Communication 318/06 – Open Society Justice Initiative v. Côte d’Ivoire
1. The Secretariat of the African Commission on Human and Peoples’ Rights
(the Secretariat) received a complaint on 23 January 2006 submitted by the
Open Society Justice Initiative Organization based in New York under
Article 55 of the African Commission on Human and Peoples’ Rights (the
African Charter) .
2. The Complaint was filed against the Republic of Côte d’Ivoire (State Party to
the African Charter, hereafter referred to as the Respondent State or Côte
d’Ivoire).1
3. The Complaint alleges that for 33 years, upon attainment of independence,
Côte d’Ivoire experienced economic prosperity as the leading cocoa producer
in the world under the leadership of President Félix Houphouët-Boigny. The
latter promoted a policy of ethnic tolerance and welcomed migrant peasants
from neighboring countries. However, according to the Complainant, the
country was destabilized as a result of the emergence of political divisions
based on geographical, religious and ethnic considerations.
4. According to the Complainant, President Henri Konan Bédié, who succeeded
President Houphouët-Boigny, deepened the divisions by introducing the
concept of « ivoirité » the implementation of which meant that Ivorian
nationality could be obtained only by persons born in Côte d’Ivoire by two
Ivorian parents. Such a policy, according to the Complainant, affected 30% of
the population, including persons who were born in Côte d’Ivoire and had
grown up and lived all their life in the country. The outcome of this situation,
inter alia, was a socio-political exclusion through a ban on access to land,
voting and holding of public office. According to the Complainant, the policy
of « ivoirité » was initiated to exclude Mr. Alassane Dramane Ouattara, a
native of the north of Côte d’Ivoire from the majority Dioula ethnic group,
who had also held the position of Prime Minister under President
Houphouët-Boigny, and considered to be his natural successor, from running
for political office.
5. These ethnic and religious tensions resulted in a coup d’état in 1999 leading
to the takeover of power by General Robert Guéi who continued with the
political exclusion agenda initiated under President Bedie’s rule. Prior to the
presidential election in 2000, the Government of President Guéi introduced a
1 The Republic of Côte d’Ivoire ratified the African Charter on 6 January 1992.
provision into the Constitution which reinforced the « ivoirité » concept by
stipulating that « Every Presidential candidate … should never have held
another nationality ». Based on the said provision, the Supreme Court of Côte
d’Ivoire rejected the candidacy of Mr. Ouattara on the grounds that he had
held burkinabè nationality. Following the boycott of the election by Mr.
Ouattara’s party, the Rassemblement des Républicains (RDR), Mr. Laurent
Gbagbo won the election under the banner of the Front Populaire Ivoirien
(FPI).
6. The discontent which remained unresolved brought in its wake a new coup
d’état on 19 September 2002 initiated by junior officers of the old militia of
President Guéi who was assassinated during the subsequent events while
Mr. Ouattara escaped execution by a death squad. The attempted coup
triggered the division of the country into two parts, with the North under the
control of the rebels and the South by forces loyal to the Government of
President Gbagbo, with the support of the French army.
7. The Complainant alleges that President Gbagbo’s regime took advantage of
the rebellion to treat people from the North as terrorists who enjoyed the
support of Mr. Ouattara. The position of the new Government encouraged
the continuation of the notion of « ivoirité », which was worsened by a
xenophobic nationalism in the form of discrimination on the part of the
Ivorian authorities against the Dioulas from the North. The abuses arising
from the phenomenon were perpetrated in several State institutions,
particularly the intelligence apparatus, the police service, the gendarmerie
and the courts. Under the Governments of Presidents Guéi and Gbagbo, a lot
of violations were committed in particular during the elections.
8. These violations included extrajudicial killings of persons alleged to be of the
Dioula ethnic group or people affiliated to the Muslim religion. Similarly,
people were discriminated against by the police forces solely based on their
name, accent, physical appearance or their clothing as proof of their northern
origin. Thus, these persons were arrested in the streets or in their homes and
detained by the police. The victims identified government officials as
perpetrators of the said violations, including rape.
9. The Complainant reports that even when their nationality was attested to,
some Dioulas were denied certain benefits and services by the government,
including acquisition of passports, birth certificates and national identity
cards. Furthermore, the authorities extorted monies from the same victims in
return for their papers. Finally, the Complainant submits that, during the
2000 presidential elections, the Supreme Court enforced the « ivoirité »
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concept by confirming the exclusion of several applications including that of
Mr. Ouattara, because he had held burkinabè nationality.
The Complaint
10. The Complainant alleges that Articles 2, 3, 4, 5, 6, 12, 13, 14, 18 and 22 of the
African Charter have been violated.
11. The Complainant requests the Commission to :
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Declare that Côte d’Ivoire violated the provisions of the
aforementioned Articles of the African Commission ;
Order the State to put an end to acts of discrimination and to
ensure that no acts of discrimination nor human rights violations
will be perpetrated against people from the northern part of Côte
d’Ivoire ;
Order the State to adopt a new legislation on nationality ;
Order the State to establish an independent mechanism to
appreciate the complaints of refugees who left Côte d’Ivoire and
would like to re-acquire Ivorian nationality ;
Finally, order the State to properly compensate persons whose
rights were violated as a result of discriminatory practices
perpetrated against them by Ivorian government officials.
PROCEDURE
12. The Complaint was submitted on 23 January 2006 to the Secretariat, which
acknowledged receipt of it the same day and informed the Complainant that
it will be submitted to the Commission at its 39th Ordinary Session scheduled
to take place in Banjul, The Gambia from 11 to 25 May 2006. During the aforementioned session, the Commission decided to be seized of the
Communication.
13. The Secretariat informed the Complainant about the decision on seisure on 17
July 2006, and requested the latter to submit its arguments on admissibility.
The Secretariat received the said arguments on 19 September 2006 and
forwarded them to the Respondent State on 30 October 2006, requesting it to
respond as quickly as possible.
14. By letters dated 12 February and 4 April 2007 respectively, the Secretariat
informed the Parties that the Commission had considered the
Communication during the 40th Ordinary Session and decided to defer its
consideration to the 41st Ordinary Session. The Respondent State was
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reminded to submit its observations on the admissibility. On 21 May 2007, the
Respondent State requested the Secretariat to extend its deadline for the
submission of its arguments on admissibility.
15. The Respondent State forwarded a request to the Secretariat on 23 May 2007,
for stay of proceedings in respect of the Communication in order to pave the
way for an amicable settlement within the context of a comprehensive
negotiated settlement of the Ivorian crisis. The Secretariat informed the
Complainant on 14 June 2007, that following the consideration of the
Communication at the 41st Ordinary Session, the Commission had decided to
defer it to the next session in order to address the requests of the Respondent
State.
16. In view of the fact that the Secretariat did not receive any response from the
Respondent State, the Secretariat forwarded a letter to it on 13 September
2007, requesting it to follow up on its proposal for amicable settlement or
failing that to submit its arguments on admissibility without any further
delay. By a new note verbale dated 18 March 2008, the Secretariat sent a
reminder notice to the Respondent State.
17. The Secretariat received a letter on 11 May 2008, in which the Respondent
State indicated having initiated negotiations with the human rights
organizations to settle the issue amicably. The Respondent State then made
reference to an agreement concluded with the High Council of Malians
Living Abroad and forwarded to the Secretariat a copy of a letter sent to the
Complainant on 2 November 2007 inviting it for an amicable settlement in
this Communication.
18. The Complainant informed the Secretariat on 13 November 2008, that
contrary to the allegations of the Respondent State, it had not received any
proposal for an amicable settlement as the letter proposing such a settlement
had been transmitted to a wrong address. Thus, the Complainant had urged
the Commission to proceed with the consideration of the admissibility of the
Communication and expressed its readiness to furnish the Secretariat with
additional arguments to that effect. Following this request, the Secretariat
revived the procedure by informing the Parties in 2009 and 2010 about the
successive deferrals of the consideration of the admissibility of the
Communication.
19. The Secretariat informed the Parties on 13 August 2010 about the
postponement of the consideration of the Communication to the 48th
Ordinary Session scheduled to be held from 6 to 20 November 2010. The
Respondent State was requested to submit its arguments on admissibility.
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The Complainant reminded the Secretariat on 17 August 2010, about its
request for the continuation of the admissibility proceedings and indicated its
desire to see the Commission give a ruling at the subsequent session. The
Secretariat once again requested for the submissions of the Respondent State
on 25 October 2010.
20. The Complainant transmitted a letter to the Secretariat in February 2011,
providing an update of all the communications it had brought before the
Commission including this particular Communication. The Complainant
confirmed its letter above on 12 April 2011 and requested the Commission to
continue with the consideration of the admissibility of the Communication at
its 49th Ordinary Session scheduled for 28 April to 12 May 2011. In the course
of the successive sessions, the Commission decided to defer the consideration
of the Communication. The Parties were duly informed about them and the
Respondent State requested to submit its arguments on admissibility.
21. The Complainant seised the Secretariat on 2 November 2011 with a request
for amicable settlement following political developments in Côte d’Ivoire as
the preparation of a draft bill by the government on nationality had the
potential of addressing the legal provisions and discriminatory practices
denounced by the Communication. The Complainant therefore requested the
Commission to intervene to ensure clarification of the principles of nondiscrimination stipulated by the African Charter and the implementation of
nationality issues within the context of the amicable settlement. The
Complainant requested the appointment of one Commissioner to that effect.
22. The Secretariat informed the Parties on 28 June 2012 that the Commission had
considered the Communication at the 51st Ordinary Session and decided to
defer its decision on admissibility to the 52nd Ordinary Session scheduled to
be held from 9 to 22 October 2012 in Yamoussoukro, Côte d’Ivoire. The
Respondent State was requested to submit its arguments on admissibility.
The Secretariat once again requested the Respondent State on 21 August 2012
to forward its arguments and informed the State that failing that, the
Commission would take a decision on the admissibility based on the
information in its possession.
23. In response to the Secretariat’s letter dated 28 June 2012, the Complainant, in
a letter dated 6 September 2012, recalled its request for amicable settlement
filed in April and November 2011. The Secretariat informed the Respondent
State on 18 December 2012 about the request for amicable settlement of 2
November 2011 submitted by the Complainant and informed the Parties that
the said request will be considered during the 13th Extraordinary Session of
the Commission in February 2013.
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24. At the 13th Extraordinary Session, the Commission considered the
Communication and decided to request for the consent of the Respondent
State regarding the procedure for the amicable settlement or, failing that, the
submission of its arguments on admissibility. The Parties were informed
about this decision on 1st and 4th March 2013.
25. At its 53rd Ordinary Session held from 9 to 23 April 2013, the Commission
observed that the Respondent State had not given any effect to all the
aforementioned letters and decided to inform the Complainant about them
and once again requested the Respondent State to submit its arguments on
the admissibility. Letters were transmitted to the parties to that effect. On 3rd
March 2013, the Secretariat set a new deadline of two months for the
Respondent State to transmit its arguments on the admissibility.
26. At the 54th Ordinary Session, the Commission considered the
Communication and decided to defer its decision on admissibility to the next
session. The Parties were duly informed about the Commission’s decision.
The Complainant was requested to provide additional submissions on the
admissibility as the initial Complaint presented conclusions exclusively based
on the condition of exhausting local remedies stipulated in Article 56(5) of the
African Charter. The Complainant transmitted additional arguments the
substance of which did not differ significantly from the arguments contained
in the initial complaint.
27. During the 15th Extraordinary Session held from 7 to 14 March 2014 in Banjul,
The Gambia, the Commission considered the Communication and declared
that it was admissible. The Secretariat informed the Parties to that effect on 17
March 2014, notifying them about the decision and requested the
Complainant to make its submissions on the merits within the allotted
timeframe.
28. The Secretariat received the submissions on the merits from the Complainant
on 28 May 2014, but the attached documents were received on 13 June 2014.
The Secretariat transmitted the aforementioned submissions to the
Respondent State on 16 June 2014 and requested it to forward its arguments
within the prescribed timeline.
29. The Respondent State submitted its arguments on the merits on 14 July 2014.
The Secretariat acknowledged receipt of same and forwarded them to the
Complainant on 4 August 2014. After preliminary review of the submissions
of the Parties with a view to preparing a draft decision on the merits, the
Secretariat sent a new measure of inquiry to the Parties requesting them to
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submit within a period of one month effective 12 September 2014, including a
copy of some texts of the law to enable the Commission carry out an
exhaustive review of some issues raised in the Communication.
THE LAW
Admissibility
Arguments of the Complainant on Admissibility
30. The Complainant alleges that the Communication meets the conditions laid
down by Article 56 of the African Charter on admissibility. However, the
arguments of the Complainant are focused exclusively on fulfillment of the
condition of exhausting local remedies pursuant to Article 56 (5).
31. On this condition, the Complainant alleges that domestic remedies are not
available for three main reasons. In the first place, the Complainant reckons
that the widespread and targeted acts of physical violence against members
of the victims’ communities and the reasonable fear of such violence
constitute an obstacle to their ability to exhaust the remedies. The
Complainant further avers that the Communication reveals a case of serious
and massive human rights violations and, in that regard, the gravity of the
situation and the huge numbers of victims involved make it practically
impossible to exhaust local remedies. Finally, the Complainant asserts that
the effectiveness and suitability of the remedies cannot be guaranteed as the
national system does not provide any mechanism for collective action or
another procedure for redress of widespread violations involving a large
group of victims.
32. While recognizing the positive nature of the legislative reforms on nationality
carried out by the Republic of Côte d’Ivoire after the Communication was
lodged, the Complainant alleges that these reforms cannot prevent the
admissibility of their Complaint for two main reasons. On the one hand, the
Complainant refers to the established case law of the Commission to support
the fact that admissibility must be considered from the time the
Communication is submitted. The Complainant further argues that
admissibility must be determined based on the facts and circumstances
prevailing at the time the Complaint was lodged and that any subsequent
change of government or legal regime must be considered in the light of the
facts and circumstances of the cause and not in the abstract.
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33.
On the other hand, the Complainant asserts that though the amendments
made to the nationality Code by the Ivorian Parliament in August 2013 are
encouraging, they are not enough to correct the violations alleged by the
Communication. For instance, the Complainant refers to the fact that by
failing to include the definition of the term « Ivorian », the reform stopped
short of removing the main and fundamental source of legal uncertainty
regarding access to nationality. The lack of administrative regulation for the
implementation of the reform, according to the Complainant, is further beset
with the risk of continuing to leave access to nationality at the exclusive and
excessive discretion of the Executive in a country where the number of
Stateless persons account for 700, 000 persons according to the 2014 estimates
from the United Nations High Commission for Refugees.
34. In addition to these defects in the reforms referred to by the Complainant, the
latter alleges that the amendments adopted do not provide any compensatory
measure for the violations of the African Charter which extended over a long
period of time. The Complainant asserts that in the absence of compensation
measures, any remedy is inadequate and insufficient.
The arguments of the Respondent State on Admissibility
35. As the in-depth account of the procedure shows, the Respondent State
neither followed up on its own proposal for an amicable settlement dating
from May 2007 and much less for the one initiated by the Complainant in
November 2011. Following the decision by the Commission to continue with
the procedure on admissibility, the State also did not transmit its arguments
in spite of the numerous reminders sent by the Secretariat to that effect.
Analysis of the Commission on Admissibility
36. This Communication was submitted in accordance with Article 55 of the
African Charter which empowers the Commission to receive and consider
« communications other those – originating from – State Parties ». To be
declared admissible, the aforementioned communications must meet the
conditions laid down in Article 56 of the African Charter.
37. Under the provisions of Rule 105(2) of its Rules of Procedure, when the
Secretariat receives observations from the Complainant, it transmits them
immediately to the Respondent State to allow the latter to respond within two
months from the date the request was forwarded to it. In this
Communication, the Commission notes that the procedure referred to here
was complied with but the Respondent State had initially sought to proceed
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by opting for an amicable settlement of the issue brought up in the
Communication.
38. The Commission however notes that as the Complainant did not agree to the
amicable settlement proposed by the Respondent State, the submission
procedure on admissibility was followed. The said procedure was once again
suspended by the request for amicable settlement brought up by the
Complainant following the reform of the nationality Code in 2013. As the
State did not give any effect to the consultations with a view to settling the
issue amicably, the Commission decided to revive the consideration on the
admissibility. In spite of numerous letters sent between November 2011 and
November 2013, the Respondent State did not submit its arguments on the
admissibility. Consequently, the Commission decided to examine the
Communication based on the facts in its possession.2
39. On considering the submissions put forward, the Commission notes that the
Complainant directs his arguments mainly towards evidence of complying
with the Rule of exhausting local remedies stipulated in Article 56(5) of the
African Charter. As a prelude to its analysis on this point, the Commission
itself observes that the other conditions outlined in Article 56 of the Charter
were complied with. In fact, the author of the Communication has been
identified and the Communication alleges violation of the provisions of the
African Charter by a State Party. Furthermore, the Complaint does not
contain any insulting or disparaging language and it is not based exclusively
on news disseminated through the mass media. Moreover, the
Communication was filed at a time when the alleged violations were
continuing, which leaves out the application of the condition of seisure of the
Commission within a reasonable period of time after exhausting local
remedies. Finally, the Complaint does not concern a case settled under the
provisions of Article 56(7) of the African Charter.
40. Concerning Article 56(5), its provisions require that the Complainant should
exhaust local remedies if only they exist, and are effective and adequate 3 and
are not unduly prolonged. A remedy is considered as available when it can be
used without any restraint by the applicant, effective where it offers prospects
of success and adequate when it is able to provide satisfaction to the
Complainant and remedy the alleged violation.4 In the event where any of
2 See Institute for Human Rights and Development in Africa v. Angola Communication 292/04 (2008)
AHRLR 43 (ACHPR 2008) para. 34 ; Social and Economic Rights Action Center and Center for
Economic and Social Rights v. Nigeria Communication 155/96 (2001) AHRLR 60 (ACHPR 2001).
3 See Jawara v. The Gambia Communication 147/95 et 149/96 (2000) RADH 107 (ACHPR 2000) para 31.
4 See Jawara para 32. Emphasis by the Commission.
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these characteristics is lacking, the local remedies cannot meet the
requirements stipulated in Article 56(5) of the African Charter.
