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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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The Organization of African Unity and the African Union

The Organization of African Unity and the African Union

Chapter:
(p.155) 6 The Organization of African Unity and the African Union
Source:
The Regional Law of Refugee Protection in Africa
Author(s):

Marina Sharpe

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198826224.003.0006

Abstract and Keywords

Chapter 6 covers OAU and AU engagement with refugee issues from 1963 to 2018. Section B relates to the OAU, beginning with its refugee-related bodies. Select special refugee initiatives, in the form of conferences and summits, are then addressed. Section C relates to the AU, beginning with an overview of its constituent organs. AU refugee-related bodies are then discussed. The final sub-section relates to AU initiatives that are not refugee specific but may nevertheless impact upon refugees, including a discussion of the AU’s ongoing initiative for the free movement of persons on the continent. Section D concludes and includes a discussion of Rwandan President Paul Kagame’s initiative to reform the AU.

Keywords:   1969 OAU Convention, African Union, Bureau for the Placement and Education of African Refugees, Common African Position on Humanitarian Effectiveness, Division of Humanitarian Affairs, Refugees and Displaced Persons, Humanitarian Policy Framework, free movement of persons, Organization of African Unity

A. Introduction

The Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (1969 Convention) was an Organization of African Unity (OAU) project, as described in Chapter 2. While the Convention’s adoption was lauded, both the OAU and the African Union (AU) have been criticized for failing to create any self-sustaining institutional implementation mechanism such as a treaty body.1 However, while the 1969 Convention has indeed not been operationalized in this sense, it has underpinned all OAU and AU efforts in favour of refugees, reinforcing diplomacy, advocacy, and policy.2 In other words, the Convention has been implemented in a general sense by OAU and AU political organs.3 These bodies have highlighted refugee issues through resolutions, decisions, and declarations;4 the OAU’s Secretary-General regularly reported on refugees to the OAU’s (p.156) Council of Ministers (OCM); and both the OAU and the AU have established refugee-related bodies, organized conferences focused on refugee issues, and addressed refugees within more general instruments and initiatives. Such engagement is the focus of this chapter.

Analysis in this regard is critical because accounts of AU engagement with refugee issues are few.5 Similarly, evaluations of the OAU’s refugee work are either out of date or focus on only one aspect of engagement.6 Informed by these few secondary sources, primary archival and interview research conducted at the Office of the United Nations High Commissioner for Refugees (UNHCR) in Geneva in June 2011 and in Addis Ababa in January 2012, primary interview research conducted at the AU Commission in Addis Ababa in January 2012 and December 2016, and primary research using OAU and AU materials, this chapter consolidates knowledge of OAU and AU refugee engagement from the time of the continental organization’s founding in 1963 up to 1 January 2018.7

The section following this introduction relates to OAU engagement with refugee issues subsequent to the adoption of the Convention in 1969, beginning with the OAU’s refugee-related bodies.8 Each is addressed in turn, beginning with the Commission of Ten (later of Fifteen, then of Twenty, and finally of all member states) on Refugee Problems in Africa (Commission). This is followed by the Bureau for the Placement and Education of African Refugees (BPEAR or the Bureau) and then the Coordinating Committee on Assistance to Refugees (CCAR). Select special refugee initiatives, in the form of conferences and summits, are then addressed, with specific attention devoted to the OAU’s commemorations of significant anniversaries of the 1969 Convention.

Section C relates to the AU, beginning with an overview of its constituent organs. Among these, the Executive Council has engaged most frequently with refugee policy; its activities in this regard are therefore covered in a dedicated section. The AU’s refugee-related bodies are then discussed, starting with the Specialized Technical Committee (STC) on Migration, Refugees and Internally Displaced Persons (STC on Migration, Refugees and IDPs). This is followed by discussions of the Permanent Representatives’ Committee (PRC) Sub-Committee on Refugees, Returnees and (p.157) Internally Displaced Persons in Africa (PRC Sub-Committee); the Coordinating Committee on Forced Displacement and Humanitarian Action (CCFDHA); and the Department of Political Affairs’ Division of Humanitarian Affairs, Refugees and Displaced Persons (HARDP). The final sub-section within section C relates to AU initiatives that are not refugee specific but nevertheless devote some attention to, or impact upon, refugees. These are the Conference on Security, Stability, Development and Cooperation in Africa (CSSDCA); the Peace and Security Council (PSC); the Solemn Declaration on a Common African Defence and Security Policy and the related AU Non-Aggression and Common Defence Pact; the African Charter on Democracy, Elections and Governance; Agenda 2063, which envisions the continental free movement of persons; and, finally, the AU’s recent major humanitarian initiatives: its Humanitarian Policy Framework (HPF) and the Common African Position on Humanitarian Effectiveness (CAP). Section D concludes and includes a discussion of ongoing AU reform efforts.

B. OAU Engagement with Refugee Issues: 1963 to 2001

The 1969 Convention clearly contemplates OAU involvement with refugees. ‘In order to enable the Administrative Secretary-General of the … [OAU] to make reports to the competent organs of the’ OAU, article VII of the Convention requires that member states ‘provide the Secretariat … with information and statistical data requested concerning: (a) the condition of refugees; (b) the implementation’ of the Convention and ‘(c) laws, regulations and decrees which are, or may hereafter be, in force relating to refugees’. In addition to this role for the Secretary-General, the OAU also created a number of dedicated refugee-related bodies. Each is addressed in turn.

1. The OAU’s refugee-related bodies

(a) The Commission of Ten/Fifteen/Twenty/the Whole on Refugee Problems in Africa

Following the OCM’s 1964 recommendation that the Commission become a permanent OAU body, discussed in Chapter 2, its work focused on drafting the regional instrument. Once the 1969 Convention was adopted, the Commission’s work ceased. It was revived at the OCM’s 19th Ordinary Session, held in Rabat, Morocco, in June 1972, when the OCM called on the OAU Secretariat to reconvene the Commission ‘to consider the current situation of refugees in Africa and the necessary measures to be taken with a view to their assistance and voluntary repatriation and their resettlement’.9

(p.158) The Commission duly reconvened in Addis Ababa in December 1972, producing a report that was adopted by the OCM at its 20th Ordinary Session in February 1973.10 The resolution adopting the Commission’s report was the first to officially refer to it as the ‘Commission of Ten on Refugee Problems in Africa’.11 Thereafter, the Commission began to meet annually and submit regular reports to the OCM on ‘the situation of refugees, returnees and displaced persons in Africa, focusing on the contribution of the … [OAU] in favour of those uprooted’.12 The Commission thus became the main OAU policy-making organ on refugee matters, shaping the continental body’s response to refugee issues.13 Its activities included undertaking fact-finding missions, providing governments with advice, and the provision of emergency financial assistance to states in need.14 Okoth-Obbo compares the Commission to UNHCR’s Executive Committee (ExCom).15

In 1980 it was decided that the Commission’s membership should rotate and be expanded to include fifteen states.16 Initial members were Angola, Cameroon, Mali, Niger, Nigeria, Senegal, Sudan, Swaziland, Tanzania, Uganda, Zaire (now the Democratic Republic of the Congo), Zambia, Zimbabwe, and two further countries, to be selected by North African states.17 In 1994 the Commission membership was further expanded to twenty states, whose tenure did not rotate.18 These states were Algeria, Angola, Cameroon, Côte d’Ivoire, Egypt, Gabon, Kenya, Libya, Malawi, Mali, Mozambique, Niger, Nigeria, Senegal, Sudan, Uganda, Tanzania, Zaire, Zambia, and Zimbabwe.19 Soon after its expansion to twenty states, the Commission’s workings were formalized through the adoption of Rules of Procedure, which defined the functions of the Commission in almost exactly the same terms as had been used in 1964, when the Commission was first convened as an ad hoc body.20 In 1998 the Commission was again enlarged, this time to include all OAU member states;21 its Rules of Procedure were revised accordingly.

(p.159) The Commission played an important role in shaping and communicating the OAU’s approach to specific refugee situations.22 Notably, it adopted the 1990 Khartoum Declaration on Africa’s Refugee Crisis, which assessed national, subregional, regional, and international responses to refugees in Africa and recommended follow-up action to be taken by the OAU and the international community.23 At its 64th Ordinary Session in 1996, the OCM adopted a ‘Programme of Action’ for the Commission. The activities proposed were grouped under four themes: the mobilization of resources; public sensitization; building the capacity of African states to manage emergency situations; and ‘other activities’, a deceptively simple heading for what was actually the massive task of implementing OCM and OAHG resolutions on refugees and displacement.24

Oloka-Onyango judged the Commission as ineffective, finding it ‘constrained by its very composition and relationship to the OAU decision-making processes, which are ultimately politically controlled. … Thus the extent of the impact of the … [Commission] is clearly limited by considerations of Realpolitik, as well as by the very real constraint of the “non-interference” clause that still holds considerable sway in Africa’.25 The Commission nevertheless survived the OAU’s transformation into the AU,26 though it was renamed the PRC Sub-Committee, which is discussed in section C.27

(b) The Bureau for the Placement and Education of African Refugees

The BPEAR28 was created on 1 March 1968 further to recommendation XI of the 1967 Conference on the Legal, Economic and Social Aspects of African Refugee Problems,29 which is discussed later in this section, with the task of promoting the resettlement and employment of African refugees and collecting and disseminating information concerning educational, training, and employment opportunities for them.30 The intention was that the Bureau would function as a continental academic and occupational placement system for refugees.31 Its mandate, however, expanded in practice over time to include functioning as an information conduit to member states and the international community on the patterns, causes, and consequences of refugee movements in Africa, equipping refugees with resources to (p.160) assist them in coping with their displacement and eventual repatriation, mediating between host states and refugees regarding alleged violations of national law and working with UNHCR, voluntary agencies, and member states to further the objectives of the 1969 Convention.32

Initially, BPEAR undertook these tasks as an autonomous body. It was entirely independent of the OAU, funded by outside sources (principally UNHCR) and operated through a system of Bureau representatives, known as national correspondents, placed within the executives of OAU member states. A standing committee of UN agencies—namely UNHCR; the International Labour Organization; the Economic Commission for Africa (UNECA); the Educational, Scientific and Cultural Organization; and the Development Programme—advised it on operational matters and the Bureau received policy advice from a consultative board composed of the same agencies plus an OAU representative and non-governmental organization (NGO) observers.33 In 1970, BPEAR’s standing committee and consultative board merged and became known as the Bureau’s coordinating committee.

In 1971 BPEAR was placed under the supervision of the OAU’s Assistant Secretary-General for Political Affairs.34 In 1974 the Bureau was further integrated into the OAU Secretariat pursuant to the recommendations of a Commission report, becoming part of the OAU Secretariat’s political department both organizationally and financially.35 The 1974 restructuring also enlarged BPEAR’s mandate to include legal assistance to refugees and rural resettlement programmes, and gave the Bureau a formal role in assisting the Commission in the formulation of OAU refugee policy.36

Oloka-Onyango’s extensive analysis of the BPEAR concluded that it had

great difficulty in meeting the conditions of its establishing mandate, and effectively expanding that mandate to deal with the critical issues concerning African refugees presently. The problems of the Bureau for Refugees basically stem from two factors: first, the fashion in which it has conceptualized its role, which is also a function of the influence of the OAU over its programming. The second issue relates to the question of finances.37

Others have echoed his view. Nobel, for example, explains that while ‘potentially helpful, the BPEAR has been a disappointment due to what appears to be incompetence and mismanagement. A critical analysis has identified problems in the lack of efficient correspondents in member states, lack of economic support, and perhaps, weaknesses inherent in the OAU system itself’.38 Such generalized problems translated into quite specific failures. For example, the Bureau started but ultimately abandoned a project on domestic implementation of the 1969 Convention.39 (p.161) Furthermore, Chartrand observed a disjuncture between the efforts of and investment in the Bureau on the one hand, and the number of refugees actually placed in employment or education on the other.40

In the early nineties BPEAR was renamed the Bureau for Refugees, Displaced Persons and Humanitarian Assistance.41 This further change did not solve its problems: ‘conceptually, the successive changes in the nomenclature of the bureau may reflect a metamorphosing mandate, and are in part reflective of the role that the bureau was supposed to play in the ever-changing refugee situation on the continent. However, in practical terms the operations of the office have remained largely the same since its inception’.42 Thus, not surprisingly, the transition from the OAU to the AU marked the Bureau’s demise.43 Its coordinating committee did, however, survive, but under another name, as explained in the next sub-section.

(c) The Coordinating Committee on Assistance to Refugees

As mentioned above, the standing committee and consultative board formed to advise BPEAR merged in 1970 to form the Bureau’s coordinating committee.44 In 1974 as part of the BPEAR restructuring described earlier in this section, the coordinating committee’s membership was expanded to include representatives from the Executive Secretariat of the OAU’s Liberation Committee and the Chairman of the Annual Conference of Liberation Movements, and its role was formalized.45 Then, in 1981, the coordinating committee was renamed the CCAR and given a specific mandate to assist the OAU’s Secretary-General with the organization of the International Conference on Assistance to Refugees in Africa (ICARA), which is described later in this section. In spite of this specific mandate, the CCAR also evolved into an advisory committee to the Commission and a liaison body between BPEAR and the outside agencies that provided it with organizational support and funding.46

According to Oloka-Onyango, the CCAR was not as successful as it might have been in fulfilling its broader mandate. He explains that

even in the admission of members of the CCAR, it is clear that the Committee has not done as much as it could have, particularly in terms of meeting financial commitments made to Bureau programmes. At present, this body is largely inactive, in part because of the relative malaise of the Bureau, but also because the members of the committee do not fully believe in its effectiveness, or in the capacity of the OAU to tackle the refugee question in a forthright, non-political fashion.47

Despite these issues, the CCAR, like the Commission, survived the transition to the AU, becoming the Coordinating Committee on Assistance and Protection to Refugees, Returnees and Internally Displaced Persons (CCAPRRI). It is now known as the CCFDHA. Its role is described in section C.

