This research explores the developing legal norms that can be adopted to operationalise the Convention Relating to the Status of Refugees of 1951 and its 1967 Protocol (CSR) in the East African Community (EAC). The focus is on exploring the refugee definition in light of the significant interpretation of the refugee concept since its inception under the CSR. Recent developments in the field of international human rights law have broadened the basic CSR refugee concept. Not only has the OAU Convention expanded the CSR definition, two of the EAC States have pushed the borders even further by explicitly including gender issues while another has included inhuman and degrading treatment as nexus grounds within their refugee definition. This research argues that a common EAC refugee law is necessary and has a legal basis in the EAC Treaty. The objective is to make a comparative study, forecast and come up with a definition that is appropriate for East Africa, reflects the international obligations of the EAC states, and reflects the most innovative and advanced aspects of refugee law.

1.0 CHAPTER ONE: INTRODUCTION

1.1 Introduction

This Chapter provides the context and background of the East African Community (EAC).[1] It examines and places the refugee issues in the EAC within the context of the African continent and the world at large. It describes the history of the EAC, explores whether there is a legal basis for the common refugee definition and lays out the research questions and methodology.

1.2 Background to the research

1.2.1 Asylum seekers and refugee status: definition, facts, figures

Refugee law has been described as the ‘world’s most powerful human rights mechanism.’[2] Once an asylum seeker has been classified as a ‘refugee’, a country will have obligations towards such a person as one deserving of international protection.[3] Whittaker describes an asylum seeker as a person outside his country, in transit, who is requesting for sanctuary in another.[4] According to the UNHCR, a person becomes a refugee once they fulfil the criteria contained in the refugee definition and all a state does is simply to recognise it.[5] For purposes of this research, the grant of refugee status by a country is the defining moment of obtaining refugee status.

According to the UNHCR, by the end of 2018, approximately 70.8 million people, out of which 25.9 million were refugees and 3.5 million were asylum seekers, had been forcibly displaced worldwide for varied reasons.[6]At least 4 in every 5 refugees lived in a country neighbouring their country of origin.[7] The developed regions hosted 16 percent of the global refugee population while one third that translates into about 6.7 million people were hosted in the least developed countries.[8]

Major refugee crises in Sub-Saharan African Countries have seen people flee into the neighbouring countries.[9] In 2018, South Sudan an EAC state, ranked 3rd among the top five refugee-producing countries in the world with 2.3 million refugees while Somalia, a country neighboring the EAC region, ranked 5^th having generated 0.9 million refugees.[10] These refugee crises have largely been a post-independence era feature.[11]

Refugee statistics in Table 1 below indicate that Africa generates and hosts many refugees. Refugees on the territory of a region and those who originate from a particular region are indicated to provide a clearer picture of where the refugee problems lies.

Table 1: Persons of concern to UNHCR – by region (Adapted from UNHCR Global Refugee Agency, ‘Global Trends: Forced Displacement 2018’, Annex Tables 1 & 2)

	Major Regions	Refugees by		Asylum seekers by
	Major Regions	Origin	Territory	Origin	Territory
1	Africa	7,362,743	6,745,759	937,296	611,970
2	Asia	12,038,587	10,029,440	1,335,858	593,759
3	Europe	260,072	2,742,933	128,741	924,193
4	Latin America & the Caribbean	232,349	107,148	1,023,572	513,854
5	North America	418	427,350	2,932	797,800
6	Oceania	1,257	64,911	2,216	61,708
7	Various/stateless	222,115	-	72,669	-
	TOTAL	20,117,541	20,117,541	3,503,284	3,503,284

Table 2 shows the refugee problem in the EAC. Uganda is the highest refugee hosting country while South Sudan is the highest refugee producing country in the EAC.

Table 2: Persons of concern to UNHCR within the EAC region (Adapted from UNHCR Global Refugee Agency, ‘Global Trends: Forced Displacement 2018’, Annex Tables 1 & 2)

	EAC Countries	Refugees by		Asylum seekers by
	EAC Countries	origin	territory	origin	territory
1	Uganda	7,035	1,165,653	10,969	25,269
2	South Sudan	2,285,257	291,842	12,717	2,541
3	Burundi	387,862	71,507	53,377	5,670
4	Rwanda	247,481	141,617	13,776	420
5	Kenya	7,489	421,248	7,309	50,476
6	Tanzania	735	278,322	1,673	39,659
	TOTAL	2,935,859	2,370,189	99,821	124,035

1.2.2 History of the EAC

Adopting a common refugee law in the EAC would be just another step to exploit the already existing cooperation among the EAC states. Gastorn et al have traced the history of this cooperation to over a century ago with origins arising from as a series of uncoordinated events.[12] They recount pre-colonial African communities were not organized along ethnic, country or tribal lines. Rather, their identities and vernacular languages simply shaded into one another and they preferred collaboration over competition.[13] However, ‘at the whim of few cartographers in London, Berlin or Paris’, this changed when colonies and boundaries were established to satisfy the economic interests of imperialists’ sorting African peoples in tribes and forging a new ethnic map; one that could be more simply recognisable and easily controlled. [14]

From 1884 to 1919, Burundi, Rwanda and Tanganyika provinces were a single German East Africa territory under German colonial rule while Kenya and Uganda, as distinct territories, were under British Colonial rule. German’s defeat in World War I led to the Versailles Treaty of 1919 which saw Burundi and Rwanda become autonomous territories and placed under Belgium rule. As directed by the League of Nations, Tanganyika (later Tanzania) was placed under British rule and later, held as a trust territory under the United Nations.

Gastorn et al identified four stages of the formation of the EAC. Phase one began in 1895 with the construction of the Uganda railway joining Mombasa in Kenya and Uganda leading to the 1900 common market between Kenya and Uganda and a customs union evidenced by the adoption of the East African Shilling in 1905. The 2^nd phase was marked by German’s defeat in 1922 that saw Britain take over Tanganyika and add it to the customs union in 1933.

In 1967, owing to disagreements that led to a failure to establish a political federation, an East African Cooperation of 1967 was established instead marking the end of the third phase which also saw the Common Market Council and the Common Market Tribunal established.[15] The fact of Kenya’s acquisition of a lion’s share of the benefits of the market led to discontent and ultimately, the end of the cooperation in 1977. The fourth phase was marked by Article 2 of the EAC Treaty which established the East African Community.[16]

The uniqueness of the EAC Treaty lies in the fact that it provides for cooperation beyond the economic objectives.[17] The focus is on widening and deepening cooperation among the three founding member states in the political, social, economic and cultural arena.[18] The ultimate goal of the EAC is to promote integrated development by forming a political federation, the precursor to this being the Customs Union, Common Market, and a monetary union in that order.[19] The EAC Customs Union Common Protocol came into force in 2004 while the EAC Common Market Protocol came into force in July 2010.[20]

1.2.3 The legal basis of the refugee law in the EAC Treaty

The Treaty places refugee issues under a broader theme of peace and security covered under Art 124-the only article in which the word ‘refugee’ is encountered. Under Art 124 (3) Partner States ‘undertake to establish common mechanisms for the management of refugees.’ Art 124 (5) (h) provides that the Partner States agree to enhance co-operation in the handling criminal matters with a cross border nature and for that reason, adopt measures for maintaining and promoting security in their territories by inter alia taking steps to ‘establish common mechanisms for the management of refugees.’

A clear reading of the Art 124, shows clearly that common mechanisms of dealing with the refugee problem are envisaged. Even if art 124 does not exactly grant the power to enact a refugee law and come up with a common refugee definition, it is argued here, a generous interpretation can lead to that conclusion. Alternatively, the treaty could be amended to give express power to enact a common refugee law providing for a common refugee definition in the EAC. The organ in charge of drafting the refugee law would be the East African Legislative Assembly whose mandate is to further the EAC objectives of deepening cooperation among EAC states in legal affairs.[21]

1.2.4 The African Union (AU)

It is important to understand the AU, its institutions and laws in order to understand how it could influence the EAC states common refugee definition and mechanisms.

The Organisation of African Unity (OAU) was formed in 1963 with the signing of the OAU Charter.[22] In 1999, a new Constitutive Act renamed the OAU as the African Union (AU) and established the Court of Justice of the AU.[23]

EAC states that are members of the AU have unique obligations under treaties signed under the AU most notably, the OAU Convention relating to Specific Aspects of the Refugee Problem in Africa (OAU Convention), a formally binding instrument.[24] As will be seen, this Convention obliges member states to have a wider definition of a refugee than the CSR.

A Special Rapporteur on the Rights of Refugees was appointed in 2004 to promote the implementation of the CSR and OAU Conventions.[25] The AU also has other treaties with an impact on refugee mechanisms most notably, the 1981 African Charter (the Banjul Charter).[26] The Charter established the African Commission (ACmHPR) to oversee the implementation of that Charter and with a mandate to receive communications alleging human rights violations.[27]

A subsequent 1998 protocol created The African Court on Human and People’s Rights (ACtHPR) which became operational in 2006, to complement the ACmHPR by filling the lacuna of the absence of legally-enforceable judgments.[28] A Malaba Protocol of 2014 merged the African Court on Human and People’s Rights and the Court of Justice of the African Union into ‘The African Court of Justice and Human Rights’ as the forum of human rights litigation and interpretation of the OAU charter and its other instruments.[29]

Even if some of the instruments have been criticised for their failure to allow for automatic individual and NGO access, instead requiring states instead to make a declaration accepting the institutions’ jurisdiction,[30] this research notes that Communications from the African Commission and the decisions of the new Court[31] touching on refugee matters could be instrumental in the future in the interpretation of the refugee definition in the OAU Convention.[32]

1.3 Statement of the Problem

There is a legal basis for a regional refugee law or at least to start the discussion of a uniform EAC refugee law. However, as has been noted, ‘[D]espite the various commitments in instruments such as the Treaty and EAC Common Market and Peace and Security protocols, there exists no common approach in the Community to the management of refugee matters.’[33] Whereas much is being done in the field of commerce, little has been done in the field of refugee law at the EAC level even though, unlike some other regional blocks, the founding treaty expressly mentions the establishment of Common Refugee mechanisms. [34] A common refugee law that provides a uniform, clear and appropriate refugee definition is necessary. No literature directly addressing what this EAC refugee definition could and/or should be could be traced.

1.4 Research question

What should the East African Community refugee definition be?

1.5 Justification for the research

It has been established that the majority of the world’s refugees are hosted by developing countries who also generate the greatest number of refugees; the search for solutions has drawn closer to these states. [35] It has also been noted that refugee problems arise from multiple variations in laws, culture, and norms and should, therefore, be analysed within the lenses of the peculiar regional and institutional establishments in the search for workable solutions.[36] It has also been posited that effective refugee legal frameworks in sub-regional organisations such as the EAC are a possible solution.[37] By 2014, however, sub-regional responses to the refugee issues in Africa were said to be ‘underdeveloped, largely unknown and unexplained.’[38]

This research thus sets out to explain the legal framework that governs and defines refugees within the EAC states and to shed a light on what issues of controversy may be encountered by the member states in crafting a common refugee definition. According to Andrade, due to the fact that States have been interpreting the CSR and other international instruments and applying international refugee law in quite different ways, there is a challenge of rationalization and systematization of existing practice.[39]

The preamble of the EU Directive applying the CSR indicates that a harmonised legal regime governing refugees offers similar refugee rules that could reduce secondary movement of asylum seekers between the EU Partner States literally based on the different legal frameworks.[40] Uniform standards for the definition can also guide national bodies of Member States in the application of the refugee Conventions.[41]

1.6 Research Methodology

This is doctrinal legal research involving the examination of the definition of a refugee within the international, regional and national realm. International Human rights law will be examined as far as it is relevant to the development and interpretation of the refugee definition. It is descriptive as to the status of the EAC states with regards to their obligations within the legal framework of the CSR, OAU Convention, and the EAC Treaty.

Since the Geneva Convention has no treaty body to supervise the implementation of the CSR to clarify on the refugee definition, recourse shall be had to the guidelines of the UNHCR and jurisprudence from other States where relevant.[42] A comparative approach will, therefore, be adopted in examining the different interpretations adopted by different jurisdictions of the refugee definition offered in the CSR with regards to the well-founded fear and its burden and standard of proof, persecution, internal relocation, and the nexus grounds. The European Union as one of the oldest regional blocks with an established, albeit evolving refugee legal framework, is adopted for comparison.[43]

This research does not entail a detailed examination of the procedure of the status determination process in the EAC states. It also excludes the grounds of exclusion from the grant of or cessation of refugee status.

2.0 CHAPTER TWO: INTERNATIONAL REFUGEE LAW

2.1 Introduction

This chapter examines the laws relating to refugees on the international and continental level in so far as they are relevant to crafting an EAC refugee definition. It examines the CSR, OAU Convention, the EU Directives and other related International human rights Instruments.

