251.
In its jurisprudence the Commission has held that Article 18 imposes a positive
obligation on the State towards the family, to assist the family towards meeting
its needs and interests and to protect the family institution from abuse of any
kind by its own officials and organs and by third parties.75 In addition, the State
has a negative obligation to refrain from violating the rights and interests of
the family.76 The jurisprudence of the Commission which had found a violation
of this right has dealt mostly with cases of deportation, where family members
are permanently separated and deprived of each other’s support, 77 in cases of
incommunicado detention78 or where movement of the Victims was severely
restricted within the country, thus preventing them from seeing their
families.79
252.
The Commission finds that in the process of breaking up the protest and
forcing the protesters onto the buses, the State had no regard for the
preservation of family units and the police did not take any care to ensure that
families were allowed to get onto the buses together. In addition, as is
illustrated by the case of the First Victim, there was no proof that once the
family was separated they would be reunified again. The Commission thus
finds that the State violated the negative obligation on it to refrain from
violating the rights and interests of families.
Analysis of Article 1
253.
In terms of the Commission’s jurisprudence, a violation of any of the provisions
of the Charter automatically means a violation of Article 1. 80 In the present
Communication, the Commission has reached the conclusion that the
Respondent State's conduct is in violation of Articles 2, 4, 5, 11, 14, 16 and 18 of
Communication 313/05 Kenneth Good v Republic of Botswana, para 212.
As above.
77 Communication 159/96 Union interafricaine des droits de l'Homme, Fédération internationale des
ligues des droits de l'Homme, RADDHO, Organisation nationale des droits de l'Homme au Sénégal and
Association malienne des droits de l'Homme v. Angola, para 17; Communication 313/05 Kenneth Good /
Republic of Botswana, para 213-215 ; Communication 212/98 Amnesty International / Zambia, para 59’ ;
Communication 97/93_14AR John K. Modise / Botswana, para 93.
78 Communication 143/95-150/96 Constitutional Rights Project and Civil Liberties Organisation v
Nigeria, para 29.
79 Communication 318/06 Open Society Justice Initiative v. Côte d’Ivoire, para 179
80 Sir Dawda Jawara v. The Gambia para 56; Nubian Community v Kenya, para 169; Interights &
Ditshwanelo v. The Republic of Botswana, para 97;
75
76
71