lawyer - Mr. John Gerry, constitutes a prima facie violation of his right in terms of
Article 14 of the African Charter.
176.
The Commission notes, from the Complainants submission, that the issue of public
interest does not arise since the property of the Complainants was duly and lawfully
acquired by the Complainants, and its destruction was not due to public interest or
the general interest of the Community, but rather due to the avarice of an individual
connected to the Military Police of the Respondent State. Consequently, the
Commission would proceed to examine whether the Respondent State failed in its
obligations to protect the right to property alleged to have been violated.
177.
In so doing, the Commission is aware that the African Charter does not particularly
describe the scope of the right to property. However, it calls'to mind that in John K.
Modise vs Botsuianav where the complainant had claimed a violation of the right to
property under Article 14 alleging to have suffered heavy financial loses, due to
confiscation of his belongings and property by th,,;,gover~~n-t ;of.f~qtswa~~,?uring
the 4 times they had deported him. In these circiimstances.the Commission found
the action of the government of Botswana an encroachment of the Complainant's
right to property guaranteed under Article 14..of the Charter'. Also;:,.tl,le
Commission
recalls that in Malawi African Association and Others vs Mtiuritania50, the
Commission considered land as 'property' for the purposes of Article 14 of the
Charter, stating that "The confiscation, and 100tir~Kof the property of black
Mauritanians and the expropriation or destruction of their land and houses before
forcing them to go abroad constitute a violation of the right to property as
guaranteed in article 14,,;
178.
The Commission remains mindful of "the Principles and Guidelines on the
implementation of economic, social and cultural rights in the African Charter on
human and peoples' rights" (Nairobi Reporting Guidelines), which purpose is to
assist State Parties to comply with their obligations under the African Charter.
Therein, the Commission expounded the contents of economic, social and cultural
rights to include the protection of the real rights of individuals and peoples in any
material thing which can be possessed as well as any right which may be part of a
person's patrimony, the protection of a legitimate expectation of the acquisition of
property and the rights of the individual, group or people to peaceful enjoyment of
the property. The right may only be limited by the State in a non-arbitrary manner,
according to the law and the principle of proportionality.
179.
The Principles and Guidelines in line with the UN General
, r\tRI~~'()"
prohibit forced evictions, described as acts and/ or omissions invSlvip~fth~ erc°-o
or involuntary displacement of individuals, groups and communities £:r'qp1 h Il!e~
and/ or lands and common property resources that were occupied o'r-dlpe
I
upon, thus eliminating or limiting the ability of an individual, grOti:Nr 't'O~utrlty _J
to reside or work in a particular dwelling, residence or locati9h~'V'~1[fj9ftt~<I
".provision of, and access to, appropriate forms of legal or other' 1p'r(j)te(£tI~"It
obligates State parties to protect the enjoyment of property in all its -form~,'from
O~I-IUMAN..q
®c:€
49 John.K.
Modise v. Botswana, African Commission on Human and Peoples' Rights, Corum. No. 97/93 (2000)
para. 94
50 Communications Nos. 54/91,61/91,98/93,
164/97 it 196/97 and 210198 (2000), 13th Activity Report, para. 128
51 CESCR General Comment No.7 (1997) on the right to adequate housing (Article 11(1)): Forced Evictions.
77th
Ordinary Session of the ACHPR
32
t