, [50/91], 52/91 and 89/93, 27th
Ordinary Session, 10th Activity Report (2000).
2 228/99-The Law Office of Ghazi Suleiman/ Sudan, 33rd Ordinary Session, Sixteenth Annual Activity
Report (2003) at para. 29.
3 communication155/96-Social and Economic Rights Action Group and Centre for Economic and Social
Rights/ Nigeria, Fifteenth Annual Activity Report (2003) para 37.
4 Ibid. at para 38.
5 See Article 60 of the African Charter.
6 Rencontre africaine pour la défense des droits de l'Homme v. Zambia, comm. 71/92, 21st Ordinary
Session, Tenth Annual Activity Report(1997) at para. 12.
7 Exceptions and Exhaustions of Domestic Remedies ( Art. 46(1)), 46(2)(A) and 46(2)(B) American
Convention on Human Rights, Ser. A, No.11, Advisory Opinion OC-11/90 of (10th August 1990) at para. 23;
Velasquez Rodriguez Case, Ser. C, No.4 (29th July 1988) at para. 166
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