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PILOT STUDY ON MIGRATION
AND RESPECT FOR HUMAN RIGHTS
FOCUS ON THE RESPONSES PROVIDED BY NIGER
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PILOT STUDY ON MIGRATION
AND RESPECT FOR HUMAN RIGHTS
FOCUS ON THE RESPONSES PROVIDED BY NIGER
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AFRICAN UNION COMMISSION
31 Bijilo Annex Layout, Kombo North District
Western Region P.O. Box 673 Banjul
The Gambia
Tel: (220) 441 05 05, 441 05 06
Fax: (220) 441 05 04
E-mail: au-banjul@africa-union.org
© ACHPR 2019. All rights reserved.
Credit Cover photo: Zohra Bensemra/Reuters/Ritzau Scanpix
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Warning:
•T
his report was prepared in French and translated into English, Portuguese and
Arabic.
•W
ebsites cited in the footnotes were consulted during the study period; certain
websites may no longer be accessible with time.
•S
ome information was obtained from documents written in English; should there
be difficulties in understanding the translation, references have been provided in
the footnotes and will enable the reader to find the original document.
Table of Contents
Foreword ................................................................................................................................. 7
Acronyms and abbreviations .................................................................................................... 9
1.
Introduction .................................................................................................................10
1.1
Background and Rationale ................................................................................................ 10
1.2
Objectives of the study...................................................................................................... 13
1.3
Methodology and scope of the study ............................................................................... 14
1.4
Difficulties encountered in connection with the study ..................................................... 17
1.5
Study Plan .......................................................................................................................... 17
2.
General context for the protection of the fundamentaL rights of migrants in Niger ........19
2.1
Overview of migration trends in Africa ............................................................................. 19
2.2
Context of migrations in the ECOWAS region ................................................................... 20
2.3
Context of migration in Niger ............................................................................................ 22
3.
Violations of migrants’ fundamentaL rights ...................................................................28
3.1
The Right to non-discrimination and equality (Articles 2 and 3 of the African Charter) .. 28
3.2
The Right to Life (Article 4 of the African Charter) ............................................................ 29
3.3
Right to respect for human dignity (Article 5 of the African Charter) .............................. 34
3.4
The right to liberty and the security of the person (Article 6 of the African Charter) ...... 37
3.5
Right to have his cause heard (Article 7 of the African Charter)....................................... 39
3.6
Right of access to information and freedom of expression (Article 9 of the African
Charter) ......................................................................................................................................... 40
3.7
Right to freedom of movement (Article 12 of the African Charter).................................. 41
3.8
Right to property (Article 14 of the African Charter) ........................................................ 43
3.9
Right to work (Article 15 of the African Charter) .............................................................. 44
3.10
Right to health (Article 16 of the African Charter) ............................................................ 45
3.11
Right to education (Article 17 of the African Charter) ...................................................... 46
3.12
Protection of the family and vulnerable groups (Article 18 of the African Charter)......... 47
3.12.1
Protection of the family ............................................................................................ 47
3.12.2
Protection of the child ............................................................................................... 47
3.12.3
Protection of women and girls .................................................................................. 49
3.12.4
Protection of persons with disabilities ...................................................................... 51
3.12.5
Protection of the elderly ........................................................................................... 51
4
3.13 Right to freely dispose of natural resources, right to economic, social and cultural
development, right to peace and security, right to a general satisfactory environment favourable
to their development. (Articles 21, 22, 23, 24 of the African Charter) ......................................... 51
4.
Role and ResponsIbilitIes of Public authoritIes in respecting and protecting Migrants’
rights ....................................................................................................................................53
4.1
Overview of the profile of perpetrators of acts violating the fundamental rights of
migrants......................................................................................................................................... 53
4.2
The specific role played by ISF and DSF in acts likely to violate the fundamental rights of
migrants......................................................................................................................................... 54
4.2.1
Violations of the human rights of migrants due to the actions of ISF and DSF ........ 54
4.2.2
Violations of the human rights of migrants due to the inaction of ISF and DSF ....... 55
4.2.3
rights
Causes of the implication of ISF and DSF in violations of migrants’ fundamental
................................................................................................................................... 56
5.
Legal framework for the protection of the fundamental rights of migrants ....................58
5.1
List of main instruments .................................................................................................... 58
5.2
Content of the key instruments ........................................................................................ 60
5.2.1
Content of the supranational instruments applicable in Niger ................................. 60
5.2.2
Content of the main national instruments ................................................................ 64
5.3
6.
Analysing the content of the legal framework .................................................................. 67
Institutional framework for the protection of migrants’ rights in Niger ..........................70
6.1
Overview of the institutional framework .......................................................................... 70
6.1.1
State structures specialized in migration .................................................................. 70
6.1.2
Key Ministries ............................................................................................................ 73
6.1.3
The National Human Rights Commission (CNDH) ..................................................... 73
6.1.4
The High Authority to Combat Corruption and Related Offences (HALCIA) ............. 74
6.1.5
The National Agency for Legal and Judicial Assistance (ANAJJ) ................................ 74
6.1.6
Services of the Internal Security Forces and the Defence and Security Forces ........ 74
6.1.7
The key supranational organisations ........................................................................ 76
6.1.8
The main sub-regional organisations and those resulting from bilateral or
multilateral cooperation ........................................................................................................... 79
6.1.9
6.2
NGOs.......................................................................................................................... 80
Analysing the institutional framework .............................................................................. 80
7.
Redress mechanisms in case of violation of migrants’ rights ..........................................83
8.
Strategic framework to fight against the violation of the fundamental rights of migrants ..
....................................................................................................................................84
5
9.
Avenues of reflection and recommendations ................................................................86
9.1
Avenues of reflection for the improved protection of migrants’ rights in Niger .............. 86
9.2
Recommendations ............................................................................................................ 87
10.
9.2.1
To State actors of Niger ............................................................................................. 87
9.2.2
To non-State actors intervening in Niger, particularly NGOs .................................... 89
9.2.3
Niger’s financial partners .......................................................................................... 89
9.2.4
State actors of temporary residence countries ......................................................... 89
9.2.5
To migrants’ countries of origin and ECOWAS .......................................................... 90
9.2.6
To the African Union ................................................................................................. 90
Conclusion ...................................................................................................................91
6
FOREWORD
The pilot study on "Migration and Respect for Human Rights: Focus on the Responses
Provided by Niger" was adopted by the African Commission on Human and Peoples' Rights
at its 26th Special Session held from 16 to 30 July 2019 in Banjul, The Gambia.
This study was conducted under Article 45 (1) (a) of the African Charter on Human and
Peoples' Rights, which, inter alia, authorizes the African Commission on Human and
Peoples' Rights (the Commission) to "undertake studies and research on African problems
in the field of human and peoples' rights". This study primarily seeks to demonstrate that it
is not migration, a natural phenomenon, a manifestation of freedom of movement
recognized by international human rights law, that is problematic; rather, it is the serious
violations of human dignity faced by migrants during their journey and identified by the
Commission, which are of concern to us. Migrants, whether regular or not, continue to enjoy
their human dignity and are entitled to be treated as such.
Over its years of operation, the Commission has been involved in the protection of migrants'
rights through various actions, including the adoption of several resolutions and
declarations, organization and participation in training and awareness-raising workshops.
To further promote respect for migrants' rights, the Commission decided in 2018, through
the adoption of Resolution 404 on the need to undertake a study on human rights violations
against migrants - ACHPR/Res. 404 (LXII) 2018, to conduct a series of studies on migration
and human rights compliance. These studies will provide all stakeholders with a good
knowledge of the realities on the ground so as to adopt policies, decisions and undertake
actions more focused on respect for migrants' rights.
In accordance with Resolution 404, these studies will be carried out gradually. The limited
resources and the need to undertake in-depth studies require the Commission to confine its
scope to a few countries in the different regions of Africa whose profiles provide more
content to be examined. The objective is therefore not to put any particular country in the
dock but, taking the example of certain countries, to enlighten all stakeholders about the
human rights situation of migrants, to identify areas for reflection and recommendations to
be considered and implemented. This pilot study, which focuses on the case of Niger, is the
first in a series of studies that the Commission hopes to undertake with the support and
assistance of partners.
This pilot study, which is the outcome of a quantitative and qualitative survey, looks at the
human rights situation of migrants in Niger, which is considered as both a country of
departure and a transit country for migrants. In addition to the issue of human rights
violations and responsibilities in this regard, the study analyses the regulatory, institutional
and strategic framework that has been put in place to respect the rights of migrants in Niger.
Even if migrants' countries of temporary residence (notably Algeria and Libya) could not be
visited due to inadequate means, the study does not overshadow the migrants' accounts of
their experiences in these countries. The pilot study also has the particularity of emphasizing
the responsibilities of the Internal Security Forces and the Defence and Security Forces in
7
protecting the rights of migrants. Following the analysis of the data and facts, the study
identifies avenues for reflection and proposes recommendations to be considered by all
stakeholders intervening in the field of migration.
This document, which the Commission provides to stakeholders involved in the promotion
and protection of human rights, complements other studies on migration, most of which do
not however focus on the fundamental rights of migrants. Even though the study highlights
the example of Niger, the information collected can be useful for many other States, since
some of the elements relating to the context and challenges are often common. States,
National Human Rights Institutions and all human rights defenders are urged to use it to
better protect the rights of migrants. The protection of migrants' rights is "Our common
responsibility", so the study will only achieve the expected outcomes if it is widely
disseminated and used by all stakeholders involved in the defense of human rights.
We would like to seize this opportunity to thank our fellow commissioners for their
contribution to the improvement of the study and to the Secretariat of the Commission for
its assistance.
Our recognition and gratitude also go to stakeholders who provided their technical support.
We would particularly like to thank the Danish Institute of Human Rights (DIHR), a longstanding partner of the Commission whose active involvement and its personnel’s technical
support in the conduct of this study were decisive. Our gratitude also go to all State and
non-State actors of Niger who made a significant contribution by sharing their experience
during the national consultations for the preparation of the study as well as those who
agreed to respond to the questionnaires and provide information within the framework of
this study. We also thank the consultants Koné/Tapsoba Josiane Somdata and Mossi
Boureima whose technical involvement throughout the process made it possible to
effectively complete the study. We would like to express gratitude to Dr. Stéphanie Lagoutte
(Researcher at DIHR), for her advice on the research methodology.
We look forward to the continued support of our partners to undertake future studies, with
the conviction that this pilot study and those that will follow constitute key tools for
migration management based on the realities of the field and, especially, based on human
rights.
Maya Sahli Fadel
Maria Teresa Manuela
Special Rapporteur on
Refugees, AsylumSeekers, Migrants and
Internally-Displaced
Persons
Special Rapporteur on
prisons, conditions of
detention and police
action in Africa
8
ACRONYMS AND ABBREVIATIONS
AFRICAN CHARTER: African Charter on Human and Peoples’ Rights
ANLTP: National Agency to Combat Trafficking in Persons
AU: African Union
CICE/DPNM: Interministerial Committee in charge of the Preparation of the
National Migration Policy Paper
CNCLTP: National Coordination Commission to Combat Trafficking in Persons
CNDH: National Human Rights Commission
CNE: National Commission for Refugee Status Eligibility
CODDHD: Collective of Human Rights and Democracy Defense Organizations
COMMISSION: African Commission on Human and Peoples' Rights
DCIM: Irregular Immigration Control Directorate
DSF: Defence and Security Forces
ECOWAS: Economic Community of West African States
EU: European Union
GIZ: German International Development Cooperation Agency (Deutsche
Gesellschaft für Internationale Zusammenarbeit - GIZ)
ISF: Internal Security Forces
HALCIA: High Authority to Combat Corruption and Related Offences
IOM: International Organization for Migration
HGN: High Command of the National Gendarmerie
HGNN: High Command of the National Guard of Niger
JMED: Youth, Childhood, Migration and Development (JMED)
NGO: Non-Governmental Organization
OCHA: United Nations Office for the Coordination of Humanitarian Affairs
OHCHR: United Nations Office of the High Commissioner for Human Rights
OAU: Organization of African Unity
Resolution 404: Resolution 404 on the need to undertake a study on human rights
violations against migrants - ACHPR/Res. 404 (LXII) 2018
UNDP: United Nations Development Programme
UNHCR: United Nations High Commission for Refugees
UNICEF: United Nations Children's Fund
UNMIL: United Nations Support Mission in Libya
UNODC: United Nations Office on Drugs and Crime
UPR: Universal Periodic Review
WFP: World Food Programme
9
1. INTRODUCTION
At its 63rd Ordinary Session held from 24 October to 13 November 2018, in Banjul,
The Gambia, the African Commission on Human and Peoples' Rights (the
Commission) adopted Resolution 404 on the need to undertake a study on human
rights violations against migrants - ACHPR/Res. 404 (LXII) 20181 (Resolution 404).
This Resolution is in line with Article 45 (1) (a) of the African Charter on Human and
Peoples' Rights (the African Charter), which authorizes the Commission to collect
documentation and carry out studies and research on African problems in the field
of human and peoples' rights.
Through this Resolution, the Commission undertook to study human rights
violations against migrants in Africa. It entrusted the task to the Special Rapporteur
on Refugees, Asylum-Seekers, Migrants and Displaced Persons in Africa and the
Special Rapporteur on Prisons, Conditions of Detention and Police Action in Africa.
The Commission also decided to undertake the study gradually. Indeed, given the
limited resources and for practical reasons, it considered it necessary to concentrate
the field studies on certain countries that are representative of the different regions
of Africa.
The Republic of Niger, a West African State and party to the African Charter since
15 July 19862 is the country selected for the Pilot Study, the first in a series of studies
to be undertaken. This pilot study will serve as a benchmark for subsequent studies.
1.1
Background and Rationale
The decision to undertake the study on human rights violations against migrants
was the result of a combination of several alarming findings made by the
Commission and noted on several occasions, including through resolutions and
declarations.
Already in 2007, in Resolution 114 on migration and human rights 3, the Commission
had, inter alia, noted the extent of violations of obligations and rights arising from
the African Charter (right to life, freedom of movement, obligation to protect
civilians, right to non-discrimination, etc.), perpetrated during migration and urged
States parties to ratify and implement the relevant international and regional
instruments.
On 3 May 2015, in the Declaration on the Deterioration of the Situation of African
Migrants in the Mediterranean4, the Commission underscored its deep concern
about the deterioration of the situation of African migrants and, in particular, the
death of several of them in the Mediterranean. In that Declaration, the Commission
1 http://www.achpr.org/fr/sessions/63rd_os/resolutions/404/
2 African Union: List of countries that have signed, ratified/acceded to the African Charter on Human and
Peoples' Rights, available at : https://au.int/sites/default/files/treaties/36390-slafrican_charter_on_human_and_peoples_rights_2.pdf
3 http://old.achpr.org/francais/resolutions/resolution114_fr.html
4 http://www.achpr.org/fr/news/2015/05/d176/
10
indicated that, according to information received by that date, on average (1) one
person died every hour in an attempt to illegally reach the European coasts across
the Mediterranean. The fact that several unaccompanied children were among the
victims was also deplored.
In 2016, the Commission adopted Resolution 333 on the situation of migrants in
Africa 5. In this resolution, the various human rights concerns related to migration
were highlighted in a more comprehensive manner. These include information on
human casualties in the Mediterranean, the vulnerability of migrant women and
children, trafficking in persons6 and sexual exploitation of migrants, the lack of
research into alternatives to the detention of irregular migrants, detention in
unsustainable conditions and the exploitation of migrants by people-smuggling
networks. The Commission had therefore invited States parties to take the necessary
measures to remedy this situation, including the establishment of mechanisms to
report and facilitate claims for redress of human rights violations against migrants.
In 2017, the same concerns were expressed in Resolution 371 on the implementation
of the New York Declaration for Refugees and Migrants 7 ; on that occasion, the
Commission mainly called on States Parties to the African Charter to adopt a
comprehensive strategy on issues related to population movements.
In the so-called "Banjul Declaration"8 issued at the end of its 59th Ordinary Session
held from 21 October to 4 November 2016, the Commission invited States Parties to
take the necessary actions to respond appropriately to the migrant crisis, including
addressing the root causes of the phenomenon.
In 2018 the Commission reiterated its views on the rights of migrants through its
Resolution 398 on mixed migratory flows, the challenges of protecting migrants and
the prohibition of trafficking in persons and all forms of violence in North and SubSaharan Africa9. In that resolution, the Commission noted the steady increase in
mixed migratory flows and particularly deplored police brutality during the
expulsion of migrants, including unaccompanied children and women in many
parts of North and Sub-Saharan Africa, as well as the transfer and confinement of
large numbers of migrants to detention centres and/or prisons in inhuman and
degrading conditions.
5 http://www.achpr.org/fr/sessions/ resolutions?id=249
Trafficking in persons refers to the recruitment, transportation, transfer, accommodation or reception of
persons, by means of threats or use of force or other forms of coercion, abduction, fraud, deception, abuse of
authority or a position of vulnerability, or the giving or receiving of payments or benefits to obtain the consent
of a person having control over another person for the purpose of exploitation. Exploitation includes, at a
minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or
services, slavery or practices similar to slavery, servitude or the removal of organs (Article 3 (a) of the Additional
Protocol to the United Nations Convention against Transnational Organized Crime to Prevent, Suppress and
Punish Trafficking in Persons, Especially Women and Children)
7 http://www.achpr.org/fr/sessions/60th/resolutions/371/
8 http://www.achpr.org/fr/instruments/banjul-declaration/
9 http://www.achpr.org/fr/sessions/62nd_os/resolutions/398/
6
11
These repeated denunciations and appeals by the Commission are indicative of the
magnitude of human rights violations that occur in the context of migration in
Africa. These violations seriously undermine the African Charter to which almost
all African Union Member States are bound.
This situation justifies the diligence of this study, which will highlight the different
types of violations of the fundamental rights of migrants that occur during their
journey and the causes of these violations in order to better guide stakeholders and,
in particular, States Parties to the African Charter to take appropriate action to
ensure better compliance with their obligations in the migration context.
Much of the existing research on migration focuses more on economic, political and
demographic aspects without always dwelling on an in-depth analysis of the
violations suffered by migrants during their journey. This study is intended to
provide some analytical elements on this subject. Although data on violations of
migrants' rights exist, they are fragmented; there is thus need to regroup them for a
comprehensive analysis.
States have the primary responsibility to protect the human rights of migrants. In
practice, the Internal Security Forces (ISF)10 and the Defence and Security Forces
(DSF)11 are the public officials who are most in contact with migrants and therefore
have a crucial role to play in protecting them. This study seeks to identify
discrepancies between regional and international obligations and the reality of the
treatment meted out to migrants in practice, by focusing on the responsibility of
public authorities, including ISF and DSF.
In accordance with the progressive approach adopted in Resolution 404, the
geographical scope of this study is limited to the Republic of Niger. This choice takes
into account the difficulty to undertake a study in each country due to limited
resources but, above all, the fact that Niger is an important transit and smuggling
country for migrants from West and Central Africa, striving to get to Europe via the
Mediterranean12. Migrant profiling reports published by the International
Organization for Migration (IOM)- Niger in 2016 and 2017 confirm the presence of
a large number of West African nationals among migrants in Niger. In 2016,
testimonies collected by IOM Niger from migrants in four of its transit centres
(Agadez, Arlit, Dirkou et Niamey) indicate that the majority came from West African
countries 13. The IOM Niger 2017 Profiling Report also confirms this14.
10 Police, Gendarmerie, National Guard, Customs
11 Army
12 IOM : World Migration Report
2018, p. 51, available at:
https://publications.iom.int/system/files/pdf/wmr_2018_en.pdf
See also, UNODC: Global Study on the Smuggling of Migrants, 2018, p. 33 , available at:
https://www.unodc.org/documents/data-and-analysis/glosom/GLOSOM_2018_web_small.pdf
13 IOM Niger: Migrant Profiling Report 2016, p. 10, available at : https://gmdac.iom.int/OIM-Niger-Rapport-deProfilage-des-Migrants-2016
14 IOM Niger: Migrant Profiling Report 2017, available at :
https://displacement.iom.int/system/tdf/reports/OIM%20Niger%20-%20Reponse%20Migratoire%20%20Rapport%20de%20Profilage%202017%20-%20FR%20-%20FINAL.pdf?file=1&type=node&id=3728
12
In addition, according to the UNODC Report, Global Study on Smuggling of Migrants
(2018), studies indicate that in 2016, more than 330,000 individuals transited through
Niger by land from West Africa to North Africa15. For example, the distribution of
the different nationalities recorded during migration from Niger to North Africa
between February and September 2016 gives the following percentages according to
UNODC 16:
-
Niger, 19%
Nigeria 22%
The Gambia, 15%
Senegal, 13%
Côte d’Ivoire 7%
Guinea, 7% Guinea -Bissau 5%
Others 12%.
This study particularly focuses on the movement of migrants from Niger (country
of transit or departure) to countries of temporary residence in North Africa (notably
Algeria and Libya) to settle there or to go to Europe via the Mediterranean. This
limitation reflects the need to progressively undertake in-depth studies on specific
cases and is therefore not prejudicial to the fact that other migration corridors
deserve to be considered in subsequent studies.
1.2
Objectives of the study
The overall objective of the study is to collect information on human rights violations
suffered by migrants during their journey 17to North Africa to join the
Mediterranean (for some). Such information will serve as a basis for the Commission
and relevant actors to undertake informed actions. To this end, the Study pursues
the following specific objectives:
▪
▪
▪
Identify the different forms of human rights violations suffered by migrants
during their journey (in Niger and in countries of temporary residence) as
well as the alleged perpetrators of the violations;
Use the example of Niger to analyze the regulatory, institutional and strategic
responses of transit countries, highlighting positive factors, limiting factors
and related areas of concern;
Identify avenues for reflection and make recommendations to stakeholders
for the promotion and integration of a human rights-based approach to the
management of migration flows.
15 UNODC, Global Study on the Smuggling of Migrants 2018, p. 57, https://www.unodc.org/documents/data-
and-analysis/glosom/GLOSOM_2018_web_small.pdf
16 Ibid. p. 33
17
13
The itinerary in this study includes the transit period in Niger (or departure period
for migrants from Niger), the stay in the country of temporary residence (Libya and
Algeria) and the period of voluntary or involuntary return to Niger.
1.3
Methodology and scope of the study
The study is the product of both a documentary research and a field survey.
The full study was conducted from November 2018 to early July 2019.
The documentary research entailed the use of several types of documents, including
binding legal instruments, international and regional soft law instruments, relevant
reports and documents of national, sub-regional, regional and international
organizations, including final and conclusive observations, case law at the regional
level and scientific articles. The literature search focused primarily on data that were
no more than seven (7) years old; however, older data were used where necessary
or in the absence of more recent data.
