African Commission on Human and Peoples’Rights
African Guiding Principles on the Human Rights of All
Migrants, Refugees and Asylum Seekers
April 2023
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FOREWORD
5
EXPLANATORY NOTES
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PREAMBLE
9
PART 1: PURPOSE & DEFINITIONS
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PRINCIPLE 1 – PURPOSE
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PRINCIPLE 2 – DEFINITIONS
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PART 2: GENERAL PRINCIPLES
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PRINCIPLE 3 – EQUALITY AND NON-DISCRIMINATION
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PRINCIPLE 4 – RIGHT TO LIFE
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PRINCIPLE 5 – HUMAN DIGNITY
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PRINCIPLE 6 – TORTURE AND OTHER FORMS OF ILL-TREATMENT
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PRINCIPLE 7 - LEGAL PERSONHOOD
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PRINCIPLE 8 – LIBERTY AND SECURITY OF PERSON
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PRINCIPLE 9 – ENFORCED DISAPPEARANCES & MISSING MIGRANTS
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PRINCIPLE 10 – MIGRANTS IN VULNERABLE SITUATIONS
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PRINCIPLE 11 – DUE PROCESS
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PRINCIPLE 12 – VICTIMS OF CRIME
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PRINCIPLE 13 – FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION OR BELIEF 23
PRINCIPLE 14 – FREEDOM OF OPINION AND EXPRESSION
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PRINCIPLE 15 – PRIVACY & PERSONAL DATA
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PRINCIPLE 16 – FREEDOM OF PEACEFUL ASSEMBLY AND ASSOCIATION
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PRINCIPLE 17 – THE RIGHT TO LEAVE ANY COUNTRY
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PRINCIPLE 18 – THE RIGHT TO FREE MOVEMENT
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PRINCIPLE 19 – PASTORAL MOBILITY
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PRINCIPLE 20 – EXPULSION
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PRINCIPLE 21 – ASYLUM
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PRINCIPLE 22 - SPECIFIC PROTECTION CONSIDERATIONS FOR REFUGEES
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PRINCIPLE 23 – NATIONALITY
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PRINCIPLE 24 – CIVIL AND POLITICAL LIFE
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PRINCIPLE 25– THE RIGHT TO PROPERTY
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PRINCIPLE 26 – LABOUR
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PRINCIPLE 27 – HEALTH
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PRINCIPLE 28 –ADEQUATE STANDARD OF LIVING
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PRINCIPLE 29 – EDUCATION
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PRINCIPLE 30 – CULTURE
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PRINCIPLE 31 – FAMILY
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PRINCIPLE 32 – THE RIGHT TO FAVOURABLE ENVIRONMENT
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PRINCIPLE 33 – EFFECTIVE REMEDY
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PRINCIPLE 34 – DIPLOMATIC PROTECTION AND CONSULAR ASSISTANCE
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PART 4: CONFLICT & EMERGENCIES
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PRINCIPLE 35 – PROTECTION OF MIGRANTS IN ARMED CONFLICT
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PRINCIPLE 36 – PROVISION OF HUMANITARIAN ASSISTANCE
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PART 5: COOPERATION & IMPLEMENTATION
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PRINCIPLE 37 – COOPERATION OF AFRICAN UNION MEMBER STATES
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PRINCIPLE 38 – SAVING CLAUSE
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FOREWORD
The present African Guiding Principles on the Human Rights
of All Migrants, Refugees and Asylum Seekers are proposed
for consideration and adoption by the African Commission on
Human Rights during its 75th ordinary session in Addis
Ababa (3-23 May 2023).
African Union institutions and Member States have
recognized that migrants bring special contributions to their
communities and to our Continent.
The Guiding Principles were conceived of and drafted after
African Union institutions and its Member States had passed
resolutions and put in place various mechanisms to
recognize and promote the rights of all migrants – including
having played a leading role for decades in issues of refugee
protection – and developed a landmark framework to promote freedom of movement on
the continent.
The Commission, for its part, has passed multiple resolutions addressing the rights of all
migrants, including Resolution 114 of 2007, on Migration and Human Rights; Resolution
333 of 2016, on the Situation of Migrants in Africa; and Resolution 470 of 2020, on the
Protection of Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in the
Fight Against the COVID-19 Pandemic in Africa. Finally, the Commission identified the need
to study African Responses to Migration and the Protection of Migrants with a view to
Developing Guidelines on the Human Rights of Migrants, Refugees and Asylum Seekers in
its Resolution 481 of 2021.
The Guiding Principles were developed on the basis of Article 45(1)(b) of the African
Charter, which empowers the Commission to formulate standards, principles, and rules on
which African governments can base their legislation. They are based on African regional
treaty law, case law, standards and resolutions of this Commission; international human
rights treaty law, international refugee law and international humanitarian law; and draw
from the experience of other world regions, including the 2019 Inter-American Principles
on the Human Rights of All Migrants, Refugees, Stateless Persons, and Victims of Human
Trafficking (IACHR Res. 04/19). The Guiding Principles also consider other international
and regional decisions and special procedures and the views of a broad range of
stakeholders who engaged with the Commission while drafting and revising the present
document. The Guiding Principles were drafted with the technical assistance of the
Migrant Rights Initiative at Cornell Law School and also benefited from the engagement at
two expert meetings of representatives of academia, African continental and regional
organizations, international organizations and broader civil society and including migrants
– as well as members of the Commission, held in October 2022 in Banjul, The Gambia and
in March 2023 online.
In light of these consideration, the present Guiding Principles are presented to the
Commission for consideration and adoption in order to assist States to implement their
human rights obligations in the context of human movement across borders within the
continent and into the extra-continental diaspora.
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These Guiding Principles contain “Explanatory Notes” which point the reader to the source
of authority on which they are based. They therefore provide a set of thirty-eight Principles.
with a goal of both recognizing those key principles of international human rights law that
are vitally important to protecting the rights of migrants while also applying those principles
to the specific context of migration. The Commission should nonetheless recognize that
while some issues may not be specifically addressed by the Guiding Principles, they should
nonetheless be covered by the application of the thirty-nine Principles and by other human
rights instruments.
These Guiding Principles also give direction to non-African states hosting African diaspora
and people of African descent. These Guiding Principles serve as a reminder of the United
Nations General Assembly Proclamation of the International Decade for People of African
Descent. The African Commission calls on all member states of the United Nations to
promote the equal recognition and protection of people of African descent irrespective of
their migration status.
To provide States with guidance that would be most effective for respecting and ensuring
their human rights obligations in the context of the movement of people across
international borders, the Guiding Principles set out to meet several objectives:
● Centering Migrants: The Commission realizes that migrants are too often
marginalized from discussions about their rights and from the actions and
deliberations of States and inter-governmental organizations which impact their
enjoyment of those rights. For this reason, the Guiding Principles are focused on
the migrants as primary rights-holders.
● Protecting all Migrants: The Commission emphasizes that there are certain rights
challenges which can be experienced by all people moving across borders and that
human rights law protects all of these migrants on the basis of their humanity and
dignity alone. Yet the continent and the international community has developed
specific bodies of law protecting groups of persons on the move – including but not
limited to refugees, stateless migrants, victims of human trafficking, women
migrants, migrant children, migrants with disabilities, older migrants, migrant
workers and members of their families, migrant domestic workers, investors,
diplomats and consular officials. Restating general guiding principles for all people
moving across international borders cannot be interpreted as displacing the
application of such relevant specific bodies of binding international law, such as
the law protecting refugees, as noted in the Guiding Principles’ savings clause.1
● Responding to Emerging Issues: The Guiding Principles address a broad set of
human rights issues, including emerging issues, such as global climate change,
which particularly affect migrants. Drawing on other recent actions by States in our
region and globally, and the longstanding role of African States and institutions in
delivering innovation in the progressive development of the law protecting the
1
The definition of migrant herein was first proposed by the Migrant Rights Initiative. See An International
Migrants Bill of Rights and Commentaries, 28 Georgetown Immigration Law Journal 9 (2013). It has
been adapted by the United Nations Office of the High Commissioner of Human Rights. See
Recommended Principles and Guidelines on Human Rights at International Borders A/69/277 (2014);
a similar definition was adopted by the Inter-American Commission on Human Rights in its 2019 InterAmerican Principles on the Rights of All Migrants, Refugees, Stateless Persons and Victims of Human
Trafficking (Resolution 4/19). These definitions are also consistent with other broad definitions of
migrants. See, e.g., the Policy on Migration of the International Federation of the Red Cross and Red
Crescent Societies.
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human rights of migrants, including refugees, and the right of all people to a clean,
healthy and sustainable environment, the Guiding Principles propose a novel and
legally-supported definition of climate migrant and also highlight ways that existing
African law protecting refugees could protect those climate migrants who are
compelled to seek refuge outside their country of origin or nationality, including
when the effects of global climate change seriously disturb public order, triggering
application of continental refugee law.
● Underlining the Importance of Cooperation: Implementationof these Guiding
Principles requires cooperation amongst African Union States and institutions to
respect the human rights of migrants. The success of the Guiding Principles will
depend on the extent to which they are known and implemented by States Parties
to the African Charter.
The African Commission on Human and Peoples’ Rights should therefore call on all
stakeholders to use the African Guiding Principles on the Human Rights of All Migrants,
Refugees and Asylum Seekers to inform their work in strengthening human rights
protections in the context of the movement of people across international borders.
Honorable Commissioner Maya Sahli Fadel
Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and
Migrants in Africa
Vice-Chairperson of the African Commission on Human and Peoples’ Rights
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EXPLANATORY NOTES
Instructive but non-exhaustive explanatory notes accompany the Guiding Principles on the
Rights of Migrants, Refugees and Asylum Seekers. These Notes provide supporting
material for the Guiding Principles. They include sources from African regional treaty law,
the African Commission on Human and Peoples’ Rights case law, international human
rights treaty law, and customary international law. Notes are not provided where the
supporting materials for the Guiding Principles are apparent.
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PREAMBLE
The African Commission on Human and Peoples’ Rights;
Affirming its mandate to promote and protect human and peoples’ rights in
accordance with Article 45 of the African Charter on Human and Peoples’ Rights;
Explanatory Note: See, Articles 1, 30 and 45 of the African Charter on Human and
Peoples’ Rights.
Considering Resolution 481 (LXVIII) 2021 of the African Commission on Human
and Peoples' Rights requesting the Special Rapporteur on Refugees, Asylum
Seekers, Displaced Persons, and Migrants in Africa to study African responses to
migration and the protection of migrants with a view to developing Guiding
Principles;
Explanatory Note: See, Article 5 (ii) of Resolution 481 on the Need for a Study
on African Responses to Migration and the Protection of Migrants with a view
to Developing Guidelines on the Human Rights of Migrants, Refugees and
Asylum Seekers - ACHPR/Res. 481 (LXVIII) 2021.
