PROPORTIONALITY ANALYSIS AND NON-REFOULEMENT JURISPRUDENCE IN INDIA: A COMPARATIVE APPROACH

SABREEN AHMED^*

Abstract: India does not have an explicit refugee regime and most of the jurisprudence on refugee protection comes from the judgements. However, in the absence of law or explicit domestication of international refugee law, the Supreme Court of India (SCI) struggles with consistent interpretation of non-refoulement. Many scholars suggest the presence of non-refoulement as a substantive right under the Right to life in the Constitution of India (1950). However, it has not been consistently accepted. Significantly Art 21 allows limitation in the form of ‘procedure established by law’, to avail constitutional justification for limiting non-refoulement rights citing national security concerns. An analysis of the recent repatriation judgment of SC of India suggests the application of the Wednesbury-like approach which is aimed at finding a reasonable justification for the state’s action without getting into the ‘balancing mechanism’. This article adopts comparative, analytical and doctrinal methodology to examine how the Indian Judiciary can utilize the proportionality analysis in non-refoulement cases to attain better outcomes. Firstly, this article explains the concepts of Wednesbury and Proportionality Analysis rooted in European Jurisprudence and its application by the EctHR, the Inter-American System of Human Rights and the African Courts. In the absence of any consistent European and American scholarship, this article draws from the African court’s jurisprudence to understand how proportionality analysis is interpreted regionally and applied by national courts (Kenyan High Court) in non-refoulement cases. Finally, the article suggests that without any constitutional provision of limitation (like in Kenya), the Supreme Court of India needs to adopt the ‘rainbow of review’ approach in refoulement decisions to achieve better outcomes. This would allow the SC to make a gradual shift towards the proportionality analysis from the Wednesbury principle, depending on the criticality of human rights violation, without signalling a complete change in judicial attitude.

Keywords: Non refoulement, Proportionality analysis, Wednesbury Principle, ECtHR, African Courts.

1. RIGHTS-BASED CONTEXT OF PROPORTIONALITY ANALYSIS IN THE EUROPEAN LEGAL SYSTEM

Proportionality as a general principle of law finds space in most legal systems. Significantly invoked in terms of its constitutional adjudication of European Union (EU) Law and finds its origin in German constitutional and administrative jurisprudence (Tridimas, 2018). In this context, proportionality is considered a defining principle of a limited government and acts as a preferred procedure for managing disputes involving a rights provision and a conflicting state interest (Sweet and Mathews, 2008). Alec Stone Sweet and Jud Mathews (2008) have noted that Proportionality analysis ‘emerged and then diffused as an unwritten, general principle of law through judicial recognition and choice’. Thereby materializing as a judicial doctrine for courts to apply while reviewing the legality of a government action vis a vis a fundamental right. In International Human Rights law, proportionality plays an important role in the application of human rights instruments like the International Covenant on Civil and Political Rights (‘ICCPR’). From there it even translates into regional human rights instruments like the European Convention on Human Rights (ECHR) (Ellis 1999). Since the principle of proportionality permeates the whole EU legal system, ECHR offers a good starting point for understanding the principle. Art 8 to 11 of the Convention lays down the proportionality test. However, the European Court has conducted such proportionality inquiry for other convention rights as well. For example, in Belgian Linguistics (1968) the Court held that:

Art 14 is violated when it is established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realized.