41. In this Communication, the Complainant alleges that that the local remedies
were not available as a result of the fear and persecution which prevented the
victims from seeking public protection. On this point, the Commission makes
reference to its jurisprudence in the case, Law Office of Ghazi Suleiman v.
Sudan, where it decided that as the Complainant had been under threat and
persecution, he could not have had access to any remedies, which, in any case
were not available.5 Generally, the Commission considers that, as it pertains
in the case of its decisions in Jawara v. The Gambia and Aminu v. Nigeria,6
in situations where referral to local remedies in itself creates fear and
constitutes a risk to the life of the Complainant or the victim, such remedies
are deemed unavailable.
42. Under the case in point, the Commission notes that the alleged violations
were initially confined, at least, to a period of time between the introduction
of the concept of « ivoirité » in 1993 and the seisure of the Commission in
2006. The events that occurred in Côte d’Ivoire during that period are well
known internationally. In this case, the widespread acts of physical violence
targeting a specific section of the population, particularly people from the
North belonging to the Dioula ethnic group or people of Islamic religious
persuasion, were reported by several international organizations.
43. The Commission notes for instance, that the said violations were documented
and denounced, among others, by the United Nations Security Council and
other international non-governmental human rights organizations.7 The
Commission particularly notes that the sources mentioned in this context
help to identify the main perpetrators of the alleged violations as public
authorities, including the police force and the gendarmerie, as well as public
officials.8
44. Even so, the Commission clearly observes that the environment of
persecution and insecurity existing in Côte d’Ivoire at the time of the facts,
especially towards the targeted communities, could not have motivated the
5 See Law Office of Ghazi Suleiman v. Sudan Communication 228/99 (2003) AHRLR 144 (ACHPR 2003)
para 33.
6 Communication 205/97 (2000) AHRLR 258 (ACHPR 2000) para 13.
7 See Security Council Resolution 1464, para 7, U.N. Doc.S/RES/1464 (4 February 2003). See also Amnesty
International Report 2004 Côte d’Ivoire http://www.amnesty.org/en/library/asset/POL10/
004/2004/en/b1d27f7f-775c-42cc-87cb-94360efc0cec/pol100042004fra.pdf (consulted on 23 January 2014).
8 See Security Council and Amnesty International, op cit. See also, US Department of State, Bureau of
Democracy and Labor, Country Report on Human Rights Practices http://www.state.gov/j/drl/rls/
hrrpt/2005/61565.htm (consulted on 23 January 2014).
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victims to seek protection under the law from authorities involved in the
alleged violations. In such circumstances, internal remedies could not be said
to be available.
45. Based on the alleged serious and massive violations, the Complainant also
requests a derogation of the principle of exhausting local remedies. On this
argument, the Commission refers to its established case law to reiterate the
illusion and futility of exhausting local remedies in cases of serious and largescale human rights violations. Thus, in the cases Malawi African Association
and Others v. Mauritania and Sudan Human Rights Organisation and
Another v. Sudan, the Commission had concluded that the seriousness of the
violations and the large number of victims concerned made the remedies
unavailable and their exhaustion practically useless.9
46. On the specific issue of knowing what constitutes a serious and massive
human rights violation, in the case, The Kenyan Section of the International
Commission of Jurists v. Kenya, the Commission considered both the scale
and the nature of the alleged violations. With regard to the scale, the
Commission then determined that a massive violation is one that affects a
large number of persons, either in a specific region or all over the territory of
a State Party. Concerning the nature, the violation must be the consequence of
continual and pre-determined actions having an impact on a right or a group
of rights under the African Charter.10
47. In this instance, the Commission notes that the alleged violations concern a
large section of the population of the Respondent State, or about 30 percent of
a population of 16 million inhabitants at the time of the events in question.11
Furthermore, the alleged facts were inevitably likely to result in the violation
of the right of recognizing the legal status guaranteed by Article 5 of the
African Charter. In this regard, the Commission critically notes that hundreds
of thousands of persons were affected by the statelessness in Côte d’Ivoire as
a result of the allegations alleged by the Complainant.12
9 See Malawi African Association et al v. Mauritania Communications 54/91, 61/91, 98/93, 164/97,
210/98 (2000) AHRLR 149 (ACHPR 2000) para 85 ; Sudan Human Rights Organisation and Another
Person v. Sudan Communications 279/03 et 296/05 (2009) AHRLR 153 (ACHPR 2009) paras 100-101. See
also Zimbabwean Human Rights NGO Forum v. Zimbabwe Communication 245/02 (2006) AHRLR 128
(ACHPR 2006) para 69-72.
10 See The Kenyan Section of the International Commission of Jurists v. Kenya Communication 385/10
(ACHPR) 2013, paras 63-64.
11 SeeThe World Bank, Data, ‘Population (Total)’ http://data.worldbank.org/indicator/SP.POP.TOTL
(consultd on 24 January 2014).
12 See UNHCR ‘Côte d’Ivoire’ http://www.unhcr.org/4cd969a29.pdf (consulted on 24 January 2014) ;
UNHCR ‘La Côte d’Ivoire fait un grand pas pour éliminer l’apatridie avec l’adhésion aux conventions’
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48. In the light of these observations and following the jurisprudence referred to
supra, the Commission is of the view that the magnitude of the alleged
violations had an effect on a sizeable section of the population of Côte
d’Ivoire, in particular, the communities in the northern region of the country.
Furthermore, by their nature, the said violations which are alleged to have
started in the mid-1990’s had continued at least until this Communication
was lodged in 2006. Moreover, such violations can be considered as predetermined as they arise from the implementation of a legislation adopted by
the Respondent State. Finally, these violations disguised a clear potential of
negatively impacting the enjoyment of a right to legal status guaranteed by
Article 5 of the African Charter, the violation of which is alleged by the
Complainant.
49. From the foregoing, the Commission concludes on the one hand that, the
climate of fear and persecution which prevailed at that material time was a
stumbling block to exhaustion of local remedies which were actually not
available; and that the alleged violations were serious and massive, on the
other hand. Consequently, the victims and the Complainant would not be
required to exhaust local remedies.
50. Without necessarily considering the other arguments raised by the
Complainant, the Commission notes that the facts and the circumstances of
the case require the derogation of the clause on compliance with the
exhaustion of local remedies.
Decision of the Commission on the Admissibility
51. In view of the aforementioned, the African Commission on Human and
Peoples’ Rights declares this Communication admissible in accordance with
Article 56 of the African Charter.
The Merits
The arguments of the Complainant on the Merits
52. According to the Complainant, the actions of the Respondent State are the
principal and subsequent violations of the provisions of the African Charter.
With regard to the main violations, the Complainant alleges that, on the one
« Cote d’Ivoire makes a giant leapfrog to eliminate statelessness in the area of accession to
conventions »http://www.unhcr.fr/524ec78cc.html (consulted on 24 January 2014).
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hand, the right to equality (Articles 2 and 3) has been violated, and the rights
to the recognition of legal status and to the respect of the dignity inherent in a
human being (Article 5), on the other hand. Concerning the subsequent or
derived violations, the Complainant’s allegations are focused on the
obligation to give effect to the law (Article 1), on the rights to freedom of
movement (Article 12), participation in public life (Article 13), the right to
property (Article 14), to work (Article 15), to family protection (Article 18)
and to socio-economic and cultural development (Article 22). The
Complainant also alleges that Articles 4 and 6 have been violated without
however advancing any arguments to that effect.
53. Concerning the violation of Articles 2 and 3 of the African Charter, the
Complainant alleges illegal discrimination regarding access to nationality
since it is not justified in law and its purpose not legitimate, nor necessary
nor proportionate to the end sought. According to the Complainant, the
discrimination in terms of access to nationality to which the Dioula people
were exposed and are still exposed to or perceived ones is based on their
ethnic origin or their religious persuasion. Such discrimination is
consequently illegal and unjustified in law since it is prohibited by both the
provisions of the aforementioned Articles and the jurisprudence of the
Commission and international law. The Complainant further avers that the
discrimination denounced is neither necessary nor proportionate to the
intended purpose as it tended either to withdraw the rights already acquired
or to make the right to nationality an illusion.
54. To support the assertion of being discriminated against on account of the law,
the Complainant argues that the 1961 Ivorian Code on nationality is vague
and reinforces the doctrine of « Ivoirité » by simply stating that an Ivorian is
someone born by an Ivorian. This legal ambivalence is believed to have given
unlimited discretion to State officials and thus facilitated the implementation
of discriminatory policies and practices. The Complainant affirms that the
subsequent discrimination has been manifested by a difference in treatment
based on ethnic origin and religious affiliation. On this issue, the
Complainant indicates that the term « ivoirité » underpins a notion of a
« pure » Ivorian heritage for which the term was institutionalized by the 2000
electoral reforms and it is based on a distinction between « indigenous
Ivorians » and « Ivorians from migrant ancestral background ». The
foreigners are compared to people who hail from the North, who are also
referred to as immigrants, since they do not have any connection with
another State. By extension, those from the North with a valid claim to
nationality are therefore treated as immigrants and therefore foreigners.
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55. The Complainant relies on evidence obtained from hundreds of victims in
2010 from which it emerges that more than 54 percent of the persons
interviewed claimed that the authenticity of their identity documents was
called into question as a result of their foreign consonance of their names.
Thus, for instance, a person interviewed by name « Diallo » was told that
such a surname could not be Ivorian. In other cases, persons who had shown
proof of their nationality were all the same subjected to harassments because
their names did not sound like Ivorian names, as shown by a witness
interviewed by name « Mamadi ». Some were compelled to pay monies to
regain their freedom following identity checks whereas they had shown proof
of their nationality. Their documents were subsequently seized by police
officers or the gendarmerie. In the same vein, persons travelling with their
colleagues were compelled to pay fines to police officers whilst no fine was
taken from the other non-Dioula passengers.
56. Concerning the nature of the difficulties faced by applicants for nationality
documentation, as part of this Communication, the Complainant lays
emphasis on evidence provided by more than 53 percent of persons who
claimed to have encountered administrative problems while 39 percent
reported about justice-related issues. For instance, the renewal of documents
on nationality was denied someone by name « Savadogo » because the
difference between his mother’s age and his age was too wide and suspicious.
The authorities remained adamant while the applicant produced his birth
certificate, his old certificate of nationality, the identity card of his uncle, his
mother’s birth certificate and the naturalization decree of his grandfather. All
these persons interviewed were victims of acts reported above and they had
one thing in common, that is, they bore surnames such as « Zongo »,
« Dabré » or « Yabré », which are considered as non-Ivorian.
57. To illustrate the alleged discrimination in a more representative way and in
the application of the law, the Complainant refers to the consideration of the
candidatures for the 2000 presidential election in Côte d’Ivoire. Based on the
law on nationality, reinforced by the new provisions of Article 35 of the 2000
Ivorian Constitution, the candidature of Mr. Alassane Ouattara was rejected
for failing to meet the « Ivorian origin » criterion whereas he had produced
his Ivorian birth certificate and those of his father and mother. In addition to
this, he produced his Ivorian identity card and copies of his two parents’
cards. In spite of all these documents, the Supreme Court used its full
discretion provided by the law on nationality to nullify the candidature of
Mr. Ouattara.
58. By contrast, the Complainant makes reference to the treatment meted out by
the same Court to Mr. Robert Guéi as a candidate. As proof of his nationality,
14
the latter produced only a certificate of nationality; to prove the Ivorian
nationality of his parents, the candidate traced his ancestral origins to the
second generation by just drawing family tree himself. As Mr. Robert Guéi
was thought to have adequately shown proof of his nationality, the Court
decided to validate his candidature.
59. To ascertain the fact that the successive regimes had taken advantage of the
vague law on nationality to pursue the discriminatory policy against people
from the North, Dioulas or persons perceived as such, the Complainant
makes reference to mobile court hearings held in 2007 to register people of
voting age and issue them with the identification documents. During the said
hearings, the Government of President Laurent Gbagbo had requested that
applicants for nationality certificates should register at their places of birth.
According to the Complainant, more than 700 000 concerned persons were
internally-displaced as a result of the civil war that broke out in 2002 and
such people lacked the necessary resources to proceed to their home towns.
Furthermore, due to the climate of suspicion towards people hailing from the
North, officials in charge of the hearings refused to issue identification
documents or simply removed the application letters without any
explanation whatsoever. The Complainant reports of complaints of
widespread destruction of identity cards of persons from the North by the
security agencies on the grounds that they were fake.
60. Persons bearing Dioula names reported that they had been denied access to
employment or forbidden from obtaining an identity card, or had been
imprisoned and compelled to pay bribes at check points. According to
allegations from the Complainant, the situation reached its climax during the
2010 electoral crisis when on 3 February; President Gbagbo’s government
had requested the removal of names of tens of thousands of people suspected
of be of foreign origin from the voters’ register based on only the Muslim –
sounding surnames. Unlike « Ivorians », persons perceived as foreigners had
thus been compelled to pay monies to have their names put on the register.
61. On the issue of unjustified nature of the discrimination, the Complainant
alleges that as the victims had established a prima facie case of discrimination
for differentiated treatment on grounds of ethnic origin and religious
affiliation, the burden of proof lies with the Respondent State to provide an
objective and reasonable justification. The Complainants also noted that at the
time of making their submissions on the merits, the Respondent State had not
been able to justify the alleged discriminations.
62. Concerning the violation of the provisions of Article 5 of the African Charter,
the Complainant alleges that the actions of the Respondent State constitute
15
an arbitrary violation of the right of the victims to nationality. According to
the Complainant, the discriminatory acts reported above led to the denial of
the right to nationality, and in many instances to statelessness or to the risk of
statelessness, thus preventing the recognition of the legal status of thousands
of Ivorians. The Complainant establishes the right of the Dioula population to
Ivorian nationality based on history. Thus, he argues that as a result of
artificial borders splitting homogeneous cultural groups and regrouping
different peoples within several independent States, the post-independent
borders have undermined the natural process of creating nation States and
caused a heterogeneity which has given vent to ethnocentrism. The
Complainant asserts that this historical foundation of the right to nationality
is confirmed by the accounts of the victims interviewed of which 78 percent
were born in Côte d’Ivoire, with parents and grand-parents themselves born
in Côte d’Ivoire, the only country they have ever known, the only country
with which they have ever had socio-political links and where all the
members of their families live.
63. The Complainant asserts that on violation of the right to nationality according
to the provisions of Article 5 of the Charter, the law is vague, its
implementation discriminatory and the procedure for acquiring nationality
inequitable. On the vagueness of the law, the Complainant affirms that the
nationality Code fails to clarify two terms whose definition is crucial to
ensure an equitable and transparent implementation: « Ivorian » and
« foreigner». The Complainant asserts that at independence, there were no
Ivorian citizens in Côte d’Ivoire, just as it pertained in several other African
States. In Côte d’Ivoire, the authorities gave the regular residents a timeline of
one year to acquire the nationality, a deadline which many residents could
not comply with nor deemed it necessary to comply with. The myth was
therefore perpetuated, from generation to generation, that Ivorian nationality
was only given before independence or in the period after independence.
64. On the allegation of denial of nationality as a result of the inequitable
implementation of the law, the Complainant refers to the lack of standardized
processes and motivation for follow-up of applications submitted and the
unpredictability of the procedure for acquiring nationality. The Complainant
stresses that whereas the Ivorian law on nationality is governed by the
principle of jus sanguinis – to have at least one Ivorian parent – the law in
question does not set any concrete standard to determine the validity of the
nationality of parents. Furthermore, according to the evidence provided by
witnesses, in case the nationality documents of their parents filed alongside
the application for nationality or naturalization did not disappear from the
administrative processes, they were simply rejected without any reason. The
attempts to renew previously acquired documents ended the same way.
16
65. The Complainant refers to the statements of some witnesses to illustrate the
way certain reported practices had generated a degree of unpredictability of
the procedure for access to nationality. For example, when a witness by name
« Lansani » presented his identity papers to the commissioner, the latter
requested for a naturalization decree and the official gazette in which it was
published, making the procedure too complicated. When the applicant
brought up an application for a nationality certificate before the judge, the
said document was issued on an orange-colored paper whereas in practice,
access to a lot of services are often denied to persons holding such « orange »
papers, since the administrative authorities only accept documents issued on
paper with white background. According to the Complainant, efforts made
by candidate Ouattara to prove his Ivorian ancestral link and nationality
demonstrate the lack of predictability and impartial judicial control at the
highest social level on issues concerning application for acquisition of
nationality.
66. On the legality of denial of nationality leading to the actions denounced in
this context, the Complainant finally alleges that such a denial is arbitrary by
definition as it renders an individual stateless. The Complainant pleads that
the right of recognition of the legal status guaranteed by Article 5 of the
Charter imposes on the Respondent State an obligation to prevent
statelessness. According to the Complainant, this obligation has been
recognized as a rule of customary international law and prescribed by a
number of general and specific international human rights instruments.
Moreover, the United Nations Directives on statelessness stipulate that it is
not the law but the practice which determines statelessness and that to
establish the position of the State on nationality, the competent authorities
may be average public servants, such as the official of the civil gegistry or an
official of the government agency responsible for passports.
67. According to the Complainant, the difficulty in obtaining official
identification documents is a more serious problem in Africa including the
express denial of nationality since the enjoyment of many a right is directly
related to obtaining these documents. Based on testimonies collected as part
of this Communication, the Complainant alleges that the systematic refusal of
the authorities to issue identity cards to persons perceived to be « Dioula »
resulted in massive statelessness. These practices are viewed as having
exacerbated the conflict and their persistence beyond the crisis has also been
authenticated, with the emphasis placed on a more generally excessive
discretion affecting the entire population without distinction whatsoever on
account of migratory origin.
17
68. The Complainant asserts that, against this background, the deprivation of
nationality for want of documentary evidence is strongly suspected when the
State does not offer adequate and effective access for the registration and for
birth certificate of children born on the territory. In reviewing the application
for nationality, the theoretical possibility of the nationality of another State is
inapplicable. In this regard, the Complainant calls on the Commission to
focus particular attention on children born in Côte d’Ivoire by parents whose
status is unknown or whose Ivorian nationality has been challeneged.
