Asylum-Seeker and Refugee Protection in Sub-Saharan Africa

The Peregrination of a Persecuted Human Being in Search of a Safe Haven

Cristiano d'Orsi

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317669814
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

It is not often acknowledged that the great majority of African refugee movement happens within Africa rather than from Africa to the West. This book examines the specific characteristics and challenges of the refugee situation in Sub-Saharan Africa, offering a new and critical vision on the situation of asylum-seekers and refugees in the African continent. Cristiano d'Orsi considers the international, regional and domestic legal and institutional frameworks linked to refugee protection in Sub-Saharan Africa, and explores the contributions African refugee protection has brought to the cause on a global scale.

Key issues covered in the book include the theory and the practice of non-refoulement, an analysis of the phenomenon of mass-influx, the concept of burden-sharing, and the role of freedom fighters. The book goes on to examine the expulsions of refugees and the historical role played by UNHCR in Sub-Saharan Africa.

As a work which follows the persecution and legal challenges of those in search of a safe haven, this book will be of great interest and use to researchers and students of immigration and asylum law, international law, human rights, and African studies.

PART I

The peregrination of a persecuted human being, first stage

Seeking asylum in Sub-Saharan Africa

Introduction to Part I

In search of asylum: analyzing the different stages potential asylum-seekers go through in Sub-Saharan Africa

In this part we will analyze several of the most topical challenges facing asylum-seekers in Sub-Saharan Africa, as well as the problem of refugee protection in that region.

As if the final determination of the ‘africanization’ of the term ‘asylum’ was not easy enough – with W.T. Worster, however, affirming that the 1969 OAU Convention ‘provide for an individual right to asylum’¹ (Chapter 2), the theory and the practice of the principle of non-refoulement also leads us to face a contradictory (sometimes very much so) reality that will persuade us to reflect on the real functioning of this principle in Sub-Saharan Africa (Chapter 1). As T. Wood said, two of the reasons why asylum-seekers who are entitled to have protection granted, effectively do not benefit from it is due to either a prevalent xenophobic attitude, also found in government departments, or the limited understanding of refugee law by many decision-makers in the continent.²

We must nonetheless keep in mind a basic difference between the two notions just evoked. In effect, under a theoretical perception, while the institution of asylum is seen as a positive concept, requiring the permit for residence and durable protection to an individual against the jurisdiction of the country of origin, the principle of non-refoulement represents a negative concept, which proscribes countries from returning refugees to states that will persecute them.³ However, the restrictions to this positive concept of asylum are currently quite evident in Sub-Saharan Africa. Thus, for instance, section 58 of the 2014 Kenyan Security Laws (Amendment) Bill limits the number of asylum-seekers and refugees allowed to stay in Kenya to 150,000 individuals although the following sub-section clarifies that ‘[t]he National Assembly may vary the number of refugees or asylum seekers permitted to be in Kenya’.⁴

We then turn our attention, in Chapter 3, to the important phenomenon for Sub-Saharan Africa of the mass-influx situation and on the debate relating to its connected principle of prima facie recognition (‘recognition at first sight’) of refugee status. On this point, while E. Arboleda has affirmed that the broad employ of the group-based determination by Sub-Saharan African authorities would represent an outcome to the ‘expanded’ refugee definition contained in the 1969 African Convention, and that this latter instrument would thus constitute the main legal resource for prima facie recognition,⁵ J.-F. Durieux considered such construction simply as ‘erroneous’.⁶

In addition, in the same chapter, we will not neglect to investigate the principle of ‘burden-sharing’ (reaffirmed also by the United Nations General Assembly (UNGA) resolution adopted on 22 January 2015)⁷ that, in Africa, has given rise to a legal level through the adoption of Article 2 4) of the 1969 OAU Convention. That said, we can see how, in practice, this principle often finds a very limited use in the continent.

