Rapporteur:
26th Session: Commissioner Ben Salem
27th
Session: Commissioner Ben Salem
28th Session: Commissioner Ben Salem
Summary
of Facts:
1.
The Complainant claims to be a Student’s Union leader at the University of
Nairobi, Kenya.
2.
He alleges that he was forced to flee the country due to his political opinions.
3.
He mentions the following as issues which led to his strained relations with
the government and to his arrest and detention and eventually to his fleeing
the country:
(a)
The demand for the setting up of a Judicial Commission of Inquiry into the
murder of his late uncle and former Kenyan Minister of Foreign Affairs, Mr.
Robert Ouko;
(b)
His condemnation of the seeming government involvement in the murder of his
predecessor at the Students' Union, Mr. Solomon Muruli;
(c)
His condemnation of corruption, nepotism and tribalism in government;
(d)
His condemnation of the frequent closure of public universities.
4.
Prior to his fleeing the country, he was arrested and detained without trial
for 10 months at the notorious basement cells of the Secret Service Department
headquarters in Nairobi.
5.
The detention facility was a two by three metre basement cell with a 250 watts
electric bulb, which was left on throughout his ten months detention.
6.
The Complainant alleges that throughout his period of detention, he was denied
bathroom facilities and was subjected to both physical and mental torture.
7.
The Complainant claims that he fled the country on 10th November
1997 to Uganda, where he initially sought political asylum but was denied.
8.
The Complainant alleges that since he could not obtain any protection in Uganda,
he had to leave to the Democratic Republic of Congo (DRC) in March 1998, and
has been residing there to date.
9.
The Complainant claims to be living presently in Aru, North-East of the Democratic
Republic of Congo.
10.
The Complainant further alleges that until August 1998, when the war broke
out in the DRC, he was under the United Nations High Commissioner for Refugees’
(UNHCR) assistance programme.
11.
Since the said war started, leading to the evacuation of UNHCR staff, he has
been living in a very desperate and despicable situation.
Complaint:
The
Complainant alleges violations of Articles 5, 6, 9, 10 and 12 of the African
Charter.
Procedure
12.
At its 26th ordinary session held in Kigali, Rwanda, the Commission
decided to be seized of the communication and requested the Secretariat to
notify the parties.
13.
On 18th January 2000, letters were dispatched to the parties notifying
them of the Commission's decision.
14.
On 23rd May 2000, during the 27th ordinary session held
in Algeria, the Secretariat of the Commission received a letter from the Complainant
stating, among other things, that he has been in Kampala for medical reasons
since November 1999. In addition, he informed the Commission of his ordeals
in the Democratic Republic of Congo, including his being kidnapped and forced
to work as a computer operator for the rebels in Kisangani.
15.
At its 27th ordinary session held in Algeria, the Commission examined
the case and declared it admissible and requested parties to furnish it with
arguments on the merits of the case.
16.
On 12th July 2000, the Secretariat communicated the Commission's
decision to the parties.
LAW
Admissibility
17.
The admissibility of communications brought pursuant to Article 55 of the
Charter is governed by Article 56 of the Charter. The applicable provision
in this particular case is Article 56(5) of the Charter, which provides inter alia “communications relating to Human and Peoples’
Rights…received by the Commission shall be considered if they…are sent after
exhausting local remedies, if any unless it is obvious that this procedure
is unduly prolonged…”
18.
The facts of this case reveal the following:
·
The Complainant is no longer in the Republic of Kenya;
·
The above condition is not based on his voluntary will - he has been forced
to flee the country because of his political opinions and Student Union activities;
·
An attestation dated 30th October 1999, issued by one Mr. Tane
Bamba, Head of Sub Office of the United Nations High Commissioner for Refugees,
indicates that the Complainant "is recognised as a refugee Under UNCHR
mandate in accordance with the provisions of the OAU Convention of September
10th, 1969 to which he satisfied."
19.
Relying on its case law (see communication
215/98 - Rights International/Nigeria), the Commission finds that the
Complainant is unable to pursue any domestic remedy following his flight to
the Democratic Republic of Congo for fear of his life, and his subsequent
recognition as a refugee by the Office of the United Nations High Commissioner
for Refugee. The Commission therefore
declared the communication admissible based on the principle of constructive
exhaustion of local remedies.
