The Right to Life (Article 4 of the African Charter)

The right to life is guaranteed in article 4 of the African Charter, which provides that no one may be arbitrarily deprived of it. In its General Comment No. 3 on the African Charter on Human and Peoples' Rights: The Right to Life (article 4)⁵⁵, the Commission recalled that this right is part of customary international law and general principles of law as well as a jus cogens standard, universally binding at all times.

The right to life is broadly interpreted: its respect requires not only that States take measures to prevent arbitrary deprivation of life but also that justice is promptly

52 Information from the national consultation held on 11 June 2019 in Niamey, Niger within the framework of this study

53 Statement by the United Nations Special Rapporteur on the human rights of migrants, Felipe González Morales, at the end of his visit to Niger (1-8 October, 2018), available at :

https://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=23698&LangID=F

54 Note by the Spokesperson of the United Nations High Commissioner for Human Rights, Ravina Shamdasani of 22 May 2018, available at :

https://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=23114&LangID=F

55 ACHPR, General Comment No. 3 on the African Charter on Human and Peoples' Rights: The Right to Life (article 4), para. 5

done once the right is violated. Similarly, the enjoyment of a number of other rights can collectively constitute living conditions; thus, the progressive realization by States of the various economic, social and cultural rights contributes to ensuring a full and dignified life. Therefore, in some cases, the violation of these rights may also result in a violation of the right to life⁵⁶.

The majority of migrants who loose their lives while transiting through Niger die during the desert crossing and during the Mediterranean crossing.

▪ Loss of human lives in the desert

According to a UNODC report, at least 500 deaths are registered in the Sahara desert in Niger and Algeria every year as a result of migration ⁵⁷.

Many migrants abandoned by smugglers in the desert or blocked in the middle of the desert due to vehicle breakdowns, die from adverse weather conditions and lack of means of subsistence (water, food, etc.).

In October 2013, 92 migrant bodies (52 children, 33 women and 7 men) were found in the desert in Niger, not far from the border with Algeria⁵⁸. These migrants are said to have died of dehydration following a vehicle breakdown⁵⁹. Despite this tragedy, several deaths continue to be registered in the desert. For example, in June 2015, 48 other bodies were discovered in the Nigerien Sahara, 18 of them next to an oasis in Arlit (West of Agadez) and 30 bodies near Dirkou in the North Eastern Agadez⁶⁰. In June 2017, at least 44 migrants, including women and children, were found dead in the desert in Agadez. These migrants were also reported to have found themselves in the middle of the desert following a breakdown in the vehicle transporting them to Libya⁶¹.

In June 2017, IOM rescued 24 migrants (including Gambians, Nigeriens, Senegalese and Ivorians) who were walking in the desert near Séguédine, one of the 24 rescued finally died on arrival. The rescued persons were part of a group of 75 migrants travelling in convoys that were eventually abandoned by smugglers⁶².

56 Ibid. para 41 et 43

57 UNODUC: Global Study on the Smuggling of Migrants 2018, p. 83, available at:

https://www.unodc.org/documents/data-and-analysis/glosom/GLOSOM_2018_web_small.pdf

58 Coordination of the United Nations System in Niger, Office of the Resident Coordinator:Report of the United Nations Country Team in Niger for the second cycle of the Universal Periodic Review (EPU), June 2015, para 72

59 http://news.aniamey.com/h/9054.html?fb_comment_id=1402563453314395_54757

60 Coordination of the United Nations System in Niger, Office of the Resident Coordinator: Report of the United Nations Country Team in Niger for the second cycle of the Universal Periodic Review (EPU), op. cit., p.13

61 https://www.unhcr.org/news/press/2017/6/59311ced4/news-comment-unhcr-shocked-deaths-sahara-desert.html

62 https://www.iom.int/fr/news/52-morts-au-niger-tandis-que-loperation-de-recherche-et-de-secours-de-loim-sauve-600-migrants

The story of Adaora⁶³, a young survivor of an IOM relief mission on 28 May 2017, illustrates the survival challenges faced by migrants as a result of the actions of smugglers ⁶⁴.

Adaora is a 22-year-old Nigerien girl who left her country in search of a better future. She was among passengers on a truck travelling from Agadez to Libya with about 50 migrants on board. The driver eventually abandoned them in the middle of the desert and fled with their belongings, promising he would come back for them. In the face of the harsh desert climate and inadequate means of subsistence, 44 migrants died. The other 6 had to drink their own urine to survive and were able to walk until they found a truck that picked them up. She says she didn't know what to expect, otherwise she would never have left Nigeria.

The death of migrants transiting through Niger is not only confined to the desert part of Niger. Many of them also lose their lives in the desert in Libya; they die of hunger, dehydration and exposure to extreme heat⁶⁵.

Moreover, according to testimony gathered during the field study, the way in which migrants are expelled from Algeria to Niger is not conducive to the survival of migrants. They are generally transferred by bus from Algiers to Tamanrasset. They are then transported in trucks from Tamanrasset to the Niger border (at a so-called

"zero point") from where they are forced to walk (between 15 to 20 km) in the desert before reaching Niger's first checkpoint and receiving assistance. The testimonies received by the UN Special Rapporteur confirm this process⁶⁶. During this long walk, migrants, including children and pregnant women, do not survive; bleeding pregnant women often arrive completely shocked at IOM's centres.

