Anudo v. United Republic of Tanzania

Court:
African Commission on Human and Peoples’ Rights
Country:
Tanzania
Status:
Active
Case Lawyer:
Deprivation of nationality without due process leads to statelessness

Anudo Ochieng Anudo was forced to live in “no-man’s land” on the border between Tanzania and Kenya, as neither country recognized him as a citizen. Previously, he lived his entire life as a citizen of Tanzania, where he was born and held a birth-certificate and a passport. When he applied for a marriage license, the authorities accused Anudo of misrepresenting his identity, confiscated his personal documentation including his passport, and expelled him from Tanzania to Kenya, where he was promptly arrested and convicted of being in the country illegally. He could not bring a challenge to the courts in Tanzania, even though it is unconstitutional to strip nationality from citizens from birth. Kenya does not recognize him as a citizen. Mr. Anudo challenged Tanzania’s actions under the African Charter on Human and Peoples’ Rights and international law, which prohibit arbitrary deprivation of nationality. On March 22, 2018, the African Court on Human and Peoples’ Rights ruled in his favor. 

Facts

Anudo was born in Tanzania in 1979 and holds a Tanzanian birth certificate and voter’s card – which was confiscated by Tanzanian authorities prior to his expulsion from the country. He states that both his mother and father are Tanzanians and were born in Tanzania. In 2006, Anudo was issued a Tanzanian passport, which was ultimately confiscated and canceled as well.

In 2012, Anudo approached authorities in Babati, Tanzania, to process his marriage application. However, the local District Commissioner launched an investigation into his citizenship instead. In 2014, the Tanzanian government sent a team of investigators to the village of Masinono, in the Mara region, where Anudo was born. The government claimed that based on the investigation it appeared that Anudo’s father was born in Kenya and migrated to Tanzania “many years ago” with his parents. The government also claimed that the woman Anudo stated was his mother denied that he was her son, which Anudo disputed in his case before the African Court, submitting testimony from his mother confirming her identity and personal history.

The Tanzanian authorities concluded from the investigation that Anudo was not a citizen and that he obtained his passport fraudulently. Anudo was subsequently arrested and detained for six days, during which he was beaten, coerced to falsely claim Kenyan nationality, and forced to sign a Prohibited Immigrant notice justifying his expulsion from Tanzania. Anudo wrote to the Tanzanian Prime Minister to appeal the cancelation of his documents and deportation to Kenya, but the actions were upheld.

Anduo was deported to Kenya, where he was arrested and convicted of being unlawfully present. Since his conviction in November 2014, he lives in a no man’s land at the Kenya-Tanzania border. He is not recognized as a citizen of Kenya or Tanzania, the only two states with which he has a possible material link. He meets the international definition of a stateless person: one who is not considered a national by any state under the operation of its law.

In May 2015, Anudo sent an email to the African Court asking them to intervene. He argued that he was expelled illegally, in inhuman, undignified and degrading conditions. He stated that his right to citizenship as guaranteed by the Tanzanian Constitution and International Law has been violated.

Open Society Justice Initiative Involvement

The Open Society Justice Initiative filed an expert opinion in the case at the request of the African Court, setting out international legal standards on arbitrary deprivation of nationality.

Arguments

The Open Society Justice Initiative considers that Mr. Anudo’s situation amounted to an arbitrary deprivation of citizenship, leading to his unlawful expulsion.

Prohibitions on Arbitrary Deprivation of Nationality and Expulsion of Nationals. Mr. Anudo was deprived of Tanzanian citizenship and expelled without judicial process, in violation of international law protecting the rights of citizenship including the Universal Declaration of Human Rights (Article 15), the International Covenant on Civil and Political Rights (Article 12(4)); prohibition on arbitrary denial of entry to own country), and the African Charter on Human and Peoples’ Rights, Articles 12(2) (the right to entry and exit from own country) and 12(4) (the prohibition of expulsion without a decision taken in accordance with law).

Duty to Avoid of Statelessness. International law strictly limits deprivation of nationality leading to statelessness, and in Mr. Anudo’s case Tanzania did not observe appropriate procedural safeguards, including access to a fair hearing before a court or independent body, access to judicial review and application of the proportionality principle.

Timeline

November 2012. Anudo applies for a marriage certificate in Babati, Tanzania.

May 2014. An investigative team is sent to Anudo’s town of birth to investigate this citizenship status. 

August 2014. Anudo is detained at the immigration office in Manyara, Tanzania, when he arrives to collect his passport.

September 2014. Tanzanian authorities deport Anudo to Kenya.

November 2014. Anudo is convicted in Kenya of unlawful presence.

February 1, 2017. Expert Opinion filed by Open Society Justice Initiative.

March 21, 2017.  Public hearing before the African Court on Human and Peoples’ Rights.

March 22, 2018. The court issues its ruling supporting Anudo's complaint.

Findings

The ACHPR decision reinforced the international legal principle that the application of law in practice—as opposed to the written law alone—dictates a person’s legal status as a citizen or a stateless person. The Court ruled that Tanzania had considered Anudo to be a national and that Anudo’s nationality had been withdrawn, bringing the action within the scope of Article 15(2) of the Universal Declaration of Human Rights. Article 15(2) prohibits the arbitrary deprivation of nationality, which, in the opinion of the AfCHPR, covers situations where states deny citizenship arbitrarily with retroactive effect.

In reaching this conclusion, the Court established that states bear the burden of proof to show that an individual is not a citizen, when it is the state itself that makes such a claim based on the integrity (or not) of its own official state-issued identity documents such as birth certificates and national identity cards. In most cases today, the burdens are reversed and those entitled to citizenship under law bear the exclusive burden of proof, often an insurmountable hurdle.

The court also ruled that Tanzanian authorities did not observe appropriate procedural safeguards prior to withdrawing Anudo’s nationality and expelling him, including access to a fair hearing before a court or independent body, access to judicial review, and application of the proportionality principle. These failures resulted in an arbitrary decision with respect to Anudo’s nationality and amount to an independent violation of his right to have his claims heard under Article 7 of the African Charter on Human and Peoples’ Rights.

The court made important rulings on Tanzania’s duty to avoid statelessness in the context of nationality determinations and the right to free movement, including the right to return to one’s own country, which is protected in Article 12 of the African Charter and Article 13 of the International Covenant on Civil and Political Rights. The court ruled that in Anudo’s case Tanzanian authorities should have taken affirmative steps to confirm that Anudo was in fact a national of Kenya prior to his  denationalization and expulsion. Because of their arbitrary nature, however, the authorities’ actions violated Article 13 irrespective of Anudo’s citizenship or statelessness according to the court.

The African Court ordered Tanzania to amend its legislation to allow for judicial process for nationality disputes and expulsion orders. This means that other states subject to the Court’s jurisdiction must also ensure that their legislation is in line with the decision. Tanzania must also take all necessary steps to restore Anudo’s rights. The court reserved its ruling on further reparations. A written judgment will be forthcoming.