69. Still on the issue of non compliance with the provisions of Article 5 of the
Charter, the Complainant asserts that the difference in the treatment
imposed on the Dioulas in the area of access to nationality based on
« foreign »-sounding names and on Muslim affiliation violates their right to
the respect of the dignity inherent in a human being. According to the
Complainant, the refusal of the authorities of the Respondent State to issue
identity documents to the victims is a denial of their existence, thus violating
their dignity, because they are deprived of any legal identity. Furthermore,
such a refusal is tantamount to degrading treatment as it is based on ethnic
origin and religious affiliation and targeted at a specific section of the society
which is relegated to a second class status in the Ivorian society. The
Complainant stresses that, the name « Dioula » was originally used to
identify the professional group of traders and a patronymic name in the Kong
Manding dialect; it was later used as a pejorative and popular reference for
all the Mandé and Gur population from the North and consequently for all
Muslims. Disqualified from contesting for political office, the « Dioulas »
were relegated to the background on the social ladder based on social
perceptions disseminated by State ideology which has unfortunately
influenced all the ethnic groups in the country.
70. The Complainant reports that the testimonies indicate that persons from the
Dioula ethnic group or of foreign origin faced acts of harassment and abuses
during the 2000 elections, including in particular sexual abuses in the West of
the country where the victims were targeted because of their ethnic origin or
their perceived nationality. The Dioulas were also made to pay fines during
the process of obtaining nationality documentation and even in everyday life;
more than 55 percent of persons interviewed had the inner feeling that their
identity was consistently called into question.
71. Concerning subsequent violations, the Complainant alleges that the refusal
to issue passports to victims infringed on their freedom of movement laid
down in Article 12 of the Charter. In this regard, the Complainant affirms that
the difficulties associated with the recognition of their Ivorian nationality
resulted in the inability of most of the Dioulas to obtain a passport and
18
therefore travel outside the country. Recognizing the possibility of a
limitation to the freedom of movement, the Complainant is of the opinion
that such a restriction must be consistent with the other rights stipulated in
the Charter and with the principles of equality and non-discrimination. Based
on these testimonies, the Complainant reports that the security agencies
compelled Dioula travelers to pay a sum of one thousand francs as compared
to non-Dioula passengers. Similarly, persons who had travelled out of the
country to reside there were also later denied the renewal of their identity
papers and were prevented from travelling, including being prevented from
returning to visit their parents in Côte d’Ivoire.
72. The Complainant also alleges the violation of Article 13 of the Charter based
on the fact that, in the public sphere and in elections, the Dioulas are
discriminated against both in seeking public offices and in their quest to be
represented by the members of their communities. The Complainant recalls
the 6 October 2000 decision of the Supreme Court of Côte d’Ivoire rejecting
the candidature Mr. Alassane Ouattara for the 2000 presidential election on
grounds that he was not an Ivorian whereas the latter had been a Prime
Minister for three years and represented the country within high level
institutions under the Government of President Houphouet Boigny. These
problems persisted during the parliamentary and regional elections which
came up immediately after the 2000 presidential elections, in particular after
the opposition candidates to the Government of President Gbagbo had won
majority of the seats during the local election in March 2001. At that time,
though a national verification process of voters was just in its incipient stages,
President Gbagbo had declared that only persons holding new voters cards
would be allowed to participate in the municipal elections. Most of the
persons excluded by the said regulations were actual partisans or perceived
to be members of political parties deemed to be « pro-foreign ». Moreover, a
large number of Dioulas who had previously obtained a certificate of
nationality, all the same had had their names removed from the electoral
register before the 2010 elections.
73. The Complainant further alleges the violation of the right to property
guaranteed by Article 14 of the Charter. According to the Complainant, such
a violation is established, as the Commission had already decided in
Mouvement Ivoirien des Droits de l’Homme v. Côte d’Ivoire that the
provisions of Article 26 of the 1998 Law relating to local land ownership are not
consistent with Article 14 of the African Charter in that they stipulate that
non-Ivorian or foreign persons cannot be landowners in such a locality. The
Complainant states that, in a country where 70 percent of the 32 million
19
hectares of land has not been registered or where property or land rights are
vital for the survival of majority of the population in West Africa, people
looking for land whose identity documents have been rejected may not know
whether they have a right to it. Furthermore, persons without any document
but who already possessed land may reasonably suppose that they are
Ivorian whereas the government refuses to confirm such a claim.
Consequently, following attempts made to obtain an official title deed of the
property pursuant to the 1998 Law, the persons without any documents may
be denied ownership of their land under the pretext that they are foreigners.
74. Finally, the Complainant alleges that by denying the victims the possibility
of an employment prospect and a personal and family development, the
Respondent State violated Articles guaranteed under Articles 15, 18 and 22 of
the Charter. Touching on article 15, the Complainant states that the
difficulties faced by the Dioulas in the process of recognition of their Ivorian
nationality infringe on their right to obtain employment on a nondiscriminatory basis. Without a nationality certificate, they are excluded from
access to employment in the formal sector. For instance, the witness
« Abdou » was denied promotion as a judge because his mother’s birth in the
1930’s in Bouaké had been registered under a different name. The interested
party had all the same produced nationality documents that were in order.
75. On the allegation of violation of Article 18, the Complainant declares the
destruction of the unity of the family following the violent struggle for access
to nationality and identity cards. For example, after the police had seized the
documents of the witness by name « Drissa », the latter had to travel out of
his region with a laissez-passer which was only valid for one month. The
Complainant alleges that such a situation puts restrictions on the freedom of
movement, causes insecurity and a general state of vulnerability and that in
its jurisprudence, the Commission established that the denial of nationality is
a threat to family life.
76. Concerning the violation of the right of peoples to development protected by
Article 22, the Complainant alleges that arbitrary denial of nationality
prevented the Dioulas from achieving their ambitions and their full human
potential. The Complainant asserts that the capacity of the people to achieve
their nationality rights provides an indispensable element to stability both at
the personal level and at the social and international levels. He avers that this
condition of a dignified life is essential for the full and harmonious
development of the human personality. According to the Complainant, the
realisation of the « plan for life » is the attainment of the right to personal
development. To buttress this argument, the Complainant quotes the
testimony of « Abdou » whose life has come to a standstill after being
20
prevented from benefitting from the promotion as a judge because his
identity had been called into question as a result of his foreign-sounding
names and his religious affiliation. The identity of this person had been
fraudulently determined whereas he had done all his studies as an Ivorian
citizen and presented the entire dossier required to sit for the examinations
into the judiciary, including his certificate of nationality, his birth certificate,
his national identity card and his military certificate.
77. The Complainant also reports the testimony of « Salifou », born in 1982 in
Côte d’Ivoire but whose nationality was turned down several times even
while he was young at a time his parents had obtained citizenship by
naturalization in 1995. It became impossible for him to continue his education
as he was unable to sit for the baccalauréat examinations for lack of a national
identity card or a passport confirming his nationality.
78. As previously mentioned, the Complainant also alleges the violation of the
provisions of Articles 4 and 6 of the Charter. Referred to at the admissibility
stage, these allegations were maintained in the arguments on the merits.
However, the Complainant does not produce any argument to buttress the
said allegations.
79. Based on the above-mentioned conclusions, the Complainant alleges that the
Respondent State has violated the provisions of Article 1 of the Charter. He
supports this argument by alleging the failure of the State to provide the
necessary measures towards the respect, including the protection, promotion
and realisation of the rights mentioned above.
80. The Complainant finally pleads with the Commission to review the requests
indicated in its arguments on the admissibility. He justifies such a request by
the need to contextualize the dispute before the Commission in the light of
recent developments of the Ivorian legislation and the arguments presented
on the merits.
The arguments of the Respondent State on the Merits
81. The Respondent State does not dispute the facts reported nor the allegations
of the Complainant. On the contrary, the Republic of Côte d’Ivoire asserts
that these problems which were rampant during the decade of socio-political
crisis are being resolved thanks to efforts by the government towards
improving the human rights situation and the re-ordering of the social fabric.
In support of its stance, the Respondent State provides evidence that it has
adopted a series of legislative measures implemented, particularly in 2013,
with the aim of addressing the deprivation of nationality.
21
82. Among other legal measures taken, the Respondent State cites :
-
-
-
-
-
Law No.2013-646 of 13 September 2013 authorizing the President of
the Republic to ratify the 1954 Convention on the status of Stateless
Persons signed on 28 September 1954 in New York ;
Law No. 2013-647 on 13 September 2013 authorizing the President
of the Republic to ratify the 1961 Convention on the Reduction of
Cases of Statelessness signed on 30 August 1961 in New York ;
Law No. 2013-653 of 13 September 2013 on specific provisions
concerning the acquisition of nationality by declaration ;
Decree No. 2013-650 of 13 September 2013 on the ratification of the
1954 Convention on the status of stateless persons signed on 28
September 1954 in New York ;
Decree No. 2013-648 of 13 September 2013 on the ratification of the
1961 Convention on the reduction of cases of statelessness signed
on 30 August 1961 in New York ;
Decree No. 2013-848 of 19 December 2013 on the modality for the
implementation of Law No. 2013-653 of 13 September 2013 on the
specific provisions regarding the acquisition of nationality by
declaration.
83. The Respondent State further indicates the adoption of Law No. 2013-33 of 25
January 2013 on legislative provisions relating to marriage which henceforth
established equality between spouses as the basis of the family. With regard
to issues on the right to property, the State of Côte d’Ivoire indicates the
review of Law No. 2013-655 of 13 September 2013, of the 1998 Law on Rural
Land Tenure, as amended in 2004, particularly the provisions relating to the
timeline granted for the recognition of customary rights of lands in the
customary area.
84. Concerning the administrative and legal measures taken to resolve problems
arising from the post-electoral crisis, the Respondent State cites the
establishment of the National Investigations Commission on violation of
human rights and international humanitarian law committed in Côte d’Ivoire
during the post-electoral period; the Dialogue, Truth and Reconciliation
Commission (CDVR), the Special Inquiry and Investigation Unit (CSEI) and
the National Programme for Social Cohesion (PNCS). The Respondent State
also indicates that reflections are ongoing under the auspices of the Ministry
of Solidarity, Family, Women and Children’s Affairs on the definition of a
political framework and the options for reparations in Côte d’Ivoire.
22
85. Concerning the infringements on the right to development, the Respondent
State avers that its government is dealing with the rehabilitation and/or
reconstruction of economic and social infrastructure and the improvement of
the incomes of the population. Finally, the Respondent State asserts that a
review of reports it has produced since 2012 as part of its international
commitments will further show convincing proof about efforts made by the
government to build a society based on the principles of the rule of law, good
governance and human security.
Analysis of the Commission on the Merits
Additional arguments and requests of the Complainant
86. From the conclusions submitted on the merits, it appears to the Commission
that the Complainant has filed not only de facto and de jure supplementary
submissions but also additional pleas. Considering the crucial nature of the
said submissions and pleas in the determination of substantive issues, it is
necessary for the Commission to decide on them prior to considering the
merits of the Communication.
87. On the additional submissions, the Commission notes that to support their
claim, the Complainant presents a historical and chronological account of
factual or legal elements which go as far back as the period of independence
of Côte d’Ivoire in 1960. A cross examination between the introductory
submissions and the arguments on the merits reveals that these are not
necessarily new facts or additional or explanatory elements meant to clarify
or reinforce the previous submissions. While considering that in its decision
on admissibility, it clearly noted that the occurrence of the alleged acts of
violence took place between the time of the emergence of the concept of
« ivoirité » in 1993 and its seisure in 2006, the Commission reckons that such
conclusion does not in any way prevent the inclusion of factual or legal
findings before or after the said date.
88. On the de facto submissions, the Commission considers that though the
violations referred to in the Communication crystallized at the beginning of
the 1990’s, their alleged historical and legal source takes place before or dates
back to the 1960’s. Concerning the additional factual elements on the period
between the seisure in 2006 to the end of the exchange of the submissions in
2014, it is appropriate to accept them and contextualize them in considering
the Communication. However, on this point, the Parties agree with the
23
Commission. In fact, on the one hand, the Respondent State accepted it while
responding to the submissions of the Complainant covering the periods
stated above, and on the other hand, the violations are said to be continuing
at the time of this decision.
89. On the legal grounds, the Commission notes that on the merits, the
Complainant does not submit any argument to buttress the alleged violation
of Articles 4 and 6 of the Charter presented during the admissibility stage and
maintained in the merits. The Commission consequently recognizes that this
is a renunciation and decides to set aside the consideration relating to it. On
the other hand, the Complainant extends his claims to the violation of the
provisions of Article 15 of the Charter. On these points, the Commission
considers that the additional substantive submissions are admissible as long
as they are based on the same facts and do not call into question the issues
solved under admissibility, and that the author can prove them and the other
party can successfully challenge them. The identity or the connections
between the facts have been established above. Furthermore, the said
submissions have been substantiated and are not in dispute. Regarding the
consistency of the additional or new submissions to the issues resolved
during the admissibility stage, the Commission will examine it jointly with
the related requests.
90. On the said consistency, the Commission notes that in addition to the initial
requests, the Complainant requests for amendment of certain provisions of
the Ivorian Constitution of 2000 and the legislation on nationality and related
issues. It appears to the Commission that the said applications are arising
from the de facto and de jure submissions made during the admissibility
stage. Moreover, they were lodged within the set deadlines; they result from
the exchange of written submissions between the Parties, and the
Commission gave the Respondent State ample opportunity to respond to
them. Finally, the issue of submitting applications in the first instance before
the Commission does not arise as the Complainant was exempted from
exhaustion of local remedies. Consequently, the Commission accepts the said
submissions and requests and even deems them relevant to subsequent
stages regarding the consideration of the merits. Furthermore, having
received them before their update, the Commission admits the submissions
on the merits in their entirety and will carry out the consideration at the end
of the exchange of the submissions.
91. As a prelude to the actual analysis of the merits, the Commission notes that
the Complainant first of all concludes on the allegations of violation of rights
of equality guaranteed in Articles 2 and 3 of the Charter before pointing to
the lack of respect for human dignity and recognition of the legal status
24
guaranteed by Article 5 of the Charter. However, it appears to the
Commission that in this Communication, the main cause defended by the
Complainant is the deprivation of nationality which the population called by
the name « Dioula » were subjected to and will always be subjected to as
victims in Côte d’Ivoire. As proof, the Complainant himself asserts that his
argument aimed at proving that this alleged deprivation is based mainly on a
« legitimate claim » by Dioulas to Ivorian nationality. The allegations of
violations of the other provisions of the Charter are concurrent or subsequent
to the alleged principal violation. In fact, these subsequent allegations are not
the consequence of the principal one independently of which they cannot
thrive. Consequently, the Commission will consider the « legitimate claim »
to nationality prior to the consideration of other arguments on the merits.
92. With regard to the allegation of violation of Article 1 of the Charter, the
Commission notes that the obligation established by the provisions of the
said Article can be activated only when a substantive right of the Charter has
been violated. The related allegation will be considered after an analysis of
the merits concerning the other provisions, the violation of which is also
alleged.
On the allegation of violation of Article 5
On the law of recognition of legal status: nationality
93. Under the provisions of Article 5, « Every individual shall have the right to
the respect of the dignity inherent in a human being and to the recognition of
his legal status. All forms of exploitation and degradation of man,
particularly slavery, slave trade, torture, cruel, inhuman or degrading
punishment and treatment shall be prohibited ».
94. On the argument derived from the violation of the provisions of Article 5 of
the Charter, the Complainant asserts, on the one hand, that the lack of
precision of the law on nationality has led to the deprivation of the right to
nationality and in many instances to statelessness or the risk of statelessness,
thus preventing the recognition of the legal status of Ivorians. On the other
hand, he avers that the differentiated treatment targeting Dioulas in the area
of access to nationality based on foreign-sounding names including their
Muslim affiliation violates their dignity.
95. Concerning the first part of the submission and in the light of the provisions
of the Charter, as mentioned above, it appears that the Complainant focuses
his allegations on the « legitimate claim» of the Dioulas to Ivorian nationality
as a right guaranteed by Article 5 of the Charter. It follows that the right
25
referred to is presumed, and consequently there is the need to consider the
alleged violation to determine the validity of the claim. To achieve that, the
Commission is going to clarify the meaning of the right to the recognition of
legal status under the terms of Article 5 of the Charter, and to determine
whether the Dioulas or persons considered as such have a valid claim
particularly through the right to nationality and in case the answer is in the
affirmative, whether the right derived therefrom has been violated.
96. Concerning the meaning of the right to recognition of legal status protected
by Article 5 of the Charter, the Commission notes that legal status is the
ability of an individual to have rights and obligations, and for that matter he
has a role in the legal activity. A legal person is also called a « subject of law »
even though it is necessary to make a distinction between natural persons and
corporate entities.13 Generally, with regard to a natural person who is a
human person, the legal status is acquired at birth and it expires on his/her
demise. That said, the legal status appears as a simple fiction as it is only an
ability that is likely to be realized or not according to whether it may receive
recognition from third parties, natural persons or institutions. Thus, without
recognition, the legal status remains only an unproductive attribute which
cannot bear any of its potential fruits, especially a series of fundamental
rights and obligations. The specific right protected by Article 5 of the Charter
is consequently a respondent to an obligation falling on any State Party to the
Charter to recognize an individual’s capacity to enjoy rights and to exercise
his obligations.
97. In the current circumstance, as suggested copiously by the Complainant in
his submissions, it is crucial to solve the issue as to whether there is a « right
to nationality » according to the provisions of Article 5 of the Charter. On this
point, the Commission notes that the right guaranteed by Article 5 of the
Charter is one of « recognition of the legal status » as defined above. That
said, nationality is a basic component of this right in view of the fact that it is
the legal and socio-political manifestation such as the status of a refugee or a
resident granted by a State to an individual for the enjoyment of rights and
the exercise of obligations. The Commission confirms this position by
reaffirming in its Resolution 234 on the right to a nationality that « the right to a
nationality of any human person is a fundamental right derived from the
terms of Article 5 of the Charter and essential for the enjoyment of other
fundamental rights and freedoms guaranteed by the Charter ». It appears
from these considerations that the Ivorian nationality is the component, at
least the primordial mode of realization of the right to the recognition of legal
status that the Dioulas of Côte d’Ivoire are invoking. It is necessary then to
13 Dalloz Glossary of Legal Terms (2001) 413.
26
deduce that nationality is a right that the Dioulas are laying claim to under
the terms of the presumed obligation of the State of Côte d’Ivoire to recognize
their legal status. Once this clarification is done, then one may have to
understand Ivorian nationality; that is finding the definition for the notion of
« Ivoirian », before determining whether the Dioulas have a valid claim to it.