Recalling the obligations of African States to protect the rights of all persons,
regardless of their status, under the Constitutive Act of the African Union, the
African Charter on Human and Peoples’ Rights, the Protocol to the African Charter
on Human and Peoples’ Rights on the Rights of Women in Africa, the Protocol to
the African Charter on Human and Peoples’ Rights on the Rights of Persons with
Disabilities in Africa, African Charter on the Rights and Welfare of the Child, the
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older
Persons in Africa, the Organization of African Unity Convention Governing the
Specific Aspects of Refugee Problems in Africa Problems in Africa;
Explanatory Note: See, Article 3 (h) of the Constitutive Act of the African Union,
which notes that the objective of the African Union shall be to “promote and protect
human and peoples’ rights in accordance with the African Charter on Human and
Peoples’ Rights and other relevant human rights instruments.” The African Charter
on Human and Peoples’ Rights reiterates Africa’s commitment to protecting the
rights of all persons, regardless of their migration status. Article 2 of the African
Charter on Human and Peoples’ Rights states that “[e]very individual shall be
entitled to the enjoyment of the rights and freedoms recognized and guaranteed in
the present Charter without distinction of any kind such as race, ethnic group, color,
sex, language, religion, political or any other opinion, national and social origin,
fortune, birth or other status.” Furthermore, Article 2 of the Protocol to the African
Charter on Human and Peoples’ Rights of Women in Africa, Article 3 of the Protocol
to the African and Human and Peoples’ Rights of Persons with Disabilities in Africa,
Article 3 of the African Charter on the Rights and Welfare of the Child, Article 3 of
the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Older Persons in Africa, and Article 4 of the Organization of African Unity Convention
Governing the Specific Aspects of Refugee Problems in Africa Problems in Africa
prohibit discrimination of migrants and requires African States to advance human
rights of all. In conclusion, a holistic reading of these African instruments prohibits
discriminatory and arbitrary denial of human and peoples’ rights for migrants
without distinction of any kind such as race, ethnic group, color, sex, language,
religion, political or any other opinion, national and social origin, fortune, birth, or
other status.
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Recognizing African States’ commitments and obligations to recognize and protect
refugees.
Explanatory Note: Article 1 of the Organization of African Unity Convention
Governing the Specific Aspects of Refugee Problems in Africa Problems in Africa
notes that “(1)[f]or the purposes of this Convention, the term “refugee” shall mean
every person who, owing to well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable or, owing to such fear,
is unwilling to avail himself of the protection of that country, or who, not having a
nationality and being outside the country of his former habitual residence as a result
of such events is unable or, owing to such fear, is unwilling to return to it. (2) The
term “refugee” shall also apply to every person who, owing to external aggression,
occupation, foreign domination, or events seriously disturbing public order in either
part or the whole of his country of origin or nationality, is compelled to leave his
place of habitual residence in order to seek refuge in another place outside his
country of origin or nationality.” See also Article 8(2) of the Organization of African
Unity Convention Governing the Specific Aspects of Refugee Problems in Africa
Problems in Africa stating. See the United Nations Convention on Refugee United
and the 1967 Protocol Relating to the Status of Refugees.
Recalling the Protocol to the Treaty Establishing the African Economic Community
Relating to Free Movement of Persons, Right of Residence and Right of
Establishment and the commitment of African States under intra-African regional
agreements that guarantee the free movement and rights of migrants, in particular
the Treaty of the Economic Community of West African States, the Protocol on the
Free Movement of Persons, the Right of Residence and Establishment of the
Economic Community of West African States, the Economic and Monetary
Community of Central Africa, the Southern African Development Community
Protocol on Facilitation of Movement of Persons, the Southern African Development
Community Protocol on Employment and Labor, Protocol on the Establishment of
the East African Community Common Market, the Common Market for Eastern and
Southern Africa Protocol on the Free Movement of Persons, Labour, Services, the
Right of Establishment and Residence, the Protocol on Free Movement of Persons
in the Inter-Governmental Authority for Development Region, the Treaty
Establishing the Arab Maghreb Union, the Treaty Establishing the Community of
Sahel-Saharan States;
Explanatory Note: See, Protocol to the Treaty Establishing the African Economic
Community Relating to Free Movement of Persons, Right of Residence and Right of
Establishment and African Union Agenda 2063 Aspiration 3 (An Africa of Good
Governance, Democracy, Respect for Human Rights, Justice and the Rule of Law).
See Article 2, 27(1), 27(2) of the Treaty of the Economic Community of West African
States calls for free movement, free mobility without visa and residence permit, right
to work and undertake commercial and industrial activities. In addition, Article 2 of
the Protocol on the Free Movement of Persons, the Right of Residence and
Establishment of the Economic Community of West African States grants
“Community citizens the right to enter, reside and establish” in the Community.
Article 40 of the Treaty Establishing the Economic and Monetary Community of
Central Africa creates community citizenship. It guarantees the right to free
movement and the establishment of community citizens. The Southern African
Development Community Protocol on Facilitation of Movement of Persons under
Article 3 guarantees community citizens visa-free entry, rights of residence, and
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establishment. Article 2 (4(b), (c), (d), and (e)) of the Protocol on the Establishment
of East African Community Common Market guarantees the free movement of
persons and labour, the right of establishment, and residence. Articles 3, 9, 11, and
12 of the Common Market for Eastern and Southern Africa Protocol on the Free
Movement of Persons, Labour, Services, the Right of Establishment and Residence
provide for the gradual realization of free movement of persons, labour,
establishment, and residence. Article 3 of the Protocol on Free Movement of
Persons in the Inter-Governmental Authority for Development Region guarantees
the free movement of persons and labour and gradual realization of the right to the
establishment. Article 2 of the Treaty Establishing the Arab Maghreb Union notes
that member states need to work towards the gradual realization of the free
movement of persons. Under Article 3(f), the Treaty Establishing the Community of
Sahel-Saharan States promotes the free movement of persons.
Recalling African States’ commitment to protecting the rights of all persons,
regardless of their status, under the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights, the International Convention on the
Elimination of All Forms of Racial Discrimination, the Convention on the Rights of
the Child, the Convention on the Elimination of All Forms of Discrimination Against
Women, the Convention on the Rights of Persons with Disabilities, the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
the International Convention on the Protection of the Rights of Migrant Workers and
Members of their Families, the International Convention For the Protection of All
Persons From Enforced Disappearances, the Convention on the Rights of Persons
with Disabilities, the Geneva Convention relating to the Status of Refugees and its
Protocol, the Convention Relating to the Status of Stateless Persons, the
Convention on the Reduction of Statelessness, International Labour Organization
Conventions 97, 143 and 189, the Convention Against Transnational Organized
Crime and the Protocols thereto and those relevant complementary provisions of
customary international law as well as the Global Compact for Safe, Orderly and
Regular Migration and Global Compact for Refugees;
Explanatory Note: See, Article 60 of the African Charter on Human and Peoples’
Rights, which states “[t]he Commission shall draw inspiration from international law
on human and peoples’ rights, particularly from the provisions of various African
instruments on Human and Peoples’ Rights, the Charter of the United Nations, the
Charter of the Organisation of African Unity, the Universal Declaration of Human
Rights, other instruments adopted by the United Nations and by African countries in
the field of Human and Peoples’ Rights, as well as from the provisions of various
instruments adopted within the Specialised Agencies of the United Nations of which
the Parties to the present Charter are members.” See Article 61 of the African
Charter on Human and Peoples’ Rights, which “[t]he Commission shall also take into
consideration, as subsidiary measures to determine the principles of law, other
general or special international conventions, laying down rules expressly recognised
by Member States of the Organisation of African Unity, African practices consistent
with international norms on Human and Peoples’ Rights, customs generally
accepted as law, general principles of law recognised by African States as well as
legal precedents and doctrine.” See also the Preamble of the Organization of African
Unity Convention Governing the Specific Aspects of Refugee Problems in Africa
Problems in Africa, which recognizes that “the United Nations Convention of 28 July
1951, as modified by the Protocol of 31 January 1967, constitutes the basic and
universal instrument relating to the status of refugees and reflects the deep concern
of States for refugees and their desire to establish common standards for their
treatment.”
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Noting with concern the human rights violations of migrants in and out of Africa
and desirous of finding ways of providing them with a better life and future;
Explanatory Note: See the Preamble of the Organization of African Unity Convention
Governing Specific Aspects of Refugees notes “with concern the constantly
increasing number of refugees in Africa and desirous of finding ways and means of
alleviating their misery and suffering as well as providing them with a better life and
future.” See also the African Common Position on Migration and Development
(EX.CL/Dec.305 (IX)) (page 3) recognizes the constantly increasing number of
migrants globally. It also notes that one-third of global migrants are people of African
descent. Furthermore, people of African descent have encountered violations of
their fundamental rights in and out of Africa. For instance, see the Programme of
activities for the implementation of the International Decade for People of African
Descent, Resolution adopted by the General Assembly on 18 November 2014
(A/69/L.3). More recently, the Statement of the African Union on the reported illtreatment of Africans trying to leave Ukraine shows discrimination and violation of
the fundamental rights of migrants of African descent.
Recognizing the need for a human rights approach towards migrants and their
families;
Explanatory Note: the African Union Migration Policy Framework for Africa and Plan
of Action (2018 – 2030) on page 71 states that “[h]istorically, migrants have often
been deprived of their rights and subjected to discriminatory and racist actions and
policies including xenophobia, exploitation, mass expulsion, persecution, and other
abuses. Safeguarding the human rights of migrants implies the effective application
of norms enshrined in human rights instruments of general applicability, as well as
the ratification and enforcement of instruments specifically relevant to the
treatment of migrants.”
Recognizing that in our continent, we have nomadic populations and cross-border
mobility practices that need free movement guarantees to secure their livelihoods
and cultures, as well as contribute to peace;
Explanatory Note: See Article 12 of the Protocol to the Treaty Establishing the
African Economic Community Relating to Free Movement of Persons, Right of
Residence and Right of Establishment See also Article 15 of the Protocol on Free
Movement of Persons in the Inter-Governmental Authority for Development Region.
Bearing in mind that the African Charter on Human and Peoples’ Rights affirmed
the principle that all human beings irrespective of their status as a migrant shall
enjoy fundamental rights and freedoms without discrimination and that the African
Commission on Human and Peoples’ Rights confirmed that Charter rights are
generally owed to nationals and non-nationals alike;
Explanatory Note: See Article 2 of the African Charter on Human and Peoples’
Rights, which states, “[e]very individual shall be entitled to the enjoyment of the
rights and freedoms recognized and guaranteed in the present 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 any status.”
Furthermore, see also 71/92: Rencontre africaine pour la défencse des droits de
l’Homme (RADDHO)/Zambia (Para. 22), where the African Commission on Human
and Peoples’ Rights confirmed that the African Charter on Human and Peoples’
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Rights “imposes an obligation on the contracting state to secure the rights protected
in the Charter to all persons within their jurisdiction, nationals or non-nationals.”
Mindful that the right to development is an inalienable human right by virtue of
which every human person, including migrants, and all peoples are entitled to
participate in, contribute to and enjoy economic, social, cultural and political
development, in which all human rights and fundamental freedoms can be fully
realized;
Explanatory Note: See Article 1(1) of the U.N. General Assembly resolution
A/Res/41/128, Declaration on the Right to Development.
Considering that migrants bring special contributions to their communities, that
the ability to participate in and influence one’s community is a significant part of
human dignity;
Convinced that all the challenges of our continent must be solved and
opportunities pursued in the spirit of the Charter of the African Union and in the
African context;
Calling on all African states to establish common standards for the protection of
the human and peoples’ rights of all migrants, without prejudice to the duty to
enforce any legal obligation more protective of migrants or groups of migrants, such
as refugees;
Adopts the following Guiding Principles as minimum standards and definitions on
the rights of migrants and urges States Parties to the African Union to incorporate
them in their domestic legislation and take measures to ensure their effective
implementation.
