Refugee refoulement in the East African Community

The African Union’s Special summit on refugees, returnees and internally displaced persons that took place in Kampala on 22 October marked a historic attempt to address the huge challenge of forced displacement that continues to overwhelm the continent.

Tarsis Kabwegyere, Uganda's minister for relief, disaster preparedness and refugees, highlighted the summit’s importance on 19 October, arguing that delegates must let their minds ‘reflect back on our brothers and sisters, the aged, our mothers, children and the infirm who are the first victims of forced migration. They have all their hopes on this summit that together we can lessen or end their misery.’

While such sentiments are clearly noble, they come at a time when the pressure upon Uganda’s population of Rwandan refugees to repatriate is at its height. The UNHCR’s announcement on 19 October that the cessation of refugee status clause would be invoked by 2011 for all Rwandan refugees once again raises the contentious issue of forced returns in the Great Lakes region.

Given that Rwandan refugees have had ample time to reflect upon whether they wish to go home, the proposed road map suggests an unwillingness on the part of both the Ugandan and Rwandan Governments and the UNHCR to accept that they do not want to return to Rwanda.

Kabwegyere had previously threatened that those who refused to repatriate before 31 July would lose their refugee status, stating that ‘when conditions no longer justify you being a refugee, you can become a worker.’ He has also said that Uganda has ‘been pushed to the limits’ and that ‘there is no justification for them [Rwandan refugees] to remain.’

On the Rwandan side, the rhetoric has been equally as intimidating, with Innocent Ngango, the official in charge of refugee repatriation at Rwanda’s ministry of local government, suggesting that refugees would be stripped of their status ‘if they have not returned by the end of December.’

Such threats amount to coercion and constitute a breach of international conventions protecting refugees and asylum seekers. For as long as they hold refugee status, those Rwandans who remain in Uganda cannot legally be forced to return home. To do so would violate the universal principle of non-refoulement, enshrined in Article 33(1) of the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol.

Article 5(1) of the African Union Convention Governing the Specific Aspects of Refugee Problems in Africa, moreover, specifically states that ‘the essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will.’

The coercive rhetoric that has emerged from both Uganda and Rwanda over this issue thus contributes to a climate of confusion and fear amongst refugees. With the Ugandan Government and UNHCR yet to outline the alternatives for those who do not wish to return, an impression is conveyed that refugees do not have a choice. In fact, returnees have been quoted as feeling that they are ‘going by force.’

While Uganda is entitled under both the United Nations and African Union Conventions to withdraw refugee status if the circumstances under which refugees gained their status have ceased to exist, this cannot apply to those who are able to demonstrate that repatriation would compromise their dignity or safety.

Rwanda may very well be stable, but this does not detract from the fact that many Rwandan refugees possess legitimate concerns over their safety and ability to live a peaceful and dignified life if they were to return.

This brings us to the contentious fact that the vast majority of the remaining refugees are ethnic Hutus, including some who are evading prosecution for participating in the 1994 genocide. It is clearly not the aim of international refugee law to protect the perpetrators of such horrific acts of brutality. Yet at the same time it is crucial that those who are innocent of such crimes are not put in danger in an attempt to bring others to account.

Despite this, the fact remains that the financial concerns of UNHCR and Uganda, in addition to Rwanda’s sense that its national pride is at stake, are exercising a strong and unwelcome influence over the fate of these refugees.

In fact, the politicisation of refugee programmes has, historically, been all too common in East Africa. The infamous forced return of Rwandan refugees from Tanzania in 1996, facilitated by UNHCR, was the result of a combination of political pressure and the prospect of military intervention by the Rwandan Patriotic Front (RPF), who viewed the large numbers of Hutu refugees as both a strategic threat and a matter of national pride, with the refugees representing roughly one sixth of the country’s population.

The Tanzanian authorities’ subsequent use of military force to ensure the refugees’ repatriation was a gross violation of international human rights law and as such was widely condemned. Amnesty International described how those responsible exhibited ‘a shocking disregard for the rights, dignity and safety of refugees.’

Little has changed in this regard since 1996. Despite Tanzania’s commendable decision to grant citizenship to those Burundian refugees who fled ethnic violence in 1972, reports earlier this year indicated that the 37,000 refugees of the Mtabila camp, who arrived in the 1990s, were being intimidated and coerced into repatriation.

A June 2009 report by the Fahamu Trust, for instance, found that the Tanzanian authorities had ‘closed the refugees’ markets and businesses, restricted crop cultivation, burned houses, arrested camp leaders and threatened the use of force by the army.’ The report also condemned the actions of the UNHCR whom it alleges to have ‘stood by while refugees were forced to return based on threats of force while uninformed of their rights.’

The process of screening refugees to assess whether they have unresolved protection concerns was similarly criticised by Fahamu. While Amnesty International argued that, ‘contrary to international and regional law, there is no procedure in place to assess any individual claims by refugees and asylum-seekers of well-founded fears of persecution.’ If true, this is extremely disturbing and represents a serious violation of the refugees’ human rights.

