The idea of an African passport and the freedom of movement of persons in the continent: Only wishful thinking?Posted: 22 February, 2016
Author: Cristiano d’Orsi
Post-Doctoral Researcher and Lecturer, Centre for Human Rights, Faculty of Law, University of Pretoria (South Africa)
“Hail! United States of Africa-free!
Hail! Motherland most bright, divinely fair!
State in perfect sisterhood united,
Born of truth; mighty thou shalt ever be.”
This is the incipit of the poem Hail, United States of Africa, composed in 1924 by M.M. Garvey, a famous Pan-Africanist leader.
In 2002, at the launch of the African Union (AU), President T. Mbeki, its first chairman, proclaimed that: “By forming the Union, the peoples of our continent have made the unequivocal statement that Africa must unite! We as Africans have a common and a shared destiny!”
After that occasion, the concept of USAf has been highlighted in a more concrete way by other African leaders, such as A.O. Konaré in 2006, M. Gaddafi in 2009 –the first to mention the possibility to issue a unique passport for the entire continent- and, more recently, by R. Mugabe.
Against this backdrop, it would not be surprising that in the Declaration on Migration issued at the 25th Ordinary Session of the AU Assembly (Johannesburg, June 2015), and revamping a decision of the AU Executive Council of the previous year, the Heads of State and Government of the African Union committed to “[e]xpedite the operationalization of the African Passport that would, as a start facilitate free movement of persons that will be issued by Member States.” In 2014, the AU committed itself to accomplish the idea of an African citizenship and passport by 2018.
However, currently, is the right of freedom of movement of persons –linked to the idea of issuing a unique passport- attainable for the entire continent or does it represent mere wishful thinking?
Freedom of movement, intended as the right of individuals to travel within the territory of a country, to leave a country and return to it is reaffirmed in well-known international instruments, such as the 1966 International Covenant on Civil and Political Rights (ICCPR). In the African framework, this human right is consecrated in the 1981 African Charter on Human and Peoples’ Rights (African Charter).
Having a look to the sub-regional African organizations, several articles of the 2005 Southern Africa Development Community (SADC) Protocol on Facilitation of Movement of Persons prescribe for very progressive measures of integration between member states through, for instance, “travel facilities” (Article 12), an “harmonisation of current migrations practices” (Article 13) and the prescriptions of rights and obligations for a citizen of a state party who has settled in another state party (Article 20). Yet, and this is not marginal in the context of our discourse, this Protocol, to dateand according to its Article 36, has not entered into force, yet.
The Economic Community of West African States (ECOWAS) went much further on this path, having adopted a Protocol on Free Movement of Persons, Residence, and Establishment since 1979, later supplemented by the Protocol on the Implementation of the Third Phase (Right of Establishment) of the Protocol on Free Movement of Persons, the Right of Residence and Establishment, 29 May 1990. Likewise, the East African Community (EAC) dedicates an annex (Annex I) of its 2009 Protocol to the Freedom of Movement of Persons in order to implement Article 7 of the Protocol, while the Common Market for Eastern and Southern Africa (COMESA) also adopted a Protocol on the Free Movement of Persons, Labour, Services, Right to Establishment and Residence in 1998.
On the other hand, and in spite of these sub-regional initiatives, still many questions remain up in the air. First: in which measure will a common African passport will affect migration and refugee policies of national states? As a paradox, with only one passport valid for the entire continent, the phenomenon of refugees on the continent could disappear (if countries will share a common policy, renouncing to their own sovereignty on this matter), leaving increasing space to the phenomenon of internally displaced persons (IDPs). In this framework, the 2009 AU Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), should possibly be revised and implemented accordingly being aware that, with the freedom of movement of persons guaranteed in the entire continent, physical borders should fall and, thus, it would be easier for people in danger to find a safe haven.
In addition, which institution(s) will supersede to the management of the remaining refugees in Africa? And, widening our reflection, will the AU and the sub-regional organizations be able, on a continental scale, to promote democratic governance, respect for human rights, and the enforcement of a mechanism for the prevention, management and peaceful settlement of conflicts as an effective and incisive instrument to fight against the refugee and IDPs plights? Would they be able to do this when, as also recent history show, they do not seem to be able to do it not even within their respective macro-regions? As a way of example, it is sufficient to mention the case of both South Africa and Kenya which have recently adopted measures in order to privilege the security of their country favouring, in converse, an increasing insecurity for asylum-seekers and refugees on their territory.
Second: in a continent where the Gross Domestic Product (GDP) per capita for 2014, fluctuates from 32,557 USD in Equatorial Guinea and 20,032 USD in Gabon to 607 USD in Central African Republic (CAR), 801 USD in Burundi and 804 in Democratic Republic of Congo (DRC), are we sure that issuing a unique passport for the entire continent will encounter the favour of the richest countries which would probably face a massive wave of migrants arriving at their borders? On this purpose, not by chance, South African President J. Zuma expressed relief at the Gaddafi’s fall, intending that, with the Libyan President in command, the AU wasted too much time in discussing about the opportunity to adopt a single passport for the entire continent, hypothesis not considered as practicable by the South African President.
