The African Commission on Human and Peoples’ Rights and the promotion and protection of refugees’ rights

 Jamil Ddamulira Mujuzi
 LLB (Hons) (Makerere), Diploma in International Humanitarian Law (Åbo Akademi), LLM (Human Rights and Democratisation in Africa in Africa) (Pretoria), LLM (Human Rights Specialising in Reproductive and Sexual Health Rights) (Free State)
 Doctoral Researcher, Civil Society Prison Reform Initiative (CSPRI), Community Law Centre, University of the Western Cape; LLD Candidate, Faculty of Law, University of the Western Cape, South Africa
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 Edition: AHRLJ Volume 9 No 1 2009
  Pages: 160 - 182
 Citation: (2009) 1 AHRLJ 160-182
 Download article in PDF

The funding of OSF-SA and Ford Foundation to CSPRI and CLC is acknowledged. I am indebted to the anonymous referees for their helpful comments on the earlier drafts of this article. The usual caveats apply.

Summary

African countries have been host to and have produced refugees for decades. These refugees have fled their countries for various reasons, including political and religious reasons. Many African countries are party to the 1951 United Nations Convention Relating to the Status of Refugees and its additional Protocol of 1967. In 1969, the Organisation of African Unity [1] Convention Governing the Specific Aspects of Refugee Problems in Africa, the major instrument that deals with the rights and duties of refugees in Africa, was adopted to address, as the name suggests, the specific aspects of refugee problems in Africa which were not addressed by the 1951 UN Refugee Convention. The African Commission on Human and Peoples’ Rights has put in place various measures to promote and protect the rights of refugees in Africa. These measures include the organisation of seminars, seminar paper presentations by commissioners, the appointment of a Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons in Africa, and adopting resolutions on the rights of refugees. The African Commission has also allied itself with various international human rights and humanitarian law organisations to protect the rights of refugees in Africa. It has protected the rights of refugees through its visits to different countries and through its decisions on individual communications. This article observes, inter alia, that, although the African Commission has entertained various communications dealing with the rights of refugees in Africa, the arguments of the parties to those communications as well as the decisions of the Commission have largely focused on the African Charter on Human and Peoples’ Rights and not on the 1969 OAU Convention on Refugees. The author recommends that, in matters relating to refugee’ rights, the African Commission should always invoke the provisions of the 1969 OAU Refugee Convention in addition to the African Charter and, where need be, reference should be made to other refugee-related instruments.

1.  Introduction

African countries have been host to and the producers of refugees for a long period of time.  [2]  Although in Africa ‘[r]efugees were initially considered generously as one of the consequences of the fight against colonialism’, [3]  there are now various factors contributing to people fleeing their countries. These factors include political, social and economic problems; religious and ethnic tensions and internal conflicts; liberation struggles, civil wars and coups d’état.  [4]  In December 2008, the United Nations High Commissioner for Refugees (UNHCR) reported that by the end of 2007, Africa, the poorest continent in the world, was hosting the largest number of refugees (22%) after Asia (55%). [5]  Both natural disasters (such as floods, drought and other calamities) and man-made ones (such as civil wars) have been responsible for displacing thousands of people in various African countries. Africa has been host to many dictatorial regimes that have caused many people to find it impossible to live in their countries of nationality and hence seek asylum in other countries because of persecution. 

This article looks at the measures the African Commission on Human and Peoples’ Rights (African Commission) has adopted to promote and protect the rights of refugees in Africa in the light of the Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Refugee Convention), the 1951 UN Convention Relating to the Status of Refugees (1951 UN Refugee Convention) and the 1967 Protocol Relating to the Status of Refugees (1967 Protocol), as well as under the African Charter on Human and Peoples’ Rights (African Charter). The author concludes that the African Commission has relied more on the African Charter than on the OAU Refugee Convention and calls upon the African Commission to always invoke the provisions of the latter instrument in addition to other relevant instruments in protecting and promoting the rights of refugees in Africa.

2.  Putting the legal regime in place

As early as 1964, African countries realised that some countries, such as Uganda, Burundi and Tanzania, were facing problems related to hosting refugees and that the international community was not paying sufficient attention to the problems these countries and the refugees they were hosting faced. The OAU Council of Ministers appointed the Commission on the Problems of Refugees in Africa, [6]  which wrote a report on the problems of refugees in the above countries that it had visited.

