Executive Summary
1. Introduction
Africa's refugee crisis is not going away. Taking refugees together with
those displaced internally within national borders, approximately 20 million
Africans are currently uprooted from their homes by civil strife, social
breakdown, and persecution. The rights of African refugees are protected,
in theory at least, by what is widely believed to be the most progressive
treaty regime in the world: the 1969 Organization of African Unity Convention
Governing the Specific Aspects of Refugees in Africa (OAU Convention).
Yet in practice the OAU Convention has not prevented refugees from being
subjected to military attacks, physical abuse, expulsion, and restrictions
on their rights. Human Rights First undertook this study with the aim
of evaluating the successes and failures of the OAU refugee system. In
order to assess and report on the state of protection for African refugees,
the study aimed in particular to:
- assess the effectiveness and appropriateness of the OAU Convention
as a legal mechanism for refugee protection;
- evaluate the success of the OAU machinery responsible for implementing
the Convention;
- survey the extent to which national legal systems have incorporated
the provisions of the OAU Convention, the UN Convention and the 1967
Protocol;
- study the relationship in practice between mechanisms for the protection
of the rights of refugees and the national and international systems
of assistance for refugees.
This report attempts to show the intimate link between refugee rights
and human rights issues at every level. The reasons for a refugee's flight
are almost inevitably tied to abuses of human rights in the country of
origin, whether resulting from direct persecution or as consequences of
larger conflicts instigated by undemocratic governments or unrecognized
regional or ethnic claims. Furthermore, governments, international agencies
and sometimes NGOs lose sight of the fact that refugees are entitled not
only to the special set of rights laid down in international refugee treaties,
but also the whole range of civil and political, economic, social, and
cultural rights contained in both the UN and OAU treaties. This point
is especially salient in the current context of the growing complexity
of the refugee crisis where issues of refugee protection are becoming
almost inextricably tied to issues of relief and humanitarian assistance.
2. The Legal Framework of Refugee Protection in Africa
The quality of protection accorded to refugees depends upon the implementation
of international legal standards for the protection of refugees on the
domestic level by means of national legislation. International legal standards,
such as those contained in the Convention Relating to the Status of Refugees
1951, provide a basis for examining the conduct of States towards refugees
in accordance with their obligations under international law. These standards
regarding refugees specifically, which establish general obligations for
States and contain civil, economic, and social rights for refugees on
an integrated basis, must be seen in the wider context of universal human
rights guaranteed in the Charter of the UN and the UNDHR.
Entitlement to protection as a refugee is dependent upon fulfillment
of the requirements for refugee status in international law. Under the
Convention, a refugee is anyone who suffers a loss or lack of protection
in the country of origin due to a well-founded fear of persecution in
his or her country of origin. A central element of persecution seems to
be the threat of violation or actual violation of refugees' individual
human rights. However, Human Rights First discovered that application
of the "persecution-based criterion" in Africa demonstrated a very restrictive
attitude, reflecting in some cases xenophobic concerns on the part of
receiving countries.
Individual status determination procedures in Africa often do not take
into account the principles which exclude protection to those refugees
who have committed crimes against peace, a war crime, or crimes against
humanity; thus several former African leaders have been granted asylum
despite their deplorable human rights records during their hold on power.
Host countries must be assisted to constitute special procedures to deal
with such asylum seekers. In this respect the current war crimes tribunals
in Rwanda and Ethiopia are important to follow given their potential preventative
and curative consequences for refugee flows elsewhere in Africa.
Regional standards, such as the Convention Governing Specific Aspects
of Refugee Problems in Africa (1969), are an effective regional complement
to the international standards. Regional standards must also be viewed
in relation to human rights instruments, particularly the African Charter
on Human and Peoples Rights. The obligation of states to receive and secure
settlement of refugees within their territories may arguably be extended
to all members of the OAU, even those states which have not yet ratified
the African Convention.