(p.162) 2. Special refugee initiatives

In addition to establishing bodies dedicated to refugees, the OAU convened or co-convened several major conferences and meetings devoted to aspects of refugee protection in Africa. Twelve years after the 1967 Addis Ababa conference discussed in Chapter 2,48 the OAU co-hosted its next significant gathering devoted to refugees: the Pan-African Conference on the African Refugee Problem, held in Arusha, Tanzania, on 7–17 May 1979.49 While the conference was hosted by the OAU and UNHCR, with assistance from UNECA, it was an initiative of the All African Conference of Churches. The umbrella organization

sensed that a new refugee conference was needed primarily to document the sufferings and problems of large numbers of refugees before their existence could be denied completely by many political leaders of independent Africa. Equally important was the task of discussing these difficulties and possible solutions with the international community, the intergovernmental organizations, the nongovernmental organizations, and the voluntary agencies.50

The conference was attended at ministerial level by thirty-eight OAU member states, as well as by twenty non-African countries, five officially recognized liberation movements, sixteen intergovernmental and regional organizations and thirty-seven NGOs.51 It adopted a range of recommendations, which can be divided into two categories: legal and protection issues, and the socioeconomic, institutional, administrative, and financial issues refugees can create.52 Among recommendations in the first category, recommendation seven called on OAU member states that had not already done so to ratify the 1951 Convention, the Protocol relating to the Status of Refugees (1967 Protocol), and the 1969 Convention and to incorporate them into domestic law.53 The OCM endorsed the conference’s recommendations,54 which subsequently received the support of the General Assembly of the UN (UNGA).55

Following the Arusha conference, the OAU and UNHCR constituted a joint working party for the implementation of its recommendations. The working group met for the first time in May 1980 in Addis Ababa and ultimately recommended a plan of action.56 At its second meeting, the working party adopted model legislation for the domestic implementation of the 1969 Convention, which ultimately influenced how many states incorporated the treaty.57

The next major conference to address refugees in Africa was convened not by the OAU but by the UN Secretary-General further to an OCM resolution, which (p.163) invited the ‘Secretary-General of the OAU in collaboration with the UN Secretary-General and … [UNHCR] to hold consultations with governmental and non-governmental organizations as well as governments of countries which are likely to offer contributions and the UN Specialized Agencies, in order to assess the possibility of holding a pledging conference for African refugees under the auspices of the’ UN.58 The UNGA subsequently noted the inadequacy of the assistance provided to African refugees59 and the UN Secretary-General, in cooperation with the OAU and UNHCR, accordingly convened ICARA to ‘mobilize assistance for refugees in Africa’.60 ICARA was held on 9–10 April 1981 in Geneva and raised US$558 million,61 however none of these funds was allocated directly to the OAU. Rather, they went to cover UNHCR programmes in Africa. The OAU had by then, however, established a Special Refugee Contingency Fund, which received two per cent of the OAU’s regular budget62 and which UNHCR contributed to.

The OAU Secretariat convened a meeting of NGOs involved in assisting refugees in Africa on 21–25 March 1983 in Arusha. While not on the same scale as the Arusha meeting before it, the gathering’s opening address was delivered by Tanzanian President Julius Nyerere, suggesting that the refugee issue remained high profile. The meeting produced a range of recommendations under twelve broad headings,63 including ‘Preparation for ICARA II’. Indeed, further to the success of ICARA, a second fundraising conference was at the request of the UNGA64 convened by the UN Secretary-General, the OAU, and UNHCR in Geneva from 9–11 July 1984. This time, however, funds were raised for UNHCR as well as to assist African host countries, fourteen of which submitted 128 proposals for specific infrastructural projects.65 ICARA II also resulted in the adoption of a Declaration and Programme of Action aimed at an effective long-term strategy for African refugees.66

While preparations for ICARA II were ongoing, the OAU turned its attention from fundraising back to substantive issues, in particular to the situation of refugees from the racist regime in South Africa. At its 40th Ordinary Session, held in Addis Ababa in February and March 1984, the OCM called on the Southern African Development Co-ordinating Conference (now the Southern African Development Community) to organize, in collaboration with the OAU, UN, and UNHCR, ‘an (p.164) international conference on all aspects of the refugee problem in Southern Africa, in order to co-ordinate and harmonize approaches to refugee matters’.67 In July 1986 the OCM called for substantive preparations to begin.68 The conference, titled ‘International Conference on the Plight of Refugees, Returnees and Displaced Persons in Southern Africa’ (SARRED), was held in Oslo, Norway, on 22–24 August 1988. It resulted in the adoption of the Oslo Resolution, Declaration and Plan of Action on the Plight of Refugees, Returnees and Displaced Persons in Southern Africa,69 which was subsequently endorsed by the OCM.70

Just as South Africa’s apartheid regime had focused OAU attention on refugees in southern Africa, resulting in SARRED, the 1994 Rwandan genocide and ensuing refugee crisis led to a series of initiatives focused on the Great Lakes region. First was the OAU/UNHCR Regional Conference on Assistance to Refugees, Returnees and Displaced Persons in the Great Lakes Region, held in Bujumbura, Burundi, on 12–17 February 1995. This meeting resulted in a plan of action; the UNGA later reiterated that the plan continued ‘to be a viable framework for the resolution of the refugee and humanitarian problems in that region’.71 Its implementation led to a series of follow-up meetings.72 On 8–9 May 1998 the OAU and UNHCR held another regional meeting on refugee issues in the Great Lakes region, this time in Kampala. Around the same time, there was also a focus on refugee women and children as particular populations of concern: on 12–15 October 1998 the OAU convened in Addis Ababa its Regional Seminar on Enhancing the Participation of Returnee, Refugee and Internally Displaced Women and Children in Reconstruction, Rehabilitation and Peace-Building. The seminar adopted a plan of action.73

(p.165) Many of the OAU’s special refugee initiatives were organized in partnership with UNHCR and other UN agencies. However, one of the last refugee-related gatherings before the OAU became the AU was an exclusively OAU affair: the OAU Ministerial Meeting on Refugees, Returnees and Internally Displaced Persons in Africa, held in Khartoum, Sudan, on 13–14 December 1998. The meeting produced both a declaration74 and recommendations.75 The former included an appeal for states to ratify the 1951 Convention, its 1967 Protocol, and the 1969 Convention, and to domesticate and implement them. The latter consisted of thirty-four recommendations grouped under seven broad themes.76

(a) Commemorations

The OAU has marked significant anniversaries of the 1969 Convention’s adoption. The first such initiative was held further to an OCM resolution, to mark the twenty-fifth anniversary of the Convention’s adoption and twenty years since its entry into force.77 The gathering was co-convened by the OAU and UNHCR and titled ‘Commemorative Symposium on Refugees and the Problems of Forced Population Displacements in Africa’.78 UNHCR’s ExCom called the Symposium ‘one effective way of highlighting the contribution of the OAU Convention to refugee protection and solutions in Africa and indeed in other regions of the world’ and noted that it would ‘highlight the continuing crises of forced displacements in Africa’.79

Held on 8–11 September 1994 in Addis Ababa, the symposium produced the Addis Ababa Document on Refugees and Forced Population Movements in Africa.80 It included thirty-four recommendations grouped under ten headings.81 Among the recommendations, number five called on states to ratify, uphold, domesticate, and implement the 1969 Convention. While the symposium was a success (p.166) in terms of the number of participants it attracted—340 from OAU member states, other states, UN agencies, and NGOs—it failed to advance thinking on substantive issues. Rather, it ‘succeeded mainly only in echoing the familiar call urgently to address the root causes of refugee flows and other forms of coerced population movements. Having not tackled root causes with any rigour, it also could not etch out clearly the essential legal, policy, and operational groundmarks for tackling those issues in a concrete and result-producing manner’.82

In addition, to mark the 1969 Convention’s 1994 anniversaries, the OAHG adopted the ‘Tunis Declaration on the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa’. The Tunis Declaration remarks upon ‘the wisdom’ of the 1969 Convention, given that it has ‘ensured the very survival of the institution of asylum itself and its humanitarian character where the character of refugee flows has sometimes threatened the very fabric of brotherhood and peaceful coexistence between States’.83 The Declaration goes on to state that the 1969 Convention provides ‘a solid cornerstone for refugee policy and state practice in the reception of, grant of asylum to, and treatment of, asylum seekers and refugees, as well as for the implementation of voluntary repatriation’. However, the Declaration also recognizes ‘the continuing crises of displacement in the continent’ and the heads of state and government ‘reiterate’ their ‘unflinching determination to eradicate the root causes of refugee flows in Africa’.84

The next commemorative initiative was a meeting of government and non-governmental experts in Conakry, Guinea, on 27–29 March 2000, to mark the thirtieth anniversary of the 1969 Convention’s adoption.85 This meeting, co-convened by the OAU and UNHCR, ‘consolidated the OAU’s approach [to refugees] and directed the way in which it would operate in the future’86 and resulted in the Comprehensive Implementation Plan.87 This was subsequently endorsed by the OCM,88 referred to by the OAHG,89 and is considered the regional complement to the 2002 Agenda for Protection,90 which resulted from the Global Consultations on International Protection convened by UNHCR in 2000.91

(p.167) The recommendations contained in the Comprehensive Implementation Plan suggested that UNHCR and the OAU convene a working group to consider amendments to the 1969 Convention,92 including the designation of an oversight body.93 Another directed UNHCR to conclude a memorandum of understanding with the African Commission on Human and Peoples’ Rights (African Commission), in order to strengthen ‘its monitoring capacity and programme of work with respect to the human rights of refugees and asylum-seekers’.94 This memorandum of understanding was ultimately concluded in 2003; it is discussed in Chapter 7.95

The recommendations concerning amendments to, and oversight of, the 1969 Convention, by contrast, were not implemented as a direct result of the Comprehensive Implementation Plan. However, an expert report emanating from the AU’s First Ministerial Meeting on Human Rights, held in Kigali in May 2003, identified the African Commission as having oversight of the 1969 Convention;96 this is also discussed in Chapter 7.97 Additionally, in May 2004, a group of experts met in Addis Ababa to review all OAU and AU treaties and consider the conclusion of new treaties. The AU’s Executive Council took note of the experts’ report and decided that ‘the 1969 … Convention … should be retained in its present form’, that the ‘safety and security of refugees and host countries as well as all other areas not covered by the OAU 1969 Convention should be addressed through soft law; through the adoption of annual decisions of the Assembly’ and that the ‘specific needs of … [IDPs] such as protection and assistance should be addressed through a separate legal instrument’.98 This ‘separate legal instrument’, the Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), was adopted in 2009.99 More generally, in 2004 the AU’s Executive Council requested that the AU Commission ‘continue the implementation of the Comprehensive Implementation Plan (CIP) adopted in Conakry (Guinea) in March 2000, in close partnership with the UNHCR’.100

The thirtieth anniversary of the 1969 Convention’s adoption was the last time the instrument was commemorated in any major way. However, the AU’s Executive Council recently recognized that 2019 is the fiftieth anniversary of the Convention’s adoption; this is discussed below.101

(p.168) The Comprehensive Implementation Plan adopted in Conakry and indeed most recommendations flowing from the OAU’s various special refugee initiatives are sound. However, there is reason to be sceptical. As an NGO delegate to the 1994 Commemorative Symposium remarked, ‘there is no shortage of declarations, recommendations, or plans of action to solve the refugee and displacement crisis in Africa. If even half of these were to be implemented, there would be virtually no refugees or displaced persons in Africa today and none for the whole of the twenty-first century’.102 The number of declarations, recommendations, and plans of action emanating from African gatherings devoted to refugees—whether commemorative or otherwise—evidences the essential truth of this somewhat sweeping observation. If even one plan of action were successfully implemented, there would be little need for those coming after it. Indeed, Okoth-Obbo notes that conference documents have not shown a record of implementation commensurate with the effort and cost of their elaboration.103

Such documents do, however, provide a historical record of the OAU’s evolving approach to refugees. The OAU initially viewed refugees predominantly as a threat to interstate relations, an approach discussed in Chapters 2 and 3 and reflected in the 1969 Convention. Later, the relationship between refugees and development came to the fore.104 Finally, increasing regard for human rights resulted in recognition of the linkages between human rights violations and forced population displacement.105 Indeed, recognition of the importance of human rights—for which the OAU had no clear mandate—contributed to the decision to replace the OAU with the AU. Not surprisingly, therefore, the connection between the protection and promotion of human rights on the one hand and refugees on the other was a salient feature of the AU’s initial engagement with refugees. Such engagement is detailed in the next section.