After looking at the findings of the 1964 Commission on refugee problems in the above countries, the OAU Council passed a resolution that, among other things, called upon ‘the African Group at the United Nations with the help of the Asian and other interested groups’ to submit a resolution to the UN General Assembly calling upon the UNHCR to increase the assistance it was giving to refugees in Africa and also ‘invite[d] the Commission to draw up a Draft Convention covering all aspects of the problems of refugees in Africa’ and requested the Administrative Secretary-General ‘to circulate the draft Convention to member states of the OAU for their comments and observations’.[7]

It was hoped that the OAU Refugee Convention would complement the 1951 UN Refugee Convention and that the former would be dedicated to governing ‘the specifically African aspects of the refugee problem’.[8] Murray states that:[9]

The adoption of the OAU Refugee Convention could therefore be interpreted to mean that African countries were of the view that the 1951 UN Refugee Convention did not sufficiently address some of the unique problems that refugees in Africa and African refugee-hosting countries were facing. Hence, the OAU deemed it necessary to come up with a convention that would deal with those problems. Put differently, African countries were convinced that the 1951 Refugee Convention was not designed with an African-specific approach in mind and thus was of less relevance to African refugee problems. One of these problems was that of mass influx of refugees.

The 1951 UN Refugee Convention was not designed to address the problem of people fleeing in big numbers as is often the case with African refugees, but rather to deal with individuals who are being persecuted or had a well-founded fear that they would be persecuted by their countries. This explains why, when the UNHCR started dealing with African refugees in the 1960s, it had to rely on its ‘good offices’ under General Assembly Resolution 1673 (XVI) of 18 December 1961 rather than on the definition of a refugee under article 1 of the 1951 UN Refugee Convention. While speaking of the ‘good offices’ and the implications of General Assembly Resolution 1673(XVI) of 18 December 1961 and how it was meant to deal with African refugees whose characteristics were never contemplated by the drafters of the 1951 UN Refugee Convention, the High Commission for Refugees said:[10]

This meant that the 1951 UN Refugee Convention definition ignored the unique nature of the refugee problem including factors that force people to flee their countries on the African continent. When people flee in big numbers, they are more likely to be associated with many problems as opposed to those who flee individually, and hence the need for different approaches to deal with the different problems that crop up. Some of the problems associated with a mass influx of people are that they become a burden to the financial resources of the host country and they can easily organise themselves and form a rebel group to destabilise their country of origin. This was clearly expressed by the Tanzanian government while defending itself before the African Commission in Association pour la Sauvegarde de la Paix au Burundi v Kenya, Rwanda, Tanzania, Uganda, Zaire and Zambia. [11]  It could also explain why article 23(2) of the African Charter specifically prohibits asylum seekers and refugees from using their countries of asylum to engage in subversive activities against their countries of origin. Refugees can also be a source of insecurity to the nationals who live near them. [12]  The OAU was determined to ensure that the measures adopted to regulate refugees in Africa were designed ‘to improve the living conditions of the refugees and to help them lead a normal life’. [13]

2.1  The OAU Refugee Convention and the definition of a refugee: An unnecessary step?

The OAU Refugee Convention was adopted after extensive consultations with African countries. [14]  At the time of writing, the OAU Refugee Convention had been ratified or acceded to by most of the African countries, apart from the following nine countries: Djibouti, Eritrea, Madagascar, Mauritius, Namibia, Sahrawi Arab Democratic Republic, Somalia and São Tomé and Principe. [15] African states that are parties to the OAU Refugee Convention are requested to ‘implement it in a spirit as liberal as possible’.[16] The Convention establishes various principles that govern refugees in Africa. Some of them will be discussed when an analysis of the jurisprudence of the African Commission that relates to refugees is done below, whilst others have been discussed by some scholars.[17] The OAU Refugee Convention, in defining a refugee, adopts verbatim the definition of a refugee under the 1951 UN Refugee Convention read together with the 1967 Protocol (there is already a plethora of literature on the 1951 UN Refugee Convention’s definition of a refugee[18] and, therefore, its discussion falls outside the purview of this article), but adds in article 1(1) that a person will also qualify to be a refugee if:

This definition has been described by Moore as ‘the expanded 1969 OAU Convention refugee definition’. [19]  Jackson has called it ‘the extended refugee definition’, but he has cautioned that ‘there must … necessarily be a considerable amount of overlapping, and as regards their practical application, the difference between the two definitions is probably not as great as at first sight appears’. [20]  It has been rightly observed that the OAU Refugee Convention’s definition’s ‘inclusion ... of those fleeing the country due to “events seriously disturbing public order” enabled individuals caught up in the fight against colonial domination to be afforded protection’. [21]  Jackson argues that the practical application of the 1951 UN Refugee Convention in group situations ‘no doubt covered very many of the persons falling within the scope of the “extended” definition in paragraph 2 of article I of the OAU Convention’. [22]

It is submitted that, by adopting the OAU Refugee Convention’s definition, African countries wanted to ensure that the recognition of the unique characteristics of African refugees got binding legal status under the OAU treaty and not under General Assembly Resolutions whose legal effect has for many years been a source of considerable disagreement among international law scholars.[23] They wanted to ensure that these problems are recognised through the ‘main door’ rather than the ‘back door’ in the law of treaties. The OAU Refugee Convention’s definition of a refugee has been incorporated in refugee legislation in various African countries, such as Angola, Benin, Burkina Faso, Burundi, Central African Republic, Gabon, Congo Brazzaville, Ghana, Lesotho, Liberia, Malawi, Mozambique, Nigeria, Rwanda, Senegal, Somalia, South Africa,[24] Sudan, Tanzania,[25] Uganda[26] and Zimbabwe.[27] The fact that many African countries have incorporated the OAU Refugee Convention’s definition of a refugee could be indicative of the commitment of these countries to give effect to that treaty and also to ensure that they extend as much protection to people fleeing their countries as possible. The article now examines the role the African Commission has played in promoting and protecting refugees’ rights in Africa and, in the process, an analysis of the relevant refugee principles as laid down in the OAU Refugee Convention and the 1951 UN Refugee Convention, read together with the 1967 Protocol, will be undertaken. 

3.  The African Commission on Human and Peoples’ Rights and refugee rights in Africa

The African Commission was established under article 30 of the African Charter. Article 45 of the Charter gives the African Commission the mandate to promote and protect the rights and freedoms of the people on the African continent enshrined in the African Charter. The African Commission is empowered to interpret human rights treaties in the African human rights system that have been ratified by African countries and it is upon that basis that it interprets the OAU Refugee Convention. This is so notwithstanding the fact that the OAU Refugee Convention was adopted several years before the African Charter was adopted.

3.1  Some measures taken by the African Commission to protect and promote refugee rights

3.1.1  The Special Rapporteur on Prisons

Although the African Charter does not contain a provision which explicitly empowers the African Commission to establish special mechanisms, the African Commission ‘had to adopt a progressive interpretation to find room for these mechanisms within its Charter mandate’. [28]  Since 1994, the African Commission has ‘established a number of Special Rapporteurs to provide focal points for the Commission on issues arising from the Charter’. [29]  It is against that background that, in enforcing the rights of refugees in Africa, the African Commission, while appointing the Special Rapporteur on Prisons and Conditions of Detention in Africa, gave him a wide mandate for his first two years, which included making available an evaluation of the conditions of detention in Africa, highlighting the main problems. This evaluation had to include areas such as conditions of detention of particularly vulnerable groups such as refugees. [30]  However, it is not clear from the reports of the African Commission whether the Special Rapporteur on Prisons in Africa ever visited any place of detention in which the refugees were detained during his first two years. It is also not mentioned in the most recent and only extensive analysis of the work of the office of the Special Rapporteur on Prisons in Africa whether he ever visited any place of detention where refugees were being detained. [31]  This could be attributed to the fact that his mandate is very wide and he has limited financial and human resources to carry out visits, even in prisons where there are no refugees. [32]

