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The Regional Law of Refugee Protection in Africa$

Marina Sharpe

Print publication date: 2018

Print ISBN-13: 9780198826224

Published to Oxford Scholarship Online: September 2018

DOI: 10.1093/oso/9780198826224.001.0001

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Regional Human Rights Law

Regional Human Rights Law

Chapter:
(p.122) 5 Regional Human Rights Law
Source:
The Regional Law of Refugee Protection in Africa
Author(s):

Marina Sharpe

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198826224.003.0005

Abstract and Keywords

Chapter 5 begins with a review of the literature on the relationship between international human rights law and international refugee law, which charts the evolution of human rights in refugee protection. Section C then goes on to address regional human rights law, beginning with the African Charter overall, followed by its provisions of particular relevance to refugees, in terms of both non-refoulement and asylum and rights during exile. This is followed by surveys of relevant aspects of the Women’s Protocol and the Children’s Charter. Having articulated the human rights component of the regional legal regime for refugee protection, section D then goes on to analyse how it interacts with regional refugee law. A final section concludes.

Keywords:   1969 OAU Convention, African Charter on Human and Peoples’ Rights, African Charter on the Rights and Welfare of the Child, asylum, human rights, non-refoulement, norm conflicts, Protocol to the African Charter on the Rights of Women in Africa, refugee

A. Introduction

Chapters 1 to 4 focus on refugee-specific legal instruments. These, however, constitute only part of the regional legal regime. Human rights law also plays a role. In his treatise on international human rights law in refugee protection, Hathaway called on scholars to ‘build upon’ his analysis—grounded in the Convention relating to the Status of Refugees1 (1951 Convention) and the two international human rights covenants—to ‘define the entitlements of sub-groups of the refugee population entitled to claim additional protections’.2 This chapter does this for Africa by demonstrating how regional human rights law—principally the African Charter on Human and Peoples’ Rights (African Charter)3—is an important source of rights for refugees.

This is particularly relevant in the African context, because domestic refugee laws often give refugees only a limited package of rights founded exclusively in the 1951 Convention and the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (1969 Convention).4 For example, Ghana’s Refugee Law, 1992, provides simply that a ‘person granted refugee status in Ghana shall be entitled to the rights and be subject to the duties specified in (a) … [the 1951 Convention]; (b) the Protocol Relating to the Status of Refugees of 1967 [1967 Protocol] … and (c) the … [1969 Convention]’.5 Similarly, Ethiopia’s Refugee Proclamation entitles refugees to the rights ‘contained in the [1951] Refugee Convention and the OAU Refugee Convention’.6 Angola’s Law on Refugee Status provides only that refugees are ‘entitled to engage in gainful activities’ and ‘have the right to education and health assistance’;7 the 1951 Convention, the Protocol relating to the Status of Refugees and the 1969 Convention apply to ‘all situations not provided for’ by the Law.8

Furthermore, the rights of refugees in Africa are regularly violated. For example, in response to a 2012 complaint lodged by Médecins Sans Frontières and others, the South African Human Rights Commission found that conditions at the Lindela (p.123) pre-removal detention facility near Johannesburg, which likely housed a number of refugees, violated the constitutional rights to freedom and security of the person and the rights to health care, food, water, and social security, among others.9 A 2017 Scalabrini Institute Report detailed violations of refugees’ rights to health, basic education, and work in the Democratic Republic of the Congo (DRC), Ethiopia, Kenya, Nigeria, South Africa, and Sudan.10 According to Crisp, refugees in Africa ‘increasingly find that by crossing an international border, they exchange one form and degree of vulnerability for another’.11 His description of the situation for refugees in Africa is worth quoting:

refugee-populated areas may be the target of direct military attacks, sometimes in the form of aerial bombing but more usually by means of land-based attacks. … there is [also] evidence to suggest that refugee-populated areas in Africa are now increasingly affected by a variety of non-military security threats … [including] rape and armed robbery; conscription into militia forces; abductions for the purpose of forced marriage; arbitrary arrest and punishment by refugee community leaders and members of the local security forces; fighting between different clans and sub-tribes within the same refugee community; and armed confrontations between refugees of different nationalities.12

Crisp goes on to describe the conditions for refugees in protracted situations, which are characterized by ‘the inability of exiled populations to avail themselves of basic human rights’.13 Refugees in protracted situations suffer from ‘limited physical security; limited freedom of movement; limited civil and political rights; limited legal [due process] rights; limited freedom of choice; and limited economic opportunities’.14 The African Charter has a key role to play in preventing and redressing such violations.

This chapter begins with a review of the literature on the relationship between international human rights law and international refugee law, which charts the evolution of human rights in refugee protection. Section C then goes on to address regional human rights law, beginning with the African Charter overall, followed by its provisions of particular relevance to refugees, in terms of both non-refoulement and asylum and rights during exile. This is followed by surveys of relevant aspects of the Protocol to the African Charter on the Rights of Women in Africa15 (Women’s Protocol) and the African Charter on the Rights and Welfare of the Child (Children’s Charter).16 Having articulated the human rights component of the regional legal (p.124) regime for refugee protection, section D then goes on to analyse how it interacts with regional refugee law. A final section concludes.

B. The Role of Human Rights Law in Refugee Protection

The role of human rights law in refugee protection has been steadily evolving. The link between the two fields was initially conceptualized causally: violations create refugees.17 Goodwin-Gill paved the way for a more interactive approach when, in 1989, he viewed refugee protection through the lens of human rights,18 but developments in this regard progressed slowly. In 1993 Matas explained that while human rights had begun to penetrate the refugee domain, this was occurring ‘only fitfully and intermittently. Regrettably, the human rights world and the refugee world, on a day-to-day basis, function separately and apart from one another’.19 Clark and Crépeau made a similar observation in 1999, noting that the 1951 Convention had for too long ‘been treated as a piece of international legislation that could only be interpreted according to its own internal logic and objectives in isolation from international human rights law’.20 During the nineties scholars did, however, begin to use human rights norms to inform their interpretation of refugee law concepts, including persecution21 and non-refoulement;22 by the turn of the millenium, human rights had significantly broadened the latter concept.23 Human rights law also began to be invoked to provide the redress absent from refugee law, because the 1951 Convention lacks a supervisory treaty body with jurisdiction to hear complaints.24 (p.125) More recently, academics have invoked human rights as a source of standards of treatment during the period of asylum, both in a general sense and in relation to specific issues.25 Today, the study of human rights in refugee protection has advanced to the point of critical analysis.26

Human rights have, of course, always applied to refugees. According to Gilbert, ‘the idea that refugees deserve the traditional human rights in addition to the rights established in the 1951 Convention is not open to dispute’.27 But the literature has not always approached refugee protection in this way, perhaps because of the gap of fifteen years between the adoption of the 1951 Convention and the adoption of the two international human rights covenants. This temporal gap also explains why the 1951 Convention is framed as a duty-based rather than as a human rights-based instrument: ‘framing refugee status as involving obligations of states rather than rights of individuals … emerged as a necessity in the absence of legally binding human rights’ when the 1951 Convention was being drafted.28 Clark and Crépeau were not, therefore, stating the obvious when they explained in 1999 that ‘a range of protections beyond the Refugee Convention supplement the Refugee Convention protections against expulsion and refoulement. When on State territory, while claiming refugee status or with recognised refugee status, “everyone” may claim other treaty human rights without discrimination’.29

Such treaty human rights are important in five general ways. Firstly, international human rights law protects rights about which the 1951 Convention is mostly silent, such as the freedoms of association and expression. Secondly, where both international refugee law and international human rights law speak to a particular right, the latter generally protects the right to a higher standard. For example, protection from discrimination is broader under the International Covenant on Civil and Political Rights (ICCPR)30 than under the 1951 Convention. Thirdly, international human rights law protects rights on an absolute basis. Rights under the 1951 Convention, by contrast, are contingent upon the refugee’s degree of attachment to his or her host state and are guaranteed only to the extent that a particular reference group also enjoys the right in question.31 Fourthly, international human rights law must inform how the 1951 Convention is interpreted and implemented.32 Finally, because it is supervised by treaty bodies with the capacity to adjudicate individual communications, international human rights law can provide redress where international refugee law cannot.33

In addition to these general contributions, certain human rights treaty standards are of particular relevance to refugees. These are discussed in section C in the specific (p.126) context of the African Charter and include procedural rights, which apply during status determination;34 equality rights, which ensure equality among refugees35 and between refugees and other non-citizens;36 and liberty rights, which are important in relation to immigration detention.

These general and specific contributions of international human rights to refugee protection have led to the now universally held view that refugee rights under international law are derived from both refugee and human rights law. Hathaway led the charge in this regard. His treatise on the topic explains that ‘the development of a pervasive treaty-based system of international human rights law has filled many critical gaps in the Refugee Convention’s rights regime’.37 This is not to say, however, that the 1951 Convention has been supplanted by human rights law. To the contrary, in Hathaway’s view, the 1951 Convention remains of critical importance because ‘treaty-based human rights are framed in generic terms’ and as such, ‘there is a continuing role for the Refugee Convention in responding to the particular disabilities that derive from involuntary migration’.38

This approach to the role of human rights in refugee protection, which views the standards of treatment applicable to refugees as deriving from both the 1951 Convention and international human rights law, is not without its detractors. Chetail argues that human rights law is now the core of refugee protection:

human rights law has radically informed and transformed the distinctive tenets of the [1951] Geneva Convention to such an extent that the normative frame of forced migration has been displaced from refugee law to human rights law. As a result of this systemic evolution, the terms of the debate should be inversed: human rights law is the primary source of refugee protection, while the [1951] Geneva Convention is bound to play a complementary and secondary role.39

At the other end of the spectrum lies McAdam, who argues that the 1951 Convention should remain the primary source of refugee rights because human rights law fails to provide refugees with a status,40 and because of the ‘gap between the theory of human rights and the ability to enjoy those rights’.41 These debates about the relative weight that should be accorded to each legal regime aside, it is now beyond dispute that human rights are integral to refugee protection. The remainder of this chapter addresses how African human rights law can contribute to refugee protection on the continent, and the relationships of interpretation and of conflict that these contributions raise.

(p.127) C. Regional Human Rights Law

The corpus of international human rights law in Africa includes several instruments. The leading treatise covers what may be termed the three core instruments: the African Charter, the Women’s Protocol, and the Children’s Charter, as well as the 1969 Convention and instruments relating to internally displaced persons (IDPs), indigenous peoples, and the environment.42 Furthermore, in addition to addressing regional human rights law, it also treats a range of instruments that have emerged at the sub-regional level, an increasingly important plane for human rights protection in Africa.43 The discussion of regional human rights law here is limited to the three core instruments, beginning with the most widely applicable.