C. AU Engagement with Refugee Issues: 2001 to 2018

The end of the Cold War precipitated major political change in Africa. Democracy began to take root and in 1990 Namibia, the last African country under colonial rule, gained its independence. The first formal indication of the OAU’s declining relevance within this new political landscape came in the form of the 1990 Declaration on the Political and Socio-Economic Situation in Africa,106 which acknowledged that the ‘era of focusing mainly on “political liberation and nation building” should (p.169) make way for a new era of greater emphasis on economic development and integration’.107 This economic development agenda was concretized in 1991 with the adoption of the Treaty Establishing the African Economic Community (Abuja Treaty),108 which created the African Economic Community (AEC). Its primary objective was ‘to promote economic, social and cultural development and the integration of African economies’109 through the gradual coordination of the continent’s existing subregional economic communities and the establishment of new policies, programmes, and institutions over thirty-four years.110 Only eight years later, however, African leaders committed to forming an African union that would fast track the creation and implementation of the institutions contemplated by the Abuja Treaty.111

1. The AU

This new norm-setting continental institution superseded the OAU and incorporated the AEC on 26 May 2001, when its Constitutive Act entered into force.112 Viljoen describes it as ‘essentially a merger of the largely political ambitions of the OAU and the mainly economically minded AEC, with the addition of some organs and with an acceleration of pace in economic integration’.113 The AU’s objectives thus reflect the Abuja Treaty’s economic development agenda while also recognizing the importance of social and democratic development and according particular prominence to human rights. Of the AU’s sixteen ‘guiding principles’, six make either explicit or implicit reference to human rights,114 and the AU’s ‘objectives’ are similarly human rights focused. According to its Constitutive Act, the AU aims to achieve unity and solidarity among African states and peoples; defend the sovereignty, territorial integrity, and independence of its member states; accelerate African political and socioeconomic integration; promote and defend common African positions; encourage international cooperation; promote peace, security, stability, democracy, good governance, and human and peoples’ rights; foster strong African participation in the global economy and international relations; promote sustainable development, the integration of African economies, and cooperation in all fields of human activity; coordinate and harmonize policies across the various regional economic communities; promote research; and engage in international cooperation for public health.115 According to Viljoen, the AU ‘not only sets out to attain human rights objectives but also intends to use human rights-based means (or principles) to achieve those objectives’, which ‘evidences its resolve to make a clean break from the OAU’s modus operandi’.116

(p.170) The AU’s machinery to achieve its range of goals is more extensive than was that of the OAU.117 The AU Commission is the regional body’s Addis Ababa-based secretariat.118 It is headed by the chairperson, under whom sits a deputy chairperson and eight commissioners. The AU Commission has twelve departments, each of which handles a discrete portfolio,119 one of which is political affairs. Commission responsibility for humanitarian affairs generally and refugees in particular is located within the Department of Political Affairs.

The AU’s supreme organ is its Assembly of Heads of State and Government (Assembly), which determines AU policies.120 The Executive Council is composed of member state foreign ministers. It also sets AU policies and monitors policy implementation.121 AU summits, at which the Assembly and Executive Council convene to set AU policy by way of decisions, declarations, and resolutions, occur twice per year in January and July. The January summit is always held at the AU Commission in Addis Ababa, while the July summit is often held elsewhere on the continent.

The PRC is composed of Addis Ababa-based diplomats accredited to the AU and is charged with preparing the work of the Executive Council and executing its instructions.122 In practice, however, the PRC supervises day-to-day AU Commission operations. The STCs are composed of relevant member state ministers and senior officials. STCs set policy as instructed by the Executive Council and work on policy implementation.123 The PSC makes decisions on the prevention, management, and resolution of conflicts.124 The Pan-African Parliament is the AU’s legislative arm, with members elected by member state legislatures.125 The AU’s financial institutions are the African Central Bank, the African Investment Bank, and the African Monetary Fund.126 The Economic, Social and Cultural Council is an advisory organ composed of social and professional groups from member states.127 The AU also includes ad hoc bodies, such as the Panel of the Wise, a panel of eminent persons mandated to prevent conflict.

(p.171) The legal organs are the AU Advisory Board on Corruption and the AU Commission on International Law; the African Court of Justice, mandated to adjudicate member state disputes under AU treaties, exists only on paper128 and in practice any such disputes would be resolved using ad hoc mechanisms such as arbitration. The human rights institutions are the African Commission, the African Court on Human and Peoples’ Rights (African Court), and the African Committee of Experts on the Rights and Welfare of the Child.

The AU’s approach to refugees was initially strongly linked to its focus on human rights. This connection was first evidenced in the Kigali Declaration, the outcome of the First AU Ministerial Conference on Human Rights. The Declaration called on member states to recognize forced displacement as a grave violation of the human rights to peace, security, and dignity.129 The centrality of human rights in the AU’s approach to refugees was in part the result of changing patterns of forced displacement. When the OAU first addressed refugee protection with the 1969 Convention, the major cause of forced displacement was colonial occupation, but as time progressed, civil war became a major cause of refugee outflow. In addition to focusing attention on human rights, this new cause of displacement also served to widen the AU’s focus: whereas the OAU had primarily been focused on refugees, the AU pays equal attention to IDPs and returnees, and has recently viewed all three within a broader humanitarian context.

While the transformation of the OAU into the AU heralded a more rights-based approach to refugees and brought IDPs and returnees to the fore, the transition was also a missed opportunity. The adoption of the AU’s Constitutive Act raised the prospect of creating a dedicated continental refugee body,130 or at the very least the opportunity of creating a body to formally supervise the 1969 Convention. Neither of these opportunities was seized. Instead, the AU developed several bodies responsible for refugee issues with distinct political, advisory, and technical roles. These are discussed in turn below, following a general discussion of refugee policy-making by the AU’s Executive Council and in other ministerial fora.

2. Executive Council and ministerial refugee policymaking

The AU’s Executive Council is composed of member state foreign ministers. It meets biannually at AU summits, and sometimes at extraordinary summits, to set AU policy or to delegate policymaking to the STCs and to direct the AU Commission’s policy implementation work. The Executive Council’s refugee-related decisions are cited as relevant throughout this chapter, however its most significant refugee policy decisions are addressed here.

(p.172) Most recently, at its 31st Ordinary Session, held at the 29th AU Summit in June and July 2017, the Executive Council adopted its ‘Decision on [the] Humanitarian Situation in Africa’, which paid particular attention to refugees. In the decision, the Executive Council expressed ‘deep concern … regarding [the] situation of refugees in Africa’ and called on ‘all stakeholders, Member States and international organizations to look at the root causes of refugees in Africa, working collectively on finding solutions to conflicts on the continent’.131 It also commended member states for their ‘invaluable efforts … in hosting refugees and facilitating the delivery of humanitarian assistance’ and called on ‘all stakeholders to provide the necessary support in handling the refugee situation in Africa’.132 The Executive Council went on to call on the AU Commission, in collaboration with the PRC Policy Sub-Committee on the Special Emergency Assistance Fund for Drought and Famine Relief in Africa and the PRC Sub-Committee, to organize a ‘Donors’/Pledging Conference to raise resources to replenish the Special Emergency Fund for humanitarian response’.133 The decision also recognized that 2019 is the fiftieth anniversary of the adoption of the 1969 Convention and the tenth anniversary of the adoption of the Kampala Convention. In this connection, the Executive Council called on ‘the Union to declare 2019 as the Year of Refugees, Returnees and Internally Displaced Persons in Africa: “towards durable solutions to forced displacement in Africa,” and [to] develop an implementation road map’.134 The Executive Council also called on the AU to work with the regional economic communities (RECs), the UN Secretary-General, and UNHCR ‘to organize an activity that will bring global visibility to forced displacements in Africa’.135

Prior to this 2017 decision, the Executive Council’s most significant refugee-related policy decision was its adoption, in 2006, of the AU’s Migration Policy Framework for Africa. The policy framework addresses a range of migration issues, including labour migration, border management, irregular migration, internal migration, migration data, migration and development, regional cooperation, and forced displacement. In the latter context, the policy framework notes that strengthening state responses to refugee crises requires ‘further efforts at the national level to establish legislative frameworks, policies, and structures giving effect to international protection obligations; redoubling efforts to find durable solutions for refugees in collaboration with UNHCR and other national and international partners; and addressing root causes of refugee movements including conflict and instability’.136 The policy framework goes on to recommend a number of strategies to improve state refugee responses, including ratification of the 1951 Convention, 1967 Protocol, and 1969 Convention and their effective implementation. In this connection, the Executive Council highlights that the policy framework’s ‘most important’ recommendation is that the Assembly ‘and respective governments must be (p.173) monitored as to their compliance to ratified instruments and be held accountable in the event of apparent failure to comply’.137 No monitoring mechanism was ever established to give effect to this recommendation.

The Executive Council can delegate policymaking to the relevant STC.138 In theory, therefore, AU refugee policy can be set by the STC on Migration, Refugees and IDPs. However, this Committee—which is discussed in sub-section 3 below—was not established until 2009 and did not meet for the first time until 2015. Prior to this, alongside Executive Council policymaking, AU refugee policy was also formulated ad hoc at ministerial meetings. The first such AU meeting was held in Ouagadougou, Burkina Faso, on 1–2 June 2006—eight years after the OAU’s last ministerial meeting on refugees—at the behest of a 2005 Executive Council decision.139 The meeting resulted in the adoption of the Ouagadougou Declaration140 and during the gathering it was decided that ministerial meetings devoted to forced displacement should be convened every two years.

Accordingly, ministers met again in November 2008 in Addis Ababa. There they worked towards an even higher level gathering: the AU Special Summit on Refugees, Returnees and Internally Displaced Persons in Africa, which was ultimately held on 19–23 October 2009 in Kampala. The Special Summit produced the Kampala Declaration, which addressed prevention; protection; women, children and other vulnerable groups; the forging of partnerships to address forced displacement;141 and, most importantly, adopted the landmark Kampala Convention, perhaps the most significant illustration of the way in which internal displacement has come to the fore in the AU.

The AU Commission, specifically its Department of Political Affairs’ HARDP, was tasked with implementing the Kampala Declaration and was requested to formulate a plan of action in this regard.142 To build consensus around and formalize its draft plan of action, on 4–5 June 2010 HARDP convened in Addis Ababa the third meeting of ministers in charge of forced displacement matters. The ministers adopted HARDP’s plan of action, which was subsequently welcomed by the Executive Council.143 A consultative meeting aimed at implementing the plan of action was convened by HARDP on 20–21 May 2011 in Kinshasa. After this 2011 meeting, ministerial meetings on refugees were replaced by the more formal STC on Migration, Refugees and IDPs,144 in accordance with a June 2014 Assembly (p.174) decision calling on the AU Commission to operationalize all STCs by December 2014.145

3. The AU’s refugee-related bodies

(a) The STC on Migration, Refugees and IDPs

The AU’s Constitutive Act provides for seven STCs composed of member state ministers and senior officials.146 The role of each STC is to

  1. a. Prepare projects and programmes of the Union and submit in to the Executive Council;

  2. b. Ensure the supervision, follow-up and the evaluation of the implementation of decisions taken by the organs of the Union;

  3. c. Ensure the coordination and harmonization of projects and programmes of the Union;

  4. d. Submit to the Executive Council either on its own initiative or at the request of the Executive Council, reports and recommendations on the implementation of the provisions of … [the AU’s Constitutive Act]; and

  5. e. Carry out any other functions assigned to it for the purpose of ensuring the implementation of the provisions of [the AU’s Constitutive Act].147

In February 2009 the Assembly doubled the initial number of committees148 to better align the STCs with the AU Commission’s discrete portfolios.149 Among these fourteen committees is the STC on Migration, Refugees and IDPs, currently chaired by Rwanda. In June 2011, the Assembly decided the STCs should meet once every two years.150

In addition to the general STC functions cited earlier in this section, article 5 of the STC on Migration, Refugees and IDPs’ Rules of Procedure mandates the Committee to strengthen mechanisms for effective humanitarian response on the continent by establishing an African humanitarian agency;151 strengthen the (p.175) protection of, and assistance to, populations in need of humanitarian assistance, including through the formulation and implementation of AU guidelines; strengthen measures to popularize international humanitarian law and principled action; discuss the AU’s Humanitarian Policy Framework, including guidelines on disaster management, epidemic response, and the role of the African Standby Force in humanitarian emergencies.152

Despite its constitution in 2009, for several years the STC on Migration, Refugees and IDPs was—like other STCs—not formally established, its functions instead fulfilled at the sectoral ministerial meetings discussed earlier in this section.153 The first session of the STC on Migration, Refugees and IDPs occurred in November 2015, when it met over one week at the AU Commission in Addis Ababa. The meeting, which followed the usual format of an expert meeting followed by a ministerial meeting, was themed ‘Towards Humanitarian Effectiveness in Africa’. Its agenda was to adopt its Rules of Procedure; the CAP, which was to be presented to the World Humanitarian Summit (WHS) in Istanbul, Turkey in May 2016; the HPF; and the AU’s Disaster Management Guidelines.154 The report of this first session is not publicly available, but the AU Assembly took note of and approved it at its 26th Ordinary Session in January 2016,155 in the same decision in which it also adopted the CAP and resolved to establish an African Humanitarian Agency.156 These humanitarian initiatives are addressed later in this section.157

The second STC session was held in October 2017 in Kigali, Rwanda. The meeting, themed ‘Opportunities for Migration and Free Movement of Persons in Africa and Mitigating Challenges’, addressed ongoing work towards the adoption of a Protocol to the Abuja Treaty on the free movement of persons in Africa;158 the Migration Policy Framework discussed earlier in this section and a related plan of action;159 Africa’s common position in relation to the Global Compact for Safe, Orderly and Regular Migration;160 and the situation in the Horn of Africa.161 The second session of the AU’s STC on Migration, Refugees and IDPs thus focused on migration and not on refugee issues.

(p.176) (b) The PRC Sub-Committee on Refugees, Returnees and IDPs

The PRC Sub-Committee is the AU incarnation of the OAU’s Commission. It is a Committee of the whole currently chaired by Equatorial Guinea and represented by a Bureau of five member states.162 It is a decision-making body, acting on its own as well as by raising issues to the Executive Council.163 Its role includes assisting AU organs in developing and coordinating refugee policy and proposing policy to the AU’s Executive Council. Sub-Committee sessions are supposed to be held at the AU Commission at least once per month,164 but in practice they may occur less frequently.