2.2 The Convention Relating to the Status of Refugees

Grounded in Art 14 of the UDHR, the 1951 Convention and its 1967 Protocol (CSR) represent the international legal framework for refugee law and has been widely adopted as a convergence point worldwide laying down basic minimum standards for the treatment of refugees.[44]

The CSR, a status and rights-based instrument, is underpinned by a number of fundamental principles of non-discrimination (art 3), non-penalization (art 31) and non-refoulement (art 33). Art 1 defines a refugee as someone who is unable or unwilling to return to their country of origin:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.(emphasis mine)

This definition has been adopted by other institutions in some cases with more favourable modifications either through human rights considerations or in response to peculiar problems faced by different regions.[45] Hugo notes that regional definitions seek to overcome the huddle left by the minimalist refugee definition which does not define any of the terms contained therein and could lead to very wide variations when each state unilaterally adds to it through statutory and/or case law.[46]

2.3 The African Union

2.3.1 OAU Convention

The Convention applies to all persons within a country’s jurisdiction and does not exclude persons whose nationality or country of origin is outside Africa.[47] It stresses the importance of the grant of asylum and provides that the grant of asylum to refugees is a ‘peaceful and humanitarian act and shall not be regarded as an unfriendly act by any Member State.’[48] It calls upon AU member states to use ‘their best endeavours consistent with their respective legislations to receive refugees’ and to secure their settlement.[49] It prohibits non-refoulement and uniquely goes even further to discourage measures such as rejection at the frontier, return or expulsion to prevent threats to the asylum seeker’s life, physical integrity or liberty in another territory.[50]

It has been noted that the OAU Convention, provides a unique definition that not only incorporates but expands and complements the CSR definition and similarly triggers the standards of treatment required by the CSR. [51] Article 1(1) incorporates the CSR definition. The divergence lies in Art 1(2) which provides:

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

The UNHCR has advised that refugee assessments under the CSR and regional definitions are not mutually exclusive and thus, a sequential approach where refugee status is first assessed under the CSR before it is done under the regional definitions is preferred.[52] The regional definitions are of more practical and efficient application in group situations or in specific regional contexts.[53]

2.3.2 The AU and Human Rights

The OAU refugee Convention is supplemented by the Banjul Charter,[54] Article 26 of the ICCPR[55] and Article 3 of the CSR inter alia which prohibit discrimination on grounds of race, religion inter alia. Art 12.3 of the Banjul Charter provides that every individual shall have the right, when persecuted, ‘to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions’ while Art 12.5 prohibits the “mass expulsion of strangers...’ and explains that mass expulsion is that which ‘targets national, racial, ethnic or religious groups as a whole’.[56]

2.4 The European Union

2.4.1 The EU Refugee Framework

Unlike the EAC Treaty, the European Union founding treaty does not mention the word ‘refugees’ though they have developed competence in the area.[57] The European Council at its special meeting in Tampere in 1999 agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the CSR by including the approximation of rules on the recognition of refugees and the content of refugee status.[58]

The Amsterdam Treaty[59] ushered in Directives governing asylum laws and procedure which adopted the CSR refugee definition but gave it more context.[60] By these Directives, the EU states are obligated to apply similar standards for interpreting and applying the refugee definition.[61] It has been argued that even read simply as a set of provisions giving interpretive guidelines on the application of the CSR, the 2011 QD affects many things concerned with refugee eligibility because the provisions cover key elements of the refugee definition.[62] These Directives have been assessed as at times going beyond the CSR and falling short in certain instances.[63]

The 2011 QD[64] which amended the 2004 QD is the legal framework against which the OAU Convention is compared. This Directive has been adopted by EU states though at times with some few but significant variations.[65]

2.4.2 The EU Refugee Definition

The refugee definition is found in Article 2(d) which substantially restates the CSR definition. Other provisions provide context to the CSR definition with regards to what constitutes persecution, the nexus grounds, well-founded fear among others as will be examined in Chapters four and five.

It is important to note that, pursuant to human rights considerations, the EU has developed another category of persons who, though they do not meet the CSR refugee criteria, may be granted recognition under what is called ‘subsidiary protection’.[66]

2.4.3 Human Rights and the EU Refuge definition

With the signing of the Lisbon Treaty, the Charter of Fundamental Rights of the European Union (EU Charter) came into force.[67] Art 18 thereof provides that the right to asylum shall be respected with due regard to the CSR and in line with the Treaty Establishing the EU. The refugee definition has been supplemented by International Human rights treaties like the Art 3 of the UNCAT,[68] Art 3 of the ECHRts[69] and the UNHCR’s interpretation of Art 7 of the ICCPR.[70]

It is vital to note that the non-derogable rights in Art 15 of the ECHRts have been reflected in the interpretation of acts of persecution in the 2011 QD.[71] The OAU Convention has no such specific reference to any regional human rights instrument as a yardstick of interpretation perhaps because it predates them. In Art 2(1), it instead places emphasis on the domestic law of the States concerned and has been noted to contain little human rights consideration.[72] The reason has been said to be because the primary concern of African states by 1969 when the OAU Convention was enacted was to fight colonialism and help each other gain independence by giving asylum to freedom fighters.[73]

2.5 Conclusion

The CSR and OAU Convention are complementary and thus any EAC refugee definition would have to take cognisance of both instruments. International and regional human rights instruments also carry obligations for individual EAC states that have ratified them and are thus relevant as a yardstick for interpreting and crafting a refugee definition.

3.0 CHAPTER THREE: THE EAC STATES LEGAL REGIME

3.1 Introduction

This chapter examines whether the EAC states have ratified the CSR and OAU Conventions and thus also whether they have similar refugee definitions. Similar laws could provide a uniform base from which a common definition can be more easily crafted. It also explains their refugee determination procedures and the role of the UNHCR.

3.2 The EAC States and the Refugee definition

All the EAC states have ratified and adopted both the CSR and OAU Convention refugee definitions within their Refugee Acts. [74] Whereas they incorporated the refugee definitions,[75] there were some variations in the context given to the definition by some states.

South Sudan expressly extends refugee status to a refugee’s dependant.[76] Uganda[77] and South Sudan[78] laws go beyond the CSR and OAU Conventions by providing that a well-founded fear of persecution for ‘failing to conform to gender discriminating practices’ is also a nexus ground. Burundi also deviates from the CSR and OAU definitions by expressly including human rights considerations in the nexus grounds under Art 5 which states:

An asylum seeker with a well-founded fear of facing a threat to their life or freedom in their country through exposure or are threatened in their country of inhuman or degrading treatment shall be entitled to refugee status when such threats or risks emanate from persons or distinct groups or public authorities of that country.

This appears supplementary to the OAU Convention because introduces a human rights element and excludes situations where the actors of persecution are foreign persons, groups or governments in acts of external aggression or foreign domination as contemplated under the Convention.

All the states permit[79] group recognition of refugees in mass influx situations in which each individual member of a particular group is presumed to qualify for refugee status based on objective information on the circumstances causing their flight.[80] In Rwanda, the Committee can still analyse individual applications where necessary and may revoke such prima facie status for reasons of territorial integrity and security of the nation under its Art 17. Surprisingly, under the Kenyan Act, an individual applicant outside mass influx situations is also recognised as a ‘prima facie refugee’, a term that is neither defined in the Act or the OAU Convention though it is often used in reference to a group recognitions.

The EAC states except Burundi do not explain what the well-founded fear is. Burundi’s Art 9 (1)-(5) requires that a well-founded fear of persecution should be established just like it is required to be established under the Geneva Convention and further provides that the applicant should be credible and inconsistent. However, if one applies under OAU, then circumstantial evidence could be sufficient and there is no need to prove that persecution is personalised.[81]

3.3 Judicial decisions

Very few judicial decisions from the EAC states on the refugee definition could be traced. This could be due to the fact that the UNHCR has been carrying out many of the refugee status determinations many of which have been cases of mass influx and where the financial capacity or ability to make individual determinations is not only expensive but also impracticable given the large numbers and urgency of the situation. It could also be due to the legal procedures that impede or expressly bar appeals to Courts of law.

In Uganda, a negative decision can be appealed to the Appeal’s Board whose decision is final.[82] There is thus no recourse to the High Court of Uganda, as a court of record, on refugee matters except possibly by way of judicial review.[83] Even such a challenge pertains only to the legality and the fairness of the adopted procedure without delving into the merits of the decision as long as the decision is one of the several reasonable conclusions available to the decision maker.[84] Further appeals against negative decisions for refugee status in Kenya and South Sudan lie to the High Court.[85] In Tanzania,[86] an applicant can petition the Minister for review while in Kenya the decision of this Committee can also be appealed to the Minister; in both cases, the Minister’s decision is final. The importance of judicial decisions lies in the fact that they enable the states to give uniform interpretation to the refugee definition, an aspect that could be useful guidance in providing the much-needed context of the refugee definitions. There is a need to build capacity in terms of refugee determination procedure, encouraging access to Court and publishing these decisions.

3.4 The role of the UNHCR

The EAC states exhibit cooperation with the UNHCR by inter alia allowing its representatives to participate in refugee status determinations. In Uganda, the grant of refugee status is made by an Eligibility Committee, however, the application by an asylum seeker can be made directly to the UNHCR representative who then forwards the same to the Commissioner to place before the Committee for determination.[87] In Kenya, the Commissioner for Refugee Affairs, under s.7, is required to liaise with the UNHCR in managing reception and care for refugees. A negative decision on a refugee application in Burundi can be appealed to the Appeals Committee by any interested party including the UNHCR.[88] In Tanzania, the Director’s office is obliged to inform the UNHCR of every refugee application or inform the applicant of their right to contact the UNHCR and the decision made on it is communicated to the UNHCR representative too.[89] This interaction and hands-on experience of the UNHCR within the EAC indicates that the importance of the recommendations and guidelines of the UNHCR in interpreting the CSR and OAU Convention cannot be overstated.

On a less positive note, Odhiambo notes that in practice, many African states place too much reliance on the UNHCR in handling refugee determinations. [90] For instance, he notes that between 1992 and 2006, the UNHCR handled the entire refugee application system in Kenya, a situation that was said to be representative of the other African states. The pressure should be put on the states to operationalise their laws so that the UNHCR only acts as a watch-dog.[91]

3.5 Conclusion

All EAC member states have ratified both the CSR and OAU Conventions and have a relatively harmonised position which can be supplemented by human rights developments some of which have already been embraced by Uganda, Burundi, and South Sudan. The UNHCR remains invaluable in guiding the EAC on what refugee definition should be adopted and how it should be interpreted.

4.0 CHAPTER FOUR: EXPLORING THE REFUGEE DEFINITION

4.1 Introduction

This chapter offers a critic and comparison of the refugee definition in the CSR, OAU Convention and the 2011 QD. The focus of the chapter is the well-founded fear, persecution, internal relocation alternative, the fate of civil war refugees and the limits of the OAU Convention. Concentration is placed on matters deemed contentious and those that are in sharp contrast with the OAU Convention.

4.2 Well-founded fear

4.2.1 Forward-looking nature and approaches

It is a requirement under the CSR that in order to obtain a grant of refugee status, one should have a well-founded fear of persecution which means, a genuine risk of persecution that renders them unable to return to their home country.[92] It is generally agreed that when decision-makers consider an applicant’s past events and the risk of future harm, the assessment of a well-founded fear should be forward-looking in nature, mandating a forward-looking apprehension of risk.[93]

There is however a split as to whether a bipartite or an objective nature of approach should be employed during refugee status determinations.[94] Many common law countries adopt the UNHCR bipartite approach which advocates for a requirement of both a subjective and objective assessment of the fear in refugee applications.[95]

The bipartite approach requires that to prove the subjective element, an applicant should perceive herself to stand in ‘terror of persecution’; any personal response to return should reflect extreme anxiety that is neither overstated nor feigned.[96] The second and objective element is the requirement that this risk should be clear from credible evidence reflected in the actual experience while in the country of origin and must be consistent with the available information from the country of origin so that any fear alleged is assessed as reasonable.[97]

Australia,[98] Canada,[99] USA,[100] Ireland[101] , and the UK [102] apply this bipartite approach requiring the subjective aspect. New Zealand rejected it as ‘no more than guesswork’ because certain things may be feared by an individual but when objectively assessed, there is no tenable foundation.[103]

Unlike the bipartite approach, the objective approach does not examine the emotional reaction of the person seeking protection and posits that fear can only be established by analysing the ‘actual state of affairs in that country’.[104] Hathaway and Foster have criticised the bipartite approach as being ‘neither desirable as matter of principle nor defensible as a matter of international law’ because it places an additional burden of proof that does not in itself create any presumption in favour of refugee status.[105] They argue that it denies protection to those that cannot show a ‘real chance of present or prospective persecution’ yet even if they prove subjective fear, refugee status does not necessarily follow.[106]

They further explain that it is inherently challenging in a formal hearing process which usually has a diversity of applicants, for decision makers to determine process, whether an applicant is fearful or not.[107] This could explain why in J.G Ethiopia v R.A.T a Court Judge in Ireland noted that ‘decision-makers have to be very careful in relation to findings on the way that a witness presents him or herself.’[108]

In some jurisdictions, decision makers have resorted to looking at certain acts as objectifying fear when they are faced with determining the subjective fear for instance equating subjective fear with credibility [109] of the applicant, looking at the pre-flight conduct,[110] delay in fleeing[111], pre-application conduct[112] in not applying[113] for asylum in an intermediate country, delay in claiming[114] for refugee status in the asylum country, and return to the country of origin.[115] Traumatised applicants with PSTD or suffering from ‘speechless terror’ as in J.G (Ethiopia) v R.A.T[116] and children[117] who cannot effectively communicate their fear have also been treated as exceptions.

While Hathaway and Foster have been criticised as partisan in Ireland,[118] their assertions are advocated for here as valid and desirable especially due to the practical challenges presented by the inherently subjective test discussed above, the grave risks of error and in light of the history of the CSR that did not require it.[119] That test may also not be ideal in mass influx cases requiring group determinations that are common in within the EAC states, where only proof of membership and non-exclusion that need to be proved, and where the capacity to conduct individual refugee determinations is limited.[120]

The OAU Convention refugee definition in Art 1(1) does not require any subjective fear of a ‘targeted individual’ but only that one is ‘compelled to leave’. This is because the OAU Convention was meant to provide international protection in specified humanitarian situations where large masses flee from specific events in their country of origin.[121] The fact that all members of a specific community are at risk has been said only to strengthen but does not undermine the individual applicant’s claim.[122] There is also no differential risk, thus, one is not required to prove the risk of harm over and above the other nationals especially in situations of armed conflict.[123] According to Mendel, Art 1(1), taken together with Art 1(6) that leaves it up to a state to provide a determination as to refugee status as opposed to an individually-actuated judicial process, provides a base for the possibility of group determination making it more appropriate for Africa’s needs and capabilities.[124] It is recommended that any EAC refugee definition, therefore, should reflect this objective approach under the OAU Convention if they are to remain equipped to deal with the frequent mass influx situations and also fulfil their obligations under the OAU Convention.[125]

4.2.2 The standard of proof

This is the threshold to be met by applicants to prove facts that support their refugee claim.[126] There is no universally accepted standard of proof.[127] Both the CSR and the 2011 QD do not set a clear standard of proof with regards to past events or real risk (future risk) of persecution thus leaving the interpretation to the state courts which have adopted different approaches or wording.[128]

Regarding past events, some states have settled for the civil standard of a balance of probabilities while some have settled for less onerous standards. Hathaway and Foster explain that past events may be valuable where there is no country of origin information and also because it is not automatic that broadly framed data will apply to all in that country due to particularised circumstances.[129] In the O.N case, O’ Regan J, after analysing the standard in the UNHCR, held that the Irish Court was bound by the Irish civil law procedure standard of proof, which, in absence of amendment, he was bound to apply.[130] He adopted the higher UNHCR standard of a balance of probabilities but coupled with a benefit of the doubt.

