The freedom of movement is related to the right of liberty. When one’s liberty is limited, there is a big chance that that persons freedom of movement has also be curtailed. It is therefore most probable that a victim of a violation of the freedom of movement is imprisoned. This may be by confinement in a prison, police cell or sometimes in an illegal place, or it may be the tortious false imprisonment.
Last week, Agrace Atuhairwe in her feature, persona non grata, the fate of a Rwandan stuck at the Jomo Kenyatta Airport because his country, Rwanda could not have him, was discussed. For such a man, his freedom of movement was curtailed, but within the confines of the law.
What does the law say about freedom of movement?
Every person has the freedom of movement. The convention on Civil and Political Rights, under article 12, provides that
- 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.
- Everyone shall be free to leave any country, including his own.
- 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.
- No one shall be arbitrarily deprived of the right to enter his own country.
A related provision is stated in Article 13 of the Convention on Civil and Political Rights and states thus:
An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.
Under article 12 of the African charter on human and people’s rights
- Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law.
- 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.
- Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and International conventions.
- A non-national legally admitted in a territory of a State Party to the present Charter, may only by expelled from it by virtue of a decision taken in accordance with the law.
- The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.
The Universal Declaration of Human Rights, under Article 13 provides that
- Everyone has the right to freedom of movement and residence within the borders of each State.
- Everyone has the right to leave any country, including his own, and to return to his country.
So, who enjoys the freedom of movement?
Unlike other rights, like the right to vote, which are only restricted to the citizens of a given country, freedom of movement is enjoyable by all persons. Even foreigners who are lawfully living in another country have the freedom of movement in that country.
When may the freedom of movement be limited?
Freedom of movement may be limited only when it is permitted by law. The law may permit the freedom of movement to be curtailed if it is in the preservation of public order (like when curfews are imposed), if it is in the furtherance of national security, if it is in the prevention of the spread of a contagious deadly disease (like when movement of persons is halted due to an outbreak of Ebola), and any other reason as long as it is sanctioned by law.
Let us not forget that some laws may be oppressive. That is why the African Charter on people’s and human rights, for example prohibits the mass expulsion of non-nationals. It has happened before: Idi Amin Dada, president of Uganda (1979-1986) expelled Indians from Uganda, in 2013; Rwandan refugees who were called “illegal immigrants” were expelled from Tanzania. It is therefore every person’s duty to scrutinize a law which purports to limit the freedom of movement and bring it to the test of constitutionality before courts of law. One such law is the public order management law in Uganda under whose provisions, Dr. Kiiza Besigye of the Forum for democratic change has often been confined or prevented from leaving his home.
Move. Travel. Gallivant. It is surely within your right. However, endeavor to comply with all the requirements necessary for your movement. It goes without saying that you must pay your fares, you must acquire those visas and you are entitled to a passport (or in some cases, a national identity card) from your government, which you must use to gain entry to other countries.
BY SAMALI BITALA
This article appears in our weekly digital law magazine, The Deuteronomy Vol 9, Issue 2 of December 9th, 2016
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