249/02 : Institute for Human Rights and Development in Africa (on
behalf of Sierra Leonean refugees in Guinea) / Guinea
Summary of Facts
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1. It is alleged by the Complainant that on 9 September 2000, Guinean President Lansana Conté
proclaimed over the national radio that Sierra Leonean refugees in Guinea should be arrested,
searched and confined to refugee camps. His speech incited soldiers and civilians alike to engage in
mass discrimination against Sierra Leonean refugees in violation ofArticle 2 of the African Charter.
2. The Complainant alleged that the discrimination occasioned by President Conté speech
manifested itself primarily in at least five ways:
3. First, widespread looting and extortion occurred in the wake of President Conté’s speech. Guinean
soldiers evicted Sierra Leoneans from their homes and refugee camps. The soldiers further looted the
homes, confiscated food, personal property and money from refugees at checkpoints. They also
extorted large sums of money from detained refugees. These items were never returned to the
refugees.
4. Second, the speech motivated soldiers and civilians to rise up against Sierra Leonean refugees
inside and outside of the refugee camps. The resulting physical violence ranged from beatings, rapes,
to shootings. Countless refugees died in these attacks, and many have scars as permanent reminders
of their time in Guinea.
5. Third, after President Conté’s speech, Guinean soldiers targeted Sierra Leonean refugees for
arrest and detention without any just cause. Soldiers at checkpoints would inspect refugees for
supposed rebel scars, calloused hands from carrying a gun, speaking Krio (the local language in
Sierra Leone), or carrying a refugee card. However, the refugees had scars from tribal markings rather
than the rebels and calloused hands from farming not carrying a gun. These false identifications were
used to then detain refugees for hours and days for no other reason than being ‘a rebel’ based upon
being Sierra Leonean.
6. Fourth, the speech instigated widespread rape of Sierra Leonean women in Guinea. Furthermore,
Guinean soldiers subjected men and women to humiliating strip searches. These searches were
conducted sometimes several times a day and in front of large groups of people and on-looking
soldiers.
7. Finally, Sierra Leonean refugees were forced to decide whether they were to be harassed, tortured
and die in Guinea, or return to Sierra Leone in the midst of civil war where they would face an equally
harsh fate. Thousands chose to flee back to their native Sierra Leone in response to the Guinean
mistreatment. Furthermore, Guinean soldiers collected refugees, bused them to Conakry seaport, and
physically put them on the ferry forcing their return to Sierra Leone. The Guinean government was
therefore not providing refuge and protection required by law, reported the Complainant.
Complaint
8. The Complainant alleges that Articles 2, 4, 5, 12(5) and 14 of the African Charter have been
violated.
Procedure
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9. The communication dated 17 April 2002, was submitted by the Institute for Human Rights and
Development in Africa on behalf of the Sierra Leonean refugees.
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10. On 18 April 2002, a letter was sent to acknowledge receipt and inform the Complainant that the
communication would be scheduled for consideration at its 31st Session.
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11. At the 31st Ordinary Session held from 2 to 16 May 2002 in Pretoria, South Africa, the
[African] Commission decided to be seized of the case and requested the parties to submit their
observations on the admissibility of the case.
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12. On 29 May 2002, the Secretariat of the African Commission informed the parties of the decision
of the African Commission.
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13. On 24 June 2002, the Complainant forwarded to the Secretariat of the African Commission its
written submission on the admissibility of the case, a copy was sent to the Respondent State by post
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on 16 August 2002.
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14. By letters dated 28 November 2002, 17 January 2003 and 20 March 2003, the Secretariat
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wrote to the government requesting it to react to this complaint. Up to the holding of the 33 Ordinary
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session in Niamey, Niger, from 15 to 29 May 2003, the Secretariat had not received any feedback
from the Respondent State.
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15. At the 33 Ordinary Session the African Commission declared this communication admissible,
and the parties were requested to forward their written submission on the merits.
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16. On 18 June 2003, the Secretariat informed the parties of the above decision and requested
them to transmit their brief on the merits to the Secretariat within a period of [three] (3) months, the
Note Verbal[e] to the Respondent State was hand delivered.
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17. On 29 August 2003, the Complainant forwarded its written submission on the merits of the case.
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On 22 September 2003, the Secretariat of the African Commission forwarded the written submission
from the Complainant to the Respondent State.