1. The African Charter

The African Charter was an Organization of African Unity (OAU) initiative. A reference to human rights in its constitutive act notwithstanding,44 the African Charter was the organization’s first significant foray into the field. The OAU’s interest in human rights at the end of the seventies was a result of the increased attention being paid to human rights internationally, especially by American President Carter in the Cold War context and by the United Nations (UN) to condemn South Africa’s apartheid regime, and as a reaction to unchecked violations in post-independence Central African Republic, Equatorial Guinea, and Uganda.45

Work towards the African Charter began in 1979 with a proposal by President Léopold Senghor of Senegal and the Mauritian representative, supported by Nigeria and Uganda, that the OAU resolve to commence a process that would lead to the adoption of an African human rights instrument.46 Drafting began in December of that year when a group of experts, led by Senegalese jurist Keba Mbaye,47 met in Dakar with a mandate to ‘prepare an African charter on human rights based upon an African legal philosophy and responsive to African needs’.48 They had, as a blueprint for their work, the ‘Monrovia Proposal for the Setting up of an African Commission on Human Rights’, which was the outcome of the UN-sponsored ‘Seminar on the (p.128) Establishment of Regional Commissions on Human Rights with Special Reference to Africa’ held in Liberia in September 1979.49

The Monrovia Proposal was directed at establishing a human rights body and, as a result, did not articulate any new standards; rather, it merely referred to norms already contained in international instruments.50 Mbaye’s group rejected this approach, preferring to draft a new instrument that would articulate standards suited to the African context.51 According to D’Sa, the necessity for such specific standards stemmed from cultural differences, such as the African emphasis on community over individuals, and from the stage of Africa’s development.52 Heyns points to the continental experiences of slavery and colonialism as necessitating region-specific standards.53

Despite the drafters’ insistence on an instrument reflecting uniquely African norms, the Charter ultimately affirmed international human rights law54 and international law more generally55 as relevant sources within the regional system. This is but one example of how elements that have been separated in other contexts coexist within the African Charter. The Charter also includes civil and political rights as well as economic, social, and cultural rights; protects individuals and peoples; and enumerates rights as well as duties. Perhaps this balance has contributed to the African Charter’s almost universal acceptance among African Union (AU) member states. The Charter was adopted in 1981 and entered into force five years later, and has now been ratified by all AU member states except Morocco, which only recently joined the AU.

The African Charter is set out in three parts. Chapters I and II of part I deal with rights and duties respectively. Part II includes four chapters, the first of which creates the African Commission on Human and Peoples’ Rights (African Commission), which was ultimately established in 1987 and was supplemented, by way of a 1998 Protocol,56 by the African Court on Human and Peoples’ Rights (African Court). This latter body may eventually be replaced by the African Court of Justice and Human and Peoples’ Rights (New Merged Court) (the African Commission and these courts are the subject of Chapter 7, though the African Commission’s treatment of relevant Charter provisions is discussed here). Chapter II of part II sets out the African Commission’s mandate, while chapter III establishes its procedure. The final chapter of part II articulates the principles governing the African Commission. Part III of the Charter contains general provisions.

The African Charter contains several distinctive features. As mentioned earlier in this section, it includes protections that have elsewhere been bifurcated. The inclusion of civil and political rights alongside economic, social, and cultural rights has been praised for stressing the indivisibility and justiciability of all rights.57 The (p.129) Charter’s inclusion of socioeconomic rights has, however, also been criticized. Heyns notes that only a modest number of such rights have been included:58 to work under ‘equitable and satisfactory conditions’ and receive equal pay for equal work, to health, and to education.59 Furthermore, the Charter’s socioeconomic rights are not framed with the usual qualifiers that make them subject only to the standards of ‘progressive realization’ and ‘available resources’. On the one hand, this renders these socioeconomic rights immediately justiciable, however on the other, it sets what might be an unattainable standard, thereby emptying the rights of meaningful content. The omission of certain civil and political rights has also been criticized. Heyns and Viljoen note that the Charter fails to protect the rights to privacy, to form trade unions, to free and fair elections and to freedom from forced labour.60

The Charter does not include limitation and derogation clauses. Thus, under conditions of scarcity or emergency, the Charter is often simply ignored. Moreover, many Charter protections contain clawback clauses, which allow states to restrict the right in question to the extent permitted by domestic law. Clawback clauses are imprecise and therefore do not provide the external check on state action afforded by derogation clauses. Heyns has gone so far as to argue that clawback clauses ‘undermine the whole idea of international supervision of domestic law and practices and render the Charter meaningless’.61 The African Commission has, however, prevented this absurdity by interpreting limitations of rights in the complainant’s favour.62 For example, it has interpreted clawback clauses as limiting rights only insofar as the domestic law in question complies with international human rights standards.63 The African Commission has also interpreted one of the Charter’s duty provisions as a general limitation clause, as explained later in this section in the discussion of duties.

The African Charter protects peoples’ rights, in particular their rights to existence, to self-determination, to freely dispose of their natural resources, to development, to international peace and security and to a satisfactory environment.64 D’Sa explains that the inclusion of peoples’ rights was a result of the importance the drafters placed on creating a document that would reflect a particularly African conception of human rights.65 The Charter does not, however, define the concept of a ‘people’, nor is the term defined in international law more generally, leading Viljoen to characterize it as ‘a concept in need of clarity’.66 The ability of a people to enforce its rights under the Charter depends on a distinctive procedural feature: unlike other regional and international human rights instruments, the African Charter has no individual victim requirement. This has allowed representatives of a people, as well as individuals and non-governmental organizations (NGOs), to bring complaints (p.130) to the African Commission regarding violations of their rights and/or the rights of others.67

The final unique feature of the African Charter is its inclusion of individual duties. These duties are owed to others, one’s family, one’s community, the state, and the African and international communities.68 Different explanations have been proffered for the inclusion of duties. According to D’Sa, duties reflect African cultural values,69 and this is how Senghor characterized them.70 Gittleman, by contrast, explains that duties were included to ensure the Charter’s broad acceptance: ‘the notion of “individual” in a socialist State differs markedly from the notion in a capitalist State. As a result, to ensure the eventual adoption of the Charter by all States, the drafters in Dakar stated that if the individual is to have rights “recognized” by the State, he also must have obligations flowing back to the State’.71

While some of the Charter’s duties are enforceable—for example the duty to pay taxes72—others create moral, as opposed to legal, obligations. One seemingly moral duty has, however, been imbued by the African Commission with significant legal meaning. Article 27(2) provides that the ‘rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest’. The African Commission has interpreted this duty provision innovatively as a general limitation clause, stating that ‘the only legitimate reasons for limitations to the rights and freedoms of the African Charter are found in article 27(2)’.73

2. The African Charter in refugee protection

The African Charter’s guarantees are owed to ‘Every individual … without distinction of any kind such as … national … origin … or any status’.74 The African Commission has confirmed that Charter rights are owed to nationals and non-nationals alike,75 and to refugees in particular.76 Doctrine also confirms this.77 It is thus settled law that refugees benefit from the protection of the Charter during the period of asylum,78 and a refugee whose rights have been violated by his or her (p.131) host state has recourse to the African Commission’s individual communications procedure.79 Indeed, communications have been lodged by individual refugees, by refugee associations, and by NGOs on behalf of refugees. The range of human rights protected by the African Charter means that refugees may invoke Charter protections regarding non-refoulement and asylum as such, and regarding their rights during exile. Each is addressed in turn.

(a) Non-refoulement and asylum

International refugee law provides that an individual may not be returned to a state where his or her life or freedom would be threatened for a 1951 Convention reason.80 African refugee law similarly provides that an individual may not be subjected to measures that would compel him or her to return to, or remain in, a territory where his or her life, physical integrity, or liberty would be threatened for a 1969 Convention reason.81 International human rights law has expanded the scope of non-refoulement such that it now also prohibits return to torture; to cruel, inhuman, or degrading treatment or punishment; and to arbitrary deprivations of life,82 as well as to enforced disappearance.83 This human rights form of non-refoulement is typically known as ‘complementary protection’ because it extends, and is hence complementary to, refugee law’s non-refoulement protection. It is now widely accepted that both the refugee and the human rights law forms of non-refoulement have attained the status of customary international law.84

Regional human rights law also provides for complementary protection,85 though the precise ambit of the guarantee is unclear. Article 5 of the African Charter prohibits ‘torture’ as well as ‘cruel, inhuman or degrading punishment and treatment’ (CIDT). The African Commission has held that return to face torture, CIDT, and/or death is equally prohibited. John K Modise v Botswana, concerning a complainant who was rendered stateless by Botswana, repeatedly forcibly moved between Botswana and South Africa, and forced by Botswana to remain on a strip of no man’s (p.132) land between the two countries, addressed CIDT. The African Commission found that the removals (and the homelessness) exposed Modise ‘to personal suffering and indignity in violation of the right to freedom from cruel, inhuman or degrading treatment guaranteed under Article 5 of the Charter’.86Institute for Human Rights and Development in Africa v Republic of Angola (Institute for Human Rights and Development) addressed CIDT as well as torture and death, even though article 5 does not mention the latter. In its decision, the African Commission stressed the importance of procedural safeguards in removal contexts, to ensure that non-nationals ‘are not sent back/deported/expelled to countries or places they are likely to suffer from torture, inhuman or degrading treatment, or death, among others’.87 Thus African Commission jurisprudence suggests that article 5 protects from return to torture, CIDT, and death.

Yet the African Commission’s Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa forbid only return to torture. The Guidelines instruct states to ‘ensure no one is expelled or extradited to a country where he or she is at risk of being subjected to torture’.88 CIDT is absent from the prohibition, which is particularly conspicuous given that other elements of the Guidelines do mention CIDT. The broadest understanding of complementary protection—the Institute for Human Rights and Development conception including torture, CIDT, and death—is also the most recent, suggesting complementary protection can be understood expansively in Africa. In practice, however, the scope of complementary protection makes little difference to refugees, as they rarely if ever rely on it. The protection gap the concept fills in other regions is in Africa addressed through article I(2) of the 1969 Convention.

In addition to article 5, according to Wood article 18 may also contribute to non-refoulement in Africa.89 It provides that the ‘family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral’ health. In Union inter-Africaine des droits de l’homme v Angola (Union inter-Africaine des droits de l’homme), the mass expulsion of West Africans from Angola, which fractured several families, was found to offend article 18.90 Subsequently, in Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, the article 18 duty of protection was interpreted as requiring ‘that States refrain from any action that will affect the family unit, including arbitrary separation of family members and involuntary displacement of families’.91 (p.133) Wood has argued that article 18, considered alongside Children’s Charter provisions requiring states to protect and support families and guarantee the right of every child to reside with his or her parents,92 may ‘give rise to a prohibition on forcible return to one’s country of origin’ when such return would compromise family life.93

While articles 5 and 18 of the African Charter support non-refoulement, article 12 contributes to its corollary: asylum. Various aspects of the African Charter’s article 12 support asylum. Article 12(3) protects the right to ‘seek and obtain’ asylum, article 12(4) prohibits the arbitrary expulsion of non-nationals, and article 12(5) forbids the mass expulsion of non-nationals. Each is addressed in turn.