3.1.2  The Special Rapporteur on Refugees

The fact that the Special Rapporteur on Prisons and Conditions of Detention in Africa did not pay serious attention to the plight of refugees in Africa could explain why the African Commission, after concluding that the Special Rapporteur mechanism ‘was not very successful’ and therefore needed an overhaul, at its 34th ordinary session appointed Commissioner Bahame Tom Mukirya Nyanduga to act as the Focal Person on Refugees and Displaced Persons in Africa. [33]  This office was later upgraded to the status of Special Rapporteur on Refugees, Asylum Seekers and Displaced Persons in Africa. The Special Rapporteur on Refugees has carried out various activities to promote and protect the rights of refugees and displaced persons. In his inter-session report at the 44th ordinary session of the African Commission in November 2008, the Special Rapporteur reported that he had issued a statement condemning the xenophobic attacks in South Africa and suggesting various measures that should be adopted by the government of South Africa to protect migrant workers. [34]  He gave a radio interview in which he ‘condemned the [xenophobic] attacks, called for their cessation, and urged the authorities at all levels to ensure that timely action is taken to deal with the problem’ [35]  and participated in a meeting of African Union (AU) Member States’ Legal Experts to ‘finalise the draft AU Convention on the Protection and Assistance to IDPs’. [36]

The Special Rapporteur is reported to have published various papers in peer-reviewed journals about refugees in Africa and also to have discussed plans for these displaced persons in Geneva, together with the Bureau of the UN Secretary-General’s Special Representative for the Rights of Displaced Persons and with the Brookings Institution, University of Berne. [37]  He delivered a lecture on ‘the role of the Special Rapporteur on Refugees, Asylum Seekers, IDPs and Migrants in Africa’ to the LLM students at the Centre for Human Rights, University of Pretoria. [38]  The Special Rapporteur, at the invitation of the AU, participated in the Humanitarian and Security Assessment Mission to Darfur, Sudan (from 2 to 4 June 2005) to make an assessment of the humanitarian and security situation in Darfur following the deployment of the AU Military Observer Force. [39]

He has attended conferences or expert meetings on refugees’ rights in countries such as Burkina Faso (June 2006),[40] Austria (September 2006),[41] Switzerland (September 2007),[42] Rwanda (October 2007),[43] Uganda (March 2008),[44] South Africa (March 2008)[45] and Tanzania (April 2008).[46] He has delivered papers at seminars or conferences on the rights of refugees and IDPs in countries such as Uganda (July 2008),[47] Norway (July 2008),[48] Ethiopia (October 2006)[49] and Tanzania (April 2008).[50]. The African Commission has also put seminars and conferences on refugees and IDPs on the list of the seminars it would like to host from time to time.[51] The Special Rapporteur has closely monitored the situation of refugees’ rights in politically unstable countries and has condemned refugee rights violations in those countries.[52] For example, on the situation of human rights in Eastern Democratic Republic of Congo, he categorically condemned ‘the disregard and wanton violation of the human rights of the civilian population’ by all the warring parties and ‘condemn[ed] the deliberate attack and emptying of a camp hosting 50 000 refugees and IDPs in eastern DRC’.[53] Regarding the situation in Somalia, he was concerned at the ‘serious deterioration in the human rights and international humanitarian law situation with massive violations’ such as ‘[t]he internal displacement of an estimated 1 million people from Mogadishu ... and the flight of about 50 000 people into Kenya’.[54] On the situation in Mauritania, the Special Rapporteur recalled that ‘in November 2007, the democratically elected government of ... Mauritania committed itself to the return of Mauritania[n] refugees from Senegal and Mali’, but that ‘unfortunately’ the coup in Mauritania had ‘set back the process’. It is because of that background that he ‘call[ed] for a quick return to constitutionality so that the refugees, who had been suffering for long and who are now returning to Mauritania, recover their rights in accordance with the decision of the Commission’.[55] On the situation in Sudan, he sent a letter to the government appealing to it ‘to co-operate with the African Union and the UN, in finding an amicable solution to the deployment of the UN peacekeeping force in the Darfur’.[56] It can be observed from the above that the Special Rapporteur on Refugees has been carrying out his mandate. As indicated earlier, the African Commission extended the mandate of the Special Rapporteur on Refugees to also include migration issues.[57] Using his extended mandate, the Special Rapporteur has carried out various activities, including presenting papers and working hand in hand with international organisations, such as the International Committee of the Red Cross, to promote humanitarian law on the African continent.[58]

3.1.3  Reports about country visits, fact-finding missions and country periodic reports

The African Commission has carried out several fact-finding missions and promotional missions in which the rights of refugees have been brought to the attention of government officials in the countries visited. The African Commission is empowered under article 62 of the African Charter to receive and examine reports on the measures taken by African countries to implement their obligations under the African Charter. What follows is a discussion of how refugees’ rights have been promoted and protected under the aforementioned three mechanisms.

