ARTICLES

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

Jamil Ddamulira Mujuzi

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

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 Unity¹ 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.

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* 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); djmu-juzi@gmail.com. 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.
1 The Organisation of African Unity was replaced by the African Union. For a comprehensive discussion of the history and functioning of the Organisation of African Unity and African Union, see F Viljoen International human rights law in Africa (2007) 157-234.         [ Links ]
2 IC Jackson The refugee concept in group situations (1999) 143-176.         [ Links ]
3 R Murray 'Refugees and internally displaced persons and human rights: The African system' (2005) 24 Refugee Survey Quarterly 56.         [ Links ]
4 See OS Oyelade 'A critique of the rights of refugees under the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa' (2006) 12 East African Journal of Peace and Human Rights 164-168.         [ Links ]
5 UNHCR Statistical yearbook 2007: Trends in displacement, protection and solutions (December 2008) 7 http://www.unhcr.org/cgi-bin/texis/vtx/home/opendoc.pdf?id=4981c4812&tbl=STATISTICS (accessed 2 February 2009).         [ Links ]
6 Resolution CM/Res 19(II).
7 Resolution CM/Res 36(III) 1964, paras 4-8.
8 Resolution CM/Res 88(VII), 1966. It has been observed that '[t]he growing refugee problem in Africa led to the emergence of a regional refugee instrument, the ... (OAU) Refugee Convention. This contained a broader refugee definition that took into account the possibility of mass influx and generalised fears of violence. However, Deputy High Commissioner Sadruddin Aga Khan spoke with relief when the OAU decided that African states, though members of the OAU Refugee Convention, still needed to accede to the 1951 Convention. He declared that this demonstrated that the Convention had become "more universally recognised" - implying, of course, that it was not before.' See SE Davies 'Redundant or essential? How politics shaped the outcome of the 1967 Protocol' (2007) 19 International Journal of Refugee Law 703 718.
9 Murray (n 3 above) 57.
10 Jackson (n 2 above) 107.
11 (2003) AHRLR 111 (ACHPR 2003) para 26, where it is observed that '[i]n reaction to the allegation of violation of article 23(2) of the Charter, Tanzania states [that] "it has never granted shelter to terrorists fighting against Burundi. However, Tanzania admits that it has always welcomed in its territory streams of refugees from Rwanda and Burundi each time trouble f[l]ares up in those two countries. Tanzania has always refused to serve as a rear base or staging post for any armed movement against its neighbours. Leaders of political parties and factions are welcomed in Tanzania just like other refugees are. But they are not allowed to carry out military activity against Burundi from Tanzanian territory".'
12 Resolution CM/Res 104 (IX) 1967.
13 Resolution CM/Res 149 (XI) 1968.
14 As above.
15 See http://www.africa-union.org/root/au/Documents/Treaties/List/Convention%20on%20Refugees.pdf (accessed 4 February 2009). It should be noted that, although the following countries had not yet ratified the OAU Refugee Convention, they had signed it: Somalia (1969); Madagascar (1969); Mauritius (1969);and Djibouti (2005).
16 n 13 above, para 6.
17 Oyelade (n 4 above) 152-182; Viljoen (n 1 above) 253-260.
18 Eg, see M Smith 'The relevancy of the work of the International Criminal Court to refugee status determination' (2008) 20 International journal of Refugee Law 167169; HE Cameron 'Risk theory and "subjective fear": The role of risk perception, assessment, and management in refugee status determinations' (2008) 20 International journal of Refugee Law 567 573; A Atkinson 'Assumption of risk in United States refugee law' (2008) 49 Virginia journal of International Law 273 277 284.
19 J Moore 'The alchemy of exile: Strengthening a culture of human rights in the Burundian refugee camps in Tanzania' (2008) 27 Washington University Journal of Law and Policy 139 141.
20 Jackson (n 2 above) 178.
21 Murray (n 3 above) 57.
22 Jackson (n 2 above) 178.
23 It has been observed that the legal effect of UN General Assembly Resolutions has been the subject of constant debate among scholars. Most legal writers are of the view that such resolutions may be evidentiary weight of customary international law ... The traditional view is that the Resolutions of the General Assembly are not binding, as they are only recommendations.' See LB Malagar & MA Madgoza-Malagar 'International law of outer space and the protection of intellectual property rights' (1999) 17 Boston University International Law journal 311 340. The International Court of Justice 'note[d] that General Assembly Resolutions, even if they are not binding, may sometimes have normative value'. See ICJ Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ 32-33 para 70, as cited in PM Rao 'Multiple international judicial forums: A reflection on the growing strength of international law or its fragmentation?' (2004) 25 Michigan journal of International Law 929 942. It has been argued that the 'General Assembly Resolutions ... while technically only recommendations, have been viewed by several member countries, with regard to certain matters and within certain limits, as legally binding'. See GR Lande 'The effect of the Resolutions of the United Nations General Assembly' (1966) 19 World Politics 85. While referring to the United States courts and how they have treated UN General Assembly Resolutions, it was observed that 'traditionally, United States courts have not considered United Nations General Assembly Resolutions to be authoritative sources of international law, unless the Resolution merely restated legal principles that could be verified by reference to recognized sources such as customary international law, treaties, and judicial decisions. Recently, however, some courts have gone further and have given General Assembly Resolutions the same weight as fully-fledged sources of international law. Other courts have refused to take this step and have preferred to treat Resolutions as mere evidence of international law.' See GJ Kerwin 'The role of the United Nations General Assembly Resolutions in determining principles of international law in United States Courts' (1983) 4 Duke Law Journal 876.
24 Sec 3 South Africa Refugee Act (1998).
25 Sec 4 Tanzania Refugee Act (1998).
26 Sec 4 Uganda Refugee Act (2006).
27 Jackson (n 2 above) 194-209.
28 Viljoen (n 1 above) 392.
29 As above.
30 10th Annual Activity Report of the African Commission, Annex VII.
31 See F Viljoen 'The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and possibilities' (2005) 27 Human Rights Quarterly 125-171.
32 JD Mujuzi 'An analysis of the approach to the right to freedom from torture adopted by the African Commission on Human and Peoples' Rights' (2006) 6 African Human Rights Law Journal 435-437.
33 17th Annual Activity Report of the African Commission 2003-2004, para 32.
34 Report of Activities by the Special Rapporteur on Refugees, Asylum Seekers, IDPs and Migrants in Africa for the Intersession Period May to November 2008 (November 2008, paras 1 & 2 http://www.achpr.org/english/Commissioner%27s%20Activity/44th%20OS/ Special%20Rapporteurs/IDPs.pdf (accessed 3 February 2009). The African Commission also issued a resolution condemning the xenophobic attacks in South Africa; see Resolution on the Situation on Migrants in South Africa, ACHPR/ Res 131 (XXXXIII)08 of May 2008 http://www.achpr.org/english/resolutions/resolution131_en.htm (accessed 9 February 2009).
35 Report of Activities (n 34 above) para 3.
36 Report of Activities (n 34 above) para 4.
37 18th Annual Report of the African Commission 2004-2005 paras 28-32. The Special Rapporteur is reported to have given 'an interview on the situation of refugees and displaced people in Africa, and other related human rights issues, which appears in a book titled Africa's long road to rights - Reflections on the 20th anniversary of the African Commission on Human and Peoples' Rights'. See 23rd Activity Report of the African Commission on Human and Peoples' Rights, May 2007-November 2007, EX CL/446(XIII) Annex I, para 75 (footnotes omitted).
38 24th Activity Report of the African Commission on Human and Peoples' Rights, November 2007-May 2008, EX CL/446(XIII) Annex II, para 154.
39 19th Activity Report of the African Commission, July-December 2005 para 37.
40 21st Activity Report of the African Commission, May-November 2006, EX CL/322(X), para 44.
41 As above.
42 23rd Activity Report of the African Commission para 80.
43 23rd Activity Report of the African Commission para 83.
44 24th Activity Report of the African Commission para 151.
45 n 44 above, para 152.
46 n 44 above, para 153.
47Report of Activities (n 34 above) para 5.
48Report of Activities (n 34 above) para 7.
49 n 40 above.
50 n 44 above, paras 155 & 156.
51 n 40 above, para 73; 22nd Activity Report of the African Commission para 97.
52 Eg, it is reported that 'Commissioner Bahame Nyanduga reported on the situation of refugees, asylum seekers and IDPs and Migrants in Africa, in particular in countries affected by conflicts, namely: the DRC, Darfur-Sudan, Central African Republic, Chad, Somalia, Northern Uganda and Côte d'Ivoire. He observed that the conflict in these countries impacts negatively on the human rights of these people, in particular women and children.' See 23rd Activity Report of the African Commission para 76. See also 24th Activity Report of the African Commission paras 167-171. He has also monitored the human rights situation in Burundi and the plight of Liberian refugees in Ghana and that of Saharawi refugees in Algeria. See 24th Activity Report of the African Commission paras 164-166.
53Report of Activities (n 34 above) para 9.
54Report of Activities (n 34 above) paras 4-5.
55 Report of Activities (n 34 above) 5. The Special Rapporteur had earlier commended the Islamic Republic of Mauritania for starting to implement the repatriation programme of Mauritanian refugees from Senegal, whose rights have been denied for the past 20 years. He called on the government to also implement the recommendations made by the ACHPR following the fact-finding mission undertaken in September 2007.' See 24th Activity Report of the African Commission para 163.
56 n 40 above, para 45.
57 20th Activity Report of the African Commission para 6.
58 n 57 above, paras 44-45.
59 10th Annual Activity Report of the African Commission 1996-1997 Annex VIII para VI(1).
60 n 59 above, Annex IV.
61 Report of a Promotion Mission of Commissioner Rezag Bara to Burkina Faso (26-30 March 2007) para 28.
62 Report of the Promotional Mission to the Kingdom of Swaziland (21-25 August 2006) paras 42 & 43.
63 Report of the Mission of Promotion to Burundi by Commissioner Mohamed Abdellahi Ould Babana (4-11 February 2004) paras 30, 51, 52 & 59-63.
64Report of Promotional Mission Undertaken by Commissioner Mohamed Abdellahi Ould Babana in Rwanda (26 January-2 February 2004) paras 51, 81, 90, 91, 93, 94 & 135.
65 Mission Report to the Republic of Botswana (14-18 February 2005) 13, 15, 20, 21 & 45.
66 Report of the Promotional Mission to the Kingdom of Lesotho (3-7 April 2006) para 37.
67 Report of the Promotional Mission to the Republic of Seychelles (26-30 July 2004) 7, 8 & 14.
68 The African Commission's Report of the Fact-Finding Mission to the Republic of Sudan undertaken from 8-18 July 2004, 22nd Activity Report of the African Commission paras 5, 27, 35 & 114.
69 n 57 above, para 14.
70 n 57 above, para 133. At para 150, the Commission recommends that '[t]he implementation of the government policy of repatriation should be strictly voluntary, on condition that the security and social infrastructure is repaired and the burnt out villages are rebuilt. To the end ... government [should] fully co-operate with international humanitarian agencies and other relevant partners with a view to ensuring that ... displaced persons and the refugees return voluntarily to their villages of origin.'
71 n 39 above, para 42.
72 Report of Activities (n 34 above) para 6.
73 n 42 above, para 77.
74 n 44 above, para 174.
75 3rd, 4th, 5th, 6th and 7th Periodic Reports of Senegal in Application of Article 62 of the African Charter on Human and Peoples' Rights (reported not dated) 22.
76 3rd and 4th Periodic Reports of the Peoples' Democratic Republic of Algeria to the African Commission on Human and Peoples' Rights (2006) 18.
77 8th, 9th and 10th Periodic Reports of the Democratic Republic of Congo to the African Commission on Human and Peoples' Rights (2007) paras 141 & 144.
78 Combined Report (Initial and Four Periodic Reports) of the Federal Democratic Republic of Ethiopia to the African Commission on Human and Peoples' Rights (2008) paras 99-301, 425 & 427.
79 Consolidated 4th, 5th, 6th, 7th, 8th & 9th Periodic Reports of Tunisia under the Terms of Article 62 of the African Charter on Human and Peoples' Rights (1995-2006) paras 56, 225 & 229.
80 3rd Periodical Report of the Republic of the Sudan under Article 62 of the African Charter on Human and Peoples' Rights (2006) paras 222, 224-226, 229-237, 296, 302, 408 & 416.
81 The 2nd to 10th Consolidated Periodic Report Submitted by the United Republic of Tanzania under the African Charter on Human and Peoples' Rights (2006) 21-22.
82 Report by the Government of Uganda to the African Commission on Human and Peoples' Rights (2008) 45.
83 Periodic Report of Madagascar in Accordance with the African Charter on Human and Peoples' Rights (2008) 376-380 & 592.
84 Nigeria's 3rd Periodic Country Report (2005- 2008) on the Implementation of the African Charter on Human and Peoples' Rights in Nigeria (20 08) 16, 19, 73, 74 & 76-78.
85 At the time of writing, there were no concluding observations or recommendations posted on the African Commission's website. See http://www.achpr.org/english/_info/concluding%20observation_sessions.html (accessed 9 February 2009).