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PART 1: PURPOSE & DEFINITIONS
PRINCIPLE 1 – PURPOSE
1. By restating African States’ obligations as they relate to migrants, these Guiding
Principles aim to support African Union Member States in fulfilling their legal
obligations to guarantee the rights of all migrants.
2. The rights enshrined in these Guiding Principles apply to the obligations of African
Union Member States to protect the rights of all migrants, irrespective of their
origin, including migrants in the African diaspora.
Explanatory Note: These Guiding Principles apply to all migrants subject to the
jurisdiction of member States of the African Union. First, these could be citizens or
habitually resident stateless persons of African Union member States migrating
within Africa (members of the African diaspora in the broad sense), as well as
citizens or habitually resident stateless persons of another region who migrate into
Africa. See Article 2 of the African Charter on Human and Peoples’ Rights, which
states, “[e]very individual shall be entitled to the enjoyment of the rights and
freedoms recognised and guaranteed in the present 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 any status.” Furthermore,
see also 71/92: Rencontre africaine pour la défense des droits de l'Homme
(RADDHO)/Zambia (Para. 22), where the African Commission on Human and
Peoples’ Rights confirmed that the African Charter on Human and Peoples’ Rights
“imposes an obligation on the contracting state to secure the rights protected in the
Charter to all persons within their jurisdiction, nationals or non-nationals.” Second,
these could be citizens or habitually resident stateless persons of African Union
member States moving extracontinentally from a member State of the African Union
(members of the African diaspora in the sense used in African Union instruments)
but who remain subject to the jurisdiction and therefore protection of rights
obligations of States of the African Union (in addition to the duties of non-African
States in whose territories or effective control migrants fall). See Article 3 (q) of the
Protocol on Amendments of the Constitutive Act of the African Union recognizes the
African diaspora as “an important part of our Continent.” See also the Declaration
of The Global African Diaspora Summit, Diaspora/Assembly/AU/ /Decl (I), Sandton
2012.
PRINCIPLE 2 – DEFINITIONS
1. The term “migrant” in these Guiding Principles refers to a person who is outside of
a State of which they are a citizen or national, or, in the case of a stateless person
or person of undetermined nationality, their State of birth or habitual residence.
2. Human mobility in the context of climate change shall mean displacement
motivated by the adverse effects of sudden- or slow-onset climate impacts,
whether within and across national borders. Climate change induced human
mobility involves different levels of constraints, agency, and vulnerability and
encompasses both forced displacement and migration, including planned
relocation. Climate change induced human mobility occurs over different
distances and can be temporary, recurrent, or permanent. When climate change
induced human mobility involves movement across international borders, those
displaced are “climate migrants.”
3. The term “refugee” shall mean every person who, owing to being persecuted for
reasons of race, religion, nationality, membership of a particular social group or
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political opinion is outside the country of their nationality and is unable or, owing
to such fear, is unwilling to avail themselves of the protection of that country, or
who, not having a nationality and being outside the country of their former habitual
residence as a result of such events, is unable or, owing to such fear, is unwilling
to return to it and also shall mean every person who, owing to external aggression,
occupation, foreign domination, or events seriously disturbing public order in
either part or the whole of their country of origin or nationality, is compelled to
leave their place of habitual residence in order to seek refuge in another place
outside their country of origin or nationality.
4. The term “refugee” may also apply to those compelled to seek refuge outside their
country of origin, nationality or habitual residence as a result climate change that
affects their fundamental rights, regardless of whether such effects seriously
disturb public order.
5. These Guiding Principles shall apply during the entire migration process.
Explanatory Note: See the African Union Migration Policy Framework for Africa and
Plan of Action (2018-2030) recommends the need to “[r]espect, protect and meet
the rights of all persons, regardless of their migration status” (Page 30). See also
Article I of the Organization for African Union Convention Governing the Specific
Aspects of Refugee Problems in Africas, which adopts a broader definition of
refugees compared to Article 1.A. of the 1951 U.N. Convention on the Status of
Refugees. The Organization for African Union Convention Governing the Specific
Aspects of Refugee Problems in Africas recognizes the need to protect persons who
migrate because of external aggression and climate change, creating a broader
conceptualization and legal protection for refugees. See Paragraph 6 of the
International Organization for Migration Discussion Note: Migration and the
Environment, MC/INF/288 (definition of climate migrants.) See Article I (2) of the
Organization of African Union Convention Governing the Specific Aspects of Refugee
Problems in Africa Problems in Africa, which expanded the grounds for asylum to
“events seriously disturbing public order in either part or the whole of his country of
origin or nationality, is compelled to leave his place of habitual residence in order to
seek refuge in another place outside his country of origin or nationality.” See also
Article 16 (1) of the Protocol on Free Movement of Persons in the InterGovernmental Authority for Development Region stating, “Member States shall
allow citizens of another Member State who are moving in anticipation of, during or
in the aftermath of [a] disaster to enter into their territory provided that upon arrival
they shall be registered in accordance with national law.” Although these guiding
principles focus on climate mobility across international borders, climate mobility
does not just affect international migrants. Mobility motivated by the adverse effects
of sudden- or slow-onset climate impacts happens within and across national
borders. It involves different levels of constraints, agency, and vulnerability and
encompasses both forced displacement and migration, including planned
relocation. Climate mobility occurs over different distances and can be temporary,
recurrent, or permanent. Africa Climate Mobility Initiative Note that “migrants in
situations of vulnerability” is defined in Principle Eight and “refugee” is defined in
Principle Twenty. See also Objective 2 of the Global Compact for Safe, Orderly and
Regular Migration; Section D, Global Compact on Refugees. See also Page 4, note
2 of the United Nations Office of the High Commissioner for Human Rights,
Recommended Principles and Guidelines on Human Rights at International Borders,
UN Doc. A/69/277. Finally, see U.N. General Assembly Resolution 40/144,
“Declaration on the Human Rights of Individuals Who are Not Nationals of the
Country in which They Live (A/Res/40/144 (1985)), which defines as an “alien” an
“individual who is not a national of the State in which he or she is present.”
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PART 2: GENERAL PRINCIPLES
PRINCIPLE 3 – EQUALITY AND NON-DISCRIMINATION
1. All individuals, including migrants, are equal before the law and shall be equal
before the courts and tribunals. Every migrant has the right, without any
discrimination, to the equal protection of the law on the same basis as nationals
of any State in which the migrant is present.
2. Every migrant shall be entitled to the enjoyment of the rights and freedoms
recognized in these Guiding Principles 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.
3. In this respect, the law shall prohibit any discrimination and guarantee to migrants
equal and effective protection against discrimination on any ground such as race,
ethnic group, colour, sex, language, religion, political or any other opinion, national
and social origin, fortune, birth or other status.
4. States shall pursue by all appropriate means and without delay a policy of
eliminating racial discrimination and xenophobia in all its forms and promoting
understanding among all races.
Explanatory Note: See, Article 2 of the African Charter on Human and Peoples’
Rights, which states, “[e]very individual shall be entitled to the enjoyment of the
rights and freedoms recognized and guaranteed in the present 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.” Similarly, Article 3 of the African Charter on Human and Peoples’ Rights
states that “(1) [e]very individual shall be equal before the law. (2) Every individual
shall be entitled to equal protection of the law.” Albeit limited only to refugees,
Article IV of the Organization of African Unity Convention Governing the Specific
Aspects of Refugee Problems in Africas prohibits discrimination based on “race,
religion, nationality, membership of a particular social group or political opinions.”
At the international level, Article 7 of the Universal Declaration of Human Rights
notes, “[a]ll are equal before the law and are entitled without any discrimination to
equal protection of the law. All are entitled to equal protection against any
discrimination.” Similar equality and non-discrimination provisions can also be
found under Article 7 of the International Convention on the Protection of the Rights
of All Migrant Workers and Members of their Families and Article 2 of the
International Convention on the Elimination of All Forms of Racial Discrimination.
States have also pledged to eliminate racial discrimination and xenophobia in the
International Convention on the Elimination of All Forms of Racial Discrimination.
PRINCIPLE 4 – RIGHT TO LIFE
1. Every migrant has the inherent right to life. Every migrant shall be entitled to
respect for life and the integrity of person. No migrant shall be arbitrarily deprived
of life.
2. Any use of force in the context of border control measures must be consistent with
principles of legality, necessity and proportionality. Such force may only be used
as a last resort and when other means are ineffective. Lethal force may never be
used for the purpose of arresting or detaining migrants, including in the event of
flight from ports of entry, to prevent the exercise of the right to leave any country,
including their own, to prevent irregular entry into a State’s territory or for suspicion
of violation of migration laws.
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3. States must investigate all deaths of migrants thoroughly, independently and
effectively, and provide redress and reparations.
Explanatory Note: See Article 4 of the African Charter on Human and People’s
Rights notes that “[h]uman beings are inviolable. Every human being shall be
entitled to respect for his life and the integrity of his person. No one may be
arbitrarily deprived of this right.” Similarly, Article 6(1) of the International Covenant
on Civil and Political Rights protects “the inherent right to life” of every person. See
African Commission on Human and Peoples’ Rights, General Comment No. 3 on the
African Charter on Human and Peoples’ Rights: The Right to Life (Article 4). In
addition, see Article 4(o) of the Constitutive Act of the African Union. Report of the
Special Rapporteur of the Human Rights Council on extrajudicial, summary or
arbitrary executions on Unlawful deaths of refugees and migrants, U.N. Doc.
A/72/235. See also Guideline 4 (3) of the OHCHR Recommended Principles and
Guidelines on Human Rights at International Borders.
PRINCIPLE 5 – HUMAN DIGNITY
1. Every migrant shall have the right to the respect of the dignity inherent in a human
being. The right to dignity encompasses physical, mental, and moral integrity.
Explanatory Note: See, Article 5 of the African Charter on Human and Peoples’
Rights which states, “[e]very individual shall have the right to the respect of the
dignity inherent in a human being.” See also Article 1 of the Universal Declaration
of Human Rights which states “[a]ll human beings are born free and equal in dignity
and rights.”
PRINCIPLE 6 – TORTURE AND OTHER FORMS OF ILL-TREATMENT
1. No migrant shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.
Explanatory Note: See, Article 5 of the African Charter on Human and
Peoples’ Rights which states, “[a]ll forms of exploitation and degradation
of [people], particularly . . . torture, cruel, inhuman or degrading
punishment and treatment shall be prohibited.” See also Article 5 of the
Universal Declaration of Human Rights, Article 7 of the International
Covenant on Civil and Political Rights and generally the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
PRINCIPLE 7 - LEGAL PERSONHOOD
1. Every migrant has the right to recognition everywhere as a person before the law.
2. Every migrant child shall be registered immediately after birth.
3. Every migrant has the right to all documents necessary for the enjoyment and
exercise of their legal rights, such as travel documents, personal identification
documents, birth certificates and marriage certificates.
4. States shall issue to refugees lawfully staying in their territory travel documents
for the purpose of travel outside their territory, unless compelling reasons of
national security or public order otherwise require.
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5. States shall facilitate the issuance of identity and other such documents for
migrants.
