Ms. Diene KABA v. Canada
OHCHR – Human Rights Committee
Communication No. 1465/2006
25 March 2010
International Covenant on Civil and Political Rights: articles 7 (Freedom from torture); 9, paragraph 1 (Right to liberty and security of persons); 13 (Conditions for a foreigner to be expelled from a State party); 14 (Right to a fair trial); 18, paragraph 1 (Freedom of thought, conscience and religion); and 24, paragraph 1 (Special protection for children).
The author of the communication was Ms. Diene Kaba, a national of Guinea, who submitted the communication on her behalf and on behalf of her daughter, Fatoumata Kaba, born on 2 December 1994 in Guinea. Both of them escaped Guinea in May 2001 and went to Canada, claiming refugee status on grounds of membership of a particular social group as single woman and victims of domestic violence and in views of serious risks of Fatoumata’s excision. Canada refused to grant refugee status to the author and her daughter on grounds of lack of credibility.
Ms. Kaba stated that her removal to Guinea with her daughter would violate their rights under articles 7 (freedom from torture, inhuman and degrading treatment); 9, paragraph 1 (right to liberty and security of persons); 13 (conditions for a foreigner to be expelled from a State party); 14 (right to a fair trial); 18, paragraph 1 (freedom of thought, conscience and religion); and 24, paragraph 1 (special protection for children), of the International Covenant on Civil and Political Rights (‘The Covenant’). She explained that it would expose her daughter to certain excision and a forced marriage by her father. She claimed that several errors were committed in the decisions rendered by the State, concerning the risk of excision and failure to assess the best interests of the child.
In the consideration of the merits, the Human rights Committee recalled that States parties are under an obligation not to expose individuals to a real risk of being killed or subjected to torture or cruel, inhuman or degrading treatment or punishment upon entering another country by way of their extradition, expulsion or refoulement. In this connection, the Committee considered that there was no question about the fact that subjecting a woman to genital mutilation amounted to treatment prohibited under article 7 of the Covenant. The Committee then examined whether Fatoumata was running a real and personal risk of being subjected to such treatment if she was returning to Guinea.
In its consideration, the Committee stated that although in Guinea law prohibits female genital mutilation, this legal prohibition is not complied with. It noted the following points: (a) genital mutilation is a common and widespread practice in the country, particularly among women of the Malinke ethnic group; (b) those who practice female genital mutilation do so with impunity; (c) in the case of Fatoumata Kaba, her mother appeared to be the only person opposed to this practice being carried out, unlike the family of Fatoumata’s father, given the context of a strictly patriarchal society; (d) the documentation presented by Ms. Kaba, which had not been disputed by the State party, revealed a high incidence of female genital mutilation in Guinea; (e) the girl was only 15 years old at the time the Committee was making its decision. Although the risk of excision decreases with age, the Committee was of the view that the context and particular circumstances of the case at hand demonstrated a real risk of Fatoumata being subjected to genital mutilation if she was returned to Guinea.
Consequently, the Committee was of the view that Fatoumata Kaba’s deportation to Guinea would constitute a violation of article 7 and article 24, paragraph 1, of the Covenant, read in conjunction. It urged the State party to refrain from removing Fatoumata Kaba to a country where she was running a real risk of being excised.
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