Conaïde Togla Latondji Akouedenoudje v. Benin (Merits) App No. 024/2020
Published: 13/Jun/2023
Source: African Court of Human and Peoples' Rights
Section VII. B. Alleged violation of the right to nationality
72. The Applicant submits that the right to nationality must be assessed in relation to the effective enjoyment of all the benefits thereof, including the right to be issued all civil and administrative documents.
73. He considers that the contested Order restricts the right to the effective enjoyment of nationality insofar as some of these documents serve as proof of nationality, so that it violates Article 15 of the UDHR, which protects the right to nationality.
74. According to the Applicant, the existence of a right is assessed in relation to the benefit that accrues to its holder. He submits that “the right to nationality cannot be declared effective based exclusively on absence of abuse, restriction or deprivation”.
75. In reply, the Respondent State contends that nationality is the legal affiliation of a person to the State and that the law of the Respondent State spells out the modalities of its attribution, loss and forfeiture.
76. The Respondent State affirms that the contested Order does not relate to nationality and does not restrict proof of nationality. It concludes that there is no impediment to the right to nationality.
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77. The Court notes that Article 15 of the UDHR provides:
“1. Every individual has the right to a nationality…
2. No one shall be arbitrarily deprived of his nationality, nor denied the right to change his nationality…”.
78. The Court reiterates, as stated in Anudo Ochieng Anudo v. Tanzania and Robert John Penessis v. Tanzania, that the right to nationality under the UDHR applies as a binding norm to the extent that the instrument has acquired the status of a customary international law.
79. The Court also indicated in Robert John Penessis v. Tanzania that although the Charter does not contain an express provision on the right to nationality, Article 5 thereof provides that “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status …”. In this regard, the Court found that the term “legal status” in this article includes the right to nationality.
80. The Court recalls that the granting of nationality is a matter of State sovereignty and therefore each State determines the requirements for the granting, enjoyment and withdrawal of nationality in line with relevant international law. The Court also held that every individual has the right to the recognition of their legal status everywhere, so that nationality not only defines the identity of each individual but also grants them the protection of the state and confers on them many civil and political rights.
81. In this regard, the Court considers that the violation of the right to nationality does not only mean, stricto sensu, the withdrawal or forfeiture of nationality through an official act. The Court considers that this violation may also entail arbitrary refusal to issue documents that serve as proof of nationality or the arbitrary cancellation thereof.
82. The Court notes that the ability to produce or obtain proof of one’s nationality can be essential to being, and continuing to be, considered a national of the State concerned. Moreover, in some national contexts, the inability to access certain identity documents that the State issues exclusively to its nationals may mean that the person is not considered a national and therefore not entitled to the rights and obligations attached to nationality. This may lead to situations of statelessness of the person concerned. The Court has already ruled that “Everyone shall have the right to have his legal status recognized everywhere” and that “international law requires States to take all necessary measures to avoid situations of statelessness”.
83. The Court therefore agrees with the African Commission on Human and Peoples’ Rights that “African States should ensure equal access to documents used to prove nationality, particularly passports, identity documents and birth and marriage certificates …”.
84. The Court therefore considers that the question of proof of nationality is a corollary of the right to nationality and cannot be discounted, so that the citizen cannot be arbitrarily deprived of it as laid down in Article 15 of the UDHR and Article 5 of the Charter.
85. Thus, the Court considers that in order to avoid arbitrariness, such measures depriving individuals of the enjoyment of the right to nationality must have a clear legal basis, must serve a legitimate purpose in line with international law, must be proportionate to the interest they seek to protect, and there must be procedural safeguards entitling the person concerned to defend his case before an independent body.
86. The Court notes in the instant case that, although the Respondent State’s legislation provides that issues of nationality, personal status,30 proof of nationality and its effects31 are matters of law, the refusal to issue a certificate of nationality in the instant case resulted from an inter-ministerial Order intervening in an area that is the preserve of the law. Furthermore, the Court has established in the present judgment that the objective of the contested Order, namely, to ensure that persons claimed by the Respondent State to be wanted do not abscond, is inconsistent with international law insofar as it violates the right to the presumption of innocence.
87. The Court further considers that the measure prohibiting the issuance of certificates of nationality or cancelling32 the same as laid out in the Order of 22 July 2019 are of a nature to negate the legal status of wanted persons and to lead to statelessness, which is clearly disproportionate with the purpose of the law.
88. The Court considers that in these circumstances, by prohibiting the establishment and issuance of the certificate of nationality to persons simply because they are wanted by the law, or by declaring such a certificate null and void, the Order of 22 July 2019 arbitrarily deprives them of the enjoyment of nationality.
89. The Court therefore finds that by virtue of the Order of 22 July 2019, the Respondent State violated the right to nationality under Article 5 of the Charter and Article 15 of the UDHR.
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English: https://www.african-court.org/cpmt/storage/app/uploads/public/648/874/857/648874857a514855392044.pdf
French: https://www.african-court.org/cpmt/storage/app/uploads/public/648/87f/b04/64887fb048dbd558181749.pdf