The definition of refugee under the African Convention means in practice
that refugees may be admitted on a prima facie group basis; in this way,
group eligibility obviates the necessity for individual status determination.
Sometimes implementing provisions of the African Charter have meant restrictions
on the rights of refugees under the international Convention; for example,
the application of the principle of safe location has in some cases meant
excessive restrictions on the freedom of movement of refugees.
The functions of domestic standards include: 1) the implementation of
international standards at the domestic level through legislation and;
2) the provision of an internal legal and administrative framework for
dealing with refugee matters. Domestic legislation must always be seen
in the context of international standards and human rights. Special mention
is made of francophone countries who follow the civil law tradition which
allows for the direct implementation of international standards in domestic
legislation without special legislation. Modes of implementation otherwise
vary greatly depending on the degree to which they incorporate international
standards. Refugee control legislation such as that used in Tanzania,
Botswana, and Zambia is found to be very restrictive, while refugee laws
in Sudan and Zimbabwe are held up as models of progressive domestic legislation.
3. The Problem of Legal Status
Fundamental to the protection of refugees and asylum-seekers is the host
state's recognition of their legal status as refugees. While both individual
status criteria and prima facie group basis determination are often imperfect,
the implications for refugees who are not accorded any recognition at
all are potentially disastrous. For example, refugees in South Africa
until very recently suffered from the lack of any protection regime, leaving
them vulnerable to physical hazards such as electrification on the border
fence, exploitation as cheap labour, arrest, and deportation. For Mozambican
refugees the situation is particularly grim, given that Pretoria sponsored
the war which made Mozambique ungovernable and then refused refuge to
the victims of that war in violation of international law. Unfortunately,
the positive changes ushered in by South Africa's 1993 ratification of
the 1951 Convention have been compromised by a new wave of xenophobia
in South Africa focussing on foreign migrant workers.
The legal status of refugees is a particular problem in West Africa as
a result of the 1975 treaty establishing the Economic Community of West
African States (ECOWAS), which enshrines the principle of mobility of
labour and the free movement of citizens within the community. These provisions
have resulted in a legal vacuum for refugees, who enjoy no specific guarantees
of their status, rights or protection. Liberian refugees in Cote d'Ivoire,
for example, are told by the Ivoirian government that they are not refugees
but rather ECOWAS nationals; on the other hand, in order to receive assistance
the Liberians must remain in designated camps which restricts their right
to freedom of movement. Many Liberian refugees must make a very difficult
decision between receiving assistance in rural areas or moving to urban
centres and living in abject poverty. The plight of Mauritanian refugees
in Senegal highlights the importance of recognition of legal status of
refugees; whereas Senegal has ratified all relevant treaties regarding
refugees and has even enacted domestic legislation guaranteeing additional
rights of refugees, Mauritanian refugees enjoy none of the basic rights
and protection because the Senegalese authorities, for political reasons,
do not recognize them as refugees. Thus Human Rights First found that
Mauritanian refugees suffered from widespread discrimination as soon as
they moved away from the border areas, in addition to indirect involuntary
repatriation without the benefit of international supervision to guarantee
their security.
The situation of "urban refugees", usually prominent, urban and educated
people, illustrates some of the difficulties involved in determining legal
status on a case-by-case basis. Such refugees are often targets of xenophobic
sentiments arising from economic woes, such as has occurred in Kenya,
or have no access to independent advice to enable him or her to buttress
their appeal for asylum. While this is a basic structural flaw in the
status determination procedure in Zimbabwe, it is somewhat offset by the
provision in Zimbabwean law which stipulates that the Refugee Act overrides
all other relevant legislation in cases where they conflict.
4. The Physical Protection of Refugees
Refugees are by their nature vulnerable to a variety of physical attack,
either from forces in their own country hostile to their political/ethnic
affiliation, from bandits, from other ethnic groups or refugees in the
host country, and from forces in the host country whose obligation it
is to protect the very persons they are attacking. Females form a particularly
vulnerable subset of refugees, since they are all too often subjected
to sexual abuse as well as attacks on their physical integrity.