But, first of all, there is the need to clarify the concept of nationality.
98. The Commission believes that nationality stands for both a de facto and de
jure notion. It must consequently be understood from the standpoint of both
the socio-political meaning and its political significance. Under its legal
aspect, nationality means a « legal affiliation of a person to the population
constituting a State »14 or yet still « the quality of a person who belongs to a
State due to political and legal links … ».15 This meaning of nationality is
derived from the letter of provisions of Article 5 of the Charter relating to
legal status and therefore to nationality. On the other hand, the sociological
and political meaning of nationality extends beyond the legal dimension. It
goes beyond the « link an individual has with a nation; that is a community of
persons united by traditions, aspirations, sentiments or common interests ».16
From this perspective, nationality may be considered appropriately as the
determination of existence as a nation of a human group whose members are
united by ethnic, social and cultural traits ; this human group as long as it
claims the right to exist as a nation or aspires to form a nation.17
99. While taking note of these conceptions on nationality, the Commission is of
the opinion that nationality as an ethnic, social and cultural unit poses a
fundamental problem in the African context since the demarcation of borders
inherited from independence has caused a split of entities of nationalities that
existed before colonization. This territorial carving which formed
independent African States from the 1950’s therefore saw a regrouping, in a
sudden and brutal manner, of erstwhile homogeneous ethnic and sociocultural entities to constitute groups of States totally heterogeneous.18 It can
therefore be deduced that the new leaders of the independent African States
then had to resolve a difficult socio-political and historical equation to form
« imaginary- communities – or nationalities» from ethnic and cultural groups
that existed already as communities. In short, it was up to the new sovereign
African States to create national entities out of several entities dismantled by
colonization and to redraw the borders.
14 H Batiffol et P Lagarde op. cit., N°59, 60
15 Y Loussouarn et al Private International Law(2007) 790.
16 J Derruppé Private International Law (1988) 10.
17 See Derruppé op. cit.
18 See B Manby Nationality in Africa (2011) 17-25.
27
100. In the light of this prior clarification, the Commission believes that in
many African States, any legal creation of nationality must essentially take its
main source from a sociological and political understanding but also from the
historical source of nationality. Considering the foundations recalled above,
an alternative approach would constitute not only a denial of history but also
an open door for dismantling new national entities, which people who were
constrained by a wrongful demarcation of boundaries, have striven to build
in several decades or even centuries. These would be a guarantee against
inter-ethnic conflicts that have confronted a great majority of new African
States. In this regard, the Commission believes that a more appropriate
understanding of post-independence nationality in Africa is the one
suggested by the International Court of Justice in the Nottebohm Case in the
following terms :
[Nationality is] a legal bond having at its basis a social fact of attachment, a
genuine connection of existence, interests and sentiments, together with the
existence of reciprocal rights and duties. It can be said that it is the legal
expression of the fact that an individual on whom it is conferred, either directly
or by law, or by an act of the authority, is in actual fact more closely attached to
the population of the State which confers it on him/her than any other State.19
101. From the foregoing, the Commission is of the opinion that a determination
of the Ivorian nationality must necessarily proceed from the consideration of
the historical, legal and political elements which none of the Parties has called
into question. From the related submissions, it appears that the historical
foundations of Ivorian nationality are to be sought from the settlement of the
people from the 13th century, from what later came to be referred to as the
Côte d’Ivoire territory. In the 13th century, the Mandés came from territories
in the north, currently occupied by Guinea, Mali, Burkina Faso, Liberia and
Sierra Leone to settle in the North-West of Côte d’Ivoire. To date, the ethnocultural space of the Mandés geographically covers Côte d’Ivoire and each of
the neighboring countries mentioned above. A second major wave of
migratory movement was constituted by the Akans who came from the
territory currently called Ghana in the 17th century to occupy the eastern and
central regions of Côte d’Ivoire. The Akans are divided to date between Côte
d’Ivoire, Ghana and Togo. As for the Krou and Voltaïque who occupy the
West and the North-East of Côte d’Ivoire, today they can be found in the East
of Liberia and in the South of Mali and Burkina Faso and in the North of
Ghana and Togo.20
19 Nottebohm Case (Liechtenstein v. Guatemala) second phase) Order of 6 April 1955 ICJ Reports 23.
20 See I Doumbia ‘Rapport d’expert sur la question de la nationalité en Côte d’Ivoire’ (2010) ; O Merabet
‘Etude sur le profile migratoire de la Côte d’Ivoire’ (2006) http://www.eeas.europa.eu/delegations/
cote_ivoire/documents/more_info/7_doc_fr.pdf (consulted on 14 October 2014) ; Diakadi République de
28
102. The Commission notes that these initial waves of migration continued at a
much slower pace before intensifying during the colonial period particularly
from 1919 through recruitment of workers from Upper Volta (current Burkina
Faso) for the development of export crop cultivation in the South of Côte
d’Ivoire. The colonial power had then changed the borders of the territories
between Côte d’Ivoire and Burkina Faso, to constitute a unified territory of
« Upper Côte d’Ivoire » in order to facilitate the movement of agricultural
workers from Upper Volta (called Burkina Faso today) in the North to the
South. The said territory was further divided into two in 1947 but the
migration continued. From 1960, the first President of independent Côte
d’Ivoire, Mr. Félix Houphouët-Boigny encouraged and facilitated these
movements.21 The consequence was that, in the middle of the 1980’s, Côte
d’Ivoire was already the melting pot of ethno-cultural groups originally
coming from seven different prospective African States in the West
mentioned above. It is a well known fact that Côte d’Ivoire was therefore
positioned as a country of immigration par excellence in West Africa.22
103. More importantly, the Commission notes that among the population
which migrated to Côte d’Ivoire between the 13th century and the period of
independence, the term « Dioula » refers mainly to the Mandé from the North
and the Upper Voltans who in 1998 constituted 34 percent of the population.
That said, the people who were originally from several countries in West
Africa, particularly the immigrants from Mali, Guinea and Burkina Faso, who
migrated just before or after the independence were also identified as
« Dioula ».
104. To conclude on the historical basis of the claim by the Dioulas to Ivorian
nationality, the Commission notes that the settlement of Dioulas on the
current Ivorian territory from the initial migrations of the 13th century up till
the independence period continued without any interruptions. In the absence
of migratory flows the other way round, these Dioulas became an integral
and a definitive part of the formation of the Ivorian ethno-cultural landscape
as confirmed by competent official departments of the Ivorian State.23 In other
Côte d’Ivoire ‘Histoire’ http://www.diakadi.com/afriquedelouest/pays/cote_d_ivoire/infos/hist.htm
(consulté 14 octobre 2014) ;
21 See Manby op. cit. 115-119 ; Doumbia op. cit. 2-5.
22 See Internationational Organization for Migration Migration in Côte d’Ivoire : Profil national 2009 (2009)
http://www.iomdakar.org/profiles/fr/content/profil-migratoire-cote-divoire (consulté, 14 octobre
2014)
;
ECOWAS
‘Migrants
in
periods
of
crisis
in
the
ECOWAS
region’
http://www.processusderabat.net/web/uploads/Paris-meeting-2014/FR/Migrants-en-periode-decrise-dans-l-espace-CEDEAO_S.Nfaly_FR.pdf (consulted, 14 October 2014) ; S Bredeloup ‘La Côte
d’Ivoire ou l’étrange destin de l’étranger’ 19 (2003) Revue Européenne des Migrations Internationales 16-17.
23 See particularly National Statistical Institute of Côte d’Ivoire, General Population Census, 1998.
29
words, based on the above-mentioned considerations, the Dioulas, over the
decades and even centuries, formed the nucleus of a historical Ivorian
nationality by building together with the other ethnic groups from other
territories such as the Akans and the Krous, a social fact of attachment, a
community of interests, sentiments, in short, a « living together». The
Commission therefore concludes that the process of the historical formation
of the current State of Côte d’Ivoire gives the « Dioulas » of these migratory
periods, the indisputable basis of a valid claim to Ivorian nationality. The
subsequent issue is whether this historically established claim crystallized
into a legal guarantee at the time of the initial creation of nationality in Côte
d’Ivoire, to be precise, at independence in 1960.
105. On this point, the Commission believes that whereas the wave of
migrations continued in the post-independence era at least until the demise of
President Houphouët-Boigny in 1993, for purposes of determining the legal
constitution of Ivorian nationality, it is appropriate to position oneself in the
period of independence in 1960. This milestone is justified by the fact that the
enjoyment of the right to Ivorian nationality could only be granted by the
State of Côte d’Ivoire which legally existed from 7 August 1960, date on
which it gained international sovereignty. In other words, the legal existence
of Ivorian nationality which can be termed as original could not have started
before the birth of the sovereign State entity called by the name Côte d’Ivoire
today.
106. The Commission notes that the normative instrument establishing the
legal existence of the initial or original Ivorian nationality is Law No. 61-415
of 14 December 1961 relating to the Ivorian Nationality Code.24
Consequently, it is this instrument that one must invoke when there is the
need to establish who is legally Ivorian or not and consequently whether the
legislation on nationality complies with the provisions of Article 5 of the
Charter, particularly in respect of Dioulas and other alleged victims in this
Communication.
107. Under the terms of the relevant provisions of this Ivorian nationality
Code :
Article 6 New « An Ivorian is a:
1- Legitimate or legitimated child, born in Côte d’Ivoire, except where his two
parents are foreign citizens ;
24 Amended by Law No. 72-852 of 21 December 1972.
30
2- Child who is born out of wedlock in Côte d’Ivoire, except where his
parentage is legally established in respect of his two foreign parents, or one
parent, also a foreigner ».
Article 7 New « An Ivorian is a:
1- Legitimate or legitimated child, born abroad to an Ivorian parent ;
2- Child born out of wedlock abroad whose parentage is legally established in
respect of an Ivorian parent ».
108. As mentioned above, the Commission is of the view that the issue of
nationality in Africa is closely linked to colonial history.25 Generally, in view
of this historical context, the creation of legal nationality in Africa at
independence must necessarily answer at least three basic questions : 1) who
is a « national » ; 2) who is a « foreigner » ; and 3) the parameters for the
determination of nationality without any ambiguity based on the historical
context described above, namely, by taking into account in particular, at the
very least, the register of individuals or homogeneous ethnic groups residing
in the said territory at independence but also the reference date for the
determination of this presence.
109. The jurisprudence of the Commission and international law confirm the
requirements formulated. With regard to its jurisprudence, the Commission is
of the view that unreasonable legal provisions for the acquisition of
nationality are arbitrary and therefore not consistent with the right to
nationality guaranteed by Article 5 of the Charter. In this regard, the
Commission refers particularly to its decision in Legal Resources Foundation
v. Zambia, where it concluded that « To suggest that a Zambian of origin is
the person born and whose parents are born in the geographical area which
later came to be known as the territory of the sovereign State of Zambia can
be arbitrary and its retrospective application cannot be justifiable under the
terms of the Charter ».26 Furthermore, in Modise v. Botswana, the
Commission decided that failure or refusal of a Respondent State to grant
nationality on grounds that the Complainant had obtained another
nationality or had accepted it without showing any proof is a violation of the
right to recognition of legal status.27
110. The Commission notes that in the examples cited above, the legal
definition of nationality is first of all characterized by a specification of the
See also the African Union Commission Delimitation and demarcation of borders in Africa : General
considerations and case studies (2013) 55-56.
26 Legal Resources Foundation v. Zambia Communication 211/98 (2001) AHRLR 84 (ACHPR 2001) para
71.
27 See Modise v. Botswana Communication 97/93 (2000) AHRLR 30 (ACHPR 2000) para 88.
25
31
provisions relating to the determination of the status of a « national » and by
extension, of a clear distinction between nationals and foreigners. Then, the
national legislations concerned also take the historical legacies of the colonial
territorial administration as reference point; namely, the sole European
nationality prevailing before any existence of African nationalities. Finally,
the time limit adopted is common and cross-cutting: the point of departure is
the date of gaining international sovereignty. This date also coincides with
the date of the legal establishment of most of the post-independence African
nationalities. In the African context, these fundamental constituent elements
of the original or initial legal establishment of nationality are unavoidable
notwithstanding the option each State was able to make towards the
acquisition of nationality by the jus sanguinis and jus soli principles
exclusively and concomitantly. Consequently, the silence or the failure to
clearly take into account the fundamental principles of nationality is likely to
impede the enjoyment of the right of recognition of legal status. This applies
particularly to thousands of persons whose presence and residence came long
before the establishment of legal nationality.
111. This conclusion is based both on jurisprudence and also on international
law. From the standpoint of jurisprudence, the Commission further notes that
apart from its conclusions in Legal Resources Foundation and Modise, it also
considered in Amnesty International and Others v. Sudan that a decree
whose terms authorize the restriction of freedoms for vague reasons or are
based on mere suspicions violates the spirit of the Charter.28 Such a
conclusion derives from the logic, to the extent that when the law is vague
and lacks precision, it opens the door for arbitrariness, abuse and its
interpretation is dependent on the goodwill of the authority vested with
power.
112. The recognition of the pernicious and intrinsically flawed nature of
unclear standards has become generally well known both in the practice of
national courts and before regional human rights protection organizations.29
In this regard, the Commission adopts the doctrine of « invalidity on grounds
of vagueness » which quite rightly requires to be purely and simply declared
null and void and without any effect; that is any standard which in essence
already consists of seeds of improper application or simply a deprivation of a
28 See Amnesty International and Others v. Sudan Communications 48/90, 50/91, 52/91 et 89/93 (2000)
AHRLR 297 (ACHPR 1999) para 59.
29 See South African Liquor Traders Association and Others v. Chairperson Gauteng Liquor Board and
Others, Constitutional Court of South Africa (2006) para 27 ; Prosecutor c. Robert Sekabira and 10
Others, High Court of Uganda, Decision 0085-2010 paras 12-13 ; Newspaper “La Nación” v. Costa Rica,
Inter-American Human Rights Commission, Case No. 12.376 para 162 (2001) ; Gillan and Quinton v. the
United Kingdom, European Human Rights Court, Decision of 12 January 2010, para 85.
32
subjective right.30 The Commission is of the view that following the
application of this doctrine, the disputed law itself becomes a source of
violation of rights. Thus, as illustrated clearly by the Modise case, the lack of
precision of a law on nationality may promote the imputation of an
alternative nationality, which could be addressed within the context of
violating not only the provisions of Article 5 of the Charter but also of the
relevant international law.
113. It is at this turning point of practical application of the right to recognition
of the legal personality that a bridge needs to be built between the provisions
of the Charter and the provisions of the thematic international Conventions
relating to nationality.31 Based on the provisions of Articles 60 and 61 of the
Charter, the Commission notes that a judicious consideration of the case in
point requires recourse to specialised international standards in view of the
general nature of the recognition of the legal status laid down in Article 5 of
the Charter. In the interpretation of these provisions of the Charter, the
standards with much relevance and precision in this matter are indisputably
the 1954 United Nations Conventions on the Status of Stateless Persons and
the 1961 Convention on the Reduction of Cases of Statelessness.32 This
relevance is justified by the fact that one of the most dramatic consequences
of the vagueness of legislation on nationality is statelessness which is defined
as the situation of a person to whom no State has granted the right of
recognition of nationality for the enjoyment of a legal status.
114. Under the terms of the provisions of Article 1 of the 1954 Convention on
the Status of Stateless Persons, being stateless is defined as « a person that no
State considers as a citizen in the implementation of its legislation ». With
regard to the Convention on the reduction of stateless persons, it enacts in
Article 8(1) that « The Contracting States shall not deprive any individual of
their nationality where this deprivation will make the subject stateless ». In a
more precise and complementary approach, the African Charter on the Rights
and Welfare of the Child compels States Parties, in Article 6(4), to « ensure
that their legislations recognize the principle according to which a child
enjoys the right to acquire the nationality of the State on whose territory
he/she was born at the time of his/her birth, he/she cannot claim the
nationality of any State in accordance with its laws ».
30 See in general Rekvényi v. Hungary, CEDH, Decision of 20 May 1999; South African Liquor Traders
Association and Others, op. cit.
31 See Articles 60 and 61 of the Charter.
32
United Nations Convention on the Status of Stateless Persons, 28 September 1954
http://www.unhcr.org/3bbb25729.html ; United Nations Convention on the Reduction of Cases of
Statelessness, 30 August 1961 http://www.unhcr.org/3bbb286d8.html.
33
115. From the cross examination of these different prescriptions, a key
obligation emerges : the obligation of the State on whose territory a person
claims to have been born to grant him nationality, unless the said State
cannot prove that the person in question has already acquired or is eligible to
another nationality.33 The totality of all the historical and legal prerequisites
established above is of key relevance to the interpretation and
implementation of the right guaranteed by Article 5 of the Charter. That is the
case because one of the ultimate purposes of the historical approach to the
determination of nationality in Africa is to resolve, once and for all, the
dramatic equation of imposing arbitrary borders on new sovereign African
States at independence.
116. In this case, the Commission notes that in its letter, the Ivorian nationality
Code does not take its source from ethnic and cultural diversity and from the
historical dynamics of the creation of the population that constituted the new
State of Côte d’Ivoire at independence. In fact, though one cannot begrudge
the said legislation for opting for nationality by blood, the Ivorian parent
from whom one inherits the original nationality should have been clearly
defined, particularly during the time when one belonged to a list of groups of
people that inhabited the colonial territory which became « Côte d’Ivoire » at
independence. It has nothing to do with the Ivorian Code. However, more
surprisingly, whereas the status of « national » is undefined, the law tends to
define nationals by contrasting it with foreigners. In short, the rule to
determine one or the other of these two statuses consists of considering that
an Ivorian is someone who is not a foreigner and vice versa. Consequently,
the status of the foreigner is also not defined.