The literature search served as a basis for guiding the field survey; it also made it
possible to cross-check the data collected and to fill in the gaps in the field survey. It
focused both on general information on migration and human rights at the regional,
sub-regional level and on the human rights situation of migrants at the levels of
countries of transit/departure and countries of temporary residence.
The field survey consisted of a quantitative and qualitative survey.
The quantitative survey was conducted from December 2018 to January 2019 in
Niger. Out of the eight (8) regions of Niger, the field survey targeted the two regions
of Agadez and Zinder because of the limited resources available.
Agadez, a region located in central Niger (cf. infra, administrative map of Niger) is
considered the "gateway to the desert"18 and is therefore the region most crossed by
migrants from several countries to go to North Africa, notably Algeria and Libya 19.
The surveys in Agadez specifically involved migrants at the IOM transit centre in
Agadez city. Migrants in this centre come from the other two (2) IOM centres located
on the border with Libya and Algeria.
As for the Zinder region, it is the main area of return of Nigerien migrants to Niger
according to IOM information 20. Field surveys in the Zinder region were limited to
the Department of Kantché, which has a large number of returning migrants. Data
from a publication made in 2016 for IOM indicate that since December 2014, Niger
18 https://www.presidence.ne/ gographie
19 UNODC: Regional strategy to combat trafficking in persons and smuggling of migrants 2015-2020, p. 9,
available at : https://www.unodc.org/documents/humantrafficking/2016/UNODC_Strategie_regionale_de_lutte_contre_TdP_et_TiM_Afrique_de_lOuest_et_du_Centr
e_2015-2020.pdf
20 http://www.nigermigrationresponse.org/fr/Medias/Presse/zinder-est-le-principal-secteur-de-retour-desmigrants-au-niger
14
and Algeria have been coordinating a repatriation operation for vulnerable Nigerien
migrants from Algeria and 8,093 of them have been repatriated as of 15 February
2016. Of these migrants, 5,875 are from Zinder, 37 per cent of them are women and
38 per cent children. Of these, more than 87% are from the Department of Kantché21.
In Zinder, there is no reception centre for migrants; the surveys were carried out in
the rural commune of Kourni and in the town of Matamey, the capital of the Kantché
Department.
The field survey could not reach migrants en route to North Africa. Indeed, the
human, material and financial resources available for this study are not sufficient to
intercept and interview migrants on their way to North Africa. In addition, many
use irregular routes.
The migrants interviewed for this study are those who have returned voluntarily or
involuntarily to Niger; the objective was not only to hear their comments about their
return, but also above all to hear their account of the migration path Niger- country
of temporary residence- Niger. The relevance of the interview with the returning
migrants derives from the fact that they have gone through the entire process and
can testify to the difficulties encountered at the various stages. The migrants
interviewed also gave testimonies about the treatment of other migrants they met.
However, this sample of migrants was, a priori, more in contact with the authorities
of the countries of temporary residence, which justifies that several of their
testimonies also relate to the incidents experienced in these countries.
A sample of 400 migrants was selected for the field survey, i.e. 200 migrants
interviewed in Agadez and 200 others in Kantché. The constraints linked to the
availability of migrants during the surveys made it difficult to apply parity (gender)
or distribution per vulnerable group as initially planned. The sample finally selected
in the field is as follows:
o by age: 9% from 0 to 17 years old (49% boys and 51% girls); 88% from
18 to 59 years old (74% men and 26% women); 3% from 60 years old
and over (64% men and 36% women).
o by gender: 28% women and 72% men
o by disability: 0%.
o by country:
- Niger (221)
- Burkina Faso (16)
21 Oumarou Hamani: Women and children from Kantché on the road to Algeria Socio-anthropological analysis of a
little-known phenomenon, p. 8, IOM, 2016 , available at :
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwjZ8KzGzKLjAhVO
mIsKHffxB44QFjAAegQIAhAC&url=http%3A%2F%2Fwww.nigermigrationresponse.org%2Fsites%2Fdefault
%2Ffiles%2FIOM%2520Niger%2520%2520Femmes%2520et%2520enfants%2520de%2520Kantche.pdf&usg=AOvVaw2p1qm0Ut8Tnr2af70UJmHM
[Consulted on 7 July 2019]
15
-
Mali (57)
Guinea Conakry ( 50)
Benin (8)
Cameroon (11)
Nigeria (12)
Senegal (9)
Togo (2) - Chad (1)
Côte d'Ivoire ( 2)
Central Africa (2)
Liberia (2)
Namibia (1)
Sierra Leone (1)
Somalia (1)
Bangladesh (4)
Disaggregated sample data
Age of interviewee
0 to 17 YEARS
18 to 59 YEARS
60 YEARS and more
Total
Interviewee’s sex
Interviewee’s sex
Interviewee’s sex
Interviewee’s sex
Country of origin
NIGER
M
Numbe
r
9
F
Num
ber
18
BURKINA FASO
0
MALI
1
GUINEA
CONAKRY
6
BENIN
0
CAMEROON
0
NIGERIA
0
SENEGAL
1
TOGO
0
0
2
2
0
0
2
CHAD
0
0
1
1
0
0
1
COTE D'IVOIRE
0
0
1
2
0
0
1
CENTRAL
AFRICAN
REPUBLIC
0
0
2
2
0
0
2
2
LIBERIA
NAMIBIA
0
0
0
0
2
1
2
1
0
0
0
0
2
1
2
1
SERALEONE
0
0
1
1
0
0
1
1
SOMALIA
0
0
1
1
0
0
1
1
BANGLADESH
0
0
4
4
0
0
4
4
TOTAL
17
35
263
354
7
11
287
0
0
0
0
18
Num
ber
27
M
Numbe
r
101
0
16
1
55
6
41
0
8
0
8
0
12
1
7
Total
F
Num
ber
83
3
3
1
1
91
Numbe
r
184
M
Numbe
r
6
16
0
55
1
44
0
8
0
11
0
12
0
8
0
Total
F
Num
ber
4
0
0
0
0
4
Numbe
r
10
M
Numbe
r
116
0
16
1
57
0
47
0
8
0
8
0
12
0
8
Total
F
Num
ber
105
Total
Number
221
16
57
3
50
8
3
11
12
1
9
2
1
1
113
2
400
This sample should in no way be interpreted as representative of migrants in Niger;
it results from the availability of migrants found in the field during the survey. The
majority of migrants interviewed come from Niger, which may obscure the scale of
the realities experienced by foreign migrants in transit in Niger. However, the
sample remained relevant to the field survey, which focused on hearing migrants’
16
description of the alleged violations they had suffered, as well as the locations and
responsibilities of these violations.
The qualitative survey involved interviews with State and non-State structures
working in the field of migration based in Niger. These include, in particular,: the
Directorate of Migration at the Ministry of Interior, Security, Decentralization and
Customary and Religious Affairs, the General Directorate of Human Rights of the
Ministry of Justice of Niger, the Ministry of Women's Development and Child
Protection, the National Human Rights Commission, the National Agency to
Combat Trafficking in Persons, the Municipality of Kourni Commune (Kantché
region of Zinder), the Niger High Authority to Combat Corruption and Related
Offences, the High Command of the National Guard, the Directorate of Territorial
Surveillance of the National Police, the High Command of the National
Gendarmerie, the NGO Collectif des organisations de défense des droits de l'homme
et de la démocratie (Coddhd) and the NGO Jeunesse enfance migration et
Développent (JMED).
The methodology used also consisted in submitting the draft zero study report for
the assessment and contribution of local actors working in the field of migration in
Niger. To this end, a national consultation with State and non-State actors operating
in Niger was held on 11 June 2019 in Niamey. The meeting provided information
and input that was used to improve the draft zero study report.
For the purposes of this study, the expression ‘international migration’ is
understood in the broadest possible sense, i.e., any person who crosses the territory
of another country for any reason whatsoever. In practice, the study focuses
particularly on the case of economic migrants.
1.4
Difficulties encountered in connection with the study
In the field survey, the fact that migrants were not available at the time of the survey
made it difficult to respect parity and the percentages of vulnerable groups initially
planned for sampling.
In the context of the documentary survey, the difficult access to online documents
was a major challenge. Besides, existing migration data are often of a general nature
(not specific to the case of Niger) and are scattered in different documents that serve
different purposes.
1.5
Study Plan
Following the presentation of the general context of migration in Africa and Niger
in particular (2), the study takes stock of basic human rights violations against
migrants during their journey(3). At this stage, the study identifies all relevant
information relating to human rights violations that may have occurred both in
Niger and in countries of temporary residence. Information on violations is analyzed
in the light of the relevant articles of the African Charter and, alternatively, other
relevant regional and international human rights instruments (3). The study then
17
considers the responsibility of public authorities to protect the rights of migrants
while focusing on the role of ISF and DSF (4).
Based on the example of the Republic of Niger, the study then presents and analyses
the legal (5) and institutional (6) framework for the protection of migrants' rights in
the country in order to identify discrepancies between what is planned and what is
actually happening and to highlight the existing challenges and difficulties. The
questions of existing reparation mechanisms (7) and strategies (8) for dealing with
violations of migrants' rights are finally explored.
Finally, the study identifies avenues for reflection and makes relevant
recommendations to ensure a more effective protection of the rights of migrants (9).
18
2. GENERAL CONTEXT FOR THE PROTECTION OF
THE FUNDAMENTAL RIGHTS OF MIGRANTS IN
NIGER
Understanding the migration phenomenon in Niger is highly dependent on a
thorough understanding of the African and sub-regional (ECOWAS) migration
context.
2.1
Overview of migration trends in Africa
IOM data22 show that in Africa, the number of people migrating within and outside
the continent is quite similar. Recent statistics show that in 2017, more than half
(53%) of African international migrants remained on the continent23.
However, although the data indicate that the number of migrants within the
continent has increased since the 2000s, the number of African migrants living
outside the continent has increased more significantly; it has more than doubled (see
figure below) with a higher percentage of African migrants residing in Europe than
in other continents24.
22 IOM: World Migration Status, 2018, op. cit. p. 48
23 United Nations Conference on Trade and Development: Economic development in Africa: migration for
structural transformation, p. 2, 26 March 2018, available at :
https://unctad.org/meetings/fr/SessionalDocuments/tdb65_1_d8_fr.pdf
24 IOM: World Migration Status, 2018, op. cit. p. 49
19
As a result of its geographical position, North Africa is the most important transit
sub-region for illegal African migrants wishing to travel to Europe via the
Mediterranean. However, in addition to being transit countries to Europe, North
African countries are also destination countries for certain migrants.
Statistics show that migrants from West and East Africa occupy an important place
among those who cross North Africa to reach Europe via the Mediterranean. For
example, according to the IOM World Report 2018, in 2016 alone, more than 181,000
people were identified on the "Central Mediterranean Route" to Italy. The majority
of those who landed in Italy in 2016 were from West and East Africa (Nigeria,
Eritrea, Guinea, Côte d'Ivoire, Gambia, Senegal, Mali and Somalia) and more than
half sought asylum. Of these migrants who landed in Italy in 2016, 13% (about
24,000) were women, and 15% (28,000) were children - the vast majority (91%) of
whom were unaccompanied25.
These migration corridors, used illegally, are the scenes of serious human rights
violations, which mainly take the form of deaths at sea, in the desert and other places
of transit, the disappearance of migrants, exploitation, physical and psychological
abuse, trafficking and smuggling of migrants, sexual and gender-based violence,
arbitrary detention, forced labour and ransom demands and extortion.26.
2.2
Context of migrations in the ECOWAS region
Most West African countries are members of the Economic Community of West
African States (ECOWAS). Established by Treaty in 1975, ECOWAS is a sub-regional
organization in West Africa with 15 Member States: Benin, Burkina Faso, Côte
d'Ivoire, Gambia, Cape Verde, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger,
Nigeria, Senegal, Sierra Leone and Togo.
ECOWAS aims to "promote cooperation and integration in preparation for an
Economic Union of West Africa with a view to raising the standard of living of its
peoples, maintaining and increasing economic stability, strengthening relations
among Member States and contributing to the progress and development of the
African continent"27. In pursuit of this goal, ECOWAS has set itself several objectives,
including the removal of obstacles to the free movement of persons between
Member States. The ECOWAS common approach on migration adopted at the 33 rd
ECOWAS Summit in 2008 highlights the fact that free movement within the
ECOWAS region is among the key priorities of the integration policy of ECOWAS
Member States28.
25 IOM: World Migration Status, 2018,
op. cit. p. 54
26 IOM: World Migration Status, 2018, p op.cit., p. 54; See also: ACHPR: Resolution on the situation of migrants
in Africa - ACHPR/RES. 333 (EXT.OS/XIX) 2016 http://www.achpr.org/fr/sessions/19theo/resolutions/333/
27 Revised ECOWAS Treaty of 1993, Chapter 2, Article 3 (1), available at:
http://caselaw.ihrda.org/fr/doc/t_eco/view/fr/#p2
28 http://ecowasmigration.ug.edu.gh/fr/ecowas-common-approach-migration2008/?doing_wp_cron=1556119456.9946138858795166015625; http://www.unhcr.fr/4b151cb1e.pdf
20
ECOWAS has therefore adopted several legal instruments to guide its migration
policy, including Protocol A/P1/5/79 on the free movement of persons, the right of
residence and establishment, adopted in Dakar on 25 May 1979 (Protocol on Free
Movement), and its four additional protocols listed below:
▪
▪
▪
▪
Additional Protocol of 1985 (A/SP.1/7/85) on the Code of Conduct for the
Implementation of the Protocol on the Free Movement of Persons, the Right of
Residence and Establishment;
Additional Protocol of 1986 (A/SP.1/7/86) on the implementation of the second
stage (right of residence) of the Protocol on the free movement of persons, the
right of residence and establishment;
Additional Protocol (A/SP.1/6/89) of 1989 amending and supplementing the
provisions of Article 7 of the Protocol on the free movement of persons, the right
of residence and establishment;
Additional Protocol of 1990 (A/SP.2/5/90) on the implementation of the third
stage (right of establishment) of the Protocol on the free movement of persons,
the right of residence and establishment.
These texts form the basis of the free movement system in force in the ECOWAS
region. In particular, Article 3 of the 1979 Protocol on Free Movement provides that:
▪
Any citizen of the Community wishing to enter the territory of one of its Member
States will be required to be in possession of a valid travel document and
international vaccination certificates;
▪
Any citizen of the Community wishing to reside in a Member State for a
maximum period of ninety (90) days may enter the territory of that Member State
through an official point of entry without having to present a visa;
▪
A citizen residing legally in the area and wishing to extend his stay beyond
ninety (90) days must, for this purpose, obtain an authorization issued by the
competent authorities.
Such provisions facilitate the free movement of nationals of ECOWAS Member
States. Recent estimates reveal that the majority of international migrants in West
Africa move within the sub-region29. People travel through space for economic,
social, environmental and security reasons. Although migration in West Africa is
characterized by mixed migratory flows, it is , to a lerge extent, determine by
economic factors30.
The abolition of visas for ECOWAS nationals considerably reduces the illegality of
migration in the ECOWAS region but does not eliminate it completely. There are
cases where, for several reasons (lack of required documents, fear of rackets by
29 IOM : World migration status, 2018, op.cit., p. 54, available
30 IOM : World migration status, 2018, op.cit., p. 55, available
21
border security agents, unfamiliarity the texts, etc.), nationals of the region travel
illegally31.
Nevertheless, the majority of West African migrants who transit through ECOWAS
countries such as Niger to reach North Africa and often Europe are in order as long
as they are in the ECOWAS region. For many of them, illegality begins when they
cross the ECOWAS region because most of them are not in possession of the travel
documents required to enter the other zones.
Niger is on the list of the most important migration routes used by migrants,
particularly irregular migrants, to reach North Africa and Europe through the
Mediterranean Sea; it is also a hub for the smuggling of migrants32.
2.3
Context of migration in Niger
The migration phenomenon in Niger is assessed in the light of the generalities
related to the country's geographical, historical, political, economic, social and
cultural situation.
▪
General information on Niger
Niger is a vast Sahelian country of West Africa. With a surface area33 of 1,267,000
km2, it is the largest country in West Africa and the 6th largest country in Africa.
Niger is totally landlocked by 7 neighbouring countries, notably Burkina Faso and
Mali in the West; in the East by Chad; Benin and Nigeria in the South; and Libya and
Algeria in the North. The desert occupies a huge part of Niger's territory,
particularly in its areas bordering Algeria and Libya. The Saharan and Sahelian
zones represent 80% of Niger's territory34.
With respect to the administrative division, the territory is divided into 8 regions
(Agadez, Dosso, Maradi, Tahoua, Tillabéry, Zinder, Diffa and Niamey), 63
departments and 266 municipalities according to Law N° 2011-22 of 8 August 2011
transforming former administrative posts into departments and assigning the names
of their capitals. The regions are administered by a governor, the department by a
prefect, the urban or rural commune by an elected mayor and the village is headed
by a village chief assisted by a traditional chieftaincy council35.
31 UNODC : Global Study on Smuggling of Migrants 2018, p. 83, available at:
https://www.unodc.org/unodc/en/data-and-analysis/glosom.html
32 IOM : World migration status, 2018, p. 55, available at https://publications.iom.int/fr/books/etat-de-lamigration-dans-le-monde-2018 ; Altai Consulting et OIM, Migration Trends Across the Mediterranean:
Connecting the Dots, June 2015, available at http://www.altaiconsulting.com/insights/migration-trendsacross-the-mediterranean-connecting-the-dots/
33 https://www.presidence.ne/gographie
34 https://www.presidence.ne/gographie
35 National Statistique Institute of Niger, Social dashboard, 2016, P.19, available at :
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwj
Fx6eGh4zhAhXOsKQKHW-PD1EQFjAAegQIChAB&url=http%3A%2F%2Fwww.statniger.org%2Fstatistique%2Ffile%2FDSEDS%2FTBS_2016.pdf&usg=AOvVaw2z5jYKqhGJKGh8kTSbiGJL
22
Administrative Map of Niger
Source : Institut Nationale de la Statistique du Niger
At the political level, it should be noted that Niger gained independence since 3
August 1960. It is a member of the United Nations (UN), the African Union, the
Economic Community of West African States (ECOWAS), the G5 Sahel and many
other international and regional organizations.
In 2017, Niger had a population of close to 21.5 million; the country has one of the
highest population growth rates in the world (3.9% per year) 36. Despite a subsoil
rich in uranium, Niger has been suffering from extreme poverty for several years. In
2018, it was ranked 189th out of 189 countries in the world according to the United
Nations Development Programme (UNDP) Human Development Index37.
In terms of security, Niger is facing attacks by the terrorist group Boko Haram and
many other jihadists. The Southeast region, particularly Diffa, bordering Nigeria
from where the Boko Haram sect operates, is among the regions most affected by
terrorism. In its 2016 Report for the Universal Periodic Review (UPR), the
Government of Niger indicated, for example, that following the attacks by Boko
Haram during the period from February to July 2015, the Diffa hospital centre
recorded a total of 140 deaths, including 43 women and 97 men among civilians38.
Similarly, in its Periodic Report for the period 2014-2016 submitted to the
36 http://hdr.undp.org/en/composite/HDI
37 http://hdr.undp.org/en/composite/HDI
38 Government of Niger: UPR 2016, para 44, available at : https://documents-dds-
ny.un.org/doc/UNDOC/GEN/G15/254/30/PDF/G1525430.pdf?OpenElement
23
Commission, the Government of Niger also reported attacks in the Diffa region 39. In
addition, attacks are also reported in other regions, including Tahoua 40 and
Tillabéry41.
▪
Characteristics of migration in Niger
For decades, Niger has been a hub of trade between North Africa and Sub-Saharan
Africa; this is due to its geographical location as described above. Niger is a country
of origin, transit and destination for migrants.
As a country of origin, it is noted that Niger nationals themselves migrate more to
ECOWAS countries than to North African and European countries. According to the
CARIM According to the CARIM (Consortium for Applied Research on
International Migration) migration profile for Niger, close to 90% of migrants from
Niger live in ECOWAS countries (mainly Burkina Faso, Côte d'Ivoire, Nigeria and
Guinea Conakry) 42..
Niger's profile as a destination country is not very high. A profiling report prepared
for IOM in 2009 revealed that the number of international immigrants residing in
Niger had never exceeded 2% of the total resident population43.
On the other hand, Niger is used as a real transit corridor for migrants travelling to
North Africa and Europe via the Mediterranean, especially since the outbreak of the
Libyan crisis in 2011. Much of this migration is illegal. Several reports indicate that
Niger is an important country of origin, transit and destination for the smuggling of
migrants.
In a recent report, the United Nations Office on Drugs and Crime (UNODC)
describes the modus operandi of migrant smuggling from Niger44.
From Agadez, migrants heading for Libya pursue their route to Dirkou (a rural
commune in the Agadez region), usually in pick-ups organized by traffickers. In
Dirkou, they often have to wait a few days until they find a trafficker who can take
39 Government of Niger: Periodic report 2014-2016 on the implementation of the African Charter on Human and Peoples'
Rights. Niger's periodic report submitted to the ACHPR, p. 92, para 427, available at
http://www.achpr.org/fr/states/niger/reports/2014-2016/
40 African Union, Press Release of 7 October 2016, available at :
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=2ahUKEwi
CmObR5I7jAhUpzIUKHdicATkQFjACegQIARAC&url=http%3A%2F%2Fwww.peaceau.org%2Fuploads%2Fc
ua-comm-presse-niger-7-10-2016.pdf&usg=AOvVaw0MKXeRkxzfZCB0EPsG_7wo
41 African Union, Press Release of 16 May 2019, available at : http://www.peaceau.org/fr/article/declarationdu-president-de-la-commission-sur-le-niger
42 Anna Di Bartolomeo, thibaut Jaulin et Delphine Perrin : CARIM – Migration Profile Niger, p. 9, 2011,
available on https://cadmus.eui.eu/handle/1814/22442; Also see: OIM Niger : Niger Migrants Profiling
Report 2016, op. cit. p. 6
43 Issaka Maga Hamidou : Migration in Niger, National profile, p. 58, OIM 2009, available at :
https://reliefweb.int/sites/reliefweb.int/files/resources/CBEDEA4F2B066BE4432576F20033E11ERapport_Complet.pdf
44 UNODC: Global Study on Smuggling of Migrants, 2018, p. 86 et 87, available at:
https://www.unodc.org/unodc/en/data-and-analysis/glosom.html
24
them further north to Libya. Most migrants bypass the border and travel across the
desert to Libya with the help of traffickers. The passage from Sabha (southern Libya)
to Tripoli is also facilitated by traffickers. With regard to smuggling prices,
information collected by UNODC indicates that in 2013, the cost of travel from
Agadez to Sabha was between $100 and $300, but in 2017, these prices increased
significantly to between $550 and $850. This rise is said to be due to the increase in
security controls and therefore to the fact that traffickers now need to avoid ISP and
DSF.