The problem of protection is particularly acute when security forces
of host countries cannot, or do not, fulfill their obligation to ensure
physical protection of refugees. The persecution of Somali refugees in
Kenya by government forces is described in detail as an example of the
likelihood of host governments to extend ill-treatment of their own citizens
to refugees within their borders. The participation of Kenyan police and
soldiers in the beating, killing and raping of Somali refugees has gone
virtually unpunished, and refugees are reluctant to file complaints against
the police for fear of reprisals.
The lack of physical security suffered by refugees in Cote d'Ivoire is
presented in support of the assertion that host governments almost invariably
have some stake in the conflict that has caused displacement of refugee
populations; often the host government will pursue a policy at odds with
the views of refugees within their borders. Thus Liberian refugees in
Cote d'Ivoire have been attacked by NPFL forces operating in border villages
while the Ivoirian authorities turned a blind eye; indeed, Krahns and
other refugee groups suspected of support for anti-NPFL factions have
been under the threat of arbitrary detention by the Ivoirian security
forces and transfer into the hands of the NPFL.
The issue of refoulement is intimately tied up with the physical protection
of refugees. Despite the prohibition of refoulement in both the UN Convention
and the OAU Convention, often the cavalier attitude or the cynical self-interest
of host governments has trampled over the rights of refugees. Although
actual incidents of refoulement have significantly decreased in the 90s,
the threat of refoulement continues to hang over the heads of refugees.
A recurrent theme throughout this chapter is the failure of members of
the international community, notably the UNHCR, to act effectively as
an advocate for refugee protection. Whether due to pusillanimity, under-representation,
or under-funding, the UNHCR has often been unable to fulfill its own protection
mandate, leaving refugees without independent protection against systematic
abuse or without avenues of redress. While the UNHCR has done much to
improve the practices of host governments (ie provision of rape counsellors
in Kenya and intervention in cases of refoulement), its continued adherence
to the twin fallacies of disinterested host governments and their expected
conformity with international standards despite domestic records of abuse
will continue to compromise refugees' guaranteed right to physical protection.
5. The Rights of Refugees
In theory, refugees enjoy two overlapping sets of rights: those accorded
to them as individuals and guaranteed under international human rights
law, and specific rights relating to their status as refugees (ie right
to asylum). Individual human rights attach themselves to human beings,
and are not restricted to citizens of a state. In practice, however, the
rights of refugees as individuals are often restricted by host governments,
often under the misleading rubric of "security considerations." This chapter
discusses a few of the basic fundamental human rights as they are practicably
applied to refugees in countries visited by Human Rights First.
- Right to freedom of expression and association: In contravention
of Article 2 of the African Charter and Articles 19 and 22 of the ICCPR
which guarantee these particular rights, Article III of the OAU Convention
clearly restricts the political rights of refugees under the title "Prohibition
of Subversive Activities"; this article prohibits the use by refugees
of arms, the press, or the radio to create tension between OAU member
states. This article is too easily invoked to expel or harass refugees
who engage in political activity that may embarrass the host government
or raise the ire of neighbouring governments. A particularly vulnerable
group in this respect has been dissident members of South African liberation
movements, who have suffered widespread human rights violations because
of their dissenting opinions.
- Rights of women refugees: In addition to the appalling sexual
abuse suffered by female refugees at the hands of fellow refugees, host
security forces, and bandits, women are clearly under-represented within
refugee structures, and enjoy little or no effective participation in
decision-making processes. Such abuses are often tolerated by host governments
and aid agencies in deference to 'tradition', though these authorities
seem to exercise selective criteria as to which situations can accommodate
traditional structures or not. Making female voices heard in decision-making
processes could go a long way in finding solutions to the abusive circumstances
in which female refugees are forced to operate.
