Uncertainty looms over Rwandan refugees in Uganda as cessation clauses to be invoked on December 31, 2011

Nelly MarcouxBy Nelly Marcoux – Fears of unwanted repatriation have been spreading among Rwandan refugees and asylum seekers in Uganda over the last months.  In 2003, the signature of a Tripartite Agreement between the Governments of Rwanda and Uganda and the Office of the United Nations High Commissioner for Refugees (UNHCR) had laid the foundations of a framework to eventually repatriate Rwandan refugees.  Following its 6th meeting, held in 2009, the Tripartite Commission issued a statement to the effect that “the retention of refugee status by present Rwandan refugees (was) no longer justifiable or necessary”. At the 8th Tripartite Commission Meeting, it was finally decided that come 31 December, 2011, the cessation clauses of Uganda’s Refugee Act 2006, of the 1969 Organization of African Unity (OAU) Convention and of the 1951 UN Convention relating to the Status of Refugees (1951 Convention) would be invoked against all Rwandan refugees, causing them to be stripped of their refugee status.

Cessation of refugee status is a mechanism within refugee law which allows for the removal of international protection when it is deemed that the circumstances having justified its extension no longer exist.  It can be applied on an individual basis or to a group of refugees whose initial flight shares similar characteristics and motives. Certain conditions must be fulfilled to lawfully invoke such clauses: first, there must first be fundamental change in the circumstances existing in the country of origin; such change must be enduring, beyond transitory; and finally, state protection must be restored to the forced migrant. Exemption procedures are provided for those individuals who remain in need of international protection and those who, due to compelling reasons based on previous persecution, cannot go back.

Seventeen years after the 1994 genocide, as of January 2011 there were an estimated 16,300 Rwandan refugees in Uganda, with asylum seekers being numbered at approximately 11, 551.  These migrants have been coming into the country in successive waves, fleeing various conflicts since 1959.  Following the mass exodus created by the 1994 genocide, asylum seekers have been trickling in steadily into Uganda since 1998.   In March and April 2010 alone, for example, 1,312 officially recognised asylum seekers arrived in Uganda.

Rwanda boasts an impressive economic growth and rapid improvements in the areas of education and health; it is perceived as having achieved stability and as successfully managing the daunting tasks of promoting national reconciliation and nation building.  As such, the Rwandan government benefits from a favourable image in the eyes of the international community. In recent years, having deemed that it was time for its exiled nationals to return “home”, Kigali has invoked this record to support its claim; it has also pursued spirited means of repatriating its citizens, notably through the signing of tripartite agreements with Uganda and Tanzania. Increasingly, the idea that refugee status for Rwandans is “no longer justified or necessary” has gained currency in international discourse and accordingly, policies are put in place to encourage, facilitate or implement return.

In Uganda, some of these measures involve severe restrictions on livelihoods, and have resulted in an overall decrease in the protection afforded to Rwandese refugees.  For instance, as a means of “encouraging repatriation” and “promoting self-reliance”, Rwandan refugees in Ugandan settlements have seen their land confiscated and have been forced to rely on rations only for survival, the rationale behind that policy being that attachment to land constitutes a factor undermining repatriation. Decreases in rations and in access to other services have also been reported.  Such policies have severely curtailed refugees and asylum seekers’ ability to ensure their food security or to engage in income generating activities

Although it is important to acknowledge that a vast number of migrants have successfully returned to and stayed in Rwanda, questions remain: why are so many Rwandans reluctant to go back?  Why have some promptly made their way across the border again after returning voluntarily, choosing the hardships of refugee life over repatriation?  Several reasons have been cited by the latter to explain their decision; for instance, many report having been unable to recover the property left behind during the initial flight, and having faced violence in attempting to do so.  Others mention fear of persecution on various grounds, or of the potential abuses of the gacaca system, set up to implement transitional justice following the 1994 genocide; and many Hutu refugees report fearing blanket accusations of participation in and responsibility for the genocide.

Furthermore, several human rights abuses and restrictions on civil and political freedoms in Rwanda have been documented, prompting the Commonwealth Human Rights Initiative to issue the following statement in its 2009 report on Rwanda’s application for membership of the Commonwealth:

There are considerable doubts about the commitment of the current regime to human rights and democracy. It has not hesitated to use violence at home or abroad when it has suited it.

Arbitrary detentions and restrictions on political activity and freedom of expression are also reported, notably on account of the implementation of legislation against “genocide ideology”, a set of legal instruments emphasizing national unity and reconciliation by banning “ethnic classifications or any discussion of the country’s diversity”; some critics allege that this law, as currently implemented, works to suppress public debate around issues relating to ethnicity, and to stifle criticism of current government policies.