Regarding the ‘real risk’ of persecution, the UNHCR guidelines provide for a ‘reasonable degree of likelihood’ standard that is lower than the civil law standard of proof in common law countries.[131] The US Supreme Court rejected the proof of risk on a balance of probabilities which required one to prove that the risk was ‘reasonably likely to occur’, preferring a more generous and less onerous ‘reasonable possibility’ test as long as an objective situation is established.[132] Similarly, the UK House of Lords held that there must be an objective situation evidenced by a reasonable chance or serious possibility of persecution indicative of a ‘real and substantial danger of persecution; in essence, they adopted the test of the reasonable degree of likelihood.’[133] Canada also rejected the balance of probabilities standard preferring the ‘serious possibility’ or ‘reasonable possibility’ standard.[134] In Ireland, however, a Judge observed that the different words used by the different states reflect similar standards and can be used interchangeably, settled for ‘in or about a 30% chance’ or ‘reasonable degree of likelihood’.[135] The US Mogharrabi case, test of a ‘reasonable person in the applicant’s shoes’ has been said to be risky and deviates from the objective approach.[136]

Lastly, both the CSR and the 2011 QD also recognise, that those who have not experienced past persecution can also face prospective persecution and can also entitled to refugee status.[137] A well-founded fear within the refugee definition in the EAC thus should be able to arise sur place.[138]

Table 2 showed that many refugees remain within the EAC. It is likely that objective evidence is easily attainable especially given the fact that many of these are mass influx situations. Under the OAU Convention, the argument as to subjective fear and real risk may not be very relevant except to the extent that it adopts the CSR definition, in which case an objective approach has already been recommended. The EAC should recognise a threshold of reasonable degree of likelihood for objective situations that ‘compelled’ asylum seekers to flee especially since the decision maker has an investigative role.

4.2.3 The burden of proof and the shared duty of fact-finding

While the burden of proof rests upon an applicant under the UNHCR guidelines and Art 4(1) of the 2011 QD, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner whose role is investigative.[139] This is a position that has been adopted by several countries including Ireland and is recommended in the EAC. It should, however, be modified to suit the OAU and current statutes of EAC states that may not require all details of facts and circumstances listed in Art 4 of the 2011 QD in mass influx cases except when recording the identities of asylum seekers to help settle them in the host country.[140]

4.3 Civil war ‘refugees’

There is a divergence in jurisprudence on the interpretation of a well-founded fear when whole populations flee because it becomes difficult to establish the reasons for fleeing.[141] It is explained that a relaxation of the rules on the individual requirement of showing past persecution would be required since information from the country of origin can usually be obtained.[142] The UNHCR does not recognise these as refugees.[143] Similarly, the 2011 QD does not recognise these persons as refugees except possibly under Art 15 under subsidiary protection. Its 35^thpreamble states that ‘[R]isks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.’[144] The UK House of Lords has restricted the approach in dealing with these asylum seekers by requiring the applicant to show the fear of greater risk than other similarly situated members of the group. Lord Berwick explained:

It is not enough for an asylum seeker to show that he would be at risk if he were returned to his country. He must be able to show….a different impact. In other words, he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare.[145]

However, the Australian[146] and Canadian[147] Courts departed from this approach by rejecting the requirement of selective harassment which differentiated a claimant from other members of the group under scrutiny. Egan, the UNHCR[148] and the Michigan Guidelines on Nexus to a Convention Ground all adopt this interpretation that does not require proof of differential risk.[149] This position is line with the OAU Convention which has been described as the first refugee definition that steers away from persecutory conduct towards more generalised ‘objectively identified situations’.[150]

4.4 Persecution

4.4.1 Approaches to Interpretation

There is no accepted universal definition for ‘persecution.[151] Hathaway and Foster have explained that it is because all the forms of maltreatment that could make persons flee their countries cannot be enumerated.[152] The UNHCR guidance is that Article 33 of the CSR indicates that a threat to life or freedom or other serious violations of human rights on account of a nexus ground constitutes persecution.[153] Though it may not be plausible or possible to define the term ‘persecution’, it is vital to know broadly what it includes and what standards are to be followed during refugee status determinations.[154] Three approaches have been identified.[155]

4.4.1.1 Subjective approach

This approach defines persecution as the ‘infliction of suffering upon those who differ… in a way that is regarded as offensive.’[156] Here, determining whether the harm is unjustified is a subjective decision of the decision maker amounting to what has been called the ‘I know it when I see it’ test which is not precise and thus highly problematic.[157]

4.4.1.2 Literalist Approach

The literalist approach examines the dictionary meanings of the term persecution.[158] Criticisms of this approach have been identified as twofold. First, dictionary meanings in several languages may differ even if the dictionaries are authentic. Secondly, this approach violates the rules of treaty interpretation that emphasise the ordinary meaning in line with the purpose and object of the treaty.[159] It is also noted that even if interpretation of ‘persecution’ similar to that in International Criminal Law (ICL) is adopted, this remains problematic noting that ICL laws were present when the CSR was signed but were excluded under Art 1(F) (a); further, criminal law and refugee law are different fields that are hard to compare.[160]

4.4.1.3 Human rights approach

This approach fits within the object and purpose of the CSR which affirms the UDHR principle that all humans should enjoy fundamental freedoms and the UN principle that favours the widest possible exercise of such rights and freedoms.[161] Hathaway and Foster opine that the interpretation of serious harm in this light promotes consistency and lends normative legitimacy by setting uniform standards for states.[162] Whenever therefore there is a risk of denial of a widely acknowledged international human right that is ongoing, sustained or systemic, it can be termed ‘being persecuted’.[163]The approach has been endorsed by the UNHCR.[164] In summary, ‘being persecuted’ involves a risk of serious harm or evidence of a sustained systemic denial of human rights and a failure of state protection.[165]

The 2011 QD also adopts this approach in defining an act of persecution as an act that is sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular, rights from which derogation cannot be made; or an accumulation of various measures, including violations of human rights. [166] Art 9(2) enumerates the form such acts of persecution can take. This list is broad including even acts of a gender-specific or child-specific nature.[167] They could be instructive in offering guidelines to decision-makers on what acts they need to look out for in a refugee application. This approach is recommended for the EAC states since they have ratified human rights conventions.

4.4.2 The human rights approach explained

A serious and persistent denial of social and economic consequences based on discrimination[168] can amount to persecution as long as they can be said to be condoned by the state.[169] This principle is potentially more wide-ranging and can relate to a suitably serious and persistent denial of a whole range of rights.[170] This includes the right to life[171]; the right to freedom from inhuman, degrading and /or cruel treatment;[172] and the right to privacy under which no one should be subjected to arbitrary or unlawful interference with one’s privacy, unlawful attacks on one’s honour and reputation, illegal searches of a person’s home by state agents, illegal surveillance, and home invasions by state or non-state agents.[173] It also includes freedom from illegal arrest and detention that is not based on legal grounds, not in accordance with such procedure established by law and is arbitrary;[174] the denial of the right to work and economic proscription[175]; and the denial of the right to autonomy and self-realisation where an individual has a right to form and maintain intimate relationships.[176]

In the context of the EAC and OAU, the human rights approach is recommended as it provides more consistency and flexibility needed for the interpretation of ‘persecution’. The 2011 QD provides more context to the CSR definition and could be adopted in the EAC refugee definition subject to fact that the acts of persecution under the OAU Convention are wider than those provided for in the CSR and there is no requirement of personalized persecution or discrimination of the threat or risk of harm; an entire group or population may be compelled to flee due to a specific situation.[177] Emphasis is not on motives of the flight or risk of harm but on the seriousness of the situation.[178]

4.4.3 Assessment of the risk of serious harm

According to Hathaway and Foster, in an assessment of a refugee application, the cumulative effect of all acts of persecution on persons and the impact of the fundamental denial of human dignity should be considered.[179] Thus the character, duration, and level of severity of the actions complained of should be duly noted.[180] Under the 2011 QD, individual circumstances must be taken into account— the importance of those rights, the extent of the discrimination, its persistence, and the extent to which the state concerned may be said to have itself carried out the relevant discrimination, condoned or materially contributed to the discrimination by inaction.[181] A non- derogable right under the 2011 QD only requires a minimum level of gravity which can be shown by considering whether the facts show a risk of a form of prohibited conduct while violation of other rights needs to be cumulative to be considered serious harm.[182]

As already noted, the OAU also covers circumstances where what is needed is proof of the existence of objective situations and not the level of gravity of harm suffered or contemplated on return.

4.4.4 Lack of state protection

As already considered, international refugee law rests on the objective of provision of refuge to those whose state cannot or does not afford them protection from persecution.[183] It is now widely accepted in the EU that serious harm may be carried out by non-state actors if it can be demonstrated that the state is unable or unwilling to provide protection.[184] The maltreatment anticipated should be demonstrative of a breakdown of national protection; the individual should not be able to relocate to another part of the country where he can be secure, and the risk must have an unrelenting or inescapable character because there is no domestic remedy.[185]

Where state actors are involved, it is advised that there should be a presumption that effective protection is not available to the applicant.[186] The 2011 QD however, requires that where an international organisation controls a substantial part of the state, an applicant needs to show that the organisation has not taken any reasonable steps to offer adequate protection or that they tried to obtain protection from these organisations.[187] The UNHCR has criticised this additional burden of proof placed on applicants arguing that state attributes cannot be imputed on organisations.[188]

Under the OAU Convention, proof of possible protection by International organisations is not required, a position that is more appropriate because it may be difficult for an individual or group to prove that International organisations are ineffective to protect them. The organisations should not be equated to states as actors of protection to place an additional burden on fleeing masses in light of the fact that the OAU Convention is humanitarian in nature.

4.5 Internal protective alternative

In the EU, an alien needs to prove that there was and there is no possible and reasonable alternative internal relocation within the country of origin.[189] Four relevant questions to dislodge the presumption of protection need to be considered: can the applicant safely, legally and practically access an internal site of protection of the home country in another region; will he enjoy protection from the original risk of being persecuted or indirect refoulement; and will the applicant have those rights on a non-discriminatory basis?[190]

This Art 8 requirement has been criticised for introducing a subjective construction of ‘reasonableness’ by the decision-maker instead of focussing on a forward-looking nature of inquiry into whether effective and non-discriminatory access to CSR rights, might be available in the alternative location.[191]

The UNHCR has explained that under Art 1(2) of the OAU Convention, the consideration of internal relocation is not generally relevant because the focus is on events that seriously disrupt state and society structure people and where people cannot be required to relocate to other parts of the country, even if the situations in these parts may be less disrupted except where those events are confined to a particular region or city and where the state is willing and able to protect its citizens in other areas.[192] Consideration of the likely spread of situation to other areas also needs to be carefully weighed.[193]

4.6 The OAU Convention refugee elements

Little could be found on the interpretation of the elements in judicial discourse within the EAC or Africa as already noted in Chapter three.[194] The UNHCR has offered guidance in the interpretation of the elements introduced into the refugee definition in the OAU Convention.[195]

4.6.1 External Aggression

This refers to the use of armed force by a state against the sovereignty, territory or political independence of another state, or in any manner inconsistent with the UN charter.[196]

4.6.2 Occupation

It refers to a situation where the territory is actually placed under the authority or effective control of armed forces of a hostile foreign state and also includes a situation where armed forces occupy or exercise control over a territory.[197]

4.6.3 Foreign domination

Foreign domination is defined as the political, economic or cultural control of a state by agents of one or more states, association of states, or state governed international organisation.[198]

4.6.4 Events seriously disturbing public order

This has been described as the primary element to be proved under Art 1(2).[199] It has been advised that this should be construed in line with the OAU Convention’s humanitarian object to include events that impact the maintenance of public order based on respect of the rule of law and human dignity to such an extent that life, security, and freedom of people are put in danger.[200]

The threshold of what is ‘serious’ refers to public disorder events likely to disrupt the normal functioning of the institutions of the state thus affecting internal and external security and stability of the state and society, and which may be prompted by a one-off incident or a series of accumulative incidents.[201] These events include situations that have prompted the declaration of a state of emergency and situations of generalised violence.[202] Factual indicators enumerated include a declared state of emergency; violations of international humanitarian law including war crimes; acts of terrorism; a significant number of people killed, injured or displaced; closure of schools; lack of food, medical supplies and other vital services like water and electricity; a change or collapse of government institutions; the imposition of parallel or informal justice and administrative systems; and non-state actors controlling state territory.[203]

4.7 Limits of the OAU

The OAU Convention does not apply to a certain category of persons.[204] Egan notes that, just like the CSR and 2011 QD, it excludes people who are forced to leave their respective countries of origin purely due to economic deprivation, chronic poverty or personal convenience though this is prevalent, the exception being where the economic deprivation is aimed at a particular individual or group of people.[205] She doubts, however, whether victims of famine and natural disasters are covered.[206] It has been argued and is conceded in this research that even if they are not explicitly mentioned in the OAU Convention, reference to “events seriously disturbing public order in either part or the whole of his country of origin or nationality”, could be construed widely to cover these victims.[207]

In order to deal with the problem of Internally Displaced Persons who are not covered under the Refugee Conventions, the Kampala Convention was adopted.[208]The internally displaced are thus excluded from the refugee definition even if the issue has been noted to be of growing concern in the region.

4.8 Conclusion

In conclusion, the EAC refugee definition should adopt the aspects of well-founded fear and persecution under the CSR and 2011 QD but subject to the visible divergences noted in the OAU that widen the refugee class and tinkers with the standard of proof required inter alia.

5.0 CHAPTER FIVE: THE NEXUS GROUNDS

5.1 Introduction

This chapter is a continuation of the previous chapter that discusses the elements of the refugee definition. It examines the various grounds on which persecution under the CSR and 2011 QD is based and what situations under the OAU Convention should be proved for one to be eligible for the grant of refugee status.

5.2 The causal link

There is a generally accepted rule that ‘[N]ot all persecution gives rise to a valid asylum claim. Very bad things happen to a great deal many people but the international community has not committed itself to giving all of them a safe haven.’[209] There should be a link between the peril faced and the resultant marginalisation.[210]Egan explains that there are people who according to public consciousness deserve protection but do not fall under the refugee category.[211]

The CSR and 2011 QD provide for the nexus grounds of race, religion, nationality, membership of a particular social group (MPSG) and political opinion at least one of which needs to be proved.[212] A person is at risk for persecution for a Convention ground as long as there is a stigmatised status involved and it is a contributing ground to the risk of persecution. [213] There has been a range of developments in many states as to what is encompassed under the stated nexus grounds.

Art 10(1) of the 2011 QD provides context by explaining what these nexus concepts entail. Art 10 (2) stresses that when assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution.