Despite its refugee-focused nomenclature, the PRC Sub-Committee views its mandate in broader terms, as encompassing humanitarian affairs more generally.165 This may be due in part to the degree to which it relies on and defers to HARDP. Lacking in refugee experts among its ambassador members, the PRC Sub-Committee relies heavily on HARDP, with which it works closely and which is its secretariat. HARDP’s mandate is not limited to refugees but includes humanitarian affairs more generally; it is thus not surprising that this broader focus has impacted HARDP’s political counterpart. In January 2014 an Executive Council decision stressed ‘the need to review and clarify’ the PRC Sub-Committee’s role to enable it to effectively fulfil its mandate.166

The PRC Sub-Committee reports regularly to the AU’s Executive Council. The Executive Council’s responses to Sub-Committee activities provide an indication of those activities. At its 26th Ordinary Session in January 2015, the Executive Council took note of PRC Sub-Committee missions to the Central African Republic, Kenya, Madagascar, and Zimbabwe; encouraged the Sub-Committee to ‘intensify its efforts’ to promote relevant AU legal instruments with member states, particularly the Kampala Convention; and invited the Sub-Committee to ‘continuously update its statistics on refugees, returnees’ and IDPs ‘through a mechanism for coordination with all the field players’, including member states, UNHCR, and humanitarian agencies.167 The same Executive Council decision also requested that the AU Commission ‘rationalize the activities and operations’ of the PRC Sub-Committee on the AU’s Special Emergency Assistance Fund for Drought and Famine in Africa with those of the PRC Sub-Committee.168 This call was reiterated at the 28th (p.177) Ordinary Session in January 2016,169 as well as at the 27th Ordinary Session in June 2015.170 At this latter meeting, the Executive Council also took note of PRC Sub-Committee missions to Malawi, South Sudan, and Uganda and encouraged the Sub-Committee to visit Cape Verde, Ethiopia, Nigeria and the Saharawi Arab Democratic Republic, as well as Guinea, Liberia, and Sierra Leone in view of the ebola outbreak.171

Executive Council responses to PRC Sub-Committee reports sometimes also evidence AU thinking on refugees. For example, in response to one such report, the Executive Council noted the ‘positive developments that continue to take place in the area of forced displacement’ while also expressing ‘concern over the large number of refugees’ and IDPs in Africa.172 The Executive Council also used the opportunity to express its ‘gratitude to countries of asylum that continue to meet their international obligations and most importantly commit themselves to extend hospitality to refugees in spite of the environmental, security and social impact of such hospitality upon their countries’173 as well as to appeal to the ‘international community to exert all efforts to extend the financial and material assistance to the forcibly displaced … in the spirit of solidarity and burden sharing’.174 Additionally, the Executive Council commended Uganda ‘for its laudable Refugee Integration Policy’ and urged ‘other refugee hosting countries to emulate’ it,175 and noted ‘the challenges posed by the presence of the Dadaab Refugee Camp in Kenya’.176 Finally, the Executive Council recommended ‘the holding of an international Conference to address the issue of migration’.177

(c) The Coordinating Committee on Forced Displacement and Humanitarian Action

The CCFDHA was born under the OAU as the BPEAR’s coordinating committee, and later became the CCAR. As an AU organ, it was initially known as the CCAPRRI, though it was subsequently renamed the CCFDHA. The CCAPRRI/CCFDHA was intended to be the AU’s main advisory body on humanitarian issues, with membership open to AU member states, relevant UN agencies, intergovernmental organizations, and NGOs.178 A subset of members resident in Addis Ababa were to (p.178) form the body’s working group, which had a mandate to assist HARDP in its day-to-day activities179 and prepare the work of the Committee as a whole.180

The CCFDHA’s broad functions are derived from the CCAPRRI’s 2006 Rules of Procedure, which due to their scope are worth reproducing:

  1. (a) advise the AU Commission, the PRC Sub-Committee on Refugees, … [regional economic communities] and relevant … [AU] organs, including the African Commission … on matters that promote the better protection, assistance and the search for durable solutions for refugees, returnees and … [IDPs] in Africa, with particular focus on the special needs of vulnerable groups …;

  2. (b) perform as an advisory group that promotes policies on the protection and assistance of refugees, returnees and IDPs as well as propose strategies for mainstreaming of various principles contained in the relevant regional and international legal instruments including the 1969 … Convention …;

  3. (c) provide a platform for the exchange of data and information, experiences, best practices and lessons learnt as well as analyze policy formulation and recommendations and advise on areas of intervention, modalities of engagement and strategies of implementation in order to improve concerned human protection and relief assistance at country level;

  4. (d) ensure wide dissemination of important resolutions and decisions adopted by relevant AU organs;

  5. (e) establish modalities and/or plans of action, including a mechanism for monitoring and reporting to the PRC Sub-Committee on Refugees on the implementation of relevant resolutions and decisions;

  6. (f) coordinate efforts of members of the CCAR in order to harmonize their policies and activities and ensure complementarity in their programmes relating to refugees, returnees and IDPs;

  7. (g) mobilize support for capacity and institution building activities of member organizations, refugee hosting countries and other organizations particularly indigenous African NGOs involved in the protection and assistance to refugee, returnees and IDPs;

  8. (h) assist and support the AU and member organizations in mobilizing resources necessary to ensure the smooth functioning of the Coordinating Committee and the implementation of planned activities;

  9. (i) assist and support the AU and member organizations in mobilizing support and resources for refugees, returnees, IDPs and other related humanitarian activities;

  10. (j) provide early warning and advice on the prevention of large-scale forced population displacement and humanitarian catastrophes, and support African countries and communities hosting refugees and IDPs on adequate, timely and appropriate preparedness, and response to emergency situations; as well as advocate for comprehensive peace building, reconstruction and development for countries emerging out of conflict to ensure that the needs of displaced persons are addressed;

  11. (k) undertake any other assignment as, and when, necessary and requested by the AU Commission and/or the AU decision-making organs;

  12. (l) play the role of advocacy on issues related to refugees, returnees and … [IDPs] regarding their assistance and protection on humanitarian needs.181

(p.179) Despite this wide mandate, in practice the CCAPRRI/CCFDHA has focused on its function as an advisory body to the PRC Sub-Committee, providing ‘a forum and interface between the practitioners and the [AU’s] decision-making and policy organs’.182 Activities that would fall under its other functions have been overlooked. For example, at a 2003 meeting between UNHCR and the African Commission, it was suggested that the CCAPRRI (as it was then known) should ‘examine the feasibility of promoting the adoption of a Protocol to the 1969 … Convention which would expand its scope to cover issues not adequately addressed therein’.183 This never occurred. Moreover, even in its limited role as an advisory body to the PRC Sub-Committee, the CCAPRRI/CCFDHA has been remarkably weak and has recently been entirely non-functional.

In 2004, further to a request from the Executive Council, the AU Commission and UNHCR began working together to revitalize the CCAPRRI, in particular by updating its membership.184 The request was reiterated in January 2005 ‘as a matter of urgency’.185 According to Tigere and Amukhobu, new members were secured by mid-2005,186 when the Executive Council commended the AU Commission and UNHCR for their efforts in this regard.187 Further revitalization followed: the CCAPRRI’s 2006 Rules of Procedure entered into force when they were adopted by the AU’s Executive Council in 2008188 and a renewed search for additional members began in 2009.189

Despite these procedural revitalizations, the CCAPRRI/CCFDHA has in practice been dormant since at least 2008. In the 2008 decision that adopted the CCAPRRI’s revised Rules of Procedure, the Executive Council also requested that the AU Commission ‘reactivate the Coordinating Committee as soon as possible’.190 Such has not occurred in any meaningful way. In 2011 the Committee’s working group convened a task force to revitalize it,191 yet in early 2012, relevant officials in Addis Ababa described the CCAPRRI/CCFDHA as ‘dormant’ at best and, at worst, as ‘defunct’. As of late 2017, the CCFDHA was still not operational.

(d) The Division of Humanitarian Affairs, Refugees and Displaced Persons

HARDP is a division of the AU Commission’s Department of Political Affairs. It functions as a secretariat to the political PRC Sub-Committee and to the advisory (but dormant) CCFDHA, in particular by facilitating their activities, decision (p.180) making, and policy development.192 For example, when the CCAPRRI/CCFDHA was operational, HARDP prepared the first draft of its annual report,193 as well as drafts all PRC Sub-Committee reports for AU summits.194 HARDP also coordinates the interface between the AU’s humanitarian actors and its decision makers,195 and takes the lead on all technical aspects of AU policy regarding refugees in particular and humanitarian affairs in general. For example, HARDP led the drafting of the HPF. According to Tigere and Amukhobu, HARDP is central to the ‘coordination, documentation and liaison of the work of the AU Commission, AU organs and other partners on matters related to forced displacements’.196

Despite its largely technical mandate, HARDP is enormously powerful. Due to the CCFDHA’s inactivity and the lack of significant refugee expertise among the diplomats on the PRC Sub-Committee, HARDP has extensive control over the PRC Sub-Committee’s programme of work. Among its agenda items, the PRC Sub-Committee selects certain of them to raise to the AU’s Executive Council, which may in turn raise issues with the Assembly. Thus HARDP—a technical division meant to serve as a secretariat to the political and advisory arms of the AU’s refugee apparatus and staffed by just a few individuals—essentially exercises quite a bit of control over the AU’s entire refugee agenda. In this connection, it is important to note that refugees are but one of HARDP’s several concerns. As is evident from its name, the division also has a broader humanitarian affairs mandate, which its head is keen to embrace,197 and which has recently become an AU priority, as discussed later in this section. Thus the AU’s engagement with refugee issues is effectively controlled by a few individuals for whom refugees are but one among several concerns.

4. Refugees within other AU initiatives

In addition to these special organs devoted at least in part to them, refugees have also received attention within, or might be impacted by, more general AU initiatives. The CSSDCA, a policy development process commenced under the OAU, noted among its ‘core values’ that the ‘plight of African refugees and internally displaced persons constitutes a scar on the conscience of African governments and people’ and provided an undertaking to strengthen refugee protection.198 Moreover, among the Conference’s key performance indicators, all AU member states were expected to have ratified and implemented the 1969 Convention by 2003; it was proposed that the AU should review the 1969 Convention’s scope by 2005, ensuring in particular the strength of oversight mechanisms; and states were requested to provide the Conference with information on the condition of refugees, the protection of their human rights, and mechanisms for the mitigation of their situation.199 Unfortunately, however, the CSSDCA was ‘consigned to the rubbish heap of lofty declarations without implementation’, and was overtaken by other institutional developments, principally the PSC.200

(p.181) The PSC is charged with decision making for the prevention, management, and resolution of conflict on the continent.201 It was established by a 2002 Protocol to the AU’s Constitutive Act,202 which entered into force in 2003, replacing the OAU’s Mechanism for Conflict Prevention, Management and Resolution. The PSC’s responsibilities include ‘the management of catastrophes and humanitarian actions that encompass situations where refugees, asylum seekers and IDPs will be present’.203 Not surprisingly, then, the eleventh preambular paragraph of the Protocol establishing the PSC notes African states’ concern that ‘conflicts have forced millions of our people, including women and children, into a drifting life as refugees and internally displaced persons, deprived of their means of livelihood, human dignity and hope’, and it commits the PSC to assisting member states affected by violent conflict through activities including the ‘resettlement and reintegration of refugees’ once hostilities have ceased;204 no mention is made of asylum during the period of conflict. The role of the PSC in assisting with the resettlement and reintegration of refugees was reiterated two years following the PSC Protocol’s adoption in the AU’s Solemn Declaration on a Common African Defence and Security Policy.205

The AU’s Constitutive Act envisioned the establishment of a common African defence policy.206 In 2004 AU member states adopted the Solemn Declaration on a Common African Defence and Security Policy, which articulates the scope and objectives of the policy and charges the PSC with its implementation,207 but does not clearly establish the policy as such. The Declaration lists the ‘plight of refugees and internally displaced persons and the insecurity caused by their presence’208 as among the factors that ‘engender insecurity’ in Africa,209 and lists the ‘plight of African refugees and internally displaced persons’210 as among the ‘principles and values forming the basis of’ the policy.211 The Declaration goes on to provide that a goal of the Common African Defence and Security Policy is to ‘provide a framework for addressing the problems of refugees and internally displaced persons at the continental, regional and national levels’212 and, relatedly, recognizes the 1969 Convention as among the ‘building blocks’ of the policy.213

The common defence policy envisaged by the Declaration was put on a legal footing with the 2005 adoption of the African Union Non-Aggression and Common Defence Pact.214 The Pact is principally a collective security arrangement, construing aggression against any member state as ‘a threat or aggression against all [AU] Member States’.215 The Pact does not deliver specifically on the Declaration’s promise to ‘provide a framework for addressing the problems of refugees’; the Pact’s (p.182) only specific mention of refugees is as a provision that the ‘Pact shall not derogate from, and shall not be interpreted as derogating in any way whatsoever, from the rights of refugees guaranteed by the relevant continental and international instruments’.216 However, averting conflict would clearly prevent much displacement. Furthermore, the Pact creates several institutions that could benefit refugees indirectly: the African Peace Academy, the African Centre for the Study and Research on Terrorism, and the AU Commission on International Law.217 The latter is mandated to ‘undertake activities relating to codification and progressive development of international law in the African continent’, draft treaties, conduct relevant studies, and encourage scholarly activity in relation to AU law.218 The AU Commission on International Law’s Sixth Forum, held in Malabo, Equatorial Guinea on 4–5 December 2017, focused on the ‘legal & socio-economic consequences of immigration, refugees and internally displaced persons in Africa’.