In simple terms, proportionality analysis aims to strike a balance between the interest of the community and the protection of an individual’s fundamental rights (Cossey v. UK, 1990, para. 37). Essentially, it entails two tests: 1. a test of suitability and 2. a test of necessity. The former determines the relationship between the measure and the objective it aims to achieve. The latter assesses the consequences of a measure on a right worthy of legal protection (Fromancais v Forma, 1983). Additionally, a comprehensive three-part test for proportionality analysis was given in the opinion of Van Gerven AG in SPUC v Grogan (1991). First was the test of suitability, second, the test of the least restrictive alternative, and finally proportionality stricto sensu. The test of suitability aims to establish if the measure adopted by the state is suitable for achieving the prescribed aim. The test of least restrictive alternative test aims to establish if the measure is necessary and if there are no alternative means of achieving the desired outcome. The third test in the continuum to the second test examines irrespective of no less restrictive means, if the measure has an excessive effect on the right Similarly, Nada v. Switzerland (2012) offers a structured inquiry conducted by ECtHR regarding Art 8 to 11 of the Convention. In ascertaining the right to respect for private and family life, the court asserted that any interference would amount to a breach of the article unless the requirement of Art 8(2) were satisfied. The court determined whether the interference was in ‘accordance with the law’, ‘was pursued for a legitimate aim’ and was ‘necessary in a democratic society’, to achieve such aims (Nada, 2012, p. 167). As a last limb of the proportionality test, the court also applied the least restrictive means test. The court held that:

For a measure to be regarded as proportionate and necessary in a democratic society, recourse to an alternative measure that would cause less damage to fundamental rights must be applied.

In light of the ECHR jurisprudence, the decisions and standard of review adopted by domestic courts in Europe, particularly the English courts, are relevant. Following a non-uniform, non-mutually exclusive case-by-case standards of review for public rights and administrative practice cases the jurisprudence in the United Kingdom (UK) offers a variety of opportunities to weigh the benefits of each process(es) individually. For instance, many rights-based judgments in the UK have set out grounds for proportionality review borrowed from the ECtHR. One example is Quila and Another (2011) whereby Lord Wilson encapsulated the test in the present case as follows: First, is there a sufficiently important legislative object? Second, are measures adopted rationally connected to the legislative object? Are the measures no more than necessary? Fourth, do they strike a balance between the rights of the individual and the interests of the community?

Earlier, in the 1990s, the ground standard of review opted by the UK courts was the Wednesbury rationality review (Associated Provincial Houses Ltd. v Wednesbury Corporation, 1948). It stated that a decision may be attacked if it is so unreasonable that no reasonable decision-maker could have made it. This test was limited in the sense that it required the court to be only satisfied that the ‘decision was so unreasonable that it would not have been made by any reasonable public authority’. It was made clear that such a rationality review suggested that:

Irrationality would only apply to an administrative action which is so outrageous in its defiance of logic or if accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it (Council of Civil Service Unions v Minister for the Civil Service, 1985).

Although the House of Lords in R v. Secretary of State for the Home Department Ex p Brind (1991) accepted that Wednesbury could vary in its intensity while determining fundamental rights, it was never abandoned. At this point, the courts also began to reconfigure the Wednesbury review to acknowledge that the test was modifiable. However, with Wednesbury unreasonableness still on the table, the courts realized that a more comprehensive analysis appeared pertinent to review cases involving substantive rights. The context for the need appeared after the emerging trend towards human rights in the UK, following the Human Rights Act of 1998 subsuming the ECHR code in line with the mechanisms set by the court. (McHarg, 1999). Naturally, the courts began to acknowledge that the actual test requires the concept of proportionality mirroring the ECtHR and the Convention itself (Smith and Gardy v. United Kingdom, 1999). Finally, an explicit transition from Wednesbury to a more intense proportionality analysis was seen in the case of R v. Secretary of State for the Home Department ex parte Daly (2001). Lord Bingham stated that the:

Infringement of prisoner’s rights to maintain their confidentiality is greater than is shown to be necessary to serve legitimate public objectives.

This showed a complete abandonment of the Wednesbury review especially where fundamental rights were at stake (Daly, 2001, pp. 24-28).

Justifying such a shift towards proportionality analysis, Lord Crooke in Daly stated that:

Wednesbury was an unfortunate retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative action within the legitimate scope of judicial review. However, the law can never be justified merely by finding that the decision under review is not absurd and hence valid.

