The African Court on Human and Peoples’ Rights has ruled that the Rwandan government’s decision to withdraw passports of its nationals including dissident Gen Kayumba Nyamwasa was a violation of their rights.
Kennedy Alfred Nurudiin Gihana, Kayumba Nyamwasa Bamporiki Abdallah, Frank Ntwali, Safari Stanley, Dr. Etienne Mutabazi and Epimaque Ntamushobora, all of Rwandese origin, alleged that Rwanda had since 14 May 2012, invalidated their passports without officially notifying them or giving them an opportunity to appeal the decision of the said invalidation.
The Rwandans, who at the time of filing of the Application, were living in South Africa, alleged that the invalidation of their passports was an arbitrary deprivation of their nationality.
They further claimed that it rendered them stateless and significantly impacted on the enjoyment of a number of their universally accepted, fundamental human rights, specifically, the rights to: participation in political life, freedom of movement, citizenship, liberty, family life and work, protected under Articles 6, 12, 13 and 18 of the African Charter on Human and Peoples’ Rights (the Charter).
The Rwandans, some of whom belong to the opposition Rwanda National Congress (RNC), prayed the Court to order reparations, particularly the reinstatement of their passports and compensation.
The Court noted that the Respondent State (Rwanda) had “not provided proof that its action in this regard was based on the Applicants’ use of the passports in an inappropriate manner, this being the only circumstance set out in Article 34 of the Law on Immigration and Emigration in Rwanda warranting such revocation.”
The Court further noted that Rwanda “failed to demonstrate that the revocation of the Applicants’ passports was for the purpose of the protection of national security, law and order, public health or morality as provided in Article 12(2) of the Charter and Article 12(2) and (3) of the International Covenant on Civil and Political Rights to which the Respondent State is a Party.”
Rwanda had objected to the personal jurisdiction of the Court.
Rwanda argued that Kayumba Nyamwasa and Safari Stanley lacked standing before the Court because they were convicted in Rwanda for genocide-related crimes and crimes of threatening state security, respectively, and are fugitives of justice as they absconded from Rwanda after their convictions.
Rwanda further stated that it did not envisage that persons convicted of serious crimes would be allowed to file matters before the Court.
However, the Court held that, Article 5(3) of the Protocol read together with Article 34(6) thereof provides for access to the Court for individuals regardless of their status and the nature of the crimes they are alleged to have committed or to have been convicted of.
Furthermore, court observed, Rwanda deposited its Declaration on 22 January 2013 without reservations.
The Court found therefore that it has jurisdiction to consider the claims Nyamwasa’s group before dismissing the objection.
The ruling is interesting considering that Nyamwasa is being accused of planning to remove President Paul Kagame from power by arms, a claim he denies.
The judgement will also be seen as a diplomatic success for Nyamwasa and other dissidents who have since vowed to challenge President Kagame’s hold onto power.
Court said for people who are living outside their country, the passport is their “main identification document and not having a valid passport exposes them to challenging situations, such as difficulty in securing employment, renewing their residence permit, accessing education and health services in the country they are residing in and restrictions in travel to their own country and other countries. In such circumstances, the revocation of a passport is not tantamount to a revocation of nationality or their citizenship, rather it impedes the full and effective enjoyment of their civic and citizenship rights as Rwandan nationals.”
However, the Nyamwasa team lost on several counts.
For example, the Court found that the claim that the revocation of the Applicants’ passports is tantamount to the arbitrary deprivation of their nationality and citizenship had not been established and therefore dismissed it.
The Court said applicants were unable to demonstrate how Rwanda’s arbitrary revocation of their passports resulted in violation of right to liberty, family life and to work.
The African Court on Human and Peoples’ Rights is a continental court established by African countries to ensure the protection of human and peoples’ rights in Africa.
The Court has jurisdiction over all cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and Peoples’ Rights and any other relevant human rights instrument ratified by the States concerned.
The Court found that Rwanda had, by depriving its nationals of their travel documents, consequently prevented them from returning to their country and traveling to other countries.
The Court therefore found that Rwanda had violated the Applicants’ right to “freedom of movement” as provided under Article 12(2) of the Charter, adding, the arbitrary revocation of the passports prevented them from returning home thus “severely restricting their right to freely participate” in the government of their country.
The Court did not award compensation for material prejudice as the Applicants had not proved this claim.
On moral prejudice, there is a presumption that human rights violations necessarily cause such prejudice and this need not be proved.
The Court found that that the arbitrary revocation of the passports since 14 May 2012 meant that they had been unable to leave their country of residence and to travel back to their country of origin and to other countries.
This has adversely affected their social, physical and political connections with their country of origin, causing them “emotional anguish and despair” and occasioning them “moral prejudice” which entitled them to reparations.
The Court awarded an amount of (RWF 465,000) to each of the exiled Rwandan nationals as “fair compensation for the moral prejudice” caused.
Rwanda is required to pay the said amount, free from tax, within six months of the notification of this Judgment, failing which it will be required to pay interest on arrears 7 calculated on the basis of the applicable rate of the Central Bank of Rwanda throughout the period of delayed payment, until the amount is fully paid.
On non-pecuniary reparations, the Court found that the reinstatement of the Applicants’ passports is “an appropriate measure” for Rwanda to take in order to make restitution to them for the violations found.
The Court consequently ordered Rwanda to “reinstate” the Applicants’ passports within six months from the date of notification of the Judgment and also submit a report on the status of implementation of the ruling within six months from the date of notification.
Rwanda is yet to respond to the ruling.
In 2016, Rwanda withdrew its declaration under Article 34 (6) of the Protocol that authorizes individuals and non-governmental organisations to file applications directly to the court.
RNC said in a statement on Thursday night that the judgement “has vindicated those aggrieved – justice has prevailed…”
The Arusha-based Court, made of 11 judges from different jurisdictions, ordered that each Party should bear its costs.