Another AU initiative that is not directed at, but still considers, refugees is the African Charter on Democracy, Elections and Governance.219 Its article 8(2) provides that states parties ‘shall adopt legislative and administrative measures to guarantee the rights of women, ethnic minorities, migrants, people with disabilities, refugees and displaced persons and other marginalized and vulnerable social groups’. This does not add much to the human rights obligations states have already assumed under the African Charter.

(a) Continental free movement of persons

The first legal contemplation of the free movement of persons in Africa was in the 1991 Abuja Treaty. The then OAU member states agreed to the ‘gradual removal … of obstacles to the free movement of persons … and the right of residence and establishment’.220 To realize this objective, they agreed

to adopt, individually, at bilateral or regional levels, the necessary measures, in order to achieve progressively the free movement of persons, and to ensure the enjoyment of the right of residence and the right of establishment by their nationals within the Community.

(2) For this purpose, Member State agree to conclude a Protocol on the Free Movement of Persons, Right of Residence and Right of Establishment.221

Agenda 2063, which articulates a vision for Africa’s future (to be implemented in a series of ten-year plans), resurrected this idea. Agenda 2063 was formally adopted by the Assembly at its 24th Ordinary Session in January 2015.222 It lists seven (p.183) ‘aspirations’. Aspiration 2 is for an ‘integrated continent’, including ‘seamless borders’223 and ‘the free movement of people’.224 This aspiration was concretized six months after the adoption of Agenda 2063 in the AU’s Declaration on Migration.

The Declaration on Migration committed member states to work towards goals including the introduction of an African passport225 and the continental free movement of persons,226 and called on the AU Commission to organize an Executive Council retreat focused on mobility and free movement in Africa. The retreat occurred on 24–25 January 2016 in Mekele, Ethiopia, where the Executive Council considered an AU Commission report on the issue. Thereafter, the Executive Council urged member states to adopt the ‘process outlined towards the adoption of a Protocol [to the Abuja Treaty] on Free Movement of People by January 2018, which should come into immediate effect in Member States’.227

The ‘Protocol to the Treaty Establishing the African Economic Community Relating to Free Movement of Persons, Right of Residence and Right of Establishment’ (Free Movement Protocol) was drafted by law professor Vincent Chetail. According to Chetail, the Free Movement Protocol ‘facilitates entry, residence and establishment of all nationals of … [AU] Member States … [and] governs many other key issues, including an African passport, the principle of non-discrimination, the mutual recognition of academic and professional qualifications, the protection of property rights and the portability of social security benefits’.228 The African passport Chetail mentions was launched before the Free Movement Protocol was submitted to states, at the AU’s 27th Ordinary Session in Kigali, Rwanda in July 2016.229 It allows holders visa-free entry to all states on the continent, but for the time being is available exclusively to heads of state and government, ministers of foreign affairs, and Addis Ababa-based permanent representatives of AU member states.230

Chetail’s draft of the Free Movement Protocol was submitted to AU member states in late March 2017 and underwent three rounds of negotiation—in Accra, Ghana; Kigali, Rwanda; and Port Louis, Mauritius—during that year. The Port Louis meeting focused on elaborating a roadmap for the Free Movement Protocol’s eventual implementation.

(p.184) The 30th AU summit, held on 29–30 January 2018, focused in part on free movement, specifically on reaching consensus around contested issues so that the Free Movement Protocol could be adopted. The sticking points related to the Free Movement Protocol’s entry into force and to the specifics of the Port Louis implementation plan. Regarding entry into force, some states wanted the Free Movement Protocol to enter into force immediately upon adoption, while others favoured entry into force with the fifteenth ratification. Regarding implementation, some states wanted the implementation plan to form part of the Free Movement Protocol, which would make it binding, while others preferred annexing the implementation plan to the Free Movement Protocol, which would afford flexibility.231 The Free Movement Protocol was adopted at the 30th AU summit, just as this book was going to press. At this time, neither the Free Movement Protocol as adopted nor official decisions indicating how the aforementioned issues were resolved was available.

However, a draft of the Free Movement Protocol dated July 2017 was public. It is arranged in seven parts: definitions, objectives and principles, free movement of persons, right of establishment and right of residence, general provisions, implementation, and final provisions.232 Part V on general provisions contains several articles relevant to refugee protection. Article 20 prohibits the mass expulsion of non-nationals. Article 21 provides that a ‘national of a Member State lawfully admitted into the territory of a host Member State may only be expelled, deported or repatriated … by virtue of a decision taken in accordance with the law in force in the host Member State’. Article 24 covers ‘procedures for movement of specific groups’. It provides that a ‘Member State may in addition to the measures provided for by international, regional and continental instruments, establish specific procedures for the movement of specific vulnerable groups including refugees, victims of human trafficking, asylum seekers and pastoralists’. Its second paragraph goes on to state that ‘Procedures established by a Member State under this article shall be consistent with the obligations of that Member State under the international, regional and continental instruments relating to the protection of each group of persons referred to in paragraph 1’.233

These provisions support existing refugee and human rights law protections. Article 20 reiterates the African Charter article 12(5) prohibition of mass expulsion. Article 21 reinforces the African Charter article 12(4) prohibition of arbitrary expulsion and supports non-refoulement by subjecting any expulsion to ‘the law in force in the host Member State’. Most importantly, in requiring (p.185) that any ‘procedures for movement of specific groups’ be consistent with cognate international and regional obligations, the Free Movement Protocol’s article 24(2) ensures that any measures adopted in the context of the emerging continental free movement regime will reinforce pre-existing refugee protection obligations. While these provisions represent a positive start, scholars and advocates must remain vigilant regarding the possibility that the emerging continental free movement regime may end up compromising refugee protection. The EU precedent is instructive in this regard.

Citizens of EU member states enjoy freedom of movement and establishment within the border-free single market.234 Under Europe’s Protocol on Asylum for Nationals of Member States of the European Union235 (Aznar Protocol), EU member states may declare as inadmissible any refugee claim from the national of another EU member state.236 While this is premised upon the assumption that the level of human rights protection within the EU renders all member states ‘safe countries of origin’ for asylum purposes,237 the Aznar Protocol cannot be divorced from the EU’s free movement regime. Indeed, the Aznar Protocol’s seventh preambular paragraph bears in mind that the ‘Constitution establishes an area without internal frontiers and grants every citizen of the Union the right to move and reside freely within the territory of the Member States’. While an EU national who experiences persecution at home may indeed relocate to any other EU member state and enjoy rights of establishment there, the most important refugee right—non-refoulement—does not form part of the establishment rights bundle. Regional free movement regimes may therefore complement,238 but are no substitute for, refugee protection. As the AU develops its free movement system, it is critical that it not adopt any Aznar-style instrument that positions free movement as a substitute for refugee protection.

Once it enters into force and is fully implemented, the Free Movement Protocol may even benefit refugees. Chapter 4 demonstrated that all refugees in Africa, including those recognized exclusively under the 1969 Convention’s article I(2), are entitled to 1951 Convention rights. Such rights are, however, often contingent. (p.186) Many 1951 Convention rights are guaranteed to a refugee only to the extent that they are enjoyed by a particular reference group: aliens generally in the same circumstances, most favoured foreigners or nationals.239 Two sets of 1951 Convention rights that are critical to refugees’ well-being are subject to such legal contingencies and are also regularly restricted in practice: the article 17–19 rights to gainful employment and the article 26 freedom of movement and residence. Article 17 on waged employment is guaranteed to refugees to the extent of ‘the most favourable treatment accorded to nationals of a foreign country in the same circumstances’. Article 18 on self-employment, article 19 on the exercise of liberal professions, and article 26 on freedom of movement and residence are guaranteed to refugees only to the extent they are enjoyed by aliens generally in the same circumstances.240 When the Free Movement Protocol enters into force, it will likely amplify these critical yet contingent rights in adhering states, by improving the standard of treatment owed to relevant reference groups. Under a fully implemented free movement regime, African ‘aliens generally in the same circumstances’ and African ‘nationals of a foreign country in the same circumstances’ will be able to work and move within state territory on favourable terms,241 thereby raising the standard of treatment owed to refugees under the 1951 Convention.242

(b) The AU’s humanitarian agenda

The AU finalized its HPF in 2015 after a HARDP-led drafting process. The HPF defines humanitarian action as action ‘to preserve, protect and save lives, alleviate suffering and enhance physical security and human dignity’.243 The HPF’s ‘strategic vision’ is to

strengthen African’s humanitarian governance by enhancing the AU’s leadership role and mandate through providing strategic approaches and guidelines for … [AU] led efforts in conformity with African shared values, and the norms and standards for humanitarian action on the African continent; in full respect of international law; and on the other hand in strengthening the primary responsibility of Member States by strengthening their predictive, preventive, response and adaptive capabilities.244

This vision is broken down into nine objectives, relating to the protection of and assistance for ‘persons in need of humanitarian assistance’; prevention; support for Africa’s RECs; promotion of dialogue; enhanced coordination; protection for (p.187) stateless persons and the reduction of statelessness; improved planning; support for host communities; and enhanced partnerships and resource mobilization.245 These objectives are to be achieved through ‘a strategic approach and guidelines for coordinating and supporting [the] AU’s involvement in its early warning and prevention efforts, in addressing root causes and durable solutions, ensuring adequate preparations to respond to and deal with root causes and the aftermaths of humanitarian challenges on the continent’.246

The HPF includes two points of ‘strategic focus’: coordination and the ‘phases of AU’s humanitarian action’, which include ‘protection and assistance’. The protection discussion—which covers refugees, asylum seekers, returnees, stateless persons, and IDPs—does not mention non-refoulement but notes that all ‘displaced people are entitled to the protection of their human rights and assistance accorded to them by relevant laws’. The document then goes on to list several vulnerable groups, such as unaccompanied minors. The section on ‘assistance’, which essentially covers humanitarian aid, is much more detailed than its predecessor on protection. While the AU should be lauded for taking steps to address the humanitarian situation in Africa, stressing aid over protection and the related failure to mention non-refoulement represent a step backwards. In her seminal 1986 book, Harrell-Bond warned of the dangers of treating refugees as passive victims in need of little more than humanitarian assistance.247 The AU’s institutional foundation seemed to heed that warning by entrenching a rights-based approach, from which the HPF unfortunately departs.

The CAP ‘builds on’ the HPF248 and the HPF in turn ‘anchors’ the CAP.249 The two are, however, quite distinct. While the HPF focuses on humanitarian action in Africa specifically, the CAP is Africa’s united call for, and contribution to, a ‘global humanitarian architecture’,250 made at the first ever WHS in Istanbul, Turkey, in May 2016. The process of drafting the CAP began with a June 2014 Executive Council decision requesting that the AU Commission, ‘in close collaboration with the PRC Sub-Committee on Refugees … engage Member States in a Political Process … to establish an African Position that will be presented at the World Humanitarian Summit’.251 This resulted in the CAP, which the Assembly formally adopted at its 26th Ordinary Session in January 2016.252 At this time, the Assembly also resolved to establish an African Humanitarian Agency,253 which is mentioned in the CAP but has yet to be operationalized.

(p.188) While the CAP represents Africa’s call for reform of the international humanitarian system, it is nevertheless naturally focused on Africa’s ‘peculiarities’.254 With these in mind, the CAP groups Africa’s humanitarian priorities into ten pillars: the primary responsibility of the state; root causes and durable solutions; governance and human rights; the connection between development, peace, and security; institutional architecture; the domestication and implementation of normative and policy frameworks; protection and assistance; evidence base; promoting the role of the private sector, African civil society, the diaspora, and youth; and financing partnerships.255

Pillar seven on ‘protection and assistance of affected populations’ remarkably fails to mention refugees. Instead, it focuses on ‘vulnerable groups’, specifically women, children, the elderly, and persons with disabilities. Similarly, pillar six, calling for the domestication and implementation of normative frameworks, mentions the Kampala Convention and the Protocol to the African Charter on Human and Peoples’ Rights on the Right to a Nationality in Africa (Nationality Protocol), which has yet to be adopted, but not the 1969 Convention.256 The 1969 Convention is similarly not invoked under pillar three on human rights. This is particularly surprising given the PRC Sub-Committee’s leadership role in drafting the CAP.

To the extent refugee issues are reflected in the CAP, the underlying theme is one of easing the burden refugees are seen to represent by focusing on solutions and international responsibility sharing. Pillar two on root causes mentions protracted refugee situations and identifies voluntary repatriation, local integration, and resettlement as solutions.257 Pillar ten on financing partnerships calls on the international community to ‘share the burden imposed on host countries in Africa and ensure a much fairer means of burden sharing globally’ and welcomes the WHS global consultation recommendation of a ‘New Deal for Refugees’ emphasizing the provision of support to host countries; the CAP adds to this by calling for hosts’ contributions to refugee protection to be quantified and recognized in the same way a pecuniary contribution would be. Pillar ten also calls on AU member states to ‘shift the focus from measures for strengthening strategies for management of … refugees, and place such emphasis and focus on finding durable and sustainable solutions’.258 Solutions and responsibility sharing are of course important, but the fact that they are not mentioned alongside calls on states to uphold the 1969 Convention, non-refoulement, and other foundational refugee protection principles represents the culmination of a major shift in the AU’s approach to refugees, addressed in the conclusion below.

D. Conclusions

The OAU and AU have engaged consistently with refugee issues. Both organizations have adopted legal instruments, created bodies with refugee-focused mandates, and staged political and other gatherings resulting in resolutions, declarations, (p.189) decisions, recommendations, and plans of action. Whether these initiatives have been effective is, however, another matter. Authors who have examined specific OAU and AU refugee initiatives in depth have consistently questioned their efficacy. According to Nyanduga, for example, the ‘Unenforceability of resolutions and decisions of regional political … bodies remains a major handicap for the legal protection mechanism’.259 Indeed, the number of refugees in Africa has recently been on the rise,260 many refugees remain trapped in protracted situations, violations of refugees’ rights abound,261 and, as discussed in Chapter 1, states’ commitment to refugee protection is waning. Thus, it may be a question of quantity over quality and rhetoric over reality; while there is no shortage of norms, bodies, and initiatives, it is not clear that they have been effectively implemented by member states, prevented or resolved forced displacement or produced better protection outcomes for refugees.