However, the ‘shift’ could not be formally translated into a complete disregard of the Wednesbury principle in the following cases because a rigid constitutional division between the two would not only be difficult but also, as noted in the case of Keyu v. Secretary of State for Foreign and Commonwealth Affairs (2015) “would have potentially profound and far-reaching consequences” (Keyu, 2015, para. 133). The nature of both standards is thus, that placed within specific contexts, their existence, independent of one another, is hardly distinguishable.

In Pham v. Home Secretary (2015) 1 WLR 1591) Lord Sumption while observing the difference between Wednesbury unreasonableness and proportionality review stated that in the former the court asks whether the decision was within the range of rational balances that may be struck whereas, under the latter, the court has to form its own view of the balance struck by the decision maker. Lord Sumption further noted that:

the use of proportionality in cases involving human rights and EU law but not domestic law produced “some rather arbitrary distinctions between essentially similar issues” (Pham, 2015, para. 104)

The approach of highlighting the similarities between the two standards began with the case of Kennedy v Charity Commission (Secretary of State for Justice intervening) (2015) where Lord Mance noted that even though proportionality and unreasonableness may have similar elements the advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages. Lord Mance also highlighted that these factors may be relevant outside the convention too, i.e. even where Wednesbury applies.

Therefore, Daly suggests that the proportionality test be applied to all human rights cases even if outside the scope of the Human Rights Act 1998 so far as fundamental rights or human rights are in question. This is because proportionality analysis is clearer and transparent and enhances the intensity of the review depending on the context. However, post-Daly jurisprudence clarifies that the two standards of review are not mutually exclusive; they operate in parallel, serving similar purposes and employing comparable methodologies to achieve largely the same outcomes. This argument, however, has its limitations, which are discussed in Part 3 of the paper.

1.1. Proportionality and nonrefoulement

The principle of non-refoulement is explicitly provided for in Article 33 of the 1951 Geneva Convention relating to the status of refugees, and also in the 1967 Protocol linked to the latter. Article 33 (1) specifies that a State party to the Convention or its Protocol may not return (“refouler”) a refugee “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. UNHCR (1997) notes that non-refoulement is the cornerstone of asylum and international refugee law. Further, it explains that the application of the provision is not dependent on the lawful residence of a refugee in the territory of a contracting state. The note also makes mention of Art 3(1) of the UN Declaration on Territorial Asylum adopted unanimously by the General Assembly (1967). It stated that:

No person referred to in Article 1, para 1, shall be subjected to measures such as rejection at the frontier or if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any state where he may be subjected to persecution.

Art 33(2) of the Convention (1951) provides exceptions to the non-refoulement obligation whereby there are reasonable grounds for regarding the refugee as a danger to the security of the country in which he is or who, having been convicted by a final judgement of particularly serious crime, constitutes a danger to the community of that country. While these exceptions are argued to weaken the refugee protection machinery, there are vast debates in academia about the implementation of such exceptions (Teferra, 2018).

In these debates, the application of proportionality analysis is also frequently discussed, especially in the context of refoulement triggered by national security grounds (Teferra, 2018). This means that there is a requirement to balance security interests with possible dangers faced by the refugees. Hathaway and Harvey oppose such a balancing mechanism because Art 33 has an inbuilt threshold of severity. Moreover, they argue that there is a requirement for a strong standard of national security under Art 33(2) (Hathaway, 2005, pp. 353-354). Contrarily, Professor Geoff Gilbert (2003) and Goodwin Gill (1996) contend that proportionality analysis is essential to Art 33. Goodwin (1996) states that principles of natural justice and due process are inherent in international law and require something more than an ‘exception’ clause. Similarly, Professor Gilbert (2003) advocates for the balancing of the refugee’s fear of persecution against the danger that he or she presents to the security of the country. Moreover, from an absolute right context, Lauterpacht and Bethlehem (2009) argued that this absolute ban requires the asylum state to give full consideration to the dangers faced by the refugees before executing its deportation order.

