80. Regarding the jurisdiction of the Commission over immigration matters, the Commission is of the
view that there is no provision in the African Charter or in the Constitutive Act excluding the jurisdiction
of the African Commission over such matters. The jurisdiction of the Commission is founded by Article
45 of the African Charter which reads: “The functions of the Commission shall be [to]: 2. Ensure the
protection of human and peoples' rights under conditions laid down by the present Charter.”
81. This provision should be read together with the relevant substantive provisions of the Charter to
find out whether, under its protection mandate, the Commission has jurisdiction over a given matter.
Regarding specifically immigration matters, Article 12 of the Charter states that:
1. “Every individual shall have the right to freedom of movement and residence within the
borders of a State provided he abides by the law.
2. Every individual shall have the right to leave any country including his own, and to
return to his country. This right may only be subject to restrictions, provided for by law
for the protection of national security, law and order, public health or morality.
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.”
82. It appears from the provision of Article 45(2), read together with Article 12, that the Commission
has jurisdiction when some human rights related to immigration are involved. The mandate of the
Commission in that case is to make sure that, immigration policies and practices do not infringe upon
those rights. Hence, the Commission finds that it has jurisdiction over immigration matters.
83. The Commission is of the view that the competence given to it over immigration matters
under Article 45.2 and Article 12of the Charter, does not overlap with the mandate of the Executive
Council, under Article 13(1)(j) of the Constitutive Act, over the same matters because the two bodies
do not perform the same kind of activity. While the Commission is an international quasi-judicial
institution established to promote and protect the rights enshrined in the African Charter, the Executive
Council is a political organ, which “coordinate[s] and take[s] decisions on policies in areas of common
interest to the member states [of the African Union], including…nationality, residency and immigration
6
matters” .
84. Having dealt with the preliminary objections raised by the Respondent State regarding the
existence and jurisdiction of the Commission, the latter will now proceed to make a determination on
the admissibility or otherwise of this communication.
The Commission’s analysis on admissibility
85. The admissibility of communications submitted before the African Commission in accordance
with Article 55 is governed by the requirements of Article 56 of the African Charter. In terms of Article
56:
“Communications relating to human and peoples' rights referred to in Article 55 received by the
Commission, shall be considered if they:
1. Indicate their authors even if the latter requests anonymity,
2. Are compatible with the Charter of the Organisation of African Unity or with the present Charter,
3. Are not written in disparaging or insulting language directed against the State concerned and its
institutions or to the Organisation of African Unity,
4. Are not based exclusively on news disseminated through the mass media,
5. Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly
prolonged,
6. Are submitted within a reasonable period from the time local remedies are exhausted or from
the date the Commission is seized with the matter, and