In its Report on the Mission of Good Offices to Senegal, during which it reported on its visit to Senegal, after being notified by a Senegalese non-governmental organisation (NGO) about the grave human rights violations that were taking place in that country which resulted in massive displacement of people, the African Commission, after studying the root cause of the violations and suggesting a number of strategies that could be put in place by the government of Senegal, recommended to the government that it should ensure that the refugees who had fled are encouraged to return to their homes by guaranteeing them security.[59] In its report on the mission to Mauritania, where it investigated ‘disturbing violations of human rights’, the African Commission investigated and documented various problems that were facing Mauritanian refugees in Senegal and recommended numerous measures that should be put in place to solve their problems.[60] The African Commission has also carried out promotional missions to several African countries and during those missions it has raised the issue of refugees’ rights with government officials or members of civil society in countries such as Burkina Faso,[61] Swaziland,[62] Burundi,[63] Rwanda,[64] Botswana,[65] Lesotho[66] and Seychelles.[67] 

In its report on a fact-finding mission to the Sudan, the African Commission highlighted the plight of refugees and internally-displaced persons in the Sudan and neighbouring Chad,[68] although for logistical reasons the delegation was unable to visit ‘Sudanese refugee camps situated in Chad’[69] and called upon the government of Sudan to, amongst other things, ensure that the ‘repatriation policy […] conform to the voluntary wishes of the displaced persons and refugees, upon the establishment of security and other favourable conditions’ and that ‘[c]onsultations with humanitarian agencies on the ground will facilitate the restoration and promotion of the IDPs’ confidence, which is ... lacking in government’.[70] From 29 August to 3 September 2005, the Special Rapporteur on Refugees undertook a fact-finding mission to Senegal to investigate the situation of Mauritian refugees in Senegal. The purpose of the visit was to facilitate ‘a durable solution to the Mauritanian refugee problem’.[71] The Special Rapporteur has also carried out a fact-finding mission to Botswana ‘on the protection regime for asylum seekers, refugees and migrants in Botswana’.[72] He also undertook a fact-finding mission to Mali and Mauritania ‘regarding the question of Mauritanian refugees in Mali’ and commended the government of Mauritania for, amongst other things, introducing a democratic process in the country ‘which had enabled the government to adopt a new policy of bringing all Mauritanian refugees back to Mauritania’.[73] The Special Rapporteur ‘affirmed’ to the African Commission that ‘he continue[d] to follow the situation affecting an alleged 3 million Zimbabwean asylum seekers in the sub-region, hoping that a fact-finding mission to a number of states in the sub-region will be authorised as requested by the Commission’.[74]

As mentioned earlier, article 62 of the African Charter requires state parties to submit initial and periodic reports on the measures they have taken to promote and protect the rights guaranteed under the African Charter. States such as Senegal,[75] Algeria,[76] Democratic Republic of Congo,[77] Ethiopia,[78] Tunisia,[79] Sudan,[80] Tanzania,[81] Uganda,[82] Madagascar[83] and Nigeria[84] have reported on the measures they have taken. However, because of the fact that the African Commission is yet to publish concluding observations and recommendations on state parties’ initial and periodic reports,[85] it is difficult to assess whether the African Commission, after examining a state party’s report, has ever recommended to any state party to put in place measures to protect refugees’ rights.

3.1.4  Resolutions and memorandum

The African Commission has also passed various resolutions calling upon various parties to the conflicts in Africa and also various countries to respect the rights of refugees. These include resolutions on the former Zaire, calling upon parties to the then conflict to respect the human rights of refugees in the country, [86]  and on Sudan. [87]  As mentioned earlier, the African Commission issued a resolution in which it strongly condemned the xenophobic attacks which took place in South Africa in mid-2008. [88]  The African Commission also signed a Memorandum of Understanding with the UNHCR with the objective of protecting the rights of refugees in Africa [89]  and adopted the Modalities for the Operationalisation of the Memorandum of Understanding between the African Commission and the UN Commissioner on Refugees, [90]  which is the implementing document of the Memorandum which requires, among other things, that both institutions appoint a focal person.

