Article 12(5) of the African Charter on Human and Peoples’ Rights bans mass expulsion of non-nationals, aimed at national, racial, ethnic or religious groups. The unusual inclusion of this prohibition within the article concerned with free movement was due to the recognition by the drafters of the Charter (adopted in 1981) of the history of such mass expulsions in Africa during the 1960s and 1970s.
Article 12 guarantees every person the right to enter and remain in his or her country of citizenship. A citizen may not be expelled from his or her own country (with the limited exception of extradition to face criminal charges in another country). Although international law does allow states to deport or expel non-nationals, their discretion to do so is not absolute: Article 12(4) of the African Charter requires that that a non-national may only be expelled from a country by virtue of a decision taken in accordance with the law. The African Commission on Human and Peoples’ Rights has held in several cases that a person whom the state is seeking to deport has the right to challenge both the decision to deport him or her, and the assertion that the person is in fact not a citizen.
Expulsion: An act by an authority of the State with the intention and with the effect of securing the removal of a person or persons (non-nationals or stateless persons) against his or her will from the territory of that State.
Deportation: The act of a State in the exercise of its sovereignty in removing a non-national from its territory to his or her country of origin or third state after refusal of admission or termination of permission to remain.