117. From the point of view of the date constituting the reference deadline, the
Code also does not mention independence. It is true that under the terms of
the provisions of Article 8 (1) of the said Code, one is deemed to have been an
Ivorian at birth even if the conditions to acquire nationality are subsequent to
birth. However, the provisions of Article 8 (1) go back to the quality of the
Ivorian as defined by the provisions of the Code of which the Commission
has already concluded about its lack of precision and non conformity with the
prescribed criteria under the relevant international law.
118. Furthermore, and with reference to the relevant law on the territory
corresponding to the pre-independence Côte d’Ivoire, the only nationality
given was the French nationality, in any case at least from the creation of the
colony of Côte d’Ivoire, on 10 March 1893. The Parties do not dispute the fact
United Nations Convention on the Status of Stateless Persons, 28 September 1954
http://www.unhcr.org/3bbb25729.html ; United Nations Convention on the Reduction of Cases of
Statelessness, 30 August 1961 http://www.unhcr.org/3bbb286d8.html.
33
34
that at independence on 7 August 1960, there was nothing like Ivorian
nationality and that all were French subjects. The Commission considers that
the consequence should be that no resident born before independence can lay
claim to Ivorian nationality. If that is the case, then by extension and by
implementing the provisions of Articles 6 and 7 of the nationality Code, the
Ivorian child referred to would not have inherited a nationality by blood
relations as a result of lack of existence of the « Ivorian origin». To proceed by
such reasoning, the non existence of Ivorian nationality of origin through the
fault of the law instituting it would have logically been transmitted from
generations to generations for all the inhabitants of Côte d’Ivoire. The
Commission is of the opinion that it would simply be a legal absurdity. Such
a legal haziness violates the provisions of Article 5 of the African Charter as it
renders it impossible to determine precisely the criteria for the acquisition of
the legal status of a « national » or a « foreigner ».
119.
At this stage, it should be noted that in order to conclude that the right of
the Dioulas to nationality has been violated, we should assess the extent to
which the application of the law has caused them harm. In this regard, the
Commission notes that the vagueness of the law has conferred all
discretionary powers to grant nationality on the relevant authorities. The
reported facts which were sufficiently proven and well documented by the
complainant are not challenged by the Respondent State. In practice, the
« Dioulas » are refused nationality through an extremely discretionary
application of the law, at least where its vagueness is concerned. This
manifested in the refusal by the relevant authorities to issue persons from the
« Dioula » ethnic group or persons considered as such with documents
attesting to recognition of Ivorian legal status by the Ivorian State. Thus,
whereas persons of the other ethnic groups who are perceived as Ivorians « of
origin » obtained it systematically and without hindrances, documents like
birth certificates and the national identity cards were not issued to Dioulas.
120. In certain cases, documents previously obtained were challenged or seized
for good. Analyses and statements attached to the docket by the Complainant
prove indisputably that this obstruction to the access to nationality
documents was, and continues to be, based on a wrongful interpretation of
the provisions of the nationality code, particularly the vagueness of the said
provisions. The result of this is that several thousands of persons born in Côte
d’Ivoire to persons who were themselves born in Côte d’Ivoire, and who have
always lived there, find themselves in a situation of statelessness. Such a
situation immediately leads to a violation of their right to the recognition of
their legal status guaranteed by Article 5 of the Charter.
35
121. The Commission notes that through its grounds on the merits, the
Respondent State holds that the issue of statelessness has been or is being
resolved. To this effect, the Respondent State reports that a set of laws
necessary to arrive at valid conclusions have been adopted and to consider
their relevance and the extent to which they settle the issues raised by the
Complainant. First, the Respondent State invokes the United Nations
Conventions on Statelessness which was ratified on 13 September, 2013. As it
has concluded above, the Commission considers that the Ivorian nationality
code is not in keeping with the Conventions ratified by the Respondent State.
Better still, the said Conventions take precedence over Ivorian law and, with
Côte d’Ivoire being a monistic State, are immediately applied internally. The
same can be said that under the provisions of Article 3 of the Nationality
Code, « The provisions on nationality contained in the international treaties
and agreements duly ratified and gazetted shall apply even if they are
contrary to the provisions of the domestic Ivorian law ». The clarity of these
provisions requires no interpretation. Applicants for Ivorian nationality have
a legal claim, subject to reasonable acquisition requirements, when they do
not hold the nationality of any other State, and when the refusal to grant them
Ivorian nationality status would make them stateless. Furthermore, and as
this study looks beyond this situation, a distinction must be made between
the Dioulas and the others as well as the nationality categories and the related
advantages.
122. Secondly, for a judicious evaluation of the actions taken by the
Government of the Respondent State, it is indispensable to examine the
standards for the application of the Conventions on statelessness duly ratified
by Côte d’Ivoire in 2013. The Parties agree in effect on the consideration of all
the measures taken up to the date of submission of their respective
conclusions on the merits, without prejudice to the consideration of the
applications for reliefs for violations committed. As the Commission has
already observed, the relevant provisions of the Conventions on statelessness
and the related Directives are reference standards par excellence for the
implementation of the right to the recognition of the legal status guaranteed
by Article 5 of the Charter. To consider the grounds of the Respondent State,
which tends to lead to the conclusion that its reforms have resolved the issues
raised by this Communication, one must, therefore, compare the said reforms
with the previous observations of the Commission and the international
standards mentioned supra.
123. As an introductory overview to the evaluation of the reforms invoked by
the Respondent State, the Commission notes that between the date of its
submission and the consideration of the merits, the Government of Côte
d’Ivoire enacted two laws in 2004 to amend the provisions of the Nationality
36
Code of 1961. By way of major amendments, the said laws respectively
introduced the acquisition of nationality for foreigners who marry Ivorians
and the introduction of a special temporary nationalization procedure for
persons who could not apply for nationality between 1961, the year the Code
was adopted, and 1972, when the provisions authorizing the acquisition
through a simple declaration were repealed. The ineffectiveness of these
reforms, unanimously recognized by the Parties, led to the implementation of
the programme for the identification of Ivorians and foreigners living in Côte
d’Ivoire under the aegis of the Ouagadougou Peace Accords concluded in
2007 between the Government of the time and the armed rebellion, following
the 2002 failed coup d’état. The Parties also agree that the mobile court
hearings following the said accords and the distribution of supplementary
judgments have not resolved the issues of nationality and statelessness,
particularly concerning the Dioulas. The subsequent reforms are those which
were undertaken in 2013 by the administration of President Alassane
Ouattara and which the Commission will concentrate on in order to consider
compliance with the standards mentioned above.
124. It is relevant to concentrate on the 2013 reforms because they are the most
recent, on the one hand, and because they, according to the allegations of the
Respondent State, resolve the issues which previous reforms have not been
able to resolve, on the other hand. Before considering this claim, the
Commission reiterates that in this case in point, a distinction must be made
between at least two sets of victims: the Dioulas and others. As a reminder,
the Dioulas are one of the ethnic groups which formed the original
population of Côte d’Ivoire through successive waves of immigration and
uninterrupted residence from the 13th Century up to the date of the legal birth
of Côte d’Ivoire. As the Commission has concluded above, the historical and
legal claim of the Dioulas is consubstantial with the birth of Côte d’Ivoire and
the first and original Ivorian nationality. Besides, and consequently, any
applicant for Ivorian nationality who has blood relations with these Dioulas
of the first generation migrants logically inherits a similar claim.
125. However, the Commission considers that there is another category of
Dioulas. These are Dioulas who have emigrated to Côte d’Ivoire for the first
time after independence and who, on account of this fact, cannot claim legal
Ivorian nationality established before their first contact with the independent
State of Côte d’Ivoire. These second generation migrants are particularly
made up of persons with about the same ethnic origins and culture as the first
Dioulas and whose arrival in Côte d’Ivoire was particularly spurred on by the
‘pro-immigration’ policies of President Houphouët-Boigny. Generally, they
emigrated between 1960 and 1993, the year marking not only the demise of
the first president of Côte d’Ivoire, but also the end of ‘amended’ enforcement
37
of the Code of 1961, that is to say that it is fairer and more consistent with
international law. They could also be persons residing in the country before
independence, but who have never claimed Ivorian nationality or who had
come from other colonial territories. In principle, second generation Dioulas
belong to the same category of claim as foreigners who have emigrated to
Côte d’Ivoire from the independence era. However, there are major
differences between second generation Dioulas and foreigners: time spent
within the territory must be taken into account entirely; privileges attached to
nationality obtained in practice which must remain established, and any new
law must maintain these privileges and take retroactive effect for their
beneficiaries.
126. The Commission considers that this distinction between the various
categories of claimants to nationality in Côte d’Ivoire is indispensable when
we consider issues from the perspective of the modes of obtaining nationality
as well as the advantages and related limitations. The Commission notes that
with regard to nationality in general, and within the Ivorian context in
particular, nationality is acquired through various modes with diverse
implications. A careful consideration of the relevant provisions of the Ivorian
nationality Code shows that a whole chapter is dedicated to nationality
by« attribution … as nationality by origin ». This is the chapter which
includes Articles 6 and 7 at the centre of the controversy surrounding
nationality in Côte d’Ivoire. Besides, the Code provides that one can
« acquire » Ivorian nationality. The acquisition may be done automatically
particularly for adopted children and foreign spouses; by declaration for
persons born in Côte d’Ivoire to foreign parents until the repeal of the said
provisions in 1972; and, finally, by a decision of the public authority, a mode
provided for in this instance for naturalization or reintegration of the
foreigner.34
127. The Commission notes that the Code does not provide for any incapacity
or limitation with regard to the enjoyment of Ivorian nationality through
granting by way of nationality by origin. Better still, Article 8 of the said law
provides that « the Ivorian of origin » is deemed to have been an Ivorian right
from birth, even if these requirements to qualify for the said status are
subsequent to the said birth. On the other hand, a series of situations of
incapacity is attached to nationality by acquisition, including, among others
and quite significantly, a time frame of ten years to be eligible for an elective
mandate, five years to qualify as a voter, and five years to qualify for the bar,
the bench or to become an officer of the court. To determine the extent to
which the recent reforms resolve the issue of nationality in Côte d’Ivoire, we
34 Emphasis of the Commission.
38
must, therefore, compare the legal status of the victims identified above to the
rights and mechanisms provided for by the said reforms.
128. Starting from the first generation Dioulas, the Commission has already
concluded that their right to Ivorian nationality is consubstantial with the
historic and legal establishment of the said nationality. Consequently, only
the mode of granting Ivorian nationality by way of nationality of origin
applies to them. In this regard, one could say that Law No 2013-653 of 13
September, 2013 on the special provisions on acquisition of nationality by declaration
is a significant advancement in the sense that it extends its application to
persons residing regularly and without hindrance in Côte d’Ivoire before 7
August, 1960 and their children born in Côte d’Ivoire. Indeed, these
provisions under Article 2 of the said law use the date of independence and
residence prior to this date as points of reference. At first glance, such
provisions appear to resolve the issue of the nationality of the Dioulas.
However, many key factors show that this reform does not substantially
resolve the issue.
129. First, under the provisions of Article 10 of the Implementing Order of the
said law, the reform of the acquisition of nationality by simple declaration is
applicable for a period of 24 months, as from the date of its publication, i.e. 22
January, 2014. According to statistics produced by the United Nations High
Commission for Refugees (UNHCR), and which statistics are not challenged
by the Parties, at least 700,000 persons were stateless in Côte d’Ivoire, as at the
date of this decision. The Commission notes that at the end of the initial
registration period which ended on 31 July, 2014, only 80, 000 persons had
submitted applications for the acquisition of Ivorian nationality. The second
and last registration period will run from March to June, 2015, i.e. for a period
of four months. Using the fact that only 80,000 potential applicants registered
in 20 months as the point of reference, the probability of the over 600,000
remaining persons doing so in four months is very low.
130. On this same point, the Commission refers to the outcome of the previous
reforms to note that experience does not seem to have informed the 2013
reforms. Among others, it is indeed clear that the restriction of closed
deadlines has led to such alarming figures of stateless people. Thus, the
nationality Code had granted only one year for the acquisition of nationality
by declaration. Hundreds of thousands of persons who were however
residing in the country before independence were thus unable to obtain their
nationality documents. Similarly, the 2004 reform which reintroduced
acquisition by declaration and which provided for a period of twelve months
for the said acquisition was hardly more successful. On the time necessary for
the effective implementation of the reform, therefore, the Government of the
39
Respondent State does not seem to assess the statistics relating to application
for the acquisition of nationality.
131. Furthermore, it is then necessary that at least one of the modes of
acquisition of nationality provided for by the 2013 reforms should be
applicable to the Dioulas. This is hardly the case because the Law quoted
above only really provides for simple declaration in the case of naturalization.
Indeed, the list of beneficiaries of the reform only makes reference to
foreigners. It is true that a provision covers the status of the Dioulas in the
sense that it takes regular residence before independence into account.
Having said that, the provision requires « uninterrupted » residence which
could be difficult, and indeed impossible to prove, particularly for children
born to residents several generations after independence. What is worse is
that in its very heading, the Law only deals with « acquisition » and makes no
mention of « attribution by way of nationality by origin. »
132. Following the preceding points, the Commission notes that naturalization
procedure only holds for persons whose connection is not prior to or
consubstantial with the legal establishment of Ivorian nationality, i.e.
particularly foreigners residing there before independence, but who have not
considered the acquisition of Ivorian nationality, or those who emigrated
after independence. The Commission has already concluded that first
generation Dioulas cannot be foreigners; neither can their blood descendants,
because they have been an integral part of the original and legal Côte
d’Ivoire. Whatever the case, the modes of acquisition of nationality provided
for by Law No 2013-653 of 13 September, 2013 and its Implementing Order No
2013-848 of 19 December, 2013 are applicable to this category of victims. In
reality, what these reforms have in common with the nationality Code is that
they neither define the notion of an « Ivorian » nor that of a « foreigner », let
alone identify clearly and holistically the groups of settlements present in
Côte d’Ivoire at the time of the legal establishment of Ivorian nationality. In
this case, the considered reforms can only be of benefit to the Dioulas after the
original status of the latter has been restored. Whatever the case, the most
appropriate procedure would be to grant the Dioulas Ivorian nationality by
way of nationality by origin and by simple declaration.
133. With regard to second generation Dioulas and foreigners, the Commission
has already noted that they are governed by a similar status, the difference
being that the time spent in Côte d’Ivoire must count and that all rights
acquired should be maintained retroactively, among others. An appropriate
study of this second category of victims requires an introductory reminder of
the legal standards which have governed them since the adoption of the
nationality Code. In 1961, the said Code provided that minors born in Côte
40
d’Ivoire to foreign parents acquired nationality through a simple declaration.
In 1972, the said provisions were repealed. They were only reintroduced in
2013 through the Law to which reference has been made above. However, the
relevance and effectiveness of their reintroduction are being challenged by
the Complainant. Consequently, it is proper to subject them to evaluation. As
it has indicated above, the Commission notes that the right to nationality as a
recognition and manifestation of legal status must be established on the basis
of the obligation of a State to recognize as its nationals all persons who have
not acquired or cannot acquire another nationality and who, if the nationality
is not granted, would be stateless. The Parties agree that at the very least,
victims of the second category find themselves in this situation.
134. However, fundamental clarifications should be made because the
conclusions on points of law will depend on the nature and scope of remedies
and reparations to be prescribed. In this regard, the Commission notes that
the timeframes for the implementation of successive reforms, including those
of 2013, have shown their limits. By way of illustration, and as has been
recalled above, it is the nullity of the extremely short and unrealistic
timeframe of one year which has made it impossible to declare nationality
and paved the way for the numerous abuses suffered by victims. Successive
Governments of the Respondent State have recognized the problem of
nationality as the main factor behind the socio-political crisis and armed
conflict which Côte d’Ivoire has experienced from 2002 in particular.
135. Furthermore, although it is true that the lack of use of the simple
declaration procedure granted under the 1961 Code is imputable to victims,
the ineffectiveness of the set timeframes can be blamed on the successive
administrations of the Respondent State. Better still, the behavior and practice
of the Governments of the Respondent State, particularly from 1961 to 1993,
are unambiguous with regard to the recognition of certain privileges relating
to nationality for second generation Dioulas and foreigners. Thus, the
authorities have, through various successive laws since independence,
recognized for these persons the right to acquire nationality automatically
through the simple declaration procedure instead of acquisition by
naturalization. In such a context, and particularly as a result of the « proimmigration » policy implemented by Côte d’Ivoire for over three decades
after independence, the practice of the Respondent State has been to entertain
the legitimate sentiment of a right of persons concerned to Ivorian nationality.
136. Thus, many of these persons have even obtained identification documents
like the Ivorian birth certificate, certificate of nationality, the national identity
card or the passport. On the other hand, a vast majority of them have never
obtained them simply because, since they have never had any links with any
41
other State similar to those they had with Côte d’Ivoire, they have never felt
like citizens of another country other than the former. However, and more
significantly, the authorities of the Respondent State have conceived the
feeling of belonging to Côte d’Ivoire through a vague and inaccurate Code.
Besides, they have entertained this sentiment for decades and have granted
persons concerned both documents attesting to that effect and rights they
have enjoyed over several generations before the outbreak of political
troubles which gave birth to the concept of « ivoirité » in the mid-90s.
Incidentally, the Commission considers that the fact that the Respondent
State has conceived and entertained this sentiment of « living together » to
include the victims, the sentiment and attachment these people have
experienced and the privileges they have enjoyed therefrom crystallized into
a deep sentiment of having become Ivorians. The Commission considers that
this sentiment and its attendant privileges are established rights.
137. All the legal consequences must be associated with these established
rights. Since the reforms of 2013 were less advantageous than those which led
to the benefit of the established rights for the second category of victims, they
cannot be applicable to them. Thus, the Law of 2013 is more restrictive and
demanding, in the sense that, it substitutes an extremely discretionary
naturalization procedure which has demonstrated its limits in the past for a
simplified and fairer acquisition procedure. In short, the Law is explicitly
based on good intentions, but its substance and procedures are inappropriate.