The above are some of the general activities that the African Commission has carried out to protect and promote the rights of refugees in Africa. We now go to the jurisprudence of the African Commission to establish the extent to which the rights of refugees have been dealt with.

3.1.5  The jurisprudence of the African Commission and refugees’ rights in Africa

Articles 55 and 56 of the African Charter empower the African Commission to receive individual communications alleging violations of any of the rights under the African Charter. The African Commission has over time, especially through individual communications, [91]  developed a rich jurisprudence in relation to several rights under the African Charter. [92]  What follows is a discussion of the communications in which the African Commission has dealt with the rights of refugees.

In Organisation Mondiale Contre La Torture and Others v Rwanda, it was alleged that Rwanda had expelled Burundian refugees who had been in Rwanda for many years without giving them a chance to be heard. The African Commission observed that:[93]

It is not clear in the communication why the African Commission had to rely exclusively on the African Charter to find that Rwanda had violated the rights of the Burundian refugees, yet the 1969 OAU Refugee Convention was already in force (it entered into force on 20 June 1974) and Rwanda had ratified it as early as 19 November 1979 and this communication was filed 10 years later (1989). This could be attributed to the fact that the NGOs that filed the communication did not allege violations under the 1969 OAU Refugee Convention but rather of the African Charter. But even then, the African Commission is empowered under article 60 [94]  of the African Charter to draw inspiration from other African and international human rights treaties where necessary. In the same vein, the African Commission should have referred to the 1951 UN Refugee Convention and the Protocol because Rwanda had ratified both instruments in January 1980.

However, the African Commission should be given credit for having interpreted the African Charter in a manner that was protective of the rights and freedoms of refugees and hence for coming to the conclusion that it would have more or less come to had it referred to the relevant refugee conventions. The above ruling indicates that the fundamental principle of refugee law, that is non-refoulement,[95] which ‘… the international community has generally accepted … as a binding rule’[96] and which is ‘[a]rguably, the most practical protection granted to refugees’[97] in refugee law, can be implied in article 12 of the African Charter. This interpretation has far-reaching consequences for African countries such as Djibouti, Eritrea, Madagascar, Mauritius, Namibia, Saharawi Republic, Somalia and São Tomé and Principe that have not yet ratified the 1969 OAU Refugee Convention, but have ratified the African Charter. It means that such countries cannot just expel refugees without putting into consideration their rights, such as the right not to be sent back to a country where they will be persecuted and also the right to be heard before they can be returned back to such countries. The right to be heard in refugee matters before a refugee is expelled is one of the ways to ensure that the refugees are not returned to their countries of origin where they will be in danger. It gives them an opportunity to present their case and bring important facts before the judicial or quasi-judicial body that is empowered to make the decision whether they should be returned to their countries of origin or not.

In another communication that dealt specifically with the rights of refugees, Mouvement des Réfugiés Mauritaniens au Sénégal v Sénégal,[98] it was alleged before the African Commission, among other things, that[99]

The complainant also alleged that many Mauritanian refugees had been expelled from Senegal to Mauritania where they were at risk of being persecuted. The African Commission held that the communication was inadmissible because of two reasons: first, that the complainant had not exhausted domestic remedies and, secondly, that the complainant did not mention the provision of the African Charter that the Senegalese government had violated. It is submitted that under article 56 of the African Charter, it is not a requirement that, for a communication to be admitted, it must mention the provision of the African Charter that is alleged to have been violated. The African Commission should have inferred from the facts of the communication which provisions of the African Charter had been violated. This is because very few people understand the procedural technicalities that have to be complied with before a communication is brought to the African Commission and the African Commission should always give them the benefit of the doubt by adopting a generous and purposive interpretation. The African Commission should have investigated whether Senegal’s conduct did not violate article 12 or any other relevant provision of the African Charter.