1.2. ECtHR jurisprudence: From no proportionality to something illusory

In the context of Europe, there is no explicit right against non-refoulement, however, it has been read into Art 3 of ECHR which states that ‘no one shall be subjected to torture or inhuman or degrading treatment or punishment’. Although such a construction implying non-refoulement obligations dates to the 1970s (Cassese, 1993), it materialized only with Soering v. The United Kingdom (1989). Since then, ECtHR has time and again expanded the jurisprudence in many cases. The court has described Art 3 to be absolute (Harris, 1995). This means that Art 3 admits no exceptions, cannot be derogated, and applies to everyone no matter what (Ireland v. UK 1979-1980, p. 163). In the context of non-refoulement, the resulting obligation is not to deport, expel, extradite, reject at the frontier or otherwise ‘refoule’ someone at risk (Mavronicola and Messineo, 2013, p.595). In Vivalrajah and Others v. The United Kingdom (1991) the court said that:

Expulsion by a contracting state of an asylum seeker may give rise to an issue under Article 3 and hence suggests the responsibility of that state under the Convention where substantial grounds have been shown that the person concerned faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he returned.

Further, in the first deportation case, Chahal v. The United Kingdom (1996) the British government claimed that Art 3 allows a state to expel an alien if such removal was required on national security grounds. This needs to be balanced with the non-refoulement obligations. The court rejected this reasoning and stated that Art 3 was an absolute right. In the context of balance, ECtHR stated that ‘Art 3 makes no exceptions even in the event of a public emergency threatening the life of the nation’. Moreover, in Saadi v. Italy (2008) ECtHR concluded that:

The concepts of risk and dangerousness in the context of refugees do not lend themselves to a balancing test because they are notions needing independent assessment. The prospect that a person may pose a serious threat to the community if not returned does not reduce the degree of risk of ill-treatment that he or she may face after returning. For this reason, it would be incorrect to require a higher standard of proof where the person is considered to represent a danger to the community since assessment of the level of risk is independent of such a test…’

However, in R (Wellington) v. Secretary of State for the Home Department (2008) the court accepted the application of the ‘minimum level of severity’ test. In this, the UK government requested to balance the severity of ill-treatment to the person returned with the danger it posed to society. The court stated that these notions be assessed independently, however, it is to be assessed if a ‘minimum level of severity’ has been met for Art 3 purposes. Lord Scott states that the majority view implied a ‘relativist approach’ to Art 3 whereby it suggested inhuman or degrading treatment in Europe might not be so categorized in the receiving country (Mavronicola and Messineo, 2013). The absolute nature of Art 3 was now based only on torture implying that what is torture for Art 3 in Europe is torture everywhere else. But not inhuman or degrading treatment. This means that after balancing the inhuman or degrading treatment with the danger posed by him or her if the inhuman or degrading treatment is not severe, he may be removed.

Similarly, in Socialist Party and Others v. Turkey (1998) the court said that considering the National Security exception to non-refoulement obligations, the court should carry out scrutiny. The task is not to substitute its view for the relevant national authority but to review the decision delivered by them. Such a review should satisfy those national authorities who made such a decision after an acceptable assessment of relevant factors. In Babar Ahmad v UK (2012) ECtHR agreed with the Wellington rationale. In this case, the applicants claimed that on account of being extradited, there is a prospect for them to be imprisoned in a ‘supermax’ security prison in Colorado. Also, the conditions of detention would breach Art 3 due to prolonged periods of ‘solitary confinement’ (Babar Ahmed v UK, 2012). They also argued that if they were convicted, they would face a mandatory sentence of life imprisonment without any possibility of parole. They argued this was disproportionate to the offences they were accused of. The court held that:

The absolute nature of Art 3 does not bar the removal of a person if the act or omission does not fulfil the ‘minimum level of severity test’.

Nevertheless, in the absence of an exception clause to Art 3, ECtHR jurisprudence also does not encapsulate how proportionality analysis in the context of ‘minimum level of severity’ would apply in case of national security concerns. It has been left to be determined on a case-to-case basis which is more theoretical and illusory, unless the Grand Chamber sets the record straight (Mamatkulov and Askar v Turkey, 2005).

