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The Relevance of and Challenges in the Enjoyment of Socio-Economic Rights of Refugees and Asylum Seekers in Africa
Abstract
This chapter questions the relevance of addressing the socio-economic rights of refugees and asylum seekers in Africa. It sets the tone in the introduction, which is followed by sub-arguments to (in)validate the foregoing notion. First, there is an exposition of the crucial notions that evaluate the relevance of addressing these rights. Second, an overview is provided of the challenges to the realisation of these rights and, thirdly, the possibility of working towards a balancing of socio-economic rights based on the right to equality is explored. Finally, a conclusion is reached.
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In 2011 the heads of state of the Southern African Development Community (SADC) disbanded the SADC Tribunal after the regional court held that the Zimbabwean government's land seizures violated the rule of law. The disbandment reflects SADC's hierarchy of values, in terms of which the organization's formal commitment to human rights and a regional legal order is subordinate to the political imperatives of regime solidarity and respect for sovereignty. The Tribunal saga demonstrates that the jurisdiction of regional courts derives not simply from their official mandates but from an interplay between domestic and regional law and politics.
Africa’s expanded refugee definition – article I(2) of the 1969 Convention – provides the legal basis of protection for a significant number of the world’s refugees. It is a gateway to a host of rights aimed at protecting refugees from future harm and preserving their dignity until a durable solution can be found. The expansive nature of the African definition has seen it praised for being more humanitarian, more reflective of current causes of displacement, and an exemplar for the development of refugee protection regimes elsewhere. Despite this, the scope of the definition and the meaning of its terms remain poorly understood in both literature and practice. Attempts to interpret the definition to date have been largely superficial and often lacking in any principled interpretative framework. This undermines its implementation in practice, potentially risking the lives and security of those entitled to protection as refugees in Africa.
This article sets out a principled framework for interpreting and applying Africa’s expanded refugee definition. The framework is drawn from international law principles of treaty interpretation, as set out in the Vienna Convention on the Law of Treaties and customary international law. However, this article goes beyond merely reciting the relevant principles: it analyses their scope, applicability to Africa’s expanded refugee definition, and implications for the interpretation of the definition’s terms. It also identifies, and describes in detail, four key principles for interpreting the expanded refugee definition. These four key principles are critical to addressing the shortcomings of existing understandings of the definition and some of the main controversies that arise in its interpretation and application. They also provide a practical and accessible source of guidance for refugee status decision makers and others that could assist in promoting consistency, transparency, and fairness in refugee status determination within African States.
As a party to the UN Refugee Convention and the OAU Refugee Convention, South Africa is obligated to apply international refugee law when addressing the protection needs of asylum seekers in the country. The Refugees Act, 1998 encapsulates the cardinal principles of the two conventions. This essay discusses how government officials and judges have interpreted and applied these principles in asylum application cases. These cases demonstrate that officials are either not always fully conversant with the legal obligations, incumbent upon the government, arising from both international law and domestic law or purposefully ignore them. For the most part, officials tend to treat asylum seekers presumptively as economic migrants rather than bona fide refugees entitled to proper scrutiny under the criteria set out in the refugee conventions. This approach has resulted in gaps between legal protection and practical protection of refugees in South Africa and has on several occasions been criticized and rejected by courts, including the Constitutional Court of South Africa.
November 2017 marks the 18th anniversary of the coming into force of the African Charter on the Rights and Welfare of the Child, its transition from ‘childhood’ to ‘adulthood’. The anniversary indeed offers an opportunity to reflect and take stock of the limited progress so far, and the work that remains to be done, in our collective efforts to create an African fit for children. Apart for discussing the ‘slow start’ the Charter faced, as well as reservations entered into it by few States, the piece focuses on three substantive issues that the Charter has added value on, namely, the definition of a child, child marriage, and children and armed conflict. The section that follows delves briefly into the core business of the African Committee, namely, consideration of State party reports, dealing with individual complaints, and conducting investigative missions. The piece concludes that, despite limitations, the Charter is not counting its days but making its days count. TITRE ET RÉSUMÉ EN FRANÇAIS: Joyeux 18ème anniversaire à la Charte africaine des enfants: ne pas compter ses jours mais faire en sorte que ses jours comptent RÉSUMÉ: Novembre 2017 marque le 18ème anniversaire de l’entrée en vigueur de la Charte africaine des droits et du bien-être de l’enfant, son passage de ‘l’enfance’ à ‘l’âge adulte’. L’anniversaire offre en effet l’occasion de réfléchir et de faire le point sur les progrès limités jusqu’ici, et le travail qui reste à faire, dans nos efforts collectifs pour créer une afrique convenable pour les enfants. Outre les discussions sur le ‘démarrage lent’ de la Charte, ainsi que sur les réserves émises par quelques Etats, cet article se concentre sur trois questions de fond sur lesquelles la Charte apporte une valeur ajoutée: la définition d’un enfant, le mariage des enfants et les enfants dans le contexte des conflits armés. La section qui suit décrit brièvement les principales activités du Comité africain, à savoir l’examen des rapports étatiques, le traitement des plaintes individuelles et la conduite de missions d’enquête. La pièce conclut que, malgré les limites, la Charte ne compte pas ses jours mais fait en sorte que ses jours comptent.