Chapter 4 and Chapter 5, to be read together, respectively deal with the question of the encamped refugees and with the increasingly important role, although with limits,⁸ that the UNHCR is playing in the continent. In effect, the UNHCR reveals itself to be possibly the first warrantor for the protection of asylum-seekers and refugees in Sub-Saharan Africa. As such, its role needs to be accurately investigated, given that the fate of many needy people in the region often depends upon the capacity of the UNHCR to take care of their rights, in particular regarding the prevention of possible violations that refugees can suffer outside but also inside the camps. The example of the Mtabila camp – finally closed on December 2012 – where Burundian refugees have resisted years of steady pressure and harassments from Tanzanian authorities to return to Burundi, ‘return’ representing the solution preferred by the host country, constitutes an example of this.⁹ In March 2014, the ACHPR underlined the importance of taking care of refugee camps in its resolution on the situation of human rights in the Central African Republic (CAR).¹⁰ However, in Sub-Saharan Africa, security of camps still represents a delicate issue, as it has been represented by either the external attacks by unidentified armed groups or by the internal clashes that several refugee camps in the areas suffered in 2014.¹¹

Chapter 6 focuses on the subversive activities of refugees, whose prohibition is clearly enunciated in Article III of the 1969 OAU Convention. This instrument represents a unicum in the panorama of refugees’ protection providing for this kind of provision. An analysis of this norm, however, also entails the study of several freedoms practised in Sub-Saharan Africa, and their link with the potential ban of subversive activities as defined in the convention. Such is the case, for example, with freedom of expression: although we need to start from the basic principle that in Sub-Saharan Africa there is no country in which freedom of expression is claimed as ‘absolute’,¹² freedom of expression is recognized as the most generally accepted human right,¹³ and thus deserves the international community’s greatest protection.¹⁴

As it is highlighted in the preamble of the 2002 Declaration of Principles on Freedom of Expression in Africa, freedom of expression represents an important individual human right and ‘[a] cornerstone of democracy and as a means of ensuring respect for all human rights and freedoms’ with the customs and laws curbing that freedom representing a harm to society.¹⁵ In this sense, in July 2014, the ACHPR called on the government of Swaziland ‘[t]o respect, protect and fulfil the rights to freedom of expression […] as provided for in the African Charter, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and other international and regional human rights instruments’.¹⁶

Finally, Chapter 7 approaches the question of the expulsion of refugees in Sub-Saharan Africa, through the study of the relative norms provided for by the 1951 Geneva Convention and the 1966 ICCPR. Along with the study of these two instruments, we should not forget also to mention the concept of the prohibition of mass expulsion of non-nationals, provided in Article 12 5) of the 1981 Banjul Charter.¹⁷

Through the lens of these instruments, our investigation centres on the main reasons for which a refugee can be expelled from a host country, namely, reasons of ‘national security’ and ‘public order’. In this regard, we will therefore highlight the use, sometimes specious and discriminatory, made by African countries, of these reasons in order to justify the removal of refugees from their territory.

1 Worster, W.T., ‘The contemporary international law status of the right to receive asylum’, in International Journal of Refugee Law, vol. 26, 2014, p. 483. At ibid., p. 491, the author explained that: ‘Because [African] states have widely adopted provisions granting refugees a right to asylum under municipal law, the OAU Convention provision may have become eclipsed in the last forty years by the subsequent expression of opinio juris by states individually.’

2 Wood, T., ‘Expanding protection in Africa? Case studies of the implementation of the 1969 African Refugee Convention’s expanded refugee definition’, in International Journal of Refugee Law, vol. 26, 2014, p. 575.

3 Chetail, V., ‘Are refugee rights human rights? An unorthodox questioning of the relations between refugee law and human rights law’ (17 September 2012), in Rubio-Marin, R. (ed.), Human Rights and Immigration, Collected Courses of the Academy of European Law, Oxford: Oxford University Press, 2014, p. 30. Available at SSRN: file:///C:/Users/User.VALUE2012/Downloads/SSRN-id2147763.pdf, accessed 10 January 2015. At idem, the author continued: ‘This conceptual distinction between asylum and non-refoulement is further grounded on their respective legal natures: non-refoulement is an obligation of states, whereas asylum is a right of states.’