Merits:
20.
The Complainant alleges that prior to his fleeing the country, he was arrested
and detained for 10 months without trial at the notorious basement cells of
the Secret Service Department headquarters in Nairobi.
21.
The Respondent State Party has not contested this claim.
In fact, it has not responded to the many requests made by the Secretariat
of the Commission. In this circumstance and following its well laid down precedent
on this, the Commission accepts the facts of the Complainant as the facts
of the case and finds the Respondent State in violation of Article 6 of the
Charter.
Article 6 provides:
Every individual shall have the right to liberty and to the security
of his person. No one may be deprived of his
liberty except
for the reasons and conditions previously laid
down by law.
In
particular, no one may be arbitrarily arrested or detained.
22.
The Complainant claims that the detention facility had a 250 watts electric
bulb, which was left on throughout his ten months detention. Furthermore,
that throughout his period of detention, he was denied bathroom facilities
and was subjected to both physical and mental torture.
23.
The Commission finds the above condition, which the Complainant was subjected
to in contravention of the Respondent State Party's obligation to guarantee
to the Complainant the right to the respect of his dignity and freedom from
inhuman and degrading treatment under Article 5 of the Charter.
Article
5 provides:
Every
individual shall have the right to the respect of the dignity inherent in
a human being and to the recognition of his legal status. All forms of exploitation
and degradation of man particularly slavery, slave trade, torture, cruel,
inhuman or degrading punishment and treatment shall be prohibited.
24.
Such condition and treatment also runs contrary to the minimum standards contained
in the United Nations Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment, particularly, Principles 1 and
6.
25.
Principle 1 provides:
All
persons under any form of detention or imprisonment shall be treated in a
humane manner and with respect for the inherent dignity of the human person.
Principle
6 on the other hand states:
No
person under any form of detention or imprisonment shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment. No circumstance
whatever may be invoked as a justification for torture or other cruel, inhuman
or degrading treatment or punishment.
26.
Although the Complainant has claimed a violation of his right to freedom from
torture, he has not substantiated on this claim. In the absence of such information,
the Commission cannot find a violation as alleged.
27.
The Complainant alleges that he was forced to flee his country because of
his political opinions. He details some of the events that led to his strained
relationship with the government. Article 9 of the African Charter provides:
(1)
Every individual
shall have the right to receive information.
(2)
Every individual
shall have the right to express and disseminate his opinions within the law.
28.
The above provision guarantees to every individual the right to free expression,
within the confines of the law. Implicit in this is that if such opinions
are contrary to laid down laws, the affected individual or government, has
the right to seek redress in a court of law. Herein lies the essence of the
law of defamation. This procedure has not been followed in this particular
instance. Rather the government has opted to arrest and detain the Complainant
without trial and to subject him to series of inhuman and degrading treatments.
The Commission finds this in violation of Article 9 of the Charter.
29.
The Complainant claims that being a victim of political persecution, he has
been deprived of his right to freedom of association guaranteed by Article
10 of the Charter. The Commission notes that the Complainant was a Student
Union leader before fleeing the country.
30.
The Respondent State Party has not refuted this fact. The Commission therefore
finds the persecution of the Complainant and his subsequent flight to the
Democratic Republic of the Congo to have greatly jeopardised his chances of
enjoying his right to freedom of association guaranteed under Article 10 of
the Charter. Article 10 states:
(1)
Every individual shall have the right
to free association provided that he abides by the law
31.
The Complainant claims that his rights to freedom of movement and to egress
and ingress have been violated. Taking the circumstances of the case into
consideration, the Commission finds this claim to have been substantiated
and therefore finds the Respondent State in violation of Article 12 of the
Charter. Article 12 provides:
(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.
For these
reasons, the Commission
Finds the
Republic of Kenya in violation of Articles 5, 6, 9, 10 and 12 (1) and (2)
of the African Charter on Human and Peoples' Rights.
Urges
the Government of the Republic of Kenya to facilitate the safe return of the Complainant to the
Republic of Kenya, if he so wishes.
Done
at the 28th Ordinary Session held in Cotonou, Benin