The OAU also introduces new situations of external aggression, occupation inter alia that do not require a stigmatised status or causal link; these were covered in the previous chapter. Thus whereas the CSR would not protect persons fleeing external aggression for instance, they would be protected under the OAU Convention.[214]

5.3 The nexus grounds examined

5.3.1 Race

Discrimination on the ground of race amounting to persecution has been noted as a violation of human rights that is strikingly widely condemned.[215] Art 10 (1)(a) of the 2011 QD provides that when assessing the reasons for persecution, the concept of race shall, in particular, include considerations of colour, descent, and all forms of identifiable ethnicity. Egan has noted that no serious controversy over proof of this ground has been encountered.[216]

5.3.2 Religion

The UNHCR points out that this ground has one or more of three elements: religion as belief, religion as identity and religion as a way of life.[217] The EU has similarly provided for a broad concept of religion as encompassing the holding of theistic, non-theistic and atheistic beliefs; the participation in or abstention from formal worship in private or in public either alone or in community with others; and other religious acts or expressions of view or forms of personal or communal conduct based on or mandated by any religious belief.[218] Persecution thus also includes marginalisation of persons because they refuse to hold certain beliefs or practice a certain religion especially and also covers those on whom a certain belief or opinion is merely imputed.[219]

This definition has been given a wide interpretation to include serious acts that interfere with the freedom to practice not just in private but also to live it publicly without expecting the applicant to avoid persecution by practicing the belief or religion privately.[220] It has been held that the applicant cannot reasonably be expected to abstain from those religious practices.’[221] This decision was however been criticized for narrowly construing persecution based on religion by requiring that acts should first be a severe violation of religious freedom that has a significant effect on the person concerned in line with Art 9(1) (b) of the 2011 QD. This means that acts which would ordinarily amount to persecution would not be taken as such unless the gravity of such acts was equivalent to that required for non-derogable rights required under Art 9(1) (a) of the ECHR.[222] It is submitted that whereas this seems a reasonable requirement to avoid the opening of a flood gate of cases, it introduces the aspect of subjectivity as to what gravity is sufficient to warrant grant of refugee status.

These are welcome additions to the EAC refugee definition subject to the criticism pointed out in Art 9 of the 2011 QD.

5.3.3 Nationality

The UNHCR guidelines take a broad interpretation of ‘nationality’ that goes beyond citizenship, includes membership of an ethnic or linguistic group, and at times overlaps with “race”.[223] Such persecution may comprise negative attitudes and actions directed against a national minority, though, in some circumstances, the fact of belonging to such a minority may in itself give rise to a well-founded fear of persecution.[224] It is explained that persons in a majority group may also experience persecution from a dominant minority.[225]

The 2011 QD adopts this wide interpretation in Art 10 (1) (c) which provides that that the concept of nationality ‘shall not be confined to citizenship or lack thereof but shall, in particular, include membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State.’ This appears to be consistent with the spirit of the CSR and is recommended.

5.3.4 Political opinion

The UNHCR explains that in order to prove persecution on this nexus ground, it is not enough to merely hold a political opinion that differs from that of the government but it is required that persecution occurs because of it.[226] This is because it is presupposed that the applicant’s opinions critical to the methods and policies of the authorities are not tolerated.[227] The relative importance or tenacity of the opinion is thus relevant as far as it can be established.[228]

Under the 2011 QD, the concept includes the ‘holding of an opinion, thought or belief on a matter related to the potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant.’[229] The QD recognises two important elements of this nexus ground in line with a famous Canadian case. First, the persecution may arise with regards to an opinion not favoured by both state and non-state actors; second, an opinion may be imputed on an applicant thus making the perception of the persecutor the relevant element.[230]

5.3.5 Membership of a particular social group (MPSG)

Though it appears simple, interpretation of this nexus ground has been said to be the most challenging in practice.[231] The UNHCR defines a particular social group as normally comprising persons of similar background, habits or social status; a claim under this may overlap with other nexus grounds of race, religion or nationality.[232] The generally agreed-upon principles are that a particular social group cannot be defined exclusively by reference to the persecution feared;[233] not all members of the group are required to be at risk; the size of the group is not relevant; and there is no requirement that the group must be cohesive or that all of its members are at risk.[234]

Divergencies arise between what Hathway and Foster call the ejusdem generis or protected characteristics approach favoured by common law countries (also referred to as the human rights approach),[235] and the social perception test.[236] The focus of the former is on the characteristic that is ‘immutable or is so fundamental to individual identity or conscience that it ought not to be required to be changed’.[237]The second approach, explained by LaViolette, does not focus on the unchangeable characteristics of the applicant but considers the social perception of the wider society towards the group.[238]

The UNHCR laid a basis for a cumulative approach requiring one to prove both, an approach which, though criticised, was adopted in Art 10(1) (d) of the 2011 QD. [239] According to LaViollette, it limits decision-makers from systematically evaluating all forms of gender-based persecution and the ways in which it is carried out against victims.[240] It is interesting to note that when Ireland transposed the 2004 QD, they dropped the dual requirement in favour of the alternative approach that requires an applicant to prove only one of the two. [241] Hathaway and Foster still maintain that the ejusdem generis approach is preferable as it can be justified by the primary rule of construction that provides that the text is to be considered in light of the context, object, and purpose of CSR.[242] The ejusdem generis approach is recommended for the EAC because as postulated, it is ‘grounded in a principled framework, namely non-discrimination norms of universal applicability, it promotes consistency and objectivity in refugee status decision-making’ unlike the social perception test that lends itself to a subjective assessment.[243] Gender and sexual orientation are critical aspects under MPSG.

5.3.5.1 Gender

Gender-based persecution is not explicitly identified in the CSR.[244] LaViolette has noted that women tend to suffer abuse because of the gender division in social roles or because of a specific relationship between women and the State.[245] With regard to the refugee definition, challenges relate to the ability of the definition to capture the experiences of female victims of persecution who make up majority of refugees worldwide. [246]

Noting that such persecution is commonly linked to political opinion and religion, Egan explains that gender will usually found a claim for refugee status on account of persecution as MPSG when there is directly gender-motivated persecution or where there is lack of effective state protection because of gender considerations even if gender is not the motivation for the persecution.[247] Examples of instances that have been accepted as capable of placing applicants under MPSG include female genital mutilation as part of a tribe,[248] domestic violence as part of a family because of lack of state protection, and the fact of being a woman.[249] Simply being a woman has been recognised because it was accepted that there is:

‘nothing inherently implausible in the suggestion that women in a particular country may constitute a persecuted group…Women in any society are a distinct and recognisable group; and their distinctive attributes and characteristics exist independently of the manner in which they are treated, either by males or by governments.[250]

In agreement with LaViolette, the concept of gender-related persecution must be revised in favour of a more clearly social constructionist interpretation of the notion of 'gender'.[251]

There has also been a criticism of particular decisions on asylum applications where gender is not treated as a separate nexus ground capable of grounding a refugee application.[252] Indeed, the 2011 QD provides that gender-related aspects, including gender identity, shall be merely given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group. Egan gives an example of an applicant who bases a refugee application on a failure of state protection from sexual violence who would also be required to state a nexus ground from the CSR.[253] Marian points out that the reason for refusal of gender-based persecution as a nexus ground is the fear associated with the flood-gates argument.[254] She dismisses this argument giving Canada as an example of a state that has treated it as a separate nexus ground.

An analysis of the Ugandan and South Sudan Refugee Act shows that gender issues have already been embraced and are thus not so contested and are likely to have wide acceptance within the EAC states in the context of the CSR.

5.3.5.2 Sexual orientation

The international community has accepted that applicants with claims of persecution due to their sexual orientation also form part of MPSG.[255] The right to autonomy and self-realisation provides that persons should express themselves in ways deemed fundamental without fear of harm or need to conceal because these rights are meant to enable them to make choices about how to form and maintain intimate personal relationships.[256] In HJ (Iran), the Court noted;

[P]eople should be able to live freely, without fearing that they may suffer of the requisite intensity or duration because they are say, black,…or gay…the implication is that they must be free to live openly and free from that fear of persecution…[257]

Art 10 (1) (d) of the 2011 QD provides that depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation but it places a limitation that sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States. This limitation has been criticised as a regressive step that violates international human rights and refugee law because claims could be denied because the applicant is expected to follow the law of a state that criminalises such public and/or private manifestation.[258]

In the EAC context, homosexuality could be the most controversial aspect of the MPSG and is currently illegal in all the EAC states. This would mean that homosexuality on the ground of sexual orientation might not be an acceptable nexus ground or even relevant ground for consideration for other humanitarian protection under the OAU Convention.[259] However, adding this limitation could be the most acceptable position for the EAC states in the current social and political climate that is hostile to homosexuals. On a more critical note, it could also be argued that, that even if the limitation is adopted, the broad and generous meaning of ‘gender’ might already include sexual orientation and cover this group.

5.4 Conclusion

Chapter five has discussed the nexus grounds. The CSR definition offers little guidance as to their interpretation. Whereas the 2011 QD has provided a good interpretation, certain elements have been pointed out as presenting human rights and refugee challenges which should be avoided when making an EAC definition. Whereas gender is one of the newest additions to the refugee definition in the human rights field that is likely to be embraced, sexual orientation considerations in MPSG is likely to remain the most controversial and contested in the EAC. In order to work towards a common definition, it is suggested that certain concessions may have to be made for instance by allowing states to exclude those acts considered criminal in their states from qualifying as acts of persecution on the basis of MPSG.

6.0 CHAPTER 6: SUMMARY AND CONCLUSION

This research has explained the refugee problem in the EAC and the refugee legal framework within Africa, and the EAC. It has been established that there is a legal basis for a common refugee management mechanism within the sub-region and on which a common refugee law could be adopted as a solution. The CRS definition is a basic framework that requires more context and uniform interpretation not only among the EAC states but also worldwide since it is a widely ratified document and most authoritative in this area. The OAU Convention was intended to be complementary to the CSR. However, the CSR been also rightly been assessed as inadequate in solving the African refugee crisis, partly explaining why the OAU Convention was adopted by African states.[260] The 2011 QD provides more context along the CSR lines but also remains inadequate in dealing with the peculiar EAC refugee problems which include the low financial and technical capacity to manage individual refugee determination procedures in mass influx situations. [261]

The OAU Convention taken together with the various human rights instruments which have been ratified by all the EAC states provides a wider definition that could help to solve this problem. Any EAC refugee definition should be guided by; (1) the interpretation offered by the 2011 QD but only to the extent that they could suit the EAC refugee problem; (2) the guidance of the UNHCR; (3) human rights developments; and (4) desire for flexibility and consistency in the refugee status determination process. A lasting solution to governance problems causing the refugee problem should also be pursued. Even though it is not exhaustive, a refugee definition is proposed and provided in the Appendix.

BIBLIOGRAPHY

PRIMARY SOURCES

Table of Cases

35247 (Bel CCE [Belgian Council for Alien Law Litigation] Dec 2 2009

A (Ethiopia) v Refugee Appeals Tribunal [2015] IEHC 49

Abay v Ashcroft, 368 F3d 634, US Court of Appeals for the Sixth Circuit, 19 May 2004

Acosta (USBIA, 1985) 233

Adan v Secretary of State for Home Department [1999] 1 AC 293

Ali, Shaysta-Ameer v MCI (12 January 1999)

Applicant A v MIEA (1997) 142 ALR 331 (HCA)

Bundesrepublik Deutschland v Y (C-71/11) and Z(C-99/11) (2012) Sept 5 2012

Canada (AG) v Ward [1992]2 SCR 689

Chan v Canada [1995] 3 SCR 593 (CanSC 19th October 1995) 659

Contre la torture & Ors v Rwanda, 27/89-46/90-49/91-99/93,October 1996, [1996]ACHPR 6

Dudgeon v United Kingdom (1982)4 EHRR 149

Dunat v Hurney (1961) 297 F2d 744 (USCA, 3rd Cir, May 29, 1961)

ED (a minor) v RAT & Ors [2016] IESC 77

ES -v- The Refugee Appeals Tribunal & Ors [2014] IEHC 534

Fornah v Secretary of State for the Home Department 2007 AC 412

Germany v Y and Z (Joined cases C-71/11 and C-99/11) [2013] 1 CMLR 5 (CJEU)

Gomez v Minister for Immigration & Multicultural Affairs [2002] FCAFC 105 & 480

GV v Refugee Appeals Tribunal [2011] IEHC 262

HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31

Horvath v Secretary of State for Home Department [2000]3 ALLER 577

IE -v- Minister for Justice and Equality & Anor [2016] IEHC 85

Immigration and Naturalisation Service v Cardoza-Fonseca (1987)407 US 421

Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 249/02, African Commission on Human and Peoples’ Rights, Dec 2004

J S v Secretary of State for Home Department: 30 Oct 1996 [1996] EWCA Civ 832

K v Refugee Appeals Tribunal & Anor [2010] IEHC 367

K v Refugee Status Appeals Authority (No2), [2005] NZAR 441

Khawar (Aus HC, 26, 2002)

M A MA v Refugee Appeals Tribunal & Ors [2011] IEHC 147

MM v Minister for Justice (Case C-277/11)

MST (a minor) v Minister of Justice & Ors [2009] IEHC 529, Cooke J

Minister for Immigration and Multicultural Affairs v Abdi 162 ALR 105

Mosebatho Justina Lelimo v Minister for Justice, Equality and Law Reform [2003] IEHC 78

N v United Kingdom, Application No 26565/05 (ECtHR, May 27, 2008)

Nagoulko v Immigration and naturalisation service (2003) 333 F3d 1012 (USCA, 9th Cir, Jun 24 2003)

ON v Refugee Appeals Tribunal and Anor [2017] IEHC 13

PO & SO v Minister for Justice, Equality & Ireland & the Attorney General, [2015] IESC 64

R V Immigration Apeal Tribunal & Another Ex Shah [1999]2 AC 629, 653

R v Secretary of State for Home Department; Sivakumaran [2001]1 AC 489

Re Kasinga [1996] WL 379826

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57

Re Minister for Immigration and Multicultural Affairs; Ex parte P T [2001] HCA 20

Re Mogharrabi (USBIA, 1987) 421

Refugee Appeal No 74665/03 (NZ RSAA, 2004) at 89

SCAT v Ministry of Immigration and Multicultural and Indiginous Affairs (2002) 76 ALD 625

