REFUGEE PROTECTION IN
AFRICA
Jacob van Garderen
Lawyers for Human Rights



Origins and development
of international refugee
law
South African refugee law
Xenophobia
TAC – June 2008
Concept of asylum

Exercise: Word
association –
Asylum
International origins of refugee
protection

Sheltering people fleeing
persecution and war part of
human history and religious
and social practice
– Arab world
• Istijara and ijara
• Aman
– Judeo-Christian tradition
Recent developments
Awareness of international responsibility
to provide protection – only since
League of Nations 1921
 Post WWII: Refugee issue a priority at
first meeting of UN
– IRO established in 1947
– UNHCR 1951

Introduction to International Refugee Law
International refugee law – branch of human rights
law
 Developed to protect human beings in specific
circumstances
 Various international instruments offer protection to
refugees; e.g Universal Declaration, Torture, CRC
etc.
 Primary refugee instruments:

– 1951 UN Refugee Convention
– 1969 OAU Refugee Convention
1951 Convention Relating to the
Status of Refugees

Preparation 1947-1950
 East/West tensions on the increase resulting
in persistent refugee flows
 Significance of Convention
–
–
–
–
General definition of “refugee”
Embodied principle of non-refoulement
Minimum standards of treatment, basic rights
Other provisions: juridical status, welfare,
employment, identification, naturalisation etc
– States to cooperate with UNHCR
1951 Convention Relating to the
Status of Refugees

Limitations
– Geographical: only European refugees
– Datelines: Pre-1951

1967 Protocol
– New refugee movements – Africa (60’s)
– Removed ’51 dateline and geographical
limitation
Definition of a Refugee

Inclusion
– UN definition
• Well founded fear of persecution or danger for
reasons of race, religion, nationality,
membership of a social group or political
opinion, and
• Outside country of nationality
• Not protection by country of nationality
Inclusion

Alienage
– outside country; refugee sur place

Well founded fear
– Subjective element: reasonable fear
– Objective element – general political situation

Persecution
– No universally accepted definition
– Art 33 “threat to life or freedom on account of race,
nationality, religion, political opinion, membership
– Persecutor: State or Non-State Actors
– Discrimination – only serious prejudicial treatment
– Prosecution – victim of injustice, not fugitive from
justice
Exclusion Clause

Persons not in need of protection
– Two elements
• Enjoying rights equal to citizens
• Enjoy full protection against deportation

Persons already receiving protection
– Assistance from other UN agencies
• UNRWA for Palestinian refugees in Middle East
Exclusion Clause

Persons not deserving of protection
– Where there are serious reasons for considering
that a person has committed:
• Crimes against peace – planning/initiating war of
aggression
• War crimes – e.g. murder, torture, plundering, wanton
destruction, deportation
• Crimes against humanity – same as war crimes, just on
larger scale, e.g. genocide, extermination, enslavement
• Serious non-political crimes
• Acts contrary to the UN and OAU
Cessation – Loss of Status

Change of circumstances
– Determination made by State –
controversial
– Objective assessment
• Fundamental changes
• Time since change took place/ durability
– Reconsideration of individual cases
Cessation – Loss of Status

Withdrawal of status when:
– Voluntary acts
• Re-availment or re-establishment of protection in CON
• Acquisition of nationality
• Acquisition of new nationality
– Three elements
• Must be voluntary
• Intention obtain protection
• Actual obtaining of protection
Other Instruments

Human rights conventions
– ICESR, ICCPR, CRC, CEDAW, CAT

Convention relating to the Status of Stateless
Persons
– Standards of treatment of stateless persons (same
as refugees)

Convention on Reduction of Statelessness
– To avoid statelessness by birth or on religion,
racial and political grounds

Geneva Conventions
Regional Instruments

Europe
– Dublin and Schengen Conventions: criteria on
which members state is responsible for
determining refugee status

Latin America - 1984 Cartagena Declaration
– Initially designed to protect victims of wars in El
Salvador, Guatemala and Nicaragua.
– Definition similar to OAU definition
• protecting people fleeing generalised violence, massive
human rights violations, internal conflicts etc
– Most Latin-American countries have incorporated
provisions into national legislation
Development of Refugee Policy
in Africa


1945 – creation of
United Nations
Only three states
independent
– Egypt, Ethiopia and
Liberia

In 1960’s only fifteen
African states ratified
1951 UN convention
– many bound by
declarations made by
previous colonial powers
Development of Refugee Policy
in Africa


1960’s decision by OAU
to draft regional refugee
instrument
Primary considerations
– Concern for refugees v
Pan Africanist ideal of
eliminating sources of
tension between African
states
– African solution for
refugee problem
– To address jurisdictional
problem of UN
Convention
1969 OAU Refugee Convention

Peculiar features of
refugee movements in
Africa
– Large scale movements due to
struggles against colonialism,
armed conflict
– individual determination
impossible – group status

Definition contains 1951 UN
Convention definition and
expanded definition
– “external aggression,
occupation, foreign domination
or events seriously disturbing
public order in part or whole of
the country”
1969 OAU Convention (Cont.)