Also of concern are the circumstances surrounding two instances of forcible return of Rwandan refugees conducted in recent years, which have raised the alarms of the international community.  In October 2007, some 3000 Rwandan ‘rejected’ asylum seekers “illegally” in Uganda, were expelled at gunpoint, in the early hours of the morning.  On July 14, 2010, at Nakivale  and Kyaka refugee settlements, over 1,700 Rwandans refugees and asylum seekers were told to gather to receive food rations or obtain the results of their asylum applications from the Office of the Prime Minister (OPM); they were then rounded up by the military and loaded onto trucks which drove them across the border. Two individuals died and 26 were injured as they attempted to jump off the trucks; families were also reportedly separated, as parents were deported while children remained in the settlements.  It is significant to note that Rwandan officers were on the premises during the operation which, according to Salima Namusobya, legal officer at the Refugee Law Project, was “coordinated between the governments of Rwanda and Uganda.”   Notwithstanding the obvious problems associated with this way of proceeding, from a strictly legal point of view, these operations have deprived refugees and asylum seekers from exhausting the appeal procedures provided for Refugee Status Determination in Uganda’s Refugees Act, 2006”; they also violated principles of international law prescribing that repatriation must be conducted in safety and dignity.

Months away from December 31, and despite the seriousness and widespread character of these concerns, the paucity of information available publicly about the implementation of cessation, even among refugee agencies, and NGOs, is surprising.  Uncertainty lingers with regards to roadmaps, timeframes and modalities of implementation; questions also remain concerning the institution of mechanisms to ensure that all those in need of international protection will be able to access the recourses to which they are entitled under domestic and international law.

Refugee law provides for three durable solutions, namely local integration, repatriation and resettlement to a third country. Yet in the case of Rwandan refugees, repatriation seems to be strongly emphasized to the detriment of the remaining two options.  As a result, Rwandan refugees in Uganda face pressure such that their situation has been qualified as “constructive refoulement” by some analysts.  Non-refoulement, a cornerstone of refugee law, bars states from returning anyone to a place where they would risk persecution.  Yet, the indiscriminate application of cessation to all Rwandans risks creating such a situation by failing to account for the circumstances of individuals who run very real risks, should they be compelled to repatriate.  Any solution prematurely withdrawing international protection to individuals in need of such protection, in violation of fundamental principles of refugee law, would be anything but durable.

Police (in)action as an access to justice barrier for “defilement” victims

By Sasha Hart

None of the names used in this blog entry are the real names of the individuals.

After completing my placement at the TJRC in Nairobi, I started to do work more directly related to the Equality Effect’s “160 Girls Project.” This project is a test case litigation initiative aimed at holding the Kenyan government accountable for its failure to protect girl children from rape (which is referred to as “defilement” under Kenyan law). While Kenya has a solid Sexual Offences Act, the reality on the ground is that in many cases police officers fail to take these offences seriously and to conduct an adequate investigation. This lack of action results in far too many perpetrators going unpunished. The claimants in the ‘160 Girls’ litigation will argue that the constitutional rights of Kenyan girls are violated by this police failure.

My first assignment was to conduct research and write a legal memo on questions related to the submission of evidence in Kenyan human rights cases, particularly in constitutional cases and cases involving children. Another intern from the University of Toronto joined me for this part of the internship and we conducted the research together at the University of Nairobi’s law library. We also interviewed a brilliant constitutional lawyer in Nairobi who provided invaluable insights into how constitutional cases unfold in practice.

After conducting this research, we went to Meru (a town in Kenya’s Eastern Province) where we began working with staff of a shelter for girls who have been “defiled” (raped). The shelter provides psychosocial support, medical care, and legal advice/support to these girls. We shadowed the staff for 2 weeks in order to gain exposure to how the legal treatment of defilement works in practice. We made sure to keep detailed notes of our work and are currently compiling a report on the process of the legal treatment of defilement, highlighting any practices/procedures that may place defilement victims at a disadvantage in terms of their right to equal treatment under the law and their right to access to justice.

When Rachel’s case was referred to the shelter by the District Children’s Officer (DCO) of Maua, we accompanied one of the social workers to the DCO’s office in order to get more information about her case, as well as to meet with Rachel and assess whether she should be admitted to the shelter. Rachel is 13 years old.  She is now pregnant after having been raped by a police officer in her community. Despite the fact that Rachel has filed a report with the police, and that there is a written admission by the officer himself that he impregnated her, the police have laid no charges against him. Instead, there are efforts being made to have him transferred to another district.

Joyce, a 14-year-old girl, was raped by an elderly man in her neighbourhood while she was on her way to run an errand for her mother. As a result, she is now HIV positive. While the perpetrator has been charged, he was released on bail and is back in the community. We met with Joyce and her mother, who told us that they are doubtful there will be justice in Joyce’s case because the perpetrator is rich and can afford to bribe the police and prosecutor. Indeed, it is suspicious that only a charge of attempted rape has been laid and that the police have not had the man tested for HIV/AIDS, which would provide corroborating evidence for Joyce’s story.

We were working at the shelter one day when 6-year-old Margaret was admitted. Margaret was raped by her next-door neighbour and because he has not been arrested, the organization felt it was unsafe for her to continue living at home. Margaret has not been able to record a statement with police because of psychological trauma following her assault. As a result, the police have not taken any action in her case.

Last week, I accompanied a social worker to the police station in order to have Abigail record a statement. Abigail is 13 years old and lives alone with her dad. Her mom died when she was 2 years old and her dad has been living with her “as husband and wife” (having regular sexual relations with her since she was about 5 yrs old).  At the police station, we were told that we could not file a record of the abuse because of the lack of (eye witness) evidence of the sexual abuse.  We were told that at most this is a case of parental negligence; and that ,in any case, by admitting the child to the shelter, the abuse would no longer continue.

While these stories illustrate the role of police in preventing access to justice for defilement victims, what I’ve grasped from this “on-the-ground” experience is how multi-layered the problem is and the extent to which police (in)action certainly isn’t the only access to justice barrier. For example, the social stigma attached to rape in Kenyan society is perhaps an even greater access to justice obstacle because it perpetuates a culture of silence in regards to this crime. Rape/defilement is likely the most underreported crime in the country. As one police chief in the community explained to us, while there are numerous incidents of rape in his district, very few are reported to police because family members tend to be embarrassed by the incident and fear that their daughter will have no marriage prospects if it is discovered that she has been “defiled”. (Note how even the legal term for the rape of a child in Kenya, “defilement,” is loaded with shameful connotations).

In addition, many families prefer to settle the matter privately instead of through the legal system–often through a monetary settlement. The sense I got was that the girls themselves have limited say in these arrangements and this kind of settlement may be arrived at despite their wishes to take legal action. For example, although Rachel wants her perpetrator jailed, her parents and the perpetrator (a police officer) entered into a written contractual agreement stipulating that the perpetrator would provide regular financial assistance to Rachel until she turns 18 years old. It was only when the terms of the agreement were breached that Rachel’s family decided to bring the matter to police.

Wealthy perpetrators can often buy their way out of facing the criminal justice system, especially when the victim’s family is poor. I initially had a very hard time understanding how a victim’s parents could accept this type of monetary settlement in lieu of pressing criminal charges. Looking at the issue from behind the lens of my own Canadian  perspectives and assumptions, I vilified these parents, questioning their sense of justice and morality.  It wasn’t until I visited Joyce’s home (the 14 year old infected with HIV after being raped) that I began to understand how loving parents could choose to accept this type of settlement. Joyce’s family lives in abject poverty. The perpetrator has offered a sum of money that likely exceeds the amount of income her parents could expect to make in the next 10 years. While her parents have not accepted the offer, the organization has intervened in the case out of concern that they may eventually give in to the temptation and withdraw the case as many others have done.

In short, our observations in the course of shadowing the shelter’s staff revealed that police failures, as well as other contextual factors such as stigma, poverty, and limited agency of defilement victims due to their age, can all intersect to prevent access to justice.

After 2 weeks of shadowing staff and making note of all these observations, two  Canadian lawyers on the 160 Girls litigation team joined us in Meru to collect more evidence for the case. We accompanied them to interviews with police officers, a lawyer, and staff of the shelter , in which we sought to gain these individuals’ perspectives on the legal treatment of defilement. The other Canadian student intern and I also worked on creating a template for the staff to use when recording interactions they have with police. These records will be used in drafting affidavits for the litigation.

We then went to Nairobi for a meeting with the entire 160 Girls legal team, which includes lawyers from the dynamic women’s rights organization, FIDA Kenya. The purpose of the meeting was to strategize and come to a consensus on important details of the case such as who the applicants should be (i.e.: a group of girls from the shelter and/or the organization itself); whether there should be interveners in the case; and what kind of remedies to ask for. I’m grateful to have been able to participate in this meeting because I found it to be a really interesting look into the behind-the-scenes work of public interest litigation.

For my remaining 2 weeks in Kenya I’ll be tackling a number of further research questions that came out of this meeting.

Third draft of the Cambodian Associations & NGO law out

Last week, the Cambodian government released a third draft of the Associations & NGO law. LICADHO’s commentary on this draft of the law can be accessed here. The International Centre for Not For Profit Law (ICNL) has also released a brief analysis available here. In summary, the key issue – the fact that it makes registration mandatory – remains.

LICADHO makes the following recommendations:

• Registration must be voluntary. The law’s mandatory registration provisions violate Cambodia’s own Constitution, international norms, and multiple international conventions which Cambodia has ratified. It also puts the NGO Law in direct conflict with several other Cambodian laws, creating a confused, impossible-to- navigate legal landscape for all groups wishing to assemble or undertake a broad array of activities in Cambodia.

• The law should specify that organizations and associations are temporarily authorized to operate while their registration applications are pending.

• The government must articulate a justification for the law, particularly in light of Cambodia’s 2007 Civil Code. The current stated purposes in Article 2 are entirely unsatisfactory: “giving” rights that Cambodians already possess, and providing opportunities that already exist.9 Stating a coherent justification will allow Cambodia’s legislators the ability to assess the stated purpose of the law and determine whether it is merited or whether modifications are warranted.

The law has moved to the Council of Ministers, which in Cambodia is the final stage of review before a law moves to the National Assembly for ‘debate’ (Hun Sen’s party, the Cambodian People’s Party has a majority and it is highly unlikely that the debate would lead to the necessary amendments, or anything else fruitful). For more updates on the law, “like” the Oppose the Cambodian NGO & Associations Law page.

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