- Freedom of movement: Restrictions on freedom of movement, guaranteed
in the ICCPR, 1951 Convention, and the African Charter, have the greatest
impact on the daily lives of refugees. These restrictions are most commonly
implemented through control of food rations in designated areas (ie
zones d'accueil in Cote D'Ivoire), and the issuance (or non-
issuance) of identity cards and travel-permits to refugees. Thus refugees
face losing their status and protection as refugees if they exercise
their right to freedom of movement and leave the designated areas set
up for them by host governments. Refugees, such as those in Zimbabwe,
have been held involuntarily in "holding camps", and have been subjected
to unlawful detention.
- Economic, social and cultural rights: Restrictions placed on
refugees' access to land and/or paid employment usually results in their
super-exploitation by employers as illegal migrant labour. The inability
of refugees in many cases to achieve self-sufficiency in their host
countries has meant reliance upon an imperfect aid regime compromised
by logistical problems, theft, and sometimes negligence in regards to
nutritional requirement.
6. Protection in Mass Repatriation Programs
In contrast to the widespread assumption that refugees tend to remain
in their host countries due to economic motives, research conducted by
Human Rights First revealed that an overwhelming majority of refugees
were anxious to return home. However, it is fundamental to the protection
of refugees that their return be voluntary in nature, and not forced upon
them directly or indirectly through the reduction of their economic or
social benefits and rights. In this respect it is necessary to address
several important protection issues: Is it clear that the refugees are
returning to a situation where their human rights will be respected? Has
the conflict that caused the displacement in the first place abated? Have
physical hazards, such as land mines, been eliminated? Did refugees have
comprehensive and reliable information necessary for making a voluntary
decision to return?
The fundamental issue underlying the repatriation process is one of freedom
of information. The people best placed to evaluate these issues are often
refugees themselves and, in the final analysis, basic knowledge will be
more valuable to them than complex, ill- suited logistical plans. The
spontaneous mass repatriation in 1992 of Mozambican refugees provides
a useful case study where refugees found their own solutions in the absence
of an appropriate repatriation plan under the auspices of the UNHCR.
Also fundamental to the voluntary nature of return is the absence of
pressure applied through the reduction of food rations or other basic
necessities. Donors must accommodate the fact that during times of transition
refugees will be moving back and forth across borders, sometimes collecting
rations on both sides. Curtailing food rations may force refugees to return
to an unstable situation, precipitating another mass displacement.
In situations of mass repatriation, it is essential that free transport
and other facilities be provided for vulnerable groups of refugees, such
as female-headed families and children. Leaving these groups until the
end may deprive them of their support groups in the camps and possibly
after their repatriation as well.
In situations of mass repatriation, NGOs and other agencies situated
in countries of asylum can play an important role in promoting refugee
rights and protection. For example, NGOs in Malawi assisted refugees to
remain informed of the situation in Mozambique by providing batteries
and radios; similarly, other NGOs helped to educate refugees about the
phenomenon of land mines, which had claimed the lives of hundreds of returning
refugees.
7. The Place and Role of the OAU Bureau for Refugees
Today the Bureau for Refugees (formally the Bureau for the Placement,
Education and Training of Refugees) continues to be the only organ within
the OAU devoted to the refugee issue, despite the growing complexity and
scope of the refugee crisis. However, underfunding, institutional politics,
lack of autonomy, and staffing difficulties have rendered the Bureau largely
ineffectual in dealing with the exigencies of the refugee crisis. In terms
of fulfilling its mandate, the Bureau has had limited success. While its
education and training scholarships have undoubtedly helped some refugees,
the spectrum of refugees affected is very small, with an evident bias
in favour of male "urban" refugees. The Bureau has ceased to meet its
obligation to maintain a data-bank on the "patterns, causes, and consequences"
of refugee movements and to disseminate information to those involved
in the Africa refugee question; in this respect, the Bureau must make
efforts to revive the "Africa Refugees" publication. While the intention
to support income-generating projects (IGP) to enable refugees, especially
vulnerable refugees such as women, to become self-sufficient is a laudable
one, there seems to be no mechanism for evaluating the performance and
relevance of these projects; in some cases, the IGPs have had the undesirable
effect of perpetuating the oppression of women refugees.