Add important principles to international
law:
– Broader definition
– Granting of asylum humanitarian and
peaceful act
– Duty on refugees to abstain from
subversive activities
– Non-refoulement and rejection at borders
– International solidarity and burden-sharing
Refugees in Africa

Characterized by large refugee movements,
internal population displacements and mass
repatriation
 Region is hosting second largest refugee
population in the world
 Significant decrease from 6 million in 1994 to
approx 3 million today
 4 geographical regions – Horn, Great Lakes,
West and Southern Africa
Development of Refugee
policy

Two stages
– 1960 – 1990 ‘Golden era’
– Since 1990 Restrictive approach

Golden era
– Protection despite limited resources
– 1969 OAU Convention
– Solidarity against colonialism and Apartheid

Restrictive approach
– New policies of containment, rejection at borders,
premature repatriation
– Paradoxically – new refugee legislation adopted
Recent policy developments

Regional initiatives to regulate free movement
of people,
– ECOWAS
– SADC Protocol on Facilitation of Movement of
People

NePAD places obligation on states to address
root causes of conflict.
 Bilateral Agreements – Lesotho, Mozambique
etc
 Southern African Customs Union
African Commission on Human and Peoples’
Rights

Rencontre Africaine pour la Defense des Droits de
l’Homee (RADDHO) v. Zambia
– In response to mass expulsion of West African nationals, the
Commission required all states to secure the rights in the
Charter to all persons within their jurisdiction

Organisation Mondiale Contre La Torture and Others
v. Rwanda
– Commission found that the deportation of Burundian
refugees of Hutu identity was a breach of non-discrimination
principle

Ouko v Kenya
– Repatriation agreements which do not satisfy the OAU
Convention requirements
Refugees in South Africa

Numbers
–
–
–
–
–
–


+/- 250 000 asylum seekers since 1994
+/- 120 000 adjudicated
12% recognised as refugees
63% from Southern Africa
18% from East Africa
11% from Asia
Many are educated, single urban based males
Small, but increasing number of unaccompanied
minors
South African refugee policy
Initially, no refugee policy – “prohibited
persons”
 1998: Adoption of Refugees Act
 2000: Regulations

– Restrictive
– Work and study prohibition

2002: Immigration Act, amended in
2004
SA Refugees Act - different refugee
situations
Individual
Mass Arrival
Case-by-case
Refugee status
determination
Collective determination
Prima facie
Refugees Act of 1998





Considerable input from civil society
3 stage RSD
Both UN and OAU definitions
Non-refoulement principle
Rights and obligations
• formal written recognition of status
• full legal protection per Ch 2 Constitution
• to apply for Permanent Residency
• to an identity document
• to a travel document
• to seek employment
• to same health care and education as SA citizens
Asylum procedure

Lodge an application for asylum at a Refugee
Reception Office
 Application process: complete forms, finger prints,
biometrics, photos
 Receive a section 22 permit
 After 30 days - Status Determination Hearing
 After 180 days receive an outcome to your intervieweither receive a rejection of your application OR be
granted refugee status
 Lodge an appeal against the rejection with RAB
 Judicial review
Implementation of Refugee
Protection





Access to asylum procedures
– Long queues
– Selective assistance
– Corruption
Delays in adjudication
Restrictive interpretation
– Internal flight alternative
– Safe 3rd country
Documentation
RSD Hearings
– Interpreters
– Delays
– Insensitive to protection issues
Detention

No mandatory detention,
only in exceptional
circumstances

Regular arrests,
detention and
deportation
 Various reports
– Arbitrary arrests
– 30 days
– Detention conditions


Detention of persons
after lodging asylum
claims
Detention monitoring
programme
Case Law

Non-refoulement
– LHR v MoHA

Safe third country principle
– LHR v MoHA; Kabuika

Work and Study
– Watchenuka (SCA)

Unaccompanied Minors
– Van Garderen N.O; Centre for Child Law

Disability grants
– Scalabrini Brothers

Employment
– Union of Refugee Women

Access
– Somali Refugee Forum; Tafira

Detention
– SAHRC; Centre for Child Law; LHR; CoRMSA; ZEF
NEW INTERNATIONAL
TRENDS

Numbers
– 9 Million, lowest in 25 years
– Reasons: fewer crisis, several conflict
came to end, repatriation
– Fewer interstate conflict, more internal
strife, thus more IDPs (7.5 m in Sudan and
DRC)
Numbers: Age and Gender

54% - Children as
proportion of
population
 50% women
Children
Children – largest
demographic
refugee group
 Special category:

–
–
–
–
Children are vulnerable,
Children are dependent,
Children are developing,
Children face greater
dangers
Internally displaced persons

Africa – 13 million
– Sudan 6 million
– Uganda 1.4 million
– DRC 1.5

Causes of displacement
– Conflict and persecution
– Natural disasters
– Development and
involuntary resettlement
Who is an IDP?