Explanatory Note: The recognition of the personhood of every person, including
migrants, emanates from Articles 4 and 5 of the African Charter on Human and
Peoples’ Rights, which protect the inviolability and dignity of all persons. In this spirit,
Article 6(2) of the African Charter on the Rights and Welfare of the Child states that
“[e]very child shall be registered immediately after birth.” See also Paragraphs 43
to 47 of the General Comment on Article 6 of the African Charter on the Rights and
Welfare of the Child. The right to register vital life events, personal identification,
and travel documents should be equally accessed by all persons, including
migrants, as Article 13(1) of the African Charter on Human and Peoples’ Rights
requires. Article 13(2) of the African Charter on Human and Peoples’ Rights states,
“[e]very citizen shall have the right of equal access to the public service of his
country.” Albeit limited to refugees, Article VI (1) of the OAU Convention Governing
the Specific Aspects of Refugee Problems in Africa mandates African states to issue
travel documents to migrants. See also Paragraph 30 of the General Comment No.5
on the African Charter on Human and People’s Rights: The Right to Freedom of
Movement and Residence (Article 12(1)), which states “[g]iven the importance of
identity documents in facilitating movement, the executive arm must set in place
effective mechanisms for the issuance of identity documents in situations of armed
conflict, natural disaster or other disruptive situations.” See also Article 28 of the
1951 Refugee Convention.
PRINCIPLE 8 – LIBERTY AND SECURITY OF PERSON
1. Every migrant has the right to liberty and security of person. Any restriction on a
migrant’s liberty must comply with the principles of legality, necessity and
proportionality. No migrant may be deprived of their freedom except for reasons
and conditions previously laid down by law. No migrant shall be arbitrarily arrested
or detained.
2. States shall refrain from detention of migrants on the basis of their status as a
migrant. Detention shall occur only as a measure of last resort, pursuant to an
individualized determination and be for the shortest period of time necessary to
achieve a legitimate purpose. It must not be prolonged or indefinite and must take
a migrant’s individual vulnerabilit(ies) into account. When restrictive measures are
lawful, States shall seek non-custodial alternatives to detention.
3. Detention should not be used as a means of deterrence or punishment for
irregular entry or stay.
4. States shall not impose penalties, on account of their illegal entry or presence, on
refugees who, coming directly from a territory where their life or freedom was
threatened, enter or are present in their territory without authorization, provided
they present themselves without delay to the authorities and show good cause for
their illegal entry or presence.
5. States shall never detain child migrants, as deprivation of liberty on account of
status as a migrant is never in their best interest. Migrant children must always
be kept with their parent or caregiver, unless it is determined to be in their best
interests to separate them, and placed together in alternative care, not detention;
unaccompanied migrant children should be appointed an independent and
competent legal guardian to defend their rights.
6. Every migrant who has been the victim of unlawful arrest or detention shall have
an enforceable right to compensation.
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7. If so requested by the migrant, the relevant consular or diplomatic authorities must
be informed, without delay, of their detention. Migrants must be informed of their
right to inform and to communicate with their consular or diplomatic authorities.
8. States must allow detained migrants to have contact with members of their
families, and they should ensure that migrants have the means, both technical
and financial, to do so.Every detained migrant shall be treated with humanity and
respect for the inherent dignity of the human person and have the right to appeal
the conditions, legality and length of detention. Conditions and treatment in
administrative detention shall be non-punitive.
Explanatory Note: See Article 6 of the African Charter on Human and People’s
Rights notes that “[e]very individual shall have the right to liberty and to the security
of his person. No one may be deprived of his freedom except for reasons and
conditions previously laid down by law. In particular, no one may be arbitrarily
arrested or detained.” See also Paragraph 48 of the General Comment No.5 on the
African Charter on Human and People’s Rights: The Right to Freedom of Movement
and Residence (Article 12(1)) “[s]tates must ensure that asylum seekers are
accorded the right to move freely and reside within the borders of a state. States
must refrain from detention of asylum seekers and seek alternatives to detention in
the treatment of asylum seekers. Alternatives to detention must not be alternative
forms of detention. Asylum seekers must not be detained in maximum-security
facilities. Restrictions on the movement of asylum seekers must not be indefinite,
and any restrictions or conditions must be subject to regular review by a judicial
authority. States must facilitate and expedite the process of documentation for
asylum seekers.” These topics have also been addressed by ACHPR Resolution 486,
which recognizes that the right to liberty and security of person prohibits deprivation
of liberty in a secret detention facility in any country of transit or destination.
ACHPR/Res. 486 (EXT.OS/XXXIII) 2021. At the international level, Article 9 (1) of the
International Covenant on Civil and Political Rights states, “[e]veryone has the right
to liberty and security of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.” Report of the Special
Rapporteur to the Human Rights Council on the human rights of migrants, U.N. Doc.
A/HRC/20/24. See also Article 3 and 9 of the Convention on the Rights of the Child
and the Join General Comment – No. 4 of the CMW and No. 23 of the CRC (2017)
– on State obligations regarding the human rights of children in the context of
international migration in countries of origin, transit, destination and return. See
also Article 31 of the 1951 Refugee Convention.
PRINCIPLE 9 – ENFORCED DISAPPEARANCES & MISSING MIGRANTS
1. No migrant shall be subjected to an enforced disappearance.
2. States shall cooperate with one another in helping to save lives and to prevent,
punish and eliminate the enforced disappearance of migrants.
3. States should take all possible measures to prevent migrants transiting or residing
on their territory or otherwise under their jurisdiction from going missing, including
preventing the separation of families.
4. States shall establish or reinforce mechanisms for searching for migrants who have
gone missing or disappeared within their territory and on the high seas. States
should standardize the collection and exchange of relevant information, to
establish effective coordination mechanisms for the search for missing and
deceased migrants and shall establish mechanisms and strengthen their forensic
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system capacity and standards in order to identify the remains of people who have
disappeared in the course of their migration or displacement.
5. States should take all feasible measures to reunite separated families wherever
possible and with no delay.
6. States should endeavour to identify dead or missing persons, in accordance with
applicable legal frameworks. Every family of a migrant has a right to be informed
when the remains of deceased migrant has been identified or located. Family
members of a deceased migrant have a right to the remains of the deceased
migrant.
Explanatory Note: See 486 Resolution on missing migrants and refugees in Africa
and the impact on their families, which also emphases the importance of regularly
assessing the consequences and impact of their migration laws and policies to
ensure that they do not lead to new or increased risks of disappearance of migrants
or the aggravation of the phenomenon - ACHPR/Res. 486 (EXT.OS/XXXIII) 2021. See
Article 4 of the African Charter on the Rights and Welfare of the Child. See also
Principle 18 of the Inter-American Principles on the Human Rights of All Migrants,
Refugees, Stateless Persons, and Victims of Human Trafficking.
PRINCIPLE 10 – MIGRANTS IN VULNERABLE SITUATIONS
1. Every migrant in a vulnerable situation has the right to protection and assistance
required by the migrant’s condition and status and to treatment which considers
the migrant’s special needs.
2. States shall take all appropriate measures to ensure that every child migrant,
whether unaccompanied or accompanied by parents, legal guardians, or close
relatives, receives appropriate assistance with primary consideration of the best
interests of the child and due weight given to the right of every child migrant to
express their views in all matters affecting them, in accordance with the age and
maturity of the child, including proceedings related to their status as a migrant and
procedures to determine a child’s identity, age and the nature of the relationship
between a child and any accompanying adult.
3. States shall take in all fields all appropriate measures to ensure the full
development and advancement of women migrants for the purposes of
guaranteeing them the exercise and enjoyment of human rights and fundamental
freedoms based on equality with men, without discrimination, including taking a
gender perspective in proceedings related to their status as a migrant and
ensuring adequate responses to forced labor, sexual abuse, sexual harassment,
and physical violence.
4. States shall promote the full realization of all human rights and fundamental
freedoms for all migrants with disabilities without discrimination of any kind based
on disability, including through taking appropriate measures to enable migrants
with disabilities to live independently and participate fully in all aspects of life,
including in proceedings related to their status as a migrant.
5. States shall take in all fields all appropriate measures to ensure that older
migrants are accorded special measures and protection in keeping with their
specific needs, including in proceedings related to their status as a migrant.
Explanatory Note: This provision captures migrant persons who might find
themselves in vulnerable situations. In this principle, we explicitly note children,
women, persons with disabilities, and the elderly as examples of persons who might
find themselves in vulnerable situations and who are also protected by specific
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complementary bodies of law. This principle does not aim to give an exhaustive list
of vulnerable persons. Such persons might reasonably include, in the appropriate
circumstance, migrants in irregular situations, migrants who belong to a social
minority group, stranded migrants, victims of crimes, migrants deprived of liberty. In
addition to those, the list of persons in vulnerable situations in this principle does
not necessarily imply that they are inherently vulnerable but might find themselves
in vulnerable situations. The situations generating vulnerability that migrants face
can arise from a range of situational and personal factors that may intersect or
coexist simultaneously, influencing and exacerbating each other and also evolving
or changing over time as circumstances change. See the United Nations Human
Rights Office of the High Commissioner – Principles and Guidelines, supported by
practical guidance, on the human rights protection of migrants in vulnerable
situations. Several African and international conventions protect migrants who
might find themselves in vulnerable situations. See Article 23 of the African Charter
on the Rights and Welfare of the Child and Article 22 of the Convention on the Rights
of the Child provide specific protections to child migrants. See also Article 12 of the
Protocol to the African Convention on Human and Peoples’ Rights on the Rights of
Persons with Disabilities in Africa and the International Convention on the Rights of
Persons with Disabilities emphasize the need for special attention on migrants with
disabilities. See also Article IV (2(k)), Article X (2(c) and (d)), and Article XI (3) of the
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa that accord special attention to women migrants. The Convention
for the Elimination of all sorts of Discrimination Against Women also accords
particular attention to preventing women from falling into vulnerable situations.
Likewise, the Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Older Persons in Africa and Article 18(4) of the African Charter on Human
and People’s Rights call for special attention to older persons. See also Section 5.12
of the African Committee of Experts on the Rights and Welfare of the Child 2018
report, Mapping Children on the Move and Paragraph 20 of General
Recommendation 26 of the UN Committee on the Elimination of all forms of
Discrimination Against Women migrant workers, CEDAW/C/2009/WP.1/R.
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PART 3: ADDITIONAL RIGHTS PROTECTIONS
PRINCIPLE 11 – DUE PROCESS
1. Every migrant shall have the right to have their cause heard and to due process of
law before the courts, tribunals and all other organs and authorities administering
justice, including those specifically charged with making determinations regarding
their legal status as a migrant. This includes:
a. the right to an appeal to competent national organs against acts
violating fundamental rights as recognized and guaranteed by laws,
regulations and customs in force;
b. the right to be presumed innocent until proved guilty by a competent
court or tribunal;
c. the right to defense, including the right to be defended by counsel of
their choice;
d. the right to legal assistance in all proceedings related to their legal
status as a migrant;
e. the right to interpretation in a language the migrant can understand in
criminal proceedings and in all proceedings related to their legal status
as a migrant;
f. the right to be tried within a reasonable time by an impartial court or
tribunal;
g. the right to be informed within a reasonable timeframe of their due
process rights.
2. No migrant may be condemned for an act or omission which did not constitute a
legally punishable offence at the time it was committed. No penalty may be
inflicted for an offence for which no provision was made at the time it was
committed. Punishment is personal and can be imposed only on the offender.
3. Migrants should be free from penalties for seeking justice, accessing services, or
exercising their due process rights. No migrant should be threatened with or
subjected to expulsion for exercising their due process rights.
4. Migrants should be free from penalties on account of entry, presence or status, or
on account of any other offence which can only be committed by migrants.