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18. On 9 October 2003, the Secretariat of the African Commission received a Note Verbale from the
Respondent State stating that they had not received the written submission from the Complainant.
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19. By Note Verbale dated 14 October 2003, the Secretariat of the African Commission forwarded
once again the written submission from the Complainant to the Respondent State by DHL.
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20. During its 34 Ordinary Session held in Banjul, The Gambia from the 6 to 20 November 2003,
the African Commission heard the oral presentations on admissibility of the parties concerned and
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decided to postpone consideration on the merits of the case to its 35 Ordinary Session. By Note
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Verbale dated 4 December 2003, and by letter bearing the same date both parties were accordingly
informed of the Commission’s decision.
21. The [African] Commission instructed the Secretariat to have the comments of the Complainant
translated into French and have the translation sent to the Respondent State to enable it submit its
written comments on the merits of the communication.
22. These submissions on the merits of the case submitted by the Complainant were translated into
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French and sent to the Respondent State by Note Verbale on the 11 December 2003. The
Respondent State was also informed that the communication would be considered on the merits at the
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[African] Commission’s 35 Ordinary Session.
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23. By Note Verbale dated 26 December 2003, the Secretariat received an acknowledgement from
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the Respondent State to its Note Verbale of 11 December 2003 noting that the Respondent State will
forward its submission on admissibility within three months.
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24. By Note Verbale dated 9 March 2004 the Secretariat reminded the Respondent State to forward
its submission on admissibility noting further that the communication will be considered at the
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35 Ordinary Session to be held in Dakar, Senegal from 3 to 17 May, 2004.
25. The Respondent State sent its reaction as to the merits of the communication to the Secretariat
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of the [African] Commission on the 5 April 2004.
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26. At the 35 Ordinary session, the Respondent State was not represented due to the change of the
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venue. At the 35 Ordinary Session, the [African] Commission heard oral submissions from [the]
complainant and testimonies from witnesses on the merits of the communication.
27. By Note Verbale dated 18 June 2004 the Secretariat of the African Commission informed the
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Responding State of its decision taken at the 35 Ordinary Session and by letter of the same date
informed the Complainant accordingly.
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28. At its 36 Ordinary Session held from 23 November to 7 December 2004 in Dakar, Senegal,
the African Commission considered this communication and decided to deliver its decision on the
merits.
Law
Admissibility
29. The admissibility of communications brought pursuant to Article 55 of the African Charter is
governed by the condition stipulated in Article 56 of the [African] Charter. This Article lays down seven
(7) conditions for admissibility.
30. The African Commission requires that all these conditions be fulfilled for a communication to be
declared admissible. Regarding the present communication, the two parties do not dispute that Article
56 (1, 2, 3, 4, 6 and 7 have been fulfilled, and the only article that is in dispute is Article 56.5 of the
African Charter.
31. Article 56.5 requires the exhaustion of local remedies as a condition of the presentation of a
complaint before the [African] Commission is premised on the principle that the Respondent State
must first have an opportunity to redress by its own means within the framework of its own domestic
legal system, the wrong alleged to have been done to the individual.
32. Concerning the matter of exhausting local remedies, a principle endorsed by the African Charter
as well as customary international law, the Complainant argues that any attempt by Sierra Leonean
refugees to seek local remedies would be futile for (3) three reasons:
33. First, the persistent threat of further persecution from state officials has fostered an ongoing
situation in which refugees are in constant danger of reprisals and punishment. When the authorities
tasked with providing protection are the same individuals persecuting victims an atmosphere in which
domestic remedies are available is compromised. Furthermore, according to the precedent set by the
African Commission in communication 147/95 and 149/96 Sir Dawda K. Jawara/The Gambia), the
need to exhaust domestic remedies is not necessarily required if the Complainant is in a lifethreatening situation that makes domestic remedies unavailable.
34. Second, the impractical number of potential plaintiffs makes it difficult for domestic courts to
provide an effective avenue of recourse. In September of 2000, Guinea hosted nearly 300,000
refugees from Sierra Leone. Given the mass scale of crimes committed against Sierra Leonean
refugees, 5,000 detentions, mob violence by Guinean security forces, widespread looting, the
domestic courts would be severely overburdened if even a slight majority of victims chose to pursue
legal redress in Guinea. Consequently, the requirement to exhaust domestic remedies is impractical.