The facts reported by the Complainant clearly prove that this state of affairs
always prevents victims from acquiring nationality. The Commission
considers that the consequences of the established right should lead to the
retroactive application of the enjoyment of the rights, particularly taking both
the era and the time of residence into account. The new reforms do not meet
these demands. Consequently, they do not entirely resolve the issues raised
by this Communication and are not in keeping with the relevant provisions of
Article 5 of the Charter.
138. In short, on the right to nationality as a recognition of legal status, the
Commission observes that the Ivorian nationality Code establishes original
nationality for Ivorians and acquired nationality for foreigners, but fails to
clearly define who an outright Ivorian is, who an Ivorian by origin is and who
a foreigner is. This way, the Code and laws adopted by successive
Governments of the Respondent State have prevented access to nationality
both theoretically and practically. In practice, the Commission concludes that
first generation Dioulas have a historically and legally founded claim to
Ivorian nationality « by origin » or « by attribution ». With regard to second
generation Dioulas and foreigners defined above, they have the same claim
by established rights to nationality by naturalization through the most
42
advantageous procedures put in place by the Respondent State since the
establishment of legal nationality. In this regard, successive reforms
undertaken by the Respondent State are significant but inadequate.
Consequently, the laws and practices of the Respondent State violate the
provisions of Article 5 of the Charter with regard to all victims.
Right to the Respect of Dignity
139. Under the Preamble of the African Charter quoting the Charter of the
Organization of African Unity, dignity is one of the « essential objectives for
the achievement of the legitimate aspirations of the African peoples ». Dignity
is, therefore, the soul of the African human rights system and which it shares
with both the other systems and all civilized human societies. Dignity is
consubstantial, intrinsic and inherent to the human person. In other words,
when the individual loses his dignity, it is his human nature itself which is
called into question, to the extent that it is likely to interrogate the validity of
continuing to belong to human society. Thus, a rape victim can decide to go
as far as taking her life so that she does not have to confront her
dehumanization and the accusing and degrading look of society. When
dignity is lost, everything is lost. In short, when dignity is violated, it is not
worth the while to guarantee most of the other rights.
140. The Commission considers that some of the rights protected by the
Charter have a supreme and dependent relationship with the right to dignity.
The same can be said of the right to legal status protected by Article 5 of the
Charter. Various legal authorities agree that dignity and legal status are
fundamentally interdependent. Thus, in Kuric and one Other v. Slovenia, for
example, the European Human Rights Court establishes this connection as
follows: « … the right to legal status is a normal, natural and logical
consequence of the human personality and the dignity inherent to the former;
it is a natural and inherent component of every human being and his human
personality ».35 In Yean and Bosico v. The Dominican Republic, the InterAmerican Court decided that « The failure to recognize legal status is a
violation of human dignity because it absolutely denies the condition of an
individual to be a subject of law and makes him vulnerable to the
infringement of his rights by the State and other individuals ».36
141. By agreeing with these conceptions of the crucial importance of the
recognition of legal status to the enjoyment of the right to dignity, the
35 Kuric and Other v. Slovenia European Human Rights Court, Petition 26828/06, Order of 26 June 2012,
Partly concurring opinion of Judge Vucinic.
36 Yean and Bosico v. The Dominican Republic Inter-American Human Rights Court, Order of 8
September 2005, para. 178.
43
Commission considers that failure to grant nationality as a legal recognition is
an injurious infringement of human dignity. Such an infringement seriously
affects the legal security of the individual, particularly due to the
undermining of a set of consubstantial rights and privileges to the enjoyment
of fundamental legal and socio-economic privileges. Ultimately, it is the very
existence of the victim which is vitally compromised. The jargon of
clandestine immigration circles gives a good account of the disgrace
associated with the violation of the dignity of clandestine immigrants when
they are called « undocumented immigrants ». In the collective modern
conscience, to be an « undocumented immigrant » is perceived as the most
degrading form of legal, political and social identification. With regard to the
intentional denial or otherwise of nationality, dignity is doubly violated
because the person no longer fully fits into the fundamental characteristics
associated with the status of a subject of law. Indeed, since he is not
recognized as a national of any State, and is treated as such, the victim is also
treated by the community as a kind of second rate member. In the African
context, where social recognition and belonging to the community are vital,
denial or doubt of nationality can constitute the highest form of violation of
dignity.
142. In the case in point, suffice it to reiterate that both the law and practice of
the Respondent State have ensured the denial of the right of victims to
nationality. As a consequence of the foregoing, the violation of their right to
dignity is constituted by the mere fact that they have been prevented from
living in dignity in Côte d’Ivoire as members of the universal and Ivorian
human society. The Commission concludes that the laws and deeds of the
Respondent State violate the provisions of Article 5 of the Charter on the right
to the dignity of the human person.
Allegation of Violation of Articles 2 and 3
143. Under the provisions of Article 2 of the Charter, « Every individual shall
be entitled to the enjoyment of the rights and freedoms recognized and
guaranteed in the present Charter without distinction of any kind as race to,
ethnic group, colour, sex, language, religion, political or any other opinion,
national and social origin, fortune, birth or other status ».37 With regard to
Article 3 of the Charter, it is stipulated that « 1. Every individual shall be
equal before the law. 2. Every individual shall be entitled to equal protection
of the law. ».
37 Emphasis of the Commission.
44
144. To allege violation of the provisions of Article 2 of the Charter, the
Complainant argues that the Dioulas, meaning those of the first generation,
were subjected to discrimination by the Respondent State on the basis of
ethnicity and religion. Referring to General Observation No. 18 in its ruling
on Meldrum v. Zimbabwe, the Commission defined discrimination as « Any
act aimed at distinction, exclusion, restriction or preference based on one of
the reasons listed under Article 2 of the Charter, and which aims at or has the
effect of annulling or restricting recognition, enjoyment or exercise by all
persons and on an equal basis, of all rights and freedoms ».38 The
Commission considers that although the letter does not state so expressly, the
spirit of the provisions of Article 2 of the Charter and of the definition in
Meldrum suggest that there is no need to prove an intention to discriminate.
Indeed, this definition actually includes situations in which a law or a neutral
or an apparently non-discriminatory measure produces the effects of an
unjustified distinction.
145. Furthermore, the list under Article 2 of the Charter is neither absolute nor
comprehensive. It is merely indicative. It is a form of unjustified
discrimination which is of a prohibitory nature, and there is, therefore, the
possibility of conducting unjustified discrimination prohibition compliance
test when a standard or act is alleged to have gone beyond this prohibition. In
Good v. Botswana, the Commission established that the violation of the
principle of non-discrimination occurs when: a) persons in a similar situation
are treated differently; b) the difference in treatment has no objective and
reasonable justification, and c) when the objective is not proportionate to the
measures implemented ».39
146. In the case in point, the Commission has already concluded that the
victims have a right to Ivorian nationality, whether it is by origin, attribution
or acquired through simplified naturalization procedures. From this point of
view, they are put in a situation similar to that of other Ivorian citizens. With
regard to first generation Dioulas, the Commission notes, among other things,
that, access to Ivorian nationality is denied them on the basis of their
« Dioula » ethnic origin and their Muslim religious persuasion. As the
Commission has concluded above, the vagueness and inaccuracy of the
nationality Code and the inappropriate nature of the subsequent laws
ensured the adoption of policies and practices which discriminate against the
Dioulas. The Complainant has amply proved that persons of the Dioula
ethnic group or persons perceived as such have been refused the nationality
identity card or the certificate of nationality merely because of the « non38 Meldrum v. Zimbabwe Communication 294/04 (2009) AHRLR 268 (ACHPR 2009) Para. 91.
39 Kenneth Good v. Botswana Communication 313/05 (2010) AHRLR 43 (ACHPR 2010), Para. 219.
45
Ivorian » consonance of their names. They received the same treatment
because they were from the northern region of Côte d’Ivoire and that they
were Muslims. Even persons perceived to be Dioulas who had acquired
nationality documents at a certain point, had these documents seized for the
same reasons.
147. Through the reforms undertaken after the 2002 failed coup d’état, and
particularly in 2004, 2005, 2007, 2010 and 2013, successive Governments of the
Respondent State also recognized discrimination against Dioulas and
identified it as the main cause of the political crisis which shook Côte d’Ivoire
for more than a decade. No members of any other ethnic or religious group in
Côte d’Ivoire have been subjected to such discriminations, even though the
common characteristic among them is that they were born in Côte d’Ivoire or
that they were simply Ivorians in much the same way as the Dioulas.
148. It is noteworthy that the Complainant refers to the rejection of the
candidacy of Mr. Alassane Ouattara for the 2000 presidential election as being
the most symbolic manifestation of discrimination within the context of this
Communication. Requirements for candidates in this election were governed
by the provisions of Article 35 of the 2000 Constitution of Côte d’Ivoire.
Under these provisions, any candidate for the presidential election « … must
be an Ivorian by origin, born to an Ivorian father and an Ivorian mother who
are themselves Ivorians by origin ». The Commission notes that it has already
reached a conclusion in the Mouvement Ivoirien des Droits de l’Homme v.
Côte d’Ivoire case to the effect that these provisions violate the right to
equality before the law protected by Article 2 of the African Charter, in the
sense that they accord a different treatment to persons born in Côte d’Ivoire
on the sole basis of the presumed foreign origin of their parents.40 The
Commission then considered that the restriction of access to the highest
political positions of the State was in itself not a violation. However, it
concluded that when such a restriction is discriminatory, unreasonable and
unjustifiable, its objective is destroyed by this unreasonable nature.41
149. In the case in point, the Commission referred to the facts reported by the
Complainant and its aforementioned decision to note that the disqualification
of candidate Alassane Ouattara by the Supreme Court of Côte d’Ivoire was an
act of outright discrimination in violation of Article 2 of the Charter. With
regard to this Communication, the Commission notes that the terms of the
provisions of Article 35 of the Constitution of Côte d’Ivoire which have been
found to be inconsistent with Article 2 of the Charter are the most elaborated
40 See also Legal Resources Foundation v. Zambia, op. cit.
41 See Mouvement Ivoirien des Droits de l’Homme v. Côte d’Ivoire Communication 246/02 (2008) AHRLR
74 (ACHPR 2008) Paragraphs 84-86.
46
form of discrimination against the Dioulas with regard to the access to
Ivorian nationality. It is common knowledge that Mr. Alassane Ouattara
comes from the Dioula ethnic group of the northern region of Côte d’Ivoire
and is also of Muslim religious persuasion. Although he produced his own
birth certificate and national identity card as well as those of his parents, his
candidacy was rejected on the grounds of inadequate proof of his Ivorian
nationality. Under the same circumstances, candidate Robert Guéï only
produced his birth certificate and family tree which he drew himself. The
Supreme Court ruled that it was ample proof and, therefore, authorized
candidate Guéï to stand in the election.
150. The Commission considers that although it is highly important to note
that the Mouvement Ivoirien des Droits de l’Homme case was on the dispute
surrounding the candidacy of persons to the presidential election in Côte
d’Ivoire, this dispute was also eminently, if not fundamentally, dealing with
nationality and the enjoyment of the rights which go with them. Indeed, it is
clear that the Supreme Court could only arrive at this improper and
unreasonable application of the definition, or the lack thereof, of the qualities
of an « Ivorian » and a « foreigner » under the nationality Code because the
law allowed it. More precisely, the legal basis of the ruling of the Supreme
Court is the establishment by the Code of an « Ivorian by origin » without
defining who this Ivorian is. As mentioned above, the similarities of
candidate Ouattara with the Dioulas border on identity. In reality, in addition
to being a Dioula, candidate Ouattara was also one of the most popular
Dioulas in Côte d’Ivoire, having served for several years as Prime Minister in
the Government of the first President of Côte d’Ivoire, Mr. Félix HouphouëtBoigny. The only other basis for discrimination against candidate Ouattara
was the fact that he was not an « Ivorian by origin ». It is common knowledge
that the Dioulas are the people who are most perceived as Ivorians « by
origin ». Consequently, it is the most symbolic form of discrimination against
Dioulas. Without prejudice to the outcome of the analysis on this point, such
a conclusion will have full meaning when the violations alleged by the
Complainant as a consequence of the discrimination so observed by the
Commission are being considered.
151. In short, with regard to discrimination against Dioulas, the Commission
notes that it is based on their ethnic origin, consonance of their patronymics
and their Muslim religious persuasion. On the one hand, discrimination
implies two groups of Ivorian citizens who are treated differently on bases
prohibited by the Charter. On the other hand, successive Governments of the
Respondent State produced no objective and reasonable justification, while
the Complainant showed evidence of a difference in treatment. With regard
to the other victims, the same conclusions are applicable within the limits of
47
the observed established rights with regard to the violation of the provisions
of Article 5 of the Charter. The Commission concludes that there is ample
evidence that such unjustifiable discrimination so established violates the
provisions of Article 2 of the Charter.
152. The Complainant also alleges that there has been a violation of Article 3 of
the Charter which also prescribes equality before the law and equal
protection of the law. The Commission notes that equality before the law
derives from a substantial legal prerogative, while equal protection of the law
also goes with the practical enjoyment of this substantial prerogative. Thus,
through equality before the law, the Charter recognizes and confers upon the
human person, the right to, in much the same way as all other persons,
belong to the big family of the human person. The Inter-American Human
Rights Commission properly states this meaning of equality before the law in
Barberia v. Chile as follows:
The notion of equality derives directly from the unity of the human family
and is linked to the essential dignity of the individual. This principle
cannot be reconciled with the notion that a particular group of individuals
has the right to special treatment as a result of their perceived superiority.
It is also irreconcilable with this notion of categorizing a group as being
inferior and to treat it with hostility or even to discriminate against it in
the enjoyment of the rights accorded other groups which are not
categorized as such. It is forbidden to subject human persons to different
forms of treatment which are inconsistent with their unique and fellowfeeling character.42
153. Under Articles 3(1) of the Charter, equality before the law, therefore,
refers to equality in law or legal equality inherent to any individual subject of
law as a result of his human nature and which places him on equal legal
terms with other human persons. On the other hand, equal protection of the
law provided for by Article 3(2) refers more particularly to the guarantees
introduced in order to give substance to the subjective law deriving from
equality before the law or in law. In Zimbabwe Lawyers for Human Rights
and one Other v. Zimbabwe, the Commission considers legal protection of the
law as « the right of every individual to equal access to justice and to be
42 Margarita Cecilia Barbería Miranda v. Chile Case 12.469 Inter-American Human Rights Commission
(2010) para 34. The Commission then adopted Legal Opinion OC-4/84 of 19 January, 1984 given by the
Inter-American Human Rights Court on the Proposed Amendments to the Naturalization Provisions of
the Constitution of Costa Rica, Series A No. 4, para 55. Translation by the Commission.
48
treated in an equal manner by the law and by the courts both with regard to
procedure and substance ».43
154. Whatever the case, the Commission raises an intrinsic inter-connection
between equality before the law and equal protection of the law, on the one
hand, and the right to the enjoyment of rights guaranteed by the Charter, on
the other hand. This inter-dependence is not specific to the African Charter. It
is noteworthy that the Inter-American Human Rights Court combines these
three legal prerogatives and treats them as a single principle. In its Legal
Opinion OC-18 of 17 September, 2003, the Court concluded that « the principle
of equality before the law, equal protection of the law and non-discrimination
is a jus cogens standard because the entire legal structure of public national
and international order reposes on this principle which transcends any
standard ».44
155. By adhering to this position, the Commission considers that in reality, the
right to« non-discrimination » which is protected by Article 2 of the Charter
constitutes a legal guarantee to ensure the enjoyment of the rights to equality
before the law and equal protection of the law under Article 3. In other
words, where discrimination occurs, equality and equal protection of the law
are automatically undermined. It follows that whenever a violation of Article
2 of the Charter is established, the rights under Article 3 have necessarily
been violated. The only exception to this logical position is applicable when
the discrimination authorized by law is justifiable and proportionate to the
targeted goal. In the Communication under consideration, the Commission
has already concluded that an unjustified discrimination has occurred.
Therefore, the exception mentioned should not be part of the on-going
consideration.
156. In the case in point, the Commission reiterates its preceding conclusions to
observe that the laws and procedures introduced by the Respondent State
have treated the Dioulas as a group which is inferior to the group of
« Ivorians by origin ». Through its very essence, the principle of « ivoirité »
instigated by the law and practices of the public authorities and crystallized
by the provisions of Article 35 of the 2000 Constitution promises express
inequality. Furthermore, the various testimonies of acts of illegal
discrimination by civil registry officers, police officers and judicial authorities
43 Zimbabwe Lawyers for Human Rights
and one Other v. Zimbabwe Communication 293/04 (2008)
AHRLR 120 (ACHPR 2008) para 124.
44 Inter-American Human Rights Court, Juridical Condition and Rights of Undocumented Migrants,
Legal Opinion OC-18 of 17 September 2003, Series A No. 18, para 101. Translation and emphasis by the
Commission.
49
of both the inferior courts and the Supreme Court amply prove that equal
protection of the law has been undermined with regard to the Dioulas. The
same conditions are applicable to the other victims within the limits of the
preceding conclusions concerning them. Without it being necessary to
comprehensively consider the grounds of the Parties on this point, the
Commission concludes that a violation of the provisions of Article 3 of the
Charter has occurred.
Subsequent Violations
157. The Commission refers to its conclusions deriving from the consideration
of alleged violations of Article 5 of the Charter to reiterate that the violation of
the right to dignity is a direct consequence of the denial of nationality as a
legal status. With reference to the said conclusions, dignity is inherent to the
other rights under the Charter. The same reasoning is applicable
interchangeably to several other rights under the Charter. Thus, when a right
such as nationality is denied or challenged, it becomes impossible to enjoy a
set of rights arising out of the enjoyment of a legal status. In principle, the
right to enjoy the benefits attached to nationality is violated once the
individual is deprived of this legal recognition.
158. Furthermore, the Commission notes that it has ruled, particularly in Legal
Resources Foundation, on the consequences of the violation of the right to
equality protected under Article 2 of the Charter. It also concluded that the
non-observance of the principle of equality before the law « affects the
capacity to enjoy many other rights ». It is noteworthy that the Commission
had then found that discrimination on the grounds enumerated by the
Charter was the cause of violence and socio-economic instability which
benefitted no one.45 The subsequent consideration deals with the violation of
these rights alleged to be the consequence of the denial of nationality.
