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
1.2 Background to the research
1.2.1 Asylum seekers and refugee status: definition, facts,
figures
1.2.3 The legal basis of the refugee law in the EAC Treaty
1.5 Justification for the research
2.0 CHAPTER TWO: INTERNATIONAL REFUGEE LAW
2.2 The Convention Relating to the Status of Refugees
(CSR)
2.4.1 The EU Refugee Framework
2.4.2 The EU Refugee Definition
2.4.3 Human Rights and the EU Refuge definition
3.0 CHAPTER THREE:
THE EAC STATES LEGAL REGIME
3.2 The EAC States and the Refugee definition
4.0 CHAPTER FOUR:
EXPLORING THE REFUGEE DEFINITION
4.2.1 Forward-looking nature and approaches
4.2.3 The burden of proof and the shared duty of
fact-finding
4.5 Internal protective
alternative
4.6 The OAU Convention refugee elements
4.6.4 Events seriously disturbing public order
5.0 CHAPTER FIVE: THE NEXUS GROUNDS
5.3 The nexus grounds examined
5.3.5 Membership of a particular social group (MPSG)
6.0 CHAPTER 6: SUMMARY AND CONCLUSION
Appendix 1: Map of Africa
showing the East African community
Appendix 2: Map of the East
African Community States
Appendix 3: Proposed
refugee definition
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 4 Table of National Legislation
Table 5 Table of
International Conventions and Regional Laws
ABSTRACT
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 5th
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 |
||
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 |
||
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 2nd 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 35th preamble 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.
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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;
(c) non-State actors
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;
(c) prosecution or punishment which is
disproportionate or discriminatory;
(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, 2 nd 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
1.2 Background to the research
1.2.1 Asylum seekers and refugee status: definition, facts,
figures
1.2.3 The legal basis of the refugee law in the EAC Treaty
1.5 Justification for the research
2.0 CHAPTER TWO: INTERNATIONAL REFUGEE LAW
2.2 The Convention Relating to the Status of Refugees
(CSR)
2.4.1 The EU Refugee Framework
2.4.2 The EU Refugee Definition
2.4.3 Human Rights and the EU Refuge definition
3.0 CHAPTER THREE:
THE EAC STATES LEGAL REGIME
3.2 The EAC States and the Refugee definition
4.0 CHAPTER FOUR:
EXPLORING THE REFUGEE DEFINITION
4.2.1 Forward-looking nature and approaches
4.2.3 The burden of proof and the shared duty of
fact-finding
4.5 Internal protective
alternative
4.6 The OAU Convention refugee elements
4.6.4 Events seriously disturbing public order
5.0 CHAPTER FIVE: THE NEXUS GROUNDS
5.3 The nexus grounds examined
5.3.5 Membership of a particular social group (MPSG)
6.0 CHAPTER 6: SUMMARY AND CONCLUSION
Appendix 1: Map of Africa
showing the East African community
Appendix 2: Map of the East
African Community States
Appendix 3: Proposed
refugee definition
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 4 Table of National Legislation
Table 5 Table of
International Conventions and Regional Laws
ABSTRACT
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 5th
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 |
||
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 |
||
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 2nd 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 35th preamble 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.
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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;
(c) non-State actors
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;
(c) prosecution or punishment which is
disproportionate or discriminatory;
(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, 2 nd 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 Attorney General; DKM & 9 others (Interested
Parties) & Katiba Institute & another Petition 150 & 234 of 2016
the High Court of Kenya in May 2019 which upheld upheld s. 162 & 165 of the Penal Code Act
that criminalised homosexuality providing for up to 14 years imprisonment. See
also Paul Johnson and Silvia Falcetta, ‘Beyond the
Anti-Homosexuality Act: Homosexuality and the Parliament of Uganda’ [2019] SSRN
Electronic Journal.
[260] Oloka-Onyango (n 11) 454.
[261] Mendel (n 124) 59.Attorney General; DKM & 9 others (Interested
Parties) & Katiba Institute & another Petition 150 & 234 of 2016
the High Court of Kenya in May 2019 which upheld upheld s. 162 & 165 of the Penal Code Act
that criminalised homosexuality providing for up to 14 years imprisonment. See
also Paul Johnson and Silvia Falcetta, ‘Beyond the
Anti-Homosexuality Act: Homosexuality and the Parliament of Uganda’ [2019] SSRN
Electronic Journal.
[260] Oloka-Onyango (n 11) 454.
[261] Mendel (n 124) 59.