The case-to-case-based analysis of non-refoulement and parallel balancing mechanisms complicates the court’s jurisprudence to the extent that no practical trend seems to emerge. In Hirsi Jamaa and others v. Italy (2012) for example, the violations alleged against Italy in the case were that on May 6, 2009, three boats were intercepted in international waters bound for Italy with about 200 people on board. Once rescued the migrants were forcibly handed over to the Libyan authorities as required by the bilateral agreement between Italy and Libya of February 2009. The appeal to the ECtHR was filed by 11 Somalis and 13 Eritreans who were present on board and who accused Italy of the violation of various provisions of the ECHR, but the most serious concerning Articles 3 and 4 of Additional Protocol No. 411 (see Scovazzi, 2016, p. 74) in combination with Article 13.

The court while allowing the appeal relatively extended the jurisdiction of the intervening state, so far as the ECHR rights were concerned to also protect and ensure rights obligations towards migrants in international waters.

If the state authorities, in the exercise of their powers, act imperiously towards people (Gill, 1998, p. 167) to prevent migrants from reaching the borders of the state, this constitutes an exercise of state jurisdiction as provided for by Article 1 of the Convention and therefore makes the state responsible for the violation of Article 4 of Protocol No. 4 (Hirsi, 2012, para. 180)

Similarly, the court also recognized the potential risks faced by migrants who would be subjected to the treatments prohibited by Article 3 by Libyan authorities, as they would enter the Libyan territory illegally, bearing no practical difference from already present illegal migrants there.

Against the backdrop of this rationale stands the contentious and highly debated ruling in ECtHR, N.D. and N.T. v. Spain (2020) in which the court stressed the importance of the state’s role in protecting external borders while rejecting the decision of the Chamber of ECHR holding that Spain carried out collective rejections without considering the personal circumstances of each of the migrants and without resorting to a decision-making process (N.D. and N.T, 2020, para. 124) negating the declaration of the chamber that such process stands in violation of Article 4 of Protocol No. 4 and Article 13 of the ECHR.

Both courts rejected arguments made towards the violations of Article 3 of the ECHR. The Grand Chamber even went on to note that the refoulement was a consequence of the applicants’ “own conduct” (N.D. and N.T, 2020, para. 242). This garnered specific criticism from scholars and refugee rights advocates as individual situations were not comprehensively assessed nor accessibility limitations of asylum procedures were analysed, leading to a horrible precedent justifying collective expulsions.

So far it can be concluded that ECtHR has earlier set the ‘proportionality test’ only for the qualified right and has agreed that absolute rights (Art 3) are neither subject to any exceptions or balancing. However, ambiguity in standards in various cases suggests no conclusive pattern. The newfound limb of the ‘minimum severity test’ in non-refoulement cases, not only defeats the point of the absolute nature of the right under Art 3 of the ECHR but also creates a confusing balancing mechanism for non-refoulement rights.

1.3. Proportionality analysis in the in the inter-American human rights system (IAHRS)

Before delving into the African stance on proportionality analysis a brief reference to the affirmative practice of the doctrine in the inter-American human rights system (IAHRS) especially through the Inter-American Court of Human Rights (IACtHR) and Inter-American Commission on Human Rights should be made. The court while interpreting and applying the principles of the American Convention on Human Rights (1969) (ACHR) also employs a ‘balancing test’ defined as a means of weighing competing rights and interests against one another, which can also in some readings be an opportunity to incorporate local circumstances and subsidiarity (Sagüés, 2013, p. 9). Although the test is heavily contextual, i.e., case-by-case based, and no thread of standard practice exists as such. Similarly, the test remains very limited given the gross and systematic human rights context of the cases that are usually dealt with by the court within the Convention for example, violations of rights such as the right to life (Art 4 ACHR), physical integrity (Art 5 ACHR) and judicial guarantees (Arts 8.1 and 25 ACHR) (Lixinski, 2019). The absolute nature of such rights eliminates the exercising of balancing, but non-absolute convention rights are subject to scrutiny of due process and proportionality analyses. This is also explicitly enshrined in article 30 of the convention which states that:

The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.