Explanatory Note: The right to due process is recognized under Article 7 of the
African Charter on Human and Peoples’ Rights. Article 7 of the African Charter on
Human and Peoples’ Rights states, “(1) [e]very individual shall have the right to have
his cause heard. This comprises: (a) the right to an appeal to competent national
organs against acts of violating his fundamental rights as recognized and
guaranteed by conventions, laws, regulations and customs in force; (b) the right to
be presumed innocent until proven guilty by a competent court or tribunal; (c) the
right to defense, including the right to be defended by counsel of his choice; (d) the
right to be tried within a reasonable time by an impartial court or tribunal. (2) No
one may be condemned for an act or omission which did not constitute a legally
punishable offence at the time it was committed. No penalty may be inflicted for an
offence for which no provision was made at the time it was committed. Punishment
is personal and can be imposed only on the offender.” See also Principle G of the
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa
notes, “(a) [s]tates shall ensure that efficient procedures and mechanisms for
effective and equal access to lawyers are provided for all persons within their
territory and subject to their jurisdiction, without distinction of any kind, such as
discrimination based on race, colour, ethnic origin, sex, gender, language, religion,
political, or other opinion, national or social origin, property, disability, birth,
22
economic or other status. (b) States shall ensure that an accused person or a party
to a civil case is permitted representation by a lawyer of his or her choice, including
a foreign lawyer duly accredited to the national bar. (c) States and professional
associations of lawyers shall promote programmes to inform the public about their
rights and duties under the law and the important role of lawyers in protecting their
fundamental rights and freedoms.” Such right shall include due process protections
in refugee status determinations and those related the nationality of stateless
migrants.
PRINCIPLE 12 – VICTIMS OF CRIME
1. Every migrant victim of crime has the right to assistance and protection, including
access to compensation and restitution. States should establish justice
mechanisms independent of migration control so that migrants can report abuse
and access justice without fear of being reported, detained or deported.
2. States shall ensure the physical, psychological, and social recovery of migrant
victims of crimes, especially where such individuals are victims of human
trafficking and to that end shall prohibit the recruitment, transportation, transfer,
harbouring or receipt of persons, by means of the threat or use of force or other
forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of
a position of vulnerability or of the giving or receiving of payments or benefits to
achieve the consent of a person having control over another person, for the
purpose of exploitation..
3. States shall take into account the need to create pathways for regular status in
responding to migrant victims of crime.
4. States shall protect all migrants against all forms of violence, rape and other forms
of sexual exploitation, and to ensure that such acts are considered crimes and,
when perpetrated in armed conflict, war crimes, and that their perpetrators are
brought to justice before a competent criminal jurisdiction.
Explanatory Note: The right to redress migrant persons who are victims of crime is
recognized under Article 7 of the African Charter on Human and Peoples’ Rights.
See also Article XI (3) of the Protocol to the African Charter on Human and Peoples’
Rights that protect migrant women “against all forms of violence, rape and other
forms of sexual exploitation, and to ensure that such acts are considered war
crimes, genocide and/or crimes against humanity and that their perpetrators are
brought to justice before a competent criminal jurisdiction.” See Articles 3 and 6 of
the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, supplementing the UN Convention Against Transnational
Organized Crime. Furthermore, Article 16 (3) of Protocol Against the Smuggling of
Migrants by Land, Sea, and Air, supplementing the United Nations Convention
Against Transnational Organized Crime obliges states “shall afford appropriate
assistance to migrants whose lives or safety are endangered” by criminal activities.
See also Paragraph 75 of the report of the Special Rapporteur of the Human Rights
Council on the human rights of migrants including a study on effective access to
justice for migrants, UNGA A/73/178.
PRINCIPLE 13 – FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION OR BELIEF
1. Every migrant has the right to freedom of conscience, the profession and free
practice of religion. No migrant may, subject to law and order, be submitted to
measures restricting the exercise of these freedoms.
2. This right shall include freedom to have or to adopt a religion or belief of one’s
choice, and freedom, either individually or in community with others and in public
23
or private, to manifest one’s religion or belief in worship, observance, practice and
teaching.
Explanatory Note: See Article 8 of the African Charter on Human and Peoples’
Rights, which notes that “[f]reedom of conscience, the profession and free practice
of religion shall be guaranteed. No one may, subject to law and order, be submitted
to measures restricting the exercise of these freedoms.” See Article 18(1) of the
International Covenant on Civil and Political Rights “[e]veryone shall have the right
to freedom of thought, conscience and religion. This right shall include freedom to
have or to adopt a religion or belief of his choice, and freedom, either individually or
in community with others and in public or private, to manifest his religion or belief
in worship, observance, practice and teaching.”
PRINCIPLE 14 – FREEDOM OF OPINION AND EXPRESSION
1. Every migrant shall have the right to express and disseminate their opinions
without interference.
2. Every migrant shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form of art, or through any
other media of the migrant’s choosing.
3. The exercise of the rights provided for in this principle may be subject to certain
restriction as are provided by law and are necessary:
a. for respect of the rights or reputations of others;
b. for the protection of national security or of public order, or of public health
or morals.
Explanatory Note: See Article 9 (2) of the African Charter on Human and Peoples’
Rights, which notes that “[e]very individual shall have the right to express and
disseminate his opinions within the law.” See also Article 19 of the International
Covenant on Civil and Political Rights “(1) Everyone shall have the right to hold
opinions without interference. (2) Everyone shall have the right to freedom of
expression; this right shall include freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in
the form of art, or through any other media of his choice. (3) The exercise of the
rights provided for in paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary: (a) For respect of the rights
or reputations of others; (b) For the protection of national security or of public order
(ordre public), or of public health or morals.” See also Paragraph 102 of Malawi
African Association and Others v. Mauritania, Communication No. 54/91-61/9198/93-164.
PRINCIPLE 15 – PRIVACY & PERSONAL DATA
1. No migrant shall be subjected to arbitrary or unlawful interference with their
privacy, family, home or correspondence, nor to unlawful attacks on their honour
and reputation.
2. States shall undertake all measures necessary to ensure the protection of personal
data and information to which they might have access to while conducting
24
migratory or other procedures. Migrants’ personal data should only be collected for
specified, legitimate purposes.
3. Every migrant has the right to data protection including a set of institutional,
technical, and physical safeguards that preserve the right to privacy on the
collection, storage, use and disclosure of personal data.
4. Every migrant shall have a right to be informed when personal data is collected,
used, including through the employment of digital and artificial intelligence
technologies, or when it is transferred to third countries or international
organizations. Every migrant must have a right to refuse the collection, use and
transfer of personal data unless the collection, use and/or transfer is prescribed by
and in accordance with law, pursues a legitimate aim, is strictly necessary to meet
a legitimate aim and is conducted in a manner that is proportionate and nondiscriminatory. In no case should data transfer prejudice or adversely affect the
international protection of migrants.
5. Every migrant shall have the right to access, rectify, and to request erasure of
personal data collected during their migratory process.
Explanatory Note: See Article 10 (4) of the African Convention on Cyber Security
and Personal Data Protection that requires “authorization by the national protection
authority [for] [p]rocessing of personal data involving biometric data; [and]
[p]rocessing of personal data of public interest, particularly for historical, statistical
or scientific purposes.” See Article 13 of the African Convention on Cyber Security
and Personal Data Protection, which requires the consent of data subjects to collect
and process personal data. See Article 16 of the African Convention on Cyber
Security and Personal Data Protection, which states that “[t]he data controller shall
provide the natural person whose data are to be processed with the following
information no later than the time when the data are collected, and regardless of
the means and facilities used, with the following information: (a) his/her identity and
his/her representative, if any; (b) the purpose of the processing for which the data
are intended; (c) categories of data involved; (d)recipient(s) to which the data might
be disclosed; € the capacity to request to be removed from the file; (f) existence of
the right of access to and the right to rectify the data concerning him/her; (g) period
for which data are stored; [and] (h) proposed transfers of data to third countries.”
See also Articles 17 (right of access), 18 (right to object), 19 (right of rectification or
erasure), 20 (confidentiality obligations), 21 (security obligations), 22 (storage
obligations), and 23 (sustainability obligations) of the African Convention on Cyber
Security and Personal Data Protection. See also Article 6 of the African Charter on
Human and Peoples’ Rights, Article 10 of the African Charter on the Rights and
Welfare of the Child, and Article 9 of the Protocol to the African Charter on Human
and Peoples’ Rights on the Rights of Persons with Disabilities in Africa. See also
Article 12 of the Universal Declaration of Human Rights, Article 17 of the
International Covenant on Civil and Political Rights, Article 16 of the Convention on
the Rights of the Child, Article 14 of the International Convention on the Protection
of the Rights of All Migrant Workers and Members of their Families, and Article 22
of the Convention on the Rights of Persons with Disabilities. See also Principle 64
of the Inter-American Principles on the Human Rights of All Migrants, Refugees,
Stateless Persons, and Victims of Human Trafficking.
PRINCIPLE 16 – FREEDOM OF PEACEFUL ASSEMBLY AND ASSOCIATION
1. Every migrant has the right to freedom of peaceful assembly and association,
including the right of peaceful protest.
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2. These rights shall include the right to strike and the freedom to form associations
and trade unions in the State of residence for the promotion and protection of the
migrant’s economic, social, cultural, and other interests.
Explanatory Note: See Article 10 (1) of the African Charter on Human and Peoples’
Rights, which notes that “[e]very individual shall have the right to free association
provided that he abides by the law.” See Article 11 of the African Charter on Human
and Peoples’ Rights states “[e]very individual shall have the right to assemble freely
with others. The exercise of this right shall be subject only to necessary restrictions
provided for by law in particular those enacted in the interest of national security,
the safety, health, ethics and rights and freedoms of others.” See also Article 21 of
the International Covenant on Civil and Political Rights.
PRINCIPLE 17 – THE RIGHT TO LEAVE ANY COUNTRY
1. Every migrant shall have the right to leave any country including their own, and to
return to their country of citizenship or, in the case of stateless migrants, of
habitual residence. This right may only be subject to restrictions provided for by
law for the protection of national security, law and order, or public health.
2. States shall issue travel documents to migrants, for the purpose of travel outside
their territory, unless compelling reasons of national security or public order
otherwise require.
3. Migrants who return to their country of citizenship or habitual residence shall not
be penalized for having left.
Explanatory Note: See Article 12 of the African Charter on Human and Peoples’
Rights states, “ (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, [or] public
health.” See also Article VI (1) of the Organization of African Unity Convention
Governing the Specific Aspects of Refugee Problems in Africas requires states to
issue “travel documents” to facilitate the mobility of migrants. See also Article 5
generally and Article 5 (4) of the Organization of African Unity Convention Governing
the Specific Aspects of Refugee Problems in Africas, which states, “[r]efugees who
voluntarily return to their country shall in no way be penalized for having left it for
any of the reasons giving rise to refugee situations.” See also Article 8 of the
International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families. See General Comment No.5 on the African Charter on
Human and People’s Rights: The Right to Freedom of Movement and Residence
(Article 12(1)). In addition, see the Preamble and Article 3 ((a) and (c)) of the African
Continental Free Trade Agreement.
PRINCIPLE 18 – THE RIGHT TO FREE MOVEMENT
1. Every migrant shall have the right to freedom of movement.
2. States must ensure that migrants are accorded the right to move freely and reside
within the borders of the State in which they are present.