Article 12(3) of the African Charter protects the right of every individual ‘when persecuted, to seek and obtain asylum in other countries in accordance with the law of those countries and international conventions’. This regional right to seek and obtain asylum is broader than the cognate right on the international plane. Article 14 of the Universal Declaration of Human Rights protects only the right ‘to seek and to enjoy in other countries asylum from persecution’.94 The UN Declaration on Territorial Asylum is similarly circumscribed.95 The broader African wording was perhaps inspired by the inter-American provision that preceded it: the American Convention on Human Rights protects the right ‘to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offences or related common crimes’.96 Gittleman maintains that the recognition of the right to asylum in both regional conventions is ‘far-reaching in light of the earlier attitude of the international community that individuals had no such right of any legal significance’.97 Despite this advance, the grant of asylum remains in international law within the exclusive discretion of states.98 Indeed, ‘it has long been recognised that, according to customary international law, the right of asylum is a right of States, not of the individual’.99 That individuals have no right to be granted asylum is reflected in the language of article 12(3), which features a clawback clause subjecting the right (p.134) to ‘obtain’ asylum to the domestic laws of the state where protection is sought. The African Charter has thus advanced—but has not enshrined—the recognition of an individual right to asylum on the international plane.

Although article 12(3) represents progressive development towards the international recognition of an individual right to asylum, it could have been broader still. Drafting of the African Charter began in the late seventies, at which point the 1969 Convention was already in force. The regional refugee instrument protects individuals fleeing ‘external aggression, occupation, foreign domination or events seriously disturbing public order’,100 in addition to those in flight from persecution.101 It is curious, therefore, that the African Charter right to seek and obtain asylum is limited to individuals who have been persecuted. The African Commission could have aligned article 12(3) with the 1969 Convention in Organisational mondiale contre la torture v Rwanda (OMT), a case about the expulsion of four Burundian refugees from Rwanda on ostensible security grounds. The African Commission, however, merely held that article 12(3) provides ‘a general protection of all those who are subject to persecution, that they may seek refuge in another state’.102 Article 12(3) is also unduly narrow in that the right to seek and obtain asylum applies only ‘when persecuted’, which Naldi and d’Orsi argue is susceptible to a restrictive interpretation pursuant to which ‘refugees are required to have suffered actual persecution rather than simply demonstrating the more generous [international] standard of a well-founded fear of persecution’.103 Again, OMT gave the African Commission the opportunity to broaden the scope of article 12(3), but it remained true to the letter of the Charter, interpreting the provision as providing ‘a general protection of all those who are subject to persecution’.104

While the African Commission has interpreted article 12(3) narrowly, Beyani has taken a more expansive approach, interpreting the right to ‘seek and obtain asylum’ in light of the African Charter’s article 7(1) on fair trial rights. Applying the constitutive theory of interpretation, pursuant to which a treaty is interpreted as an integral whole, he argues that the language of article 7(1) and the African Commission’s approach to it imply that states have an obligation to establish institutions and fair procedures for refugee status determination, including legal aid.105 This position received a measure of support when article 7(1) was applied in a refugee context. In OMT the African Commission held that Rwanda’s expulsion of four Burundian refugees violated their article 7(1) due process rights.106 Beyani’s argument is further strengthened by the African Charter’s article 26, which provides that states ‘shall allow the establishment and improvement of appropriate national institutions (p.135) entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter’.

Article 12(3) may also render important refugee protection provisions applicable to circumstances in which they might not otherwise apply. In guaranteeing the right of every individual ‘to seek and obtain asylum in other countries in accordance with the law of those countries and international conventions’, article 12(3) draws such ‘international conventions’ into the normative environment. For example, refugees in Libya are often detained without cause, a practice prohibited by the 1951 Convention’s article 31. While Libya is not party to the 1951 Convention, it has ratified the African Charter. It is therefore bound to respect refugees’ right ‘to seek and obtain asylum … in accordance with … international conventions’, which would include the 1951 Convention’s article 31 provision on non-penalization for unlawful entry.107

Articles 12(4) and 12(5) are the source of an emerging line of African Commission jurisprudence relating to the expulsion of refugees and migrants more generally. Article 12(4) prohibits the arbitrary expulsion of non-citizens, providing that a ‘non-national legally admitted in a territory of a State Party … may only be expelled from it by virtue of a decision taken in accordance with the law’. The above-mentioned expulsion of four Burundian refugees from Rwanda was found to violate article 12(4).108 The provision was also applied in favour of refugees in African Institute,109 which addressed allegations that the Guinean President incited discrimination against Sierra Leonean refugees in a speech urging their arrest and confinement to camps. As a result of the speech, thousands of Sierra Leonean refugees fled their homes in Guinea and many had no choice but to return to Sierra Leone, while others were forced back there by Guinean authorities.

Article 12(5) of the Charter also prohibits the expulsion of non-nationals but relates in particular to mass expulsion, which is characterized as discriminatory expulsion ‘aimed at national, racial, ethnic or religious groups’. Demonstrating a qualitative, as opposed to quantitative, approach to mass expulsion, article 12(5) was found to have been violated in OMT, which related to just four refugees.110 It was similarly violated in Institute for Human Rights and Development, which concerned fourteen Gambians who had been living and working legally in Angola but were deported as part of the government’s Operaçao Brilhante.111Institute for Human Rights and Development also demonstrated the African Commission’s willingness to apply article 12(5) to groups not specifically mentioned by the provision. The African Commission found article 12(5) to have been violated on the basis of the Gambians’ (p.136) status as non-nationals from West and Central African countries,112 paving ‘the way for the possibility of categories not specifically mentioned in article 12(5) … being afforded protection in terms of this provision’.113

Violations of article 12(5) have also been found in larger scale expulsions. In Union inter-Africaine des droits de l’homme, the mass expulsion of West Africans from Angola violated article 12(5).114 In RADDHO, the detention and subsequent deportation of 517 West Africans from Zambia contravened the prohibition of mass expulsion.115 These cases also illustrate that the expulsion need not have occurred at one point in time to violate article 12(5);116 in each of Institute for Human Rights and Development, Union inter-Africaine des droits de l’homme and RADDHO, a number of separate deportations occurred over a period of several months. According to Bekker, the latter two cases also evidence the African Commission’s view that mass expulsion constitutes a gateway human rights violation. She argues that implicit in Union inter-Africaine des droits de l’homme and RADDHO is ‘acknowledgement that the prohibition against mass expulsions is a right upon which a number of other rights are predicated’.117 Indeed, in an earlier communication the African Commission had noted that mass expulsion ‘calls into question a whole series of rights recognized and guaranteed by the Charter’.118

The article 12 prohibitions on expulsion clearly support asylum when they are invoked in favour of refugees. In view of Institute for Human Rights and Development, they now also contribute to non-refoulement. In that case, the African Commission explained that ‘a state’s right to expel individuals is not absolute and it is subject to certain restraints’.119 According to the African Commission, procedural safeguards must ensure that non-nationals ‘are not sent back/deported/expelled to countries or places they are likely to suffer from torture, inhuman or degrading treatment, or death, among others’.120 Thus while article 5 of the Charter has been interpreted to prohibit return to torture or other ill-treatment, article 12 requires procedural safeguards to prevent the same. The overall contribution of article 12 to non-refoulement may have been implicitly acknowledged by the African Commission in Curtis Francis Doebbler v Sudan, which concerned the repatriation of Ethiopian refugees by virtue of Sudan’s 1999 invocation of the 1951 Convention’s article 1C(5) cessation clause.121 The African Commission held that the return of the refugees to Ethiopia (p.137) where they feared persecution would constitute a violation of the Charter.122 The African Commission did not indicate which Charter provision it was relying upon, however it is likely the members had article 12 in mind, because article 5 relates to torture and cruel, inhuman, or degrading punishment and treatment, rather than to persecution.

(b) Rights in the country of asylum

Except for the African Charter’s article 13 political participation guarantee, refugees benefit from all Charter rights during displacement, as discussed earlier in this section. Because of their unique circumstances, certain rights are, however, particularly relevant to refugees during exile. Among these, the guarantee of non-discrimination is paramount. According to Hathaway, ‘to the extent that the main concern of refugees is to be accepted by a host community, a guarantee of non-discrimination might in fact be virtually the only legal guarantee that many refugees require’.123 The African Charter includes an accessory protection from discrimination at article 2, which provides that ‘Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status’. This provision was applied in African Institute in the context of the mass expulsion of Sierra Leonean refugees from Guinea,124 as well as in the context of the expulsion of four Burundian refugees from Rwanda.125

The African Charter also includes a free-standing right to equality, at article 3. It guarantees that every individual shall be ‘equal before the law’ and ‘entitled to equal protection of the law’. Like the corresponding right on the international plane—article 26 of the ICCPR, discussed in Chapter 4126—this ensures formal equality (equality before the law) as well as substantive equality (equal protection of the law) in respect of rights not articulated by the Charter itself. Moreover, the Charter goes beyond the ICCPR in that its prohibition of discrimination is not limited to enumerated grounds. Hathaway has noted that ICCPR article 26 might ‘be a sufficient basis to require asylum states to bring an end to any laws or practices that set refugees apart from the rest of their community’.127 If this is true of the ICCPR, it must be equally true of the African Charter, especially because the article 3 protection is not limited to enumerated grounds of discrimination. Article 3 has, however, been surprisingly overlooked by the African Commission in its decisions and by scholarly accounts of refugee protection under African human rights law.

In addition to freedom from discrimination and the right to equality, other civil and political rights are particularly important to refugees. Although ‘no combined study on the conditions faced by refugees … in Africa exists’,128 there is ample (p.138) evidence that refugees in Africa regularly experience violations of their most fundamental human rights.129 For example, according to Lomo, the ‘greatest danger to refugees … in Africa has been the threat of violence to their persons’.130 Verdirame and Harrell-Bond catalogue instances of torture and CIDT experienced by refugees in Kenya and Uganda.131 Refugees in Africa are also often confined to camps.132 In view of these fundamental violations, first generation Charter rights are particularly salient.133 Indeed, African Commission communications concerning violations of refugees’ rights during exile generally relate to civil and political rights, including the article 4 right to life and personal integrity,134 the article 5 prohibition of torture and CIDT,135 the article 6 right to liberty and security of the person,136 the article 7 right to a fair trial,137 and the article 14 right to property.138 The violation of refugees’ article 12(1) right to freedom of movement and residence has never been litigated before the African Commission, despite the widespread use of refugee camps in Africa. Nor has article 12(2), protecting the right of every individual to leave any country and to return to his or her own country, ever been applied in a refugee context.

In addition to specific protections provided by the Children’s Charter and the Women’s Protocol, which are discussed later in this section, article 18(4) of the African Charter recognizes the specific needs of elderly and disabled individuals, who may be particularly vulnerable in refugee contexts. However, this provision has yet to be invoked in a refugee protection context.

3. Other core human rights instruments

Article 18(3) of the African Charter requires that states ‘ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions’. This obligation was strengthened in 1990 with the adoption of the Children’s Charter, and again in 2003 with the supplementation of the African Charter by a protocol on the rights of women in Africa.

Like the African Charter, the Children’s Charter—its article 4 best interests provision in particular—is relevant to refugee minors in a general sense. Its provisions (p.139) protecting the family and addressing separation from it may be particularly relevant to refugees, given the family unity issues that often arise in refugee contexts.139 Article 18(1) positions the family as ‘the natural unit and basis of society’. Accordingly, it ‘shall enjoy the protection and support of the State for its establishment and development’. Relatedly, article 19(1) provides that every ‘child shall be entitled to the enjoyment of parental care and protection and shall, whenever possible, have the right to reside with his or her parents’. Article 25 on separation from parents entitles any child deprived of the family environment ‘for any reason’ to ‘special protection and assistance’, including ‘alternative family care’. Addressing refugee contexts specifically, article 25 further provides that states ‘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’.

The Children’s Charter article 6(3) nationality guarantee, which gives every child the ‘right to acquire a nationality’, is also highly relevant in refugee contexts, particularly to refugees who bear children in host states that do not offer or operationalize jus soli citizenship.140 Article 6(3) may have been considered by Tanzania in 2008,141 when it naturalized Burundian refugees who had fled to Tanzania in the seventies and their descendants (who were technically already Tanzanian under the jus soli provision of Tanzania’s Citizenship Act).142

The Children’s Charter also contains a refugee-specific provision, which is very similar to the Convention on the Rights of the Child’s article 22.143 It requires, inter alia, that states provide refugee children with ‘appropriate protection and humanitarian assistance in the enjoyment of the rights set out’ in the Charter and in ‘other international human rights and humanitarian instruments to which the States are Parties’. It also mandates state cooperation with international organisations’ child protection and family reunification work and prohibits states from discriminating against unaccompanied refugee children in the provision of protection.144

The Children’s Charter has a dedicated treaty monitoring body: the African Committee of Experts on the Rights and Welfare of the Child. It engages primarily in promotional activities and has only issued five decisions (including two relating solely to admissibility), none of which pertains to refugees. The Children’s Charter was, however, invoked regarding the effects on refugee children of a March 2014 Kenyan government press statement ordering refugees to relocate to the Dadaab and Kakuma camps. The Refugee Consortium of Kenya, together with a parent suing on behalf of her six children and forty-two other minors, alleged that the relocation (p.140) order was enforced against parents with the effect of separating them from their children, who were left behind in Nairobi. The decision invokes the Children’s Charter’s best interests provision,145 which among other things led the court to find in the petitioners’ favour.

The Women’s Protocol protects refugee women in a general sense and also contains several provisions devoted to refugees. Article 4 on the right to life, integrity, and security of the person commits states parties to ensuring that ‘women and men enjoy equal rights in terms of access to refugee status determination procedures and that women refugees are accorded the full protection and benefits guaranteed under international refugee law, including their own identity and other documents’.146 Article 10 on the right to peace further commits states parties to ensuring the increased participation of women ‘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’147 and ‘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’.148 Finally, with article 11 on the protection of women in armed conflict 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’.149 As a Protocol to the African Charter, the Women’s Protocol is supervised by the African Commission, rather than by its own treaty monitoring body. The African Commission has yet to apply the Women’s Protocol in a refugee context.

D. The Relationship between Regional Human Rights Law and the 1969 Convention

That human rights apply to refugees is settled law and in recent years scholars have elaborated the role of human rights in refugee protection on both the international150 and regional planes.151 Yet the precise relationships between human rights and refugee law, and particularly relationships of conflict, remain largely unexamined. For example, Naldi and D’Orsi note only that international refugee law has had to adapt to comply with international human rights law’s often superior norms,152 (p.141) without explaining how refugee law has adapted. Similarly, Murray’s treatment of the ‘relationship between human rights and refugee law’ is limited to a description of how the African Commission and the AU have addressed refugee issues.153 An expert meeting on ‘Complementarities between International Refugee Law, International Criminal Law and International Human Rights Law’ tackled these relationships thematically but did not address specific norm conflicts, beyond implying that these should be addressed in accordance with the International Law Commission (ILC) approach.154

The lack of specific relationship analysis is particularly surprising given recent academic155 and practical156 interest in the relationships between specific bodies of international law, such as human rights and humanitarian law.157 International refugee law has not been exempted from this line of enquiry, but it has largely examined the regime’s relationships with international humanitarian law, international human rights law, and international criminal law in a general158 or thematic159 sense; specific relationships between refugee law on the one hand and human rights law on the other, and relationships of conflict in particular, have gone largely unexplored in relation to both the international and regional planes.160

This gap is perhaps due to the fact that international norms of refugee and human rights law generally do not conflict. International human rights law in most cases provides more robust protection than international refugee law, and the 1951 (p.142) Convention makes plain that such higher standards should apply alongside it.161 Hathaway explains that article 5 of the 1951 Convention

should be read as requiring governments to respect the array of important international human rights accords negotiated in recent years. These international human rights conventions generally regulate the treatment of all persons subject to a state’s jurisdiction, and are therefore critical sources of enhanced protection for refugees. Art. 5 of the Refugee Convention makes clear that the drafters were aware that refugees would be protected by additional rights acquired under the terms of other international agreements, and that they specifically intended that this should be so.162

Based on his review of the 1951 Convention’s travaux préparatoires, Hathaway explains further that article 5 applies to rights that pre-date the 1951 Convention, as well as to rights that accrued after its adoption.163

This apparently straightforward parallelism between the 1951 Convention and international human rights law’s higher standards of treatment obfuscates several important relationship issues on the regional plane. The simultaneous applicability of the 1969 Convention and the African Charter to refugees in Africa raises two relationships of interpretation and two relationships of conflict. The relationships of interpretation relate to the 1969 Convention’s and the African Charter’s respective provisions on asylum,164 as well as to the 1969 Convention’s voluntary repatriation provision165 and the Charter right to leave and return.166 There are relationships of conflict between the 1969 Convention’s prohibition of subversive activities167 and the African Charter’s freedoms of expression168 and association,169 as well as between the 1969 Convention’s provision on settlement170 and the Charter’s freedom of movement guarantee.171 These are analysed or resolved here in line with the ILC approach. This approach is detailed in the introductory chapter. It essentially views articulating the relationship between legal instruments as a contextual process of treaty interpretation, supplemented by relevant interpretive maxims when interpretation does not yield a harmonized result.

The propriety of the ILC approach in this context is confirmed by a rare reference to specific norm conflicts between refugee law on the one hand and human rights law on the other, made by the African Commission in Curtis Francis Doebbler v Sudan. The complainant raised the issue, as recounted in the decision:

The Complainant argues that since the African Charter is a treaty that is later in time, than either the UN Refugees Convention, or the African refugees convention, the general principle of international law to be applied to resolve any conflict between treaties is that the latter treaty prevails over the former treaty that are not compatible. The Complainant relies on (p.143) Article 30(3) of the Vienna Convention on the Law of Treaties, which states that ‘the earlier treaty applies only to the extent that its provisions are compatible with those of the latter treaty.’ He argues that by applying this principle, any provisions of the UN refugees convention that are incompatible with either the African refugee convention or the Charter must be deemed to be overridden by these latter two instruments.172

The African Commission, however, rejected the complainant’s reliance on lex posterior—which does not usually apply unless the parties to the treaties under consideration are the same173—in favour of the ILC-sanctioned approach, which prioritizes a harmonizing interpretation. Though it did not mention the ILC specifically, the African Commission’s strong presumption against normative conflict suggests ILC influence:

The Commission wishes to state that it does not find any conflict or incompatibility between the African Charter and the two refugees’ convention, or between the UN and the OAU refugees conventions. The 1969 OAU Convention stipulates that it is a complement to the 1951 UN Refugees Convention. Paragraph 9 of its preamble recognises the 1951 UN Convention and the 1967 Protocol as the basic and universal instruments relating to the status of refugees. Article VIII of the OAU Convention enjoins Member States to cooperate with the UNHCR, and states further that the OAU Convention is a regional complement to the 1951 UN Convention. In that respect the Commission shall read the provisions of the three instruments as complementing each other. The Complainant’s argument that the provisions of the latter convention prevail over the former do not in any way affect the interpretation the Commission will give to the applicable provisions, should it be necessary to do so under this communication. This is because the provisions are at most complementary to each other and not mutually exclusive.174

Following this lead, the ILC approach is applied here, in the first instance to relationships of interpretation.

1. Relationships of interpretation

(a) Asylum

The 1969 Convention and African Charter provisions on asylum are discussed in Chapter 3 and in section C. The latter instrument gives every individual ‘the right, when persecuted, to seek and obtain asylum in other countries in accordance with the law of those countries and international conventions’.175 The former exhorts member states to ‘use their best endeavours consistent with their respective legislations to receive refugees and to secure the settlement of those refugees who, for (p.144) well-founded reasons, are unable or unwilling to return to their country of origin or nationality’.176

The reference to international conventions in the African Charter’s provision on asylum makes plain that it must be interpreted in light of international law, including the 1969 Convention. States’ obligation under the 1969 Convention is one of means, not of result. Thus when analysed together, the outcome is the same as when each instrument is interpreted in isolation: there is no individual right to asylum in Africa, however states must do their utmost to provide asylum. Moreover, interpreting the African Charter in light of the 1969 Convention goes some way to remedying the issue identified in section C: that the African Charter seems to limit the right of asylum to individuals who have been ‘persecuted’. Under the 1969 Convention, states must ‘use their best endeavours’ to grant asylum to all refugees ‘who, for well-founded reasons, are unable or unwilling to return to their country’.177 Such ‘well-founded reasons’ presumably include both persecution as well as ‘external aggression, occupation, foreign domination or events seriously disturbing public order’.178

(b) The right to return and voluntary repatriation

Article 12(2) of the African Charter gives every individual the ‘right to leave any country including his own, and to return to his country’. The 1969 Convention speaks of return in the refugee context, providing that the ‘essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will’.179 It then goes on to provide for the modalities of such voluntary repatriation.180 Extrapolating from John D Ouko v Kenya (Ouko),181 Beyani insists on the importance of interpreting article 12(2) of the African Charter in light of the 1969 Convention’s provisions on voluntary repatriation.

