African Exodus: Refugee Crisis, Human Rights and the 1969 OAU Convention

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. The Lawyers Committee 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, the Lawyers Committee 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 the Lawyers Committee 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 LCHR.

• 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 the LCHR 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. The LCHR 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.

The LCHR 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 the LCHR 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. The LCHR 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.

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