The Bureau is seriously constrained in the fulfillment of its role as
a mediator on behalf of refugees given its location within the Political
Department of the OAU Secretariat; the Bureau cannot issue public criticisms
of member states, nor vigorously urge them to adhere to their obligations
under the 1969 Convention. Consequently, refugees continue to be subjected
to abuse, discrimination, expulsion and other forms of human rights violations.
The Bureau has a role to campaign for the implementation of domestic legislation
that will provide governments with the proper legal framework to facilitate
the protection of refugees.
The changing nature of the refugee crisis in Africa from the time of
the Bureau's inception in 1968 raises questions about fundamental features
of the Bureau's mandate. For example, in order to effectively implement
the principles of the 1969 Convention, the Bureau must be liberated from
the constraints imposed by member states and be able to act independently.
Additionally, other questions, such as the status and position of refugee
women and children, need to be formally and fully integrated into the
Bureau's program.
In order to avoid becoming completely irrelevant as an actor in the protection
of African refugees, the Bureau of Refugees needs to embark upon a critical
re-evaluation of its present mandate and programs to ensure that the Bureau's
activities conform to the demands of the present refugee situation.
8. The United Nations High Commissioner for Refugees
The UNHCR is the inter-governmental agency responsible for policing the
1969 UN Convention on Refugees, and is present wherever there are refugees
in significant numbers. A liberal interpretation of its mandate has meant
that the UNHCR has also come to monitor the implementation of the OAU
Convention as well. The UNHCR has a statutory protection role, and it
is this protection role which distinguishes it from other international
aid agencies.
In practice, however, the UNHCR has been hampered in its efforts to fulfill
its mandate by contradictions inherent in its nature. Primarily, the large
bureaucratic structure of the UNHCR makes it almost impossible for them
to respond in a flexible, creative manner to new situations as they occur.
Secondly, the twin functions of providing both relief and protection can
mean that sometimes UNHCR personnel are working at cross-purposes. For
example, the UNHCR may be unwilling to take a confrontational position
towards the host authorities on issues of physical protection of refugees
in the interest of maintaining good relations which facilitate aid distribution.
Human Rights First contends that the UNHCR has more leverage with host
governments than it likes to admit, given the flow of foreign exchange
that accompanies mass flows of refugees, and the governments' unwillingness
to deal with refugees on their own.
Human Rights First has identified two areas in particular where the UNHCR
has failed to fulfill its mandate for protection: 1) lack of physical
presence in refugee settlements and; 2) failure to provide independent
legal representation. Due to minimal presence in refugee camps, UNHCR
personnel are unable to witness the performance of the host security forces
first hand, or be available for refugees to lodge complaints. In some
cases, UNHCR officers had no background experience in protection issues
at all. Due to the variety of abuses with which they are faced, refugees
are in constant need of independent advice and advocacy in order to lodge
complaints and receive redress from the host authorities. Although it
is theoretically the responsibility of the UNHCR to provide such representation,
in practice refugees perceive the UNHCR to be part and parcel of the host
government establishment. This 'misperception' is augmented by situations,
such as in Zimbabwe, where the UNHCR protection officer sits on the eligibility
committee.
While the use of NGOs to perform limited protection roles (ie provision
of legal advice to asylum-seekers) may mitigate some of protection problems
faced by refugees, the UNHCR must not neglect its statutory protection
role. In the final analysis the UNHCR is not answerable to host governments,
but to the international community and to refugees themselves. To be fair,
however, there is an urgent need to increase the funding allocated to
the protection wing of the UNHCR, and increased recognition on the part
of donors of the importance of protection issues.