Consequently, the attendant analysis will frequently refer to the grounds and
submissions ensuing from the consideration of the major violations, while
producing grounds specific to the concerned subsequent violation.
Violation of Article 12
159. To conclude that there has been a violation of the provisions of Article 12
of the Charter, the Complainant alleges that the denial of nationality has
made it impossible for most Dioulas to acquire identity documents and, for
that matter, to travel both within and without the territory of the Respondent
State. It appears that the Complainant alleges that the violation of the
45 Legal Resources Foundation v. Zambia, op. cit. para 63.
50
provisions of the first two paragraphs of the relevant article which read as
follows: « 1) Everyone has the right to move freely and to elect domicile
within the State, subject to compliance with the rules enacted by the law. 2)
Everyone has the right to leave any country, including his own country, and
to return to the same. This right cannot be subject to restrictions, unless the
said restriction is provided for by law and where it is necessary to protect
national security, public order, public health or public morality ».
160. In Jawara v. The Gambia, the Commission concluded that the unfair
restrictions in the issuance of passports are a violation of the freedom of
movement guaranteed by Article 12 of the Charter.46 The Commission
considers that this position applies to any document linked to nationality and
necessary for the process of the issuance of travel documents in or out of the
territory of a State and between States. Thus, the refusal to deprive a foreign
resident of his residence permit without a justifiable reason automatically
prevents him from moving from one place to another within the territory of
the host State.
161. In the case in point, the Commission notes that owing to the lack of
identity documents, the Dioulas have suffered restriction in their movements
within Côte d’Ivoire as well as the enjoyment of the freedom to leave the
country and to return to the same. On their movements within Côte d’Ivoire,
the Dioulas or persons perceived to be Dioulas have been or are still being
subjected to harassment by the public authorities, i.e. police officers.
Testimonies abound of persons who have been forced by police officers to
pay extra costs for them to travel by public transport on the mere account of
their Dioula dialect, accent or clothing. In some cases, these restrictions have
been imposed in spite of the fact that they presented their Ivorian identity
cards. Furthermore, persons belonging to the Dioula ethnic group who have
emigrated to other regions of the world have then had the renewal of their
identity and travel documents refused. They could not return to Côte
d’Ivoire. As a result of the preceding conclusions, the Commission observes
that such acts violate the provisions of Article 12 of the Charter.
Violation of Article 13
162. The provisions of Article 13 of the Charter read as follows: 1) Every citizen
shall have the right to participate freely in the government of his country,
either directly or through freely chosen representatives in accordance with
the provisions of the law. 2) Every citizen shall have the right of equal access
to the public service of his country. 3) Every individual shall have the right of
46 See Jawara para 70.
51
access to public property and services in strict equality of all persons before
the law. Through the grounds he invokes to buttress this point, the
Complainant argues that the limitations imposed by the provisions of Articles
35 and 65 of the Ivorian Constitution of 2000 and the other legislative reforms
have had a devastating effect on the ability of nearly 40 percent of the
population to participate in civic life. By way of proof, the Complainant
mentions both the disqualification of candidate Alassane Ouattara from the
2000 presidential election and the impossibility for many Dioulas to vote
during various elections held from 2000.
163. The Commission notes that the grounds invoked by the Complainant tend
to lead to the conclusion that the rights to vote and to be voted for, as
protected by the first paragraph of Article 13, have been violated. However,
other points of the conclusions submitted by the Complainant contain
evidence relating to the violation of the provisions of Paragraphs 2 and 3 of
Article 13. The Commission holds that it is necessary to consider all the
provisions of Article 13.
164. On the right to vote and to be voted for, the Commission considers that it
is the bedrock of modern democratic systems which the Member States of the
African Union have committed themselves to build. It is noteworthy that the
African Union makes the « promotion of democratic principles and
institutions » one of the fundamental objectives which govern its actions.47
Furthermore, under several of its provisions, the African Charter on Democracy,
Elections and Governance obliges States Parties to ensure « transparency and
justice in the management of public affairs ». The same Charter makes
popular participation through universal suffrage « an inalienable right of the
peoples » and prescribes the « respect of ethnic, cultural and religious
diversity which contributes to the strengthening of the participation of
citizens ».48 Through its Resolution ACHPR/Res.164 (XLVII) 2010 on Elections in
Africa, the Commission urges the States Parties to the African Charter to
« introduce impartial and non-discriminatory procedures for all the electoral
processes ».49
165. The Commission has already concluded above, and by referring to its
ruling in Mouvement Ivoirien des Droits de l’Homme (II) case quoted above,
that the dispute surrounding candidacy for the 2000 presidential election was
also eminently that of Ivorian nationality and modes of evidence. This is so
because the Supreme Court of Côte d’Ivoire applied rules for the
47 See African Union ‘Constituent Act of the African Union’ (2000/2001) Art 3(g).
48 See African Union ‘African Charter on Democracy, Elections and Governance’ (2007/2012) Arts 2(1),
3(1), 3(8) and 8(3).
49African Commission ‘ACHPR Resolution /Res.164 (XLVII) 2010 on Elections in Africa’ (2010).
52
determination of nationality which violate the principles of equality and nondiscrimination prescribed by the Charter. In other words, through this ruling,
the superior court arbitrarily denied Ivorian nationality to candidate Ouattara
on the grounds of « national origin », a ground prohibited by the Charter.
Besides, the Commission had also concluded that the provisions of Article 13
of the Charter have been violated.
166. In the case in point, the Commission notes that the provisions of Articles
35 and 65 of the 2000 Ivorian Constitution are still in force. They require every
candidate for the presidential election as well as for the positions of Speaker
and Deputy Speaker of the National Assembly to be Ivorians born to parents
who are themselves Ivorians by origin. Furthermore, candidates for any one
of these positions must never have renounced their Ivorian nationality nor
acquired another nationality. In the light of its preceding observations, the
Commission considers that the ruling of the Supreme Court of Côte d’Ivoire
to deny Mr. Ouattara Ivorian nationality on account of his « non-Ivoirian »,
and indeed, Dioula origin means that Dioulas have been denied Ivorian
nationality. Indeed, through the same causes and circumstances, it is evident
that no other candidate from the Dioula ethnic group already identified by
the law and practice as being of « non-Ivoirian origin », would not have
passed the dispute test for candidacy.
167. It is noteworthy that the Supreme Court based its ruling on the abovementioned provisions of the Ivorian Constitution which merely echo the
denial of nationality sanctioned by the Ivorian nationality code and the
successive legislations adopted by the Respondent State. Such is the case of
the Dioulas, at the very least. In practice, the Dioulas cannot get elected to the
positions concerned since they cannot demonstrate their Ivorian nationality,
particularly that of « origin », in accordance with the provisions of the
Constitution and the other relevant legislations, even though they are
Ivorians. The fundamental source of this denial is the nationality Code, the
most relevant provisions of which are still in force. Thus, since the Code is the
legal basis of all subsequent laws and practices relating to nationality, the
Dioulas are affected by all the limitations mentioned above, given that they
are considered as « non-Ivorians » by origin. The effects of nationality
acquired and not « by origin » particularly include, among others, five to ten
years disqualification from election to certain elective positions. This state of
affairs violates the right to stand for election which is protected by the
provisions of Article 13(1) of the Charter.
168. The Ivorian legislation on nationality and eligibility has produced the
same adverse effects with regard to the right of Dioulas to appoint
representatives of their choice. First, and as a consequence of the preceding
53
conclusions, the Commission considers that the disqualification of a person
from the Dioula ethnic group for the reasons mentioned above stripped
Dioulas of any chance to elect the candidate of their choice. Furthermore, the
proof of such a violation is further produced during the elections following
the 2000 presidential election. By way of illustration, after the opposition
candidates won the majority of seats during the March 2001 local elections,
the Government of President Laurent Gbagbo decided that only holders of
the new voter’s ID card would be allowed to vote during municipal elections.
A whole swathe of the Dioula population perceived as « pro-foreigners » had
thus been targeted, since the proof of their Ivorian nationality obviously
prevented them from acquiring voter’s ID cards. Similarly, the names of some
Dioulas who had previously acquired Ivorian nationality certificates were
also removed from the voters‘register before the 2010 presidential election.
The Commission concluded that the provisions of Article 13(1) of the Charter
have been violated with regard to the right to appoint representatives of their
choice.
169. From the grounds submitted by the Complainant, it is evident that the
authorities of the Respondent State have denied certain persons access to
public office such as the judiciary because they were Dioulas. The
Commission notes that this violation is the direct consequence of the
discriminatory application of the nationality Code through the abuse of its
vagueness. Indeed, since the Code authorizes the categorization of the
Dioulas under the heading « Foreigners », they are affected by the limitations
of access to public positions such as the judiciary, the bar or all other « State
public positions ».50 While this limitation could be legitimate with regard to
foreigners who have acquired nationality, it violates the provisions of Article
13(2) of the Charter regarding Dioulas as a result of the conclusions of the
Commission on rights to legal status and equality. Finally, on the basis of
these considerations, the imposition of additional costs relating to access to
public transport on Dioulas violates the provisions of Article 13(3) of the
Charter which guarantees them « the right to use public services in strict
equality of all before the law ».
Violation of Article 14
170. Under the provisions of Article 14 of the Charter, « The right to ownership
shall be guaranteed. It may be interfered with only where it is required by
public need or in the general interest of the community, in accordance with
the provisions of the appropriate laws ». The Commission notes that the
Complainant is not exposing real and proven cases of violation of the right of
50 Ivorian nationality code (1961) Art. 43 new, Law of 2004.
54
Dioulas to ownership as a result of the denial of nationality. On the other
hand, the grounds invoked tend to render insecure, the property of Dioulas
who have been denied nationality. The Commission notes that in this regard
under the provisions of Article 1 of Law No 98-750 of 23 December, 1998 on
rural land tenure (Law on rural land tenure), « only the State, public
communities and Ivorian natural persons are allowed to be owners » of a
parcel of rural land. Article 26 of the same law enumerates a series of
limitations which would have the effects of an expropriation against any
« non-Ivorian » person.
171. As a result of these restrictions, since Dioulas are considered as « nonIvorians » in practice and by application of the law on nationality, they
cannot lay claim to land which is part of the rural land tenure regime. They
also run the risk of being expropriated of the land they owned prior to the
entry into force of the Rural Land Act in 1998. Such is the case because the said
law replaces the traditional and customary modes of proof of ownership
through documentary modes. The lack of documentary proof ensures that the
concerned land reverts to the State. The heirs of concerned persons can
therefore only avail themselves of the right of ownership after a declaration is
made to the public authority, with the same risk being run by their donor of
having themselves expropriated for the benefit of the State or an Ivorian third
party.
172. The Commission notes that in Mouvement Ivoirien des Droits de l’Homme
(I), it concluded that the above-mentioned provisions of the Rural Land Act
violate Article 14 of the Charter in that expropriation which arises out of their
application is neither justified by a « public need » nor the « general interest
of the community ».51 The Commission had also deemed as inadmissible, the
argument of the Respondent State to the effect that the said Law has had
limited effects since only 112 persons of which very few Africans were
concerned. It appears that the Commission had considered as a violation of
Article 14 of the Charter, the refusal of access to property on the basis of
« origin ».52 However, it is essential to clarify the applicability and effects of
these provisions of the Law and the jurisprudence of the Commission with
regard to the Dioulas and other victims.
173. With regard to the Dioulas, the Commission notes that the Law uses the
term « Ivorian ». Since this term is not qualified, reference should be made to
the Law on nationality to determine the definition and contents. The
Commission has already resolved the issue of the right of the Dioulas to
51 Mouvement Ivoirien des Droits de l’Homme (I) para 78.
52 Op. cit.
55
Ivorian nationality under the aegis of the nationality Code. Consequently, the
implementation of the decision of the Commission on this point will resolve
any violation of the right of the Dioulas to access ownership. Thus, once the
right to Ivorian nationality of the Dioulas has been restored, they will be
exempted from the application of the limitations mentioned above. Although
it is true the Dioulas could be victims of a potential violation of the right to
ownership if the Ivorian law on rural land is applied, the wrong should still
occur or it should be demonstrated that there remains a future risk of
violation in the absence of an amendment of the Law. The Complainant does
not prove that this risk occurred against the Dioulas prior to this
Communication. Therefore, it cannot be concluded that a violation has
occurred.
174. However, since the nationality Code has still not been reformed, the issue
of Ivorian nationality by origin of the Dioulas remains up to date.
Consequently, the risk of a future violation is real because there is no
guarantee that the present and future authorities of the Respondent State will
not apply the disputed provisions to the Dioulas, particularly those under
Article 26 of the Rural Land Act. The deadlines for the various prescriptions of
Law No 2013-655 of 13 September, 2013 amending the Law on rural land
concerning the declaration of peaceful and continuous enjoyment of ownership of
parcels of rural land constitute enough evidence of this situation. The risk of
expropriation of the Dioulas on the unfair and discriminatory basis of their
perceived « non-Ivorian » status has survived the 2013 rural land reform.
Incidentally, it is proper to conclude that there is a potential violation of
Article 14 of the Charter.
175. With regard to the other victims, the Commission notes that the
Complainant does not provide evidence to support the alleged violation of
their right to ownership. An evaluation of the relevance and effectiveness of
the rural land reform will consequently mean a reversion to the conduct of an
abstract study on the compliance of the said reform with the provisions of
Article 14 of the Charter. The Commission considers that such a study is
inopportune. Furthermore, the dispute under consideration does not deal
with a lack of implementation of the Mouvement Ivoirien des Droits de
l’Homme (I) decision. It follows that it is not proper to conduct a specific
study of and how the land reform has complied with the said decision.
Violation of Article 15
176. In Article 15, the Charter stipulates that « Every individual shall have the
right to work under equitable and satisfactory conditions, and shall receive
equal pay for equal work ». To allege that these provisions have been
56
violated, the Complainant argues that the fact that the Respondent State
denies the Dioulas Ivorian nationality interferes with their right to access
employment on a non-discriminatory basis. In Zimbabwe Lawyers for
Human Rights and Associated Newspapers of Zimbabwe v. Zimbabwe, the
Commission concluded that for the Respondent State to have closed down
the offices of the Complainants and prevented their workers from going there
deprives them of their source of revenue and, therefore, violates Article 15 of
the Charter.53 Furthermore, the Commission concluded that there is a
violation of the same provisions when, in Pagnoulle (for Mazou) v.
Cameroon, the Respondent State refused to reinstate the Complainant as a
magistrate when all the persons who suffered the same fate as him had been
reinstated.54 It is evident from the above that the right protected under Article
15 refers to the prerogative to access employment as a source of income and
to benefit from the same treatment as persons in a work situation and in
similar circumstances.55
177. In the case in point, it is evident from the testimonies obtained by the
Complainant that persons from the Dioula ethnic group have been declared
as ineligible for public office for the mere fact that their Ivorian nationality
which has been validly proven has been challenged. The reported cases
include the denial of access or promotion in areas like the judiciary. The
Commission notes that such forms of treatment constitute a violation as a
result of the imposition of disqualification ensuing from the discriminatory
and arbitrary denial of nationality. Consequently, these restrictions violate
the provisions of Article 15 of the Charter for the persons concerned. It is also
proper to conclude that there is a potential violation of the same right with
regard to all Dioulas because they remain vulnerable as a result of
discrimination in access to nationality.
Violation of Article 18
178.
Article 18 of the Charter obliges States Parties to protect families, to
ensure their physical and mental health, to assist them, to ensure the
elimination of every form of discrimination against women, to ensure the
protection of their rights and those of children, as stipulated in international
conventions. In Amnesty International v. Zambia, the Commission decided
53 See Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v. Zimbabwe
Communication 284/03 (2009) AHRLR 235 (CADHP 2009) para 179.
54 Pagnoulle (for Mazou) v. Cameroon Communication 39/90 (2000) AHRLR 61 (ACHPR 1997) para 29.
55 See Essien v. The Gambia (2007) AHRLR 131 (ACHPR 2007) para 27.
57
that forced expulsion is a violation of Article 18 of the Charter, as a result of
the dispersal of the families of victims.56 The Commission adopted the same
position in Modise v. Botswana, by concluding that the deportation of the
Complainant deprived him of his family and also deprived the latter of his
support.57
179. In the case in point, the Commission has already concluded that the
victims suffered restrictions with regard to their movement both within and
without the country. Furthermore, the Complainant reports testimonies to
prove that police officers seized the identity documents of Dioulas, thereby
preventing them from freely moving from one region to another in Côte
d’Ivoire. Therefore, some of the victims had no other choice but to acquire a
« laissez-passer », the validity of which did not exceed one month. In such
circumstances, there is no doubt, as alleged by the Complainant, that the
persons concerned could not visit their relatives living in other regions of the
country. Such a situation also involved a real risk of separation or dislocation
of the family unit. The Commission concludes that the provisions of Article
18 of the Charter have been violated.
Violation of Article 22
180. Under the said article, « 1) All peoples shall have a right to their economic,
social and cultural development with due regard to their freedom and
identity and in the equal enjoyment of the common heritage of mankind … ».
While the Charter guarantees development as a right of the « peoples », the
grounds raised by the Complainant allege a violation of both a right to
« personal development » under the guise of the loss of a « life plan » and the
right to the full development of the Dioulas. On the effect of a careful
consideration of these grounds, the Commission considers that it is proper to
clarify the contents of the right to development under the Charter, its
application and the attendant obligations to be borne by the Respondent
State. These clarifications will then allow for a determination of whether the
facts presented have hindered the achievement of a « life plan » of the victims
and consequently violated their right to development.
181. The Charter is a pioneer international instrument for the proclamation and
guarantee of a right to development. Having said that, the most advanced
political and legal recognition of this right at the international level was
formulated in 1986 when the United Nations General Assembly adopted the
56 See Amnesty International v. Zambia Communication 212/98 (2000) AHRLR 325 (ACHPR 1999) para
51.
57 See Modise v. Botswana op. cit. para 92.
58
famous Declaration on the Right to Development.58 Under the provisions of
Article 1(1) of the said Declaration, « The right to development is an
inalienable right of man by virtue of which every human person and all
peoples are entitled to participate in, contribute to, and enjoy economic,
social, cultural and political development, in which all human rights and
fundamental freedoms can be fully realized ».