Some migrants also travel from Agadez to the north to reach Algeria, usually by van.
Most migrants cross the border illegally. Some then travel to the centre of
Tamanrasset, Algeria, with the help of a smuggler, where they can stay and work
for some time until they have enough money to continue their journey.
Regarding the profiles of migrant traffickers, research by UNODC suggests that
there are 3 levels of traffickers 45 :
▪
A first level where there are actors whose participation in trafficking is only
temporary or incidental, and include a certain number of migrants;
▪
A second level consisting of the many raiders and smugglers who are often
former migrants themselves, and who earn their living from this trafficking;
▪
A third level where there are professional businessmen who have practically
no contact with migrants, and whose role is to negotiate the means of
transport and bribes necessary for the smooth conduct of the operations.
Regarding land routes from West Africa to North Africa more than 330,000
individuals transited through Niger in 201646.
In addition, the IOM 2017 Profiling Report details the profile of migrants in Niger
based on surveys conducted from January to December 2017, including testimonies
from 9,100 assisted migrants in 4 locations in Niger where IOM has transit centres
(Agadez, Arlit, Dirkou and Niamey) and in the Diffa and Zinder sub-offices. There
are men, women, children and unaccompanied children. The main disaggregated
data in the report show the following percentages:
▪
More than half of the migrants assisted in the 4 transit centres in 2017 come
from Guinea (17%), Senegal (17%), Nigeria (13%) and Mali (8%). There were
also nationals from other regions including Cameroon, Guinea Bissau and
Sudan. The percentages by country of origin vary according to the years but
the predominance of West African migrants in Niger has not changed;
45 UNODC: The flow: Smuggling of migrants from West Africa to Europe, p. 31, available at:
https://www.unodc.org/documents/toc/Reports/TOCTAWestAfrica/West_Africa_TOC_MIGRANTS_FR.p
df
46 UNODUC: Global Study on the Smuggling of Migrants 2018, p. 57, available at:
https://www.unodc.org/documents/data-and-analysis/glosom/GLOSOM_2018_web_small.pdf
25
▪
▪
▪
▪
▪
▪
88% of migrants are men, 66% of whom are between 18 and 29 years old. 62%
of migrant men are single;
9% of migrants are minors, 42% of whom were unaccompanied;
12% of migrants are women, the majority of whom are between 18 and 34
years of age; 26% of them are minors;
Almost all migrants have fled their countries of origin because of poverty and
"lack of employment opportunities". 96% of the migrants interviewed left
their homes in search of a "better life" (74% in search of a job and 22% to
escape poverty);
Algeria and Libya were the main countries of temporary residence for
migrants: 70% remained in these two countries for a period ranging from 6
months to 1 year;
5% of migrants interviewed in six IOM centres reported that they had been to
school (compared to 60% in 2016).
Migrants are not equally distributed in Niger. In this respect, Agadez, considered as
the "gateway to the desert", is the region most crossed by migrants from several
countries to go to North Africa, notably Algeria and Libya. Several migrants stay in
Agadez until they have the necessary means to pursue their journey to North Africa;
to this end, there are ghettos47 that are supposed to serve as accommodation for the
migrants48. Other migrants, expelled from Algeria and Libya or who are voluntarily
returning from North Africa, are also present in Agadez. The map below49 shows
that Agadez is one of the main migration hubs in Africa.
UNODC analyses show that the irregular migration path in Africa comprises 3 main
routes50:
▪
Route 1: For irregular migrants who wish to reach the Canary Islands, they go
through coastal cities such as St. Louis in Senegal or Nouadhibou in Mauritania;
▪
Route 2: For irregular migrants who want to reach the Mediterranean boarding
points, they must first cross the Sahara. For the latter, Gao (Mali) and Agadez
(Niger) are key rallying points because they are gateways to the Sahara;
▪
Route 3: For irregular migrants wishing to reach Greece, they generally transit
through north-eastern Nigeria and then Chad before reaching Egypt to pursue
their journey through Turkey and Greece or directly to Greece by sea.
47 Ghettos" are hostels or homes where irregular migrants are accommodated..
48 UNODC: Regional strategy to combat trafficking in persons and migrant smuggling 2015-2020, p. 9, available at :
https://www.unodc.org/documents/humantrafficking/2016/UNODC_Strategie_regionale_de_lutte_contre_TdP_et_TiM_Afrique_de_lOuest_et_du_Centr
e_2015-2020.pdf
49 UNODC, Global Study on Smuggling of Migrants, 2018, p. 83, available at:
https://www.unodc.org/unodc/en/data-and-analysis/glosom.html
50 UNODC: "The flow: Smuggling of migrants from West Africa to Europe» p. 29 et 30, available
at:https://www.unodc.org/documents/toc/Reports/TOCTAWestAfrica/West_Africa_TOC_MIGRANTS_FR
.pdf
26
Route 2 is therefore the most interesting route for irregular migrants crossing Niger
to North Africa and then Europe, for some. Whether their situation is in order or not,
migrants suffer several forms of abuse and violence that infringe their fundamental
rights. Irregular migrants who venture onto these routes are more vulnerable
because of their irregularity. These migrants who transit through Niger to North
Africa and then to Europe are therefore greatly affected by these abuses and
violence.
Besides, migrants arriving in North Africa may return to Niger voluntarily or
involuntarily. Most West African migrants are returned to Niger since the majority
of countries of which they are nationals have no direct border with Libya and
Algeria. Incidents likely to violate the dignity of migrants also occur during their
return.
27
3. VIOLATIONS OF MIGRANTS’ FUNDAMENTAL
RIGHTS
Whether migrants enter Niger legally or illegally, they are confronted during their
journey with several acts that obstruct the enjoyment of their fundamental rights
guaranteed by the African Charter. These violations are assessed in the light of the
African Charter, which has been ratified by the transit country (Niger) and the
countries of temporary residence covered by the study (Algeria and Libya).
3.1
The Right to non-discrimination and equality (Articles 2
and 3 of the African Charter)
Articles 2 and 3 of the African Charter guarantee the right of every individual to
enjoy the rights and freedoms recognized in the African Charter without distinction
of any kind, such as "race, ethnic group, colour, sex, language, religion, political or
any other opinion, national or social origin, fortune, birth or other status" and to
benefit from equal protection of the law.
The field survey of the 400 migrants revealed several allegations of discrimination
based on race, language and nationality. According to the migrants interviewed,
discrimination on the grounds of nationality is a common practice in Niger at
internal checkpoints and at the border.
The right to leave one's country and the right of any person who is lawfully within
the territory of a State to move freely therein is recognized by international human
rights law. In practice, these rights refer to issues of entry and stay in foreign
territories with respect to international migration. The entry and residence of foreign
nationals is, in general, partly governed by Community texts or bilateral agreements
between States which may provide for reciprocity in the treatment of foreign
nationals.
According to some migrants interviewed, non-Nigerien migrants (including those
from the ECOWAS region) are subject to the systematic payment of money before
crossing security barriers at borders and within the country, while Nigeriens are not
subject to any payment. Similar allegations are also made in Mr. Abdoulaye
Hamadou's article on the management of migration flows in Niger, published in 2018
in the Human Rights Review of the Centre for Research and Human Rights
Studies51. In this article, the author states that he made the trip to verify the alleged
harassment on the road; he reports the following: "At the end of this long journey,
we were able to observe nine (9) police checkpoints from Niamey to Agadez. And at
each checkpoint, non-nationals are brought down for questioning and possibly to
ask them for sums of money, the amount of which varies according to the documents
in the migrant's possession”.
51 Abdoulaye Hamadou : The management of migration flows in Niger between commitments and constraints, Human
Rights Review, Centre for Research and Human Rights Studies, Vol. 14, 2018, , p. 14 (para 58) and p.23 (foot note
page 97), available at: https://journals.openedition.org/revdh/4378
28
It is the requirement for aliens to systematically pay that is denounced by migrants.
It does not appear from the data collected that such treatment of aliens results from
the application of reciprocity clauses and even if such clauses existed, they should
be in conformity with international principles and standards for the protection of
human rights.
However, field workers in Niger, present at the National Consultation on the review
of the Zero Draft of this study, explained that there are times when Nigeriens have
to pay as well before passing through police checkpoints52.
In addition to Niger, the field survey also revealed allegations of discriminatory
treatment on the basis of race in countries of temporary residence, particularly in
Algeria. These allegations corroborate the Declaration of the United Nations Special
Rapporteur on the Human Rights of Migrants ("the UN Rapporteur"), Felipe
González Morales, at the end of his visit to Niger in October 201853. In this statement,
the UN Special Rapporteur deplored the fact that migrants are victims of racial
intimidation, discrimination and persecution in Algeria. Migrants, particularly West
African migrants, are returned to Niger without reasonable notice and without the
possibility of challenging the regularity of this decision. The Rapporteur urged the
Algerian authorities to put an immediate end to the ill-treatment of migrants based
on racial discrimination.
In addition, a Note by the Spokesperson for the United Nations High Commissioner
for Human Rights indicates that in connection with expulsions, some migrants
allege that once in Tamanrasset (southern Algeria), Nigeriens are transferred by bus
to Agadez in Niger, while others are crammed into large trucks to be transferred to
the Niger border where they are abandoned and forced to walk for hours in the
desert heat54.
3.2
The Right to Life (Article 4 of the African Charter)
The right to life is guaranteed in article 4 of the African Charter, which provides that
no one may be arbitrarily deprived of it. In its General Comment No. 3 on the African
Charter on Human and Peoples' Rights: The Right to Life (article 4)55, the Commission
recalled that this right is part of customary international law and general principles
of law as well as a jus cogens standard, universally binding at all times.
The right to life is broadly interpreted: its respect requires not only that States take
measures to prevent arbitrary deprivation of life but also that justice is promptly
52 Information from the national consultation held on 11 June 2019 in Niamey, Niger within the framework of
this study
53 Statement by the United Nations Special Rapporteur on the human rights of migrants, Felipe González
Morales, at the end of his visit to Niger (1-8 October, 2018), available at :
https://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=23698&LangID=F
54 Note by the Spokesperson of the United Nations High Commissioner for Human Rights, Ravina Shamdasani
of 22 May 2018, available at :
https://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=23114&LangID=F
55 ACHPR, General Comment No. 3 on the African Charter on Human and Peoples' Rights: The Right to Life
(article 4), para. 5
29
done once the right is violated. Similarly, the enjoyment of a number of other rights
can collectively constitute living conditions; thus, the progressive realization by
States of the various economic, social and cultural rights contributes to ensuring a
full and dignified life. Therefore, in some cases, the violation of these rights may also
result in a violation of the right to life56.
The majority of migrants who loose their lives while transiting through Niger die
during the desert crossing and during the Mediterranean crossing.
▪
Loss of human lives in the desert
According to a UNODC report, at least 500 deaths are registered in the Sahara desert
in Niger and Algeria every year as a result of migration 57.
Many migrants abandoned by smugglers in the desert or blocked in the middle of
the desert due to vehicle breakdowns, die from adverse weather conditions and lack
of means of subsistence (water, food, etc.).
In October 2013, 92 migrant bodies (52 children, 33 women and 7 men) were found
in the desert in Niger, not far from the border with Algeria58. These migrants are
said to have died of dehydration following a vehicle breakdown59. Despite this
tragedy, several deaths continue to be registered in the desert. For example, in June
2015, 48 other bodies were discovered in the Nigerien Sahara, 18 of them next to an
oasis in Arlit (West of Agadez) and 30 bodies near Dirkou in the North Eastern
Agadez60. In June 2017, at least 44 migrants, including women and children, were
found dead in the desert in Agadez. These migrants were also reported to have
found themselves in the middle of the desert following a breakdown in the vehicle
transporting them to Libya61.
In June 2017, IOM rescued 24 migrants (including Gambians, Nigeriens, Senegalese
and Ivorians) who were walking in the desert near Séguédine, one of the 24 rescued
finally died on arrival. The rescued persons were part of a group of 75 migrants
travelling in convoys that were eventually abandoned by smugglers62.
56 Ibid. para 41 et 43
57 UNODUC: Global Study on the Smuggling of Migrants 2018, p. 83, available at:
https://www.unodc.org/documents/data-and-analysis/glosom/GLOSOM_2018_web_small.pdf
58 Coordination of the United Nations System in Niger, Office of the Resident Coordinator:Report of the United
Nations Country Team in Niger for the second cycle of the Universal Periodic Review (EPU), June 2015, para
72
59 http://news.aniamey.com/h/9054.html?fb_comment_id=1402563453314395_54757
60 Coordination of the United Nations System in Niger, Office of the Resident Coordinator: Report of the
United Nations Country Team in Niger for the second cycle of the Universal Periodic Review (EPU), op. cit.,
p.13
61 https://www.unhcr.org/news/press/2017/6/59311ced4/news-comment-unhcr-shocked-deaths-saharadesert.html
62 https://www.iom.int/fr/news/52-morts-au-niger-tandis-que-loperation-de-recherche-et-de-secours-deloim-sauve-600-migrants
30
The story of Adaora63, a young survivor of an IOM relief mission on 28 May 2017,
illustrates the survival challenges faced by migrants as a result of the actions of
smugglers 64.
Adaora is a 22-year-old Nigerien girl who left her country in search of a better
future. She was among passengers on a truck travelling from Agadez to Libya
with about 50 migrants on board. The driver eventually abandoned them in
the middle of the desert and fled with their belongings, promising he would
come back for them. In the face of the harsh desert climate and inadequate
means of subsistence, 44 migrants died. The other 6 had to drink their own
urine to survive and were able to walk until they found a truck that picked
them up. She says she didn't know what to expect, otherwise she would never
have left Nigeria.
The death of migrants transiting through Niger is not only confined to the desert
part of Niger. Many of them also lose their lives in the desert in Libya; they die of
hunger, dehydration and exposure to extreme heat65.
Moreover, according to testimony gathered during the field study, the way in which
migrants are expelled from Algeria to Niger is not conducive to the survival of
migrants. They are generally transferred by bus from Algiers to Tamanrasset. They
are then transported in trucks from Tamanrasset to the Niger border (at a so-called
"zero point") from where they are forced to walk (between 15 to 20 km) in the desert
before reaching Niger's first checkpoint and receiving assistance. The testimonies
received by the UN Special Rapporteur confirm this process66. During this long
walk, migrants, including children and pregnant women, do not survive; bleeding
pregnant women often arrive completely shocked at IOM's centres.
The field study reveals that the Nigerien authorities do not have national structures
in place to assist migrants in distress in the desert; however, elements of the Nigerien
National Guard who patrol the desert area for security reasons sometimes come
across these migrants by chance and assist them on this occasion. In his statement,
the UN Special Rapporteur also noted the fact that neither the Algerian nor Nigerien
authorities provide assistance to migrants expelled from Algeria and compelled to
walk in the desert. The only assistance provided to migrants come from IOM and
other NGOs67.
63 Ibid
64 Persons who facilitate the journey of irregular migrants, usually in exchange for payment
65 https://www.iom.int/fr/news/des-deces-au-niger-sajoutent-au-bilan-croissant-de-migrants-decedes-sur-
le-continent-africain
66 Statement by the United Nations Special Rapporteur on the human rights of migrants, Felipe González
Morales, at the end of his visit to Niger (1-8 October, 2018), available at :
https://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=23698&LangID=F
67 Statement by the United Nations Special Rapporteur on the human rights of migrants, op. cit.
31
▪
Loss of human lives in the Mediterranean
While migrants lose their lives in the desert, they pay a heavier price when crossing
the Mediterranean. In October 2013, for example, at least 368 migrants died in a
wreck involving two boats near Lampedusa (Italy). Such tragedies during the
Mediterranean crossing continue to be reported. For example, the figure below68
shows the number of migrants who died or went missing at the global level but also
illustrates the high proportion of human lives lost in the Mediterranean in 2016.
The number of recorded migrants’ deaths or disappearances is higher in the
Mediterranean than in other regions. It is difficult to know exactly what percentage
of migrants from Niger lose their lives in the Mediterranean, but this percentage is
probably very high when it is estimated that over 330,000 migrants transited through
Niger in 2016 to reach North Africa, many of whom are trying to get to Europe
through the Mediterranean. More recently, in February 2019, it was estimated that
354 migrants and "refugees" had died worldwide since January 2019, including 208
deaths that occurred on the main migration routes crossing the Mediterranean69.
In her Inter-sessional Report presented at the 58th Ordinary Session of the African
Commission in 2016, the Special Rapporteur on Refugees, Asylum Seekers, Migrants
and Internally Displaced Persons in Africa noted that 2015 is considered the
68 IOM: World Migration Status, 2018, op. cit. p. 28
69 https://news.un.org/fr/story/2019/02/1035631
32
deadliest year for migrants who have left their country for Europe through the
Mediterranean70.
▪
Other cases of death
Migrants may also be murdered on the way, or lose their lives due to road
accidents, abuse or disease 71.
▪
Law n°2015-36 and the risks related to loss of human lives
Some observers72 warn against the harmful effects resulting from Law n°2015-36 of
26 May 2015 on the smuggling of migrants (Law of 2015), whose articles 10 to 12
punish:
▪
those who facilitate the illegal entry or exit into or from Niger of a person who is
not a national or a permanent resident of Niger
▪
those who produce, procure, provide or possess a fraudulent travel or identity
document to facilitate the smuggling of migrants,
▪
those who use illegal means to allow a person who is not a national or a
permanent resident to stay in Niger without fulfilling the conditions necessary
for legal residence.
This law, which seeks to combat the smuggling of migrants, is believed to have
several negative effects, including exposing migrants to greater risks to their
physical and moral integrity and even their lives. The law is criticized for creating a
more irregular context that exacerbates the vulnerability of migrants73. Under this
law, several drivers have been arrested, smugglers tracked down and ghettos (houses
where irregular migrants are housed during their stay) are now considered illegal
and therefore built clandestinely.
Since the application of the 2015 Law, the number of migrants travelling to North
Africa and then to Europe through Niger has decreased. The decline in the
movement of migrants northwards to Algeria, Libya and the Mediterranean is
considerable, ranging from 333,891 in 2016 to 43,380 migrants in 2018, according to
70 Special Rapporteur on Refugees, Asylum Seekers, Migrants and IDPs in Africa: Intersessional Report on
behalf of the 58th Session of the African Commission, 2016, para 47 available at :
http://www.achpr.org/fr/sessions/58th/intersession-activity-reports/refugees-and-internally-displacedpersons/
71 IOM: World Migration Status, 2018, op. cit. p. 9
72 Clotilde Warin, Research Consultant at the Dutch think tank Clingendael: An overview of migration routes
and the Sahel region, available at : http://www.lecercledelalicra.org/blog/entretien-avec-clotilde-warin/. See
also : « Niger under the ‘EU diktat’: diminished flows, increased invisibility and risks, and political balances
fragilized », available at : https://www.clingendael.org/pub/2018/multilateral-damage/2-effects-of-eupolicies-in-niger/. See also: Statement by the United Nations Special Rapporteur on the human rights of
migrants, op. cit.
73 Clotilde Warin, Research Consultant at the Dutch think tank Clingendael: An overview of migration routes
and the Sahel region, available at : http://www.lecercledelalicra.org/blog/entretien-avec-clotilde-warin/ See
also : « Niger under the ‘EU diktat’: diminished flows, increased invisibility and risks, and political balances
fragilized, op. cit.
33
IOM data based on monitoring trends in Arlit and Seguedine (North of Agadez)74.
However, smugglers now use more dangerous illegal routes75, which exposes
migrants to manifold risks, including abandonment in the desert, attacks by bandits,
kidnapping to sell them to traffickers and the resulting human trafficking.
These additional dangers are feared to put the lives of migrants at greater risk. The
estimates of the figure below allege that there has been an increase in human
casualties and disappearances of migrants since the adoption of the 2015 Law.
Number of dead or missing migrants in Niger between 2015 and 2017 per semester
Extract from a publication by Clingaendael76
3.3
Right to respect for human dignity (Article 5 of the
African Charter)
Article 5 of the Charter provides that: "Every individual shall have the right to the
respect of the dignity inherent in the human being and to the recognition of his legal
status. All forms of exploitation and degradation of man, particularly slavery, slave
trade, torture, and cruel, inhuman or degrading punishment and treatment, shall be
prohibited.
Exploitation is not a clearly defined and universally accepted concept. However,
article 3 of the Additional Protocol to the United Nations Convention against
Transnational Organized Crime to Prevent, Suppress and Punish Trafficking in Persons,
especially Women and Children (Palermo Protocol) states that "exploitation includes
(but is not limited to): the exploitation of the prostitution of others or other forms of
sexual exploitation, forced labour or services, slavery or practices similar to slavery,
servitude or organ removal".
74 Statement by the United Nations Special Rapporteur on the human rights of migrants, op. cit.
75 Ibid.
76 « Niger under the ‘EU diktat’: diminished flows, increased invisibility and risks, and political balances
fragilized », op. cit.
34
During their journey, migrants transiting through Niger face several forms of
exploitation, which occur both on and outside Nigerien territory. The risks of human
dignity violations are present at all stages of the journey and are more so during
their stay in countries of temporary residence due to the irregular situation in which
they find themselves. The violence is thus mainly due to the permanent need to hide
and to the abuses perpetrated by security officers, particularly during repatriation.
Besides, in November 2017, horrific images of migrant auctions in Libya were
published 77. More recently in 2018, in its joint report of the United Nations Support
Mission in Libya and the Office of the United Nations High Commissioner for
Human Rights entitled "Desperate and Dangerous: Report on the human rights situation
of migrants and refugees in Libya" (Joint UNMIS and UNHR report), slavery, forced
prostitution and forced labour are mentioned as forms of exploitation to which
migrants in Libya are exposed78. The number of foreign nationals is estimated at
between 700,000 and 1,000,000 and among them, nationals of Niger, Chad, Egypt,
Sudan, Ghana and Nigeria form the majority.
Moreover, the profiling report produced by IOM Niger in 201779 based on the
testimonies of 9,100 migrants, reveals serious violations of migrants' rights.
According to the report, 3400 have responded to questions relating to possible
abusive treatment they have been subjected to; 80% of them reported that they have
been victims of abusive treatment or violence. Brutality against migrants in Algeria,
Libya and Niger is frequent. With regard to Libya and Algeria, the report indicates
that respectively close to 54 and 33% of migrants staying there were victims of
several violent or abusive treatment in these countries.
Torture and cruel, inhuman or degrading treatment of migrants occur mainly during
arrests and detention. For example, the Joint Report of UNMIL and OHCHR refer to
several cases of torture against migrants in Libya. In addition to the physical
atrocities inflicted on migrants, the ill-treatment of migrants is exacerbated by prison
overcrowding and difficult conditions of detention (lack of ventilation and lighting,
inadequate access to sanitary facilities and latrines, constant confinement,
malnutrition, etc.).