9. The Role of Non-Governmental Human Rights Organizations
An enormous gap, both in conception and practice, exists between the
protection of internationally recognized human rights standards and the
protection of refugee rights. This gap is noticeable in the OAU, which
has separate treaties and institutions dealing with human rights and refugee
issues, in the UNHCR, and in NGOs concerned with human rights. Yet "refugee"
and "relief" organizations are often intimately engaged in human rights
activities. For example, such organizations have taken measures to protect
the rights of vulnerable sectors of the refugee population, such as women
and children. Furthermore, these organizations are also instrumental in
providing information to refugees about their rights.
The limited role of human rights NGOs in the defense of refugee rights
is also evident among major intergovernmental organizations, who have
been slow to bridge the gap between human rights and refugee rights. Taken
together with the relatively recent emergence of may African human rights
NGOs, the often remote location of refugee populations, and the assumption
on the part of may NGOs that the OAU Convention's group eligibility provisions
protect refugees from human rights violations, it is not surprising that
refugee rights are a low priority for most African NGOs.
However, human rights NGOs have an important and distinct contribution
to make to the defense of refugee rights. They can provide advice and
legal representation in the absence of UNHCR assistance, they can research
and document abuses against refugees in order to raise public awareness,
thy can try to sensitize local populations to refugee rights as a countermeasure
against rising xenophobia, and they can use international law and international
complaints procedures where appropriate. Several African NGOs active in
refugee rights issues, such as the Civil Liberties Organization in Nigeria
and the Rencontre Africaine pour la Défense des Droits de l'Homme, have
done effective work in the arena of refugee rights which may act as useful
models for other NGOs.
Postscript: Rwanda
Although the massive exodus of Rwandese refugees occurred after Human
Rights First had completed its fieldwork, the major problems concerning
the protection of those escaping the violence of Rwanda underlines the
report's main findings and places some of the issues discussed therein
in sharp relief. Some of these problems include: contradictions inherent
in the group eligibility process, the lack of physical protection in the
refugee camps (stemming in part from the inability of host governments
to provide adequate protection), faulty structures of food distribution,
and flaws in conditions of voluntary repatriation.
In the case of Rwanda, the group eligibility process masked the fact
that among those granted protection were persons who were involved in
the massacre and killing of others, as well as the planning to commit
genocide. The inability of the various host governments involved to enforce
the relevant international and regional standards prohibiting protection
for such individuals created enormous problems for Rwanda refugees in
terms of physical security. The failure on the part of host governments
and the UNHCR to separate the ousted government and army from refugees
meant that former Hutu government officials were allowed to exert political,
often violent, control over refugees in the camps. This security problem
was exacerbated by the ease with which ousted militiamen entered host
countries with their weapons.
As in other cases outlined in chapter 4, the protection of Rwandese refugees
was seriously undermined by the abusive practices of host security forces,
as well as the complicity of host governments in the original disruptive
political crisis in Rwanda. For example, the freedom with which the exiled
political/military leadership were allowed to operate in the Zairian and
Tanzanian camps meant that they were able to commandeer the food distribution
structures to achieve political goals through intimidation and coercion.
As a potential solution, aid agencies might consider using refugee women
as the center of any food distribution system.
The repatriation of Rwandese refugees is clearly a sensitive matter that
must take into careful consideration all issues relevant to the safety
and welfare of returning refugees. In the UN's haste to repatriate Rwandese
refugees, the specialized obligation of the UNHCR to protect refugees
must not be subsumed by the exigencies of humanitarian assistance. In
the face of vociferous propaganda from parties to the conflict, the UNHCR
must establish the real conditions of security for returning refugees,
since further instability will be the likely result if there is not adequate
preparations made for the protection of the rights of returning refugees.
Human Rights First is skeptical about the efficacy of providing safe havens
or peace corridors for Rwandese refugees, given the degree of commitment
of resources that would be required from the UN, and the fact that refugee
populations in safe havens in other situations (ie Bosnia) have sometimes
become the target of internecine attacks.