Explanatory Note: See Article 12 of the African Charter on Human and Peoples’
Rights states, “(1) [e]very 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, [or] public health.” See also Article
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VI (1) of the Organization of African Unity Convention Governing the Specific Aspects
of Refugee Problems in Africas requires states to issue “travel documents” to
facilitate the mobility of migrants. See also Article 5 generally and Article 5 (4) of the
Organization of African Unity Convention Governing the Specific Aspects of Refugee
Problems in Africas, which states, “[r]efugees who voluntarily return to their country
shall in no way be penalized for having left it for any of the reasons giving rise to
refugee situations.” See also Article 8 of the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families. See
General Comment No.5 on the African Charter on Human and People’s Rights: The
Right to Freedom of Movement and Residence (Article 12(1)). In addition, see the
Preamble and Article 3 ((a) and (c)) of the African Continental Free Trade Agreement.
PRINCIPLE 19 – PASTORAL MOBILITY
1. States shall take measures to ensure the mobility of persons who follow a
pastoralist or nomadic lifestyle and whose migratory routes across international
borders, or who live in border regions.
2. States shall take all appropriate measures to ensure that every such a person has
the right to the nationality of at least one of the States to which they have an
appropriate connection.
3. States shall take all appropriate measures to preserve pastoral mobility.
4. States may introduce simple border permits to facilitate movement communities in
border areas.
Explanatory Note: See Article 12 of the Protocol to the Treaty Establishing the
African Economic Community Relating to Free Movement of Persons, Right of
Residence and Right of Establishment states “(1) States Parties shall through
bilateral or regional agreements establish measures, to identify and facilitate the
free movement of residents of border communities without compromising the
security or public health of host Member States. (2) States Parties shall endeavour
to amicably resolve any legal, administrative, security, cultural or technical
impediment likely to hamper the free movement of border communities.” See Article
15 of the Protocol on Free Movement of Persons in the Inter-Governmental Authority
for Development Region (“(1) Member States shall through bilateral or an [Inter
Governmental Authority for Development] arrangement establish mechanisms, to
facilitate the free movement of residents and communities in border areas. (2)
Member States may introduce simple border permit or border pass to movement of
residents and communities in border areas.”) Article 11 (2 (a)) of International
Covenant on Economic, Social and Cultural Rights states “[t]he States Parties to the
present Covenant, recognizing the fundamental right of everyone to be free from
hunger, shall take, individually and through international co-operation, the
measures, including specific programmes, which are needed [t]o improve methods
of production, conservation and distribution of food by making full use of technical
and scientific knowledge, by disseminating knowledge … and by developing or
reforming agrarian systems in such a way as to achieve the most efficient
development and utilization of natural resources.” See also Policy Framework for
Pastoralism in Africa: Securing, Protecting and Improving the Lives, Livelihoods and
Rights of Pastoralist Communities of 2010. Appropriate measures to preserve
pastoral mobility should include adoption of drought cycle management to mitigate
environmental factors, improving access to primary veterinary care to protect
pastoral livestock assets and recognizing communal land tenure systems to
preserve pastoral rangelands.
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PRINCIPLE 20 – EXPULSION
1. Every migrant has the right to protection against discriminatory or arbitrary
expulsion. A migrant may only be expelled by virtue of a decision taken in
accordance with the law and with observance of due process rights of migrants.
2. Except where compelling reasons of national security otherwise require, a migrant
shall be allowed to submit the reasons against expulsion and to have the migrant’s
case reviewed by, and be represented by counsel before, the competent authority,
before being expelled. The migrant shall have the right to seek a stay of the
decision of expulsion.
3. No State shall expel, return (“refouler”) or extradite a migrant, regardless of their
status, where there are substantial grounds for believing that the migrant would
be in danger of being subjected to torture or cruel, inhuman or degrading
treatment or punishment.
4. No State shall extradite, deport or otherwise remove a migrant in any manner
whatsoever where there are substantial grounds for believing that the migrant
would be subjected to a real risk of irreparable harm to a fundamental human
right, particularly the right to life.
5. A decision to expel a migrant shall be communicated to the migrant in writing in a
language they understand.
6. Migrants have a right to an effective remedy when expulsion violates human rights.
7. The mass or collective expulsion of migrants shall be prohibited. Mass expulsion
shall be that which is aimed at national, racial, ethnic or religious groups.
Explanatory Note: Since the right to equality and non-discrimination, due process
and remedy of migrants are discussed above. This explanatory note should be read
in conjunction with the explanatory notes for the principles of equality and nondiscrimination, due process, and remedy. See Article 7 of the African Charter on
Human and Peoples’ Rights. See also Article 12 (4) of the African Charter on Human
and Peoples’ Rights prohibits the expulsion of migrants except “by virtue of a
decision taken in accordance with the law.” Albeit limited to refugees, Article II (3)
of the Organization of African Unity Convention Governing the Specific Aspects of
Refugee Problems in Africas prohibits the expulsion of migrants to a territory where
their “life, physical integrity or liberty would be threatened.” See also Article 32 (1)
of the Convention on the Status of Refugees stating that “[t]he Contracting States
shall not expel a refugee lawfully in their territory save on grounds of national
security or public order.” Furthermore, Article 32(2) states “[t]he expulsion of such
a refugee shall be only in pursuance of a decision reached in accordance with due
process of law. Except where compelling reasons of national security otherwise
require, the refugee shall be allowed to submit evidence to clear himself, and to
appeal to and be represented for the purpose before competent authority or a
person or persons specially designated by the competent authority.” In addition, at
the African level, Article 12 (5) of the African Charter on Human and Peoples’ Rights
prohibits mass expulsion. See also Article 22 (1) of the International Convention on
the Rights of All Migrant Workers and Members of Their Families stating “[m]igrant
workers and members of their families shall not be subject to measures of collective
expulsion. Each case of expulsion shall be examined and decided individually.” See
Article 3 (1) of the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment notes that “[n]o State Party shall expel, return
(“refouler”) or extradite a person to another State where there are substantial
grounds for believing that he would be in danger of being subjected to torture.” In
addition, Article 3(2) of the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment prohibits the refoulement of migrants to a state
that has “a consistent pattern of gross, flagrant or mass violations of human rights.”
See Article 13 (7) of the International Convention for the Protection of All Persons
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from Enforced Disappearance, which stipulates that “Nothing in the Convention
shall be interpreted as imposing an obligation to extradite if the requested State
Party has substantial grounds for believing that the request has been made for the
purpose of prosecuting or punishing a person on account of that person’s sex, race,
religion, nationality, ethnic group, political opinions or membership of a particular
social group, or that compliance with the request would cause harm to that person
for any of these reasons. See Article 7 of the International Convention on Civil and
Political Rights and General Comment No. 20 of the Human Rights Committee
(Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or
Punishment) and General Comment No. 6 (2005) of the Committee on the Rights
of the Child on the Treatment of unaccompanied and separated children outside of
their country of origin, U.N. Doc. CRC/GC/2005/6. See also John K Modise v
Botswana, African Commission on Human and Peoples' Rights, Comm. No. 97/93
(2000).
PRINCIPLE 21 – ASYLUM
1. Every person has the right to seek and to obtain asylum in other countries in
accordance with laws of those countries, regional, and international conventions.
2. Every climate migrant has the right to seek and to obtain asylum in other countries
in accordance with laws of those countries, regional, and international
conventions.
3. Asylum seekers shall not be rejected at the frontier, returned or otherwise expelled
without being able to access a fair and efficient status determination.
4. States shall receive refugees and secure the settlement of those refugees who,
for well-founded reasons, are unable or unwilling to return to their country of origin
or nationality.
5. The grant of asylum is a peaceful and humanitarian act and shall not be regarded
as an unfriendly act by any African Union Member State.
Explanatory Note: See Article 12 (3) of the African Charter on Human and Peoples’
Rights notes that “[e] very 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.” See also Article II (1) of the Organization of African Unity
Convention Governing the Specific Aspects of Refugee Problems in Africas that
requires African states “to receive refugees and to secure settlement of those
refugees, for well-founded reasons, are unable or unwilling to return to their country
of origin or nationality.” Furthermore, Article 14(1) of the Universal Declaration of
Human Rights notes that “[e]veryone has the right to seek and to enjoy in other
countries asylum from persecution.” See also Article I of the Convention on the
Status of Refugees. See also the Preamble of the Organization of African Unity
Convention Governing the Specific Aspects of Refugee Problems in Africa Problems
in Africa, which recognizes that “the United Nations Convention of 28 July 1951, as
modified by the Protocol of 31 January 1967, constitutes the basic and universal
instrument relating to the status of refugees and reflects the deep concern of States
for refugees and their desire to establish common standards for their treatment.”
See Article II (2) and (3) of the Organization of African Unity Convention Governing
the Specific Aspects of Refugee Problems in Africas.
PRINCIPLE 22 - SPECIFIC PROTECTION CONSIDERATIONS FOR REFUGEES
1. Every refugee shall be accorded all of their rights as enshrined in African and
international refugee law. The specific circumstances of refugees shall be taken
into account in considering their special needs and tailoring protection
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intervention to ensure that such intervention is sensitive to those needs and
reflect applicable law.
2. No State shall expel or return (“refouler”) a refugee in any manner whatsoever to
the frontiers of territories where their life or freedom would be threatened on
account of their race, religion, nationality, membership of a particular social group,
or political opinion.
3. No State shall subject a refugee to measures such as rejection at the frontier,
return or expulsion which would compel them to return to or remain in a territory
where their life, physical integrity or liberty would be threatened for reasons of
race, religion, nationality, membership of a particular social group or political
opinion or owing to external aggression, occupation, foreign domination or events
seriously disturbing public order in either part or the whole of their country.
Explanatory notes: See the Organization of African Unity Convention Governing the
Specific Aspects of Refugee Problems in Africa Problems in Africa and the
Convention relating to the Status of Refugees. See also the New York Declaration
on Refugees and Migrants; and the Global Compact on Refugees. See Articles 1 and
2) of the Organization of African Unity Convention Governing the Specific Aspects of
Refugee Problems in Africa Problems in Africa which notes that no migrant shall be
“subjected by a Member State to measures such as rejection at the frontier, return
or expulsion, which would compel him to return to or remain in a territory where his
life, physical integrity or liberty would be threatened.” See also Article 33 (1) of the
Convention on the Status of Refugees notes that “[n]o Contracting State shall expel
or return (“refouler”) a refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or political opinion.”
See also Paragraph 49 of the General Comment No.5 on the African Charter on
Human and People’s Rights: The Right to Freedom of Movement and Residence
(Article 12(1)), which states that “[s]tates must respect and safeguard the principle
of non-refoulement (prohibition of return).” See also 484 Resolution on the Respect
for the Principle of Non-Refoulement of Asylum Seekers and Refugees - ACHPR/Res.
484 (EXT.OS/XXXIII) 2021.See also John K Modise v Botswana, African Commission
on Human and Peoples' Rights, Comm. No. 97/93 (2000).
PRINCIPLE 23 – NATIONALITY
1. Every migrant has the right to a nationality. States shall eradicate statelessness of
migrants.
2. Every State shall grant its nationality to a person born in its territory who would
otherwise be stateless.
3. Every State shall grant its nationality to a migrant child found abandoned in its
territory who would otherwise be stateless.
4. Every child of migrants has the right to acquire the nationality of either or both
parents.
5. Every migrant has the right to retain their nationality or acquire the nationality of
their spouse.
6. Migrants shall not be arbitrarily deprived or denied recognition of their nationality
nor denied the right to change their nationality.