35. Finally, exhausting local remedies would require Sierra Leonean victims to return to Guinea, the
country in which they suffered persecution, a situation that is both impractical and unadvisable.
According to precedent set by the [African] Commission in communication 71/92 Rencontre africaine
pour la défense des droits de l’Homme/Zambia, victims of persecution are not necessarily required to
return to the place where they suffered persecution to exhaust local remedies.
36. In this present case, Sierra Leonean refugees [were] forced to flee Guinea after suffering
harassment, eviction, looting, extortion, arbitrary arrests, unjustified detentions, beatings and rapes.
Would it be required to return to the same country in which they suffered persecution? Consequently,
the requirement to exhaust local remedies is inapplicable.
For these reasons, the communication is declared admissible.
Merits
37. In interpreting and applying the African Charter, the African Commission relies on its
jurisprudence and, as provided byArticles 60 and 61 of the African Charter, on appropriate and
relevant international and regional human rights instruments, principles and standards.
38. The African Commission is therefore amenable to legal arguments that are supported by
appropriate and relevant international and regional human rights principles, norms and standards.
39. The [Complainants] have enclosed several affidavits from Sierra Leonean refugees who suffered
widespread human rights abuses including harassment, evictions, looting, extortion, arbitrary arrests,
beatings, rapes and killings while seeking refuge in the Republic of Guinea.
40. These accounts are based on interviews obtained from collaboration between the Institute for
Human Rights and Development in African and Campaign for Good Governance, a Sierra Leonean
NGO. Lawyers from both organisations interviewed and recorded statements from refugees who had
returned to Sierra Leone from Guinea. For the most part, the depiction of events is substantiated by
reports from Human Rights Watch and Amnesty International who have documented the situation of
Sierra Leonean refugees in Guinea during the period in question.
41. The Republic of Guinea has ratified several regional and international human rights instruments
which include the African Charter, the OAU Convention [Governing] Specific Aspects of the Refugee
Problem in Africa, the International Covenant on Civil and Political Rights, the UN Convention against
Torture, and the 1951 UN Convention on the Status of Refugees, together with its 1967 Optional
Protocol.
42. While the efforts of the Guinean authorities to host refugees are commendable, the allegations
that the government instigated and directly discriminated against Sierra Leonean refugees present a
picture of serious human rights abuses which contravene the African Charter and the other
international human rights instruments to which Guinea is a party.
43. The statements made under oath by several refugees indicate that their refugee camps were
direct targets and taken together with accounts of numerous other abuses, constitute tangible
evidence that the Sierra Leonean refugees in this situation had been targeted on the basis of their
nationality and had been forced to return to Sierra Leone where their lives and liberty were under
threat from the on-going war.
44. In view of the circumstances, the Complainant alleges that the situation which prevailed in
Guinea in September 2000 manifestly violates Article 12.5 of the African Charter which sets forth that:
“The mass expulsion of strangers is prohibited. Mass expulsion is that which targets national, racial,
ethnic or religious groups as a whole”.
45. Among the Articles and other legal instruments to which the Respondent State is a party and by
which it is bound to protect all persons against discrimination can be noted: AU Convention Governing
Specific Aspects of Refugee Problems in Africa, Article 4 of the OAU Convention [Governing] the
Specific Aspects of Refugees, Article 26 of the International Covenant on Civil and Political
Rights and Article 3 of the 1951 United Nations Convention on the Status of Refugees.
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46. The Complainant alleges that in his speech of the 9 September 2000, delivered on radio in
[the] Susu language, President Conté incited soldiers and civilians to engage in large scale
discriminatory acts against Sierra Leonean refugees, the consequences of which had been that these
persons were the direct victims of harassment, deportations, looting, stealing, beatings, rapes,
arbitrary arrests and assassinations. It is further alleged that the President made no effort to
distinguish between refugees and rebels and that the Government is therefore directly responsible for
the violation of this fundamental precept of international law: Non-discrimination.
47. The Complainant also alleges that the Respondent State violated the principle of nonrefoulement under which no person should be returned by force to his home country where his liberty
and life would be under threat.
48. The Complainants contend [sic] that President Conté’s speech not only made thousands of Sierra
Leonean refugees flee Guinea and return to the dangers posed by the civil war, but it also clearly
authorised the return by force of Sierra Leonean refugees. Thus, the voluntary return of refugees to
Sierra Leone under these circumstances cannot be considered as voluntary but rather as a dangerous
option available for the refugees.