In Usón Ramírez v Venezuela (2009) the IACtHR noted that that the restriction (in the case the restriction on effective exercise of the right to freedom of expression) shall be proportional to the interest that justifies it and shall be closely adjusted to the achievement of such legitimate objective, interfering as little as possible with the right at question.

Similarly, in Gomes Lund et al. (“Guerrilha do Araguaia”) v Brazil (2010) the court while balancing the right of access to justice of the presumed victims of a human rights violation against state interests noted that

in applying the principle of proportionality [principio de ponderación], the State has omitted any mention of victims’ rights arising under Articles 8 and 25 of the American Convention. Indeed, said proportionality [ponderación] is made between the State’s obligations to respect and guarantee and the principle of legality, but the right to judicial guarantees [fair trial] and judicial protection of the victims and their next of kin are not included in the analysis, which have been sacrificed in the most extreme way in the present case (Gomes Lund et al. (“Guerrilha do Araguaia”) v Brazil, 2010, para. 178).

In non-refoulement context Article 22 of the ACHR affirms in para. 7:

the right of a person to seek and be granted asylum in a foreign territory if she or he risks persecution for political offenses or related common crimes’,

and in para. 8,

[i]n no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions”.

The court thus rely on these provisions along with international (general and treaty) laws such as the 1951 Convention on Refugees its 1967 Protocol, the 1961 Convention relating to the Status of Stateless Persons, the Convention on the Reduction of Statelessness, or the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, to balance the rights of individuals along with state interests. In the case of Haitian Interdiction – Haitian Boat People (1993) the Commission found the United States in violation of the principle of non-refoulement, having based its argument on the second part of Article 26 (Right of asylum) of the American Declaration. In that sense, the principle of non-refoulement is not an exclusive component of international refugee protection, but serves to protect other universal human rights (Advisory Opinion OC-25/18, The Institution of Asylum, and its Recognition as a Human Right under the Inter-American System of Protection, 2018, para. 180). Similarly, The Inter-American Court in the case of Advisory Opinion OC-21/14, Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection (2014) interpreted Article 22 of ACHR in relation to other Convention provisions, like access to justice and due process. The court established that ‘a flagrant violation of the basic guarantees of due process in cases of administrative proceedings related to migratory status, in expulsion or deportation proceedings, and in proceedings to determine refugee status, may result in the violation of the principle of non-refoulement’. (Advisory Opinion OC-21/14, Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, August 2014, para. 230).

Concerning the scope of application of the non-refoulement principle, the Court in Pacheco Tineo Family v. Plurinational State of Bolivia (2013) posited that States also have an obligation, not to hand over a person in need of international protection where there is a possibility that he may risk persecution, or to a State from which he may be returned to the country where such a risk exists i.e. “indirect refoulement”. Similarly, in the Advisory Opinion OC-25/18, The Institution of Asylum, and its Recognition as a Human Right under the Inter-American System of Protection (2018) the Court emphasized that the principle of non-refoulement also requires positive State action, including individualized risk assessment in the case of refoulement. These judgements are sufficient to establish that IAHRS jurisprudence has been covertly converging and coalescing around central themes and prongs for the balancing test of proportionality in locating state interests with individual rights. The practice, unlike the ECHR does not take a doctrinal form in non-refoulement context, but the same exists albeit in multiple manifestation.