Singh v Moschorak US CA, 9th Cir No94-55400

SLJ & LRC v RAT & Ors [2016] IECA 47

Tesfaye Shiferwa Awala Vs Attorney General Misc Appln No 688 of 2003

Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (HRC, March 31 1994)

Tuhin v Ashcroft, 60 Fed Appx 615 (2003) 7th Circuit

Ward v Canada (Attorney General ) [1993]2 SCR 689 (Can SC, Jun30, 1993)

Zgnat’ ev v Minister for Justice, Equality and Law Reform [2001] IEHC 70

Table of National Legislation

International Protection Act No. 66 of 2015 (Ireland)

Law N° 13ter/2014 of 21/05/2014 Relating to Refugees 2015 (Rwanda)

Loi n° 1/32 du 13 Novembre 2008 sur l’ asile et la protection des Refugies au Burundi

Penal Code Act, Cap 63 (Kenya)

Refugee Act 13 of 2006 (Kenya)

Refugee Act 21 of 2006 (Uganda)

Refugees Act, 1998 (Tanzania)

Refugees Act 20 of 2012 ( South Sudan)

S.I. No. 518/2006, European Communities (Eligibility for Protection) Regulations 2006

Table of International Conventions and Regional laws

Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), 20 December 2011, OJ L. 337/9-337/26; 20.12.2011, 2011/95/EU

African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (‘Kampala Convention’), 23 October 2009

African Charter on Human and Peoples’ Rights, (Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 Rev. 5, 21 I.L.M. 58 (1982), Entered into Force 21 October 1986)’,

Charter of the Organization of African Unity, 25 May 1963

Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984

Charter of Fundamental Rights of the European Union 2000 (Official Journal of the European Communities)

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85

Convention Governing the Specific Aspects of Refugee Problems in Africa 1969, 10 September 1969, 1001 U.N.T.S. 45

Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) Protocol relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267

European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5

International Covenant on Economic , Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, Vol. 993 (1976)

Protocol to the African Charter on Human And Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights 1998

Treaty for the Establishment of the East African Community, 1999 (As amended on 14th December, 2006 and on 20th August, 2007)

Universal Declaration of Human Rights ((adopted 10 December 1948. UNGA Res 217 A(III)

SECONDARY MATERIALS

Abass A and Ippolito F, ‘Introduction – Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective’ (2014) 1 Regional Approaches to the Protection of Asylum Seekers An International Legal Perspective 1

Ademola A and Mystris D, ‘The African Union Legal Framework for Protecting Asylum Seekers’, Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective (1st edn, 2014)

Andrade JHFD, ‘Regional Policy Approaches and Harmonization: A Latin American Perspective’ (2004) 10 International Journal of Refugee Law 389

Bekker G, ‘The Protection of Asylum Seekers and Refugees within the African Regional Human Rights System’ (2013) 13 African Human Rights Law Journal 1

Blake N, ‘Luxembourg, Strasbourg and the National Court: The Emergence of a Country Guidance System for Refugee and Human Rights Protection’ (2013) 25 International Journal of Refugee Law 349

Clark T, ‘Rights Based Refuge, the Potential of the 1951 Convention and the Need for Authoritative Interpretation’ (2004) 16 Int’l J. Refugee L. 584

East African Community, ‘East African Community Development Strategy (2016/17 - 2020/21)’ (2017)

Ebobrah ST, ‘Sub-Regional Frameworks for the Protection of Asylum Seekers and Refugees in Africa: Bringing Relief Closer to Trouble Zones’ in Ademola Abass and Francesca Ippolito (eds), Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective (1st edn, Routledge 2014)

Egan S, ‘The Refugee Definition in Irish Law’ in Suzanne Egan (ed), International Human Rights: Perspectives from Ireland (1st edn, Bloomsbury 2015)

Gastorn K and Wanyama M, ‘The EAC Common Market’ in Emmanuel Ugirashebuja, John Eudes Ruhangisa and Tom Ottervanger (eds), The East African Community Law (1st edn, Brill 2017)

Goodwin-Gill G and McAdam J, The Refugee in International Law (3rd edn, Oxford University Press 2015)

Groth L, ‘Engendering Protection: An Analysis of the 2009 Kampala Convention and Its Provisions for Internally Displaced Women’(2011) 23 International Journal of Refugee Law 221

Gunning IR, ‘Expanding the International Definition of Refugee : A Multicultural View’ (1989) 13 Fordham International Law Journal 35

Hathaway J and Foster M, The Law of Refugee Status (3rd edn, Cambridge University Press 2014)

Human Rights Committee, 'General Comment No. 22: Article 18: Freedom of Thought, Conscience or Religion, UN Doc. CCPR/21/Rev.1/Add.4 (Jul. 30 1993)

Johnson P and Falcetta S, ‘Beyond the Anti-Homosexuality Act: Homosexuality and the Parliament of Uganda’ [2019] SSRN Electronic Journal

Kamanyi J, ‘Political Federation in East African Progress, Challenges and Prospects for Constitutional Development’ (2007) 13 East African Journal of Peace & Human Rights

Kamari CM, Jalloh CC and Nmehielle VO, ‘Origins and Issues of the African Court of Justice and Human and Peoples’ Rights’ in Charles C Jalloh, Clarke M Kamari and Vincent O Nmehielle (eds), The African Court of Justice and Human Rand Peoples; Rights in Context (1st edn, Cambridge University Press 2019)

Kennady M, ‘Gender-Related Persecution and the Adjudication of Asylum Claims: Is a Sixth Category Needed?’ (1998) 12 Florida Journal of International Law 317

LaViolette N, ‘Gender-Related Refugee Claims: Expanding the Scope of the Canadian Guidelines’ (2007) 19 International Journal of Refugee Law 169

Mendel TD, ‘Refugee Law and Practice in Tanzania’ (1997) 9–59 International Journal of Refugee Law 35

Murray R, ‘The Human Rights Jurisdiction of the African Court of Justice and Human and Peoples’ Rights’ in Charles C Jalloh, Clarke M Kamari and Vincent O Nmehielle (eds), The African Court of Justice and Human and Peoples’ Rights in Context (Cambridge University Press 2019)

Naldi GJ and Magliveras KD, ‘The African Court of Justice and Human Rights: A Judicial Curate’s Egg’ (2012) 9 International Organizations Law Review 383

Ndagire J, ‘The Ghost of the Organisation of African Unity (OAU) Haunts Africa’ (2011) 17 The East African Journal of Peace and Human Rights 53

Odhiambo EA, ‘Past Reflections , Future Insights : African Asylum Law and Policy in Historical Perspective’ (2007) 19 International Journal of Refugee Law 51

Oloka-Onyango J, ‘Human Rights, the OAU Convention and the Refugee Crisis in Africa: Forty Years after Geneva’ (1991) 3 International Journal of Refugee Law 453

Storey H, ‘EU Refugee Qualification Directive: A Brave New World?’ (2008) 20 International Journal of Refugee Law 1

UNHCR, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees 2006

——, 'Guidelines on International Protection No 1: Gender-Related Persecution within the Context of Art 1A(2) of the Convention and/or Its 1967 Protocol Relating to the Status of Refugees , UN Doc. HCR/GIP/02/01 (May 7, 2002)'

UNHCR, Guidelines on International Protection No.2: ‘Membership of a particular social group’ within the context of Artcile 1(A) of the 1951 Convention and/or its 1967 Protocol relating to the status of Refugees UN Doc. HCR/GIP/02/02 (May 7,2002)

——, ‘Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 23 October 2012, HCR/GIP/12/01

——-, Guidelines on International Protection No.6’: Religion‑Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees' HCR/GIP/04/06

——, ‘Guidelines on International Protection No.12: Claims for refugee status related to situations of armed conflict and violence under Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees and the regional refugee definitions, 2 December 2016, HCR/GIP/16/12’

——, ‘UNHCR Handbook on Procedures and Criteria for Determining Refugee Status of Refugees, UN Doc. HCR/IP/4/Eng/REV.3 (2011) ’

——, ‘UNHCR Handbook on Procedures and Criteria for Determining Refugee Status of Refugees, UN Doc. HCR/IP/4/Eng/REV.4 (2019) ’

——, ‘Note on Burden and Standard of Proof in Refugee Claims, 1998’ (1998)

——, ‘Key Legal Considerations on the Standards of Treatment of Refugees Recognized under the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa UNHCR’ (2018) 30 Int’l J. Refugee L. 166

——, ‘Global Trends: Forced Displacement in 2018’ (2019)

——, ‘Handbook on Procedures and Criteria For Determining Refugee Status And Guidelines On International Protection, 2019’

‘UNHCR Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004, 28th January 2005’

Wessels J, ‘HJ (Iran) and HT (Cameroon) - Reflections on a New Test for Sexuality-Based Asylum Claims in Britain’ (2012) 24 Int’l J. Refugee L. 815

Whittaker DJ, ‘Asylum Seekers and Refugees in the Contemporary World’ in Eric J Evans and Ruth Henig (eds), The Making of the Contemporary World (Routledge 2006)

APPENDICES

Appendix 1: Map of Africa showing the East African community

THE EAST AFRICAN COMMUNITY

Key:

Adapted from the, United Nations: Economic Commission for Africa, accessed on 12/08/19 at https://www.uneca.org/oria/pages/eac-%E2%80%93-east-african-community

Appendix 2: Map of the East African Community States

The East Africa Community States

Key

Adapted from the KFW Entwiclungsbank accessed on 12/08/19 at https://www.kfw-entwicklungsbank.de/International-financing/KfW-Development-Bank/Local-presence/Subsahara-Africa/East-African-Community/

Appendix 3: Proposed refugee definition

THE EAST AFRICAN COMMUNITY REFUGEE ACT No. X 0f 20XX

An Act to provide for the standards for the qualification of third-country nationals or stateless persons as refugees and for a uniform status for refugees

Enacted by the East African Community and assented to by the Heads of State.

Part 1- General Provisions

1. Short title

This Act may be cited as the East African Community Refugee Act, 20XX

2. Commencement

This Act shall come into force on such date as the Council may by notice in the Gazette appoint.

3. Definitions

In this Act, unless the context otherwise requires-

(i) ‘applicant’ means a third-country national or a stateless person who has made an application for international protection in respect of which a final decision has not yet been taken;

(ii) ‘application for international protection’ means a request made by a third-country national or a stateless person for protection from a Partner State, who can be understood to seek refugee status, and who does not explicitly request another kind of protection, outside the scope of this Act, that can be applied for separately.

(iii) ‘Country of origin’ means the country or countries of nationality or, for stateless persons, of former habitual residence.

(iv) ‘CSR’ means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the New York Protocol of 31 January 1967;

(v) ‘events seriously disturbing public order’ includes in line with the 1969 OAU Convention’s humanitarian object and purpose, events that impact the maintenance of public order (ordre public) based on respect for the rule of law and human dignity to such an extent that the life, security and freedom of people are put in danger.

(vi) ‘external aggression’ shall include the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations and these situations may include armed conflicts fuelled by outside involvement or that have spilled over from neighbouring states, including because of the presence of (members of) the armed forces of another state or incursions by foreign armed groups;

(vii) foreign domination’ refers to the political, economic or cultural control of a state by (agents of) one or more other states, association of states, or state-governed international organizations;

(viii) ‘OAU Convention’ means the Organization of African Unity (OAU), Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 September 1969, (‘OAU Convention’);

(ix) ‘Occupation’ under the OAU Convention refers to:

(a) a situation whereby the territory is actually placed under the authority or effective control of a hostile foreign state’s armed forces; or

(b) other situations not classified as ‘occupation’ within the meaning of International Humanitarian Law, where armed group(s) from either within or outside the country exercise control over territory.

(x) ‘Prima facie recognition of refugee status’ means

(xi) ‘Refugee’ means,

(a) every person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it; or

(b) every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

(xii) ‘refugee status’ means the recognition by a Partner State of a third-country national or a stateless person as a refugee;

4. More favourable standards

Partner States may introduce or retain more favourable standards for determining who qualifies as a refugee in so far as those standards are compatible with this Act and the Treaty of the East African Community.

5. Granting of refugee status

Partner States shall grant refugee status to a third-country national or a stateless person who qualifies as a refugee in accordance with the CSR and OAU Conventions.

6. Scope of the OAU Convention

In accordance with the ordinary meaning of the terms, the OAU Convention definition applies to all persons within the jurisdiction of a State Party and is not limited to persons whose country of origin or nationality is in Africa.

7. Sequential application of the CSR and OAU Conventions

In applying the refugee definitions, refugee status should be initially assessed under the 1951 Convention definition before an assessment is made under the OAU Convention.

Part 2- Assessment of applications for international protection under the Geneva Convention

Except where provided, this part shall apply to interpretation of the CSR definition.

8. Individual and group assessments

(1) Partner States may consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the application for international protection. In cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application.

(2) Unless prima facie recognition of refugee status is applied, claims for refugee status should be considered on their individual merits, taking into account up-to-date and relevant country of origin information.

(3) The information referred to in section 8(1) regarding individual claims include;

(a) the applicant’s statements and all the documentation at the applicant’s disposal regarding the applicant’s age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, travel documents and the reasons for applying for international protection so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm.

(b) all relevant facts as they relate to the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied;

(c) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm;

(d) the individual position and personal circumstances of the applicant, including factors such as background, gender and age,;

(e) whether the applicant’s activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for inter national protection, so as to assess whether those activities would expose the applicant to persecution or serious harm if returned to that country; and

(f) whether the applicant could reasonably be expected to avail himself or herself of the protection of another country where he or she could assert citizenship.

(2) The fact that an applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, is a serious indication of the applicant’s well-founded fear of persecution unless there are good reasons to consider that such persecution or serious harm will not be repeated.

9. Actors of persecution

(8) (1) Actors of persecution under the CSR and OAU Convention are:

(a) the State;

(b) parties or organisations controlling the State or a substantial part of the territory of the State;

10. Actors of protection

(1) Protection against persecution can only be provided by:

(a) the State; or

(b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; provided they are willing and able to offer protection in accordance with paragraph 2.

(2) Protection against persecution must be effective and of a non-temporary nature. Such protection is generally provided when the actors mentioned under points (a) and (b) of paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and when the applicant has access to such protection.

(3) When assessing whether an international organization controls a State or a substantial part of its territory and provides protection as described in paragraph 2, Partner States shall take into account any guidance which may be provided in relevant other EAC acts.

(4) The consideration of international organisations as actors of protection shall not operate to place the burden on the accused to prove the effectiveness or ineffectiveness of the protection offered by the organization. This determination shall be made considering objectively identifiable situation form the country of origin information.

