Anudo v United Republic of Tanzania

• Jurisdiction: Derecho Internacional
• Judge: Oré,Kioko,Niyungeko,Guissé,Ben Achour,Mengue,Mukamulisa,Chizumila,Bensaoula
• Judgment Date: 22 March 2018
• Court: African Court on Human and Peoples' Rights
• Docket Number: (Application No 12/2015)

Anudo

and

United Republic of Tanzania 1

(Oré, President; Kioko, Vice-President; Niyungeko, Guissé, Ben Achour, Mengue, Mukamulisa, Chizumila and Bensaoula, Judges)

(Application No 12/2015)

African Court on Human and Peoples' Rights.

Human rights — Right to nationality — Universal Declaration of Human Rights, 1948 (“UDHR”) — Article 15 — Right to return to one's country — African Charter on Human and Peoples' Rights, 1981 (“Charter”) — Article 12(2) — Right not to be arbitrarily expelled from a State — International Covenant on Civil and Political Rights, 1966 (“ICCPR”) — Article 13 — Right to fair trial — Charter Article 7 — ICCPR Article 14 — Whether Tanzania arbitrarily depriving applicant of right to nationality — Whether Tanzania violating right not to be arbitrarily expelled — Whether Tanzania violating right to be heard

Nationality — Right to nationality — Citizenship status — State sovereignty — Deprivation of nationality in exceptional situations — Tanzania depriving applicant of Tanzanian nationality — Whether deprivation arbitrary — Burden of proof — Whether Tanzania violating UDHR Article 15 — Whether applicant arbitrarily expelled — Whether Tanzania violating applicant's fundamental rights under human rights treaties

International tribunals — African Court on Human and Peoples' Rights — Jurisdiction — Material jurisdiction — Whether Court having jurisdiction to hear application — Admissibility — Whether application admissible

Summary:2The facts: — The applicant, a Tanzanian national, filed a suit against the respondent State, the United Republic of Tanzania, for withdrawing his Tanzanian citizenship and expelling him from the State, arguing that it had violated his fundamental rights under the Universal Declaration of Human Rights, 1948 (“UDHR”), the African Charter on Human and Peoples' Rights, 1981 (“the Charter”), the International Covenant on Economic, Social and Cultural Rights, 1966 (“ICESCR”) and the International Covenant on Civil and Political Rights, 1966 (“ICCPR”).3

After the applicant went to a Tanzanian district police station in 2012, to process formalities for his marriage, the police confiscated his passport over suspicions regarding his Tanzanian citizenship. The applicant sent a letter to the Minister of Home Affairs and Immigration in 2013, asking why the police had confiscated his passport, and the following year, the Tanzanian Immigration Department launched an investigation into his citizenship status. Residents of the applicant's home village confirmed that he was born in Tanzania, the son of Tanzanian citizens whose status was uncontested by the respondent State. The applicant claimed that immigration officers asked him for a bribe, but he declined and reported the incident to the Prevention and Combating of Corruption Bureau.

On 21 August 2014, the Minister of Home Affairs and Immigration wrote a letter to the applicant, informing him that the Immigration Department had concluded that he was not a Tanzanian citizen and cancelling his passport, because it was issued on the basis of fraudulent documents. Unaware of the Minister's letter, the applicant went to the Immigration Office to request the return of his passport. He claimed that, upon arrival, he was arrested, detained, beaten and forced to sign a notice of deportation and a document attesting that he was a Kenyan citizen.

The applicant's father wrote to the Tanzanian Prime Minister, seeking an annulment of the Immigration Department's decision. The Prime Minister referred the matter back to the Minister of Home Affairs and Immigration, who upheld the Immigration Department's decision.

The applicant was deported to Kenya where he was convicted of being unlawfully present and expelled back to Tanzania. As he was not permitted to enter Tanzania, he remained in the “no man's land” on the Tanzania — Kenya

border. The applicant requested the Court to order the respondent State to cancel his illegal immigrant status, reinstate him as a citizen of Tanzania, and reform its immigration law to guarantee the right to a fair trial in cases where fundamental rights were at risk.

The respondent State maintained that its decision to annul his passport, declare him an illegal immigrant and expel him was based on investigations by the immigration authorities and implemented in accordance with the law. It denied the bribery allegations. The respondent State argued that the Court lacked material jurisdiction because the applicant did not request the Court to interpret or apply any provision of the Charter, the Rules of the Court (“the Rules”) or any human rights instrument ratified by the respondent State. It further argued that the application was inadmissible because the applicant had failed to exhaust local remedies and file the application within a reasonable time frame.