In Niger, the field investigation identified rackets and abuses of authority allegedly
committed by elements of the ISF and DSF at checkpoints. According to testimonies
collected, migrants in transit are subjected to threats, psychological violence and
even physical brutality aimed at extracting money from them. Migrants who refuse
to submit to racketeering by security officers are exposed to other types of violence,
such as money confiscation or document confiscation. Moreover, the field survey
revealed that of the 400 migrants interviewed, 18 alleged that they had been victims
77 https://www.lemonde.fr/afrique/article/2017/11/15/libye-des-migrants-vendus-aux-encheres-comme-
esclaves_5215509_3212.html
78 Joint report of the United Nations Support Mission in Libya (UNMIL) and the Office of the United Nations
High Commissioner for Human Rights: “Desperate and Dangerous: Report on the human rights situation of migrants
and refugees in Libya”, December 2018, available at: https://unsmil.unmissions.org/reports
79 IOM: Migrant Profiling Report for Niger 2017, op. cit.
35
of physical violence, 24 of psychological violence and 1 of sexual violence during
transit in Niger.
In addition, the qualitative survey conducted by the National Agency to Combat
Trafficking in Persons noted the different forms of trafficking in connection with
migration in Niger, namely:
- exploitation of the prostitution of others;
- exploitation of domestic work;
- exploitation of child begging in the context of economic migration;
- exploitation of begging by talibé children;
- forced labour.
Moreover, women and children constitute the majority of trafficked migrants in
Niger.
In addition to the actions of ISF, DSF, during the journey, migrants are subjected to
inhuman treatment by smugglers and armed bandits along the way. This is reflected
in several types of violence, including kidnapping or imprisonment for ransom
against migrants. Daniel's story80 is a perfect illustration of this situation.
Daniel, 26, left Cameroon earlier this year with his twin brother and uncle with
the intention of going to Libya and then Europe. He says that once in Libya,
the driver asked them again to pay 1,500 dinars ($1,100) per person but that
they could not pay because they lacked the money. Due to their inability to pay
the said sum, they were placed in one of Libya's informal detention centres
where they were beaten with arms.
Daniel was later sent back to neighbouring Niger, where his Libyan abductors
subjected him to forced labour, while his family remained in Libya. When he
was finally released two months later, he was helpless and still had a ransom
to pay.
The effects of these acts of torture are exacerbated by lack of reparation (restitution,
compensation, rehabilitation, satisfaction and guarantees of non-repetition81) for the benefit
of victims
80 htps://www.unhcr.org/fr/news/stories/2017/8/59848bc1a/refugies-migrants-pris-piege-dun-commerce-
meurtrier-niger.html
81
Committee against torture, General Comment n° 3, Application of article 14 by State Parties (2012), available on:
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fGC%
2f3&Lang=fr
36
3.4
The right to liberty and the security of the person (Article
6 of the African Charter)
Article 6 of the African Charter provides that: “Every 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 ».
This right is also enshrined in Article 9 of the International Covenant on Civil and
Political Rights (ICCPR). In its General Comment No. 35 on article 9 of the Covenant,
the Human Rights Committee clarified that personal freedom refers to "non-physical
confinement" and that the right to security of the person protects individuals from
intentional physical or mental harm, whether the victim is detained or not82.
In its general comment No 283, the Committee for the protection of the rights of all
migrant workers and their family members stressed that: "It is not an offence to cross
a country's border without being authorized or in possession of the necessary
documents, or to remain in a country after the expiry of a residence permit.
Criminalizing illegal entry into a country goes beyond the legitimate interest of
States Parties to control and regulate illegal immigration, and leads to unnecessary
detention. While illegal entry and residence may constitute administrative offences,
they are not in themselves offences against persons, property or national security.
The detention of irregular migrants should therefore be an exceptional, legal,
legitimate (reasonable in the light of the facts), necessary and proportional
measure84.
With regard to informal detention/retention centres for the specific case of Niger, in
2013, the Committee on Migrant Workers' Rights expressed concern about the
existence in Niger of migrant workers' detention centres based in Agadez, Arlit,
Dirkou and Niamey as well as the lack of information on detention conditions in
these centres. The Committee also deplored the lack of statistics on cases of detention
and/or custody on grounds related to irregular migration, and measures to ensure
consular assistance and access to such assistance for migrant workers and their
concerned family members85.
82
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fGC
%2f35&Lang=fr
83
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CMW%2fC%2fGC
%2f2&Lang=fr
84 Committee for the protection of the rights of migrants workers and members of their families : General
comment n°2 para 24 and 25, available at :
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CMW%2fC%2fGC
%2f2&Lang=fr
85 Committee for the protection of the rights of migrants workers and members of their families : Final
observations on Niger’s Initial Report examined on 30 and 31 August 2016, para 32 b and c, available at :
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CMW/C/NER/C
O/1&Lang=Fr [Consulted on 7 July 2019]
37
The Delegation of Niger, which presented the Initial Report to the Committee on
Migrant Workers' Rights in 2016, indicated that there were no migrant detention
centres in Niger, but rather transit centres86. At the end of the national consultation
held in connection with this study, it was also noted that this type of centre did not
exist in Niger. However, the absence of centres specifically dedicated to the
detention or retention of migrants does not necessarily mean that there are no cases
of migrant detention. There are indeed allegations of the growing use of retention or
even detention of migrants in Niger87. The field survey of the 400 migrants also
registered 6 cases of alleged migrant detention in Niger, 34 cases of detention in
Algeria and 6 cases of detention in Libya. In any event, Ordinance No. 81-40 of 29
October 1981 on the entry and stay of aliens in Niger provides for imprisonment as
a sanction against aliens who have entered or are staying in Niger unlawfully88.
In addition, data from IOM's 2016 and 2017 Annual Reports illustrate that arrests
and detentions occur at all stages of the migrants' journey; respectively :89
▪
▪
For 2017, out of the 550 migrants who replied that they had been in detention,
86% of these detentions took place in Libya;
For 2016, out of 1064, 1059 and 696 migrants reporting abuse in Algeria, Libya
and Niger respectively, 2% reported to have been detained in Algeria; 15% in
Libya and 10% in Niger90.
A report by the United Nations Conference on Trade and Development
(UNCTAD)91 shows that trans-Saharan migration through the Agadez-Sabha
corridors (Libya) represents the main flows of illegal intra-African migration. In the
context of widespread insecurity in Libya, irregular migrants are more exposed to
several arbitrary acts that could affect their rights. It is reported that despite Libya's
international obligations, in practice, the majority of migrants are placed in
indefinite detention pending their return without having been charged, tried or
convicted under applicable Libyan laws92.
Moreover, the right to liberty and security of the person is called into question when
migrants are kidnapped by abductors, as in Daniel's above-mentioned case.
Thousands of men, women and children are detained in the centres of the
Directorate for the Fight against Irregular Immigration (DCIM) in Libya without due
process or access to a lawyer or judicial authorities to challenge the legality of their
86 https://www.ohchr.org/fr/NewsEvents/Pages/DisplayNews.aspx?NewsID=20436&LangID=F
87 Abdoulaye Hamadou : The management of migration flows in Niger between commitments and constraints, op. cit.
p. 11
88 See section 5 of this study on the legal framework in Niger
89 IOM: Migrant Profiling Report for Niger 2017, op. cit
90 : IOM : Migrant Profiling Report for Niger 2016, op. cit p. 23,
91 UNCTAD : 2018 Report on migrations for structural transformation, p.61
92 Joint report of the United Nations Support Mission in Libya (UNMIL) and the Office of the United Nations
High Commissioner for Human Rights: “Desperate and Dangerous: Report on the human rights situation of migrants
and refugees in Libya”, December 2018, p. 25, available at: https://unsmil.unmissions.org/reports
38
detention. The overwhelming majority of detainees have never been brought to
justice93.
In its decision following the examination of Communication 71/92 Rencontre
Africaine pour la Défense des Droits de l'Homme (RADDHO) /Zambia94, the
Commission denounced the fact that migrants are detained and denied the right to
have their case heard.
In addition to the fact that Libya appears to be the country in which migrants are
most deprived of their right to liberty, the conditions of detention in that country are
deplorable as described in the joint UNMIL and HCHR report. These detentions are
marked by allegations of torture, cruel, inhuman or degrading treatment, prison
overcrowding, unhealthy environment, etc.95.
In view of the heterogeneous nature of migration, there are significant risks that
certain categories of migrants benefiting from special protection (victims of
trafficking, children, refugees, etc.) may often find themselves among migrants
detained on the grounds of irregular status.
In addition to arbitrary arrests and detention, migrants' right to safety is also
severely tested during the journey when they encounter groups of bandits and
rebels. These groups are responsible for the physical and psychological violence,
threats, confiscation of money, property and kidnapping of migrants.
3.5
Right to have his cause heard (Article 7 of the African
Charter)
Article 7 of the Charter guarantees everyone the right to have their cause heard,
including through an appeal to competent courts in the event of a violation of a
fundamental right, the right to a defence and the right to be assisted by a defence
counsel of their choice.
Despite the atrocities experienced by migrants throughout their journey, access to
justice for violations is still a major problem.
Thirty-two of the 400 migrants interviewed took legal action against the judicial
authorities to seek compensation for the violations of their rights. The 32 cases
recorded are divided between Niger (8 cases) and Algeria (24 cases). It should be
noted that of the 32 cases, only one complaint received a favourable response in
Algeria. This is the case of a Cameroonian migrant woman whose belongings had
been confiscated by the Algerian police during her stay in Algeria. The claimant had
93 Joint report of the United Nations Support Mission in Libya (UNMIL) and the Office of the United Nations
High Commissioner for Human Rights: “Desperate and Dangerous: Report on the human rights situation of migrants
and refugees in Libya”, December 2018, op. cit. p. 39,
94 African Commission on Human and Peoples' Rights: Decision on the Communication 71/92 Rencontre
Africaine pour la Défense des Droits de l'Homme (RADDHO) / Zambia, available at :
http://www.achpr.org/fr/communications/decision/71.92/
95 Joint report of the United Nations Support Mission in Libya (UNMIL) and the Office of the United Nations
High Commissioner for Human Rights: “Desperate and Dangerous: Report on the human rights situation of migrants
and refugees in Libya”, op. cit.
39
referred the matter to the prosecutor in the judicial district who ordered the return
of her belongings. For the other complaints that have not been followed up, migrants
report that they have not received any legal assistance and complain about the
administrative burden that impede the handling of complaints.
As described above, migrants are often detained without being given the
opportunity to defend their case or to seek redress for abuses and violence suffered
during detention or return operations. When they are deported to Niger, the
question of reparation for the violence suffered in the jurisdiction of Algeria or Libya
becomes even more complicated.
In the specific case of Niger, the National Agency for Legal and Judicial Assistance
(ANAJJ), which is responsible for providing free legal assistance to vulnerable
groups, does not have the necessary means to do so. Migrants' educational level is
mainly limited to primary and secondary school and even if they had a very high
level of educational they would not necessarily be able to defend their own rights
without legal assistance.
In addition, the fact that certain competent authorities in Niger (including police
station officials) do not have sufficient knowledge about issues such as the
smuggling of migrants and trafficking in persons does not facilitate the migrants'
access to justice.96.
3.6
Right of access to information and freedom of expression
(Article 9 of the African Charter)
According to Article 9 of the African Charter, "Every individual shall have the right
to information. Every individual shall have the right to express and disseminate his
opinions within the law and regulations”.
With regard to the right of access to information, it is regrettable that discussions
between the Nigerien and Algerian authorities regarding the repatriation of
Nigerien migrants are not made public 97.
Migrants' right to access information is also put to the test during arrests and
detention. Regional and international human rights standards require that migrants
be provided with a certain amount of information to be communicated to the
detained persons, including the grounds for arrest, the charges against the person,
the right to contact consular authorities, etc. These principles are said to be difficult
to apply in practice. A Nigerian migrant who returned home in December 2017 gave
the following explanation98. »
96 National Agency to Combat Trafficking in Persons : Report of the data collection mission on trafficking in persons
and related offences, 2015, p. 9 available at : http://www.statniger.org/statistique/file/Annuaires_Statistiques/Justice/Rapport_Collecte_Donnees_Traite_Personnes_2016.
pdf
97 https://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=23698&LangID=F
98 Joint report of the United Nations Support Mission in Libya (UNMIL) and the Office of the United Nations
High Commissioner for Human Rights: “Desperate and Dangerous: Report on the human rights situation of
migrants and refugees in Libya”, op.cit.
40
« In Libya, they hate blacks. They treat us like slaves and animals. We are
stopped for no reason; once we are locked up, we never go out unless we pay
a lot of money or die slowly. »
Moreover, some facts directly compromise the migrant's freedom of expression. For
example, the refusal to submit to racketeering is a form of expression. The field study
shows that in Niger, migrants who refuse to submit to racketeering by security
officers are exposed to violence. Threats and intimidation compromise migrants'
freedom of expression. Of the 400 migrants interviewed in the field study, 26
reported having been threatened in Niger and 144 in Algeria and 3 in Libya.
3.7
Right to freedom of movement (Article 12 of the African
Charter)
Article 12 of the African Charter provides that:
▪
▪
▪
▪
▪
Every individual has the right to move freely and choose his/her residence
within a State, provided that they comply with the rules laid down by law;
Every individual has the right to leave any country, including his/her own, and
return to his/her country. This right can only be restricted if it is provided for by
law, necessary to protect national security, public order, health or morality.
Every individual has the right, in case of persecution, to seek and obtain asylum
in a foreign country, in accordance with the law of each country and international
conventions;
The foreigner legally admitted into the territory of a State Party to this Charter
may only be expelled from it by virtue of a decision under the law
The collective expulsion of foreigners is prohibited. Collective expulsion
generally targets national, racial, ethnic or religious groups.
The enjoyment of freedom of movement is intrinsically linked to the issue of
migration and, in this case, of international migration, which involves the movement
of people from one country to another. The study reveals that the enjoyment of this
right is severely tested in several cases.
As explained above, most migrants from the ECOWAS region and crossing Niger,
are in good standing with regard to the free movement that prevails in the subregion. However, the various rackets, threats and violence at Niger's checkpoints as
reported by the field study are likely to discourage the free movement of people.
Insecurity on the roads, including attacks on migrants by armed groups, also has the
same effect.
Outside the ECOWAS region, the issue of migrant’s regularity is generally the
reason given for their expulsion or return from Algerian and Libyan territories.
However, the study reveals that these expulsions do not always take place in
accordance with a decision taken under the law. Migrants can be arrested at any
time without the means/legal assistance to defend themselves; they are often raped
41
on this occasion and robbed or forced to abandon their belongings before being
transported in vehicles and deposited at the Niger border. Migrants are not given
the opportunity to challenge the legality of their return.
Through its jurisprudence99, the Commission has indicated that it does not question
the right of any State to take legal action against irregular immigrants and to return
them to their countries of origin, if the competent courts so decide. However, what
it considers contrary to the "spirit and letter" of the African Charter and international
law is the deportation of individuals without giving them the opportunity to have
their case heard by the national authorities empowered to do so.
In particular, in its decision on Communication 97/93_14AR John K. Modise /
Botswana100, the Commission stated that "while deciding who is allowed to remain
in a country is the responsibility of the authorities of that country, this decision
should always be taken according to carefully and fairly applied legal procedures,
and in strict compliance with applicable international standards and rules".
In a press release dated 22 May 2018, Mr. Ravina Shamdasani, the Spokesperson of
the United Nations High Commissioner for Human Rights called on the Algerian
government to put an end to the collective expulsions of migrants, particularly those
from sub-Saharan African countries101.
According to testimonies received by an HCHR team that visited Niamey, Agadez
and Arlit in Niger, Algerian authorities frequently organize mass roundups of
migrants from sub-Saharan Africa. The latter are arrested without notice, often on
the street or at their workplace. Migrants testify that they have not been individually
assessed. Among those arrested, some are directly transferred to Niger, others are
held in detention in inhuman conditions before being transferred to Tamanrasset
(southern Algeria) and then to the border with Niger102. According to the OHCHR
Releases, although exact figures are difficult to obtain, the number of expelled
migrants is estimated at several thousand. Several other reports allege the mass
expulsion of migrants from Algeria, including migrant children and women103.
In Libya too, several reports indicate that migrants are being massively detained
pending deportation as described in this study 104.
99 African Commission on Human and Peoples' Rights: Decision on the Communication 159/96, Union interafricaine
des droits de l'Homme, Fédération internationale des ligues des droits de l'Homme, Rencontre africaine des droits de
l'Homme, Organisation nationale des droits de l'Homme au Sénégal et Association malienne des droits de l'Homme /
Angola, para 19, available at http://www.achpr.org/fr/communications/decision/159.96/
100 African Commission on Human and Peoples' Rights: Decision on the Communication 97/93_14AR John K. Modise
/ Botswana, para 84, available at : http://caselaw.ihrda.org/fr/doc/97.93_14ar/view/fr/#merits
101 Note by the Spokesperson of the United Nations High Commissioner for Human Rights, op. cit.
102 ibid.
103 https://www.amnesty.fr/refugies-et-migrants/actualites/profilage-ethnique-en-algerie-2000-migrantsexpulses; https://www.hrw.org/fr/news/2018/02/27/algerie-nouvelle-vague-dexpulsions; See also
https://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=23698&LangID=F
104 For example: Joint report of the United Nations Support Mission in Libya (UNMIL) and the Office of the
United Nations High Commissioner for Human Rights: “Desperate and Dangerous: Report on the human
rights situation of migrants and refugees in Libya”, op. cit.
42
In both Libya and Algeria, collective expulsions on discriminatory grounds, the
absence of procedural guarantees in accordance with international and regional
human rights standards are likely to seriously undermine fundamental human
rights. Furthermore, the way in which these expulsions take place, including the lack
of case-by-case assessment, makes it impossible to grant special treatment to certain
categories of vulnerable groups, including refugees, asylum-seekers, victims of
trafficking, children, etc.
Even more disturbing, expulsions without the possibility of challenging the
expulsion decision are likely to even affect legal migrants in the countries concerned.
Moreover, the word "migrant" seems to have acquired a negative connotation,
whereas migration is only a simple manifestation of freedom of movement. The
migrant in general is immediately assimilated to an individual who travels
clandestinely; this perception has a negative impact on the treatment of migrants,
particularly when they meet of security forces.
3.8
Right to property (Article 14 of the African Charter)
Article 14 of the African Charter guarantees the right to property and provides: "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." In the
migration context, this right is put to the test in many situations.
Migrants face rackets at Niger's checkpoints. In a documentary by the National
Human Rights Commission of Niger following a fact-finding visit to migrant transit
centres and ghettos, migrants reported that they had been victims of racketeering at
police stations crossed from their countries of origin to Niger. One of the migrants
reported paying money to police at checkpoints crossed from Niamey to Agadez.
This migrant's testimony argues that police officers use several strategies to force
them to give money, such as undressing them to ensure that they do not hide their
money in their pockets or using "blades" to open migrants' pockets to recover their
hidden belongings.
Moreover, during transit through Niger, migrants often encounter armed bandits
who strip them of their belongings.
In countries of temporary residence during unannounced expulsions, migrants are
often forced to abandon their belongings; reports and testimonies indicate that they
are expelled from their homes and workplaces without the possibility to return. In
the specific case of mass expulsions of migrants, the African Commission has
indicated that they violate a whole set of rights, including the right to property105.
105 African Commission on Human and Peoples' Rights: Decision on the Communication 159/96, Union interafricaine
des droits de l'Homme, Fédération internationale des ligues des droits de l'Homme, Rencontre africaine des droits de
l'Homme, Organisation nationale des droits de l'Homme au Sénégal et Association malienne des droits de l'Homme /
Angola, para 15 & 16, available at http://www.achpr.org/fr/communications/decision/159.96/
43
Evidence from the field survey also indicates that during detention pending
expulsion, migrants are stripped of their belongings, which will no longer be
returned to them. Of the 400 migrants interviewed, 8, 122 and 5 migrants reported
that they had been forced to abandon their belongings in Niger and Algeria and
Libya respectively. There are instances when the money of migrants or that of their
families is extorted by both traffickers and armed bandits, in particular through
kidnappings and by State officials. The example of N, a migrant met during the field
survey, illustrates how a migrant can be stripped of his possessions on several
occasions during his journey.
N is a 16-year-old Guinean boy. He left Guinea Conakry by passing through Mali
to reach Algeria. When he arrived at the border between Algeria and Mali, he
fell into the hands of an armed group who had demanded a ransom payment of
250,000 CFA francs from his parents before allowing him to continue. His parents
had to make a transfer of the amount to obtain his release. He then proceeded to
Timia (rural municipality of Arlit) where he experienced the same situation and
paid 150,000 CFA francs before continuing on to Algiers. When he arrived in
Algiers, he worked for 1 year and 6 months before being caught by the police
and deported to Niger. During the return, he was stripped of his savings (1500
euros) and his belongings. According to his testimony, migrants are given false
tickets and are made to understand that their belongings will be returned to them
at the border, which is never the case.
3.9
Right to work (Article 15 of the African Charter)
According to Article 15 of the Charter, "Every individual shall have the right to work
under equitable and satisfactory conditions, and shall receive equal pay for equal
work".
According to the field survey, migrants are subjected to excessive working hours.
Wage retention is also mentioned as one of the problems experienced by migrants.
For example, of the 400 migrants surveyed, 3 migrants reported having been victims
of wage retention in Niger, 35 and 7 others reported having suffered the same thing
in Algeria and Libya respectively.
Wage retention is a frequent problem encountered during the journey of migrants
who, at a given time and for various reasons, work temporarily to obtain money. In
the IOM Niger 2016 Profiling Report, for example, on the number of migrants
reporting abuse in the country of temporary residence, 9%, 3% and 2% of migrants
reported that they had been victims of wage confiscation in Algeria, Libya and Niger
respectively.
Mass expulsions violate a whole set of rights, including the right to work 106.
Testimonies received by the UN Rapporteur during his visit to Niger allege that
"migrants from West African countries such as Cameroon, Ghana, Guinea Conakry,
106
Ibid. para 15 et 16
44
Mali and Nigeria, many of whom have lived and worked in Algeria for years, with
children born and educated in the country, are raided by police in the middle of the
night and beaten, arrested and taken to the police station, where they are detained,
identified, loaded onto buses and transported to Tamanrasset, the last Algerian city
before the border with Niger"107.
3.10 Right to health (Article 16 of the African Charter)
Article 16 of the African Charter provides that every individual shall have the right
to enjoy the best attainable state of physical and mental health.
While the enjoyment of the right to health is compromised for most populations,
particularly in developing countries, it is more so for irregular migrants who,
because of their illegal status, do not always have the opportunity to visit health
facilities openly. In addition to this overall situation, the migrants' right to health is
violated on several occasions.