The transition from the OAU to the AU represented an opportunity to remedy this. The AU’s focus on democracy, social and economic development, peace and security, and human rights is more in line with refugee protection than was its predecessor’s preoccupation with decolonization and the consolidation of post-colonial states, and the establishment of the AU created the possibility of building new AU institutions. Indeed, the AU established bodies focused at least in part on refugees, with neatly parsed out political (PRC Sub-Committee), advisory (the dormant CCFDHA), and technical (STC on Migration, Refugees and IDPs and HARDP) mandates. Yet these bodies have not produced unequivocal results. Moreover, while there are four AU bodies focused at least in part on refugee issues, in practice much control seems to lie with HARDP.

These issues of implementation and effectiveness are in keeping with broader critiques of the AU, which have come from both outside and inside the organization. The AU has not been unresponsive. In July 2007 the Assembly called for an audit of the organization.262 The report in this connection, known as the Adedeji Report,263 was delivered before the year was out, however its recommendations were for the most part not implemented.264

(p.190) In July 2016 heads of state and government, ministers of foreign affairs, and ministers of finance met in Kigali to discuss the need for institutional reform, and subsequently entrusted the endeavour to Rwandan President Paul Kagame.265 He delivered his report early in 2017. It unequivocally states that ‘The chronic failure to see through African Union decisions has resulted in a crisis of implementation’.266 Kagame goes on to point out that while the Assembly has adopted over 1,500 resolutions, ‘there is no easy way to determine how many of those have actually been implemented. By consistently failing to follow up on the implementation of the decisions we have made, the signal has been sent that they don’t matter. As a result, we have a dysfunctional organization in which member states see limited value, global partners find little credibility, and our citizens have no trust’.267 Kagame made four concrete proposals to address this and the other issues he identifies, which were adopted by the Assembly.268 First among Kagame’s proposed reforms is that the AU focus on ‘key priorities with continental scope’.269

Refugees should be among the ‘key priorities’ Kagame proposes, simply because of the sheer number of, and abysmal conditions for, refugees on the continent. It is time for the AU to either rehabilitate or officially retire its moribund CCFDHA, and for all bodies to focus on the quality or effectiveness of initiatives over their quantity. This might be achieved by addressing a limited number of defined issues, such as root causes, non-refoulement or local integration, rather than by allowing norms to proliferate beyond any reasonable capacity to implement them. Follow-up or accountability mechanisms must also be developed and implemented. Just as Kagame argues that the AU must focus on key priorities, the many issues arising within each such key priority must also be addressed with focus and with accountability.

There is hope in this regard. Rwanda took over chairmanship of the AU on 1 January 2018 and the thirtieth AU summit on 29–30 January 2018 focused in part on Kagame’s proposed reforms. The AU Commission has already established a Reform Implementation Unit, and according to Kagame’s implementation matrix, four further recommendations are to be implemented in January 2018: a mechanism to ensure the implementation of legally binding decisions; the strengthening and enforcement of a sanctions mechanism; the completion of an audit of bureaucratic inefficiency; and the adoption of quotas for women and youth among AU Commission staff.270

Finally, and perhaps most importantly, the AU must ensure that the issues it has recently prioritized—the continental free movement of persons, humanitarian affairs generally and the foundational social, economic and security issues encapsulated in Agenda 2063—do not come at the expense of refugees’ specific rights. (p.191) Certainly, if the Agenda 2063 goals of a prosperous, peaceful, and secure continent characterized by good governance, democracy, respect for human rights, justice, and the rule of law are achieved,271 it will benefit all Africans, not least refugees. However, these ambitious long-term goals cannot come at the expense of the immediate and still critical issues of preventing forced displacement, protecting refugees’ rights during exile, and fostering durable solutions.

The AU’s political and administrative machinery is not alone in facing a crisis of effectiveness. The African Commission also has a robust record of refugee engagement and similarly equivocal results. It and other AU judicial institutions with human rights mandates are addressed in Chapter 7.

Notes:

(1) See, for example, Medard RK Rwelamira, ‘Some Reflections on the OAU Convention on Refugees: Some Pending Issues’ (1983) 16 Comp & Intl LJ S Afr 155, 162; Joe Oloka-Onyango, ‘Human Rights, the OAU Convention and the Refugee Crisis in Africa: Forty Years After Geneva’ (1991) 3 IJRL 453, 459; Jacob van Garderen and Julie Ebenstein, ‘Regional Developments: Africa’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (OUP 2011) 203; Frans Viljoen, International Human Rights Law in Africa (2nd edn, OUP 2012) 158.

(2) Interview with George Okoth-Obbo, Director, Africa Bureau, UNHCR, 20 June 2011, Geneva.

(3) 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, 96.

(4) The OAU’s Assembly of Heads of State and Government (OAHG) issued only a handful of resolutions and decisions relating to refugees: that relating to the drafting of the 1969 Convention, discussed in Chapter 2; a 1983 resolution on ICARA II (defined and described below); a 1995 resolution endorsing President Mobutu’s proposal to host a World Conference on Refugees and Displaced Persons in what was then Zaire (the conference never eventuated); a 2001 decision marking the fiftieth anniversary of the 1951 Convention; and a decision on the report of the Secretary-General on the Situation of Refugees, Returnees and Displaced Persons, adopted at the OAHG’s very last session in Durban in 2002. In addition, in 1994, on the occasion of the twenty-fifth anniversary of the adoption of the 1969 Convention, the OAHG adopted the Tunis Declaration (OAU (OAHG) ‘Tunis Declaration on the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa’ (OAU Tunis 1994) AHG/Decl 216). The OAU Council of Ministers, by contrast, adopted many refugee-related resolutions and decisions. Most of these served to take note of reports, or establish or direct particular bodies or initiatives, and are cited where relevant throughout this chapter, but several served the more general purpose of, among other things, highlighting refugee protection issues on the continent and/or calling on member states to ratify and implement the 1951 and 1969 Conventions.

(5) See Ademola Abass and Dominique Mystris, ‘The African Union Legal Framework for Protecting Asylum Seekers’ in Ademola Abass and Francesca Ippolito (eds), Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective (Ashgate 2014), as well as an article on which this chapter draws: Marina Sharpe, ‘Organization of African Unity and African Union Engagement with Refugee Protection: 1963–2011’ (2013) 21 Afr J Intl Comp L 50.

(6) See Philip E Chartrand, ‘The Organization of African Unity and African Refugees: A Progress Report’ (1975) 137 World Aff 265; Rose D’Sa, ‘The African Refugee Problem, Relevant International Conventions and Recent Activities of the Organization of African Unity’ (1984) 31 NILR 378; Richard Greenfield, ‘The OAU and Africa’s Refugees’ in Yassin El-Ayouty and I William Zartman (eds), The OAU After Twenty Years (Praeger 1984); Joe Oloka-Onyango, ‘The Place and Role of the OAU Bureau for Refugees in the African Refugee Crisis’ (1994) 6 IJRL 34; Rachel Murray, Human Rights in Africa: From the OAU to the African Union (CUP 2004) chap 7.

(7) As of 1 January 2018, the most recent Assembly and Executive Council decisions publicly available were from the twenty-eighth AU Summit held in January 2017. Decisions from the Executive Council’s 31st Ordinary Session, held at the 29th AU Summit in July 2017, were obtained directly from the AU.

(8) For an overview of the OAU itself and of the drafting of the 1969 Convention, see Chapter 2.

(9) OAU (OCM), ‘Resolution on the Bureau for the Placement and Education of African Refugees’ (OAU Rabat 5–12 June 1972) CM/Res 266 (XIX) para 1.

(10) OAU (OCM), ‘Resolution on the Commission of Ten on Refugees’ (OAU Addis Ababa 5–9 February 1973) CM/Res 296 (XX) preambular para 3.

(11) ibid preambular para 2.

(12) EM Ngung, ‘The Role of Regional and Sub-Regional Organizations in Situations of Conflict or Displacement’ (1999) 18 RSQ 97, 98.

(14) Monette Zard, ‘African Union’ in Matthew Gibney and Randall Hansen (eds), Immigration and Asylum From 1900 to the Present (ABC-CLIO 2005) 7.

(15) George Okoth-Obbo, ‘The OAU/UNHCR Symposium on Refugees and Forced Population Displacements in Africa—A Review Article’ [Special Issue Summer 1995] IJRL 274, 283.

(16) OAU (OCM), ‘Resolution on the Situation of Refugees in Africa’ (OAU Freetown 18–28 June 1980) CM/Res 814 (XXXV) para 5.

(17) Murray (n 6) 196.

(18) OAU (OCM), ‘Resolution on Refugees, Returnees and Displaced Persons in Africa’ (OAU Tunis 6–11 June 1994) CM/Res 1521 (LX) para 10.

(20) OAU (OCM), ‘Rules of Procedure of the OAU Commission of Twenty on Refugees in Africa’ (OAU Addis Ababa 23–27 February 1998) in accordance with CM/Res 388 (LXVII).

(21) OAU (OCM), ‘Decision on the Report of the Commission of Twenty on the Situation of Refugees, Returnees and Displaced Persons in Africa’ (OAU Addis Ababa 23–27 February 1998) CM/Res 388 (LXVII) para 13.

(22) Oloka-Onyango (n 6) 39.

(23) OAU (Commission of Fifteen on Refugees), ‘Khartoum Declaration on Africa’s Refugee Crisis’ (OAU Khartoum 22–24 September 1990) OAU Doc BR/COM/XV/5590.

(24) OAU (OCM), ‘Programme of Action for the OAU Commission of Twenty on Refugees’ (OAU Yaoundé 1–5 July 1996).

(25) Oloka-Onyango (n 6) 39.

(26) Murray (n 6) 196.

(27) See section C.3.b.

(28) For a detailed analysis of BPEAR’s functions and effectiveness, see Oloka-Onyango (n 6); see, also, Louise W Holborn, Refugees: A Problem of our Time—The Work of the United Nations High Commissioner for Refugees, 1951–1972, vol I and II (Scarecrow Press 1974) 942–47; Murray (n 6) 197–200.

(29) Chartrand (n 6) 280; Chaloka Beyani, Protection of the Right to Seek and Obtain Asylum Under the African Human Rights System (Martinus Nijhoff 2013) 9.

(30) UNECA and others, ‘Final Report of the Conference on the Legal, Economic and Social Aspects of the African Refugee Problems’ December 1968, 115 (on file with the author).

(31) Holborn (n 28) 943.

(32) Oloka-Onyango (n 6) 35.

(33) UNECA (n 30) 115; Holborn (n 28) 943.

(34) OAU (OCM), ‘Resolution on the Bureau for the Placement and Education of African Refugees’ (OAU Addis Ababa 15–19 June 1971) CM/Res 244 (XVII) para 1(a).

(37) Oloka-Onyango (n 6) 47.

(38) Peter Nobel, ‘Refugees, Law, and Development in Africa’ (1982) 3 Mich YB Intl L Stud 255, 258.

(39) Oloka-Onyango (n 6) 49.

(40) (n 6) 280.

(41) Murray (n 6) 197.

(42) Lawyers Committee for Human Rights, African Exodus: Refugee Crisis, Human Rights and the 1969 OAU Convention (Lawyers Committee for Human Rights 1995) 140.

(43) Murray (n 6) 200.

(44) Holborn (n 28) 943.

(45) OAU (n 35) para 1.

(46) Oloka-Onyango (n 6) 39.

(47) ibid 40.

(48) See section D.5.

(49) Extensive documentation and analysis of this gathering can be found in Lars-Gunnar Eriksson, Goran Melander, and Peter Nobel, An Analysing Account of the Conference on the African Refugee Problem, Arusha, May 1979 (Scandinavian Institute of African Studies 1981).

(50) Nobel (n 38) 259.

(51) Greenfield (n 6) 225.

(52) D’Sa (n 6) 391; for a summary of the conference’s recommendations, see D’Sa (n 6) 391–94; the recommendations are reproduced in their entirety in Eriksson, Melander, and Nobel (n 49) 47–62.

(53) Eriksson, Melander, and Nobel (n 49) 52.

(54) OAU (OCM), ‘Resolution on the Situation of Refugees in Africa and on Prospective Solutions to their Problems in the 1980s’ (OAU Monrovia 6–20 July 1979) CM/Res 727 (XXXIII) Rev 1, para 2.

(55) UNGA Res 34/61 (29 November 1979).

(56) D’Sa (n 6) 394.

(57) Ivor C Jackson, The Refugee Concept in Group Situations (Martinus Nijhoff 1999) 194–96.

(58) OAU (n 16) para 8.

(59) UNGA Res 35/42 (25 November 1980) preambular para 8.

(60) ibid para 3.

(61) UN Secretary-General, ‘Report of the Secretary General on the International Conference on Assistance to Refugees in Africa’ UN Doc A/37/522 (1982) 11; see, also, OAU (Secretary-General), ‘Report of the Secretary General on the International Conference on Assistance to Refugees in Africa’ CM/1130 (XXXVII) Rev 1.

(62) OAU, ‘Second OAU/ICRC Seminar for African Ambassadors Accredited to Ethiopia: The OAU and Humanitarian Problem’ (OAU Addis Ababa 11–12 April 1995) BR/58/LM/9/95, 5.