7. States shall provide certificate of nationality to naturalized migrants.
Explanatory Note: See Article 1 of the 1961 Convention on the Reduction of
Statelessness notes that a “State shall grant its nationality to a person born in its
territory who would otherwise be stateless. Such nationality shall be granted: (a) at
birth, by operation of law, or upon application being lodged with the appropriate
30
authority, … in the manner prescribed by the national law.” See Article 6 (4) of the
African Charter on the Rights and Welfare of the Child stating that “[s]tates Parties
to the present Charter shall undertake to ensure that their Constitutional legislation
recognize the principles according to which a child shall acquire the nationality of
the State in the territory of which he has been born if, at the time of the child’s birth,
he is not granted nationality by any other State in accordance with its laws.” Article
6 (g) of the Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa guarantees married women “the right to retain her
nationality or to acquire the nationality of her husband.” Furthermore, Article 6 (h)
of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights
of Women in Africa states parents “shall have equal rights, with respect to [the]
nationality of their children.” See also Article 6(3) of the Draft Protocol to the African
Charter on Human and Peoples’ Rights on the Specific Aspects of the Right to a
Nationality and the Eradication of Statelessness in Africa states “[a] State Party shall
facilitate in law the possibility of acquisition of its nationality by: (a)[t]he child of a
person who has or who acquires its nationality; (b) [a] child born in the territory of
the State to a non-national parent who is habitually resident there; (c) [a] person
who was habitually resident in its territory as a child and who remains so resident
at majority; (d) [a] child in the care of a national of the State; (e) [t]he spouse of a
national; (f) [a] stateless person; [and] (g) [a] refugee.” See Article 12, the Draft
Protocol to the African Charter on Human and Peoples’ Rights on the Specific
Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa
on issuing nationality or naturalization certificates. See Paragraph 96 of the African
Committee of Experts General Comment on Article 6 of the African Charter on the
Rights and Welfare of the Child noting the importance of “ensuring that children
found abandoned in the territory of a State Party (foundlings) acquire the nationality
of that State. Such provisions are important to ensure that children abandoned by
their parents, or whose parents have died, or who are separated from their parents
in case of war or natural disaster, also acquire a nationality.”
PRINCIPLE 24 – CIVIL AND POLITICAL LIFE
1. Every migrant has the right to participate in the civil and political life of the
migrant’s community and in the conduct of public affairs.
2. This right shall include the freedom to participate in public affairs of the migrant’s
State of origin and to vote and to be elected at elections of that State, in
accordance with its laws.
Explanatory Note: See Article 13 (1) of the African Charter on Human and Peoples’
Rights, which notes that “[e]very citizen shall have the right to participate freely in
the government of his country, either directly or through freely chosen
representatives in accordance with the provisions of the law.”
PRINCIPLE 25– THE RIGHT TO PROPERTY
Every migrant has the right to property. It may only be encroached upon in the
interest of public need or in the general interest of the community and in
accordance with applicable laws.
Explanatory Note: See Article 14 of the African Charter on Human and Peoples’
Rights states “[t]he right to property shall be guaranteed. It may only be encroached
upon in the interest of public need or in the general interest of the community and
in accordance with the provisions of appropriate laws.” See also Article 17 of the
Universal Declaration of Human Rights which stipulates that: (1) “Everyone has the
right to own property alone as well as in association with others. (2) “No one shall
be arbitrarily deprived of his property.”
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PRINCIPLE 26 – LABOUR
1. Every migrant has the right to be free from slavery, servitude, or forced or
compulsory labour.
2. Migrant workers shall be entitled to treatment as favorable as that accorded to
nationals with respect to labour conditions and employment.
3. Migrant workers have the right to social security and shall be entitled to social
protection schemes, including to pension schemes, in a manner as favorable as
that accorded to nationals.
4. Migrant workers shall have the right to form and participate in trade unions,
including the right to be elected for trade union leadership.
5. Migrant workers shall have the right to work under equitable, decent and
satisfactory conditions and shall receive equal pay for equal work.
6. Every migrant shall be entitled to fair and ethical recruitment that safeguards
conditions for decent work.
Explanatory Note: See Article 15 of the African Charter on Human and Peoples’
Rights, which notes that “[e]very individual shall have the right to work under
equitable and satisfactory conditions, and shall receive equal pay for equal work.”
See also Article 4 of the Universal Declaration of Human Rights, which states, “[n]o
one shall be held in slavery or servitude; slavery and the slave trade shall be
prohibited in all their forms.” See also Paragraph 51 General Comment No.5 on the
African Charter on Human and People’s Rights: The Right to Freedom of Movement
and Residence (Article 12(1)), which states “[m]igrant workers and their families
have the right to move freely within the borders of the state of employment. As such,
states must ensure conditions that facilitate the mobility of migrant workers and
their families within its borders. States must facilitate documentation process for
the residence of migrant workers and their families. States must ensure that
employers and employment firms respect international labour standards relevant to
the enjoyment of this right by migrant workers. Also, states must ensure access to
social services that ease movement and support programmes that build societal
cohesion and create conditions for the exercise of this right by migrant workers and
their families. States must protect migrant workers and their families from arbitrary
expulsion and refrain from mass expulsion of migrants from their territories.” See
also Article 7, 10, and 12 of the Southern African Development Community Protocol
on Employment and Labour.
PRINCIPLE 27 – HEALTH
1. Every migrant has the right to enjoy the best attainable state of physical and
mental health.
2. States shall take all necessary measures to reduce maternal mortality, stillbirthrate, and infant mortality for the healthy development of the migrant child and
mother.
3. States shall take all necessary steps for the improvement of environmental and
industrial hygiene of migrants.
4. Every migrant has the right to enjoy the benefits of scientific progress and its
application.
5. States shall take all necessary measures to provide migrants access for
preventative, treatment and control of epidemic, endemic, occupational, and other
diseases.
32
6. States shall take all necessary measures to protect the health of migrant persons,
including equal access to preventive, curative, and palliative health services, and
the right to an adequate standard of living and to the underlying determinants of
health.
Explanatory Note: See Article 16 of the African Charter on Human and Peoples’
Rights, which notes that “(1) [e]very individual shall have the right to enjoy the best
attainable state of physical and mental health. (2) State Parties to the present
Charter shall take the necessary measures to protect the health of their people and
to ensure that they receive medical attention when they are sick.” See Article 12 (2)
of the International Covenant on Economic, Social and Cultural Rights, which states,
“[t]he steps to be taken by the States Parties to the present Covenant to achieve
the full realization of this right shall include those necessary for: (a) [t]he provision
for the reduction of the stillbirth-rate and of infant mortality and for the healthy
development of the child; (b) [t]he improvement of all aspects of environmental and
industrial hygiene; (c) [t]he prevention, treatment and control of epidemic, endemic,
occupational and other diseases; (d) [t]he creation of conditions which would assure
to all medical service and medical attention in the event of sickness.” See also
Article 15(1)(b) of the International Covenant on Economic, Social and Cultural
Rights, which recognizes the right of everyone “to enjoy the benefits of scientific
progress and its application.”
PRINCIPLE 28 –ADEQUATE STANDARD OF LIVING
1. States shall recognize the right of every migrant and their family to an adequate
standard, including adequate food, clothing, and housing, and to the continuous
improvement of living conditions.
2. States shall recognize the fundamental right of everyone, including migrants to be
free from hunger, shall take measures to improve equitable and nutritious food
production and distribution.
Explanatory Note: See Article 11 of the of the International Covenant on Economic,
Social and Cultural Rights.
PRINCIPLE 29 – EDUCATION
1. Migrants and their children have the right to education.
2. States shall make primary education free, available, and compulsory for migrant
children.
3. States shall encourage the development of secondary education and shall make
it accessible to all migrants, on the basis of equal treatment with nationals.
4. States shall make higher education equally accessible to all migrants, on the basis
of capacity.
Explanatory Note: See Article 17 (1) of the African Charter on Human and Peoples’
Rights, which notes, “[e]very individual shall have the right to education.” See also
Article 26(1) of the Universal Declaration of Human Rights. See also Article 13(1) of
the International Covenant on Economic, Social and Cultural Rights. Furthermore,
Article 11 (3) of the African Charter on the Rights and Welfare of the Child states,
“State Parties to the present Charter shall take all appropriate measures with a view
to achieving the full realization of this right and shall in particular: (a) provide free
and compulsory basic education; (b) encourage the development of secondary
education in its different forms and progressively make it free and accessible to all;
33
[and] (c)make higher education accessible to all on the basis of capacity and ability
by every appropriate means.”
PRINCIPLE 30 – CULTURE
1. Every migrant has the right to freely take part in the cultural life of their
communities, including to enjoy the migrant’s own culture(s), and to use the
migrant’s own language(s), either individually or in community with others, in
public or private.
2. States shall not impede, but should encourage and support, migrants’ efforts to
preserve their cultures by means of educational and cultural activities, including
the preservation of minority languages and knowledge related to a migrant’s
culture. Nothing in this Principle shall mean that States may not adopt measures
to promote acquisition and knowledge of the majority, national, or official language
or languages of the State.
3. States should take appropriate steps to promote public awareness and
acceptance of the cultures of migrants by means of educational and cultural
activities, including minority languages and knowledge related to the migrant’s
own culture.
Explanatory Note: See Article 17 (2) of the African Charter on Human and Peoples’
Rights, which notes, “[e]very individual may freely, take part in the cultural life of his
community.” See also Article 27(1) of the Universal Declaration of Human Rights,
which states, “[e]very one has the right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement and its
benefits.”
PRINCIPLE 31 – FAMILY
1. Every migrant family is entitled to protection by the State.
2. States shall take all appropriate measures to facilitate the reunification of migrant
family members with citizens or non-citizens, including in decisions about
migration status.
3. States shall grant derivative immigration status and timely admission to family
members of migrants.
Explanatory Note: See Article 18 (1) of the African Charter on Human and Peoples’
Rights, which notes that “[t]he family … shall be protected by the State.” See also
Article 16 (3) of the Universal Declaration of Human Rights and Article 23 of the
International Covenant on Civil and Political Rights. See also General
Recommendation No. 26 on women migrant workers of the U.N. Committee on the
Elimination of Discrimination against Women (CEDAW). U.N. Doc
CEDAW/C/2009/WP.1/R.
PRINCIPLE 32 – THE RIGHT TO FAVOURABLE ENVIRONMENT
1. All migrants shall have the right to a general satisfactory environment
favourable to their development, including climate resilient development.
2. States shall recognise the adverse and extra-territorial effects of climate change
and environmental degradation as important drivers of displacement and
climate migration and adopt measures to mitigate climate change.
34
3. States shall develop adaptation and resilience strategies to sudden-onset and
slow-onset disasters, the adverse effects of climate change, and
environmental degradation, such as desertification, land degradation,
drought, and sea level rise, reducing climate risks and vulnerability and taking
into account the need to create pathways for migration.
Explanatory Note: See Article 24 of the African Charter on Human and Peoples’
Rights, which notes, “[a]ll peoples shall have the right to a general satisfactory
environment favourable to their development.” See Action 8 of the Africa Climate
Mobility Initiative – Agenda for Action that calls for “nature positive development.”
