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Gihana and Others v Republic of Rwanda (Application No. 017-2015)

African Court on Human and Peoples' Rights · [2019] AfCHPR 95 · 2019 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the African Court on Human and Peoples' Rights alleging human rights violations arising from revocation of passports
Decision
Application partly allowed; passports to be reinstated; compensation awarded for moral damages

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Court on Human and Peoples' Rights held that Rwanda arbitrarily revoked the applicants' passports without legal basis or procedural safeguards, violating their rights to freedom of movement and political participation under the African Charter. The Court ordered reinstatement of the passports and awarded compensation for moral damages. Claims regarding deprivation of nationality, statelessness, and violations of rights to liberty, family life, and work were dismissed as unestablished.

Outcome

Application partly allowed; passports to be reinstated; compensation awarded for moral damages

Facts

Seven Rwandan nationals living in South Africa discovered their passports had been invalidated by Rwanda when one applicant applied for a US visa and was informed his name appeared on a list dated 14 May 2012 indicating passport invalidity. The applicants were never officially notified of the invalidation nor given an opportunity to appeal. Two of the applicants had been convicted in Rwanda of serious crimes and had fled the country. The applicants alleged the invalidation was arbitrary, rendered them stateless, and violated multiple fundamental rights. Rwanda did not deny revoking the passports but argued the applicants should have exhausted domestic remedies and that two applicants lacked standing due to their criminal convictions.

Issues

  1. Whether the revocation of the Applicants' passports was arbitrary.
  2. Whether the revocation of the Applicants' passports was tantamount to arbitrary deprivation of their nationality.
  3. Whether the revocation of the Applicants' passports rendered them stateless.
  4. Whether the revocation of the Applicants' passports violated their right to freedom of movement.
  5. Whether the revocation of the Applicants' passports violated their right to political participation.
  6. Whether the revocation of the Applicants' passports violated their right to liberty.
  7. Whether the revocation of the Applicants' passports violated their right to family life.
  8. Whether the revocation of the Applicants' passports violated their right to work.

Orders

  • Objections to jurisdiction dismissed.
  • Court declared it has jurisdiction.
  • Objections to admissibility dismissed.
  • Application declared admissible.
  • Alleged violations of the right to liberty, the right to work and the right to family life under Articles 6, 15 and 18(2) of the Charter not established.
  • Respondent State violated the right to freedom of movement under Article 12(2) of the Charter.
  • Respondent State violated the right to political participation under Article 13(1) of the Charter as a consequence of arbitrarily revoking the Applicants' passports.
  • Each Applicant awarded Rwandan Francs Four Hundred and Sixty Five Thousand (RWF 465,000) for moral damages.
  • Respondent State ordered to pay the amounts within six months from the date of notification of the judgment, free from tax, failing which interest on arrears calculated on the basis of the applicable rate of the Central Bank of Rwanda throughout the period of delayed payment until the amount is fully paid.
  • Respondent State ordered to reinstate the Applicants' passports within three months of the date of notification of the judgment.
  • Respondent State ordered to submit a report on the status of implementation of the decision within six months from the date of notification of the judgment.
  • Each Party to bear its own costs.

Rules and key headnotes

Human Rights — Access to Court — Standing — Criminal Convictions
Article 5(3) of the Protocol to the African Charter read together with Article 34(6) provides for access to the African Court for individuals regardless of their status and the nature of crimes they are alleged to have committed or been convicted of, provided the State has deposited the Declaration accepting the Court's competence to receive cases from individuals.
Human Rights — Admissibility — Disparaging Language — Standard
For language to be considered disparaging or insulting under Article 56(3) of the African Charter, it must be aimed at unlawfully and intentionally violating the dignity, reputation and integrity of a judicial official or body and must seek to pollute the minds of the public. Mere complaints, perceptions and opinions of an applicant on the State and its institutions in the circumstances of the case do not amount to disparaging language.
Human Rights — Exhaustion of Local Remedies — Availability and Effectiveness
Where it is impracticable or undesirable for a complainant to seize domestic courts, the complainant will not be required to exhaust local remedies. A remedy must be sufficiently certain not only in theory but also in practice, and if the applicant cannot turn to the judiciary of his country because of generalised fear for his life, local remedies would be considered unavailable.
Administrative Law — Revocation of Passports — Arbitrary Action — Burden of Proof
Where an applicant alleges arbitrary revocation of a passport, the burden of proof shifts to the State to prove the revocation was done in accordance with domestic law and relevant international standards, considering that State agencies have access to all relevant records and documentation while the individual does not.
Human Rights — Freedom of Movement — Passport Revocation — Restrictions
The right to freedom of movement under Article 12(2) of the African Charter, including the right to leave any country and return to one's own country, may only be subject to restrictions provided for by law for the protection of national security, law and order, public health or morality. A State that arbitrarily revokes passports without legal basis or procedural safeguards violates this right.
Human Rights — Political Participation — Passport Revocation — Impact on Rights
The right to participate freely in government under Article 13(1) of the African Charter is optimally exercised when a State's citizens are in the territory of that State. Arbitrary revocation of passports that prevents citizens from returning to their country severely restricts their right to freely participate in the government of their country.
Human Rights — Reparations — Moral Prejudice — Passport Revocation
Arbitrary revocation of passports that prevents individuals from leaving their country of residence, travelling to their country of origin, and maintaining social, physical and political connections with their homeland causes emotional anguish and despair, occasioning moral prejudice that entitles them to reparation.