49. The Respondent State alleges that on the 1st September 2000, the Republic of Guinea was
victim of armed aggression perpetrated by elements from Liberia and Sierra Leone. These surprise
attacks which were carried out simultaneously at its South and South-Eastern borders resulted in the
fleeing en masse, of the populations from these zones.
50. Matching reports which came from all fronts to the Respondent State denounced persons who
had lived for a long time in Guinea as refugees, and who had turned out to be, where they did not
figure among those who had attacked Guinea, at least as accomplices of the attackers.
51. The President of the Republic, by virtue of the powers granted him under the Constitution,
jumped to it by taking the measures necessary for safeguarding the nation’s territorial integrity. In the
process he recommended that all refugees be quartered and that Guineans scatter in all districts in
order to unmask the attackers who had infiltrated the populations.
52. The Respondent State emphasises that such measures are in conformity with the provisions
of Article 9 of the 1951 United Nations Convention on the Status of Refugees. on refugees [sic] and
Article 41 of the Laws of Guinea which provides that: “the President of the Republic is the
guarantor/custodian of the independence of the nation and of territorial integrity. He is responsible for
national defence…”
53. The Respondent State intimates that for the majority of the refugees the statement by the Head
of State had been beneficial since the refugees had been registered, given supplies and placed in
secured areas.
54. The State underscored the fact that at the time of the events there were not only Sierra Leonean
refugees in Guinea but also Liberians and Guinea Bissau nationals. Guinea therefore had no interest
in targeting Sierra Leonean refugees since it was public knowledge that all the attacks against the
country had been directed from Liberia.
55. The Respondent State points out that there is no violation of the right to non-discrimination, since
the speech referred to never mentioned specifically Sierra Leonean refugees. The Respondent State
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recalled that during the 34 Ordinary Session the Complainant had been requested to produce a
transcript of the entire statement, which had not been done, whereas it is the responsibility of the
Complainant to provide evidence.
56. The Complainant alleges that almost immediately after the broadcast of President Conté’s
speech, the Guinean Authorities and civilians started to harass the Sierra Leonean refugees and to
carry out large scale looting, expulsions and robbery of assets.
57. The Complainant contends that the rapes and physical searches carried out by the Guinean
authorities to establish a kind of discrimination against Sierra Leonean refugees constitute some form
of inhuman treatment, thereby violating the dignity of the refugees.
58. The Complainant alleges that the President’s speech had given rise to widespread sexual
violence largely against the Sierra Leonean women in Guinea with the Guinean soldiers using rape as
a weapon to discriminate against the refugees and to punish them for being so-called rebels. The
communication contains detailed reports of the raping of women of various ages in the prisons, in
houses, control posts and refugee camps.
59. The Complainant contends that the violence described in the statements made under oath was
undeniably coercive, especially since the soldiers and the civilians used arms to intimidate and
threaten the women before and during the forced sexual relations.
60. The Complainant reports large scale acts of violence carried out by the soldiers, police and
Guinean civilian protection groups against the thousands of Sierra Leonean refugees in the camps
and in Conakry, the capital. Different cases are mentioned, namely S. B. who is said to have been
seriously injured, his hip dislocated and his knees broken with a gun in the Gueckedou Camp. S. Y.
talks about soldiers who had shot her in the leg; she reports having been witness to a scene where
soldiers were cutting off the ears of Sierra Leoneans with bayonets. L. C. recounts that Guinean
soldiers had been shooting at random at the Sierra Leone Embassy on a group of Sierra Leoneans
who had been waiting to be repatriated and that a large number of these refugees had been killed; he
mentioned having also been witness at a scene where soldiers in trucks were shooting at Sierra
Leoneans who were boarding the ferry to be repatriated: several of them fell into the water and were
drowned.
61. The Respondent State, in a critical appraisal of these testimonies as reported, not only made
comments but also raised some questions. With regard to isolated cases like those of S. B., M. F., and
S. Y., the issues alluded to remain to be proved, declared the Respondent State, since they constitute
a simple gathering of evidence. Concerning S. Y.’s testimony, who contends that she saw Guinean
soldiers cutting off the ears of Sierra Leoneans with bayonets, it has to be pointed out that if such
practices have been noted in certain countries, they do not figure among the habits of the Guinean
Army.