2. AFRICAN COURTS AND THE PROPORTIONALITY ANALYSIS: MEANING AND CONTEXT

Unlike the ECHR, the African Charter on Human and People’s Rights is silent on the requirements of any restriction on a human right. Hence, most of these restrictions in the human rights context come from judicial creativity. Following a very similar construction of ECtHR proportionality analysis, the African Court of Human and People’s Rights (ACtHPR) held that, any restriction on human rights needs to conform to a three-part test (Tanganyika Law Society and Legal and Human Rights Centre and Reverend Christopher R Mitilika v, United Republic of Tanzania, 2013). First, it should be prescribed by law. Second, it serves a legitimate aim. Third, it is proportionate to the aim pursued. To ascertain proportionality, the court assesses the following. First, its suitability. Then it’s a necessity—third proportionality stricto sensu.

The ACtHPR does not apply all the tests and might decide based on the initial tests if the issue at hand fails to meet the criteria. For example, in Tanganyika Law Society (2013), the Tanzania regulation prohibited independent candidates from seeking public office. The law society contended that such restriction on candidacy was on account of the social needs of the country and all candidates either ascertain a sponsor or be a member of a political party. The applicant contended that this conflicted with the constitution and should therefore be declared void. Here the court found such a regulation to be violative of the applicant’s right to political participation. The court said such a measure did not meet the legitimacy criteria under Art 27 (2) of the ACHPR and cannot stand. The court did not proceed to balance the competing interests and rights at hand and deemed as unnecessary given the measure failed to even meet the initial criteria of legitimacy. Similarly, in Actions pour la protection des Driots de l’Homme (APDH) v. Republic of Cote d’Ivoire (2016) the court held that setting up of an electoral body which is neither independent nor impartial, to the State has breached Art 12 of the ACHPR. The court did not apply the proportionality analysis to examine if such a restriction on the right to political participation was proportionate. Usually, the court applies the strict necessity test and the proportionality analysis once it is affirmed that a restriction on an individual’s right is provided by law and serves a legitimate purpose. A similar pattern can be observed in the African Commission on Human and People’s Rights v. Republic of Kenya case (2013). The state evicted the Ogiek population from the Mau Forest area for reasons of preserving the natural environment. The Ogiek population claimed this to be a violation of their cultural rights. The ACtHPR applied the first test and argued that preserving the natural environment is not a legitimate justification for the eviction of the Ogiek population. Hence there is no need to apply the necessity or the proportionality test. The court was dissatisfied with the argument of interference prompted by the need to protect the common interest. It was held that dispossessing the Ogiek population of their land was a violation of their right to property.

So far, the court has managed to reach the balancing mechanism only in the Loge Issa Konate Case (2014). This case concerned journalist Lohe Issa who wrote two articles for a newspaper in which he accused a state prosecutor of corruption. The prosecution filed a defamation came. He was convicted by the national court and brought before the African Court for review. The court applied the three-part test as follows. First, the question of the legality of Burkina Faso’s defamation laws that allowed restriction on one’s freedom of expression rights. Second, does the restriction serve a legitimate purpose? Third, is the restriction necessary to achieve the purpose? The court found that the domestic laws in Burkino Faso allowed for criminal penalties for defamation and was a permissible restriction to one’s freedom of expression rights. The purpose of the restriction was to protect one’s reputation and the court found this as a legitimate purpose. Turning to the third analysis of whether the criminal penalties were necessary and proportionate against the freedom of expression, the court held that there should have been lesser interference with free speech. The criminal penalties though legitimate, where not proportional as civil recourse could have been enough to save the reputation in question. The law calling for criminal penalties was found to be disproportionate to the freedom of speech and expression. The court took into consideration the practice of international courts and bodies of human rights to state that, ‘freedom of expression in a democratic society must be subject to a far lesser degree of interference’.

The careful analysis of these judgements suggests a pattern of the court’s scrutiny of all interference measures by the national authorities. The theory of margin of appreciation devised within the European human rights jurisprudence holds value in this regard. The concept informs the reasoning of ECtHR in its assessment of those provisions of the Convention and its Protocols that require balancing with other rights or need to be weighed up against other aspects of the public interest. The rationale was first introduced in Handyside v United Kingdom (1976) where it was held that a sequence is involved in the process of securing human rights: an assessment of the compatibility of national measures with the Convention is first made by national courts; and subsequently, a review of this assessment is undertaken by the ECtHR if needed. (Frantziou, 2014).

