News Analysis

Know Your Rights and Freedoms: FREEDOM OF MOVEMENT

Freedom of movement, mobility rights, or the right to travel is a human rights concept encompassing the right of individuals to travel from place to place within the territory of a country, and to leave the country and return to it. The right includes not only visiting places, but changing the place where the individual resides or works.

The right to freedom of movement is enshrined in
Article 13 of the Universal Declaration of Human Rights.

The right is enshrined in Article 12 of the International Covenant on Civil and Political Rights:

1. 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.

2. Everyone shall be free to leave any country, including his own.

3. 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 (order public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.

The Convention on the Rights of the Child contains this right in Article 10.

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families contains this right in Articles 5, 8 and 39.

The Convention on the Rights of Persons with Disabilities contains this right in Articles 9 and 18.

The right is also contained in Article 12 of the African Charter on Human and Peoples’ Rights.

Such a right is provided in the constitution of Lesotho.
Section 7 of the constitution asserts that:
(1) Every person shall be entitled to freedom of movement, that is to say, the right to move freely throughout Lesotho, the right to reside in any part of Lesotho, the right to enter Lesotho, the right to leave Lesotho and immunity from expulsion from Lesotho.

(2) Any restriction on a person’s freedom of movement that is involved in his lawful
detention shall not be held to be inconsistent with or in contravention of this section.

(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –

(a) for the imposition of restrictions in the interest of defence, public safety, public order, public morality or public health on the movement or residence within Lesotho of any person or any person’s right to leave Lesotho:

Provided that a person shall not be permitted to rely in any judicial proceedings upon such a provision of -law as is referred to in this paragraph except to the extent to which he satisfies the court that the provision or, as the case may be, the thing done under the authority thereof does not restrict the movement or residence within Lesotho or the right to leave Lesotho of the person concerned to a greater extent than is necessary in a practical sense in a democratic society in the interests of any of the matters specified in this paragraph;

(b) for the imposition of restrictions, by order of a court, on the movement or residence within Lesotho of any person or on any person’s right to leave Lesotho either in consequence of his having been convicted of a criminal offence under the law of Lesotho or for the purpose of ensuring that he appears before a court at a later date for trial in respect of such a criminal offence or for proceedings preliminary to trial or for proceedings relating to his extradition or lawful removal from Lesotho;

(c) for the prohibition from entry into Lesotho of a person who is not a citizen of Lesotho; for the imposition of restrictions on the freedom of movement of any person who is not a citizen of Lesotho;

(e) for the imposition of restrictions on the acquisition or use by any person of land or other property in Lesotho;

(f) for the imposition of restrictions upon the movement or residence within Lesotho or on the right to leave Lesotho of any public officer;

(g) for the removal of a person from Lesotho to be tried or punished in some other country for a criminal offence under the law of that other country or to undergo imprisonment in some other country in execution of the sentence of a court in respect of a criminal offence of which he has been convicted under the law of Lesotho; or

(h) for the imposition of restrictions on the right of any person to leave Lesotho that are necessary in a practical sense in a democratic society in order to secure the fulfilment of any obligations imposed on that person by law.

(4) If any person whose freedom of movement has been restricted by virtue of such a provision as is referred to in subsection (3)(a) so requests at any time during the period of that restriction not earlier than one month after the order was made or three months after he last made such a request, as the case may be, his case shall be investigated by an independent and impartial tribunal presided over by a person appointed by the Chief Justice:

Provided that a person whose freedom of movement has been restricted by virtue of a restriction that is applicable to persons generally or to general classes of persons shall not make a request under this subsection unless he has first obtained the consent of the High Court.

(5) On any investigation by a tribunal in pursuance of subsection (4) of this section of the case of any person whose freedom of movement has been restricted, the tribunal may make recommendations concerning the necessity or expediency of continuing that restriction to the authority by whom it was ordered and, unless it is otherwise provided by law, that authority shall be obliged to act in accordance with any such recommendations.

(6) Nothing contained in or done under the authority of any provision of the customary law of Lesotho shall be held to be inconsistent with or in contravention of this section to the extent that that provision authorises the imposition of restrictions upon any person’s freedom to reside in any part of Lesotho.

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