In Ouko, the African Commission found that the persecution the claimant experienced in Kenya and during his subsequent exile in Uganda and the DRC violated his Charter rights to leave and to return, among others.182 The African Commission also urged Kenya to facilitate Ouko’s safe return.183 According to Beyani, such return cannot be understood in isolation; rather, it must be viewed in light of the 1969 Convention’s article V on voluntary repatriation. Beyani explains that voluntary repatriation is normally implemented through tripartite agreements between the country of origin, the host state, and the Office of the United Nations High Commissioner for Refugees (UNHCR)184 and argues that, following Ouko, ‘repatriation agreements which do not satisfy the conditions stipulated in’ article V of the (p.145) 1969 Convention may ‘be challenged as a breach of the duty to ensure safe return under Article 12 of the African Charter’.185

Chetail made the same argument in the international context. Further to the Human Rights Committee view that ‘the right of a person to enter his or her own country … includes … the right to return after having left one’s own country’ which ‘is of the utmost importance for refugees seeking voluntary repatriation’,186 Chetail argues that the right ‘to return proves to be crucial for ensuring both the voluntary nature of repatriation and the correlative obligation of states of origin to admit their nationals’.187

2. Relationships of conflict

(a) Political rights and the prohibition of subversive activities

Hathaway explains that the 1969 Convention purports ‘to deny some forms of political free speech as the cost of enhanced basic protection rights’.188 He is referring to the 1969 Convention’s article III, titled the ‘Prohibition of Subversive Activities’. In its first paragraph, it exhorts every refugee to ‘abstain from any subversive activities against any Member State of the OAU’ and goes on in paragraph 2 to call on signatory states to ‘prohibit refugees residing in their respective territories from attacking any State Member of the OAU, by any activity likely to cause tension between Member States, and in particular by use of arms, through the press, or by radio’. As discussed in Chapters 2 and 3, the prohibition of subversive activities was the result of member state concern that refugee activists operating on their territories would undermine relations among newly independent African states.189

The prohibition of subversive activities regularly plays out in practice, though restrictions are not necessarily explicitly linked to article III. For example, in a communication the African Commission ultimately deemed inadmissible, Mauritanian refugees complained that their freedoms of expression and assembly had been violated when the town of Podor in Senegal banned their planned demonstration.190 Refugees have been expelled from Zimbabwe for merely criticizing the government, and Tanzania at one time prohibited meetings of more than five refugees.191 According to Mandal, ‘there is evidence that some OAU States have adopted a rather sweeping approach to Article III, interpreting it as prohibiting any political activity with respect to the refugee’s country of origin, or indeed any political activity whatsoever’.192

(p.146) It must be determined whether the prohibition of subversive activities conflicts with the African Charter guarantees of expression, association, and assembly.193 Each of these features a clawback clause. Every individual has the right to ‘express and disseminate his opinions within the law’,194 to ‘free association provided that he abides by the law’,195 and to ‘assemble freely with others’ subject to ‘necessary restrictions provided for by law, in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others’.196 These restrictions on the freedoms of expression, association, and assembly make the rights in question contingent upon domestic laws. However, as explained in section C, the African Commission interprets clawback clauses as limiting rights only insofar as the relevant domestic law complies with international human rights standards,197 and these international standards protect expression, association, and assembly robustly. The ICCPR protects expression subject only to such restrictions as are necessary to protect the ‘rights or reputations of others’ and for ‘the protection of national security or of public order (ordre public), or of public health or morals’.198 Similarly, the rights of association and peaceful assembly may only be limited insofar as is ‘necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others’.199

Also relevant to the analysis is article 23(2) of the African Charter, which provides,

For the purpose of strengthening peace, solidarity and friendly relations, State Parties to the present Charter shall ensure that: (a) any individual enjoying the right of asylum under Article 12 … shall not engage in subversive activities against his 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.200

The African Commission has never engaged substantively with this provision,201 so the meaning of ‘subversive activities’ is as unclear in the Charter as it is under the 1969 Convention.202 What is clear is that the Charter’s article 23(2) prohibition of subversive activities ‘has to be compatible with the lawful restrictions provided in the other relevant provisions (Arts. 8 to 11 of the African Charter)’,203 and as explained earlier in this section, such lawful restrictions flow from the ICCPR.204

The question thus becomes whether the 1969 Convention’s prohibition of subversive activities can be reconciled with the permissible limitations on the Charter freedoms of expression, association, and assembly, where the allowable limitations are those in the ICCPR. It is difficult to answer this question with any certainty, (p.147) because the precise meanings of ‘subversive activities’ and ‘any activity likely to cause tension between Member States’ have never been clarified by a court. It is likely, however, that article III of the 1969 Convention purports to restrict refugees’ political rights beyond the ICCPR limitations on expression, association, and assembly. The prohibition of subversive activities begins by noting that every refugee ‘has duties to the country in which he finds himself, which require in particular that he conforms with its laws and regulations as well as with measures taken for the maintenance of public order’. That article III mentions public order and then goes on to explicitly prohibit ‘subversive activities’ and ‘any activity likely to cause tension between Member States’ suggests that the drafters intended that article III should prohibit political activities lesser than those that rise to the level of threatening public order.

There is some commentary on the relationship between the 1969 Convention’s prohibition of subversive activities and political rights under the African Charter. Writing before Media Rights Agenda clarified how the Charter’s imprecise clawback clauses should be understood, the Lawyers Committee for Human Rights found that article III of the 1969 Convention did not impugn the Charter guarantees of expression and association,205 because these may be limited ‘within the law’. The Lawyers Committee did, however, find the prohibition of subversive activities in clear violation of the ICCPR guarantees of expression and association.206 Hathaway concluded the same, finding that the 1969 Convention’s ‘sweeping prohibition on political activities cannot be reconciled to duties under the Covenant on Civil and Political Rights’.207 The Media Rights Agenda approach to clawback clauses—which requires that any limitations on the Charter guarantees of expression and association comply with the limitations permissible under the ICCPR—suggests that today, the African Charter is similarly violated.

The conclusion reached by the Lawyers Committee and by Hathaway, however, ignores the ILC exhortation to seek a harmonizing interpretation, which came after the Lawyers Committee and Hathaway works were published. Such a harmonizing interpretation can be achieved by narrowly construing the 1969 Convention and Charter subversion prohibitions, such that they would not catch the vast majority of refugees’ political activity, thereby limiting genuine norm conflicts to the rare instances in which refugee political activity is truly ‘subversive’. Indeed, this is Chetail’s approach to the issue. He argues that ‘as any exception to a right (ie, freedoms of expression, of association and of peaceful assembly), the very notion of “subversive activities” must be interpreted restrictively and must not impair the essence of the rights in question’.208 This was also the result reached in a South African analysis of the issue.209

(p.148) Such a narrow construction of the 1969 Convention and Charter subversion prohibitions also finds support in the principle of systemic integration,210 pursuant to which ‘international obligations are interpreted by reference to their normative environment’.211 This environment includes norms such as the African Commission’s Principles on Freedom of Expression in Africa. The Principles affirm freedom of expression as ‘a fundamental and inalienable human right and an indispensable component of democracy’212 and provide that any restrictions on freedom of expression must ‘serve a legitimate interest and be necessary in a democratic society’.213

In instances in which truly ‘subversive’ political activity creates genuine norm conflicts, these must be resolved by way of lex specialis or lex posterior. However, as discussed in Chapter 1, these maxims are not of absolute validity and cannot therefore be applied mechanically. According to the ILC, whether ‘a rule’s speciality or generality should be decisive, or whether priority should be given to the earlier or to the later rule’ depends on factors such as ‘the will of the parties, the nature of the instruments and their object and purpose as well as what would be a reasonable way to apply them with minimal disturbance to the operation of the legal system’.214 It could be argued that the 1969 Convention is the lex specialis regarding refugees’ political rights, with the result that article III of the 1969 Convention trumps the African Charter protections of expression, association, and assembly. However, such a mechanistic application of lex specialis ignores the importance of teleological interpretation in human rights contexts,215 as well as the ILC’s caution that lex specialis cannot be invoked to deprive third parties of rights guaranteed by the more general law.216 These considerations suggests that lex posterior is the appropriate maxim. Pursuant to lex posterior, the earlier-in-time article III prohibition of subversive activities must yield to the later-in-time Charter protections of expression, association, and assembly. Thus refugees’ political activity must be permitted unless it is caught by the ICCPR’s limitation clauses. While this approach likely permits more refugee political activity than the drafters of the 1969 Convention intended, it reflects the current normative environment, which is different than that which existed in the years leading up to 1969.

(b) Freedom of movement

Article II(6) of the 1969 Convention provides that ‘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’.217 Similarly, article 10(2) of the Women’s (p.149) Protocol provides that states ‘shall take all appropriate measures to ensure the increased participation of women … in … structures established for the management of camps and settlements for asylum seekers, refugees, returnees and displaced persons’. These mentions of organized settlement are at least suggestive of a deprivation of refugees’ freedom of movement and residence. Furthermore, in practice African states regularly confine refugees to camps.218 The refugee laws of major refugee hosting states Ethiopia, Kenya, and Uganda allow for the settlement of refugees in camps, and four of the biggest refugee camps in the world—Bidi Bidi in Uganda, Dadaab and Kakuma in Kenya, and Dollo Ado in Ethiopia—are in Africa. Freedom of movement and residence is, however, guaranteed by the African Charter. It provides that ‘every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law’.219 This clawback clause has been interpreted by the African Commission in a way that suggests that permissible limitations cannot be based on the violation of an arbitrary or discriminatory law.220

A similar apparent conflict, between article II(6) of the 1969 Convention and the 1951 Convention’s freedom of movement provision, was addressed in Chapter 4,221 and there a harmonizing interpretation was found. The same result applies in this context. As discussed in Chapter 4, article II(6) does not require states to settle refugees; the provision merely states that if states do so—which presumably would be in extenuating circumstances—it should be at a reasonable distance from the frontier with the country of origin, in order to ensure refugees’ safety. The context and object and purpose of the 1969 Convention, and the wider normative environment, affirm this interpretation of settlement as an exceptional measure,222 as does the Charter’s freedom of movement guarantee. When exceptional circumstances warrant refugee settlement—such as when 1.5 million Rwandan refugees arrived in the DRC in 1994—laws, orders, or regulations detailing the modalities of this could be promulgated. Provided such laws, orders, or regulations were neither arbitrary nor discriminatory and were enacted considering the exceptional circumstances at hand, refugee settlement would be within the permissible limitations on article 12(1) of the African Charter.

