Article 12 (1) of the African Charter on Human and Peoples' Rights (the African Charter) enshrines the right to freely move and choose one's residence within a State while limiting it by clause of style: "subject to comply with the rules enacted by law". As a result, the exercise of this right is subject to the intervention of the legislative authority, which may allow itself to restrict its application.
The General Comment No. 5 on freedom of movement and to choose one's residence is of particular interest, in that it obliges us to examine this freedom I right from the angle of the jurisprudence of the African Commission on Human and Peoples' Rights (the African Commission), but also in relation to the strategies and policies of African States, Regional Economic Communities and the African Union.
As a result of a global reflection on the interpretation of Article 12 ( 1) of the African Charter, this General Comment is in line with the development and strengthening of soft law in continental legal arena focused on individual freedom, which suffers in Africa from several legislative and practical restrictions that affect many vulnerable groups of people.
The aim of this work is to be useful and creative so that all the state and non state actors can, through synergy, legitimize the exercise of the right of everyone to move freely in a country, to reside there; and to increase the effective protection of human rights as enshrined in the African Charter.
The General Comment responds and contributes in the long term to the requirements of the African Union Agenda 2063, a key aspect of which is- to ensure and facilitate the integration of Africa through the free movement and right of establishment of all Africans within national borders and beyond.
This General Comment therefore invites States, National Human Rights Institutions, civil society and all partners to take full ownership in order to contribute fully to the effective realization of the rights contained in the African Charter.
The African Commission, through the mandate of the Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa, expresses its thanks to all those who supported from inception and contributed to the realization of this General Comment, in particular the Norwegian Refugee Council (AU Liaison Office), and consultants from the Human Rights Center of the University of Pretoria as well as the staff of the Secretariat of the African Commission for their involvement in the successful completion of this project.
Commissionner Maya Sahli Fadel
Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa.