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UNIVERSIT DE GENVE

INSTITUT DE HAUTES TUDES INTERNATIONALES


ET DU DEVELOPPEMENT

Specific Characteristics and Challenges of Refugee and Asylum-


Seeker Protection in Sub-Saharan Africa: Lessons Learnt in Search of
a Better Future

THSE
prsente l'Universit de Genve
pour l'obtention
du grade de Docteur en relations internationales
(droit international)

par

Cristiano DORSI
(Italie)

Thse N 978

Genve
2013
Specific Characteristics and Challenges of Refugee and
Asylum-Seeker Protection in Sub-Saharan Africa:
Lessons Learnt in Search of a Better Future

Copyright 2013 by Cristiano DORSI


UNIVERSIT DE GENVE

INSTITUT DE HAUTES TUDES INTERNATIONALES


ET DU DEVELOPPEMENT

Specific Characteristics and Challenges of Refugee and


Asylum-Seeker Protection in Sub-Saharan Africa:
Lessons Learnt in Search of a Better Future

THSE
prsente l'Universit de Genve
pour l'obtention
du grade de Docteur en relations internationales
(droit international)

par

Cristiano DORSI
(Italie)

Thse N 978

Genve
2013
Cristiano DORSI

Sur le pravis de Mme Vera GOWLLAND, Professeur honoraire de lInstitut, de MM.


Vincent CHETAIL et Andrea BIANCHI, Professeurs lInstitut, et de M. Jean-Franois
DURIEUX, Departmental Lecturer in International Human Rights and Refugee Law,
Refugee Studies Centre, University of Oxford, UK, le Directeur de l'Institut de hautes
tudes internationales et du dveloppement, agissant au nom de la Commission mixte de
lUniversit et de lInstitut, compose des Doyens des Facults de droit, des lettres, et de
sciences conomiques et sociales, autorise l'impression de la prsente thse sans
entendre par l exprimer d'opinion sur les propositions qui y sont nonces.

Le dpt officiel du manuscrit, en 10 exemplaires, doit avoir lieu au plus tard le jeudi 7
mars 2013

Genve, le 12 fvrier 2013

pour la Commission mixte:

Professeur Philippe Burrin


Directeur

Thse N 978
Cristiano dOrsi

SPECIFIC CHARACTERISTICS AND CHALLENGES OF REFUGEE AND


ASYLUM SEEKER PROTECTION IN SUB-SAHARAN AFRICA: LESSONS
LEARNT IN SEARCH OF A BETTER FUTURE

TABLE OF CONTENTS

LIST OF ACRONYMS...p. A

GENERAL INTRODUCTION

A) Dimensions of the phenomenonp. i


B) Defining key concepts..p. iii
C) Presentation of the study.p. vi
D) Structure of the study..p. xi

PART I
Main legal instruments for asylum-seeker and refugee protection in the region: an
appraisal of the application of the provisions in question

Introduction to Part I..p. 1

Chapter I
Main international instruments applicable to Sub-Saharan African states

1.1 The 1948 Universal Declaration of Human Rights and Sub-Saharan African
governments views on it.p. 3

1.2 The role assigned by the 1950 Statute to the UN High Commissioner for
Refugees................................................................................................................................p. 11

1.3 Major features of the 1951 Geneva Convention and the 1967 New York Protocol as
key references for countries in the region.p. 17
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1.3.1 Strengths and weakness of the 1951 Geneva Convention.p. 17

1.3.2 The dual nature of the 1967 New York Protocol..p. 25

1.3.3 The application of the two treaties: reservations and declarations made by the Sub-
Saharan African countries ...p. 30

1.4 The UNHCRs Executive Committee conclusions on international protection, the


subjects they are concerned with, and their role in Sub-Saharan
Africa.....................................................................................................................................p. 36

1.5 The importance of the UNSC resolutions and statements for the protection of
refugees.p. 42

1.5.1 UNSC resolutions and the essential character of enforcement with regards to refugee
protection..p. 42

1.5.2 The vagueness of the UNSC presidential statements on refugee protection p. 46

1.5.3 Conclusion.p. 48

1.6 UNGA resolutions and their importance for implementation of refugee protection in the
regionp. 49

Chapter II
Main regional and national instruments applicable to Sub-Saharan African states

2.1 Main features of the 1969 OAU Convention.p. 57

2.2 The right of asylum under the 1981 African Charter on Human and Peoples Rights
and a focus on the refugee engagement with the African Commission on Human and Peoples
Rightsp. 64
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2.2.1 The right of asylum under the 1981 African Charter on Human and Peoples
Rights....................................................................................................................................p. 64

2.2.2 The action of the ACHPR in protecting refugees...p. 69

2.2.3 Examples of jurisprudence concerning refugees enacted by the ACHPR p. 72

2.3 The instruments provided by the OAU/AU framework for the protection of asylum-seekers
and refugees..p. 75

2.3.1 A presentation of the instruments in questionp. 75

2.3.2 The predominant role of the Council over the Assembly in dealing with asylum and
refugee issues in Sub-Saharan Africa...p. 79

2.4 The protection of a vulnerable category of individuals: the 1990 African Charter on the
Rights and Welfare of the Child and its interrelation with the 1989 UN Convention on the
Rights of the Child.................................................................................................................p. 87

2.4.1 A general overview of the African Charter...p. 87

2.4.2 The interrelation between the treatment of refugees in the 1990 ACRWC and the 1989
CRC...p. 89

2.4.3 The monitor power of the African Committee of Experts on the Rights and Welfare of the
Child..p. 96

2.4.4 Weaknesses in the enforcement mechanism..p. 98

2.4.5 Conclusion..p. 100


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2.5 The protection of another vulnerable category of individuals: the 2003 Protocol to the
African Charter on Human and Peoples Rights on the Rights of Women in Africa .........p. 102

2.5.1 An introduction to the protocol ..p. 102

2.5.2 An analysis of the 2003 Maputo Protocols provisions regarding refugee women and
their interrelation with the other main instruments protecting womens rights.p. 103

2.5.3 Respecting the protocol: state reporting procedures..p. 108

2.5.4 Conclusion...p. 112

2.6 African national legislation and its contribution to protecting asylum-seekers and
refugees...............................................................................................................................p. 113

2.6.1 The protection of asylum-seekers and refugees provided in the constitutions of Sub-
Saharan African countries..................................................................................................p. 113

2.6.2 Examples of recent national laws on refugees: an homogeneous panorama with several
particularities..p. 121

PART II
The meaning of the term refugee specific to Sub-Saharan Africa

Introduction to Part II.p. 129

Chapter III
The importance of having a refugee definition specific to Sub-Saharan Africa

3.1 The 1951 Geneva Convention and the 1969 OAU Convention: their intertwining
refugee definitions..........................................................................................................p. 131
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3.2 Analysis of the main elements of article I of the 1969 OAU Convention (definition of the
term refugee)...................................................................................................................p. 144

3.3 Sub-Saharan African legislators efforts to provide for a national framework for the
definition of refugee........................................................................................................p. 165

Chapter IV
Exclusionary clauses in Sub-Saharan Africa: a study on their theoretical and practical
framework

4.1 An analysis of the clauses excluding refugee status in Sub-Saharan


Africa...................................................................................................................................p. 175

4.2 The exclusion clauses in the Sub-Saharan African legislations and their
applications.p. 196

Chapter V
Cessation clauses in Sub-Saharan Africa: a study on their theoretical and practical
framework

5.1 An analysis of the clauses governing the termination of refugee status in Sub-Saharan
Africa...................................................................................................................................p. 203

5.2 The cessation clauses in the Sub-Saharan African legislations and their
applications.p. 222

PART III
Asylum-seeker and refugee protection in Sub-Saharan Africa: specificities and
challenges

Introduction to Part III...p. 229


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Chapter VI
Non-refoulement: theory and practice of the principle in Sub-Saharan Africa

6.1 A critical assessment of the legal framework of the principle..p. 233

6.2 The contradictory practice of the application of the principle of non-refoulement in Sub-
Saharan Africa and the debate on the presence of a relative custom in the region...........p. 239

Chapter VII
The pivotal concept of asylum as it is viewed in Sub-Saharan Africa

7.1 How the concept of asylum is conceived in Sub-Saharan Africa.p. 259

7.2 Temporary protection as an increasingly frequent means of providing protection to


refugees...............................................................................................................................p. 272

Chapter VIII
Examining the Sub-Saharan African phenomena of mass-influx and burden sharing:
solidarity at its best?

8.1 Tracing a legal framework of the mass-influx situation and of its relative principle of
recognition prima facie.......p. 281

8.2 Past abuse and limitations in Sub-Saharan Africa of group recognition.....................p. 291

8.3 Poor legal framework and present limited application of burden-sharing in Sub-Saharan
Africa...................................................................................................................................p. 297

Chapter IX
An analysis of the problem of refugee camps

9.1 Encamped refugees in Sub-Saharan Africa: an overview..p. 309


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9.2 The law applicable to refugee camps in Sub-Saharan Africa and the problem of their
securityp. 313

9.2.1 Refugee camps and the application of the International Humanitarian Lawp. 313

9.2.2 The problem of the armed attacks and the security of campsp. 323

9.3 Final reflections on the problem of camps in Sub-Saharan Africa...............................p. 337

Chapter X
The multi-faceted role of UNHCR in Sub-Saharan Africa

10.1 The original mandate and its further expansion.p. 343

10.2 An historical analysis of the role of UNHCR in Sub-Saharan Africa.........................p. 346

10.3 Conclusion: assessing the changing role of UNHCR in Sub-Saharan Africa............p. 356

Chapter XI
The subversive activities of refugees in Sub-Saharan Africa and their ban

11.1 The legal framework on the ban of subversive activities of asylum seekers and refugees
in Sub-Saharan Africa.........................................................................................................p. 359

11.2 Clarifying freedom of expression in Sub-Saharan Africa....................................p. 368

11.3 How Sub-Saharan African countries have acted towards the prohibition of subversive
activities and the breaches they have committed regarding this prohibitions regulatory
elements...............................................................................................................................p. 375
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Chapter XII
Sub-Saharan African countries approach to the question of the expulsion of refugees

12.1 Legal framework for expulsion in the region............................................................p. 381

12.2 National security and public order: the use and abuse of these reasons to justify the
past expulsion of refugees from their host countries..........................................................p. 387

PART IV
Durable solutions for refugees in Sub-Saharan Africa

Introduction to Part IVp. 403

Chapter XIII
Voluntary, spontaneous, forced repatriations: Sub-Saharan African refugees and their
way back home

13.1 Introduction...p. 407

13.2 An analysis of the legal basis of voluntary repatriation in Sub-Saharan Africa with a
special mention of the practice of spontaneous repatriation.p. 410

13.3 The principle of voluntary repatriation as it was conceived in the 1969 OAU
Convention..p. 415

13.4 The spread of tripartite agreements in the region and their actual utility until
now......................................................................................................................................p. 419

13.5 The importance of amnesty laws in the region and how the choice of the refugee to
repatriate has been influenced by amnesties......................................................................p. 421
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13.6 An appraisal of the characteristics of the voluntary repatriation and of the UNHCRs
policy with a focus on Sub-Saharan Africa.........................................................................p. 430

Chapter XIV
Success and failure of past voluntary repatriations in Sub-Saharan Africa

14.1 Introduction.p. 447

14.2 Repatriation of Rwandans and Burundians from Tanzania: from open door to go
home..p. 448

14.3 Repatriation of Rwandans from Uganda and of Ugandans from Sudan and DRC: refugee
feelings of disappointment..p. 455

14.4 The different outcomes of repatriation of Mozambicans from Malawi and South
Africa...p. 460

14.5 Repatriation of Namibians and South Africans: an evident success..p. 468

14.6 The difficult repatriation of Angolans.p. 471

14.7 The practical ineffectiveness of the repatriation of Eritreansp. 475

14.8 Final reflections on voluntary repatriation in Sub-Saharan Africa...p. 479

Chapter XV
Local integration and resettlement in a third country: two old-fashioned options to
end the plight of the refugee flow in Sub-Saharan Africa

15.1 An analysis of the legal basis justifying local integration..........................................p. 483


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15.2 Why Sub-Saharan African states are currently reluctant to accept the local integration of
refugees...p. 491

15.3 The present status of resettlement in Sub-Saharan Africa..........................................p. 495

15.4 The two forms of resettlement mentioned in the 1951 Geneva Convention and how they
have been applied in Sub-Saharan Africa...........................................................................p. 498

15.5 Final reflections on the institution of resettlement in Sub-Saharan


Africa...................................................................................................................................p. 503

CONCLUSION
Concluding remarks on refugee and asylum seeker protection in Sub-Saharan Africa:
lessons learnt to face the future challenges.....................................................................p. 509

BIBLIOGRAPHY.p. I
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LIST OF ACRONYMS

1945 UN Charter (UN Charter): Charter of the United Nations


1948 Genocide Convention: United Nations Convention on the Prevention and Punishment of
the Crime of Genocide
1948 UDHR: Universal Declaration of Human Rights
1949 Geneva Conventions: The four conventions at the core of international humanitarian
law
1950 UNHCR Statute (UNHCR Statute): Statute of the Office of the United Nations High
Commissioner for Refugees
1951 Refugee Convention (1951 Geneva Convention): The United Nations Convention
Relating to the Status of Refugees
1963 OAU Charter: Organization of African Unity Charter
1966 AALCO Principles: Bangkok Principles on the Status and Treatment of Refugees
(Bangkok Principles)
1966 ICCPR: International Covenant on Civil and Political Rights
1966 ICESCR: International Covenant on Economic, Social, and Cultural Rights
1967 DTA: United Nations Declaration on Territorial Asylum
1967 New York Protocol (Protocol): Protocol Relating the Status of Refugees
1969 OAU Convention (1969 African Convention): Convention Governing the Specific
Aspects of Refugee Problem in Africa
1977 Draft Convention: Draft Convention on Territorial Asylum
1977 Protocols: Protocols additional to the Geneva Conventions
1979 CEDAW: United Nations Convention on the Elimination of all Forms of Discrimination
against Women
1981 Banjul Charter (1981 African Charter): African Charter on Human and Peoples Rights
1984 CAT: United Nations Convention against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment
1986 ICRC Statutes: Statutes of the International Committee of the Red Cross
1989 CRC: United Nations Convention on the Rights of the Child
1990 ACRWC: African Charter of the Rights and Welfare of the Child
1992 Handbook: Handbook on procedures and criteria for determining refugee status under
the 1951 Convention and the 1967 Protocol relating to the status of refugees
1995 Johannesburg Principles: Johannesburg Principles on National Security, Freedom of
Expression and Access to Information
A
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1996 Handbook: UNHCR Handbook on voluntary repatriation


1998 ICC Statute: Rome Statute of the International Criminal Court
2000 AU Charter: Constitutive Act of the African Union
2001 AALCO Principles: Final Text of the AALCOs 1966 Bangkok Principles on Status and
Treatment of Refugees, as adopted on 24 June 2001 at the AALCOs 40th Session, New Delhi.
2002 AUPSC Protocol: Protocol Establishing the Peace and Security Council of the African
Union
2003 Maputo Protocol: Protocol to the African Charter on Human and Peoples Rights on the
Rights of Women in Africa
2004 AU Solemn Declaration: Solemn Declaration on Gender Equality in Africa
2008 SADC Protocol: Protocol on Gender and Development
2009 Kampala Convention: African Union Convention for the Protection and Assistance of
Internally Displaced Persons in Africa
AALCO: Asian-African Legal Consultative Organization
ACERWC: African Committee of Experts on the Rights and Welfare of the Child
ACHPR: African Commission on Human and Peoples Rights
AfCHPR: African Court on Human and Peoples Rights
AHC: Assistant High Commissioner
AI: Amnesty International
ANC: African National Congress
AU: African Union
AU Assembly (Assembly): Assembly of the Head of States and Government of the AU (and,
formerly, of the OAU)
AU Executive Council (Executive Council, Council of Ministers, Council): Executive Council
of the AU (formerly, Council of Ministers of the OAU: OAU Council)
BDP: Botswana Democratic Party
BPEAR: Bureau for the Placement and Education of African Refugees
CAR: Central African Republic
CARD: Committee on the Elimination of Racial Discrimination
CAT: Committee against Torture
CEDAW: Committee on the Elimination of Discrimination against Women
CNRS: National Commission for the Rehabilitation of Sinistrs
COREDA: Angolan Committee on Recognition of the Right of Asylum
COSATU: Congress of South African Trade Unions
CPA: Comprehensive Plan of Action
B
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DHA: South African Department of Home Affairs


DRC: Democratic Republic of Congo
ECHR: European Court of Human Rights
ECOSOC: Economic and Social Council of the United Nations
ECOWAS: The Economic Community of West African States
EIJM: Eritrean Islamic Jihad Movement
EPFL: Eritrean Peoples Liberation Front
ERC: Emergency Relief Coordinator
ExCom: Executive Committee of the High Commissioners Program
FDLR: Democratic Forces for the Liberation of Rwanda
FLEC: Front of the Liberation of the Enclave of Cabinda
FRELIMO: The Liberation Front of Mozambique
HCR: United Nations Human Rights Committee
HRW: Human Rights Watch
IASC: Inter-Agency Standing Committee
ICARA I: International Conference on Assistance to Refugees in Africa (Geneva, June 1981)
ICARA II: The Second International Conference on Assistance to Refugees in Africa
(Geneva, July 1984)
ICC: International Criminal Court
ICJ: International Court of Justice
ICRC: International Committee of the Red Cross
ICTR: International Criminal Tribunal for Rwanda
ICTY: International Criminal Tribunal for the former Yugoslavia
IDPs: Internally Displaced Persons
IFA: Internal Flight Alternative
IGAD: Intergovernmental Authority of Development
IIHL: International Institute of Humanitarian Law (Sanremo)
ILC: International Law Commission
IOM: International Organization for Migration
IPK: Islamic Party of Kenya
JRS: Jesuit Refugee Service
LHR: South African Lawyers for Human Rights
LRRRC: The Liberia Refugee Repatriation and Resettlement Commission
MAFREMO: Malawian Freedom Movement
MMD: The Movement for Multi-Party Democracy (Zambia)
C
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MONUC: United Nations Mission in DRC


MoU: Memorandum of Understanding
MPLA: Peoples Movement for the Liberation of Angola
NGO: Non-Governmental Organization
OAU: Organization of African Unity
OCHA: Office for the Coordination of Humanitarian Affairs
PROFERI: Program for Refugee Reintegration and the Rehabilitation of Resettlement Areas
REC: Ugandan Refugee Eligibility Committee
RENAMO: The Mozambican National Resistance
RPF: Rwandan Patriotic Front
RSD: Refugee Status Determination
SADC: Southern African Development Community
SACP: South African Communist Party
SWAPO: The South West Africa Peoples Organization
TRSP: Tanzanian Revolutionary State Party
UN: United Nations
UNDP: United Nations Development Program
UNHCR (High Commissioner): Office of the United Nations High Commissioner for
Refugees (or the High Commissioner for Refugees)
UNICEF: The United Nations Childrens Fund
UNITA: The National Union for the Total Independence of Angola
UNGA: United Nations General Assembly
UNMISS: United Nations Mission in the Republic of South Sudan
UNOCI: United Nations Operation in Cte dIvoire
UNSC: United Nations Security Council
UNSG: United Nations Secretary General
UNTAG: United Nations Transitions Assistance Groups
UPC: Uganda Peoples Congress
VRI: Burundis Rural Integrated Villages
WFP: World Food Program

D
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E
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PART I
Main legal instruments for asylum-seeker and refugee protection in the region: an
appraisal of the application of the provisions in question

Introduction to Part I

In the first part of this work, we will analyze the different instruments that address the
protection of asylum-seekers and refugees in Sub-Saharan Africa.
The reader who only has a vague idea of refugee protection on the continent may
immediately think that the instruments applicable to refugee protection in this vast region of
the world are mainly, if not exclusively, the 1951 Geneva Convention and the 1969 OAU
Convention. However, although these two instruments undoubtedly represent the true
pillars of refugee protection on the continent, we will note that particular provisions of
other instruments hard law instruments not exclusively dedicated to refugees 1 or soft
law instruments2 are also applicable to the refugee plight. As our criteria for review, we
have opted to divide the sources of refugee law in Sub-Saharan Africa according to the
classical, geographical distinction into international, regional, and national instruments,
grouping the regional and national sources in the same chapter, Chapter II. This classification
better highlights how many norms exist on this issue, and how complete they are; and
therefore, how they can theoretically be applied across the continent for the preservation of
the well-being of an asylum-seeker and/or a refugee. In this regard, a particular emphasis has
been given to the regional instruments protecting the more vulnerable categories of
individuals, in particular children and women. Such an emphasis has been added with the goal
of understanding how the phenomenon of refugeehood affects individuals, and whether it
makes any distinction between those situated differently within refugee populations. This
phenomenon calls for adapting solutions to different categories of people, each accustomed to
distinct living situations and specific demands. An alternative solution of classifying the
sources of refugee law applicable in Sub-Saharan Africa would have been to divide them in
1
As a general remark, A. Aust noted: [I]ts binding force [of International Law] does not come from the
existence of police, courts and prisons. It is based on the consent (express or implied) of states, and national self-
interest: if a state is seen to ignore international law, other states may do the same. The resulting chaos would not
be in the interest of any state. See: Aust, A., Handbook of International Law, 2nd edition, Cambridge UK-:
Cambridge University Press, 2010, p. 3.
2
As A. Betts noted in the context of the vulnerable migrants: Soft law represents a form of non-binding
normative framework in which existing (often hard law) norms from other sources are consolidated within a
single document. Soft law guidelines may, for example, be compiled through drawing upon experts or through
facilitating an inter-state agreement on the interpretation of how existing legal norms apply to a particular area.
The value of soft-law is that it can provide clear and authoritative guidelines in given areas without the need to
negotiate new binding norms. See: Betts, A., Soft law and the protection of vulnerable migrants, in:
Georgetown Immigration Law Journal, vol. 24, 2010, p. 542.
-1-
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binding and not-binding but such a distinction is found by a scholar to be plainly


inaccurate. She supported her assertion with the example that not all the United Nations
UNSC resolutions on Africa, which by definition are considered binding, 3 were adopted
under the legal umbrella of Chapter VII of the 1945 UN Charter and:

[E]ven if they have this is no indicator of their binding nature, e.g. where the UNSC
has participated in peace processes or assisted in the dawning up of peace processes or
assisted in the drawing up of peace plans which incorporate refugee protection.4

An example of this latter affirmation is given by UNSC resolution No. 2056, of 5 July
2012, on the situation in Mali, where the UNSC recognized the policy of Malis neighboring
states, in keeping their borders open for refugees.5

3
See: infra, Chapter 1.5.1.
4
Gowlland, V., personal document, on file with author.
5
UNSC, Peace and security in Africa, 5 July 2012, resolution No. 2056, S/RES/2056, paragraph 15. Paragraph
14 also affirmed: [The UNSC] demands that all parties in Mali ensure full, safe and unhindered access for the
timely delivery of humanitarian aid to persons in need of assistance and further demands that all parties and
armed groups take appropriate steps to ensure the safety and security of humanitarian personnel, equipment and
supplies, in accordance with international law, including applicable international humanitarian, human rights and
refugee law.
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Chapter I
Main international instruments applicable to Sub-Saharan African states

1.1 The 1948 Universal Declaration of Human Rights and Sub-Saharan African
governments views on it

The 1948 UDHR was adopted by the UNGA resolution6 No. 217 A (III) of December
10, 1948,7 and set out an international instrument defining the rights of individuals, as was
agreed upon by the international community of states on that day for the first time in history.
The 1948 UDHR is of great juridical value because it contains an authoritative
interpretation of human rights and the international freedoms that UN member states commit
to uphold.8 Furthermore, as it has been affirmed, numerous articles of the 1948 UDHR stem
from customary law.9 In this regard, the international community as a whole confers upon the
1948 UDHR its present dimension of being incorporated in the field of customary
international law because the 1948 UDHR gives expression to several general principles of
law universally recognized.10 In effect, the 1948 UDHR had significant impact because its
adoption committed states to secure the universal recognition and observance of the rights and
freedoms included there.11
However, it has also been asserted that:

6
In this regard, J.P. Grant and J.C. Barker pointed out: Many international organizations use this term
[resolution] to describe the non-binding act of their organs generally referred to as recommendations. The acts of
all UN organs are referred to as resolutions, save that, under article 25 of the Charter, the Security Council may
adopt decisions notably under Chapter VII of the Charter [] which the member states agree to accept and
carry out [] in accordance with the present Charter. These decisions are themselves embodied in resolutions.
See: Grant, J.P.; Barker, J.C., Encyclopedic Dictionary of International Law, 2nd edition, Dobbs Ferry NY-:
Oceana Publications, 2004, p. 436
7
UNGA, International Bill of Human Rights, 14 December 1948, resolution No. 217 (III).
8
Lauterpacht, H., The Universal Declaration of Human Rights, in: British Yearbook of International Law, vol.
25, 1948, p. 365.
9
Chetail, V., personal document, on file with author. In this regard, see also: Glendon, M.A., The rule of law in
the Universal Declaration of Human Rights, in: Northwestern University Journal of International Human
Rights, vol. 2, 2004, p. 5: Though the Declaration as such is not binding, most of its rights had already received
a significant degree of recognition by 1948 in the constitutions of many nations, if not in their practices. Since
that time, most of its rights have been incorporated into the domestic legal systems of most countries. And:
The particular norms of a soft law instrument, such as the UDHR, may also become binding as customary
international law, which consists of rules of law derived from the consistent conduct of states acting out of the
belief that the law required them to act that way. See: Dawson, G.; Farber, S., Forcible Displacement
Throughout the Ages: Towards an International Convention for the Prevention and Punishment of the Crime of
Forcible Displacement, Leiden/Boston: Martinus Nijhoff Publishers, 2012, p. 61, quoting Rosenne, S., Practice
and Methods of International Law, London/Rome/New York: Oceana Publications Inc., 1984, p. 55.
10
Canado Trinidade, A.A., Universal Declaration of Human Rights, United Nations Audiovisual Library of
International Law, 2008, p. 2, html document, available at: http://untreaty.un.org/cod/avl/pdf/ha/udhr/udhr_e.pdf,
accessed 25 August 2012.
11
ECOSOC, Commission on Human Rights, Draft international declaration of human rights (E/800) (continued),
document No. A/C.3/SR.89, 30 September 1948, p. 32.
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[I]t may now be possible to regard the Declaration as an authoritative expression of the
customary international law of today in regard to human rights or, at least, the customary law
of the United Nations on that subject. But to treat the Declaration itself as a legal instrument
directly binding upon Member States would be to run counter to the clear intention of the
Assembly when it was drawn up and go near to attributing a power of legislation to the
majority in the Assembly.12

The 1948 UDHR predominantly deals with the question of refugees in article 14,13
article 34 in a previous draft,14 which can be considered the starting point of refugee policy in
the second half of the twentieth century. Because the limitation present in the second
paragraph of the article is further elaborated upon in the 1951 Geneva Convention, this
section will now consider only the first paragraph of article 14.
At the time article 14 of the 1948 UDHR was drafted, individuals were initially
considered able to enjoy the right to be granted asylum 15 as it was already provided for
instance- in article 27 of the 1948 American Declaration of the Rights and Duties of Man.16 In
effect, at a time when there were many stateless individuals who were obliged to seek refuge
somewhere [i]t should certainly be stated that one of the duties of the United Nations, as
representing the community of nations, was to guarantee the right of asylum.17

12
Waldock, H., General course on public international law, in: Collected Courses of The Hague Academy of
International Law, vol. 106, 1962 (II), pp. 32-33.
13
Article 14 reads: 1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2)
This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from
acts contrary to the purposes and principles of the United Nations.
14
See, for instance: Every State will have the right to grant asylum to political refugees. In: ECOSOC,
Commission on Human Rights, Drafting Committee on an International Bill of Human Rights, E/CN.4/21, 1
July 1947, p. 19. Article 34 became further article 33. See: ibid., p. 61.
15
In this regard, see, for instance: Everyone shall have the right to seek and be granted asylum from
persecution. This right will not be accorded to criminals nor to those whose acts are contrary to the principles
and aims of the United Nations. Comment: The Drafting Committees draft was amended both at the request of
the International Organization of Christian Trades Unions and the International Refugee Organization (IRO)
which found that the expression to seek asylum did not sufficiently express the right of a persecuted
individual, and at the request of members of the Working Group who considered it necessary explicitly to
exclude from the right of asylum ordinary criminals, who are generally subject to extradition laws, and all those
whose acts are contrary to the principles, and purposes of the United Nations. See: ECOSOC, Commission on
Human Rights, Second Session, Report of the Working Group on the Declaration on Human Rights, E/CN.4/57,
10 December 1947, p. 9. In this regard, see also: ECOSOC, Commission on Human Rights, Second Session,
Report of the Drafting Committee to the Commission on Human Rights, E/CN.4/95, 21 May 1948, p. 7. In
detail, article 11 of the draft reads: 1) Everyone has the right to seek and may be granted, in other countries,
asylum from persecution.
16
American Declaration of the rights and duties of man; Resolution XXX. Final Act, Ninth International
Conference of American States, Bogot, March 30-May 2, 1948 (Pan American Union, 1948), p. 38. In detail,
article 27 (right of asylum) reads: Every person has the right, in case of pursuit not resulting from ordinary
crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with
international agreements.
17
ECOSOC, Commission on Human Rights, Third Session, Report of the third session of the Commission on
Human Rights (E/800, E/800/Corr.l, E/800/Add.l, E/AC.27/W.l, E/857 and E/I009), document No. E/SR.215, 25
August 1948, p. 649.
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It was in article 14 that the right to seek and enjoy asylum was introduced at the
international level, though not as part of a legally binding text. However, at the initiative of
the British delegation, states concurred that individuals could only enjoy a right to seek and
enjoy asylum from persecution, the so-called right of asylum perceived as the mere
competence of every state to allow a persecuted alien to enter, and to remain on its territory
and thus grant asylum to him/her.18 In addition, 20th century traditional doctrine has suggested
that there had been no recorded effort towards international legal recognition of the
individuals right to be granted asylum.19
The discussion, in both the Draft Committee and the Third Committee of the UNGA,
upheld the act of granting of asylum as a unilateral act by the protecting state, as a prerogative
of state sovereignty.20 It is interesting to note that several delegates in the Third Committee of
the UNGA considered the right to asylum and refugee protection as an integral part of human
rights.21 In spite of this, it has until now been difficult, both in theory and practice, to uphold
and develop the obvious interrelation reflected in article 14. In this regard, a scholar recently
argued that the 1948 UDHR has attained the status of customary law with regard to most of
its provisions;22 however, she does not believe that the right to enjoy asylum has attained that
status, particularly given that there is no right to asylum in the 1951 Geneva Convention.23

18
Kourula, P., Broadening the Edges: Refugee Definitions and International Protection Revisited, The
Hague/Boston/London: Martinus Nijhoff Publishers, 1997, p. 273. In the words of Mr. Dukes, British delegate:
I repeat that is the language as used, it appears as though we are throwing the doors wide open and we unduly, I
think, awaiting the right of personal freedom without, at the same time, making provision for the obligations as
between the individual or individuals who are supposed to benefit by these freedom and the obligation to the
States into which they would move or where they would hope to find asylum. See: ECOSOC, Commission on
Human Rights, Drafting Committee on an International Bill of Rights, document No. E/CN.VAC.l/3/Add.l, 11
June 1947, p. 6.
19
In 1966, F.E. Krenz noted that: [t]he realization of an individual right to asylum is still to await some kind of
formal recognition. See: Krenz, F.E., The refugee as a subject of international law, in: The International and
Comparative Law Quarterly, vol. 15, 1966, p. 115. F. Morgenstern in 1949 observed: It would thus appear that
the practice of states has not created a right of individuals to asylum, except, perhaps, in the matter of non-
extradition of political offenders. See: Morgenstern, F., The right of asylum, in: British Yearbook of
International Law, vol. 26, 1949, p. 352.
20
In this regard, M.A. Glendon explained: [This right is] significantly more open-ended that the protections
against violent and arbitrary treatment with which the Declaration begins-thus leaving larger scope for variation
in different social and political contexts. And later: The Declarations authority made itself felt over the years
in a variety of other ways. The most dramatic advances in human rights [] owed more to the Declaration
whose principles served as rallying points for non-violent rights movements than to the many covenants and
treaties that were in force. See: Glendon, M.A., op. cit. note 9, pp. 6 and 12.
21
Kjaerum, M., Article 14, in: Alfredsson, G.; Eide, A., (edited by), The Universal Declaration of Human
Rights, The Hague/Boston/London: Martinus Nijhoff Publishers, 1999, pp. 283-284.
22
Moore, J., Humanitarian Law in Action within Africa, Oxford: Oxford University Press, 2012, p. 16:
Nevertheless, over the decades since 1948, many scholars and jurists have come to regard the UDHR as binding
international law, at least with regard to certain provisions, which are now seen to evidence rules of customary
human rights law; p. 86: The customary status attained by the Universal Declaration in the sixty years since its
adoption is widely recognized. [] The UDHR is significant not just for its enumerated provisions and
principles, but for the treaties and national constitutions that it has inspired.
23
Ibid., p. 156: Hence, although Article 14 of the Universal Declaration of Human Rights [] speaks of the
right to seek and enjoy [] asylum, this right is still making the journey from soft to hard law.
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The formula used in article 14 has been considered quite deceptive because: [t]here
was no intention to assume even a moral obligation to grant asylum. There was an explicit
disclaimer of any such intention. [] It is perhaps a matter for regret that in a Declaration
purporting to be an instrument of moral authority an ambiguous play of words, in a matter of
this description, should have been attempted.24
Despite the widespread acceptance of the 1951 Geneva Refugee Convention and the
1967 New York Protocol thereto, the right to seek but not to receive asylum set forth in
article 14 of the 1948 UDHR has not been recognized by commentators or states as falling
within customary international law.25 The travaux prparatoires of the 1948 UDHR made it
clear that the overwhelming majority of the speakers in the various UN organs did not intend
for this instrument to become a statement of law or of legal obligations, but a statement
devoid of any compulsory character, with exclusively moral force. Nevertheless, when the
UNGA adopted the 1948 UDHR, it stressed that the pledge made by member states to a
common understanding of the rights and freedoms26 specified in article 56 of the 1945 UN
Charter, was of the greatest importance.27 This decision had a large impact on national
constitutions and municipal legislations and had had many applications in Sub-Saharan
Africa.
This is exemplified by the former constitution of the Republic of Guinea, whose
preamble proclaimed:

The State of Guinea fully endorses the United Nations Charter and the Universal
Declaration of Human Rights.28

24
Lauterpacht, H., op. cit. note 8, p. 373. At p. 374 the author concluded: As it happened, a formula was
accepted which is artificial to the point of flippancy.
25
Hannum, H., Status of the Universal Declaration of Human Rights in national and international law, in:
Georgia Journal of International and Comparative Law, vol. 25, 1995-1996, p. 346.
26
Schwelb, E., The influence of the Universal Declaration of Human Rights on international and national law,
in: American Society of International Law Proceedings, vol. 53, 1959, p. 218.
27
Article 56 of the 1945 UN Charter reads: All Members pledge themselves to take joint and separate action in
cooperation with the Organization for the achievement of the purposes set forth in Article 55. Furthermore,
article 55 reads: With a view to the creation of conditions of stability and well-being which are necessary for
peaceful and friendly relations among nations based on respect for the principle of equal rights and self-
determination of peoples, the United Nations shall promote: a) higher standards of living, full employment, and
conditions of economic and social progress and development; b) solutions of international economic, social,
health, and related problems; and international cultural and educational cooperation; and c) universal respect for,
and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language,
or religion.
28
Schwelb, E., The influence of the Universal Declaration of Human Rights on international and national law,
in: American Society of International Law Proceedings, vol. 53, 1959, p. 223. This provision has also been
adopted in the preamble of the Guineian Constitution du 23 decembre 1990, rvise par le Dcret
D/2002/48/PRG/SGG du 15 mai 2002, promulguant la Loi constitutionnelle adopte par rfrendum du 11
novembre 2001, where we may read: Le peuple de Guine, proclame: [...] -Son adhsion aux idaux et
principes, droits et devoirs tablis dans la Charte de lOrganisation des Nations Unies, la Dclaration universelle
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A similar provision was part of the statute of Togoland and Cameroon when they were
on the threshold of independence from the former French colony.
Constitutions that are more recent also contain such a provision. In Ethiopia, article 13
2) of the 1994, Constitution reads:

The fundamental rights and freedoms enumerated in this chapter shall be interpreted in
a manner consistent with the Universal Declaration of Human Rights, international human
rights covenants and conventions ratified by Ethiopia.29

Additionally, it is not infrequent to have cases in which officials declare that the 1948
UDHR is substantially legally binding for a given country. For example, in Senegal, a
Minister of State affirmed that the 1948 UDHR constitutes:

[A] fundamental text, whose mandatory character as jus cogens is undeniable. []


[T]he Universal Declaration of Human Rights is, at the very least, a customary rule of
international law within the meaning of article 38, paragraph 1 b), of the Statute of the
International Court of Justice.30

As a court in Botswana noted:

[The UDHR] must have formed part of the backdrop of aspirations and desires against
which the framers of the Constitution of Botswana formulated its provisions.31

In contrast, in the 1991 case of State v. Rudman, the South African Supreme Court of
Appeal stated that:

However laudable the ideals which have inspired the Universal Declaration of Human
Rights [] they do not form part of the customary international law.32

des droits de lhomme, la Charte de lOrganisation de lUnit Africaine et la Charte africaine des droits de
lhomme et des peuples .
29
Many other constitutions in Sub-Saharan Africa refer to the 1948 UDHR such as, for instance: Angola 1980
(article 14), Benin 1990 (preamble), Burkina Faso 1991 (preamble), Burundi 1992 (preamble and art. 10),
Equatorial Guinea 1995 (preamble), Mali 1992 (preamble), Tanzania 1984 (article 9 1)).
30
South African Supreme Court of Appeal, State v. Rudman, State v. Johnson, State v. Xaso, Xaso v. Van Wyk
No, [1989] 3 S.A. 368, 376. Statement quoted in: Hannum, H., op. cit. note 25, pp. 328-329.
31
High Court of Botswana Misca, June 1991, Court of Appeal 1992, Unity Dow v. Attorney-General, [1991]
L.R.C. (Const.) 574 et [1992] L.R.C. 623, CA N. 4/91 at 50, 52-3, in: Human Rights Quarterly, vol. 13, 1991,
pp. 614-626.
32
Quoted in: Hannum, H., op. cit. note 25, p. 334.
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Debate regarding the role of the 1948 UDHR within the African legal system is still
lively. One scholar noted that if the provisions contained in the 1948 UDHR were assumed to
have attained the force of binding international law, this would have important
consequences.33 As set forth in the 1948 UDHR, if a state is unable or unwilling to provide
one of its own citizens his/her human rights, refugee and asylum law should recognize that
individuals right to asylum in a state which is able to uphold those rights. The final step in
the development of international refugee law should then be to reconcile refugee law
completely with the human rights that are internationally recognized. One scholar has even
proposed a new refugee definition that would consider the 1948 UDHR as the basis for
refugee status. As such, a violation of the standards for individual rights embodied in the 1948
UDHR would result in refugee recognition. The provisions in the 1948 UDHR should form
the foundation of this new definition, with each article providing grounds for refugee
protection except those articles, which protect rights that a large number of states are unable
to guarantee.34
In recent decades, the ExCom confirmed the importance of the 1948 UDHR in its
conclusions,35 and even recognized the importance of an article of the 1948 UDHR that is not
usually analyzed in the context of refugee protection. This article, article 16 3), recalls how
the family is the natural and fundamental group unit of society and is entitled to protection
by society and the state.36
But finally, as we have seen through the brief analysis above, in our opinion the general
assessment of both jurisprudence and doctrine is not clear enough to determine whether
article 14 of the 1948 UDHR is part of customary law or not, and both schools having valid
legal elements to support their respective view.
Within the framework of our analysis of article 14 of the 1948 UDHR, we must also
briefly consider the 1967 DTA, unanimously approved by the UNGA at its twenty-second
session and adopted by resolution 2312 (XXII) of December 14, 1967.
Nearly twenty years passed between the elaboration of the 1948 UDHR and the
adoption of the 1967 DTA, which drew upon article 14 of the 1948 UDHR, the so-called
right of asylum belonging to those human rights that have been called international rights,

33
Parrish, M.J., Redefining the refugee: The Universal Declaration of Human Rights as a basis for refugee
protection, in: Cardozo Law Review, vol. 22, 2000-2001, p. 258.
34
Ibid., p. 263.
35
In this regard, see, for example: conclusion No. 22 (XXXII), 1981, paragraph 2 b); No. 82 (XXXVIII), 1997,
letter b); No. 101 (LV), 2004, preamble.
36
ExCom, conclusion No. 85 (XLIX), 1998, paragraph u).
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such as emigration, expatriation and nationality.37 As we have seen above, article 14 of the
1948 UDHR recognizes a person the right to seek and enjoy asylum but does not give them
the right to be granted it. Although the 1967 DTA does not define the concept of asylum, it
can be used to grant an individual, non-citizen protection in the territory of a state, the
occasion to make a life and to enjoy basic human rights and freedoms.38
As to the legal nature of the 1967 DTA, as a resolution of the UNGA, it is not legally
binding, although:

In the United Nations practice, a Declaration is a formal and solemn instrument,


suitable for rare occasions when principles of great and lasting importance are being
enunciated. [] A Recommendation is less formal.
[]
A Declaration is adopted by resolution of a United Nations organ.
[]
However, in view of the greater solemnity and significance of a declaration, it may be
considered to impart, on behalf of the organ adopting it, a strong expectation that members of
the international community will abide by it. Consequently, insofar as the expectation is
gradually justified by state practice, a declaration may be recognized as laying down rules
binding upon states.
In conclusion, it may be said that in the UN practice, a declaration is a solemn
instrument resorted to only in a very rare cases relating to matters of major and lasting
importance where maximum compliance is expected. 39

Article 1 1) of the 1967 DTA40 affirms the principle of the states right to grant
territorial asylum, defining the individuals as eligible for it, although it does not contain any
definition of the term asylum.41 During its adoption, according to an African delegate this

37
Weis, P., The United Nations Declaration on Territorial Asylum, in: Canadian Yearbook of International
Law, vol. 7, 1969, pp. 116-117.
38
Goodwin-Gill, G., The 1967 Declaration on Territorial Asylum, in: United Nations, Audiovisual Library of
International Law, 2012, 12 p., html document, available at: http://untreaty.un.org/cod/avl/ha/dta/dta.html,
accessed 25 September 2012.
39
UNSG, Office of Legal Affairs, document No. E/CN.4/L.610, quoted in: ECOSOC, Official Documents, 34 th
session, 19 March-14 April 1962, supplement No. 8, paragraph 105, pp. 16-17.
40
Article 1 1) reads: Asylum granted by a State, in the exercise of its sovereignty, to persons entitled to invoke
article 14 of the Universal Declaration of Human Rights, including persons struggling against colonialism, shall
be respected by all other States.
41
A very famous and qualified definition of asylum has been given by the Institute of International Law in its
1950 session held in Bath quoted in Weis, P., The United Nations Declaration on Territorial Asylum, op. cit.
note 37, pp. 133-136. The definition reads: [T]he term asylum means the protection which a State grants on its
territory, or in some other place under the control of certain of its organs, to a person who comes to seek it.
Moreover, in the Asylum Case we may read that the [g]rant of asylum results in, and in consequence implies, a
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article struck a proper balance between the necessity to grant protection to individuals
seeking asylum and the requirement to respect state sovereignty.42
The right to grant asylum would stem from territorial supremacy. Because of territorial
supremacy, once asylum is granted, it must be respected by other states. Neither the state of
origin nor any other state may intervene in order to evaluate the condition of a person within
the territory under jurisdiction of the state, which grants asylum. It is only the country where
the asylum-seeker has sought asylum that has the power to grant asylum through an
assessment of the asylum-seeker situation, according to the principle of the unilateral
qualification embodied in article 1 3) of the 1967 DTA.43 This happens although several
African countries, including Zambia, openly declared that in any case granting asylum;
humanitarian concern should prevail over political concerns.44
The 1967 DTA has played an important role for African legislators, essentially because
it emphasized the humanitarian character of asylum and served to diminish the danger that
granting it would create friction between states.45 In addition, the 1967 DTA is only legally
significant to the extent to which it is accepted by states as an expression of legal principles,
and the possibility is entertained that it may serve to crystallize principles in the process of
development. It constitutes a recommendation to countries to base their practice on its
principles.46 Although the 1967 DTA has been taken into account in writing, there are, for
instance, several domestic legislations on the legal protection of refugees; no African
countries have mentioned it as a direct source of inspiration for their national legislation, as
they have, for instance, with the 1948 UDHR, as previously mentioned. 47 However, countries

state of protection. In this regard, see also: ICJ, Asylum Case (Colombia v. Peru), judgment of November 20,
1950, in: ICJ Reports, 1950, p. 281: The grant of asylum is not an instantaneous act which terminates with the
admission, at a given moment, of a refugee to an embassy or a legation. Any grant of asylum results in, and in
consequence logically implies, a state of protection; the asylum is granted as long as the continued presence of
the refugee in the embassy prolongs this protection.
42
UNGA, 988th Plenary meeting, 1 November 1967, document No. A/C.6/SR.988, declaration by Mrs. Raoelina,
delegate of Madagascar at the UN, paragraph 34. In this regard, W.T. Worster affirmed that: In the field of
refugee law, there is usual balance between state freedom of action and state limitation on action, with states
demanding increasingly liberal moral standards from themselves, but showing increasing reluctance to live by
those standards. People in need of protection fall somewhere between these two extremes. See: Worster, W.T.,
The evolving definition of the refugee in contemporary international law, in: Berkeley Journal of Internation
Law, vol. 30, 2012, p. 160.
43
Article 1 3) reads: It shall rest with the State granting asylum to evaluate the grounds for the grant of
asylum.
44
UNGA, 989th Plenary meeting, 2 November 1967, document No. A/C.6/SR.989, declaration made by Mr.
Mwelumuka, delegate of Zambia at the UN paragraph 4. The same delegate in paragraph 5, argued that: As a
believer in humanitarianism, Zambia would always support and co-operate with other Member States in
promoting the principles of the United Nations Charter, and it therefore welcomed the draft Declaration on
Territorial Asylum.
45
Article II2 of the 1969 African Convention reads: The grant of asylum to refugees is a peaceful and
humanitarian act and shall not be regarded as an unfriendly act by any Member State.
46
Weis, P., The United Nations Declaration on Territorial Asylum, op. cit. note 37, p. 148.
47
To the legislations already mentioned, see also the following ones: preamble of the Constitution of the CAR, 5
December 2004; preamble of the Constitution de la Republic of Chad (last amended 2005), 31 March 1996;
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such as Nigeria placed on record the observation that the 1967 DTA should be considered a
minimum and not a maximum effort; that is, that the 1967 DTA should not be interpreted as
limiting local authorities from going further than the 1967 DTA itself in defending the interest
of asylum-seekers.48 Others, (e.g. Senegal) wished to reaffirm that although the 1967 DTA
would not have a binding legal force, it would at least impose a moral obligation on those
governments that approved it.49 The delegate of Ethiopia held a different opinion, insisting on
the fact that the 1967 DTA would not have any binding legal effect on his state.50

1.2 The role assigned by the 1950 Statute to the UN High Commissioner for Refugees

The 1950 UNHCR Statute was established by the UNGAs resolution No. 428 (V),
Annex of the 14 December 1950. It provides international protection and seeks permanent
solutions for the problem of refugees.51
The 1950 UNHCR Statute sets out for the first time the principles and structural
relations that the UN agency UNHCR has followed to this day.52 It brings refugees covered
by earlier treaties and arrangements within UNHCRs competencies.53 It also includes
refugees who came to be in such a situation from events which occurred before 1 January
1951 and who are outside their country of nationality; or, for those without nationality,
outside of their country of former habitual residence, and unwilling or unable to avail
themselves of its protection owing to a well-founded fear of being persecuted or for
reasons other than personal convenience.54

preamble and article 45 of the Constitution of the DRC, 18 February 2006; preamble of Constitution of Gabon
(last amended 1994), 18 March 1991; preamble of the Constitution of Togo, 27 September 1992.
48
United Nations, Yearbook of the United Nations 1967, New York: Office of Public Information of the United
Nations, 1969, p. 759.
49
UNGA, 988th Plenary meeting, 1 November 1967, document No. A/C.6/SR.988, declaration by Mr. Kane,
delegate of Senegal at the UN, paragraph 8.
50
Ibid., declaration by Mr. Ibrahim, delegate of Ethiopia at the UN, paragraph 44.
51
Paragraph 1 of the 1950 Statute.
52
McBride, M., Anatomy of a resolution: the General Assembly in UNHCR history, in: UNHCR, New Issues
in Refugee Research, research paper No. 182, 2009, p. 4 where the author continued: Its [of the statute]
principle functions are protection and seeking of permanent solutions to promote repatriation and assimilation
[]; it shall work in a non-political (impartial) manner and be humanitarian and social; it may have an advisory
body (the Executive Committee); and the High Commissioner is subject to directives of the UNGA and
ECOSOC.
53
Paragraph 6A i) of the 1950 UNHCR Statute.
54
Paragraph 6A ii) of the 1950 UNHCR Statute. The 1950 UNHCR Statute extends also to: Any other person
who is outside the country of his/her nationality, or if he/she has no nationality, the country of his/her former
habitual residence, because he/she has or had well-founded fear of persecution by reason of his/her race, religion,
nationality or political opinion and is unable or, because of such fear, is unwilling to avail him/herself of the
protection of the government of the country of his/her nationality, or, if he/she has no nationality, to return to the
country of his/her former habitual residence. See: paragraph 6B of the 1950 UNHCR Statute.
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Articles 6A i) and ii) are basically reproduced in the definition of refugee in article 1
of the 1951 Geneva Refugee Convention, which was being drafted by the UNGA at the same
time as the drafting of the 1950 UNHCR Statute.
Article 6B of the 1950 UNHCR Statute, however, removes the time limitation contained
in paragraph A ii) of the 1951 Geneva Convention referring to events before January 1951. In
addition, article 7 of the statute makes an exception, excluding individuals who already
receive protection or assistance from other organs or agencies of the UN from their
protection.55
The High Commissioner deals with two major categories of individuals: those who have
pending matters left over from previous efforts by the League of Nations and the UN, and the
general class of those who have a well-founded fear of persecution. Individuals belonging to
the latter category are either unable or unwilling to avail themselves of the protection of their
country of nationality. They can also be stateless persons who are outside their country of
former habitual residence and are unable or unwilling to return to it.
A significant limitation on the work of the High Commissioner contained in article 6 is
the requirement that a refugee must be outside his/her country of nationality or habitual
residence to come within the competences of the Office of the High Commissioner.
Moreover, according to the provisions of the Statute, the High Commissioner does not have
power to deal with displaced persons who are still within the boundaries of their own state. In
the past, in Sub-Saharan Africa, this limitation has prevented the High Commissioner from
taking action in Southern Rhodesia, the Portuguese African territories, and Nigeria during the
civil war involving the attempt by Biafra to secede. On the other hand, the High
Commissioner was later entrusted with assistance efforts in Sudan in 1972 and in Zimbabwe
in 1980. Therefore, in practice the limitation in article 6 has been disregarded with respect to
persons still inside their own country on several occasions.56
As we have mentioned, the 1950 UNHCR Statute is universally applied without either
temporal or geographical limitations, and the definition of refugee in this instrument
constitutes a critical point for determining who is entitled to protection and assistance of the
UN. Lack of protection by ones own government is the element that differentiates refugees
from other aliens.
The UNHCRs field of competence has broadened since the agency was established.
These competences have moved from good offices and assistance to protection and solutions.

55
Article 7 c) of the Statute reads as follows: [Competence of the High Commissioner shall not extend to a
person] who continues to receive from other organs or agencies of the United Nations protection or assistance.
56
Clark, R.S., Human rights and the United Nations High Commissioner for Refugees, in: International
Journal of Legal Information, vol. 10, 1982, pp. 293-294.
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The category of beneficiaries has shifted from those defined in the statute to, at present, a
generic class of refugees, displaced persons and other persons of concern to UNHCR.57 At the
same time, however, any UNHCR intervention with governments must have a legal basis,
especially when made in a political context, which is hostile to asylum.
In addition, the 1950 UNHCR Statute contains an apparent contradiction. On the one
hand, it affirms that the work of the UN agency relates to groups and categories of refugees;
while on the other, it proposes a definition of refugee that is individualistic and requires a
case-by-case analysis accordingly.
The frequency of large-scale crises over the past few decades has necessitated flexibility
in the administration of the agencys mandate. At present, UNHCR is involved in protection,
assistance and resettlement activities for refugees, but also relief and rehabilitation of other
people, such as displaced persons and victims of both man-made and natural disasters
necessitating urgent humanitarian assistance, circumstances where the High Commissioner
can extend its good offices.58 It was in 1957 that the UNGA, one of the two organs that can
give directives to the High Commissioner (the other being the ECOSOC),59 first authorized
the High Commissioner to assist refugees who did not come completely within the definition
of the statute but whose situation concerned the international community as a whole. 60 Along
the same lines, in 1961 UNGA authorized the High Commissioner to intervene:

57
Goodwin-Gill, G.; McAdam J., The Refugee in International Law, 3rd edition, Oxford: Oxford University
Press, 2007, p. 29. The UNGA resolution: Refugees and stateless persons, 3 December 1949, No. 319 (IV),
stipulated at Annex, paragraph 3: [F]or the time being, refugees and displaced persons defined in annex I of the
Constitution of the International Refugee Organization and, thereafter, such persons as the General Assembly
may from time to time determine, including any persons brought under the jurisdiction of the High
Commissioners Office under the terms of international conventions or agreements approved by the General
Assembly.
58
Van Krieken, P.J., The High Commissioner for Refugee and Stateless Persons, in: Netherlands International
Law Review, vol. 26, 1979, p. 25. For a definition of humanitarian assistance, see, for instance: Rottensteiner,
C., The denial of humanitarian assistance as a crime under international law, in: International Review of the
Red Cross, vol. 39, 1999, p. 556: [H]umanitarian assistance is defined as including all emergency action to
ensure the survival of those directly affected by armed conflict of an international or internal character. It
encompasses material aid food, water, clothing, medicines, fuel, shelter, bedding, hospital equipment, etc.
and the services of trained personnel. In order for assistance to be humanitarian in nature, its sole purpose must
be to prevent and alleviate human suffering. The beneficiaries of humanitarian aid are needy civilians, including
internees, and prisoners of war. Assistance given during internal disturbances and tension (however difficult the
distinction between internal disturbances and internal armed conflict might be at times) and natural disasters will
be excluded. Furthermore, only aid given by outside humanitarian organizations, whether international,
governmental or non-governmental, will be considered.
59
Paragraph 3 of the Statute reads: The High Commissioner shall follow policy directives given him/her by the
General Assembly or the Economic and Social Council.
60
UNGA, Chinese refugees in Honk Kong, resolution No. 1167 (XII), 26 November 1957. In the preamble the
UNGA clarified: Recognizing however that the problem is such as to be of concern to the international
community. Emphasis added.
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[t]o continue to lend his/her good offices in seeking appropriate solutions to the
problem arising from the presence of Angolan refugees in the Republic of the Congo
(Leopoldville). []61

In resolution No. 34/60 of 1979, the UNGA requested the High Commissioner [t]o
continue to promote [...] solutions to problems of refugees and displaced persons wherever
they occur.62 These are broad terms. The reference to displaced persons in resolution No.
34/60 authorized the High Commissioner to provide help not simply to individuals seeking
refuge abroad, but also to those who need assistance because of displacement within their
own country.63
As we have just briefly seen and as will deepen further in this work, 64 the statutory role
of UNHCR in Sub-Saharan Africa has been expanded under the guidance of the UNGAs
resolutions, as seen in recent examples. In effect, the UNGA has appreciated the leadership of
UNHCR for what happened in Africa in 2011, and commended it for its efforts to assist
African countries of asylum through support to vulnerable local host communities.65 In
addition, the UNGA also conferred to UNHCR the power of continue and strengthen its
support to African Governments through appropriate capacity-building activities.66 To
underline the expanded role played by UNHCR, the High Commissioner has also been
applauded for the role played in mixed migratory flows 67 to address protection needs of
asylum-seekers and refugees. The acknowledgement also included the organizations work in
the protection activities associated with climate change and environmental degradation
towards vulnerable populations of concern across the globe, especially in the least-developed
countries.68

61
UNGA, Problem raised by the situation of the Angolan refugees in the Congo, 10 December 1961, resolution
No. 1671 (XVI), paragraph 2.
62
UNGA, Report of the United Nations High Commissioner for Refugees, 29 November 1979, No.
A/RES/34/60.
63
Grahl-Madsen, A., Refugee and refugee law in a world in transition, in: Michigan Yearbook of International
Legal Studies, vol. 3, 1982, p. 69.
64
Infra, Chapter 10.
65
UNGA, Assistance to refugees, returnees and displaced persons in Africa, 19 December 2011, resolution No.
A/RES/66/135, paragraph 6.
66
Ibid., paragraph 21. The capacity-building activities would consist in: [t]raining of relevant officers,
disseminating information about refugee instruments and principles, providing financial, technical and advisory
services to accelerate the enactment or amendment and implementation of legislation relating to refugees,
strengthening emergency response and enhancing capacities for the coordination of humanitarian activities, in
particular those Governments that have received large numbers of refugees and asylum-seekers.
67
For an example of mixed-migration flow, the one of Zimbabweans in South Africa, see: infra, Chapter 9.2.3.
68
UNGA, Office of the United Nations High Commissioner for Refugees, 19 December 2011, resolution No.
A/RES/66/133, paragraphs 28 and 30.
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The 1950 UNHCR Statute is often referred to within domestic Sub-Saharan African
legislation on refugees, as the standard for legal and institutional norms to be followed in the
national protection of refugees.
The 1950 UNHCR Statute also presents both the exclusion (article 7) and the cessation
clauses (article 6), whose content is not so different from that of the 1951 Geneva Refugee
Convention.
Another topical functional aspect of the Statute worth mentioning consists of articles 8
through 10, which deal with the kind of operations undertaken by UNHCR.69 Article 8
mentions the actions that can be undertaken by the High Commissioner to provide for the
protection of refugees, solutions that have been recalled in other various documents adopted
in the African continent.70 These articles do not have a homologue in the 1951 Geneva
Convention.
In and of themselves, the words of articles 8 through 10 illustrate the caution
surrounding the creation of this UN agency. The tasks of the High Commissioner are both the
protection of refugees and the seeking of permanent solutions, but the means are mostly
persuasive, promotional, coordinating and facilitative. UNHCR relies considerably on moral
persuasion and persistence, rather than on any solid power base; its symbolic role as the
personification of a problem; and as recognition that there is a continuing refugee issue

69
Article 8 of the 1950 UNHCR Statute reads: The High Commissioner shall provide for the protection of
refugees falling under the competence of his/her Office by: a) Promoting the conclusion and ratification of
international conventions for the protection of refugees, supervising their application and proposing amendments
thereto; b) Promoting through special agreements with governments the execution of any measures calculated to
improve the situation of refugees and to reduce the number requiring protection; c) Assisting governmental and
private efforts to promote voluntary repatriation or assimilation within new national communities; d) Promoting
the admission of refugees, not excluding those in the most destitute categories, to the territories of States; e)
Endeavoring to obtain permission for refugees to transfer their assets and especially those necessary for their
resettlement; f) Obtaining from governments information concerning the number and conditions of refugees in
their territories and the laws and regulations concerning them; g) Keeping in close touch with the governments
and inter-governmental organizations concerned; h) Establishing contact in such manner as he/she may think
best with private organizations dealing with refugee questions; i) Facilitating the co-ordination of the efforts of
private organizations concerned with the welfare of refugees. Article 9 reads: The High Commissioner shall
engage in such additional activities, including repatriation and resettlement, as the General Assembly may
determine, within the limits of the resources placed at his/her disposal. Article 10 reads: The High
Commissioner shall administer any funds, public or private, which he/she receives for assistance to refugees, and
shall distribute them among the private and, as appropriate, public agencies which he/she deems best qualified to
administer such assistance. The High Commissioner may reject any offers which he/she does not consider
appropriate or which cannot be utilized. The High Commissioner shall not appeal to governments for funds or
make a general appeal, without the prior approval of the General Assembly. The High Commissioner shall
include in his/her annual report a statement of his/her activities in this field.
70
See, for instance: letter d) of the preamble of the Tripartite Agreement on the voluntary repatriation of
Burundian refugees in Rwanda, 18 August 2005: Recalling that the United Nations General Assembly
resolution 428 (V) of 14 December 1950, adopted the Statute of UNHCR, which ascribes to the High
Commissioner the function of providing international protection to refugees and of seeking permanent solutions
to the problem of refugees, inter alia, by promoting and facilitating their voluntary repatriation.
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constituting one of the most important functions of the Office of High Commissioner.71 Thus,
in terms of the statute, the High Commissioner was to be non-operational. However, in
response to necessity and the addition of extra responsibilities, UNHCR has often found it
necessary to engage in the administration of day-to-day projects and the UNGA has always
acquiesced.72 With the goal of stressing his/her action towards Africa, the High Commissioner
has emphasized the significance of the 1969 OAU Convention on various occasions. Article
VIII of the latter treaty stipulates that member states shall cooperate with the Office of the
United Nations High Commissioner for Refugees. The 1979 Arusha Conference on the
Situation of Refugees in Africa recommended that the 1969 OAU Convention [b]e applied
by the United Nations and all its organs and agencies as well as by non-governmental
organizations in dealing with refugee problems in Africa. Both the OAU Assembly of Heads
of State and Government in July 1979 and the UNGA in November of that year endorsed this
recommendation. The High Commissioner noted that because of this development, the 1969
OAU Convention had become an important supplementary basis for the Offices protection
activities on the African continent.73
The role the UNHCR has played in handling the statute has been very questionable.
Referring to the specific situation of Rwandans, for instance, it has been affirmed that the
three durable solutions developed by UNHCR in accordance with refugee law to respond to
refugee flows integration, resettlement, and repatriation were nothing more than
methods to respond to refugee flows. These solutions would have been applied only in
accordance with the dominant political ideas of the era, without taking into consideration the
real situation faced on the ground.74
As aforementioned, among the daily activities undertaken by the agency, also in Sub-
Saharan Africa, currently include some actions not even contemplated in its statute, such as
the care of migrants. This is so because, as an UNHCR official recently pointed out:

UNHCR is currently engaged in a difficult balancing act. On one hand, the


organization recognizes the need to underline the distinctive status, rights and obligations of
refugees, and is sensitive to charges that it wishes to extend its mandate to broader migration
issues that lie beyond its legitimate concern. At the same time, UNHCR is aware that human

71
Clark, R.S., Human rights and the United Nations High Commissioner for Refugees, op. cit. note 56, pp.
295-296.
72
Ibid., p. 297.
73
UNGA, Report of the United Nations High Commissioner for Refugees, 28 August 1981, document No.
A/36/12, paragraph 70.
74
Howland, T., Refoulement of Rwandan refugees: the UNHCRs lost opportunity to ground temporary refuge
in human rights law, in: University of California Davis Journal of International Law and Policy, vol. 4, 1998,
p. 81.
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mobility is growing in scope, scale and complexity, and acknowledges that other
stakeholders, especially states, increasingly regard the movement of refugees, asylum seekers
and irregular migrants as part of a single (and often unwanted) phenomenon.75

1.3 Major features of the 1951 Geneva Convention and the 1967 New York Protocol as
key references for countries in the region

1.3.1 Strengths and weakness of the 1951 Geneva Convention

The 1951 Geneva Convention constitutes the most solid legal pillar for the protection of
the refugees in present times at the global level. The convention has been said to represent a
compromise between the humanitarian ideal and countries concerns over immigration
control.76
In substance, the provisions of the 1951 Geneva Convention consist of a specification of
the rights and duties of refugees vis--vis states. In a large number of specific areas of
domestic law, this convention prescribes minimum standards of treatment that must be
accorded to refugees by countries that are party to the treaty. Its purpose is to ensure that
refugees are guaranteed the same treatment granted to other aliens in a state, and that refugees
are accorded the same standards of treatment that are accorded to nationals of the country
itself. This instrument places the obligations of the governments into a contractual agreement,
attributing a high degree of importance to the refugees importance ignored under traditional
international law.77
This section of our work is devoted to giving a synopsis of the main features of this
convention and analyzing its aspects, which relate specifically to how this legal agreement has
been used in Africa.
The 1951 Geneva Convention contains a more general definition of the term refugee
than previous international instruments relating to refugees, in order to ensure its scope. For
the purposes of this convention, the term refugee applies to any person who:

75
Crisp, J., Beyond the nexus: UNHCRs evolving perspective on refugee protection and international
migration, op. cit. note xxxv, p. 8.
76
Chetail, V., Le principe de non-refoulement et le statut de rfugi en droit international , in: Chetail, V. ;
Flauss, J.F. (edited by), La Convention de Genve du 28 juillet 1951 relative au statut des rfugis 50 ans aprs :
bilan et perspectives, Bruxelles: Etablissement Emile Bruylant, 2001, p. 61 where the author noted : [C]e
cinquantime anniversaire appelle une relecture de la Convention de Genve la lumire de lobjet et du but
humanitaires de cette Charte fondamentales des droits du rfugi . In this regard, see also: Walker, K.,
Defending the 1951 Convention definition of refugee, in: Georgetown Immigration Law Journal, vol. 17,
2002-2003, p. 608.
77
Holborn, L.W., Refugees: A Problem of Our Time The Work of The United Nations High Commissioner for
Refugees, 1951-1972, vol. 1, Metuchen NJ-: The Scarecrow Press Inc., 1975, pp. 158-159.
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As a result of events occurring before 1 January 1951 and owing to well-founded fear
of being persecuted for reasons of race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his/her nationality and is unable or, owing
to such fear, is unwilling to avail him/herself of the protection of that country; or who, not
having a nationality and being outside the country of his/her former habitual residence as a
result of such events, is unable or, owing to such fear, is unwilling to return to it.78

The provisions of this convention can be divided into three major sections: the
provisions, which establish the requisites for its application, the provisions that deal with the
rights, accorded to refugees, and the procedural section, which includes the articles that refer
to, for example, the way this instrument came into force, its validity, and its amendments.
First, the 1951 Geneva Convention can be considered different from previous
agreements on the issue of scope: this instrument does not consider just limited groups of
refugees but embraces all the individuals that claim this status. The convention expressly
stipulates that its provisos are applied without distinction as to race, religion, and country of
origin (article 3). Another important feature consists of its establishment of minimum rights

78
Convention Relating to the Status of Refugees. Signed at Geneva, on 28 July 1951, United Nations Treaty
Series, vol. 189, No. 2545, p. 150. See: article 1A 2) (Definition of the term refugee) of the 1951 Geneva
Convention. An author argued that concerns about defining the refugee definition too broadly should be taken
seriously because [t]he international regime for attending to the needs of refugees is fragile and can be shattered
as much by premature cosmopolitanism as by enduring primordial sentiments. See: Shacknove, A., Who is a
Refugee?, in: Ethics, vol. 95, 1985, p. 281. In this regard, M. McBride pointed out: In establishing the current
definition, the Convention modified the Statute definition by adding the phrase membership of a particular
social group to the list of reasons for which one may have been persecuted. The convention also deletes
paragraph 6B of the Statute, which states that the competence of the High Commissioner also applies to [a]ny
other person who is outside the country of his/her nationality, the country of his/her former habitual residence
[] without placing any restrictions as to the time of displacement or location. See: McBride, M., op. cit. note
52, p. 5. About the definition of religion, however UNHCR pointed out that: No universally accepted
definition of religion exists, but the instruments mentioned in paragraph 2 above certainly inform the
interpretation of the term religion in the international refugee law context. Its use in the 1951 Convention can
therefore be taken to encompass freedom of thought, conscience or belief. As the Human Rights Committee
notes, religion is not limited [] to traditional religions or to religions and beliefs with institutional
characteristics or practices analogous to those of traditional religions. It also broadly covers acts of failing or
refusing to observe a religion or to hold any particular religious belief. The term is not, however, without limits
and international human rights law foresees a number of legitimate boundaries on the exercise of religious
freedom. [] See: Guidelines on international protection No. 6: Religion-based refugee claims under article 1A
2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, document No.
HCR/GIP/04/06, 28 April 2004, paragraph 4, p. 3. Emphasis added. In regard of this defition J.C. Hathaway
pointed out that: [T]his use of the passive voice [being persecuted] (rather than persecution) signals the
need to demonstrate a predicament of risk that calls for surrogate international protection. There is therefore
strong support for the view that the risk of being persecuted requires evidence of sustained or systemic violation
of basic human rights demonstrative of a failure of state protection. See: Hathaway, J.C., Refugees and
asylum, in: Opeskin, B.; Perruchoud, R.; Redpath-Cross, J. (edited by); Foundations of International Migration
Law, Cambridge UK-: Cambridge University Press, 2012, p. 185.
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for refugees as an obligation for every signatory country, with the exception of some
prescriptions that are not applicable in a given country under permitted reservations.79
Furthermore, this convention requires states to grant rights that are more liberal
whenever they exist,80 and to grant to refugees treatment [a]s favorable as possible but
[n]ot less favorable81 than that which other categories of non-nationals enjoy. One provision
requires that national governments accord refugees treatment at least as favorable as their
nationals enjoy.82 In all these provisions, every signatory country should observe the minimal
scope of the specific right in question and it is requested to extend the scope as broadly as
possible.83
Diplomatic or legislative reciprocity is generally a prerequisite for the treatment of
aliens under the law of many countries, though not in the case of refugees. Exceptional
measures adopted against the interest of a citizen of a foreign state do not apply to a refugee
who is formally a national of that foreign state only because of his/her nationality. 84 The
personal status of a refugee is to be governed by the law of the country of domicile,85 or in the
absence of one, by the law of the country of residence.86 Most-favored-nation treatment is to
be accorded to refugees in connection with their right to create and join non-profit and non-

79
Robinson, N., Convention Relating to the Status of Refugees: Its History, Contents and Interpretation. A
Commentary, New York: Institute of Jewish Affairs, 1953, p. 9. We want to note at this point that for
reservation we intend [a] unilateral statement, however phrased or named, made by a State, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal
effect of certain provisions of the treaty in their application to that State. This definition is provided by article 2
b) of the 1969 Vienna Convention on the law of treaties (with annex). Concluded at Vienna on 23 May 1969,
United Nations Treaty Series, vol. 1155, No. 18232, p. 331.
80
For instance, the convention provides that if a refugee is at present granted rights beyond those accorded by
the convention, these rights are not be impaired because they are not specifically mentioned therein. Article 5
(Rights granted apart from this convention) reads: Nothing in this Convention shall be deemed to impair any
rights and benefits granted by a Contracting State to refugees apart from this Convention.
81
Article 13 (Movable and immovable properties), article 18 (Self-employment), article 19 (Liberal
professions), article 21 (Housing), article 22 (Public education).
82
Article 4 (Religion) reads: The Contracting States shall accord to refugees within their territories treatment
at least as favorable as that accorded to their nationals with respect to freedom to practice their religion and
freedom as regards the religious education of their children.
83
Important questions arise about the interpretation of the expression as favorable as possible. According to N.
Robinson, only the state concerned can establish how far it can push its possibilities. See: Robinson, N., op. cit.
note 79, p. 10.
84
Article 8 (Exemption for exceptional measures) reads: With regard to exceptional measures which may be
taken against the person, property or interests of nationals of a foreign State, the Contracting States shall not
apply such measures to a refugee who is formally a national of the said State solely on account of such
nationality. Contracting States which, under their legislation, are prevented from applying the general principle
expressed in this article, shall, in appropriate cases, grant exemptions in favor of such refugees.
85
As an author has noted, the term of domicile in the convention refers to the continental concept of habitual
residence. See: Weis, P., The development of refugee law, in: Michigan Yearbook of International Legal
Studies, vol. 3, 1982, p. 29.
86
Article 12 1) (Personal status) reads: The personal status of a refugee shall be governed by the law of the
country of his/her domicile or, if he/she has no domicile, by the law of the country of his/her residence.
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political associations and trade unions.87 In addition, refugees lawfully in the country of
asylum enjoy of the most-favored-nation treatment also in relation to their right to engage in
wage-warning employment.88 Lastly, as refugees are normally unable to obtain ordinary
administrative assistance by the state of origin or a former country of residence, as often
occurs in Sub-Saharan Africa, the contracting states agree to arrange for such assistance to be
made available by the state of residence or by an international authority.89
The 1951 Geneva Convention also provides for the issuance of a travel document to the
refugee by the refugees state of residence. This travel document allows the holder to return to
the country that issued it within the period of its validity.90
Finally, the convention contains limitations on the expulsion and deportation of
refugees, in order to protect individuals who are unable or unwilling to return to their country
of origin. In particular, article 33 contains the principle of non-refoulement, which seems
although scholars do not entirely agree on this to have acquired the character of a general
principle of law, or a rule of customary international law. There is also debate regarding
whether the principle of non-refoulement is part of the so-called category of jus cogens.91 The

87
Article 15 (Right of association) reads: As regards non-political and non-profit-making associations and
trade unions the Contracting States shall accord to refugees lawfully staying in their territory the most favorable
treatment accorded to nationals of a foreign country, in the same circumstances.
88
Article 17 1) (Wage earning employment) reads: The Contracting State shall accord to refugees lawfully
staying in their territory the most favorable treatment accorded to nationals of a foreign country in the same
circumstances, as regards the right to engage in wage-earning employment.
89
Article 25 1) (Administrative assistance) reads: When the exercise of a right by a refugee would normally
require the assistance of authorities of a foreign country to whom he/she cannot have recourse, the Contracting
States in whose territory he/she is residing shall arrange that such assistance be afforded to him/her by their own
authorities or by an international authority. As we may read: The foreign country to which the provision
refers may be the refugees country of origin or a former country of residence. It does not need to be a
contracting state. The critical factor is that it is a country to whom he cannot have recourse. Whether or not an
individual can have recourse to the authorities of a foreign country may not always be clear cut. See: Lester, E.,
Article 25 (Administrative Assistance/Aide Administrative), in: Zimmermann, A. (edited by), The 1951
Convention Relating the Status of Refugees and its 1967 Protocol: a Commentary, Oxford: Oxford University
Press, 2011, p. 1139.
90
Article 28 (Travel documents), in particular paragraph 1, reads: 1) The Contracting States shall issue to
refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory,
unless compelling reasons of national security or public order otherwise require, and the provisions of the
Schedule to this Convention shall apply with respect to such documents. The Contracting States may issue such
a travel document to any other refugee in their territory; they shall in particular give sympathetic consideration to
the issue of such a travel document to refugees in their territory who are unable to obtain a travel document from
the country of their lawful residence.
91
Weis, P., The development of refugee law, op. cit. note 85, p. 31. In this regard, see also, for instance:
UNHCR, The principle of non-refoulement as a norm of customary international law. Response to the questions
posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in cases 2 BvR
1938/93, 2 BvR 1953/93, 2 BvR 1954/93, 31 January 1994, paragraph 3, html document, available at:
http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=437b6db64, accessed 20 February 2013: The
view that the principle of non-refoulement has become a rule of international customary law is based on a
consistent practice combined with a recognition on the part of States that the principle has a normative character.
This conclusion is supported by the fact that the principle has been incorporated in international treaties adopted
at the universal and regional levels to which a very large number of States have now become parties. The
principle has, moreover, been reaffirmed in the 1967 United Nations Declaration on Territorial Asylum. Finally,
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provisions of the convention concerning non-refoulement, expulsion and irregular entry


sufficiently reveal the essential significance and continuing importance of the 1951 Geneva
Convention as an international human rights instrument for the protection of refugees.
Many of the provisions in this convention especially those relating to economic and
social rights are based not only on humanitarian considerations, but also aim to facilitate the
refugees integration into the country of asylum.92
The UNHCR provides important support in terms of the implementation of the 1951
Geneva Convention, clearly mentioned in its article 35,93 as well as in article II of the 1967
New York Protocol94 two articles of executory nature.95 More specifically, article 35
requires states parties to the convention to cooperate with the UN agencies in order to allow
UNHCR to exercise its functions, the latter involving a broad range of possible functions,
as one scholar suggested.96
The UNHCR supervises the application of the provisions in the 1951 Geneva
Convention, and this constitutes a significant portion of the functions that the institution
exercises. Article 35 not only obliges states to recognize the supervisory function of UNHCR,
but also to facilitate its completion of these duties. One might logically then inquire the limits
of the states obligations in terms of cooperating with UNHCR on the basis of this provision.
With respect to supervision, UNHCR has long considered its supervisory role to include
interpretation of the 1951 Refugee Convention. It could be argued that supervision involves
guaranteeing that the convention is applied consistently in comparable situations. In order to

the principle has been systematically reaffirmed in conclusions of the UNHCR Executive Committee and in
resolutions adopted by the United Nations General Assembly.
92
Jackson, I.C., The 1951 Convention Relating to the Status of Refugees: a universal basis for protection, in:
International Journal of Refugee Law, vol. 3, 1991, pp. 404-405. Although the intentions of the legislators, local
integration is becoming more and more the last of the durable solutions applied to refugees in Sub-Saharan
Africa.
93
Article 35 (Cooperation of the national authorities with the United Nations) reads: 1) The Contracting
States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any
other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular
facilitate its duty of supervising the application of the provisions of this Convention. 2) In order to enable the
Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make
reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the
appropriate form with information and statistical data requested concerning: a) The condition of refugees, b) The
implementation of this Convention, and; c) Laws, regulations and decrees which are, or may hereafter be, in
force relating to refugees.
94
We note that the function of article II of the 1967 New York Protocol is identical as the function of article 35
of the 1951 Geneva Convention. For a parallel analysis of the two articles, see: Zieck, M., Article 35 of the
1951 Convention/Article II of the 1967 Protocol, in: Zimmermann, A. (edited by), The 1951 Convention
Relating the Status of Refugees and its 1967 Protocol: a Commentary, Oxford: Oxford University Press, 2011,
pp. 1459-1510.
95
Ibid., p. 1468.
96
In this regard, A. Grahl-Madsen affirmed that: As article 35 does not limit itself to functions laid down in
some international instruments it is clear that it obliges the contracting states to co-operate in any and all of the
functions of the High-Commissioners Office, irrespective of their legal basis. See: Grahl-Madsen, A.,
Commentary on the Refugee Convention 1951: Articles 2-11, 13-37, Geneva: UNHCR, 1997, p. 151.
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do so, the use of the text of the convention itself as a sort of yardstick is indispensable.
However, the text may not always be sufficiently clear, and may need to be adapted to
modern legal developments.97
The second paragraph of article 35 requires states to supply UNHCR with relevant
information and statistical data concerning the situation of refugees. The fact that states also
must furnish the institution with information concerning the implementation of the 1951
Refugee Convention, in conjunction with the UNHCRs responsibility to report to the
competent organs of the UN, contributes to and considerably reinforces UNHCRs
supervisory function.98 In short, article 35 creates a specific obligation on the part of states
parties to the 1951 Refugee Convention, while giving an almost free hand to UNHCR.99
Linked to article 35 is article 36 of the 1951 Geneva Convention,100 and its homologous
article III of the 1967 New York Protocol,101 which require states parties to communicate the
laws and regulations, which may be adopted to guarantee the application of the convention
and the protocol to the UNSG. While article 36 nominally mentions the UNSG on this issue,
in reality, these communications are directed to the UNHCR. In conclusion, UNHCR is the
most important body in charge of refugee matters within the UN system and, as such, a
subsidiary organ of the UNGA.102
However, in spite of the presence of quite detailed provisions that cover a broad range
of refugee issues, the 1951 Geneva Convention has not been exempt from criticism. Critics
have judged the provision of the refugee definition as vague one aspect of the definition
in particular is the nature of persecution. In effect, the nature of the persecutor has changed
because the model of the totalitarian, autocratic regimes that inspired the drafters no longer
exists. The identity and the motivations of the persecutor are now more elusive, with shadowy
organizations whose connections with state authorities are deliberately obscured or who
portray themselves as antagonists of the former states, such as the Hutu militias in Rwanda.103

97
Zieck, M., Vanishing points of the refugee law regime, in: Ohio State Journal on Dispute resolution, vol.
20, 2005, pp. 241-242.
98
Zieck, M., Article 35 of the 1951 Convention/Article II of the 1967 Protocol, op. cit. note 94, p. 1468.
99
Zieck, M., Vanishing points of the refugee law regime, op. cit. note 97, p. 235.
100
Article 36 (Information on national legislation): The Contracting States shall communicate to the
Secretary-General of the United Nations the laws and regulations which they may adopt to ensure the application
of this Convention.
101
For a parallel analysis of the two articles, see: Zieck, M., Article 36 of the 1951 Convention/Article III of the
1967 Protocol, in: Zimmermann, A. (edited by), The 1951 Convention Relating the Status of Refugees and its
1967 Protocol: a Commentary, Oxford: Oxford University Press, 2011, pp. 1511-1525.
102
Trk, V., UNCHRs supervisory responsibility, in: Revue qubcoise de droit international, vol. 14, 2001,
p. 140.
103
Fitzpatrick, J., Revitalizing the 1951 Refugee Convention, in: Harvard Human Rights Journal, vol. 9, 1996,
pp. 232 and 240.
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According to several scholars, other lacunae of the 1951 Refugee Convention include
the right of admission, the right of receiving asylum, the lack of an agreed-upon framework
for RSD, the lack of specificity on how the burden can be shared, and the risks involved in
harmonization efforts that try to compensate for these shortcomings.104 Although documents
coming from UNHCR provide guidelines in these areas,105 they have been reputed to leave a
great deal of discretion to national governments as to how to structure their status
determination system. Uniformity in substance and process are sought through the creation of
a central refugee determination agency in which UNCHR would play an important role.
Moreover, a plausible argument could be made that the most acute mark of obsolescence of
the 1951 Refugee Convention is represented in its implicit assumption that claims to refugee
status will be processed on an individualized basis.106 UNHCR has long recognized that
individualized procedures may be unfeasible in situations of mass influx, and in 1981,
UNHCR insisted that admission and temporary refuge be granted in such situations.107
In addition to its silence regarding processes for refugee determination, the 1951
Geneva Convention lacks explicit mention of important substantial protections for asylum-
seekers, including the right of admission, the right to receive asylum and the right of
temporary refuge for non-convention refugees fleeing internal troubles or armed conflicts.
More specifically, the text of this instrument seems to be particularly unclear on two key
points concerning refugee protection. These points are whether states are obliged to allow
entry of asylum-seekers at the border, pending determination of their claims to refugee status;

104
For instance, E. Feller clearly contended that the 1951 Refugee Convention does not prescribe the procedure
for its own application. See: Feller, E., The Refugee Convention at fifty, in: Georgetown Journal of
International Affairs, 2002, p. 8. At p. 9 she concluded her analysis affirming that: [I]t is clear that the
Convention does not cover all protection needs and has to be buttressed through the further development not
only of international legal tools, but also of practical response possibilities. In effect, how it was agreed in 1991
already: [i]t was consistently recognized that the Convention represents simply the beginning, or perhaps the
core, of protection, and that other categories of persons, probably not currently within the definition, also
warranted serious international concern. See: Aleinikoff, T.A., The Refugee Convention at forty: reflections
on the IJRL colloquium, in: International Journal of Refugee Law, vol. 3, 1991, p. 620.
105
UNHCR, Handbook on procedures and criteria for determining refugee status under the 1951 Convention and
the 1967 Protocol relating to the status of refugees, 2 nd edition, Geneva: UNHCR, 1992, 61 p.
106
Fitzpatrick, J., Revitalizing the 1951 Refugee Convention, op. cit. note 103, pp. 232 and 243-244.
107
UNGA, Office of the United Nations High Commissioner for Refugees, Report of the Secretary-General,
Addendum, 21 October 1981, document No. A/36/12/Add.1. At paragraph 51, it has been registered: Another
speaker, however, believed that these large-scale influxes might call for a review of the international refugee
instruments. However, at paragraph 42 it was therefore recognized that: one of the most significant of these
achievements was the widened definition of the term refugee figuring in the 1969 OAU Refugee Convention
which had been accepted by various groups of jurists and legal experts outside the region, most recently by the
Group of Experts on Temporary Refuge in situations of large-scale influx, convened by the High Commissioner
at the request of the Executive Committee in April 1981. Later the same document, in the section dealing with
Treatment of asylum-seekers who have been temporarily admitted to a country pending arrangements for a
durable solution, reads: 1) [T]he standards defined in this article do not, however, cover all aspects of the
treatment of asylum-seekers in large-scale influx situations. 2) It is therefore essential that asylum-seekers who
have been temporarily admitted pending arrangements for a durable solution should be treated in accordance
with the following minimum basic human standards.
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and whether states are forbidden to seize asylum-seekers on the high seas and return them to
the country from which they are fleeing.108
Furthermore, the 1951 Refugee Convention is considered to also lack detailed provisos
regarding obligations that states have to one another, reducing its value as a framework in
resolving, in the case of Sub-Saharan Africa, the contemporary recent refugee crises. For
instance, there are no obligations placed on third party countries to relieve host countries of
the burdens of asylum by providing either offers of admission or at least financial
resources.109 In contrast, an important dimension relating to the eroding legitimacy of the
1951 Geneva Convention has also been the increasing number of countries making use of
safe third country legislation. According to this, refugees can be returned to countries where
they have formerly resided, if determined by their destination country that they would not be
in danger if they were to return.110
Finally, the 1951 Geneva Convention presents key gaps in inter-state obligations,
predominantly security issues in relation with refugee camps, and reliable financing of
refugee prevention and relief strategies. Events like the crisis in Rwanda in the early 1990s
illustrate the complexity and importance of the security issues related to refugee flows. The
time may be ripe for debate about the responsibilities of countries of refuge, the international
community, and the recipients of the protection to ensure that vulnerable elements in the flow
are not constantly victimized and that refugees do not constitute a threat to other inhabitants,
to the territorial state, or to the state of origin. For this purpose, the 1969 OAU Convention
highlights the security aspect to a greater degree than the 1951 Geneva Convention does,111
which alludes to it mainly in terms of individualized security menaces posed by refugees as
individuals.
In allowing reservations to the 1951 Refugee Convention, the drafters had to preserve a
balance between the need to attract wider participation by permitting the contracting states to
define the scope of the obligations they wish to undertake, and the need to ensure that the
object and purpose of the treaty were not undermined by its reservations. The 1951 Refugee
Convention tried to achieve this balance through the prohibition of reservations to provisions
that embody the central aim of the treaty and obligations that are considered indispensable for

108
Fitzpatrick, J., Revitalizing the 1951 Refugee Convention, op. cit. note 103, pp. 245-246. In any case, this
later criticism addressed to the 1951 Geneva Convention does not particularly affect the situation in the African
continent considering that, according to the historical experiences; asylum-seekers generally do not use boats to
travel from one country to another of Africa but only to flee from the continent towards another continent.
109
In this regard, the concept of burden sharing represents one of the most important novelties of the 1969 OAU
Convention as we will beter see in: infra, Chapter 8.
110
Canefe, N., The fragmented nature of the international refugee regime and its consequences: a comparative
analysis of the applications of the 1951 Convention, in: Simeon, J.C. (edited by): Critical Issues in
International Refugee Law, Cambridge UK-/New York: Cambridge University Press, 2010, p. 183.
111
In particular, see: articles 2 and 3 of the 1969 OAU Convention.
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the achievement of the object and the purposes of the treaty. Because the central humanitarian
objective of the convention is to help provide asylum for refugees, the prohibition of
reservations to provisos relating to the refugee definition, non-refoulement, elementary
education, non-discrimination and the right to due process of law are deemed necessary to
maintain true to its purpose.112 Nevertheless, these norms relate to other provisions of the
convention. In this way, the degree of acceptance of the related provisions strengthens or
weakens the effectiveness in promoting the goals of the 1951 Geneva Convention.113
In a recent statement, the AHC noted that, although it is necessary to reaffirm the
strengths of the convention, it should nevertheless be reanalyzed and possibly improved in
light of the broader scope of todays refugee problem, where these dimensions are
understood to include new problems such as the asylum/migration nexus issues, in Sub-
Saharan Africa as in other places.114

1.3.2 The dual nature of the 1967 New York Protocol

The Protocol to the 1951 Refugee Convention was signed in 1967 in New York. 115 It is
a treaty that incorporates the 1951 Refugee Conventions rights regime by reference 116 and
extends those protections to all refugees by eliminating the conventions temporal and
geographical limitations.117 UNHCR collaborated in the removal of these limitations118 for
those countries that are bound by the convention. Given the temporal and geographical

112
Article 42 of the 1951 Geneva Convention (Reservations) clearly explains: 1) At the time of signature,
ratification or accession, any State may make reservations to articles of the Convention other than to articles 1, 3,
4, 16 1), 33, 36-46 inclusive. 2) Any State making a reservation in accordance with paragraph I of this article
may at any time withdraw the reservation by a communication to that effect addressed to the Secretary-General
of the United Nations.
113
Blay, S.K.N.; Tsamenyi, M.B., Reservations and declarations under the 1951 Convention and the 1967
Protocol relating to the status of refugees, in: International Journal of Refugee Law, vol. 2, 1990, pp. 557-558.
114
UNHCR, The Refugee Convention at 60: still fit for its purpose? Protection tools for protection needs,
statement by Erika Feller, Assistant High Commissioner (Protection), UNHCR Workshop on Refugees and the
Refugee Convention 60 Years On: Protection and Identity, Prato, 2 May 2011, pp. 12-13.
115
Protocol Relating to the Status of Refugees. Done at New York, on 31 January 1967, United Nations Treaty
Series, vol. 606, No. 8791, p. 267.
116
Article I1 reads: The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the
Convention to refugees as hereinafter defined.
117
S.E. Davies clearly affirmed this concept: The key difference between the 1951 Convention and the 1967
Protocol was the removal of the 1951 Conventions time and geographic constraints. See: Davies, S.E.,
Redundant or essential? How politics shaped the outcome of the 1967 Protocol, in: International Journal of
Refugee Law, vol. 19, 2007, p. 703.
118
In this regard, C. Lewis asserted that: UNHCR [] studied ways and means by which the personal scope of
the 1951 Convention might be liberalized and proposed a colloquium on this issue. A colloquium on the Legal
Aspects of Refugee Problems was held in Bellagio, Italy, from 21-28 April 1965. UNHCR submitted a
background paper to the colloquium and, in 1965, created an initial draft of the Protocol on the basis of the
colloquiums report. UNHCR also made revisions pursuant to governments comments and EXCOMs
suggestions and then submitted the final draft of the Protocol to the General Assembly through ECOSOC. See:
Lewis, C., UNHCRs contribution to the development of international refugee law: its foundations and
evolution, in: International Journal of Refugee Law, vol. 17, 2005, p. 77.
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limitations present in the 1951 Geneva Convention, it was very difficult to assure a complete
protection to the African refugees based on the existing mechanisms in place.119
In effect, the new independent states of Sub-Saharan Africa had little incentive to
become parties to the 1951 Refugee Convention because of the non-universality of the
refugee definition in that treaty. Being non-parties to this convention, they were therefore not
bound by the duty to cooperate with UNHCR through article 35 of the 1951 Geneva
Convention. From this time on, the UNHCR lacked an important instrument to guide its work
for refugee protection on the African continent.120 In effect, during the entire 1960s, UNHCR
was widely criticized because it provided significant material assistance in Sub-Saharan
Africa without a correspondent level of legal protection, giving the impression that in the
agencys view, African refugees simply needed material assistance. It was because of the
hostility of many states on the continent towards the 1951 Geneva Convention that UNHCR
started to take into consideration the requirements of new African countries and to conceive
the idea of a new universal instrument, which could be widely accepted, above all in Africa,
where support for the success of the Protocol was considered essential.121
The draft resolution was presented in the Third Committee of the UNGA (Social,
Humanitarian and Cultural) in 1966 by twelve countries. Among them were Congo
Brazzaville, Guinea (Conakry), Mali, Mauritania, Sudan, Tanzania and Zambia. Paragraph 1
of this resolution provided for the elimination of the timeline mentioned in article 1B I) of the
1951 Convention.122 There were, however, some objections nonetheless. The Nigerian
government submitted an amendment to the draft resolution. The amendment proposed that
the UNGA, instead of approving the text of article 1 of the draft resolution and referring the
study of the remaining articles to its 22nd session as was affirmed in paragraph 2 of the draft
resolution should take note of the protocol and request the UNSG to communicate its text to
the states concerned. Moreover, countries would be free to enter reservations and to sign, or
not to sign, the protocol.123 In effect, during the discussion of the draft protocol, the Nigerian

119
Jackson, I.C., The 1951 Convention Relating to the Status of Refugees: a universal basis for protection, op.
cit. note 92, p. 407.
120
Einarsen, T., Drafting history of the 1951 Convention and the 1967 Protocol, in: Zimmermann, A. (edited
by), The 1951 Convention Relating the Status of Refugees and its 1967 Protocol: a Commentary, Oxford:
Oxford University Press, 2011, p. 69.
121
Davies, S.E., op. cit. note 117, p. 716, 718, and 722.
122
Document No. A/C. 3/L. 1415. The operative paragraphs of this resolution reads: 1) [The UNGA] approves
the annexed text of article 1 of the draft Protocol relating to the Status of Refugees providing for the elimination
of the timeline 1 January 1951 mentioned in article IB 1) of the Convention relating to the Status of Refugees
done on 28 July 1951, 2) decides to consider the other articles of the draft Protocol as its twenty-second session.
123
Weis, P., The 1967 Protocol Relating to the Status of Refugees and some questions of the law of treaties,
in: The British Yearbook of International Law, vol. 42, 1967, pp. 45-47.
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representative at the UN clearly declared that the text in discussion was not satisfying at all,124
underlining that the financial assistance provided to the African refugees represented less than
one tenth of the assistance provided to refugees elsewhere in the world. The representative
also pointed out that many Sub-Saharan African countries Botswana, DRC, Guinea,
Lesotho, Senegal, Tanzania, Zambia were obliged to shoulder too heavy a burden for a
situation created from abroad, the plight of refugees being created mostly as a result of
colonialism.125 The Ugandan delegate also showed more than one problematic element in the
draft protocol, highlighting that it did not put a strong enough accent on the specific situation
of refugees in Africa.126
The 1967 New York Protocol constitutes a law-making treaty, which deals with the
same matter of the 1951 Refugee Convention, and at the time of its drafting, was open to
participation that is more inclusive. The 1967 protocol is considered of a dual nature: it is
supplementary to the convention for some states, and it constitutes an independent instrument
for states adopting the protocol, which are not party to the convention. 127 In contrast to the
provisions of the 1951 Geneva Convention, countries that are bound only by the 1967 New
York Protocol at the time of accession have the option to deny other state parties the right to
refer a dispute concerning their application or interpretation of the protocol to the ICJ.128
In effect:
124
Mr. Mohammed, Nigerian delegate at the UN, declared that the protocol did not go far enough to solve the
problems. Declaration contained in: UNGA, Official records of the Third Committee, 21 st session, 1449th
meeting, 6 December 1966, paragraph 43.
125
Ibid., paragraph 44.
126
Declaration by Mr. Kawuki, Ugandan delegate at the UN. Declaration contained in: UNGA, Official records
of the Third Committee, 21st session, 1449th meeting, 6 December 1966, paragraph 66.
127
Weis, P., The 1967 Protocol Relating to the Status of Refugees and some questions of the law of treaties,
op. cit. note 123, pp. 50, and 60. More specifically, at pp. 59-60: These observations are particularly pertinent to
the 1967 Protocol. The procedure for revision of the 1951 Convention, as provided for in its terms, was not
resorted to in view of the urgency of extending its personal scope to new groups of refugees and of the fact that
the amended treaty would have required fresh consent by the States parties to the Convention. Instead, a new
instrument, the 1967 Protocol relating to the Status of Refugees, was established which does not amend the 1951
Convention and modifies it only in the sense that States acceding to the Protocol accept the material obligations
of the Convention in respect of a wider group of persons. As between the States parties to the Convention, it
constitutes an inter se agreement by which they undertake obligations identical ratione materiae with those
provided for in the Convention for additional groups of refugees not covered by the Convention on account of
the timeline of 1 January 1951. As regards States not parties to the Convention, it constitutes a separate treaty
under which they assume the material obligations laid down in the Convention in respect of refugees defined in
article I of the Protocol, namely those covered by article 1 of the Convention and those not covered by reason of
the timeline.
128
Under article VII 1) of the Protocol (At the time of accession, any State may make reservations in respect of
article IV of the present Protocol and in respect of the application in accordance with article I of the present
Protocol of any provisions of the Convention other than those contained in articles 1, 3, 4, 16 1) and 33 thereof,
provided that in the case of a State Party to the Convention reservations made under this article shall not extend
to refugees in respect of whom the Convention applies) a state may enter a reservation concerning article IV of
the Protocol (Any dispute between States Parties to the present Protocol which relates to its interpretation or
application and which cannot be settled by other means shall be referred to the International Court of Justice at
the request of any one of the parties to the dispute). By contrast, article 42 of the 1951 Geneva Convention that
addresses the scope of permissible reservations to that agreement, does not permit states to enter a reservation to
article 38, the equivalent of article 4 of the 1967 New York Protocol.
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While the Convention provides for obligatory jurisdiction of the International Court of
Justice in any dispute relating to its interpretation or application, one reason for the Protocol
was for some States to be able to make reservations to this jurisdictional clause.129

As the substantive content of both the convention and the protocol is identical, it would
seem open to a state that was party to the first to refer a dispute involving interpretation of the
refugee definition or of refugee rights, so long as the subject matter is not exclusively relevant
to post-1951 refugees.130
Since the material stipulations of both treaties are identical, it appears that no conflict is
likely to arise. However, the possibility exists by virtue of differences in the provisos
concerning reservations. Both treaties allow unilateral reservations and exclude the same
material provisions of the 1951 Refugee Convention from reservations.131 Furthermore, it is
possible that different and conflicting reservations may be made on the same subject under the
convention and the protocol. This is dealt with in article VII of the 1967 New York
Protocol,132 which provides that reservations made under this article, in the case of a state
party to the 1951 Geneva Convention, shall not extend to refugees to whom the latter
convention applies. Therefore, in the case of a dispute between states that are party to both the
convention and the protocol, where one of the countries has made a reservation under the
protocol as to the courts jurisdiction, the latter court would not be competent if the dispute
concerned refugees to whom the protocol alone applied (post-timeline refugees). This
framework applies unless the states concerned have accepted the jurisdiction of the court by

129
Sohn, L.B.; Buergenthal, T., The Movement of Persons Across Borders, Washington DC: The American
Society of International Law, 1992, p. 113.
130
Hathaway, J.C., The Rights of Refugees under International Law, Cambridge UK-: Cambridge University
Press, 2005, p. 112.
131
Weis, P., The 1967 Protocol Relating to the Status of Refugees and some questions of the law of treaties,
op. cit. note 123, p. 61. In this regard, the author contended: A difference exists in so far as article 35 of the
convention, dealing with cooperation with the United Nations, may be subject to reservations under the
Convention, but is excluded from reservations by virtue of article VII of the Protocol. No state party to the
Convention has so far made a reservation to article 35 of the Convention, a provision, which deals with the
relations between the States parties and the United Nations. The difference is, therefore, not likely to lead to any
conflict.
132
Article VII reads: 1) At the time of accession, any State may make reservations in respect of article IV of the
present Protocol and in respect of the application in accordance with article I of the present Protocol of any
provisions of the Convention other than those contained in articles 1, 3, 4, 16 1) and 33 thereof, provided that in
the case of a State Party to the Convention reservations made under this article shall not extend to refugees in
respect of whom the Convention applies. 2) Reservations made by States Parties to the Convention in accordance
with article 42 thereof shall, unless withdrawn, be applicable in relation to their obligations under the present
Protocol. 3) Any State making a reservation in accordance with paragraph I of this article may at any time
withdraw such reservation by a communication to that effect addressed to the Secretary-General of the United
Nations. 4) Declarations made under article 40, paragraphs I and 2, of the Convention by a State Party thereto
which accedes to the present Protocol shall be deemed to apply in respect of the present Protocol, unless upon
accession a notification to the contrary is addressed by the State Party concerned to the Secretary-General of the
United Nations. The provisions of article 40, paragraphs 2 and 3, and of article 44, paragraph 3, of the
Convention shall be deemed to apply mutatis mutandis to the present Protocol.
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general declarations under the optional clause133 or by a compromise. The nature of the
dispute can be uncertain, such as when it is not clear if it affects the construction of the
instrument with respect to those refugees to whom the convention applies, or with respect to
post-timeline refugees, and when the jurisdiction of the court may be disputed by a party.
However, the ICJ itself would have to decide whether it has jurisdiction, according to article
36 6) of its statute.134
Both instruments constitute true cornerstones of the legal protection of refugees. The
reluctance of the international community to abandon the foundations of the Geneva system
reflects a sense that the convention embodies indispensable and enduring values. As UNHCR
noted in 1995:

New and complementary strategies to ensure the effective provision of international


protection should first seek to reinforce the implementation of the 1951 Convention and 1967
Protocol and existing regional instruments; to strengthen the protection provided to persons
falling outside the application of international legal instruments; and to support protection
measures taken by States not yet party to such instruments. The objective is to reinforce the
commitment of States to ensuring that persons who require protection receive it without
discrimination. While various possibilities towards achieving this end can be kept under
review, States do not appear prepared currently to undertake additional binding obligations
towards refugees.135

As of 1 July 2012, 145 countries are parties to both the 1951 Geneva Convention and
the 1967 New York Protocol. Among them, 142 are parties to both treaties. Considering
specifically Sub-Saharan Africa, practically the entire continent is part of both the instruments
with the exceptions of Madagascar, which is a party only to the 1951 Refugee Convention,
while Cape Verde is only a party to the 1967 New York Protocol. Notably, the Sub-Saharan
African countries that are not a party to either of the two are Eritrea, and the archipelagos of
Comoros and Mauritius. We note that the 1967 New York Protocol entered into force on 4
October 1967, on the deposit of the sixth instrument of accession, according to what was

133
Article 36 2) of the ICJs Statute reads: The states parties to the present Statute may at any time declare that
they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting
the same obligation, the jurisdiction of the Court in all legal disputes concerning: a) the interpretation of a treaty;
b) any question of international law; c) the existence of any fact which, if established, would constitute a breach
of an international obligation; d) the nature or extent of the reparation to be made for the breach of an
international obligation.
134
Article 36 6) of the ICJs Statute reads: In the event of a dispute as to whether the Court has jurisdiction, the
matter shall be settled by the decision of the Court.
135
UNHCR, Note on international protection: international protection in mass influx (submitted by the High
Commissioner), 1 September 1995, document No. A/AC.96/850, paragraph 8.
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established in Swedens article 8 1).136 Nevertheless, of the five states that previously acceded
to it, four were from Sub-Saharan Africa: Cameroon, CAR, Gambia and Senegal. 137 Finally,
the drafting process leading to the adoption of the 1967 New York Protocol confirmed the
view that the state participants in 1967 conceived the refugee definition in the same sense as
in 1951. In 1967, the main perception considered the limitations on universality as causing
problems for the protection of refugees, particularly in Africa, rather than the core of the
definition of refugee and its scope.138 Finally, the 1967 New York Protocol has been
perceived as an unsuccessful compromise between the sometimes-conflicting interests of
developed and developing countries and the humanitarian needs of refugees.139

1.3.3 The application of the two treaties: reservations and declarations made by the Sub-
Saharan African countries

The first remark regarding the accession140 or succession141 of the Sub-Saharan African
countries to the 1951 Geneva Convention is that some states such as Congo and Madagascar
adopted the geographical limitation present at letter a) of article 1B, that is:

For the purposes of this Convention, the words events occurring before 1 January
1951 in article 1, section A, shall be understood to mean either a) events occurring in
Europe before 1 January 1951.142

136
Article 8 1) of the 1967 New York Protocol reads as follows: 1) The present Protocol shall come into force
on the day of deposit of the sixth instrument of accession.
137
Weis, P., The 1967 Protocol Relating to the Status of Refugees and some questions of the law of treaties,
op. cit. note 123, p. 48.
138
Einarsen, T., op. cit. note 120, p. 72. In this regard, see also: Davies, S.E., op. cit. note 117, p. 728: A
problem remains with the refugee definition as its focus on political persecution has been at the cost of assisting
and protecting larger numbers of people fleeing generalized situations of violence and abuse.
139
Idem.
140
Grant, J.P.; Barker, J.C., Encyclopedic Dictionary of International Law, 3rd edition, Oxford/New York:
Oxford University Press, 2009, p. 4: Accession, sometimes also referred to as adherence or adhesion, is the
term used to connote the method whereby a state which has not signed a treaty may subsequently become a part
to it. In Sub-Saharan Africa many countries adopted the two instruments through accession. Among them:
Angola, Burkina Faso, Burundi and Democratic Republic of Congo.
141
Ibid., pp. 577-578: A succession of international persons occurs when one or more international persons
takes the place of another international person, in consequence of certain changes in the latters condition. [] A
newly independent state is [] free to choose whether or not to become a party to multilateral treaty and may
establish its status as a contracting state to a multilateral treaty which is not in force. Examples of Sub-Saharan
African countries which have acceded the two instruments through succession: Zambia (only the convention
while the protocol through accession), Togo (idem), Guinea (idem), Gambia (idem), Congo Brazzaville (idem).
142
All the declarations and the reservations mentioned in this paragraph are available in the UNHCR website at
the following address:
http://www.unhcr.org/cgi-
bin/texis/vtx/refworld/rwmain?page=search&docid=3be01b964&skip=&query=convention%20re
lating%20the%20status%20of%20refugees, accessed 15 October 2012.
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The adoption of such an alternative highlights the neglect of the two countries regarding
the events that occurred on the continent prior to this date. We note, however, that most of the
African continent was still under European colonial domination before 1 January 1951, and
therefore what happened on African soil was technically under European rule.143 Therefore,
the translation of such an alternative into their legal system of these two countries was just a
bureaucratic question without any significant repercussion on their protection of African
refugees. Such an interpretation is also confirmed, in our opinion, by the further measures
adopted by these two countries in favor of African refugees; we cannot really affirm that they
tend to discriminate against their co-continentals.144
Several countries have made declarations about their compliance with the provisions of
the 1951 Refugee Convention. Angola wanted to reaffirm that the constitution was the
supreme source of rights within the country, and that provisions of the convention not
contrary to or incompatible with the constitutional provisions can be applicable. Angola
emphasized two concepts: the 1951 Geneva Convention cannot accord any category of alien
residents in Angola more extensive rights than Angolan citizens enjoy; and the 1951 Refugee
Convention cannot provide for measures considered necessary for the refugees if the
measures can menace national interests and the respect of the sovereignty. 145 The Malagasy
government interpreted the same articles as to allow measures to be taken with regard to
refugees because of their nationality and in the interest of national security, for instance in
time of war or other serious exceptional circumstances. In addition, Madagascar, with a clear
intent to favor its preferred relations with given countries, highlighted not to reserve to
refugees the same treatment as accorded to nationals of states with which it has concluded
agreements on cooperation or conventions of establishment.146 Uganda understands the same
provision as not conferring any legal, political or other enforceable right upon refugees who
may be on Ugandan territory. Stating this, Uganda stressed the discretionary character of its

143
On 1st January 1951, only the three following Sub-Saharan African states were fully independent: Ethiopia,
Liberia and South Africa, this last having attained the independence from the British rule in 1910.
144
If it is true that in 1962 the authorities in Brazzaville approved a quite strict Loi No. 35-1961 du 20 juin 1961
portant le Code de la nationalit congolaise [Republic of the Congo], No. 35-1961, 1 July 1962, already in 1978
they approved a Dcret No. 1978-266 du 13 avril 1978 portant cration dun Comit National dAssistance aux
Rfugis and many others measures on the protection of the refugees followed. And Madagascar approved
already in 1962 a Dcret No. 1962-001 portant cration dun bureau des rfugis et apatrides au Ministre de
lIntrieur (Direction de la Scurit Nationale) to face the plight of refugees in the country.
145
Angolan authorities specifically refer in this case to articles 8 (Exemption from exceptional measures) and
9 (Provisional measures) of the Convention. In addition, reservation made at article 26 (Freedom of
movement). Botswana placed a reservation on the same latter article while Ethiopia and Uganda stated to
consider articles 8 and 9 just as a recommendation and not-legally binding its government.
146
In converse, article 7 1) (Exemption from reciprocity) reads: Except where this Convention contains more
favorable provisions, a Contracting State shall accord to refugees the same treatment as is accorded to aliens
generally. Malawi considered the entire article 7 as a recommendation.
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treatment towards refugees, defined as absolute, regarding article 7 of the 1951 Geneva
Convention, according to the security, economic and social needs of the country.147
Angola has also made a couple of reservations to the convention, the most important
being consideration of paragraph 2 of article 17 as just a recommendation, and not as an
obligation. This article forbids restrictive measures imposed on specific categories of refugees
or their employment for the protection of the national labor market. 148 Botswana made a
reservation to paragraph 2 of article 12 without giving any further specifications on which
should be the law to govern the personal status of a refugee in the event that it can be neither
the law of the country of domicile, nor the law of the country of residence. 149 Malawi, after
having considered the provisions stipulated in articles 13, 15, 19 and 24 to be not binding, 150
pointed out that it reserved the right to designate the place of residence of the refugees and to
restrict their movement whenever considerations of national security or public order required
it. In a way, this would have anticipated the limitation contained in article II6 of the 1969
African Convention dealing with the general concept of security domestic and
international rather than only the national one.151 In the end, Malawi adhered to both
instruments, the 1951 Geneva Convention and the 1969 OAU Convention in the same period
ratifying the 1969 African Convention on December 2, 1987, and the 1951 Geneva
Convention on December 10. A similar reservation has been placed by Mozambique,

147
In detail, we may read that: [T]he Republic of Uganda understands this provision [article 7] as not conferring
any legal, political or other enforceable right upon refugees who, at any given time, may be in Uganda. On the
basis of this understanding the Government of the Republic of Uganda shall accord refugees such facilities and
treatment as the Government of the Republic of Uganda shall in her absolute discretion, deem fit having regard
to her own security, economic and social needs. See: UNHCR, Declarations and reservations to the 1951
Convention relating to the status of refugees- as of 1st March 2006-, Geneva: UNHCR, p. 12.
148
Article 17 2) (Wage-earning employment) of the 1951 Geneva Convention. Botswana placed a reservation
on the same article while Ethiopia and Zambia imitated the example of Angola declaring to recognize this
paragraph as a not-legally binding one but just as a recommendation. Sierra Leone extended the character of
recommendation to the entire article and not just to the paragraph in question. Furthermore, Malawi could not
grant to refugees rights of wage earning employment more favorable than those granted to other aliens could
while Uganda privileged aliens coming from countries having specific agreements with Kampala over refugees.
In a clear attempt to discriminate refugees, Ethiopia, Zambia and Zimbabwe considered as a simple
recommendation also the provisions contained in article 22 1): The Contracting States shall accord to refugees
the same treatment as is accorded to nationals with respect to elementary education, imitated by Malawi.
149
Article 12 1) (Personal status) reads: The personal status of a refugee shall be governed by the law of the
country of his/her domicile or, if he/she has no domicile, by the law of the country of his/her residence.
150
Article 13 (Movable and immovable property), article 15 (Right of association), article 19 (Liberal
professions), article 24 (Labor legislation and social security). Article 13 has been made object of a
reservation also by Mozambique and Uganda. Particularly Uganda reserved the right to abridge provision
contained in article 13 without recourses to courts of law if the national government considered such
abridgement to be in public interest. These two countries placed a reservation on article 15. About the latter,
the authorities in Maputo declared not to be bound to accord to refugees resident in its territory more extensive
rights than those enjoyed by nationals with respect to the right of association reserving to even restrict these
rights in the interest of national security. Uganda made a similar statement on this article.
151
Article 26 (Freedom of movement). Article II6 of the 1969 OAU Convention reads: For reasons of
security, countries of asylum shall, as far as possible, settle refugees at a reasonable distance from the frontier of
their country of origin.
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Namibia, Rwanda, Sudan and Zambia.152 In addition, both Malawian and Mozambican
governments commented on the provision concerning naturalization, stating that refugees
would be not favored compared to other aliens just because of their particular status.153
In contrast, Sierra Leone has made a reservation to article 29:154 if article 29 aims not to
impose on refugees a heavier fiscal regime than that applied to nationals, Sierra Leone
reserved the right to impose special taxes on aliens as provided for in the national
constitution. In this way, refugees are at least put on the same level as the other categories of
aliens present on the Sierra Leonean territory.
In this context, it is also interesting to note the declaration made by the government of
the Somali Democratic Republic, once it acceded to both the 1951 Geneva Convention and
the 1967 New York Protocol. Today, there is reason to believe there will be considerable
debate as to whether Somalia can be even considered a state.155 However, the declaration
made by the Somali government is a declaration of principles that addresses the entire
treaty, in order to safeguard the right of Somali people to be a state:

The Government of the Somali Democratic Republic acceded to the Convention and
Protocol on the understanding that nothing in the said Convention or Protocol will be
construed to prejudice or adversely affects the national status, or political aspiration of
displaced people from Somali Territories under alien domination. It is in this spirit, that the
Somali Democratic Republic will commit itself to respect the terms and provisions of the said
Convention and Protocol.

Remarking that Somalia became independent on 1 July 1960 and acceded to the 1951
Geneva Convention and to the 1967 New York Protocol in 1978, the above declaration

152
In this regard, Zambian authorities declared that: The Government of the Republic of Zambia wishes to state
with regard to article 26 that it reserves the right to designate a place or places of residence for refugees.
Zimbabwe which ratified the convention almost 12 years after Zambia -August 1981 and September 1969
respectively- imitated the statement of the Lusaka government.
153
Article 34 (Naturalisation).
154
Article 29 (Fiscal charges).
155
For a scholarly opinion on this issue see, for instance: Koskenmaki, R., Legal implications resulting from
state failure in light of the case of Somalia, in: Nordic Journal of International Law, vol. 73, 2004, pp. 1-36. At
p. 2, the author affirmed: State failure occurs with varying intensity and geographical scope, and it has even led
to the emergence of a state totally lacking government, Somalia from 1991 through 2000, the failed state par
excellence. However: In its decision of May 2002 in H.M.H.I. v. Australia, the UN Committee against Torture
considered [] that [S]omalia currently possesses a state authority in the form of the Transitional National
Government, which has relations with the international community in its capacity as central government, though
some doubts may exist as to the reach of its territorial authority and permanence. Accordingly, the Committee
does not consider this case to fall within the exceptional situation in [the 1999 Elmi case] and takes the view that
acts of such entities as are now in Somalia commonly fall outside the scope of article 3 of the Convention. See:
Nowak, M.; McArthur, E., The United Nations Convention Against Torture: A Commentary, Oxford: Oxford
University Press, 2008, p. 201.
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evidently made during the same period denoted a sense of instability of the Somali state
even eighteen years after its independence.156
Uganda focused part of its reservations on article 16, regarding refugees access to
court.157 As with the most part of the reservations and declarations made by African states on
the 1951 Geneva Convention, this one was also made with the clear scope of increasing the
local authorities discretion over refugees by including them in the huge category of aliens,
without favorable treatment other than their particular condition and situation can justify. In
addition, Uganda is the only Sub-Saharan African country that made an important declaration
on article 32 of the 1951 Refugee Convention concerning expulsion, openly contradicting
paragraph 2 of the article. Although Ugandan authorities declared that their actions would not
have operated to the prejudice of the provisions of article 33 of the 1951 Geneva Convention,
dealing with non-refoulement, they allow the expulsion of a refugee for reasons of public
interest without recourse to legal process.158
Regarding travel documents for refugees,159 the Zambian government, perhaps in an
attempt to put into practice the concept of burden-sharing that would later be one of the main
features of the 1969 OAU Convention,160 considered itself not bound to issue a travel
document with a return clause, which is one of the clauses mentioned in paragraph 13 of the
Schedule of the 1951 Refugee Convention instead.161 The travel document, however, will not
present a return clause exclusively in cases where a country of second asylum has accepted or
indicated its willingness to accept a refugee from Zambia. On a continent where coherent
communication between governments is the exception, we can hardly figure out which are the

156
The internal troubles in Somalia, which date from 1988, escalated to a full-scale civil war after the overthrow
of Mohammed Siad Barre in January 1991. The conflict led to the virtual disappearance of all state structures, to
a significant disruption of economic, social and political life and to an unforeseen humanitarian catastrophe. As
of October 2012, the situation is still very far from being stabilized with a state entity, the Somaliland, which
claims for more than one decade now for its independence. For a point of view on the Somaliland claims, see:
Eggers, A.K., When is a state a state: the case for recognition of Somaliland, in: Boston College International
and Comparative Law Review, vol. 30, 2007, pp. 211-222. See also: Schoiswohl, M., Status and (Human Rights)
Obligations of Non-Recognized De Facto Regimes in International Law: the Case of Somaliland, Leiden/Boston:
Martinus Nijhoff Publishers, 2004, where the author stressed the massive human rights violations suffered by
Somaliland people under the Siad Barres regime in the 1980s. See: ibid., pp. 162-164.
157
Article 16 (Access to courts).
158
Article 32 2) (Expulsion) begins: The expulsion of [] a refugee shall be only in pursuance of a decision
reached in accordance with due process of law.
159
Article 28 (Travel documents).
160
Zambia ratified both the 1951 Geneva Convention and the 1967 New York Protocol on 24 September 1969,
just two weeks after the adoption of the African Convention by the Assembly of Heads of State and Government
of the OUA 10 September.-
161
Paragraph 13 of the Schedule of the 1951 Geneva Convention: 1) Each Contracting State undertakes that the
holder of a travel document issued by it in accordance with article 28 of this Convention shall be readmitted to
its territory at any time during the period of its validity. 2) Subject to the provisions of the preceding sub-
paragraph, a Contracting State may require the holder of the document to comply with such formalities as may
be prescribed in regard to exit from or return to its territory. 3) The Contracting States reserve the right, in
exceptional cases, or in cases where the refugees stay is authorized for a specific period, when issuing the
document, to limit the period during which the refugee may return to a period of not less than three months.
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shared parameters for countries to show their willingness to accept refugees coming from
another country. In addition, authorities in Lusaka should perhaps explain in detail through
which means, in their opinion, a third country would show their willingness to accept
refugees from Zambia. This opinion should be requested in order to avoid further possible
misunderstandings.
Zimbabwe, with Gambia, is the only Sub-Saharan African countries to declare that they
are not bound by any of the reservations to the 1951 Refugee Convention made by their
former European colonial power, Great Britain. The convention had been extended to apply to
the territory before it attained its independence from the United Kingdom.162 In some cases,
however, such as article 17 of the convention, the government of Zimbabwe integrated
statements, which had previously been made by the United Kingdom, making a new
declaration extending its discretion in comparison with the colonial power. In the example
given, although the United Kingdom accepted article 17 2) with some modifications, the
authorities in Harare declared themselves not bound:

[t]o grant a refugee who fulfills any of the conditions set out in subparagraphs a) to c)
automatic exemption from the obligation to obtain a work permit. In addition, with regard to
article 17 as a whole, the Republic of Zimbabwe does not undertake to grant to refugees rights
of wage-earning employment more favorable than those granted to aliens generally.163

The same situation occurred for article 24, where the Zimbabwean government stated
that it considered the article a simple recommendation. Finally, to stress its will to consider
refugees a less deserving category of individuals compared to citizens and other aliens,
Zimbabwe has been the only African country to consider the very basic provision of public
relief164 as a mere recommendation, thus de facto denying any compulsory obligation to
supply refugees with this assistance.
This overview of the many reservations and declarations made by African countries,
which consider many articles of the treaties not binding raises a question: is there a real, safe
country for refugees in Sub-Saharan Africa?

162
In practice all the reservations made by the United Kingdom could be extended to their colonies. They
concerned articles 8 (Exemption for exceptional measures), 9 (Provisional measures), 17 (Wage-earning
employment), 24 (Labor legislation and social security), 25 (Administrative assistance).
163
This declaration by the Zimbabwean authorities dates back to August 25, 1981 when the country accessed the
1951 Geneva Convention. In 1985, however, Zimbabwean authorities should have changed their mind because,
in the Zimbabwe Refugee Regulations, its section 18 clearly reads: Where an employer considers an application
for employment by persons who are not citizens of Zimbabwe, such employer shall give preference to persons
who are recognized refugees or protected persons, in terms of these regulations. Emphasis added.
164
Article 23 reads: The Contracting States shall accord to refugees lawfully staying in their territory the same
treatment with respect to public relief and assistance as is accorded to their nationals.
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1.4 The UNHCRs Executive Committee conclusions on international protection, the


subjects they are concerned with, and their role in Sub-Saharan Africa

Since 1975, UNHCR has elaborated the content of existing standards in refugee
protection through non-binding conclusions165 adopted by the state members of the agencys
governing body, the ExCom. These Conclusions on the International Protection of
Refugees have addressed a heterogeneous range of topics: from non-refoulement166 to the
provision of identification documents.167 A considerable effort has also been made to interpret
rights to respond to the special vulnerabilities of refugees such as children,168 women,169
elderly170 or individual part of large-scale influx.171 However, works of the ExCom date back
to the 1950s,172 and the committee started to deal with the plight of refugees in Sub-Saharan
Africa in the early 1960s when it started to consider projects for new refugees, such as
assisting refugees in CAR, and the settlement of a group of refugees in Senegal and Uganda.
It also took in consideration the situation of refugees in the Great Lakes zones, namely in
DRC, Burundi and Rwanda.173

165
In this regard, A. Corkery noted: As the Committees competence to address states is based on acquiescence,
rather than express authorization, it is understandable that its advice takes the more hesitant form of conclusions
rather than resolutions. See: Corkery, A., The contribution of the UNHCR Executive Committee to the
development of international refugee law, in: Australian International Law Journal, vol. 13, 2006, p. 106.
166
Among them see, for instance: conclusions No. 1 (1975), 5 (1977), 6 (1977), 17 (1980), 22 (1981), 29 (1983),
50 (1988), 52 (1988), 55 (1989), 62 (1990), 65 (1991), 68 (1992), 71 (1993), 74 (1994), 75 (1995), 81 (1997), 82
(1997), 85 (1998). All the conclusions mentioned are available in: UNHCR, A Thematic Compilation of
Executive Committee Conclusions, 2nd edition, Geneva: UNHCR, 2005, 444 p.
167
Among them see, for instance: conclusions No. 8 (1977), 18 (1980) 24 (1981), 35 (1984), 64 (1990), 65
(1991), 72 (1993), 73 (1993), 91 (2001).
168
Among them see, for instance: conclusions No. 47 (1987), 59 (1989), 72 (1993), 73 (1993), 74 (1994), 79
(1996), 85 (1998), 87 (1999), 89 (2000).
169
Among them see, for instance: conclusions No. 32 (1983), 39 (1985), 46 (1987), 54 (1988), 60 (1989), 64
(1990), 68 (1992), 71 (1993), 73 (1993), 74 (1994), 77 (1995), 79 (1996), 81 (1997), 85 (1998), 87 (1999), 89
(2000).
170
Among them see, for instance: conclusions No. 32 (1983), 85 (1998), 87 (1999), 89 (2000).
171
Among them see, for instance: conclusions No. 19 (1980), 22 (1981), 25 (1982), 44 (1986), 81 (1997), 85
(1998), 100 (2004).
172
The UNs ECOSOC established the ExCom in 1958 through resolution No. 672 (XXV) and the governing
body formally came into existence on January 1, 1959. Although established by ECOSOC, ExCom functions as
a subsidiary organ of the UNGA and its documentation is issued in a General Assembly series. ExComs report
is submitted directly to the UNGA for consideration in the Third Committee. 1950 UNHCR Statute in its article
3 directs that the High Commissioner [s]hall follow policy directives given him by the General Assembly or the
Economic and Social Council. The ExCom does not replace policy making functions of the UNGA or
ECOSOC but has its own executive and advisory functions which include: to advise the High Commissioner in
the exercise of his/her functions, to review funds and programs, to authorize the High Commissioner to make
appeals for funds and to approve proposed biennial budget targets. In this regard, see: Corkery, A., op. cit. note
165, pp. 103-105.
173
Warner, D., Forty years of the Executive Committee: from the old to the new, in: International Journal of
Refugee Law, vol. 2, 1990, pp. 239-243.
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Although not-legally binding on states,174 the standards in the conclusions can be


considered consensus resolutions of a formal body of government representatives, specifically
in charge of [p]roviding guidance and forging protection consensus of vital protection
policies and practices.175
The authority of these conclusions has been traced to article 35 of the 1951 Geneva
Convention,176 which allows the agency to require state parties to explain treatment of
refugees, which does not conform to the ExComs conclusions.177 In addition, from a legal
perspective, it is not completely clear whether the ExComs conclusions are legally binding
for UNHCR178 without endorsement from the UNGA.179 From a practical perspective,
however, UNHCR treats the conclusions as if they are binding by consistently following the
advice provided by ExCom within them.180
One author tended to divide the conclusions into different types: he pointed out that
there is one group of provisions dealing with organizational matters related to the office of the
UNHCR, and the ExCom addressed them directly to the High Commissioner.181 A larger
group of provisions consists of pronouncements on assistance, including general opinions on

174
Sztucki, J., The conclusions on the international protection of refugees adopted by the Executive Committee
of the UNHCR program, in: International Journal of Refugees Law, vol. 1, 1989, p. 287. In this regard, A.
Corkery pointed out: While there was no expectation in the Committees terms of reference that states would be
obliged to follow Committees directions [...] it is arguable that states duty of cooperation gives the conclusions
some authoritative weight over states, given the role the conclusions play in the exercise of the UNHCRs
functions. See: Corkery, A., op. cit. note 165, p. 106. Ibid., at p. 107: However, recognition that the
conclusions are not legally binding does not mean that they are irrelevant in guiding, influencing or regulating
state practice and it is possible for them to have quite significant political effects. And, later at p. 108:
Conclusions [...] on a particular theme may be declaratory of a customary norm or evidence of emerging
principles that may represent a stage in the process of formation of a customary legal norm.
175
ExCom, conclusion No. 81 (XLVII) General conclusion on international protection, 1997. The entire
paragraph g) of the conclusion reads: [The Executive Committee] stresses the importance of the role played by
this Committee in providing guidance and forging consensus on vital protection policies and practices, and, in
this connection, emphasizes the need for due regard to be paid to the conclusions of the Executive Committee.
176
Corkery, A., op. cit. note 165, p. 102.
177
Article 35 (Cooperation of the national authorities with the United Nations) of the 1951 Geneva
Convention, on which no African states had objection on its formulation, stipulates: 1) The Contracting States
undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other
agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular
facilitate its duty of supervising the application of the provisions of this Convention. 2) In order to enable the
Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make
reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the
appropriate form with information and statistical data requested concerning: a) The condition of refugees, b) The
implementation of this Convention, and c) Laws, regulations and decrees which are, or may hereafter be, in force
relating to refugees.
178
In this regard, the second part of paragraph 1 of the 1950 UNHCR Statute reads: In the exercise of his/her
functions, more particularly when difficulties arise, and for instance with regard to any controversy concerning
the international status of these persons, the High Commissioner shall request the opinion of an advisory
committee on refugees if it is created.
179
The UNGA has sometimes endorsed the ExCom report that contains the conclusions such as, for instance:
UNGA, Office of the United Nations High Commissioner for Refugees, 18 December 2002, resolution No.
A/RES/57/187, paragraph 1: 1) [The UNGA] endorses the report of the Executive Committee of the Program
of the United Nations High Commissioner for Refugees on the work of its fifty-third session.
180
Lewis, C., op. cit. note 118, pp. 79-80.
181
Sztucki, J., op. cit. note 174, p. 298.
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questions of protection and policy statements.182 There are also a fair number of conclusions
having a regulatory or normative content contributing to progressive development of
international refugee law. Several among them refer to certain legal instruments or norms and
they provide for their interpretation and/or the consequences of their application in practice,
such as the conclusions regarding the non-refoulement and expulsion, important phenomena
afflicting Sub-Saharan African refugee populations.183 There are conclusions that develop
more detailed rules on the practical applications of the convention provisos, or respond to
practical needs as they arise. They do so by indicating what is regarded as a just and equitable
interpretation and application of the 1951 Geneva Convention and the 1967 New York
Protocol, in the face of changing contemporary situations.184 Finally, there are also several
typical pronouncements designed to make recommendations, which are formulated with
varying degrees of strength. In a number of cases, these conclusions are directly addressed to
states,185 while some others are formulated without a direct addressee, although at times

182
Among them see, for instance: conclusion No. 44 (XXXVII) Detention of refugees and asylum-seekers,
1986, paragraph a): [The ExCom] noted with deep concern that large numbers of refugees and asylum-seekers
in different areas of the world are currently the subject of detention or similar restrictive measures by reason of
their illegal entry or presence in search of asylum, pending resolution of their situation; conclusion No. 46
(XXXVIII) General conclusion on international protection, 1987, paragraph r): [The ExCom] welcomed the
recent adoption by a number of States of national administrative and legislative measures to implement
effectively the provisions of the international refugee instruments, including the establishment of appropriate
procedures for the determination of refugee status.
183
Among them see, for instance: conclusion No. 6 (XXVIII) Non-refoulement, 1977. Its paragraph c) reads:
[The ExCom] reaffirms the fundamental importance of the observance of the principle of non-refoulement-both
at the border and within the territory of a State of persons who may be subjected to persecution if returned to
their country of origin irrespective of whether or not they have been formally recognized as refugees;
conclusion No. 7 (XXVIII) Expulsion, 1997 where its paragraph a) reads: [The ExCom] recognizes that,
according to the 1951 Convention, refugees lawfully in the territory of a Contracting State are generally
protected against expulsion and that in accordance with Article 32 of the Convention expulsion of a refugee is
only permitted in exceptional circumstances. Its paragraph c) reads: [The ExCom] recommended that, in line
with Article 32 of the 1951 Convention, expulsion measures against a refugee should only be taken in very
exceptional cases and after due consideration of all the circumstances, including the possibility for the refugee to
be admitted to a country other than his/her country of origin.
184
The entire conclusion No. 22 (XXXII) Protection of asylum-seekers in situations of large-scale influx, 1981
can be perceived under this conception. It is separated in four distinctive parts each of them containing
definitions and explanations of concepts. Parts of other conclusions have the same character such as, for
example, conclusion No. 40 (XXXVI) Voluntary repatriation, 1985, paragraph b) that reads: The repatriation
of refugees should only take place at their freely expressed wish; the voluntary and individual character of
repatriation of refugees and the need for it to be carried out under conditions of absolute safety, preferably to the
place of residence of the refugee in his/her country of origin, should always be respected. On this purpose, see
also: conclusion No. 48 (XXXVIII), 1987, Military or armed attacks on refugee camps and settlements.
185
Among them see, for instance: conclusion No. 49 (XXXVIII) Travel documents for refugees, 1987. Its
paragraph d) reads: [The ExCom] urged all States parties to the 1951 UN Convention and/or the 1967 Protocol
[].
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implicitly they let clearly imagine that UNHCR is the addressee. 186 Obviously, the more
direct the language contained in the conclusions, the stronger their persuasive value.187
UNHCR may reasonably expect states to respond to gaps in refugee protection using the
conclusions adopted by its ExCom as reference, although it cannot require compliance with
those standards.188 In contrast, it is less clear to what degree standards recommended by
UNHCR, but not actually formalized as part of the ExCom conclusions, can be compared
with actual ExCom conclusions. There is a traditional practice of attributing particular
importance to the UNHCRs Handbook on Procedures and Criteria for Determining Refugee
Status, a complete analysis of the basic guidelines of refugee law,189 prepared in 1977 at the
request of the ExCom.190 Many domestic organs, such as the Supreme Court in the USA,191
the House of Lords in Great Britain,192 but no domestic African court yet supported the
vision of the growing importance of this document whose rules would provide guidance on
the interpretation of refugee law with high persuasive authority for domestic courts and
tribunals. Some of the conclusions of the ExCom or at least some sections of them have been
explicitly dedicated to the situation of the refugees in Africa as a whole, though not
particularly to refugees in Sub-Saharan Africa. Although sometimes the ExCom simply has
expressed its opinion on the situation occurring on the continent, often condemning the
current situation, within the framework of general conclusions,193 at other times the ExCom
has undertaken initiatives to solicit other institutions, namely UNHCR, to find a solution to

186
Such as in conclusion No. 35 (XXXV) Identity documents for refugees, 1984, where paragraph d) reads:
[The ExCom] recommended that asylum applicants whose applications cannot be decided without delay be
provided with provisional documentation sufficient to ensure that they are protected against expulsion or
refoulement until a decision has been taken by the competent authorities with regard to their application.
187
Corkery, A., op. cit. note 165, p. 116.
188
Hathaway, J.C., The Rights of Refugees under International Law, op. cit. note 130, p. 114.
189
This 1978 Handbook has been replaced in 1992 by a 2 nd edition: Handbook on procedures and criteria for
determining refugee status under the 1951 Convention and the 1967 Protocol relating to the status of refugees,
2nd edition, Geneva: UNHCR, 1992, 61 p.
190
ExCom, conclusion No. 8 (XXVIII), Determination of refugee status, 1977. Its paragraph g) reads: [The
ExCom] requested the Office to consider the possibility of issuing-for the guidance of Governments-a handbook
relating to procedures and criteria for determining refugee status and circulating with due regard to the
confidential nature of individual requests and the particular situations involved significant decisions on the
determination of refugee status.
191
For instance. see: US Supreme Court, Immigration and Naturalization Service v. Cardozo Fonseca, 480 US
421 (US SC, 9 March 1987), 1987, at 439, n. 22.
192
For instance, see: Secretary of State for the Home Department, ex parte Adan and Aitseguer, [2001] 2 WLR
143 (UK HL, Dec. 19, 2000).
193
ExCom, conclusion No. 14 (XXX) General conclusion on international protection, 1979, paragraph e):
[The ExCom] severely condemned recent inhuman attacks on refugee camps in southern Africa as a result of
which numerous refugees, including women and children, had lost their lives and others had become
permanently incapacitated, and expressed the hope that the necessary steps would be taken to protect refugees
from such attacks and to assist the victims. See: ExCom, conclusion No. 16 (XXXI) General conclusion on
international protection 1980, paragraph f) [The ExCom] reiterated its condemnation of inhuman military
attacks on refugee camps in southern Africa and the need for effective protection and humanitarian assistance to
be accorded to the victims of such attacks.
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the problem.194 In the case of Sub-Saharan Africa, however, the addressee of the conclusions
of the ExCom can also be constituted by states charged with taking the initiative to relieve the
situation of the refugees living in a given country.195 In addition, there are conclusions
dedicated, entirely or partially, to the situation of refugees in Africa, focusing on particular
aspects of the problem,196 and others where the ExCom has praised both the African legal
system and the assistance provided to refugees in that area of the world.197
Finally, ExCom conclusion No. 76 deals with the general issues of the refugee question
on the continent, recalling the OAU/UNHCR Commemorative Symposium on refugees and
forced population displacements in Africa held in Addis Ababa in 1994. In its conclusion, the
ExCom:

Commends the recommendations to the relevant states, and intergovernmental and


non-governmental organizations for consideration and implementation as necessary [and]
Requests the High Commissioner, in close collaboration with the relevant States and
intergovernmental and non-governmental organizations, most particularly the Organization of
African Unity, to disseminate the recommendations widely, promote as necessary their
implementation, and keep the Executive Committee informed of progress in this regard.198

194
ExCom, conclusion No. 21 General conclusion on international protection (XXXII), 1981, paragraph h):
[The ExCom] noted with grave concern the inhuman military attacks on refugee camps in southern Africa and
elsewhere, involving extreme and indescribable hardships to refugees and called upon the High Commissioner to
examine the serious humanitarian problems resulting from military attacks on refugee camps and settlements
which are the concern of UNHCR, and the need for special measures to protect and ensure the safety of such
refugees, and to report thereon at the earliest possible date to the Executive Committee.
195
ExCom, conclusion No. 55 (XL) General conclusion on international protection, 1989, paragraph m): [The
ExCom] underlined that resettlement is not only a possible solution for some refugees, but is also an urgent
protection measure in the individual case, welcomed the fact that several African States provide such
resettlement opportunities, and invited all states to make places speedily available to respond to urgent or
emergency protection situations facing individual refugees.
196
ExCom, conclusion No. 27 (XXXIII) Military attacks on refugee camps and settlements in Southern Africa
and elsewhere, 1982; conclusion No. 32 (XXXIV) Military attacks on refugee camps and settlements in
Southern Africa and elsewhere, 1983. In the latter conclusion, substantially in its paragraph d) the ExCom:
[n]oted with regret that it had not been possible to reach a consensus on these principles in the time available.
These principles were affirmed in the report of the Sub-Committee on the Whole on International Protection
(document No. A/AC.96/629) which included a draft statement of principles on the Prohibition of Military and
Armed Attacks on Refugee Camps and Settlements.
197
ExCom, conclusion No. 74 (XVL) General conclusion on international protection, 1994, paragraph n):
[The ExCom] recognizes that in Africa and Latin America, regional instruments provide for the protection of
refugees fleeing armed conflict and civil strife, as well as those fearing persecution, and that in other regions,
persons who require international protection, but who either are not considered refugees within the scope of the
1951 Convention and 1967 Protocol or are in countries that have not acceded to these instruments, have
generally been provided protection and humanitarian assistance through specific measures adopted by States and
in full cooperation with UNHCR.
198
ExCom, conclusion No. 76 (XLV) Recommendations of the OAU/UNHCR commemorative symposium on
refugees and forced population displacements in Africa, 1994, paragraphs d) and e).
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The recommendations mentioned in paragraph d) of this conclusion are the same as


those adopted during the 1994 Addis Ababa Symposium. As also found in African legal
mechanisms, the provisions contained in non-binding instruments are more detailed and bold
than the provisions contained in binding documents. At this 1994 Symposium, eleven
recommendations were adopted that focused on the main aspects of refugee issues in Africa.
This Symposium enumerated the root causes of the refugee flow, accusing not only domestic
African policies but also the developed world, using allegations such as international
economic forces as causes for the plight that afflicts the entire continent.199
In a way, this document can be undoubtedly considered one of the manifestos of Pan-
Africanism,200 although recommendation 11 called for [g]enuine international solidarity and
burden-sharing where the term international does not confine the problem to the frontiers
of the continent.
In addition, it must be said that above all else from the 1990s, the work of the ExCom
has been often coordinated with the development of the UNGA resolutions, which will be
analyzed further in this chapter. For instance, in the 1998 UNGA resolution No. 53/125 states
were pleased that this resolution could introduce elements on international protection that
were at the core of the debate of the ExCom sessions, as well.201 The trend by the UNGA to
refer to the conclusions of the ExCom continued for the entire first decade of the 21st century,
sometimes using exactly the same language of the conclusions.202

199
Paragraph 9 of the document issued from the Symposium reads: External factors have also played a part in at
least contributing to forced population displacements. Historically, the main cause of coerced population
displacements has been colonialism. Today, there is no question that international economic forces have
contributed to the widespread poverty in Africa and to the widening gap between the poor and the rich [].
200
For an essential bibliography on Pan-Africanism see: Bennett, G., Pan-Africanism in: International
Journal, vol. 18, 1962-1963, pp. 91-96; Henry, P.-M., Pan-Africanism: a dream come true in: Foreign Affairs,
vol. 37, 1958-1959, pp. 443-452; Wing, A.K.; Levitt, J.; Jackson, C., The African Union and the new Pan-
Africanism: rushing to organize or timely shift, in: Transnational Law and Contemporary Problems, vol. 1,
2003, pp. 1 through 6.
201
McBride, M., op. cit. note 52, p. 28. See: UNGA, Office of the High Commissioner for Refugees, 9
December 1998, resolution No. A/RES/53/125. In this regard, see also: UNGA, Office of the UNHCR, 17
December 1999, No. A/RES/54/146 where, quoting M. McBride at p. 29: Several operative paragraphs
incorporated ideas or language from the 1999 ExCom conclusions, paragraphs 20 and 21 in particular.
Paragraphs 20 and 21 read: 20) [The UNGA] recognizes the special role of elderly refugees within the refugee
family, and, bearing in mind that 1999 has been declared the International Year of Older Persons, calls upon
States and the Office of the High Commissioner to make renewed efforts to ensure that the rights, needs and
dignity of elderly refugees are fully respected and addressed through appropriate program activities; 21) [The
UNGA] recalls that the family is the natural and fundamental group unit of society and that it is entitled to
protection by society and the State, and calls upon States, working in close collaboration with the Office of the
High Commissioner and other concerned organizations, to take measures to ensure that the refugees family is
protected, including through measures aimed at reuniting family members separated as a result of refugee flight.
202
McBride, M., op. cit. note 52, p. 32.
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Finally, the absence of any mechanism to monitor how ExCom conclusions should be
implemented remains the most problematic aspect of these conclusions. In this manner, the
ExComs ability to influence states in this area of the world remains very limited.203

1.5 The importance of the UNSC resolutions and statements for the protection of refugees

1.5.1 UNSC resolutions and the essential character of enforcement with regards to refugee
protection

The provisions of the 1945 UN Charter make it clear that the UN gives the UNSC a
broad authority for the maintenance of international peace and security.204 To give a very brief
description of the general context of the issues we are writing about, the UNSC is a political
organ that produces resolutions that have legal consequences. The competence granted to the
UNSC by the 1945 UN Charter is a normative one, with its basis predominantly in Chapter
VII, more specifically in articles 39205 and 40. These clauses confer upon the UNSC the right
to give orders that are generally not considered to be binding to states;206 and articles 41207
and 42208 provide it with a decisional power.

203
Corkery, A., op. cit. note 165, p. 127.
204
In this regard, P.-M. Fontaine noted: In recent decades, the world has seen more and more peacekeeping
operations being undertaken by the United Nations (such as in Somalia []). The burden is on the principal
organs of the United Nations, in particular the Security Council, to provide leadership and resources for the
prevention of crises leading to the production of refugees. [] However, this role is not limited to the principal
organs. Success on the part of the human rights machinery of the United Nations [] will also go a long way
toward relieving flows of refugees []. See: Fontaine, P.-M., The United Nations and future refugee
challenges, in: Melbourne University Law Review, vol. 20, 1995-1996, p. 151.
205
Article 39 of the UN Charter reads: The Security Council shall determine the existence of any threat to the
peace, breach of the peace, or act of aggression and shall make recommendations, or decides what measures
shall be taken in accordance with articles 41 and 42, to maintain or restore international peace and security.
This article provides the UNSC with a quasi-discretionary power to determine whether a situation constitutes a
breach of international peace and security. However, it also contains a notion, the threat to the peace for
which there is no definition to be found either in the 1945 UN Charter or in the practice of the UN. Such a
theoretical vagueness provides the UNSC a broad extent of action in evaluating if a situation constitutes a threat
to peace, a breach to peace or an act of aggression. For the quotation in this footnote, see: Perrin de Brichambaut,
M., The role of the United Nations Security Council in the international legal system, in: Byers, M. (edited
by), The Role of Law in International Politics, Oxford: Oxford University Press, 2000, p. 269.
206
Article 40 of the UN Charter reads: In order to prevent an aggravation of the situation, the Security Council
may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon
the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such
provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The
Security Council shall duly take account of failure to comply with such provisional measures. On the effects of
article 40 we need to clarify that: [A]rticle 40 does not specify whether measures on this basis may create
binding effects for the addresses. The fact that the measures are considered necessary or desirable by the
UNSC appears to indicate a merely recommendatory character. [...] Doctrine, however, widely holds that article
40 encompasses binding orders as well as recommendations. This view mainly relies on systematic
interpretation: since recommendations for non-binding ceasefires are possible already under Chapter VI, the
inclusion of article 40 in Chapter VII seems to be meaningful only if it confers additional powers to the UNSC
and thus if it allows for binding effects. Moreover, the binding effect of provisional measures under article 40
has been recognized by state practice. See: Frowein, J.; Krisch, N., Article 40, in: Simma, B. (edited by), The
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The UNSC has dealt with the question of refugees in Sub-Saharan Africa several times,
using its resolutions as an instrument to protect this category of individuals in particular
circumstances, such as in the case of refugees settled in camps,209 or simply to underline the
respect of existing refugee law. A typical example of this latter case occurred in 2008 when
the UNSC called for CAR and Chad to respect and to ratify the legal instruments concerning
refugees, and furthermore requested the UNSG to regularly report on the situation of refugees
in the region.210
On another occasion, in a specific case of a mass-influx movement of asylum-seekers,
the UNSC banned a certain organization and demanded that countries refuse entry to its
senior members: as was the case of the UNITA rebel movement211 in Angola in the 1990s and
early 2000s. Nevertheless, in situations of mass-influx, proscribed individuals will be mixed
with a more general population movement, often including those not excluded from entry and
applying for refugee status.212 Because of the UNSCs relationship with all the other organs of
the UN, such officials could be excluded from refugee status automatically. On the other

1945 Charter of the United Nations: a Commentary, 2nd edition, Oxford/New York: Oxford University Press,
2002, vol. I, p. 734.
207
Article 41 of the UN Charter reads: The Security Council may decide what measures not involving the use of
armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United
Nations to apply such measures. These may include complete or partial interruption of economic relations and of
rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic
relations.
208
Article 42 of the UN Charter reads: Should the Security Council consider that measures provided for in
Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land
forces as may be necessary to maintain or restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
The ICJ in an advisory opinion declared: The language of a resolution of the Security Council should be
carefully analyzed before a conclusion can be made as to its binding effect. In view of the nature of the powers
under Article 25, the question whether they have been in fact exercised is to be determined in each case, having
regard to the terms of the resolution to be interpreted, the discussions leading to it, the 1945 UN Charter
provisions invoked and, in general, al1 circumstances that might assist in determining the legal consequences of
the resolution of the Security Council. See: ICJ, Legal consequences for states of the continued presence of
South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), advisory
opinion of June 21st 1971, in: ICJ Reports, 1971, paragraph 114, p. 53.
209
In this regard see, for instance: UNSC, On the situation in Africa, refugee camps, 19 November 1998,
resolution No. 1208, S/RES/1208.
210
UNSC, The situation in Chad, the Central African Republic and the sub-region, 24 September 2008,
resolution No. 1834, S/RES/1834. For more details, see the preamble of the resolution: [The UNSC]
emphasizing the need to respect international refugee law, preserve the civilian and humanitarian nature of
refugee camps []. See also its paragraph 9: [The UNSC] requests him [the UNSG] to also to continue to
report regularly, and at least every three months, on the security and humanitarian situation, including
movements of refugees [] on progress towards the objective of helping to create the security conditions
conducive to a voluntary, secure and sustainable return of refugees []. Emphasis added.
211
UNITA is the second-largest political party of the country after the MPLA.
212
UNSC, The situation in Angola, 28 August 1997, resolution No. 1127, S/RES/1127, paragraph 4, letter a):
[The UNSC decides that all states shall take the necessary measures]: to prevent the entry into or transit through
their territories of all senior officials of UNITA and of adult members of their immediate families, as designated
in accordance with paragraph 11 a) below, except those officials necessary for the full functioning of the
Government of Unity and National Reconciliation, the National Assembly, or the Joint Commission, provided
that nothing in this paragraph shall oblige a State to refuse entry into its territory to its own nationals. This
concept is reaffirmed also in resolution No. 1295, S/RES/1295 of 18 April 2000, paragraphs 22-24 and in
resolution No. 1336, S/RES/1336, of 23 January 2001, particularly in its preamble.
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hand, the UNSC resolution simply prohibited entry to other countries and said nothing about
refugee status, so an argument could be made that refugee status as an aspect of respect of
human rights,213 could make the ban ineffective and that each case would be examined
individually.214
Under Chapter VII of the 1945, UN Charter the UNSC has adopted other different kinds
of solutions to alleviate the situation of the refugees in Sub-Saharan Africa. Therefore, for
instance, during the peak of the crisis in the Great Lakes Region in November 1996, it
authorized a temporary multinational force in Eastern DRC for humanitarian purposes.215
In other circumstances the UNSC acted as a mediator, encouraging parties in a civil war
to find a solution that could positively affect the position of the refugee nationals abroad,
permitting their repatriation and reintegration in the socio-economic texture of their countries
of origin. This was the case, for instance, of the parties struggling in Cte dIvoire in the 2010
civil turmoil.216 However, the situation in Cte dIvoire remained uncertain for a long period,
jogging on terrible conditions for years. In effect, already in 2005 the UNSC mandated the
UNOCI to be in charge of coordinating the voluntary repatriation and resettlement of

213
Article 1 3) of the 1945 UN Charter proclaims: [The Purpose of the United Nations are]: [] 3) to achieve
international cooperation in solving international problems of an economic, social, cultural, or humanitarian
character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all
without distinction as to race, sex, language, or religion. Emphasis added.
214
Gilbert, G.S., Current issues in the application of the exclusion clauses, in: Feller, E.; Trk, V.; Nicholson,
F. (edited by), Refugee Protection in International Law: UNHCRs Global Consultations on International
Protection, Cambridge UK-/New York/Geneva: Cambridge University Press & UNHCR, 2003, footnote 204,
pp. 467-468.
215
UNSC, The situation in the Great Lakes Region, 15 November 1996, resolution No. 1080, S/RES/1080,
paragraph 3: [The UNSC] welcomes the offers made by Member States, in consultation with the States
concerned in the region, concerning the establishment for humanitarian purposes of a temporary multinational
force to facilitate the immediate return of humanitarian organizations and the effective delivery by civilian relief
organizations of humanitarian aid to alleviate the immediate suffering of displaced persons, refugees and
civilians at risk in eastern Zaire, and to facilitate the voluntary, orderly repatriation of refugees by the United
Nations High Commissioner for Refugees as well as the voluntary return of displaced persons, and invites other
interested States to offer to participate in these efforts. In the same regard, the UNSC was clear on November 9
of the same year when it urged: [M]ember States, on an urgent and temporary basis and in cooperation with the
Secretary-General and with the OAU, to prepare the necessary arrangements, in consultation with the States
concerned, to allow the immediate return of humanitarian organizations and the safe delivery of humanitarian aid
to displaced persons, refugees and civilians at risk in eastern Zaire, and to help to create the necessary conditions
for the voluntary, orderly and secure repatriation of refugees. See: UNSC, The situation in the Great Lakes
Region, 9 November 1996, resolution No. 1078, S/RES/1078, paragraph 7.
216
UNSC, The situation in Cte dIvoire, 25 May 2010, resolution No. 1933, S/RES/1933, paragraph 14: [The
UNSC] urges the signatories of the Ouagadougou Political Agreement to work towards a sustainable solution for
the voluntary return, reinstallation, reintegration, and security of displaced persons, including by addressing land
tenure issues, with the support of the United Nations system, and to fulfill in this regard their commitments in
accordance with the Ouagadougou Political Agreement and their obligations under international law. For the
Ouagadougou Political Agreement, see: UNSC, Ouagadougou Political Agreement, document No. S/2007/144,
13 March 2007. Paragraph 6 5) of the agreement explicitly stipulate: With a view to promoting national
reconciliation and political and institutional normalization, the Parties to the direct dialogue agree to establish as
early as possible a program to provide assistance for the return of persons displaced by the war. This program is
intended to facilitate the social reintegration of individuals and families who abandoned their homes or their
property on account of the war.
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nationals, in particular [p]aying specific attention to the specific needs of women and
children.217
Sometimes, as it happened in DRC between 2000 and 2010, the UNSC delegated the
African countries of origin to guarantee the protection and safe return of refugees, sometimes
also with commensurate international support,218 where the protection should be above all
guaranteed to the most vulnerable categories of individuals, notably children.219 However, in
a politically tormented area such as Great Lakes Region, it was probably too ambitious to
entrust the local governments directly with the task of dealing with the conditions of refugees.
It was for this reason that, in 2004, the UNSC decided that the MONUC should take over the
situation, decisively contributing to assistance with the repatriation of the refugees in the
region.220 A similar delegation of tasks has been recently used for the crisis involving the
CAR and the Chad; although the formula used shows, the UNSC on this occasion limited
itself to taking note of the commitment of the Chadian government more than encouraging
it.221

217
UNSC, The situation in Cte dIvoire, 24 June 2005, resolution No. 1609, S/RES/1609, paragraph 2 f).
218
UNSC, The situation in the Great Lakes Region, 27 January 2006, resolution No. 1653, S/RES/1653,
paragraph 15: [The UNSC] calls upon the countries of the region to continue in their efforts to create conducive
conditions for voluntary repatriation, safe and durable integration of refugees and former combatants in their
respective countries of origin. In this regard, calls for commensurate international support for refugees and
reintegration and reinsertion of returnees, internally displaced persons and former combatants. Emphasis added.
219
UNSC, On the situation concerning the Democratic Republic of the Congo, 15 June 2001, resolution No.
1355, S/RES/1355, paragraph 14 that reads: [The UNSC] calls on all relevant parties to ensure that urgent child
protection concerns, including DDRR [disarmament, demobilization, repatriation and reintegration] of child
soldiers, the plight of girls affected by the conflict, the protection and safe return of refugee and internally
displaced children, and the registration and reunification of unaccompanied or orphaned children, are addressed
in all national, bilateral and regional dialogues, and that solutions are designed in accordance with international
best practice. About the child soldiers mentioned in this resolution, J. Bond observed that: More recently,
increased awareness regarding the use of child soldiers in armed conflicts has raised extremely challenging
questions about the degree of criminal liability that should be attributed to youths known to have been involved
in horrendous crimes, such as muder, torture, sexual enslavement, and genocide. It has bee estimated that over
20,000 children took part in the hostilities in Rwanda, while over 15,000 participated in Sierra Leone. See:
Bond, J., Excluding justice: the dangerous intersection between refugee claims, criminal law, and guilty
asylum-seekers, in: International Journal of Refugee Law, vol. 24, 2012, p. 52.
220
UNSC, The situation concerning the Democratic Republic of the Congo, 1 October 2004, resolution No.
1565, S/RES/1565, paragraph 5 b): [The UNSC] decides that MONUC will also have the following mandate, in
support of the Government of National Unity and Transition: [] b) to contribute to the improvement of the
security conditions in which humanitarian assistance is provided, and assist in the voluntary return of refugees
and internally displaced persons. In 2005 the UNSC also recalled that: [b]y its resolution 1565, the Council has
mandated MONUC to support operations led by Armed Forces of the Democratic Republic of the Congo [] to
facilitate the voluntary repatriation of disarmed foreign combatants and their dependents.
221
UNSC, The situation in Chad, the Central African Republic and the sub-region, 25 May 2010, resolution No.
1923, S/RES/1923, paragraph 2: [The UNSC] takes not of the commitment of the Government of Chad [] to
assume full responsibility for the security and the protection in the Eastern Chad, including refugees, internally
displaced persons, returnees and host communities, with a particular focus on women and children [] and
underscores that in so doing, the Government of Chad commits to carry out the following tasks: i) to ensure the
security and protection of civilians in danger, particularly refugees, and internally displaced persons.
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In addition, under article 39 of the 1945 UN Charter, the UNSC has determined that
particular policies were massive violations of human rights and humanitarian law 222 on
several occasions, for instance in Rwanda, where flows of refugees from that country
constituted threats to international peace and security.223

1.5.2 The vagueness of the UNSC presidential statements on refugee protection

Apart from resolutions, the UNSC can also adopt statements.224 Two of the most
famous presidential statements were issued in 1994, and dealt with the humanitarian crisis
created by the conflict in Rwanda, and internal displacement and security in the Rwandan
refugee camps. In the first statement, the UNSC believed that, although the immediate task
was to respond to the massive humanitarian crisis, the rapid return of refugees to their place
of origin was necessary for the normalization of the situation in Rwanda. 225 This concept was
further reaffirmed over the course of the year by welcoming either the effort made by the

222
According to M. Jacques, [w]hile international humanitarian law is mainly concerned with the protection of
enemy nationals in the hands of a party to an armed conflict; international refugee law seeks to protect
individuals who have sought refuge from persecution on the territory of a third country. See: Jacques, M., op.
cit. note lxx, p. 156.
223
Gowlland-Debbas, V., The link between security and international protection of refugees and migrants, in:
Chetail, V. (under the direction of): Globalization, migration and human rights: international law under review,
vol. II, Bruxelles: Etablissement Emile Bruylant, 2007, pp. 290-291.
224
In this regard, as an author affirmed: A presidential statement is a statement of the Security Council and not,
as the term might suggest, of its President. When making a statement on behalf of the Security Council the
President, under the authority of the Council, represents it in its capacity as an organ of the United Nations. []
The term presidential statement can be found neither in the Charter of the United Nations nor in the
Provisional Rules of Procedure of the Security Council. [] Despite its prominence in the practice of the
Security Council the status and legal implications of presidential statements as well as their politico-diplomatic
role seem far from clear. [] Opinion on their legal status is divided. According to Paul Tavernier: Les
dclarations prsidentielles [...] sont trs largement assimilables des rsolutions, par leurs effets juridiques,
politiques ou pratiques. [] Il nous semble que rien de soppose lassimilation, ou la quasi-assimilation, des
dclarations prsidentielles, aux rsolutions du conseil de scurit en ce qui concerne leur valeur et leurs effets
juridiques: elles peuvent contenir, comme les rsolutions, des recommandations ou des dcisions
obligatoires. . And, further, at ibid.: The practice of States and the UN Secretariat also confirms that
presidential statements are decisions of the Security Council in the sense of Article 27 of the 1945 UN Charter.
[] In contrast, statements by the President of the Security Council to the press do not constitute decisions of
the Security Council under Article 27 of the 1945 UN Charter. See: Talmon, S., The statements by the
President of the Security Council, in: Chinese Journal of International Law, vol. vol. 2, 2003, pp. 420-421 and
447-448. Article 27 of the 1945 UN Charter reads: 1) Each member of the Security Council shall have one vote.
2) Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine
members. 3) Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine
members including the concurring votes of the permanent members; provided that, in decisions under Chapter
VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.
225
UNSC, Rwanda, 10 August 1994, statement No. S/PRST/1994/42, p. 1: The Security Council believes,
furthermore, that the rapid return of the refugees and displaced persons to their homes is essential for the
normalization of the situation in Rwanda. In this regard, the Council strongly condemns attempts to intimidate
refugees carried out by those who are seeking to prevent them from returning to Rwanda.
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governments of Burundi, Tanzania and Zaire to aid with the resolution of the problem of
refugees, or the attitude of the government of Rwanda in facilitating the return of refugees. 226
In the second statement, the UNSC explicitly declared it favorable to consider the
establishment of a peacekeeping force in the camps.227 On this occasion, the UNSC noted its
worries about camp security and concluded that the use of local security forces without any
international contribution could not prove an effective approach. 228 The message to refugee-
hosting countries was that they were responsible for ensuring that their territories were not
used as a means to destabilize the situation inside Rwanda.229
In the last decade, the statements of the UNSC President have often been dedicated to
crises in several Sub-Saharan African countries, from Angola to CAR, from Chad to DRC,
from Congo to Liberia, although the issue of refugee protection has not been directly
approached. Actually, a preference has been shown for viewing this issue within the more
general framework of analysis of the critical situation afflicting a given country. Therefore, in
2010, the UNSC President stressed the role of the United Nations Mission in the CAR and in
Chad (MINURCAT) in maintaining its role in refugee protection but this [w]ithout prejudice
of the primary responsibility of the government of Chad.230 This last specification had been
lacking in the previous statements.231 Other times, the statements simply limited themselves to
noting the increased flow of refugees in a given geographic area, 232 advising concerned
parties to find effective solutions to the plight of refugees in a given country or region 233and
urging governments along with the relevant international organizations to promote the best

226
UNSC, Rwanda, 14 October 1994, statement No. S/PRST/1994/59, pp. 1-2: [The UNSC] reiterates its view
that [refugees] return to their home is essential for the normalization of the situation in Rwanda and for the
stabilization in the region. [] It welcomes the commitment of governments of Zaire, Tanzania and Burundi to
help resolve the problems facing the refugees. [] The Security Council welcomes the efforts being made by the
Rwandan Government to facilitate the return of refugees and to begin the difficult process of national
reconciliation and reconstruction in the country.
227
UNSC, Rwanda, 30 November 1994, statement No. S/PRST/1994/75, p. 2: [The UNSC] requests the
Secretary-General, to consult potential troop contributors to assess their willingness to participate in a possible
peace-keeping operation [] namely to create secure areas within large camp sites, providing safe conditions for
the refugees in those areas.
228
Idem: The Council [] requests the Secretary-General to consider what steps need to be taken to address the
question of security in the refugee camps in Tanzania and Burundi. However, the Council is concerned that the
use of local security forces without international involvement may not prove to be an effective approach to the
security problems in the camps.
229
Kourula, P., op. cit. note 18, p. 218.
230
UNSC, The situation in Chad, the Central African Republic and the sub-region, 20 December 2010, statement
No. S/PRST/2010/29, p. 1
231
See, for instance: UNSC, The situation in Chad, the Central African Republic and the sub-region, 8 May
2009, statement No. S/PRST/2009/13, p. 1: [The UNSC] reiterates its full support for the United Nations
Mission in the Central African Republic and Chad (MINURCAT), which is mandated to contribute to protect
vulnerable civilians including refugees and internally displaced persons [].
232
UNSC, The situation in Somalia, 9 July 2009, statement No. S/PRST/2009/19, p. 1.
233
UNSC, strengthening cooperation between the United Nations system and the Central African region in the
maintenance of peace and security, 31 October 2002, statement No. S/PRST/2002/31, p. 3: The Security
Council emphasizes the urgency of reaching an appropriate solution to the problem of refugees [].
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conditions for the repatriation and reintegration234 of refugees.235 Other times, the statement
simply stressed the burden placed on the host countries by a mass-influx of refugees.236

1.5.3 Conclusion

UNSC resolutions and statements, without a doubt, can add political impetus to solving
the core causes of refugee influx. They may also have a negative impact, however, in that
exclusive focus is placed on the security aspect of refugee protection. The security aspect was
certainly considered in 2002 and 2003, when the UNSC asked neighboring countries not to
support Liberian refugees to prepare and commit attacks on their home country, which had
the obvious purpose of preventing any further destabilization of the situation in the
region.237 There is an inherent danger that the UNSCs political involvement in refugee
situations can create unintentional results or delay the carrying out of the international
protection function.
Both resolutions and statements of the UNSC have so far focused on five key issues
relating to the protection of refugees, specifically: freedom of movement for refugees,
including the rights to remain and to return, often in safety and dignity, as was sought for
Sudan or in DRC,238 unrestricted and safe access by international staff to refugees and their
security. In addition, UNSC has historically concentrated on protection of the security of the
refugees;239 compliance by governments and military factions with international humanitarian

234
UNSC, The situation in Somalia, 12 March 2003, statement No. S/PRST/2003/2, p. 3.
235
UNSC, Peace consolidation in West Africa, 9 August 2006, statement No. S/PRST/2006/38, p. 2. See also:
UNSC, Cross-border issues in West Africa, 25 March 2004, statement No. S/PRST/2004/7, p. 2: The Security
Council reiterates the importance of finding durable solutions to the problem of refugees and displaced persons
in the sub-region and urges the States in the region to promote necessary conditions for their voluntary and safe
return with the support of relevant international organizations and donor countries.
236
UNSC The situation in Chad and the Sudan, 15 December 2006, statement No. S/PRST/2006/53, p. 1.
237
UNSC, The situation in Liberia, 6 May 2002, resolution No. 1408, S/RES/1408, paragraph 4. See also:
UNSC, The situation in Liberia, 22 December 2003, resolution No. 1521, S/RES/1521, paragraph 3. This
paragraph, very similar in the formulation to the one of the precedent resolution, reads: [The UNSC] demands
that all states in West Africa take action to prevent armed individuals and groups from using their territory to
prepare and commit attacks on neighboring countries and refrain from any action that might contribute to further
destabilization of the situation in the sub-region.
238
UNSC, Report of the Secretary-General on the Sudan, 18 September 2004, resolution No. 1564, S/RES/1564,
paragraph 6: [The UNSC] affirms that internally displaced persons, refugees and other vulnerable peoples
should be allowed to return to their homes voluntarily, in safety and with dignity, and only when adequate
assistance and security are in place. See also: UNSC, The situation concerning the Democratic Republic of the
Congo, 23 July 2007, statement No. S/PRST/2007/28, p. 2: [The Council] encourages both governments [] to
support the voluntary return of refugees, in consultation with the High Commissioner of Refugees. Emphasis
added.
239
In this regard see, for instance: UNSC, The situation in the Great Lakes region, 22 December 2008, statement
No. S/PRST/2008/48, p. 2: The Council calls upon these states to ensure that all actions are carried out in
accordance with [] refugee law and to take appropriate measures to protect civilians.
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law and individual responsibility for perpetrators, and appeal for funds by the international
community for humanitarian activities.240
As we have mentioned above, UNSC resolutions do not always achieve results that
coincide with the interests of refugees. One of the most tragic examples was the situation of
Burundi and Rwandan refugees in the DRC in August 1995. The authorities in Kinshasa
decided on forced expulsions in response to the UNSC resolution on the lifting of the arms
embargo against Rwanda,241 invoking article 3 2) of the 1967 DTA to support their action.
Article 3 2) of the 1967 DTA affirms that for overriding reasons of national security or in
order to safeguard the population, an individual can be subjected to expulsion or compulsory
return to his/her country.242
This is illustrative of how the situation on the field often contradicts the UNSC notion
that the protection of the Sub-Saharan African refugee should represent the supreme interest
to preserve, as national governments often try to make their interest prevail even if it conflicts
with the interest of the refugees in the region.

1.6 UNGA Resolutions and their importance for implementation of refugee protection in the
region

Although the legal effect of UNGA resolutions has been a matter of a controversial
debate, it seems that scholars have reached an agreement that these resolutions may constitute
evidence of customary international law in some instances. They may help to crystallize
emerging customary international law or contribute to the formation of a new custom. UNGA
resolutions, however, do not create new rules of international law per se. UNGA resolutions
can at most be used as evidence of customary international law or a general principle of
law.243 In this sense, they may be considered as an auxiliary source of international law.244

240
Kourula, P., op. cit. note 18, pp. 219-220.
241
UNSC, Lifting of restrictions imposed by paragraph 13 of resolution No. 918 (1994) on the sale or supply of
arms and material to the Government of Rwanda, 16 August 1995, resolution No. 1011, S/RES/1011. Its
paragraph 7 in effect reads: [The UNSC] decides that, with immediate effect and until 1 September 1996, the
restrictions imposed by paragraph 13 of resolution 918 (1994) shall not apply with regard to the sale or supply of
arms and related material to the Government of Rwanda through named points of entry on a list to be supplied
by that Government to the Secretary-General, who shall promptly notify all Member States of the United Nations
of the list.
242
UNGA, Declaration on territorial asylum, 14 December 1967, resolution No. 2312 (XXII). As to the legal
nature of the 1967 DTA, it is, in view of its character as a resolution of the UNGA, not as such legally binding.
For an analysis of the 1967 DTA, see: Weis, P., The United Nations Declaration on Territorial Asylum, op. cit.
note 37, pp. 92-149. See also: supra, Chapter 1.1.
243
Hailbronner, K; Klein, E.; Article 10, in: Simma, B. (edited by), The Charter of the United Nations: A
Commentary, 2nd edition, Oxford/New York: Oxford University Press, 2002, vol. I, p. 269.
244
Economids, C., Les actes institutionnels internationaux et les sources du droit international, in: Annuaire
Franais de Droit International, vol. 34, 1988, pp. 140-141 where the author explained: [Les rsolutions de
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Finally, the significance of the UNGA resolutions is emphasized by ICJ judgments,


which attribute specific legal effects to them.245 An example of this can be seen in the
decision adopted in the 1986 Nicaragua case in which the ICJ referred to UNGA resolution
No. 2625, adopted without a vote, to distinguish between different types of force and to
confirm the principle of non-intervention.246
The importance of the UNGA resolutions for the initiation and the implementation of
the measures on refugee protection dates back to 1946 when, in its resolution No. 8 (I), which
was endorsed by Ethiopia, Liberia and Union of South Africa (present South Africa) the
only three states from Sub-Saharan Africa members of the UN at that time-247 the UNGA
recognized:

[t]hat the problem of refugees and displaced persons of all categories is one of
immediate urgency and [there is] the necessity of clearly distinguishing between genuine
refugees and displaced persons, on the one hand, and the war criminals, quislings and traitors
[on the other].248

Once established the UNHCR in a previous resolution,249 it was in 1957 that the UNGA
first authorized UNHCR to assist refugees who did not fully come within the statutory
definition of the category, but whose situation was of concern to the international
community.250 Unfortunately, in the days prior to machine voting, entered into force from

lAssemble Gnrale] produisent mme souvent des effets juridiques, soit, comme nous allons le voir, en tant
que sources auxiliaires du droit international, soit en tant qulments de formations de rgles coutumires .
245
In this regard, M. Lauterpacht contended: [N]ot all the resolutions of the General Assembly [] are in the
form of recommendations. [] They are often, in form and substance, directives addressed to the organs of the
United Nations. [] As such, they are endowed with legal validity and effect. And further in ibid.: These
considerations, as well as actual practice, prevent me from basing my conclusion on the proposition that the
decisions of the General Assembly have no binding effect at all. See: Lauterpacht, M., separate opinion in:
Voting procedure on questions relating to reposts and petitions concerning the territory of South-West Africa,
advisory opinion of June 7th, 1955, in: Reports of judgments, advisory opinions and orders, Leyden: A.W.
Sijthoffs Publishing Company, 1955, pp. 118, 122.
246
In this regard, the ICJ affirmed: The existence in the opinio juris of states of the principle of non-
intervention is backed by established and substantial practice. It has moreover been presented as a corollary of
the principle of the sovereign equality of states. A particular instance of this is General Assembly resolution No.
2625 (XXV) []. See: ICJ, Case concerning military and paramilitary activities in and against Nicaragua
(Nicaragua v. United States of America), judgment of June 27th, 1986, in: ICJ Reports, 1986, paragraph 202, p.
106. See also: UNGA, Declaration on principles of international law concerning friendly relations and
cooperation among states in accordance with the charter of the United Nations, 24 October 1970, resolution No.
2625 (XXV).
247
Information available at:
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/NL4/603/04/PDF/NL460304.pdf?OpenElement, accessed 25
September 2012.
248
UNGA, Question of refugees, 12 February 1946, resolution No. 8 (I), preamble.
249
UNGA, Statute of the Office of the United Nations High Commissioner for Refugees, 14 December 1950,
resolution No. 428 (V), Annex.
250
UNGA, Chinese refugees in Honk Kong, 26 November 1957, resolution No. 1167 (XII).
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1982 (37th session) onwards, if a recorded vote was not requested by a member state, there
would not be a list of how each state voted in the meeting record.251
In 1959, in anticipation of World Refugee Year,252 the UNGA called for special
attention to be given to refugees that fell under the competence of UNHCR. At the same time,
it authorized the High Commissioner to use his good offices in the transmission of
contributions used towards the assistance of refugees that [d]o not come within the
competence of the United Nations.253
UNGA resolutions are rarely consistent in their language, and their rationale is often
hidden as well. The nature of UNHCR activities, however, suggests that the class of refugees
assisted were either clearly not within the 1950 UNHCR Statute. At the same time, the
situations in question shared certain factors: the people in need had crossed an international
frontier because of conflicts, or radical political, social, or economic changes in their
countries of origin.254
In the very first resolution exclusively dealing with African refugees, the UNGA
declared the protection of Angolan refugees as the most important objective to pursue,
without giving any further detail about the specific competences of the UNHCR.255 This
resolution, strongly supported by the African countries (twenty-one countries joined the
original three Sub-Saharan African states in the UN), represented a cornerstone of the refugee
protection in Sub-Saharan Africa, because dealt with the refugees from a territory Angola-
that would become independent only fourteen years later (in 1975, joining the UN in 1976).
At the time of the resolution, Angolans were fighting for the independence of their nation.
Protection, with assistance, has been historically one of the main features, which have
characterized the presence of African refugees in UNGA resolutions.256 The size and scope of
the refugee problem in Sub-Saharan Africa in the 1960s made individual assessment of
refugee status impractical, as did the absence of appropriate mechanisms. In addition, the
pragmatic approach to these new problems was unquestionably influenced by factors such as

251
Email received by the Legal Service of the UN Library in Geneva on the 12 th of November 2012, on file with
author.
252
The 1960 was proclaimed World Refugee Year contemporarily with what is known as the Year of Africa
because it was in 1960 that 17 Sub-Saharan African countries became independent. Was this just a coincidence?
253
UNGA, Report of the High Commissioner of Refugees, 20 November 1959, resolution No. 1388 (XIV).
254
Goodwin-Gill, G.; McAdam J., op. cit. note 57, p. 25.
255
UNGA, Problem raised by the situation of the Angolan refugees in the Congo, 10 December 1961, resolution
No. 1671 (XVI): [The General Assembly] Recommends that the United Nations in the Congo, in close liaison
with the United Nations High Commissioner for Refugees and the organizations mentioned above, should
continue to provide emergency assistance for as long as is necessary and enable the refugees to become self-
supporting as soon as possible.
256
UNGA, Assistance to Sudanese refugees returning from abroad, 12 December 1972, resolution No. 2958
(XXVII); Assistance to refugees in South Africa, 8 December 1977, resolution No. A/RES/32/70; Assistance to
South African student refugees, 16 December 1977, resolution No. A/RES/32/119; Assistance to South African
student refugees, 20 December 1978, resolution No. A/RES/33/164.
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the desire to avoid the imputation, which accompanies each determination as to whether or
not a well-founded fear of persecution exists.257 Another factor was the feeling that while
political conditions had compelled the flight of the entire group in question, it might not be
possible to establish a well-founded fear on an individual case-by-case basis. The group
approach, by concentrating on the fact that those concerned are without the protection of their
own government, thus avoids the restrictions of the legal definition.258
One of the cornerstones of the legal protection of refugees in Sub-Saharan Africa is
undoubtedly resolution No. 34/61 of 1979, adopted without a vote.259 It was adopted after the
general conference on the African Refugee Problem, held in Arusha, Tanzania. This
resolution fully endorsed the recommendations adopted by the conference,260 stressing the
need for the international community to consider the means and ways sustainable funding
could be safeguarded for the implementation of UNHCRs long-term programs. In addition,
the same resolution appealed for the UNSG and specialized agencies to assist UNHCR with
the diffusion of the widest possible volume and scope of information on the plight of the
African refugees.261

257
Goodwin-Gill, G.; McAdam J., op. cit. note 57, p. 26.
258
I.C. Jackson contended that the principal groups of refugees in Africa were dealt with, either under the
Statute/Convention definition, or based on a good offices approach relying upon prima facie group
determination. See: Jackson, I.C., The Refugee Concept in Group Situations, The Hague/London/Boston:
Martinus Nijhoff Publishers, 1999, p. 176.
259
UNGA, Situation of African refugees, 29 November 1979, resolution No. A/RES/34/61.
260
The conference adopted 18 recommendations with three reservations coming from Guinea, Somalia and
Tanzania: The delegation of the Revolutionary Peoples Republic of Guinea made a reservation in respect to
paragraph 4 a) of Recommendation 7. The Delegation of Guinea was of the opinion that the use of the concept of
human rights on the international political scene is incompatible with the rights of peoples and furthermore, used
a weapon of perturbing the process of a harmonious historic evolution of independent African states. The
delegation of Somalia made a reservation to the application of paragraph 7 of the Recommendation 6 to
exceptional situations where homogeneous people of the same national character are arbitrarily divided by
artificial colonial frontiers. The delegation of the United Republic of Tanzania made reservation in respect of
Recommendation 6 on treatment of refugees; rights and obligations of refugees and states of asylum to the effect
that in order to indicate that it was a responsibility of all states in Africa to accept burden sharing as an
obligation, it should include the following paragraph: Recommends that various studies be made on a regional
basis with a view to determining the particular burdens facing countries of first asylum in Africa and the extent
to which such burdens could be shared within the framework of African solidarity, and in accordance with
paragraph 8 of the Preamble to, and article II, paragraph 4 of the OAU Refugee Convention. The Delegation
of the United Republic of Tanzania also made a reservation in respect of paragraph 8, second sentence of
Recommendation 6 considering that once it was established that a dissident from a liberation movement was
excluded from refugee status under article I, paragraph 5 c) of the OAU Refugee Convention, and further action
that might be taken in regard to him was not a matter to be dealt with in the context of a resolution dealing with
refugees. See: Recommendations from the Pan-African Conference on the Situation of Refugees in Africa,
Arusha (Tanzania), 17 May 1979, html document, available at:
http://www.unhcr.org/refworld/docid/3ae6b37214.htm, accessed 10 August 2012.
261
UNGA, The resolution on an International Conference on Assistance to Refugees in Africa, 25 November
1980, resolution No. A/RES/35/42 followed this line as well as the resolution on the International Conference on
Assistance to Refugees in Africa, 14 December 1981, resolution No. A/RES/36/124 where the UNGA, at
paragraph 7, invited [g]overnmental bodies of specialized agencies, intergovernmental and nongovernmental
organizations to consider, within their sphere of competence, various ways and means to increase substantially
assistance to African refugees and returnees.
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As we have mentioned above, the issue of the assistance has been one of the recurrent
themes in UNGA resolutions, as it was also expressed in the aftermath of the ICARA I, held
in 1981. At this conference, adopted without a vote, the UNGA expressed its concern that the
assistance provided to refugees up to that point in time could not guarantee adequate care and
relief for them.262 On the other hand, during the following conference held in 1984 (ICARA
II), the UNGA considered the continuing need for assistance, with a view to providing
additional aid,263 which never seems sufficient to meet the refugees needs. Eventually,
neither ICARA I nor ICARA II led to significant new sources of development assistance for
Africa, nor could they improve access to resources necessary for the self-sufficiency of
refugees or local integration, in spite of many good words pronounced by several
governments that would indicate otherwise, such as Lesotho.264
The situation in Rwanda was also of major concern for the UNGA, which focused on
the specificities of this situation in several cases. In this regard, resolutions No. 49/23 and
49/24 were adopted without both a vote- with the clear intent of favoring the return of the
Rwandan refugees abroad,265 while at the same time inviting other states, as well as
intergovernmental organizations and NGOs [t]o facilitate the reintegration of refugees.266
However, on the other side, while praising the effort of neighboring countries for assisting
refugees from Rwanda,267 the UNGA urged the same, above-mentioned actors to assist the
African states whose resources were too scarce to guarantee Rwandan refugees a minimum
standard of well-being.268

262
UNGA, International conference of assistance to refugees in Africa, 18 December 1982, resolution No.
A/RES/37/197, paragraph 3.
263
Ibid., paragraph 5 b).
264
Betts, A., Protection by Persuasion: International Cooperation in the Refugee Regime, Ithaca NY-/London:
Cornell University Press, 2009, pp. 55 and 59, where it is quoted Lesothan opinion: The Lesotho Government
Policy [...] is to integrate them [the refugees] into the community as soon as possible. Integration in this case
means that the relief for the people should not be handled separately from the national development objectives;
therefore the Government has considered the creation of conditions where self-development is possible.
265
UNGA, Emergency international assistance for a solution to the problem of refugees, the restoration of total
peace, reconstruction and socio-economic development in war-stricken Rwanda, 2 December 1994, resolution
No. A/RES/49/23, paragraph 1: [The UNGA] encourages the Government of Rwanda to pursue its efforts with
a view to creating conditions which would be conducive to the return of the refugees to their country and their
resettlement and to the recovery by displaced persons of their property in peace, security and dignity.
266
Ibid., paragraph 4.
267
UNGA, Special assistance to countries receiving refugees from Rwanda, 2 December 1994, resolution No.
A/RES/49/24, paragraph 2: [The UNGA] commends the Governments of Burundi, Uganda, the United
Republic of Tanzania and Zaire for the sacrifices which they have made and for their continuing commitment to
do their utmost to assist the refugees from Rwanda, notwithstanding the constraints which their limited resources
place upon them.
268
Ibid., paragraph 3: [The UNGA] urges all States and intergovernmental and non-governmental
organizations, and calls upon the international financial and development institutions, to provide all financial,
technical and material assistance possible with a view to facilitating the restoration of the basic services
destroyed in the countries receiving refugees from Rwanda.
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Positive trends of the asylum-seeker and refugee situation in Sub-Saharan Africa were
also widely reflected in the 1995 resolution No. 50/149, adopted without a vote. In detail, the
resolution noted the voluntary return of millions of refugees, thanks to the operations in this
sense undertaken by UNHCR.269 However, since the beginning of the 21st century,
coordination within the humanitarian sector became a significant argument given the
challenges of the Great Lakes regions as well as of Somalia that overburdened the aptitude of
any individual organization to respond adequately to those crises. 270 Not forgetting to
condemn all the threats to the security and well-being of refugees, above all in Africa- like it
happened in 2005, where the UNGA, through the umpteenth resolution concerning refugees
in Africa adopted without a vote- called for a major respect of the principles of refugee
protection.271
In addition, the resolution on Africa of 2005, 2006 and 2007 included, among other
issues, also stronger references on the importance of documentation. 272 In addition: the idea
that promoting the self-reliance of refugees from the beginning will contribute towards
enhancing the ability of refugee communities to become self-sufficient,273 plus references to

269
UNHCR, Assistance to refugees, returnees and displaced persons in Africa, 21 December 1995, resolution
No. A/RES/50/149, paragraph 16: [The UNGA] notes with satisfaction the voluntary return of millions of
refugees to their homelands following the successful repatriation and reintegration operations carried out by the
Office of the United Nations High Commissioner for Refugees, with the cooperation and collaboration of many
countries hosting refugees, and looks forward to other programs to assist the voluntary repatriation of all
refugees in Africa.
270
McBride, M., op. cit. note 52, p. 31.
271
UNGA, Office of the United Nations High Commissioner for Refugees, 20 December 2004, No.
A/RES/59/170, paragraph 14: [The UNGA] condemns all acts that pose a threat to the personal security and
well-being of refugees and asylum-seekers, such as refoulement, unlawful expulsion and physical attacks,
deplores, in particular, the armed attacks that took place in the Gatumba transit centre in Burundi in August
2004, calls upon all States of refuge, in cooperation with international organizations, where appropriate, to take
all necessary measures to ensure respect for the principles of refugee protection, including the humane treatment
of asylum-seekers, notes with interest that the High Commissioner has continued to take steps to encourage the
development of measures to better ensure the civilian and humanitarian character of asylum, and encourages the
High Commissioner to continue those efforts in consultation with States and other relevant actors.
272
See, for instance: UNGA, Assistance to refugees, returnees and displaced persons in Africa, 13 December
2005, resolution No. A/RES/60/128, paragraph 9: [The UNGA] reiterates in this context the central role which
early and effective registration and documentation can play, guided by protection considerations, in enhancing
protection and supporting efforts to find durable solutions, and calls upon the Office of the High Commissioner,
as appropriate, to help States to conduct this procedure should they be unable to register refugees on their
territory. In this regard, see also: UNGA, Assistance to refugees, returnees and displaced persons in Africa, 19
December 2006, resolution No. A/RES/61/139, paragraph 10.
273
See, for instance: UNGA, Assistance to refugees, returnees and displaced persons in Africa, 13 December
2005, resolution No. A/RES/60/128, paragraph 21: [The UNGA] calls upon the international donor community
to provide financial and material assistance that allows for the implementation of community-based development
programs that benefit both refugees and host communities, as appropriate, in agreement with host countries and
consistent with humanitarian objectives, and recognizes that promoting the self-reliance of refugees from the
outset will contribute towards enhancing the ability of refugee communities to become self-reliant, as and when
appropriate, with adequate support from the international community for the host country and the refugees living
there.
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practical problems afflicting refugees, such as the risk of catching AIDS, malaria and other
diseases.274
The specific problem of unaccompanied refugee minors, which we will analyze later in
this work,275 has also been taken into consideration by the UNGA in its recent resolutions,
having, not by chance, Sudan as a main sponsor,276 as we will analyze in the African national
legislation on refugees.277 In this case, the resolution No. 58/150 which was adopted without a
vote, stressed the need to provide resources for programs of [i]dentification, registration,
documentation and tracing of unaccompanied minors and their reunification with their
families,278 and [p]revent their exploitation, including their use as soldiers or human shields
in armed conflict and their forced recruitment into military forces.279
Finally, another set of resolutions relevant to the work of UNHCR dealing with the
African situation was initiated in 2000. This set started with the UNGA resolution, which was
adopted without a vote, on [s]trengthening of the coordination of emergency humanitarian
assistance of the United Nations.280 These resolutions have been extensively debated and
negotiated, and sometimes limited in scope due to differences over how to address issues such
as the access to victims.281
In sum, we can affirm that while the process of discussing and approving UNGA
resolutions has considerable repercussions on policy both at the UN and UNHCR
headquarters, it does not appear to have a significant impact for UNHCR staff in the field

274
UNGA, Assistance to refugees, returnees and displaced persons in Africa, 18 December 2007, resolution No.
A/RES/ 62/125, preamble: [The UNGA] recognizing also that refugees, internally displaced persons and, in
particular, women and children are at an increased risk of exposure to HIV/AIDS, malaria and other infectious
diseases.
275
Infra, Chapter 2.4.
276
McBride, M., op. cit. note 52, p. 38.
277
Infra, Chapter 2.6.2.
278
UNGA, Assistance to unaccompanied refugee minors, 22 December 2003, resolution No. A/RES/58/150,
paragraph 3.
279
Ibid., paragraph 8. In this regard, see also: UNGA, Assistance to unaccompanied refugee minors, 19
December 2001, resolution No. A/RES/56/136, paragraph 9.
280
See, for instance: UNGA, Strengthening of the coordination of emergency humanitarian assistance of the
United Nations, 15 December 2011, resolution No. A/RES/66/119, paragraph 33: [The UNGA] calls upon all
States and parties in complex humanitarian emergencies, in particular in armed conflict and in post-conflict
situations, in countries in which humanitarian personnel are operating, in conformity with the relevant provisions
of international law and national laws, to cooperate fully with the United Nations and other humanitarian
agencies and organizations and to ensure the safe and unhindered access of humanitarian personnel, as well as
delivery of supplies and equipment, in order to allow such personnel to efficiently perform their task of assisting
affected civilian populations, including refugees and internally displaced persons. In this regard, see also:
UNGA, Strengthening of the coordination of emergency humanitarian assistance of the United Nations, 15
December 2010, resolution No. A/RES/66/119, paragraph 27; UNGA, Strengthening of the coordination of
emergency humanitarian assistance of the United Nations, 7 December 2009, resolution No. A/RES/64/76,
paragraph 26; UNGA, Strengthening of the coordination of emergency humanitarian assistance of the United
Nations, 11 December 2008, resolution No. A/RES/63/139, paragraph 25; UNGA, Strengthening of the
coordination of emergency humanitarian assistance of the United Nations, 17 December 2007, resolution No.
A/RES/62/94, paragraph 24.
281
McBride, M., op. cit. note 52, p. 39.
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dealing with day-to-day problems. A typical example of this in Sub-Saharan Africa is evident
from the fact it is often very difficult for UNHCR staff to obtain [f]rom governments
information concerning the number and conditions of refugees in their territories and the laws
and regulations concerning them. This is in contravention of one of the missions included
within the UNHCR mandate, provided for in its 1950 Statute.282
The resolutions, however, may be useful to help create the political will and support
indispensable for people in the field to be able to accomplish their missions, and to support
and facilitate governments involvement in burden sharing or capacity building.283

282
UNHCR, 1950 Statute, article 8 f).
283
McBride, M., op. cit. note 52, p. 40.
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Chapter II
Main regional and national instruments applicable to Sub-Saharan African states

2.1 Main features of the 1969 OAU Convention

The 1969 OAU Convention284 was adopted by African states at a point in history when
the continent was gripped by liberation struggles, following the independence of many
African states in the late 1950s and 1960s.285 This convention has been described as the only
regional instrument dealing with the refugee problem in a comprehensive manner.286
Although our analysis in this section may seem short in comparison with the attention
given to the other universal and regional instruments previously examined, we will stress the
importance of the 1969 OAU Convention throughout the remainder of this work. It will be
studied in detail, according to the particular aspects deemed relevant as we approach the
topics further on in the text.
Initially, the 1969 African Convention was conceived as an individual instrument, given
the temporal and geographical limitations of the initial version of the 1951 Geneva
Convention. However, with the introduction of the 1967 New York Protocol and the removal
of the timeline, it seemed possible to apply the 1951 Geneva Convention on African states.287
Nonetheless, there were concerns that the 1951 Refugee Convention did not adequately
address two key features of the refugee panorama in Sub-Saharan Africa: apartheid, and the
struggle against colonialism. To this were added the relations between Sub-Saharan African
states, including the control of subversive activities.288 The connection between refugee

284
OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. Concluded at Addis Ababa
on 10 September 1969, United Nations Treaty Series, vol. 1001, No. 14691, p. 45. In this work we keep
generally adopting the traditional denomination of OAU Convention although currently some scholars prefer
to adopt the denomination of AU Convention, due to the constitution of the African Union (AU) as a successor
of the Organization of African Unity (OAU). For a drafting history of the 1969 OAU Convention see, for
instance: Weis, P., The Convention of the Organization of the African Unity Governing the Specific Aspects of
Refugee Problems in Africa, in: Revue des Droits de lhomme, vol. 3, 1970, pp. 449-454.
285
In 1960 fourteen nations in West and Equatorial Africa gained their independence from France: Mauritania,
Mali, Senegal, Gabon, Republic of Congo, Central African Republic, Chad, Cte dIvoire, Burkina Faso, Niger,
Benin, Madagascar, Togo, and the Cameroon. Somalia and Nigeria were also granted independence in 1960
from the United Kingdom and the Belgian Congo (Democratic Republic of Congo) became independent from
Belgium during the same year.
286
Jaeger, G., Status and international protection of refugees, in: Institut international des droits de lhomme,
Rsum des cours, Strasbourg, 1978, p. 11.
287
Mandal, R., Protection mechanism outside of the 1951 Convention (complementary protection), in:
UNHCR, Legal and protection policy research series, 2005, p. 12.
288
Jackson, I.C., The Refugee Concept in Group Situations, op. cit. note 258, p. 191.
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outflow and the struggle against oppression made the refugee regime in Sub-Saharan unique
compared to what, for instance, happened in Europe.289 As Nylund and Hydman noted:

In Africa, the need for a more inclusive definition was noted from the inception of the
1951 Convention [] Its definition lacked any provision for protection and assistance to
people fleeing armed conflicts and/or people becoming refugees as a result of internal
disturbance during the processes of decolonization, democratization and the creation of new
states. The definition of a refugee in Africa was augmented to include those conditions for
protection and assistance in the [OAU Convention].290

It is important to observe that at the time of adoption of the regional convention, twenty
African states had already acceded to the 1951 Geneva Convention,291 which was and remains
the primary international legal instrument for the protection of refugees. Many Sub-Saharan
African states acceded to it at independence by virtue of the law of the treaties principle of
state succession. This situation occurred because most of these states were colonies at the
time of its entry into force and the colonial powers, who had become parties to the 1951
Geneva Convention, were responsible for the treaty affairs of their colonies.
In spite of the elaborate provisos of the 1951 Geneva Convention, the independent
African states, which had constituted the OAU in 1963, felt that refugee issues in Africa
required greater attention at the regional level. In 1964, in a resolution marking the starting
point of the search for an African solution to refugee problems, the Second Ordinary
Commission of the OAU Council of Ministers (OAU Council) established a commission on
the problem of refugees in Africa.292
The Council recommended to the OAU that the African Group at the UN submit a
resolution to the 19th session of the UNGA, making an appeal to UNHCR to augment the
assistance to African refugees, and inviting the OUA commission to draft a convention

289
Mukirya-Nyanduga, B.T., Refugee protection under the 1969 OAU Convention Governing Specific Aspects
of Refugee Problems in Africa, in: German Yearbook of International Law, vol. 47, 2004, p. 86.
290
Hyndman, J.; Nylund, B.V., UNHCR and the status of prima facie refugees in Kenya, in: International
Journal of Refugee Law, vol. 10, 1998, pp. 34-35.
291
At the time of the adoption of the OAU Convention, on 10 September 1969, the 1951 Geneva Convention had
been already adopted by the following states: Benin (1962), Botswana (1969), Burundi (1963), Cameroon
(1961), Central African Republic (1962), Congo (1962), Cote dIvoire (1961), Democratic Republic of Congo
(1965), Gabon (1964), Gambia (1966), Ghana (1963), Guinea (1965), Kenya (1966), Liberia (1964), Madagascar
(1967), Niger (1961), Nigeria (1967), Senegal (1963), Tanzania (1964) and Togo (1962).
292
OUA, Council of Ministers, Problem of refugees in Africa, resolution No. CM/Res. 19 (II), 24-29 February
1964: [The Council of Ministers] resolves that a commission consisting of Rwanda, Burundi, Congo
(Leopoldville), Uganda, Tanganyika, Sudan, Senegal, Nigeria, Ghana and Cameroon be appointed to examine: a)
the refugee problem in Africa and made recommendations to the Council of Ministers on how it can be solved;
b) ways and means of maintaining refugees in their country of asylum.
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covering all facets of issues relevant for African refugees. As a result, the Council of
Ministers of the countries adhering to the OAU considered the text of the draft convention
during its fifth ordinary session.293
Through such work, the OAU took into consideration the composite and humanitarian
nature of African refugee issues and expressed the wish that the African instrument address
specific aspects of the African refugee question, making it a valuable complement294 to the
1951 Geneva Convention. The Council also called upon states that had not adhered to the
1951 Refugee Convention to, at minimum, apply its humanitarian principles, principles that
would become the hinge of the 1969 OAU Convention.295
In the preamble of this instrument, the OAU recognized that the refugee problem had
caused considerable friction between member states and considered it imperative to adopt a
humanitarian approach towards solving the refugee problem and eliminating the causes of
friction between states.296
The organization made a distinction between the peaceful and the subversive refugee,
reflecting the concerns of both the countries of origin and host states. It is significant that
subversion was considered one of the most important problems relating to the refugee
problem in Sub-Saharan Africa and became one of the most significant consequences of
hosting refugees. Attendant legal provisions were adopted to deal with this feature within the
convention.297
Without seeking to create a parallel refugee protection system, the OAU recognized the
pre-eminent role played by the 1951 Convention as modified by the 1967 New York Protocol
affirming that it:

[c]onstitutes the basic and universal instrument relating to the status of refugees and
reflects the deep concern of States for refugees and their desire to establish common standards
for their treatment.298

293
Ibid., paragraph 4: [The Council of Minister meeting] recommends that the African Group at the United
Nations, with the help of the Asian and other interested groups, submit during the 19 th Session of the General
Assembly a resolution requesting an increase in the assistance given to African refugees by the United Nations
High Commissioner for Refugees; paragraphs 6: invites the Commission to draw up a Draft Convention
covering all aspects of the problem of refugees in Africa; paragraph 8: decides further that the final text of the
Draft Convention be submitted to the Council of Ministers at its Fourth Ordinary Session for its consideration.
294
Emphasis added.
295
OAU, Council of Ministers, resolution on the adoption of a draft convention on the status of refugees in
Africa, resolution No. CM/Res. 88 (III), 31 October-4 November 1966.
296
Paragraph 3 of the preamble of the 1969 OAU Convention reads: [We, Heads of State] aware, however, that
refugee problems are a source of friction among many Member States, and desirous of eliminating the source of
such discord.
297
Article 3 of the 1969 OAU Convention explicitly deals with this aspect.
298
Paragraph 9 of the preamble of the 1969 OAU Convention.
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The 1969 OAU Convention also urged state parties to accede to these instruments,
reiterating the appeal several times since its creation. 299 In adopting the 1969 African
Convention, the OAU was aware that the enforcement of the provisos contained in this
convention necessitated a:

[c]lose and continuous collaboration between the OAU and the Office of the United
Nations High Commissioner for Refugees.300

It was imperative that the 1969 OAU Convention stress the different principles arising
from the lessons learnt from history and developments relating to refugee problems in Africa.
Article I of the convention gives the definition of a refugee stipulating an African-specific
definition. The africanization of the definition was undoubtedly very appropriate in the light
of an organization opposed to colonialism and dedicated to the total liberation of the
continent. It addressed the immediate concerns of people fleeing from the colonial territories,
such as the Portuguese colonies Guinea Bissau became independent in 1973 while Angola,
Cape Verde, Mozambique and Sao Tom and Principe in 1975-301 and from the racist regimes
in Southern Africa. Article I3 makes stipulation on the multiple nationality issue, while the
following paragraphs 4, 5 and 6 expound on conditions under which a refugee cannot enjoy
protection from the convention. These paragraphs are very similar to the concepts as well as
in their wording expressed in article 1C, D and F of the 1951 Geneva Convention. Article I6
expressly mentions the role of the host state in determining refugee status.
A number of provisions of the 1969 African Convention are founded on universal
principles of international refugee law, such as the principle of non-discrimination,302
issuance of travel documents303 and cooperation between the states parties at the OAU and the

299
For instance, even before the adoption of the regional instrument the OAU called upon state to do so: OAU,
Council of Ministers, resolution on the problem of refugees in Africa, resolution No. CM/Res. 104 (IX), 4-10
September 1967, paragraph 1: [The Council of Ministers] recommends that [] Member States which have not
yet done so should again be asked to accede to the United Nations 1951 Convention and to the Protocol on the
Status of Refugees of January 1967, and to apply them to refugees in Africa.
300
Paragraph 12 of the preamble of the 1969 OAU Convention.
301
To these populations we need to add others belonging to countries that achieved the independence after that
date, such as Djibouti in 1977, Zimbabwe in 1980, Namibia in 1990, Eritrea in 1993 and South Sudan in 2011.
302
Article IV of the 1969 OAU Convention reads: Member states undertake to apply the provisions of this
Convention to all refugees without discrimination as to race, religion, nationality, membership of a particular
social group or political opinions. The formulation of this article is similar to article 3 of the 1951 Geneva
Convention.
303
The formulation of article VI of the 1969 OAU Convention is similar to article 28 (Travel documents) of
the 1951 Geneva Convention which reads as follows: 1) The Contracting States shall issue to refugees lawfully
staying in their territory travel documents for the purpose of travel outside their territory, unless compelling
reasons of national security or public order otherwise require, and the provisions of the Schedule to this
Convention shall apply with respect to such documents. The Contracting States may issue such a travel
document to any other refugee in their territory; they shall in particular give sympathetic consideration to the
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UN. International cooperation constitutes a keystone in the framework of the realization of the
refugee protection objectives in Sub-Saharan Africa and article VIII, paragraph 1 explicitly
requires member states to cooperate with UNHCR.
In addition, the 1969 OAU Convention also introduces new principles to international
refugee law and protection. The fact that it constitutes a complement to the 1951 Geneva
Convention, established in article VIII, was a novelty in itself.304
Its role of complement was also reaffirmed a quarter of century later when:

As a regional complement of the 1951 United Nations Convention Relating to the


Status of Refugees and its 1967 Protocol, the 1969 OAU Convention has been a strong pillar
for refugee protection and solutions in Africa. It has enabled the provision of asylum to
refugees and the implementation of voluntary repatriation in a way that has consolidated
brotherhood and comity among African States. It has also inspired the development of
favorable refugee laws, policies and practices in Africa. [] The Convention remains the
only international legal instrument, which contains elaborate principles on the voluntary
repatriation of refugees.305

In the same year, the importance of the 1969 African Convention was reaffirmed again
during the annual meeting of the Heads of States and Governments of the OAU held in Tunis
that June.306
Novel provisions within the convention include the principle of voluntary repatriation,
under article V complementing the principle of asylum; as well as the provisos on prohibition

issue of such a travel document to refugees in their territory who are unable to obtain a travel document from the
country of their lawful residence. 2) Travel documents issued to refugees under previous international
agreements by parties thereto shall be recognized and treated by the Contracting States in the same way as if they
had been issued pursuant to this article. In this regard, as O.C. Eze noted: Contracting states have discretion to
issue travel documents to other refuges in their territory, and it is recommended that they should in particular
issue such documents to refugees in their territory who are unable to obtain them from the country of their lawful
residence. It is submitted, however, that apart from a refusal to issue a travel document on compelling grounds of
national security or public order, a state commits a breach of the Convention if it refuses to issue a travel
document to a refugee lawfully in its territory. There is some evidence that some African countries have not
followed the injunction of this provision. Emphasis added. See: Eze, O.C., The Convention Governing the
Specific Aspects of Refugee Problems in Africa, in: Yusuf, A.A.; Ouguergouz, F. (edited by), The African
Union: Legal and Institutional Framework: A Manual on the Pan-African Organization, Leiden/Boston:
Martinus Nijhoff Publishers, 2012, pp. 513-514.
304
Article VIII2 of the 1969 OAU Convention reads: The present Convention shall be the effective regional
complement in Africa of the 1951 United Nations Convention on the Status of Refugees.
305
OAU/UNHCR, Refugees and forced population displacement in Africa, 8-10 September 1994, document
adopted in occasion of the symposium held in Addis Ababa by OAU/UNHCR, paragraph 11.
306
OAU, Assembly of the Heads of State and Government, Tunis Declaration on the 1969 Convention
governing the specific aspects of refugee problem, 13-15 June 1994, document No. AHG/Decl.6 (XXX). At
paragraph 4 we read: The Convention has ensured the very survival of the institution of asylum itself and its
humanitarian character where the character of refugee flows has sometimes threatened the very fabric of
brotherhood ad peaceful coexistence between states.
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of subversion and on the location of refugees at reasonable distance from borders; a situation
that, however, does not always occur on the continent.307 In addition, as we have mentioned
above, the 1969 OAU Convention stressed the principles of non-discrimination and non-
refoulement, dating from the 1951 Geneva Convention, while the principle of asylum adopted
was the one embodied in the 1967 DTA.308
In spite of the novelties in the legal protection of refugees, the 1969 African Convention
lacks a self-sustaining institutional framework for its implementation analogous to the
UNHCR. In effect, according to article 8 1) of the 1969 OAU Convention, the states parties
have the possibility to co-operate with UNHCR within the framework of the application and
implementation of this instrument. The formulation of the article shall co-operate ,
however, does not seem to us to be a real obligation placed upon the African governments,
but rather an option. Moreover, in effect, practice seems to confirm this interpretation,
considering that national authorities have dealt with refugee issues voluntarily without the
help of UNHCR on different occasions.309
The political organs of the current AU, namely the AU Assembly and its subsidiary
organs, oversee the implementation of the regional convention at the regional level. The AU
Executive Council,310 the Commission of the AU, and the Commission on Refugees and
Humanitarian Affairs,311 currently composed of permanent representatives of member states
accredited to the AU, are all part of these organs.312

307
In several countries, it is problematic to follow this norm simply because of the dimensions of it. We think,
for instance, of Gambia, where Senegalese refugees where settled in camps not far from the border. In this
regard, see: US Committee for Refugees World Refugee Survey 1999: Gambia, html document, available at:
http://www.unhcr.org/cgi-
bin/texis/vtx/refworld/rwmain?page=search&docid=3ae6a8c214&skip=0&query=camps gambia,
accessed 22 September 2012.
308
Article 11 of the 1967 Declaration on Territorial Asylum reads: Asylum granted by a State, in the exercise of
its sovereignty, to persons entitled to invoke article 14 of the Universal Declaration of Human Rights, including
persons struggling against colonialism, shall be respected by all other States.
309
For instance, in summer 2010 Sudan expelled UN and Red Cross workers from West Darfur for mistakes
beyond their mandate. In this regard, see the news: Sudan expels UN and aid personnel, 16 August 2010,
html document, available at: http://english.aljazeera.net/news/africa/2010/08/2010816131132953930.html,
accessed 1 September 2012.
310
Former Council of ministers under the 1963 OAU Charter.
311
The Commission on refugees and humanitarian affairs was previously denominated as Commission of ten
(then fifteen, then twenty).
312
Constitutive Act of the African Union. Lom, 11 July 2000, United Nations Treaty Series, vol. 2158, No.
3733, p. 328. Article 6 of the Act deals with the Assembly of Heads of states and governments, article 10 deals
with the Executive Council of Foreign Ministers. Article 20 is dedicated to the Commission of the OAU while
the Commission on refugees was created pursuant to a resolution under article 14 2) of the Act that reads: The
Assembly shall, whenever it deems appropriate, restructure the existing Committees or establish other
Committees.As an author noted about the Constitutive Act: The adoption of the Constitutive Act []
represented the first occasion on which the OAU member states have adopted a treaty intended to supersede the
OAU Charter, adopted on 25 May 1963, and replace the OAU itself with a new successor organization, the
African Union. See: Maluwa, T., Reimagining African Union: some preliminary reflections on the
Constitutive Act of the African Union, in: African Yearbook of International Law, vol. 9, 2001, p. 4.
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Over the last decades, the enormous sacrifices made by African states in hosting refugee
populations on the continent as the result of different conflicts were an affirmation of the
fundamental principles of the political realities and the humanitarian burden-sharing
conception that inspired the 1969 OAU Convention.313
This instrument entered into force on 20 June 1974, according to article 11.314 As of
July 2012, the number of Sub-Saharan countries members of the AU that signed and ratified
the 1969 African Convention is huge; until now, the only countries to have signed the
convention without ratifying it are Djibouti, Madagascar, Mauritius, Somalia315 and Namibia,
the latter signing the convention on November 11, 2009. In contrast, there are only two
countries, which still have neither ratified nor signed the convention: the archipelago of Sao
Tom and Principe and Eritrea. This latter country has gained its independence in 1993 but
since then, finding it hard to establish some form of democracy within its borders: such a
domestic situation has hindered the states ratification of other international legal instruments,
as well.316 Considering it does not constitute an exception on the continent to contradict
provisions contained in legal instruments previously ratified, it is not surprising to read what

313
Mukirya-Nyanduga, B.T., op. cit. note 289, p. 96.
314
Article 11 of the 1969 African Convention reads: This Convention shall come into force upon deposit of
instruments of ratification by one third of the Member States of the Organization of African Unity. Algeria was
the country whose signature allowed the convention to enter into force.
315
If for the other, above mentioned countries the doors to ratification are not closed, for the present Somalia, the
situation is different. In 2007, about the rule of law in Somalia, AI observed: There was no rule of law or justice
system consistent with international standards in the central and southern regions of Somalia. Islamic (Shari a)
courts, which became the basis of the administrative and judicial system in most of the south from mid-2006, did
not allow the right to legal defense counsel or meet internationally recognized standards of fair trial. The COSIC
(Council of Somali Islamic Courts) imposed increasingly harsh interpretations of Shari a law regarding morality
offences and dress code, including banning musical entertainment. Offenders were arbitrarily flogged and
humiliated by militias. See: AI, International Report, De Havilland Way, Witney -UK-: The Alden Press, 2007,
pp. 234-235.
316
For instance Eritrea is not part of these following African conventions: Protocol to the African Charter on
Human and Peoples Rights on the establishment of an African court on human and peoples rights. Concluded
on 10 June 1998, Text: OAU/LEG/MIN/AFCHPR/PROT. 1, rev. 2 (1997); Protocol to the African Charter on
Human and Peoples Rights on the rights of women in Africa. Adopted by the Second Ordinary Session of the
Assembly of the Union. Concluded in Maputo on 11 July 2003. Text: CAB/LEG/66.6 /Sept. 13, 2000. Eritrea is
a single-party state, run by the Peoples Front for Democracy and Justice (PFDJ). Other political groups are
allowed to organize, although the non-implemented Constitution of 1997 provided for the existence of multi-
party politics. The National Assembly of 150 seats (of which 75 were occupied by handpicked EPLF guerrilla
members while the rest went to local candidates and diasporans more or less sympathetic of the regime), formed
in 1993 shortly after independence, elected the current president, Isaias Afewerki. No time frame was
announced for the alleged obscure presidency. National elections have been periodically scheduled and
cancelled; none have ever been held in the country. To have a quick look at the situation of human rights in
Eritrea, see: Anonymous, Human rights in the Horn of Africa, in: Indiana International and Comparative Law
Review, vol. 11, 2000-2001. In detail, pp. 552-553 of the article are about the situation of human rights in
Eritrea. The 2007 International Report by AI claimed about the rule of law in Eritrea: The few functioning
courts failed to protect the constitutional rights not to be tortured or arbitrarily detained. Special Courts handed
down prison sentences in secret summary trials for corruption and political offences where the accused had no
right to legal defense representation or appeal. Secret administrative security committees reportedly imposed
prison sentences without any semblance of trial. Military courts were not functioning. Military conscripts
accused of a military offence such as desertion, attempted desertion or being absent without permission were
arbitrarily imprisoned or punished with torture, or possibly executed in the most serious cases, on the order of
their military commander. See: AI, International Report, op. cit. note 315, p. 113.
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the African legislators, jointly with UNHCR, affirmed at the 1994 Symposium. African states
were recommended to:

[c]ourageously resist temptations to whittle down, through national policies, laws or


practices, obligations and standards contained in the [1969 African Refugee] Convention.317

The non-application of the provisions ratified is even more surprising if we think that,
since independence, African leaders have been seeking ways to set apart or to make evolve
common African law, strengthening bonds by sharing a common attitude towards life in
general and legal problems in particular.318 Since independence, there have always been
constant tendencies from Sub-Saharan African countries to elaborate new rules of
international law themselves, what an author emphasized as un droit international fait par les
Africains pour les Africains.319

2.2 The right of asylum under the 1981 African Charter on Human and Peoples Rights and
a focus on the refugee engagement with the African Commission on Human and Peoples
Rights

2.2.1 The right of asylum under the 1981 African Charter on Human and Peoples Rights

The 1981 Banjul Charter is the result of negotiations started in Lagos, Nigeria in 1961,
where a conference of 200 eminent jurists, representing twenty-three African countries,
convened to discuss the implementation of human rights in Africa, which culminated in the
adoption of a paper containing recommendations and conclusions entitled: The Law of
Lagos.320
The 1981 Banjul Charter received its requisite ratification at the end of July 1986 and it
took effect on 21 October 1986,321 although several authors have cast doubt upon its real
effectiveness, pointing out that this instrument does not have an adequate basis for action in

317
OAU/UNHCR, Refugees and forced population displacement in Africa, 8-10 September 1994, document
adopted in occasion of the symposium held in Addis Ababa by OAU/UNHCR, recommendation 5, point v).
318
Allott, A.N., The future of African law, in: Kuper, H.; Kuper, L., African Law: Adaptation and
Development, Berkeley/Los Angeles: University of California Press, 1965, p. 219.
319
Gonidec, P.-F., Le droits africains volution et sources-, 2me dition, tome I, Paris : Librairie gnrale de
droit et de jurisprudence, 1976, p. 72.
320
For a drafting history of the 1981 Banjul Charter see, for instance: Ouguergouz, F., The African Charter on
Human and Peoples Rights, The Hague/London/New York: Martinus Nijhoff Publishers, 2003, pp. 19-48.
321
African Charter on Human and Peoples Rights. Concluded at Banjul on 27 June 1981, United Nations Treaty
Series, vol. 1520, No. 26363, p. 217.
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terms of implementing respect for human rights and prevention of violations on the
continent.322
The 1981 Banjul Charter is divided into primarily three parts. The two chapters of Part I
deal with duties and rights: while Chapter I sets the human and peoples rights to be protected
by the 1981 Banjul Charter, Chapter II sets the individuals duties towards his/her society and
his/her family as well as the international community. Part II of the 1981 Banjul Charter,
composed of four chapters, elaborates on measures to safeguard the rights articulated in Part I.
Finally, Part III establishes general provisos regarding the functioning of the ACHPR.323
The charter complements the legal principles regarding the right to asylum and
established the ACHPR,324 an institutional mechanism for the promotion and protection of
human rights generally and refugee rights as well. Article 12 of the 1981 Banjul Charter
accords every individual in a member state the right to freedom of movement and residence
and the right to leave any country and return to it, with possible restrictions by laws for
protection of national security, law and order, public health or morality. In addition, article 12
3) solemnly proclaims the right325 to seek and obtain asylum in other countries, in accordance
with the domestic laws of those countries and international conventions.326 This formulation

322
Welch, C.E. Jr., The OAU and human rights: regional promotion of human rights, in: El-Ayouty, Y. (edited
by), The Organization of African Unity after Thirty Years, Westport CT-/London: Praeger Publishers, 1994,
particularly pp. 54-57.
323
Gittleman, R., The African Charter on Human and Peoples Rights: a legal analysis, in: Virginia Journal of
International Law, vol. 22, 1981-1982, pp. 673-674. On the same topic, we find interesting to note the
classification, that we can define a bit heterodox, made by R. Chongwe: Briefly the basic principles of the
African Charter on Human and Peoples Rights can succinctly be grouped under three headings: a) concerning
the violation of African Civilization; b) concerning the philosophy of the law and human rights; c) concerning
the importance of socio-political factors. See: Chongwe, R., African Charter on human and peoples rights,
in: Commonwealth Law Bulletin, vol. 16, 1987, p. 1606.
324
The ACHPR is regarded as a specialized commission and organ of the AU. The Commission is established
under article 30 of the 1981 Banjul Charter, within the objective of the OAU to promote human rights and ensure
their protection in Africa. Various works describe in detail the composition and tasks of the Commission. For
instance, see: Nmehielle, V.O.O., The African Human Rights System: its Laws, Practice and Institutions, The
Hague/London/New York: Martinus Nijhoff Publishers, 2001, pp. 170-186. Another author explained: 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.
325
Emphasis added.
326
The entire article 12 stipulates: 1) Every individual shall have the right to freedom of movement and
residence within the borders of a State provided he/she abides by the law. 2) Every individual shall have the right
to leave any country including his/her own, and to return to his/her country. This right may only be subject to
restrictions, provided for by law for the protection of national security, law and order, public health or morality.
3) Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in
accordance with laws of those countries and international conventions. 4) A non-national legally admitted in a
territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in
accordance with the law. 5) The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be
that which is aimed at national, racial, ethnic or religious groups. In this regard, see also: article 5 d) i) and ii)
and f) of the 1966 International Convention on the Elimination of All Forms of Racial Discrimination
stipulating: In compliance with the fundamental obligations laid down in article 2 of this Convention, States
Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of
everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in
the enjoyment of the following rights: [] d) Other civil rights, in particular: [] i) The right to freedom of
movement and residence within the border of the State; ii) The right to leave any country, including ones own,
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is quite different from the one of the 1948 UDHR, which limits itself to a right of seeking
and enjoying asylum,327 where the right of enjoying it does not automatically imply a
concrete possibility to obtain it: the achievement of asylum not having risen to the rank of a
right. The right to seek and obtain asylum proclaimed by article 12 of the Banjul Charter is
unique in the African human rights panorama, and it has been considered to have
incorporated into the 1969 OAU Convention prohibiting the return of an individual where
his/her liberty, physical integrity and the same life may be menaced. 328 On the other hand, in
proclaiming asylum as a right, article 12 of the 1981 Banjul Charter accomplishes a huge
step forward compared to the former 1969 OAU Convention, which dedicates its entire article
3 to asylum without ever mentioning it as a right for the individual. Regarding the evolution
of the Banjul conception of right in relation to the OAU Convention, one author, an expert on
African legal issues pointed out that:

The reality of the right of the individual suffering persecution to seek asylum is not
really open to question. [] The right to obtain asylum is a different matter, as in general
international law there is no corresponding obligation on states, which have wide
discretionary power as regards the admission of refugees and this power has not been
questioned by either the Universal Declaration of Human Rights or by the second United
Nations Covenant, which contains no reference to the right of asylum.329

A special feature of the 1981 Banjul Charter is the inclusion of the so-called claw-back
clauses undefined restrictions which are usually considered awkward and ambiguous in
the discussion of some of the rights present in the charter.330 For example, article 12
guarantees freedom of movement if the individual abides by the law. Ankumah has

and to return to one's country [] f) The right of access to any place or service intended for use by the general
public, such as transport hotels, restaurants, cafes, theatres and parks. To date, 1 September 2012, 46 countries
have in Sub-Saharan Africa have ratified this convention with the notable exception of Angola. Sao Tom and
Principe signed it on 6 September 2000 but it has not ratified it yet while the South Sudan is still not party of this
convention. No African state has made any declaration and/or reservation on its article 5. In this regard, M.-T.
Gil-Bazo and M.B.B. Nogueira noted that: To date [December 2012], there is no case-law that examines article
12 3) of the Charter. See: Gil-Bazo, M.-T.; Nogueira, M.B.B., Asylum in the practice of Latin America and
African states, in: UNHCR, New Issues in Refugee Research, research paper No. 249, 2013, p. 12.
327
For an analysis of the 1948 UDHR, see: supra, Chapter 1.1.
328
Amao, O., Civil and political rights in the African Charter, in: Ssenyonjo, M. (edited by), The African
Regional Human Rights System: 30 Years after the African Charter on Human and Peoples Rights,
Leiden/Boston: Martinus Nijhoff Publishers, 2012, p. 46
329
Ouguergouz, F., op. cit. note 320, p. 126.
330
E.G. Bello affirmed that the claw-back clauses essentially confine the Charters protection to rights as they
are defined in national law. Qualifications of rights that make no reference to circumstances that may lead to
their limitation. See: Bello, E.G., The mandate of the African Commission on Humans and Peoples Rights:
article 45 of the Charter, in: African Journal of International Law, vol. 1, 1988, p. 55.
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described these types of provisions as provisions which tend to take away with the left hand
that which has been given with the right hand.331
Personally, we believe that this right to seek and obtain asylum elsewhere introduced
by the 1981 Banjul Charter is to be followed and codified in further international as well as
national legal instruments.
Article 12 of the 1981 Banjul Charter has also been partially applied in the domestic
laws of Africa such as, for example, in the Southern-African countries of Botswana, Malawi
and Mozambique, where the provisos contained in the above-mentioned article- at least the
ones concerning the freedom of movement- have been adopted at the constitutional level.332
In addition, domestic legislation of countries in other areas of the continent is committed to
promoting freedom of movement at the constitutional level, although sometimes only for
citizens. This promotion however is a de facto exclusion of asylum-seekers and refugees
who did not acquire the citizenship of the country where they were admitted to stay. 333
In contrast, none of these countries provides any guarantees of that which is embodied
in paragraph 3 of article 12, on the right to seek and obtain asylum. This should be observed
against the background of the geo-political situation in these regions over the last decades,
where large groups of individuals have migrated across borders to seek asylum, often putting
in danger the economic and/or social stability of the host country.334

331
Ankumah, E.A., The African Commission in Human and Peoples Rights: Practice and Procedure, The
Hague/London/Boston: Martinus Nijhoff Publishers, 1996, p. 176. In this regard, another author affirmed:
However, the African Commission has made it clear that these clauses [claw-back clauses] are to be interpreted
against the primary objectives of the Charter and with due regard to international human rights law. See:
Pityana, N.B., The challenge of culture for human rights in Africa: the African Charter in a comparative
context, in: Evans, M.D.; Murray, R. (edited by), The African Charter on Human and Peoples Rights: The
System in Practice- 1986-2000, Cambridge -UK-: Cambridge University Press, 2002, p. 236.
332
See: section 14 (Protection of freedom of movement) of the Constitution of Botswana (last amended 2002),
30 September 1966 composed by five very long subsections; section 39 of the Constitution of Malawi, 14 May
1994 (Freedom of movement and residence: 1) Every person shall have the right of freedom of movement and
residence within the borders of Malawi. 2) Every person shall have the right to leave the Republic and to return
to it); article 83 of the Constitution of the Republic of Mozambique, 2 November 1990: 1) All citizens shall
have the right to take up residence in any part of the national territory. 2) All citizens shall be free to travel inside
the national territory and abroad, except those legally deprived of this right by the courts.
333
For instance, see: article 41 of the 1999 Nigerian Constitution: Every citizen of Nigeria is entitled to move
freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from
Nigeria or refused entry thereby or exit therefrom. Even article 23 of the 1998 Constitution of the Republic of
Sudan, country which is theatre of a permanent instability in the last decades, dedicates article 23 to the freedom
of movement, in compliance with the standards adopted in the other African countries: Every citizen has the
right to freedom of movement and residence in the country, to leave and return to the country, and these rights
shall not be restricted except in accordance with law.
334
Lindholt, L., Questioning the Universality of Human Rights: the African Charter on Human and Peoples
Rights and the Constitutions of Botswana, Malawi and Mozambique, Aldershot UK-: Dartmouth Publishing
Company Limited, 1997, p. 179.
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Many different NGOs both African and international have used the ACHPR as a
platform for the making refugee rights claims through its communication procedure, and
during its interactive public sessions.335
The presence of article 23, dealing with peace and security on the continent is also
outstanding in the 1981 Banjul Charter.336 This article clearly shows that the only concrete
obligation on the states parties to the charter is the one laid down in paragraph 2 concerning
the prohibition of all subversive activities by refugees against any other state party and any
use of the territory for such purposes. In this section of our work, we prefer to mention only
the presence of this article in the Charter, postponing its analysis to Chapter XI of this
manuscript dedicated to subversive activities. Linked to the concept of peace and security in
the continent, we need also to mention the 2002 AUPSC Protocol adopted pursuant to article
5 2) of the 2000 AU Charter.337 Dealing in article 14 with the concept of peace building at the
end of hostilities, this Protocol clearly affirms that in the circumstance of countries [a]ffected
by violent conflicts one of its tasks will be to resettle and reintegrate refugees in their
country of origin.338 Through this instrument, African governments have contracted away in a
conscious way their sovereignty in order to aspire to a greater security and stability. 339

335
Mukirya-Nyanduga, B.T., op. cit. note 289, p. 103.
336
Article 23 of the 1981 Banjul Charter reads: 1) All peoples shall have the right to national and international
peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the
United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between
States. 2) For the purpose of strengthening peace, solidarity and friendly relations, States parties to the present
Charter shall ensure that: a) any individual enjoying the right of asylum under 12 of the present Charter shall not
engage in subversive activities against his/her country of origin or any other State party to the present Charter; b)
their territories shall not be used as bases for subversive or terrorist activities against the people of any other
State party to the present Charter.
337
Article 5 2) of the 2000 AU Charter reads: 1) The organs of the Union shall be: a) The Assembly of the
Union; b) The Executive Council; c) The Pan-African Parliament; d) The Court of Justice; e) The Commission;
f) The Permanent Representatives Committee; g) The Specialized Technical Committees; h) The Economic,
Social and Cultural Council; i) The Financial Institutions; 2) Other organs that the Assembly may decide to
establish. Emphasis added.
338
Protocol Relating to the Establishment of the Peace and Security Council of the African Union. Adopted by
the 1st Ordinary Session of the Assembly of the African Union, Durban, 9 July 2002, html document, available
at: http://www.africa-union.org/root/au/organs/psc/Protocol_peace%20and%20security.pdf, accessed 25 August
2012, article 14 3) d). According to its article 3, the objectives of this Protocol are: The objectives for which the
Peace and Security Council is established shall be to: a) promote peace, security and stability in Africa, in order
to guarantee the protection and preservation of life and property, the well-being of the African people and their
environment, as well as the creation of conditions conducive to sustainable development; b) anticipate and
prevent conflicts. In circumstances where conflicts have occurred, the Peace and Security Council shall have the
responsibility to undertake peace-making and peace-building functions for the resolution of these conflicts; c)
promote and implement peace-building and post-conflict reconstruction activities to consolidate peace and
prevent the resurgence of violence; d) co-ordinate and harmonize continental efforts in the prevention and
combating of international terrorism in all its aspects; e) develop a common defense policy for the Union, in
accordance with article 4 d) of the Constitutive Act; f) promote and encourage democratic practices, good
governance and the rule of law, protect human rights and fundamental freedoms, respect for the sanctity of
human life and international humanitarian law, as part of efforts for preventing conflicts. And according its
article 22 5) the Protocol [s]hall enter into force upon the deposit of the instruments of ratification by a simple
majority of the Member States of the Union. The Protocol entered into force on the 23 December 2003, thanks
to deposit of the instrument of ratification by Nigeria. To date, 1 September 2012, 42 countries in Sub-Saharan
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The 1981 Banjul Charter, according to its article 63 3)340 entered into force on 21
October 1986.341

2.2.2 The action of the ACHPR in protecting refugees

As we have mentioned above, the ACHPR has sometimes dealt with the rights of
refugees through individual communications, provided for in articles 55 and 56 of the 1981
Banjul Charter.342 In effect, the 1981 African Charter should be interpreted in a way that
protects the rights and freedoms of refugees, and thus should refer to the main refugee
conventions.343 However, the ACHPR engagement with refugee protection has been
considered to have truly started only when it came to collaborate with UNHCR, as it
happened in 1998 with the workshop jointly held in Dakar.344

Africa are part to this Protocol. About the resettlement and reintegration of refugees in Sub-Saharan Africa see,
above all: infra, Chapter 15.
339
Levitt, J.I., The Peace and Security Council of the African Union: the known unknows, in: Transnational
Law & Contemporary Problems, vol. 13, 2003, p. 123. At idem, the author continued: Under the AUPSC
framework, the regional conflict mechanism of regional bodies such as ECOWAS, SADC and IGAD are part of
the overall security architecture of the Union. But, at p. 125 the author also explained that: However, before
the AUPSC can function efficiently, it will need to address several structural faults. The major structural
impediments needing urgent attention concern regional conflicts of law between the UN and the AU on one
hand, and among African regional organizations and the AU on the other. About IGAD: The
Intergovernmental Authority on Development (IGAD) in Eastern Africa was created in 1996 to supersede the
Intergovernmental Authority on Drought and Development (IGADD) which was founded in 1986. The recurring
and severe droughts and other natural disasters between 1974 and 1984 caused widespread famine, ecological
degradation and economic hardship in the Eastern Africa region. Although individual countries made substantial
efforts to cope with the situation and received generous support from the international community, the
magnitude and extent of the problem argued strongly for a regional approach to supplement national efforts.
Information available at: http://igad.int/index.php?option=com_content&view=article&id=93&Itemid=124,
accessed 1 December 2012.
340
Article 63 3) of the 1981 Banjul Charter reads: The present Charter shall come into force three months after
the reception by the Secretary General of the instruments of ratification or adherence of a simple majority of the
member states of the Organization of African Unity.
341
The Charter entered into force after the ratification by Niger on 21 July 1986. As of 1 September 2012, all the
Sub-Saharan countries at the moment part to the AU are also part to the 1981 Banjul Charter.
342
In detail, articles 55 and 56 of the 1981 Banjul Charter read as follows: 55) 1) Before each session, the
Secretary of the Commission shall make a list of the communications other than those of States parties to the
present Charter and transmit them to the members of the Commission, who shall indicate which communications
should be considered by the Commission. 2) A communication shall be considered by the Commission if a
simple majority of its members so decide; 56) Communications relating to human and peoples rights referred
to in 55 received by the Commission, shall be considered if they: 1) Indicate their authors even if the latter
request anonymity, 2) Are compatible with the Charter of the Organization of African Unity or with the present
Charter, 3) Are not written in disparaging or insulting language directed against the State concerned and its
institutions or to the Organization of African Unity, 4) Are not based exclusively on news discriminated through
the mass media, 5) Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is
unduly prolonged, 6) Are submitted within a reasonable period from the time local remedies are exhausted or
from the date the Commission is seized of the matter, and 7) Do not deal with cases which have been settled by
these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the
Organization of African Unity or the provisions of the present Charter.
343
Mujuzi, J.D., The African Commission on Human and Peoples Rights and the promotion and protection of
refugees rights, in: African Human Rights Law Journal, vol. 9, 2009, pp. 174-175.
344
Murray, R., Human Rights in Africa: from the OUA to the African Union, Cambridge UK-: Cambridge
University Press, 2004, p. 194.
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Most important has been the MoU signed by these two institutions on 26 May 2003,
identifying several areas for cooperation. These include information sharing between the two
institutions regarding the human rights of refugees, and promoting public awareness about
refugee law to support the use of the procedures and mechanisms within the ACHPR such
as submission of communications and state reporting procedures to address human rights
violations of refugees.345 Previously, at the 2000 OAU/UNHCR meeting held in Conakry,346
attempts were made by the two institutions to conclude this MoU, as well as to turn the
ACHPR into the supervisory body of the 1969 OAU Convention without success.347
In spite of several efforts, also corroborated by the appointment in 2004 of a Special
Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons in Africa, the
ACHPRs policy towards refugees was deemed incoherent and lacking coordination with
other AU organs.348 This Special Rapporteurs mandate was, among other aspects, to [r]aise
awareness and promote the implementation of the UN Convention on Refugees of 1951 as
well as the 1969 OAU Convention Governing the Specific Aspects of Refugees Problems in
Africa.349
Nevertheless, in his efforts to give an objective vision of the situation on the field, the
Special Rapporteur never missed the occasion to denounce the state of affairs in the Sub-
Saharan African countries, such as in Eastern Congo, where in 2008 he condemned the attack
of a camp hosting 50,000 refugees.350 Another such occasion was when he reminded the
South African authorities about their obligations towards the asylum-seekers.351 At another
point, he also expressed his concern for the violations of the Somalis right to non-
refoulement by Kenyan authorities, who sealed the border between the countries;352 and asked

345
ACHPR, UNHCR, Memorandum of Understanding between the ACHPR and the UNHCR, 26 May 2003,
article II 1), II 2) and II 4).
346
OAU/UNHCR, Conference paper: Special OAU/UNHCR: Report of the meeting held in Conakry, 27-29
March 2000, action 15 ii), in: Refugee Survey Quarterly, vol. 20, 2001, p. 42.
347
Sharpe, M., Engaging with refugee protection? The Organization of African Unity and African Union since
1963, in: UNHCR, New Issues in Refugee Research, research paper No. 226, 2011, p. 34.
348
Murray, R., Refugees and internally displaced persons and human rights: the African system, in: Refugee
Survey Quarterly, vol. 24, 2005, p. 61.
349
ACHPR, Resolution on the mandate of the Special Rapporteur on refugees, asylum seekers and internally
displaced persons in Africa, Resolution No. 72 (XXXVI), 2004, paragraph 1 g).
350
ACHPR, Report of activities by the Special Rapporteur of Refugees, Asylum Seekers, IDPs and Migrants in
Africa for the intersession period May to November 2008, paragraph 9 iv), p. 4.
351
ACHPR, Report of activities for the inter-session period June to November 2006 for Commissioner Bahame
Tom Nyanduga, the Special Rapporteur for Refugees, Asylum Seekers, Migrants and Internally Displaced
Persons in Africa, p. 4.
352
ACHPR, Report of intersession activities by Commissioner Bahame Tom Nyanduga, Special Rapporteur on
Refugees, Asylum Seekers, Migrants and IDPs in Africa to the 41 st session of the African Commission on
Human and Peoples Rights, 16 to 30 May 2007, Accra, Ghana, p. 3.
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the Ghanaian authorities for clarifications about the protests by Liberian refugees in the
country.353
According to article 60 of the 1981 Banjul Charter, the ACHPR has a vast body of law
that can apply both at the international as well as at the regional level, given that it can refer to
the entire range of the human rights law existing.354 According to article 62 of the same 1981
African Charter, the ACHPR is authorized to receive and examine reports [o]n the legislative
or other measures taken with a view to giving effect to the rights and freedoms recognized
and guaranteed by the present Charter. In this light, ACHPR praised efforts by Beninese
authorities to support refugees within its territory,355 while recommending Ethiopia take all
the necessary measures for protection of the minor refugees.356 The ACHPR also advised
Kenyan authorities to review their closed-border policy towards Somalia, as did the Special
Rapporteur.357 Within this framework, the ACHPR cautioned South Africa to respond
appropriately to ensure quick consideration of asylum applications;358 encouraged Sudanese
authorities to better support refugees within its borders, exploring different durable solutions
for those who lived there for long time;359 and encouraged Ugandan authorities to provide
information about the situation of refugees in the country.360

353
ACHPR, Report of activities by Commissioner Bahame Tom Nyanduga, Special Rapporteur for Refugees,
Asylum Seekers, IDPs and Migrants in Africa during the intersession period November 2007 to May 2008, p. 1.
354
In detail, article 60 of the 1981 Banjul Charter reads: The 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 Specialized Agencies of the United Nations of which the parties to the present Charter are
members. Article 61 continues: The Commission shall also take into consideration, as subsidiary measures to
determine the principles of law, other general or special international conventions, laying down rules expressly
recognized by member states of the Organization of African Unity, African practices consistent with
international norms on human and peoples rights, customs generally accepted as law, general principles of law
recognized by African states as well as legal precedents and doctrine.
355
ACHPR, Consideration of reports submitted by states parties under the terms of article 62 of the African
Charter on Human and Peoples Rights. Concluding observations and recommendations on the second periodic
report of the Republic of Benin, 13-27 May 2009, paragraph 23, p. 4.
356
ACHPR, Consideration of reports submitted by states parties under article 62 of the African Charter on
Human and Peoples Rights. Concluding observations and recommendations on the initial, 1 st, 2nd, 3rd, and 4th
periodic report of the Federal Democratic Republic of Ethiopia, 12-26 May 2010, paragraph 69, p. 10.
357
ACHPR, Examen des rapports soumis par les Etats parties en application de larticle 62 de la Charte
Africaine des Droits de lHomme et des Peuples. Observations finales et recommandations relatives au rapport
initial de la Rpublique du Kenya, 16-30 May 2007, paragraph 41, p. 7.
358
ACHPR, Consideration of reports submitted by states parties under the terms of article 62 of the African
Charter on Human and Peoples Rights. Concluding observations and recommendations on the 1 st periodic report
of the Republic of South Africa, 21 November-5 December 2005, paragraph 30, p. 6.
359
ACHPR, Consideration of reports submitted by states parties under the terms of article 62 of the African
Charter on Human and Peoples Rights. Concluding observations and recommendations on the 3 rd periodic
report of the Republic of Sudan (2003-2008), 13-27 May 2009, paragraph 48, p. 7.
360
ACHPR, Concluding observations of the African Commission on the 3 rd periodic report of the Republic of
Uganda, 13-27 May 2009, part V o), p. 7.
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Through the example just given, we clearly see that the ACHPRs activities to promote
and protect the rights of refugees and asylum-seekers on the continent are various but, in
many cases, do not result in veritable action by the states concerned.

2.2.3 Examples of jurisprudence concerning refugees enacted by the ACHPR

The ACHPR has dealt with refugee rights in its jurisprudence under the 1981 Banjul
Charter several times, mainly through recommendations not in themselves legally binding
to states361 issued in response to individual communications. In the 1996 communication
Organisation Mondiale contre la Torture and Others v. Rwanda, the ACHPR observed that
the Burundian refugees on Rwandan soil had been expelled in contravention of several rights
contained in the 1981 Banjul Charter, notably, among others, article 7 (right to have his/her
cause heard)362 and article 12.363
On this purpose, it is not clear why the ACHPR relied exclusively on the 1981 Banjul
Charter in its recommendations, and not, for instance, on the 1969 OAU Convention as well.
Because if it is true that the NGOs which filed the communication referred exclusively to the
1981 Banjul Charter,364 it is also true that, according to article 60 of the same 1981 African
Charter, the ACHPR may draw inspiration from other human rights treaties considering that
Rwanda ratified the 1969 OAU Convention in 1979.

361
In this regard, see: ACHPR, Information sheet No. 3, Communication procedure, no date available, p. 9: The
major problem [of the recommendations] however is that of enforcement. There is no mechanism that can
compel States to abide by these recommendations. Much remains on the good will of the States.
362
In full, article 7 of the 1981 Banjul Charter reads: 1) Every individual shall have the right to have his cause
heard. This comprises: a) the right to an appeal to competent national organs against acts of violating his
fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; b) the
right to be presumed innocent until proved guilty by a competent court or tribunal; c) the right to defense,
including the right to be defended by counsel of his choice; d) the right to be tried within a reasonable time by an
impartial court or tribunal. 2) No one may be condemned for an act or omission which did not constitute a
legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no
provision was made at the time it was committed. Punishment is personal and can be imposed only on the
offender.
363
According to the ACHPR, Rwandan government violated also other articles of the 1981 Banjul Charter:
articles 4, 5 and 6. See: ACHPR, Organisation Mondiale Contre La Torture and Association Internationale des
Juristes Dmocrates, Commission Internationale des Juristes (C.I.J.), Union Interafricaine des Droits de
lHomme/Rwanda, communication No. 27/89, 46/91, 49/91, 99/93. In detail, the Commission argued that: By
expelling these refugees from Rwanda, without giving them the opportunity to be heard by the national judicial
authorities, the government of Rwanda has violated article 7 1) of the Charter. About article 12 3): This
provision should be read as including a general protection of all those who are subject to persecution, that they
may seek refuge in another state. Article 12 4) prohibits the arbitrary expulsion of such persons from the country
of asylum. The Burundian refugees in this situation were expelled in violation of articles 2 and 12 of the African
Charter. And about article 12 5): There is ample evidence in this communication that groups of Burundian
refugees have been expelled on the basis of their nationality. This constitutes a clear violation of Article 12 5).
364
Mujuzi, J.D., The African Commission on Human and Peoples Rights and the promotion and protection of
refugees rights, op. cit. note 343, p. 175.
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Another communication regarding refugees was the 1997 communication Mouvement


des Rfugis Mauritaniens au Sngal v. Sngal,365 which, however, should be mentioned
because it was considered inadmissible by the ACHPR for two reasons. The basis for this
verdict was as follows: firstly, because the local remedies were not exhausted,366 and
secondly, because [t]he complainant does not mention the provisions of the Charter which
the Senegalese State may have violated.367 In addition, in this case, however, and for an
apparently inexplicable reason, the ACHPR, using of article 60 of the 1981 Banjul
Convention, could have enlarged its investigation in order to check if Senegal had violated
several provisions of the 1969 OAU Convention, this country having ratified the 1969 African
Convention in 1971.368 On another occasion in 1999, however, the ACHPR faced a situation
in which a refugee, although he did not exhaust local remedies, could not go back to his
country of origin for reason of persecution. In this case, the ACHPR declared the
communication inadmissible on the basis of the principle of constructive exhaustion of local
remedies.369 The same practicability has been ascertained in the 2002 communication
African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in
Guinea) v. Republic of Guinea because:

Given the mass scale of crimes committed against Sierra Leonean refugees [] the
domestic courts would be severely overburdened if even a slight majority of victims chose to
pursue legal redress in Guinea. Consequently, the requirement to exhaust domestic remedies

365
ACHPR, Mouvement des Rfugis Mauritaniens au Sngal v. Sngal, communication No. 162/97, 11
November 1997.
366
Ibid., paragraph 20: The Commission recalls that under the terms of the provisions of article 56 paragraph 5,
communications shall be considered by the Commission if they are sent after exhausting local remedies, if any,
unless it is obvious that this procedure is unduly prolonged. At paragraph 21 the ACHPR explains: In this
case, it should be noted that the complainant avoids saying that it has not used the remedies supposed to be
available to it under the legal system of the defendant State. Further, it simply presents facts which, prima facie,
do not show that the Senegalese State may be responsible.
367
Ibid., paragraph 22 of the communication. But, more in detail: Understanding the rights and freedoms
guaranteed in the Charter is particularly important for the submission of a communication because for any
communication to be considered by the Commission, it must in one way or another demonstrate that the State
has violated one or some of the rights in the charter. The complainant need not mention the specific article of the
Charter alleged to have been violated, but the facts of the communication should be such that the Commission
can deduce therefrom the violations alleged. See: ACHPR, Information sheet No. 2, Guidelines on the
submission of communications, no date available, p. 5. It is evident that, in this case, the ACHPR could not
deduce the violations alleged.
368
In effect, as J.D. Mujuzi explained: [T]he 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 mobilize resources and engage lawyers to exhaust domestic remedies in a host
country that is alleged to violate their rights. See: Mujuzi, J.D., The African Commission on Human and
Peoples Rights and the promotion and protection of refugees rights, op. cit. note 343, p. 177.
369
ACHPR, John D. Ouko v. Kenya, communication No. 232/99, 2000, paragraph 19: Relying on its case law
the Commission finds that the complainant is unable to pursue any domestic remedy following his flight to the
DRC for fear of his life, and his subsequent recognition as a refugee by the Office of the United Nations High
Commissioner for Refugees [].
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is impractical. [] Finally, exhausting local remedies would require Sierra Leonean victims
to return to Guinea, the country in which they suffered persecution, a situation that is both
impractical and unadvisable.370

In this further communication, the breach of article 12 5) of the 1981 Banjul Charter
concerning the expulsion of foreign nationals was also ascertained. This breach was the same
that the ACHPR found in the 2004 communication Institute for Human Rights and
Development in Africa v. Republic of Angola, where the commission emphasized that any
expulsions must comply with the human rights obligations found in the 1981 Banjul
Charter.371 In this latter communication, the ACHPR found that article 12 5) had been
violated in spite of the fact that the victims had not been discriminated against because of
their Gambian nationality, but because they were part of a broader group of non-nationals
from Central and West African countries.372
The ACHPR continued affirming that individuals should not have been expelled to
countries where they are at risk of suffering torture, inhuman or degrading treatment or even
death.373 This mention represented the ACHPRs first acknowledgement of the extension of
the prohibition of expulsion in the event of a risk of torture.374
However, in this communication the ACHPR only required that the government of
Angola report to the Commission [a]t a later stage measures it has taken to implement the
recommendations made in this communication.375 Evidently, it would have been more useful
if the ACHPR had followed the position adopted in its resolution No. 97 of 2006, where clear

370
ACHPR, African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in
Guinea) v. Republic of Guinea, communication No. 249/2002, 2004, paragraphs 34-35.
371
ACHPR, Institute for Human Rights and Development in Africa v. Republic of Angola, communication No.
292/2004, 2008, paragraph 69. For an analysis of this communication see, also: Bekker, G., Mass-expulsion of
foreign nationals: a special violation of human rights-communication No. 292/2004 Institute for Human Rights
and Development in Africa v. Republic of Angola, in: African Human Rights Law Journal, vol. 9, 2009, pp.
262-273.
372
ACHPR, Institute for Human Rights and Development in Africa v. Republic of Angola, communication No.
292/2004, 2008, paragraph 69: As shown above, the position of the African Commission regarding mass
expulsions is clear. And as the complainant avers, simply because the victims were a part of a larger group of
non-nationals, not just Gambians, but also other West and Central Africans, does not negate discrimination on
the part of the Respondent State, and that the fact that [s]o many aliens received the same treatment is
tantamount to an admission of a violation of Article 12 5). The same situation can be found in: ACHPR,
Rencontre Africaine pour la Defence des Droits de lHomme v. Zambia, communication No. 71/92, 1997,
paragraph 22 where the ACHPR highlights that article 2 of the 1981 Banjul Charter imposes an obligation: [t]o
secure the rights protected in the Charter to all persons within their jurisdiction, nationals or non-nationals.
373
ACHPR, Institute for Human Rights and Development in Africa v. Republic of Angola, communication No.
292/2004, 2008, paragraph 84.
374
Bekker, G., Mass-expulsion of foreign nationals: a special violation of human rights-Communication
292/2004 Institute for Human Rights and Development in Africa v. Republic of Angola, op. cit. note 371, p.
270.
375
ACHPR, Institute for Human Rights and Development in Africa v. Republic of Angola, communication No.
292/2004, 2008, paragraph 87.
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deadlines for states violating rights under the 1981 Banjul Charter were traced to indicate
remedies to address these violations.376 The recommendation in response to this
communication therefore represented not only a regression for the ACHPR but, also its lack
of a mechanism to monitor the fulfillment of its recommendations, meaning that although
theoretically the ACHPRs response favored good treatment of refugees in Angola, in
practice, the strength of these proposals seemed to merely remain on paper.377

2.3 The instruments provided by the OAU/AU framework for the protection of asylum-
seekers and refugees

2.3.1 A presentation of the instruments in question

The legal work of the OAU is sometimes difficult to interpret. The OAU has formulated
and adopted texts whose validity is often challenged, given the questionable nature of the
legal validity of standards derived from the resolutions and recommendations of international
organizations. In addition, the codification and gradual development of international law is
mentioned neither in the 1963 OAU Charter nor in the Constitutive Act of the AU, which
replaced the former document in 2000.378
Still, many texts of legal nature adopted by the OAU/AU constitute a set of rules and
principles created by states seeking an order that corresponds to the realities of the African
continent. Several authors, as we have mentioned above, have described this as African
international law,379 and they are universal rules affecting the entire body of contemporary
international law.
A study of international legal norms formulated and adopted by the OAU/AU shows,
among other aspects, the promotion of human rights at various stages, with the protection of
refugees being evidently included. If the 1963 Charter of the OAU dealt with the issue of

376
ACHPR, Resolution on the importance of the implementation of the recommendations of the ACHPR by
states parties, resolution No. 97 (XXXX), 2006, paragraph 4: [The ACHPR] requests all State Parties to the
African Charter on Human and Peoples Rights to indicate the measures taken and/or the obstacles in
implementing the recommendations of the African Commission within a maximum period of ninety (90) days
starting from the date of notification of the recommendations.
377
Bekker, G., Mass-expulsion of foreign nationals: a special violation of human rights-Communication
292/2004 Institute for Human Rights and Development in Africa v. Republic of Angola, op. cit. note 371, p.
273.
378
In converse, article 13 1) a) of the 1945 UN Charter expressly reads: The General Assembly shall initiate
studies and make recommendations for the purpose of: a) promoting international cooperation in the political
field and encouraging the progressive development of international law and its codification. Emphasis added.
379
Bipoum-Woum, J.M., Le Droit international africain : problmes gnraux, rglement des conflits, Paris:
Librairie gnrale de droit et de jurisprudence, 1970, p. 6 where the author affirmed: [i]l faut entendre par droit
international africain lensemble des normes rgissant les rapports entre les Etats africains en qute de solutions
concertes leurs problmes . In this regard, see also: Gonidec, P.-F., op. cit. note 319.
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human rights, although not with an overt approach,380 the 2000 AU Charter openly called for
their protection,381 although neither of the two instruments explicitly takes into consideration
the category of refugees.
Refugees are, however, specifically taken into consideration by the OAU/AU in
resolutions throughout the entire history of its meetings. In 1963, during the very first meeting
of the Assembly of Heads of States and Governments of the OAU,382 the issue of refugees
was referenced, although without substantive significance. It was not a subject in itself, but
was related to the then timely issue of apartheid in South Africa, country that at present hosts
one of the largest communities of asylum-seekers and refugees in the world:383

The Summit Conference of Independent African States meeting in Addis Ababa,


Ethiopia, from 22 to 25 May 1963, [have decided on the following measures]: a) To grant
scholarships, educational facilities and possibilities of employment in African government
services to refugees from South Africa.384

380
Article 2 1) e) of the 1963 OAU Charter reads: e) [The Organization shall have the following purposes]: to
promote international cooperation, having due regard to the Charter of the United Nations and the Universal
Declaration of Human Rights.
381
Article 3 h) of the Act reads: [The objectives of the Union shall be to]: promote and protect human and
peoples rights in accordance with the African Charter on Human and Peoples Rights and other relevant human
rights instruments. In addition, article 4 m) stipulates: [The Union shall function in accordance with the
following principles]: respect for democratic principles, human rights, the rule of law and good governance.
382
According to article VII of the 1963 OAU Charter, the Assembly of the Heads of State and Government was
one of the four institutions created by the Organization. Article VIII of the Charter determined the tasks of the
Assembly. It reads: The Assembly of Heads of State and Government shall be the supreme organ of the
Organization. It shall, subject to the provisions of this Charter, discuss matters of common concern to Africa
with a view to coordinating and harmonizing the general policy of the Organization. It may in addition review
the structure, functions and acts of all the organs and any specialized agencies which may be created in
accordance with the present Charter.
383
UNHCR/IOM, A long and winding road: background paper for a regional conference on refugee protection
and international migration, Dar Es Salaam, September 2010, p. 14: [South Africa ] has more than 300,000
asylum cases pending, half of them from Zimbabweans. It also has a population of some 48,000 registered
refugees. As also N. Kriger has recently noted: A small but rapidly growing proportion of Zimbabweans seek
asylum [in South Africa]. [] Electoral violence following the March 2008 elections produced a significant
surge in the numbers of Zimbabwean asylum seekers. [] Yet only a small number of Zimbabweans have won
refugee status. Of the 66,578 Zimbabwean asylum applicants between 2000 and April 2008, 710 were granted
refugee status, some 4,000 were rejected, and over 62,000 cases are still pending. See: Kriger, N., The politics
of legal status for Zimbabweans in South Africa, in: McGregor, J.; Primorac, R. (edited by), Zimbabwes New
Diaspora: Displacement and the Cultural Politics of Survival, New York/Oxford: Berghahn Books, 2010, pp.
83-84.
384
Assembly of Heads of State and government, resolutions adopted by the first conference of independent
African Heads of State and government, Agenda Item II: Apartheid and racial discrimination, resolution No.
CIAS/Plen.2/Rev.2, 22- 25 May 1963. And the Council of Ministers, 24 years later considered this subject
always as topical: [The Council] expresses solidarity with the Member States of the OAU bordering racist
South Africa and further expresses Africas appreciation for the sacrifices these States continue to make in order
to provide sanctuary and security to refugees fleeing from the banditry activities of the South African regime and
its actions. See: Council of Ministers, resolution on the situation of refugees in Africa, resolution No. CM/Res.
1084 (XLV), 23-28 February 1987, paragraph 4.
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On the contrary, the session of the Council of Ministers385 addressed the question of
refugees in 1964, instituting a special commission that assessed the situation of refugees in
Africa, made recommendations to the Council, and examined the means by which refugees
could remain in their country of asylum. It is not fully understandable why the resolution,
inspired by the condition of Rwandan refugees in bordering countries, appointed the same
country to the commission in charge of making recommendations. The Rwandan participation
in the commission likely served to balance the attendance of its adjacent countries Burundi,
Congo (Leopoldville), Uganda, Tanganyika386 for whom the presence of the Rwandan
refugees in their territory represented a real burden.387
Over the years, both the AU Assembly and the AU Council have dealt with the always-
urgent matter of refugees in their own resolutions on several occasions. However, the
resolutions adopted by the Assembly are not binding for states. In effect, article 7 of the 2000
AU Charter remains silent on the binding nature of the resolutions of the Assembly, 388 the
article limiting itself to pointing out that the Assembly gives impulse to Council action in
matters of management of emergency situations.389 Nevertheless, rule 33 1) c) of Rules of

385
The Council of Ministers has been instituted by article VII of the 1963 OAU Charter and it is worth noting, as
article XII, paragraph 1 pointed out that the ministers in question can be: Foreign Ministers or other Ministers
as are designated by the Governments of Member States while article XIII defined its tasks: 1) The Council of
Ministers shall be responsible to the Assembly of Heads of State and Government. It shall be entrusted with the
responsibility of preparing conferences of the Assembly. 2) It shall take cognizance of any matter referred to it
by the Assembly. It shall be entrusted with the implementation of the decision of the Assembly of Heads of State
and Government. It shall coordinate inter-African cooperation in accordance with the instructions of the
Assembly conformity with Article II 2) of the present Charter.
386
Tanganyika is the name of an East African territory (and, from December 9, 1961 to April 26, 1964, an
independent nation) lying between the largest of the African great lakes: Lake Victoria, Lake Malawi and Lake
Tanganyika, after which it was named. Once part of the colony of German East Africa, it comprises the mainland
part of todays Tanzania. Although Tanganyika still exists within Tanzania, the name is no longer used formally
for the territory and its use can be politically sensitive, not only as throwback to colonial times, but also if it
implies opposition to the union with Zanzibar. For an analysis about the former state of Tanganyika, see, for
instance: Leys C., Tanganyika: the realities of independence, in: International Journal, vol. 17, 1961-1962, pp.
251-268.
387
Council of Ministers, Problem of refugees in Africa, resolution No. CM/Res. 19 (II), 24-29 February 1964.
388
Article 7 of the 2000 Constitutive Act of the AU reads: 1) The Assembly shall take its decisions by
consensus or, failing which, by a two-thirds majority of the Member States of the Union. However, procedural
matters, including the question of whether a matter is one of procedure or not, shall be decided by a simple
majority. 2) Two-thirds of the total membership of the Union shall form a quorum at any meeting of the
Assembly.
389
Article 9 b), e) and g) of the 2000 Constitutive Act of the AU reads: [The functions of the Assembly shall be
to]: b) receive, consider and take decisions on reports and recommendations from the other organs of the Union
[]; e) monitor the implementation of policies and decisions of the Union as well ensure compliance by all
Member States, []; g) give directives to the Executive Council on the management of conflicts, war and other
emergency situations and the restoration of peace. Article 13 1) j) and 13 2) reads: 1) The Executive Council
shall coordinate and take decisions on policies in areas of common interest to the Member States, including the
following: []; j) nationality, residency and immigration matters [refugees are not explicitly mentioned]; 2)
The Executive Council shall be responsible to the Assembly. It shall consider issues referred to it and monitor
the implementation of policies formulated by the Assembly. Emphasis added.
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Procedure of the Assembly clearly affirms the non-binding force of its resolutions.390 In
addition, the doctrine tends to affirm that:

In general, resolutions or recommendations [] are not binding on member states;


rather they are formal texts formulating the conclusions of debates and are intended to guide
and harmonize the viewpoints of the member states. They [indicate] their limited competence.
However, resolutions are very persuasive evidence of international law. When resolutions are
concerned with general norms of international law, acceptance by a majority vote constitutes
evidence of the opinions of governments in the widest forum for the expression of such
opinions.391

The acts of the AU Executive Council seem no different. In effect:

Unlike the Council of Ministers of the OAU, it appears that decisions of the AU
Council will be binding in their entirety on those to whom they are addressed; this will,
presumably, include the member state, a firm or an individual.392

However, if rule 34 1) a) of the Rules of Procedure of the Council goes along the same
lines, it does so exclusively for the regulations. However, many of the acts adopted by the
Council on refugee issues are resolutions or declarations and these instruments do not
have any binding force on states, as rule 34 1) c) clearly affirms.393

390
Rule 33 of the Rules of Procedure of the Assembly, html document, available at: http://www.africa-
union.org/rule_prot/rules_Assembly.pdf, accessed 5 August 2012. It reads: Categorization of Decisions: 1) The
Decisions of the Assembly shall be issued in the following forms: a) Regulations: these are applicable in all
Member States which shall take all necessary measures to implement them; b) Directives: these are addressed to
any or all Member States, to undertakings or to individuals. They bind Member States to the objectives to be
achieved while leaving national authorities with power to determine the form and the means to be used for their
implementation; c) Recommendations, Declarations, Resolutions, Opinions etc: These are not binding and are
intended to guide and harmonize the viewpoints of Member States. 2) The non-implementation of Regulations
and Directives shall attract appropriate sanctions in accordance with Article 23 of the Constitutive Act.
Emphasis added.
391
Udombana, N.J., The institutional structure of the African Union: a legal analysis, in: California Western
International Law Journal, vol. 33, 2002-2003, p. 93. Emphasis added. At idem, the author continued: In some
cases, resolutions may have direct legal effects, both as authoritative interpretations and as applications of the
principles of the treaty and the speedy consolidation of customary rules.
392
Ibid., p. 96.
393
Rule 34 of the Rules of Procedure of the Council, html document, available at: http://www.africa-
union.org/rule_prot/exec-council.pdf, accessed 5 July 2012. It reads: Categorization of Decisions: 1) The
Decisions of the Executive Council shall be issued in the following forms: a) Regulations: these are binding and
applicable in all Member States; and national laws shall, where appropriate, be aligned accordingly; b)
Directives: these are addressed to any or all Member States, to undertakings or to individuals. They bind
Member States to the objectives to be achieved while leaving national authorities with power to determine the
form and the means to be used for their implementation; c) Recommendations, Declarations, Resolutions,
Opinions etc: These are not binding and are intended to guide and harmonize the view points of Member States;
2) The non-implementation of Regulations and Directives shall, after approval by the Assembly, attract
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2.3.2 The predominant role of the Council over the Assembly in dealing with asylum and
refugee issues in Sub-Saharan Africa

In 1965, the AU Assembly was influential in the drafting of the 1969 African
Convention394 and started to promote the first refugee repatriations.395 During the remainder
of the 1960s and 1970s, the Assembly considered refugee protection only once, in the context
of the conflict between Somalia and Ethiopia, and encouraged to assist refugees of both
countries.396
The Assemblys activities became more important in the 1980s, in combination with the
two Geneva International Conferences on Assistance to Refugees in Africa ICARA I in
1981 and ICARA II in 1984. On these occasions, the Assembly requested the international
community, the UN, voluntary organizations, and the Secretary of the OAU to collaborate by
contributing their studies, reports, technical preparation, and assistance to African
governments.397
These latter resolutions represent the typical example of what is defined as
organizational in the UN system.398 This perfectly fits the coordinating and harmonizing
role that the 1963 OAU Charter or, to some degree, the 2000 AU Charter assigned to the
Assembly of Heads of States and Governments.399
The twenty-fifth birthday of the 1969 African Convention in 1994 marked an important
stage in the OAUs activity on the protection of the institution of asylum. That year, in the
Tunis Declaration adopted by the assembly, the latter urged countries that had not yet done so

appropriate sanctions in accordance with Article 23 of the Constitutive Act. And rule 35 2) confirms:
Regulations and Directives shall be binding on Member States, Organs of the Union as well as Regional
Economic Communities. Emphasis added.
394
Assembly of Heads of State and government, The problem of refugees in Africa, resolution No. AHG/Res. 26
(II), 21-25 October 1965, paragraph 6: [The Assembly] asks members of the Refugee Commission established
by resolution CM/Res. 19 (II) to provide legal experts at the highest level possible to re-examine the draft OAU
Convention on the status of refugees having regard to the views expressed by the Assembly at its present session
and to report back to the Assembly.
395
Assembly of Heads of State and government, Declaration on the problem of subversion, resolution No.
AHG/Res. 27 (II), 21-25 October 1965, paragraph 7: [The Assembly undertakes] endeavors to promote,
through bilateral and multilateral consultations, the return of refugees to their counties of origin with the consent
of both the refugees concerned and their governments.
396
Assembly of Heads of State and government, resolution on the Somalia/Ethiopia conflict, resolution No.
AHG/Res. 90 (XV), 18-22 July 1978.
397
Assembly of Heads of State and government, Second International Conference on Assistance to Refugees in
Africa (ICARA II), resolution No. AHG/Res. 114 (XIX), 6-12 June 1983.
398
Conforti, B., The Law and the Practice of the United Nations, 2nd revised edition, The Hague/London/Boston:
Kluwer Law International, 2000, pp. 283-284.
399
Article VIII of the AU Charter. The 2000 AU Constitutive Act assigns at the Assembly some other tasks
related the question of refugees and, among them, at article 9 1) we have: a) determine the common policies of
the Union and e) monitor the implementation of policies and decisions of the Union as well ensure compliance
by all Member States. The function of coordination has now been attributed to the Executive Council.
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to ratify the 1969 OAU Convention,400 to promulgate appropriate national refugee legislation,
to promote durable solutions, and to express the determination to eradicate the root causes of
refugee flow on the African continent.401
It is worth noting that the Assembly has implemented only one decision related to the
situation of refugees on the continent since the OAU has been transformed into the AU, that
is, at the dawn of the twenty-first century. In addition, as we have seen, no previous decision
or resolution adopted by the OAU Assembly has been operational in any way,402 in
accordance with its competencies, which specifically exclude taking any concrete initiative
on the field to alleviate the plight of refugees in Africa.
On the contrary, the Council of Ministers, denominated as AU Executive Council that
entered into force by means of the 2000 AU Charter, has been more prolific in its adoption of
non-binding resolutions and recommendations on refugee issues.403
In the 1960s, the Council focused mainly on a preliminary analysis of the situations of
refugees on the continent the first analysis undertaken by these new countries 404 and on
the project of drafting a regional convention that would be achieved in 1969,405 not to mention
its several recommendations406 and appeals.407

400
At that time, 43 countries had ratified the 1969 African Convention.
401
Assembly of the Heads of State and Government, Tunis Declaration on the 1969 Convention governing the
specific aspects of refugee problem, document No. AHG/Decl. 6 (XXX), 13-15 June 1994. About the durable
solutions, see also: Assembly of Heads of State and government, Decision on the fiftieth anniversary of the
adoption of the 1951 Convention on the status of refugees, resolution No. AHG/Dec. 6 (XXXVII), 9-11 July
2001, paragraph 6: [The Heads of State and government] commit ourselves to finding durable solutions to
refugee problems most importantly by facilitating voluntary repatriation, while endeavoring to create conducive
conditions to that effect, and concomitantly to taking preventive measures, to peacefully resolve conflicts, to
avoid forced displacement of populations.
402
According to the doctrine, operational resolutions should provide a direct action of the organ. For a definition
of operational resolutions, see, for instance: Conforti, B., op. cit. note 398, pp. 284-285: Operational
resolutions are the resolutions providing for UN action. When we speak of UN action, we mean action directly
carried out by the Organization, for example by the Security Council of by the General Assembly, or by the
Secretary-General as entrusted by these two organs under articl 98, or by a subsidiary organ created by them.
The charter and practice offer numerous examples of operational resolutions. For examples: resolutions settin up
UN armed forces under article 42, resolutions which order an investigation or those which provide for programs
of technical assistance and so forth. [] It is evident that operational resolutions do not immediately produce
obligations for the member states and that they cannot be considered as binding decisions. In this regard, see
also: Conforti, B.; Focarelli, C., The Law and the Practice of the United Nations, 4th revised edition, Leiden:
Martinus Nijhoff Publishers, 2010, p. 94.
403
We note that article XIII of the 1963 OAU Charter conferred upon the Council the task to implement the
decisions adopted by the Assembly, without explaining the means, and to coordinate inter-African cooperation
on many issues. In converse, article 13 1) of the AU Constitutive Act clearly affirms the function of the
Executive Council [t]o take decisions on policies in areas of common interest to the Member States and
function of coordination. Often in the resolutions the Council recommends, making the meaning of
resolution and recommendation as equivalents. See, for instance: Council of Ministers, resolution on the
problem of refugees in Africa, resolution No. CM/Res. 104 (IX), 4-10 September 1967, where the Council
recommends measures to adopt for the resolution of problems of refugees on the continent.
404
Council of Ministers, resolution on the adoption of a draft convention on the status of refugees in Africa,
resolution No. CM/Res. 88 (VII), 31 October-4 November 1966: [The Council] calls upon States that have not
adhered to the [1951 Geneva] Convention to apply its humanitarian principles.
405
The above analyzed 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.
See: Council of Ministers, Commission on the problem of refugees in Africa, resolution No. CM/Res. 36 (III),
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At the beginning of the 1970s, the Council focused its attention on the BPEAR on
numerous occasions.408 This latter was conceived as a placement system for skilled refugees,
though the Council also voiced concern about finding durable solutions in its resolutions
during these years. The 1975 resolution on voluntary repatriation409 represented the Councils
first strong attempt to impart directives to member countries of the organization, in particular
by urging them to abide by the voluntary nature of repatriation, which first appeared in the
language of an organ of the OAU.410 The Council contributed these efforts through its

13-17 July 1964 where we read at paragraphs 6 and 8: [The Council] invites the Commission to draw up a Draft
Convention covering all aspects of the problem of refugees in Africa; [The Council] decides further that the
final text of the Draft Convention be submitted to the Council of Ministers at its Fourth Ordinary Session for its
consideration. See: Council of Ministers, Problem of refugees, resolution No. CM/Res. 52 (IV), 25 February-9
March 1965, paragraph 6: [The Council] establishes a Committee of Legal Experts nominated from Member
States of the ad hoc Commission for the problem of refugees in Africa to meet before 30 July 1965 for the
purpose of examining the said Convention in the light of comments and remarks of Member States and preparing
a final draft Convention for submission to the Fifth Session of the Council of Ministers. See: Council of
Ministers, resolution on the adoption of a draft convention on the status of refugees in Africa, resolution No.
CM/Res. 88 (VII), 31 October-4 November 1966: [The Council] recommends that the signatory States continue
their consideration of the various recommendations and of the provisions of the said draft Convention and,
taking into account the above considerations, convey their comments and observations, in writing, to the OAU
Secretariat, with a view to the transmission of a final draft to the next session of the Council of Ministers. See:
Council of Ministers, resolution on the problem of refugees in Africa, resolution No. CM/Res. 104 (IX), 4-10
September 1967, paragraph 2: [The Council] recommends that the OAU Commission on Refugees be instructed
to adopt an instrument governing the specific aspects of the problem of African Convention and that the adoption
of that instrument by Member States be recommended. See: Council of Ministers, resolution on the problem of
refugees in Africa, resolution No. CM/Res. 149 (XI), 4-12 September 1968, paragraph 2: [The Council] decides
to study the draft Convention at its next session and, to this end, invites Member States to take all appropriate
steps.
406
Council of Ministers, resolution on the problem of refugees in Africa, resolution No. CM/Res. 104 (IX), 4-10
September 1967, paragraph 3: [The Council] recommends that the OAU Commission on Refugees should help
the countries of origin and the host countries devise ways and means for the return of the refugees to their
country of origin, in complete security. See: Council of Ministers, resolution on the problem of refugees in
Africa, resolution No. CM/Res. 149 (XI), 4-12 September 1968, paragraph 4: [The Council] calls upon Member
States to co-operate fully with the Bureau for the Placement and Education of Refugees by giving it all the
assistance it requires.
407
Council of Ministers, resolution on the problem of refugees in Africa, resolution No. CM/Res. 104 (IX), 4-10
September 1967: [The Council] appeals to countries adjacent to African territories under foreign domination to
afford these refugees transit facilities temporary residence and travel papers.
408
Council of Ministers, Bureau for the placement and education of African refugees, resolution No. CM/Res.
244 (XVII), 15-19 June 1971, letter a): [the BPEAR is] within the General Secretariat of the Organization of
African Unity, [...] a special body under the direct control of the Assistant Secretary General for Political Affairs,
without prejudice to any further decision of the Council of Ministers. But, as M. Sharpe noted: Its mandate
[] expanded in practice over time from seeking economic and educational opportunities for refugees to include
functioning as an information conduit to members states and the international community on the patterns, causes
and consequences of refugee movements in Africa; equipping refugees with resources to assist them in coping
with their displacement and eventual repatriation; mediating between host states and refugees regarding alleged
violations of national law; and working with UNHCR, voluntary agencies and member states to further the
objectives of the 1969 Convention. See: Sharpe, M., Engaging with refugee protection? The Organization of
African Unity and African Union since 1963, op. cit. note 347, p. 19. See also, infra: note No. 2352.
409
Council of Ministers, resolution on voluntary repatriation of African refugees, resolution No. CM/Res. 399
(XXIV), 13-21 February 1975.
410
Ibid., paragraph 3 a): [The Council] calls upon member states to accept and abide scrupulously by the
international agreements and the OAU Convention on Refugees, particularly as regards the voluntary nature of
repatriation.
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[l]aunch [of] a campaign to encourage the refugees to return to their countries, of their own
free will411 and, through a remarkable political initiative, which appealed:

[t]o the Governments concerned to solemnly declare a long lasting general amnesty in
order to facilitate the tasks or reconciliation and the return of their refugees.412

This appeal was also reiterated in the following years,413 and sometimes applied to
particular cases on the continent, such as the situation in Southern Africa, which created a
need for a specific conference on the matter in 1988.414 Since then, voluntary repatriation has
become one of the main recurrent issues that constitute the object of the Councils appeals.415
In 1992, the Council clearly pointed out the two major conditions under which voluntary
repatriation must take place: safety and dignity, concepts that we will analyze more
specifically in Chapter XIII of this work.416 For this purpose, the Council has also indicated

411
Ibid., paragraph 3 c): [The Council] makes available, if possible, to the new nations the technical staff and
equipment needed to cope with the exigencies of the situation, in collaboration with Member States having
experienced in repatriation and with the OAU General Secretariat.
412
Ibid., paragraph 9: [The Council] appeals to the Governments concerned to solemnly declare a long lasting
general amnesty in order to facilitate the tasks or reconciliation and the return of their refugees.
413
Council of Ministers, resolution on refugees, resolution No. CM/Res. 489 (XXVII), 24 June-3 July 1976,
paragraph 10: [The Council] appeals to all States to consider, where applicable, the declaration of a general
amnesty to facilitate the voluntary repatriation of refugees to their respective countries or origin. See: Council
of Ministers, resolution on the situation of refugees in Africa and on perspective solutions to their problems in
the 1980s, resolution No. CM/Res. 727 (XXXIII) Rev. 1, 6-20 July 1979, paragraph 3: [The Council] calls upon
OAU Member States concerned to enact amnesty, law and/or proclamations in order to facilitate voluntary
repatriation of African Refugees.
414
Council of Ministers, resolution on the International Conference on the Plight of Refugees, Returnees and
Displaced Persons in Southern Africa, resolution No. CM/Res. 1132 (XLVII), 22-27 February 1988. See also:
Council of Ministers, resolution on International Conference on the Plight of Refugees, Returnees and Displaced
Persons in Southern Africa: Oslo, Norway 22-24 August 1988, resolution No. CM/Res. 1150 (XLVIII), 19-23
May 1988. In paragraph 4 of this resolution, the Council expressly condemned the racist regime at the helm in
Pretoria.
415
For instance, see: Council of Ministers, resolution on the refugee situation in Africa, resolution No. CM/Res.
1241 (L), 17-22 July 1989, paragraph 4: [The Council] appeals to Member States concerned to create the
necessary conducive atmosphere in order to reduce the incidence of asylum-seeking in Africa and to encourage
voluntary repatriation of refugees to their countries of origin, once the conditions that caused their exile have
disappeared. The Council clarified in paragraph 4 that it applauded: [t]he United Nations and in particular, the
Offices of the United Nations High Commission for Refugees for the efforts made in favor of repatriation of
Namibians and the facilities provided in Namibia for the reception of Namibian returnees under the UN Security
Council resolution No. 435 of 1978. In 2001 the Council: [urges] countries of origin and host countries, in
consultation with the OAU and the UNHCR to promote the voluntary repatriation of refugees who wish to return
home, in conformity with the relevant OAU Convention on the specific aspects of refugee problems in Africa,
the United Nations Convention on refugee status and other relevant international legal instruments, including the
establishment of a safe and secure environment. See: Council of Ministers, Decision on the situation of
refugees, returnees and displaced persons, Decision No. CM/Dec. 18 (LXXIV), 5-8 July 2001, paragraph 4.
416
In 2005 the Executive Council gladly noted that, through the efforts of the host countries, many refugees
could be integrated regaining their dignity. See: Council of Ministers (Executive Council), Decision on the
situation of refugees, returnees and displaced persons Doc. Ex.Cl/177 (VII), Decision No. Ex.Cl/Dec. 197 (VII),
28 June-2 July 2005, paragraph 6.
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several measures to favor repatriation in the event of the clearance of land mines and other
unexploded munitions in areas of potential return of refugees.417
The 1970s marked the first time the Council of Ministers called upon countries to apply
the notion of burden sharing, one of the particularities introduced by the 1969 OAU
Convention.418
The situation did not change in the following decades, when the central issues dealt with
in Council resolutions did not differ drastically from what had been decided in the first two
decades of activities, although the analysis did go further in-depth.
In this light, it is clear that the beginning of the 1980s was marked by concern for the
Zimbabwean refugees who had fought for the independence of the country, finally achieved
in 1980, and wished to go back home.419 Nevertheless, the Council was also concerned about
refugees from the Horn, Cameroon420and Chad.421 In addition, the Council was already
interested in Rwandan refugees in 1991, three years before the break-up of the bloody civil
war in the country.422
The Council has founded the bulk of its resolutions on keywords such as assistance to
refugees,423 cooperation, and coordination between countries, between institutions, and

417
Council of Ministers, resolution on the situation of refugees and displaced persons in Africa, resolution No.
CM/Res. 1370 (LV), 24-28 February 1992, paragraphs 3 and 5.
418
Council of Ministers, resolution on the situation of refugees in Africa and on perspective solutions to their
problems in the 1980s. See: resolution No. CM/Res. 727 (XXXIII) Rev. 1, 6-20 July 1979, paragraph 9: [The
Council] invites Member States of OAU which have not given asylum to any refugees, to alleviate the burden of
the countries of first and second asylum of these refugees. See also: Council of Ministers, resolution on the
situation of refugees in Africa and on perspective solutions to their problems in the 1980s, resolution No.
CM/Res. 727 (XXXIII) Rev. 1, 6-20 July 1979, paragraph 5: [The Council] urges all OAU Member States to
consider ways and means of translating the principle of burden-sharing into action by, inter alia, accepting a
number of refugees in their countries.
419
Council of Ministers, The situation of refugees in Africa, resolution No. CM/Res. 774 (XXXIV), 6-15
February 1980, paragraph 9: [The Council] requests the United Nations High Commissioner for Refugees to
involve the OAU in the implementation of the repatriation program of Zimbabwe on refugees.
420
Council of Ministers, The situation of refugees in Africa, resolution No. CM/Res. 814 (XXXV), 18-28 June
1980, paragraph 2: [The Council] appeals to the OAU Member States and the international community at large
to provide urgent humanitarian assistance to refugees in Africa, especially in Cameroon, Djibouti, Ethiopia,
Somalia and Sudan. This situation was partially solved in 1989 when the Council commended [t]he countries
of the Horn of Africa and the Sudan as well as UNHCR for the assistance provided to the refugees and returnees
and [called on] the international community to further increase its assistance and to actively support the efforts
underway to promote voluntary repatriation through the current peace process in the region. See: Council of
Ministers, resolution on the refugee situation in Africa, resolution No. CM/Res. 1241 (L), 17-22 July 1989,
paragraph 11.
421
Council of Ministers, resolution on the assistance of the organization of African Unity to the Chadian
refugees and the displaced persons, resolution No. CM/Res. 818 (XXXV), 18-28 June 1980, paragraph 5: [The
Council] appeals to the international community, to the UNHCR and to the UN Specialized Agencies to urgently
provide assistance to Chadian refugees so as to meet their most urgent needs.
422
Council of Ministers, resolution on the situation of refugees and displaced persons in Africa, resolution No.
CM/Res. 1316 (LIII), 25 February-1 March 1991, paragraph 6: [The Council] requests the OAU Secretary-
General to do everything possible in collaboration with UNHCR and the international community to ensure the
implementation of the Dar-el-Salaam Declaration on the Rwandese Refugees adopted on the 19 February
1991.
423
For instance: Council of Ministers, resolution on the situation of refugees and displaced persons in Africa,
resolution No. CM/Res. 1489 (LIX), 31 January-4 February 1994, paragraph 9: [The Council] invites UNHCR
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between countries and institutions 424 and implementation of legal instruments,425 as well as
durable solutions to guarantee refugees an improved situation in their daily life. 426 As we
easily note, although the Council did not focus explicitly on asylum, it is clear that the
institution of asylum was one of the indirect concerns of this organ, for instance within the
framework of cooperation between states.
In the important 1981 ICARA I resolution, the Council of Ministers recommended:

[A]ll concerned to initiate activities that would entail more cooperation and co-
ordination among all involved in refugee protection and assistance program s for the benefit
of the refugees themselves whose cause is the primary concern of the international
community;
All concerned to attach great importance to ways and means of facilitating voluntary
repatriation of refugees;
OAU and UNHCR, in addition to their general assistance program are to focus, in the
formulation of their assistance programs, on the voluntary repatriation or settlement of
refugees in the country of asylum.427

On the occasion of the ICARA II in 1984, the Council of Ministers also introduced the
concept of development-oriented assistance, taking into account the necessities of both the

to promote in particular, capacity building with local African NGOs with a view to enabling them to contribute
more effectively to the humanitarian protection of an assistance to African refugees and displaced persons.
424
For instance: Council of Ministers, Report of the OAU Commission of Twenty on the situation of refugees,
returnees and displaced persons in Africa document No. CM/2008 (LXVI) REV. 1, 28-31 May 1997, letter e):
[The Council] expresses its gratitude to the Member states which have been granting asylum and extending
assistance to refugees and displaced persons in the spirit of African solidarity and cooperation as well as to
Member States which have endeavored to promote voluntary repatriation [].
425
For instance, about the implementation of the national legal instruments, the Council affirmed in 1990:
[m]ember States which have established national commissions and bodies for coordinating all assistance to
refugees and [appealed] to other Member States to establish such legal institutions with a view to further
increasing the attention and assistance to refugees. See: Council of Ministers, resolution on the root-causes of
the African refugee problem, resolution No. CM/Res. 1274 (LII), 3-8 July 1990, paragraph 6. One of these root-
causes is clearly due to the conflicts broken-out on the continent as it can be understood in the resolution on the
situation of refugees and displaced persons in Africa, resolution No. CM/Res. 1390 (LVI), 22-28 June 1992,
paragraph 4.
426
We have seen that, in its resolutions, the Council had already started to deal with repatriation for some years.
427
Council of Ministers, resolution on the international conference on assistance to refugees in Africa (ICARA),
resolution No. CM/Res. 826 (XXXVI), 23 February-1 March 1981, paragraph 12 c), d) and e). See: Council of
Ministers, resolution on the international conference on assistance to refugees in Africa (ICARA) and on its
follow-up, resolution No. 868 (XXXVII), 15-26 June 1981. At paragraph 9, the cooperation between institutions
was recalled again: [The Council] requests the General Secretariat of the OAU, in close cooperation with the
Secretariat of the United Nations and the Office of the UNHCR, to study the submissions compiled for ICARA
by the African countries with a view to urgently determining the needs for further feasibility studies to be
undertaken with the assistance of the competent authorities at the national level, and to suggest priorities for
project implementation.
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country of origin and the countries of asylum.428 The Council has also given its interpretation
of the legal instruments regarding refugees from time to time. This happened in the mid-
1980s; when the Council wanted to clearly mark the difference between refugees and what
some doctrines call environmental refugees,429 individuals who move exclusively because
of drought or other natural disasters,430 as recently seen in Somalia and Burundi.431 In 2000,
the Council implicitly reversed this vision, considering the latter category as deserving the
qualification of refugees.432 Several commentators also do not distinguish between climate
refugees and environmental refugees, that is, the first being populations compelled to
escape from their area of origin because of natural conditions being affected by global
warming. That specific area of refugee protection, however, seems to have several lacunae at

428
Council of Ministers, resolution on the Second International Conference on assistance to refugees in Africa
(ICARA) II, resolution No. CM/Res. 937 (XL), 7 February-5 March 1984, paragraph 3. This concept is
reiterated in Council of Ministers, resolution on the Second Conference on assistance to refugees in Africa,
resolution No. CM/Res. 968 (XLI), 25 February-4 March 1985, paragraph 5: [The Council] emphasizes the
complementarities of refugee aid and development assistance in the quest for durable solution.
429
For a preliminary analysis of the legal situation of such a category of individuals: Black, R., Environmental
refugees: myth or reality? in: UNHCR, New Issues in Refugee Research, working paper No. 34, 2001, 19 p. At
p. 1 the author defined the environmental refugees as [p]ersons who no longer gain a secure livelihood in their
traditional homelands because of what are primarily environmental factors of unusual scope. Quoting E. El
Hinnawi, L. Westra gave the following definition of environmental refugees: [They] are defined as those
people who have been forced to leave their traditional habitat, temporarily or permanently, because of a marked
environmental disruption (natural or triggered by people) that jeopardizes their existence and/or seriously
affected the quality of their life. See: Westra, L., Environmental Justice and the Rights of Ecological Refugees,
London: Earthscan Publications Ltd., 2009, p. 3. This author pointed out that article 14 1) and 25 of the 1948
UDHR: [s]hould protect the ecological rights of citizens within their own country. The exponential growth of
ecological migrants clearly demonstrates that even these venerable and well-established principles are not
seriously followed in the home country of refugees. Yet this is what must be done in order to stem the tide of
refugees and start mitigating the conditions that cause it. See: ibid., p. 183. Article 25 of the 1948 UDHR
provides the right to: [a] standard of living adequate for the health and well-being [] including food, clothing,
housing and medical care and necessary social services.
430
Council of Ministers, resolution on the root causes of refugees in Africa, resolution No. CM/Res. 987 (XLII),
10-17 July 1985, paragraph 2. In that period drought and famine stroke several countries in the Horn of African
causing thousands of people who fled their area of origin.
431
Kolmannskog, V., Climate change, disaster, displacement and migration: initial evidence from Africa, in:
UNHCR, New Issues in Refugee Research, research paper No. 180, 2009. At p. 12, talking particularly about
Burundi, the author explained: During the 2004 drought, many people went to Rwanda. According to UNHCR
staff, the agency made an effort to consider them within a political context [] and the displaced themselves
naturally also recounted the accepted political narrative to UNHCR and Rwandan authorities. Thus, they fell
within the traditional mandate of UNHCR and the 1951 Convention refugee definition. The author concluded at
p. 14: Both cases [Somalia and Burundi] illustrate how complex the dynamics of a disaster can be. Global
climate change and local environmental degradation are only two of many factors in the droughts and conflicts.
Large-scale armed conflict may be fuelled through a particular access to resources [] and other factors can
play a more crucial role than the environmental when it comes to weakening dispute resolution mechanisms and
increasing the risk of violent conflict [].
432
On that occasion, the Council affirmed: [The Council] commends the asylum countries which continue to
play host to and help refugees, in spite of their socio-economic difficulties made worse recently by natural
disasters including floods, drought and famine; however, due to growing hostilities meted out on refugees in
many asylum countries. See: Council of Ministers, decision on the situation of refugees, returnees and displaced
persons in Africa CM/2171 (LXXII), Decision No. CM/Dec. 531 (LXXII), 6-8 July 2000, paragraph 5.
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this point.433 Some of the most important examples of environmental refugees in Sub-
Saharan Africa are the inhabitants of Blarigui Island in Lake Chad.434
At the dawn of the new century, as the situation of refugees had not substantially
changed on the continent compared to the previous decades, we can perceive continuity in the
decisions of the Council the term decision has replaced the term resolution even if the
legal strength of this kind of provisos has not changed. However, an analysis close to reality
has finally allowed the Council to assess durable solutions for refugees other than sole
voluntary repatriation in order to guarantee better conditions of life to those having obtained
asylum. This is the case of local integration, for which the Council expressly thanked Zambia
for its initiatives.435
The OAU/AU has evidently been very prolific in resolutions and multidimensional in
the approach of the topic of refugees and, in our opinion, it deserves applause because during
its history the organization has been able to be ductile enough to try to adhere as much as
possible to the reality of the plight, although sometimes late. However, we must recognize the
difficulties met by the organs of the OAU/AU, the organization attempting to mediate among

433
In this regard, L. Westra explained: When developments such as climate change or the arrival of mining and
other extractive activities occur close to their communities, local peoples may be forced to leave their territories
behind. Most often, they are forced to leave because of their living conditions, without being able to avail
themselves of effective state protection. Not unlike refugees who require the protection of their country or,
failing that, the protection of international law, indigenous and local peoples do not enjoy the protection of these
instruments, despite their inability to safely inhabit their traditional territories in many cases. See: Westra, L.,
op. cit. note 429, p. 7.
434
In this regard, J. Lemoalle clarified: In this region, not only fishermen but also livestock breeders and people
who come to farm the dry lakebed because there is not enough rain where they hail from are all climate refugees.
The presence of this body of water in the Sahel is in fact exceptional. See: Lemoalle, J., in: AA.VV., Blarigui:
low tide in Lake Chad, in: AA.VV., Climate Refugees, Geneva: Infolio Editions, 2007, p. 96. See also: Piguet,
E., Climate change and forced migration, in: UNHCR, New Issues in Refugee Research, research paper No.
153, 2008, p. 8: [E]nvironmental degradation can generate migration flows. Global warming could, in
particular, lead to major forced displacements. This will result principally from rising sea levels, but will only
progressively manifest itself over the coming centuries, with the exception of the flooding of certain islands. The
increase in droughts and meteorological disasters predicted by climatic models will also have impacts in terms of
migrations, but these will remain regional and short-term, and are at present difficult to estimate. The author at
pp. 8-9 explained: Simply including environmental motives in the 1951 definition of refugees seems politically
unfeasible due to the very likely opposition of receiving countries. It would probably not achieve its objective to
protection as the majority of displacements take place in the interior of the countries affected. It would also risk
threatening the coherence of an international framework of refugee protection that already has difficulty in
obliging states respect their commitments. [] It seems that two possibilities can be envisaged with regard to
this: on one hand, an increased international cooperation with a view to collective burden sharing of assistance
and prevention in countries confronted with disasters, and on the other, the opening of emigration channels with
the recognition of environmental push factors in subsidiary international instruments of protection such as
temporary protection schemes. This second option seems more viable for urgent cases but brings with it
numerous problems, in particular the question of responsibility for the displacement of the person from the
disaster zone to the receiving zone.
435
Council of Ministers (Executive Council), decision on the situation of refugees, returnees and displaced
persons Doc.Ex.Cl/177 (VII), Decision No. Ex.Cl/Dec. 197 (VII), 28 June-2 July 2005, paragraph 7.
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the interests of 51 member countries.436 In spite of its efforts, the AU was recently obliged to
admit that the increase in the number of refugees on the continent has not stopped.437

2.4 The protection of a vulnerable category of individuals: the 1990 African Charter on the
Rights and Welfare of the Child and its interrelation with the 1989 UN Convention on the
Rights of the Child

2.4.1 A general overview of the African Charter

Although this work will not specifically deal with the situation of child refugees in
South-Saharan Africa, a vulnerable category of individuals deserving a particular protection,
the 1990 ACRWC438 remains one of the pillars of refugee protection in Africa. The 1990
ACRWC represents the first regional instrument regarding childs rights,439 adopting a
holistic approach to the rights and welfare of children through the affirmation of the principle
that rights are indivisible and interdependent.440
The 1990 ACRWC was adopted by the OAU Assembly on 11 July 1990, and entered
into force on 29 November 1999, according to article 47 3).441 To date,442 forty-six African
countries have ratified it, many in Sub-Saharan Africa, with somewhat important exceptions.
Among them, we count the CAR, the DRC which recently signed it on 2 February 2010,
Somalia which signed it on 1 June 1991 but whose ratification has been possibly negatively
affected by the civil war, which has reduced the country to a very indigent situation-
Swaziland, and Sao Tom and Principe. We note that several countries, Ethiopia, for instance,

436
We note that, to date, 2 August 2012, three countries of the original 54 are at the moment suspended from the
organization because of political reasons: Madagascar -suspended after the 2009 political crisis-, Mali
suspended after the 2012 coup dtat- and Guinea Bissau, suspended after the 2012 coup dtat.
437
Council of Ministers (Executive Council), Dcision sur la situation des rfugis, rapatris et personnes
dplaces en Afrique (in French), Doc.PRC/Rpt (XX), Decision No. Ex.CL/Dec. 558 (XVII), 19-23 July 2010,
paragraph 2.
438
OAU, African Charter on the Rights and Welfare of the Child, 11 July 1990, Document No.
CAB/LEG/24.9/49 (1990).
439
Lloyd A., A theoretical analysis of the reality of childrens rights in Africa: an introduction to the African
Charter on the Rights and Welfare of the Child, in: African Human Rights Law Journal, vol. 2, 2002, p. 13.
440
Chirwa, D.M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, in:
The International Journal of Childrens Rights, vol. 10, 2002, p. 157.
441
Article 47 3) reads: 3) The present Charter shall come into force 30 days after the reception by the Secretary-
General of the Organization of African Unity of the instruments of ratification or adherence of 15 Member States
of the Organization of African Unity.
442
30 September 2012.
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were initially reluctant to ratify the 1990 ACRWC because of the presence of article 23 on
refugee children, whose formulation created some problems with the local parliament.443
This charter has been primarily conceived in order to address problems specific to
children in Africa, meaning every human being below the age of 18 years on the
continent.444 Notably: children used as soldiers, the disadvantages faced by African girl
children, children who have been displaced as a consequence of civil wars, the life of children
under apartheid, and the role of the extended family in the education of children. 445 The
monitoring and the enforcement of the 1990 ACRWC take place within the African
Committee of Experts on the Rights and Welfare of the Child (ACERWC), which was
established by article 32 of the 1990 ACRWC.446 Under article 42 of the charter, the
ACERWC is mandated to promote and ensure the protection of the rights of the child
enshrined in the charter. This protection can be of different types, for instance: from all
forms of economic exploitation and from performing any work that is likely to be hazardous
or to interfere with the childs physical, mental, spiritual, moral, or social development,447
and from all forms of torture, inhuman or degrading treatment and especially physical or
mental injury or abuse, neglect or maltreatment including sexual abuse.448 We must not
neglect the protection from sexual exploitation,449 or, in the case of armed conflicts, the
protection of the child from recruitment, and taking a direct part in the hostilities.450
However, the 1990 ACRWC should also be read in light of the 1989 CRC, a veritable
complete instrument providing for almost every aspect of the childs life, 451 which was
adopted by the UNGA on 20 November 1989452 and entered into force on 2 September 1990,
according to its article 49 1).453 To date,454 the 1989 CRC is also ratified by four out of the

443
Lloyd, A., Evolution of the African Charter on the Rights and Welfare of the Child and the African
Committee of Experts: raising the gauntlets, in: The International Journal of Childrens Rights, vol. 10, 2002,
p. 181. Finally, Ethiopia ratified the 1990 ACRWC on 2 October 2002.
444
Article 2 of the 1990 ACRWC: For tile purposes of this Charter, a child means every human being below the
age of 18 years.
445
Kaime, T., The foundations of rights in the African Charter on the Rights and Welfare of the Child: a
historical and philosophical account, in: African Journal of Legal Studies, vol. 3, 2009, p. 131.
446
Article 32 reads: An African Committee of Experts on the Rights and Welfare of the Child hereinafter called
the Committee shall be established within the Organization of African Unity to promote and protect the rights
and welfare of the child.
447
Article 15 1) of the 1990 ACRWC.
448
Article 16 1) of the 1990 ACRWC.
449
Article 27 1) of the 1990 ACRWC starts reading: 1) States Parties to the present Charter shall undertake to
protect the child from all forms of sexual exploitation and sexual abuse [].
450
Article 22 2) of the 1990 ACRWC.
451
Kaime, T., The foundations of rights in the African Charter on the Rights and Welfare of the Child: a
historical and philosophical account, op. cit. note 445, p. 124.
452
UNGA, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577,
No. 27531, p. 3.
453
Article 49 1) of the 1989 CRC reads: 1) The present Convention shall enter into force on the thirtieth day
following the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of
ratification or accession.
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five Sub-Saharan African countries that have not ratified the 1990 ACRWC, with the
exception of Somalia, which signed the 1989 CRC on 9 May 2002, but has yet to ratify it,
possibly for the same aforementioned reasons regarding its non-ratification of the 1990
ACRWC. The 1989 CRC and the 1990 ACRWC have been considered complementary by
several scholars, which together provide the framework for the protection of children on the
continent.455 Although we will focus more specifically on the African instrument, we will
analyze the content of the 1990 ACRWC referring to 1989 CRC provisions on the particular
issue of refugee children as well when possible.

2.4.2 The interrelation between the treatment of refugees in the 1990 ACRWC and the 1989
CRC

The question of refugee children has been explicitly tackled in article 23 456 of the 1990
ACRWC. This article, however, cannot be read separately from articles 3 and 4 of the same
instrument, which provide, respectively, for the enjoyment of the rights and freedoms
recognized and guaranteed in the 1990 ACRWC by every child, without any
discrimination,457 as well as the best interest of the child. This last principle is seen as the
north star in guiding any person or authority s actions towards or on behalf of children, 458
although it has been considered quite ill-defined because it does not clearly describe the range
of factors that must be taken into consideration in order to determine what concretely
constitutes the best interest of a child.459

454
15 September 2012.
455
Olowu, D., Protecting childrens rights in Africa: a critique of the African Charter on the Rights and Welfare
of the Child, in: The International Journal of Childrens Rights, vol. 10, 2002, p. 128.
456
In this regard, and in our opinion quite vaguely, D. M. Chirwa pointed out that: It must also been noted that
the Charter endorses the wider definition of refugee in the OAU Convention Governing the Specific Aspects
of Refugee Problems in Africa. See: Chirwa, D.M., The merits and demerits of the African Charter on the
Rights and Welfare of the Child, op. cit. note 440, p. 169.
457
In full, article 3 of the 1990 ACRWC reads: Every child shall be entitled to the enjoyment of the rights and
freedoms recognized and guaranteed in this Charter irrespective of the childs or his/her parents or legal
guardians race, ethnic group, color, sex, language, religion, political or other opinion, national and social origin,
fortune, birth or other status. In this regard, see also: Kaime, T., The protection of refugee children under the
African Human Rights System: finding durable solutions in International Law, in: Sloth-Nielsen, J. (edited by),
Childrens Rights in Africa: a Legal Perspective, Aldershot: Ashgate Publishing Limited, 2008, p. 185.
458
Article 4 1) of the 1990 ACRWC reads: 1) In all actions concerning the child undertaken by any person or
authority the best interests of the child shall be the primary consideration.
459
Kaime, T., The African Charter on the Rights and Welfare of the Child: A Socio-Legal Perspective, Pretoria:
Pretoria University Law Press, 2009, p. 110. However, at p. 111, the author contended that: Yet, the seemingly
expansive formulation of the principle in the Charter is also its most important characteristic. It allows a
contextual application of the principle on a case-by-case basis, allowing for a result that is specific to each
child. In this regard, according to UNHCR: The principle of the best interests of the child requires that the
harm be assessed from the childs perspective. This may include an analysis as to how the childs rights or
interests are, or will be, affected by the harm. Ill-treatment which may not rise to the level of persecution in the
case of an adult may do so in the case of a child. See: UNHCR, Guidelines on international protection No. 8:
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Article 3, which is dedicated to non-discrimination, raises the 1990 ACRWC to a


higher level of protection than provided for in the 1989 CRC, although it is considered a
non-autonomous norm of the 1990 ACRWC. This article is viewed as such because, since it
is at the foundation of the freedoms and rights guaranteed by the charter, it has no
independent existence in that it can be invoked exclusively in relation to the implementation
of a right protected by the same 1990 ACRWC.460
However, in Sub-Saharan Africa, we have noted several breaches of this norm, as in the
1994 Rwandan genocide or, more recently, in Darfur where the Janjaweed militia
systematically raped and murdered Darfurian refugee children.461 In this regard, we could
affirm that Rwanda is part of the 1990 ACRWC since only 2001, while Sudan ratified it in
2005. However, if we want to stick exclusively to a legal norm without taking into
considerations concepts such as ethics and mercy, the 1989 CRC also contains a provision on
non-discrimination, notably in article 2,462 and both states mentioned ratified this instrument
before their internal crises, Rwanda in 1991 and Sudan in 1990.
The best interest principle, which must be applied in all actions regarding children
and refugees, whether public or private entities are undertaking those actions,463 is seen as
well suited for finding a durable solution for refugee children in particular. A durable solution
should normalize their situation by conferring to them mental and physical health, intellectual
development as well as a sufficient material security, among other aspects. Coming to such a
solution would require, of course, the participation of the children involved.464 The validity of
the need for this participation is evinced by the protracted refugee settlement in Kyaka II,
South West Uganda, where children have clearly shown their capacity to speak about their
needs and protection with adults in different environments such as schools and churches.465

Child asylum claims under articles 1A) 2 and 1 F) of the 1951 Convention and/or 1967 Protocol relating to the
Status of Refugees, document No. HCR/GIP/09/08, 22 December 2009, paragraph 10, pp. 6-7.
460
Kaime, T., The African Charter on the Rights and Welfare of the Child: A Socio-Legal Perspective, op. cit.
note 459, p. 98.
461
Kaime, T., The protection of refugee children under the African Human Rights System: finding durable
solutions in International Law, op. cit. note 457, p. 185. In this regard see: Sudan: new Darfur documents, 21
July 2004, html document, available at:
http://www.hrw.org/news/2004/07/20/sudan-new-darfur-documents, accessed 10 September 2012.
462
Article 2 reads: 1) States Parties shall respect and ensure the rights set forth in the present Convention to
each child within their jurisdiction without discrimination of any kind, irrespective of the childs or his or her
parents or legal guardians race, color, sex, language, religion, political or other opinion, national, ethnic or
social origin, property, disability, birth or other status. 2) States Parties shall take all appropriate measures to
ensure that the child is protected against all forms of discrimination or punishment on the basis of the status,
activities, expressed opinions, or beliefs of the childs parents, legal guardians, or family members.
463
Kaime, T., The African Charter on the Rights and Welfare of the Child: A Socio-Legal Perspective, op. cit.
note 459, p. 113.
464
Kaime, T., From lofty jargon to durable solutions: unaccompanied refugee children and the African Charter
on the Rights and Welfare of the Child, in: International Journal of Refugee Law, vol. 16, 2004, p. 340.
465
Skeels, A., Refugee childrens participation in protection: a case study from Uganda, in: UNHCR, New
Issues in Refugee Research, research paper No. 241, 2012, especially at pp. 10-14.
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The 1969 OAU Convention, as well as the 1951 Geneva Convention, does not contain
any provisions that require adherence to the best interest principle for children. As a result, in
the past, the host state, tacitly justifying itself by the fact that no legal instrument on refugees
guaranteed any best interest to children, dealt with refugee children without any major
obligation, often treating them harshly, especially those who were unaccompanied. Through
the best interest approach, the 1990 ACRWC has adopted uniform standards for treatment
of refugee children, and states parties to the 1990 ACRWC must comply with these
standards.466
The wording of article 23 of 1990 ACRWC,467 at least in its first paragraph, is only
slightly dissimilar to article 22 1) of the 1989 CRC468 with several differences in the language
used that seem more formal than substantial. These differences concern either the expression
and procedures present in the 1989 CRC but omitted in the 1990 ACRWC or the expression
by any other person, replaced in the 1990 ACRWC by the wording legal guardians or
close relatives. This last difference of phrasing lacks substantial content also because article
23 1) openly claims that the right to receive protection is applicable to both accompanied and
unaccompanied refugee children. In addition, the protection provided in article 23 1) of the
1990 ACRWC is for the enjoyment of rights while the 1989 CRC talks about applicable
rights. The expression contained in the 1990 ACRWC seems to indicate that no restrictions
on the application of the rights in African instrument are allowed.
An important point set out in article 23 2) of the 1990 ACRWC469 concerning the
cooperation between the state parties to the charter with international organizations in order
to better protect refugee children. This cooperation, which, according to article 22 2) of the
1989 CRC must be considered appropriate by the state parties to the convention,470 is, in

466
Kaime, T., The protection of refugee children under the African Human Rights System: finding durable
solutions in International Law, op. cit. note 457, p. 186.
467
1990 ACRWC, article 23 1) reads: 1) States Parties to the present Charter shall take all appropriate measures
to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable
international or domestic law shall, whether unaccompanied or accompanied by parents, legal guardians or close
relatives, receive appropriate protection and humanitarian assistance in the enjoyment of the rights set out in this
Charter and other international human rights and humanitarian instruments to which the States are Parties.
468
Ibid., article 22 1) reads: 1) States Parties shall take appropriate measures to ensure that a child who is
seeking refugee status or who is considered a refugee in accordance with applicable international or domestic
law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person,
receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the
present Convention and in other international human rights or humanitarian instruments to which the said States
are Parties. Emphasis added.
469
Ibid., article 23 2) reads: 2) States Parties shall undertake to cooperate with existing international
organizations which protect and assist refugees in their efforts to protect and assist such a child and to trace the
parents or other close relatives or an unaccompanied refugee child in order to obtain information necessary for
reunification with the family.
470
Article 22 2), first sentence, reads: 2) For this purpose, States Parties shall provide, as they consider
appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental
organizations or non-governmental organizations co-operating with the United Nations to protect and assist such
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contrast, seen as obligatory and without any restriction by the 1990 ACRWC. The problem
with this paragraph of article 23 of the charter is that it is not clear whether NGOs which
article 22 2) of the 1989 CRC explicitly considers are included in the category existing
international organizations. Consequently, the 1990 ACRWC can be interpreted either way,
without any explicit provisions that include or exclude NGOs.
A debate also has been raised about the fact that article 23 2) of the 1990 ACRWC
provides for exclusive cooperation with existing organizations, which is intended to be a
restriction [i]n a way that only organizations that were already in existence when the charter
came into effect fall under article 23. However, others hold the view there is also the view
that the adverb existing refers to the fact that states parties must collaborate with an
organization that is in existence at the time of the cooperation.471
Another source of ambiguity in the 1990 ACRWC is found in the phrasing contained in
article 23 2), regarding other close relatives who should be traced in case of refugees in
order to obtain information necessary for reunification with the family.472 It is clear that this
wording is quite vague and, relative to Sub-Saharan Africa, where the extended family is
often the rule, close relatives in our opinion expands the number of possible individuals
who can take care of an African refugee child, if compared, for instance, with the number of
close relatives generally considered in the European mentality.
In addition, article 23 2) of the 1990, ACRWC sets out the obligation to trace the family
of a refugee child exclusively in circumstances in which the child is not accompanied. 473 The
problem in the framework of the 1990 ACRWC arises when the refugee child is accompanied
by a person that is not considered in article 23 1), meaning a parent, a legal guardian or a
close relative. Nevertheless, in Sub-Saharan Africa, it is quite frequent that a refugee child is
accompanied by individuals other than the ones provided in article 23 1). It is therefore clear
that, according to what is established by article 23 1), in such a case, a refugee child would be
considered as unaccompanied. The relative consequence would be that African countries
would be obliged under article 23 2) to trace the close relatives, if not the parents, of the
child- also a refugee one.- In addition, an explicit obligation of states to re-unite a child with
his/her family is also provided for in article 25 2) b).474 In any case, the reunification of the

a child and to trace the parents or other members of the family of any refugee child in order to obtain information
necessary for reunification with his or her family. Emphasis added.
471
Gose, M., The African Charter on the Rights and Welfare of the Child, Bellville South Africa-: Community
Law Centre, University of Western Cape, 2002, p. 122.
472
In article 22 2) the 1989 CRC talks, more generally, only of other members of the family.
473
The 1989 CRC is broader in this sense providing, in article 22 2) for a similar service for any child.
474
Article 25 2) b) reads: 2) States Parties to the present Charter: [] b) shall take all necessary measures to
trace and re-unite children with parents or relatives where separation is caused by internal and external
displacement arising from armed conflicts or natural disasters.
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refugee child with the family should not be dogmatically always pursued as the best solution
for the children. Situations should be carefully assessed and reunification should not be
advised, for instance, when the parents or the relatives have been responsible for the childs
flight, or when the child has fled from social practice like genital mutilation or forced
marriage,475 as in Rwanda during the genocide.476 In addition, it has been pointed out that
reunification is not only constituted by the return of the unaccompanied refugee minor to
her/his country of origin. However, for the best interest of child, it would also involve the
organization of such reunification, as it did not happen in Somalia, where in December 2006
Kenyan authorities repatriated by force many Somali children hundreds of them having
already acquired the refugee status. This repatriation was clearly promoted with the aim of
reunifying them with their families, despite the fact that the Somali civil war in the country
was still raging. It is clear that, in this specific circumstance, the best interest of Somali
children refugees clearly was not being reunified with their families.477
And in the majority of the countries in Sub-Saharan Africa, which lack domestic
legislation on this particular feature, these international instruments become the only source
of reference for these kinds of situations, as in Uganda, where refugee children being
reunified with their families go through at least to three months of psychological support in
specially designated centers.478
Article 23 3)479 of the 1990 ACRWC constitutes an exact repetition of what is affirmed
in the second sentence of article 22 2) of the 1989 CRC480 with one difference. The 1990
ACRWC provides unaccompanied children with the same protection accorded to other
children permanently or temporarily deprived of his/her family environment for any reason;
while the 1989 CRC explains that the children with no family will be protected as set forth in
the present convention. In this way, it is evident that the 1990 ACRWC ensures a better

475
Kaime, T., From lofty jargon to durable solutions: unaccompanied refugee children and the African Charter
on the Rights and Welfare of the Child, op. cit. note 464, p. 343.
476
Kaime, T., The protection of refugee children under the African Human Rights System: finding durable
solutions in International Law, op. cit. note 457, p. 160.
477
In this regard, see: AI, Kenya - Denied refuge: the effect of the closure of the Kenya/Somalia border on
thousands of Somali asylum-seekers and refugees, 2 May 2007, document No. AFR 32.002.2007, pp. 3-4, html
document, available at: http://www.unhcr.org/refworld/docid/465c19b52.html, accessed 22 September 2012.
478
Uganda, Ministry of Gender, Labor and Social Development, Implementation of the African Charter of the
Rights and Welfare of the Child in Uganda, November 2007, p. 20.
479
Article 23 3) reads: 3) Where no parents, legal guardians or close relatives can be found, the child shall be
accorded the same protection as any other child permanently or temporarily deprived of his family environment
for any reason.
480
Article 22 2), second sentence, reads: In cases where no parents or other members of the family can be
found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of
his or her family environment for any reason, as set forth in the present Convention. Emphasis added.
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protection to the refugee children.481 However, since the 1990, ACRWC already accords
special protection and assistance to all children, this proviso also implying that
unaccompanied children are entitled to supplementary protection and assistance in
comparison with the level of protection granted to other children.482
On the other hand, the African approach is also a logic one, considering that a childs
protection can also be derived from other national and international legal instruments.483 In
addition, in presence of such alternative options for care of the refugee child, states should
maintain the best interest of the child as the main principle of reference, taking into
consideration the childs background in order to choose the solution that is best for him/her.484
Article 23 4)485 of the 1990 ACRWC finally provides for the extension of the protection
provided in the rest of the article not only to refugee children, but also to IDP children,
displaced for whatever reason.486 This paragraph clearly has a progressive meaning, once
again having the evident objective to increase the protection of a child as much as possible
and taking into consideration another real problem affecting children on the continent,487
which, incidentally, the 1989 CRC does not mention.488

481
Kaime, T., From lofty jargon to durable solutions: unaccompanied refugee children and the African Charter
on the Rights and Welfare of the Child, op. cit. note 464, p. 344.
482
Kaime, T., The protection of refugee children under the African Human Rights System: finding durable
solutions in International Law, op. cit. note 457, p. 191. The question of unaccompanied children was faced in
several African crisis like, for instance, during the crisis in Biafra in the late 1960s, early 1970s. In that occasion
[w]ere published several memoranda on the welfare scheme for refugee children, which created a framework to
be used for the eventual repatriation of the evacuated children. [] Ifekwunigwes memoranda (Dr. A.E.
Ifekwunigwe was the Chief Paediatrician of the Okporoh Hospital in Nigeria), were extremely valuable in that
they served as the framework adopted as the final repatriation scheme. They provided detailed analysis and
solutions, while addressing the shortcomings of the evacuation process. Most importantly, they provided the
evidence that repatriation of unaccompanied children was a key policy concern for all sides involved in the
Biafran conflict. See: Goetz, N.H., Humanitarian issues in the Biafra conflict, in: UNHCR, New Issues in
Refugee Research, research paper No. 36, 2001, p. 13. At ibid., p. 17 the author pointed out that: Between 9 and
22 November 1970, the operation to repatriate the 891 children from the Ivory Coast took place. The airlift for
the children in Gabon occurred in two stages: the first between 23 November and 20 December, and the second
between 11 January and 8 February 1971. In all, 3,711 of the refugee children in Gabon and the Ivory Coast
were repatriated by an airlift totalling 78 flights. The total cost of the operation was estimated to be about
$500,000, of which Denmark [the largest donor] contributed $76,000.
483
Gose, M., op. cit. note 471, p. 124.
484
Kaime, T., From lofty jargon to durable solutions: unaccompanied refugee children and the African Charter
on the Rights and Welfare of the Child, op. cit. note 464, p. 344.
485
Article 23 4) reads: 4) The provisions of this Article apply mutatis mutandis to internally displaced children
whether through natural disaster, internal armed conflicts, civil strife, breakdown of economic and social order
or howsoever caused.
486
Chirwa, D.M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, op.
cit. note 440, pp. 168-169.
487
Lloyd A., A theoretical analysis of the reality of childrens rights in Africa: an introduction to the African
Charter on the Rights and Welfare of the Child, op. cit. note 439, p. 21. In this regard, see also: Olowu, D.,
Protecting childrens rights in Africa: a critique of the African Charter on the Rights and Welfare of the Child,
op. cit. note 455, p. 130.
488
Kaime, T., From lofty jargon to durable solutions: unaccompanied refugee children and the African Charter
on the Rights and Welfare of the Child, op. cit. note 464, p. 338.
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Despite the ambiguities that the 1990 ACRWC presents in its provisions concerning
refugees, it has been generally considered to offer a more comprehensive degree of protection
than that offered by the 1989 CRC, in its entirety and particularly for the African situation.
The latter has been considered excessively western-oriented, an affirmation that is evident if
we consider the very few number of Sub-Saharan African countries, and African in general,
that participated in the drafting of the preparatory works of the 1989 CRC. Senegal was the
most active country among them, having participated in the working group from 1983 to 1989
with an interruption in 1984. Other countries that participated in drafting the 1989 CRC
include DRC (as Zaire) in 1981, Liberia (1985), Ethiopia (1986 and 1989), Nigeria (1988)
and Mozambique (1989). However, none of them has played an important role in the drafting
of article 22 on refugee children,489 or on articles 2 and 3 on non-discrimination and best
interest of child, respectively.490
However, major involvement of children would have been ideal for the drafting of the
1990 ACRWC. Their consultation may have been desirable, although we are aware of the fact
that, in many Sub-Saharan African cultures, children have been historically perceived as a
parents property.491 Article 10 of the 1990 ACRWC, the one on privacy; however, seems
to confer the status of an autonomous individual to the African child.492
In any case, the OAU, and especially its Assembly, has always been extremely
motivated to improve the life of the child on the continent. This improvement has occurred
although it is clear that the respect of article 23 of the 1990 ACRWC and of the charter in
general relies substantially on state practice often lacking also because of the socio-
economic conditions of several countries on the continent 493 and on the work of the
ACERWC.494

489
For the debate on article 22 of the 1989 CRC in the working group, see: United Nations, Legislative History
of the Convention on the Rights of the Child, New York/Geneva: United Nations, 2007, vol. I, pp. 554-563. For
the list of the countries that have participated to the draft of the 1989 CRC see: ibid., vol. II, Annex III, pp. 933-
937.
490
Ibid., vol. I, pp. 314 through 334 about article 2, pp. 335 through 348 about article 3.
491
Lloyd A., A theoretical analysis of the reality of childrens rights in Africa: an introduction to the African
Charter on the Rights and Welfare of the Child, op. cit. note 439, p. 16. As T. Kaime noted about the influence
of family on children in Africa: The protection and promotion of the rights and welfare of the African child is in
large part about influencing the day-to-day child-rearing practices of family. See: Kaime, T., The African
Charter on the Rights and Welfare of the Child: A Socio-Legal Perspective, op. cit. note 459, p. 138.
492
Chirwa, D.M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, op.
cit. note 440, p. 160. In detail, article 10 of the 1990 ACRWC reads: No child shall be subject to arbitrary or
unlawful interference with his privacy, family home or correspondence, or to the attacks upon his honor or
reputation, provided that parents or legal guardians shall have the right to exercise reasonable supervision over
the conduct of their children. The child has the right to the protection of the law against such interference or
attacks.
493
Lloyd A., A theoretical analysis of the reality of childrens rights in Africa: an introduction to the African
Charter on the Rights and Welfare of the Child, op. cit. note 439, p. 32.
494
Ibid., pp. 22-23.
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2.4.3 The monitor power of the African Committee of Experts on the Rights and Welfare of the
Child

As we have mentioned above, the mandate of the ACERWC was established by article
42 of the 1990 ACRWC, and mainly has the function of promoting and protecting the rights
contained in the charter.495 A similar committee was also established by the 1989 CRC in
article 43.496 According to the various paragraphs of article 42 of the 1990 ACRWC, the
ACERWC has different tasks included in its mandate. They range from collecting and
document[ing] information, commission[ing] inter-disciplinary assessment of situations of
African problems in the fields of the rights [] of the child, to encouraging national []
institutions concerned with the rights and welfare of the child, and finally giving its views

495
In detail, see: article 42 a) of the 1990 ACRWC reading: The functions of the Committee shall be: a) To
promote and protect the rights enshrined in this Charter and in particular to: i) collect and document information,
commission inter-disciplinary assessment of situations on African problems in the fields of the rights and
welfare of the child, organize meetings, encourage national and local institutions concerned with the rights and
welfare of the child, and where necessary give its views and make recommendations to Governments; ii)
formulate and lay down principles and rules aimed at protecting the rights and welfare of children in Africa;
iii)cooperate with other African, international and regional Institutions and organizations concerned with the
promotion and protection of the rights and welfare of the child.
496
In full, article 43 of the 1989 CRC stipulates: 1) For the purpose of examining the progress made by States
Parties in achieving the realization of the obligations undertaken in the present Convention, there shall be
established a Committee on the Rights of the Child, which shall carry out the functions hereinafter provided. 2)
The Committee shall consist of ten experts of high moral standing and recognized competence in the field
covered by this Convention. The members of the Committee shall be elected by States Parties from among their
nationals and shall serve in their personal capacity, consideration being given to equitable geographical
distribution, as well as to the principal legal systems. 3) The members of the Committee shall be elected by
secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from
among its own nationals. 4) The initial election to the Committee shall be held no later than six months after the
date of the entry into force of the present Convention and thereafter every second year. At least four months
before the date of each election, the Secretary-General of the United Nations shall address a letter to States
Parties inviting them to submit their nominations within two months. The Secretary-General shall subsequently
prepare a list in alphabetical order of all persons thus nominated, indicating States Parties which have nominated
them, and shall submit it to the States Parties to the present Convention. 5) The elections shall be held at
meetings of States Parties convened by the Secretary-General at United Nations Headquarters. At those
meetings, for which two thirds of States Parties shall constitute a quorum, the persons elected to the Committee
shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives
of States Parties present and voting. 6) The members of the Committee shall be elected for a term of four years.
They shall be eligible for re-election if renominated. The term of five of the members elected at the first election
shall expire at the end of two years; immediately after the first election, the names of these five members shall be
chosen by lot by the Chairman of the meeting. 7) If a member of the Committee dies or resigns or declares that
for any other cause he or she can no longer perform the duties of the Committee, the State Party which
nominated the member shall appoint another expert from among its nationals to serve for the remainder of the
term, subject to the approval of the Committee. 8) The Committee shall establish its own rules of procedure. 9)
The Committee shall elect its officers for a period of two years. 10) The meetings of the Committee shall
normally be held at United Nations Headquarters or at any other convenient place as determined by the
Committee. The Committee shall normally meet annually. The duration of the meetings of the Committee shall
be determined, and reviewed, if necessary, by a meeting of the States Parties to the present Convention, subject
to the approval of the General Assembly. 11) The Secretary-General of the United Nations shall provide the
necessary staff and facilities for the effective performance of the functions of the Committee under the present
Convention. 12) With the approval of the General Assembly, the members of the Committee established under
the present Convention shall receive emoluments from United Nations resources on such terms and conditions as
the Assembly may decide.
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and making recommendations to governments when necessary.497 In addition, the ACERWC


has the authority to formulate and lay down principles with the goal of protecting the rights
of African children.498 It also interprets the 1990 ACRWCs provisions if requested by a
state party, an institution of the Organization of the African Unity, or any other person or
institution recognized by the Organization of the African Unity, or any state party.499
Having a regional monitoring body, which operates within the socio-economic
conditions of Africa, should make African governments more aware of the difficulties in
evading their responsibilities under this regional mechanism.500
The ACERWCs monitoring function operates through the submission of a report by
state parties every three years containing either measures taken towards implementation
information about the implementation of the 1990 ACRWC in the country, or the factors and
difficulties which have prevented the country from fulfilling the obligations contained in the
charter.501 In this regard, countries that are party to both the 1990 ACRWC and to the 1989
CRC are not encumbered with a double reporting obligation, as the 1989 CRC prescribes it to
be an extra burden in article 44,502 because one of the two reports can be used for the other
one and vice versa.503 This double control is intended to make the monitoring of state
obligations more effective.504

497
1990 ACRWC, article 42 a) i).
498
Ibid., article 42 a) ii).
499
Ibid., article 42 c).
500
Lloyd, A., Evolution of the African Charter on the Rights and Welfare of the Child and the African
Committee of Experts: raising the gauntlets, op. cit. note 443, p. 182.
501
Article 43 reads: 1) Every State Party to the present Charter shall undertake to submit to the Committee
through the Secretary-General of the Organization of African Unity, reports on the measures they have adopted
which give effect to the provisions of this Charter and on the progress made in the enjoyment of these rights: a)
within two years of the entry into force of the Charter for the State Party concerned: and b) and thereafter, every
three years. 2) Every report made under this Article shall: a) contain sufficient information on the
implementation of the present Charter to provide the Committee with comprehensive understanding of the
implementation of the Charter in the relevant country; and b) shall indicate factors and difficulties, if any,
affecting the fulfillment of the obligations contained in the Charter. 3) A State Party which has submitted a
comprehensive first report to the Committee need not, in its subsequent reports submitted in accordance with
paragraph I a) of this Article, repeat the basic information previously provided. In this regard, see also: Kaime,
T., The African Charter on the Rights and Welfare of the Child: A Socio-Legal Perspective, op. cit. note 459, p.
143: The Committees powers under the state reporting system are very extensive. The Committees mandate
extends to examining any information that is relevant to the issue of implementing the rights and welfare of the
child.
502
In this regard, article 44 1) and 2) reads: 1) States Parties undertake to submit to the Committee, through the
Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the
rights recognized herein and on the progress made on the enjoyment of those rights a) Within two years of the
entry into force of the Convention for the State Party concerned; b) Thereafter every five years. 2) Reports made
under the present article shall indicate factors and difficulties, if any, affecting the degree of fulfillment of the
obligations under the present Convention. Reports shall also contain sufficient information to provide the
Committee with a comprehensive understanding of the implementation of the Convention in the country
concerned.
503
Lloyd A., A theoretical analysis of the reality of childrens rights in Africa: an introduction to the African
Charter on the Rights and Welfare of the Child, op. cit. note 439, p. 21.
504
Olowu, D., Protecting childrens rights in Africa: a critique of the African Charter on the Rights and Welfare
of the Child, op. cit. note 455, p. 131.
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In recent years, several countries have submitted their initial reports to the ACERWC
and, in every case, the authorities of the countries in question have been quite optimistic about
the treatment of refugee children when, of course, the phenomenon is considered known,
which does not seem the case, for instance, of Niger.505 In Burkina-Faso, most refugee
children have been provided with identity documents and can benefit from a fund called
soins et entretien des rfugis to cover both medical care and school tuition.506 In Senegal
and Cameroon, the situation has been similar.507 In Kenya, children considered a special
vulnerable group are provided with basic medical facilities and education even in camps,
although Kenyan authorities recognized that it is still very difficult to trace family members
and relatives of unaccompanied refugee children.508 In contrast, Uganda seems to have faced
many difficulties in providing refugee children with basic medical and educational facilities
owing mainly to the unfavorable environment within which they live.509 The same happens
in Mali where, in spite of the existence of a specific domestic provision on the equal of
treatment of refugees and nationals in many vital aspects of the daily life,510 difficulties in
detecting and protecting non-accompanied children remain considerable.511

2.4.4 Weaknesses in the enforcement mechanism

The 1990 ACRWCs complaint mechanism is quite accessible to African peoples


because, according to article 44 1), the ACERWC:

505
ACEWRC, Niger, Initial State Report, 2008, p. 37, html document, available at: http://www.acerwc.org/wp-
content/uploads/2011/03/ACERWC-State-report-Niger-initial-French.pdf, accessed 13 October 2012. At the
above-mentioned page, we may read that the phenomenon of refugee children is [u]n phnomne trs peu
connu au Niger.
506
ACERWC, Burkina Faso, Initial State Report, 2006, p. 116, html document, available at:
http://www.acerwc.org/wp-content/uploads/2011/03/ACERWC-State-report-Burkina-Faso-initial-French.pdf,
accessed 10 October 2012.
507
ACERWC, Senegal, Initial, First and Second report, 2009, p. 85, html document, available at:
http://www.acerwc.org/wp-content/uploads/2011/03/ACERWC-State-report-Senegal-initial-first-second-
English.pdf, accessed 10 October 2012; ACERWC, Cameroon, Initial State Report, 2009, p. 50, html document,
available at: http://www.acerwc.org/wp-content/uploads/2011/04/ACERWC-State-report-Cameroon-initial-
French.pdf, accessed 10 October 2012.
508
ACERWC, Kenya, Initial State Report, 2007, p. 76, html document, available at: http://www.acerwc.org/wp-
content/uploads/2011/03/ACERWC-State-report-Kenya-initial-English.pdf, accessed 10 October 2012.
509
ACERWC, Uganda, Initial State Report, 2007, p. 27, html document, available at:
http://www.acerwc.org/wp-content/uploads/2011/03/ACERWC-State-report-Uganda-initial-English.pdf,
accessed 10 October 2012.
510
Mali, Loi n 1998-40 du 20 juillet 1998 portant sur le statut des rfugis [Mali], N 1998-40, 18 May 1998,
article 13: Le bnficiaire du statut de rfugi reoit le mme traitement quun national en ce qui concerne
laccs aux soins mdicaux, au march du travail, la scurit sociale et lducation, notamment pour ce qui
est des frais dinscription et des uvres universitaires .
511
ACERWC, Mali, Initial State Report, 2007, p. 95, html document, available at: http://www.acerwc.org/wp-
content/uploads/2011/03/ACERWC-State-report-Mali-initial-French.pdf,
accessed 10 October 2012.
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[m]ay512 receive communication, from any person, group or non-governmental


organization recognized by the Organization of African Unity, by a Member State, or the
United Nations relating to any matter covered by this Charter.

The individual complaint mechanisms have been considered an important addition


because, as the 1989 CRC does not provide for this enforcement mechanism, the ACERWC
has the possibility to contribute to the well-being of the child by directly receiving
communications, which hold individual states responsible for violating the norms provided in
the 1990 ACRWC.513
As it has been pointed out, the use of the verb may is quite permissive and should
possibly have been replaced by the verb must, as it is less vague, and requires that all
communications be considered in spite of their content,514 although on the other side, to be
pragmatic, we must note that many Africans are unaware of the 1990 ACRWC and, therefore,
about the rights contained in it.
Article 45 of the 1990 ACRWC provides for the ACERWC to appeal to any
appropriate method of investigation in order to protect childrens rights and their
vulnerability, and specifically suggests that the committee check the measures adopted by the
state parties to implement the 1990 ACRWC.515 It has been suggested that both articles 44
and 45 would need to be read together to better understand the situations which would
necessitate investigation by the ACERWC. Submitting a communication against a state party
would entail an investigation by the ACEWRC, in order to evaluate whether the complaint is
admissible or not. The preliminary investigation may then lead to a detailed study of the case
before the ACERWC.516
However, the enforcement mechanism seems to remain quite weak and the ACERWC
has no binding authority although is mandated to protect childrens rights. 517 In effect, in the
absence of a court with compulsory jurisdiction, ACERWC constitutes a body with fragile
monitoring procedures, and elementary forms of information exchange and policy

512
Emphasis added.
513
Lloyd, A., The African regional system for the protection of childrens rights, in: Sloth-Nielsen, J. (edited
by), Childrens Rights in Africa: a Legal Perspective, Aldershot: Ashgate Publishing Limited, 2008, p. 48.
514
Lloyd A., A theoretical analysis of the reality of childrens rights in Africa: an introduction to the African
Charter on the Rights and Welfare of the Child, op. cit. note 439, p. 27.
515
Article 45 1) reads: 1) The Committee may, resort to any appropriate method of investigating any matter
falling within the ambit of the present Charter, request from the States Parties any information relevant to the
implementation of the Charter and may also resort to any appropriate method of investigating the measures the
State Party has adopted to implement the Charter.
516
Lloyd, A., The African regional system for the protection of childrens rights, in: Sloth-Nielsen, J. (edited
by), Childrens Rights in Africa: a Legal Perspective, op. cit. note 513, p. 49.
517
Lloyd A., A theoretical analysis of the reality of childrens rights in Africa: an introduction to the African
Charter on the Rights and Welfare of the Child, op. cit. note 439, p. 32.
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management.518 It is not easy to judge how effective the enforcement mechanisms contained
in the 1990 ACRWC are, also taking into account that an investigation can be made
exclusively with the agreement of the state party. In addition, these norms are dependent on
the extent to which states parties will give effect to any proposals or recommendations at the
national level.519 Moreover, article 45 requires the state party to provide the necessary
logistical and financial support to allow investigations by the ACERWC as part of its
commitment to the charter.520
In the end, the authority of the ACERWC remains debatable because it lacks the power
to impose any form of sanction, and its decisions are not binding for the parties. It can
exclusively make recommendations that are then submitted to the AU Assembly, although the
1990 ACRWC is silent as to what the AU Assembly is able to do with them. Finally, article
44 2) of the 1990 ACRWC provides also for confidentiality in the communication that
ACERWC receives. However, for ACERWC, this confidentiality has been considered more
of a shield to hide behind when it comes to assessing human rights violations of children in
Africa, rather than a means of exposing them. In practice, African governments have used
confidentiality to oversee the monitoring system violating the human rights of children.521

2.4.5 Conclusion

The adoption of the 1990 ACRWC represents a regional response to human rights
concerns, and it reflects the reality of childrens human rights issues in Africa. However, the
nature of the charter can still be considered embryonic, which is also evident from the lack of
any real academic debate on these matters, and, subsequently, lack of consensus on what
518
Ibid., p. 29.
519
In this regard, article 1 1) of the ACRWC reads: 1) Member States of the Organization of African Unity
Parties to the present Charter shall recognize the rights, freedoms and duties enshrined in this Charter and shall
undertake to the necessary steps, in accordance with their Constitutional processes and with the provisions of the
present Charter, to adopt such legislative or other measures as may be necessary to give effect to the provisions
of this Charter. In this regard, as T. Kaime noted: [T]he Charter envisages that state parties to it will
incorporate its provisions in their constitutions or national legislation as well as through policy development and
implementation. See: Kaime, T., The African Charter on the Rights and Welfare of the Child: A Socio-Legal
Perspective, op. cit. note 459, p. 143. About article 1 1), at p. 144, we may read: The singling out of
legislative in article 1 of the Charter is not by accident, but indicates a preference for state-centered measures
that focus on parliamentary processes and the resulting legal structures that enforce childrens rights. Thus, the
main thrust of the formal mechanism is to put in place structures that ensure the legal justiciability of the African
Childrens Charters various principles. This approach is laudable, for it ensures that children are able to claim
their rights at the domestic level and, in case their claims are not satisfied at that level, to take their cases up to
the African Childrens Committee.
520
Lloyd, A., The African regional system for the protection of childrens rights, in: Sloth-Nielsen, J. (edited
by), Childrens Rights in Africa: a Legal Perspective, op. cit. note 513, pp. 49-50.
521
Lloyd A., A theoretical analysis of the reality of childrens rights in Africa: an introduction to the African
Charter on the Rights and Welfare of the Child, op. cit. note 439, p. 26. In this regard, see also: Chirwa, D.M.,
The merits and demerits of the African Charter on the Rights and Welfare of the Child, op. cit. note 440, p.
170.
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childrens rights means in different African cultures. Moreover, and as we have mentioned
above, given the socio-economic conditions on the continent, it is almost impossible for the
majority of countries to fully comply with the rights contained in the 1990 ACRWC.522
It has been observed that the 1990 ACRWC does not represent a mere list of rights but,
rather, it constitutes a different way of viewing children and their relations within and place in
society.523 However, and in spite of the presence of the 1990 ACRWC and the 1989 CRC, the
plight of refugee children in Sub-Saharan Africa is for the most part left to international
NGOs, while both regional and national initiatives are sluggish. It is true that article 23 2)
provides for state cooperation with international organizations in order to guarantee stronger
protection of the child in Africa. Nevertheless, and in spite of several examples given, the
implementation of the norms present in the 1990 ACRWC is still considered insufficient to
really ameliorate the condition of the African refugee children. 524 In effect, in poor
economies, such as in the vast majority of the countries in Sub-Saharan Africa, the legal
protection of children is marked by many lacunae. Apart from this legal protection often
being inaccessible to children themselves and their families, it is also very difficult to
inculcate a culture of respect for the rights and welfare of the child and, consequently, to raise
the legitimacy of childrens rights.525 Far from constituting a panacea that solves all the
problems of children refugees in the region, the ACRWC remains an instrument of great
potential to protect a category of very vulnerable individuals.526

522
Kaime, T., The protection of refugee children under the African Human Rights System: finding durable
solutions in International Law, op. cit. note 457, p. 193. In this regard, see also: Lloyd A., A theoretical
analysis of the reality of childrens rights in Africa: an introduction to the African Charter on the Rights and
Welfare of the Child, op. cit. note 439, p. 32. For a national example of difficult practice in the protection of
minors see, for instance: Fritsch, C.; Johnson, E.; Juska, A., The plight of Zimbabwean unaccompanied minors
in South Africa: a call for comprehensive legislative action, in: Denver Journal of International Law and
Policy, vol. 38, 2009-2010, pp. 623-658. At pp. 657-658 the authors commented: While [the unaccompanied
refugee minors] came to South Africa seeking food, work and education, the South African government has yet
to respond to their needs in a meaningful manner. Moving forward, it is critical that the South African
government provide ongoing protection and services to this vulnerable population. [] [T]he governments
practices must reflect an intent to protect unaccompanied refugee minors from exploitation. [] Until [the]
changes are made, the country cannot create a sustainable solution for Zimbabweans unaccompanied refugee
minors or future unaccompanied refugee minors populations.
523
Olowu, D., Protecting childrens rights in Africa: a critique of the African Charter on the Rights and Welfare
of the Child, op. cit. note 455, p. 35.
524
Kaime, T., The protection of refugee children under the African Human Rights System: finding durable
solutions in International Law, op. cit. note 457, p. 194.
525
Kaime, T., The African Charter on the Rights and Welfare of the Child: A Socio-Legal Perspective, op. cit.
note 459, p. 144.
526
Ibid., p. 185. However, as an another scholar contended: The eve of the 30th anniversary of the adoption of
the African Charter on Human and Peoples Rights presents the ideal opportunity to reassess, consolidate and
streamline rights protection on the continent. As part of this process, serious consideration ought to be given to
the question of whether the rights of African children are adequately served by the status quo or whether they
might be better served by the abolition of the institution of the African Committee of Experts and the reassigning
of the tasks entrusted by the ACRWC to it, to the African Commission on Human and Peoples Rights. See:
Bekker, G., The African Committee of Experts on the Rights and Welfare of the Child, in: Ssenyonjo, M.
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2.5 The protection of another vulnerable category of individuals: the 2003 Protocol to the
African Charter on Human and Peoples Rights on the Rights of Women in Africa

2.5.1 An introduction to the protocol

As the 2003 Maputo Protocol527 contends, the situation of women in Sub-Saharan


Africa is not a good one.528 The protocol, adopted by the AU Assembly in Maputo,
Mozambique in July 2003,529 constitutes a legally binding supplement to the 1981 Banjul
Charter. According to article 29 1),530 the 2003 Maputo Protocol entered into force on 25
November 2005, after the ratification of Togo and 47 countries in Africa have signed the
instrument to date,531 33 of which have already ratified it. The fact that this protocol has
obtained the number of ratifications to enforce it in a very short period is significant in that
shows awareness in Africa of the need for a regionally specific legal framework for the
protection of womens rights.532
If we consider only Sub-Saharan Africa, we note that this instrument has not been even
signed by just two countries. But, if the presence of Eritrea in this short list is not so striking
impressive, considering that this country is still not part of several human rights treaties, 533 the
fact that Botswana is the other country leaves the author a bit perplexed, bearing in mind that
Botswana is famous in Africa for its high-standard of human rights protection. For instance,
Botswana has one of the oldest national legislations on refugee protection, dating back to

(edited by), The African Regional Human Rights System: 30 Years after the African Charter on Human and
Peoples Rights, Leiden/Boston: Martinus Nijhoff Publishers, 2012, p. 263.
527
AU, Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, 11
July 2003, as adopted by the Meeting of Ministers, Addis Ababa, Ethiopia on 28 March 2003, and the African
Union Assembly at the second summit of the African Union in Maputo, Mozambique, 21 July 2003.
528
Preamble of the 2003 Maputo Protocol: [The States Parties] concerned that despite the ratification of the
African Charter on Human and Peoples Rights and other international human rights instruments by the majority
of States Parties, and their solemn commitment to eliminate all forms of discrimination and harmful practices
against women, women in Africa still continue to be victims of discrimination and harmful practices.
529
In this regard, as R. Murray noted: [T]here is a sense that there was concern that womens rights would be
accorded less attention by the ACHPR if anything other than a legally binding document was considered. Having
a Protocol would at least make the Commission take note. See: Murray, R., Womens rights and the
Organization of African Unity and African Union: the Protocol on the Rights of Women in Africa, in: Buss, D.;
Manji, A. (edited by), International Law: Modern Feminist Approaches, Oxford/Portland OR-: Hart Publishers,
2005, p. 261.
530
Article 29 1) of the 2003 Maputo Protocol reads: 1) This Protocol shall enter into force thirty (30) days after
the deposit of the fifteenth (15) instrument of ratification.
531
1 September 2012.
532
Ocran, C., The Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in
Africa, in: African Journal of International and Comparative Law, vol. 15, 2007, p. 147.
533
As we have mentioned above, for instance, Eritrea is neither part of the 1951 Geneva Convention, nor of the
1967 New York Protocol and the 1969 OAU Convention. However, Eritrea is part to the 1979 CEDAW since 5
September 1995.
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1968, although recently, human rights advocates have recommended that Botswana
authorities strive for more fair treatment of women.534
According to one author, the 2003 Maputo Protocol seems to have been adopted for
four main goals: first, to improve the protection guaranteed to women under the 1981 Banjul
Charter.535 Second, to elaborate a specific instrument to protect African women that could fill
the gap present in their current protection on the continent.536 Third, a specific African legal
instrument could consolidate international standards for African states, allowing African
governments to fulfill the engagements to which they have subscribed. Finally, the protocol
offers an enforced mechanism for the present obligations to protect women on the
continent.537

2.5.2 An analysis of the 2003 Maputo Protocols provisions regarding refugee women and
their interrelation with the other main instruments protecting womens rights

After the adoption of the 2003 Maputo Protocol, the AU Assembly also adopted a 2004
AU Solemn Declaration which, although it does not represent a binding instrument for states,
urged states to ratify the 2003 Maputo Protocol, which accelerated its rate of ratification.538
The 2003 Maputo Protocol is not considered a means of correcting normative deficiencies in

534
International Federation for Human Rights, The Government of Botswana should fully respect the rights of
women and minorities and move towards the abolition of death penalty, 11 April 2008, html document,
available at: http://www.unhcr.org/refworld/docid/482c5bcbc.html, accessed 30 September 2012. Botswana, like
Eritrea, is part to the 1979 CEDAW since 13 August 1996.
535
In detail, for instance article 18 3) of the 1981 Banjul Charter reads: 3) The State shall ensure the elimination
of every discrimination against women and also ensure the protection of the rights of the woman and the child as
stipulated in international declarations and conventions. In this regard, see also: Chirwa, D.M., Reclaiming
(wo)manity: the merits and demerits of the African Protocol on Womens Rights, in: Netherlands International
Law Review, vol. 53, 2006, p. 68: The African Womens Protocol was adopted principally to reinforce the
provisions of the African Charter, which were considered as lending insufficient protection to womens rights.
536
In this regard, see also: Davis, K., The emperor is still naked: why the Protocol on the Rights of Women in
Africa leaves women exposed to more discrimination, in: Vanderbilt Journal of Transnational Law, vol. 42,
2009, p. 952.
537
Murray, R., Womens rights and the Organization of African Unity and African Union: the Protocol on the
Rights of Women in Africa, op. cit. note 529, pp. 263-264.
538
Viljoen, F., An introduction to the Protocol to the African Charter on Human and Peoples Rights on the
Rights of Women in Africa, in: Washington and Lee Journal of Civil Rights and Social Justice, vol. 11, 2009-
2010, p. 15. See: AU Assembly, Solemn Declaration on Gender Equality in Africa, Document No.
Assembly/AU/Decl.12 (III), 6-8 July 2004, especially paragraphs 6 and 9: [We, the Heads of State and
Government of Member States of the African Union agree to]: 6) Ensure the active promotion and protection of
all human rights for women and girls including the right to development by raising awareness or by legislation
where necessary; 9) Undertake to sign and ratify the Protocol to the African Charter on Human and Peoples
Rights on the Rights of Women in Africa by the end of 2004 and to support the launching of public campaigns
aimed at ensuring its entry into force by 2005 and usher in an era of domesticating and implementing the
Protocol as well as other national, regional and international instruments on gender equality by all States
Parties.
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existing human rights law regarding the protection of women, but is more a response to the
lack of implementation of these provisions.539
This regional initiative should be considered in conjunction with the Gender Units
established by the sub-regional economic organizations, of which the 2008 SADC Protocol is
the most significant. The objective of this framework, although not yet into force according to
article 41,540 is:

[T]o provide for the empowerment of women, to eliminate discrimination and to


achieve gender equality and equity through the development and implementation of gender
responsive legislation, policies, programs and projects.541

Moreover, compared to the 2003 Maputo Protocol, the 2008 SADC Protocol has been
considered more coherent in the formulation of its provisions, possibly due to its few numbers
and the relative homogeneity of the countries adhering to it.542
When the 2003 Maputo Protocol was drafted and adopted, the two principal legal
instruments of the protection of women in Sub-Sahara Africa, the 1981 Banjul Charter and
the 1979 CEDAW543 had already entered into force. Both of them had already enjoyed a

539
Banda, F., Blazing a trail: the African Protocol on Womens Rights comes into force, in: Journal of African
Law, vol. 50, 2006, p. 77.
540
Article 41 of the 2008 SADC Protocol reads: This Protocol shall enter into force thirty (30) days after the
deposit of the Instruments of Ratification by two-thirds of the Member States. As of 1 November 2012, nine
countries out of 15 have already ratified the document with South Africa that is in an advanced status of
ratification. The nine countries are: Angola, DRC, Lesotho, Mozambique, Namibia, Seychelles, Tanzania,
Zambia, Zimbabwe. However, according to article 41 of the protocol: This protocol shall enter into force thirty
(30) days after the deposit of the Instruments of Ratification by two-thirds of the Member States. This clearly
implies that at least ten member states have to ratify the protocol in order for it to be legally binding. About
SADC: In 1992, Heads of Government of the region agreed to transform the Southern African Coordinating
Conference (SADCC) into the Southern African Development Community (SADC), with the focus on
integration of economic development. SADC members are Angola, Botswana, DR Congo, Lesotho,
Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia
and Zimbabwe. SADCC was formed to advance the cause of national political liberation in Southern Africa, and
to reduce dependence particularly on the then apartheid era South Africa; through effective coordination of
utilisation of the specific characteristics and strengths of each country and its resources. SADCC objectives went
beyond just dependence reduction to embrace basic development and regional integration [] The SADC
Treaty was signed to establish SADC as the successor to the SADCC. This Treaty sets out the main objectives of
SADC - to achieve development and economic growth, alleviate poverty, enhance the standard and quality of
life of the peoples of Southern Africa and support the socially disadvantaged through regional integration. These
objectives are to be achieved through increased regional integration, built on democratic principles, and
equitable and sustainable development. See the website of SADC, html document, available at:
http://www.sadc.int/about-sadc/overview/history-and-treaty/, accessed 1 December 2012.
541
Article 3 a) of the 2008 SADC Protocol.
542
Viljoen, F., An introduction to the Protocol to the African Charter on Human and Peoples Rights on the
Rights of Women in Africa, op. cit. note 538, p. 28.
543
UNGA, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December
1979, United Nations, Treaty Series, vol. 1249, p. 13.
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significant number of ratifications in Sub-Saharan Africa,544 the latter that finds one of its
pivotal axes in article 1. This article defines the expression discrimination against
women,545 which is not so distinguishable from that provided by the 2003 Maputo
Protocol,546 and has been considered to fail to comply with African womens needs.547
Consequentially, considering the similarity in its wording, the definition of discrimination
against women contained in the 2003 Maputo Protocol has been also considered quite
disappointing, considering that this duty was imposed only on state parties of the protocol and
did not take into consideration, for instance, non-state actors.548
Concerning the specific issue of refugees, the 2003 Maputo Protocol seems not to be
completely consistent with the 1981 Banjul Charter in its omission of two very important
characteristics of this second instrument. These two elements are: firstly, the fact that right-
bearers are also peoples and not exclusively individuals, and secondly, the fact that
alongside individual rights, the 1981 Banjul Charter also lists individual duties, 549 while the
2003 Maputo Protocol lacks of this basic idea.550
Probably conscious of the fact that assigning the term people to women can be too
vague, the 2003 Maputo Protocol nevertheless reaffirms that several of the peoples rights
established by the 1981 Banjul Charter are applicable to women. One precise example is in
article 10 of the 2003 Maputo Protocol, whose inspiration is drawn directly from article 23 1)
of the 1981 Banjul Charter.551 Article 10 proclaims promoting and maintaining the peace by
participation in the management of the refugee situation a right, affirming that:

544
As of 1 July 2012, the 1981 Banjul Charter has been ratified by 48 countries in Sub-Saharan Africa while the
1979 CEDAW has been ratified by 46 countries in the same region.
545
In full, article 1 of the 1979 CEDAW reads: For the purposes of the present Convention, the term
discrimination against women shall mean any distinction, exclusion or restriction made on the basis of sex
which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other field.
546
Article 1 f) of the 2003 Maputo Protocol reads: Discrimination against women means any distinction,
exclusion or restriction or any differential treatment based on sex and whose objectives or effects compromise or
destroy the recognition, enjoyment or the exercise by women regardless of their marital status of human rights
and fundamental freedoms in all spheres of life.
547
Davis, K., op. cit. note 536, p. 958. In this regard, J. Oloka-Onyango pointed out: From the preamble to
definition of discrimination 1979 CEDAW adopts standard that permits governments to engage in behavior that
is patently inimical to the status of women while not necessarily being illegal within the terms established by the
instrument. See: Oloka-Onyango, J., The plight of the larger half: human rights, gender violence and the legal
status of refugee and internally displaced women in Africa, in: Denver Journal of International Law and Policy,
vol. 24, 1996, pp. 355-356.
548
Chirwa, D.M., Reclaiming (wo)manity: the merits and demerits of the African Protocol on Womens
Rights, op. cit. note 535, p. 74.
549
Ibid., pp. 94-95.
550
Ibid., p. 91.
551
As we have already seen supra, in this chapter, article 23 1) of the 1981 Banjul Charter reads: All peoples
shall have the right to national and international peace and security. The principles of solidarity and friendly
relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of
African Unity shall govern relations between States.
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1) Women have the right to a peaceful existence and the right to participate in the
promotion and maintenance of peace. 2) States Parties shall take all appropriate measures to
ensure the increased participation of women: [] c) in the local, national, regional,
continental and international decision making structures to ensure physical, psychological,
social and legal protection of asylum seekers, refugees, returnees and displaced persons, in
particular women; d) in all levels of the structures established for the management of camps
and settlements for asylum seekers, refugees, returnees and displaced persons, in particular,
women.

In addition, paragraph 3 of article 10 clearly provides for states parties to adopt the
necessary measures to reduce military spending in order to privilege investments in promotion
of womens rights.552 This article has also revealed its importance in light of the adoption of
UNSC Resolution No. 1325 on Women, Peace and Security, 553 which clearly calls for respect
of the humanitarian character of refugee camps as well as of the particular needs of women
there in paragraph 12.554
Moreover, although the 2003 Maputo Protocol has been conceived of as more of an
addition to the 1981 Banjul Charter, rather than as a response to the 1979 CEDAW,555 a
comparison of this last instrument with the first one highlights that the 2003 Maputo Protocol,
to reinforce the safeguard of the right to peace established in its article 10, provides for the
protection of women in armed conflict and, more specifically, for both women asylum-
seekers and women refugees, against all forms of violence.556 Unfortunately, according to
the protocol, this duty involves only states parties excluding, for instance, non-state actors.557
In addition, it ensures that these acts are considered a form of genocide, war crimes, or crimes

552
Article 10 3) of the 2003 Maputo Protocol reads: States Parties shall take the necessary measures to reduce
military expenditure significantly in favor of spending on social development in general, and the promotion of
women in particular.
553
Banda, F., op. cit. note 539, p. 81.
554
UNSC, Resolution on Women, Peace and Security, 31 October 2000, No. 1325, S/RES/1235. In full, its
paragraph 12 reads: [The UNSC] calls upon all parties to armed conflict to respect the civilian and humanitarian
character of refugee camps and settlements, and to take into account the particular needs of women and girls,
including in their design, and recalls its resolutions 1208 (1998) of 19 November 1998 and 1296 (2000) of 19
April 2000.
555
Viljoen, F., An introduction to the Protocol to the African Charter on Human and Peoples Rights on the
Rights of Women in Africa, op. cit. note 538, p. 21.
556
In full, article 11 3) of the 2003 Maputo Protocol reads: 3) States Parties undertake to protect asylum seeking
women, refugees, returnees and internally displaced persons, against all forms of violence, rape and other forms
of sexual exploitation, and to ensure that such acts are considered war crimes, genocide and/or crimes against
humanity and that their perpetrators are brought to justice before a competent criminal jurisdiction.
557
Chirwa, D.M., Reclaiming (wo)manity: the merits and demerits of the African Protocol on Womens
Rights, op. cit. note 535, p. 86.
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against humanity, and hold the persons responsible for these actions to justice.558 Sexual
violence during conflicts, considered a crime against humanity, war crimes, and genocide, is
one example of this kind of acts of violence.559 In any case, the 2003 Maputo Protocol does
not define these crimes, providing that states parties will act in accordance with the
obligations incumbent upon them under international humanitarian law.560
Article 11 of the 2003 Maputo Protocol is of particular significance also because, as
other articles present in the protocol,561 it takes into consideration the category of girl-
children-including refugees-, and their interest in not being involved in any kind of armed
conflict.562 In this case, it is evident that the statement in article 11 3) of the 2003 Maputo
Protocol reinforces the content of the provision of article 22 2) of the 1990 ACRWC.563 It
constitutes a higher standard of protection of childrens rights concerning their recruitment as
soldiers and their participation in conflicts than its homologous provisions in the 1989 CRC,
which, for instance, puts fifteen as an age limit to not take direct part in hostilities while the
two African instruments set the age limit at eighteen.564
In effect, the 1990 ACRWC presents other provisions concerning specific rights for girl
children and women as well, for example, article 3 on non-discrimination,565 article 11 3) e)
on education,566 and article 14 2) e) on health and health service.567

558
In this regard see, for instance: Ebeku, K.S.A., A new dawn for African women? Prospects of Africas
Protocol on Womens Rights, in: Sri Lanka Journal of International Law, vol. 16, 2004, p. 127.
559
For an analysis of the sexual violence as a crime against humanity, war crime and genocide, see, for instance:
Dyani, N., Protocol on the Rights of Women in Africa: protection of women from sexual violence during armed
conflict, in: African Human Rights Law Journal, vol. 6, 2006, pp. 168-180.
560
Article 11 2) of the 2003 Maputo Protocol.
561
See, for instance: article 12 1) c) (Right to education and training), article 13 g) (Economic and Social
Welfare Rights).
562
In detail, article 11 4) of the 2003 Maputo Protocol reads: 4) States Parties shall take all necessary measures
to ensure that no child, especially girls under 18 years of age, take a direct part in hostilities and that no child is
recruited as a soldier.
563
In detail, article 22 2) of the 1990 ACRWC reads: 2) States Parties to the present Charter shall take all
necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from
recruiting any child.
564
In detail, article 38 2) and 3) of the 1989 CRC reads: 2) States Parties shall take all feasible measures to
ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities. 3) States
Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed
forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained
the age of eighteen years, States Parties shall endeavor to give priority to those who are oldest.
565
Article 3 of the ACRWC clearly prohibits discrimination based on sex.
566
Article 11 3) e) of the ACRWC reads: 3) States Parties to the present Charter shall take all appropriate
measures with a view to achieving the full realization of this right and shall in particular: [...] e) take special
measures in respect of female, gifted and disadvantaged children, to ensure equal access to education for all
sections of the community.
567
Article 14 2) e) of the ACRWC reads: States Parties to the present Charter shall undertake to pursue the full
implementation of this right and in particular shall take measures: [...] to ensure appropriate health care for
expectant and nursing mothers. Other examples of this kind are: article 18 2) on protection of the family, article
21 2) on protection against harmful and social and cultural practices, and article 30 1) on children of imprisoned
mothers.
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2.5.3 Respecting the protocol: state reporting procedures

According to article 26 1) of the 2003 Maputo Protocol, states parties are asked to allow
inspection of their observance of the protocol through regular submission of state reports to be
examined by the ACHPR.568 As states parties accepted the 2003 Maputo Protocol as an
addition to the 1981 Banjul Charter, it is assumed that they report on the measures adopted to
implement the rights contained in the 2003 Maputo Protocol at the same time as their periodic
reports under article 62 of the 1981 Banjul Charter.569 The provision contained in the protocol
is included as a reminder to states to submit periodical reports, but states parties to the two
instruments may submit only one report dealing separately with both instruments. Article 26
1) of the 2003 Maputo Protocol visibly shows that state reporting constitutes a means to
monitor the implementation of the protocol.570
However, and in spite of the double provisions, both non-reporting and late submission
of reports remain a significant problem in Sub-Saharan Africa571 given also that article 26 of
the 2003 Maputo Protocol is silent with respect to which institutions should review the
reports.572 The 24th Ordinary Session of the AU Assembly, however, entrusted the ACHPR
with this task, as well as with the responsibility to prepare guidelines regarding the content
and the form of the periodic reports.573
The 2003 Maputo Protocol does not add any supplementary independent mechanism to
its enforcement, preferring to refer to the mechanisms already existing under the 1981 Banjul

568
Article 26 1) of the 2003 Maputo Protocol reads: 1) States Parties shall ensure the implementation of this
Protocol at national level, and in their periodic reports submitted in accordance with article 62 of the African
Charter, indicate the legislative and other measures undertaken for the full realization of the rights herein
recognized.
569
Article 62 of the 1981 Banjul Charter reads: Each state party shall undertake to submit every two years, from
the date the present Charter comes into force, a report on the legislative or other measures taken with a view to
giving effect to the rights and freedoms recognized and guaranteed by the present Charter.
570
Chirwa, D.M., Reclaiming (wo)manity: the merits and demerits of the African Protocol on Womens
Rights, op. cit. note 535, p. 89. On the question of the cumulative report, at ibid. the author pointed out that:
One may also assume that separate reports are not intended in respect of the African Womens Protocol but
rather that it will be a combined report with that dealing with the provisions of the African Charter. If this
assumption is correct, a substantial revision of the reporting guidelines under the African Charter is called for to
ensure that states report more substantively on the implementation of the provisions of the Protocol.
571
Viljoen, F., An introduction to the Protocol to the African Charter on Human and Peoples Rights on the
Rights of Women in Africa, op. cit. note 538, p. 35.
572
Dyani, N., op. cit. note 559, p. 183.
573
AU, Assembly of Heads of State and government, Resolution on the African Commission on Human and
Peoples Right, Resolution No. AHG/Res.176 (XXIV), 25-28 May 1988, paragraph 5: [The Assembly]
endorses the recommendations of the Commission relating to: [...] c) periodic reports. In effect, during its third
ordinary session from 18 to 28 April 1988 the ACHPR adopted the recommendation No.
AHCPR/Recom.3(III)88: Recommendation on Periodic Reports (1988), which [r]ecommended that the
Assembly of Heads of State and Government: 1) Mandate the General Secretariat of the OAU to receive the said
reports and communicate them to the Commission without delay; 2) Specifically entrust it with the task of
examining the periodic reports submitted by the states parties pursuant to article 62 and other relevant provisions
of the African Charter on Human and Peoples Rights; 3) Authorize it to give the States Parties general
guidelines on the form and the contents of the said periodic reports.
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Charter.574 This choice reflects a realistic approach and may have been dictated by several
factors such as the fear of a too massive African institutional proliferation.575
The only reference made by the protocol to an additional mechanism for its enforcement
is mentioned in article 25, requiring states to provide appropriate remedies for any violation
of the freedoms and rights of women recognized in the protocol.576
Apart from the explicit provision requiring states to submit reports on the measures
adopted to give effect to the 2003 Maputo Protocol rights, this instrument does not extend the
scope of the ACHPR protective mandate. Article 27 of the protocol provides that the
AfCHPR will [b]e seized with matters of interpretation-577 arising from the application or
implementation of this Protocol, whereby the ACHPR would act in the AfCHPRs place
until this latter would be established, which occurred in 2004, while the protocol came into
force only one year later in 2005- making the specification effectively useless.578 The
expression matters of interpretation is not very clear, however, assuming that this article
grants the power to receive communications claiming violations of the 2003 Maputo Protocol
to the AfCHPR, in compliance with the Protocol to the African Charter on Human and
Peoples Rights Establishing the African Court on Human and Peoples Rights.579
However, in the case of sexual violence against women and refugee women during
conflict, for instance, the expression matters of interpretation would mean that the AfCHPR

574
Murray, R., Womens rights and the Organization of African Unity and African Union: the Protocol on the
Rights of Women in Africa, op. cit. note 529, pp. 269-270.
575
Viljoen, F., An introduction to the Protocol to the African Charter on Human and Peoples Rights on the
Rights of Women in Africa, op. cit. note 538, p. 39.
576
Article 25 of the 2003 Maputo Protocol reads: States Parties shall undertake to: provide for appropriate
remedies to any woman whose rights or freedoms, as herein recognized, have been violated; ensure that such
remedies are determined by competent judicial, administrative or legislative authorities, or by any other
competent authority provided for by law.
577
Emphasis added.
578
Article 32 of the 2003 Maputo Protocol reads: Pending the establishment of the African Court on Human
and Peoples Rights, the African Commission on Human and Peoples Rights shall be seized with matters of
interpretation arising from the application and implementation of this Protocol. The African Court on Human
and Peoples Rights (African Court) was established by the Protocol to the African Charter on Human and
Peoples Rights, which was adopted by Member States of the then Organization of African Unity (OAU) in
Ouagadougou, Burkina Faso in June 1998. The Protocol entered into force on 25 January 2004. For this
information, see: http://www.african-court.org/en/court/about-the-court/institutional-background/, accessed 8
September 2012. In this regard, an author clarified: [O]n paper at least, Africa now has two human rights
courts: the African Court on Human and Peoples Rights, which, at the time of writing by July 2011, had not yet
decided any case on merits [], and the Merged Court (the African Court of Justice and Human Rights),
which will replace it once the Merged Protocol enters into force. See: Muigai, G., From the African Court on
Human and Peoples Rights to the African Court of Justice and Human Rights, in: Ssenyonjo, M. (edited by),
The African Regional Human Rights System: 30 Years after the African Charter on Human and Peoples Rights,
Leiden/Boston: Martinus Nijhoff Publishers, 2012, p. 281.
579
Chirwa, D.M., Reclaiming (wo)manity: the merits and demerits of the African Protocol on Womens
Rights, op. cit. note 535, p. 90. The AU Protocol to the African Charter on Human And Peoples Rights on the
Establishment of an African Court on Human and Peoples Rights has been adopted on the 10 of June 1998 and
entered into force on 25 January 2004 according to its article 34 3) reading: 3) The Protocol shall come into
force thirty days after fifteen instruments of ratification or accession have been deposited. As of 15 July 2012,
23 countries of the Sub-Saharan Africa have ratified this protocol.
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would be legally empowered to condemn states for violations of international humanitarian


law as is provided in the 1949 Geneva Conventions, the two relative, additional 1977
Protocols,580 as well as the 1948 Genocide Convention.581
During the examination of state reports under the 1981 Banjul Charter, in practice, the
ACHPR typically leaves questions about womens rights to the Special Rapporteur on the
Rights of Women,582 who usually makes inquiries about womens rights under the 2003
Maputo Protocol, as well.583
It is clear that, under article 46 the 1981 Banjul Charter, the ACHPR can also undertake
any appropriate method of investigation584 that might be necessary regarding also the rights
enshrined in the 2003 Maputo Protocol, since the ACHPR is competent to undertake
investigation of complaints received about the violation of rights of a state party to the 2003
Maputo Protocol. However, to date,585 no such investigation has been undertaken.
To conclude our brief overview of the protection of refugee women in Sub-Saharan, we
highlight that the CEDAW Committee,586 in its documents, such as the general comments
provided by article 21,587 have also dealt with the plight of the refugee women several times

580
To date, 1 October 2012, all the countries in Sub-Saharan Africa are parties of the four 1949 Geneva
Conventions while for the two 1977 Protocols the situations is slight different, with Eritrea and Somalia that are
parties to none of them while Angola is party to the first but not to the second. For the situation of South Sudan,
see: supra, note xix.
581
Van der Mei, A.P., The new African Court on Human and Peoples Rights: towards an effective human
rights protection mechanism for Africa?, in: Leiden Journal of International Law, vol. 18, 2005, p. 119.
582
The ACHPR appointed the Special Rapporteur on the Rights of Women in Africa through the resolution No.
ACHPR/res.38 (XXV) 26 April-5 May 1999, retroactively as from October 1998. In detail, paragraph 2 of
his/her mandate is: [T]o assist African governments in the development and implementation of their policies of
promotion and protection of the rights of the women in Africa, particularly in line with the domestication of the
newly entered into force Protocol to the African Charter on Human and Peoples Rights, relative to the Rights of
Women in Africa and the general harmonization of national legislation to the rights guaranteed in the Protocol.
The renewal of the mandate of the Special Rapporteur has been ratified by the ACHPRs resolution No.
ACHPR/res.78 (XXXVIII)05 on the Renewal of Term of the Special Rapporteur on the Rights of Women in
Africa.
583
Viljoen, F., An introduction to the Protocol to the African Charter on Human and Peoples Rights on the
Rights of Women in Africa, op. cit. note 538, p. 36.
584
In full, article 46 of the 2003 Banjul Charter reads: The Commission may resort to any appropriate method
of investigation; it may hear from the Secretary General of the Organization of African Unity or any other person
capable of enlightening it.
585
15 August 2012.
586
According to article 17 1) of the 1979 CEDAW: 1) For the purpose of considering the progress made in the
implementation of the present Convention, there shall be established a Committee on the Elimination of
Discrimination against Women (hereinafter referred to as the Committee) consisting, at the time of entry into
force of the Convention, of eighteen and, after ratification of or accession to the Convention by the thirty-fifth
State Party, of twenty-three experts of high moral standing and competence in the field covered by the
Convention. The experts shall be elected by States Parties from among their nationals and shall serve in their
personal capacity, consideration being given to equitable geographical distribution and to the representation of
the different forms of civilization as well as the principal legal systems. For more information about the
CEDAW Committee, see: http://www.un.org/womenwatch/daw/cedaw/committee.htm, accessed 25 October
2012.
587
Article 21 of the 1979 CEDAW reads: 1) The Committee shall, through the Economic and Social Council,
report annually to the General Assembly of the United Nations on its activities and may make suggestions and
general recommendations based on the examination of reports and information received from the states parties.
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in connection with the provisions of the 1979 CEDAW. This has happened, for instance, with
reference to article 12 on women and health588 -situation that also concerns refugee women;
and the 1992 recommendation, which argues that:

States parties should establish or support services for victims of family violence, rape,
sex assault and other forms of gender-based violence, including refuges, specially trained
health workers, rehabilitation and counseling.589

In addition, the problem of refugee women has been of concern in the CEDAW
Committees comments on different situations in various Sub-Saharan African countries,
comments following the reports established in article 18 of the convention,590 such as in
Kenya where the CEDAW Committee was concerned about the situation of women in
camps,591 in Mozambique,592 and in Rwanda.593

Such suggestions and general recommendations shall be included in the report of the Committee together with
comments, if any, from states parties. 2) The Secretary-General of the United Nations shall transmit the reports
of the Committee to the Commission on the Status of Women for its information.
588
CEDAW Committee, CEDAW General Recommendation No. 24: Article 12 of the Convention (Women and
Health), 1999, document No. A/54/38/Rev.1, chap. I, paragraphs 6 and 16: 6) While biological differences
between women and men may lead to differences in health status, there are societal factors that are determinative
of the health status of women and men and can vary among women themselves. For that reason, special attention
should be given to the health needs and rights of women belonging to vulnerable and disadvantaged groups, such
as migrant women, refugee and internally displaced women, the girl child and older women, women in
prostitution, indigenous women and women with physical or mental disabilities, 16) States parties should
ensure that adequate protection and health services, including trauma treatment and counseling, are provided for
women in especially difficult circumstances, such as those trapped in situations of armed conflict and women
refugees. Emphasis added.
589
CEDAW Committee, CEDAW General Recommendations Nos. 19 and 20, adopted at the Eleventh Session,
1992 (contained in Document A/47/38), 1992, document No. A/47/38, paragraph 24 k).
590
Article 18 of the 1979 CEDAW reads: 1) States parties undertake to submit to the Secretary-General of the
United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other
measures which they have adopted to give effect to the provisions of the present Convention and on the progress
made in this respect: a) within one year after the entry into force for the state concerned; b) Thereafter at least
every four years and further whenever the Committee so requests. 2) Reports may indicate factors and
difficulties affecting the degree of fulfillment of obligations under the present Convention.
591
CEDAW Committee, Concluding Comments of the Committee on the Elimination of Discrimination against
Women: Kenya, 10 August 2007, document No. CEDAW/C/KEN/CO/6, paragraph 25: While commending the
State party for its efforts to host refugees from neighboring countries, the Committee expresses concern about
the lack of information provided by the State party about refugee women in camps in Kenya and about internally
displaced people, many of whom are women. The Committee is particularly concerned at information about
womens inadequate protection from and redress for all forms of violence in communities of refugees and
internally displaced people and the apparent impunity of the perpetrators of such violence.
592
CEDAW Committee, Concluding Comments, Mozambique, 11 June 2007, document No.
CEDAW/C/MOZ/CO/2, paragraph 42: [T]he Committee also expresses concern regarding the particular
vulnerabilities of women refugees and internally displaced persons.
593
CEDAW Committee, Draft concluding observations of the Committee on the Elimination of Discrimination
against Women: Rwanda, 12 February 2009, document No. CEDAW/C/RWA/CO/6, paragraph 39: The
Committee expresses concern at the situation of refugee women and women returnees, including women with
disabilities, displaced by violence and conflict, in particular in view of their precarious living conditions in
camps where they are at risk of sexual and other forms of violence and lack access to health care, education and
economic opportunities.
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2.5.4 Conclusion

Although in force since 2005, some scholars are skeptical, as to whether the 2003
Maputo Protocol will really help the integration of womens rights into the 1981 Banjul
Charter and AU structures.594 In addition, it has also been considered doubtful that states
parties are able to speedily incorporate the terms of the protocol into their national legal
systems when the provisions are not directly applicable domestically.595 More generally, there
is significant concern as to how the protocol could be implemented,596 given that, at times,
several rights provided in the 2003 Maputo Protocol are blatantly opposite to rooted cultural,
national traditions.597 In effect, the protocols approach recognizes that equality between
women and men, even if refugees and hence united, in Sub-Saharan Africa is not possible
unless certain cultural and traditional attitudes and stereotypes can be corrected.598
In addition, the majority of the provisions contained in the 2003 Maputo Protocol,
including the ones concerning the situation of refugee women, seem to be not quite attainable
now if we consider the present conditions in many countries in the region.599 Furthermore, the
Protocol fails to recognize several rights, deemed as particularly relevant for refugees in Sub-
Saharan Africa, such as the right to a fair trial, and the rights of convicted and detained
women.600
However, article 31 of the 2003 Maputo Protocol is quite clear in trying to privilege the
conditions of women that could have been assured more favorably by other binding legal
instruments.601 The protection of womens rights, once again, is reaffirmed as the theoretical
supreme interest of the protocol.
Also due to the fact that it is based on the presumption that women rights, the
importance of the 2003 Maputo Protocol as a legal instrument may not be given effective

594
Murray, R., Womens rights and the Organization of African Unity and African Union: the Protocol on the
Rights of Women in Africa, op. cit. note 529, p. 272.
595
Ocran, C., op. cit. note 532, p. 152.
596
Davis, K., op. cit. note 536, p. 963.
597
Ibid., p. 977. For instance, see also: Ebeku, K.S.A., op. cit. note 558, pp. 130-131, where the author made a
few examples of practices still prevalent in several African countries, clashing with the letter of the 2003 Maputo
Protocol. Among these examples, the author cited the female genital mutilation in Tanzania and the practice of
succession unfavorable to women in Uganda. About the phenomenon of the genital mutilation in Sub-Saharan
Africa see also what it has been said supra, in the General Introduction of this study.
598
Chirwa, D.M., Reclaiming (wo)manity: the merits and demerits of the African Protocol on Womens
Rights, op. cit. note 535, p. 89. And at p. 95 the author pointed out that: [t]he African Womens Protocol
deserves merit for tackling explicitly some cultural and traditional issues, that have long raised human rights
concerns including domestic violence, female genital mutilation, and child marriages.
599
Davis, K., op. cit. note 536, pp. 952-953.
600
Chirwa, D.M., Reclaiming (wo)manity: the merits and demerits of the African Protocol on Womens
Rights, op. cit. note 535, p. 96.
601
Article 31 reads: None of the provisions of the present Protocol shall affect more favorable provisions for
the realization of the rights of women contained in the national legislation of States Parties or in any other
regional, continental or international conventions, treaties or agreements applicable in these States Parties.
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legal protection unless women participate directly in the development, interpretation and
enforcement of the law.602 Until these aims have been met, the role of the 2003 Maputo
Protocol in protecting women and, more specifically, refugee womens rights remains limited,
falling short of a new dawn for women on the continent.603
In effect, as Viljoen has affirmed:

It is womens fundamental subordination embedded in socio-economic and cultural


structures that underlies the denial of their rights, not the dearth of legal guarantees
reaffirming their rights.604

In sum, the 2003 Maputo Protocol should surely be perceived as a reason to celebrate
the protection of womens rights in Sub-Saharan Africa, but not as a reason to be fully
satisfied with the degree of womens rights protection this legal instrument has reached up to
now.605

2.6 African national legislation and its contribution to protecting asylum-seekers and
refugees

2.6.1 The protection of asylum-seekers and refugees provided in the constitutions of Sub-
Saharan African countries

In Sub-Saharan Africa, national legislation about refugees is essentially based in


domestic law which deal specifically with refugee issues although not exclusively, as
reference is made directly to national constitutions, as well. Over the past few decades, both
the safeguard of human rights and more specifically the legal protection of refugees, have
increasingly been finding a stronger tradition in national constitutions as well. As one scholar
has pointed out, the protection of refugees is included in the African current constitutions
under the emerging right to good governance, whose essence appears to be modeled almost
exclusively on the pillars of western democracies, historically the former colonizers.606

602
Chirwa, D.M., Reclaiming (wo)manity: the merits and demerits of the African Protocol on Womens
Rights, op. cit. note 535, p. 75.
603
Ebeku, K.S.A., op. cit. note 558, p. 137.
604
Viljoen, F., An introduction to the Protocol to the African Charter on Human and Peoples Rights on the
Rights of Women in Africa, op. cit. note 538, p. 46.
605
Banda, F., op. cit. note 539, p. 84.
606
Mutharika, A.P., The role of the international law in the twenty-first century: an African perspective, in:
Fordham International Law Journal, vol. 18, 1995, p. 1708. Furthermore, the 1979 Arusha Conference on the
African Refugee Problem in recommendation No. 8, paragraph 1 b), urged states: [t]o study the implementation
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We note differences, however, in the expression of the human rights in the countries
considered, which is usually due to the dissimilar legal traditions that African countries
follow. Because of this heritage, we find two main legal traditions on the continent: British
and French. Even countries that have been colonized by other colonial powers generally
follow one of these two main traditions. Among these, we have the five former Portuguese
colonies,607 the three former Belgian colonies,608 the former Spanish Equatorial Guinea,609
plus Liberia, independent from the United States of America since 1847, and the countries of
the Horn, Ethiopia and Eritrea, which have had a very short history of colonization. Eritrea,
however, was annexed by Ethiopia in November 1962, remained as its 14th province until 24
May 1993.610
It is clear that the different legal traditions mainly derive from the basic difference
between the Anglo-Saxon common law611 and the Euro-continental civil law.612
According to one of the past and most famous studies on protection of refugees and asylum-
seekers in Africa, this difference is reflected in the incorporation of international legal
instruments into domestic law. Regarding civil law, this study affirms that an international
instrument, once ratified, does not need the creation of a proper national legislation before
applying its principles.613 From this previous affirmation, we may simply deduce that for

of international instruments and to arrange for their dissemination in Africa at the national, sub-regional and
regional levels, in: UNHCR, The Recommendations from the Arusha Conference on the African Refugee
Problem, Uppsala: Scandinavian Institute of African Studies, 1981, p. 20. No country has made any reservation
on these paragraphs of the recommendation.
607
Angola, Cape Verde, Mozambique, Sao Tom and Principe all became independent from Portugal in 1975
(on November 11, July 5, June 25 and July 12, respectively). Guinea Bissau anticipated them, declaring its
independence on 24 September, 1973.
608
DRC became independent on the 30 June 1960; Burundi and Rwanda became independent on 1 July 1962.
609
Equatorial Guinea gained the independence from Spain on 12 October 1968.
610
Nevertheless, at the end of World War II, Eritrea was ruled as a United Nations protectorate between 1941
and 1952 administered by the British. For a broad view of the legal literature on Eritrea, see: French, T.R.,
Legal literature of Eritrea: a bibliographic essay, in: North Carolina Journal of International and Comparative
Regulations, vol. 24, 1998-1999, pp. 417-450. For the question of secession Eritrea, phenomenon that generated
a broad number of Eritrean refugees fleeing Ethiopia, see: Haile, M., Legality of secessions: the case of
Eritrea, in: Emory International Law Review, vol. 8, 1994, pp. 479-538.
611
For a general vision on the characteristics of the common law in relation with the main features of the
international law, see: Adede, A.O., International law from a common law perspective: a second look, in:
Boston University Law Review, vol. 60, 1980, pp. 46-77.
612
For a general vision on the main characteristics of the civil law, see: De Vries, H.P., Jurisdiction in civil law
countries, in: American Bar Association Journal, vol. 55, 1969, pp. 246-250.
613
Lawyers Committee for Human Rights, African Exodus: Refugee Crisis, Human Rights and the 1969 OAU
Convention, New York: Lawyers Committee for Human Rights Editions, 1995, p. 35. This idea is implicit in a
project of law in Burundi whose paragraph 30 reads: Ce nest donc pas ce niveau quil faut chercher les
lacunes de la lgislation burundaise puisquelle mme se rfre aux instruments juridiques internationaux,
notamment le Dcret-loi du 20 mars 1989 qui prcise en son article 20 que: est reconnu comme rfugi ou
apatride, ltranger qui runit les conditions requises par les Conventions Internationales en la matire et
auxquelles le Burundi est partie . See: Burundi, Ministre de lInterieur/Haut Commissariat des Nations Unies
pour les Rfugis, Project de loi sur lasile et la protection des rfugis, January 2005. In this regard, P. Nobel,
however, contended: Such legislation (French-inspired) presupposes [that] the national authorities, who must
administer the law, have a thorough knowledge of the rules of international law to which they refer. [But] such
knowledge in fact is rare; thus there is a weakness in this technique of lawmaking and it is not well-designed to
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countries having adopted a civil law regime, the international framework regarding the
protection of refugees can be applied domestically without necessarily receiving too many
further specifications from a national instrument on the same topic.
All British-inspired constitutions in Sub-Saharan Africa present real bills of rights,
which can be very detailed and incorporated into a specific section of the national
constitutions. Such a bill of rights very often deals with rights strictly related to refugees
and their possibilities to obtain asylum in a given country, like freedom of movement.614 The
1995 Ugandan constitution is an exception to this rule, considering that it does not contain
any specific article dedicated to the right of free movement, but simply mentions it in the
general title of its article 29, which also includes a general protection of freedom of
conscience, expression, [...] religion, assembly and association.
It is perhaps particular that such a model is not completely followed in Liberias 1986
constitution as well, whose Chapter III dedicated to fundamental rights is less detailed in its
content than the British-inspired constitutions freedom of movement is, for example,
omitted in the list of rights considered for individuals. It is true; however, that Liberia
followed more the American constitutional model than the British one.615
The constitutions of the Lusophone countries present some very particular
characteristics within the framework of the legal protection of refugees. Article 26 of the
Constitutional Law of the Peoples Republic of Angola, entered into force on 11 November
1975 and revised on the 11 August 1980, openly reads:

bring about the implementation of the refugee conventions. See: Nobel, P., Refugee, law, and development in
Africa, in: Michigan Yearbook of International Legal Studies, vol. 3, 1982, pp. 268-269.
614
For instance, see: South African Bill of rights constituting the entire Chapter 2 -article 7 through 39:
freedom of movement is dealt with in article 21- of the constitution, Act No. 108, 10 December 1996, (last
amended 11 April 2003). Article 21 (Freedom of movement and residence), sections 1 and 2 read: 1)
Everyone has the right to freedom of movement. 2) Everyone has the right to leave the Republic. Emphasis
added. For an evaluation of the South Africans Bill of Rights: Du Plessis, L.M., Evaluative reflections on the
final text of South Africas Bill of Rights, in: Stellenbosch Law Review, vol. 7, 1996, pp. 283-306. See also, for
instance: Chapter IV, article 39 of the Constitution of Malawi, Act No. 20, 14 May 1994: 1) Every person shall
have the right of freedom of movement and residence within the borders of Malawi. 2) Every person shall have
the right to leave the Republic and to return. For similar examples, see also: Chapter IV, article 41, of the
Constitution of the Federal Republic of Nigeria, 1999; part II, article 23 of the Constitution of the Republic of
Sudan -country with a very strong Islamic traditions that have repercussions also in its legal acts-, 30 June 1998;
Chapter III, article 26 of the Constitution of the Kingdom of the Swaziland Act, 2005 -the only kingdom
remained in Sub-Saharan Africa-; part III, article 22 of the Constitution of the Republic of Zambia, Act No. 1, 24
August 1991, (last amended 28 May 1996 by Act No. 18), Chapter III, article 22 of the Constitution of the
Republic of Zimbabwe, 21 December 1979, (last amended 1 February 2007). Emphasis added.
615
See, for instance: Liberian Constitution of 1847: Drawing upon the American experience, the repatriates
labored toward preparing a declaration of independence and a constitution, which would include a bill of rights.
They also naturally looked forward to a new relationship with the American Colonization Society. That new
relationship was defined by the Terms of Dissolution of relations between the Commonwealth and the
American Colonization Society in which the latter assured continued assistance to Liberia. The first assistance
was in offering the services of the Massachusetts jurist, Simon Greenleaf, to help prepare a draft constitution for
the new state, html document, available at: http://onliberia.org/con_1847.htm, accessed 10 September 2012.
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Any foreign or expatriate citizen shall be guaranteed the right to ask for asylum in the
event of persecution for political reasons, in accordance with the laws in force and
international instruments.

More recently, article 71 (Right of Asylum) of the Constitution of the Republic of


Angola, seen and approved by the Constituent Assembly on 21 January 2010, clearly reads:

1) All foreign or expatriate citizens shall be guaranteed the right to asylum in the event
of persecution for political reasons, namely those involving serious threat or persecution as a
result of their work for democracy, national independence, peace amongst different peoples,
liberty and human rights, in accordance with the laws in force and international instruments.
2) The law shall define the status of political refugees.

Similar provisions are also followed by Mozambique, whose 1990 Constitution, states
in article 20 2) of the chapter dedicated to Foreign Policy and International Law, is in a
sense even more explicit than the Angolan provision because it enumerates the reasons for
which foreigners can be granted asylum by Mozambican authorities:

The Republic of Mozambique shall grant asylum to foreigners persecuted because of


their fight for peace, democracy, national and social liberation, or their defense of human
rights.

The above-mentioned paragraph comes after the following, stressing how sensitive
Mozambican authorities are on the issue of self-determination of peoples:

The Republic of Mozambique shall support and be in solidarity with the struggles of
peoples for their national liberation.

However, we question which Sub-Saharan African populations this latter provision


could address, considering that national governments in Sub-Saharan Africa currently seem to
be satisfied with the status quo. In addition, we do not personally esteem that such a provision

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can be considered an exhortation to revolutions on the continent. 616 However, it is also true
that without geographical limitation this provision can be automatically extended to
populations who do not reside in Africa and to whom the Mozambican government seems
ready to grant asylum. The reason for this uncertainty is that, as UNHCR notes, the last years
have seen Mozambican policy turn more towards the rejection and deportation of asylum-
seekers rather than the granting of asylum.617
Even the 1979 Somali Constitution presents a provision focused on the asylum-seeker
and the possibility to grant asylum to persons who have fled for political reasons while
struggling for the interests of the masses, human rights or peace.618
In Mozambique and Somalia, however, the only refugee considered is the political
one, in honor of the traditional figure of the asylum-seeker. This happens although a
political refugee who struggles for the protection of human rights can be easily identified as
an individual that suffers, for example, also from discrimination because of his/her race,
religion or because he/she is a member of a particular social group, to cite other reasons of
persecutions provided in either the 1951 Geneva Convention or in the 1969 OAU Convention.
In addition, we note that in almost no other British-inspired constitutions do we find
provisions that clearly deal with asylum. There are, however, exceptions, the 1994 Namibian
Constitution being undoubtedly the most complete of the constitutions dealing with reasons to
grant asylum. In several of its sections, either the text of the 1951 Geneva Convention or the

616
Personally, we do not think that such a provision has been conceived to support claims such as the claim of
the neighbor island of Zanzibar to be independent from the Republic of Tanzania although Zanzibar, as of 8
August 2012, presents a Revolutionary Government that is semi-autonomous and has its own President of
Zanzibar, a Revolutionary Council and a House of Representatives of Zanzibar. For more information on the
present form of government in Zanzibar, see the relative website: http://www.ikuluzanzibar.go.tz/, accessed 1
August 2012.
617
For instance, see the note: UNHCR calls on Mozambique authorities to stop deporting asylum-seekers, 24
June 2011: Ninety-three asylum seekers were deported to Tanzania in the early hours of Tuesday morning. The
group, comprising 59 Somalis and 34 Ethiopians, had recently arrived by boat near Mocimboa da Praia in
northern Mozambique. [] This is not the first incident of this kind. Last week, UNHCR received reports from
staff of another international humanitarian organization about a deportation of 150 individuals on the 16th of
June. This has since been confirmed by our colleagues in Tanzania, html document, available at:
http://www.unhcr.org/4e0476089.html, accessed 10 August 2012. For a further example of a Lusophone
constitution, very similar to the Angolan, see: Constitution of Cape Verde, 25 September 1992, as amended on 3
May 2010, Lei Constitucional n 1/VII/2010, article 39 (Right to asylum): 1) Os estrangeiros ou aptridas
perseguidos por motivos polticos ou seriamente ameaados de perseguio em virtude da sua actividade em prol
da libertao nacional, da democracia, ou do respeito pelos direitos do homem, tm direito de asilo no territrio
nacional. 2) A lei defi ne o estatuto do refugiado poltico.
618
Chapter II, article 35 of the Somali Constitution. Curiously asylum, although only in its political form, is
also provided in article 35 (Extradition of Accused and Convicted Persons and Political Asylum) of the
Constitution of Somaliland, 31 May 2001, an entity that claims its statelessness for more than two decades
now, May 18, 1991 being the date of its proclaimed independence. In detail, article 35 1) reads: Any foreigner
who enters the country lawfully or is lawfully resident in the country and who requests political asylum may be
accorded asylum if he fulfills the conditions set out in the law governing asylum. In Somaliland, political
asylum is generally granted by the President of the Republic, as it is affirmed in article 90 (The Powers of the
President), paragraph 5 of the Constitution: Without prejudice to the principles of just retaliation (Qisas) and
the limits under Islamic Shari a, the exercise of pardon and amnesty, and the grant of political asylum after
consultation with the appropriate bodies.
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1969 OAU Convention has directly inspired this constitution. For instance, article 97 of the
Namibian instrument reads that the country will grant asylum to individuals who fear
persecution: on the ground of their political beliefs, race, religion or membership of a
particular social group.619
On the contrary, both the Angolan and the Somali constitutions do not have any
provision for freedom of movement. The constitutions of Mozambique620 and Equatorial
Guinea, the latter of which was formerly under Spanish rule, have such provisions in their
fundamental charter621 although these provisions only apply to citizens. Apart from Somalia,
the other countries of the Horn, Eritrea and Ethiopia, also provide although, in synthetic
formulas, their citizens with the fundamental right to expatriate, return, and move freely
within their country. The Ethiopian Constitution also guarantees freedom of movement within
the country, as well as the right of residence and the right to leave Ethiopia to any foreign
national lawfully in Ethiopia, asylum-seekers and refugees included.622 In contrast, article 19
of the 1997 Eritrean Constitution while granting several freedoms such as the freedom of
thought (paragraph 1), freedom of speech (paragraph 2), freedom of religion (paragraph 3) to
every person, guarantees the right to freedom of movement (paragraphs 8 and 9) only to
Eritrean citizens.
French-inspired constitutions have a different approach to the rights of individuals.
They often recall, generally in their preambles, the 1948 UDHR and the 1981 Banjul Charter
as sources of inspiration of the national legislators.623 In addition, they also dedicate several
articles, frequently collocated at the beginning of their fundamental law, 624 to the basic
freedom of the individual, usually including freedom of movement.625

619
Chapter 11, article 97 of the Constitution of the Republic of Namibia 1994 (last amended the 24 December
1998). Namibian legislators omitted in the list done by article 97 the persecution for reason on nationality
present in both the 1951 Geneva and 1969 OAU Convention-. This leaves us in the doubt that this omission has
been done explicitly to discriminate in some way the South-Africans which ruled in the countries cruelly for
decades. But it is clear that ours it is no more than a doubt not backed by any official documentation.
620
Chapter II, article 55 of the 1990 Constitution reads: 1) All citizens shall have the right to take up residence
in any part of the national territory. 2) All citizens shall be free to travel inside the national territory and abroad,
except those who have been legally deprived of this right by the courts.
621
In full, article 13 d) of the 1995 Equatorial Guinean Constitution reads: Every citizen shall enjoy the
following rights and freedoms: [] d) Freedom of movement and residence.
622
In this regard, see respectively: Chapter III, article 19 of the Constitution of Eritrea, 23 May 1997; part II,
article 32 of the Constitution of the Federal Republic of Ethiopia, 21 August 1995.
623
For example: preamble to the Constitution of Cameroon, 30 January 1996, preamble to Constitution de la
Rpublique de Djibouti, 4 September 1992, preamble to the Constitution de la Rpublique gabonaise, 18 March
1991 (last amended 1994), preamble to the Guineian Constitution du 23 decembre 1990, rvise par le Dcret
D/2002/48/PRG/SGG du 15 mai 2002, promulguant la Loi constitutionnelle adopte par rfrendum du 11
novembre 2001.
624
This is a point in common with the British-inspired constitutions which also usually dedicate the first part of
their constitution to the basic rights of the individuals guaranteed by the state.
625
For example: preamble to the 1996 Cameroonian Constitution, article 10 of the 1991 Mauritanian
Constitution, article 14 of the 2006 Senegalese Constitution, article 22 of the 1992 Togolese Constitution. In
converse, for instance, no explicit mention of this right is done in the 2000 Ivorian Constitution.
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Moreover, many of them deal with asylum directly in their constitutions as well. The
DRC constitutes an example in Sub-Saharan Africa in which asylum is constitutionally
considered a right, and in which either refoulement or the practice of subversive activities
undertaken by refugees are formally forbidden.626 This kind of provision has been
undoubtedly influenced by the countrys recent history with many violations of the basic
human rights perpetrated towards both nationals and foreigners.627 The right of asylum is
also recognized by another post-conflict constitution, the 2003 Rwandan Constitution in
which article 25 reads:

Le droit dasile est reconnu dans les conditions dfinies par la loi. Lextradition des
trangers nest autorise que dans les limites prvues par la loi ou les conventions
internationales auxquelles le Rwanda est partie. Toutefois, aucun Rwandais ne peut tre
extrad .

In the same geographic area, a third post-conflict constitution recognizes asylum as a


right. In effect, article 23 of the 2005 Burundian Constitution is almost a true copy of its
homologous article 25 in the Rwandan Constitution.628 The right of asylum is also recognized
in the constitutions of countries that do not have a real tradition in hosting refugees, such as
Burkina Faso629 and Mali. In the latter country, article 12 allows asylum to be granted to
every person persecuted because of political reasons, religion or ethnic group.630 Therefore,
we note that the granting of asylum is part of the fundamental charter of an increasing number
of African states, with little distinction as to the kind of legal system adopted, though with
some limitations. In our opinion, the situation is such for two reasons. First, African countries,

626
Article 33 of the Constitution of the Democratic Republic of the Congo, 18 February 2006.
627
For a general panorama on the violations of the human rights in DRC during the conflict in the 1990s, see:
Mangu, M.B., The conflict in the DRC and the protection of rights under the African Charter, in: African
Human Rights Law Journal, vol. 3, 2003, pp. 235-263.
628
Article 26 of the 2005 Burundian Constitution reads: Le droit dasile est reconnu dans les conditions
dfinies par la loi. Lextradition nest autorise que dans les limites prvues par la loi. Aucun Burundais ne peut
tre extrad ltranger .
629
Article 9 of the 1991 Burkinab Constitution reads: La libre circulation des personnes et des biens, le libre
choix de la rsidence et le droit dasile sont garantis dans le cadre des lois et rglements en vigueur . But, on the
other hand, see also the constitution of Guinea, a country in the area with a strong tradition of hosting refugees.
In detail, see: Constitution du 23 decembre 1990, rvise par le Dcret D/2002/48/PRG/SGG du 15 mai 2002,
promulguant la Loi constitutionnelle adopte par rfrendum du 11 novembre 2001, article 11: Quiconque est
perscut en raison de ses opinions politiques, philosophiques ou religieuses, de sa race, de son ethnie, de ses
activits intellectuelles, scientifiques ou culturelles, pour la dfense de la libert a droit dasile sur le territoire de
la Rpublique .
630
The original and entire version of article 12 of the 1991 Malian Constitution reads: Nul ne peut tre
contraint lexil. Toute personne perscute en raison de ses convictions politiques ou religieuses, de son
appartenance ethnique, peut bnficier du droit dasile en Rpublique du Mali. A similar provision is included
in the 2000 Constitution of Cote dIvoire where article 12 adds, to the causes for persecution the [c]onvinctions
philosophiques of the individual.
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above all in the last decades, have been more aware of the phenomenon of refugees and they
have tried to comply more strictly with both the main international and regional legal
instruments in force on the continent.631 This has occurred although no instrument
convention, recommendations or declaration was so bold as to explicitly encourage the
inclusion of asylum as a right in the national constitutions. Secondly, and this is quite
disappointing, when legal scholars undertake analysis of international phenomena, they
sometimes tend to neglect particular areas of the world, focusing mainly on what happens in
developed countries. In effect, as we have seen above, general doctrine has affirmed, and
still affirms, that the granting asylum is not considered a right by states. This affirmation
however, is contradicted by what we have just seen regarding the documents produced and
adopted by several African states. Our latter consideration is even more disappointing if we
consider that, unfortunately, Sub-Saharan Africa is not new to the phenomenon of refugees.
On the contrary, for decades it has contributed enormously to the plight of refugees, which
has been rightly conceived as a failure of the state system, 632 this plight being a factor that
destabilizes the economic, social and political equilibrium of entire countries on the continent.
We also reflect upon the fact that the increased adoption of provisions on asylum in
Sub-Saharan African countries constitutions, supported with an enlarged practice, could lead
to the formation of a local custom on asylum on the continent in the near future,633 following
the example given in the past regarding diplomatic asylum in Latin America. 634 Such a
possibility would be more than welcome by the international community as a whole. But, as
shown in our analysis, particularly in the chapter on asylum- this possibility has not yet been
fulfilled and lacks a real, general and consolidated practice

631
For instance, Article II1 of the 1969 OAU Convention clearly urges countries to [u]se their best endeavors
consistent to their respective legislations to receive refugees.
632
Aleinikoff, T.A., State-centered refugee law: from resettlement to containment, in: Michigan Journal of
International Law, vol. 14, 1992, p. 121.
633
As H. Thirlway pointed out: [A]longside general customary law there exists rule of special or local
customary law, which are applicable only within a defined group of states; and it is in principle possible for a
state which does not accept a rule which is becoming standard international practice to make clear its opposition
to it, in which case it will be exempted from the rule when it does become a rule of law, having the status of
what is generally called persistent objector. Emphasis added. See: Thirlway, H., The sources of international
law, in: Evans, M.D. (edited by), International Law, 2nd edition, New York: Oxford University Press, 2006, p.
125.
634
For an analysis of the diplomatic asylum in South America, see for instance: Rossitto, A., Diplomatic
asylum in the United States and Latin America: a comparative analysis, in: Brooklyn International Law
Journal, vol. 13, 1987, particularly pp. 127-130 dedicated to a general analysis of diplomatic asylum in Latin
America.
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2.6.2 Examples of recent national laws on refugees: a homogeneous panorama with several
particularities

Apart from constitutions, the supreme law of the state, domestic legislation of Sub-
Saharan African countries deal with the legal protection of refugees in domestic refugee
laws and regulations which protect refugees within the state borders. The promotion of such
laws has been considered essential to give effect to the principles contained in the
international instruments.635 The majority of Sub-Saharan African countries have adopted
some kind of refugee law, although Chad636 and Eritrea constitute important exceptions. As
expounded above, the differences between the British-inspired and French-inspired legal
systems are also reflected in the characteristics of the national refugee laws, which we will
briefly analyze at this point to provide the reader with a general overview of how African
countries structure their legal provisions on refugee protection. Anglophone countries have
adopted generally more detailed national laws on the subject, laws that can contain up to 40
articles or even more.637
If we consider two of the most recent domestic laws promulgated in Anglophone
countries in Sub-Saharan Africa638 the 2011 Kenyan Refugees Bill which is 24 articles long,

635
In the Assembly of the Heads of State and Government, Tunis Declaration on the 1969 Convention governing
the specific aspects of refugee problem, document No. AHG/Decl.6 (XXX), 13-15 June 1994 has been affirmed:
[r]e-dedicate ourselves [Member States of the OAU] to a more effective implementation of the Convention
through, inter-alia, the promulgation of appropriate national refugee legislation. In the same year,
Recommendation 5, number iii) of the Addis Ababa Document on Refugees and Forced Population
Displacements in Africa, 8-10 September 1994 reads: [States] should enact the necessary legislations and
regulations so as to give effect nationally to the Convention and its principles. In 1998: [We, the Ministers
representing the Member States of the Organization of African Unity] encourage Member States to adopt the
necessary national legislation, administrative regulations and procedures to ensure the effective and full
implementation of the instruments to which they have acceded. The Khartoum Declaration of the OAU
Ministerial Meeting on refugees, returnees and internally displaced persons in Africa, Khartoum 13-14
December 1998, point 4.
636
In 2006, the author of this work was a legal intern in the Sudan/Chad Unit at the UNHCR. At that time, in
combination with the tragic events occurred both in Chad and in the bordering Sudan, UNHCR tried, for the
umpteenth time in the last decades, to help Chadian authorities to write a national refugee law but without any
success. Explaining the situation in Chad, in the words of W.T. Worster: Chad is a party to the Refuge
Convention and the OAU Convention, and its municipal law provides for asylum and protection of political
refugees. Chad has also agreed to an MOU with the UNHCR specifically providing for non-refoulement. In
2007, the UNHCR and Chadian Government jointly proposed a draft law on asylum for Chad, but the draft was
not approved, so the country still lacks legislation on point. Chad is, however, recognizing individuals fleeing
from the violence in Darfur and the Central African Republic as prima facie refugees, with the condition that
they remain in the refugee camps. Those leaving camps may have individualized refugee status determinations,
apparently applying the definition in the Refugee Convention and OAU Convention. This practice suggests that
Chad considers individuals fleeing generalized violence and instability as refugees. See: Worster, W.T., op. cit.
note 42, p. 123.
637
For example, the 1998 South African Refugees Act No. 130, contains 41 sections while the 2003 Ugandan
Refugee Act, adopted on 24 May 2006, contains 49 sections.
638
The Gambian Refugee Act has been adopted on November 2008 but in our example we prefer to consider the
legislation of Sierra Leone and Kenya given the importance of the refugee plight in these two latter countries,
both as senders and receivers of refugees compared to the extent of the phenomenon in Gambia. At the end
2009, Gambia hosted 10,118 refugees while 1,973 Gambians sought for asylum elsewhere. In the same period,
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and the 2007 Refugees and Protection Act from Sierra Leone, which is 33 articles long we
can see that national legislators have structured them in slightly different ways. They start by
defining the meaning of the term refugee,639 contain norms about the application of refugee
status,640 and incorporate administrative provisions regarding the composition and functions
of the national organisms, which processes handles refugee claims.641 This kind of structure is
usually common to the British-inspired legislation on refugees.642
The two national laws show, however, some significant differences. First, while the
Kenyan law has one article dealing with the rights and the duties of refugees in the country,643
the Sierra Leonean law dedicates two separate articles, one to the rights and duties of
recognized refugees and the other to the Rights and duties of asylum seekers during refugee
status determination process.644 The solution adopted in this regard by Kenyan authorities is
not new to Sub-Saharan Africa. For instance, in 1993, the Liberian legislation adopted this
solution.645 However, the 2006 Ugandan Refugee Act largely praised by UNHCR as a model
for Africa646 but also criticized by regional think tanks647and scholars-648 is even more

Kenya hosted 358,928 refugees while 9,620 Kenyans sought for asylum elsewhere; Sierra Leone received 9,051
refugees while 15,417 Sierra Leoneans sought for asylum elsewhere. See: UNHCR, Statistical Yearbook 2009,
Geneva: UNHCR, October 2010, Table No. 1, pp. 57-59; Table No. 2, pp. 61-64.
639
Section 2 of the Kenyan law and section 3 of the Sierra Leonean law.
640
Sections 5-6, 10 through 15 and 18 through 21 of the Kenyan legislation, sections 8 through 14 of the Sierra
Leonean legislation.
641
Sections 6 through 11 of the Kenyan law and sections 3 through 13 of the Sierra Leone law. This kind of
provision is quite common in the legislation of the Anglophone countries. For instance: 1992 Ghana Refugee
Law sections 4 through 7-, 1993 Liberian Refugee Act sections 4 through 6-, 1998 South African Refugees
Act No. 130 sections 8 through 20-, 2006 Ugandan Refugee Act sections 7 through 18.-
642
The 1985 Lesotho Refugee Act and the 1986 Zimbabwean Refugee Act follow, for example, this kind of
structure in this being inspired by the older acts in the region, such as the 1968 Botswana Refugees (Recognition
and Control) Act as well as the 1970 Zambian Refugee (Control) Act.
643
Section 14 of the 2011 Kenyan law: 1) Subject to this Act, every refugee and every member of his family in
Kenya shall be entitled to the rights subject to all laws in force in Kenya. Subject to this Act, every refugee and
member of his family in Kenya shall, in respect of wage-earning employment, be subject to the same restrictions
as are imposed on persons who are not citizens of Kenya. 2) The Cabinet Secretary may, by notice in the
Gazette, in consultation with the local authority, designate places and areas in Kenya to be: a) reception centers
for the purposes of temporarily accommodating persons who have applied for recognition as refugees or
members of the refugees families while their applications for refugee status are being processed; or b) refugee
camps for temporary settlement and provision of humanitarian services to refugees 3) No refugee shall reside
outside the designated area indicated in his refugee certificate or other registration document without the
authority of the Commissioner 4) It shall be the duty of every refugee or asylum seeker who wishes to change his
place of residence to apply to the Commissioner in the prescribed manner.
644
Sections 15 and 13 of the Sierra Leonean law, respectively. In this regard, a homologue provisions to article
13 of the Sierra Leonean legislation is contained also in article 20 of the 2004 Ethiopian Refugee Proclamation
No. 409, entitled: Rights and obligation of an asylum-seeker.
645
Liberia, Refugee Act, 1993, 19 January 1994, section 12 (Rights and duties of recognized refugees and
protected persons within Liberia).
646
See the news: Ugandas progressive Refugee Act becomes operational, 22 June 2009, html document,
available at:
http://www.unhcr.org/4a3f9e076.html, accessed 10 September 2012. This news also explained that: The
Ugandan leader stressed that the Refugee Act 2006 epitomizes Ugandas unwavering liberal policy towards
refugees who seek protection here until they feel it is safe for them to return to their countries of origin.
647
Refugee Law Project, Critique of the [Ugandan] Refugee Act, 2006, p. 3: There are however some deficits,
loopholes, inadequacies, room for excesses, and glaring omissions in the Refugees Act, all of which potentially
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detailed because it does not limit itself to dedicate an article to the right of refugees and
another to their duties while on Ugandan soil (sections 29 and 36 of the act, respectively).
Section 29 of this act, as well as its sub-sections on refugee rights generally reflect the rights
present in articles 3 to 34 of the 1951 Refugee Convention. However, also present in this act
are several omissions compared to the universal instrument, for instance, in what regards
degree of treatment dependent on the refugees grade of attachment to the country of
destination. All rights in the national instrument accrue exclusively to refugees, defined at
section 2 of the act as persons recognized as such by the REC or on a prima facie basis as
provided for under section 25 3).649
In addition, this piece of legislation dedicates two articles also to the specific rights of
children and women (articles 32 and 33 respectively), in both cases underling the principle of
non-discrimination that is at their foundations.650
Moreover, the Sierra Leonean law dedicates the whole of part V to Facilitation of
lasting solutions651 while the Kenyan legislation completely lacks such a provision. This
happens essentially because in Kenya the RSD is carried out by UNHCR in three major
centers: the Nairobi Bureau Office and the two camps of Kakuma and Dadaab where the main
communities of asylum-seekers are composed, respectively, of Sudanese and Somali
populations.652
The two legislations, however, also include some topical provisions, which reflect
concerns about current situations involving refugees on the continent: the 2011 Kenyan
legislation dedicates articles 19 and 20 to refugee women and children and to vulnerable
groups of refugees, respectively, as the Ugandan legislation did in 2006. However, the new
legislation does not feature article 17 of the previous 2006 Kenyan refugee law, which was

erode the progressive and protection orientation of the Act and threaten to lower its compliance with
international protection standards considerably, html document, available at:
http://www.refugeelawproject.org/legal_resources/RefugeesActRLPCritique.pdf, accessed 10 September 2012.
648
See, for instance: Sharpe, M.; Namusobya, S., Refugee status determination and the rights of recognized
refugees under Ugandas Refugee Act 2006, in: International Journal of Refugee Law, vol. 24, 2012, p. 578:
[T]he relevance of regional and international human rights law for refugees is not clear under the Act, and
particular shortcomings of the Act mean that certain refugee rights guaranteed under regional and international
law are still systematically infringed in Uganda.
649
Ibid., p. 566. In detail, section 25 3) of the 2006 Ugandan Act reads: The Minister (responsible for refugees)
may, where there is a mass influx of asylum seekers into Uganda, in consultation with the Minister responsible
for internal affairs, issue an order permitting the asylum-seekers to reside in Uganda without requiring their
individual status to be determined under section 4 of this Act.
650
For instance, in these two articles of the Ugandan Refugee Act 2006, 24 May 2006 we find the reaffirmation
of [t]he same treatment as nationals with respect to elementary education for children and, referred to women:
[a]nd affirmative action shall be taken to protect women refugees from gender discrimination practices.
651
Sections 23 through 25 of the Sierra Leonean law.
652
Odhiambo-Abuya, E., United Nations High Commissioner for Refugees and status determination imtaxaan
in Kenya: an empirical survey, op. cit. note vii, pp. 189-190.
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entirely dedicated to the important figure of the refugee camp officer. 653 The problem of
camps, although very topical in Sub-Saharan Africa is lacking in practically all the national
legislations on refugees with the notable exception of Gambia- although even there article 42
of its relevant national legislation is quite vague in wording, just mentioning camps as
possible places where housing asylum-seekers arriving en masse.654
Article 22 of the Sierra Leonean law, on the other hand, the first African national
refugee law to deal with this particular topic, talks about the internal measures to adopt in
case of large-scale influxes of refugees.655 In addition, the Sierra Leonean legislation
represents the first example of African domestic legislation committing itself to cooperating
with UNHCR and the AU to address the plight of refugees.656 Therefore, it is the only
example of Anglophone African legislation that draws direct inspiration from article VII of
the 1969 OAU Convention.657 Finally, we would like to mention that the recent 2008
Gambian Refugee Act has introduced the concept of subversive activities into domestic
legislation, which differs remarkably from the norm in the 1969 OAU Convention. In effect,
while in article III of the African instrument the refugee should abstain from any activities
against any Member State of the OAU, the 2008 Gambian legislation more generally talks
of any foreign State, to stress the strictness of the authorities in Banjul to punish
lawbreakers.658 This proviso is, however, in contradiction with the refugee flows that Gambia
hosted in 2009. Counting an overall refugee population of 10,118 persons, 7,546 were

653
We could criticize Kenyan authorities for having introduced this article in the law without any homogeneity
with the surrounding provisions and without giving any other specification about the camps. In this regard,
slightly different it is section 44 of the 2006 Ugandan Refugee Act, which deals with the Settlement and transit
centers, among the solutions taken into consideration, also providing for that the asylum-seekers can reside in
places or areas on public land, therefore without openly talk about camps.
654
Section 42 of the Gambian Refugee Act, 2008, 17 November 2008, reads: In cases where refugees arrive in
large numbers, the Secretary of State may by an Order published in the Gazette designate refugee camps to
house the refugees.
655
In this regard, see also: section 31 of the Gambian Refugee Act, 2008, 17 November 2008 that reads: 1)
Where it is considered impractical to comply with the provisions of section 30, the Secretary of State may, by
Order published in the Gazette, declare a person or persons belonging to a particular class or nationality, on the
basis of objective, prevailing circumstances in that persons or those persons country of origin or nationality, to
be a refugee or refugees recognized on a prima facie or group basis. 2) A person acting under this Act or any
other law shall not distinguish between categories of refugees founded on the basis of the manner of their
recognition, in terms of their refugee status or their treatment, except in the context of section 41 2) and 42 of
this Act.
656
Sections 26 through 28 of the Sierra Leonean legislation.
657
Article VII of the 1969 OAU Convention reads: In order to enable the Administrative Secretary-General of
the Organization of African Unity to make reports to the competent organs of the Organization of African Unity,
Member States undertake to provide the Secretariat in the appropriate form with information and statistical data
requested concerning: a) the condition of refugees; b) the implementation of this Convention, and c) laws,
regulations and decrees which are, or may hereafter be, in force relating to refugees. In the francophone
panorama, about the same issue see, for instance: Loi No. 1/32 du 13 novembre 2008 sur lasile et la protection
des rfugis au Burundi, No. 1/32, 13 Novembre 2008, Titre IV, articles 90 through 92 De la coopration des
autorits burundais avec le Haut Commissariat des Nations Unies pour les rfugis .
658
Gambian Refugee Act, 2008, 17 November 2008, section 29 2).
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Senegalese, 2,156 were Sierra Leoneans and the others from other various African, and only
African, countries.659
The Portuguese-inspired legislations follow the structure of British-inspired legislations,
trying to include provisos on both protections and procedures in the same law. Above all, the
procedural mechanism is taken as to be essential by national authorities in order to effectively
protect people in need. In this regard, as we can clearly read in the preamble of the 1991
Mozambique Refugee Act:

For the purpose of correct implementation of the above-mentioned Conventions


[Geneva 1951, OAU 1969] and Protocol [New York 1967] it is necessary to establish the
appropriate procedural mechanisms to guide all the formalities with which applications for
refugee status for the persons concerned should comply. The legal establishment of these
mechanisms reflects an activity forming a necessary complement to the contents of the above-
mentioned Conventions, both to ensure legality in the application of the said instruments and
to make it possible to conform to the same legality in relation to petitions for asylum, from the
submission of the relevant petition up to the final decision thereon, the ultimate objective
being to apply the constitutional principle of respect for and defense of human rights.

Concerning the legislations of Lusophone countries, the Refugee Law of Guinea Bissau,
having being adopted in 2008, reflects the topical requirements of present refugee protections
in Sub-Saharan Africa.660 Titulo II, Capitulo II, article 36, for example, of this law deals with
prima facie refugees, although it does not provide for any definition of mass-influx.661 To
prima facie refugees are applied the same rights and duties provided to other refugees
according to article 38 of this law.662 While the Bissauan refugee law also provides in article
40- for a provision on the voluntary repatriation of refugees, article 40 2) clearly affirms that a
refugee can refuse to repatriate and continue to remain in Guinea Bissau, obtaining an
authorization of residence as a foreigner.663 In this way, although his status will change from
refugee to migrant, the foreigner could continue to reside in the host country- an important
sign of tolerance and liberalism by Bissauan authorities.

659
UNHCR, Statistical Yearbook 2010, Geneva: UNHCR, October 2011, Table No. 5, p. 80, Table No. 8, p. 85.
The entire population of asylum-seekers plus refugees in Gambia at the end of 2010 amounted to 8,452 persons.
See: ibid., Table 1, p. 63.
660
Guinea Bissau, Lei no. 6/2008. Aprovado o Estatuto do Refugiado, Lei no. 6/2008, 23 May 2008.
661
Ibid., article 36 entitled: Estatuto do refugiado prima facie e em grupo.
662
Ibid., article 38 entitled: Desposicao geral (on the prima facie refugees).
663
Ibid., article 40 entitled: Estatuto de refugiado apos operacao de repatriamento voluntario.
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Regarding the aforementioned particularities, we need also need mention that article 42
of the Bissauan law on refugees also prescribes that the national commissioner for refugees -
established by article 9 of the law- will also take care of the IDPs on the territory, taking care
of the displaced, advising and assisting them.664 In so stating, the Bissauan legislation
represents the first attempt made in Sub-Saharan Africa to extend the protection of asylum-
seekers and refugees to IDPs, as well.
On the other hand, the legislation of francophone countries in Sub-Saharan Africa is
slightly different in that their national laws dealing with refugees are typically shorter, dealing
essentially with the definition of refugee, his/her ban from expulsion, and his/her basic
rights in the country.665 By doing this, the provisions often follow the wordings given in the
international instruments quite strictly. Moreover, these laws are very often integrated into
other domestic legal instruments that provide for the creation and function of national
commissions on refugees.666 Provisions for these kinds of commissions differ from British-
inspired countries, where they are generally included in the main refugee law.667 At least in
spirit, the greater part of francophone legislation draws inspiration from the Senegalese
legislation dating back to 1968, when the first refugee law by a francophone country was
adopted. At the time, however, it was deemed as weak and incapable of guaranteeing the
enforcement of international instruments within the country.668 We do not agree with this
affirmation because, in our opinion, the Senegalese Law favors a very humane treatment of
refugees, a notion that is synthesized in its article 6, which states that domestic provisions, if

664
Ibid., article 42 entitled: Deslocados forcados internos.
665
See, for instance: the 1996 Gabonese Loi n. 5/98 portant statut des rfugis en Rpublique gabonaise, 1997
Burkina Faso Dcret n 1994-055/PRES/REX portant application du statut des rfugis, 1998 Malian Loi n
1998-40 du 20 juillet 1998 portant sur le statut des rfugis, N 1998-40 and 2000 Loi L/2000/012/AN adoptant
et promulguant le statut des rfugis en Rpublique de Guine and the 2005 Cameroonian Loi No. 2005/006,
portant statut des rfugis au Cameroun, all adopt this same structure.
666
See, for instance: Burkina Faso: Kiti No. AN V-360/FP/REX relatif la Commission Nationale pour les
Rfugis, 3 August 1988. Rglement intrieur de la Commission Nationale pour les Rfugis, 19 June 1997;
Congo: Arrt No. 8041, portant cration, organisation, attribution et fonctionnement de la Commission
dligibilit au statut de rfugi, 28 December 2001, Dcret No. 1978-266 du 13 avril 1978 portant cration dun
Comit National dAssistance aux Rfugis, 13 April 1978 ; Djibouti: Dcret n. 2001-0101/PR/MI modifiant le
dcret n. 77-054/PR/AE du 9 novembre 1977 portant cration de la Commission nationale dligibilit au statut
des rfugis, 28 May 2001; Gabon: Dcret no. 646/PR/MAEFC portant attributions, organisation et
fonctionnement de la Sous-commission dEligibilit, 646/PR/MAEFC, 19 July 2000; Dcret no.
647/PR/MAEFC portant attributions, organisation et fonctionnement du Bureau de Recours de la Commission
Nationale pour les Rfugis, 647/PR/MAEFC, 19 July 2000; Cte dIvoire: Arrt n 11/PG/DAG, portant sur la
cration dune Commission dpartementale charge de se prononcer sur les demandes de statut de rfugis,
11/PG/DAG, 11 May 1991; Mali: Dcret n 98-354/P-RM du 28 octobre 1998, portant cration de la
Commission nationale charges des rfugis (CNCR), n 98-354/P-RM, 28 October 1998. Sngal: Dcret n
76-014 du 9 janvier 1976 modifie relatif la commission prvue larticle 3 de la Loi no. 1968-27 du 5 aot
1968 portant sur le statut des rfugis, 31 January 1976; Dcret n 78-484 du 5 juin 1978 modifie relatif la
Commission des rfugis, 17 June 1978; Dcret n 89-1582 du 30 dcembre 1989 modifiant le dcret n 78-484
du 5 juin 1978 relatif la Commission des Rfugis, 30 December 1989.
667
For instance: sections 3 through 7 of the 1989 Malawian Refugee Act, sections 6 through 11 of the 1999
Namibian Refugees (Recognition and Control) Act, sections 4 through 6 of the 1983 Zimbabwean Refugee Act.
668
Nobel, P., Refugee, law, and development in Africa, op. cit. note 613, p. 268.
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more favorable to refugees, prevail over international ones. 669 However, the most recent
refugee laws adopted by former Belgian colonies have tried to provide for more complete
refugee protection by avoiding gaps in legislation, which can create situations that prevent
national authorities from responding properly. Obviously, the particular events that occurred
in the Great Lakes Region in the 1990s have contributed in a fundamental way to national
legislators willingness to set forth on a new path in dealing with refugee issues. In the DRC,
the 2002 Law No. 021/2002, Portant statut des rfugis en Rpublique Dmocratique du
Congo dedicates the entire Chapter III articles 7 through 26 to the competencies of the
two main organs in charge of dealing with the afflux of asylum-seekers in the country, the
National Commission for Refugees and the Commission for Recourses, whose decisions are
definitive even if an appeal before the competent jurisdictions is always possible.670 In
Rwanda, the 2006 Law No. 29/2006 of 20/07/2006 Modifying and Complementing Law No.
34/2001 of 05/07/2001 relating to Refugees specified and clarified the division of
responsibilities between the National Refugee Council and its Executive Secretary.671 Among
the competencies of the council, there are the general implementation of the national policy in
governing asylum seekers and refugees, the control of the respect of the rights both of
refugees in Rwanda and of returnees, analyzing and deciding about the applications made by
asylum seekers, as well.672 The second organ, on the other hand facilitates coordination
between the local and international actors in charge of the protection of refugees and asylum
seekers.673
In 2005, Burundi drafted a comprehensive refugee law674 in which we find novelties
contained in the recent laws of both Kenya and Sierra Leone. In effect, one section of the draft
is entirely dedicated to the situation of the mass-influx of refugees,675 while the following is
dedicated to the cooperation of the national authorities with UNHCR, aimed at the domestic

669
Sngal, article 6 of the law reads: Les dispositions des articles 3 34 de la Convention du 28 juillet 1951,
sappliquent tous les bnficiaires du statut de rfugi, sous rserve des dispositions plus favorables des articles
suivants ou des textes pris pour leur application . Emphasis added.
670
DRC, article 26 of the national law. In full, article 26, which may seem contradictory in terms, reads: La
dcision de la Commission des Recours est dfinitive. Elle est prpare sous forme de projet darrt par le
Secrtaire Permanent et soumise pour signature au Ministre de lIntrieur. La notification lintress et la
communication au Haut Commissariat des Nations Unies pour les Rfugis sont assures par le Secrtaire
Permanent. Toutefois, le requrant a la possibilit de faire appel devant les juridictions comptentes .
671
Rwanda, articles 2 and 8 bis of the national law.
672
Ibid., article 2, paragraph 1), 2) and 3), respectively.
673
See, for instance, ibid., article 8 bis, paragraphs 1), 8) and 9): [The Executive Secretary of the National
Refugee Council has the following responsibilities: 1) to coordinate the activities of the Executive Secretariat of
the National Refugee Council []; 8) to coordinate the activities of mobilizing and repatriating Rwandan
Refugees in Diaspora, and resettling them in their properties; 9) to coordinate the activities of foreign refugee
resettlements in Rwanda.
674
Burundi, Project de loi sur lasile et la protection des rfugis, janvier 2005.
675
Ibid., articles 81 through 89.
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application of the provisos established in the 1951 Geneva Convention.676 These


particularities have been kept in the law adopted in 2008 in which Titre 1 has been completely
dedicated to asylum (de lasile) and in which article 2, in a very concise, pragmatic but, in
our opinion, also nebulous way, reads that whoever seeks asylum needs to show that he/she is
a refugee or he/she deserves this statute (rendre vraisemblable quil est rfugi). In addition,
article 3 1) clarifies that Burundian authorities can grant refugee status on the basis of their
judgment that the status is highly probable (hautement probable).677
The UNHCR in 2012 has made many efforts to reinforce the normative and institutional
frameworks of countries in Sub-Saharan Africa in order to guarantee an appropriate
implementation of asylum systems. For instance, the UNHCR has provided its
recommendations on national legislations to several countries. In Malawi, the UNHCR has
assisted the local government with an assessment of its legislation, leading to a new refugee
policy. In Zambia, for their part, have drafted a new refugee bill soon be submitted for the
approval of the parliament in Lusaka. The UNHCR has also established the capacity to
register asylum-seekers escaping from Mali in Burkina Faso, Mauritania and Niger.678
Finally, at the end of this section of our work, it would be quite useless to add that in
Sub-Saharan Africa we witness the paradoxical situation in which the same country trying to
go forward in the protection of aliens seeking asylum within its borders is often the same
country suffering for a hemorrhage of nationals seeking asylum abroad, given the
precarious political situation in their native land. We may take, for example, countries like the
DRC and Sudan, the latter country having even been praised in the past by UNHCR who
judged the 1974 Sudanese Refugee Act as one that complied with international and regional
standards, showing no discrimination in granting asylum to everyone who sought it.679

676
Ibid., articles 90 through 95.
677
Burundi, Loi No. 1/32 du 13 novembre 2008 sur lasile et la protection des rfugis au Burundi, No. 1/32, 13
November 2008.
678
UNHCR, Update on UNHCRs operations in Africa, Executive Committee of the High Commissioners
Program, Sixty-third session, Geneva, 1-5 October 2012, 21 September 2012, pp. 2-3.
679
Jackson, I.C., The Refugee Concept in Group Situations, op. cit. note 258, p. 208. For an assessment on the
tragic events occurred in Sudan, see: Udombana, N.J., When neutrality is a sin: the Darfur crisis and the crisis
of humanitarian intervention in Sudan, in: Human Rights Quarterly, vol. 27, 2005, pp. 1149-1199. In the same
regard, see: Hehir, A., Humanitarian Intervention: An Introduction, Basingstoke: Palgrave Macmillan, 2010, p.
256: Whatever ones perspective on humanitarian intervention, the response to Darfur can only be seen in a
negative light. Unquestionably millions of people have suffered terrible hardship, with thousands killed, raped,
starved, and many more displaced. Darfur shows that the international community of states has yet to find an
effective means by which suvch humanitarian disasters can effectively be halted. Whether a humanitarian
intervention would have been an effective solution is debatable, but clearly something more should have been
done. Many imagined that the Rwandan genocide so shockec dthe conscience of humankind that no such atrocity
would be permitted to take place again. As Weiss notes, however, while never again was the mantra espoused
post-Rwanda, the crisis in Darfur and the attendant international inaction means that here we go again is closer
to the truth.
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PART II
The meaning of the term refugee specific to Sub-Saharan Africa

Introduction to Part II

In Part II of our work, we will focus on the concept of the refugee, and see how this
concept is applied to Sub-Saharan Africa. Because the concept of refugee in this part of the
world cannot be analyzed by using solely the definition provided by the 1969 OAU
Convention, we need in effect to enlarge our exam to include the 1969 African Convention,
which considers it to act as the regional complement to the 1951 Geneva Convention.680 In
order to see whether African governments have stuck to the definitions provided by
international instruments or whether they have tried to adjust the international definitions to
better fit their domestic situations, we will also assess how several African national
legislations have adapted internationally provided definitions within their national
frameworks.
After having dealt with the definition of a refugee (Chapter III), we will analyze two
other important pillars which derive from the definition of a refugee: the clauses excluding a
person from becoming a refugee (Chapter IV) and the clauses that cease the refugee status for
an individual (Chapter V). In both instances, we will proceed in a similar way. First, we focus
on the exclusion and on the cessation clauses through a comparative and integrated analysis of
the 1951 Geneva Convention and the 1969 OAU Convention, the main pillars of the refugee
and asylum-seekers protection in Sub-Saharan Africa. Second, we concentrate our attention
on the African, domestic legislations to appraise like in the case of the definition of a
refugee- possible specific characteristics enacted by national authorities in order to adapt to
a local level what is provided on an international ground.
Our analysis, even when it concerns a universal context framework, will always try to
be brought back on the track of the overarching regional focus of this investigation: an
assessment of how asylum-seekers and refugees are theoretically and concretely protected in
Sub-Saharan Africa.

680
Article 8 2) of the 1969 OAU Convention.
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Chapter III
The importance of having a refugee definition specific to Sub-Saharan Africa

3.1 The 1951 Geneva Convention and the 1969 OAU Convention: their intertwining
refugee definitions

For over forty years, the 1969 OAU Convention refugee definition remains an essential
means of providing protection to large numbers of persons who are forced to flee their
countries of origin due to indiscriminate widespread disruption of public order or generalized
violence. However, the African definition must be analyzed in light of the 1951 Geneva
Convention definition of refugee, the latter still remaining the primary standard for
determining refugee status today. The 1951 Geneva Convention states the following:

For the purposes of the present Convention, the term refugee shall apply to any
person who: [] 2) As a result of events occurring before 1 January 1951 and owing to well-
founded fear of being persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of his/her nationality and is
unable, or owing to such fear, is unwilling to avail him/herself of the protection of that
country; or who, not having a nationality and being outside the country of his/her former
habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to
return to it.681

The 1951 Geneva Convention refugee definition the result of a series of different
attempts to define and categorize a variety of groups of specific refugees in the inter-war
682
period limited the scope of mandatory international protection to refugees who were
forced to flee due to pre-1951 events that occurred within Europe. In spite of the removal of

681
Article 1A 2) of the 1951 Geneva Convention. K. Walker noted about this definition that: [It] represents a
compromise between the principles of respect for human rights and state control of immigration. On the one
hand, the Convention imposes an obligation of non-refoulement on states. But on the other hand, the Convention
imposes this obligation not with respect to all persons in dire need, or even with respect to all those fearing
persecution, but only with respect to all those fearing persecution on the basis of one of several grounds: race,
religion, nationality, political opinion, or membership in a particular social group. See: Walker, K., op. cit. note
76, p. 584.
682
Haddad, E., op. cit. note xx, p. 30. For the author of this work is quite interesting to note that through an
original analysis E. Haddad set forth a new definition of refugee that is an individual who has been forced, in
significant degree, outside the domestic political community indefinitely. Quoting the author: The definition
acknowledges code (international and legal), category (domestic and administrative), and identity (individual
and subjective) and points to the interlocking relationship between each domain. It constitutes three assumptions
about the refugee concept: a degree of compulsion, an undetermined temporal element, and an inherently
political basis. See: ibid., p. 42.
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these temporal and geographical limitations, which was achieved by the 1967 New York
Protocol,683 the 1951 refugee definition is still such that:

Most Third World refugees remain de facto excluded, as their flight is more often
prompted by natural disaster, war or broadly based political and economic turmoil than by
persecution684 [since while] these phenomena undoubtedly may give rise to genuine fear and
hence the need to seek safe haven from ones home, refugees whose flight is not motivated by
persecution rooted in civil or political status are excluded from the rights regimes established
by the [1951 Geneva] Convention.685

The question of the temporal lag mentioned in the 1951 Geneva Convention definition
has been crucial in one of the first cases regarding the refugee protection decided in Sub-
Saharan Africa, the Molefi v. Principal Legal Adviser case, which took place in Lesotho in
1969.686
When juxtaposing the 1951 Geneva Convention definition with the 1969 OAU
definition, it is relevant to be cognizant of the logic or motivations behind the original refugee
definition which was the will of Western states to address the protection more to persons
whose flight was motivated by pro-Western political values.687

683
Article 1, paragraphs 2) and 3) state, respectively that: 2) For the purpose of the present Protocol, the term
refugee shall, except as regards the application of paragraph 3 of this article, mean any person within the
definition of article I of the Convention as if the words As a result of events occurring before 1 January 1951
and [...] and the words [a]s a result of such events, in article 1 A 2) were omitted. 3) The present Protocol
shall be applied by the States Parties hereto without any geographic limitation, save that existing declarations
made by States already Parties to the Convention in accordance with article I B I) a) of the Convention, shall,
unless extended under article I B 2) thereof, apply also under the present Protocol.
684
Quoting UNHCR, D.P. Gagliardi noted that there is no universal definition of persecution and various
attempts to formulate such a definition have met with little success. See: Gagliardi, D.P., The inadequacy of
cognizable grounds of persecution as a criterion for according refugee status, in: Stanford Journal of
International Law, vol. 24, 1987-1988, p. 269. At p. 268 the author noted that: The 1951 Convention essentially
codified previous International definition of refugee status. Since race, religion, and political opinion were
historically accepted bases of persecution from which refugees fled, the inclusion of those terms within post-war
international instruments is unsurprising. Nonetheless, the inclusion of the category membership of a particular
social group may indicate that the original categories were more restrictive than was desire.
685
Hathaway, J.C., The Law of Refugees Status, Toronto/Vancouver: Butterworths, 1991, pp. 10-11.
686
High Court of Lesotho, Molefi v. Principal Legal Adviser, CIV/APPN/31/68, 15 January 1969, in:
International Legal Materials, vol. 8, 1969, pp. 581-587; Brownlie, I., in: The British Yearbook of International
Law, vol. 45, 1971, pp. 400-402. The controversial point was if Mr. Molefi was outside South Africa because of
events occurring before 1 January 1951. The court rejected the appellants contentions on this issue because the
events, which were the basis of the charges, related to the affairs of an organization the Pan-African Congress-,
which only came to existence in 1959. The appellant had stayed in South Africa for eleven years after the
passing of the 1950 Suppression of Communism Act. The Juridical Committee considered that the definition of
refugee in the 1951 Geneva Convention did not call for legalistic examination. We clarify that Lesotho is part
of both the 1951 Geneva Convention and the 1967 New York Protocol since 14 May 1981 while South Africa is
part of both instruments only since 12 January 1996.
687
Hathaway, J.C., The Law of Refugees Status, op. cit. note 685, p. 6.
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In this regard, the 1951 Geneva Convention refugee definition suggests that the bond of
protection between citizen and state has been severed,688 either because the state is the
persecutor or because the state is unwilling or unable to provide protection to the individual
who is being or may be persecuted by another agent of persecution.689
In addition, the 1951 Geneva Convention refugee definition contains a quality of
deliberateness690 since an asylum-seeker must prove that he/she faces persecution691 as a
result of being specifically targeted, due to one of the enumerated grounds, whether race,
religion, nationality membership of a particular social group692 or political opinion. This

688
A. Shacknove confirmed that the theoretical basis for the refugee definition is [p]redicated on an implicit
argument (or conception) that: a) a bond of trust, loyalty, protection, and assistance between the citizen and the
state constitutes the normal basis of the society; b) in the case of the refugee, this bond has been severed; c)
persecution and alienage are always the physical manifestations of this severed bond; and d) these manifestations
are the necessary and sufficient conditions for determining refugeehood. See: Shacknove, A., op. cit. note 78, p.
275.
689
The Lawyers Committee for Human Rights noted evidently that the term persecution involves the
violation of the human rights of the individual subject to persecution. See: Lawyers Committee for Human
Rights, op. cit. note 613, p. 20. For the persecution by non-state agents see, for instance: Kaelin, W., Non-state
agents of persecution and the inability of the state to protect, in: Georgetown Immigration Law Journal, vol. 15,
2000-2001, pp. 415 through 431. At p. 415 the author noted: In Africa, the 1969 Organization of African Unity
Convention on Refugees recognized the relevance of persecutions by third parties. It stated that someone
compelled to flee the consequences of events seriously disrupting public order [], is considered to be a
refugee regardless of who is responsible for these disturbances.
690
Bond Rankin, M., Extending the limits or narrowing the scope? Deconstructing the OAU refugee definition
thirty years on, in: UNHCR, New Issues in Refugee Research, research paper No. 113, 2005, p. 7.
691
D.J. Steinbock correctly contended that: In short, the plain meaning of the term persecution in the refugee
definition, read in light of its history, makes clear that persecution does not exist apart from a prohibited reason
for the suffering that it produces. Further, always dealing with the concept of persecution he continued: [t]he
aims of the refugee definition concern the two great paradigms of the post-war period: the rights of free
expression and non-discrimination. The [1951 Geneva Convention] definition thereby serves to safeguard two
essential attributes of the human personality. See: Steinbock, D.J., Interpreting the refugee definition, in:
UCLA Law Review, vol. 45, 1997-1998, pp. 758 and 788. In contrast, D.P. Gagliardi argued that [t]he
cognizable grounds simply describe the tormentors motive; but it is the intent to do harm, not the motive, that
defines persecution. In short, the cognizable grounds focus attention on the wrong question. Precisely why an
individual is persecuted is largely irrelevant the existence of persecution is the only essential question. Because
the definition of persecution is not dependent upon the enumeration of certain cognizable grounds, their presence
within the definition of refugee is inappropriate. See: Gagliardi, D.P., op. cit. note 684, p. 272. Nevertheless, in
the case of environmental refugees, L. Westra correctly pointed out that: In the case of the mass exodus of
refugees after an ecological disaster, justification of the fear that impels the flight is not in question, although its
foundation in persecution is a problem and it clearly remains an objectively observable condition as well as a
subjective opinion: this renders the situation quite different from that of individual asylum seekers. See: Westra,
L., op. cit. note 429, p. 53. At idem, quoting J.C. Hathaway, the author also added: [a]ll persons who are
involuntary migrants as a result of natural or man-made causes may claim UNHCR assistance for resettlement
and legal protection, but they are not automatically covered by international law. Emphasis added.
692
A. Grahl-Madsen noted that: [s]hort of a situation where an entire population or a whole social group is
threatened with extinction, or where it is clear that persecutory measures are applied completely at random, it
may be necessary to assess the well-founded fear of each petitioning alien on its individual merits. See: Grahl-
Madsen, A., The Status of Refugees in International Law, 2 volumes; vol. 1: Refugee Character, Leyden: A.W.
Sijthoff, 1966, p. 175. Quoting UNHCR, A.C. Helton observed about the definition of social group: The only
attempted definition of social group refers to persons of similar background, habits and social status, and
explicitly denies that even this amorphous description is exclusive. While one could interpret this definition like
the cultural group as requiring some degree of continuity or permanence, the interpretation would, however, be
at odds with international experience. [] Moreover, the term social status remains as nebulously defined as
the term social group itself. See: Helton, A.C., Persecution on account of membership in a social group as a
basis for refugee status, in: Columbia Human Rights Law Review, vol. 15, 1983-1984, p. 47. At p. 44, the
author noted that the UN have demonstrated a commitment to protecting many groups of persons from
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aspect of deliberate targeting of an individual by the agent of persecution supports the


individualistic nature or the subjective concept of a refugee according to the 1951 Geneva
Convention definition.693 As it has been noted, however, persecution needs not, and often
does not, have any precise motivational basis: the need for cognizable grounds may exclude
persecuted individuals from achieving asylum today, just as it would have done when the
1951 Geneva Convention was initially conceived. For instance, in several African countries
persecution in the context of widespread government oppression includes indiscriminate
arrests, tortures and disappearances concerning large numbers of individuals, but devoid of a
specific focus on any particular segment of the population.694
According to the 1951 Geneva Convention definition, which exclusively includes
individuals disenfranchised by their country of origin because of their membership in a
particular social group, nationality, political opinion, race or religion,695 individuals are
provided with protection if they are victims of civil or political oppression. On the other hand,
socio-economic rights are not protected in that those individuals who are denied even such
basic rights as food, health care, or education, are excluded from the international refugee
regime (unless that deprivation stems from civil or political status).696 It has been observed
that the definition of refugee in the 1951 Geneva Convention is quite restrictive, citing
individual persecution as the only causal factor behind the determination of refugee status.697
Moving on to consider the African instrument, we begin by noting that the preamble to
the 1969 OAU Convention states that the Convention [s]hall be the effective regional
complement in Africa of the 1951 United Nations Convention on the Status of Refugees. In
addition to being considered as supplementary to the 1951 Geneva Convention, the 1969

persecution, the commitment taking principally two forms: conventions and resolution s condemning and
proscribing certain governmental activities and provisions for the protection of those individuals persecuted.
693
Schreier, T.H., A Critical Examination of South Africas Application of the Expanded OAU Refugee
Definition: Is Adequate Protection Being Offered Within the Meaning of the 1969 OAU Refugee Convention?,
Cape Town: University of Cape Town, Faculty of Law, LL.M. Thesis, 2008, p. 7.
694
Westra, L., op. cit. note 429, p. 16.
695
Hathaway, J.C., The Law of Refugees Status, op. cit. note 685, p. 8.
696
Idem. The interpretation of the definition has been, however, subject of several criticisms, as well. For
instance, J.A. Gonzaga affirmed: [A] criticism of the refugee definition is that it has been subject to different
and inconsistent interpretations, especially recently. [] [Some states focus] more on the letter rather than spirit
or purpose of the Refugees Convention, to minimize their responsibility instead of ensuring protection to
legitimate beneficiaries. See: Gonzaga, J.A.C., The role of the United Nations High Commissioner for
Refugees and the refugee definition, in: Kneebone, S. (edited by), The Refugees Convention 50 Years on -
Globalisation and International Law-, Aldershot: Ashgate Publishing Ltd., 2003, p. 237.
697
Haddad, E., op. cit. note xx, p. 32. In this regard, see also: Dawson, G.; Farber, S., op. cit. note 9, p. 59:
Therefore, while the Refugee Convention definition can be applied broadly, it does not cover, and was not
intended to cover, individuals that flee their countries on account of generalized violence or grounds outside of
the five enumerated by the Refugee Convention.
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OAU Convention, with its expanded definition of refugee,698 is considered a landmark in


refugee law.699
The adoption of the 1969 OAU Convention reflected more closely the realities of
Africa during a period of violent struggle for self-determination and national development700
and as it has been argued:

The original definition of refugee, as outlined in the 1951 Convention, is becoming


increasingly irrelevant, particularly in cases of large-scale flows of refugees resulting from
ethnic conflicts or other internal disturbances. Put another way, the moral if not legal
responsibility for wider categories of persons in need of protection by the international
community is becoming increasingly expected.701

The need to develop a refugee regime that would provide protection to the type of
forced migrants found in Africa was also one of the main concerns of those who drafted the
1969 African Convention. While this conclusion is likely correct, it is important to keep in
mind, as it has been strongly stated, that academic and legal analysis of the meaning or
intentions of the 1969 OAU Convention drafters is seriously challenged due to lack of
published original records on this instrument.702 In this regard, the forces that motivated the
1969 OAU Convention were political, and then predominantly security-driven, although the

698
Ortiz Miranda, C., Toward a broader definition of refugee: 20th century development trends, in: California
Western International Law Journal, vol. 20, 1989-1990, p. 323.
699
Opoku Awuku, E., Refugee movements in Africa and the OUA Convention on refugees, in: Journal of
African Law, vol. 39, 1995, p. 86.
700
Arboleda, E., Refugee definition in Africa and Latin America: the lessons of pragmatism, in: International
Journal of Refugee Law, vol. 3, 1991, p. 186. A. Tuepker added that: The OAU definition has been praised for
privileging the African values of hospitality and community over a western individualism, though an insistence
on these virtues as uniquely African is difficult to sustain. See: Tuepker, A., On the threshold of Africa: OAU
and UN definitions in South African asylum practice, in: Journal of Refugees Studies, vol. 15, 2002, p. 411. A.
Aiboni concluded that the concept of refugee as defined in the 1951 Geneva Convention is not universal and
creates certain problems when it comes to its application to new refugees from new areas and notably in the
Third World. See: Aiboni, S.A., Protection of Refugees in Africa, Uppsala: Svenska Institut fr Internationell
Rtt, 1978, p. 30.
701
Hyndman, J.; Nylund, B.V., op. cit. note 290, p. 34.
702
Okoth-Obbo, G., Thirty years on: a legal review of the 1969 OAU Refugee Convention Governing the
Specific Aspects of Refugees Problems in Africa, in: Refugee Survey Quarterly, vol. 20, 2001, p. 85. At p. 86,
the author observed that no systematic travaux prparatoires of the convention were ever published, that very
few original documents exist, and that mainly secondary sources can be found. Research in this area has tended
to be based on two pioneer works that were published shortly after the Conventions adoption and [s]everal
subsequent studies have fully relied upon key formulations in these papers without further research into the
picture which primary sources may portray, even if this would be merely for the purpose of verification. In this
regard, see also: Worster, W.T., op. cit. note 636, pp. 110-111: Due to a lack of documentation on the drafting
history of the OAU Convention, there has been considerable debate about the intention of the drafters, and
speculation has been unhelpful. However, note that this instrument was signed by some of the largest recipients
of refugees in the world, specifically: Tanzania, Chad, Kenya, Uganda, Sudan, Democratic Republic of Congo,
Zambia, Egypt, Algeria, Ethiopia, Cameroon, and Rwanda. The author added at idem: The second of the states
incorporating the Convention criteria, Tanzania, is the single highest recipient of refugees in Africa and the sixth
highest recipient in the world.
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whole was to be systematized in legal terms.703 The fact that an African definition was
necessary to compensate the inappropriateness of the 1951 Geneva Convention in relation to
the reality of the refugee situation in Africa has been considered a gross overstatement. In
fact, the 1969 African Convention was developed more to address the problem of subversive
activities by refugees in countries of asylum and to eliminate the problem of the temporal
limitation originating in the 1951 Convention.704
The expanded refugee definition provided in the 1969 African Convention is
considered an original and forward-looking contribution to refugee jurisprudence.705 In this
regard, according to the 1969 OAU Convention:

[T]he term refugee shall also apply to every person who, owing to external aggression,
occupation, foreign domination or events seriously disturbing public order in either a part or
the whole of his/her or her country of origin or nationality, is compelled to leave his/her place
of habitual residence in order to seek refuge in another place outside his/her country of origin
or nationality [emphasis added].706

This definition presents the terms aggression, occupation and foreign domination
which cannot target a single individual, as they affect the whole community. In addition, both
the terms occupation and foreign domination may also apply to economically motivated
domination of an area and unjustifiable intrusion into the affairs of non-consenting
communities.707

703
Okoth-Obbo, G., Thirty years on: a legal review of the 1969 OAU Refugee Convention Governing the
Specific Aspects of Refugees Problems in Africa, op. cit. note 702, p. 90. The author provided many examples
of provisions in the 1969 OAU Convention that are geared to these objectives, such as, addressing asylum, is the
statement that: [t]he grant of asylum to refugees is a peaceful and humanitarian act and shall not be regarded as
an unfriendly act by any Member State. In this regard, see also: Van Garderen, J.; Ebenstein, J., op. cit. note
xxxvii, p. 189.
704
Okoth-Obbo, G., Thirty years on: a legal review of the 1969 OAU Refugee Convention Governing the
Specific Aspects of Refugees Problems in Africa, op. cit. note 702, pp. 109-110. See also: Jackson, I.C., The
Refugee Concept in Group Situations, op. cit. note 258, p. 178, where the author affirmed: It is correct that the
wording of the extended definition [of the 1969 OAU Convention] is wider than that of the 1950/1951
definitions. There must, however, 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 might at first sight
appear.
705
In this regard, J. Fitzpatrick observed that: The definition of refugee (under the 1969 OAU Convention) []
was expanded [] without any suggestion that the quality or durability of their protection should be diminished
as compared to that enjoyed by persons meeting the definition in the 1951 Convention. See: Fitzpatrick, J.,
Temporary protection of refugees: elements of a formalized regime, in: American Journal of International
Law, vol. 94, 2000, p. 293.
706
Article I2 of the 1969 OAU Convention. At first, the 1969 African Convention, in its article I, paragraph 1,
repeats the 1951 Geneva Convention refugee definition -with the 1967 Protocols addition, which removed the
geographical and temporal limitations from same- and then includes this additional definition of a refugee.
707
Westra, L., op. cit. note 429, p. 29.
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In addition, this paragraph has been considered broad enough to encompass members of
liberation movements struggling against colonial rule or domination by a European
minority708 and it accommodates freedom fighters whose objectives are eminently
political.709 Moreover, this definition has been considered inclusive of what are called de
facto refugees in Europe, a category in which a normal eligibility determination should not
take place.710 Therefore, a much wider category of refugees is considered statutory and thus
able to benefit from the protection of the 1969 OAU Convention.711 In addition, even if the
specific words war or armed conflict are not present, the African definition, and but,
according to a scholar, the 1951 Geneva Conventions definition,712 is inclined to include
within their definition of refugees those escaping from armed conflicts.713 The expression
external aggression seems to cover the use of armed force by a government against the
sovereignty, territorial integrity or political independence of another government; in broad
terms international armed conflict. By identifying occupation a concept first introduced

708
Berhanykun, A., The OAU and the UN, New York/London: Africana Publishing Company, 1976, p. 181.
709
Rwelamira, M.R.K., Two decades of the 1969 OAU Convention Governing the Specific Aspects of the
Refugee Problem in Africa, in: International Journal of Refugee Law, vol. 1, 1989, p. 558. Concerning the
freedom fighters, the author argued that: It was the duty of every African country in spirit of solidarity to assist
freedom fighters who were fighting for the liberation of the African continent from colonial rule. [] [Freedom
fighters] had no duty to abstain from subversive activities against countries under colonial rule and white
minority domination. African solidarity and the principles of the OAU as expressed in its Charter, clearly states
that in seeking freedom for the African Continent, it was legitimate to assist liberation movements. In this
regard, see also: UNHCR [with UNECA, OUA & Dag Hammarskjld Foundation], Final report on the
conference on the legal, economic and social aspects of African refugees problems, Addis-Ababa, October 9-18,
1967, Uppsala: The Scandinavian Institute of African Studies, 1968, paragraphs 83-84. In any case, if the
African definition of refugee was large enough to encompass the category of the freedom fighters, at the same
time we note that the definition: [w]as clearly not intended to cover those who sought to overturn the
governments of independent States, This explains [] the distance that the Ugandan government has sought to
create between itself and the refugees of Rwandese extraction who make up the Rwandese Patriotic Front which
invaded Rwanda from Uganda in October 1990. See: Oloka-Onyango, J., Human rights, the OAU Convention
and the refugee crisis in Africa: forty years after Geneva, in: International Journal of Refugee Law, vol. 3,
1991, p. 456.
710
The de facto refugees have been defined as those who cannot be qualified according to an interpretation
provided by the parameters given in the 1951 Geneva Convention. In this regard, see: Aukot, E., Refugee
protection in Africa: a developing countrys dilemmas towards effective protection, in: East African Journal of
Peace and Human Rights, vol. 9, 2003, p. 222. The 1969 OUA Convention [a]lso reduced those known [] as
de facto refugees, but who are not protected by the provisions of the Geneva Convention, that is, those who are
unable to prove the fact of an individual well-founded fear of persecution, and yet have fled their homes and are
unwilling to return. See: Oloka-Onyango, J., Human rights, the OAU Convention and the refugee crisis in
Africa: forty years after Geneva, op. cit. note 709, p. 456. For a similar definition, see: Weis, P., Convention
refugees and de facto refugees, in: Melander, G.; Nobel, P. (edited by), African Refugees and the Law, Uppsala:
Scandinavian Institute of African Studies, 1978, p. 17.
711
Anand, R.M., op. cit. note lxxix, p. 17.
712
Mathew, P., First do no harm: refugee law as a response to armed conflict, in: Lovell, D.W.; Primoratz, I.
(edited by), Protecting Civilians during Violent Conflict, Farnham Surrey-: Ashgate Publishing Limited, 2012,
p. 161: Strict as it is, the Refugee Convention definition is capable of being applied during times of armed
conflict. The term persecution is widely accepted as encompassing violation of human rights.
713
However, as UNHCR pointed out: [T]here are persons who flee the indiscriminate effects of violence
associated with conflict with no element of persecution. Such persons might not meet the Convention definition,
but may still require international protection on other grounds. See: UNHCR, Interpreting Article 1 of the 1951
Convention Relating to the Status of Refugees, Geneva, 1 April 2001, paragraph 22, p. 7.
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by the International Humanitarian Law-714 foreign domination and events seriously


disturbing public order as separate situations of protection, the drafters of the 1969 OAU
Convention were thinking of contemporaneous armed conflicts taking place in a number of
African countries often caused by poverty.715 Countries such as Burundi, Sierra Leone and
Uganda constitute typical examples of countries with very low human development indicators
that are emerging from prolonged periods of armed conflicts.716
Finally, concerning the relations between the 1951 Geneva Convention and armed
conflicts, Durieux affirmed that:

[The 1951 Geneva] Convention refugee claim is hardly a matter of armed conflict- it is
a matter of fear of persecution. The decision-makers mind must remain focused on
persecution, under its many forms. Refugee law precepts [] warn against the assessment
taking a different starting point or coloring dispensing, as it were, with a full assessment of

714
Durieux, J.-F., Of war, flows, laws and flaws: a reply to Hugo Storey, in: Refugee Survey Quarterly, vol.
31, 2012, p. 169. At idem, the author continued: An international humanitarian law reading makes it clear that
this ground seeks to protect persons who are compelled to flee once the whole or part of the territory of their
state of nationality, engaged in an international armed conflict, is invaded and occupied by another belligerent
state. What is far less clear, however, is whether an international humanitarian law reading can elucidate the
casual link or nexus between foreign occupation and displacement/flight. As far as I know, the only []
reference in international humanitarian law to the existence of refugees from international armed conflicts as
opposed to pre-existing refugee populations on occupied territories- can be found in article 49 of the Fourth
Geneva Convention. [] Such deported people, finding themselves [] outside their country of nationality,
may or may not meet all other criteria of the 1951 Refugee definition. There is, however, little chance that they
may be treated as refugees by the deporting power, if they end up on that states territory. In this regard, article
49 of the 1949 Fourth Geneva Convention reads: 49) Individual or mass forcible transfers, as well as
deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of
any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying
Power may undertake total or partial evacuation of a given area if the security of the population or imperative
military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the
bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement.
Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have
ceased. The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable
extent that proper accommodation is provided to receive the protected persons that the removals are effected in
satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not
separated. The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken
place. The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of
war unless the security of the population or imperative military reasons so demand. The Occupying Power shall
not deport or transfer parts of its own civilian population into the territory it occupies.
715
Storey, H., Armed conflict in asylum law: the war-flaw, in: Refugee Survey Quarterly, vol. 31, 2012, p.
7.
716
Moore, J., op. cit. note 22, p. 79. At p. 80 the author explained: At the start of the civil war 1991, Sierra
Leone ranked at the very bottom of the UNs ranking development countries in terms of its human development
index. In 1991, Burundi and Uganda were both ahead of Sierra Leone in terms of human development rankings,
but still in the lowest 20 percent of all developing countries. [] Recent modest gains for Ugandans and the
prolonged socio-economic insecurity of most Sierra Leoneans and Burundians highlight the fragility of long-
term peace processes in countries emerging from armed conflict.
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the Convention grounds- just because the claimant left a country plagued by armed
conflict.717

Returning to the analysis of the 1969 OAU Convention, some scholars have on the
contrary argued that the African definition does not go very far: this definition, they argue, is
silent on issues dealing with mass-influx. The procedure for determining who is a refugee is
also largely left to states discretion.718 There is not, however, consensus on the latter
affirmation by the doctrine.719
As opposed to the 1951 definition, which fundamentally requires a refugee to hold a
well-founded reason for persecution,720 for instance, in determining the status of refugees in
the 2007 Tantoush case;721 there is no such requirement in the African refugee definition.
According to the African definition, the determination of refugee status involves rather [a]n

717
Durieux, J.-F., Of war, flows, laws and flaws: a reply to Hugo Storey, op. cit. note 714, p. 166. At idem, the
author continued: [I]t is highly recommendable that decision-makers be equipped with the proper tools to: 1)
understand and analyze (albeit not to qualify) the conflict within which a risk of persecution is said to exist;
and 2) give a proper and dynamic interpretation of persecution.
718
Murray, R., Human Rights in Africa: from the OUA to the African Union, op. cit. note 344, p. 189.
719
For instance, A. Edwards explained that the African definition [m]ay seem perfectly functional in cases of
mass influx where its humanitarian spirit governs its application. See: Edwards, A., Refugee status
determination in Africa, in: African Journal of International and Comparative Law, vol. 14, 2006, p. 211.
720
The basis of which has both a subjective component and an objective component, which is proven through an
examination of the objective country conditions of the refugees country of origin or nationality. See: Schreier,
T.H., op. cit. note 693, p. 10, note 26. T.N. Cox has been more explicit in his explanation: While the well-
founded fear criterion may be susceptible of some latitude in interpretation, the following general assertions may
be made with reference to the [] definition of refugee: first, the core of the refugee definition is an individuals
fear of persecution; second, the fear is well-founded if it is based on reasonable grounds; third, such grounds are
established if a person can give a plausible account of why he/she fears persecution and this account is supported
to the extent reasonably possible; fourth, an additional objective basis underlying the persons fear can be
required only if the States assists the person in providing such basis; fifth, an individual must be accorded the
benefit of the doubt; sixth, the well-founded fear criterion is to be applied in a non-discriminatory manner; and
seventh, the well-founded fear criterion is to be applied as liberally as possible. See: Cox, T.N., Well-founded
fear of being persecuted: the sources and application of a criterion of refugee status, in: Brooklyn Journal of
International Law, vol. 10, 1984, pp. 351-352. Concerning the meaning attributed to the word fear in the
context of the refugee protection, we personally find important the following clarification given by J.C.
Hathaway and W.S. Hicks: Although the term [fear] may signify an emotional reaction of trepidation on the
part of the applicant for refugee status, fear can equally refer to his or her forward-looking expectation of risk.
[I]n view of the duty to interpret a treaty based not solely on text, but also to take account of its context, object,
and purpose, the latter understanding of fear as forward-looking expectation of risk is more legally authentic.
This understanding of fear as mandating only an anticipatory appraisal of risk is moreover fully consistent with a
second principle of treaty interpretation, namely that equal attention must be given to all legally authoritative
versions of the treaty. See: Hathaway, J.C.; Hicks, W.S., Is there a subjective element in the Refugee
Conventions requirement of well-founded fear?, in: Michigan Journal of International Law, vol. 26, 2004-
2005, p. 535.
721
In this regard, the High Court of South Africa affirmed: [The applicant] has a well-founded fear of being
persecuted for his political and religious affiliations. The fact that the applicant is a member of a loose grouping
of political and religious dissidents whose members are regularly detained, tortured and unfairly prosecuted in
Libya and that he faces trumped up charges renders it axiomatic that on his return to Libya he will be detained in
an institution like Abu Salim, where there is a real risk, more than a reasonable possibility, that he will be
subjected to cruel and inhumane treatment. See: High Court of South Africa (Transvaal Provincial Division),
Ibrahim Ali Abubaker Tantoush v. Refugee Appeal Board and Others, Case No. 13182/06, 14 August 2007,
paragraphs 132-133.
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examination of whether the facts of a specific situation fit within the definitions specified
causes of flight.722
As such, the implication of the 1969 OAU definition is that it attempts to link the
refugee definition with the real causes of the refugee problem. In this regard, the African
definition does not refer to the subjective fear of the individual where the word fear refers
to the emotions deriving from the individuals perception of risk-723 but rather to objective
facts: the unbearable and dangerous conditions which set entire populations on the move.724
As a result of the absence of individual characteristics in the African definition, it more
readily conforms to the realities of the continent and other regions of the developing world, in
which people are displaced as a result of generalized threats, law and order in a society, the
disruption of their societies, and the failure or inability of the government of their country of
origin to protect them. Based on this purpose, it may be affirmed that the extended definition
in the 1969 OAU Convention represents more of a:

[c]ommunitarian philosophy of asylum which focuses on the nature of the community.


[] Instead of premising itself on the existence of a relatively stable political community, the
OAU definition is premised on the position that the community itself may constitute the
threat. The sum effect is that this Africanized notion of asylum is cohered around the quality
of the community, instead of around the quality of the individual.725

In addition, the OAU expanded refugee definition is noteworthy because it may also
embrace within its scope unintentional situations which are not unavoidably based on
premeditated state action, and because the source of threat does not need to consist of the
actions of a state or its agents. In this sense, it focuses on the objective circumstances that
have induced the flight.726

722
Bond Rankin, M., op. cit. note 690, p. 5. At idem, the author continued: In effect, this thesis posits two
explanations for the OAU definitions objective quality: first, it is objective because the word fear has been
replaced with the word compelled; and second, it is objective because it focuses on a series of objective events in
an asylum-seekers country of origin.
723
Noll, G., Evidentiary assessment under the Refugee Convention: risk, pain and the inter-subjectivity of
fear, in: Noll, G. (edited by), Proof, Evidentiary, Assessment and Credibility in Asylum Procedures,
Leiden/Boston: Martinus Nijhoff Puiblishers, 2005, p. 154.
724
Rwelamira, M.R.K., Two decades of the 1969 OAU Convention Governing the Specific Aspects of the
Refugee Problem in Africa, op. cit. note 709, p. 559. In any case, as L. Westra pointed out: The fear itself
remains primary, and the objective conditions that give rise to that fear do not include the state of mind and the
specific intent of the persecutor. The latter is not part of the burden of proof the applicant for asylum must meet.
See: Westra, L., op. cit. note 429, p. 17.
725
Bond Rankin, M., op. cit. note 690, p. 7.
726
Okoth-Obbo, G., Thirty years on: a legal review of the 1969 OAU Refugee Convention Governing the
Specific Aspects of Refugees Problems in Africa, op. cit. note 702, p. 112.
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In spite of the objective aspect, the definition of a refugee adopted by African states
does not automatically imply that victims of natural disasters or economic adversity should
become the liability of the international community. Nevertheless, if the economic aspect has
been plainly underlined by the High Court of South Africa (Transvaal Province) in the 2006
Fang case,727 the doctrine surrounding the environmental causes of refugee status is more
doubtful. In effect, several authors but not for the author of this work, as we shall later see
have seen the ground-breaking OAU refugee definition, in general terms, as being applicable
to all individuals obliged to flee across national frontiers by reason of any natural disaster.728
One scholar asserted in support of this proposition that:

The OAU Convention was not primarily designed with environmentally displaced
persons in mind, but unequivocally includes victims of environmental crises since such events
seriously disturb the public order. Accordingly, these environmental refugees are included
in UNHCRs mandate.729

Among the natural disasters more commonly occurred which induced displacement in
Sub-Saharan Africa, Terminski has listed: [t]he land contamination following the
exploitation of natural resources (degradation in the Niger Delta), [] current sea level rise
(Nigeria, Gambia, Senegal), [] deforestation (according to the UN analysis Nigeria has the
worlds highest rate and DRC consumes more bush meat than any other tropical country),
[] desertification, droughts (the 2011 drought in East Africa was described as the worst in
60 years), floods (Nigeria in 2010), volcanic eruptions (the Erta Ale volcanic eruption in
Ethiopia September 2005- forced 6,500 nearby residents to flee).730

727
On that particular occasion, the court argued that: Economic considerations per se do not qualify a person as
a refugee. See: High Court of South Africa (Transvaal Provincial Division), Fang v. Refugee Appeal Board and
Ors. Case No. 40771/05, 15 November 2006, p. 16. In this regard, T.N. Muzenda pointed out: Natural disasters
are often considered among so-called push factors, such as drought and desertification, which force people to
uproot and leave their normal place of residence. In the majority of African cases, though, it is necessarily the
environmental disaster, but rather the political and economic factors surrounding the crisis that would allow a
drought to develop into starvation. See: Muzenda, T.N., The role of social and economic factors and natural
disasters in forced population displacements in Africa, in: International Journal of Refugee Law, special issue,
vol. 7, 1995, pp. 51-52.
728
Hathaway, J.C., The Law of Refugees Status, op. cit. note 685, p. 17. In this regard, see also: Chhangani, R.C.,
African Refugee Law: Problems and Prospects, Maiduguri- Nigeria, University of Maiduguri Press, 1992, p. 9
and Naldi, G.J., The Organization of African Unity: an Analysis of its Role, 2nd edition, London/New York:
Mansell, 1999, p. 79. Nevertheless, for instance: [I]n the case of the war in Liberia and Sierra Leone [] the
evidence [was] for an environment-conflict link, but [] no direct connection between deforestation and the war
is found; in essence, although Liberia and Sierra Leone have environmental problems, they do not have
environmental crises. See: Black, R., Environmental refugees: myth or reality?, op. cit. note 429, p. 9.
729
Lopez, A., The protection of environmentally-displaced persons in International Law, in: Environmental
Law, vol. 37, 2007, pp. 389-390.
730
Terminski, B., Environmentally-induced displacement: theoretical frameworks and current challenges,
Universit de Liege: Cedem working paper, 2012, pp. 58-60.
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This latter list represents an important point, as this section of our work will later turn
its attention to defining the enumerated OAU events which oblige individuals to flee. For
this purpose, the way in which these events are defined, in particular events seriously
disturbing public order may lead to greater recognition and consequently increased refugee
protection in terms of the African definition,731 although it is not always the case.732
The refugee definition in the 1969 OAU Convention contains four major and unique
adaptations to that in the 1951 Geneva Convention, which were necessary in order to satisfy
expressly the types of displacement of people on the African continent. First of all, the
regional refugee definition recognizes that violations of human rights may occur not
exclusively due to the calculated acts of government, but also due to external aggression,
occupation, foreign domination or an otherwise serious disturbance of public order. The latter
situation occurred, for instance, in Cte dIvoire in 2003-2004, and was recognized by the
Beninese authorities when accepting several applications to grant refugee status.733 This kind
of modification in the 1969 OAU Convention compared to the 1951 Geneva Convention
acknowledges the need to examine the claim of a refugee in terms of the de facto authority
structure in the country that the refugee flees.
Second, the 1969 OAU definition admits the concept of group disfranchisement, in that
the definition confirms the legitimacy of the refugees flight as a result of a widespread threat.
This in turn has led to the qualified acceptance of the notion of refugee group
determination.734
However, it has been warned that the majority of the literature on the 1969 African
Convention gives the impression that it is significantly oriented towards mass-influx
situations. However, one scholar affirmed that this is not true, as the 1969 African Convention
remains unspoken on this issue, above all on the whole range of aspects regarding RSD in the
case of mass-influx situations.735
Third, the expanded OAU definition allows for the possibility that the underlying
motivation or rationale for the anticipated damage may be indeterminate. In effect, if an
individual is obliged to seek refuge because of some probable disturbance of public order,
731
Schreier, T.H., op. cit. note 693, p. 11.
732
For instance, in the 2007 Lumumba v. Refugee Appeal Board and Ors case, the court argued that the
[a]pplicant did not give details of why he was not safe in Lubumbashi and who will want to hurt him nor the
reason why he will be hurt. It is just a bold statement that he was told that he is not safe in Lubumbashi. See:
High Court of South Africa (Transvaal Provincial Division), Lumumba v. Refugee Appeal Board and Ors, Case
No. 17170/2006, 21 September 2007, p. 15 of the judgment.
733
Benin: Coordination Nationale pour lAssistance aux rfugis, Recueil des dcisions du Comit dlgibilit
au statut de rfugi, No. 2, 2008, cases: CE, 21 Fvrier 2007, no. 643, Q.S.; CE, 29 novembre 2006, no. 507,
C.V., pp. 98-101.
734
Hathaway, J.C., The Law of Refugees Status, op. cit. note 685, pp. 17-18.
735
Okoth-Obbo, G., Thirty years on: a legal review of the 1969 OAU Refugee Convention Governing the
Specific Aspects of Refugees Problems in Africa, op. cit. note 702, pp. 99-100.
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he/she does not have to show any relation between his/her personal status and the imminent
harmful situation. As the African standard has put the accent more on the appraisal of the
seriousness of the disturbance of public order, rather than reasons that have induced the flight,
individuals can decide for themselves when harm is sufficiently close to warrant flight.736
The 2007 Mayongo v. Refugee Appeal Board and Others case constitutes a typical
example in which an African court gave reason to the discretionary power of the applicant
to establish the gravity of the harm suffered due to a disruption of public order in his country
of origin. The applicant was an Angolan asylum-seeker who fled his home country because of
the serious harm that he claimed to be suffering there. In addition, on this specific occasion,
as the regional tribunal delayed its decision on the application for asylum by Mr. Mayongo,
the High Court bypassed the competence of the regional tribunal pointing out that:

Although it is not often done, a court may in special circumstances substitute the
decision of the tribunal which is under review with its own. In my view, this is the case where
the court must do so. The applicant has now been living in a state of uncertainty for more than
five years, mainly due to departmental delays. The available evidence made the correct
decision a foregone conclusion. If the position changes at a later stage the applicant may lose
his/her refugee status in terms of section 5 of the Refugee Act.737

Finally, the fact that the African definition includes the phrase in either part or the
whole of, referring to the refugees country of origin, constitutes another important
adaptation to the original definition provided in the 1951 Geneva Convention. The definition
contained in the 1951 Geneva Convention suggests that an individual must inevitably first
seek protection within a safe part of his/her own country of origin, 738 if such an area exists
and it is reasonable for the person to move there, before seeking protection in a different

736
Hathaway, J.C., The Law of Refugees Status, op. cit. note 685, p. 18.
737
High Court of South Africa (Transvaal Provincial Division), Mayongo v. Refugee Appeal Board and Others,
Case No. 16491/06, 4 April 2007, paragraph 10.
738
In refugee determination procedures, this consideration is commonly known as the internal flight
alternative, or the internal protection alternative. According to the UNHCRs Guidelines on international
protection No. 4: internal flight or relocation alternative within the context of article 1A2 of the 1951
Convention and/or 1967 Protocol Relating to the Status of Refugees, document No. HCR/GIP/03/04, 23 July
2003, p. 2, paragraphs 1 and 3, the IFA is: 1) [a] concept that is increasingly considered by decision-makers in
refugee status determination. As of 20 July 2012, there has been no consistent approach to this concept and
consequently divergent practices have emerged both within and across jurisdictions. Given the differing
approaches, these Guidelines are designed to offer decision-makers a more structured approach to analysis of
this aspect of refugee status determination. And: 3) Some have located the concept of internal flight or
relocation alternative in the well founded fear of being persecuted clause of the definition, and others in the
unwilling [] or unable [] to avail him/herself of the protection of that country clause. These approaches
are not necessarily contradictory, since the definition comprises one holistic test of interrelated elements. How
these elements relate, and the importance to be accorded to one or another element, necessarily falls to be
determined on the facts of each individual case.
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country.739 The African definition, by virtue of the inclusion of this phrase, does not contain
this requirement.

3.2 Analysis of the main elements of article I of the 1969 OAU Convention (definition of the
term refugee)

With the adoption of the 1969 OUA Convention, its expanded refugee definition
incorporated new terminology never before used in international law. The use of this new
terminology:

[r]eflected the urgency of responding to the African reality [] established an


important precedent in international law, [] responded to obvious humanitarian concerns,
and sought to provide a practical solution to the problem of determining refugee status.740

However, the African definition has also been deemed significantly vague and
ambiguous. Although there is an intuitive sense to its meaning, the African definition raises a
number of serious interpretive problems ranging from assumptions regarding its nature to
more specific concerns about its content.741
Due the lack of publicly available travaux prparatoires or primary sources concerning
the formulation of the 1969 African Convention, limited and contradictory evidence of state
practice, and a dearth of existing jurisprudence dealing with the application of the 1969 OAU
refugee definition in the countries of the continent, the task of interpreting the definition is
particularly difficult.

739
Hathaway, J.C., The Law of Refugees Status, op. cit. note 685, pp. 18-19, where the author pointed out three
sensible reasons for this adaptation to refugee definition: First, issues of distance or the unavailability of escape
routes may foreclose travel to a safe region of the refugees own state. Undeveloped infrastructure and
inadequate personal financial resources may reinforce the choice of a more easily reachable destination. Second,
the political instability of many developing states may mean what is a safe region today may be dangerous
tomorrow. Rapid shifts of power and the consequent inability to predict accurately where safe haven is to be
found may lead to a decision to leave the troubled state altogether. Finally, the artificiality of the colonially
imposed boundaries in Africa has frequently meant that kinship and other natural ties stretch across national
frontiers. Hence, persons in danger may see the natural safe haven to be with family or members of their own
ethnic group in an adjacent state. In this regard, see also: Mbaya, E.R., La Communaut internationale et les
mouvements des populations en Afrique, Abidjan: Editions Yaba, 1985, p. 17 where the author noted: [Le]
franchissement des limites territoriales, surtout en Afrique de lOuest, tait frquent avant que les pays accdent
lindpendance politique et que soient dfinies des frontires juridiques bien nettes. [...] Il importe, en outre, de
souligner qu lorigine la dfinition des frontires lpoque de ladministration coloniale navait quun effet
minime puisque la plupart des migrants se dplaaient trs librement sans tenir compte de frontires
artificielles .
740
Arboleda, E., op. cit. note 700, p. 195.
741
Bond Rankin, M., op. cit. note 690, pp. 1 and 11.
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With the above in mind, the principles of treaty interpretation found in the 1969 Vienna
Convention on the law of the treaties which were considered to be part of customary
international law by the ICJ in the 1994 case of Chad v. Libya, 742 but also in other cases
concerning African countries are of limited use.743 According to the 1969 Vienna Convention,
interpretation should begin with the text of the treaty. In detail, article 31 1) of the convention
states that: [a] treaty shall be interpreted in good faith in accordance with the ordinary
meaning744 to be given to the terms of the treaty in their context and in the light of its object
and purpose.
In addition, recourse to supplementary means of interpretation including the
preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the
meaning resulting from the application of article 31, or to determine the meaning when the
interpretation according to article 31 is provided for in article 32 of the 1969 Vienna
Convention. As affirmed above, however, concern remains that there is very little existing
information to guide researchers in terms of the 1969 OAU Conventions drafters
preparatory work and hence their intentions.
Prior to examining each of its elements, it is necessary to determine to whom the
African definition specifically applies. This question arises because of the definitions words
every person, which need to be considered. It seems that several African governments view
the African definition of refugee as applying only to nationals of African countries. The basis
for this position may be found in the conventions main purpose, that as a regional
complement to the 1951 Geneva Convention, it was created in order to meet the specific
needs of African refugees. This position suggests an intention on the part of its drafters to
limit its territorial application to Africa, therefore covering exclusively African nationals
fleeing African countries and seeking asylum in Africa.745

742
ICJ, Territorial Dispute (Libyan Arab Jamahiriya v. Chad), judgment of February 3rd 1994, in: ICJ Reports,
1994, paragraph 41, pp. 21-22: The Court would recall that, in accordance with customary international law,
reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties, a treaty must be interpreted in
good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its
object and purpose. Interpretation must be based above all upon the text of the treaty. As a supplementary
measure recourse may be had to means of interpretation such as the preparatory work of the treaty and the
circumstances of its conclusion.
743
See, for instance: ICJ, Kasikili/Sedudu Island case (Botswana v. Namibia), judgment of December 13th 1999,
in: ICJ Reports, 1999, paragraph 20, p. 1060.
744
In this regard, N. Sitaropoulos pointed out: But what is the ordinary meaning of a term in a treaty? No
detailed answer to this question appears to have been provided in the travaux by any of the negotiating states, the
International Law Commission, or even the Special Rapporteurs of the ILC. [] The ILC took the view in 1964
that the ordinary meaning of terms cannot properly be determined without reference to their context and to the
objects and purposes of the treaty and to any relevant rules of international law. See: Sitaropoulos, N.,
Refugee: a legal definition in search of a principled interpretation by domestic fora, in: Hellenic Review of
International Law, vol. 53, 1999, pp. 173-174.
745
Bond Rankin, M., op. cit. note 690, p. 12.
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On the other hand, the plain meaning of the words every person evidently points to a
more inclusive interpretation, meaning that the definitions application ought to be universal
and apply to non-Africans fleeing African countries and/or seeking asylum in Africa. This
broader line of interpretation is also more consistent with the expanded definitions goal to
extend asylum rather than to refuse it.746 Furthermore, an inclusive interpretation of the terms
every person is more consistent with the purpose and the intention of refugee protection in
general. In this regard, it is a commonly accepted international legal principle that presence
within a states territory is a juridical fact esteemed as sufficient in most cases to establish the
necessary link with local authorities.747
For instance, South African law complies with such an inclusive position. In the case
Patel v. Minister of Home Affairs,748 the court held that, as a result of the wording of the Bill
of Rights present in the constitution,749 in which most of the rights are for the benefit of
everyone, aliens have the same rights under the constitution that citizens have. This
interpretation can also be extended to the institution of asylum. It is, therefore, not by chance
that this inclusive position is also found in the South African refugee law, which is evidently
informed by the countrys advanced constitution.750
In addition, Section 10 of the Bill of Rights of the South African Constitution clearly
provides Everyone has inherent dignity and the right to have their dignity respected and
746
Schreier, T.H., op. cit. note 693, p. 16.
747
Bond Rankin, M., op. cit. note 690, p. 11, footnote 81. For an historical different practice in Sub-Saharan
Africa, see for instance: Nogel, R.J., Human rights and Ugandan expulsion of its Asian minority, in: Denver
Journal of International Law and Policy, vol. 3, 1973. At p. 109 the author argued that: There is substantial
agreement that there is an international standard of civilized justice requiring local leaders to protect aliens
crossing national and local boundaries. That standard would apply to the status of the Asians in Uganda. Since
they have been deported as aliens, their rights in that country should have been interpreted accordingly by the
international community. As long as a vigorous minority, however, demands that equality of treatment be
the only international standard, aliens will be offered the same small protection given to nationals. In this
regard, see also: Plender, R., The exodus of Asians from East and Central Africa: some comparative and
international law aspect, in: American Journal of Comparative Law, vol. 19, 1971, pp. 287-324; Brett, E.A.,
Rebuilding war-damaged communities, in: Allen, T. (edited by), In Search of Cool Ground: War, Flight and
Homecoming in Northeast Africa, London: James Currey; Trenton NJ-: Africa World Press, 1996, particularly
at p. 205 through 208.
748
This affair is cited in: Schreier, T.H., op. cit. note 693, p. 17.
749
Chapter 2 of the Constitution of the Republic of South Africa, Act No. 108, 10 December 1996, (last
amended 11 April 2003). In this regard, see also: High Court of South Africa (North Gauteng, Pretoria),
Southern African Litigation Centre and Zimbabwe Exiles Forum v. National Director of Public Prosecutions
and three others, Case No. 77150/09, 8 May 2012, paragraph 15, p. 10: Chapter 2 [of the constitution] contains
the Bill of Rights, which is the corner-stone of democracy in South Africa. It enshrines the rights of all people in
the country, and affirms the democratic values of human dignity, equality and freedom. The State must respect,
protect, promote and fulfil the rights contained therein. The Bill of Rights applies to all law, and binds the
legislature, the executive, the judiciary, and all organs of State.
750
We are referring to the South African Refugees Act No. 130, 2 December 1998. For a detailed history of the
events that gave birth to this law see: Smith, T.R., The making of the South African (1998) Refugee Act, in:
University of Witwatersrand, Forced Migration Studies Program, working paper No. 7, 2003. At p. 34, the
author pointed out that: From the beginning of the discussions between the Department of Home Affairs and
the different organizations in mid-1996, it had taken slightly less than two years and a half to complete [the
Refugee Act], a relatively short period of time in law making. It had involved many people and many different
organizations.
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protected. In the 2003 case Minister of Home Affairs and Others v. Watchenuka and
Another,751 the South African Supreme Court explicitly held that the term everyone
includes asylum-seekers, as well.752
Therefore, according to the above-mentioned principle of law and related jurisprudence,
one can assert that an:

[i]nclusive reading of the extended refugee definition is a more consistent


interpretation than an exclusive reading [and it is still] relevant to a principled application of
the extended definition.753

The four specific grounds external aggression, occupation, foreign domination, events
seriously disturbing public order or particular harmful events that may force an individual to
take flight, as enumerated in the OAU definition, indicate that the conventions drafters
apparently intended to be quite explicit about the types of events that can cause flight and
thereby justify the granting of refugee status. While these enumerated grounds also reflect the

751
Supreme Court of Appeal of South Africa, Minister of Home Affairs and Others v. Watchenuka and
Another, No. 10/2003, 28 November 2003. This case dealt with a challenge to the original prohibition (contained
in the Refugee regulations (forms and procedure), 6 April 2000) against asylum-seekers in South Africa from
seeking employment and being able to study for the first 180 days, while their asylum applications were being
considered. Section 3, sub-section 3 of the Refugee regulations read: 3) If the Department [of Home Affairs]
fails to adjudicate a case within 180 days, excepting delays caused by the applicant without just cause, the
applicant will be permitted to apply to the Standing Committee for work or study authorization or relief from
other conditions that may have been imposed by the Standing Committee.
752
Idem, where the Supreme Court of Appeal stated at paragraph 25: Human dignity has no nationality. It is
inherent in all people- citizens and non-citizens alike- simply because they are human. While that person
happens to be in this country, for whatever reason, it must be respected, and is protected, by section 10 of the
Bill of Rights. However, Lindiwe Sisulu, a cabinet Minister in South Africa, member of the African National
Congress [] had captured the historical situation of refugees in South Africa as follows: Because of the
historical isolation of South Africa, our peoples perceptions are insular, thus making them very susceptible to
xenophobia. South Africa had no experience of hosting refugees instead we produced refugees. South African
society has not been sufficiently educated on issues of refugees, the causes of refugees and particularly the
governments responsibilities towards refugees. Moreover, it is a natural phenomenon for people living in
economically depressed areas or in times of job scarcity to resent the intrusion of foreigners and to look upon
them as a threat to their jobs, food, education and all the other amenities provided by government. Quoted in:
Olowu, D., Refugees, asylum-seekers and the legal obligations of states for their protection: critical reflections
on the South African approach, in: Krishna, S.S.; Samudralal, A.K. (edited by), Refugee and Human Rights,
New Delhi: Serials Publications, 2008, pp. 40-41. The commentator, later at idem, quoted also a section of the
Braamfontein Statement on Racism and Xenophobia by the South African Human Rights Commission in 1998,
proclaiming: Xenophobia is the deep dislike of non-nationals of a recipient state. Its manifestation is a violation
of human rights. South Africa needs to send out a strong message that an irrational prejudice and hostility
towards non-nationals is not acceptable under any circumstances. Criminal behavior towards foreigners cannot
be tolerated in a democratic society. In this regard, S. Motha added: Since July 2004 up to October 2005, 54
immigrants have died in the infamous Lindela concentration camp. [] From 2006, there has been a
remarkable increase on xenophobic attacks toward refugees in the areas of Western Cape and Eastern Cape. This
practice lies in the intricate and demeaning identification procedures used by the law enforcement agencies.
See: Motha, S., Education rights for asylum-seekers, documented migrants, and refugees in Johannesburg-
South Africa: realization or elusive?, in: Krishna, S.S.; Samudralal, A.K. (edited by), Refugee and Human
Rights, New Delhi: Serials Publications, 2008, p. 127.
753
Bond Rankin, M., op. cit. note 690, p. 14.
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definitions broadness and flexibility, this does not necessarily assist with understanding the
true scope of these events. The four grounds are designed to cover a multiplicity of man-made
conditions which do not allow people to reside in safety in their countries of origin.754
Meanwhile, a plain reading of the phrase events seriously disturbing public order does not
seem to automatically indicate the reason why an environmental disaster such as a drought or
an earthquake cannot be interpreted as a serious disturbance to the public order.755
The inclusion of events such as external aggression, occupation and foreign domination
was probably prompted as a result of the African reality, which at the time included violent
struggles for independence or civil wars and the consequent humanitarian concerns. In light of
the fact that specific revolutionary situations,756 which this terms refers to in the expanded
refugee definition, may no longer exist, with most African countries having already gained
independence, these components of the definition could be considered less significant today
compared to the period in which the 1969 African Convention was conceived and adopted.
However, these grounds could also be legally feasible in the current refugee situation in Sub-
Saharan Africa.757
To this purpose, the 1998-2002 war in DRC, in which several foreign armies (Angolan,
Rwandan, Ugandan and Zimbabwean) fought in the country, may easily fit this definition.758
In the same way, the Ethiopian invasions of Somalia or the Chadian invasion of Darfur759 may

754
Rwelamira, M.R.K., Two decades of the 1969 OAU Convention Governing the Specific Aspects of the
Refugee Problem in Africa, op. cit. note 709, p. 558.
755
Schreier, T.H., op. cit. note 693, p. 18. In this regard, M.R.K. Rwelamira pointed out that: [T]he definition in
the African Convention is certainly [wide] and sufficiently broad to include even victims of ecological changes
such as drought and famine. See: Rwelamira, M.R.K., Some reflections on the OAU Convention on refugees:
some pending issues, in: The Comparative and International Law Journal of Southern Africa, vol. 16, 1983, p.
171.
756
Okoth-Obbo, G., Thirty years on: a legal review of the 1969 OAU Refugee Convention Governing the
Specific Aspects of Refugees Problems in Africa, op. cit. note 702, p. 115. In this regard, see also: Van
Garderen, J.; Ebenstein, J., op. cit. note xxxvii, p. 190.
757
Okoth-Obbo, G., Thirty years on: a legal review of the 1969 OAU Refugee Convention Governing the
Specific Aspects of Refugees Problems in Africa, op. cit. note 702, p. 116. As a result of this position, the
author suggested that the [e]xpanded definition itself has now arrived at the need for review [that] it should be
upgraded to more properly reflect the actual situations which today cause people to flee as refugees in Africa.
Here the Convention would have much to learn from the Cartagena Declaration which, in talking about
generalized violence, internal aggression and massive violations of human right, more fulsomely describes the
refugee-producing circumstances in Africa today that does the [OAU] expanded definition.
758
Rwandas presence in DRC can constitute an example of aggression by virtue of the UNSC resolution No.
1304 of 2000, although Rwanda maintained that it was acting in self-defense to flush out Interhamwe and other
rebel insurgents operating in DRCs territory. However, reading the resolution in question, we did not find
anywhere mentioned the term aggression. Quite ironically, refugees who were fleeing this conflict were likely
to seek asylum within the territory of Rwanda, the aggressor state. In this regard, see: Edwards, A., Refugee
status determination in Africa, op. cit. note 719, p. 214.
759
For a detailed description of the events of the war in Congo, see, for instance: Mangu, M.B., The conflict in
the Democratic Republic of Congo and the protection of rights under the African Charter, in: African Human
Rights Law Journal, vol. 3, 2003, pp. 235-263. At p. 244 the author clearly affirmed that one of the causes of the
war was an external aggression that is one of the grounds that the 1969 OAU Convention takes into
consideration as generator of refugees. For the conflict between Somalia and Ethiopia see, for instance: OAU,
Assembly of Heads of State and government, resolution on the Somalia/Ethiopia conflict, resolution No.
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breathe new life into the use of these specific terms. In addition, the fact that the African
definition was, for instance, entirely incorporated into South Africas national legislation
means that these events may be applied not only to Africans citizens, but also to other
individuals seeking asylum in South Africa based on the situations in their countries of
origin.760 The Refugees Amendment Act adopted by this country on 26 November 2008
confirmed this formula, although with some not substantial change in the wording.761
In spite of the foregoing point issue, it is significant to acknowledge that the terms
external aggression, occupation and foreign domination were not yet established in
international law practice at the time of the adoption of the 1969 OAU Convention, and that
even today there is still not consensus on the meaning of intervention in international
law.762
For instance, the basic concept of aggression was not formally defined until 1974,
though it was discussed in international forums prior to 1969. The UNGA set up a special
committee to determine the definition of aggression, which in 1974 finally agreed on the
following definition of the term:

AHG/Res. 90 (XV), 18-22 July 1978 where, in paragraph 4 c), the Assembly: [r]equests the OAU to render
practical assistance to the refugees and to assist in effecting the exchange of prisoners of war. About the crisis
in Darfur, see, for an interesting and alternative point of view, mostly pro-Sudanese government: Hoile, D.,
Darfur in Perspective, 2nd edition, London: The European-Sudanese Public Affairs Council, 2006, 278 p.
760
Schreier, T.H., op. cit. note 693, p. 19. See: article 3 of the South African Refugees Act No. 130, 2 December
1998: Subject to Chapter 3, a person qualifies for refugee status for the purposes of this Act if that person: a)
owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political
opinion or membership of a particular social group, is outside the country of his or her nationality and is unable
or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being
outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to
it; or b) owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting
public order in either a part or the whole of his or her country of origin or nationality, is compelled to leave his
or her place of habitual residence in order to seek refuge elsewhere: or c) is a dependant of a person
contemplated in paragraph a) or b). This section has been further amended in 2008. See: infra, note 761.
761
The 2008 amendment of section 3 of Act 130 of 1998 reads: Section 3 of the principal Act is hereby
amended by the substitution for paragraphs a), b) and e) of the following paragraphs, respectively: a) owing to a
well-founded fear of being persecuted by reason of his or her race, gender, tribe, religion, nationality, political
opinion or membership of a particular social group, is outside the country of his or her nationality and is unable
or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being
outside the country of his/her or her former habitual residence is unable or, owing to such fear, unwilling to
return to it; or b) owing to external aggression, occupation, foreign domination or other events seriously
disturbing public order in either a part or the whole of his/her or her country of origin or nationality, is compelled
to leave his or her place of habitual residence in order to seek refuge in another place outside his or her country
of origin or nationality; or e) is a spouse or dependant of a person contemplated in paragraph a) or b). Emphasis
kept from the original text.
762
Arboleda, E., op. cit. note 700, p. 195.
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Aggression is the use of armed force by a state against the sovereignty, territorial
integrity or political independence of another state or in any other manner inconsistency with
the Charter of the United Nations as set out in this definition.763

In terms of the meaning of occupation, humanitarian law provides for the definition
of this concept in the Regulations concerning the Laws and Customs of War on Land, adopted
in The Hague in 1907. Its article 42 considers a territory to be occupied [w]hen it is actually
placed under the authority of the hostile army. The occupation extends only to the territory
where such authority has been established and can be exercised.764
Talking more in general of the birth and the application of humanitarian law, we would
like to note that throughout the course of African legal history, certain tribal norms seemed to
foretell the 1949 Geneva Conventions. Among these tribal practices which find parallels in
the 1949 Geneva Conventions, we observe the women of the Tallensi tribe in Ghana sent to

763
UNGA, Definition of aggression, 14 December 1974, resolution No. 3314 (XXIX), article 1. M. Bond Rankin
confirmed: [w]hile there is some debate as to the universality of this definition, the International Court of
Justice held in the Nicaragua Case that it was the mirror of customary international law. See: Bond Rankin, M.,
op. cit. note 690, p. 14. In detail, the author referred to paragraph 195, p. 103 of the judgment, although this
paragraph explaines that considers as customary international law not the definition given in article 1 of the
1974 UNGA resolution but its article 3, describing the some situations that can be qualified as an act of
aggression by the same resolution. See: ICJ, Case concerning military and paramilitary activities in and against
Nicaragua (Nicaragua v. United States of America), judgment of June 27th, 1986, in: ICJ Reports, 1986. In full,
paragraph 195 reads: In the case of individual self-defence, the exercise of this right is subject to the State
concerned having been the victim of an armed attack. Reliance on collective self-defence of course does not
remove the need for this. There appears now to be general agreement on the nature of the acts which can be
treated as constituting armed attacks. In particular, it may be considered to be agreed that an armed attack must
be understood as including not merely action by regular armed forces across an international border, but also
the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of
armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted
by regular forces, or its substantial involvement therein. This description, contained in Article 3, paragraph g),
of the Definition of Aggression annexed to General Assembly resolution 3314 (XXIX), may be taken to reflect
customary international law. The Court sees no reason to deny that, in customary law, the prohibition of armed
attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation,
because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier
incident had it been carried out by regular armed forces. But the Court does not believe that the concept of
armed attack includes not only acts by armed bands where such acts occur on a significant scale but also
assistance to rebels in the form of the provision of weapons or logistical or other support. Such assistance may be
regarded as a threat or use of force, or amount to intervention in the interna1 or external affairs of other States. It
is also clear that it is the State which is the victim of an armed attack which must form and declare the view that
it has been so attacked. There is no rule in customary international law permitting another State to exercise the
right of collective self-defence on the basis of its own assessment of the situation. Where collective self-defence
is invoked, it is to be expected that the State for whose benefit this right is used will have declared itself to be the
victim of an armed attack. Emphasis added.
764
Article 43 of the same Regulations explains: 43) The authority of the legitimate power having in fact passed
into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as
possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
See: Convention (IV) respecting the laws and customs of war on land and its annex: regulations concerning the
laws and customs of war on land. The Hague, 18 October 1907. Annex to the convention: Regulations respecting
the laws and customs of war on land, section III: Military authority over the territory of the hostile state. This
document is available in: Schindler, D.; Toman, J. (edited by), The Laws of Armed Conflicts: a Collection of
Conventions, Resolutions and Other Documents, Leiden/Boston: Martinus Nijhoff Publishers, 4 th edition, 2004,
pp. 55-87.
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carry water to combatants and retrieve the bodies of fallen fighters, the practice by the Ngoni
in the CAR to grant prisoners the protection provided in the tribal law, and the ban among the
Nuer people of Kenya against warrior abuse of children and women.765
Moreover, article 2 of the 1949 Geneva Fourth Convention Relative to the Protection of
Civilian Persons in Time of War, common to the four Geneva Conventions of 1949, stipulates
that this convention applies to the entire range of cases of partial or total occupation of the
territory of a party to the convention, even if the occupation does not find any resistance.766
This latter definition, quoted also by the ICJ in the case Armed Activities on the Territory of
the Congo (Democratic Republic of the Congo v. Uganda) in 2005,767 was considered
relevant to the refugee situation in Sub-Saharan Africa because it focuses on the de facto
control of territory, whether occupation is partial or total, and although a state of war is not
recognized.768
Article 2 of the 1949 Geneva Conventions defines conventions extent of application
thus clarifying the definition of armed conflict.769 Article 2 also emphasizes that interstate
conflicts were central focuses of this treaty at that time, while spelling out that armed conflicts
are not limited to officially declared wars. However, article 2 does not investigate the nature
of the armed conflict itself, perhaps on purpose.770
In addition, common article 3 to the 1949 Geneva Conventions is also important
because it assures the essential standards of humanity in non-international armed conflicts,
forbidding for instance- the murder, torture and cruel treatment of all [p]ersons taking no
active part in the hostilities, including members of armed forces who have laid down their
arms and those placed hors de combat.771 This provision seems to propose a comprehensive
definition of armed conflict through the employ of the descriptive word hostilities. More
notably, through the application of primary humanitarian protections to non-international

765
Bello, E.G., African Customary Humanitarian Law, Geneva: Oyez Publishing Limited/International
Committee of the Red Cross, 1980, pp. 51-54.
766
1949 Fourth Geneva Convention, article 2 2) reads: The Convention shall also apply to all cases of partial or
total occupation of the territory of a High Contracting Party, even if the said occupation meets with no arms
resistance.
767
ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
judgment of 19 December 2005, in: ICJ Reports, 2005, paragraph 218, p. 80.
768
Bond Rankin, M., op. cit. note 690, p. 15
769
Article 2 1), common to the four 1949 Geneva Conventions, reads: In addition to the provisions which shall
be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other
armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is
not recognized by one of them.
770
Moore, J., op. cit. note 22, p. 57.
771
Article 3, paragraph 1 of the four 1949 Geneva Conventions. However, as M. Jaques pointed out: Article 3
of the Geneva Conventions [] addresses the issue of refugees in non-international armed conflicts. Yet, there
are countless instances of refugees caught up in civil wars. See: Jacques, M., op. cit. note lxx, p. 164. At ibid.,
p. 165, the author explained: Provided thy are not directly participating in hostilities, refugees in non-
international armed conflicts are protected as civilians and, as such, benefit from the fundamental guarantees of
humane treatment, as set out in common article 3 of the Geneva Conventions.
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conflicts, the 1949 Geneva Conventions seems to constitute the primary international legal
authority that armed conflicts are not limited to armed fights between states but may include
[c]onflicts occurring in the territory of one of the High Contracting Parties. 772 Thus, article
3 seems to have become increasingly important in the twenty-first century, given that most
part of the contests in this era in Sub-Saharan Africa are civil or non-international conflicts,773
where the vast greatest part of the victims are civilians, such as in Sierra Leone774
However, article 3 is now considered as a source of customary international law, to be
applied to international armed conflicts.775 It is also noteworthy for codifying, in a

772
In full, article 3 reads as follows: In the case of armed conflict not of an international character occurring in
the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a
minimum, the following provisions: 1) Persons taking no active part in the hostilities, including members of
armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or
any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race,
color, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and
shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: a)
violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; b) taking of
hostages; c) outrages upon personal dignity, in particular humiliating and degrading treatment; d) the passing of
sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted
court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 2) The
wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International
Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict
should further endeavor to bring into force, by means of special agreements, all or part of the other provisions of
the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties
to the conflict.
773
In this regard, a contrario J.-F. Durieux affirmed: [I]n Africa [] very few contemporary refugee flows are
caused by international armed conflicts much less by foreign domination. See: Durieux, J.-F., Of war, flows,
laws and flaws: a reply to Hugo Storey, op. cit. note 714, p. 170. See, also: Mathew, P., op. cit. note 712, p.
162: The changing nature of the war, however in particular the fact that we tend not to be concerned with
classic interstate conflicts undertaken for reasons of state but civil conflicts that involve political, religious
and/or ethnic cleavages-has led to cases in which it is fairly easy to identify violations that are linked to one of
the five grounds [of the 1951 Geneva Convention], as opposed to generalized or indiscriminate harm.
774
Moore, J., op. cit. note 22, pp. 57-58. The use of the mechanism mentioned in common article 3 (paragraph 2:
[T]he Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or
part of the other provisions of the present Convention) has been used several times in the past in Sub-Saharan
Africa. For instance: In the 1960-4 Congo crisis, the ICRC made special agreements with the rebels in the
Katanga and Orientale provinces for the exchange of UN soldiers against Katangese gendarmes in March 1961,
January 1962 and May 1963, while on 18 September 1964 the organization launched an appeal to [a]ll
exercising authority in Congo to respect prisoners of war and non-combatants and comply with the prohibition
on hostage-taking and bombing civilian targets. Between 1967 and 1968 the ICRC further negotiated a special
agreement for the evacuation of European mercenaries fighting for the Katangese secessionists from Zaire to the
Shagasha camp in Rwanda, and eventually their repatriation to Brussels, Zurich and Paris. During the 1967-71
Nigerian civil war the ICRC, the OAU and the Biafran authorities signed a special agreement in October 1968
for a humanitarian corridor to evacuate Biafran children through Santa Isabel and Obilago. In August 1969, the
ICRC concluded another special agreement with the Biafran authorities for an emergency relief plan, the fair
treatment of prisoners of war and the repatriation of foreigners. Following such agreements the ICRC was able to
visit hundreds of Nigerian prisoners of war held by the Biafran authorities in the Urualla, Ntuene and Achina
prisons, and in June 1969 it negotiated the release of eighteen employees of the Italian ENI oil prospecting firm.
See: Ewumbue-Monono, C., Respect for international humanitarian law by armed non-state actors in Africa,
in: International Review of the Red Cross, vol. 88, 2006, p. 911. See other examples in: ibid., 912-913.
775
Henckaerts, J.-M., Study on customary international law humanitarian law: a contribution to the
understanding and respect for the rule of law in armed conflict, in: International Review of the Red Cross, vol.
87, 2005, p. 187 where the author cited: ICJ, Case concerning military and paramilitary activities in and against
Nicaragua (Nicaragua v. United States of America), judgment of June 27th 1986, in: ICJ Reports, 1986,
paragraph 218, p. 114.
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humanitarian law treaty, several non-derogable human rights norms.776 In this sense, article 3
has been considered to work as a small human rights treaty for the time of war corresponding
as such to one of the domains in which international humanitarian law and human rights law
overlap, reciprocally strengthening each other. This common ground, shared by both
humanitarian and human rights law is manifested in customary law, where the details of
treaties do not divert from the core purposes of these provisions.777
In practice, with the exception of the newborn state of South Sudan- which
nonetheless signed the four 1949 Geneva Conventions in July 2012- all countries in Sub-
Saharan Africa are parties to them.
Returning to the analysis of the 1969 African Convention, of the three war-like events
in the first category of enumerated OAU grounds, the meaning of foreign domination poses
the most difficulty. This term seems to refer to the liberation struggles against colonialism and
while it has been utilized in several international declarations and documents, a clear
definition has not been set forth yet. For instance, the term is referred to in article 20 3) of the
1981 Banjul Charter.778
It has been suggested that the broader concept of foreign domination may have been
included in the 1969 OAU Convention due to its drafters concerns that aggression and
occupation did not fully suggest the legal status of a colonial territory. As Bond Rankin
technically affirmed:

Occupation and aggression require the interaction of two sovereign powers as opposed
to colonial state situation, where the colonial government is vested with sovereignty. On the
other hand, in a state of occupation or aggression, the occupied or aggressed territory retains
its sovereignty.779

Concerning the stipulated events seriously disturbing public order, we can first affirm
that this category of events has been assimilated, having a comparable function, to particular
social group780 in the 1951 Geneva Conventions definition. That is, it acts as a basket clause

776
These norms include, for instance, the prohibition against torture, inhuman treatment, and arbitrary execution.
777
Moore, J., op. cit. note 22, pp. 60-61.
778
The section in question reads: [a]ll peoples shall have the right to the assistance of the state parties to the
present Charter in their liberation struggle against foreign domination, be it political, economic and cultural.
779
Bond Rankin, M., op. cit. note 690, pp. 15-16.
780
A.C. Helton categorized the social groups in four main groups: statistical, societal, social and associational. In
this regard he contended: A simple statistical aggregation has no significance in the refugee recognition context,
because the members of the group lack consciousness and solidarity. [...] The societal group is comprised of
people who share basic innate characteristics such as sex or color and who [] are aware of their membership
example: women -.[] The third group is generally labeled the social group per se. Membership is voluntary in
nature example: kinship groups-. [] Members of such groups may have shared interests. These interests do
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capturing a generic set of refugee-producing situations,781 although in the 1951 Convention


this categorizes the targeted individuals, the concept of persecution remaining the core.
In the category of events seriously disturbing public order, several authors generally
include made-man events as well. In fact, on the face of it and particularly in the African
context, this category of events can possibly also include victims of ecological changes such
as drought or famine that remain among the worst plights on the continent.782 As these kinds
of situations are also common elsewhere in the world, the approach of article I2 of the 1969
OAU Convention in defining persons in need of international protection has been considered
of universal relevance.783
In order to understand its parameters and to provide a legal basis for its meaning, this
category of OAU events requires particular in-depth attention although, prior to analyzing the
meaning of public order, it would be relevant to examine the expression seriously
disturbing. The adverb seriously especially serves to inform of the extent or level of
disturbance required the OAU to qualify the event as one that forces an individual to flee. In
this sense, one may take the term seriously to mean that the event described by the OAU
must critically disturb the public order. Accordingly, the 1969 OAU Conventions text
suggests that there is an objective, quantitative element in the words seriously disturbing.
By placing the element of disturbance in conjunction with public order, the text of the
1969 African Convention seems to suggest that it is concerned by disturbance in the public
context. In addition, by including the word seriously, there is a clear indication that the
gravity of the harm must be greater than emotional distress. Therefore, the test should be an
objective assessment that considers the gravity of the harm in relation to what can typically be
understood as public order.784

not necessarily constitute the goals of the group, however, but rather form the bases of social interaction. []
Finally, there is the associational form of social group, in which the members consciously and deliberately join
the group in order to pursue the groups shared interests actively example: trade unions-. [] The four types of
groups mentioned [] may be in a state of flux, thereby changing from one form of social group to another.
See: Helton, A.C., Persecution on account of membership in a social group as a basis for refugee status, op.
cit. note 692, pp. 51-52.
781
Schreier, T.H., op. cit. note 693, p. 21
782
Rwelamira, M.R.K., Two decades of the 1969 OAU Convention Governing the Specific Aspects of the
Refugee Problem in Africa, op. cit. note 755, p. 558.
783
Mandal, R., Protection mechanism outside of the 1951 Convention (complementary protection), op. cit.
note 287, p. 14. At idem, the author clarified: As for Africa itself, the continuing contribution of the OAU
Convention has been affirmed in, for example, the Conakry Plan of Action (adopted at a joint UNHCR/African
Union symposium to mark the thirtieth anniversary of this treaty) and in the UNGA resolution No. 54/147 of 22
February 2000 on assistance to refugees, returnees and displaced persons in Africa.
784
Bond Rankin, M., op. cit. note 690, p. 16.
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The expression public order is a particular legal concept that can be found in several
international treaties, including the 1948 UDHR,785 the 1966 ICCPR,786 as well as the 1951
Geneva Convention.787 It is also mentioned in other parts of the 1969 African Convention,
such as article III1, relating to subversive activities and article VI1, relating to travel
documents.
The expression public order was meant to be read in the technical sense and it is
intended to be read in this way in the 1951 Geneva Convention because the final draft of the
1969 OAU Convention substituted the expression internal subversion with public order,
as the former was considered to be too ambiguous. In addition, because the 1969 OAU
Convention complements the 1951 Geneva Convention, and because public order appears
in both instruments, for a scholar seems logical to give the words the same meaning.788
However, through an analysis of this instrument across two instruments, we will see that the
above affirmation is not exactly true.
The 1951 Geneva Convention contains the term public order in its article 32, which
deals with the context of expulsion of refugees. Whereas the words national security are
rather clear in the text of the article, as acts of a serious nature threatening the government
both directly and indirectly, the independence or the integrity of the state on whose territory a
refugee resides;789 the expression public order is not as apparent, as it seems to be open to a
wide range of interpretations.
In the discussions leading up to the 1951 Geneva Convention, due to the uncertainty
over the precise meaning of the phrase public order amongst the representatives of common

785
Article 29 1) of the 1948 UDHR reads: In the exercise of his/her rights and freedoms, everyone shall be
subject only to such limitations as are determined by law solely for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and
the general welfare in a democratic society. Emphasis added.
786
The expression public order is present in several articles of the 1966 ICCPR, such as articles 12 3), 14 1),
21 and 22. Moreover, it is also present in article 19 dealing with the right of expression. Article 19 2) reads: 2)
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his/her choice. 2) The exercise of the rights provided for in paragraph 2 of
this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but
these shall only be such as are provided by law and are necessary: a) For respect of the rights or reputations of
others; b) For the protection of national security or of public order (ordre public), or of public health or morals.
787
Article 2 (General obligations) of the convention reads: Every refugee has duties to the country in which
he/she finds him/herself, which require in particular that he/she conforms to its laws and regulations as well as to
measures taken for the maintenance of public order. The first part of article 28 (Travel documents) reads: 1)
The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose
of travel outside their territory, unless compelling reasons of national security or public order otherwise require,
and the provisions of the Schedule to this Convention shall apply with respect to such documents []. Article
32 (Expulsion), paragraph 1 reads: 1) The Contracting States shall not expel a refugee lawfully in their
territory save on grounds of national security or public order.
788
Bond Rankin, M., op. cit. note 690, p. 17.
789
Macalister-Smith, P.; Alfredsson, G. (edited by), The Land Beyond: Collected Essays on Refugee Law and
Policy by Atle Grahl-Madsen, The Hague/Boston/London: Martinus Nijhoff Publishers, 2001, p. 8.
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and civil law states,790 there was a general agreement in the spirit of compromise that public
order should be given a narrow interpretation. In this case, the preparatory works serve as a
definitive point of reference for state parties in interpreting their authority to expel refugees
on public order grounds. For that reason, only the commission of a serious crime not any
kind of crime 791 constitutes grounds for public order expulsion, and other concerns such as
basic affronts to social norms or public morality of the asylum country are to be deemed
grounds for expulsion only in very serious cases.792
The above-mentioned position concerning the expulsion of refugees on grounds of
public order has been confirmed by another commentator who also referred to the 1951
Geneva Conventions preparatory works, which affirm that for the purpose of expulsion of
refugees, the meaning of public order was intended to refer to acts prejudicial to the peace
of the society in general.793 On the same purpose, Grahl-Madsen wrote several years before:

[t]he common criteria seems to be that public order is at stake only in cases where a
refugee constitutes a threat to an uncertain number of persons carrying out their lawful
occupations (habitual criminals, wanton killers), or to society at large, as in the case of riots
and unrest, or traffic of drugs.794

Armed with a better understanding of the expression public order in the context of
expulsion of refugees, it is still necessary to comprehend how the term is applied to other
contexts. For instance, in the context of human rights law, the term may reveal an unusual
area of reciprocal interest between the state and an individual as it looks to the fundamental

790
J.C. Hathaway stated that the 1951 Geneva Conventions drafters decided not to amend the English language
version of article 32 to refer to public policy which the Secretariat indicated was the true equivalent of the
broad-ranging ordre public in the French text version. The English notion of public order, while not a
formal legal construct, authorizes expulsion only for the narrower range of concerns necessary to avoid public
disorder. Hathaway, J.C., The Rights of Refugees under International Law, op. cit. note 130, pp. 684-686.
Another author affirmed that the nearest common law equivalent of [public order] is probably public policy
although this was considered disputed. Furthermore, he added that the French expression ordre public has
different meanings in several contexts and it referred principally to the police power of the state broadly
conceived. Such a police power would be exercised in a legal framework that includes fundamental human
rights. See: Jayawickrama, N., The Judicial Application of Human Rights Law: National, Regional and
International Jurisprudence, Cambridge UK-: Cambridge University Press, 2002, p. 196.
791
J.C. Hathaway and C.J. Harvey noted for instance that the drafters of the 1951 Refugee Convention did not
view the test of a serious crime as met where, for example, a refugee repeatedly engages in relatively minor
form of criminality, other than rape, homicide, armed robbery and arson. See: Hathaway, J.C.; Harvey, C.J.,
Framing refugee protection in the new world disorder, in: Cornell International Law Journal, vol. 34, 2001, p.
292.
792
Hathaway, J.C., The Rights of Refugees under International Law, op. cit. note 130, pp. 685-686.
793
Bond Rankin, M., op. cit. note 690, p. 17, footnote 15.
794
Grahl-Madsen, A., Commentary on the Refugee Convention 1951: Articles 2-11, 13-37, op. cit. note 96, p.
131.
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standards governing the state in its relation to the community as a whole as well as its
individual members.795
The expression public order has been generally meant the prevention of disorder or
crime, it is however considered something more than ordinary maintenance of law and order.
As it has been explained, the expression public order:

[i]s synonymous with public peace, safety and tranquility, an absence of public
disorder. The test [] is to ask whether it leads to the disturbance of the life of the
community; or whether it affects merely an individual, leaving the tranquility of society
undisturbed. It is a question of degree and the extent of the reach of the act upon society.
Thus, communal disturbances, the creation of internal strife or rebellion and strikes promoted
with the sole aim causing unrest in the labor force, are obvious instances of act impacting
against public order. In short, public order implies an absence of violence and an orderly state
of affairs in which people can pursue the normal evocation of life.796

With regard to the position that public order relates to the standards governing the
state in relation to its communities and citizens, the question has been raised of how to
characterize the minimum standards of public order. A variety of thresholds have been
reviewed to determine it, such as internal disturbances and tensions, the conclusion being that
they fall within the definition of public order because they occur on a sufficiently wide
scale and because they violate a core set of human rights that essentially undermines the peace
of society.
That said, we must ask whether a situation of widespread violations of human rights
may also find itself within a reading of events serious disturbing public order, expression
contained in the 1969 OAU Convention. The expression events seriously disturbing public
order does not appear to comprise any situation in which human rights are violated. As such,
to seriously disturb public order should be seen as an event-type involving violence or threats
against an indeterminate number of people or to a whole society.797 In this case, it appears to
us that a margin of appreciation could be left to the competent organs to establish if serious
breaches of public order have occurred. The doctrine of the margin of appreciation, which
finds origin in the jurisprudence of the ECHR,798 is based on the notion that each society is

795
Schreier, T.H., op. cit. note 693, p. 24.
796
Jayawickrama, N., op. cit. note 796, p. 466.
797
Bond Rankin, M., op. cit. note 690, pp. 18-19.
798
The doctrine was used for the first time in the case Handyside v. United Kingdom that concerned the
publication of a book aimed at school children, a chapter of which discussed sexual behavior in explicit terms.
The ECHR were willing to allow a limitation of freedom of expression in the interests of the protection of public
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entitled to a certain autonomy in solving the inherent conflicts between individual rights and
national interests or among different moral beliefs. However, international human rights
organs, other than the ECHR, and therefore comprising African organs, have largely avoided
a regular recourse to the margin of appreciation doctrine.799
Serious or massive violations of human rights should consequently qualify as threats to
people or to the host society. Fundamental human rights obviously include, among others, the
right to life and the prohibition against torture or cruel, degrading and inhumane punishment.
In our opinion, however, whether serious violations of individuals socio-economic rights can
be included in this way, as opposed to simple violations of civil and political rights constitute
another unanswered aspect of this part of the 1969 OAU Conventions definition.
In Sub-Saharan Africa, it is taken for granted that a refugee is often perceived as a threat
to the homogeneous nation-state and stability both within and between states. In effect, where
a nation-state is based on civic ideas of national identity, the refugee is imagined as a threat to
the security of its institutions, welfare system or resources. On the contrary, where the nation-
state is built on ethnic grounds, the refugee is imagined as a threat to its dominant ethnicity,
language or culture. Civic nations may wish to control refugee flows for fear of a burden on
resources, while ethnic nations would regard the control of refugees necessary for
guaranteeing the security of the dominant ethnicity of its population.800
On a final note, it seems also not clear to us whether or not environmental disasters
would constitute events seriously disturbing public order. As argued above, on the plain
reading of the text, several authors found no apparent reason why this cannot be the case.
However, we personally agree rather with the explanation that natural disasters should not
automatically be included in the definition of refugee provided by the 1969 African
Convention:

When determining who is, or who is not, entitled to refugee status, natural disasters,
such as floods and droughts, are usually dismissed as the bases for justified claims. Unlike the
violent acts one person perpetuates against another, such disasters are not considered
political events. They are, supposedly, sources of vulnerability beyond social control, which
therefore impose no obligation on a government to secure a remedy. The bonds uniting
citizens and state are said to endure even when the infrastructure or harvest of a region is

morals. See: ECHR, case of Handyside v. The United Kingdom, (Application No. 5493/72), judgment,
Strasbourg 7 December 1976.
799
Benvenisti, E., Margin of appreciation, consensus and universal standards, in: New York University Journal
of International Law and Policy, vol. 31, 1998-1999, pp. 843-845.
800
Haddad, E., op. cit. note xx, p. 92.
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obliterated or even an ideally just state cannot save us from earthquakes, hurricanes, or
eventual death. The legitimacy of the state rests exclusively on its control of human actions
rather than on its control of natural forces and the obligation of a government extends no
further than the realm of human capabilities.801

Another scholar shared the same opinion, arguing that the kind of assistance required to
deal with an environmental disaster is essentially different from the kind of assistance needed
by an individual fleeing persecution. Despite the fact that states have a moral obligation to
assist people threatened by environmental calamity, this responsibility does not require a state
to provide the type of assistance required under the 1951 Geneva Convention and the 1969
OAU Convention.802 On the contrary, the duty of third states related to an environmental
calamity is to assist the persons home state in dealing with the environmental disaster and
ameliorating the conditions it caused,803 through provision of food, shelter and rebuilding of
institutions. Individuals fleeing environmental calamity may look to their home state for
protection,804 and their home-state may look to the international community for assistance.805

801
Shacknove, A., op. cit. note 78, p. 279. R. Mandal shared the same opinion, arguing that: Although, it is
possible to envisage a breakdown in public order caused by extreme mismanagement of the economy or a sever
environmental disaster, [] article I2 of the OAU Convention does not explicitly cover individuals fleeing poor
economic or ecological conditions. Moreover, there is scant evidence of this refugee definition being applied in
such circumstances and the inclusion of natural disasters sits uneasily with the preceding criteria that relate to
man-made events such as foreign aggression. See: Mandal, R., Protection mechanism outside of the 1951
Convention (complementary protection), op. cit. note 287, pp. 13-14. In contrast, M. Rwelamira contended:
In the African context, the expanded definition was more than timely, providing the necessary flexibility to
include even victims of ecological changes such as famine and drought, which remain among the most
challenging situations on the continent. See: Rwelamira, M.R.K., Two decades of the 1969 OAU Convention
Governing the Specific Aspects of the Refugee Problem in Africa, op. cit. note 709, p. 558.
802
Walker, K., op. cit. note 76, p. 599. In this regard, according to some African doctrine, the responsibility of a
state towards the refugees that it contributes to creating: [s]hould be extended to encompass a responsibility by
the State towards the international community for the way those citizens are treated particularly with regard to
human and peoples rights. See: Anyang Nyong, P.; Abonyo Nyangaya, J., Comprehensive solutions to
refugee problems in Africa: bilateral, regional and multilateral approaches, in: International Journal of Refugee
Law, special issue, vol. 7, 1995, p. 165.
803
This assumes, of course, that the territory of the state continues to exist after the natural calamity. Should that
not be the case for example, if one of the islands composing the archipelagos of Cape Verde or Comoros were
to completely disappear due to rising sea levels- then the assistance required would include resettlement of the
persons affected.
804
However, if a state were to deny assistance to individuals affected by an environmental calamity on the basis
of a 1951 Geneva Convention ground, that would permit a claim for refugee status under the same convention.
805
Nevertheless, in this regard L. Westra pointed out that [r]ather than viewing [] ecological refugees as
populations who do not quite fit the terms of the 1951 [Refugee Convention] in one way or another, we need to
recognize their plight as, indeed, superior to that of regular convention refugees in the sense that jus cogens
norm that are not observed from the beginning of the actions or omissions that cause the condition [] are non-
derogable, whether or not the states involved have signed a convention dealing with their problem. See: Westra,
L., op. cit. note 429, p. 100. P.-M. Fontaine, similarly added: [The 1951 Convention] is silent on so-called
environmental refugees. [...] At some point in the near future, the international community will have to turn to
this issue [the environmental refugees] and try to find ways of creating an international regime, or adapting the
current refugee regime, for coping with the forced displacements that this phenomenon is likely to provoke.
See: Fontaine, P.-M., The 1951 Convention and the 1967 Protocol Relating to the Status of Refugees: evolution
and relevance today, in: Intercultural Human Rights Law Review, vol. 2, 2007, p. 163.
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However, the individuals ties with his/her home state have not been broken by the
environmental calamity and assistance can be provided in situ.806 Therefore, one important
aspect of the refugee definition in the 1951 Geneva Convention is that it is concerned with the
severance of the bond of protection of the refugees home by his/her home state. 807 Where
that tie has not been severed, as it is the case in relation to most environmental calamities, the
appropriate state to provide assistance to the person in need is his/her home-state, not a third
state.
It has also been proposed that because the category of events seriously disturbing
public order is a basket clause, it should be read ejusdem generis to mean events that are
common to the man-made occurrences of aggression, occupation and foreign domination. In
this regard, we can affirm that the 1969 OAU Conventions communitarian perspective rests
on a belief that the community can become a threat to itself or to the well-being of its
members.808
Concerning the expression in either part or the whole of his/her country of origin or
nationality, the 1951 Geneva Convention refugee definition implies that a person must first
seek protection, if possible, in another specific region or area of his/her own country where
there is no risk of a well-founded fear of persecution before seeking international refugee
protection.809 This is more commonly known as the IFA.810 However, in terms of the African

806
Zolberg, A.R.; Suhrke, A.; Aguayo, S., Escape from Violence Conflict and Refugee Crisis in the Developing
World, New York/Oxford: Oxford University Press, 1989, pp. 33 and 271.
807
Grahl-Madsen, A., The Status of Refugees in International Law, 2 volumes; vol. 1: Refugee Character, op.
cit. note 692, pp. 95-101.
808
Bond Rankin, M., op. cit. note 690, p. 20. In addition, if a natural disaster can be put into legal terms, it is
probably best described as force majeure, meaning an event that can be neither anticipated nor controlled. Unless
otherwise argued, force majeure is generally considered to be outside of the responsibility of a state and does not
therefore give rise to a duty to grant asylum. In our opinion, the case is different if natural disaster implies a
serious disruption of public order. In this situation, we personally find that natural disaster, having direct
implication on public order, should allow granting refugee status to the applicants. In this regard, it should be
made clear also that a government or non-state actors must not utilize the possible natural disasters afflicting
their own countries as a means to pursue their programs. For an author, the definition provided in the 1969 OAU
Convention would seem to include also the effects of a famine caused by states actions since this is simply
using nature as an instrument to a political end. In this regard, see: Grant, J.P.; Barker, J.C., Encyclopaedic
Dictionary of International Law, 3rd edition, op. cit. note 140, p. 222. They defined the concept of force majeure
as a higher force (or an occurrence which is beyond human control). In this regard, see also: Bond Rankin, M.,
op. cit. note 690, p. 21. Quoting his footnote 142 at idem: In many so-called natural disasters man-made
factors have caused or aggravated the situation. The Ethiopian famine of the 1980s provides a good example:
while the media focused on the drought as the ostensible cause of the famine, the reality was that it was a
backdrop to a government supported process of forced land collectivization which was among the primary
causes of the death. In the same regard, see: Mandal, R., Protection mechanism outside of the 1951
Convention (complementary protection), op. cit. note 287, p. 14: However, where a natural disaster is
manipulated by the government or other actors to the detriment of the population this may well constitute
events seriously disturbing public order.
809
Schreier, T.H., op. cit. note 693, p. 27.
810
This kind of solution, although considered a positive solution in several circumstances, is not always advised:
A risk of persecution for any Convention refugee ground will render the proposed IFA inappropriate. A
proposed IFA is unreasonable where the evidence shows that the claimants life or safety is at risk there.
Therefore, a risk of torture, death, cruel or degrading treatment in the IFA will render the IFA unreasonable.
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refugee definition, the term in either part or the whole of his/her country of origin or
nationality specifically clarifies that the IFA is irrelevant when determining refugee status.811
These words therefore considerably extend the refugee definition and are explained by the
chaotic and unstable nature of the events involving the OAU.
In spite of the foregoing, the expression in either part of the whole of also raises the
issue concerning the necessary nexus between people obliged to take flight and the OAU
event. On this subject, a typical question is whether an asylum seeker can be declared a
refugee if his/her flight was prompted by an event which occurred in any part of his/her
country of origin. In our opinion, the answer should be negative, proposing that the aforesaid
nexus is created as a result of the fact that the asylum seeker is forced to leave his/her place of
habitual residence. As such, the asylum seeker would not likely be obliged to flee if the OAU
event takes place in a region too distant and therefore does not pose any risk or danger to
him/her.
Another unique commentary on this aspect of the African definition relates to the
relationship of the phrase in part or whole of to place of habitual residence, as well as
compelled to leave. In effect, several questions can be posed, for instance, about what
happens if an individual, who may be visiting or momentarily working in a different part of
the country, is caught up in an event in that place and is unable to return home. Likewise, we
can wonder what would happen if, when a person is away from home, an event in his/her
place of habitual residence erupts, which prevents him/her from returning home. In this kind
of situation, the response can be constituted of an effective internal alternative in spite of the
fact that, as stated above, the 1969 OAU refugee definition does not require an IFA. In any
event, if an individual in one of these situations ends up fleeing elsewhere outside of his/her

Similarly evidence of general lawlessness, risk of outside aggression, and relatively high violent crime rates in
the IFA may be relevant. The relevance of employment opportunities, residence of family members, availability
of schools, and medical care in the proposed IFA may be relevant where their absence place at risk the
claimants basic civil, political and socio-economic rights as expressed in the refugee Convention and other
major human rights instruments. See: Kelley, N., Internal flight/Relocation/Protection alternative: is it
reasonable?, in: International Journal of Refugee Law, vol. 14, 2002, p. 44. In addition, W.T. Worster added:
The language of the [1951 Geneva] Refugee Convention does not explicitly provide for internal flight as a
discrete basis defeating refugee status, and the notion has been criticized. See: Worster, W.T., op. cit. note 636,
p. 141. For the concept of IFA, see also: supra, footnote 738.
811
UNHCRs Guidelines on international protection No. 4: internal flight or relocation alternative within the
context of article 1A 2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees,
document No. HCR/GIP/03/04, 23 July 2003, paragraph 5: 5) Considerations of possible internal relocation
areas is not relevant for refugees coming under the purview of Article I2 of the OAU Convention Governing the
Specific Aspects of Refugee Problems in Africa 1969. A decade before, the same UNHCR states in the
Handbook on procedures and criteria for determining refugee status under the 1951 Convention and the 1967
Protocol relating to the status of refugees, 2 nd edition, Geneva: UNHCR, 1992, paragraph 91, p. 15: The fear of
being persecuted need not always extend the whole territory of the refugees country of nationality [] a person
will not be excluded from refugee status merely because he/she could have sought refuge in another part of the
same country, if under all the circumstances it would not have been reasonable to expect him/her to do so.
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country, such a difficulty can be resolved through an examination of all relevant factors,
always bearing in mind the prospective or future definition of a refugee.812
In the African definition of a refugee, the phrase compelled to leave also deserves
several remarks. As stated above, the African refugee definition is different from the 1951
Geneva Convention on the basis that, inter alia and although it incorporates the 1951 Geneva
definition to which the expanded African definition is supplemental, it does not contain any
subjective element; rather it is predicated on the objective events which prompt a refugee to
take flight. While the word compelled is an ambiguous one, although it has generally been
understood to refer to threats to life, safety or freedom,813 it nonetheless seems to support
the objective nature of the OAU definition. This is partly due to the basic meaning of the
word and partly due to the meaning of the word when considering the text associated with
it,814 and also when taking into account the fact that the African definition is meant to be
inclusive, and should consequently be read flexibly. 815
In the African refugee definition, the original French text uses the word oblige,
which also connotes that a person is forced to flee due to one of the enumerated events that
represent an irresistible force. In addition, the word compelled when read in conjunction
with the enumerated events or the reasons that cause the need, indicates that such a fear or
similar notion is assumed to exist, and that it implies more than a subjective choice.816
The plain meaning of the words compelled to leave could result in an exclusion of the
possibility of a sur place817 refugee claim, in which an individual who is already outside of
his country of origin or nationality when an event takes place would not be forced to leave,

812
Schreier, T.H., op. cit. note 693, pp. 27-28.
813
Klinck, J.A., Recognizing socio-economic refugees in South Africa: a principled and rights-based approach
to section 3 b) of the Refugee Act, in: International Journal of Refugee Law, vol. 21, 2009, p. 677.
814
The legal interpretation proposes that when the meaning of a term is unclear, it can be determined by looking
at the words immediately surrounding. This form of interpretation is called noscitur a sociis. As G. Corney
affirmed: The maxim noscitur a sociis (which enunciates the proposition that a general word takes its meaning
from the specific words with which it is used), and the similar ejusdem generis rule in relation to phrases, are
both found in the jurisprudence and literature of customary international law. See: Corney, G., Mutant stare
decisis: the interpretation of statutes which incorporate international treaties into Australian law, in: University
of Queensland Law Journal, vol. 18, 1994, p. 62.
815
Bond Rankin, M., op. cit. note 690, pp. 21-22.
816
Idem.
817
UNHCR, Handbook on procedures and criteria for determining refugee status under the 1951 Convention and
the 1967 Protocol relating to the status of refugees, 2 nd edition, Geneva: UNHCR, 1992, paragraphs 94 and 95
read: 94) The requirement that a person must be outside his/her country to be a refugee does not mean that
he/she must necessarily have left that country illegally, or even that he/she must have left it on account of well-
founded fear. He/she may have decided to ask for recognition of his/her refugee status after having already been
abroad for some time. A person who was not a refugee when he/she left his/her country but who becomes a
refugee at a later date, is called a refugee sur place. 95) A person becomes a refugee sur place due to
circumstances arising in his/her country of origin during his/her absence. Diplomats and other officials serving
abroad, prisoners of war, students, migrant workers and others have applied for refugee status during their
residence abroad and have been recognized as refugees.
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but would rather be obliged to remain.818 Once again, however, upon reading the 1969 OAU
Convention in the spirit of good faith and in an approach consistent with the 1951 Geneva
definition, one can conclude that the African definition should allow for sur place claims.
A last feature concerning the interpretation of the African definition of a refugee regards
the expression place of habitual residence. Respecting the 1951 Geneva Convention refugee
definition and in order to satisfy the African definition, an individual must have been
compelled to flee from his/her specific place of habitual residence, rather than the entire
country of origin. This phrase within the definition therefore implies a required geographic
correlation between the event and the individuals place of habitual residence. It may also
reflect the spirit of the 1969 African Convention, one marked by a communitarian approach to
refugee protection in which an asylum country may provide a community for persons whose
safety or even lives are at risk in their own communities. It is therefore important to determine
a definition of place of habitual residence in terms of the above-mentioned interpretation.
While no universal standard can really be found by adopting a univocal definition, efforts
have been made to establish the elements that would connote such a definition:

[F]irst, habitual residence is a heavily fact based question. Second, in determining


habitual residence, regard should be had both to a persons duration of stay and to whether
their actions indicate a settled purpose. Third, a settled purpose involves considering a
persons attachment to a particular location as evidenced by familiar linkage, social and
cultural relations, economic factors and other matters related to a persons ordinary mode of
living. Finally, a persons intention to habitually reside in particular place should be given
some, but limited weight.819

In light of the lack of requirement that a refugee must seek an IFA within the OAU
definition, there exists an additional interpretive difficulty in terms of place of habitual
residence based on the course of flight of a displaced person. Often, as may be the case, a
displaced person may leave his/her place of habitual residence due to an event without
crossing an international border. For instance, he/she may be internally displaced from his/her
habitual residence and thereafter take up residence in several secondary locations in his/her
country of origin before finally fleeing across the border. In such a case, we should
distinguish between a place of habitual residence and a simple residence as an asylum-
seeker may have many simple residences after the initial displacement. Consequently, the

818
Schreier, T.H., op. cit. note 693, p. 29.
819
Bond Rankin, M., op. cit. note 690, p. 23.
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test is whether a new place of habitual residence becomes established. If so, it may be
assumed that the original compulsion to take flight due to the event will have ceased and
unless another event takes place, the individual cannot be considered as a refugee for the
purposes of the African definition.820
This section of our work clearly demonstrates the numerous ambiguities and difficulties
that exist in formulating the African refugee definition. Tracking down a legal basis for the
various aspects of the definition is nonetheless an important task as it helps to understand the
appropriate application of the definition. Unfortunately, there is a serious lack of international
and national jurisprudence to assist decision-makers in Sub-Saharan Africa with interpreting
the different elements of the definition judiciously without forgetting that the same
governments often manipulate the refugee definition [t]o suit their perceived national and
foreign policy interests.821 In addition, it seems the implementation of the definition of
refugee as well as the overall convention is insufficient; if the plight of refugees is present
in Sub-Saharan Africa and if the implementation of the legal instrument is inadequate, then
the problem still remains more or less unchanged:

The crisis facing refugees on the continent reflects not a paucity of norms but rather a
failure to implement them. A major weakness of the current international legal framework to
protect refugees [] is the absence of any meaningful system of supervision, such as a court
or treaty body, to ensure that states abide by the letter and the spirit of international refugee
conventions.822

In the end, we can affirm that the plain wording of the 1969 OAU Convention provisos
suggests that objective conditions of severe socio-political disruption suffice to find a valid
refugee claim, and no more. In contrast to the criterion of well-founded fear of persecution for
political opinion, the seriously disturbing public order standard of events does not seem to
entail an individual connection between the applicant and the events prompting flight. If this
interpretation is sound, the African definition of refugee eliminates the practical and

820
Ibid., p. 25. In this regard, see also: Van Garderen, J.; Ebenstein, J., op. cit. note xxxvii, pp. 191-192: The
term habitual residence, as opposed to simply residence, should be understood as denoting a link between an
individual and a place, and a durable connection. That durable connection can be reflected in either a long
stay, or particularly close familial, social, or cultural ties between the person and that place.
821
Lentini, E.J., The definition of refugee in international law: proposals for the future, in: Boston College
Third World Legal Journal, vol. 5, 1984-1985, p. 195.
822
Zard, M., Beyani, C.; Odinkalu, C.A., Refugees and the African Commission on Human and Peoples
Rights quoted in: Tangye, A.N., Why states continue to negotiate multilateral treaties to address significant
issues on world politics despite the evidence that most treaty have not solved the problem they were designed to
solve, in: Krishna, S.S.; Samudralal, A.K. (edited by), Refugee and Human Rights, New Delhi: Serials
Publications, 2008, p. 120.
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conceptual distinction between prima facie refugee status and individual status determination.
It also means that, in the standard practice of status determination under the 1969 African
Convention, applicants are individually assessed against refugee criteria that do not demand
proof of direct personal encounters with persecution. Thus, a troubling dissonance emerges
between the definitional bases of status determination, on the one side, and their practical
application, on the other.
The refugee formulas were designed in and for a world in which refugee-producing
nations were an isolated minority. A world in which countries granting asylum did so under
the influence of powerful political and even material motivations for the observance of
favorable standards for asylum-seekers; and in which the dichotomy between international
legal protection and assistance from the international community could be significantly
maintained. These circumstances have now changed, but the legal regime in force for refugee
status remains.823

3.3 Sub-Saharan African legislators efforts to provide for a national framework for the
definition of refugee

It is often difficult to determine the solution to the question of how and when
international legal stipulations become part of the national law of a state according to that
agreement, as well as the entire relationship between national legislation and conventional
international law. The 1969 OAU Refugee Convention, in conjunction with the 1951 Geneva
Convention and the 1967 New York Protocol, settle the principles and give the general
directions regarding these matters. They also contain some clear directives on what should be
done and some concrete prohibitions on what should not.
If a government, after having adopted the 1969 OAU Convention, intends to fully
implement that treaty, it will have to take some measures. Although the refugee 1969 African
Convention definition has been incorporated into the legislation of many African countries,
gaining an understanding of how this definition is interpreted is rather difficult given the
rarity of functional individualized RSD procedures in the region.824 The transplantation of the

823
Kingsley-Nyinah, M.R., Reflections on the institution of asylum, refugee criteria, and irregular movements
in Southern Africa, in: International Journal of Refugee Law, special issue, vol. 7, 1995, pp. 312-313.
824
Mandal, R., Protection mechanism outside of the 1951 Convention (complementary protection), op. cit.
note 287, p. 13.
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provisions in the conventions into the national context requires their adaptation to the special
circumstances and traditions held of the country in question.825
The refugee definition applied in Sub-Saharan Africa varies according to the domestic
legislation specific to each country. However, legislations based on civil law, which is
mostly francophone; do not necessarily force a national legislation to apply the principles
contained in the treaty once it is ratified. In fact, they are generally less detailed because they
make frequent references to the international instrument ratified.826 Recently, it has been
argued that many states are reluctant to enact refugee legislation in their jurisdiction because
it would be difficult for them to ensure that refugees enjoy the rights contained in both the
1951 Geneva and the 1969 African conventions.827 Moreover, it has been added that [m]any
countries have not put the requisite institutional and legal structure for responding to the
needs of refugees. [] Even where such legislation exists, much of it is inconsistent not only
with international human rights law, but also with the countries own constitutions.828
Furthermore, this is the case even in [a] number of countries, including some whose
legislation may be described as progressive.829

UNHCR, in a position adopted several years ago, affirmed that:

Although several countries have enacted legislation specifically dealing with refugee
matters, the degree to which the principles of refugee protection are upheld both legislatively
and in practice varies considerably. In some countries, the legislation has given priority to
controlling refugees and to security, economic and political concerns. This has resulted in
significant diminution of the extent to which the refugees may enjoy the rights elaborated in
the [] international instruments.830

825
Nobel, P., National law and model legislation on the rights and protection of refugees in Africa, in:
Melander, G.; Nobel, P. (edited by), African Refugees and the Law, Uppsala: Scandinavian Institute of African
Studies, 1978, pp. 60-61.
826
Lawyers Committee for Human Rights, op. cit. note 613, p. 35. However, in this regard, P. Nobel argued:
Such legislation [based on the Civil Law model] presupposes [that] the national authorities, who must
administer the law, have a thorough knowledge of the rules of international law to which they refer. [But] such
knowledge in fact is rare; thus there is a weakness in this technique of lawmaking and it is not well-designed to
bring about the implementation of the refugee conventions. See Nobel, P., Refugee, law and development in
Africa, op. cit. note 613, pp. 268-269.
827
Aukot, E., op. cit. note 710, p. 221.
828
Lomo, Z., The struggle for protection of the rights of refugees and IDPs in Africa: making the existing
international legal regime work, in: Berkeley Journal of International Law, vol. 18, 2000, p. 275.
829
UNHCR, Issues and challenges in international protection in Africa, in: International Journal of Refugee
Law, vol. 7, 1995, special issue, p. 59.
830
Idem.
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We note that in the past few decades, there has been a proliferation of national
legislations whose content is too detailed and advanced to be applied to the real situation in
the countries where they are. This suggests that at times the provisions of the various
legislations may be nicely packaged, but are substantively inconsequential.
It is not so common in Sub-Saharan Africa to come across the integral transplantation of
article I of the 1969 OAU Convention in the domestic legislation, as one of the most recent
examples in the 2007 Sierra Leonean Refugee Protection Act has shown. This latter also
mentions the pre-war agreements considered in the 1951 Geneva Convention, but not in the
1969 OAU Convention.831
Several countries such as Djibouti, Gabon832 and Senegal recall only the 1951 Geneva
Convention and/or the 1967 New York Protocol in their national legislation, without
mentioning the 1969 African Convention in any way.833 Such an approach is perfectly
understandable for the Djiboutian government, considering that this country has not ratified
yet the 1969 OAU Convention to date.834 On the contrary, the 1968 Senegalese law has been
updated. The 1976 and 1978 decrees point out that refugee status may be granted to
individuals based on the 1969 African Conventions parameters as well.835 In this case,
however, domestic law clearly regards the regional instrument as supplemental to the 1951
Geneva Convention.836
South Africa is among the countries whose legislation deserves to be analyzed in greater
depth, given that alongside quite exhaustive domestic legislation, domestic jurisprudence
concerning refugee issues is quite advanced as well. In South Africa, the reception afforded to
refugees has a particular significance in the light of its history of apartheid, which has been

831
In particular, we are talking about section 2 d) of the Sierra Leonean Act which takes into consideration also
the: Arrangements of the 12th May, 1926 and the 30th June, 1928, or under the Conventions of the 28 th October,
1933 and the 10th February, 1938, the Protocol of the 14th September, 1939 or the Constitution of the
International Refugee Organization.
832
Some authors have praised the attitude of the Gabonese government because the country could often face the
problem of refugees in a positive way. See: Oloka-Onyango, J., Plugging the Gaps: Refugees, OAU Policy and
the Practices of Member States in Africa, Washington DC: US Committee for Refugees, 1986, pp. 29-30 where
the author affirmed: The Gabon legislation is important because it represents a bold attempt to address the
refugee problem by a country not yet significantly affected by it.
833
Section 1 of the 1977 Ordonnance n 77053/P.R./A.E. portant statut des rfugis sur le sol de la Rpublique
de Djibouti but see also: section 3 1) of the 2001 Dcret n 2001-0101/PR/MI modifiant le dcret n 77-
054/PR/AE du 9 novembre 1977 portant cration de la Commission nationale dligibilit au statut des
rfugis ; section 2 of the 1998 Loi n 5/98 portant statut des rfugis en Rpublique gabonaise ; section 1 of
the 1968 Sngalaise Loi n 1968-27 modifie portant statut des rfugis .
834
We are revising this section of our work in October 2012.
835
Article 2 1) of the 1976 Dcret n 1976-014 modifi relatif la Commission prvue larticle 3 de la loi n
1968-27 portant sur le statut des rfugis and article 2 1) of the 1978 Dcret n 1978-484 modifi relatif la
Commission des rfugis .
836
Jackson, I.C., The Refugee Concept in Group Situations, op. cit. note 258, p. 206: The wording of this article
[article 2 of the 1978 Decree] is interesting in so far as the extended OAU definition is clearly stated to be
supplementary to the 1951 refugee definition, in the same manner as the definition contained in the 1967
Protocol. Emphasis added.
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listed as one of the most important causes of flight on the continent.837 South Africas
Refugee Act No. 130 of 1998, which came into force in April 2000, is considered very
progressive and rights-based in its approach to refugee protection.838 This act contains both
the 1951 Geneva Convention and 1969 OAU Convention definitions of refugees,839
formulation kept also in the Refugee Acts 2008 Amendment Act.840 Incorporating the 1969
OAU Convention definition of refugee essentially means that [r]ather than focusing on the
persecuted individual, [...] [it] looks to a series of events that disrupt society as a whole and
that present a generalized threat to an indefinite class of people.841

In this regard, it is necessary to note the subtle differences between the 1969 OAU
Convention definition of refugee and the way the definition has been included in Pretorias
national legislation. According to section 3 b) of the Refugee Act:

A person qualifies for refugee status for the purposes of this Act if that person []
owing to external aggression, occupation, foreign domination or events seriously disturbing
or disrupting842 public order in either a part or the whole of his/her or her country of origin or
nationality, is compelled to leave his/her or her place of habitual residence in order to seek
refuge elsewhere.843

All the events mentioned in section 3 b) of the 1998 South African Refugee Act share
the fundamental feature that they consist of circumstances where international cooperation for
the provision of aid through the country of origin may fail to protect the human rights of
individuals of that country. It has been inferred from this circumstance that the expression
events seriously disturbing public order is therefore based on two requirements: a) there

837
Constitutional Court of the Republic of South Africa, Union of Refugee Women and Others v. Private
Security Industry Regulatory Authority and Others, Case No. CCT/39/06, judgment date: 12 December 2006,
paragraph 30, p. 14. At paragraph 105, p. 51 the judgment continued: Africas special refugee problem was
recognized in the late 1960s by the Organization of African Unity which led to the adoption of the OAU
Convention regulating refugees.
838
Van Garderen, J.; Ebenstein, J., op. cit. note xxxvii, p. 197.
839
Section 3 a) and b) of the South African Refugee Act. Nevertheless, a commentator noted: In terms of
official policy, South Africans government position in respect of asylum-seekers and refugees has not helped
matters. Despite the enthronement of democratic governance, the South African government continues to issue
policy guidelines that are tilted towards control, expulsion and expulsion. To pursue this policy drive are the
police, immigration, customs and sometimes, the military, upon which enormous powers have devolved from the
executive. See: Olowu, D., Refugees, asylum-seekers and the legal obligations of states for their protection:
critical reflections on the South African approach, op. cit. note 752, p. 45.
840
For the amendments to section 3 of the 1998 South African Act, see supra: note 761.
841
Klinck, J.A., op. cit. note 813, p. 675.
842
Emphasis added.
843
Emphasis added.
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are urgent and widespread deprivation of fundamental human rights, and b) international
cooperation is not an effective means of realizing the rights which are deprived.844
As compared to the 1969 African Convention definition, the South African version of
the expanded definition includes the words or disrupting with regard to the description of
the degree of damage that this second basket-clause category of African events must amount
to in order to justify the flight of a person. It has been hypothesized that with these words, the
drafters intended to clarify the extent to which public order must be disturbed or disrupted to
compel an individual to flee.845
Another slight modification of the African definition of refugee in this South African
legislation is the use of the term elsewhere as opposed to the phrase another place outside
his/her country of origin or nationality. The plain reading of the word elsewhere does not
automatically imply that this refugee definition contains an alienage requirement such as in
the 1951 Geneva Convention definition,846 that is to say that an asylum-seeker needs to be
outside of his/her home-country of origin in order to qualify for refugee status.847 It is
assumed, however, that this is definitely the case, as it is presumed that the drafters of the
South-African legislation intended to replicate the position in the 1969 OAU Convention
definition, influenced by the 1951 Geneva Convention definition, which openly makes
alienage a pre-requisite for an individuals consideration of refugee status.848 In any case,
South African legislators have changed positions in the 2008 Amendment Act, where the
expression or disrupting has been deleted and the adverb elsewhere has been replaced by
the most standard expression in another place outside his/her country of origin or
nationality.

844
Klinck, J.A., op. cit. note 813, p. 673. At ibid., p. 674, the author explained: A degree of urgency is required
to justify addressing human rights violations through reception in another country, rather than through attempts
to ameliorate the situation in the country of origin.
845
Schreier, T.H., op. cit. note 693, p. 34. The same term can be also found in the Angolan legislation,
specifically in section 1 1) b), of the 1990 Angolan Law No. 8/1990 on refugee status: [Refugee status shall be
granted to any person who] as a result of [] events which to a large extent disrupt public order [].
846
In this regard, A. Shacknove suggested that alienage is part of a broader category, namely the physical access
of the international community to the unprotected person. The refugee need not necessarily cross an international
border to gain such access, but must be in a situation that permits him/her to obtain international assistance.
Quoting the author: Whether a person travels ten miles across an international border or the same distance down
the road into a neighboring province may be crucial for determining logistical and diplomatic action [but]
conceptually [] refugeehood is unrelated to migration, concluding that the refugee label should be reserved
for individuals [w]hose government fails to protect their basic needs, who have no remaining recourse other
than to seek international restitution of these needs, and who are so situated that international assistance is
possible. See: Shacknove, A., op. cit. note 78, pp. 283-284.
847
For reference to this principle, UNHCR, Handbook on procedures and criteria for determining refugee status
under the 1951 Convention and the 1967 Protocol relating to the status of refugees, 2 nd edition, Geneva:
UNHCR, 1992, paragraph 88: It is a general requirement for refugee status that an applicant who has a
nationality be outside the country of his/her nationality. There are no exceptions to this rule. International
protection cannot come into play as long as a person is within the territorial jurisdiction of his/her home
country.
848
Schreier, T.H., op. cit. note 693, p. 34.
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We note that always considering article I2 of the 1969 African Convention the 2004
Ethiopian Refugee Proclamation No. 409 circumscribes the possibility of granting asylum
solely to African refugees849 while the 2006 Kenyan Refugee Act, Act No. 13 uses the
expanded African definition as a means of recognizing the prima facie refugees.850
However, in Kenya, it is UNHCR that is in charge of determining refugee status, instead of
the government. This agency only applies the prima facie status determination mode for cases
involving Somali and Sudanese nationals, while other nationalities are assessed on an
individual basis.851 We note with regret, however, that a similar provision on the prima facie
mechanism has been removed from the recent Kenyan 2011 Refugees Bill. This is an
indication of how Kenyan authorities are also tightening their policy in reaction to a move
towards peaceful acceptance of asylum-seekers and refugees.
The 2008 Burundian legislation goes along with the prior Kenyan tendency where the
Ministre de lIntrieur was able to grant prima facie refugee status to people fleeing en
masse from an international war, a civil war or a situation of general violence in the country
of origin within six months at the latest.852
Two other particularities connected with two specific categories of persons, minors and
women, can be found in two other legislations which were established more than thirty years
apart. Section 2 2) of the 1974 Sudanese Regulation of Asylum Act stipulates:853

The term refugee includes also children who are not accompanied by adults, or who
are war orphans, or whose guardians have disappeared and are outside the countries of their
nationalities.854

849
Section 4 3) of the Ethiopian Refugee Proclamation ends: [h]e/she [the refugee] is compelled to leave his/her
place of habitual residence in order to seek refuge in another place outside his country of origin or nationality, in
case of refugees coming from Africa. Emphasis added. In this regard, see also: Van Garderen, J.; Ebenstein, J.,
op. cit. note xxxvii, p. 200.
850
Section 3 2) of the 2006 Kenyan Refugee Act starts: A person shall be a prima facie refugee for purposes of
this Act [...], followed by the expanded definition.
851
Odhiambo-Abuya, E., United Nations High Commissioner for Refugees and status determination imtaxaan
in Kenya: an empirical survey, op. cit. note vii, p. 190. However, as noted by J. Hyndman: [P]rima facie status
offers few, if any, permanent solution to refugees. Somali refugees in Kenya with prima facie status are spatially
segregated and isolated in remote border camps. In the absence of the quality and entitlments of legal status
accorded to convention refugees, or some other regional alternative, their mobility is restricted. See: Hyndman,
J., Managing Displacement: Refugees and the Politics of Humanitarianism, op. cit. note iii, p. 176.
852
Articles 81 to 84 of the Loi No. 1/32 du 13 novembre 2008 sur lasile et la protection des rfugis au
Burundi, No. 1/32, 13 Novembre 2008. In particular, article 83 extends the refugee status also to the spouse and
the minor infants of the refugee.
853
To stress the importance of this theme for the Sudanese authorities, we point out that Sudan was also [t]he
main sponsor of the biennial [UNGA] resolution on assistance to unaccompanied refugee minors [] the two
resolution s that were adopted (No. 56/136 and No. 58/150) stressed the need to provide resources to identify,
trace and reunite accompanied refugee minors, to respect international humanitarian law and other instruments,
to prevent exploitation, and to provide support and raise awareness of their plight. See: McBride, M., op. cit.
note 52, p. 38.
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Section 4 d) of the 2006 Ugandan Refugee Act prescribes:

[A person qualifies to be granted refugee status under this Act if:] d) owing to a well-
founded fear of persecution for failing to conform to gender discriminating practices, the
person is compelled to leave his/her or her place of habitual residence in order to seek refuge
in another place outside the country of origin or nationality.855

Uganda has historically demonstrated fairness in handling asylum, generally following


the guidelines provided by UNHCR. For example, in the 2005 Tesfaye Shiferwa Awala
(Applicant) v. Attorney General (Respondent) case where the High Court in Kampala rejected
Mr. Awalas claim based on a lack of grounds of persecution, the court followed the example
of UNHCR Kenya, which had previously rejected the same application, stressing that there
was insufficient concrete evidence of the applicants fear of persecution.856
A reader with very little knowledge of refugee legal history in Sub-Saharan Africa
would probably be surprised to learn that the African legislations of the last two decades all
draw inspiration from the Zimbabwean refugee legislation of the early 1980s 857 because:

854
On this particular section of the Sudanese legislation, R.C. Mahalu observed that: The term refugees [in the
Sudanese legislation] further includes [] children who are not accompanied by adults, as well as orphans
whose guardians must have been disappeared while crossing the countries of their nationality. See: Mahalu,
R.C., The legal regime for refugees in Eastern African states, in: Archiv des Volkerrechts, vol. 26, 1988, p. 44.
In this regard, we note that Sudanese legislator has been the only one to expressly provide the certainty of
granting the status of refugee to the non-accompanied children. It did this complying with the provisions set in
the 1992 UNHCR Handbook on procedures and criteria for determining refugee status under the 1951
Convention and the 1967 Protocol relating to the status of refugees, 2nd edition, Geneva: UNHCR, 1992,
paragraphs 213 through 219. Such Sudanese proviso also accords either with article 22 of the 1989 CRC, ratified
by Sudan on the 3rd of August 1990, or with article 23 of the 1990 ACRWC, ratified by Sudan on the 30th of July
2005.
855
Emphasis added. Section 4 e) constitutes another specific characteristic of the Ugandan definition reading that
a person will be considered as a refugee under the provisions of the act if: e) that person is considered a refugee
under any treaty obligation to which Uganda is a party, or any law in force at the commencement of this Act.
This clarification makes the definition quite liberal in the eyes of the reader.
856
High Court of Uganda, Tesfaye Shiferwa Awala (Applicant) v. Attorney General (Respondent), No. 688 of
2003, 8 February 2005 where the judges noted that the applicant could not show, for instance: his strong
statements against the Ethiopian government who obliged him to take flight-, the demands of the students,
whom Mr. Awala was one of the delegates at the senate of Bahir University, the forms that assumed the threats
to his life coming from the Ethiopian government and the circumstances that the applicant presented but the
Refugee Eligibility Committee failed to consider in the first petition. For an opposite case, see: High Court of
South Africa (South Gateng, Johannesburg), Dorcasse v. Minister of Home Affairs and others, Case No.
2012/17771, 5 October 2012, paragraph 39, p. 30: In the hearing before the Refugees Status Determination
Officer, the applicant gave oral, written and documentary evidence of the risk of persecution that is a real
probability should she return to the Congo. There appears to be a reasonably high probability that the applicant
might be killed as her father was killed due to him being a member of the Congolese Movement for Democracy
and Integral Development. This political party is opposed to the ruling party. Her evidence does not appear to
have been convincingly rebutted in this regard. The matters raised by the applicant in her personal history and
the reasons for asylum status are inherently and by nature arguable. She is entitled to review proceedings. There
is no reason why the costs should not follow the result. The applicant is entitled to her costs.
857
Zimbabwe, Refugee Act No. 3, 1983; Refugee Regulations, 1985.
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I can say that the Zimbabwe legislation was truly an epochal legislation in its own right
when it was promulgated and also in the evolution of refugee legislation on the African
Continent thereafter. It is true that, before it came into being, Sudan had passed its own
asylum law that was quite progressive and outward looking in a number of respects. [] The
Zimbabwe Act was a fulsome legislation in all the key respects, above all in outlining all the
essential refugee rights and obligations and setting up a likewise essentially complete refugee
management system. It also brought into force the first known articulation of supplementary
forms of protection on the Continent, and among the earliest globally. And, turning to one of
its truly most remarkable features, in respect of potential internal conflict of laws, it attributed
to refugee law a status above all other laws and second only to the Constitution. For sure, it
has been surpassed in a number of respects by other legislation on the continent, but it
remains even today an icon both in its own right and in that it was the singular precursor,
inspiration and model to the whole crop of progressive legislation that then followed on the
African Continent.858

The case of Somalia is quite particular. When the Somali government acceded to the
1951 Geneva Convention, it made a declaration to protect the aspiration of the Somali peoples
to benefit from full autonomy by the virtue of the recognition of the movements of national
liberation. This declaration, seen below, was renewed at the time of its accession to the 1967
New York Protocol:

[T]he Government of the Somali Democratic Republic acceded to the Convention and
Protocol on the understanding that nothing in the said Convention or Protocol will be
construed to prejudice or adversely affect the national status, or political aspiration of
displaced people from Somali Territories under alien domination.
It is in this spirit, that the Somali Democratic Republic will commit itself to respect the
terms and provisions of the said Convention and Protocol.859

858
Personal correspondence of the author with Dr. G. Okoth-Obbo, Director of the Africa Bureau, UNHCR,
Geneva. Email received on December 8, 2008, on file with author. R.C. Mahalu shared this view in affirming:
The basic objective of the legislation [of Zimbabwe] is therefore that of implementing domestically the
internationally recognized norms for refugees. See: Mahalu, R.C., op. cit. note 854, p. 41.
859
We need to stress, however, that on January 10, 1979 the military government in Ethiopia objected to this
declaration arguing that there was no Somali territory under a foreign domination. The Somali declaration
followed the 1976-1978 Ogden crises between the two countries. The objection by the Ethiopian government is
contained in: Tavernier, P.; Heyns, C. (under the direction of), Recueil juridique des droits de lhomme en
Afrique, Bruxelles: Etablissement Emile Bruylant, 2002, p. 43. Somalia acceded to 1951 Geneva Convention on
the 10 October 1978.
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Curiously, we also note that the 1984 Somali Presidential Decree takes the African
definition of refugee as a reference, although, to date, Somalia has not ratified the 1969 OAU
Convention. To be more precise, however, in the 1984 Decree, the 1951 Geneva Convention
definition and the 1969 OAU definition are mentioned cumulatively without any formal
distinction between the two instruments.860
Lastly, we consider the reality of Angola, where the domestic legislation reproduces the
sense of article I of the African Convention although it introduces several particularities. In
section 1 1) of the 1990 Refugee Law, the Angolan legislator envisages the possibility that the
individual deserving protection is already being persecuted and not only having the fear
of being persecuted as it is stipulated in article I1 of the 1969 OAU Convention. It appears
obvious that the deterioration of the political situation in the Great Lakes region at the time
when this law was conceived, favored the introduction of the aforementioned precision. In
addition, section 1 of the Angolan Law, considering the bureaucratic difficulty to obtain the
citizenship of a given country on the continent, clarifies that an individual can apply for
asylum even if he/she is not a native of the country that he/she wants to flee but it is simply
sufficient that he/she reside there habitually.861 The provisos of the law do not make any
distinction according to whether a recognized refugee is considered as such in conformity
with the Geneva refugee definition or the African one.862
As a final, general remark to this section, we would like to underline that several
particularities of the African domestic legislations come from countries that are at the same
time potentially host-countries and concretely asylum-seeker producing-countries.
Typical examples are Angola, DRC,863 Zimbabwe, and Sudan, the latter being a country
where, as we mentioned in the Introduction of this work, refugee status is determined directly
by UNHCR, considering article 5 of the 1974 Regulations of Asylum Act, which clearly
states that:

The Minister [of Interior] shall have power to grant asylum in the Sudan, and he may
delegate such power.864

860
Jackson, I.C., The Refugee Concept in Group Situations, op. cit. note 258, p. 207.
861
Section 1 1) b) of the 1990 Angolan Refugee Law: [o]r not having the nationality of the country in which
he/she has habitual place of residence [].
862
Jackson, I.C., The Refugee Concept in Group Situations, op. cit. note 258, p. 196.
863
For instance, see the report: Uganda: spotlight on Congolese asylum seekers. Influx of Congolese asylum
seekers to Uganda, 7 November 2008 on the JRS website at the address:
http://www.jrs.net/news/index.php?lang=en&sid=3916, accessed 22 October 2012.
864
Emphasis added. As no specification is made in the article, it is clear that UNHCR can also be an institution
to which refugee status determination is delegated.
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By contrast, in DRC, RSD is of a mixed nature. In effect, given the ongoing instability
in the country, in several areas, especially around Kinshasa and other big towns such as
Lubumbashi, RSD is made directly by the government, through the Commission nationale
pour les rfugis, and the Commission des recours,865 where cooperation with UNHCR is
indispensable.866 On the other hand, in the remote areas of the country, such as North and
South Kivu, RSD is mainly carried out by UNHCR.867
These final points essentially depict the gaping vacuum that sometimes exists between
the legislation conceived and approved in comfortable towns by intellectuals and jurists, and
the harsh reality in the field.

865
Articles 8 through 26 of the Law No. 021/2002, portant statut des rfugis en Rpublique Dmocratique du
Congo, 16 octobre 2002.
866
Article 8, paragraph 3 of the Law No. 021/2002, portant statut des rfugis en Rpublique Dmocratique du
Congo, 16 octobre 2002 reads: Dans laccomplissement de ses taches, la Commission Nationale pour les
Rfugis coopre troitement avec le Haut Commissariat des Nations Unies pour les Rfugis, ainsi quil est
prvu larticle 35 de la Convention de Genve du 28 juillet 1951 relative au statut des rfugis et larticle
VIII de la Convention de lOUA du 10 septembre 1969 rgissant les aspects propres aux problmes des rfugis
en Afrique . And article 21 of the same legal instrument provides that: Le Dlgu Rgional du Haut
Commissariat des Nations Unies pour les Rfugis ou son reprsentant participe aux dlibrations de la
Commission des recours, avec voix consultative .
867
In this regard, see the information available in the 2012 UNHCRs DRC country profile, html document,
available at: http://www.unhcr.org/pages/49e45c366.html, accessed 10 October 2012.
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Chapter IV
Exclusionary clauses in Sub-Saharan Africa: a study on their theoretical and practical
framework

4.1 An analysis of the clauses excluding refugee status in Sub-Saharan Africa

The first aspect to consider in examining the exclusion clauses is if they can be applied
to exclude an asylum-seeker before a determination has been made as to whether he/she is
included in the definition of refugee under article 1A 2) of the 1951 Geneva Convention.
UNHCR has contributed to the development of these exclusion clauses in Sub-Saharan
Africa.868 It seems that the exclusion clause should only be applied after consideration of the
individuals claim under article 1A 2). Inclusion and exclusion are integral aspects of the
status determination process and both should be regarded as part of a comprehensive
examination of all relevant facts underlying a refugee claim. Facts justifying an examination
of the applicants excludability will normally become known during the course of the RSD,
and may then be referred to during the exclusion phase of the case. Consequently, inclusion
before exclusion gives full effect to the applicants right to be heard and guarantees that
exclusion decisions are made in accordance with justice and fairness standards.
A further argument is that a review an examination of factors that would lead to
exclusion without first considering inclusion is inconsistent with the object and purpose of the
1951 Geneva Convention, as the exclusion clause is an exception to the 1951 Geneva
Conventions primary focus on protection.869

868
Lewis, C., op. cit. note 118, pp. 84-85, where the commentator asserted: In the mid-1990s, conflicts in []
Rwanda gave rise to an increased focus on the exclusion clauses in the 1951 Convention. [...] In order to ensure
that such persons still receive fair and due consideration of their claims to refugee status, UNHCR has provided
guidelines that should be followed by states in interpreting and applying the exclusion clauses.
869
Bliss, M., Serious reasons for considering: minimum standards of procedural fairness in the application of
the Article 1F exclusion clauses, in: International Journal of Refugee Law, vol. 12, special supplementary issue,
2000, pp. 106-107. On the application of article 1F, G.S. Gilbert argued: [A]rticle 1F assumes that, but for the
exclusionary provision, the applicant would otherwise be an arguable case for refugee status. Indeed, to apply
article 1F before article 1A 2) indicates a presumption that all applicants for refugee status are potentially
excludable. [] In practice, where UNHCR carries out the determination, its status determination officers will
assess the applicant under article 1A 2) right up to the point where the next step would be to accord refugee
status and only then see if he/she is excluded by article 1F. See: Gilbert, G.S., op. cit. note 214, p. 466. In
addition, C. Brumar noted that: [A]lthough the terms of the [1951] Convention would support a mandatory
application of the exclusion clauses (that is, any person having committed such acts should not recognize as a
refugee), in fact their application is subject, to a wider or narrower degree, to a proportionality test. This test
would allow striking balance between the seriousness of the crime and the need to sse it punished and the risk
the person is facing. It is to be noted that the result of the proportionality test would be either the revocation or
cancellation or non-recognition of the refugee status or the maintenance or recognition of this status. See:
Brumar, C., The asylum, between humanitarian response and political instrument, in: Lex et Scientia
International Journal, vol. 52, 2012, p. 56. Specifically concerning youths, J. Bond noted that: The UNHCR
has recognized the many complexities that surround the culpability of youths: its materials on exclusion state
that although article 1F can in principle apply to minors, great caution should be exercised whne considering the
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Analyzing the travaux prparatoires of the 1951 Geneva Convention,870 it is deduced


that the exclusion clauses871 had two main goals.872 First, refugee status must be protected
against every abuse and it cannot be granted to individuals who do not deserve it.873 Second,
the authors of the project wanted to be sure that individuals guilty of serious crimes
committed during the Second World War or of other crimes of non-political character and/or
who committed acts contrary to the UN principles, could not flee from prosecution. 874 With
reference to the first consideration, it has been argued that an expansive application of

provisions applicability. See: Bond, J., op. cit. note 219, p. 54. In detail, see: UNHCR, Background note on the
application of the exclusions clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees, 4
September 2003, paragraph 91, p. 34: 91) In principle, the exclusion clauses can apply to minors but only if
they have reached the age of criminal responsibility. Great caution should always be exercised, however, when
the application of the exclusion clauses is being considered in relation to a minor. Under Article 40 of the 1989
Convention on the Rights of the Child, States shall seek to establish a minimum age for criminal responsibility.
Where this has been established in the host State, a child below the minimum age cannot be considered by the
State concerned as having committed an excludable offence. For those over this age limit (or where no such limit
exists), the maturity of the particular child should still be evaluated to determine whether he or she had the
mental capacity to held responsible for the crime in question. The younger the child, the greater the presumption
that such mental capacity did not exist at the relevant time. At idem, paragraph 92 explains: 92) Where mental
capacity is established, particular attention must be given to whether other grounds exist for rejecting criminal
liability, including consideration of the following factors: the age of the claimant at the time of becoming
involved with the armed group; the reasons for joining (was it voluntary or coerced or in defence of oneself or
others?); the consequences of refusal to join; the length of time as a member; the possibility of not participating
in such acts or of escape; the forced use of drugs, alcohol or medication (involuntary intoxication); promotion
within the ranks of the group due to actions undertaken; the level of education and understanding of the events in
question; and the trauma, abuse or ill-treatment suffered by the child as a result of his or her involvement. In the
case of child soldiers, in particular, questions of duress, defence of self and others, and involuntary intoxication,
often arise. Even if no defence is established, the vulnerability of the child, especially those subject to ill-
treatment, should arguably be taken into account when considering the proportionality of exclusion for war
crimes or serious non-political crimes.
870
Takkenberg, A.; Tahbaz, C.C., The Collected Travaux Prparatoires of the 1951 Geneva Convention
Relating to the Status of Refugees, 2nd edition, Amsterdam: Dutch Refugee Council, 1989, vol. I: Early History
and Ad Hoc Committee on Statelessness and Related Problems, 16 January-16 February 1960, Lake Success,
436 p.; vol. II: The Ad Hoc Committee on Refugees and Stateless Persons, 14-25 August 1951, Geneva, 243 p.;
vol. III: The Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, 2- 25 July 1951,
Geneva, 703 p.
871
In the current analysis, we do take into consideration neither the 1950 UNHCR Statute nor the 1967 New
York Protocol. In the 1950 UNHCR Statute, we find several concepts that have been taken and deepened in
article 1F of the 1951 Geneva Convention, for instance starting from letter d). In this regard, G. Jaeger affirmed:
The exclusion clauses [] of the Statute [] are substantially equivalent to the exclusion clauses of the 1951
Convention. See: Jaeger, G., op. cit. note 286, p. 11.
872
For a general, institutional analysis of the exclusion clauses, see also: UNHCR, Handbook on procedures and
criteria for determining refugee status under the 1951 Convention and the 1967 Protocol relating to the status of
refugees, 2nd edition, Geneva: UNHCR, 1992, paragraphs 140 through 188, pp. 23-30.
873
ExCom, conclusion No. 82 (XLVIII), Safeguarding asylum, 1997 where the ExCom: [r]eiterates, in light
of these challenges, the need for full respect to be accorded to the institution of asylum in general, and considers
it timely to draw attention to the following particular aspects: v) the need to apply scrupulously the exclusion
clauses stipulated in Article 1 F of the 1951 Convention and in other relevant international instruments, to ensure
that the integrity of the asylum institution is not abused by the extension of protection to those who are not
entitled to it.
874
Gilbert, G.S., op. cit. note 214, p. 428. M. Zagor added a third goal: [t]he practical necessity of making
concessions to state sovereignty in matters of pertaining to national security. While sovereignty is a
notoriously unwieldy concept, it is deeply infused with the concept of a states prerogative to secure the integrity
and safety of its people, values and borders. See: Zagor, M., Persecutor or persecuted: exclusion under article
1F a) and b) of the Refugees Convention, in: University of New South Wales Journal, vol. 23, 2000, p. 167. In
this regard, see also: Bond, J., op. cit. note 219, p. 40.
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international refugee law along with a correspondingly restrictive application of the


exceptions to international refugee law should achieve these objectives.875
The exclusion clauses in the 1969 OAU Convention are often said to have been
modeled after the provisions of the 1951 Geneva Convention.876 Considering the provisos of
the 1951 Refugee Convention in greater detail, as well as with the provisions in the regional
1969 instrument, the provision at article 1F a) of the 1951 Geneva Convention dealing with
the perpetration of a crime against peace, a war crime or a crime against humanity, is far more
general than the homologous provision in the 1950 UNHCR Statute. This latter refers
exclusively to crimes defined as such in article VI of the Statute of the International Military
Tribunal approved in London on 8 August 1945.877 In the same way, article I5 a) of the 1969
OAU Convention also excludes persons who have committed a crime against peace, a war
crime, or a crime against humanity from asylum. The interdiction of such acts, qualified as
crimes does not have any spatial or temporal limitations. For instance, basing its decision
on the latter article and on article 1F a) of the 1951 Geneva Convention, the Beninese
Eligibility Committee for the status of refugees, rejected the application by P.Y. in 2007, as
he was proven to have committed war crimes during the bloody civil war that broke out in
Congo Brazzaville in 1998.878
According to the doctrine, the debate on the different categories of crimes
demonstrates that there is no legally accepted univocal definition of the term crime at this
point in time. Nonetheless, the most recent jurisprudence has attempted to confer a more
systematic definition to that term.879 This is evident, for instance, in the norms contained in
the 1998 ICC Statute,880 to date ratified by 31 Sub-Saharan African countries,881 where the

875
Kwakwa, E., Article 1F c): acts contrary to the purposes and principles of the United Nations, in:
International Journal of Refugee Law, vol. 12, 2000, special supplementary issue, p. 82.
876
For instance, see: Bedjaoui, M., LAsile en Afrique, Nairobi: All Africa Conference of Churches, 1979, p. 20;
Mahamat, B., Analyse comparative de la protection juridique actuelle des rfugis en Afrique et en Europe,
Heidelberg/Ndjamena: Institut Max Planck de droit compar et de droit international public, Imprimerie du
Tchad, 1998, p. 14; Opoku Awuku, E., Refugee movements in Africa and the OUA Convention on refugees,
in: Journal of African Law, vol. 39, 1995, p. 82.
877
In full, paragraph 7 d) of the 1950 UNHCRs Statute reads as follows: Provided that the competence of the
High Commissioner as defined in paragraph 6 above shall not extend to a person: []. In respect of whom there
are serious reasons for considering that he has committed a crime covered by the provisions of treaties of
extradition or a crime mentioned in article VI of the London Charter of the International Military Tribunal or by
the provisions of article 14, paragraph 2, of the Universal Declaration of Human Rights.
878
Benin, Coordination Nationale pour lAssistance aux rfugis, Recueil des dcisions du Comit dligibilit
au statut de rfugi, No. 2, 2008, pp. 106-108.
879
Gilbert, G.S., op. cit. note 214, p. 434. See also: UNHCR, Interpreting Article 1 of the 1951 Convention
Relating to the Status of Refugees, Geneva, 1 April 2001, where paragraph 43, p. 11, reads: According to its
terms, the crimes to which Article 1F a) relate are those so defined in international instruments. This formulation
allows developments in international law in respect of such crimes to be considered. For example, the adoption
of the Rome Statute of the International Criminal Court has defined such crimes in the contemporary context and
will be a useful source for interpreting the exclusion clauses.
880
Articles 5 through 8 of the International Criminal Court Statute. Article 5 (Crimes within the jurisdiction of
the Court) reads as follows: 1) The jurisdiction of the Court shall be limited to the most serious crimes of
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concept of persecution can be considered as a crime independent of armed-conflict


situations882
In addition, a customary interpretation of the three types of crimes referred to in article
1F a) of the 1951 Geneva Convention would lead us to include those mentioned above, i.e.
crimes against peace, war crimes, and crimes against humanity, to which we could add
the crime of genocide. We can also try to qualify every single category of the crimes
mentioned by identifying the different acts that could be included in such parameters.
Consequently, a crime against peace, as defined by principle VI a) set in the 1950
Nuremberg Tribunal,883 comprises:

concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute
with respect to the following crimes: a) The crime of genocide; b) Crimes against humanity; c) War crimes; d)
The crime of aggression. 2) The Court shall exercise jurisdiction over the crime of aggression once a provision is
adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which
the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the
relevant provisions of the Charter of the United Nations. See: UN Diplomatic Conference of Plenipotentiaries
on the Establishment of an International Criminal Court, Rome Statute of the International Criminal Court,
Rome, 15-17 July 1998, document No. A/CONF. 183/9. The International Criminal Court came into being on 1
July 2002 the date its founding treaty, the Rome Statute of the International Criminal Court, entered into
force and it can only prosecute crimes committed on or after that date. Although the official seat of the Court
is in The Hague, Netherlands, but its proceedings may take place anywhere. As of January 2009, 108 states are
members of the Court. Further 40 countries have signed but not ratified the Rome Statute. However, a number of
states, including China, Russia, India and the United States, are critical of the Court and have not joined until
now. The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party,
the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the UNSC.
The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when
national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to
investigate and punish crimes is therefore left to individual states. As of 1 July 2012, the Court has opened
investigations into four situations in Sub-Saharan Africa: Northern Uganda, the Democratic Republic of the
Congo, the Central African Republic and Darfur. The Court has issued public arrest warrants for twelve people;
six of them remain free, two have died, and four are in custody. The Courts first trial, of Congolese militia
leader Thomas Lubanga, began on 26 January 2009. Source: website of the Court at: http://www.icc-cpi.int/,
accessed 10 September 2012. On 14 March 2012, the ICC issued the verdict, declaring Mr. Lubanga: [g]uilty of
conscripting and enlisting children under the age of 15 and using them to participate in hostilities. This news is
available at: http://www.icc-cpi.int/NR/exeres/A70A5D27-18B4-4294-816F-BE68155242E0.htm, accessed 10
September 2012. For the relation between several witnesses in the Lubanga Case and their quest for asylum, see:
Sluiter, G., Shared responsibility in international criminal justice, in: Journal of International Criminal
Justice, vol. 10, 2012, particularly pp. 667-675.
881
For the list of states parties to the 1998 ICC Statute, see:
http://www.iccnow.org/documents/RATIFICATIONSbyRegion_19_May_2011_eng.pdf, accessed 10 September
2012.
882
Durieux, J.-F., Of war, flows, laws and flaws: a reply to Hugo Storey, op. cit. note 714, p. 167.
883
Principles of the Nuremberg Tribunal, No. 82, 1950. Principles of International Law recognized in the
Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal. Adopted by the International Law
Commission of the United Nations, 1950. Under the UNGA resolution No. 177 (II), paragraph a), the
International Law Commission formulated the principles of international law recognized in the Charter of the
Nuremberg Tribunal and in the judgment of the Tribunal. In the course of the consideration of this subject, the
question arose as to whether or not the Commission should ascertain to what extent the principles contained in
the Charter and judgment constituted principles of international law. The conclusion was that since the
Nuremberg Principles had been affirmed by the UNGA, the task entrusted to the Commission was not to express
any appreciation of these principles as principles of international law but merely to formulate them. See:
Yearbook of the International Law Commission, 1950, vol. II, pp. 374-378. Information available at:
http://deoxy.org/wc/wc-nurem.htm, accessed 10 September 2012.
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1) Planning, preparation, initiation or waging of a war of aggression or a war in


violation of international treaties, agreements or assurances; 2) Participation in a common
plan or conspiracy for the accomplishment of any of the acts mentioned under 1).

Second, a war crime as set in article 8 2) a) of the 1998 ICC Statute, includes:

a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the
following acts against persons or property protected under the provisions of the relevant
Geneva Convention: i) Willful killing; ii) Torture or inhuman treatment, including biological
experiments; iii) Willfully causing great suffering, or serious injury to body or health;
iv) Extensive destruction and appropriation of property, not justified by military necessity and
carried out unlawfully and wantonly; v) Compelling a prisoner of war or other protected
person to serve in the forces of a hostile Power; vi) Willfully depriving a prisoner of war or
other protected person of the rights of fair and regular trial; vii) Unlawful deportation or
transfer or unlawful confinement; viii) Taking of hostages.884
Third, a crime against humanity consists of fundamentally inhumane conduct, often
grounded in political, racial, or other prejudice.885 Apartheid in South Africa, slavery still
practiced in several African countries such as Mauritania and Sudan, and torture886 are some
such examples.887

884
In this regard, as G. Acquaviva explained: One of the requirements characterizing as offence as a war crime
is that the victim be generally a protected person under international humanitarian law. While originally the
expression protected person referred only to the categories of individuals explicitly protected under one of the
four Geneva Conventions of 1949 [] international humanitarian law now extends recognition to other
categories of persons, who can therefore be considered, albeit somewhat non-technically, as protected. Further,
at idem: The qualification of the victim is however not enough to establish per se the existence of a war crime:
not all violence against civilians during the course of an armed conflict automatically amounts to war crime. It
must be shown that armed conflict created both the context and the opportunity for the offence. In addition:
[O]nly serious violations of humanitarian law are considered to be war crimes and thus entail criminal
responsibility of the perpetrator under international law. Less serious acts may of course still be crimes under
domestic law or give rise to disciplinary sanctions. See: Acquaviva, G., Forced displacement and international
crimes, in: UNHCR, Legal and protection policy research series, No. 21, 2011, pp. 7-8. Emphasis added.
885
According to J.-F. Durieux: [A] crime against humanity is the clearest expression of what every civilized
nation regards as absolutely abhorrent and, as such, it is capable of generating an impetus to offer extraterritorial
protection to survivors and potential victims (in addition to making sure that perpetrators do not go unpunished).
See: Durieux, J.-F., Of war, flows, laws and flaws: a reply to Hugo Storey, op. cit. note 714, p. 167. Referring
to Sub-Saharan Africa, G. Acquaviva added: On the basis of previous case law and their founding instruments,
the judgments of the International Criminal Tribunal for Rwanda have stressed that crimes against humanity
must be committed as part of a widespread or systematic attack against the civilian population, that is a large-
scale or organized attack the primary object of which is a civilian population. And later, at ibidem: Prosecuting
authorities may actually be able to charge the same conduct under both counts (as a war crime and a crime
against humanity), [the] ICTR having repeatedly held that an accused can indeed be convicted for both offences,
due to the distinctive elements contained in each category of crimes. See: Acquaviva, G., op. cit. note 884, pp.
12 and 19.
886
In this regard, the UNHCR argued: Where acts of torture are part of a systematic attack against the civilian
population, this could constitute a crime against humanity under article 1F a) of the 1951 Convention []
Isolated acts of torture could constitute a serious non-political crime (under article 1F b)). See: UNHCR,
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In this regard, article 7 1) of the 1998 ICC Statute stipulates that:

1) For the purpose of this Statute, crime against humanity means any of the
following acts when committed as part of a widespread or systematic attack directed against
any civilian population, with knowledge of the attack: a) Murder; b) Extermination; c)
Enslavement; d) Deportation or forcible transfer of population; e) Imprisonment or other
severe deprivation of physical liberty in violation of fundamental rules of international law; f)
Torture; g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity; h) Persecution
against any identifiable group or collectivity on political, racial, national, ethnic, cultural,
religious, gender as defined in paragraph 3, or other grounds that are universally recognized
as impermissible under international law, in connection with any act referred to in this
paragraph or any crime within the jurisdiction of the Court; i) Enforced disappearance of
persons; j) The crime of apartheid; k) Other inhumane acts of a similar character intentionally
causing great suffering, or serious injury to body or to mental or physical health.888

Fourth, regarding the crime of genocide, the most famous incident in Sub-Saharan
Africa transpired in Rwanda, and its origins within the region can be traced back to the

Background note on the application of the exclusions clauses: Article 1F of the 1951 Convention Relating to the
Status of Refugees, 4 September 2003, paragraph 88, p. 33. See, for instance, the tortures invoked by
Mauritanian refugees in Senegal who were finally expelled to their country of origin. In this case, the ACHPR
showed an uncharitable and not purposive attitude dismissing the claim of the Mauritanians. See: Mujuzi, J.D.,
The African Commission on Human and Peoples Rights and the promotion and protection of refugees rights,
op. cit. note 343, p. 177. About modern slavery in Sub-Saharan Africa, see, for instance, the information
available at: http://www.africanholocaust.net/articles/21stcentury%20slaves.html, accessed 20 September 2012.
About Mauritania: The government of Mauritania abolished slavery more than 20 years ago. But despite the
governments persistent denials, the practice continues in one form or another. Mauritania has outlawed slavery
three times. But this former French colony of only two million people probably contains the worlds largest
concentration of domestic slaves. And about Sudan: In Sudan, Africas biggest country, chattel slavery is
making a comeback, the result of an 18-year-old war waged by the African Muslim north against the African
Christian and animist south. Militias, reportedly armed by the government, have been raiding African villages,
shooting the men and enslaving the women and children. The latter are kept as personal property or marched
north and sold. ASI (Anti-Slavery International) reports that there is probably no village in the north without its
kidnapped slaves.
887
Hathaway, J.C., The Law of Refugees Status, op. cit. note 130, p. 217.
888
With reference to a legal instrument applied to a specific African situation, article 3 of the 1994 Statute of
ICTR reads:The International Tribunal for Rwanda shall have the power to prosecute persons responsible for
the following crimes when committed as part of a widespread or systematic attack against any civilian
population on national, political, ethnic, racial or religious grounds: a) Murder; b) Extermination;
c) Enslavement; d) Deportation; e) Imprisonment; f) Torture; g) Rape; h) Persecutions on political, racial and
religious grounds; i) Other inhumane acts. See: UNSC, International Criminal Tribunal for Rwanda (ICTR), 13
October 2006, No. 1717, S/RES/1717. In this regard, see: It should be recalled that the crimes listed in the
statutes of the Sierra Leone Tribunal and the ICTR are meant to reflect customary international law. See:
Gowlland, V., personal document, on file with author.
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Rwandan refugee situation in the 1960s.889 On this topic, article 6 of the 1998 ICC Statute
stipulates that:

For the purpose of this Statute, genocide means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as
such: a) Killing members of the group; b) Causing serious bodily or mental harm to members
of the group; c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part; d) Imposing measures intended to prevent
births within the group; e) Forcibly transferring children of the group to another group.890

Moreover, the definition of these crimes, above all that of genocide, is also contained
in several domestic legislations. An example is given by the 2004 Criminal Code of
Ethiopia,891 which contains the crime of genocide (article 269) punishable by rigorous
imprisonment from five years to twenty-five years, or, in more serious cases, with life
imprisonment or death. Likewise, war crimes against civilian populations (article 270)
provides for the same punishment for those who take part in genocide. The crime of genocide
is also included in another recently amended national document, the Ghanaian Criminal
Code,892 where it is clearly established, in section 49A 1), that: whoever commits genocide
shall on conviction be sentenced to death. And of course, the Rwandan government adopted

889
In this regard, G. Loescher and J.H.S. Milner argued: In the aftermath of the Rwandan genocide, it was
widely recognized that the failure of international community to find a lasting solution for the Rwandan refugees
from the 1960s was a key factor that set in motion the series of events that led to the genocide in 1994. []
More than 10 years after the 1994 genocide, it would appear as though this lesson has not yet to be learned, as
dozens of protracted refugee situations remain unresolved in highly volatile and conflict-prone regions. See:
Loescher, G., Milner, J.H.S., Understanding the problem of protracted refugee situations, in: Loescher, G. (et
al.) (edited by), Protracted Refugee Situations: Political, Human Rights and Security Implications, New York:
United Nations University Press, 2008, p. 34.
890
This definition is borrowed by article 2 of the 1948 UN Convention on the Prevention and Punishment of the
Crime of Genocide, which provides the same definition of genocide. This convention, until 1 July, 2012, has
been ratified by 25 countries in Sub-Saharan Africa, the last one being Nigeria, on July 27, 2009. We note that
Rwanda is part to this convention since April 16, 1975. Referring to the 1994 ICTR Statute, its article 2 reads as
follows: 1) The International Tribunal for Rwanda shall have the power to prosecute persons committing
genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph
3 of this article. 2) Genocide means any of the following acts committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such: a) Killing members of the group; b) Causing serious
bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent
births within the group; e) Forcibly transferring children of the group to another group. 3) The following acts
shall be punishable: a) Genocide; b) Conspiracy to commit genocide; c) Direct and public incitement to commit
genocide; d) Attempt to commit genocide; e) Complicity in genocide.
891
Ethiopia, Criminal Code of the Federal Democratic Republic of Ethiopia, Proclamation No. 414 of 2004, 9
May 2005, html document, available at: http://www.unhcr.org/refworld/docid/49216b572.html, accessed 10
September 2012.
892
Ghana, Criminal Code (Amendment) Act, 2003 (Act 646), 12 January 1961, html document, available at:
http://www.unhcr.org/refworld/docid/44bf823a4.html, accessed 10 September 2012.
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a law in 2008 relating to the punishment of the crime of genocide ideology,893 where the
concept of genocide ideology is defined in its article 2 as follows:

The genocide ideology is an aggregate of thoughts characterized by conduct, speeches,


documents and other acts aiming at exterminating or inciting others to exterminate people
basing on ethnic group, origin, nationality, region, color, physical appearance, sex, language,
religion or political opinion, committed in normal periods or during war.

These examples were not taking randomly because, while Ghana is one of the countries
parties to the 1998 ICC Statute since 1999, Ethiopia and Rwanda as of March 2012 are still
not part of the instrument as is the case for Zimbabwe, whose 2004 Criminal Law 894 does not
contain any of the crimes mentioned above in the same way as, for instance, Togo.895
To summarize, a crime can be defined by its seriousness, if it is based on the act itself;
the degree of its consequences; or the intention of the person responsible for it. In addition,
the three categories of crimes detailed in article 1F a) have an important point in common: all
of them generate actions, which imply individual responsibility under international law. 896 An
individual who acts criminally is guilty unless a strictly interpreted exception based on
coercion, error of law, or self-defense is ascertained. In addition, all of the recognized
exceptions to responsibility for crimes against peace and security are non-operative if the facts
raised represent a breach of a norm of jus cogens, derive from a responsibility of the executor,
or are caused by the sacrifice of an interest superior to that at stake.897
Aside from the definition of crime, another question about the application of
exclusion clauses in Sub-Saharan Africa often arises regarding the exact meaning of the
expression serious reasons for considering.898 This expression precedes the list of the

893
Rwanda, Law N 18/2008 of 23/07/2008 Relating to the Punishment of the Crime of Genocide Ideology, 23
July 2008, html document, available at: http://www.unhcr.org/refworld/docid/4acc9a4e2.html, accessed 10
September 2102.
894
Zimbabwe, Criminal Law (Codification and Reform) Act, Act No. 23/2004, 3 June 2005, html document,
available at: http://www.unhcr.org/refworld/docid/4c45b64c2.html, accessed 10 September 2012.
895
Togo, Code penal, as amended up to April 220, 13 August 1980, html document, available at:
http://www.unhcr.org/refworld/docid/48ef498c2.html, accessed 10 September 2012.
896
Pejic, J., Article 1F a): the notion of international crimes, in: International Journal of Refugee Law, vol. 12,
special supplementary issue, 2000, p. 44. See also: UNHCR, The exclusion clauses: guidelines on their
application, 2 December 1996, paragraph 36 [no page number]: Crimes against humanity can be perpetrated by
individuals without any connection to a state, as well as by persons acting on behalf of a state. In particular,
individuals involved in paramilitary or armed revolutionary movements can be guilty of excludable acts under
this heading. An individual acting independently of the state can also be guilty of a crime against humanity, as
has been recognized since the Nuremberg trials.
897
Hathaway, J.C., The Law of Refugees Status, op. cit. note 685, p. 220.
898
M. Bliss gave this explanation of the phrase in question: It can be stated that the serious reasons for
considering standard is clearly less than the standard required for conviction for a criminal offence in a common
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exclusion clauses,899 and it has been argued by a commentator that the interpretation of this
phrase can be restrictive.900
Referring to a specific African situation, we can argue that the authorities deciding upon
the exclusion of refugee status sometimes need to face not only individuals confronted with
domestic criminal procedures but also, and to an increasing extent individuals prosecuted by
international tribunals. This is demonstrated by the case of the ICTR, whose practice seems to
show that prosecutors need considerable proof of participation in international crimes before
condemning a person. Because of this burden of proof requirement, authorities of the host
African country making the decision on the refugee status of an asylum-seeker may rely on
that persons condemnation by, for example, the ICTR for war crimes, crimes against
humanity, or crimes against peace as representing serious reasons for considering that
he/she has perpetrated such crimes.901
The validity of this interpretation has been confirmed by a 2001UNHCR document that
states that:

[E]ven though exclusion proceedings do not equate with a full criminal trial, the
standard of proof (serious reasons) has to be a higher threshold than a mere [r]easonable
suspicion. [] In the case of an indictment by an international criminal tribunal, this standard
would automatically be met and moreover no further individual assessment would be
necessary.902

law system proof of guilt beyond [a] reasonable doubt. The decision maker need not make a finding that the
asylum seeker is in fact guilty of the crime in question. See: Bliss, M., op. cit. note 869, p. 115.
899
Article 1F of the 1951 Geneva Convention and article I5 of the 1969 OAU Convention.
900
Zagor, M., op. cit. note 874, p. 168. At idem, quoting UNHCR, the author clarified: In 1997, the UNHCR
reiterated its call for a restrictive approach. Concerned at indications that the exclusion clauses would become
another avenue by which deserving cases are denied access to international protection, the Executive
Committee asserted that there should be substantially demonstrable ground for exclusion, and that the clause
should only be used as an extreme measure [and interpreted] in a manner which does not undermine the
integrity of international protection. Emphasis added.
901
Bliss, M., op. cit. note 869, p. 119.
902
UNHCR, Addressing Security Concerns without Undermining Refugee Protection: UNHCRs Perspective, 29
November 2001, Rev.1, paragraph 17, p. 4. In this regard, see also: UNHCR, Background note on the
application of the exclusions clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees, 4
September 2003, paragraph 106, p. 38: In some instances, the burden of proof may be reversed, creating a
rebuttable presumption of excludability. This is arguably the case where the individual has been indicted by an
international criminal tribunal. It would then be up to the individual to rebut the presumption by proving, for
example, mistaken identity. In the context of action against terrorism, lists established by the international
community of terrorist suspects and organizations should not generally be treated as reversing the burden of
proof. Unlike ICTY/ICTR indictments, such lists would be drawn up in a political, rather than a judicial, process
and so the evidentiary threshold for inclusion is likely to be much lower. Moreover, the criteria for inclusion on a
list may be much broader than those relevant to the test for exclusion under Article 1F. By contrast, an
indictment by an international criminal tribunal will generally be in relation to activity caught by Article 1F,
particularly under subparagraph a). Talking more about anonymous evidences an author, relying on the practice
of the ICTR, suggested that they should be used moderately and not if they would be [p]rejudicial to the right of
the [applicant] to a fair trial. See: Bliss, M., op. cit. note 869, pp. 121-123.
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That said, as of the time of writing, we have no major news about the situation of
individuals sentenced and condemned by a Gacaca courts903 who have applied for asylum in
Sub-Saharan Africa.
Other scholars, however, have taken the view that serious reasons for considering
ought to require a preponderance of evidence. None however thought that this requirement for
evidentiary preponderance a standard for a criminal conviction needed to be proved beyond a
reasonable doubt. Indeed, this evidentiary problem has been difficult to overcome, especially
in situations of genocide, such as in Rwanda, where many people participated in the
slaughter.904

903
In this regard see, for instance: Kirkby, C., Rwandas Gacaca Courts: a preliminary critique, in: Journal of
African Law, vol. 50, 2006, p. 100: On 12 October, 2000, the Transitional National Assembly, Rwandas
Parliament, adopted the Gacaca courts as their solution to the question of genocide. Although named after a
traditional dispute resolution practice, the Gacaca courts are, ironically, Western-style judicial courts grafted
onto Rwandas centralized, hierarchical administrative structures erected during the colonial era. Yet the Gacaca
courts are a true experiment born of political and financial necessity, and a proclaimed desire to deal with the
genocide through restorative justice. The Gacaca courts finally began national operation in 2005, just over a
decade after the 1994 genocide. The legislation governing Gacaca courts, enacted in 2001 and modified in 2004,
states a number of goals. The first is to establish the truth about the genocide. [...] Secondly, the courts should
speed up the dismal progress made in prosecuting the enormous number of prisoners. [...] The third aim is to
eradicate the culture of impunity that has developed in Rwanda. The historical cycles of massacre and counter-
massacre, the government declared, must come to an end. The Gacaca courts will ensure no genocidaire will
escape justice for his/her actions. The final goal is reconciliation. Communities coming together to air the truth
in the courts can punish the guilty, and then reintegrate them into their home villages. [...] According to Gacaca
legislation, under the 2004 Organic Law, the temporal jurisdiction for these crimes extends from 1 October,
1990, to 31 December, 1994, which is much longer than the ICTRs circumscribed competence to try only
crimes committed in the year 1994. In the same regard, the reader may also see, for instance: Bolocan, M.G.,
Rwandan Gacaca: an experiment in transitional justice, in: Journal of Dispute Resolution, vol. 2004, 2004, pp.
355-400; Megwalu, A.L.; Loizides, N., Dilemmas of justice and reconciliation: Rwandans and the Gacaca
Courts, in: African Journal of International and Comparative Law, vol. 18, 2010, pp. 1-23, Schabas, W.,
Genocide trials and Gacaca Courts, in: Journal of International Criminal Justice, vol. 3, 2005, pp. 879-895;
Tully, L.D., Human rights compliance and the Gacaca jurisdictions in Rwanda, in: Boston College
International and Comparative Law Review, vol. 26, 2003, pp. 385-414; Westberg, M.M., Rwandas use of
transitional justice after genocide: the Gacaca Courts and the ICTR, in: University of Kansas Law Review, vol.
59, 2010-2011, pp. 331-368. Finally P. Clark pointed out that: For nine years [2001-2010], Gacaca jurisdictions
overseen by locally elected judges have prosecuted around four hundred thousand genocide suspects in more
than one million trials [] [G]acaca has proven remarkably successful at prosecuting such an enormous backlog
of genocide cases, individualizing culpability by connecting specific crimes to specific perpetrators and
unearthing microlevel thruts about genocide while costing the Rwandan state only around 40 million dollars.
See: Clark, P., Creeks of justice: debating post-atrocity avccountability and amnesty in Rwanda and Uganda,
in: Lessa, F.; Payne, L.A. (edited by), Amnesty in the Age of Human Rights Accountability: Comparative and
International Perspectives, Cambridge UK-/New York, Cambridge University Press, 2012, p. 220. In Sub-
Saharan Africa, the concept of transitional justice, among other aspects, is also considered very important in
the framework of the repatriation of refugees. In effect: Sustainable return depends on sustainable peace after
conflict, massive violence or systematic abuses of human rights have occurred. This requires a comprehensive
set of rule of law strategies, dealing both with the past and the future, in order to prevent the recurrence of the
causes of refugee flight. Transitional justice addresses these, whether in the form of peaceful coexistence
projects; prosecution of perpetrators; revelation of the truth about past crimes; reparation and restitution;
reformation of abusive institutions; promotion of reconciliation; or a combination of these. See: UNHCR,
Standing Committee, Legal safety issues in the context of voluntary repatriation, 7 June 2004, document No.
EC/54/SC/CRP.12, paragraph 20, p. 6. For the all the questions linked to the voluntary repatriation of refugees
see, in particular: infra, Chapters 13 and 14.
904
ONeill, W.; Rutinwa, B; Verdirame, G., The Great Lakes: a survey of the application of the exclusion
clause in the Central African Republic, Kenya and Tanzania, in: International Journal of Refugee Law, special
supplementary issue, vol. 12, 2000, p. 138. About the screening of the Rwandan asylum-seekers in CAR, the
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About serious non-political crime outside the country of refuge prior to his/her
admission to that country as a refugee mentioned in article 1F b) of the 1951 Geneva
Convention and I5 b) of the African instrument, several elements that influence its
interpretation should be underlined. Firstly, we will mention that this norm is especially
difficult to define because the term crime bears different meanings depending on the
different juridical systems of reference.905 The UNHCR gives us a hand by providing an a
contrario definition of non-political which establishes three tests for determining whether
an offence is political.906 In addition, UNHCR provides us with some precise indications on
the interpretation of the term serious.907 Secondly, about the procedural decision on the
exclusion clause, it is fundamental that there are serious reasons to believe that the applicant
has committed these serious non-political crimes. Otherwise, quoting the Supreme Court of
South Africa:

Society is the ultimate loser when, in order to convict the guilty, it uses methods that
lead to decreased respect for the law.908

There are even more difficulties in applying this exclusion clause to an individual who
has committed an act of terrorism because there is still no univocal concordance on the
definition established within doctrine.909 It appears that the text of the 1951 Geneva

authors were more detailed in explaining these difficulties: The burden of proof employed was never precisely
described in the files reviewed, but it is clear that mere suspicion of participating in genocide, based on the
applicants lack of credibility, active obfuscation, intentional misrepresentation of material facts and willful
withholding of information, combined with the admitted or probable membership in an organization [] deeply
implicated in genocide were not enough to find serious reasons to consider the application of article 1 F). See:
ibid., p. 147.
905
UNHCR, Handbook on procedures and criteria for determining refugee status under the 1951 Convention and
the 1967 Protocol relating to the status of refugees, 2 nd edition, Geneva: UNHCR, 1992, paragraph 155, p. 25.
906
Ibid., paragraph 152, p. 25: In determining whether an offence is non-political or is, on the contrary, a
political crime, regard should be given in the first place to its nature and purpose i.e. whether it has been
committed out of genuine political motives and not merely for personal reasons or gain. There should also be a
close and direct causal link between the crime committed and its alleged political purpose and object. The
political element of the offence should also outweigh its common-law character. This would not be the case if
the acts committed are grossly out of proportion to the alleged objective. The political nature of the offence is
also more difficult to accept if it involves acts of an atrocious nature.
907
Ibid., paragraph 155, p. 25: [I]n the present context, however, a serious crime must be a capital crime or a
very grave punishable act. Minor offences punishable by moderate sentences are not grounds for exclusion under
Article 1F b) even if technically referred to as crimes in the penal law of the country concerned.
908
Supreme Court of South Africa, Appellate Division, State v. Ebrahim, (2) SA 553 (a), 16 February 1991, in:
International Legal Materials, vol. 32, 1992, p. 898.
909
Gilbert, G.S., op. cit. note 214, p. 443. Furthermore, J.J. Lambert added: [a]lthough there seems to be
general agreement that terrorism involves the threat or use of violence [] differences in definition range from
semantic to the conceptual. However: [d]espite all of the uncertainty and disagreement in this area, there are
some definitions of terrorism which seem reasonable in so far they, to a certain extent, bridge the gap between
some various viewpoints. See: Lambert, J.J., The problem of international terrorism and the response of
international organization, in: Van Krieken, P.J. (edited by), Refugee Law in Context: the Exclusion Clause,
The Hague: T.M.C. Asser Press, 1999, pp. 177 and 179. In this regard, UNHCR pointed out that: Despite the
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Convention implicitly refers to anterior jurisprudence and it gives a certain margin of


appreciation in its application to states.910
Specifically in Africa, the gap derived from the lack of agreement on what constitutes
a terrorism act seems to have been bridged by the definition in article 1 3) as well as article
3 of the 1999 OAU Convention on the Prevention and Combating of Terrorism,911 a definition
which was confirmed in article 1 1) of its 2004 Protocol.912 In addition, UNHCR warned
about the frequent possibilities in the African context to take a failed coup dtat for a terrorist
act:

[I]n Africa, a coup is often the only means through which a change in the political
regime can be effected. [] As a result, fear of persecution arising from an unsuccessful coup

lack of an internationally agreed definition of terrorism, acts commonly considered to be terrorist in nature are
likely to fall within the exclusion clauses even though Article 1F is not to be equated with a simple anti-terrorism
provision. Consideration of the exclusion clauses is, however, often unnecessary as suspected terrorists may not
be eligible for refugee status in the first place, their fear being of legitimate prosecution as opposed to
persecution for Convention reasons. See: UNHCR, Guidelines on international protection No. 5: Application of
the exclusion clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, document No.
HCR/GIP/03/05, 4 September 2003, paragraph 25, pp. 7-8. In this regard, C. Brumar contended that: [I]t is not
definitively agreed as to the qualification of the terrorist acts, if the y would fall under the serious non-political
crime notion or the acts contrary to the purposes and objectives of the United Nations one. Still, the UNHCR
seems to favor inclusion in the first category, as the methods and consequences are those of a serious non-
political crime. This position is also more favorable to the individual, as in general, the perpetration of a serious
non-political crime is proved by the initiation of criminal proceedings, documents and evidence collected in the
file, prosecution applications, and judicial decisions. A conclusion as to whether a person is guilty for an act
contrary to the purposes and objectives of the United Nations, if that act is not at the same time a crime, is more
difficult and the evaluation of individual responsibility, that does not benefit from the criminal standard, more
fluid. See: Brumar, C., op. cit. note 899, p. 57.
910
Guillaume, G., Terrorisme et droit international , in: Recueil des Cours de lAcadmie de La Haye, vol.
215, 1989 (III), p. 362.
911
The OAU Convention on the Prevention and Combating of Terrorism has been adopted in Algiers on the 14
July 1999. It entered into force on the 6 December 2002 according to the provisos contained in its article 20
thanks to the accession of Ghana. As of 20 July 2012, 40 countries in the Sub-Saharan Africa area have ratified
this instrument. Article 1 3) defines a terrorist act as follows: Terrorist act means: a) any act which is a
violation of the criminal laws of a State Party and which may endanger the life, physical integrity or freedom of,
or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage
to public or private property, natural resources, environmental or cultural heritage and is calculated or intended
to: i) intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any
segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act
according to certain principles; or ii) disrupt any public service, the delivery of any essential service to the public
or to create a public emergency; or iii) create general insurrection in a State. b) any promotion, sponsoring,
contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organizing, or
procurement of any person, with the intent to commit any act referred to in paragraph a) i) to iii). Article 3 1) of
this convention adds: Notwithstanding the provisions of article 1, the struggle waged by peoples in accordance
with the principles of international law for their liberation or self-determination, including armed struggle against
colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts.
912
The Protocol to the OAU Convention on the prevention and combating of terrorism has been adopted in
Addis Ababa on the 8th of July 2004. As of 15 July 2012, it has not entered into force yet. According to the
provisions stipulated in its article 10 fifteen ratifications would be necessary for the Protocol to enter into force
but only twelve countries have effectively done so until now, the last one having been Mozambique on 29 July
2011.
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attempt may be regarded as grounded upon political opinion/activities and within the ambit of
the 1951 Convention.913

The legal developments in this very topical field, through the adoption of the regional
Convention on the Prevention and Combating of Terrorism, have been considered an evident
progress of human rights promotion on the African continent. The AU should be able to
maintain this development in conformity with international standards,914 especially after
having discovered that international terrorism had roots in Sub-Saharan Africa, as well.915
Returning to the definition of non-political crime provided by the 1951 Geneva
Convention, exclusively serious crimes have been taken into consideration. The majority of
the doctrine agrees in the affirmation that crimes, which are part of multilateral conventions
on terrorism promoted by the UN are to be qualified as serious. But circumstances need to
be assessed on a case by case basis, making use of certain flexibility in light of the
developments following the 1951 Geneva Convention.916
In addition: did the authors of the 1951 Geneva Convention intend for the exclusion
clause to play a very important role in the process of extradition? This remains an unanswered
question. It seems that the role of the paragraph in question is not just limited to extradition,917
although doctrine does not entirely agree on this subject.918

913
Letter from UNHCR to Bradford Smith, Esq., quoted in Zagor, M., op. cit. note 874, p. 181.
914
For a general panorama on this feature, see, for instance: Murray, R., Human Rights in Africa: from the OUA
to the African Union, op. cit. note 344, 239 p. At p. 132, however, the author complained that: [H]uman rights
standards on due process, fair trial and protection from torture in particular were not more explicitly laid out in
the [1969 OAU] Convention.
915
For instance, see the on-line analysis made by the Council on Foreign Relations: Terrorism havens:
Somalia, available at: http://www.cfr.org/publication/9366/, accessed 10 September 2012.
916
Higgins, R., Problems and Process: International Law and How We Use It, Oxford: Clarendon Press, 1994,
274 p. In particular, see: Chapter 1 entitled: The nature and function of international law, pp. 1-16 and chapter
11 entitled: The United Nations, pp. 169-185.
917
Handbook on procedures and criteria for determining refugee status under the 1951 Convention and the 1967
Protocol relating to the status of refugees, 2 nd edition, Geneva: UNHCR, 1992, paragraph 157, p. 26. See also:
ExCom, conclusion No. 17 (XXXI), Problem of extradition affecting refugees, 1980 whose section f) and g)
read: [The ExCom] f) stressed that nothing in the present conclusions should be considered as affecting the
necessity for States to ensure, on the basis of national legislation and international instruments, punishment for
serious offences, such as the unlawful seizure of aircraft, the taking of hostages and murder; g) stressed that
protection in regard to extradition applies to persons who fulfill the criteria of the refugee definition and who are
not excluded from refugee status by virtue of article 1F b) of the 1951 United Nations Convention relating to the
Status of Refugees.
918
For instance, see what J.C. Hathaway affirmed: [This exclusion clause] is a simply means of bringing
refugee law into line with the basic principles of extradition law, by ensuring that important fugitives from
justice are not able to avoid the jurisdiction of a state in which they may lawfully face punishment. See:
Hathaway, J.C., The Law of Refugees Status, op. cit. note 685, p. 221. Nevertheless, the dominant position seems
to be in the sense of not according the extradition of the refugee towards the country of origin. D. Alland and C.
Teitgen-Colly are quite clear on the issue. In their opinion, one of the reasons why a refugee must not be
extradited in the country of origin: [t]ient la contradiction quil y a entre la reconnaissance de craintes de
perscutions et la remise aux autorits de ltat perscuteur dune personne dont le statut et la protection
offerts par ltat daccueil nont de sens que parce quils assurent une mise hors datteinte de ltat dorigine .
See: Alland, D.; Teitgen-Colly, C., Trait du droit dasile, Paris: Presses universitaire de France, 2002, p. 635.
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The notion of serious non-political crimes as understood in states extradition practice


either before or after the adoption of the 1951 Geneva Refugee Convention, has been said to
reveal a remarkable similarity to numerous war crimes. In order to assure the integrity of the
international system of refugee protection, the continued exclusion of serious non-political
criminals must be justified on a principled basis. Committing a serious non-political crime
may be sufficient reason for exclusion because it could indicate some future threat to the state
of refuge; or because the nature and/or circumstances of the crime render it a basis for
exclusion in itself, regardless of extradition, prosecution or punishment.919
However, each country tends to determine what constitutes a serious crime, according
to its own standards. Consequently, the country has some discretion in determining if the
criminal character of the applicant for asylum outweighs his/her character as a bona fide
refugee, and so constitutes a threat to its internal order. Commentators and jurisprudence
seem to agree, however, that serious crimes are those committed against liberty, physical
integrity and life. However, this is not always obvious. The predisposition to depoliticize
certain offences, such as hijacking, hostage taking, and terrorism, is a potential source of
difficulties that is not entirely resolved by the inclusion in certain conventions of the aut
dedere aut judicare principle.920 For instance, in terms of hijacking, it can effectively be
considered a serious non-political crime if committed when fleeing from persecution. The
general interpretation in this case has not been homogeneous until now.921
Finally, to summarize our analysis, we simply wish to recall that, when applying this
paragraph of the 1951 Geneva Convention, UNHCR has been quite clear in affirming:

919
Goodwin-Gill, G., The Refugee in International Law, 2nd edition, Oxford: Clarendon Press, 1996, p. 104.
920
Ibid., pp. 105-106.
921
UNHCR, Handbook on procedures and criteria for determining refugee status under the 1951 Convention and
the 1967 Protocol relating to the status of refugees, 2 nd edition, Geneva: UNHCR, 1992, paragraph 159, p. 26
that reads: As regards hijacking, the question has arisen as to whether, if committed in order to escape from
persecution, it constitutes a serious non-political crime within the meaning of the present exclusion clause.
Governments have considered the unlawful seizure of aircraft on several occasions within the framework of the
United Nations, and a number of international conventions have been adopted dealing with the subject. None of
these instruments mentions refugees. [...] [But a] report states that the adoption of the draft resolution cannot
prejudice any international legal rights or duties of States with respect to asylum. A decade later UNHCR
pointed out: It is evident that hijacking poses a grave threat to the life and safety of innocent passengers and
crew. It is for this reason that there is so much opprobrium attached to acts of hijacking. Thus, acts of hijacking
will almost certainly qualify as serious crimes and the threshold for the proportionality test will be extremely
high only the most compelling circumstances can justify non-exclusion for hijacking. See: UNHCR,
Background note on the application of the exclusions clauses: Article 1F of the 1951 Convention Relating to the
Status of Refugees, 4 September 2003, paragraph 85, p. 32. See also: Helton, A.C., The case of Zhang Zhenhai:
reconciling the international responsibilities of punishing air hijacking and protecting refugees, in: Loyola Los
Angeles International and Comparative Law Journal, vol. 13, 1990-1991, pp. 841-850.
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In applying this exclusion clause, it is also necessary to strike a balance between the
nature of the offence presumed to have been committed [...] and the degree of persecution
feared.922

Article I5 b) of the 1969 OAU Convention prohibits the application of the conventions
provisions to individuals who committed a serious non-political crime outside the country of
refuge prior to his/her admission to that country as a refugee. From this specification, it can
be derived that a refugee guilty of a crime committed in the country of asylum can be pursued
in conformity with the law of this country, his/her status of refugee not having changed
because of the crime committed.923
The prohibition in article I5 b) is extended to the set of crimes committed outside the
country where the asylum-seeker has taken refuge except when they are political ones.
Such a specification evokes several doubts if it attributes legitimacy to those who, trying to
restore a democratic regime in their own country, commit political crimes in response to
other political crimes previously committed and that led leaders to power in a way that may
be undemocratic for instance through election-rigging. Can civil society tolerate crimes
in a series although they are political? Can leaders, who stepped up to power through
political crimes, benefit from refugee status when they lose power?924 Often in Sub-Saharan
Africa, political leaders mix political with non-political crimes in order to acquire political
power. Therefore, in our opinion, they should not deserve the status of refugee once

922
UNHCR, Handbook on procedures and criteria for determining refugee status under the 1951 Convention and
the 1967 Protocol relating to the status of refugees, 2 nd edition, Geneva: UNHCR, 1992, paragraph 156, p. 25.
This paragraph further clarifies: [I]f a person has well-founded fear of very severe persecution, e.g. persecution
endangering his/her life or freedom, a crime must be very grave in order to exclude him/her. If the persecution
feared is less serious, it will be necessary to have regard to the nature of the crime or crimes presumed to have
been committed in order to establish whether the applicant is not in reality a fugitive from justice or whether
his/her criminal character does not outweigh his/her character as a bona fide refugee.
923
Bedjaoui, M., op. cit. note 876, p. 44.
924
In this regard, see, for instance, the opinion by UNHCR related to the 1951 Geneva Convention, reflections
easily extendable to the 1969 African Convention, as well: UNHCR, Interpreting Article 1 of the 1951
Convention Relating to the Status of Refugees, Geneva, 1 April 2001, paragraphs 47-48, p. 12: 47): By the
same token, the perpetrators of some political crimes, or grave punishable acts which are committed for
political ends, such as hijacking or kidnapping, may not be, as a matter of course, excused from the operation of
the exclusion clauses by reference to the non-political qualification. There must be a careful analysis of
whether the seriousness of the harm inflicted outweighs the political end to be achieved. If the so-called
political crime is extremely harmful or disproportionate in its effects, compared to the political end sought by
the perpetrator, the person may be excludable despite the political motivation. On the other hand, if the
commission of the crime is, for example, the only means by which to escape persecution by a repressive regime,
it may well be judged to be justified and exclusion will not necessarily follow, depending on the circumstances
of the case. 48): If Article 1F b) is judged to apply, then, in UNHCRs view and in the practice in some
jurisdictions, it is necessary to strike a balance between the nature of the offence presumed to have been
committed by the applicant and the degree of persecution feared. If the well-founded fear is of very severe
persecution endangering the applicants life or freedom, the crime committed must be very grave indeed to
exclude the person from status.
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defenestrated and exiled, as was the case of J.-B. Bokassa exiled in Ivory Coast or I. Amin
exiled in Libya.
The 1969 African Convention leaves more than one interpretation of this issue and
governments generally have quite a vast arbitrary power to decide whether to grant refugee
status to a former political leader of another country. Asylum countries often arbitrarily assess
whether or not the applicant committed any crimes, political crimes or non-political crimes in
his/her country of origin.
We find the provision in article I5 b) regionally suitable for the African continent,
where we are often witnesses of the self-legitimacy of autocratic regimes. This provision
constitutes one of the particularities of the 1969 OAU Convention.
Article 1F c) of the 1951 Geneva Convention envisages the exclusion of refugee status
for each individual guilty of acts contrary to the goals and principles of the UN. 925 This point
was notably updated after 11 September 2001, as it was affirmed by the UNSC that acts of
international terrorism constituting a threat to international peace and security are contrary to
UN principles.926 Nonetheless, it has also been affirmed that every limitation on rights needs
to be interpreted restrictively.927

925
UNHCR underlined as the travaux prparatoires of the 1951 Geneva Convention have been vague relating
this proviso. In this regard, as UNHCR affirmed: The last exclusion provision, Article 1F c), refers to acts
contrary to the purposes and principles of the United Nations. As explained in the relevant paragraphs of the
Handbook, the purposes and principles of the United Nations are set out in articles 1 and 2 of the Charter of the
United Nations, and by their very nature relate to member States of the UN. The travaux prparatoires reflect a
lack of clarity with respect to the use of this provision. Comments by delegates suggest that the drafters viewed
this provision as one that would be rarely invoked, and applicable only to individuals who were in a position of
power or influence in a State and instrumental in the States infringement of the UN purposes and principles.
There may be overlap with Article 1F a), in that crimes against peace and crimes against humanity also are acts
against the purposes and principles of the United. See: UNHCR: Interpreting Article 1 of the 1951 Convention
Relating to the Status of Refugees, Geneva, 1 April 2001, paragraph 50, p. 13.
926
UNSC, Threats to international peace and security caused by terrorist acts, 12 September 2001, No. 1368,
S/RES/1368, paragraph 1: [the UNSC] unequivocally condemns in the strongest terms the horrifying terrorist
attacks which took place on 11 September 2001 in New York, Washington DC and Pennsylvania and regards
such acts, like any act of international terrorism, as a threat to international peace and security. In this regard,
UNHCR affirmed: Given the broad, general terms of the purposes and principles of the United Nations, the
scope of this category is rather unclear and should therefore be read narrowly. Indeed, it is rarely applied and, in
many cases, article 1F a) or 1F b) are anyway likely to apply. Article 1F c) is only triggered in extreme
circumstances by activity which attacks the very basis of the international communitys coexistence. Such
activity must have an international dimension. Crimes capable of affecting international peace, security and
peaceful relations between States, as well as serious and sustained violations of human rights, would fall under
this category. Given that articles 1 and 2 of the United Nations Charter essentially set out the fundamental
principles States must uphold in their mutual relations, it would appear that in principle only persons who have
been in positions of power in a State or State-like entity would appear capable of committing such acts. In cases
involving a terrorist act, a correct application of article 1F c) involves an assessment as to the extent to which the
act impinges on the international plane in terms of its gravity, international impact, and implications for
international peace and security. See: UNHCR, Guidelines on international protection No. 5: application of the
exclusion clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, document No.
HCR/GIP/03/05, 4 September 2003, paragraph 17, p. 5.
927
Gilbert, G.S., op. cit. note 214, p. 456. In the same regard, E. Kwakwa stressed: To argue that article 1F c)
should be interpreted restrictively is not to argue that the article is redundant. It should remain relevant in a few
limited and clearly defined circumstances. [] Paragraph c) of article 1F should not be used in any situation that
would otherwise fall within the purview of paragraphs a) and/or b), it should only be used in those few and
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In any case, it seems that two particular observations must be made comparing this
paragraph of the 1951 Geneva Convention with the two previously analyzed. First, it appears
patent that paragraphs a) and b) require the commission of very specific crimes, while
paragraph c) does not entail actual crimes but simply refers to acts. Second, paragraph
c)s use of the phrase has been guilty would seem to suggest a higher threshold for the
establishment of culpability. To be sure, it is worth questioning whether paragraph c) requires
a pronouncement of guilty by a competent body, a requirement that is evidently missing in
paragraphs a) and b).928
A question can also be raised on this sub-paragraph concerning positions in the state
hierarchy occupied by authorities that can be considered guilty of acts contrary to UN
principles, listed in the four paragraphs of article 1 of the 1945 UN Charter. 929 These are
mainly directed at governments and thus, theoretically, to highly placed authorities in the
hierarchy of a state.930 However, although the application of article 1F c) of the 1951 Geneva
Convention is not very frequent,931 it has constituted the basis for decisions adopted against
individuals who did not occupy important positions in the hierarchy of the state as well.932 We
do not see any persuasive reason why individuals, who are neither affiliated nor associated
with a government, nor acting in an official capacity, should be capable of carrying out acts
contrary to the purposes and principles of the UN. It is true that, according to UNHCR:

Article 1F c) is only triggered in extreme circumstances by activity which attacks the


very basis of the international communitys coexistence. Such activity must have an
international dimension. Crimes capable of affecting international peace, security and

exceptional situations where the acts in question do not fall under the exclusion clauses in paragraphs a) and/or
b), and are a blatant and egregious violation of fundamental human rights that clearly contravene the purposes
and principles of the United Nations. There will likely be less than a handful of such cases. See: Kwakwa, E.,
op. cit. note 875, p. 91.
928
Ibid., p. 84.
929
These principles are: to maintain international peace and security; to develop friendly relations among nations
based on the respect for the principle of equal rights and self-determinations of peoples; to achieve international
cooperation in solving international problems of an economic, social, cultural or humanitarian character and in
promoting and encouraging respect for human rights; constitute a centre for harmonizing the actions of nations
in the attainment of these common ends. N.J. Shrijver joined to the mentioned principles also the seven
principles contained in article 2 of the 1945 UN Charter. See: Schrijver, N.J., Interpreting the principles and
purposes of the United Nations, in: Van Krieken, P.J. (edited by), Refugee Law in Context: the Exclusion
Clause, The Hague: TMC Asser Press, 1999, particularly at pp. 241-245.
930
Hathaway, J.C., The Law of Refugees Status, op. cit. note 685, p. 229.
931
There are, however, several commentators sharing a different opinion. For instance, Goodwin-Gill, G., The
Refugee in International Law, 2nd edition, op. cit. note 919, p. 114, where he explained: Once rarely used, [this
paragraph] is now frequently invoked; its interpretation and development are likely to vary, however, given the
disparate interests of sovereign states members of the United Nations.
932
Gilbert, G.S., op. cit. note 214, p. 456. Citing UNHCR, the author referred to persons who in the 1950s had
denounced individuals to the occupying authorities with extreme consequences, including death.
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peaceful relations between States, as well as serious and sustained violations of human rights,
would fall under this category.933

Terrorists, therefore, who according to the above paragraph can be comprised in the
category of individuals to which such an exclusion clause is applied, are generally not part of
the authorities of a country. Nevertheless, we agree with what has been argued:

Given that article 1F c) is a limitation on a fundamental right, there is strong reason to


restrict its ambit, and, since acts contrary to the purposes and principles of the United Nations
are those perpetrated by states, it would promote consistency within international law to
confine the scope of article 1F c) to acts committed by persons in high office in government
or in a rebel movement that controls territory within the state or in a group perpetrating
international terrorism that threatens international peace and security. Those perpetrating acts
of international terrorism constituting a threat to international peace and security who are not
high-ranking members of the organization should be excluded under article 1F b).934

Jurisprudence developed in several countries has shown two main guidelines indicating
how to deal with the situation. The first focuses almost exclusively on state officials, while
the second seeks to extend the scope of individual responsibility. It appears that France
belongs to the first current935 and, consequently, African countries formerly colonized, and
whose legal systems have been influenced by France, follow its example. Nevertheless,
France has also extended article 1F c) to individuals who, although not occupying positions
of power in the state hierarchy, acted against UN principles by carrying out orders from
superiors, among them, the Hutu militia in Rwanda.936
In conclusion, article 1F c) tends to exclude state officials responsible for the
implementation of policies that violate human rights or are otherwise contrary to the
principles and purposes of the UN. Nevertheless, in appropriate circumstances, it also seems
to apply to individuals without any political responsibility, who are party to human rights
violations, both individually and as members of organizations engaged in such activities.937

933
UNHCR, Guidelines on international protection No. 5: application of the exclusion clauses: Article 1F of the
1951 Convention relating to the Status of Refugees, document No. HCR/GIP/03/05, 4 September 2003,
paragraph 17, p. 5.
934
Gilbert, G.S., op. cit. note 214, p. 457.
935
Goodwin-Gill, G., The Refugee in International Law, 2nd edition, op. cit. note 919, pp. 110-111.
936
Kwakwa, E., op. cit. note 875, pp. 89-90.
937
Goodwin-Gill, G., The Refugee in International Law, 2nd edition, op. cit. note 919, p. 113.
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In Sub-Saharan Africa, letters c) and d) of article I5 of the 1969 OAU Convention


stipulate that an asylum-seeker cannot acquire refugee status if he/she has acted against the
purposes and the principles of the AU,938 and against the purposes and principles of
the UN.939 As it can be easily noticed, in the 1969 African Convention, two institutions are
referenced the UN and the AU making the regional instrument a more restrictive one
compared to the 1951 Geneva Convention.940
Generally, the UN and the AU have the same objectives although we should recall that
when the regional convention was elaborated in the 1960s, it envisaged several specific
questions linked to the emancipation of some African peoples and territories that were not yet
independent.941 These two instruments are also distinguishable from one another in that,
although the purposes of the current AU are not new to the UN, the AU has been considered
to have priority in the African legal framework.942 Consequently, according to the prevalent
doctrine, persons that opposed the national freedom movements should be excluded from the
benefits of the 1969 African Convention.943 However, the regional conventions introduction
of acts contrary to the [AUs] purposes and principles has raised two questions: first, the
purposes and principles of the AU are expressed in vague and sometimes ambiguous terms.944
Second, an individual who has committed an act contrary to AU principles but not necessarily
UN principles, raises a question that has been affirmed to be solved through the
interpretations of the AU ejusdem generis at the UN945 although the 1945 UN Charter seems
to clearly affirm something different.946

938
In this circumstance we talk about the AU and not about the OAU basing our change of denomination on
article 33 1) of the 2000 Constitutive Act of the AU that reads: 1) This Act shall replace the Charter of the
Organization of African Unity. However, the Charter shall remain operative for a transitional period of one year
or such further period as may be determined by the Assembly, following the entry into force of the Act, for the
purpose of enabling the OAU/African Economic Community to undertake the necessary measures regarding the
devolution of its assets and liabilities to the Union and all matters relating thereto. Its paragraph 3 starts by
affirming: Upon the entry into force of this Act, all necessary measures shall be undertaken to implement its
provisions [].
939
We note that while in the English version of the convention the term purposes is used both at letters c) and
d), the French version of the convention uses the term objectifs at letter c) and the term buts at letter d).
940
Diallo, I.B.Y., Les rfugis en Afrique : cadre rgional et international de rglement, Wien: Wilheim
Braumller, 1974, p. 121.
941
Mahamat, B., op. cit. note 876, p. 14. In this regard, see also: Goundiam, O., African refugee convention,
in: Migration News, vol. 3, 1970, p. 9.
942
Bedjaoui, M., op. cit. note 876, p. 44.
943
Ibid., p. 20.
944
We note that the objectives and principles of the African Union are listed at articles 3 and 4 respectively of its
2000 Constitutive Act.
945
Rwelamira, M.R.K., Some reflections on the OAU Convention on refugees: some pending issues, op. cit.
note 755, p. 173.
946
Article 103 of the 1945 UN Charter reads: In the event of a conflict between the obligations of the Members
of the United Nations under the present Charter and their obligations under any other international agreement,
their obligations under the present Charter shall prevail.
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In any case, it is taken for granted that the exclusion clauses stipulate that the 1951
Geneva Convention does not apply to persons who benefit from the same rights and
obligations as nationals of the country where they have taken residence.947
Another specification needs to be underlined: usually the exclusion clause is not
transmissible to other members of the family: if one of the members is excluded from the
possibility to obtain refugee status, the rights of the rest of the family to have it granted
remain intact. The exclusion of, for instance, the head of the family may well be further
evidence that other members of the family would suffer persecution. Cross-reference should
also be made to the various guidelines on a gender-sensitive interpretation of the 1951 Geneva
Convention. In most cases, the excluded person will be male, a father, brother, or husband. It
may be that the state of nationality is a repressive regime where women have no means of
expressing their point of view publicly; for fear that they would fail to be recognized as
refugees as well. A gender-sensitive approach to status determination would recognize
persecution by association and persecution as a consequence of the sexist structure of a given
society.948
Particularly referring to Sub-Saharan Africa, the application of the exclusion clauses in
mass-influx situations constitutes another important legal issue on the continent. Mass-influx
often occurs as a consequence of war crimes and crimes against humanity, persecutors often
mixing among asylum-seekers thus preventing identification of real refugees. Failure to
identify and exclude perpetrators will compromise the protection of genuine refugees.
Whilst inclusion based on a group situation is plainly permissible in such a case, the
exclusion of individual refugee status on the basis of group determination is contrary to the
state obligations provided in the 1969 OAU Convention. Any decision to exclude must still be
made on an individual basis.949
In several situations of mass-influx, it is useful when possible to distinguish and
physically separate individuals who are supposed to deserve the status of refugee from those
who do not, the latter often being combatants.950 The advantage of an effective separation

947
Blavo, E.Q., The Problems of Refugees in Africa: Boundaries and Borders, Aldershot: Ashgate Publishing
Ltd., 1999, p. 18.
948
Gilbert, G.S., op. cit. note 214, p. 474. In converse, UNHCR contended that: Where family members have
been recognized as refugees, however, the excluded applicant cannot then rely on the right to family unity to
secure protection or assistance as a refugee. UNHCR, Background note on the application of the exclusions
clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees, 4 September 2003, paragraph 95,
p. 35.
949
Bliss, M., op. cit. note 869, p. 129.
950
Mangala, J.M., Rfugis et scurit rgionale en Afrique: un dfi pour le HCR , in: Refuge Canadas
periodical on Refugees-, vol. 19, 2001, p. 49: Il sagit, dune part, de garantir aux premier [civilians] une
certaine libert en empchant quils ne deviennent les otages des seconds [combatants] et, dautre part, dviter
que les camps ne soient perus comme une cible militaire . In this regard, see also: UNSC, On the situation in
Africa, refugee camps, 19 November 1998, resolution No. 1208, S/RES/1208, particularly paragraph 6: [The
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procedure is that it facilitates the protection of other refugees from suspected perpetrators, but
does not result simultaneously in rejection of protection without fair determination in the
individual case. On the contrary, separation may result in the stigmatization of individuals and
divisions among the communities of migrants, raising very difficult situations for the
authorities of the host country to manage.951 Tanzania952 has made attempts at this difficult
task but with contradictory results. In effect:

Tanzania has tried to separate suspected genocidaires [from Rwanda] and combatants
with mixed results. Separation may be resorted to as a stop-gap measure, but it raises security
and due process concerns, along with the issue of prolonged detention without any judicial
order or basis.953

It has been noted that, after all, Tanzania has always been in the forefront of refugee
policies but criticized the 1998 Refugee Act because although it recognizes a number of key
basic rights and fundamental freedoms relevant to refugees; [w]hile doing so, the Act laces
the enjoyment of these rights and freedoms with restrictions-raising questions about their
practical utility to refugees.954
Finally, it is important that a decision to separate be not equivalent to a decision to
exclude. The fact that an individual has been separated should not be viewed by decision

UNSC] Notes that a range of measures by the international community are needed to share the burden borne by
African States hosting refugees and to support their efforts to ensure the security and civilian and humanitarian
character of refugee camps and settlements, including in the areas of law enforcement, disarmament of armed
elements, curtailment of the flow of arms in refugee camps and settlements, separation of refugees from other
persons who do not qualify for international protection afforded refugees or otherwise do not require
international protection, and demobilization and reintegration of former combatants.
951
Bliss, M., op. cit. note 869, p. 129.
952
Tanzania, since its independence reached in 1962 [e]stablished a reputation as one of the most hospitable
countries of asylum in Africa, if not the world. [] Tanzania received hundreds of thousands of refugees from
Burundi and Rwanda in 1993 and 1994. In response [] Tanzania ended its long-standing open-door asylum
policy by closing its border with Burundi in March 1995 and by expelling the overwhelming majority of
Rwandan refugees from its territory in December 1996. See: Milner, J.H.S., Refugees, the State and the Politics
of Asylum in Africa, Basingstoke: Palgrave/Macmillan, 2009, p. 108.
953
ONeill, W.; Rutinwa, B.; Verdirame, G., op. cit. note 904, p. 140.
954
Kamanga, K., International refugee law in East Africa: an evolving regime, in: Georgetown Journal of
International Affairs, vol. 3, 2002, p. 29. Several years later, this author mentioned some objectives of the 1998
Tanzanian Refugee Act, among them: 1) to signal disengagement from the Open Door policy of the Nyerere
administration, with a view to making Tanzania a less attractive destination for asylum seekers, and sending a
deterrent message to authorities in refugee-generating countries; 2) to convey to the international community
disenchantment with the humanitarian assistance system for being insufficiently responsive to the impact of
refugees on economically impoverished Tanzania; 3) to assure the populace that government is determined to
address the problem of seemingly endless refugee influxes which are a direct cause of insecurity [] 4) to enact
an instrument that equips the relevant authorities with the legal means to deal with the problem. See: Kamanga,
K., The (Tanzania) Refugees Act of 1998: some legal and policy implications, in: Journal of Refugee Studies,
vol. 18, 2005, pp. 104-105. In this regard, see also: Milner, J.H.S., op. cit. note 952, pp. 109-111.
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makers in subsequent exclusion proceedings as establishing a presumption of excludability or


as altering the applicable legal texts for exclusion.955

4.2 The exclusion clauses in the Sub-Saharan African legislations and their applications

Sub-Saharan African national legislations have generally different, but usually not
really conflicting, positions related to exclusion clauses, with several countries simply not
taking in consideration these kinds of clauses in their legislation.956
Often, when several differences are in place, they are more formal than substantial, for
instance, the use of the expression crime grave de droit commun957 instead of crime []
non politique in the legislation of the DRC, the first expression already adopted in the French
version of article 1F b) of the 1951 Geneva Convention.
Another different expression, more formal than substantial, has been used by the
Mozambican legislator who, for the same expression of non-serious political crime, used
the expression of crime under ordinary law which is also considered serious in the light of
Mozambican criminal law.958 In Angola, the legislator has preferred the terms ordinary
offence959 although it has to be noted that the concern for the safeguard of national
institutions is very high in this country. This is also reflected in the exclusion clause;
therefore, it is not by chance that the first exclusion clause listed in article 2 of the domestic
legislation derives from the commission of a serious act against the independence and
sovereignty of the country. 960 This kind of safeguard of national institutions is even higher in
Kenya where the 2006 Refugee Act constituted the sole example in Sub-Saharan Africa in
which serious non-political crime, reason for the exclusion of refugee status, has to be

955
Bliss, M., op. cit. note 869, p. 130. UNHCR noted that, to apply the exclusion clauses in case of mass-influx
situations: [d]ecision-makers would need to rely on facts obtained from the refugees themselves. Providing
information about the proceedings is particularly important in the context of a mass-influx, and especially in
camp settings, where misinterpretation of exclusion procedures and related measures on the part of the refugees
may jeopardize the process. However, in view of the difficulties involved in eliciting the facts required to
determine the applicability of Article 1F when those concerned know that exclusion is being considered, the
dissemination of information should be managed carefully. See: UNHCR, Guidelines on the application in mass
influx situations of the exclusion clauses of Article 1F of the 1951 Convention relating to the status of refugees,
7 February 2006, paragraph 70, p. 20.
956
See, for instance: Senegalese Loi n 68-27 du 24 juillet 1968 modifie portant statut des rfugis, 17 August
1968; Beninese Ordonnance No. 75-41 du 16 juillet 1975 portant statut des rfugis, 16 July 1975; Loi n. 5/98
portant statut des rfugis en Rpublique gabonaise, 5 March 1996.
957
Article 2 of the Law No. 021/2002, portant statut des rfugis en Rpublique Dmocratique du Congo, 16
October 2002. As DRC drew inspiration for its legislation from the French legal system, a French scholar meant
for droit commun a law: [Q]ui sapplique toutes les espces dun genre par opposition exceptionnel ;
rsiduellement applicable tous les cas non excepts . See: Cornu, G., Vocabulaire juridique, Paris: Presses
Universitaires de France, 6me dition, 2004, p. 180.
958
Mozambique, article 2 2) a) of the Act No. 21/1991 (Refugee Act), 31 December 1991.
959
Angola, article 2 c) of the Law No. 8/1990, 26 May 1990, Law on Refugee Status.
960
Angola, article 2 a) of Law No. 8/1990, 26 May 1990, Law on Refugee Status.
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committed inside Kenya after the persons arrival and not outside, as both 1951 Geneva
Convention and 1969 OUA Convention stipulate.961 Finding a new equilibrium in the
formulation, the latter 2011 Kenyan Refugees Bill finally considers the crimes committed
both outside (prior the arrival) and inside (after the arrival) the territory of the country by
the asylum seeker as a ground of exclusion.962 However, as we have pointed out several times
in our work,963 the legislation of Kenya at the practical level went enough unheeded until
now, considering that in this country refugee matters seem to constitute purely UNHCR
affairs.964
In addition, until now there is not sufficient African domestic jurisprudence available to
determine whether an applicant who has committed a serious non-political crime in the
country of asylum, but before his/her formal recognition as a refugee, would be excluded
from refugee status. By contrast, Kenya, like Tanzania, is raising more and more significant
concerns about direct security threats posed by long-standing refugee populations fleeing
from neighboring countries at war. More specifically, Kenya feels vulnerable to the overflow
of conflict from neighboring states and the movement of people fleeing from terrorist
activities. For instance, as a result of the connection between Islamic fundamentalism, the
lack of central authority in Somalia and a long history of irredentism within its own ethnic
population, the government of Kenya now views Somali refugees on its territory almost
exclusively through a security prism.965
In the 2007 Tantoush case, although respondents contended that the applicant did not
qualify for refugee status, he would have been excluded because there was reason to believe

961
Kenya, section 4 c) of the Refugee Act, Act No. 13, 30 December 2006. We note that the 2006 Act was
adopted to fill a lacuna after that: [t]he system based on individual status determination by the Kenyan
government began to come under pressure when the numbers of asylum seekers increased as a result of the
continued strife in Uganda after 1986 and, later, in Ethiopia and Somalia. The pressures eventually led to a
significant shift to a new refugee regime in Kenya in the early 1990s. Since 1991, UNHCR has been in complete
control of status determination, setting up a special office in Nairobi administered by the JRS. See: ONeill, W.;
Rutinwa, B; Verdirame, G., op. cit. note 904, pp. 153-154. In this regard, UNHCR correctly pointed out:
Individuals who commit serious-non political crimes within the country of refuge are subject to that countrys
criminal law process, and in the case of particularly grave crimes to articles 32 and 33 2) of the 1951
Convention; they do not fall within the scope of the exclusion clause under article 1F b). The logic of the
Convention is thus that the type of crimes covered by article 1F b) committed after admission would be handled
through rigorous domestic criminal law enforcement and/or the application of article 32 and article 33 2) where
necessary. See: UNHCR, Background note on the application of the exclusions clauses: Article 1F of the 1951
Convention Relating to the Status of Refugees, 4 September 2003, paragraph 44, p. 16.
962
2011 Kenyan Refugees Bill, sections d), b) and c).
963
For instance, see: supra, the General Introduction to this study.
964
Odhiambo-Abuya, E., United Nations High Commissioner for Refugees and status determination imtaxaan
in Kenya: an empirical survey, op. cit. note vii, p. 203.
965
Loescher, G., Milner, J.H.S., op. cit. note 889, p. 35. But, prior to 1991: Recognizing the benefits of hosting
refugees, Kenya pursued an open asylum policy. Individual status was granted by a government agency, and
refugees enjoyed freedom of movement, access to employment markets and the benefits of many of the social
rights detailed in the 1951 Convention. See: Milner, J.H.S., op. cit. note 952, p. 86. The 1991 has been a turning
point in the Kenyans refugee policy mainly because of the Somali emergency that increase the rate of arrival of
refugees from 16,000 in March 1991 to 92,200 by December of the same year. See: ibid., pp. 86-88.
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that he had committed a non-political crime. If this crime had been committed in South
Africa, it would have been punishable by imprisonment according to the 1998 Refugee Act.966
Nevertheless, the applicant was declared a refugee entitled to asylum in the country because
the mere theft of gold was not to be considered a serious crime according to the
interpretation of the South African court.967
Almost no domestic legislation provides for the formal definition of the act for which an
individual is excluded from refugee status. A notable exception is Namibia, where section 4
3) of the 1999 Namibia Refugees (Recognition and Control) Act provides for the definitions
of crime against peace or war crime or crime against humanity, non-political offence,
political offence and the definition of serious non-political crime. The latter is defined as
a non-political offence that, if committed in the country, would be punishable by a sentence of
imprisonment or another form of deprivation of liberty for a period of at least five years. As it
can be observed, this definition is dispositive more than descriptive and in this case, the
similarity between the South African, mentioned above, and the Namibian legislation appears
evident.
In contrast, Ugandan legislation provides for a more detailed definition of non-political
crime. In section 2 of the 2006 Refugee Act, a non-political crime:

[M]eans a crime which is of not a political character, or a crime which does not
involve opposition to the government of a country on some issue connected with political
control or government of that country; or a crime which is not incidental to, or forming part
of, a political upheaval, committed as part of an organized political party or body contending
for power or political control of a country.

Senegalese legislation is quite particular because in 1978 it promulgated a decree in


which both exclusion and cessation clauses were considered to justify the loss of refugee
status.968 We hardly understand what pushed Senegalese authorities to mix up the traditional

966
Section 4 1) b) of the South African Refugee Act, 1998 stipulates: [A person does not qualify for refugee
status for the purposes of this Act if there is reason to believe that he/she ] has committed a crime which is not of
a political nature and which, if committed in the Republic, would be punishable by imprisonment. In the 2008
Amendment Act section 4 19 b) has been replaced as follows: b) [h]as committed a serious non-political crime
outside the country of refuge prior to his or her admission to that country as a refugee. Emphasis added.
967
In its judgment, the court relied also upon on what J.C. Hathaway asserted: Serious criminality in this
context is normally understood to mean acts that involve violence against persons, such as homicide, rape, child
molesting, wounding, arson, drugs trafficking, and armed robbery. See: Hathaway, J.C., The Rights of Refugees
under International Law, op. cit. note 130, p. 349, quoted in: High Court of South Africa (Transvaal Provincial
Division), Ibrahim Ali Abubaker Tantoush v. Refugee Appeal Board and Others, Case No. 13182/06, 14 August
2007, particularly paragraphs 109-119, pp. 58-63.
968
Sngal, article 2 2) of the Dcret n 78-484 du 5 juin 1978 modifi relatif la Commission des rfugis, 17
June 1978.
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exclusion clauses contained in the main international legal instruments with the cessation
clauses. In this regard, we can simply add that, although the Senegalese legislator had the
merit of being one of the first in Sub-Saharan Africa to promulgate specific national
instruments to face the plight of refugees, nonetheless, as we have mentioned above, its
legislation is considered to be currently weak and in need of being updated, falling short of
complete enforcement of the international conventions in the country.969
Senegal is not the only country that has mixed exclusion and cessation clauses in Sub-
Saharan Africa. So has Sudan, referring to both kinds of clauses in the section of its
legislation dedicated to the expulsion of a refugee. In Sudan, as in Senegal, the entire range of
clauses is applicable once the individual has already been qualified as a refugee. 970 Although
we found this manner of determining the loss of refugee status rather confusing, it currently
remains in Sub-Saharan Africa, for example, the recent Sierra Leonean legislation on refugees
has adopted the same criteria: two long subsections both containing cessation clauses,
although one explicitly refers to causes, which normally constitute reasons for the exclusion
of refugee status.971
Sometimes, Sub-Saharan African national legislations enlarge the range of reasons why
an individual should be excluded from refugee status. As in Liberia, where section 3 4) d) of
the 1994 Refugee Act stipulates that a person shall not be a refugee for the purposes of the act
if:

Having more than one nationality, he/she has not availed him/herself of the protection
of one of the countries of which he/she is a national and has no valid reason, based on well-
founded fear of persecution [] for not having availed him/herself of its protection.

As the reader can easily perceive, this possibility directly derives from article I3 of the
1969 OAU Convention, and this clause is clearly in a section of the act that deals with the
exclusion clauses. The others sub-sections in section 3 4) deal with the classical exclusion
clauses analyzed above, with the same section beginning with the affirmation that A person
shall not be a refugee for the purposes of this Act if [...].
Liberian authorities remain, however, quite autonomous in the determination of refugee
status, as happened with Sierra Leonean asylum-seekers, when specific criteria for the
application of exclusion clauses for refugee status were not really established, including

969
Nobel, P., Refugee, law, and development in Africa, op. cit. note 613, p. 268.
970
Section 11 b), c) and d) of the Sudanese Regulation of Asylum Act, 21 May 1974.
971
Sierra Leone, section 2 4) of the Refugees Protection Act, No. 6 of 2007, 30 August 2007.
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determination of which types of acts should lead to exclusion.972 The discretion in using
several exclusion clauses showed increased awareness of the possible use of the exclusion
clause as a tool to try to increase protection and security of the host country in this
situation.973 Still, a careful assessment must be made so that deserving refugees are not treated
with unjustified mistrust.
The introduction of article I3 of the 1969 OAU Convention in this specific section of
the Liberian legislation had a very eminent precedent in Zimbabwe, where the same provision
had been adopted.974
South African legislation goes even further to increase the level of security in the
country: in effect, it provides that refugee status can be excluded even if the asylum-seeker is
already under the protection of another country where he/she took his/her residence,975 a
specification in conformity with paragraph E of the 1951 Geneva Convention.976 Sub-section
2 of the same section of the South African legislation contains an important, ulterior
specification: it provides that the exercise of a human right, considered as such in one of the
international law instruments to which South Africa is party, is in no case considered as
contrary either to the purposes or to the principles of the UN and/or the AU. It appears clearly
that South Africas accession to the 1981 Banjul Charter, two years before the adoption of the
1998 Refugee Act,977 has played a very important role in domestic legislation in general
and on refugees in particular, for a country that needed to recover from apartheid and to
rehabilitate in the face of the international community.
In addition, reading section 4 4) d) and e) of the 1998 Tanzanian Refugee Act, it is
clearly understood that Tanzanias government asks for the application of burden sharing, one
of the characteristics of the 1969 OAU Convention, although it does not avoid its
responsibilities derived from the other provisions of article 4. According to section 4 4) d),
refugee status is not granted to an individual who:

972
ONeill, W., Conflict in West Africa: dealing with exclusion and separation, in: International Journal of
Refugee Law, special supplementary issue, vol. 12, 2000, p. 192. Further, at idem, the commentator clarified,
however, that, for instance: Combatant status does not itself constitute a ground for exclusion. Combatants, who
have well-founded fears of persecution on the grounds set forth in the 1951 Convention and the 1969 OAU
Convention, are entitled to protection as refugees. They may be excluded from such protection only if there are
serious reasons to consider that they have committed excludable crimes.
973
Ibid., p. 194.
974
Section 3 4) d) of the Refugee Act No. 3, 1983. For more recent examples, see, for instance: section 5,
subsection 4 of the Ethiopian Refugee Proclamation No. 409, 19 July 2004; section 4 e) of the Refugee Act, Act
No. 13, 30 December 2006; section 2 4) d) of the Sierra Leonean Refugees Protection Act, No. 6 of 2007, 30
August 2007.
975
Section 4 1) d) of the Refugees Act No. 130, 2 December 1998.
976
Paragraph E of the 1951 Geneva Convention reads as follows: This Convention shall not apply to a person
who is recognized by the competent authorities of the country in which he/she has taken residence as having the
rights and obligations which are attached to the possession of the nationality of that country.
977
South Africa adopted the 1981 Banjul Charter on the 9 th of July 1996.
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[h]as already been granted refugee status or asylum in another country prior to his/her
entry in Tanzania provided that a person qualifying for resettlement or family re-unification in
accordance with the provisions of this Act or a person arriving from a territory where there
has been a serious breach of peace, shall have his/her application for asylum considered.

According to letter e):

[p]rior to his/her entry into Tanzania h