Amare and Another v Republic of Mozambique and Another (Application 5 of 2011) [2011] AfCHPR 39 (16 June 2011)



UNIÃO AFRICANA

# AFRICAN COURT OR HUMAN AND PROPLES' RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES

P. O Box 6274 Arusha, Tanzania - Telephone: - 255-27-205-0111 Fax - 255-27-205-0112

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#### IN THE MATTER OF

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### DANIEL AMARE AND MULUGETA AMARE

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### REPUBLIC OF MOZAMBIQUE AND MOZAMBIQUE AIRLINES

APPLICATION No. 005/2011

DECISION

The Court composed of: Gerard NIYUNGEKO. President. Sophia A. B AKUFFO, Vice President; Jean MUTSINZI, Bernard M. NGOEPE, Modibo T. GUINDO, Fatsah 0\.)GUE. RGOUZ, Joseph N. MULENGA. AugusUno S. L RAM'ADHANI, Duncan TAMBALA. Elsie N. THOMPSON and Sylvain ORE - Judges. and Robert ENO· Acting Registrar,

In the matter of:

## DANIEL AM. ARE A. ND MULUGETA AMARE

*v.*

## REPUBLIC OF MOZAMBIQUE AND MOZAMBIQUE AJRUNES

Having regard to the above stated appllcat1on and having deliberated thereon, the Court decides as follows:

1. The Ap,pllcanls are two individuals whose application dated 21•' January 2011, was rece1ved by the Court Registry on 16'" March 2011 and was registered on 30"' March 2011. On lhe latter date, the Registrar wrote to the Applicants acknowledging receipt of the app.licatlon and observing that the application did not indicate exhaustion of local remedies.

2. Pursuant to . Rule 35 {1) of the Rules of Court, the Registrar transmitted the appltC8tion to the Judges on 8"' April 2011, and thereafter, having regard to Article 34 (6) of the Protocol to the African Charter on Human and Peoples' Rights on the establishment of an African Court on Human and Peoples' Rights ('the Protocol'). the Court, on 10"' and 16"' June 201 1. deliberated on its competence to hear the appllcat1on,

## The Facts

3. In their application, the Applicants allege as follows, namely that

- In or about November 2008, hav1ng procured the requtstte passports, visas and air tickets, they set out to travel to Maputo. Mozambique via Natrobl, Kenya

- At Nairobi, they transited from the Ethiopian Airlines to a Mozambique Airline flight to Maputo.

- However, the fltght did not take them to Maputo but landed 1n Pemba, Mozambique, Where they were stranded for a period or twenty six (26) days.

4 The Applicants further allege that

- Ounng that penod, they were subjected by the Me>zambtque lmm~gr llon Offiaals to drverse hardships, Including demands lor blibes, which they res1sted confiscating of their passports and visas robbery of \$1000 from them, torture. and deportallon to Dar-es-Salaam, Tanzama.

- Upon intervention of the Tanzanian Immigration Officials, the Applicants were returned to Pemba but thereafter the Mozambique Immigration Officials repatriated them back to Eth1opia.

5 The Applicants contend that the acts of lhe Mozambique Airline and Immigration Officials are illegal under International conventions and accordtngly, they ·request the Afncan Union to take necessary measures to the Mozamboque Alrhne and lmmtgrabon OffiCials to refund [them] the robbed money."

6 As the application Is made by 1nd1vlduals. the Court suo motto, 1n a letter dated 10"' June 2011. asked the Legal Counsel of the Afncan UniOn Commiss1on whether the Republic of Mozambique had deposited the declaration accepting the Court's competence to hear cases brought under Article 5 (3) e>f the Protocol. By a Memo dated 13"' June 2011, the Legal Counsel of the African Union CommiSSIOn Informed the Court that the

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Republic of Mozambique had "not yet deposited the declaration under Article 34 (6) of the Protocol "

#### Applicable Lew

7 Attlcle 5 (3) of the Protocol provides that the Court may entitle individuals to institute cases d1reclly before II in aCQOfdance with Article 34 (6) of the Protocol. wtuch Artlde 1n tum provides, *mter at/a,* that "The Court shall not receiVe cases under Article 5 (3) 1nvolv1ng a State Party which has not made a dectarat1on accepting the competence of the Court to receive such cases•

6. As this 1S an appllcat1on brought by Individuals, and the Republic of Mozambique has not deposHed the declaration under Article 34 (6) of the Protocol. the Court concludes that manifestly, it does not have the jurisdid!on to hear the appl1cabon

9. Artlde 6 (3) of the Protocol provides that the Court may cons1der cases or transfer them to the Afncan Commission on Human and Peoples R1ghts The Court observes that in the light of the allegations made In the application, this would be an appropriate matter to transfer to the Commlssion

#### 10 For these reasons

THE COURT unammouSly:

1) Finds that, 1n tenns of Article 34 (6) of the Protocol, it has no jurisdiction to hear the case instituted by Daniel Amare and Mulugeta Amare against the Republic of Mozambique and the Mozambique Air1lnes.

2) Decides, in terms of Article 5 (3) of the Protocol, that the application be and is hereby transferred to the African Commission. on Human and Peoples' Rights

Done at Arusha, the susteenth day of June in the year Two Thousand and Eleven, in English and French, the English text being authoritative.

Signed

Gerard NIYUNGEKO, President

Robert ENO, Acting Registrar