Cambridge Core - Comparative Law - Refugee Law's Fact-Finding Crisis - by Hilary Evans Cameron
It is not often acknowledged that the great majority of African refugee movement happens within Africa rather than from Africa to the West. This book examines the specific characteristics and challenges of the refugee situation in Sub-Saharan Africa, offering a new and critical vision on the situation of asylum-seekers and refugees in the African continent. Cristiano d'Orsi considers the international, regional and domestic legal and institutional frameworks linked to refugee protection in Sub-Saharan Africa, and explores the contributions African refugee protection has brought to the cause on a global scale. Key issues covered in the book include the theory and the practice of non-refoulement, an analysis of the phenomenon of mass-influx, the concept of burden-sharing, and the role of freedom fighters. The book goes on to examine the expulsions of refugees and the historical role played by UNHCR in Sub-Saharan Africa. As a work which follows the persecution and legal challenges of those in search of a safe haven, this book will be of great interest and use to researchers and students of immigration and asylum law, international law, human rights, and African studies.
The African Commission on Human and Peoples'Rights (the Commission), established by the African Charter on Human and Peoples' Rights (African Charter), is a quasi-judicial regional body charged with the functions of promoting and protecting human rights in Africa, including economic, social and cultural (ESC) rights. The Commission was the third regional human rights body after the European and American regional bodies. It is empowered to 'interpret' Africa's key regional human rights treaty, the African Charter adopted in 1981. Although the African Charter protects ESC rights alongside other rights, the African Commission noted in its Resolution on ESC Rights in Africa, ACHPR/Res.73 (XXXVI) 04 (2004), that 'despite the consensus on the indivisibility of human rights, economic, social and cultural rights remain marginalised in their implementation' in Africa. The Commission observed that there is inadequate recognition by African States of this category of rights that results in the continued marginalisation of these rights, which 'excludes the majority of Africans from the full enjoyment of human rights'. Not surprisingly, the Commission has found several States in violations of ESC rights. One contributory cause for the continued marginalisation of this category of rights in Africa can be attributed to the lack of awareness of the Commission's jurisprudence on these rights. This article reviews selected key aspects in the Commission's jurisprudence on ESC rights since the Commission was inaugurated in 1987 focusing on the normative content; State obligations and obligations of non-State Actors; remedies and limitations to and derogations from ESC rights.
Based on a range of field interviews conducted in South Africa in 1999-2000, this article argues that South Africa's currently evolving asylum regime, though legally encompassing both UN and Organization of African Unity (OAU) definitions of a refugee, in practice privileges a particular reading of the OAU definition whereby the properly recognizable refugee, for the South African state, emerges as an African victim of generalized violence. Rather than broadening the notion of the political which bears on asylum cases, such a reading renders the political worlds of applicants largely irrelevant. The overwhelming rejection of non-African applicants, the acceptance of those fleeing graspable scenarios of violence, and the difficulties which beset applicants relying on individual assessment criteria are all considered as aspects of this practice. The crucial influence of questions of national and regional identity are also considered, and suggestions of alternative approaches which remain visible in current practice are briefly highlighted.
Thirty-five years after the adoption of the Africa-specific treaty on refugees, the 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, the issue of refugees remains high on the agenda of many African countries. With States increasingly carrying out individual status determinations, either under their own auspices or through the offices of the UNHCR, insufficient guidance has been given to national decision-makers on how to interpret this instrument by either the UNHCR or the African Union, in addition to which there is limited published case law available. How does the OAU Convention definition deal with issues of the interface between migration and asylum? Does the practice of African States in regularly giving sanctuary to persons escaping environmental catastrophes give rise to a right to asylum under the treaty? What about persons fleeing terrorist attacks? Is the 1951 UN Convention relating to the Status of Refugees still relevant to displaced persons in Africa? This article takes a renewed look at each of the elements of the legal definition of a “refugee” under the OAU Convention in the hope of providing some guidance to decision-makers, lawyers and asylum-seekers alike. This article finds however that many questions remain unanswered, and although a myriad of different interpretations are possible, the greatest strength of the OAU Convention appears to rest less in its specific terms than the humanitarian spirit in which it is applied.
This article addresses a barrier to effective protection faced by child refugee applicants. Currently all refugee applicants, including infants, are required to satisfy two elements of well-founded fear. All applicants must prove that they face an objective risk of persecution and that they subjectively fear this risk. But children often cannot exhibit the subject apprehension element of the test. As a result, UNHCR, and the U.S and Canadian governments issued guidelines that encourage decision makers to accept other evidence to prove a child's subjective apprehension when the child is unable to exhibit fear. However, this approach does not go far enough. By allowing subjective apprehension to remain a part of the well-founded fear analysis for child refugee applicants, the threat of effective protection being denied is quite real. A recent case in the United States highlights this point. A nine-year old hearing impaired child was denied asylum by an immigration judge despite objectively clear evidence of potential risk of persecution simply because the child did not satisfy the subjective apprehension requirement. In order to protect child refugee applicants from such mis-guided decisions in the future, this article proposes a solution of only requiring objective risk evidence from child refugee applicants in order to establish a well-founded fear.
Well-founded fear of being persecuted: The sources and application of a criterion of refugee status
- T N Cox
Some reflections on the OAU Convention on Refugees: Some pending issues
- R R Medard
Convention Relating to the Status of Refugees
- Un General Assembly
International law in post-colonial Africa’ in Maluwa, T International law in post-colonial
- T Maluwa
Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Islamic Republic of Mauritania Communication
- Interights
Modise v Botswana Communication
- K John
The refugee concept in group situations (Martinus Nijhoff 1999) Google Scholar
- I C Jackson
No return to persecution or danger: Judicial application of the principle of non-refoulement in refugee law in South Africa and Malawi’ (2020) 10 Constitutional Court Review107 Google Scholar
- R E Kapindu