The relationship between freedom of movement and encampment recently played out in a line of four Kenyan cases. The first stemmed from a 2012 policy halting reception and registration in urban centres, ordering all refugees to move to camps (p.150) and directing UNHCR and others to cease providing services in urban areas.223 The NGO Kituo Cha Sheria and several individual petitioners challenged the policy, arguing inter alia that it violated Kenya’s constitutional free movement guarantee and its international obligations under the 1951 Convention and the ICCPR.224 The court introduced, inter alia, the 1969 Convention and the African Charter.225 In its reasoning, the court held that while article 39 of Kenya’s constitution limits ‘the right to enter, remain in and reside anywhere in Kenya’ to citizens, this guarantee must be read together with international free movement provisions: article 26 of the 1951 Convention, article 12 of the ICCPR, and article 12 of the African Charter, which are guaranteed to refugees by section 16 of Kenya’s Refugees Act, 2006.226 As a result, any limitation on refugees’ movement must comply with article 24 of Kenya’s constitution, which delineates permissible limitations on constitutional rights. Ultimately, the court held that the encampment violated article 24, finding it ‘a threat to … [refugees’] right to movement enshrined in Article 26 of the 1951 Convention as read with section 16 of the [Refugees] Act’.227

Refugees’ freedom of movement in Kenya arose again in a case decided in 2014 and relating in part to a March 2014 government press statement ordering all refugees to return immediately to Kakuma or Dadaab. The ten refugee petitioners alleged among other things that the order violated their right to freedom from discrimination as well as their rights to property and to work under the African Charter; the petitioners did not raise freedom of movement under the African Charter but they did raise it in relation to the Constitution. The court found in favour of the government not because the order was constitutional or compliant with Kenya’s international obligations, but because the ‘petitioners did not demonstrate by way [of] affidavit evidence how the Directive affects their individual circumstances to the extent that their fundamental rights and freedoms are violated’.228 This suggests that had the petitioners’ case been more persuasively argued, they would have prevailed.

Refugees’ freedom of movement arose for the third time in a 2015 case addressing the Security Laws (Amendment) Act of 2014, which amended twenty-two legislative acts in response to terrorist attacks in Kenya. The changes included the addition of section 14(c) to The Refugees Act, 2006, preventing a refugee from leaving his or her designated camp without the permission of a camp officer.229 Reversing its position in Kituo Cha Sheria, the court upheld section 14(c) based on the limitation of Kenya’s constitutional freedom of movement guarantee to citizens.230 The decision considered neither the Kituo Cha Sheria precedent nor Kenya’s international (p.151) obligations, other than article 2 of the 1951 Convention and article 3 of the 1969 Convention on refugee duties. The court did, however, point out that section 14(c) applies only to refugees residing in the designated camps, perhaps to distinguish the facts at bar from the more widespread and blanket restriction at issue in Kituo Cha Sheria.231 Moreover, the decision in Kituo Cha Sheria was upheld on appeal in 2017.232 Thus the most recent and the highest Kenyan judicial authority on refugees’ freedom of movement affirms the general conclusion reached above: refugees in Africa should generally enjoy freedom of movement.

While this appellate decision suggests that the Kenyan refugee camps are unlawful, their ongoing existence exemplifies the wide gulf between the law and practice of refugee protection in Africa. A principal challenge for refugee advocates is to work to narrow this gulf. There is positive news from Ethiopia in this regard. The country began implementing its Out of Camp policy in 2010. The policy allows some refugees from Eritrea with a sponsor to live in urban areas, though without access to waged labour.233 At the UN-sponsored Leaders’ Summit on Refugees, held in September 2016, Ethiopia pledged to expand its Out of Camp policy to benefit a further 75,000 refugees, which represents about ten per cent of Ethiopia’s refugee population.234

E. Conclusions

This chapter began by tracing the role of human rights law in refugee protection, situating the current moment as one in which both bodies of law have a role to play. Some scholars disagree about the extent of each body’s role, with McAdam coming out on the side of the 1951 Convention,235 Chetail favouring international human rights law,236 and Hathaway sitting somewhere in between.237 The approach adopted here is the middle and generally accepted one, in which standards of treatment during all phases of displacement derive from both the 1951 Convention and international and regional human rights law.

This chapter has sketched this latter body of law, highlighted the aspects of it that contribute to non-refoulement and asylum and rights during displacement, and articulated the relationships of interpretation—regarding asylum and regarding the right to return and voluntary repatriation—and of conflict—regarding the prohibition of subversive activities and political rights and regarding freedom of movement—between regional refugee law on the one hand and regional human (p.152) rights law on the other. Together, this has established how regional human rights law contributes to refugee protection in Africa, while also making sense of the legal issues that arise from these two sometimes divergent bodies of law applying to the same population.

However, these issues are largely theoretical, while the ‘divergence between the theory and the reality of international human rights law is strikingly apparent’,238 with some questioning whether international human rights law even makes a difference.239 Such questions are especially salient in Africa, where Viljoen and Louw found a modest record of state compliance with African Commission recommendations.240 This and other implementation issues will be addressed in Part II.

This marks the end of Part I on the treaty framework for refugee protection in Africa. Part II is devoted to the institutional architecture supportive of this framework, with Chapter 6 focusing on the OAU and the AU, and the final Part II chapter focusing on the roles of African Commission and the African human rights courts in refugee protection.

Notes:

(1) (Adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137.

(2) James C Hathaway, The Rights of Refugees Under International Law (CUP 2005) 8.

(3) (Adopted 27 June 1981, entered into force 21 October 1986) 21 ILM 58.

(4) (Adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45.

(5) Refugee Law, 1992 (Ghana) PNDCL 305D, s 11.

(6) Refugee Proclamation No. 409/2004 (Ethiopia) art 21(1)(d).

(7) Law No 8 of 1990, Law on Refugee Status (Angola) art 8.

(8) ibid art 21.

(9) Gauteng/2012/0134, South African Human Rights Commission Investigative Reports Volume 4.

(10) Sergio Carciotto and Cristiano D’Orsi, ‘Access to Socio-Economic Rights for Refugees: A Comparison Across Six African Countries’ (March 2017) The Scalabrini Institute for Human Mobility in Africa <http://sihma.org.za/wp-content/uploads/2017/03/Access-to-socio-economic-rights_refugees.pdf> accessed 28 March 2017.

(11) Jeff Crisp, ‘Forced Displacement in Africa: Dimensions, Difficulties, and Policy Directions’ (2010) 29 RSQ 1, 7.

(12) ibid 7–8.

(13) ibid 15.

(15) (Adopted 11 July 2003, entered into force 25 November 2005) AU Doc CAB/LEG/66.6.

(16) (Adopted 11 July 1990, entered into force 29 November 1999) OAU Doc CAB/LEG/24.9/49(1990).

(17) Vincent Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law’ in Ruth Rubio-Marin (ed), Human Rights and Immigration, Collected Courses of the Academy of European Law (OUP 2014) 19.

(18) Guy S Goodwin-Gill, ‘International Law and Human Rights: Trends Concerning International Migrants and Refugees’ (1989) 23 Intl Migr Rev 526.

(19) David Matas, ‘A History of the Politics of Refugee Protection’ in Kathleen Mahoney and Paul Mahoney (eds), Human Rights in the Twenty-first Century: A Global Challenge (Martinus Nijhoff 1993) 622.

(20) Tom Clark and François Crépeau, ‘Mainstreaming Refugee Rights: The 1951 Refugee Convention and International Human Rights Law’ (1999) 17 NQHR 389, 389.

(21) James C Hathaway, ‘Fear of Persecution and the Law of Human Rights’ (1992) 91 Bull Hum Rts 98; James C Hathaway, The Law of Refugee Status (Butterworths 1991) chap 4.

(22) See, for example, Clark and Crépeau (n 20); Richard Plender and Nuala Mole, ‘Beyond the Geneva Convention: Constructing a De Facto Right of Asylum from International Human Rights Instruments’ in Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (CUP 1999).

(23) For a complete account, see Jane McAdam, Complementary Protection in International Refugee Law (OUP 2007).

(24) See, for example, Oldrich Andrysek, ‘Gaps in International Protection and the Potential for Redress through Individual Complaints Procedures’ (1997) 9 IJRL 392; Joan Fitzpatrick (ed), Human Rights Protection for Refugees, Asylum-Seekers and Internally Displaced Persons: A Guide to International Mechanisms and Procedures (Transnational 2002); Saul Takahashi, ‘Recourse to Human Rights Treaty Bodies for Monitoring of the Refugee Convention’ (2002) 20 NQHR 53; Chaloka Beyani, ‘The Role of Human Rights Bodies in Protecting Refugees’ in Anne Bayefsky (ed), Human Rights and Refugees, Internally Displaced Persons and Migrant Workers: Essays in Memory of Joan Fitzpatrick and Arthur Helton (Martinus Nijhoff 2005). See also the March 2015 (vol 34) special issue of RSQ on ‘The Role of International Organizations and Human Rights Monitoring Bodies in Refugee Protection’.

(25) The seminal work in this regard is Hathaway (n 2).

(26) See, for example, Colin Harvey, ‘Time for Reform? Refugees, Asylum-seekers, and Protection Under International Human Rights Law’ (2015) 34 RSQ 43.

(27) Geoff Gilbert, ‘Rights, Legitimate Expectations, Needs and Responsibilities: UNHCR and the New World Order’ (1998) 10 IJRL 349, 387.

(28) Chetail (n 17) 40.

(29) (n 20) 392.

(30) International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.

(31) See Marina Sharpe, ‘The 1951 Refugee Convention’s Contingent Rights Framework and Article 26 of the ICCPR: A Fundamental Incompatibility?’ (2014) 30 Refuge 5.

(32) Clark and Crépeau (n 20).

(33) Chetail (n 17) 61–68; see, also, n 24.

(34) Chetail (n 17) 35 and 51–54.

(35) Sharpe (n 31).

(36) Jason Pobjoy, ‘Treating Like Alike: The Principle of Non-Discrimination as a Tool to Mandate the Equal Treatment of Refugees and Beneficiaries of Complementary Protection’ (2010) 34 MULR 181.

(37) (n 2) 110.

(39) (n 17) 22.

(40) (n 23) 198.

(41) ibid 202.

(42) See Frans Viljoen, International Human Rights Law in Africa (2nd edn, OUP 2012).

(43) ibid 469–514; see, generally, Frans Viljoen, ‘The Realization of Human Rights in Africa Through Sub-regional Institutions’ (1999) 7 Afr YB Intl L 186.

(44) Article II(1)(e) of the OAU Charter (Charter of the Organization of African Unity (25 May 1963) 479 UNTS 39) lists the promotion of ‘international cooperation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights’ as among the OAU’s purposes.

(45) Christof Heyns, ‘The African Regional Human Rights System: The African Charter’ (2003–04) 108 Penn State L Rev 679, 685; Viljoen (n 42) 158–59.

(46) Viljoen (n 42) 160.

(47) Christof Heyns and Frans Viljoen, ‘An Overview of International Human Rights Protection in Africa’ (1999) 15 S Afr J Hum Rts 421, 433.

(48) Richard Gittleman, ‘African Charter on Human and Peoples’ Rights: A Legal Analysis’ (1981–82) 22 Va J Intl L 667, 668; this article contains a brief but excellent drafting history of the African Charter.