4 Kenya: The Security Laws (Amendment) Act, December 2014, available at: www­.re­fwo­rld­.or­g/d­oci­d/4­df202da2.html, accessed 6 February 2015. However, the last sub-section of section 58 again is quite restrictive stipulating that: ‘Where the National Assembly varies the number of refugees or asylum seekers in Kenya, such a variation shall be applicable for a period not exceeding six months only.’ In this regard, see also Kenya, High Court, Coalition for Reform and Democracy and others v Republic of Kenya and others, Petition Nos. 628 & 630 of 2014, 2 January 2015, available at: www­.re­fwo­rld­.or­g/d­oci­d/5­4ad555e4.html, accessed 6 February 2015. In this regard, at paragraph 181, the Court clearly declared that: ‘The effect of the implementation of this amendment would be the immediate reduction of the number of refugees which may lead to evacuation of some of them from the refugee camps and deportation of not a small number of refugees from the country if the 2nd petitioner’s contention that there were 583,278 as at 30th November, 2014 is to be believed. If this was to happen before the petitions are heard, nobody including the learned Solicitor General was able to enlighten the Court how the situation would be restored.’

5 Arboleda, E., ‘Refugee definition in Africa and Latin America: the lessons of pragmatism’, in International Journal of Refugee Law, vol. 3, 1991, p. 189.

6 Durieux, J.-F., ‘The many faces of “prima facie”: group-based evidence in refugee status determination’, in Refuge, vol. 25, 2008, p. 152.

7 UNGA, Assistance to refugees, returnees and displaced persons in Africa, resolution No. A/RES/69/154, 22 January 2015, paragraph 26.

8 In this regard, see, for instance, Long, K., ‘In search of sanctuary: border closures, “safe” zones and refugee protection’, in Journal of Refugee Studies, vol. 26, 2013, pp. 472–3 where the author pointed out: ‘Yet while UNHCR’s ability to shape responses in cases where powerful Western states have strategic security interests will always be limited by the constraints placed on its institutional power by its donors […] evidence from the agency’s archives also suggests that in other border closures UNHCR has chosen to remain silent rather than risk censure of its aid activities, even where these are not being carried out in an emergency setting.’

9 International Refugee Rights Initiative, Rema Ministries, ‘An urgent briefing on the situation of Burundian refugees in Mtabila camp in Tanzania’, 10 August 2012, p. 3, on file with author. The camp finally closed on 13 December 2012. See the news: ‘Tanzania’s Mtabila Camp finally closed’, available at: www­.pa­mba­zuk­a.o­rg/­en/­cat­egory/features/85766, accessed 13 December 2014. We read from the article: ‘The residents of Tanzania’s Mtabila refugee camp are currently being returned to Burundi against their will. This population, most of whom fled to Tanzania in the 1990s, has been facing increasing pressure to return to Burundi for several years in something of a battle of the wills: on the one side has been the government of Tanzania which has been increasingly withdrawing services, banning planting of crops and offering incentives to leave the camp, and on the other has been a group of refugees who have dug their heels in and refused to move.’ In this regard, see also UNSC, Report of the Secretary-General on the ...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Dedication
• Table Of Contents
• Acknowledgments
• Acronyms
• Introduction
• PART I The peregrination of a persecuted human being, first stage: seeking asylum in Sub-Saharan Africa
• PART II The peregrination of a persecuted human being, second stage:durable solutions for refugees in Sub-Saharan Africa
• Conclusion:concluding remarks on the peregrination of a persecuted human being in search of a safe haven in Sub–Saharan Africa: lessons learnt to face the future challenges
• Index