(63) Preparation for ICARA II; protection; voluntary repatriation; awareness building and public information; cooperation in refugee assistance at the national, regional and international levels; root causes; education, training and scholarships; employment; counselling; settlement and resettlement; role of voluntary agencies during emergencies; and general (OAU, ‘Recommendations of the Meeting of the OAU Secretariat and Voluntary Agencies on African Refugees’ (OAU Arusha 21–25 March 1983)).

(64) UNGA Res 37/197 (18 December 1982) para 5.

(65) D’Sa (n 6) 396.

(66) UN, ‘Declaration and Program of Action of the Second International Conference on Assistance to Refugees in Africa’ UN Doc A/CONF.125/L.1 (10 July 1984).

(67) OAU (OCM), ‘Resolution on the Situation of Refugees in Africa’ (OAU Addis Ababa 27 February to 5 March 1984) CM/Res 939 (XL) para 5.

(68) OAU (OCM), ‘Resolution on the Situation of Refugees in Africa’ (OAU Addis Ababa 21–26 July 1986) CM/Res 1040 (XLIV) para 14; see, also, OAU (OCM), ‘Resolution on International Conference on the Plight of Refugees, Returnees and Displaced Persons in Southern Africa, Oslo, Norway 22–24 August 1988’ (OAU Addis Ababa 19–23 May 1988) CM/Res 1150 (XLVIII).

(69) OAU, ‘Oslo Resolution, Declaration and Plan of Action on the Plight of Refugees, Returnees and Displaced Persons in Southern Africa’ (OAU Oslo 22–24 August 1988) <http://www.unhcr.org/refworld/category,POLICY,UNGA,,,3ae68f410,0.html> accessed 10 October 2011; the declaration portion of the Oslo document addressed root causes; basic principles on humanitarian assistance (the linkage between relief, recovery, and development assistance and burden sharing); and specific refugee-related issues (asylum and military and armed attacks on refugees). The plan of action addressed humanitarian and rehabilitation assistance (emergency preparedness; needs assessment; the delivery of assistance, recovery, and development; and the mobilization of resources); durable solutions (voluntary repatriation and return, local integration and resettlement); public information and dissemination; and follow-up and evaluation.

(70) OAU (OCM), ‘Resolution on the International Conference on the Plight of Refugees, Returnees and Displaced Persons in Southern Africa’ (OAU Addis Ababa 20–25 February 1989) CM/Res 1181 (XLIX) para 3.

(71) UNGA Res 51/71 (12 December 1996) para 9.

(72) For example, in February 1996, the Second Meeting of the Follow-Up Committee on the Implementation of the Bujumbura Conference Plan of Action on Assistance to Refugees, Returnees and Displaced Persons in the Great Lakes Region.

(73) OAU, ‘Plan of Action for Enhancing the Participation of Refugee, Returnee and Internally Displaced Women and Children in Rehabilitation, Reintegration, Reconstruction and Peace-Building’ (OAU Addis Ababa 12–15 October 1998).

(74) OAU, ‘Khartoum Declaration of the OAU Ministerial Meeting on Refugees, Returnees and Internally Displaced Persons in Africa’ (OAU Khartoum 14 December 1998); not to be confused with the Khartoum Declaration of 1990 (n 23).

(75) OAU, ‘Khartoum Recommendations of the OAU Ministerial Meeting on Refugees, Returnees and Internally Displaced Persons in Africa’ (OAU Khartoum 14 December 1998).

(76) Root causes; refugee instruments; strengthening refugee protection in Africa; durable solutions; consolidating the reintegration process; building Africa’s capacity to respond to refugee and internal displacement situations; and assistance and resolving the problem of IDPs in Africa.

(77) OAU (OCM), ‘Resolution on Refugees, Returnees and Displaced Persons in Africa’ (OAU Addis Ababa 31 January to 4 February 1994) CM/Res 1489 (LIX) para 10.

(78) Okoth-Obbo (n 15) provides an extensive analysis of this symposium.

(79) UNHCR, ‘Note on Preparations for the Commemoration of the 25th Anniversary of the Adoption of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and the Twentieth Year of its Entry into Force’ (15 September 1994) EC/1994/SCP/CRP.7 <http://www.unhcr.org/excom/scip/3ae68cbb0/note-preparations-commemoration-25th-anniversary-adoption-1969-oau-convention.html> accessed 22 December 2017, para 9.

(80) OAU and UNHCR, ‘The Addis Ababa Document on Refugees and Forced Population Displacements in Africa, adopted by the OAU/UNHCR Symposium on Refugees and Forced Population Displacements in Africa, 8–10 September 1994, Addis Ababa, Ethiopia’ [Special Issue Summer 1995] IJRL 303.

(81) Root causes; the 1969 Convention; refugee protection in Africa; material assistance; internal displacement; solutions; other populations in need of protection and assistance; emergency preparedness and response; the relief to development continuum; and institutional aspects.

(82) Okoth-Obbo (n 15) 281.

(83) OAU (OAHG), ‘Tunis Declaration on the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa’ (OAU Tunis 13–15 June 1994) AHG/Decl 216, para 4.

(84) ibid para 5.

(85) The excellent 2001 RSQ article by George Okoth-Obbo cited throughout this work was one of three background papers prepared for this meeting (Bonaventure Rutinwa, ‘Relationship Between the 1951 Refugee Convetion and the 1969 OAU Convention on Refugees’ in Volker Türk, Alice Edwards, and Cornelis Wouters (eds), In Flight from Conflict and Violence: UNHCR’s Consultations on Refugee Status and Other Forms of International Protection (CUP 2017) 96).

(86) Murray (n 6) 192.

(87) OAU, ‘Comprehensive Implementation Plan Adopted by the Special OAU/UNHCR Meeting of Government and Non-Government Technical Experts on the Thirtieth Anniversary of the 1969 OAU Refugee Convention’ CONF.P/OAU30th/Report—Annex II, reprinted in RSQ 21 (2001) 31; all documentation related to the Conakry meeting is reprinted in volume 20(1) (2001) of RSQ.

(88) OAU (OCM), ‘Decision on the Situation of Refugees, Returnees and Displaced Persons in Africa’ (OAU Lomé 6–8 July 2000) CM/Res 2171 (LXXII) para 8.

(89) OAU (OAHG), ‘Decision on the Fiftieth Anniversary of the Adoption of the 1951 Convention on the Status of Refugees’ (OAU Lusaka 9–11 July 2001) AHG/Dec 6 (XXXVII) preambular para 6.

(90) Beyani (n 29) 7.

(91) UNGA, ‘Agenda for Protection’ UN Doc A/AC.96/965/Add.1 (26 June 2002).

(92) OAU (n 87) action two.

(93) ibid action four.

(94) ibid action fifteen.

(95) See section B.3.a.

(96) OAU, ‘Report of the Meeting of Experts of the First AU Ministerial Conference on Human Rights in Africa’ (OAU Kigali 5–6 May 2003) EXP/CONF/HRA/RPT (II) para 40(2), cited in Rachel Murray, ‘Refugees and Internally Displaced Persons and Human Rights: the African System’ (2005) 24 RSQ 56, 62.

(97) See section B.3.a.

(98) AU (Executive Council), ‘Decision on the Meeting of Experts on the Review of OAU/AU Treaties’ (AU Addis Ababa 25 June to 3 July 2004) EX.CL/95 (V) paras 2–4.

(99) (Adopted 23 October 2009, entered into force 6 December 2012) 49 ILM 86.

(100) AU (Executive Council), ‘Decision on the Situation of Refugees, Returnees and Displaced Persons’ (AU Addis Ababa 25 June to 3 July 2004) EX.CL/108 (V) para 11.

(101) See section C.2.

(102) Cited in Okoth-Obbo (n 15) 297.

(103) ibid 298.

(104) Nyanduga (n 3) 99.

(105) See, for example, OAU, ‘Grand Bay (Mauritius) Declaration and Plan of Action’ (OAU Grand Bay 12–16 April 1999) CONF/HRA/Dec 1, para 9, which provides: ‘While welcoming the improvements which have taken place in addressing the refugee problem, the conference believes that the high number of refugees, displaced persons and returnees in Africa constitutes an impediment to development. It recognizes the link between human rights violations and population displacement and calls for redoubled and concerted efforts by States and the OAU to address the problem’.

(106) OAU (OAHG), ‘Declaration on the Political and Socio-Economic Situation in Africa’ (OAU Addis Ababa 9–11 July 1990) AHG/Dec.1(XXVI).

(107) ibid para 12.

(108) (Adopted 3 June 1991, entered into force 12 May 1994) 30 ILM 1241.

(109) ibid art 4(1)(a).

(110) ibid art 4(2).

(111) OAU (OAHG), ‘Sirte Declaration’ (OAU Sirte 9 Sept 1999) AHG/Draft/Decl (IV) Rev 1.

(112) Constitutive Act of the African Union (adopted 11 July 2000, entered into force 26 May 2001) 2158 UNTS 3 (AU Constitutive Act).

(113) Viljoen (n 1) 164.

(114) ibid 165.

(115) AU Constitutive Act (n 112) art 3.

(116) Viljoen (n 1) 165.

(117) See, generally, AU Commission and New Zealand Ministry of Foreign Affairs and Trade, African Union Handbook 2017: A Guide for Those Working With and Within the African Union (2017) <https://au.int/sites/default/files/pages/31829-file-african-union-handbook-2017-edited.pdf> accessed 23 December 2017.

(118) AU Constitutive Act (n 112) art 20.

(119) Agenda 2063; civil society and diaspora; economic affairs; human resources, science and technology; infrastructure and energy; legal affairs; peace and security; political affairs; rural economy and agriculture; social affairs; trade and industry; and women, gender and development.

(120) AU Constitutive Act (n 112) arts 6–9.

(121) ibid arts 10–13.

(122) ibid art 21; the PRC has eleven sub-committees: the Advisory Sub-Committee on Administrative, Budgetary and Financial Matters; the Sub-Committee on Audit Matters; the Sub-Committee on Contributions; the Sub-Committee on Economic and Trade Matters; the Sub-Committee on Headquarters and Host Agreements; the Sub-Committee on Multilateral Cooperation and Strategic Partnerships; the Sub-Committee on the New Partnership for Africa’s Economic Development; the Sub-Committee on Programmes and Conferences; the Sub-Committee on Refugees, Returnees and Internally Displaced Persons in Africa; the Policy Sub-Committee of the Special Emergency Assistance Fund for Drought and Famine Relief in Africa; and the Sub-Committee on Structures.

(123) AU Constitutive Act (n 112) arts 14–16.

(124) Protocol Relating to the Establishment of the Peace and Security Council of the African Union (adopted 9 July 2002, entered into force 26 December 2003) (PSC Protocol).

(125) AU Constitutive Act (n 112) art 17.

(126) ibid art 19.

(127) ibid art 22.

(128) See Chapter 7, section D.

(130) Nierum S Okogbule, ‘The Legal Dimensions of the Refugee Problem in Africa’ (2004) 10 E Afr J Peace & Hum Rts 176, 189.

(131) AU (Executive Council), ‘Decision on Humanitarian Situation in Africa’ (AU Addis Ababa 1 July 2017) EX.CL/Dec.968(XXXI) para 2.

(132) ibid para 3.

(133) ibid para 6.

(134) AU (n 131) para 8.

(135) ibid para 9.

(136) AU (Executive Council), ‘The Migration Policy Framework for Africa’ (AU Banjul 25–29 June 2006) EX.CL/276 (IX) <http://www.unhcr.org/protection/migration/4d5258ab9/african-union-migration-policy-framework-africa.html> accessed 20 December 2017, 19.

(137) ibid 21.

(138) AU Constitutive Act (n 112) art 13(3).

(139) AU (Executive Council), ‘Decision on the Situation of Refugees, Returnees and Displaced Persons’ (AU Abuja 24–28 January 2005) EX/CL/Dec179 (VI) para 8.

(140) AU, ‘Ouagadougou Declaration of the Ministerial Meeting on Refugees, Returnees and Internally Displaced Persons in Africa’ (AU Ouagadougou 1–2 June 2006) AU/MIN/HARDP/Decl1.

(141) AU, ‘Kampala Declaration on Refugees, Returnees and Internally Displaced Persons in Africa’ (AU Kampala 22–23 October 2009) Ext/Assembly/AU/PA/Draft/Decl (I) Rev1.

(142) AU (Executive Council), ‘Decision on the Situation of Refugees, Returnees and Internally Displaced Persons in Africa’ (AU Addis Ababa 25–29 January 2010) EX/CL/Dec529 (XVI) para 6.

(143) AU (Executive Council), ‘Decision on the Situation of Refugees, Returnees and Internally Displaced Persons in Africa’ (AU Kampala 19–23 July 2010) EX/CL/Dec558 (XVII) para 4.

(144) Interview with Olabisi Dare, Head, HARDP, 6 December 2016, Addis Ababa.

(145) AU (Assembly), ‘Decision on the Operationalization of the Specialized Technical Committees’ (AU Malabo 26–27 June 2014) Assembly/AU/Dec.526(XXIII) para 2.

(146) The Committee on Rural Economy and Agricultural Matters; the Committee on Monetary and Financial Affairs; the Committee on Trade, Customs and Immigration Matters; the Committee on Industry, Science and Technology, Natural Resources and Environment; the Committee on Transport, Communications and Tourism; the Committee on Health, Labour and Social Affairs; and the Committee on Education, Culture and Human Resources (AU Constitutive Act (n 112) art 14).

(147) AU Constitutive Act (n 112) art 15.

(148) AU (Assembly), ‘Decision on the Specialized Technical Committees’ (AU Addis Ababa 1–3 February 2009) Assembly/AU/Dec.227(XII) para 2.