11. Internal protection or internal flight alternative

(1) As part of the assessment of the application for international protection under the CSR and, Partner States may determine that an applicant is not in need of international protection if in a part of the country of origin, he or she:

(a) has no well-founded fear ; or

(b) has access to protection against persecution ;and

(c) he or she can safely and legally travel to and gain admittance to that part of the country and can reasonably be expected to settle there.

(2) In examining whether an applicant has a well-founded fear of being persecuted or is at real risk of suffering serious harm, or has access to protection against persecution or serious harm in a part of the country of origin in accordance with paragraph 1, Partner States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant in accordance with section 4. To that end, Partner States shall ensure that precise and up-to-date information is obtained from relevant sources, such as the United Nations High Commissioner for Refugees and the European Asylum Support Office.

12. (1) Under the OAU Convention, the consideration of internal relocation is not generally relevant to the determination of refugee status under Article I (2) of the 1969 OAU Convention.

(2) The OAU Convention covers both situations that affect either ‘part’ or ‘the whole’ of the refugee’s territory. The focus of Article I(2) is on situations that seriously disrupt state and societal structures, people cannot be required to relocate to other parts of the country, even if the situation in these parts may be less disrupted.

(3) The only exception would be where the situation is indisputably confined to a particular part of the country or to a particular region or city, and where the state is able and willing to protect its citizens in other areas.

(4) In determining whether there is a possibility of internal relocation in the country of origin, consideration of the likely spread of the situation and the accompanying violence and disorder into other areas would need to be carefully assessed, with a forward-looking perspective.

Part 3: Qualification for being a refugee

13. Acts of persecution

(1) In order to be regarded as an act of persecution within the meaning of Article 1(A) of the CSR, an act must:

(a) be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights; or

(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in point (a).

(2) Acts of persecution as qualified in paragraph 1 can, inter alia, take the form of:

(a) acts of physical or mental violence, including acts of sexual violence;

(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;

(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;

(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling within the scope of the grounds for exclusion as set out in Article 12(2);

(f) acts of a gender-specific or child-specific nature.

(3) In accordance with point (d) of sub section 2, there must be a connection between the reasons mentioned in Article 14 and the acts of persecution as qualified in paragraph 1 of this Article or the absence of protection against such acts.

(4) (i)For purposes of the OAU Convention, a government's loss of authority or control due to external aggression, occupation, foreign domination or events seriously disturbing public order shall be sufficient without the requirement to prove the causal link mentioned in sub section 3 above. Emphasis here is not on the discriminatory character of the acts of persecution or motive of the flight or risk of harm but the situations compelling the applicant to flee from his or her country of origin or habitual residence.

(ii)In assessing whether the flight from the country of origin or nationality is reasonable, more weight should be placed on whether the seriousness of the situation is objectively reasonable.

14. Reasons for persecution

(3) (1) Partner States shall take the following elements into account when assessing the reasons for persecution:

(a) the concept of race shall, in particular, include considerations of colour, descent, or membership of a particular ethnic group;

(b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief;

(c) the concept of nationality shall not be confined to citizenship or lack thereof but shall, in particular, include membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State;

(d) a group shall be considered to form a particular social group where in particular:

— members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, or

— that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.

Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Partner States. Gender related aspects, including gender identity, shall be given due consideration for the purposes of deter mining membership of a particular social group or identifying a characteristic of such a group;

(e) the concept of political opinion shall, in particular, include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution mentioned in Article 6 and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant.

(2) When assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution.

Part 4: Refugee status under the OAU Convention

15. Elements required to be proved for grant of refugee status

(1) The elements of the 1969 OAU Convention definition should be considered as part of a holistic assessment of a claim for refugee status.

(2) The elements of a refugee claim under the OAU Convention are that applicants needs to prove are that they;

(i) are outside their country of origin;

(ii) having been compelled to leave their place of habitual residence; and

(iii) the reason is that one or more of the situations listed in the definition exists in their country of origin or nationality.

(3) For the purposes of this definition, the following meanings are given to the following words can be construed to include these meanings;

(1) habitual residence has no other legal effect other than the situation must have an impact on the person’s place of habitual residence as part of the compulsion to leave and seek refuge outside one’s country of origin or nationality.

(2) “compulsion” emphasizes the seriousness of the situation denoting the irresistible urge to constrain, oblige, force’.

16. Objective approach required

The Partner States, in evaluating whether the applicant was ‘compelled to leave’ so as to be offered protection shall consider whether;

(a) the situation in question is sufficiently serious; and

(b) it is objectively reasonable for a person to leave her or his place of habitual residence and seek refuge in another country

17. Mass influx

(1)The OAU Convention refugee definition does not require a personalized or discriminatory threat or risk of harm.

(2) Whole groups of persons or an entire population may be affected by the situation and be compelled to leave their places of habitual residence owing to the situation in question.

Part 5: Situations compelling flight

18. (1) The situations mentioned in Article I (2) of the 1969 OAU Convention of external aggression, foreign domination, occupation, and events seriously disturbing public order are to be given their ordinary meaning in their context and in light of their (protection-oriented) object and purpose.

(2) They should wherever possible, be interpreted in such a way that they remain relevant and applicable to situations that were not foreseeable when the 1969 OAU Convention was drafted.

19. External aggression

External aggression shall be accorded the meaning in Section 3.

20. Foreign domination

Foreign domination shall be accorded the meaning in Section 3.

21. Occupation

Occupation shall be accorded the menaning in Section 3. When assessing ‘occupation’, Partner States shall take into account the fact that situations of armed conflict and violence may also accompany, or be the result of, ‘occupation.’

22. Events seriously disturbing public order

(1)The ground of ‘events seriously disturbing public order’ should be considered as a primary under the OAU Convention under which refugee status is determined.

(2) The threshold of “serious” refers to public disorder events likely to disrupt the normal functioning of the institutions of the state and affect internal and external security and stability of the state and society.

(3) When determining if the events are serious, the Partner States shall take into account inter alia whether;

(a) such events may be categorized as an International Armed Conflict or Non International Armed Conflict within the meaning of International Humanitarian Law,

(b) the event is not categorized as armed conflict within the meaning of IHL but involves violence by or between different groups in society or between the state and non-state actors.

(c) there exist situations that have prompted the government to declare a state of emergency, although each situation should be assessed individually.

(d) there exists situations of generalized violence. Generalised violence refers to violence that;

(i) is widespread

(ii) affecting large groups of persons or entire populations,

(iii) serious and/or massive human rights violations, or

(iv) events characterized by the loss of government control and its inability or unwillingness to protect its population –

(v) situations characterized by repressive and coercive social controls by non-state actors, often pursued through intimidation, harassment and violence.

(4) A serious disturbance of public order may either be prompted by one-off acts or incidents, or a series of acts or incidents of a systematic or cumulative nature, in response to which the state is either unwilling or unable to provide protection.

(5) ‘events seriously disturbing public order’ may take place in either part or the whole of the country.

(6) Partner States should take into account factual indicators of events seriously disturbing public order that include:

(1) a declared state of emergency;

(2) violations of International Humanitarian Law including war crimes;

(3) acts of terrorism;

(4) a significant number of people killed, injured or displaced;

(5) the closure of schools;

(6) a lack of food, medical services and supplies, and other vital services such as water, electricity and sanitation;

(7) a change in, or collapse of, government institutions and services, political systems or the police and justice system; and

(8) the imposition of parallel or informal justice and administrative systems;

(9) and/or non-state actors controlling state territory

Part 7: Procedural and evidentiary issues under the OAU Convention

23. Establishing facts

(1)Unless prima facie recognition of refugee status is applied, claims for refugee status should be considered on their individual merits, taking into account up-to-date and relevant country of origin information.

(2) In assessment of claims for refugee status related to situations of armed conflict and violence, Partner States shall have due regard to complex factual issues that may be raised, turning on the particular circumstances of the applicant viewed against the causes, character and impact of the situation of armed conflict and violence.

Part 8: CSR and the OAU Convention

24. International protection needs arising sur place

(2) A well-founded fear of being persecuted may be based on events which have taken place since the applicant left the country of origin.

(3) A well-founded fear of being persecuted may be based on activities which the applicant has engaged in since he or she left the country of origin, in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin.

(4) Without prejudice to the Geneva Convention, Partner States may determine that an applicant who files a subsequent application shall not normally be granted refugee status if the risk of persecution is based on circumstances which the applicant has created by his or her own decision since leaving the country of origin.

25. Burden of proof

(1)Partner States may consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the application for international protection. In cooperation with the applicant, it is the duty of the Partner State to assess the relevant elements of the application.

(2)Where Partner States apply the principle according to which it is the duty of the applicant to substantiate the application for international protection and where aspects of the applicant’s statements are not supported by documentary or other evidence, those aspects shall not need confirmation when the following conditions are met:

(a) the applicant has made a genuine effort to substantiate his application;

(b) all relevant elements at the applicant’s disposal have been submitted, and a satisfactory explanation has been given regarding any lack of other relevant elements;

(c) the applicant’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant’s case;

(d) the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so; and

(e) the general credibility of the applicant has been established.

26. Standard of proof

(1) The standard of proof of a refugee claim of future events or real risk of future harm is ‘a reasonable possibility’. This is less than the standard of a balance of probabilities.

(2) The standard of proof of a refugee claim with regard to past events is ‘a reasonable degree of likelihood.’

(3) The standard of proof of objective situations in OAU Convention applications is on a balance of probabilities, with a benefit of the doubt.

[1] The East African Community is currently made up of Uganda, Kenya, Tanzania, Rwanda, Burundi and South Sudan, all Sub-Saharan countries.

[2] James Hathaway and Michelle Foster, The Law of Refugee Status (3rd edn, Cambridge University Press 2014) 1.

[3] Suzanne Egan, ‘The Refugee Definition in Irish Law’ in Suzanne Egan (ed), International Human Rights: Perspectives from Ireland (1st edn, Bloomsbury 2015) 289.

[4] David J Whittaker, ‘Asylum Seekers and Refugees in the Contemporary World’ in Eric J Evans and Ruth Henig (eds), The Making of the Contemporary World (Routledge 2006) 6.

[5] UNHCR, ‘UNHCR Handbook on procedures and Criteria for Determining Refugee Status of Refugees, UN Doc. HCR/IP/4/Eng/REV.4 (2019)’ (UNHCR Handbook, 2019) para 28.

[6] UNHCR, ‘Global Trends: Forced Displacement in 2018’ (2019) 2, 35.

[7] ibid 3.

[8] ibid 2, 14 & 17.

[9] ibid 2.

[10] ibid 3,15.

[11] Joe Oloka-Onyango, ‘Human Rights, the OAU Convention and the Refugee Crisis in Africa: Forty Years after Geneva’ (1991) 3 International Journal of Refugee Law 453, 454.

[12] Kennedy Gastorn and Masinde Wanyama, ‘The EAC Common Market’ in Emmanuel Ugirashebuja, John Eudes Ruhangisa and Tom Ottervanger (eds), The East African Community Law (1st edn, Brill 2017) 286–288.

[13] ibid 286.

[14] ibid.

[15] ibid 288.

[16] The Treaty for the Establishment of the East African Community ,1999 (As amended on 14th December, 2006 and on 20th August, 2007)Art 5. The treaty was signed on 30th November 1999 and entered into force on 7th July 2000 The Treaty for the Establishment of the East African Community (As amended on 14th December, 2006 and on 20th August, 2007) 1999.

[17] Art 5

[18] Judy Kamanyi, ‘Political Federation in East African Progress, Challenges and Prospects for Constitutional Development’ (2007) 13 East African Journal of Peace & Human Rights 127.

[19] ibid Art 5(2).

[20] Gastorn and Wanyama (n 12) 285.

[21] Art 5 & 9 The Treaty for the Establishment of the East African Community (As amended on 14th December, 2006 and on 20th August, 2007) (n 16).

[22] Organization of African Unity (OAU), Charter of the Organization of African Unity, 25 May 1963.

[23] Josephine Ndagire, ‘The Ghost of the Organisation of African Unity (OAU) Haunts Africa’ (2011) 17 The East African Journal of Peace and Human Rights 53, 60.

[24] Convention Governing the Specific Aspects of Refugee Problems in Africa 1969. Adopted by the Assembly of Heads of State and Government at its Sixth Ordinary Session (Addis Ababa, 10 Sept. 1969), entered into force 20 June 1974.Hathaway and Foster (n 2) 2.

[25] Gina Bekker, ‘The Protection of Asylum Seekers and Refugees within the African Regional Human Rights System’ (2013) 13 African Human Rights Law Journal 1, para 24.

[26] Ndagire (n 23).; OAU, ‘African [Banjul] Charter on Human and Peoples’ Rights, (Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 Rev. 5, 21 I.L.M. 58 (1982), Entered into Force 21 October 1986)’, Economic, Social, and Cultural Rights, vol 58 (1981).

[27] Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in Guinea) v Guinea, 249/02, African Commission on Human and Peoples’ Rights, December 2004 [29].

[28] Protocol to the African Charter on Human And Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights 1998; Bekker (n 25) 5.;Rachel Murray, ‘The Human Rights Jurisdiction of the African Court of Justice and Human and Peoples’ Rights’ in Charles C Jalloh, Clarke M Kamari and Vincent O Nmehielle (eds), The African Court of Justice and Human and Peoples’ Rights in Context (Cambridge University Press 2019) 33.

[29] Protocol on the Statute of the African Court of Justice and Human Rights, 1 July 2008 Ndagire (n 23).;Clarke M Kamari, Charles C Jalloh and Vincent O Nmehielle, ‘Origins and Issues of the African Court of Justice and Human and Peoples’ Rights’ in Charles C Jalloh, Clarke M Kamari and Vincent O Nmehielle (eds), The African Court of Justice and Human Rand Peoples; Rights in Context (1st edn, Cambridge University Press 2019) 1.

[30] Bekker (n 25) 27. Of the EAC states, only Rwanda and Tanzania had made such declarations by January 2019.

[31] The Court is not yet in force requiring 15 ratifications to do so. See Murray (n 28) 1.

[32] Gino J Naldi and Konstantinos D Magliveras, ‘The African Court of Justice and Human Rights: A Judicial Curate’s Egg’ (2012) 9 International Organizations Law Review 383, 388.

[33] EAC, ‘EAC Development Strategy (2016/17 - 2020/21)’ (2017) para 2.6.8.2.

[34] ibid (n 2) Art 124 (4) & (5)(h).

[35] Abass Ademola and Dominique Mystris, ‘The African Union Legal Framework for Protecting Asylum Seekers’, in Abass Ademola and Francesca Ippolito (eds) Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective (1st edn, 2014) 19.

[36] Ademola Abass and Francesca Ippolito, ‘Introduction–Regional Approaches to the Protection of Asylum Seekers:An International Legal Perspective’, in Regional Approaches to the Protection of Asylum Seekers (n 8)1.

[37] Solomon T Ebobrah, ‘Sub-Regional Frameworks for the Protection of Asylum Seekers and Refugees in Africa: Bringing Relief Closer to Trouble Zones’ in Ademola Abass and Francesca Ippolito (eds), Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective (1st edn, Routledge 2014) 68.

[38] ibid.

[39] Jose HFD Andrade, ‘Regional Policy Approaches and Harmonization: A Latin American Perspective’ (2004) 10 International Journal of Refugee Law 389, 390. 408.

[40] Directive 2011/95/EU 2011 On standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (Official Journal of European Union, L 337/11, 20/12/2011) preamble 13.

[41] ibid preamble 23 and 25.

[42] UNHCR, ‘Key Legal Considerations on the Standards of Treatment of Refugees Recognized under the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa UNHCR’ (2018) 30 Int’l J. Refugee L. 166, para 11 Encourages OAU states tocoperate with the UNHCR.

[43] Egan (n 3) 292.

[44] The Dec 2010, Introductory Note by the Office of the UNHCR to the Convention Relating to the Status of Refugees 1951 (Hereinafter,the CSR), United Nations, Treaty Series, vol. 189, 137 2; Art 14 of the UDHR provides; ‘Everyone has the right to seek and enjoy asylum from persecutions’ Universal Declaration of Human Rights (UDHR), UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).

[45] See the Directive 2011/95/EU (n 40); Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984.

[46] Hugo Storey, ‘EU Refugee Qualification Directive: A Brave New World?’ (2008) 20 Int’l J. Refugee L. 1, 8.

[47] UNHCR, ‘Guidelines on International Protection No.12’: Claims for refugee status related to situations of armed conflict and violence under Article 1A(2) of the 1951 convention and/or 1967 protocol relating to the status of refugees and the regional refugee definitions para 48.

[48] Art 2 & preamble of the OAU Convention (n 26).

[49] ibid Art 2(1).

[50] Art 2(3) Convention Governing the Specific Aspects of Refugee Problems in Africa (n 24).

[51] Isabelle R Gunning, ‘Expanding the International Definition of Refugee : A Multicultural View’ (1989) 13 36 & 49; UNHCR, ‘Guidelines on International Protection No.12’ (n 47) para 6.;Art VIII(2) Convention Governing the Specific Aspects of Refugee Problems in Africa (n 24).

[52] UNHCR, ‘Guidelines on International Protection No.12’ (n 47) para 87.

[53] ibid 86–88.

[54] Arts. 3 - 30 OAU (n 26).

[55] The International Convention on Civil and Political Rights (Adopted Dec. 19 1966 and entered into force on March 23 1976) 999 UNTS 171 ICCPR.

[56] Contre la torture & Ors v Rwanda, 27/89-46/90-49/91-99/93, African Commission on Human and Peoples’ Rights, October 1996, ACHPR 282 91, 31 & 32.

[57] Egan (n 3) 291.

[58] Directive 2011/95/EU (n 40) preamble 5 & 10.

[59] Signed on 2 October 1997 and entered into force on 1 May 1999

[60] Storey (n 46) 8.

[61] Directive 2011/95/EU (n 40) Art 1; Egan (n 3) 291.

[62] Storey (n 46) 1.

[63] Hathaway and Foster (n 2) 2.

[64] Directive 2011/95/EU (n 35).

[65] Egan (n 3) For instance Ireland’s criteria of membership of a particular social group on the basis of sexual orientation is more generous than that in the 2011 Directive. See discussion on MPSG below.

[66] Directive 2011/95/EU (n 40) Art 18 & 15.

[67] The Charter of Fundamental Rights of the European Union 2000 (Official Journal of the European Communities) 1.

[68] The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations, Treaty Series, vol. 1465, p. 85.

[69] European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5.

[70] ICCPR (n 55).;Tom Clark, ‘Rights Based Refuge, the Potential of the 1951 Convention and the Need for Authoritative Interpretation’ (2004) 16 Int’l J. Refugee L. 584, 584.

[71] Art 9

[72] It provides, ‘Member States of the OAU shall use their best endeavours consistent with their respective legislations to receive refugees and to secure the settlement of those refugees who, for well-founded reasons, are unable or unwilling to return to their country of origin .or nationality.’

[73] Ndagire (n 23) 55.

[74] Refugees Act 20 of 2012 (South Sudan); Refugee Act 21 of 2006 2006 1 (Uganda); Law N° 13ter/2014 of 21/05/2014 Relating to Refugees 2015 1 (Rwanda); Loi n° 1/32 du 13 Novembre 2008 sur l’ asile et La protection des refugies au Burundi 2008 (Burundi); Refugee Act 13 of 2006 as revised (Kenya); Refugees Act, 1998 1998 (Tanzania).

[75] Uganda S. 4(a), (b) & (c); Tanzania s 4(1) (a) and b; Rwanda Art 7 (1°) and (2°);Burundi Art 5; South Sudan s. 7 (a) and (b).

[76] S. 7(c)

[77] S. 4(d)

[78] s.7(d) based on well- founded fear of persecution due to gender discriminating practices, that person is compelled to leave his or her place of habitual residence in order to seek refuge in another place outside the country of his or her origin or nationality

[79] Uganda S. 25(4); Uganda s.3(3);Tanzania s. 4(1)(c);Rwanda Art 13; Burundi Art 82; South Sudan S.30

[80] UNHCR - The UN Refugee Agency: Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees 2006 para 9.

[81] Art 9(4)

[82] S.21 (4).

[83] The only traceable High Court decision was, Tesfaye Shiferwa Awala Vs Attorney General Misc Appln No 688 of 2003, Uganda: High Court, 8 February 2005.

[84] Nicholas Blake, ‘Luxembourg, Strasbourg and the National Court: The Emergence of a Country Guidance System for Refugee and Human Rights Protection’ (2013) 25 International Journal of Refugee Law 349, 349.

[85] Rwanda S.10 (1) & (3); South Sudan S.26.

[86] S. 9(6) &(8).

[87] S. 19 & 20

[88] Art 22.

[89] S. 9(5)(e)& S.6(2)

[90] Edwin A Odhiambo, ‘Past Reflections , Future Insights : African Asylum Law and Policy in Historical Perspective’ (2007) 19 International Journal of Refugee Law 51, 54.

[91] ibid 55.

[92] Hathaway and Foster (n 2) 91. ; 2011 QD Art 8(1)(a) provides that one needs to prove a well-founded fear or a real risk of suffering serious harm.

[93] R v Secretary of State for Home Department; Sivakumaran [2001]1 AC 489 (UKHL, Jul 6,2000) 495.

[94] Hathaway and Foster (n 2) 91.

[95]‘UNHCR Handbook, 2019’ (n 5) paras 37–39.;MM v Minister for Justice (Case C-277/11) Art 2 of the 2011 QD reflects the well-founded fear in the requirement of an applicant to establish a ‘real risk of suffering serious harm’ as defined in Art 15 of the Directive. In the O.N v RAT & Anor 2017 IEHC 13 (Ireland), the High Court of Ireland held that the same standard applies to refugee applicants as well.

[96] ‘UNHCR Handbook, 2019’ (n 5) para 38; Hathaway and Foster (n 2) 91.

[97] K v Refugee Appeals Tribunal & Anor [2010] IEHC 367 (High Court or Ireland) [27]; Hathaway and Foster (n 2) para 91.M A MA v Refugee Appeals Tribunal & Ors [2011] IEHC 147 [1,15-17].;ES -v- The Refugee Appeals Tribunal & Ors [2014] IEHC 534 [16].

[98] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 76 Per Gaudron J.

[99] Ward v Canada (Attorney Genral ), [1993]2 SCR 689(Can SC, Jun30, 1993) at 709 (1993) 2 689, 723.

[100] Immigration and Naturalisation Service v Cardoza-Fonseca (1987)407 US 421 431.

[101] Zgnat’ ev v Minister for Justice, Equality and Law Reform [2001] IEHC 70 para 6 [para 6].

[102] HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 623.

[103] K v Refugee Status Appeals Authority (No2), [2005] NZAR 441 450.; Hathaway and Foster (n 2) 91.

[104] R v Secretary of State for Home Department; Sivakumaran [2001]1 AC 489 (UKHL, Jul. 6,2000) (n 93).

[105] Hathaway and Foster (n 2) 92.

[106] ibid.

[107] ibid 96.

[108] A (Ethiopia) v Refugee Appeals Tribunal [2015] IEHC 49 [25].

[109] M. A. M.A. v Refugee Appeals Tribunal & Ors [2011] IEHC 147 (n 97).

[110] Singh v Moschorak US CA, 9th Cir No94-55400.

[111] Gomez v Minister for Immigration & Multicultural Affairs [2002] FCAFC 105 & 480.

[112] J S v Secretary of State for Home Department: CA 30 Oct 1996.

[113] PO & SO v Minister for Justice, Equality and Ireland & the Attorney General, [2015] IESC 64, Ireland: Supreme Court, 16 July 2015.

[114] Re Minister for Immigration and Multicultural Affairs; Ex parte P T [2001] HCA 20.

[115] Hathaway and Foster (n 2) See generally 100-118.; Arts 4 &5 of the 2011 QD merely taken into account.

[116] A (Ethiopia) v Refugee Appeals Tribunal [2015] IEHC 49 (n 108).

[117] Abay v Ashcroft, 368 F3d 634, United States Court of Appeals for the Sixth Circuit, 19 May 2004.

[118] IE -v- Minister for Justice and Equality & Anor [2016] IEHC 85 per Humphreys J.

[119] Hathaway and Foster (n 2) 92.

[120] ibid 104.

[121] Guidelines on international protection No.12: Claims for refugee status related to situations of armed conflict and violence under Article 1A(2) of the 1951 convention and/or 1967 protocol relating to the status of refugees and the regional refugee definition, 2nd December 2016, (International Journal of Refugee Law) 29 (1) 151 [6].

[122] ibid [17].

[123] ibid [22].

[124] Toby D Mendel, ‘Refugee Law and Practice in Tanzania’ (1997) 9–59 International Journal of Refuge Law 35, 54.

[125] ibid.

[126] UNHCR, ‘Note on Burden and Standard of Proof in Refugee Claims’ (1998) para 7.

[127] ON v Refugee Appeals Tribunal and Anor [2017] IEHC 13, (Ireland) [62].

[128] Egan (n 3) 296; Hathaway and Foster (n 2) 111.Directive 2011/95/EU (n 40) Art 2 (f) provides that one must prove that they would face a real risk of suffering serious harm. This was held to be the same test for both refugee and subsidiary protection applications as held in the O.N case.

[129] Hathaway and Foster (n 2) 162.

[130] O.N. v Refugee Appeals Tribunal and Anor [2017] IEHC 13, (Ireland) (n 127) [62].

[131] ‘UNHCR Handbook, 2019’ (n 5) para 13.;UNHCR, ‘Note on Burden and Standard of Proof in Refugee Claims’ (n 126) para 3.

[132] Immigration and Naturalisation Service v. Cardoza-Fonseca (1987)407 US 421 (n 100) 453.

[133] R v Secretary of State for Home Department; Sivakumaran [2001]1 AC 489 (UKHL, Jul. 6,2000) (n 93).

[134] Chan v Canada [1995] 3 SCR 593 (CanSC 19th October 1995) 659 120.

[135] O.N. v Refugee Appeals Tribunal and Anor [2017] IEHC 13, (Ireland) (n 127).‘UNHCR Handbook, 2019’ (n 5) para 13.

[136] Hathaway and Foster (n 2) 118.;Re Mogharrabi (USBIA, 1987) 421 445.

[137] Hathaway and Foster (n 2) 163. Directive 2011/95/EU (n 40) Art 5.

[138] Directive 2011/95/EU (n 40) [5]; UNHCR, ‘Guidelines on International Protection No.12’ (n 47) [26]. &[52]; CSR [3].

[139] See also UNHCR, ‘Note on Burden and Standard of Proof in Refugee Claims’ (n 126) para 6.

[140] Details referred to in O.N. v Refugee Appeals Tribunal and Anor [2017] IEHC 13, (Ireland) (n 127).

[141] Egan (n 3) 300; ‘UNHCR Handbook, 2019’ (n 5) paras 164–166.

[142] Hathaway and Foster (n 2) 169.&170; 2011 QD Art 4(3)

[143] ‘UNHCR Handbook, 2019’ (n 5) para 164.

[144] Directive 2011/95/EU (n 40) Art 15(c) provides, ‘Serious harm consists of (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.’ .

[145] Adan v Secretary of State for Home Department [1999] 1 AC 293.

[146] Minister for Immigration and Multicultural Affairs v Abdi 162 ALR 105 [33].

[147] Ali, Shaysta-Ameer v MCI (12 January 1999).

[148] UNHCR, ‘Guidelines on International Protection No.12’ (n 47) para 22.

[149] Egan (n 3) 302.

[150] UNHCR, ‘Guidelines on International Protection No.12’ (n 47) [48].

[151] ‘UNHCR Handbook, 2019’ (n 5) para 51; Hathaway and Foster (n 2) 182.

[152] Hathaway and Foster (n 2) para 182.

[153] ‘UNHCR Handbook, 2019’ (n 5) para 51.

[154] Hathaway and Foster (n 2) 186.

[155] ibid 186–208.

[156] Nagoulko v Immigration and naturalisation service (2003) 333 F3d 1012 (USCA, 9th Cir, Jun24,2003) 1015.

[157] Hathaway and Foster (n 2) 188 & 189.

[158] ibid 190.

[159] ibid 191.

[160] ibid 192.

[161] Convention Relating to the Status of Refugees 1951, United Nations, Treaty Series, vol. 189, 137 (n 44).

[162] Hathaway and Foster (n 2) 194.

[163] ibid 195.

[164] ‘UNHCR, Guidelines on International Protection No 1: Gender-Related Persecution within the Context of Art 1A(2) of the Convention and/or Its 1967 Protocol Relating to the Status of Refugees , UN Doc. HCR/GIP/02/01 (May 7, 2002)’ paras 5 & 9.