Legislation cited (21)

  • African Charter on Human and Peoples' Rights Article 6
  • African Charter on Human and Peoples' Rights Article 12(2)
  • African Charter on Human and Peoples' Rights Article 13(1)
  • African Charter on Human and Peoples' Rights Article 15
  • African Charter on Human and Peoples' Rights Article 18(1)
  • African Charter on Human and Peoples' Rights Article 18(2)
  • African Charter on Human and Peoples' Rights Article 56
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 3
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 5(3)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 6(2)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 27(1)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 34(6)
  • Constitutive Act of the African Union Article 3(h)
  • Constitutive Act of the African Union Article 4(o)
  • International Covenant on Civil and Political Rights Article 12(2)
  • International Covenant on Civil and Political Rights Article 12(3)
  • Rwandan Law No. 04/2011 of 21/03/2011 on Immigration and Emigration Article 34
  • Rwandan Law No. 17/99 of 1999 on Immigration and Emigration Article 14
  • Rwandan Law No. 21/2012 relating to Civil, Commercial, Labour and Administrative Procedure Article 16
  • Rwandan Law No. 21/2012 relating to Civil, Commercial, Labour and Administrative Procedure Article 49
  • Rwandan Law No. 21/2012 relating to Civil, Commercial, Labour and Administrative Procedure Article 334

Cases cited (39)

  • Ingabire Victoire Umuhoza v Republic of Rwanda (Application No. 003/2014)
  • Kennedy Owino Onyachi and Others v United Republic of Tanzania (Application No. 003/2015)
  • Lohé Issa Konaté v Burkina Faso (2014) 1 AfCLR 314
  • Eyob B. Asemie v Kingdom of Lesotho (Communication 435/12)
  • Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe (2009) AHRLR 235
  • Kenyan Section of the International Commission of Jurists and Others v Kenya
  • Jawara v Gambia (Communication 147/95-149/96)
  • Kenya Human Rights Commission v Kenya
  • Civil Liberties Organisation v Nigeria
  • Article 19 v Eritrea (Communication 275/03)
  • Anuak Justice Council v Ethiopia (Communication 299/05)
  • Ahorugeze v Sweden (ECHR Application No. 37077/09)
  • Prosecutor v Jean Uwikindi (ICTR Case No. ICTR-2001-75-R11bis)
  • Prosecutor v Aloys Ndimbati (ICTR Case No. ICTR-95-1F-R11bis)
  • Prosecutor v Kayishema (ICTR Case No. ICTR-01-67-R11bis)
  • Prosecutor v Sikubwabo (ICTR Case No. ICTR-95-1F-R11bis)
  • Norwegian Prosecution v Bandora (Case No. 11-050224ENE-OTIR/O1)
  • Leon Mugesera v Le Ministre de la Citoyennete et de L'emigration (2012 CF32)
  • Zitha v Mozambique
  • Givemore Chari (Represented by Gabriel Shumba) v Republic of Zimbabwe
  • African Commission on Human and Peoples' Rights v Republic of Kenya (Application No. 006/2012)
  • Mbiankeu Geneviève v Cameroon (Communication 389/10)
  • Lucien Ikili Rashidi v United Republic of Tanzania (Application No. 009/2015)
  • Wilfred Onyango Nganyi and Others v Tanzania (2016) 1 AfCLR 507
  • Beneficiaries of late Norbert Zongo and Others v Burkina Faso (2014) 1 AfCLR 219
  • Gabriel Shumba v Zimbabwe (Communication 288/04)
  • Ramadhani Issa Malengo v United Republic of Tanzania (Application No. 030/2015)
  • Anudo Ochieng Anudo v United Republic of Tanzania (Application No. 012/2015)
  • Purohit and Moore v The Gambia (2003) AHRLR 96
  • Jean-Marie Atangana Mebara v Cameroon (Communication 416/12)
  • Alex Thomas v Tanzania (2015) 1 AfCLR 465
  • Good v Botswana (2010) AHRLR 43
  • Mohamed Abubakari v Tanzania (2016) 1 AfCLR 599
  • Ingabire Victoire Umuhoza v Republic of Rwanda (Application No. 003/2014)
  • Mohamed Abubakari v United Republic of Tanzania (Application No. 007/2013)
  • Alex Thomas v United Republic of Tanzania (Application No. 005/2013)
  • Wilfred Onyango Nganyi and 9 others v United Republic of Tanzania (Application No. 006/2013)
  • Reverend Christopher R. Mtikila v Tanzania (2014) 1 AfCLR 72
  • Lohe Issa Konaté v Burkina Faso (2016) 1 AfCLR 346

Full judgment

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Gihana and Others v Republic of Rwanda (Application No. 017-2015) [2019] AfCHPR 95 (28 November 2019)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.