(49) ibid 672.   

(50) ibid.   

(51) ibid 673.

(52) Rose D’Sa, ‘Human and Peoples Rights: Distinctive Features of the African Charter’ (1985) 29 J Afr L 72, 74.

(53) (n 45) 680.

(54) African Charter (n 3) art 60.

(55) ibid art 61.

(56) Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights (adopted 10 June 1998, entered into force 25 January 2004) OAU Doc OAU/LEG/EXP/AGCHPR/PROT.

(57) Viljoen (n 42) 214.

(58) (n 45) 690–91.

(59) African Charter (n 3) arts 15–17.

(60) (n 47) 434.

(61) (n 45) 688.

(62) Gino J Naldi, ‘Limitation of Rights Under the African Charter on Human and Peoples’ Rights: The Contribution of the African Commission on Human and Peoples’ Rights’ (2001) 17 S Afr J Hum Rts 109, 112.

(63) Media Rights Agenda & Others v Nigeria comm nos 105/93, 128/94, 130/94 and 152/96, 12th Annual Activity Report of the Af Cm HRP (1998) (Media Rights Agenda) para 66.

(64) African Charter (n 3) arts 20–24.

(65) (n 52) 77.

(66) (n 42) 219.

(67) Rachel Murray, ‘International Human Rights: Neglect of Perspective from African Institutions’ (2006) 55 Intl & Comp LQ 193, 199.

(68) African Charter (n 3) arts 27–29.

(69) (n 52) 77.

(70) Viljoen (n 42) 239.

(71) (n 48) 676–77.

(72) African Charter (n 3) art 29(6).

(73) Media Rights Agenda (n 63) para 68; see, also, Constitutional Rights Project and Others v Nigeria comm nos 140/94, 141/94 and 145/95, 13th Annual Activity Report of the Af Cm HRP (1999) para 41.

(74) African Charter (n 3) art 2.

(75) Rencontre Africaine pour la defense des droits de l’homme (RADDHO) v Zambia comm no 71/92, 10th Annual Activity Report of the Af Cm HPR (2000) (RADDHO) para 22.

(76) African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v Guinea comm no 249/2002, 20th Annual Activity Report of the Af Cm HRP (2005–06) (African Institute) para 68.

(77) See, for example, Gino J Naldi and Cristiano D’Orsi, ‘The Role of the African Human Rights System with Reference to Asylum Seekers’ in Ademola Abass and Francesca Ippolito (eds), Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective (Ashgate 2014) 56.

(78) Except the article 13 rights to political participation and access to the public service, which are owed to ‘every citizen’.

(79) Bahame Tom Mukirya Nyanduga, ‘Refugee Protection Under the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa’ (2004) 47 German YB Intl L 85, 101.

(80) 1951 Convention (n 1) art 33(1).

(81) 1969 Convention (n 4) art II(3).

(82) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85, art 3(1); ICCPR (n 30) art 7, read with HRC, ‘General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (29 March 2004) para 12 (see Chapter 3, n 287).

(83) International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 December 2006, entered into force 23 December 2010) 2716 UNTS 3, art 16(1).

(84) Kituo Cha Sheria, Abebe Dadi Tully, Ahmed Bashir Mohamed, Eugene Bwimana, Dachassa Galdi Nure, Muhima Sebihendo Joh, Mbuzukongire Nzabona and Said Abdullahi Abukar v the Attorney General, Petition Nos 19 and 115 of 2013, High Court of Kenya (26 July 2013) para 44; Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-refoulement: Opinion’ in Erika Feller, Volker Türk, and Frances Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (CUP 2003); Cathryn Costello and Michelle Foster, ‘Non-refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test’ (2016) 46 NYIL 2015 273; contra: James C Hathaway, ‘Leveraging Asylum’ (2009) 45 Texas Intl LJ 503.

(85) Rachel Murray, ‘Refugees and Internally Displaced Persons and Human Rights: the African System’ (2005) 24 RSQ 56, 59; Chetail (n 17) 35.

(86) John K Modise v Botswana comm no 97/93, 10th Annual Activity Report of the Af Cm HPR (2000) para 92.

(87) Comm no 292/2004, 24th Annual Activity Report of the Af Cm HPR (2008) para 84.

(88) African Commission, ‘Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa’ (32nd Ordinary Session, 17–23 October 2002) art 15.

(89) Tamara Wood, ‘Protection and Disasters in the Horn of Africa: Norms and Practice for Addressing Cross-Border Displacement in Disaster Contexts’ (2015) The Nansen Initiative <http://www.nanseninitiative.org/wp-content/uploads/2015/03/190215_Technical_Paper_Tamara_Wood.pdf> accessed 23 January 2017, 33–34.

(90) Comm no 292/04, 23rd and 24th Annual Activity Report of the Af Cm HPR (2004) para 17.

(91) Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan comm no 279/03–296/05, 45th Annual Activity Report of the Af Cm HPR (2009) para 214. Separating families has even been found to constitute inhuman treatment within the meaning of article 5 of the African Charter. In Amnesty International and Others v Sudan, the Commission found that ‘holding an individual without permitting him or her to have any contact with his or her family, and refusing to inform the family if and where the individual is being held, is inhuman treatment of both the detainee and the family concerned’ (comm nos 48/90, 50/91, 52/91, and 83/93, 13th Annual Activity Report of the Af Cm HPR (1999) para 54).

(92) Children’s Charter (n 16) arts 18(1) and 19(1).

(93) Wood (n 89) 33.

(94) UNGA Res 217 A (III) (10 December 1948) (emphasis added); see, generally, Alice Edwards, ‘Human Rights, Refugees, and The Right “To Enjoy” Asylum’ (2005) 17 IJRL 293.

(95) UNGA Res 2312 (XXII) (14 December 1967).

(96) (Adopted 21 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (emphasis added).

(97) Gittleman (n 48) 698.

(98) Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, OUP 2007) 358.

(99) Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14, para 42.

(100) 1969 Convention (n 4) art I(2).

(101) ibid art I(1).

(102) Organisation mondiale contre la torture and Others v Rwanda comm nos 27/89, 46/91, 49/91, 99/93, 10th Annual Activity Report of the Af Cm HPR (1996) (OMT) para 31 (emphasis added).

(103) Naldi and D’Orsi (n 77) 62.

(104) OMT (n 102) para 31 (emphasis added).

(105) Chaloka Beyani, Protection of the Right to Seek and Obtain Asylum Under the African Human Rights System (Martinus Nijhoff 2013) 52–53. Note, however, that the European Convention on Human Rights’ fair trial guarantee was found not to apply to asylum proceedings (Katani v Germany app no 67679/01 (ECtHR 31 May 2001)).

(106) OMT (n 102) para 34.

(107) See, in this regard, UNHCR, ‘Key Legal Considerations on the Standards of Treatment of Refugees Recognized Under the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa’ (19 December 2017) <http://www.refworld.org/docid/5a391d4f4.html> accessed 5 January 2017, para 9.

(108) OMT (n 102) para 30.

(109) African Institute (n 76).

(110) OMT (n 102) paras 31–32.

(111) Institute for Human Rights and Development (n 87).

(112) ibid para 69.

(113) Gina Bekker, ‘Mass Expulsion of Foriegn Nationals: A “Special Violation of Human Rights” – Communication 292/2004 Institute for Human Rights and Development in Africa v Republic of Angola’ (2009) 9 Afr Hum Rts LJ 262, 270.

(114) (n 90).

(115) RADDHO (n 75) paras 19–28.

(116) Bekker (n 113) 270.

(117) ibid 264.

(118) Union inter-Africaine des droits de l’homme, Federation internationale des ligues des droits de l’homme, Rencontre Africaine des droits de l’homme, Organisation nationale des droits de l’homme au Sénégal and Association Malienne des droits de l’homme v Angola comm no 159/96, 11th Annual Activity Report of the Af Cm HPR (1997) para 17.

(119) Institute for Human Rights and Development (n 87) para 79.

(120) ibid para 84.

(121) Curtis Francis Doebbler v Sudan comm no 235/00, 27th Annual Activity Report of the Af Cm HPR (2009) (Doebbler).

(122) ibid para 146.

(123) Hathaway (n 2) 123.

(124) African Institute (n 76) para 69.

(125) OMT (n 102) para 32.

(126) See section C.4.

(127) Hathaway (n 2) 127–28; see, also, Sharpe (n 31).

(128) Zachary A Lomo, ‘The Struggle for the Protection of the Rights of Refugees and IDPs in Africa: Making the Existing International Legal Regime Work’ (2000) 18 Berk J Intl L 268, 272.

(129) See Jeff Crisp, ‘Africa’s Refugees: Patterns, Problems and Policy Challenges’ (2000) 8 Afr YB Intl L 93; Lomo (n 128) 272–75; Bonaventure Rutinwa, ‘The End of Asylum? The Changing Nature of Refugee Policies in Africa’ (2002) 21 RSQ 12; Guglielmo Verdirame and Barbara Harrell-Bond, Rights in Exile: Janus Faced Humanitarianism (Berghahn Books 2005); Edwin Odihambo Abuya, ‘From Here to Where? Refugees Living in Protracted Situations in Africa’ in Alice Edwards and Carla Ferstman (eds), Human Security and Non-Citizens: Law, Policy and International Affairs (CUP 2010).

(130) Lomo (n 128) 277.

(131) Verdirame and Harrell-Bond (n 129) 133–51.

(132) Lomo (n 128) 281–83; see also Chapter 4, section D.2.a.

(133) Recent research has explored the extent to which refugees enjoy their socioeconomic rights during exile; see Carciotto and D’Orsi (n 10).

(134) African Institute (n 76); OMT (n 102); Doebbler (n 121), however, the Commission found no violation of article 4.

(135) African Institute (n 76); OMT (n 102); Doebbler (n 121), however the Commission found no violation of article 5.

(136) OMT (n 102); Doebbler (n 121), however, the Commission found no violation of article 6.

(137) OMT (n 102).

(138) African Institute (n 76).

(139) See, generally, Thoko Kaime, ‘From Lofty Jargon to Durable Solutions: Unaccompanied Refugee Children and the African Charter on the Rights and Welfare of the Child’ (2004) 16 IJRL 336.

(140) See, generally, Gerard-Rene de Groot, ‘Children, Their Right to a Nationality and Child Statelessness’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness Under International Law (CUP 2014).

(141) See, generally, Amelia Kuch, ‘Naturalization of Burundian Refugees in Tanzania: The Debates on Local Integration and the Meaning of Citizenship Revisited’ (2017) 30 JRS 468.

(142) Tanzania Citizenship Act, 1995, s 5(1).

(143) (Adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.

(144) Chilren’s Charter (n 16) art 23(1)–(3).