86 n 30 above, Annex XI.
87 n 33 above, Annex IV.
88 See Resolution on the Situation on Migrants in South Africa (n 34 above).
89 16th Annual Activity Report of the African Commission Annex IV art I. For the history and details of this memorandum, see Murray (n 3 above) 61-62.
90 n 89 above.
91 Under arts 47-54, the African Commission has the mandate to entertain inter-state communications. However, at the time of writing, the African Commission had only dealt with one inter-state communication, Democratic Republic of Congo v Burundi, Rwanda and Uganda (2004) AHRLR 19 (ACHPR 2004). For a detailed discussion of this communication, see JD Mujuzi 'Inter-state communications under the African Charter on Human and Peoples' Rights: Confirming the dwindling divide between international humanitarian law and human rights law? An appraisal of Democratic Republic of Congo v Burundi, Rwanda and Uganda (Communication 227/99) (2007) 2 African Yearbook on International Humanitarian Law 139-158.
92 For a detailed discussion of the jurisprudence developed by the African Commission, see Viljoen (n 1 above) 310-417. See also F Viljoen 'Introduction to the African Commission and the regional human rights system' in C Heyns (ed) Human rights law in Africa (2004) 385-505.
93 (2000) AHRLR 282 (ACHPR 1996) paras 29-34.
94 Art 60 of the African Charter provides that '[t]he Commission shall draw inspiration from international law on human and peoples' rights, particularly from the provisions of various African instruments on human and peoples' rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples' rights as well as from the provisions of various instruments adopted within the Specialised Agencies of the United Nations of which the parties to the present Charter are members'.
95 For a detailed discussion of the principle of non-refoulement, see E Lauterpacht & D Bethlehem 'The scope and content of the principle of non-refoulement: Opinion' in E Feller et al (eds) Refugee protection in international law: UNHCR's global consultations on international protection (2003) 87-181; A Duffy 'Expulsion to face torture? Non-Refoulement in international law' (2008) 20 International Journal of Refugee Law 373-390. It has been observed that '[t]he fundamental principle of legal protection is expressed in article 33 of the 1951 Convention - non-refoulement; the prohibition of a state from sending persons back to states where they may face persecution'. See KW Yundt 'The Organisation of American States and legal protection of political refugees in Central America' (1989) 23 International Migration Review 202. It has also been observed that 'UNHCR Executive Committee conclusions underline the fundamental importance of observing the principle of non-refoulement "of persons who may be subjected to persecution if returned to their country of origin irrespective of whether or not they have been formally recognised as refugees"...' See F Nicholson 'Implementation of the Immigration (Carrier's Liability) Act 1987: Privatising immigration functions at the expense of international obligations?' (1997) 46 International and Comparative Law Quarterly 612.
96 See RK Goldman & MM Scott 'International legal standards relating to the rights of aliens and refugees in the United States immigration law' (1983) 5 Human Rights Quarterly 312. It has been argued that '... customary international law ... recognises the principle of non-refoulement and binds all countries, regardless of ratification status [of the 1951 UN Refugee Convention], to this principle'. See LC Currie 'The vanishing Hmong: Forced repatriation to an uncertain future' (2008) 34 North Carolina journal of International Law and Commercial Regulation 340.
97 CJ Benson 'Crossing borders: A focus on treatment of transgender individuals in US asylum law and society' (2008) 30 Whittier Law Review 44. It has been argued that the principle of non-refoulement is a universally accepted and binding international law norm'. See J Ramji-Nogales 'A global approach to secret evidence: How human rights law can reform our migration system' (2008) 39 Columbia Human Rights Law Review 332.
98 (2000) AHRLR 287 (ACHPR 1997).
99 n 98 above, paras 2 & 3.
100 (2000) AHRLR 282 (ACHPR 1996).
101 Ouko v Kenya (2000) AHRLR 135 (ACHPR 2000) para 19.
102 (2004) AHRLR 57 (ACHPR 2004).
103 20th Activity Report of the African Commission on Human and Peoples Rights, Annex IV, 132, para.4.
104 n 102 above, para 45.
105 n 102 above, para 58.
106 n 102 above, para 48.
107 n 102 above, paras 49 & 50.
108 n 102 above, para 51.
109 n 102 above, para 52.
110 n 102 above, para 57.
111 n 102 above, para 69.
112 As above.
113 n 102 above, para 71.
114 See http://www.unhchr.ch/html/menu3/b/treaty2ref.htm (accessed 9 February 2009).