182. In its jurisprudence, the Commission further adopts a definition by
application rather than by conceptualization of the right to development
under the Charter. In Democratic Republic of Congo v. Burundi, Rwanda and
Uganda, the Commission thus considers that the fact that the Respondent
States buried the victims of massacres perpetrated by them against the
populations of the Complainant’s East Province in mass graves is a violation
of « the right of the Congolese peoples to cultural development ».59 On the
other hand, in Gunme and Others v. Cameroon, although the Commission
could not conclude that there has been a violation of Article 22 for lack of
evidence. However, it considered that if they were proven, acts of « economic
marginalization and lack of economic infrastructure » could constitute a
violation of the right to development.60 The Commission emphasizes this
conception of development under Charter by ruling in Centre for Minority
Rights Development and Others v. Kenya that the failure of the Respondent
State to involve the Endorois populations as well as in the design of reserve
settlement projects as well as in the enjoyment of income accruing to their
exploitation is a violation of Article 22 of the Charter.61
183. This position is in keeping with the national jurisprudence 62 and the
doctrine on the right to development.63 In the light of the foregoing, the
Commission considers that there is indeed a fundamental convergence to
comprehend the right to development as an inalienable, individual or
collective right, to participate in all forms of development, through the full
realization of all fundamental rights, and to enjoy them without unjustifiable
restrictions. In any case, the conception of this right in the spirit of the Charter
58 See Resolution 41/128 of 4 December 1986.
59 See Democratic Republic of Congo v. Burundi, Rwanda and Uganda Communication 227/99 (2004)
AHRLR 19 (ACHPR 2003) para 87.
60 See Gunme and Others v. Cameroon Communication 266/03 (2009) AHRLR 9 (ACHPR 2009) paras 205206.
61 Centre for Minority Rights Development and Others v.Kenya 273/03 (2009) AHRLR 75 (ACHPR 2009)
paras 269-298.
62 See, for example,Denton v. The Director General, NIA and Others v. The Gambia (2006) AHRLR 241
(GaHC 2006) para 33.
63 See, among others, PG Pougoué ‘Lecture de la Charte africaine’ Droits de l’homme en Afrique centrale
Colloque de Yaoundé (1994) Karthala 42-44 ; K Mbaye Les droits de l’homme en Afrique (1980) 664 et s.
59
and the mere mention of the term « peoples » in the provisions of Article 22 of
the Charter cannot adequately interpret the right to development as being
solely and exclusively collective. In spite of its community emphasis,
particularly with regard to the right to development, the Charter clearly
recognizes the crucial role of the individual without whose self-fulfillment the
development of the peoples may be compromised. In certain circumstances,
the development of the peoples and the individual may be concomitant. From
the perspective of the contents of the right to development under the Charter,
the States Parties have a mediate obligation to meet the requirements for the
enjoyment of this right and an immediate obligation to at least create the
opportunities and environment conducive to the enjoyment of the said right.
In other words, there is the need to ensure a gradual implementation, but it is
immediately recommended that the individual and collective right to
development should be respected, protected and promoted.
184. The Inter-American Human Rights Court carefully formulates this
meaning of the right to development by conceptualizing development in the
form of a « life plan ». The Court held then in Loyza Tamayo v. Peru, that
The concept of the ‘plan of life’ is comparable to that of self-fulfilment,
which is in turn based on the options available to an individual to lead his
life and to achieve the objectives he has set for himself. (…) It may be
difficult to consider an individual as being free if he has no option to
continue to lead his life and to do so to its natural conclusion. (…)
Consequently, the elimination or hindrance of these options constitutes a
violation or loss of a priceless asset which this Court cannot ignore.64
185. In the case in point, the Commission notes that as a result of the denial of
nationality, the Dioulas as well as the other victims were unable to obtain the
legal recognition necessary for, as is the case of all modern organized
societies, the enjoyment of a set of advantages. This lack of recognition of
nationality as legal status also prevented them from participating in the
shaping and enjoyment of the socio-economic development witnessed by
Côte d’Ivoire since independence. With regard to the Dioulas in particular,
the impossibility to be recognized as Ivorians prevented them from accessing
public jobs, participating in public and political life by voting in elections and
getting voted for. This, in turn, hinders every possibility for them to decide
with other Ivorians choices relating to the destiny of the Ivorian nation as
well as to enjoy the fruits of its social, political, economic and cultural
advances.
64 Loyza Tamayo v. Peru Inter-American Human Rights Court, Order of 19 November 1999, para 191.
60
186. The Commission considers that due to these multiple denials, a human
potential has inevitably been destroyed, ambitions have been dashed, entire
lives have been shattered, not only for the individuals, but also for the
Dioulas as a community within the big Ivorian community. This has
obviously led to an incalculable loss of a life plan, an accumulated loss of
generation to generation over the decades. The Commission concludes on a
serious violation of the right to development under the provisions of Article
22 of the Charter.
Violation of Article 1
187. The provisions of Article 1 of the Charter provides for an obligation to
implement all the necessary measures with the effect of giving meaning to the
substantial rights guaranteed by the Charter. With regard to these provisions,
it follows that the liability is only invoked when a substantial right has been
violated. Furthermore, this liability is automatically invoked as soon as a
violation of a right protected by the Charter is deemed to have occurred.65 As
a result of all the foregoing, the Commission concludes that the provisions of
Article 1 have been violated.
Petitions of the Complainant
188. The issue of grounds and additional petitions has been resolved above.
The consideration was extended to the end of the exchanges and submissions
on the merits. Having said that, and in accordance with the constant
jurisprudence of the Commission, the measures taken by the State after the
referral of the matter in order to remedy violations do not absolve it of its
liability under the Charter.66 The violations observed and perpetrated must be
redressed, more so when the said violations are continuous even if they are
not actively continued by the current Government of the Respondent State
which deserves credit for acting in good faith to take measures to end the
suffering and indignity the victims are enduring.
189. Having taken into account the reforms carried out by the State after the
referral of the matter, the Commission will consider the petitions of the
Complainant on the basis of the outcome of the said reforms. Consequently,
the Commission will consider the amended petitions of the Complainant as
follows.
65 See, among others, Association des Victimes des Violences Post-Electorales and Interight v. Cameroon
Communication 272/03 (2009) AHRLR 47 (ACHPR 2009) para 105-115 ; Jawara para 46.
66 See, for example, Civil Liberties Organisation v. Nigeria Communication 129/94 (2000) RADH 190
(CADHP 1995) para 17.
61
Declaratory Ruling on Violations
190. With the benefit of the foregoing, the Commission observes that there are
no grounds to rule on the alleged violations of the provisions of Articles 4 and
6 of the Charter. On the other hand, it rules that the provisions of Articles 1, 2,
3, 5, 12, 13, 14, 15, 18 and 22 have been violated.
Amendment of Articles 35 and 65 of the Constitution
191. The Commission has already ruled in Mouvement Ivoirien des Droits de
l’Homme that the provisions of Articles 35 and 65 of the Constitution of Côte
d’Ivoire violate Articles 2 and 13 of the Charter. It reiterated this ruling in this
Communication. Since the provisions concerned are still in force, therefore,
there are grounds to prescribe their amendment.
Amendment of the Nationality Law
192. The first petition of the Complainant on this point tends to request the
State to incorporate provisions into its laws to make it possible to grant
nationality to every child with relevant connection with Côte d’Ivoire. The
request of reference involves the prescription of the implementation of both
the United Nations Conventions on Statelessness and the African Charter on
the Rights and Welfare of the Child to which Côte d’Ivoire is a party.67 In all
cases, the Commission considers that the appropriate implementation of
these instruments, according to the relevant international Directives on the
matter, is the most appropriate means of remedy for the observed violation of
the right to legal recognition protected by Article 5 of the Charter.
Consequently, it is proper to accede to this petition.
193. The second petition relates to documentation and the establishment of
proof in the matter of nationality. On the issue of the introduction of a reliable
birth registration system, the Commission notes that it is a general problem in
Africa. However, it is extremely urgent to resolve this problem in a country
like Côte d’Ivoire where there are more than 700, 000 of the 750, 000 of
stateless peoples distributed in the 15 West African States, according figures
of the United Nations High Commission for Refugees which are not
challenged by the Government of the Respondent State. The Commission
notes that, in general, the birth certificate, which is the reference document
establishing the legal existence of a person, at least with regard to his place of
birth and filiation. These two points also constitute the fundamental
principles of recognition by the States of the link of nationality. It goes
67 Côte d’Ivoire ratified the Charter on 1 st
March 2002.
62
without saying that in a situation where the system for the registration of
births, issuance of birth certificates and their security is ineffective, the
enjoyment of the right to nationality is in danger. The Parties agree that the
ineffectiveness as well as the discriminatory and partial nature of this
mechanism is one of the main causes of the denial of nationality in Côte
d’Ivoire. To ensure full access to nationality, it is therefore essential to
introduce a birth registry system based on the birth certificate. With regard to
people who have attained the age of majority, the issuance of a certificate
attesting to the their birth must be instituted as an obligation without
discrimination, of which the refusal by the authorities must be accompanied
by a justification in accordance with the law or a sanction with reasonable
remedies.
194. With regard to the proof of nationality, the Commission considers that, as
a matter of principle, it is the responsibility of the birth declarant or applicant
for nationality. However, given the weaknesses of the system for the
registration of births or for the delivery of related documents which are
ascribable to the Respondent State, proof must be shared in the event where
the document is lacking. Furthermore, given the realities in respect of
traditions, lack of information, ignorance and socio-economic constraints,
particularly for persons living in the rural areas, proof of birth or residence
must take alternative written modes into account. The principle of the sharing
of the burden of proof of nationality is also duly recognized by the provisions
of Article 89 of the Ivorian Nationality Code. The Commission considers that
it is reasonable and fair to admit the petition of the Complainant.
195. The third petition deals with the procedure on naturalization or
regularization as well as the attendant remedies. In this regard, the
Commission notes that among others, the prevailing law provides for a
procedure on naturalization through a decision of the President of the
Republic. Even if the initial application is submitted to the State Attorney, it is
then forwarded to the Minister of Justice who has the prerogative of actually
considering, ruling on and issuing a certificate of nationality. In the event of a
dispute, the two possible remedies are non-contentious remedy before the
said Minister and an appeal to the President of the Republic who « has
discretionary powers in the matter ».68
196. The Commission notes that the State Prosecutor is an eminent actor of
executive power and, on account of that, has monopoly over the process of
the issuance of nationality documents in Côte d’Ivoire. The Commission
68 Côte d’Ivoire Law No 2013-653 of 13 September 2013 on special provisions on the acquisition of nationality by
declaration, Arts 3-7.
63
considers that the dispute over a right as vital as the recognition of legal
status, and of nationality in particular, must be subject to an independent,
fair, impartial and equitable procedure. Only one organ of the State cannot at
the same time be a judge in and a party to the granting of nationality. That is
more so the reason why the recognition of the right to nationality is
henceforth beyond the exclusive remit of the State which must comply with
the international rules to which it has subscribed. Consequently, the judge
must exercise a partition in the nationality dispute to independently and
impartially determine whether the State has discharged its obligations. Côte
d’Ivoire also recognizes this necessity because, under the provisions of its
nationality Code, the State provides that civil law judges have jurisdiction to
hear any nationality dispute. Incidentally, the Commission finds the
considered application relevant and useful.
Implementation of Reforms on Rural Land Ownership
197. The Commission only ruled on one potential violation of Article 14 with
regard to the Dioulas. However, it admitted an actual violation in cases where
victims would be subject to a prejudice already suffered as a result of the
application of the Rural Land Act before the reforms of 2004 and 2013. In these
circumstances, it is proper to prescribe an effective implementation of reforms
as well as redress of prejudices which would have been suffered as a result of
the application of the former provisions of the Law.
Payment of Damages
198. In accordance with the established jurisprudence of the Commission, the
violation of rights protected by the Charter entitles victims to damages,
including monetary remedy.69 Having said that, the Commission considers
that the Complainant must provide an evaluation and prove the prejudice
suffered.70
199. In this Communication, the nature of the violations is ample evidence of
the prejudice suffered. However, since the Complainant has not quantified
the said prejudice, the Commission will bear the responsibility of providing
it. In this regard, the Commission notes that the main aim of the redress is
founded on the restitutio in integrum principle which requires that the victim
is reinstated in the situation prior to the violation. Where it is impossible to
reinstate him, any violation will be resolved through compensation. On the
69 See Good v. Botswana op. cit. Para 245 ; Antoine Bissangou v. Congo Communication 253/02 (2006)
AHRLR 80 (ACHPR 2006) ; Embga Mekongo Louis v. Cameroon Communication 59/91 (2000) RADH 60
(CADHP 1995) para 2.
70 See Good op. cit.
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other hand, it should be ensured that the redress is fair, adequate, effective,
sufficient, appropriate, victim-friendly and proportionate to the prejudice
suffered.71
200. When placed in the context of human rights, this principle is mitigated.
The objective here is not to punish the State or to enrich the victim by
granting him an exorbitant and unreasonable compensation. It is particularly
inappropriate to prescribe compensation when the prejudice suffered is as
material as that the highest compensation would not be able to right the
wrong. Where necessary, the most appropriate practice includes, among
others, a public acknowledgement of the violation, rehabilitation and the
building of memorial sites.72 In most similar situations, the Respondent State
will be required to act promptly in order to bring an end to the violation and
to prevent the occurrence of fresh violations. Whatever the case, the adoption
of prompt and effective measures to finally put an end to the sufferings of the
past may in themselves constitute an effective redress.
201. In the case in point, the main violation deals with the denial of nationality.
It is a right which represents a strong symbol: that of both the legal and social
recognition and also that of dignity. The Commission considers that for a
violation as symbolic as that one, it is proper to prescribe an equally token
redress. To be specific, the highest monetary compensation could not replace
attacks on the dignity suffered by the Dioulas for decades. Incidentally,
immediate rehabilitation is a much more appropriate redress.
202. On violations which are the result of this main violation, the Commission
notes that they were resolved in a material loss, particularly of a monetary
nature. For example, the expropriation of lands, the loss of promotion or
potential employment, and the enjoyment of socio-economic development
witnessed by Côte d’Ivoire. However, the Commission has already ruled that
some of these prejudices are merely potential, particularly those relating to
ownership and work. The others, such as equality, freedom of movement or
participation can only be the subject of monetary compensation; unless it is
proven that their violation has caused material or financial losses, which is
not the case in this situation.
203. Furthermore, with regard to the high number of concerned victims, and
considering that the Complainant has filed a dispute which is more of a
public than personal interest, it would be illusory to envisage the prescription
See Loayza Tamayo v. Peru (1998), Velasquez (1989), Aloeboetoe v. Surinam (1993) of the InterAmerican Human Rights Court; Djot Bayi v. Nigeria (2009) of the ECOWAS Court of Justice. See also in
general, REDRESS Reaching for Justice: The right to reparation in the African Human Rights System (2013).
72 See Loayza Tamayo ; Velasquez ; Aloeboetoe, op. cit.
71
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of financial redress, particularly considering the nature of the rights
concerned. In the view of the 700, 000 persons affected by the violations, the
only objective of some 300 testimonies produced by the Complainant was to
defend the cause by representative sampling of the entire target population.
Under these circumstances, the Commission considers that material or
monetary redress is not appropriate and that it is proper to prescribe a token
compensation and the immediate adoption of administrative, legislative,
regulatory and practical measures to put an end to the violations and to avoid
their recurrence in future.
204. The Commission notes that under the provisions of Article 112(2) of its
Rules of Procedure, when a ruling has been made against a Respondent State,
the parties must, within one hundred and eighty (180) days from the
notification of the ruling, inform the Commission in writing of all the
measures taken or in the process of being taken by the Respondent State to
give effect to the ruling.
Decision of the Commission on the Merits
The Commission,
For these reasons,
205. States that there are no grounds to making a ruling on the allegations of
violation of Articles 4 and 6 of the Charter.
206. Declares on the other hand that the Republic of Côte d’Ivoire has violated
the provisions of Articles 1, 2, 3, 5, 12, 13, 14, 15, 18 and 22 of the Charter.
207.
i.
Consequently, it:
Strongly recommends that the Republic of Côte d’Ivoire should amend the
provisions of Articles 35 and 65 of its Constitution in accordance with the
provisions of Articles 2 and 13 of the Charter.
ii.
Particularly recommends that the Republic of Côte d’Ivoire should ensure
that its nationality law should be consistent with the provisions of Articles
2 and 5 of the Charter, the relevant provisions of the African Charter on
the Rights and Welfare of the Child and the United Nations Conventions
66
on Statelessness, in the strict respect of the relevant international
Directives on the matter.
iii.
Earnestly recommends that the Republic of Côte d’Ivoire should adopt
more prompt legislative and administrative mechanisms to implement
measures necessary for the recognition of Ivorian nationality by origin of
the Dioulas through a simplified declaration procedure; to ensure that
other victims acquire nationality through the most favourable mode by
means of the successive legislations adopted since the establishment of
nationality by applying principles of retroactivity and established rights
and privileges ; to provide for independent, equitable and impartial legal
remedies to take cognizance of the nationality dispute.
iv.
Further recommends that the Republic of Côte d’Ivoire should introduce
or, where applicable, improve upon an effective and non-discriminatory
birth registration system which makes the birth certificate as proof of
nationality before the attainment of majority; to institute the access to
nationality documents as a right for citizens and, for the relevant
authorities, an obligation accompanied by sanctions in the event of an
unjustified and discriminatory failure; and to share the burden of proof
between the applicant and the State in the event of a dispute on the usual
place of residence or a claim to nationality with written alternative modes
of proof.
v.
Further recommends that the Republic of Côte d’Ivoire should return the
lands or compensate the victims who would have been expropriated
through the application of the rural land law and implement prompt and
effective measures for the purposes of an effective implementation of new
reforms.
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vi.
Finally requests the Republic of Côte d’Ivoire to forward to it a written
report on measures taken to implement these recommendations within
one hundred and eighty (180) days of the notification of this ruling.
Adopted at the 17th Extraordinary Session of the African Commission on
Human and Peoples’ Rights, held from 18 to 28 February in Banjul, The
Gambia.
68