As in Organisation Mondiale Contre La Torture and Others v Rwanda,[100] where the complainant did not mention that Rwanda had violated the 1969 OAU Refugee Convention, also in this communication the complainant did not mention that Senegal had violated the 1969 OAU Refugee Convention although Senegal had ratified this treaty as early as April 1971. The African Commission should have relied on article 60 of the African Charter to investigate whether Senegal had not violated the 1969 OAU Refugee Convention. It is argued that the African Commission should be more pro-active when it comes to protecting the rights and freedoms of very vulnerable people such as refugees. This is because some, if not most, of these people can hardly mobilise resources and engage lawyers to exhaust domestic remedies in a host country that is alleged to violate their rights. The standard that the African Commission uses to protect people who are victims of massive human rights violations, that is that they are not required to exhaust domestic remedies, could also be extended to refugees when they allege that a host country is violating their rights. In cases of individual refugees who allege that their countries violated their rights but cannot go back to their countries to exhaust domestic remedies, the African Commission has declared such communications admissible ‘based on the principle of constructive exhaustion of local remedies’.[101]

Another communication in which the African Commission dealt with the question of the rights of refugees is African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v Guinea.[102]

This communication raised several interesting issues and warrants a detailed discussion. The complainant alleged that on 9 September 2000, Guinean President Lansana Conté proclaimed over the national radio that Sierra Leonean refugees in Guinea should be arrested, searched and confined to refugee camps and that his speech incited soldiers and civilians alike to engage in mass discrimination against Sierra Leonean refugees in violation of article 2 of the African Charter. The complainant alleged further that, as a result of the speech, widespread looting and extortion occurred; that the Guinean soldiers evicted Sierra Leoneans from their homes and refugee camps; that the soldiers further looted the homes of refugees, confiscated food, personal property and money from refugees at checkpoints; that they also extorted large sums of money from detained refugees and that these items were never returned to them. The complainant alleged further that the speech incited soldiers and civilians to rise up against Sierra Leonean refugees inside and outside of the refugee camps. The resulting physical violence ranged from beatings and rapes to shooting and killing. ‘Countless refugees died in these attacks, and many have scars as permanent reminders of their time in Guinea.’[103]

Paradoxically, in this communication the complainant did not allege that the government of Guinea had violated its obligations under the 1969 OAU Refugee Convention or the 1951 UN Refugee Convention. However, the African Commission used its mandate under article 60, read together with article 12(5), of the African Charter to find violations under the above refugee treaties. The African Commission observed in respect of the mass expulsion of people because of their nationality that this conduct is not only prohibited by the African Charter, but also[104]

The complainant also alleged that Guinea ‘violated the principle of non-refoulement under which no person should be returned by force to his home country where his liberty and life would be under threat’. [105]  They contended further, in the light of the principle of non-refoulement, that the President’s speech [106]

The government of Guinea responded by arguing that the Sierra Leonean refugees had been involved in rebel activities against Guinea [107] and that it had to put in place measures to ensure that the lives of the people in Guinea and the territorial integrity of Guinea were protected. It was urged that it was in light of this that the President ‘recommended that all refugees be quartered and that Guineans scatter in all districts in order to unmask the attackers who had infiltrated the population’. [108]  The Guinean government further argued that [109]

In responding to the defence of Guinea, the African Commission observed that it is aware [110]

The African Commission should be credited for having realised that African states face daunting challenges when it comes to hosting refugees, but that in trying to deal with those challenges, they should not compromise their regional and international human rights obligations. However, it is regrettable that the African Commission did not give its opinion on whether Guinea’s acts were consistent with article 9 of the 1951 UN Refugee Convention as Guinea had pleaded. Article 9 states that: 

The African Commission should have held that article 9 of the 1951 UN Refugee Convention was not applicable as a defence for the government of Guinea because that article deals with measures that are taken before a person has been granted refugee status in the host country. An examination of the submissions of both the government of Guinea and of the complainant shows that the issue was not whether the measures taken were violating the rights of the people who had not yet been granted refugee status, but rather whether the measures taken violated the rights of people who had already been granted refugee status. The 1969 OAU Refugee Convention does not have a provision similar to article 9 of the 1951 UN Refugee Convention. The African Commission added: [111]

The African Commission noted that ‘those who drafted the [African] Charter considered large-scale expulsion as a special threat to human rights’ [112]  and that it ‘appreciates the legitimate concern of the Guinean government in view of the threats to its national security posed by the attacks from Sierra Leone and Liberia with a flow of rebels and arms across the borders’; [113]  and that ‘as such the government of Guinea is entitled to prosecute persons that they believe pose a security threat to the state’. The African Commission noted that ‘however, the massive violations of human rights of refugees as … outlined in [the] communication constitute a flagrant violation of the provisions of the African Charter’. The African Commission thus found that Guinea had violated articles 2, 4, 5, 12 (5) and 14 of the African Charter and article 4 of the 1969 OAU Refugee Convention.