As described above, migrants are generally detained in inhuman conditions without
access to basic needs. International and regional human rights standards, in
particular the Guidelines on Conditions of Arrest, Police Custody and Pre-trial
Detention in Africa (Luanda Guidelines)108 and the United Nations Standard
Minimum Rules for the Treatment of Prisoners (Mandela Rules)109 specify the need
to take the following minimum measures to improve the health conditions of
prisoners: provide prisoners with the means to ensure their hygiene, provide them
with food of nutritional value necessary to maintain their health, provide access to
health care, keep prisoners in premises that reasonably take into account the climate,
air volume, minimum floor area, lighting, heating and ventilation, etc.
The migrants’ conditions of detention, particularly in countries of temporary
residence (Algeria and Libya) as reported, are far from these standards and do not
allow the enjoyment of migrants' right to health.
Similarly, mass expulsions of migrants and their belongings (forced to abandon their
property, arrest and detention without procedural guarantees, etc.) plunge migrants
into a psychological state harmful to their health.
In general, all physical and psychological violence (including threats) suffered by
migrants severely affect their right to health. These two types of violence are the
main incidents mentioned by the migrants interviewed in the field study. Violence
that negatively impacts the health of migrants is also linked to travel conditions. For
example, being abandoned in the middle of the desert without sufficient food.
107 Statement by the United Nations Special Rapporteur on the human rights of migrants, op. cit
108 http:// www.achpr.org/fr_legalinstruments/detail?id=12
109 http://www.onu-
tn.org/Publications/Documents/244_Ensemble_des_regles_minima_des_Nations_Unies_pour_le_traitement_
des_detenus
45
3.11 Right to education (Article 17 of the African Charter)
According to Article 17 of the African Charter, people have the right to education
and to freely participate in the cultural life of their community.
The issue of the right to education is relevant to those migrant children who face the
same hardships as adults. The processes of detention and expulsion of children
under conditions that contravene international principles and standards are not
conducive to the child's education, whether in terms of education or recreational
activities that are beneficial to his or her education. In its jurisprudence, the African
Commission has clearly underlined the fact that mass expulsions are likely to
undermine the enjoyment of the right to education guaranteed in Article 17 of the
African Charter110. The mass expulsions of migrants from countries of temporary
residence to Niger as described in this study present serious risks of violating
children's right to school education.
Apart from these cases of expulsion, the child's school education is already
compromised by the fact that he or she is enrolled in an irregular migration path
with his or her parents (in these situations, the fact that they are permanently in
hiding makes it difficult to enroll children in school in the countries of temporary
residence) or by the fact that he or she travels alone. Of the 400 migrants interviewed,
for example, 35 were children and 13 were unaccompanied.
In addition, information collected within the framework of a survey undertaken on
behalf of IOM in 2016111 reveals the seriousness of the impact of migration on the
educational situation of children, particularly in Kantché. Children migrate with
their parents, especially with their mothers who go to Algeria, which results in low
enrolment and drop-out rates for children who had already started school. Due to
the migration of children, some parents refuse to send them to school, others take
advantage of holidays or vacations to remove children from the classroom and travel
with them along the migration routes. The said survey for IOM shows the low
attendance of children in villages most affected by migration; the data below
illustrate, for example, the case of two localities, Gajéré and Ourfana :
In Gajéré, the school has three levels. But due to the small number of pupils, the
teacher had to regroup them in a single class. In Ourfana, a village in the
municipality of Tsaouni, a school with 3 classes had 120 pupils at the beginning of
2014/2015 (40 pupils per class). In the course of the year, the principal had
difficulty to have 40 pupils for the whole school.
110 African Commission on Human and Peoples' Rights: Decision on the Communication 159/96, op. cit. para 15
and 16
111 Oumarou Hamani: Women and children from Kantché on the road to Algeria Socio-anthropological analysis of a
little-known phenomenon op. cit. p. 21,
46
3.12 Protection of the family and vulnerable groups (Article 18
of the African Charter)
The family is the pillar of society and Article 18 of the Charter guarantees its
protection. In addition to the protection of the family, article 18 lays down the
obligation of States to ensure the elimination of every discrimination against women
and children and to take specific measures to protect the elderly and persons with
disabilities.
3.12.1 Protection of the family
Several migrants' testimonies report the involvement of their families in the
difficulties they encounter during the journey. Some migrants are taken hostage by
armed groups or kidnapped by traffickers; their release will depend on a ransom to
be paid by the victim's parents, as in the case of N. In June 2017, for example, UNMIL
sent information to Libyan judicial authorities about social media videos showing
beaten and abused migrants and "refugees" from sub-Saharan Africa, allegedly to
extract money from their families112. According to one migrant interviewed during
the field survey, when migrants fall into the hands of armed groups, they are
stripped of their possessions and money. Those who do not have any money are
detained and their parents are requested to pay ransoms.
The wellbeing of families is also affected by arbitrary expulsions. As the testimonies
and reports used in this study show, sub-Saharan migrants are deported after
roundups without notice, often in their workplaces. Such expulsions entail great
risks of family separation. The African Commission has already indicated that the
mass expulsions of migrants that separate families violate the African Charter113.
In addition, when migrants are transferred from one detention centre to another,
families may be separated especially when there is no effective registration
system.114.
3.12.2 Protection of the child
Family separation affects the balance and wellbeing of the entire family as well as
the rights of the child. Article 19 of the African Charter on the Rights and Welfare of the
Child provides that " No child should be separated from his or her parents against
his or her will, except when authorities decide, in accordance with applicable laws,
that such separation is in the best interests of the child ". This fundamental principle
112 Joint report of the United Nations Support Mission in Libya (UNMIL) and the Office of the United Nations
High Commissioner for Human Rights: “Desperate and Dangerous: Report on the human rights situation of migrants
and refugees in Libya”, op. cit. p. 29
113 African Commission on Human and Peoples' Rights: Decision on the Communication 159/96, Union
interafricaine des droits de l'Homme, Fédération internationale des ligues des droits de l'Homme, Rencontre africaine des
droits de l'Homme, Organisation nationale des droits de l'Homme au Sénégal et Association malienne des droits de
l'Homme / Angola, op.cit.para 15 and 16,
114 Joint report of the United Nations Support Mission in Libya (UNMIL) and the Office of the United Nations
High Commissioner for Human Rights: “Desperate and Dangerous: Report on the human rights situation of migrants
and refugees in Libya”, op. cit. p. 40
47
is also enshrined in many other international and regional legal instruments for the
protection of human rights.
With regard to children's rights in relation to migration, several testimonies show
the disturbing increase of their vulnerability. There are two categories of migrant
children, those accompanied (by family members or others) and those
unaccompanied. In the field survey, it was observed that 13 out of the 400 migrants
interviewed, were unaccompanied minors (out of 35 minors).
According to some unaccompanied children interviewed in connection with the
field survey, parents live in extreme vulnerability and the only way they have to get
them out of this situation is to try their luck in North Africa or even Europe. Parents
often contribute to support the children's departure. For other unaccompanied
children, the causes of their departure are more cultural than economic. The
phenomenon of appreciating the "successful migrant" pushes parents to send their
children on the routes of migration despite their knowledge of the risks that children
incur. In addition, a report published by REACH115 indicates that other social factors
justify the migration of unaccompanied children 116. According to the report,
children are taking the migration routes on their own to escape family violence and
other family problems, religious, ethnic or political persecution in their country.
The 2017 IOM profiling report indicates that minors accounted for 9% of the total
number of migrants present in IOM transit centres in 2017117. Almost 43% of them
indicated that they were unaccompanied. 24% reported having spent some time in
Algeria, 60% had resided in Niger and 14% had spent time in Libya before arriving
in IOM centres.
In general, the accompanied children include those who are with their direct parents
and those who are accompanied by distant relatives, neighbours or simply people
'known' to the parents . From the study118 on the migration of women and children
from Kantché to Algeria, undertaken on behalf of IOM-Niger, migration is strongly
rooted in the culture of the inhabitants of this community.
Women migrate to Algeria with their own children. But those who do not have
children negotiate with their relatives to give them children to go to Algeria with.
When children are entrusted to migrants, there is a tacit agreement between parents
and migrants; in fact, these children are mostly used as beggars in Algeria, the
benefits from begging are divided between migrants and parents of the child
entrusted to them. The children enlisted in this adventure are generally very young;
the younger they are, the more "docile" they are and are supposed to attract “the pity
of Algerians.”
115
REACH est une initiative conjointe de deux organisations non gouvernementales internationales - ACTED
et IMPACT Initiatives- et du UN Operational Satellite Applications Programme (UNOSAT).
116
Reach: Report on “Children on the Move in Italy and Greece”, June 2017, p. 3
117
IOM Niger : Migrants Profiling Report 2017, op.cit. p. 12
118
Oumarou Hamani: Women and children from Kantché on the road to Algeria Socio-anthropological analysis of a
little-known phenomenon, op. cit. p. 31-35
48
Despite their vulnerability, migrant children are exposed to the same violence as
adults, including harassment, intimidation, abuse, ill-treatment, labour exploitation,
arbitrary arrest and detention, deportation, lack of access to food, water, health care,
housing and education. In the particular case of detentions, according to testimonies
received from migrants during the field survey, migrants awaiting expulsion from
Algeria to Niger are held in an assembly centre without distinction; women, children
and men are detained together despite international and regional standards setting
out the principles for the separation of groups of detainees (except for the best
interests of the child in the case of persons under 18 years of age).
Furthermore, the documentary survey shows that Nigerien children who have
returned from Algeria are taken care of by the Nigerien authorities with UNICEF
support and are reunited with their families. In the case of unaccompanied nonNigerien migrant children returning from Algeria or Libya, they are referred to IOM
and receive basic assistance for their return to their country of origin under IOM's
Assisted Voluntary Return (AVR) programme119. The condition for eligibility to
IOM assistance is the willingness to return. This IOM assistance does not therefore
cover the case of unaccompanied migrant children who do not wish to return to their
communities or countries of origin.120.
3.12.3 Protection of women and girls
Women and girls are not only subjected to the same violence as men, but they are
also more vulnerable to serious violations such as rape, sexual assault and
exploitation through prostitution. During the field survey, one (1) woman reported
having been sexually abused. However, this does not mean that there are no other
women affected by such violence. Indeed, violence and sexual assault are extremely
sensitive subjects and therefore women are less likely to report or talk about them.
In considering this issue, it should be borne in mind that women and girls are the
most affected by human trafficking in the world. According to the 2018 UNODC
Global Report, out of 142 countries considered, more than 70% of victims of
trafficking are women and girls and sexual exploitation is the first form of violence
they are subjected to121. The border between trafficking in persons and migrant
smuggling is extremely narrow.
In Niger, the law on the smuggling of migrants is believed to have aggravated the
forced prostitution of women as a side effect, among others. Fearing the application
of the law considered to be too repressive, irregular migrant are "trapped" in Agadez
without the possibility to pursue their migratory journey further north. With no
access to the most basic utilities and fundamentals, these women are reportedly
forced into prostitution to survive122. It is also reported that in Agadez, women are
subjected to sexual exploitation as a way of repaying debts related to their journey.
119 Assisted Voluntary Return
120 Statement by the United Nations Special Rapporteur on the human rights of migrants, op.cit
121 UNODC, Global report on trafficking in person, 2018, available at: https://www.unodc.org/unodc/data-
and-analysis/glotip.html
122 https://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=23114&LangID=F
49
Once the debt is repaid, they are sometimes taken to Libya where gangs subject them
to sexual violence before putting them on boats for Europe123.
The joint UNMIL and OHCHR report unveils the extent and seriousness of sexual
violence against migrant women and girls in Libya. For example, it is reported that
with the exception of the Tarik al-Sikka detention centre, where female guards were
introduced in January 2018, none of the DCIM facilities employ female guards. Even
in Tarik al-Sikka, the guards are not present round the clock124. This situation greatly
promotes violence against women, particularly sexual violence. Women prisoners
in these centres regularly reported that they had been strip searched by or in front
of male guards. Some also reported that they had been subjected to body cavity
searches and caressed on the chest and buttocks during these searches125.
According to a Nigerian migrant woman who returned home, "Being sold and
forced to have sex with Arab or African men, either to pay for the trip or to get
money, is a common occurrence for a woman or girl throughout the trip, from the
first day in the desert to your departure from Libya". In Libya, women are often
raped in the presence of their children or other family members126.
A 30-year-old woman of Ivorian origin who arrived in Libya in April 2017 and was
held in captivity for seven months, beaten and raped by traffickers, reported the
following to UNMIL 127 :
" They[the men who held them captive in Sabha] would come with their
weapons and choose the women they wanted to rape and take them outside.
It does not matter whether the women are pregnant or breastfeeding.... I saw
three women die with my own eyes. Our men[migrants] should then pick up
the bodies and dump them in the desert... The same thing[rape] happened in
Sabratah campo. They[the authors] forced the women to take off all their
clothes, they examined them and chose some of them to rape. I left my
country in search of a better life for myself and my children; instead, I was
tortured and raped. If a woman refuses to sleep with the traffickers, she does
not eat, she is beaten, and she does not travel (cross the sea), even if she has
already paid........ I can't express what we've been through. A man who
refused to listen to the traffickers was shot dead before our eyes.
Such sexual violence against women often results in unwanted pregnancies and
sexually transmitted diseases, as well as related physical and psychological trauma.
Additionally, the situation of pregnant or breastfeeding women is even more
disturbing. Indeed, the conditions of detention and the method of expulsion from
123 Africa-Frontex Intelligence Community Joint Report 2017, p. 26
124
Rapport conjoint MANUL et HCDH : “Desperate and Dangerous: Report on the human rights situation of
migrants and refugees in Libya”, op. cit. p 45
125 Joint report of the United Nations Support Mission in Libya (UNMIL) and the Office of the United Nations
High Commissioner for Human Rights: “Desperate and Dangerous: Report on the human rights situation of migrants
and refugees in Libya”, op.cit
126 ibid
127 ibid
50
the countries of stay affect them seriously, since they need special treatment in view
of their situation. When they are deposited at the Niger border in the event of
expulsion by Algeria and forced to walk several kilometres, pregnant women arrive
bleeding at IOM's transit centres and completely in shock after their long walk in the
desert128.
3.12.4 Protection of persons with disabilities
With regard to migrants with disabilities, the field survey did not identify any
among the respondents. However, on the basis of their observations, those
interviewed stated that during the period of detention, no special provision is made
for people with disabilities.
3.12.5 Protection of the elderly
As for the elderly, especially those aged 60 and over, they accounted for about 3%
of the total sample, or 11 out of 400 migrants surveyed. IOM's 2017 and 2016
profiling reports also indicate a very low presence of elderly people among
migrants. The most common incidents along the way reported by the 11 elderly
people in the field survey were mainly confiscation, being forced to abandon
belongings, threats and false promises. It should be noted, however, that specific
data on this category of vulnerable persons among migrants are scarce; it is therefore
difficult to conclude that they are not subjected to other forms of abuse and violence.
3.13 Right to freely dispose of natural resources, right to
economic, social and cultural development, right to peace
and security, right to a general satisfactory environment
favourable to their development. (Articles 21, 22, 23, 24 of
the African Charter)
Articles 21, 22, 23 and 24 of the African Charter respectively guarantee the following
collective rights: the right of peoples to freely dispose of their natural resources, the
right to economic, social and cultural development, the right to peace and security
at both the national and international levels, and the right to a general satisfactory
environment favourable to their development.
The study did not reveal any evidence of violations of these rights during the
migration process. However, it disclosed that migration is highly dependent on the
enjoyment of these rights. Indeed, irregular migration is mainly based on the lack of
effective enjoyment of these rights recognized and guaranteed by the African
Charter. Among the causes of migration, particularly irregular migration, economic,
social and security problems are cited, with economic difficulties as the main reason
for migration. Migrants flee their countries in search of a better future.
128 Note by the Spokesperson of the United Nations High Commissioner for Human Rights, op. cit
51
For example, all of the 400 migrants involved in the field survey reported leaving
their country for economic and social reasons. In economic terms, migrants complain
about the absence of work in their country of origin, discrimination and influence
peddling that limits access to jobs for certain categories of people, etc. Socially, the
most frequently cited determinant factor for migrants is marital; many migrants
interviewed claim to be the only breadwinners of the family to meet economic needs;
they therefore migrate to look for more means of subsistence.
The 2016 IOM Profiling Report also confirms that economic factors are the main
drivers of migration. For migrants assisted in four IOM transit centres in Niger in
2016, 60% of respondents said they were going in search of employment
opportunities, while 27% said they were migrating to escape poverty129. The
conclusions drawn in the 2017 IOM Profiling Report are virtually the same 130.
The low level of economic development, the unequal distribution of resources and
property, the impoverishment due to political and other crises in the migrants'
countries of origin are the main direct causes of migration, particularly irregular
migration, and are also, to a certain extent, indirect causes of human rights violations
against irregular migrants during their journey.
129 IOM Niger : Migrant Profiling Report for Niger 2016, p. 16, available at :
https://gmdac.iom.int/OIM-NigerRapport-de-Profilage-des-Migrants-2016
130 IOM Niger : Migrant Profiling Report for Niger 2017, p. 9, available at
https://displacement.iom.int/reports/niger-%E2%80%94-rapport-de-profilage-des-migrants-2017
52
4. ROLE AND RESPONSIBILITIES OF PUBLIC
AUTHORITIES IN RESPECTING AND
PROTECTING MIGRANTS’ RIGHTS
In the field of human rights, the State is primarily responsible for violations that
occur either because it has failed in its obligation to promote or establish these rights
or because it has failed in its obligation to protect them. In practice, the actions of
various actors materialize these violations.
Only 72 of the 400 migrants interviewed agreed to speak out about the perpetrators
of acts violating the fundamental rights of migrants.
4.1
Overview of the profile of perpetrators of acts violating
the fundamental rights of migrants
According to testimonies received from migrants during the field survey, those
responsible for acts violating the fundamental rights of migrants are the police,
gendarmes, soldiers, smugglers, drivers and the population. These testimonies
contend that the police are the leading perpetrators of incidents violating the rights
of migrants, followed by smugglers, gendarmes, soldiers, armed groups, the
population and drivers.
Violations of rights by ISF and DSF occur during crossings at checkpoints and
during expulsions as mentioned above.
In the case of drivers and smugglers, migrants claim that they are often abandoned
by these people on their way to the desert and without any means of subsistence.
With regard to armed groups, migrants report that they operate at borders, strip
them of their belongings and often physically abuse migrants who try to resist them.
The forms of violence meted out to migrants by the population are essentially
threats, psychological violence and racist statements against migrants; the fact that
they are not accepted by the communities is an additional source of psychological
violence.
The table below shows the different levels of responsibility in incidents that may
violate migrants' rights during their journey as reported by migrants who have
spoken out on the perpetrators of the incidents.
53
Profile of those responsible for violating the human rights of migrants
Function
ARMED GROUPS
GENDARME
MILITARY
SMUGGLER
POLICE
DRIVER
POPULATION
Total
Number
5
8
5
12
38
1
3
Percentage
7%
11%
7%
17%
53%
1%
4%
72 100%
Source : field survey conducted in December 2018 and January 2019 in Niger
The responsibility of ISF and DSF in violating the human rights of migrants is due
to both their action and inaction.
4.2
The specific role played by ISF and DSF in acts likely to
violate the fundamental rights of migrants
4.2.1 Violations of the human rights of migrants due to actions of ISF and DSF
According to migrants' testimonies, the most common forms of violence perpetrated
by security officers (police, gendarmerie, army, etc.) against migrants are as follows:
threats, psychological and physical violence, discrimination, confiscation of money
and property, confiscation of documents, false promises and deception, continued
detention, deprivation of food and drink, rackets, etc. These types of violence are
perceptible both during migrants’ transit through Niger and during their temporary
stay in Algeria and Libya and upon return to Niger.
During transit in Niger: According to testimonies received, migrants in transit in
Niger who refuse to submit to racket by ISF or DSF are exposed to the confiscation
of money or documents and other forms of physical and psychological violence.
Some migrants consider these rackets to be discriminatory because, unlike
Nigeriens, non-Nigerien migrants are required to systematically pay money before
crossing security barriers both at the border and within the country. In addition, it
is reported that the amount to be paid differs depending on whether the migrant is
from ECOWAS or not. These testimonies from migrants are largely supported by
other reports. For example, in its 2016 report, GAN Business Anti-corruption posits
that security forces in Niger frequently take bribes from migrants131.
131 GAN Business Anti-corruption Portal : Niger Corruption Report, 2016, available at :
https://www.ganintegrity.com/portal/country-profiles/niger/
54
During the stay: Migrants who have stayed in Algeria and Libya report that
incidents affecting their fundamental rights occur, in particular during their arrest,
detention and deportation as described in point 3 of this document.
During the return: On return, migrants report arbitrary arrests and detention,
violence, confiscation of property and many other incidents mentioned above
concerning security officers in countries of temporary residence. Migrants also
underscore the non-assistance of Nigerien authorities when they are deposited at
the Niger border within the framework of their expulsion process; they are forced to
walk for miles to get to Niger's first checkpoint.
4.2.2 Violations of the human rights of migrants due to the inaction of ISF and
DSF
The inaction of ISF and SDF is reflected, on the one hand, in the lack of security in
some areas used by migrants. However, States have the responsibility to guarantee
the security of territory, persons and property. The issue of irregularity of migrants
should not be confused or justify any lack of protection for them; moreover, some
migrants are victims of transnational trafficking and end up in migrant convoys to
unknown destinations against their will.
Inaction is also reflected in the complicity that results from the corruption of ISF by
smugglers and traffickers, thus circumventing the fight against practices harmful to
migrants, including the smuggling of migrants and trafficking in persons. In the case
of Niger in particular, a Transparency International report contends that at roadside
checkpoints north of Niamey, police systematically take migrants away to ask for
bribes ranging from $2 to $20. According to the High Authority against Corruption
and Related Offences (HALCIA), payments to security forces and local authorities
would amount to $450 per vehicle and $30 per foreign migrant on the road linking
Agadez to Libyan borders132.
In addition, the 2016 HALCIA Report indicates that the public sector appears to be
the most affected by corruption. Public sector dismemberments are not affected by
corruption to the same degree. For example, customs services (87, 36%), police
services (83, 33%), gendarmerie services (78.74%) are considered to be among the
dismemberments most affected by the phenomenon133.
The same report indicates that, following investigations conducted in 2013, it was
noted that defence and security forces and mayors illegally collect money from
vehicle drivers and passengers. For example, the following amounts are paid for the
Agadez (Niger)-Arlit (Niger)-Assamaka (Algeria) route.