No legal definition of Internally Displaced Persons
(IDP).
The Guiding Principles on Internal Displacement
in 1998 (Deng Principles) defines IDP as
– “persons or groups of persons who have been forced or
obliged to flee or to leave their homes or places of
habitual residence, in particular as a result of or in order
to avoid the effects of armed conflict, situations of
generalized violence, violations of human rights or
natural or human-made disasters, and who have not
crossed an internationally recognized State border.”
AU Convention on the Prevention
of Internal Displacement
Definition - “Internally Displaced Persons” means
persons or groups of persons who are inside the
an internationally recognized State borders of
their country but who have been forced or obliged
to flee or to leave their homes or places of
habitual residence, in particular as a result of or in
order to avoid

–
–
the effects of armed conflict, situations of generalized
violence, violations of human rights or natural or humanmade disasters,
the effects of large scale large scale development
projects or lack of development.
Internal Displacement and
International Law
 Deng
Principles - displacement is
prohibited when it is based on policies of
apartheid, ethnic cleansing or similar
practices aimed at/or resulting in altering
the ethnic, religious or racial composition
of the affected population.
Responsibility to Assist and
Protect

Responsibility to assist and protect IDPs States
 When the states are unwilling/unable to meet
their responsibilities, international
organisations have the right to offer their
services based on protection needs and
human rights of the displaced.
 States should grant rapid and unimpeded
access to the IDP.
AU Convention on the Prevention
of Internal Displacement

Objectives
– Address and eliminate root causes
– Develop framework on IDP and
humanitarian assistance
– Create responsibilities on States and nonstate actors to prevent displacement
– Establish a legal framework for reparation
including restitution, just and adequate
compensation and rehabilitation
Treaty monitoring

High Commissioner of the African Union
for Internally Displaced Persons
– supervisory responsibility for monitoring
and enforcing States Parties’ compliance
– Compile and detail breaches of the
international obligations
– Undertake capacity building
XENOPHOBIA IN SOUTHERN
AFRICA

Anti immigrant intolerance global
phenomenon
 Negative attitudes officially recognized as
problem
 Impact on regional policy development
 SAMP Survey
–
–
–
–
Exaggerated immigration and refugee figures
Migration viewed as ‘problem’
Scapegoating of foreigners
Harshest sentiments – SA, Botswana, Namibia
XENOPHOBIA (Continue)





Profile of anti-foreigner intolerance
Absence of regional consciousness – little
distinction between regional migrants and
other
Most citizens prefer ‘tough’ immigration laws
Fear that migrants steal rather than create
jobs
Massive education necessary - RBX
XENOPHOBIC ATTACKS IN SA



SA experiencing xenophobic
attacks on an unprecedented
scale
More than 50 killed, 30 000
displaced
SA Gvt’s response
– General condemnation
– President authorised the
deployment of army
– camps

Issues
– Attacks unexpected?
– What or who caused it?
Attacks over the last 12 months

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
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

Delmas (MP) – October 07. 40 non-nationals attacked and forced to flee.
Mooiplaas – (GP) Dec 07. Clashes between South African and Zimbabwean nationals –
over 100 shacks being burned.
Duncan Village (EC) – Jan 08. Two Somalis were found burned to death in their shop.
Police later arrested seven people in connection with the incident.
Jeffrey’s Bay (EC) – January 08. Crowd attacked Somali owned shops and many Somali
nationals sought shelter at the police station
Soshanguve (GP) – Jan 08. Attacks started after four non-nationals allegedly broke into a
spaza shop owned by a local trader. Residents apprehended the suspects and allegedly
burnt one of the suspects to death. After this incident, residents called for foreigners to
leave. Shacks were burnt and shops belonging to non-nationals looted. Many non-nationals
fled the area.
Albert Park (KZN) – Jan 08. The community forum meeting - indicated during meeting that
they wanted non-nationals living in that area to leave.
Laudium (GP) February 08. At a community meeting in the informal settlement of Itireleng
some members encouraged residents to chase the non-nationals out of the area. Violent
clashes took place. Shacks and shops belonging to non-nationals were burnt and others
looted.
Valhalla Park (WC) – February 08. Residents forcefully evicted at least five Somali shop
owners from the area after having apparently ‘warned’ the shop owners to leave three
months before.
Atteridgeville (GP)- March 08. At least 7 killed in a series of attacks that took place over a
week. Approximately 150 shacks and shops were burnt down, destroyed or vandalized.
Approximately 500 people sought refuge elsewhere.
Worcester (WC) – March 08. A large group of Zwelethemba informal settlement residents
destroyed foreign-run shops and leaving a large number of foreign nationals homeless.
Mamelodi (GP) – April 08. The first sign of attacks being coordinated across multiple sites
by a single organisation. Fifteen shacks and spaza shops were also burnt down in the area.
One girl was burnt to death in her shack.