The Human Rights Complexities of Migration in Africa

“Nyakabande Refugee Camp” by gsz.

Editors’ note: This post constitutes a part of a blog series on the Protection of Refugees’ and Migrants’ Rights in Africa. According to a report by the United Nations High Commissioner for Refugees, Africa is home to over 30 million internally displaced persons, refugees, and asylum seekers. This translates to the African continent being home to nearly one-third of the world’s refugee population. Over the past three years, these figures have increased, triggered by the Covid-19 pandemic, climate change, new conflicts, and ongoing human rights violations. Against this background, this series features contributions from legal experts and practitioners reflecting on the legal framework providing for the promotion and protection of the rights of migrants and refugees, and the unique problems that minorities confront in this system due to factors such as race and gender discrimination.

With fifty-four sovereign states and several contested territorial entities, migration on the African continent poses complex and dynamic challenges.

The Cairo Plan of Action (a supplement of the Cairo Declaration), adopted on 5 May 2000, focused on addressing the root causes of migration in Africa, along with combatting racism and xenophobia on the continent. It includes actions such as supporting African countries to ensure free intra-African mobility of labour and migration in the spirit of the 1991 Abuja Treaty, which established the African Economic Community.  

In this post, I reflect on the peculiarities marking the application of several human rights in migration controls on the African continent.  In particular, I consider how African countries, or at least several of them, are not only distancing themselves from the traditional Eurocentric vision of human rights but also the way in which, sometimes, they contradict regional and sub-regional treaties concerning the rights of migrants. This last tension often takes place through the policy adopted by the government (or the appropriate institutions) of an African state, although it is sometimes also revealed directly in the domestic law of a given country.

The Migration Policy Framework for Africa, adopted by the AU in 2006, emphasizes that “well-managed migration” holds benefits for both origin and destination countries. “Mismanaged migration”, on the other hand, can lead to tensions between host communities and migrants, and give rise to xenophobia, discrimination and other social pathologies. But is there a common position among the African countries as to what is intended with the expression “well-managed immigration”?

For example, Article 10(2) of the 2010 Angolan Constitution provides for the “respect [of] the different religious faiths, which shall be free to organize and exercise their activities”. Yet it is also clear that, for at least several years after the adoption of the Constitution, the Angolan government did not consider the discrimination of Muslim migrants from Guinea, Mali, Mauritania, and Senegal to be a case of “mismanaged migration”.

Similarly, in April 2013, the former Gabonese Minister of Foreign Affairs Emmanuel Issoze Ngodet declared at the UN that immigrants in Gabon should benefit from all social, economic and cultural rights, based on domestic Law No. 5/86 (18 June 1986), which concerns the admission and residence of aliens in the Republic and the domestic Labour Code (Law No. 12/2000, 12 October 2000). Yet presumably the Gabonese government would not apply the label “mismanaged migration” to the situation where, in order to exact bribes, members of the police and other security forces often detain and falsely accuse African migrants of lacking valid resident permits or identification documents (2020 Country Reports on Human Rights Practices: Gabon).

“The reality is that rights are illusory if there is no way to claim their implementation”

Migrants in Africa may face additional forms of discrimination, where their status intersects with other vulnerable categories of peoples, including women and members of the LGBTIQ communities. In this last case, it is clear that if governments, like the Tanzanian and the Ugandan, discriminate against national homosexuals, it is likely that foreign homosexuals would be similarly subject to discriminatory treatment. In Tanzania, the the Sexual Offences Special Provisions Act 1998 prohibits “Gross Indecency” (section 138A) and “Unnatural Offences” (section 154). “Unnatural Offences” are similarly mentioned in section 145 of the 1950 Ugandan Penal Code Act.   

In other circumstances, however, the human rights of migrants can be limited just because they are migrants, as I have illustrated with reference to immigrants in Gabon. Discrimination against migrants in Africa is not a recent phenomenon: in 1992, the African Commission on Human and Peoples’ Rights (ACHPR) found Zambia guilty of illegally deporting West African migrants from the country in violation of several articles of the African Charter on Human and Peoples’ Rights (Banjul Charter), including Article 2 on  the Right to Freedom from Discrimination (Rencontre africaine pour la défence des droits de l’Homme (RADDHO) v Zambia, Communication No. 71/92 at paras 26-28).  

The reality is that rights are illusory if there is no way to claim their implementation. A national legal system that can provide effective access to justice and remedies for violations of human rights is essential but, unfortunately, still lacking in many African countries.

Finally, it is important that the realisation of human rights in Africa takes local specificities into consideration, what counts the most is the dignity of the individual – another concept on which we should strive for common understanding on the African continent. Dignity demands respect for the individual just because they are a human being, regardless of their origins.