[165] ibid 91,183; R V Immigration Apeal Tribunal & Another Ex Shah [1999]2 AC 629, 655 & 658.;

[166] Bundesrepublik Deutschland v Y (C-71/11) and Z(C-99/11) (2012) Sept 5th 2012.; Art 9 of 2011 QD

[167] Art 9(2)(f)

[168] Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, Oxford University Press 2015). 78

[169] Hathaway and Foster (n 2). 183 ;E.D (a minor) v RAT & Ors [2016] IESC 77 (n 2) para 5.1, 5.2.

[170] E.D (a minor) v RAT & Ors [2016] IESC 77 (n 169).

[171] Hathaway and Foster (n 2). 221 ;Refugee Appeal No 74665/03 (NZ RSAA, 2004) at 89.;Dunat v Hurney (1961) 297 F2d 744 (USCA, 3rd Cir, May 29, 1961) at 746, 746.

[172] The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations, Treaty Series, vol. 1465, p. 85 (n 68). SCAT v Ministry of Immigration and Multicultural and Indiginous Affairs (2002) 76 ALD 625 at 635 , (Apr 30 2003) Per Madgwick J.

[173] Tuhin v Ashcroft, 60 Fed Appx 615 (2003) 7th Circui at 619. ;35247 (Bel CCE [Belgian Council for Alien Law Litigation], Dec 2 2009.

[174] Hathaway and Foster (n 6) 239.

[175] UN, ‘International Covenant on Economic , Social and Cultural Rights ,16 December 1966, United Nations, Treaty Series, Vol. 993’ (1976) 993. Art 2(2) & 6(1) ;Hathaway and Foster (n 6) 253.

[176] Hathaway and Foster (n 6) 260.

[177] UNHCR, ‘Guidelines on International Protection No. 9’ [53].

[178] UNHCR, ‘Guidelines on International Protection No.12’ (n 47) [52].

[179] Hathaway and Foster (n 6) 240.

[180] MST (a minor) v Minister of Justice & Ors [2009] IEHC 529, per Cooke J. (Ireland)

[181] Art 4(3)(c) Directive 2011/95/EU (n 40); N v United Kingdom, Application No 26565/05 (ECtHR, May 27, 2008) at 29, 29; E.D (a minor) v RAT & Ors [2016] IESC 77 (n 169) [5.3]; Hathaway and Foster (n 2) 198. &240

[182] Hathaway and Foster (n 6) 211.

[183] Ward v Canada (Attorney Genral ), [1993]2 SCR 689(Can SC, Jun30, 1993) at 709 (1993) 2 689 716.

[184] Art 6(c) and 9(3) of the Directive 2011/95/EU (n 40); Egan (n 3) 306.

[185] Hathaway and Foster (n 2). 184; Horvath v Secretary of State for Home Department [2000]3 ALLER 577.

[186] Hathaway and Foster (n 6) 299.

[187] 2011 QD Art 7(1)(b),(2),(3) & Art 8(1)(b);Canada (AG) v Ward [1992]2 SCR 689 724.

[188] ‘UNHCR Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004, 28th January 2005’.

[189] Egan (n 3) 307.,Hathaway & Foster 2014 333; 2011 QD Art 8(1)(b)

[190] Hathaway and Foster (n 6) 334.

[191] ibid 351.

[192] UNHCR, ‘Guidelines on International Protection No.12’ (n 47) para 60.

[193] ibid.

[194] Majority of the cases concerned unlawful expulsion of refugees.

[195] UNHCR, ‘Guidelines on International Protection No.12’ (n 47).

[196] ibid 54.

[197] ibid 55.

[198] ibid.

[199] ibid 56.

[200] ibid.

[201] ibid 57.

[202] ibid 58.

[203] ibid 59.

[204] Egan (n 3) 308.

[205] ibid 304.

[206] ibid 308.

[207] See section 4:6:4 above

[208]African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, 23 October 2009; Lauren Groth, ‘Engendering Protection: An Analysis of the 2009 Kampala Convention and Its Provisions for Internally Displaced Women’ (2011) 23 International Journal of Refugee Law 221, 221.

[209] Fornah v Secretary of State for the Home Department (2007) 1 AC 412, 462.

[210] ibid 362. ; The Convention relating to the status of Refugees (n 1) Art 1A(2); Directive 2011/95/EU (n 40) Art 9(3). Art 2(d).

[211] Egan (n 3) 308.

[212] ‘UNHCR Handbook, 2019’ (n 5) para 66.

[213] Hathaway and Foster (n 6) 373;&391; R V Immigration Apeal Tribunal & Another Ex Shah [1999]2 AC 629, (n 6) 658.

[214] Art 1(2) OAU Convention.

[215] ‘UNHCR Handbook, 2019’ (n 5) para 68.

[216] Egan (n 3) 309; GV v Refugee Appeals Tribunal [2011] IEHC 262.

[217] UNHCR, ‘Guidelines on International Protection No.6’: paras 5–9 Religion‑Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees HCR/GIP/04/06 paras 5-9.;Human Rights Committee, ‘General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion (Art 18) : 30/07/93. CCPR/C/21/Rev.1/Add.4, General Comment No. 22. (General Comments)’ 1, paras 2 & 5.

[218] Art 10(1)(b) of the 2011 QD; Universal Declaration of Human Rights (adopted 10 December 1948 ) art 1, Art 18.

[219] Art 10(2) Directive 2011/95/EU (n 40); UNHCR, ‘Guidelines on International Protection No. 9’ (n 177).

[220] Germany v Y and Z (Joined cases C-71/11 and C-99/11) [2013] 1 CMLR 5 in the Court of Justice of the European Union, Grand Chamber.; ‘UNHCR Handbook, 2019’ (n 5) para 72.

[221] Bundesrepublik Deutschland v. Y (C-71/11) and Z(C-99/11) (n 166) [80].

[222] 2011 QD Art 9(1) (a).

[223] ‘UNHCR Handbook, 2019’ (n 5) para 74.

[224] ibid.

[225] ibid 76.

[226] ibid 80.

[227] ibid.

[228] ibid.

[229] Art 10(1)(e)

[230] Canada (A.G) v Ward [1992]2 SCR 689 (n 187).

[231] Egan (n 3) 311; Bingham LJ in Fornah v Secretary of State for the Home Department 2007 AC 412 (n 209) [11].

[232] ‘UNHCR Handbook, 2019’ (n 5) paras 77–79.

[233] SLJ & LRC v RAT & Ors [2016] IECA 47; R V Immigration Apeal Tribunal & Another Ex Shah [1999]2 AC 629, (n 165) Per Lord Hope.

[234] UNHCR, Guidelines on International Protection No.2: ‘Membership of a particular social group’ within the context of Artcile 1(A) of the 1951 Convention and/or its 1967 Protocol relating to the status of Refugees UN Doc. HCR/GIP/02/02 (May 7,2002) 2002 15, paras 14–17; Khawar (Aus HC, 26, 2002) [43]; R V Immigration Apeal Tribunal & Another Ex Shah [1999]2 AC 629, (n 165) per Lord Steyn.

[235] Chan v Canada [1995] 3 S.C.R. 593 (Can.SC 19th October 1995) 659 (n 134) Per La Forest J.

[236] Hathaway and Foster (n 2) 423–436.

[237] Acosta (USBIA, 1985) 233; Canada (A.G) v Ward [1992]2 SCR 689 (n 187).

[238] Applicant A v MIEA (1997) 142 ALR 331 (HCA) 234 It was explained that ‘a “particular group” is identifiable by a characteristic common to the members of the group and a “social group” is a group the members of which possess some characteristic which distinguishes them from society at large.’ .;Nicole LaViolette, ‘Gender-Related Refugee Claims: Expanding the Scope of the Canadian Guidelines’ (2007) 19 International Journal of Refugee Law 169.

[239] Hathaway and Foster (n 2) 423–436.

[240] LaViolette (n 238) 170.

[241] ‘International Protection Act No. 66 of 2015’ (n 1) S .8(1)(d) (i) &(ii).

[242] Hathaway and Foster (n 2) 432.

[243] ibid 427.

[244] LaViolette (n 238) 173.

[245] ibid 172. 180, 182

[246] Egan (n 3) 313.

[247] ibid 315.LaViolette (n 238) 176.

[248] Re Kasinga [1996] WL 379826 (US).

[249] Australia, Canada, United Kingdom; See Egan (n 3) n 315.R V Immigration Apeal Tribunal & Another Ex Shah [1999]2 AC 629, (n 165).

[250] Khawar (Aus. HC, 26, 2002) (n 234).

[251] LaViolette (n 238) 210.

[252] Egan (n 3) 316.LaViolette (n 238) 172.

[253] Mosebatho Justina Lelimo v Minister for Justice, Equality and Law Reform [2003] IEHC 78. ;S.I. No. 518/2006, European Communities (Eligibility for Protection) Regulations 2006 which transposed the 2004 QD provided in R. 10(1)(d)(ii) that ’gender related aspects may be taken into account, without by themselves alone creating a presumption for the applicability of this Regulation.

[254] Marian Kennady, ‘Gender-Related Persecution and the Adjudication of Asylum Claims: Is a Sixth Category Needed?’ (1998) 12 Florida Journal of International Law 317, 338.339

[255] HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (n 102) [10 & 42]; Hathaway and Foster (n 2) 442–445.

[256] ibid 260.

[257] Roger LJ HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (n 102) [53].

[258] Egan (n 3) 313; Dudgeon v United Kingdom (1982)4 EHRR 149; Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (HRC, March 31 1994), at 82.;HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (n 102).;Janna Wessels, ‘HJ (Iran) and HT (Cameroon) - Reflections on a New Test for Sexuality-Based Asylum Claims in Britain’ (2012) 24 Int’l J. Refugee L. 815, 815.

[259] See EG & 7 others v

Sutherland School of Law

UNIVERSITY COLLEGE DUBLIN

TOWARDS A COMMON REFUGEE SYSTEM IN THE EAST AFRICAN COMMUNITY?

THE REFUGEE DEFINITION

STUDENT NUMBER : 18201821

WORD COUNT : 15461

Submitted to the Sutherland School of Law in partial fulfilment of the requirement for the degree of Master of Laws

Supervisor

Dr. Liam Thornton

TABLE OF CONTENTS. ii

ABBREVIATIONS & ACRONYMS. iv

LIST OF TABLES. v

ABSTRACT. vi

1.0 CHAPTER ONE: INTRODUCTION.. 7

1.1 Introduction. 7

1.2 Background to the research. 7

1.2.1 Asylum seekers and refugee status: definition, facts, figures. 7

1.2.2 History of the EAC.. 10

1.2.3 The legal basis of the refugee law in the EAC Treaty. 12

1.2.4 The African Union (AU) 13

1.3 Statement of the Problem.. 15

1.4 Research question. 15

1.5 Justification for the research. 15

1.6 Research Methodology. 16

2.0 CHAPTER TWO: INTERNATIONAL REFUGEE LAW... 18

2.1 Introduction. 18

2.2 The Convention Relating to the Status of Refugees (CSR) 18

2.3 The African Union. 19

2.3.1 OAU Convention. 19

2.3.2 The AU and Human Rights. 20

2.4 The European Union. 21

2.4.1 The EU Refugee Framework. 21

2.4.2 The EU Refugee Definition. 22

2.4.3 Human Rights and the EU Refuge definition. 22

2.5 Conclusion. 23

3.0 CHAPTER THREE: THE EAC STATES LEGAL REGIME.. 24

3.1 Introduction. 24

3.2 The EAC States and the Refugee definition. 24

3.3 Judicial decisions. 26

3.4 The role of the UNHCR.. 27

3.5 Conclusion. 28

4.0 CHAPTER FOUR: EXPLORING THE REFUGEE DEFINITION.. 29

4.1 Introduction. 29

4.2 Well-founded fear 29

4.2.1 Forward-looking nature and approaches. 29

4.2.2 The standard of proof. 33

4.2.3 The burden of proof and the shared duty of fact-finding. 35

4.3 Civil war ‘refugees’ 35

4.4 Persecution. 37

4.5 Internal protective alternative. 42

4.6 The OAU Convention refugee elements. 43

4.6.1 External Aggression. 43

4.6.2 Occupation. 43

4.6.3 Foreign domination. 44

4.6.4 Events seriously disturbing public order 44

4.7 Limits of the OAU.. 45

4.8 Conclusion. 45

5.0 CHAPTER FIVE: THE NEXUS GROUNDS. 46

5.1 Introduction. 46

5.2 The causal link. 46

5.3 The nexus grounds examined. 47

5.3.1 Race. 47

5.3.2 Religion. 47

5.3.3 Nationality. 49

5.3.4 Political opinion. 49

5.3.5 Membership of a particular social group (MPSG) 50

5.3.5.1 Gender 52

5.3.5.2 Sexual orientation. 54

5.4 Conclusion. 55

6.0 CHAPTER 6: SUMMARY AND CONCLUSION.. 57

BIBLIOGRAPHY.. 58

APPENDICES. 65

Appendix 1: Map of Africa showing the East African community. 65

Appendix 2: Map of the East African Community States. 66

Appendix 3: Proposed refugee definition. 67

ABBREVIATIONS & ACRONYMS

ACHPR African Charter on Human and People’s Rights

ACtHPR African Court on Human and People’s Rights

ACJHPR African Court of Justice and Human Rights

AU African Union

CSR Convention Relating to the Status of Refugees of 1951 & its 1967 Protocol

EAC East African Community

ECHRts European Convention on Human Rights

EU European Union

ICCPR International Covenant for Civil and Political Rights

ICL International Criminal Law

IHL International Human Rights Law

MPSG Membership of a Particular Social Group

OAU Organisation of African Unity

QD Qualification Directive

UDHR Universal Declaration of Human Rights

UK United Kingdom

UN United Nations

UNCAT United Nations Convention Against Torture

UNHCR United Nations High Commissioner for Refugees

US United States of America

LIST OF TABLES

Table 1 Persons of concern to UNHCR – by region (Adapted from UNHCR Global Refugee Agency, ‘Global Trends: Forced Displacement 2018’, Annex Tables 1 & 2) 9

Table 2 Persons of concern to UNHCR within the EAC region (Adapted from UNHCR Global Refugee Agency, ‘Global Trends: Forced Displacement 2018’, Annex Tables 1 & 2) 10

Table 3 Table of Cases. 58

Table 4 Table of National Legislation. 60

Table 5 Table of International Conventions and Regional Laws. 60

ABSTRACT