Much as the complainant repeatedly raised the issue that the expulsion of the Sierra Leonean refugees was a violation of the principle of non-refoulement, the African Commission regrettably did not say much about that principle which is provided for under article 2(3) of the 1969 OAU Refugee Convention and article 33 of the 1951 UN Refugee Convention. This would have been an opportunity for the African Commission to clarify whether such expulsions could be justified under article 32 of the 1951 UN Refugee Convention, which allows a host country to expel refugees when they are a threat to national security. But even then, such a state must ensure that the refugees are given a chance to be heard and must be allowed reasonable time within which to leave the country. One of the reasons why the African Commission could have failed to express its opinion strongly on the principle of non-refoulement but instead put emphasis on article 4 of the 1969 OAU Refugee Convention, which prohibits discrimination, is that the communication indicated that refugees from countries such as Liberia were not mistreated by the government of Guinea, but only Sierra Leonean refugees were targeted. This was considered to be discrimination on the ground of nationality, which is prohibited under article 4 of the 1969 OAU Refugee Convention and article 3 of the 1951 UN Refugee Convention.

The complainant also alleged that the government of Guinea had violated several refugees’ rights, such as the right to human dignity, the right not to be subjected to sexual abuse (rape), privacy, freedom of movement, the right to property, the right to housing, the right of access to courts and the right to travel documents, most of which are protected under the 1951 UN Refugee Convention, but the African Commission regrettably did not refer to the 1951 UN Refugee Convention to establish such violations. Though, as discussed above, the African Commission referred to the African Charter to find violations of the rights to human dignity, property, life, non-discrimination and against mass expulsion, refugees would have been offered better protection if the African Commission had also referred to article 5, which recognises the fact that refugees have more rights than those under the Convention; article 7(2), which obliges state parties to accord refugees the same treatment as all aliens; articles 13 and 14, which guarantee the rights to property of the refugees; article 16, which obliges states to respect the right of refugees to access to courts; article 21, which guarantees the right to housing; article 26, which protects the right to freedom of movement; and articles 27 and 28, which protect the right to travel documents of the 1951 UN Refugee Convention. Guinea violated all these rights which it has a duty to protect. It has to be recalled that, whereas article 42 of the 1951 UN Refugee Convention allows a country at ratification to enter reservations on all the provisions of the treaty except on articles 1, 3, 4, 16(1), 33 and 36 to 46, Guinea did not enter any reservation on the provisions of the treaty that it violated[114] and therefore it acted in breach of its obligations under the 1951 UN Refugee Convention. 

4.  Conclusion

The above discussion illustrates the role the African Commission in the promotion and protection of refugee rights. It provides a brief historical background to the adoption of the 1969 OAU Refugee Convention. It is illustrated that the African Commission has put in place various measures to promote and protect refugee rights, ranging from the appointment of Special Rapporteurs to entertaining individual communications. Moreover, the discussion shows that, whereas the African Commission has entertained various communications alleging violations of refugee rights, it has leaned more towards the African Charter than the 1969 OAU Refugee Convention.

It is recommended that giving priority to the 1969 OAU Refugee Convention over the African Charter in refugee-related communications is to be preferred, as it would give refugees greater protection. The role of the African Charter as an additional measure for the protection and promotion of the rights of refugees should not be underestimated in countries that have ratified both the African Charter and the 1969 OAU Refugee Convention. However, the African Commission should be commended for having interpreted the African Charter broadly to promote and protect the rights of refugees.

African countries that have not yet ratified the 1969 OAU Refugee Convention also have obligations under the African Charter to protect and promote the rights of refugees. The African Commission is called upon to look at international law in the form of treaties when faced with communications that allege a violation of the rights of refugees. NGOs that are involved in litigation before the African Commission need to be well-acquainted with the procedure of the African Commission so that their communications are not declared inadmissible, as declaring a communication inadmissible not only frustrates such organisations, but also the refugees on whose behalf it would have been filed. These organisations should also always cite violations of the 1969 OAU Refugee Convention in their communications before the African Commission so that the Commission is given an opportunity to better develop its jurisprudence in the area of refugee law.