In addition, until now the sub-regional organizations have made uncertain progress on a real integration of their member states because many of them, at least under the freedom of movement of persons’ point of view, are not consistent in making effective the provisions contained in the different conventions and protocols.
Neither does regional integration seem sensible to the millions displaced in the continent when they cannot find a place to settle given the strict migration policies put in place by other national states. In this regard, we find a bit contradictory that, for a continent that would like to tear down physical barriers to facilitate movement of persons, to date, only nineteen African governments have ratified the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW), that, although adopted under the aegis of the UN, thus not being strictly “African”, nonetheless represents an important instrument for a major protection of migrant workers.
Based on the foregoing, the recent attempt made by Rwanda and Mauritius, and emphasised by the AU Commissioner for Political Affairs A. Abdullahi, to implement the adoption of a unique passport for the entire African continent seems to represent merely a drop of optimism in an ocean of still predominant, national interests.
 Launch of the African Union, 9 July 2002:Address by the chairperson of the AU, President Thabo Mbeki, ABSA Stadium, Durban.
 Address by Professor Alpha Oumar Konare, Chairperson of the African Union Commission, at the University of South Africa (UNISA), Pretoria, 24 June 2006, paragraph 23: “As we continue to pursue the objective of establishing the United States of Africa in the long run, it is important to find an arrangement that will enable us to improve the co-ordination and harmonisation of Africa’s position in some key areas of policy making. In this regard, I advocate for a model of integration that is based on the principle of subsidiary.”
 BBC, “AU summit extended amid divisions”, 4 February 2009, html document, available at:<http://news.bbc.co.uk/2/hi/africa/7868828.stm>, accessed 4 February 2016: “[Gaddafi] envisages a single African military force, a single currency and a single passport for Africans to move freely around the continent.”
 D. Smith, “Mugabe revives Gaddafi’s United States of Africa dream”, in: The Guardian, 21 January 2013, html document, available at: <http://www.theguardian.com/world/2013/jan/21/mugabe-gaddafi-united-states-africa>, accessed 4 February 2016: “Speaking in Harare […] Mugabe argued that a figurehead is needed to move Africa beyond regional blocs and into the global superleague. “Get them to get out of the regional shell and get into one continental shell”, […] “The continent of Africa: this is what we must become. And there, we must also have an African head. He was talking of the president of Africa. Yes, we need one. We are not yet there.”
 Executive Council of the AU, Decision on the Report of the Commission on Development of the African Union Agenda 2063, Doc. EX.CL/832(XXV), Malabo, 20-24 June 2014, paragraph 7 iii).
 Assembly of the AU, Declaration on Migration – Doc. Assembly/AU/18(XXV), Johannesburg, 14-15 June 2015, paragraph iii).
 AU Commission, Agenda 2063, The Africa We Want, Draft Document, May 2014, at 15.
 Article 12 of the 1966 ICCPR stipulates as follows: 1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2) Everyone shall be free to leave any country, including his own.3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4) No one shall be arbitrarily deprived of the right to enter his own country.” For a well-established doctrinaire thought see: M. Hannum, The Right to Leave and to Return in International Law and Practice, Dordrecht/Boston/Lancaster –UK-: Martinus Nijhoff Publishers, 1987.
 Article 12 of the 1981 African Charter stipulates as follows: “1) Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law. 2) Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality. 3) Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with the law of those countries and international conventions. 4) A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. 5) The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.”
 10 February 2016.
 Article 2 of the Protocol reads as follows: “1) The Community citizens have the right to enter, reside and establish in the territory of Member States. 2) The right of entry, residence and establishment referred to in paragraph 1 above shall be progressively established in the course of a maximum transitional period of fifteen (15) years from the definitive entry into force of this Protocol by abolishing all other obstacles to free movement of persons and the right of residence and establishment. 3) The right of entry, residence and establishment which shall be established in the course of a transitional period shall be accomplished in three phases, namely: Phase I – Right of Entry and Abolition of Visa. Phase II – Right of Residence Phase III – Right of Establishment. Upon the expiration of a maximum period of five (5) years from the definitive entry into force of this Protocol, the Commission, based upon the experience gained from the implementation of the first phase as set out in Article 3 […] shall make proposals to the Council of Ministers for further liberalisation towards the subsequent phases of freedom of residence and establishment of persons within the Community and phases shall be dealt with in subsequent Annexes to this Protocol.”
 Done at Banjul on 29th May 1990. The text of the document is available at: <http://documentation.ecowas.int/download/en/legal_documents/protocols/Supplementary%20Protocol%20on%20the%20Implementation%20of%20the%20Third%20Phase%20(Right%20of%20Establishment)%20of%20the%20Protocol%20on%20Free%20Movement%20of%20Persons,%20Right%20of%20Residence%20and%20Establishment.pdf>, accessed 22 February 2016. In detail, see the distinction made in Article 1 among “Migrant Workers”, “Border Area Workers”, “Seasonal Workers” and “Itinerant Workers”.