132 Transparency International Niger : Overview of corruption and anti-corruption, 2017, p. 5, available at:
https://www.transparency.org/files/content/corruptionqas/Country_profile_Niger_2017.pdf. See also: The
Guardian, Corruption stymies Niger's attempts to stem flow of migrants to Europe, 2015. Available at:
https://www.theguardian.com/global-development/2015/jun/22/corruption-niger-attempt-stem-flowmigrants-europe-smugglers-sahara
133 HALCIA : General Activity Report on the fight against corruption, 2016, p. 14
55
Extract from the 2016 HALCIA Report
According to the HALCIA report, it appears that in Agadez and Tahoua, for
example, police officers stationed at the barrier receive between 10,000 and 13,000
on each passenger. Citizens who are non-nationals of ECOWAS member countries
and who do not have a visa are obliged to pay between 20,000 and 40,000 francs.
This amount represents the visa fees according to the police134.
The conniving and silent observation of scenes of corruption by ISF and DSF is likely
to fuel the trafficking and smuggling of migrants and the harmful consequences on
human rights associated with it.
4.2.3
Causes of the implication of ISF and DSF in violations of migrants’
fundamental rights
There are several reasons why ISF and SDFs are responsible for the violence suffered
by migrants.
First, the State does not have sufficient technical, material and financial means to
secure all areas of the vast Nigerian territory. The very limited State resources
constitute an obstacle in this regard; this can also explain corruption and rackets to
some extent. For example, if some police elements lack basic resources such as
working vehicles, fuel or appropriate training, it is difficult to imagine effective
security in the different areas of the country135.
Lack of effective and efficient internal control mechanisms also encourages
corruption and racketeering by ISF and DSF. The High Authority against Corruption
and Related Offences (HALCIA) was established in 2011 to strengthen the
institutional framework for the fight against corruption.
The study further revealed a great need for training law enforcement officials on
migrants' rights, including issues of migrant smuggling and trafficking in persons.
Initial training received by the Police, the Gendarmerie and the National Guard, for
example, is limited to human rights in general.
134 HALCIA : General Activity Report on the fight against corruption, 2016, p. 65 to 67
135 Transparency International: Niger, Overview of corruption and anti-corruption, p 4 et.5, available at:
https://www.transparency.org/files/content/corruptionqas/Country_profile_Niger_2017.pdf. See also :
56
The State of Niger, in its role as guarantor of fundamental rights, has adopted a set
of rules and established institutions and mechanisms to comply with its
international human rights obligations, including those regarding migrants. The
assessment of the measures taken to protect the specific case of human rights of
migrants transiting through Niger or returning to Niger through North Africa is
based on the regulatory, institutional and strategic framework that has been put in
place.
57
5. LEGAL FRAMEWORK FOR THE PROTECTION OF
THE FUNDAMENTAL RIGHTS OF MIGRANTS
In general, the legal instruments for the protection of the human rights of persons
under Niger's jurisdiction also concern the rights of migrants, since the latter,
whether regular or not, enjoy the dignity accorded to every human person. There
are also specific instruments that address the issue of migrants.
5.1
List of main instruments
Niger’s legal framework for the protection of migrants' rights is characterized by
national and supranational legal instruments that deal with migrants' rights.
List of regional instruments
Year of
ratification/accession136
15 July 1986
11 December 1996
8 November 2011
16 September 1971
7 July 2008
Instruments
African Charter on Human and Peoples' Rights
African Charter on the Rights and Welfare of the Child
African Charter on Democracy, Elections and Governance
OAU Convention governing the specific aspects of refugee
problems in Africa
African Youth Charter
List of international instruments
Year of
ratification/accession137
7 March 1986
7 March 1986
30 September 2004
18 March 2009
30 September 2004
18 March 2009
Instruments
International Covenant on Civil and Political Rights
International Covenant on Economic, Social and Cultural
Rights
United Nations Convention against Transnational
Organized Crime
Protocol against the Smuggling of Migrants by Land, Sea
and Air, supplementing the United Nations Convention
against Transnational Organized Crime
Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, supplementing
the United Nations Convention against Transnational
Organized Crime
International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families
136 Source : https://au.int/en/treaties
137 Source : https://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=fr
58
5 October 1998
27 April 1967
8 October 1999
30 September 1990
26 October 2004
24 June 2008
25 August 1961
29 June 2015
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
International Convention on the Elimination of All Forms
of Racial Discrimination
Convention on the Elimination of All Forms of
Discrimination against Women
Convention on the Rights of the Child
Optional Protocol to the Convention on the Rights of the
Child on the sale of children, child prostitution and child
pornography.
Convention on the Rights of Persons with Disabilities
Convention relating to the Status of Refugees
2014 Protocol to ILO Convention No. 29 on Forced Labour
List of sub-regional instruments
Year of
Instruments
ratification/accession138
29 November 1979
ECOWAS Protocol on the Free Movement of Persons, the
Right of Residence and Establishment adopted in Dakar on
29 May 1979 and ratified by Niger on 29 November 1979
List of the key national instruments
Constitution of the 7th Republic of Niger adopted on 25 November 2010
Law n°2015-36 of 26 May 2015 on the illegal trafficking of migrants
Ordinance No. 81-40 of 29 October 1981 on the entry and stay of aliens in Niger
Decree No. 87-076/PCMS/MI/MAE/C of 18 June 1987 implementing Ordinance
No. 81-40 of 29 October 1981 on the entry and stay of aliens in Niger
Decree No. 2014-004/PRN/MJ of 3 January 2014 establishing the criteria and
procedures for proving indigence in order to benefit from legal assistance
Decree No. 2014-488/PRN/MJ of 22 July 2014 adopting the document entitled
"National Action Plan to Combat Trafficking in Persons
Decree No. 2016-449/PRN/MJ of 11 August 2016 determining the organs
responsible for the management and control of legal and judicial assistance funds
Ordinance No. 2010-86 of 16 December 2010 on combating trafficking in persons
Law No. 97-016 of 20 June 1997 on the status of refugees
138 Niger : Initial and Periodic Report, 1988-2003 submitted to the ACHPR, p. 21, available at:
http://www.achpr.org/fr/states/niger/reports/1st-7th-1988-2002/
59
Law No. 2011-42 of 14 December 2011, establishing the rules applicable to legal
and judicial assistance and creating a public administrative institution called
"National Agency for Legal and Judicial Assistance".
Law No. 2003-025 of 13 June 2003 amending Law No. 61-27 of 15 July 1961
establishing the Penal Code, Special Official Gazette No. 4 of 7 April 2004
Law No. 2012-44 of 24 August 2012 determining the composition, organization,
powers and functioning of the National Human Rights Commission (NHRC)
Decree No. 2013-344/PRN/MP/PF/PE of 23 August 2013 adopting the
framework document for the protection of children in Niger and its action plan
5.2
Content of the key instruments
5.2.1
Content of the supranational instruments applicable in Niger
The legal framework as reflected in relevant regional and international instruments
recognizes the following basic human rights of migrants:
▪
▪
▪
▪
▪
▪
▪
▪
▪
▪
▪
▪
▪
▪
right to legality and non-discrimination;
right to life;
right to the respect of one’s dignity, right not to be subjected to any form of
human exploitation and degradation (slavery, torture, cruel, inhuman or
degrading treatment);
right to liberty and security of the person, including the right not to be
arbitrarily arrested or detained;
right to a hearing, right to a fair trial;
right of access to information;
freedom of association and assembly;
right to participate in the management of public affairs;
right to leave and return to any country, including one's own;
right of every individual who is lawfully within the territory of a State to
move freely;
right of ownership;
right to work under fair and satisfactory conditions and to receive equal pay
for equal work;
right to education;
right to protection of the family and vulnerable groups, including women,
children, persons with disabilities and the elderly.
The international law binding the Republic of Niger highlights a number of rights
and principles from which States cannot derogate even in emergency situations139.
These include the following rights:
139 Article 4 of the International Convention on civil and political rights
60
▪
▪
▪
▪
▪
▪
▪
right to life;
prohibition of torture and other cruel, inhuman or degrading treatment or
punishment, and medical or scientific experiments carried out without the
free consent of the person concerned);
prohibition of slavery, slave trade and servitude);
prohibition of imprisonment of a person unable to fulfill a contractual
obligation;
legality of sentences and the principle of non-retroactivity of criminal laws
(except the "softest" criminal law);
recognition of the legal personality of each person;
freedom of thought, conscience and religion.
In any event, derogations and restrictions on the enjoyment of a right shall not result
in discrimination solely on the grounds of race, colour, sex, language, religion or
social origin and shall only be applied if they are lawful, necessary, proportional and
pursue a legitimate goal140.
Thus, subject to the principles of international human rights law applicable to
derogations, limitations and restrictions, migrants enjoy their fundamental rights.
In addition to the recognition of general human rights, some of the regional,
international and sub-regional instruments to which Niger is bound deal specifically
with rights relevant to migrants. These include the following instruments:
���
▪
The ECOWAS Protocol on the Free Movement of Persons, the Right of
Residence and Establishment adopted in Dakar on 29 May 1979: this protocol
is the instrument par excellence that guarantees the free movement of persons
and goods within the ECOWAS region. It abolishes the visa for ECOWAS
nationals as mentioned above.
The Protocol against the Smuggling of Migrants by Land, Sea and Air,
supplementing the United Nations Convention against Transnational
Organized Crime: within the framework of the fight against the smuggling of
migrants, this protocol lists several obligations towards States Parties. Among
these obligations, States must:
o Adopt legislative and other measures to penalize the smuggling of
migrants (Art 6);
o Cooperate to prevent and suppress the smuggling of migrants by sea,
in accordance with the international law of the sea (Art 7);
o Take the necessary measures to guarantee the integrity and security of
travel or identity documents and prevent their unlawful creation,
issuance and use (Art 12);
140 Human Rights Committee: General comment n° 29 State of Emergency (art. 4), available at :
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f21
%2fRev.1%2fAdd.11&Lang=fr
61
o Provide specialized training for immigration and other relevant
officials in the prevention, humane treatment of migrants and the
prevention of the smuggling of migrants - Cooperate between States
and other organizations to this end (Art 14);
o Take measures to provide or strengthen information programmes to
raise public awareness of acts constituting the smuggling of migrants
(Art 15);
o Ensure the protection and assistance of trafficked migrants in
accordance with applicable international law (in particular, the right
to life and the right not to be subjected to torture or other cruel,
inhuman or degrading treatment or punishment) and taking into
account the special needs of women and children (Art 16.1 & 16.4);
o Facilitate and accept, without unreasonable delay, the return of the
smuggled migrant (Art 18).
▪
The Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime: among the measures to
be taken by States to combat trafficking in persons, the Protocol in its Article 10
(2) provides as follows: :
“States Parties shall provide or strengthen training for law enforcement,
immigration and other relevant officials in the prevention of trafficking in persons.
The training should focus on methods used in preventing such trafficking,
prosecuting the traffickers and respecting the rights of victims, including protecting
them from the traffickers. The training should also take into account the need to
consider human rights and child- and gender-sensitive issues and it should
encourage cooperation with non-governmental organizations, other relevant
organizations and other elements of civil society”.
▪
International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families: this Convention provides, among
many other principles, for the right of migrant workers to freedom, to security
and to have their case heard. To this end, it provides the following rights in
Article 16:
o Migrant workers and members of their families who are arrested shall be
informed, at the time of their arrest, if possible in a language they understand,
of the reasons for their arrest and shall be promptly informed, in a language
they understand, of any charges brought against them;
o Migrant workers and members of their families who are arrested or detained
on a criminal charge shall be brought promptly before a judge or other
authority empowered by law to exercise judicial authority and shall be tried
within a reasonable time or released. Their detention pending trial should not
be the rule, but their release may be subject to guarantees to ensure their
appearance at the hearing, at all other stages of the proceedings and, where
appropriate, for the execution of the judgment;
62
o If migrant workers or members of their families are arrested or are
imprisoned or held in police custody pending trial or are otherwise detained:
✓ At their request, the consular or diplomatic authorities of their State of
origin or of a State representing the interests of that State shall be informed
without delay about their arrest or detention and the reasons invoked;
✓ The persons concerned shall have the right to communicate with these
authorities. Any communication addressed to the said authorities by the
persons concerned shall be transmitted to them expeditiously and they
shall also have the right to receive communications from the said
authorities without delay;
✓ The persons concerned shall be informed without delay of this right and
of the rights deriving from the relevant treaties
o Migrant workers and members of their families who are deprived of their
liberty through arrest or detention shall have the right to bring proceedings
before a court for an expeditious decision on the lawfulness of their detention
and to order their release if the detention is unlawful.
o Migrant workers and members of their families who are victims of unlawful
arrest or detention are entitled to compensation.
Regional and international instruments also lay down fundamental principles for
the protection of vulnerable groups. These include, in particular:
▪
The best interests of the child: the best interests of the child must guide any
decision affecting him or her (Article 4 of the African Charter on the Rights and
Welfare of the Child). This implies, among other things:
o The obligation of the State to ensure that the child is protected from all forms
of economic exploitation;
o The right of the child not to be separated from his or her parents against his
or her will, unless his or her interest is at stake;
o If a child is apprehended by a State Party, his or her parents or guardian shall
be informed by that State as soon as possible.
▪
Special treatment of women: temporary special measures may be adopted by
States to achieve equality between men and women 141. In particular with regard
to detention, women must be given special treatment related to their status as
women. For example, they must be provided with the facilities and supplies
required to meet their specific hygienic needs.
▪
Special treatment of persons with disabilities: Reasonable adjustments and
specific measures should be undertaken to ensure the de facto equality of persons
with disabilities.
▪
Special treatment of the elderly: Elderly people should be provided with
specific protection measures in relation to their physical or moral needs.
141 Article 4 (1), Convention on the elimination of all forms of discrimination against women
63
▪
Protection of the family: The principle of its protection is specifically laid down
in Article 18 of the African Charter as mentioned above.
▪
The principle of non-return: According to this principle, no refugee should be
subjected by a State to measures such as refusal of admission at the border, return
or expulsion which would oblige him to return or remain in a territory where his
life, physical integrity or freedom would be threatened.
5.2.2 Content of the main national instruments
The Constitution of 25 November 2010
The preamble to the Constitution of Niger proclaims the people's commitment to
human rights as defined by the 1948 Universal Declaration of Human Rights, the
1966 International Covenant on Civil and Political Rights, the 1966 International
Covenant on Economic, Social and Cultural Rights, the 1981 African Charter on
Human and Peoples' Rights.
Article 32 of the Constitution recognizes the freedom to come and go under the
conditions provided by law.
Ordinance n° 81-40 of 29 October 1981 on the entry and residence of aliens in
Niger and its implementing decree n° 87-076/PCMS/MI/MAE/C of 18 June 1987
regulating the conditions of entry and residence of aliens in Niger
These two instruments govern the conditions of entry and residence of aliens in
Niger and therefore determine the measures applicable to irregular migrants.
The Decree implementing the Ordinance establishes, in article 2, the principle that
an alien wishing to enter Niger, must be in possession of a national passport, or a
travel document in lieu thereof, stamped with a Nigerien visa and carry an
international vaccination certificate. In addition, the alien must provide a document
guaranteeing his or her repatriation (for example, a round-trip transportation ticket,
a certificate from a banking institution approved by the State of origin guaranteeing
the repatriation of the person concerned in the event that he or she is unable to cover
the costs themselves, etc.). However, nationals of States that have concluded an
agreement with Niger for the reciprocal abolition of visas under the conditions
provided for in the agreement, are exempt from the requirement to present a visa
(Article 3 of the Decree). Other visa exemptions are provided for by law, involving
aliens transiting through Niger by air and who do not leave the airport confines
during the stopover.
The 1981 Ordinance provides for sanctions against aliens who have entered Niger
illegally or who have been lawfully expelled but have not left Niger within the
prescribed period (Article 11 of the Ordinance). The penalties include imprisonment
and the payment of a fine.
64
The Law of 2015
The Law of 2015 is meant to prevent the smuggling of migrants", protect the rights
of smuggled migrants, and promote and facilitate national cooperation to prevent
smuggling. This new law is the national legal instrument, par excellence, in the field
of migrant smuggling; it sets out obligations, rights and principles to combat
migrant smuggling and protect those who are victims of this practice.
The 2015 Law imposes obligations on the Nigerien State to combat the smuggling of
migrants. Besides, it criminalizes the following acts:
▪
▪
▪
the procurement, in order to obtain, directly or indirectly, a financial or other
material benefit, of the illegal entry into Niger of a person who is not a national
or a permanent resident of that State or the complicity to that effect (Art 3);
committing or attempting to commit or being complicit in the following acts (Art
10 to 15; Art 19):
o Facilitating the illegal entry or exit into or from Niger of a person who is
not a national or a permanent resident;
o producing, procuring, providing or possessing a fraudulent identity or
travel document to facilitate the smuggling of migrants;
o Use illegal means to allow a person who is not a national or a permanent
resident to remain in Niger without fulfilling the conditions necessary for
legal residence.
taking advantage of, abusing the vulnerability or dependence of the trafficked
migrant (including vulnerability or dependence resulting from illegal or
undocumented entry into the country, pregnancy or physical or mental illness,
disability or reduced capacity to form judgments by virtue of being a child) for
material benefit or advantage.
Among the aggravating circumstances for these offences, article 16 of the Law
provides, inter alia, for the following cases:
▪
where the offence involves circumstances that endanger or threaten to endanger
the life or safety of the smuggled migrant or result in inhuman or degrading
treatment of smuggled migrants, including where the exploitation or offence has
resulted in serious injury to or death of the smuggled migrant, including death
by suicide;
▪
the offender is a public official (corruption with a view to committing trafficking
is punished in accordance with the Criminal Code);
the trafficked migrant is a child or the perpetrator has used a child as an
accomplice or participant in the criminal act;
the trafficked migrant is a pregnant woman;
the trafficked migrant has an intellectual or physical disability,
the offender confiscated, destroyed or attempted to destroy the travel or identity
documents of the smuggled migrant.
▪
▪
▪
▪
65
The Law of 2015 also provides guarantees in terms of the principles of protection
and assistance to migrants (Art 25 to 29; Art 4). These include the following:
▪
▪
▪
▪
▪
Emergency medical care cannot be refused because of the migrant’s irregular
situation;
Protection and assistance measures must take into account the special needs of
women, children, persons with disability and the elderly;
The right of any trafficked migrant to initiate legal proceedings to seek
compensation for damage caused. Neither the status of the trafficked migrant
nor his or her return to his or her country of origin or outside Niger's jurisdiction
should prevent the payment of compensation to the migrant;
Any action by public actors concerning migrant children must take into account
the best interests of the child. To this end, the law provides, for example, that
o In case of uncertainty about the age of the trafficked migrant and there are
reasons to believe that he or she is a child, he or she should be considered
as a child pending verification of his or her age;
o Interviews or hearings with a trafficked migrant child should be
conducted by a specially trained professional in a suitable environment,
in a language spoken and understood by the child in the presence of his
or her parents, guardian or support person;
o The right of access to education for migrant children, including those in
an irregular situation in Niger or whose parents are in an irregular
situation, is guaranteed.
In general, the application and interpretation of the law complies with
international human rights and humanitarian law, the protection of vulnerable
groups and refugee law
The Law of 2015 also provides procedural guarantees for migrants deprived of their
liberty (Art 30). These include the:
▪
▪
▪
▪
▪
right to contact consular officials, if desired;
right to receive visits from consular officials;
right to maintain contact and correspond with consular officials;
right to receive communications from consular officers without delay;
right to receive information about their rights in their original
language.
The specific case of the return of migrants is also covered by the law (Art 34, 35, 37),
which provides as follows:
▪
▪
▪
cooperation of the competent authority with international organizations and
non-governmental organizations combatting migrant smuggling;
rapid processing of cases of refugees and asylum seekers;
facilitating the return of smuggled migrants to the country of which they are a
national or resident at the request of a State Party to the Protocol on Migrant
Smuggling or on the initiative of the competent authority.
66
5.3
Analysing the content of the legal framework
Niger's legal framework includes factors that are conducive to the protection of
migrants' rights, namely :
▪
▪
▪
▪
▪
▪
▪
▪
▪
Niger is a member of ECOWAS, and a party to the Protocol that abolishes visas
for nationals of the economic zone; this promotes the exercise of the right to
freedom of movement;
Niger is a party to several legal instruments for the protection of human rights at
the regional and international levels, although the legal framework can be
strengthened by other relevant instruments such as the Protocol to the African
Charter on Human and Peoples' Rights on the Rights of Women (Maputo
Protocol);
Niger has a national law (the 2015 Law) specifically aimed at repressing migrant
smuggling and protecting and assisting migrants, which is in itself relevant to
the protection of migrants' rights.
The existence of Ordinance No. 2010-86 of 16 December 2010 on combating the
trafficking in persons strengthens the protection of persons and migrants, in
particular against trafficking;
International human rights law and international humanitarian law are
enshrined as basic references in the 2015 law;
The 2015 law contains special provisions to protect refugees, children, women,
persons with disabilities and the elderly who are groups in need of special
protection under the African Charter and other relevant regional and
international instruments;
Trafficking in children or the use of children as accomplices or participants in
criminal act and being trafficked is an aggravating circumstance; this
requirement is likely to strengthen the protection of the child who is more
vulnerable in the context of trafficking. The law also sets out the principle of
taking the best interests of the child at heart, in any action concerning him or her;
Trafficking pregnant women and persons with disabilities is an aggravating
circumstance: There is ample evidence that women pay a heavy price in the
migration context and this applies more to pregnant migrant women. Persons
with disabilities also receive special protection. This requirement of the law is
likely to deter anyone who would want to harm these categories of persons;
Using or threatening to use any form of violence against the trafficked migrant
or his or her family is an aggravating circumstance: This requirement strengthens
family protection measures, in accordance with the provisions of Article 18 of the
African Charter.
However, other aspects of the legal framework may effectively impede the
protection of migrants' rights.
Actually, the 2015 Law which currently represents the legal text par excellence in
Niger with regard to the smuggling of migrants, has some shortcomings and
contains provisions that are not always clear and may lead to different
interpretations.
67
In terms of shortcomings, the 2015 Law globally makes international human rights
law, humanitarian law and international refugee law a basic reference in all
measures to combat the smuggling of migrants. However, in view of the facts and
the specific nature of certain violations, the law could have highlighted certain
provisions in more detail.
Although the law emphasizes the need to protect vulnerable groups, including
women, children, persons with disabilities and the elderly, it remains vague on how
the protection of women, persons with disabilities and the elderly should be
achieved. In view of the extent of the atrocities experienced by migrant women, the
law could have more precisely addressed specific measures to better protect them
as a whole. For example, the law does not specify under what conditions interviews
or hearings of women should take place. The nature of the violence suffered by
migrant women, however, requires professional support and moral and
psychological support, especially when they come into contact with ISF and DSF.
The gravity of the incidents experienced by migrant women requires specific
regulatory provisions on their cases.
