15. The Zambian government argues that the victims were remiss in not taking advantage of the
legal aid system in Zambia (“Additional Information,” p.6.).
16. However, Complainants make clear, in their “Réplique” and through expert testimony contained in
the file, that if the victims of deportation were in fact illegal as the government argues, they would be
ineligible for legal aid (See “Réplique”, p. 3; see also the letter of Chakota Beyani, Refugee Studies
Program, Oxford University, p. 1).
17. For the above reasons the Commission holds the communication admissible.
Merits
18. Given that the process of arriving at an amicable resolution can take a substantial period of time,
the Commission believes it is important to make a statement on the question of law raised by this
communication process of arriving at an amicable resolution can take a substantial period of time, the
Commission believes it is important to make a statement on the question of law raised by this
communication.
19. Article 12, paragraph 5 of the Charter provides:
The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed
at national, racial, ethnic or religious group.
20. Clearly, the drafters of the Charter believed that mass expulsion presented a special threat to
human rights.
21. The Charter makes this point clearly in Article 2, which states:
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 original, fortune, birth or other
status.
22. This imposes an obligation on the contracting state to secure the rights protected in the Charter
to all persons within their jurisdiction, nationals or non-nationals.
23. The Government of Zambia argues that the expulsion of the West African was justified because
they were in Zambia illegally, and that the African Charter does not abolish visa requirements and
borders between African states. It is true that the African Charter does not bar deportations per se, but
Zambia’s right to expel individuals does not justify the manner in which it does so.
24. The victims on whose part RADDHO seized the Commission were all from West Africa, some
from Senegal, some from Mali, Guinea Conakry, and other West African countries. The government of
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Zambia, in its “Additional Information” presented to the Commission at the 18 Session, argues that
the expulsion was not discriminatory because nationals of several West African countries and other
foreign countries were all subject to the same treatment (See “Additional Information”, p.1; list of aliens
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repatriated between 25 November 1991 and 16 January 1992, attached).
25. The Complainants respond that they are concerned only with the expulsion of West Africans,
because it is these persons who appealed to them for help, but that simultaneous expulsion of
nationals of many countries does not negate the charge of discrimination. Rather, the argument that
so many aliens received the same treatment is tantamount to an admission of a violation of 12(5).
(“Réplique,”p.1-2)
26. It is clear from the government’s own list of repatriated aliens, however, that after excluding
nationals Zambia’s immediate neighbours, Tanzania and Zaire, West Africans constitute the majority
of those expelled.
27. The Zambian government disputes the characterization of the expulsions as “en masse” by
arguing that the deportees were arrested over a two-month period of time, at different places, and
served with deportation orders on different dates (Additional Information, p.4, pp iii.) Zambia, however,
cannot prove that the deportees were given the opportunity to seek appeal against the decision on
their deportation. on different dates (Additional Information, p.4, pp iii.) Zambia, however, cannot prove
that the deportees were given the opportunity to seek appeal against the decision on their deportation.
28. Zambia maintains that the two months during which some of the deportees were held were
necessary to verify their nationality in some cases, and also that Complainants might have used this
time to contact their lawyers. The facts of this communication show that West Africans were arrested
and assembled over time, with a view to their eventual expulsion. The deportees were kept in a camp
during this time, not even an ordinary prison, and it was impossible for them to contact their lawyers.
29. Article 7.1.a of the Charter specifies:
Everyone shall have the right to have his cause heard. This comprises: \ .a) the right to an appeal to
competent national organs against acts violating his fundamental rights as recognised and guaranteed
by conventions, law, regulations and customs in force.