The field study reveals that the Nigerien authorities do not have national structures in place to assist migrants in distress in the desert; however, elements of the Nigerien National Guard who patrol the desert area for security reasons sometimes come across these migrants by chance and assist them on this occasion. In his statement, the UN Special Rapporteur also noted the fact that neither the Algerian nor Nigerien authorities provide assistance to migrants expelled from Algeria and compelled to walk in the desert. The only assistance provided to migrants come from IOM and other NGOs⁶⁷.

63 Ibid

64 Persons who facilitate the journey of irregular migrants, usually in exchange for payment

65 https://www.iom.int/fr/news/des-deces-au-niger-sajoutent-au-bilan-croissant-de-migrants-decedes-sur-le-continent-africain

66 Statement by the United Nations Special Rapporteur on the human rights of migrants, Felipe González Morales, at the end of his visit to Niger (1-8 October, 2018), available at :

https://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=23698&LangID=F

67 Statement by the United Nations Special Rapporteur on the human rights of migrants, op. cit.

▪ Loss of human lives in the Mediterranean

While migrants lose their lives in the desert, they pay a heavier price when crossing the Mediterranean. In October 2013, for example, at least 368 migrants died in a wreck involving two boats near Lampedusa (Italy). Such tragedies during the Mediterranean crossing continue to be reported. For example, the figure below⁶⁸ shows the number of migrants who died or went missing at the global level but also illustrates the high proportion of human lives lost in the Mediterranean in 2016.

The number of recorded migrants’ deaths or disappearances is higher in the Mediterranean than in other regions. It is difficult to know exactly what percentage of migrants from Niger lose their lives in the Mediterranean, but this percentage is probably very high when it is estimated that over 330,000 migrants transited through Niger in 2016 to reach North Africa, many of whom are trying to get to Europe through the Mediterranean. More recently, in February 2019, it was estimated that 354 migrants and "refugees" had died worldwide since January 2019, including 208 deaths that occurred on the main migration routes crossing the Mediterranean⁶⁹. In her Inter-sessional Report presented at the 58^th Ordinary Session of the African Commission in 2016, the Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons in Africa noted that 2015 is considered the

68 IOM: World Migration Status, 2018, op. cit. p. 28

69 https://news.un.org/fr/story/2019/02/1035631

deadliest year for migrants who have left their country for Europe through the Mediterranean⁷⁰.

▪ Other cases of death

Migrants may also be murdered on the way, or lose their lives due to road accidents, abuse or disease⁷¹.

▪ Law n°2015-36 and the risks related to loss of human lives

Some observers⁷² warn against the harmful effects resulting from Law n°2015-36 of 26 May 2015 on the smuggling of migrants (Law of 2015), whose articles 10 to 12 punish:

▪ those who facilitate the illegal entry or exit into or from Niger of a person who is not a national or a permanent resident of Niger

▪ those who produce, procure, provide or possess a fraudulent travel or identity document to facilitate the smuggling of migrants,

▪ those who use illegal means to allow a person who is not a national or a permanent resident to stay in Niger without fulfilling the conditions necessary for legal residence.

This law, which seeks to combat the smuggling of migrants, is believed to have several negative effects, including exposing migrants to greater risks to their physical and moral integrity and even their lives. The law is criticized for creating a more irregular context that exacerbates the vulnerability of migrants⁷³. Under this law, several drivers have been arrested, smugglers tracked down and ghettos (houses where irregular migrants are housed during their stay) are now considered illegal and therefore built clandestinely.

Since the application of the 2015 Law, the number of migrants travelling to North Africa and then to Europe through Niger has decreased. The decline in the movement of migrants northwards to Algeria, Libya and the Mediterranean is considerable, ranging from 333,891 in 2016 to 43,380 migrants in 2018, according to

70 Special Rapporteur on Refugees, Asylum Seekers, Migrants and IDPs in Africa: Intersessional Report on behalf of the 58th Session of the African Commission, 2016, para 47 available at :

http://www.achpr.org/fr/sessions/58th/intersession-activity-reports/refugees-and-internally-displaced-persons/

71 IOM: World Migration Status, 2018, op. cit. p. 9

72 Clotilde Warin, Research Consultant at the Dutch think tank Clingendael: An overview of migration routes and the Sahel region, available at : http://www.lecercledelalicra.org/blog/entretien-avec-clotilde-warin/. See also : « Niger under the ‘EU diktat’: diminished flows, increased invisibility and risks, and political balances fragilized », available at : https://www.clingendael.org/pub/2018/multilateral-damage/2-effects-of-eu-policies-in-niger/. See also: Statement by the United Nations Special Rapporteur on the human rights of migrants, op. cit.

73 Clotilde Warin, Research Consultant at the Dutch think tank Clingendael: An overview of migration routes and the Sahel region, available at : http://www.lecercledelalicra.org/blog/entretien-avec-clotilde-warin/ See also : « Niger under the ‘EU diktat’: diminished flows, increased invisibility and risks, and political balances fragilized, op. cit.

IOM data based on monitoring trends in Arlit and Seguedine (North of Agadez)⁷⁴. However, smugglers now use more dangerous illegal routes⁷⁵, which exposes migrants to manifold risks, including abandonment in the desert, attacks by bandits, kidnapping to sell them to traffickers and the resulting human trafficking.

These additional dangers are feared to put the lives of migrants at greater risk. The estimates of the figure below allege that there has been an increase in human casualties and disappearances of migrants since the adoption of the 2015 Law.

Number of dead or missing migrants in Niger between 2015 and 2017 per semester

Extract from a publication by Clingaendael⁷⁶

3.3 Right to respect for human dignity (Article 5 of the