62. The Complainants allege that the Guinean soldiers also subjected the Sierra Leonean men and
women to humiliating physical searches. These searches were frequently carried out, sometimes in
the presence of a group of soldiers and curious onlookers, which constituted a serious insult to their
dignity.
63. The Respondent State disputes the testimony of L. C. who recounts that in front of the Sierra
Leone Embassy building Guinean soldiers were shooting at random at a group of Sierra Leoneans
who were waiting to be repatriated.
64. The Respondent State recalls that the Republic of Guinea and the Republic of Sierra Leone have
always enjoyed relations of fraternity and good neighbourliness. This is evidenced by the fact that the
Government of Sierra Leone has never complained to the Government of Guinea about any such
situation. To say that Sierra Leonean refugees have been shot at by Guinean soldiers is more fiction
than reality.
65. Considering all the accusations thus described by the Complainant, the Respondent State
wonders if it is only Sierra Leonean refugees who live on Guinean soil. The Respondent State alleges
that some hundreds of thousands of Liberian refugees also live in Guinea and enjoy the same
privileges and protection as do the Sierra Leoneans. It requested the Complainant to provide evidence
with regard to the number of persons killed or injured and to indicate where or to which hospital they
had been taken during the so called shooting incident by the Guinean soldiers of Sierra Leonean
refugees.
66. The Respondent State recognises that if these testimonies as reported by the Complainant are
proved they can only give rise to emotion and reprobation. But it insists that evidence must be
produced and it is the responsibility of the Complainant to produce all the required evidence on the
cases reported. The Respondent State points out that if these accounts have a basis the necessary
investigations will be carried out and those responsible will be punished for their crimes.
67. The African Commission is aware that African countries generally and the Republic of Guinea in
particular, face a lot of challenges when it comes to hosting refugees from neighbouring war-torn
countries. In such circumstances some of these countries often resort to extreme measures to protect
their citizens. However, such measures should not be taken to the detriment of the enjoyment of
human rights.
68. When countries ratify or sign international instruments, they do so willingly and in total
cognisance of their obligation to apply the provisions of these instruments. Consequently, the Republic
of Guinea has assumed the obligation of protecting human rights, notably the rights of all those
refugees who seek protection in Guinea.
69. In communication 71/92 Rencontre africaine pour la défense des droits de l’Homme/Zambia, the
African Commission pointed out that “those who drafted the [African] Charter considered large scale
expulsion as a special threat to human rights”. In consequence, the action of a State targeting specific
national, racial, ethnic or religious groups is generally qualified as discriminatory in this sense as it has
no legal basis.
70. The African Commission notes that Guinea is host to the second largest refugee population in
Africa with just under half a million refugees from neighbouring Sierra Leone and Liberia. It is in
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recognition of this role that Guinea was selected to host the 30 Anniversary celebrations of the 1969
OAU Convention [Governing] Specific Aspects of the Refugee Problem in Africa[/i], which was held in
Conakry, Guinea in March 2000.
71. The African Commission appreciates the legitimate concern of the Guinean Government in view
of the threats to its national security posed by the attacks from Sierra Leone and Liberia with a flow of
rebels and arms across the borders.
72. As such, the Government of Guinea is entitled to prosecute persons that they believe pose a
security threat to the State. However, the massive violations of the human rights of refugees as are
outlined in this communication constitute a flagrant violation of the provisions of the African Charter.
73. Although the African Commission was not provided with a transcript of the speech of the
President, submissions before the Commission led it to believe that the evidence and testimonies of
eye witnesses reveal that these events took place immediately after the speech of the President of the
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Republic of Guinea on 9 September 2000.
74. The African Commission finds that the situation prevailing in Guinea during the period under
consideration led to certain human rights violations.
Holding
For the above reasons, the African Commission,
Finds the Republic of Guinea in violation of Articles 2, 4, 5, 12(5) and 14 of the African Charter and AU
Convention Governing Specific Aspects of Refugee Problems in Africa, Article 4 of the 1969 OAU
Convention Governing Specific Aspects of the Refugee Problem in Africa.
Recommends that a Joint Commission of the Sierra Leonean and the Guinea Governments be
established to assess the losses by various victims with a view to compensate the victims.
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Adopted at the 36 Ordinary Session of the African Commission in Dakar, Senegal, 2004.