Held (unanimously): — The Court had jurisdiction; the application was admissible. The respondent State had arbitrarily deprived the applicant of his Tanzanian nationality, contrary to Article 15(2) of the UDHR; arbitrarily expelled the applicant; and violated the applicant's right to be heard under Article 7 of the Charter and Article 14 of the ICCPR.

(1) The Court had jurisdiction to hear the case.

(a) The Court had material jurisdiction under Article 3(1) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights, 1998 (“the Protocol”), and Rule 26 of the Rules.4 It was not necessary for the rights allegedly breached to be specified in the Application; it was sufficient that the Application raised allegations of violations of human rights guaranteed by international legal instruments applicable before the Court and ratified by the respondent State (paras. 34–7).

(b) Of its own motion, the Court had examined its personal, temporal and territorial jurisdiction and satisfied itself that it had jurisdiction to hear the case (para. 38).

(2) The application was admissible.

(a) The applicant had exhausted the remedies provided by the Tanzanian Immigration Act by seizing the Minister of Home Affairs and Immigration and the Prime Minister of the matter. The applicant was unable to challenge the Minister's decision in the High Court by way of judicial review, because he was expelled from Tanzania (paras. 51–3).

(b) The applicant filed the application within a reasonable time, under the circumstances of the case (paras. 56–9).

(3) The deprivation of the applicant's nationality was arbitrary and contravened Article 15 of the UDHR.5

(a) Since the respondent State was challenging the applicant's nationality, which he had held since birth based on State-issued identity documents, the burden of proof fell on the respondent State. The respondent State had failed to prove that the applicant was not a Tanzanian national because (i) until the time of his arrest, the applicant had studied, lived and worked in Tanzania, with all the rights and duties of other citizens; (ii) residents of the applicant's home village, with the exception of one, had testified that the applicant was Tanzanian; (iii) Anudo and Jacop, the applicant's parents, had testified to being his parents, and one village resident had testified that she was present at the time of his birth; (iv) Anudo was listed as the applicant's father on his birth certificate and had offered to take a DNA test, but the respondent State had declined; and (v) the respondent State did not contest the applicant's parents' Tanzanian nationality nor had it prosecuted the applicant for use of forged documents (paras. 80–7).

(b) Under international law, attribution of nationality fell within the scope of State sovereignty. However, the deprivation of nationality was only allowed in exceptional situations and had to comply with international standards. It had to (i) be founded on a clear legal basis; (ii) serve a legitimate purpose that conformed with international law; (iii) be proportionate to the interest protected; and (iv) ensure procedural guarantees, which allowed the individual to defend themselves before an independent body. The respondent State's justification for the withdrawal of the applicant's nationality did not meet those standards, and the deprivation of his nationality was arbitrary and contravened Article 15(2) of the UDHR (paras. 73–9 and 88).

(4) Under international law, a State could not turn its citizen into a foreigner, after depriving the person of their nationality for the sole purpose of expelling them.6 Since the respondent State considered the applicant a Tanzanian national before withdrawing his nationality, the applicant could not be arbitrarily expelled. However, even if the respondent State considered the applicant an alien, Article 137 of the ICCPR protected aliens from arbitrary expulsion. The manner in which the applicant was expelled violated Article 13 of the ICCPR (paras. 95–106).

(5) By declaring the applicant an illegal immigrant and depriving him of his Tanzanian nationality without the possibility of an appeal before a national court, the respondent State violated the applicant's right to be heard, contrary to Articles 78 and 149 of the ICCPR (paras. 110–15).

(6) Certain alleged rights violations occurred as a result of the major rights violations, which the Court had ruled upon. Some related to the applicant's living conditions in “no man's land” and others were a consequence of his expulsion. The Court deferred its consideration of those related violations to the reparations stage (paras. 120–1).

(7) The respondent State was to amend its legislation to provide individuals with judicial remedies in the event of a citizenship dispute. It was to take all necessary steps to restore the applicant's rights, by allowing his return to Tanzania and ensuring his protection. The respondent was to submit a report to the Court within forty-five days (para. 132).

The following is the text of the judgment of the...