migrants. However, as noted above, even in such cases the protections of
international human rights law still apply to all migrants.
151.
Article 12 (3) of the African Charter reads: “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.” This
includes a duty of non-refoulement on the State in which the person seeks
asylum, prohibiting the State from returning an asylum seeker to their country
of origin if there is a likely danger of persecution based on one of the grounds
elaborated in Article 1 of the 1951 UN Convention. This shall be taken as the
point of departure in considering whether there were violations of the rights
as alleged by the Complainants.
152.
The African Charter in Article 2 provides that every individual is entitled to
the enjoyment of the rights and freedoms in the Charter “without distinction
of any kind such as race, ethnic group, colour, sex, language, religion, political
or any other opinion, national and social origin, fortune, birth or other status”,
and the Commission in its jurisprudence has held that the result is that all
persons, be they nationals or non-nationals, have the right to the enjoyment of
the rights and freedoms under the Charter.28 However, this may be an oversimplification, as it is clear that there are limitations which may be placed on
certain rights, based on a person’s status. For example, the right to vote and to
stand for election are reserved for citizens of the State concerned. Limitations
on freedom of movement are also imposed on persons who are held in
detention for criminal acts. Thus while they have to be reasonable, justifiable
and proportionate, the State may impose limitations on certain rights,
including the rights of non-nationals.
153.
In the case of refugees, Article 26 of the 1951 Convention provides that States
shall afford refugees the right to choose their place of residence within the
territory and to move freely within the State. Article 28 obliges States parties to
issue refugees travel documents permitting them to travel outside the State
“unless compelling reasons of national security or public order otherwise
require.” The position of asylum seekers was already discussed above, and
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 18.
28
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