(149) The new STCs are: agriculture, rural development, water, and environment; finance, monetary affairs, economic planning, and integration; trade, industry, and minerals; transport, transcontinental, and interregional infrastructures, energy and tourism; gender and women empowerment; justice and legal affairs; social development, labour, and employment; the public service, local government, urban development, and decentralization; health, population, and drug control; migration, refugees and IDPs; youth, culture, and sports; education, science, and technology; communication, and information and communication technologies; and defence, safety, and security.

(150) AU (Assembly), ‘Decision on the Specialized Technical Committees’ (AU Malabo 30 June to 1 July 2011) Assembly/AU/Dec.365(XVII) para 3.

(151) See section C.4.b. of this chapter.

(152) AU Commission (n 117) 53–54.

(153) See section C.2.

(154) AU, ‘Press Release No 342/2015: Specialized Technical Committee (STC) on Migration, Refugees and Internally Displaced Persons convenes at the African Union Commission, Headquarters’ (16 November 2015) <https://www.au.int/en/newsevents/16832/specialized-technical-committee-stc-migration-refugees-and-internally-displaced> accessed 28 March 2017.

(155) AU (Assembly), ‘Decision on the Common African Position on Humanitarian Effectiveness’ (AU Addis Ababa 30–31 January 2016) Assembly/AU/Dec.604(XXVI) para 1.

(156) ibid para 9.

(157) See section C.4.b.

(158) See section C.4.a.

(159) See section C.2.

(160) AU (STC), ‘Draft Common African Position (CAP) on the Global Compact for Safe, Orderly and Regular Migration’ (October 2017) AU/STC/MRIDP/4(II) <https://au.int/sites/default/files/newsevents/workingdocuments/33023-wd-draft_cap_migration19_oct_e.pdf> accessed 20 December 2017.

(161) AU (Directorate of Information and Communication), ‘Experts Session of the STC on Migration, Refugees and Displaced Persons Opens’ (17 October 2017) Press Release No 158/2017.

(162) AU, ‘The Permanent Representatives’ Committee’ <https://au.int/web/en/organs/prc> accessed 21 April 2017.

(163) Patrick Tigere and Rita Amukhobu, ‘The African Union’s Institutional Framework for Responding to Forced Displacement in Africa’ [2005] Conflict Trends 48, 53.

(164) AU, ‘The Permanent Representatives’ Committee (PRC)’ <https://au.int/organs/prc> accessed 4 August 2017.

(165) Interview with Olabisi Dare, Head, HARDP, 16 January 2012, Addis Ababa.

(166) AU (Executive Council), ‘Decision on the Report of the Sub-Committee on Refugees, Returnees and Internally Displaced Persons in Africa’ (AU Addis Ababa 21–28 January 2014) EX.CL/Dec.802 (XXIV) para 4.

(167) AU (Executive Council), ‘Decision on the Reports of the PRC Sub-Committees’ (AU Addis Ababa 23–27 January 2015) EX.CL/Dec.854 (XXVI) paras 18–21.

(168) ibid para 40.

(169) AU (Executive Council), ‘Decision on the Activities of the Permanent Representatives’ Committee’ (AU Addis Ababa 23–28 January 2016) EX.CL/Dec.899 (XXVIII) Rev.2, paras 55 and 57.

(170) AU (Executive Council), ‘Decision on the Reports of the PRC Sub-Committees’ (AU Johannesburg 7–12 June 2015) EX.CL/Dec.877 (XXVII) para 32(iii).

(171) ibid paras 31 and 32(i).

(172) ibid para 26.

(173) ibid para 27.

(174) ibid para 29.

(176) ibid para 37.

(177) ibid para 35.

(178) CCAPRRI, ‘Rules of Procedure of the AU Coordinating Committee on Assistance and Protection to Refugees, Returnees and Internally Displaced Persons in Africa’ (CCAPRRI Addis Ababa 9 November 2006) POL/DIR/113/2927 (XXVIII) art II.

(179) ibid art VI.

(180) Interview with Millicent Mutuli, Deputy Representative, UNHCR Representation to the AU and the UNECA, 16 January 2012, Addis Ababa.

(181) CCAPRRI (n 178) art I.

(182) Tigere and Amukhobu (n 163) 53.   

(183) Murray (n 6) 195.

(184) AU (Executive Council), ‘Decision on the Situation of Refugees, Returnees and Displaced Persons’ (AU Addis Ababa 30 June to 3 July 2004) EX/CL/Dec127 (V) para 12.

(185) AU (n 139) para 7.

(186) Tigere and Amukhobu (n 163) 53.

(187) AU (Executive Council), ‘Decision on the Situation of Refugees, Returnees and Displaced Persons’ (AU Sirte 28 June to 2 July 2005) EX/CL/Dec197 (VII) para 10.

(188) AU (Executive Council), ‘Decision on the Rules of Procedure of the Revitalized African Union Coordinating Committee on Assistance and Protection to Refugees, Returnees and Internally Displaced Persons in Africa’ (AU Addis Ababa 25–29 January 2008) EC/CL/Dec382 (XII) para 1.

(189) AU, ‘Statement of HE Mrs Julia Dolly Joiner AU Commissioner for Political Affairs to the 59th Session of the Executive Committee of the High Commissioner’s Programme’ (6–10 October 2009) 1.

(190) AU (Executive Council) (n 188) para 2.

(191) Mutuli interview (n 180).

(192) Tigere and Amukhobu (n 163) 53.

(193) CCAPRRI (n 178) art VII.

(194) Dare interview (n 165).

(195) Tigere and Amukhobu (n 163) 53.

(197) Dare interview (n 165).

(198) Murray (n 6) 193.

(200) Viljoen (n 1) 168.

(201) Jeremy Levitt, ‘The Peace and Security Council of the African Union: The Known Unknowns’ (2003) 13 Transnat’l L & Contemp Probs 109, 110.

(202) PSC Protocol (n 124).

(203) Abass and Mystris (n 5) 31.

(204) PSC Protocol (n 124) art 14(3)(d).

(205) AU (Assembly), ‘Solemn Declaration on a Common African Defence and Security Policy’ (AU Sirte 28 February 2004) para 22.

(206) AU Constitutive Act (n 112) art 4(d).

(207) AU (n 205) para 3.

(208) ibid para I(8)(iv)(n).

(209) ibid para I(8)(iv).

(210) ibid para II(12)(v).

(211) ibid para II(12).

(212) ibid para III(13)(v).

(213) ibid para VI(A)(1)(xxi).

(214) (Adopted 31 January 2005, entered into force 18 December 2009).

(215) ibid art 2(c).

(216) ibid art 17(b).

(217) ibid arts 12–14.

(218) Statute of the African Union Commission on International Law (adopted 4 February 2009, entered into force 4 February 2009) EX.CL/478(XIV)a, art 4.

(219) African Charter on Democracy, Elections and Governance (adopted 30 January 2007, entered into force 15 February 2012).

(220) (n 108) art 4(2)(i).

(221) ibid art 43.

(222) AU (Assembly), ‘Decision on the Report of the Commission on Development of the African Union Agenda 2063 and the Report of the Ministerial Follow-Up Committee on the Bahr Dar Retreat’ (AU Addis Ababa 30–31 January 2015) Assembly/AU/Dec.565(XXIV) para 6.

(223) AU Commission, ‘Agenda 2063: The Africa We Want—Popular Version’ (April 2015) para 20.

(224) ibid para 23.

(225) AU (Assembly), ‘Declaration on Migration’ (AU Johannesburg 14–15 June 2015) Assembly/AU/Decl.6(XXV) para iii.

(226) ibid para i.

(227) AU (Executive Council), ‘Decision on the Mekele Retreat of the Executive Council’ (AU Addis Ababa 23–28 January 2016) EX.CL.Dec.908(XXVIII)Rev.1, para 18.

(228) Graduate Institute of International and Development Studies, ‘Vincent Chetail has Drafted the Future Treaty on the Free Movement of Persons in Africa’ (3 April 2017) <http://graduateinstitute.ch/home/research/research-news.html/_/news/research/2017/prof-chetail-has-drafted-the-fut> accessed 2 August 2017.

(229) AU (Assembly), ‘Decision on Free Movement of Persons and the African Passport’ (AU Kigali 17–18 July 2016) Assembly/AU/Dec.607(XXVII) para 3.

(230) AU (Commission), ‘Press Release: African Union Set to Launch e-Passport at July Summit in Rwanda’ (13 June 2016) <https://au.int/en/pressreleases/30770/african-union-set-launch-e-passport-july-summit-rwanda> accessed 12 April 2017.

(231) Institute for Security Studies Peace and Security Council Report, ‘30th AU Summit: Time to Implement First AU Reforms’ (9 January 2018) <https://issafrica.org/pscreport/on-the-agenda/30th-au-summit-time-to-implement-first-au-reforms?utm_source=BenchmarkEmail&utm_campaign=PSC_Report&utm_medium=email> accessed 12 January 2018.

(232) AU, ‘Draft Protocol to the Treaty Establishing the African Economic Community Relating to Free Movement of Persons, Right of Residence and Right of Establishment’ (July 2017) <https://au.int/sites/default/files/newsevents/workingdocuments/33023-wd-pa20330_e_original_free_movement_protocol.pdf> accessed 21 December 2017.

(233) ibid art 24.

(234) Consolidated Version of the Treaty on the Functioning of the European Union, 26 October 2012, OJ 326/01, arts 20, 21, and 45.

(235) Protocol on Asylum for Nationals of Member States, 16 December 2004, OJ C 310/362, sole article.

(236) Relatedly, the EU’s Qualification Directive applies only to third country nationals and stateless persons.

(237) The Aznar Protocol’s sole article provides, ‘Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters’. The case of MSS v Belgium and Greece (App No 30696/09 (Grand Chamber, 21 January 2011)) has highlighted that human rights are not in fact uniformly protected across Europe, and in so doing has underlined just how problematic the Aznar Protocol is.

(238) How rights of establishment may complement refugee protection can be seen in Uganda. Section 9 of that country’s Refugees Regulations provide that a ‘person who applies and is granted refugee status in Uganda and is a national of the East Africa Community shall enjoy all the rights and privileges bestowed on the “Community nationals” and as set out in the Treaty and Protocols for the establishment of the East Africa Community’.

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

(240) Regarding the meaning of ‘in the same circumstances’, see the 1951 Convention ((adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137) art 6.

(241) Free Movement Protocol (n 232) arts 14, 16, and 17.

(242) Such improved treatment is of course in addition to the African Charter’s robust protection of freedom of movement and residence under article 12(1).

(243) AU (HARDP), ‘African Union Humanitarian Policy Framework’ (November 2015) <http://www.peaceau.org/uploads/humanitarian-policy-framework-rev-final-version.pdf> accessed 6 April 2017, para 3.

(244) ibid para 13.

(245) ibid para 17.   

(246) ibid para 14.

(247) Barbara Harrell-Bond, Imposing Aid: Emergency Assistance to Refugees (OUP 1986).

(248) AU, ‘Common African Position (CAP) on Humanitarian Effectiveness: One Africa, One Voice, One Message at the World Humanitarian Summit’ (March 2016) 12.

(249) ibid.

(250) ibid 13.

(251) AU (Executive Council), ‘Decision on the Humanitarian Situation in Africa’ (AU Malabo 20–24 June 2014) EX.CL/Dec.817(XXV) para 8.

(252) AU (n 155) para 9.

(253) See, generally, Romola Adeola, ‘Africa Has Some Work to do Before it Starts its own Humanitarian Agency’ (10 October 2016) <http://theconversation.com/africa-has-some-work-to-do-before-it-starts-its-own-humanitarian-agency-65960> accessed 6 April 2017.

(254) AU (n 248) 13.   

(255) ibid.   

(256) ibid 21.   

(257) ibid 15.   

(258) ibid 25.

(259) Nyanduga (n 3) 102.

(260) UNGA, ‘Assistance to Refugees, Returnees and Displaced Persons in Africa, Report of the Secretary General’ (20 August 2015) UN Doc A/70/337, para 2.

(261) See, for example, Bonaventure Rutinwa, ‘The End of Asylum? The Changing Nature of Refugee Policies in Africa’ (2002) 21 RSQ 12; Jeff Crisp, ‘No Solution in Sight: The Problem of Protracted Refugee Situations in Africa’ in Itaru Ohta and Yntiso Gebre (eds), Displacement Risks in Africa: Refugees, Resettlers and Their Host Population (Kyoto University Press 2005); Guglielmo Verdirame and Barbara Harrell-Bond, Rights in Exile: Janus Faced Humanitarianism (Berghahn Books 2005).

(262) AU (Assembly), ‘Accra Declaration on the Union Government of Africa’ (AU Accra 3 July 2007) <http://www.dirco.gov.za/docs/2007/ghan_decl0706.htm> accessed 23 December 2017.

(263) Abedabo Adedeji et al, ‘Audit of the African Union’ (2007) <http://osf.org.za/wp-content/uploads/2015/08/Audit-of-the-African-Union-Report-of-the-High-Level-Panel.pdf> accessed 23 December 2017.

(265) AU (Assembly), ‘Decision on the Institutional Reform of the African Union’ (AU Kigali 17–18 July 2016) AU/Dec/606 (XXVII) para 2.

(266) Kagame (n 264) 4.

(267) ibid 5.

(268) AU (Assembly), ‘Decision on the Outcome of the Retreat of the Assembly of the African Union on the Institutional Reform of the African Union’ (AU Addis Ababa 30–31 January 2017) Assembly/AU/Dec.635 (XXVIII) para 5.

(269) Kagame (n 264) 5.

(270) Institute for Security Studies Peace and Security Council Report (n 231).

(271) AU Commission (n 223) aspirations 1, 3, and 4.