 See: Regulation No.2 of the Annex, which is located here: <https://africlaw.files.wordpress.com/2016/02/annex-on-the-free-movement-of-persons-1.pdf>.The text of the Protocol is available at:<http://eac.int/resources/documents/protocol-establishment-eac-common-market>, accessed 22 February 2016.
 Adopted a Kinshasa, the Democratic Republic of Congo, on 29th June 1998. In detail, see: Part II, Articles 3 through 8, Part V, Article 11, and Part VI, Article 12.
 For South Africa, see, for instance: Lawyers for Human Rights (LHR), Policy Shifts in the South African Asylum System: Evidence and Implications, 2013, at 17: “The implication of this focus on security is that the imperative of asylum system management has become to protect South African security by limiting access to asylum, rather than to provide protection to asylum seekers.” Document available at:<http://www.lhr.org.za/sites/lhr.org.za/files/policy_shifts_in_the_sa_asylum_system.pdf>, accessed 5 February 2016. For Kenya, and the threatens, later softened, to close Dadaab refugee camp, see, for instance: UNHCR, “UNHCR urges Kenyan government rethink on Dadaab closure announcement”, 14 April 2015, html document, available at:< http://www.unhcr.org/552d12c49.html>, accessed 5 February 2016: “The [Kenyan] government’s decision [of closing the camp] was announced this past weekend following the horrific attack at Garissa University in Kenya earlier this month.”
 See, Excel Spread sheet, on the African Economic Outlook Website, available at: <http://www.africaneconomicoutlook.org/en/statistics/>, accessed 1 February 2016.
 News24, “AU better without “intimidating” Gaddafi”, 13 October 2011, available at: <http://www.news24.com/Africa/News/AU-will-work-better-without-Gaddafi-Zuma-20111013>, accessed 3 February 2016.
 For instance, see: J. Agyei & E. Clottey, Operationalizing ECOWAS Protocol on Free Movement of People among the Member States: Issues of Convergence, Divergence and Prospects for Sub-Regional Integration, no date available, available at: <http://www.imi.ox.ac.uk/events/ghana-african-migrations-workshop/papers/clottey.pdf>, accessed 10 February 2016. At 22-23, we read: “[M]uch divergence still persist among member states in implementing policies on migration at the various stages. Within each state, ministries and department pursue contradictory policies and goals. At the regional level, each state quests to obtain the most benefit from migration force individuals’ countries to pursue statist restrictive migration policies that often run counter to the ideals of ECOWAS. The sub-regional group itself has a weak institution implementing the ECOWAS policies on migration. These coupled with ECOWAS emphasis on trade rather than free movement of people calls for research and cooperation on migration within ECOWAS.”
 D. Teng’o, “‘United States of Africa’ still an idea ahead of its time”, in: World Politics Review, 13 July 2007, html document, available at: <http://www.worldpoliticsreview.com/articles/923/united-states-of-africa-still-an-idea-ahead-of-its-time> accessed 5 February 2016.
 10 February 2016.
 UNGA, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990, UNTS, vol. 2220, at 3, A/RES/45/158. The list of ratifications is available at: <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en>, accessed 10 February 2016. On this purpose, it is interesting to note that, for instance, Uganda made the following reservation on Article 18: “The Republic of Uganda cannot guarantee at all times to provide free legal assistance in accordance with the provisions of Article 18 paragraph 3d).”
 Speech by A. Abdullahi at the Africities2015 event, held in Johannesburg, 28 November 2015, html document available at: <http://www.africities2015.org/?q=node/436>, accessed 10 February 2015: “One such project is through an African passports system. All Africans will be able to move freely across the continent. Countries who are beginning to adopt this system include Rwanda and Mauritius who have begun making their borders on the road, rail and air more accessible to their African neighbours.”
 Zegabi, “African Union to implement single African passport by 2020”, 30 November 2015, available at: http://www.zegabi.com/articles/9789>, accessed 1 February 2016. On this purpose, the author would like to clarify, that he could not find more detailed information on how this “implementation” will take shape. No such information is present neither on website of the Rwanda Directorate General of Immigration and Emigration (https://www.migration.gov.rw/index.php?id=2) nor on the website of the Passport and Immigration Office of the Republic of Mauritius (<http://passport.govmu.org/English/Pages/default.aspx>), accessed 10 February 2016.
About the Author:
Dr Cristiano d’Orsi is currently a Post-Doctoral Researcher and Lecturer at the Centre for Human Rights, Faculty of Law, University of Pretoria (South Africa). His expertise mainly deals with the legal protection of the people “on the move” (asylum-seekers, refugees, migrants, IDPs) in Africa. Another field of its interests includes the protection of the socio-economic rights. Cristiano holds a PhD in International Relations (International Law) from the Graduate Institute of International and Development Studies in Geneva (Switzerland).