See Article 3(c) of the Treaty Establishing the Community of Sahel-Saharan States
notes that the sub-regional organization will focus on “combating desertification,
drought and climate change through the preservation of natural resources and
research in the field of renewable energies.” Furthermore, Article 16 (1) of the
Protocol on Free Movement of Persons in the Inter-Governmental Authority for
Development Region guarantees migrants moving “in anticipation of, during or in
the aftermath of disaster” entry into the territory of another member state to
safeguard their right to favourable environment. Climate resilient development
integrates adaptation measures and their enabling conditions (Section C) with
mitigation to advance sustainable development for all. Climate resilient
development involves questions of equity and system transitions in land, ocean and
ecosystems; urban and infrastructure; energy; industry; and society and includes
adaptations for human, ecosystem and planetary health. Pursuing climate resilient
development focuses on both where people and ecosystems are co-located as well
as the protection and maintenance of ecosystem function at the planetary scale.
Intergovernmental Panel on Climate Change, Sixth Assessment Report: Impacts,
Adaptation and Vulnerability. See also Article 11 (2 (a)) of the International Covenant
on Economic, Social and Cultural Rights states “[t]he States Parties to the present
Covenant, recognizing the fundamental right of everyone to be free from hunger,
shall take, individually and through international co-operation, the measures,
including specific programmes, which are needed [t]o improve methods of
production, conservation and distribution of food by making full use of technical and
scientific knowledge, by disseminating knowledge … and by developing or reforming
agrarian systems in such a way as to achieve the most efficient development and
utilization of natural resources.” See also U.N. General Assembly Resolution
A/76/L.75 on the human right to a clean, healthy and sustainable environment;
General Comment 36 on the Right to Life of the Human Rights Committee, U.N. Doc.
CCPR/C/GC/36; Report of the Special Rapporteur of the Human Rights Council on
the issue of human rights obligations relating to the enjoyment of a safe, clean,
healthy and sustainable environment, U.N. Doc. A/HRC/31/52.
PRINCIPLE 33 – EFFECTIVE REMEDY
1. Every migrant has the right to an effective remedy and to adequate, effective and
comprehensive reparation for acts violating the rights guaranteed to the migrant
by the relevant domestic, regional, and international law, including the rights and
freedoms recognized herein.
2. States shall coordinate to ensure migrants access to justice across borders.
Explanatory Note: The right to an effective remedy is recognized under Article 7 of
the African Charter on Human and Peoples’ Rights. Similarly, at the international
level, Article 14 of the International Covenant on Civil and Political Rights states
“[a]ll persons shall be equal before the courts and tribunals.” See also Paragraph
48 of the General Comment No. 5 on the African Charter on Human and People’s
Rights: The Right to Freedom of Movement and Residence (Article 12(1)), which
notes that “indefinite, and any restrictions or conditions [on freedom of movement]
35
must be subject to regular review by a judicial authority.” See Article 83(a) of the
International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families, which provides access to remedy with a specific focus
on migrant workers and their families. See also General Comment No. 4 on the
African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of
Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article
5).
PRINCIPLE 34 – DIPLOMATIC PROTECTION AND CONSULAR ASSISTANCE
1. States shall provide diplomatic protection and consular assistance for all its
nationals, irrespective of their migratory status, dual or multiple citizenship.
2. The State of habitual residence shall provide diplomatic protection and consular
assistance for migrants who are stateless.
3. States should harmonize market regulations and increase interoperability of
remittance infrastructure.
Explanatory Note: See Article 36 of the Vienna Convention on Consular Relations
and the Objective 20 of the Global Compact for Safe, Orderly and Regular Migration.
Article 9 if the ILO Convention No 97 states that “Each Member for which this
Convention is in force undertakes to permit, taking into account the limits allowed
by national laws and regulations concerning export and import of currency, the
transfer of such part of the earnings and savings of the migrant for employment as
the migrant may desire.” The ILO’s Multilateral Framework on Labour
Migration highlights that “the contribution of labour migration to employment,
economic growth, development and the alleviation of poverty should be recognized
and maximized for the benefit of both origin and destination countries” (Principle
15) –and among the guidelines that may prove valuable in giving practical effect to
the above principle (15.5) providing incentives to promote the productive
investment of remittances in the countries of origin; (15.6.) reducing the costs of
remittance transfers, including by facilitating accessible financial services, reducing
transaction fees, providing tax incentives and promoting greater competition
between financial institutions.
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PART 4: CONFLICT & EMERGENCIES
PRINCIPLE 35 – PROTECTION OF MIGRANTS IN ARMED CONFLICT
1. Migrants caught in situations of armed conflict are protected by international
humanitarian and by human rights law. In particular, States shall ensure migrants
caught in situations of armed conflict are protected under rules of international
humanitarian law, including but not limited to the prohibition of the use of
starvation as a method of warfare, or depriving civilians of objects indispensable
to their survival; the prohibition of violence to life and person, in particular murder
of all kinds, mutilation, cruel treatment, and torture; the taking of hostages,
outrages upon personal dignity, in particular humiliating and degrading treatment.
Rape and other forms of sexual violence are absolutely prohibited.
2. States shall recognize the specific vulnerabilities of migrants caught in armed
conflict and take feasible measures to ensure their protection, including through
the provision of humanitarian assistance.
3. States shall respect and ensure respect for the prohibition of forced displacement for
reasons related to armed conflict, including displacement across international borders
and the displacement of migrants caught in armed conflict.
4. During the conduct of hostilities, migrants caught in armed conflict and thier belongings
are protected from attack. Parties to the conflict must respect all rules related to the
conduct of hostilities, including the principles of distinction, proportionality and
precaution.
5. When sites or settlements are established as a temporary measure to shelter
migrants or facilitate the provision of emergency assistance, they are or are made
of civilian objects under international humanitarian law, entitled to protection
against direct attack unless and for such time as such objects become military
objectives. As such, States must preserve their civilian and humanitarian
character.In situations of armed conflict, States shall take all feasible measures
to account for all migrants reported missing as a result of armed conflict and to
provide their family members with information on their fate; to search for, collect
and evacuate the dead, recording all available information before disposing of
their remains; and to mark the location of graves, with a view to identification.
6. States shall ensure that no migrant child take a direct part to hostilities and that
no migrant child is recruited or used in hostilities.
Explanatory Note: See Article 22 of the African Charter on the Rights and Welfare
of the Child, which states “(1) States Parties to this Charter shall undertake to
respect and ensure respect for rules of international humanitarian law applicable in
armed conflicts which affect the child. (2) States Parties to the present Charter shall
take all necessary measures to ensure that no child shall take a direct part in
hostilities and refrain in particular, from recruiting any child. (3) States Parties to the
present Charter shall, in accordance with their obligations under international
humanitarian law, protect the civilian population in armed conflicts and shall take
all feasible measuresto ensure the protection and care of children who are affected
by armed conflicts. Such rules shall also apply to children in situation of internal
armed conflicts, tension and strife. See General Comment on Article 22 of the
African Charter on the Rights and Welfare of the Child: Children in Situations of
Conflict. See also Article 11 of the Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa stating “(1) States Parties
undertake to respect and ensure respect for the rules of international humanitarian
law applicable in armed conflict situations, which affect the population, particularly
women. (2) States Parties shall, in accordance with the obligations incumbent upon
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them under international humanitarian law, protect civilians including women,
irrespective of the population to which they belong, in the event of armed conflict.
(3) States Parties undertake to protect asylum seeking women, refugees, returnees
and internally displaced persons, against all forms of violence, rape and other forms
of sexual exploitation, and to ensure that such acts are considered war crimes,
genocide and/or crimes against humanity and that their perpetrators are brought to
justice before a competent criminal jurisdiction. (4) States Parties shall take all
necessary measures to ensure that no child, especially girls under 18 years of age,
take a direct part in hostilities and that no child is recruited as a soldier.” See also
Article 12 of the Protocol to the African Charter on Human and Peoples’ Rights on
the Rights of Persons with Disabilities in Africa (calling on African states to ensure
protection of persons with disabilities in armed conflict).
PRINCIPLE 36 – PROVISION OF HUMANITARIAN ASSISTANCE
1. States shall recognize the specific vulnerabilities of migrants caught in armed
conflict or other emergency situations and shall provide humanitarian assistance
to migrants caught in armed conflict or other emergency situations, regardless of
their migration status.
2. In situations of armed conflict, impartial humanitarian organizations have a right
to offer their services in order to carry out humanitarian activities, in particular when
the needs of the migrants affected by the armed conflict are not fulfilled.
Explanatory Note: The purpose of humanitarian assistance is to save lives, alleviate
suffering, and maintain the human dignity of all persons, including migrants,
regardless of their status. See generally the Migrants in Countries in Crisis Initiative,
Guidelines to Protect Migrants in Countries Experiencing Conflict or Natural Disaster
(2016). See also the decision on the creation of the Specialised Technical
Committee (STC) on Migration, Refugees and Internally Displaced Persons.
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PART 5: COOPERATION & IMPLEMENTATION
PRINCIPLE 37 – COOPERATION OF AFRICAN UNION MEMBER STATES
1. States shall create safe migration corridors and routes to enable free movement
of persons.
2. States shall cooperate to prevent, suppress and punish trafficking of migrants.
3. States shall cooperate to prevent the smuggling of migrants by land, sea, and air.
4. States should cooperate in saving lives and preventing the risk of death and injury
of migrants.
5. States shall cooperate to establish, enable and support prompt and effective
search and rescue operations and ensure prompt assistance is provided to all
migrants in distress at land and at sea.
6. States shall cooperate to facilitate return and readmission of migrants in
conditions and safety and dignity.
7. States shall cooperate to provide migrants diplomatic protection and consular
assistance through bilateral and multilateral agreements for the mutual provision
of such diplomatic protection and consular assistance.
8. States as well all the African Union and its Commission, and Regional Economic
Communities shall in the spirit of African solidarity cooperate to implement these
Guiding Principles.
Explanatory Note: The ACHPR has affirmed the importance of coordination in the
context of missing migrants in its Resolution 486. ACHPR/Res. 486 (EXT.OS/XXXIII)
2021. See also Article 2 of the Protocol to Prevent, Suppress and Punish Trafficking
in Persons, Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime. See also Articles 2 and 7 of the
Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the
United Nations Convention against Transnational Organized Crime. See Article 37
of the Vienna Convention on Consular Relations (concerning the obligation to inform
the state of the nationality of a person deceased outside their country of nationality.)
See Article II (4) of the Organization of African Unity Convention Governing the
Specific Aspects of Refugee Problems in Africas (calling for cooperation in hosting
migrants).
PRINCIPLE 38 – SAVING CLAUSE
1. These Guiding Principles shall not be construed as affecting any provisions more
protective to migrants which may be contained in the law of African Union
Member States now or hereafter in force, or may be contained in any other
convention, treaty, or agreement now or hereafter in force.
2. States should apply the most favorable interpretation to guarantee human and
peoples’ rights, and the most restrictive interpretation to any limitation on those
rights. Where two or more interpretations of these Guiding Principles are
applicable to a migrant’s particular case or situation, States are obligated to
apply the most favorable, offering the broadest protection to the rights of all
migrants. States should apply the most favorable interpretation to guarantee
human and peoples’ rights, and the most restrictive interpretation to any
limitation on those rights.
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Explanatory Note: See Principle 3 of the Inter-American Principles on the Human
Rights of All Migrants, Refugees, Stateless Persons, and Victims of Human
Trafficking. See also the Preamble of the Convention on the Status of Refugees,
which extends to migrants “the widest possible exercise of …fundamental rights and
freedoms” in conjunction with Article 31(1) of the Vienna Convention on the Law of
Treaties.
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