Case note: Kennedy Gihana & Others v Republic of Rwanda, African Court on Human and Peoples’ Rights Application No 017/2015
Source: Statelessness and Citizenship Review
By Tshegofatso Mothapo, Statelessness and Citizenship Review, 2(2), 331–337.
This case note discusses Kennedy Gihana v Republic of Rwanda, Application No 017/2015 (‘Kennedy’). The case addressed whether the invalidation of the appellants’ passports was an arbitrary deprivation of nationality, rendering them stateless and significantly impacting their enjoyment of a significant number of fundamental rights.
The right to a nationality has obtained noteworthy consideration within the African human rights system. In particular, three court rulings of the African Court on Human and Peoples’ Rights (‘AfCHPR’) in 2018–19 have clarified the understanding of the right to nationality and the prohibition of its arbitrary withdrawal in the African regional context.
Two AfCHPR cases brought against Tanzania in 2018 and 2019 referred directly to art 15 of the Universal Declaration of Human Rights (‘UDHR’), which prohibits arbitrary deprivation of nationality. In doing so, the Court asserted that the prohibition is customary international law, and further affirmed that the right to a nationality is implied within the concept of ‘legal status’ in art 5 of the African Charter on Human and Peoples’ Rights (‘African Charter’).
Specifically, in 2018 the AfCHPR dealt with the case of Anudo Ochieng Anudo v United Republic of Tanzania (‘Anudo’) where it held that the revocation of Anudo Ochieng Anudo’s Tanzanian citizenship amounted to a violation of his right not to be arbitrarily deprived of a nationality under art 15(2) of the UDHR. The Anudo judgment was followed by Robert John Penessis v United Republic of Tanzania (‘Penessis’) in 2019, where the AfCHPR ruled that the respondent state had ‘violated the applicant’s right to Tanzanian nationality as guaranteed by Article 5 of the [African Charter] and Article 15(2) of the UDHR’. In the Penessis case, the applicant had been arrested on the grounds of alleged ‘illegal entry and presence in Tanzania’.
In both the Anudo and Penessis cases, the Court established that it may be impossible for an ordinary resident to prove citizenship; the burden of proof rests on the applicant and is difficult to meet should the state question the claim. It also established the important principle that the key issue in these matters is the entitlement to citizenship, rather than the possession of the correct supporting documents. Kennedy reiterates the decisions in Anudo and Penessis; that the burden of proof regarding citizenship lies primarily with the respondent state, particularly because they have the resource pool prove citizenship where it exists.