The right to property is one of the most affected rights of migrants during the
journey, the law could have focused on measures to protect this migrant’s right to
property by expressly punishing cases of detention or confiscation of migrants'
property in kind and in cash.
With regard to the vagueness of the 2015 Law, the main criticism is that it provides
procedural guarantees for the migrant in the event of arrest and detention without
specifying the reasons why a migrant would end up being detained. The law was
largely based on the provisions of the Anti-Trafficking Protocol, which contains
similar provisions, but as a national text, the law should be more explicit and precise
to avoid misinterpretation.
Moreover, observers denounce the secondary effects of the 2015 Law, in particular
the fact that its excessive repressive nature increases the clandestine nature of
migration and the risks of related human rights violations. According to IOM data
based on monitoring trends in Arlit and Seguedine 142, the number of people
migrating northwards in Algeria, Libya and the Mediterranean has decreased
considerably since the enforcement of the law (e.g. from 333,891 in 2016 to 43,380 in
2018)143. Concerns about the negative effects of the law were extensively mentioned
by the United Nations Special Rapporteur on the human rights of migrants at the
end of his visit to Niger in October 2018.144.
In its concluding observations on Niger's second periodic report, the Human Rights
Committee, while acknowledging Niger's efforts towards refugees, asylum-seekers
and migrants crossing its territory on their way to the Mediterranean, also expressed
142 Statement by the United Nations Special Rapporteur on the human rights of migrants, , op. cit.
143
ibid
144
ibid.
68
concern about the 2015 law which would have resulted in a de facto ban on travel
north of Agadez and thus forced migrants to live in hiding145, in conditions exposing
them to numerous abuses and human rights violations. The author Abdoulaye
Hamada also argues that under the 2015 law, all forms of immigration-related trade
(transport, smuggling, trafficking, etc.) are punished and that enforcement becomes
more problematic when law enforcement officers confuse migrants with traffickers
or criminals146.
Apart from the 2015 law, another worrying factor is that Ordinance No. 81-40 of 29
October 1981 on the entry and residence of aliens in Niger provides for the
imprisonment of migrants in an irregular situation, whereas migrants should not, in
principle, be imprisoned simply because of their irregular status.
145 Human Rights Commission: Final observations on the second periodic report of Niger, March 2019,
CCPR/C/NER/CO/2, para. 38. disponible sur :
http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsiL0RwcBBs1ztI
RWANO4YSLvwwxLA9SSILrXVhMnkEZsyKkZLq1tZR3djICjCcwqoy7denW%2F%2F71k9O0kmudUlPfTitcsb
%2FrZbaFODCrgHOPO
146 Abdoulaye Hamadou : The management of migration flows in Niger between commitments and constraints, op.cit,
p 13
69
6. INSTITUTIONAL FRAMEWORK FOR THE
PROTECTION OF MIGRANTS’ RIGHTS IN NIGER
6.1
Overview of the institutional framework
The institutional framework is marked by the existence of specialized and other
more general institutions whose role remains relevant to the rights of migrants.
6.1.1 State structures specialized in migration
- The National Coordination Commission to Combat Trafficking in Persons
(CNLTP) and the National Agency to Combat Trafficking in Persons: article 31 of
the 2015 Act provides that the fight against the smuggling of migrants is coordinated
by the National Coordination Commission to Combat Trafficking in Persons
(CNLTP) and the National Agency to Combat Trafficking in Persons. The CNLTP
was created by Ordinance No. 2010-086 of 16 December 2010 on combating
trafficking in persons and placed under the authority of the Minister of Justice, by
Decree No. 2012-082/PRN/MJ of 21 March 2012, amended by Decree No. 2014684/PRN/MJ of 30 October 2014. Its mandate is as follows:
o the promotion, design and development of policies and programmes related to
trafficking;
o support for the preparation of the Universal Periodic Review (UPR) Report and
Initial and Periodic Reports to Treaty Bodies.
The National Agency to Combat Trafficking in Persons (ANLTP): It is
established by the same Ordinance that set up the CNCLTP and placed under
the authority of the Minister of Justice by Decree No. 2012-083/PRN/MJ of 21
March 2012. It is the operational structure responsible for:
o the execution and implementation of national policies and strategies adopted by
the CNCLTP;
o the implementation of the related National Action Plan to Combat Trafficking.
To this end, the National Agency develops and conducts awareness-raising,
training and education campaigns to reduce the recurrent risks of human
trafficking. It is an independent administrative authority, with financial
autonomy and its own powers. In addition, ANLTP acts as Permanent Secretariat
to the CNCLTP.
▪
The ANLTP undertakes awareness-raising and training activities on the concepts of
migrant trafficking and smuggling for several actors, including those in the criminal
justice system; it has made several efforts in this area. However, these training
activities are on an ad hoc basis.
With the support of IOM, ANLTP opened in the Zinder region in July 2019, the
country's first reception centre for victims of trafficking, aimed at strengthening the
70
capacity of Nigerian authorities to combat human trafficking147. Among other
things, there are plans to identify potential victims of trafficking and provide them
with medical and psychosocial assistance, as well as socio-economic, administrative
and legal support148. In addition, victims of trafficking will be able to benefit from
assistance for individual reintegration in their countries or communities of origin as
part of a joint European Union-IOM initiative for protection and reintegration.
The ANLTP is also considering the establishment of two (2) other centres in Niamey
and Tahoua. Similarly, with a view to strengthening the capacity of local
organizations to provide victims of trafficking in persons and similar practices with
community-based assistance that meets their needs, the ANLTP plans to establish
reception and protection centres for victims of trafficking in the ten (10) Regional
Courts of Niger and, if necessary, in the District Courts. These reception and
protection centres will help support victims both in the judicial process and in their
reintegration programme.
The ANLTP has also set up a Legal Affairs and Compensation Department (DAJ)
under Decree No. 2018-148/PRN/MJ of 08 March 2018. In addition, a draft decree
on the Special Victims Compensation Fund (FSIV) has been prepared and is
awaiting adoption. Once operational, the FSIV should compensate victims of
trafficking in persons. The DAJ's missions include: the development of legal
instruments related to trafficking in persons and/or migrant smuggling;
coordination of activities of the courts relating to trafficking in persons and migrant
smuggling; the conduct of studies, surveys, legal and judicial assistance to victims
of trafficking and migrant smuggling; the technical management of the Special
Victims Compensation Fund (FSIV) and the support of victims in their reintegration
projects.
However, ANLTP is facing financial and material difficulties (office equipment,
rolling stock). The Agency does not yet have its own office. In addition, ANLTP has
operational difficulties related to the mobility of already trained managers of
regional offices; trained resource persons are frequently transferred to other
positions. Other difficulties encountered by the Agency in combating migrant
smuggling are: insufficient coordination between actors involved in the fight against
trafficking in persons and migrant smuggling, the absence of a database on
traffickers, the absence of a national action plan to combat migrant smuggling
▪
The Inter-ministerial Committee in charge of the Preparation of the National
Migration Policy Paper (CICE/DPNM): This Committee was established by
Order n°235/MI/SP/D of 13 July 2007. According to the data from the field
study, eleven (11) years after its creation, this committee has not been adequately
resourced to operate effectively. However, the Committee has received support
from partners to carry out some basic studies. It is mandated to:
147 https://www.iom.int/fr/news/le-premier-centre-daccueil-pour-les-victimes-de-traite-souvre-au-niger
voir également : https://news.un.org/fr/story/2019/07/1048201
148
Ibid
71
define the terms of reference of its mission;
conduct diagnostic analysis of migration issues in Niger;
identify the overall issue of migration in Niger;
formulate strategic axes of intervention in the field of migration in
Niger;
o draft and format a National Migration Policy Paper, an Action Plan
and the legal instruments for its implementation. The said National
Policy is still being drafted
o
o
o
o
The NHRC has only one representative on the CICE/DPNM.
▪
The Framework for Consultation on Migration : this framework for
consultation is set up under the authority of the Minister of State, Minister of the
Interior, Public Security, Decentralization and Customary and Religious Affairs,
by Joint Order No. 0316/MI/SP/D/AC/R/MJ/GS of 2 May 2016. It is
responsible for:
o coordinating the actions of the State and its partners in the field of
migration;
o strengthening the synergy of structures and actors involved in
migration management;
o carrying out advocacy actions with Technical and Financial Partners
in the context of migration management.
This Framework has a Permanent Secretariat entrusted with organizing and
following-up of the resolutions resulting from the policy meeting. The existence of
this framework is relatively recent and coordination challenges are still significant.
▪
The National Commission for Refugee Status Eligibility (CNE): This
commission was set up under the Ministry of the Interior by Act No. 97-016 of 20
June 1997 on the status of refugees. Decree No. 98-382/PRN/MI/AT of 24
December 1998 sets out the procedures for implementing the Refugee Status Act.
The provisions of this decree provide a set of responsibilities for the Commission,
summarized as follows:
o reception of applications for recognition of refugee status by asylum
seekers;
o recognition of refugee status, in accordance with the procedures
defined by the 1951 Geneva Convention relating to the Status of
Refugees and its 1967 Protocol, the OAU Convention governing the
specific aspects of refugee problems in Africa and the Refugee Status
Act;
o cancellation or cessation of refugee status against any person falling
within the cases of exclusion or cessation provided for in Articles 3 and
4 of Act 97-016 of 20 June 1997, on the status of refugees;
o exercise, on behalf of the Government, of legal and administrative
protection, in relation to the ministries concerned;
72
o recognition, in the event of a mass arrival of asylum seekers, of the
status of prima facies, without excluding the individual procedure in
case of need.
6.1.2 Key Ministries
▪
▪
▪
▪
▪
▪
▪
▪
▪
▪
Ministry of the Interior, Public Security, Decentralization and Customary and
Religious Affairs (MI/SP/D/AC-R);
Ministry of Humanitarian Action and Disaster Management (MAH/GC);
Ministry of Foreign Affairs, Cooperation, African Integration and Nigeriens
Abroad (MAE/C/IA/NE);
Ministry of Justice (DOJ), which has a General Directorate for Human Rights,
Judicial Juvenile Protection and Social Action;
Ministry of Women's Development and Child Protection;
Ministry of Primary Education, Literacy, National Language Promotion and
Civic Education (MEP/A/PLN/EC);
Ministry of Public Health (MSP);
Ministry of National Defence;
Ministry of Employment, Labour and Social Protection;
Ministry of Transport.
6.1.3 The National Human Rights Commission (CNDH)
Its basis lies in the Constitution of Niger; it was effectively established by Law No.
2012-44 of 24 August 2012. The purpose of the NHRC is to promote and protect
human rights in accordance with the Paris Principles. Niger's NHRC has an A status
according to the criteria applied by the Global Alliance of National Human Rights
Institutions (GANHRI)149.
The NHRC of has had a Working Group on Migration Issues for one year. This
Working Group, set up a year ago, is supported by a Technical Department. This
internal framework carries out the following activities in the field:
o awareness-raising (training workshop) for stakeholders involved in
migration management;
o investigations ;
o advocacy for the respect of migrants' rights.
The NHRC also has a regional office in Agadez that works extensively on migration
issues by:
o receiving complaints;
o collaborating with other regional structures dealing with migrants' rights
(IOM, NGOs and local associations).
149 GANHRI : Global Alliance for National Human Rights Institutions
73
The qualitative survey of the NCHR revealed that the Agadez office is confronted
with lack of human, financial and material resources to properly carry out its
mission. There are other offices in the Diffa and Tillabéry regions.
The qualitative survey also revealed the need for all actors involved in the
management of migration flows to consult one another, work in synergy and focus
their attention on respect for migrants' rights.
6.1.4 The High Authority to Combat Corruption and Related Offences
(HALCIA)
Initially, HALCIA was established by Decree No. 201144 215/PRN/MJ of 26 July
2011, then revived by Act No. 2016-44 of 6 December 2016 and placed under the
authority of the President of the Republic. HALCIA is mandated to develop
strategies and policies to prevent corruption and many other actions to this end
The qualitative survey noted that HALCIA has a report of a study on the link
between corruption and migration in Niger's border areas; however, this report has
not yet been validated.
The qualitative survey of HALCIA also highlighted the need for harmonization
between the countries concerned in the fight against illegal migration and the fight
against corruption, if the efforts to combat these scourges are to be effective.
6.1.5 The National Agency for Legal and Judicial Assistance (ANAJJ)
Created by Act No. 2011-42 of 14 December 2011, ANAJJJ is mandated to provide
legal and judicial assistance to certain categories of vulnerable and indigent persons.
6.1.6 Services of the Internal Security Forces and the Defence and Security
Forces
The ISF and DSF play an extremely important role in combating migrant smuggling
and promoting and protecting the rights of migrants.
▪
The National Police
The National Police is primarily mandated to ensure the enforcement of laws and
regulations, protect persons and property, prevent disturbances to public order and
tranquility, and fight against all forms of crime. The Niger Police comprises a
General Directorate of the National Police as well as National, Regional and
Departmental Directorates, Specialized Units, Police Stations, Brigades and Border
Posts.
The Directorate of Territorial Surveillance (DST) or the "Border Police " is responsible
for enforcing immigration and emigration regulations on the national territory of
Niger. Its field missions are as follows:
74
o the production of statistics on migration flows;
o the preparation and issuance of residence, travel and visa documents;
o national security information.
The DST also has regional services called Regional Territorial Surveillance Services
(SRST), which act as relays at the central level and antennas at border crossings.
The Police receive general human rights training (included in the National Police
Academy curricula) but this does not imply specific training on the rights of
migrants.
▪
The High Command of the National Guard
The National Guard is called upon to combat migrant smuggling by monitoring the
bypass roads. The Niger National Guard has included human rights training in its
training curricula; however, the training received concerns human rights in general
and not the specific rights of migrants.
The Guard is present wherever the administration is located and contributes to the
fight against illegal immigration and to preserve national security.
The qualitative survey of the Guard noted that the latter participates in the rescue of
migrants lost in the desert; however, this is done on an incidental basis because the
primary mission of the Guard's patrols is to secure these areas. The investigation
also noted the need to equip the Guard and set up units dedicated to the search and
rescue of migrants in the Guard's areas of competence.
▪
The National Gendarmerie
One of its key missions is to enforce the law in rural areas. The National
Gendarmerie is a paramilitary police force that ensures the maintenance of order
outside the jurisdictions supervised by the National Police, in that it also protects
the rights of migrants, especially when one considers that the rural areas cover the
largest part of national territory.
Gendarmes receive initial training on issues relating to human rights and
humanitarian law at their Training Centre. Human rights training is also provided
on an ongoing basis in order to provide guidance to professional gendarmes.
Moreover, there is a specific module on trafficking and smuggling of persons, taught
to gendarmes at the Training Centre.
The gendarmerie has not been provided with any specific means to ensure the
protection of the fundamental rights of migrants. The resources received from the
authorities by the gendarmerie are dedicated to protecting the rights of the entire
population, including migrants.
The gendarmerie has specialized services for the protection of vulnerable persons,
such as brigades for women and minor children.
75
According to the data from the qualitative survey, the gendarmerie also needs to
strengthen its equipment and logistics in order to function better.
▪
The National Armed Forces of Niger (FAN)
With regard to migration, the FANs patrol the most remote areas of Niger's territory,
intervene in the prevention, neutralization of illegal trafficking and rescue of
migrants lost in the desert150. The field survey could not determine whether the
rescue of migrants by the Armed Forces is carried out on an incidental basis or
whether these operations are solely for rescue purposes.
▪
Customs
In the field of migration, it helps to apprehend migrants in possession of prohibited
or suspect products 151.
▪
The Framework for the coordination of work between the gendarmerie, the
National Guard and the Police on the protection of migrants' rights
The qualitative survey of the Gendarmerie revealed the existence of a framework
for coordination of work between the Gendarmerie, the National Guard and the
Police on the protection of migrants' rights. However, this framework has
shortcomings, particularly material.
6.1.7 The key supranational organisations
Supranational structures contribute significantly to the institutional environment for
the protection of migrants in Niger.
▪
Office of the United Nations High Commissioner for Refugees (HCR)
HCR carries out its operations in Niger in close collaboration with the Government,
on the one hand, and with humanitarian organisations involved in protection and
assistance on the other, on the basis of an updated contingency plan, if necessary.
The Inter-sessional Report of the Special Rapporteur on Refugees, Asylum Seekers,
Displaced Persons and Migrants in Africa152, presented at the 63rd Session of the
African Commission, mentioned the existence of "Hot Spot" or asylum seekers'
sorting centres in Niger. The study noted the existence in Niger of an Emergency
Evacuation and Transit Mechanism from Libya to Niger, which was set up by UHCR
under an agreement signed between Niger and HCR, the ETM (Emergency Transit
Mechanism).
150 Direction Générale de la Police Nationale, Ecole Nationale de Police et de la Formation Permanente : Police
des frontières et des étrangers, p.40 2017.
151 ibid
152 Special Rapporteur on Refugees, Asylum Seekers, Displaced Persons and Migrants in Africa, Intersession
Report for the 63rd Session of the African Commission, 2016, para 54, available at :
http://www.achpr.org/fr/sessions/63rd_os/intersession-activity-reports/refugees-and-internally-displacedpersons/
76
This mechanism found concrete expression in the creation of a Centre to receive
asylum seekers stranded in Libya, with the aim of organizing their resettlement.
Under this mechanism, refugees and asylum seekers stranded in detention centres
in Libya are repatriated to Niger for resettlement through a screening system. For
2019, for example, HCR claims to have already helped 1297 vulnerable refugees
leave Libya, including 711 in Niger, 295 in Italy and 291 others who have been
resettled in Europe and Canada153. Candidates for resettlement in Europe whose
applications are rejected have the possibility to apply for asylum in Niger to the
National Commission for Refugee Status Eligibility, which must give priority to
applications through an accelerated processing.
However, the implementation of this emergency mechanism has had an impact. The
announcement of resettlement for the group of refugees and asylum seekers in Libya
has generated interest for Sudanese refugees in Chad. The latter flocked in large
numbers to Niger in the hope of being integrated in the resettlement programme.
This situation poses a serious problem for the government and HCR to take care of
these refugees. Sudanese refugees even demonstrated to ask HCR to avoid any
discrimination against them154.
▪
The International Organization for Migration (IOM)
In 2004, Niger became a member of IOM and the Organization moved there,
specifically to Niamey in 2006. It is mandated to:
o contribute to concretely address the growing challenges of managing
migration flows;
o promote understanding of migration issues;
o promote economic and social development through migration;
o work towards respect for the human dignity and wellbeing of migrants.
With regard to migration management, IOM works closely with the State of Niger
and other humanitarian partners to address the multiple migration challenges,
both during migrants' movements and during their return and economic and
social reintegration.
153 https://www.unhcr.org/fr/news/press/2019/6/5d0b979ba/131-refugies-evacues-libye-vers-niger-milieu-
conflit-cours-tripoli.html [Consulted on 7 July 2019]
154 https://www.studiokalangou.org/index.php/rss/31-articles/10885-terres-accueil-refugies-soudanaismanifestent-devant-bureaux-unhcr
77
Map illustrating IOM's presence in Niger155
The map shows the locations where IOM is present but concerning the specific case
of transit centres opened for migrants, IOM has six (6) of them distributed as follows:
one in Agadez (accommodating 1,000), one in Arlit (300), one in Dirkou (150) and
three in Niamey (with a total capacity of 300), one for unaccompanied minors and
vulnerable women, some of whom are victims of human trafficking156.
▪
The World Food Programme (WFP)
WFP works closely with the Government as part of its United Nations-defined
mission to work for a world where every man, woman and child has permanent
access to enough food to lead a healthy and active life.
In Niger, in addition to its traditional missions in the agricultural sector, WFP
provides food assistance to populations affected by armed conflict and floods. Since
2012, WFP has made an invaluable food contribution in response to the governmenthumanitarian partners contingency plan, both in terms of assistance to refugees in
Mali and Nigeria and in terms of post-flood relief.
▪
The United Nations Children's Fund (UNICEF)
In Niger, UNICEF has been working with the Government since 1972 in areas that
particularly affect the rights of women and children, such as education, health and
nutrition. Also, in partnership with other organizations of the United Nations
system, UNICEF supports the implementation of the Government of the Republic of
Niger's Economic and Social Development Plan (PDES). It also participates,
alongside the State and Humanitarian Partners, in responding to the needs of
vulnerable communities, as expressed in contingency plans relating to refugees and
asylum seekers, migrants and in the event of natural disasters such as floods,
famines, etc.
155 IOM Niger: Migrant Profiling Report 2016, p 4, available at https://gmdac.iom.int/OIM-Niger-Rapport-de-
Profilage-des-Migrants-2016
156 http://www.nigermigrationresponse.org/fr/Notre-travail/les-centres-de-transit-oim
78
▪
The United Nations Development Programme (UNDP)
In Niger, UNDP has been established since 1977, after the signing of the Agreement
governing cooperation with the Republic of Niger. In this development cooperation
process, UNDP supports projects and NGOs working in the area of migration to
support the State of Niger's efforts to make migration more humane, affordable and
less risky.
▪
The United Nations Office for the Coordination of Humanitarian Affairs
(OCHA)
The Coordination Office in Niger was established in 2005. It is responsible for
mobilizing humanitarian actors to provide a coherent response to emergencies and
ensure that there is a framework within which each actor can contribute to the
collective response. This involves the following tasks:
o mobilize and coordinate effective and principled humanitarian action, in
partnership with national and international actors, to alleviate human
suffering in disasters and emergencies;
o defend the rights of people in need;
o promote preparedness and prevention;
o facilitate sustainable solutions.
6.1.8 The main sub-regional organisations and those resulting from bilateral or
multilateral cooperation
▪
The Economic Community of West African States (ECOWAS)
In addition to defining the regulatory framework for migration in the ECOWAS
region, the Community provides substantial support for the care of migrants from
Member States who are victims of expulsion or abuse by a third country. During the
Libyan crisis in 2011, for example, ECOWAS provided financial support to the ad
hoc committee set up by the Prime Minister's Office to repatriate Nigerians and those
of other Community member States.
▪
The French Office for the Protection of Refugees and Stateless Persons
(OFPRA)
The Nigerien institutional environment for migration in Niger has been marked by
the presence of OFPRA since 2017157. OFPRA carries out missions to Niger to
interview refugee applicants and select those who are eligible for France and
possibly other European countries. OFPRA's 2018 Report indicates that the majority
of migrants evacuated from Libya to Niger by HCR are those eligible for
157 OFPRA : 2017 Activity Report, p. 8, available at : https://ofpra.gouv.fr/fr/l-ofpra/actualites/publication-
du-rapport-d-activite-6
79
resettlement in view of the great insecurity and extreme violence they faced in
Libya158.
▪
The European Union (EU)
As part of efforts to find ways and means to better manage migration in Niger, the
EU is providing financial support through the Trust Fund to rapidly finance
activities that directly or indirectly impact migration.