In fact, this illegal behaviour is characteristic of Tanzania’s approach to dealing with the 1990s influx of Burundian refugees. Following one particularly intimidating operation in 2003, UNHCR spokesperson Peter Kessler voiced his organisation’s growing concern that repatriation was not being carried out voluntarily. He referred to the testimonies of returned refugees who cited ‘declining levels of assistance as one of the major reasons for return’, in addition to ‘new measures imposed by local authorities which restrict their movements and now confine them to the camps.’

While such coercive measures represent an extremely cynical attempt to manipulate refugees into returning home, they at least recognise the existence of international prohibitions on refoulement through the very act of attempting to circumvent them. Kenya’s ongoing treatment of Somali asylum seekers on the other hand demonstrates no such desire to avoid international condemnation.

The closure of Kenya’s border with Somalia in response to the escalation of violence in 2007 has had a devastating impact upon the efforts of Somali refugees to claim asylum in Kenya. UNHCR has been forced to shut down its refugee transit centre, which registered refugees before allocating them to camps, while there are numerous reports of forced returns and other human rights violations being perpetrated by Kenyan police.

In fact, the free reign granted to police by the border closure has increased the corrupt and abusive practices of an already brutal force. Human Rights Watch have documented numerous cases where busloads of Somalis have been turned back at the border without being granted the opportunity to claim asylum. Worse still, Somalis unable to pay police bribes have been arrested, held in detention centres and beaten before being deported. There has even been one reported case of Kenyan police opening fire on a vehicle carrying refugees, injuring three Somalis who were subsequently forcibly removed from a Kenyan hospital and deported.

While Kenya is clearly entitled to protect its borders, it is illegal to do so at the expense of the safety of refugees who are fleeing violence and persecution. The AU Convention Governing the Specific Aspects of Refugee Problems in Africa, to which Kenya has acceded, clearly states that that ‘no person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened.’

That the Kenyan police continue to violate this principle is a matter that must be urgently addressed by the incoming police chief Mathew Iteere. If the removal of Major General Mohammed Hussein Ali from his post is to have any meaning it is essential that his successor carries out the sweeping reforms necessary to combat the systemic corruption and brutality of the police force, including its abuse and exploitation of defenceless Somali refugees.

Unfortunately, the appalling record of refugee refoulement in the EAC does not end here.

This month Burundi began the process of deporting more than 400 Rwandan refugees, in a move condemned by the UNHCR and human rights groups. In 2005 Burundi forcibly returned 6,500 Rwandans, many of whom have since returned to claim asylum. In June this year, Rwanda forcibly expelled its remaining Burundian refugees at gunpoint. While, in addition to its coercive repatriation of Rwandans, Uganda has been complicit in the Kenyan government’s attempts to pressurise Kenyan refugees to return, many of whom feel that the ethnic tensions that led to the post-election violence of 2007-8 remain unresolved.

The pervasive practice of coercion and forced return within the EAC requires urgent attention. While the challenge faced by member nations in addressing the region’s manifold refugee crises is an exceptionally difficult one, the refoulement of refugees does not represent a legitimate solution. The failure of donor nations to adequately support the EAC, or UNHCR, in dealing with such huge flows of forced migrants cannot excuse the act of placing refugees in harms way.

This raises fundamental questions regarding the EAC project and an integration process that ultimately aims to establish a political federation. The mission of the EAC, based on its 1999 Establishment Treaty, is to deepen the economic, political, social and cultural integration of the region in order to improve the quality of life for all citizens. Yet it is impossible to reconcile these aims with the pervasive practice of refugee refoulement. If the fundamental aim of the EAC is to bring greater cohesion and solidarity to the region, how can governments treat the citizens of other member states with such callous disregard?

As the process of integration continues the potential for regional political concerns to take precedence over the safety of refugees can only increase. One major reason for this is the limited integration of the international non-refoulement norm into the national laws and practices of member states. With pressure to return refugees being placed upon host governments by neighbours who wish to present an image of safety and stability, weak national laws and inadequate enforcement mechanisms can be exploited, resulting in refugees being treated as political currency.

This severely undermines the potential for initiatives such as the AU’s ‘Special Summit on Refugees, Returnees and Internally Displaced Persons’ to make a tangible impact on the ground. An opportunity exists though, for the EAC to demonstrate its worth to the people of East Africa and develop a refugee policy that will provide concrete guidelines for the protection of refugees and asylum seekers, preventing regional political concerns from impinging upon their human rights.

In fact, the ‘Treaty for the Establishment of the East African Community’ explicitly recognises the importance of developing such concrete guidelines. Article 124(4) requires that ‘Partner States undertake to establish common mechanisms for the management of refugees’ as part of a drive to improve regional peace and security. The EAC Peace and Security Conference in Kampala on 5 October, moreover, reaffirmed the importance of establishing common mechanisms for managing refugee crises by confirming that a framework would be drawn up.

While these are certainly positive indicators, the urgent need to find a solution to the rampant abuse of refugee rights in East Africa demands a much more decisive response from the region’s political leadership. Unless concrete steps to protect refugees from forced return are taken in the immediate future the stated commitment of the EAC to fostering social justice and protecting human rights can be considered nothing but empty rhetoric or worse, political subterfuge.

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* Lawrence Carter works with the Commonwealth Human Rights Initiative (CHRI).
* Please send comments to [email protected] or comment online at Pambazuka News.