(145) Refugee Consortium of Kenya and NT v the Attorney General, the Cabinet Secretary Ministry of Interior and National Co-ordination and the Commissioner of Refugee Affairs, Petition No 382 of 2014, High Court of Kenya (18 December 2015) para 50.

(146) Women’s Protocol (n 15) art 4(2)(k).

(147) ibid art 10(2)(c).

(148) ibid art 10(2)(d).

(149) ibid art 11(3).

(150) See section B of this chapter.

(151) See, for example, Rachel Murray, Human Rights in Africa: From the OAU to the African Union (CUP 2004) chap 7; Gina Bekker, ‘The Protection of Asylum Seekers and Refugees within the African Regional Human Rights System’ (2013) 13 Afr Hum Rts LJ 1; Beyani (n 105); Naldi and D’Orsi (n 77).

(152) Naldi and D’Orsi (n 77) 56.

(153) Murray (n 151) 185–86.

(154) UNHCR, ‘Expert Meeting on Complementarities between International Refugee law, International Criminal Law and International Human Rights Law, Arusha, Tanzania, 11–13 April 2011’ (2011) 23 IJRL 860, para 4.

(155) See, for example, Martti Koskenniemi and Päivi Leino, ‘Fragmentation of International Law: Postmodern Anxieties?’ (2002) 15 Leiden J of Intl L 553; Andreas Fischer-Lescano and Gunther Teubner, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’ (2004) 25 Mich J Intl L 999; Anne van Aaken, ‘Defragmentation of Public International Law Through Interpretation: A Methodological Proposal’ (2009) 16 Indiana J of Global Leg Stud 483; Mads Andenas and Eirik Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (CUP 2015).

(156) International Law Commission, ‘Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law – Report of the Study Group of the International Law Commission’ (13 April 2006) A/CN4/L682 (Fragmentation Report).

(157) See, for example, Michaela Hailbronner, ‘Laws in Conflict: The Relationship Between Human Rights and International Humanitarian Law under the African Charter on Human and Peoples’ Rights’ (2016) 16 Afr Hum Rts LJ 339; Marko Milanovic, ‘Norm Conflicts, International Humanitarian Law and Human Rights Law’ in Orna Ben-Naftali (ed), Human Rights and International Humanitarian Law, Collected Courses of the Academy of European Law, vol XIX/1 (OUP 2010).

(158) See, for example, David James Cantor and Jean-François Durieux (eds), Refuge from Inhumanity? War Refugees and International Humanitarian Law (Brill 2014); Violeta Moreno-Lax, ‘Systematising Systemic Integration: “War Refugees”, Regime Relations, and a Proposal for a Cumulative Approach to International Commitments’ (2014) 12 J Intl Crim Justice 907.

(159) See, for example, Idil Atak and James Simeon, ‘Human Trafficking: Mapping the Legal Boundaries of International Refugee Law and Criminal Justice’ (2014) 12 J Intl Crim Justice 1019; Valerie Oosterveld, ‘Gender at the Intersection of International Refugee Law and International Criminal Law’ (2014) 12 J Intl Crim Justice 953.

(160) Chetail (n 17) is a notable exception. He examines specific relationships of interpretation, but not specific relationships of conflict, as these do not arise on the international plane.

(161) 1951 Convention (n 1) art 5, which provides: ‘Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention’.

(162) (n 2) 110.

(164) 1969 Convention (n 4) art II(1) and African Charter (n 3) art 12(3).

(165) 1969 Convention (n 4) art V(1).

(166) African Charter (n 3) art 12(2).

(167) 1969 Convention (n 4) art III.

(168) African Charter (n 3) art 9(2).

(169) ibid art 10(1).

(170) 1969 Convention (n 4) art II(6).

(171) African Charter (n 3) art 12(1).

(172) Doebbler (n 121) para 124.

(173) International Law Commission, ‘Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ (2006) 2 UNYBILC 175 (ILC) para 25.

(174) Doebbler (n 121) paras 125–26; this reasoning also supports the argument in favour of article I(2) refugees’ entitlement to 1951 Convention rights, which is advanced in Chapter 4.

(175) African Charter (n 3) art 12(3).

(176) 1969 Convention (n 4) art II(1).

(177) ibid.

(178) ibid art I(2).

(179) ibid art V(1).

(180) ibid arts V(2)–(5).

(181) John D Ouko v Kenya comm no 232/99, 14th Annual Activity Report of the Af Cm HPR (2000).

(182) ibid para 31; see Chapter 7, section B.3.b.

(183) ibid; Beyani misstates the African Commission’s holding, recounting that it ‘further determined that the State of origin has a duty to facilitate safe return’ (Beyani (n 105) 43), while in fact, the African Commission only ‘urged’ Kenya to facilitate the claimant’s return.

(184) See Chapter 3, section C.3.

(185) Beyani (n 105) 43. See, however, n 183 above; Beyani’s characterization of the African Commission’s holding as a ‘duty’, when in fact it merely ‘urged’ Kenya to facilitate Ouko’s return to Kenya, might mean that his argument is somewhat overstated.

(186) HRC ‘General Comment No 27: Freedom of Movement’ (2 November 1999) para 19.

(187) Chetail (n 17) 47.

(188) Hathaway (n 2) 119.

(189) See Chapter 2, section D and Chapter 3, section C.4.

(190) Mouvement des réfugiés mauritaniens au Sénégal pour la defense des droits de l’homme v Sénégal comm no 254/02, sixteenth Annual Activity Report of the Af Cm HPR (2003).

(192) ibid 2.

(193) For related analysis of a similar issue on the international plane, considering the duty owed by a host state to the country of origin in relation to hostile activities undertaken by exiled dissidents, see Steven Corliss, ‘Asylum State Responsibility for the Hostile Acts of Foreign Exiles’ (1990) 2 IJRL 181.

(194) African Charter (n 3) art 9(2) (emphasis added).

(195) ibid art 10(1) (emphasis added).

(196) ibid art 11.

(197) Media Rights Agenda (n 63) para 66.

(198) ICCPR (n 30) art 19.

(199) ibid arts 21–22.

(200) African Charter (n 3) art 23(2).

(201) Bekker (n 151) 17.

(202) See Chapter 3, section C.4.

(203) Chetail (n 17) n 143.

(204) Moreover, article 23(2) is open to challenge as it purports to limit rights on the basis of refugee status, which is arguably prohibited by the Charter’s article 2 accessory non-discrimination provision.

(205) The Lawyers Committee did not consider that the prohibition of subversive activities might also impugn freedom of assembly.

(206) Lawyers Committee for Human Rights, African Exodus: Refugee Crisis, Human Rights and the 1969 OAU Convention (Lawyers Committee for Human Rights 1995) 93.

(207) Hathaway (n 2) 119, n 177.

(208) Chetail (n 17) n 143.

(209) Alison Vadachalam, ‘Does the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa Article III Provision Prohibiting “Subversive Activities” Unjustifiably Limit the Freedom of Expression of a Refugee?: A South African Answer’ (2014) University of Cape Town Refugee Rights Unit Working Paper No 1 <http://www.refugeerights.uct.ac.za/usr/refugee/Working_papers/Working_Paper_1_of_2014.pdf> accessed 12 January 2015.

(210) Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 31(3)(c).

(211) Fragmentation Report (n 156) para 413.

(212) Adopted at the 32nd Ordinary Session (17–23 October 2002) art I(1).

(213) ibid art II(2).

(214) Fragmentation Report (n 156) paras 410–11.

(215) ibid paras 130–31.

(216) ILC (n 173) para 10.

(217) During drafting of the 1969 Convention, 50 kilometres was raised as being a ‘reasonable distance’; however, the drafters ultimately decided not to specify a particular distance, including because this would have not made sense in the context of small states such as Gambia, Lesotho, and Swaziland (UNHCR Representative Cosmas Chanda, Third AU Humanitarian Law and Policy Training, Livingstone, Zambia, 21 March 2018).

(218) See, generally, Lucy Hovil and Moses C Okello, ‘The Right to Freedom of Movement for Refugees in Uganda’ in David Hollenbach (ed), Refugee Rights: Ethics, Advocacy and Africa (Georgetown University Press 2008) 78.

(219) African Charter (n 3) art 12(1) (emphasis added).

(220) Malawi African Association and Others v Mauritania comm nos 54/91, 61/91, 98/93, 164/97 to 196/97 and 210/98, 13th Annual Activity Report of the Af Cm HPR (2000) para 126.

(221) See section D.2.a.

(222) See Chapter 4, section D.2.a.

(223) Kituo Cha Sheria, Abebe Dadi Tully, Ahmed Bashir Mohamed, Eugene Bwimana, Dachassa Galdi Nure, Muhima Sebihendo Joh, Mbuzukongire Nzabona and Said Abdullahi Abukar v the Attorney General, Petition Nos 19 and 115 of 2013, High Court of Kenya (26 July 2013) para 48.

(224) ibid para 12.

(225) ibid paras 37–38.

(226) ibid paras 50–57.

(227) ibid para 59.

(228) Samow Mumin Mohamed and Others v Cabinet Secretary, Minister of Interior Security and Co-ordination and others, Petition No 206 of 2011, High Court of Kenya (30 June 2014) para 27.

(229) Security Laws (Amendment) Act, No 19 of 2014 (Kenya) s 47.

(230) Coalition for Reform and Democracy, Kenya National Commission on Human Rights and Samuel Njuguna Ng’ang’a v Republic of Kenya and Attorney General, Petition Nos 628 and 630 of 2014 and Petition No 12 of 2015, High Court of Kenya (23 February 2015) paras 394–403.

(231) ibid para 400.

(232) Attorney General v Kituo Cha Sheria & 7 Others [2017] eKLR.

(233) Norwegian Refugee Council and Samuel Hall, ‘Living Out of Camp: Alternative to Camp-Based Assistance for Eritrean Refugees in Ethiopia’ (2014) <http://samuelhall.org/wp-content/uploads/2014/05/Living-Out-of-Camp-Alternative-to-Camp-based-Assistance-in-Ethiopia.pdf> accessed 25 April 2017, 16.

(234) UN, ‘Summary Overview Document: Leaders’ Summit on Refugees’ (2016) <https://refugeesmigrants.un.org/sites/default/files/public_summary_document_refugee_summit_final_11-11-2016.pdf> accessed 25 April 2017.

(235) (n 23) chap 6.

(236) (n 17).

(237) (n 2) chap 2.

(238) James C Hathaway, ‘Reconceiving Refugee Law as Human Rights Protection’ (1991) 4 JRS 113, 113.

(239) See, for example, Oona A Hathaway, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111 Yale LJ 1935; Eric Posner, ‘The Case Against Human Rights’ (The Guardian, 4 December 2014) <https://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights> accessed 6 December 2017.

(240) Frans Viljoen and Lirette Louw, ‘State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights 1994–2004’ (2007) 101 AJIL 1.