▪
German Cooperation (GTZ)
In Niger, German cooperation particularly supports the State and local authorities
in addressing the concerns of the population, from an economic, social and cultural
point of view. Several projects have been initiated and funded by the GTZ. This is
particularly the case for the projects "Support for migration policies (APM)" and
"Management of migration flows (Progem)" which currently help State and
community structures to understand the contours of migration and the measures
that need to be taken to better manage migration flows. This is in the interest of
migrants and their communities and of the States concerned.
6.1.9 NGOs
Several non-governmental organizations are also involved in the promotion and
protection of migrants' rights in Niger
Some NGOs are specifically mandated to defend the rights of migrants while others,
with a more general mission such as the defence of human rights, also include the
rights of migrants in their focus areas. The qualitative survey highlighted the need
for NGOs to further pool their resources and areas of concern relating to the forces
in the context of actions to protect migrants.
6.2
Analysing the institutional framework
The Nigerien institutional framework contains positive factors conducive to the
protection of migrants' rights.
Ijn fact, the existence of structures such as the CNLTP, the ANLTP, the Interministerial Committee for the Preparation of the National Migration Policy Paper,
the Framework for Consultation on Migration, the National Commission for
Refugee Status Eligibility (CNE) is likely to strengthen efforts to combat the
smuggling of migrants, trafficking in migrants and other related forms of human
rights violations.
158 OFPRA :
2018 Report, p. 9, available at : https://www.ofpra.gouv.fr/fr/l-ofpra/actualites/publication-durapport-d-activite-7
80
The existence of structures such as the CNLTP, the ANLTP, the Inter-ministerial
Committee for the Preparation of the National Migration Policy Paper, the
Framework for Consultation on Migration, the National Commission for Refugee
Status Eligibility (CNE) is likely to strengthen efforts to combat migrant smuggling
and trafficking as well as other related forms of human rights violations.
The presence of non-state structures that support the State in raising awareness
about migrants' rights, providing protection and assistance to these migrants is also
a factor that promotes the observance of migrants' rights.
However, this framework has inadequacies and limitations in terms of protecting
the rights of migrants.
We note for example that migrants’ reception and transit centres are absolutely vital
in assisting and protecting migrants. However, the State seems to have fully
delegated this responsibility to structures such as IOM and HCR. At the time of the
study, there were seven (7) operational reception centres for migrants in Niger,
including six (6) managed by IOM and the Migrant Reception and Transit Centre
created by HCR as part of the ETM. The State's commitment to the creation of
reception or transit centres is not very perceptible.
Besides, despite the predominant role played by ISF and SDF in the management of
migration flows, the fact that they lack specific training in migrants' rights is a cause
for concern. The State has made efforts to this end, but training needs are still
outstanding. Migrants are a vulnerable category of persons whose special protection
is provided for in both general and specific instruments binding on the State. Article
25 of the African Charter imposes on States Parties the duty to promote and ensure,
through learning, education and dissemination, respect for the rights and freedoms
contained in the Charter, and to take measures to ensure that the freedoms and
rights arising from the Charter as well as the corresponding obligations and duties
are understood. In view of the important role that ISF and DSF should play in
migration, migrants’ rights cannot be effectively protected unless these forces
receive the appropriate awareness raising and training.
The information collected also noted that the ISF and DSF are not provided with
sufficient material resources to carry out their work.
All ISF and DSF have an important role in the fight against migrant smuggling.
However, lack of coordination between these actors on the ground does not
encourage the synergy of forces to overcome the crisis.
Beyond the coordination difficulties at the ISF level, it was noted that there is a
general lack of coordination between all actors involved in migration in Niger,
despite the existence of the Framework for Consultation on Migration. Such a
situation has serious risks of inconsistencies with regard to the actions undertaken
by the structures concerned.
81
Besides, for migrants' rights to be effectively protected there has to be the possibility
of obtaining compensation in the event of a violation of their rights; to this end, the
role of the ANAJJ in assisting vulnerable groups is fundamental. However, this
agency has operating limitations. In its concluding observations following the
examination of Niger's 14th Periodic Report (2014-2016), the Commission urged the
Nigerien State to make the Agency operational159.
159 ACHPR,
Final observations on the 14th Periodic Report of Niger (2014-2016), available at:
http://www.achpr.org/fr/states/niger/reports/2014-2016/
82
7. REDRESS MECHANISMS IN CASE OF
VIOLATION OF MIGRANTS’ RIGHTS
Nigerien citizens have manifold difficulties to access justice in Niger (inaccessibility
of courts, lack of legal assistance, etc.). These difficulties are most acute for migrants
who constitute a vulnerable group of people.
Migrants have the right to access justice and seek redress. The 2015 Law on the
Smuggling of Migrants even states that "any migrant victim of smuggling has the
right to initiate legal proceedings to obtain compensation without providing the
securities prescribed by Nigerien law"160. However, their lack of awareness of their
rights, lack of resources and technical assistance are some examples that indicate the
difficulties that migrants in Niger may encounter in accessing justice. The survey
revealed that despite their vulnerability, migrants are treated on an equal footing
with the entire population in terms of access to justice.
The UN Special Rapporteur at the end of his visit to Niger also deplored the lack of
minimum access to justice, while noting that migrants in Niger, including children,
have been detained for several days without access to legal assistance or
representation. The Rapporteur also noted the inadequacy of ANJJ's resources,
which impacts its effectiveness 161.
Another disturbing element in terms of migrants’ access to justice is the lack of
awareness of migrants' rights among the very authorities through which
investigations into human rights violations are supposed to begin162.
There is also another issue that has been left out in the area of access to justice. It
concerns reparations for migrants who are victims of human rights violations in
countries of temporary residence, particularly Algeria and Libya. The study did not
perceive any consideration, at the regulatory and institutional levels, of the issue of
compensation for migrants who have been expelled or who voluntarily returned to
Niger but who have been traumatized by the serious violations they have allegedly
suffered in the countries of temporary residence. However, in the light of the various
reports and allegations noted many of them are in this situation. While it is true that
violations committed by foreigners on foreign territory are not a priori the
responsibility of the Nigerien authority, it is equally true that the victims of these
alleged violations are massively found on Nigerien territory. The issue of their right
to reparation therefore deserves to be addressed in order to find possible solutions
for obtaining reparation in this particular context.
160 See below, section 5 on the legal framework for the protection of migrants in Niger.
161
Statement by the United Nations Special Rapporteur on the human rights of migrants, op.cit
162National Agency to Combat Trafficking in Persons, Report of the data collection mission on trafficking in
persons and related offences- 2015, p. 9 available at : http://www.statniger.org/statistique/file/Annuaires_Statistiques/Justice/Rapport_Collecte_Donnees_Traite_Personnes_2016.
pdf
83
8. STRATEGIC FRAMEWORK TO FIGHT AGAINST
THE VIOLATION OF THE FUNDAMENTAL
RIGHTS OF MIGRANTS
Niger does not so far have a national migration policy; it is still being developed and
should take human rights issues into account. The general framework for the
protection of human rights covers the protection of migrants’ rights.
However, in 2018, Niger adopted a national strategy to combat irregular migration.
The strategy includes the following main themes:
▪
▪
▪
▪
▪
Measures relating to the Management of Land, Airport, River and Lake
Borders;
Prevention Measures in countries of origin, transit and destination;
Law enforcement and protection measures against the smuggling of migrants
and trafficking in persons;
Measures relating to the Return of Migrants and their Reintegration;
Transversal Measures for Data Collection and Management, Monitoring and
Evaluation.
This strategy seems to focus more on border management issues than on issues
related to the protection of migrants' rights.163
Niger does not yet have an action plan to combat migrant smuggling or to protect
the rights of migrants. However, Niger has an action plan, the Action Plan to Combat
Trafficking in Persons.
In its periodic report for the period 2014-2016 submitted to the ACHPR, Niger
indicated that it has standard operating procedures for the management of
migrants164. There are indeed standard procedures for the identification and referral
of asylum seekers between the Directorate General of Civil Status, Migrants and
Refugees and IOM and HCR, the objective of which is to establish a referral
mechanism and then ensure the referral of persons concerned to the State
procedures for eligibility for refugee status. These procedures therefore only concern
refugees.
Other aspects of the strategy are contained in agreements signed between Niger and
other stakeholders. These include the agreement signed in 2017 with IOM to
strengthen IOM's direct assistance to migrants and awareness-raising activities on
human trafficking.
163 https://www.niameyetles2jours.com/la-gestion-publique/securite/0304-2102-le-niger-se-dote-d-une-
strategie-nationale-de-lutte-contre-la-migration-irreguliere see also http://nigerexpress.info/2018/04/04/leniger-dote-d-une-strategie-nationale-de-lutte-contre-la-migration-irreguliere/
164 Government of Niger : Periodic Report 2014-2016 on the implementation of the African Charter on Human and
Peoples’ Right sand Periodic Report Niger submitted to the ACHPR CADHP, p.11, para 22, available at
http://www.achpr.org/fr/states/niger/reports/2014-2016/
84
Regarding access to justice, Niger has developed a National Justice and Human
Rights Policy with a 10-year action plan for 2016-2025. There is no policy specifically
aimed at migrants' access to justice.
The State seems to be focusing its efforts on combating irregular migration while
aspects such as the protection of human rights, awareness-raising, the construction
of reception centres and the care of migrants are delegated to non-governmental
institutions and bodies such as IOM and HCR.
It is also important for actions and strategies to be based on reliable information for
greater effectiveness. However, data on migration flows in Niger and related issues
are difficult to obtain on a regular basis and are scattered. These data, if they exist,
should also be made public, accessible to any actor who would like to support the
State in this area. The most accessible data are those of IOM based on migrant
profiling and its annual reports. The qualitative survey noted that actors working in
the field of migration in Niger do not share information.
In its concluding observations following the consideration of Niger's 2nd Periodic
Report from 2 to 7 March 2019, the Human Rights Committee urged the Nigerien
State to pursue its efforts to ensure the collection of statistical data disaggregated by
age, sex and origin of victims 165.
Besides, the sale and prostitution of children, including child pornography, are
forms of exploitation that are connected to trafficking in persons, yet the link
between trafficking and the smuggling of migrants is very narrow. In this regard,
CRC expressed serious concern that Niger has not established a system to collect
data on child victims of offences covered by the Optional Protocol to the
Convention on the Rights of the Child on the sale of children, child prostitution and
child pornography. The Committee considered that lack of data on this issue makes
impairs Niger’s ability to prevent related offences and ensure the protection and
rehabilitation of child victims of these offences by adopting the appropriate
policies166.
The study also noted the need for actors in the field to share information with one
another.
165 Human Rights Committee: Final observations on the second periodic report of Niger,
March 2019, Para 35,
available at :
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR/C/NER/C
O/2&Lang=Fr
166 Committee on Children’s Rights: Final observations concerning Niger’s Report on the Optional Protocol to the
Convention on the rights of the Child, on the sale of children, child prostitution and child pornography, 24 and 25
September 2018, para 7, available at :
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC/C/OPSC/N
ER/CO/1&Lang=Fr
85
9. AVENUES OF REFLECTION AND
RECOMMENDATIONS
9.1
Avenues of reflection for the improved protection of
migrants’ rights in Niger
Keep the State at the centre of responsibilities: The State must be held primarily
responsible for protecting the rights of migrants. Article 1 of the African Charter
imposes an obligation on States to adopt legislative or other measures to implement
the rights and freedoms recognized in the Charter. While collaboration with nonstate actors is important and must be developed and supported, this should not
obscure or even evade the primary responsibility of the State which, under
international and regional human rights law, cannot be transferred to other entities.
Mainstreaming human rights in migration policies: The protection of human
dignity must be a crosscutting principle that guides legislative, administrative and
other measures in the field of migration. Human rights should be placed at the heart
of actions relating to the management of migration flows. The repression of irregular
migration should, under no circumstances, justify a violation of the human rights
enjoyed by migrants.
Special treatment for vulnerable groups: Migrants are a category of vulnerable
groups among the population and, among migrants themselves; there are other
more vulnerable groups, such as women, children, persons with disabilities and the
elderly.
Access to justice as a priority: No right is effectively protected without an effective
judicial remedy for violations. Beyond the legitimacy of reparation in the event of a
violation, access to justice has a potential deterrent effect on the commission of
offences. Access to justice for migrants whose rights have been violated both in the
country of transit and in the country of temporary residence should be a priority in
the adoption of measures to protect migrants.
Taking into account the mixed nature of migration flows: There are several
categories of migrants (women, children, adults, refugees, regular and irregular
migrants, trafficked migrants, etc.) who often travel together for various reasons.
Any migration policy should take into account the specific case of each category and
avoid the tendency to adopt generalized measures.
Information as a policy guidance tool: Basing legislative, administrative and other
measures on reliable facts and information is an essential condition for enhancing
the effectiveness of migration policies. To better assess migration phenomena and
take appropriate measures in this regard, there is need to have both qualitative and
quantitative information.
Cooperation between States: The case of Niger is an outstanding example of the
need for cooperation between States. Niger is an important transit country for
migrants; the data highlight the predominance of foreign nationalities among
86
migrants going to North Africa. The data also show the large number of migrants
returning to Niger after experiencing atrocities in countries of temporary residence.
These facts imply the responsibility of several States; therefore, the search for
solutions in the management of migratory flows, particularly the fight against
migrant smuggling, trafficking in persons and other forms of abuse and violence
against migrants, should be carried out within frameworks of consultation and
cooperation between States.
9.2
Recommendations
9.2.1 To State actors of Niger
▪
Recommendations concerning the regulatory framework
o Consider a comprehensive assessment of the impact of the 2015 Law to
measure its effectiveness in reconciling the need to combat irregular
migration with the need to protect the fundamental rights of migrants;
o Initiate discussions with relevant actors on the integration of human rights
into migration regulations;
o Consider revising Ordinance No. 81-40 of 29 October 1981 on the entry and
residence of aliens to adapt it to recent developments in international human
rights law. In particular, provide in the national legislative framework for
alternatives to the imprisonment of migrants in an irregular situation.
▪
Recommendations concerning the institutional framework
o Strengthen the material and financial resources of structures involved in
migration, including those of ISF and DSF;
o Establish or strengthen specific, effective and efficient internal and external
control mechanisms for the migration activities of ISF and DSF to take sufficient
account of this aspect;
o Ensure appropriate and sufficient training for ISF and DSF so that they can
integrate the observance of migrants' rights into their daily activities. This
implies the inclusion of migrants' rights in curricula and continuous training in
this area. Training should focus on the distinctions between migrant smuggling
and trafficking in persons, the similarity of the two concepts and the rights of
vulnerable migrant groups. Training manuals and guides adapted to the use of
ISF and DSF could be developed for awareness and training purposes;
o Build Migrant Reception and Transit Centres to strengthen the institutional
framework for the protection of migrants' rights;
o Strengthen the capacities of the Framework for Consultation on Migration and
the working coordination framework between the Gendarmerie, National Guard
87
o
o
o
o
and Police in the protection of migrants' rights to ensure more concerted and
coherent actions;
Strengthen the operating resources of the main structures, in particular the
CNLTP and ANLTP;
Strengthen the capacity of the DST in data collection and ensure the publication
of these data for greater accessibility to actors involved in migration in Niger;
Establish mechanisms to alert and record human rights violations against
migrants and, if necessary, create a toll-free number for this purpose;
Strengthen the capacities of the ANJJ and guarantee its effective access to
migrants. To this end, consider setting up mechanisms to refer migrants to the
ANJJJ and take appropriate measures for the specific case of children's access to
the services of this structure.
▪
Recommendations concerning the migration flow management strategy:
o
Accelerate the adoption of the National Migration Policy and consider
strengthening the presence of the NHRC within the CICE/DPNM in charge of
drafting this policy to promote the adoption of a policy that takes human rights
into consideration;
Review the strategy to combat irregular migration to ensure that the repression
of irregular migration does not lead to human rights violations and disseminate
it to all actors;
Develop a National Action Plan to combat migrant smuggling;
Focus the migration management strategy on the principle of synergy of action.
In view of the diversity of actors on the ground, such synergy of action is
essential;
Strengthen the capacities of existing institutions, broaden their scope of action
where appropriate, instead of creating several others;
Ensure the effectiveness of all mechanisms for coordination between all actors
involved in migration, while creating a database that will facilitate information
sharing among actors;
Focus actions regarding migration flows on the findings of reliable studies and
consider creating a database to facilitate access to information;
Develop strategies that include special mechanisms for the treatment of the most
vulnerable groups, particularly children and unaccompanied children, who,
according to data, are in high numbers among migrants;
Ensure primary responsibility for migration policy by developing and taking
ownership of the related actions and then coordinating those of all the structures
involved in the matter;
Ensure that assistance to migrants forcibly returned to the desert gates is a full
priority in the work of ISF and SDF patrolling the desert; this means that
initiatives are taken specifically to rescue them rather than being isolated relief
actions that accidentally occur during security operations in the desert areas;
Develop a strategy to raise awareness on the dangers of irregular migration;
Strengthen collaboration with local authorities in the fight against the smuggling
of migrants.
o
o
o
o
o
o
o
o
o
o
o
88
o
Involve former migrants in awareness-raising activities related to the protection
of migrants.
9.2.2 To non-State actors intervening in Niger, particularly NGOs
Non-state actors are encouraged to pursue and strengthen support for Niger State
actions in the management of migration flows, including the protection of migrants.
To this end, they are urged to:
▪
▪
▪
▪
▪
▪
▪
Contribute to stepping up awareness and training of ISF and DSF on migrants'
rights and also raise migrants' awareness of their rights;
Placing human rights at the heart of assistance systems for the return of migrants;
Initiate reflection on access to justice for reparation to migrants who have been
victims of violations of their rights in countries of temporary residence;
Increase awareness campaigns on the dangers of irregular migration;
Use judicial and quasi-judicial mechanisms at the national level to seek redress
for migrants who are victims of violations of their rights;
Use judicial and quasi-judicial mechanisms at the sub-regional (ECOWAS Court
of Justice) and regional (Commission, African Court of Human Rights) and
international (UN treaty bodies) levels to seek justice and redress for migrants
who experience the inaccessibility, unavailability or effectiveness of domestic
remedies.
Further pool the resources and forces.
9.2.3 Niger’s financial partners
Niger is trying, with its limited resources, to provide answers to the problems
related to the management of migration flows. To this end, the financial partners are
providing significant funding to implement migration management activities in
Niger as described above. They are urged to pursue this significant support bearing
in mind the following recommendations:
▪
▪
▪
Ensure that Programmes, policies and funding to combat irregular migration are
based on respect for the fundamental rights of migrants;
Ensure that the AVR programmes they finance comply with international human
rights law and that the treatment of children in this regard is based on their best
interests and not on the desire to return to their home community or country of
origin;
Support the CNDH to ensure its increased involvement in the promotion and
protection of migrants' rights.
9.2.4 State actors of temporary residence countries
State actors in countries of temporary residence should:
▪
Strengthen collaboration with the Nigerien State in the management of migration
flows, notably measures to protect the rights of migrants;
89
▪
▪
Shed light on the various allegations relating to violations of migrants'
fundamental rights, to assign responsibilities, provide reparations and adopt
legislative, judicial, administrative and other measures to ensure compliance
with migrants' fundamental rights.;
For Libya in particular, pursue and strengthen cooperation with HCR to facilitate
the transfer to Niger of migrants stranded in Libya's detention centres under the
Emergency Evacuation and Transit Mechanism.
9.2.5 To migrants’ countries of origin and ECOWAS
The decision to migrate irregularly is mostly determined by the difficult living
conditions in the countries of origin as reported in this study. In this regard,
reducing the smuggling of migrants in Niger is also dependent on the efforts made
by countries of origin. ECOWAS, as a sub-regional organization, should also pursue
actions that restrict freedom of movement in the area. In both respects, countries of
origin and ECOWAS should:
▪
▪
▪
Strengthen efforts to ensure the enjoyment of economic and socio-cultural rights
and to this end, ensure the fair and equitable distribution of revenues and
resources, in accordance with the relevant provisions of the African Charter, in
particular, Articles 21 and 22 and 24[recommendation to countries];
Guarantee the peoples’ right to peace in accordance with Article 23 of the African
Charter [recommendation to countries]:
Establish mechanisms to guarantee access to justice for migrants returned to
Member States, including starting with studies and consultations aimed at
making use of consular services.
9.2.6 To the African Union
The African Union as a continental organization dedicated to regional integration
should:
▪
▪
Encourage and carry out actions in favour of the ratification of the Protocol to the
Treaty Establishing the African Economic Community Relating to Free
Movement of Persons, Right of Residence and Right of Establishment 167. This
would reduce irregular migration and its negative effects since the Protocol
guarantees, subject to certain conditions, the abolition of the visa and the
issuance of an African passport (Article 6.2 and 10 of the Protocol);
Accelerate the realization of the seven (7) aspirations of Agenda 2063, which
would guarantee the wellbeing of the Union's citizens and thus considerably
reduce the number of candidates for irregular and dangerous immigration to
Europe.
167 https://au.int/en/treaties/protocol-treaty-establishing-african-economic-community-relating-free-
movement-persons
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10. CONCLUSION
This pilot study revealed the high prevalence of incidents experienced by migrants
along their migratory journey, particularly in transit countries and countries of
temporary residence. These incidents violate fundamental human rights.
The example of Niger demonstrated the efforts of a transit country with limited
resources to manage migration flows from a rights-based perspective. The example
of Niger has also highlighted the challenges that transit countries may face in
managing migration flows on the basis of the respect of human rights.
While this pilot study highlighted the different situations that may affect the rights
of migrants as guaranteed by the African Charter and other international human
rights instruments, it also identified the main issues that need to be addressed by
other studies to be undertaken in the context of the implementation of Resolution
404.
These main issues include:
-
-
human rights and the crossing of African migrants from the Mediterranean
to Europe;
the fundamental rights of migrants in conflict-related contexts (armed
conflicts, terrorism, etc.) in Africa. This theme is relevant in view of the
increase in terrorist attacks in the Sahel and the conflict situation in Libya (for
example, the bombing of a migrant and refugee detention centre in Tajoura,
Libya, in July 2019 which killed 44 and injured 130 others168);
human rights of migrants residing in African countries;
human rights and the specific case of refugees and asylum seekers;
mechanisms put in place by countries of origin to ensure the reintegration of
migrants.
the specific situation of migrant children (accompanied or unaccompanied).
Studies on these themes will provide a comprehensive and significant insight for all
actors working in the area of migration in Africa, particularly those striving to
improve the respect of migrants' rights.
Since respect for human rights is a common responsibility, all the States and all
technical and financial partners are therefore urged to support the Commission in
this initiative.
168 https://news.un.org/fr/story/2019/07/1046812
91