For example, in Tanganyika while the court accepted in principle the importance of applying the ‘Margin of appreciation’, the court reiterated the need for applying such discretion in good faith and to assess the relevance, sufficiency, and fair balance between the general interest of the community and the individual’s fundamental right.

In a few rare cases, the court has been completely non-receptive to such state discretion. For example, in Ingabire Victoirie Umuhoza (2017) applicant argued that Rwanda interfered with his freedom of expression and the Court upheld it. Rwanda argued that they intended to minimise the risk of ‘double genocide’ incited by the applicant turning the citizens against the government and spreading rumors of internal strife. However, the court stated that while it acknowledged the history of genocide in Rwanda and the need for measures to be adopted not to incite another, the said restrictions are disproportionate restrictions on his human rights.

While this is not the general trend to shut down all arguments of margin of appreciation, it can be concluded that the ACtHPR generally has a cautious approach while dealing with ‘Margin of Appreciation’ in human rights cases. A careful look suggests that the court does not adopt a mere procedural approach while determining the proportionality of a state measure but scrutinises the decision. This means that only sufficient reasons for carrying out a measure are not enough, it is to be assessed if such a measure is also necessary and proportional to achieve the objective. This means that the ACtHPR jurisprudence is entirely based on the ‘Proportionality Analysis’ instead of the ‘Wednesbury principle’ so far as the human rights case is concerned.

However, there has been no direct application of proportionality analysis in non-refoulement cases. Nevertheless, Anudo Ochieng Anudo v. United Republic of Tanzania (2018) comes very close to such determination so far as ‘arbitrary removal’ is concerned. In this case, Mr. Anudo was forced to live between non-man’s border between Tanzania and Kenya as neither country recognized him as a citizen. He applied for marriage licenses and was accused of misrepresentation, leading to his expulsion from Tanzania to Kenya where he was arrested and convicted. Mr. Anudo challenged Tanzania’s action of removal or deportation to Kenya under the African Charter of Human and People’s Rights calling such removal and deprivation of nationality as arbitrary. A close observation suggests a shift towards the ‘Wednesbury Principle’ or a more procedural approach.

As disappointing as this may come in the consistent proportionality analysis jurisprudence, the court does allow more discretionary space to the state in cases of removal and assesses proportionality only to the extent of determining ‘whether a given interference reasonably consists of a reasonable approach’ –meaning whether the authorities supplied sufficient reasons for their actions? This does not carry out proportionality analysis in detail, however, still determines the sufficiency of reasons by the state, suggesting a proportionality-like analysis which is not completely Wednesbury either. Therefore, in this case, the court decided that Tanzania had violated ICCPR by expelling the applicant without presenting sufficient reasons. However, it did not analyse the proportionality of the decision. Here, although his nationality was in question, and he was not a refugee, such reasoning can be seen in the light of arbitrary removal irrespective of the status of the applicant.

2.1. National Courts of Africa and Proportionality Analysis: A threshold?

Contrary to the direct application of such a balancing mechanism with the regional court, such application can be found in the approaches of national courts of Africa like the Kenya High Court. Such application of proportionality analysis by the judiciary is constitutionally motivated due to the presence of a specific limitation clause in the Constitution of Kenya (2010).

Kenya is a signatory of the 1951 Convention, 1967 Protocol, AU Convention, ICCPR, ICESCR, The African Charter, and UDHR. Domestically, it has the Refugee Act 2006 along with the Constitution of Kenya. Sections 4 and 16 of the Refugee Act crystallize Art 33 and the exceptions of Art 33(2) of the 1951 Refugee Convention. Art 24 of the Constitution of Kenya also allows that the Bill of Rights may be limited given the limitation is reasonable, and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account the relevant factors: