Advocating Taboo Issues in Health and Human Rights

2016 Moreau Andre  By André Moreau

I’ve been in Uganda for a month now and I am really enjoying my experience thus far!

Kampala, Uganda’s capital, is a big bustling city laid out over a series of hills and valleys on the northern shore of Lake Victoria. Kampala appears to be continuously developing. The city is undergoing countless construction projects, which are improving the city’s infrastructure and the art/music/culinary scenes are becoming increasingly prominent.

My internship at the Center for Health, Human Rights & Development (CEHURD) is providing me with an opportunity to learn about some of the issues relating to health and human rights in Uganda in particular and East Africa as a whole. From visiting Uganda’s Constitutional Court, to drafting memos and conducting legal research, I have had the privilege of being exposed to some of the key initiatives of this dedicated organization.

A bird's eye view of Kampala

A view of Kampala taken from atop of the Uganda National Mosque

Recently, I was given the task of conducting research on some of the Sexual Offences Acts that have been implemented in various countries around the world. More specifically, I was asked to compare and contrast these pieces of legislation in order to find out whether the rights of sexual assault victims have been emphasized. Fortunately, of the seven pieces of legislation that I analyzed, only one jurisdiction did not make mention of the wellbeing and protection of victims within its Sexual Offences Act. The purpose of this research is clear: the Ugandan government is currently in the process of drafting its own Sexual Offences Bill and CEHURD is advocating for the inclusion of the rights of victims, notably when it comes to the issue of abortion.

The Ugandan Constitution states: “No person has the right to terminate the life of an unborn child except as may be authorised by law.” As it stands, abortion is only permitted in Uganda when the mother’s life is in danger. As CEHURD pushes to advocate for the rights of victims of sexual assault, the organization hopes to broaden the range of exceptions to include situations of rape, incest, and/or defilement.

This is no easy task. Abortion is a topic that carries a considerable amount of weight in Ugandan society, a taboo. Even lawyers who are advocating for these changes appear to be wary of having their names ascribed to the file.

The Ugandan government made its views regarding abortion heard when it nearly rejected the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (commonly known as the Maputo Protocol). The product of eight years in the making, the Maputo Protocol felt strong resistance from the greater Ugandan society, namely its religious groups.  The main point of contention was subsection (2)(c) of article 14, which seeks to protect the reproductive rights of women by permitting abortion in the cases of sexual assault, rape, incest and where pregnancy threatens the life of the mother. In the end, Uganda ratified the protocol but with a reservation to subsection (2)(c).

Despite the attached stigma and legal ramifications, Ugandan women still resort to clandestine abortions. Roughly a quarter of the maternal deaths in Uganda are from unsafe abortions where roughly four women in Uganda die each day as a result. The gravity of the issue is impossible to ignore. Seeking inspiration from nearby jurisdictions such as Rwanda and South Africa, CEHURD continues to put pressure on the government to draft victim-centric legislation.

Although post-abortion care in Uganda is decriminalized, the health workers who provide medical services to abortion survivors are often persecuted. To help assure the rights of health care workers, CEHURD has formed the Legal Support Network (LSN) ­–a coalition of lawyers throughout the country to provide pro-bono services to help health workers who require legal assistance.

In a society that still presents many barriers, this is one example of how the Center for Health, Human Rights and Development has embarked on the long struggle of protecting and advocating women’s health rights and the rights of health workers throughout the country.

An Introductory Post

2014-Heilke-MatthiasMatthias Heilke

Since this is my first post — the blog just started functioning a few minutes ago! — please allow me to introduce myself. I just finished my second year at McGill Law, and I am pleased to be spending my summer in Kampala, the capital of Uganda. I will mostly be working at the Centre for Health, Human Rights, and Development (CEHURD), a local health-law NGO that does everything from lobbying to community education to strategic litigation.

There are lots of blogs about what it is like to be a clueless muzungu (white person) making his first visit to a developing country, so do not expect too many words about it here. Just compose something in your head about gruelling poverty, getting lost for lack of road signs and addresses, and the dangers of riding a boda-boda (motorcycle taxi), and you will probably get the right idea. (And please try to make me look good in whatever you think up!)

~What I’m up to~

As of writing, I have spent exactly three weeks working at CEHURD — it would be a day more, except I couldn’t find the CEHURD office on my first day of work. Google Maps lied to me! I have done a whole bunch of things, so I’ll just list them:

• Intellectual property rights. Patents especially have an enormous and mostly negative effect on access to medicine in developing countries. I spent a couple days in meetings at the Ministry of Justice, going through their draft regulations on patents with the aim of promoting access to medicine. As of those meetings, I have influenced Ugandan government far more than Canadian government! Now we are meeting with some of the stakeholders, especially other health NGO’s and local generic pharmaceutical producers.

• Strategic litigation. CEHURD has a substantial strategic litigation department, and I have done [privileged] with them. We’re [privileged]ing. It’s really [privileged]!

• Also some strategic litigation that I can actually talk about, as we held a press conference about it this morning at our office. Long story short, there are two villages near Kampala whose source of drinking water is being contaminated by a Chinese quarrying company. They also are getting covered in stone dust and being subjected to the noise of explosions, all of which is leading to serious health problems. The local government and the responsible national governmental body refused to do anything about it. CEHURD is filing a suit against all three actors. I got to help edit the plaint.

CEHURD's press conference venue, a.k.a. the courtyard of our office.

CEHURD’s press conference venue, a.k.a. the courtyard of our office.

• Non-communicable diseases. CEHURD is following up on a study it did last year for the UNDP on NCD awareness and prevention at Kampalan universities, and I am helping coordinate ideas, prepare documents and so-on. It is an enormous challenge: I have no experience with this kind of work or programme, and I have literally never stepped foot on a Ugandan campus. On the other hand, it turns out students are pretty much the same everywhere (read: underslept, undernourished, and oversexed).

• Communicable diseases. I have listened rather than participated, per se, in various conversations about HIV advocacy. I also had a lively debate with one of my coworkers as to whether being HIV-positive increases one’s duty of care toward others to not get your blood on them. I said yes morally but was agnostic legally; my coworker said no to both. People suffering from HIV also suffer outrageous discrimination and ill will here, so there is a very emotional context.

 ~What I’m not up to~

There are a couple items currently in the news related to CEHURD’s work in which I have not in any sense participated:

• An HIV-positive nurse was convicted a few days ago of criminal negligence after she pricked herself with a needle and then, after going to clean up, allegedly accidentally used the needle on her infant patient. The hospital administered anti-retrovirals, and the child is HIV-free, but the nurse was nonetheless sentenced to three years imprisonment (prosecution requested six years). The case has turned into a public litmus test as to how one sees people with HIV. The nurse was represented by CEHURD’s very own Counsellor David (though, I should emphasize, I have not heard him talk about the case, and what I mention here is all public information.)

• A public interest lawyer has filed a suit against the government regarding this year’s budget, on the grounds that the budget provides so little funding to primary education that it violates the right to education. It will be a very interesting case, but sadly not one in which CEHURD is involved — the lady who filed the petition is not with our organization.

I’m afraid this blog post is less incisive than I might hope for. Such is the way of introductions. I promise the next post will be about just one topic!

~Weekly Miscellany~

• Many thanks to Prof. Richard Gold for teaching me intellectual property law. I had no trouble keeping up with the discussions at the Ministry, even though I had been in Uganda for less than a week. In a job where I know basically nothing about most of the topics I work on, that is a major victory.

• Currently trending in Kampala: “TGE”. It’s an acronym for a Lugundu phrase that means, “The government should intervene!” You say it if you cut your finger, for example.

• One Ugandan beer company, Tusker’s, advertises itself as “authentically American”. I doubt whether its customers have caught on to the joke. I have not had the opportunity to try it for myself, yet, being preoccupied with waragi (the local millet gin), but I will get back to you with my thoughts when I do.

• Novida. It’s a non-alcoholic malt beverage that tastes like pineapples. Why Schweppes (the maker) doesn’t sell it worldwide is beyond me. So good.

• My coworkers are seriously nice. Not that amusing an observation or anything, but true and worth saying.

• Habs sweaters seen in Kampala: 1. [Update: 2. The latter was for sale in Owino Market starting at 10,000 shillings, rather stained, but with its Village des valeurs tag still attached.]

Rights, resources, and framing the issue of disability

By Miatta Gorvie

The term “persons with disabilities” is a capacious term indeed, intended to capture the realities of a huge array of people’s lives. Somehow, it refers to an amputee begging in downtown Kampala and a person with mental health challenges languishing in prison while awaiting bail in a prison up-country; a girl who was fortunate enough to have been sent to a school for the blind or deaf and another who was left at home because of the lack of access to schooling for children with developmental disabilities. Legal Action for Persons with Disabilities – Uganda (LAPD) provides free and sustainable legal aid and human rights protection to the members of any and all of these communities of persons with disabilities (PWDs).

Access to justice for Uganda’s disabled is hindered at many turns. First and foremost is the fact that they are disproportionately more likely to live in poverty, as a result of systemic barriers to education and employment. There is no government assistance available for the disabled and so those who cannot work are dependent on family to fulfil their needs; the least fortunate are those that you see dotting the streets, begging for the goodwill of strangers. Even those who do have the resources to bring their cases to court will often be confronted by justice sector officials who do not understand the particularities of the lives of PWDs.

Uganda has a relatively robust disabilities rights regime, in terms of legislation. Not only has Uganda signed on to the 2006 Convention on the Rights of Persons With Disabilities, it has also domesticated it’s commitment with provisions in its 1995 Constitution and the Persons with Disabilities Act of 2006, among other acts and policies. However, while the legal instruments are in place, in substance they are often minimalist and incomprehensive.

This legislation is a great achievement for a poor country with an unconsolidated democracy, but laws are only part of the question of achieving dignity for PWDs. Disability rights, perhaps more than many others, is a fertile testing ground for the balancing of rights and other priorities. Indeed, the term “reasonable accommodation,” which has recently been extended to the question of multiculturalism in Quebec, finds its origins in the disability literature. Reasonable accommodation is the idea that “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case” should be made to ensure that PWDs enjoy their rights and freedoms on an equal basis with others.[1] For example in employment, should an employee with a physical disability need a different chair from the model used in the office, it would be considered unreasonable for the person to lose their job over the purchase of a chair and the employer is legally required to make the adjustment.

Disability rights are constantly framed as being in competition with resources. In a developing economy like Uganda, what can it mean for children with disabilities to have the right to public education, the same public education system that can barely pay its teachers or supply learning materials? While the problems are much more visible here, this is hardly a problem reserved to poor countries.

This spring, I travelled to Ottawa with a group of McGill students to hear the opening arguments for the Moore case. As a boy, Jeffrey Moore suffered from severe dyslexia but was able to participate in the public school system because the division had a program for students with his particular needs. When this program was cut for budgetary reasons, his father was forced to place him in a private school, at great cost, and he sued the BC government for what he perceives as an undue hardship. In the opening arguments, the province submitted that Jeffrey should not be compared to other students in the public school system but other special needs students in the system. Framed that way, Jeffrey and all other students with intellectual disabilities were given an equal opportunity to access a “general education.” Moore was seeking an accommodation to access the mainstream service whereas the government defined his request as a specialized education service. Embarrassingly, the province also claimed that there is no right for a student to learn how to read, because even public school students without disabilities have difficulty reading.

When a G-8 country shrugs at disability rights under the guise of “budgetary constraints,” the prospects for PWDs in the developing world seem dire. The dominant discourse reflects the way in which disability rights are still seen as second-tier rights or aspirations that will come to fruition at some uncertain point in the future when scarce resources are no longer an issue. McGill’s Frédéric Mégret has considered whether the CRPD simply affirms the idea that existing human rights apply to PWDs and reformulates existing human rights to acknowledge the particularities of PWDs’ experiences, or whether it actually goes as far as to extend existing rights and innovate so far as to create new rights with the realities of the disabled at their core. He finds the Convention to be a “very subtle mix of the old and the new, which confirms existing rights, even as it amplified upon, evolves from and departs from them in the sort of creative ways required by the issue of disability.”

I agree with Professor Mégret’s proposition, that the CRPD was an opportunity to make a statement about difference and pluralism, often thought of as running contrary to the universalism and equality inherent in the human rights project. However, I took on this internship partly as a challenge, to step out of the safe spaces of seminar courses and panel discussions and consider what “human rights” can possibly mean in the field. Therefore, as a result of my experiences doing legal aid for PWDs with LAPD this summer, I must reluctantly endorse the pedantic view of the Convention that the professor rejects, the one that considers the document to be an affirmation of restatement of the applicability of existing human rights to PWDs.

When faced with politicians and judges who already see rights for PWDs as “other” and as something to be addressed only after rights for the majority have been dealt with, it is not helpful for an advocate to make an argument about newness and plurality. It is likely preferable to submit that PWDs have the same general human right to education and that their requests for inclusion are only accommodations and not brand new rights. Would this framing not make it much easier to refute the “budgetary constraints” argument? It seems to me that when dealing with few resources and little audience time with decision-makers, the pragmatic route might be the most effective.

 


[1] Convention on the Rights of Persons with Disabilities, Article 2, http://www.un.org/disabilities/default.asp?id=262.

Sanitary napkins, Bribery and Refugee Status Determination

By Molly Joeck

What do these three things have in common? They can all be found at the important-sounding and all-powerful Office of the Prime Minister, or OPM, in Kampala, an office that I am frequently obliged to visit in the context of my work at the Durable Solutions Unit at Refugee Law Project. The OPM is, essentially, the equivalent of the Canadian Immigration and Refugee Board, granting new arrivals asylum seeker status, and then assessing them through a series of interviews as to their eligibility for refugee status, and, if they are lucky, eventually granting them this status. As with the IRB, and probably even more so, the process is very bureaucratic, difficult to navigate and opaque beyond belief.

On one particular day at work, I needed to bring some paperwork to OPM, the usual assortment of things: appeals applications, lost ID declarations, requests for the merging of family files, etc. There is one officer at OPM in particular who deals with these sorts of requests. I’ve never become clear as to what her exact title is, but for my purposes she holds God-like status, able to grant or refuse almost any of the requests I have. There are always crowds of asylum seekers huddled in the waiting room hoping to see her, but on this day I slipped into her office ahead of the throngs. Because OPM works frequently with RLP, they are relatively tolerant of our frequent meetings, and generally willing to let us pop into the office when we come by

The all-powerful god-like officer, whom I’ll call Vicky, was occupied with a client when I arrived, but quickly wrapped up her conversation to turn to me. She greeted me as the client stood up to leave, and the client had one last quick exchange with Vicky in Swahili before exiting the office. Seemingly in reaction to whatever words she’d just exchanged with her client, Vicky turned back to me, grabbing a box from behind her desk and placing it on the desk it front of me.

“Do you know these?” she asked me. It was a box of sanitary napkins. My mind was racing – why should I know these particular sanitary napkins? Did they have special magic properties? What was going on? I remembered a newspaper article I’d read when I first arrived in Uganda about a local entrepreneur’s new project – sanitary napkins made very cheaply out of local materials, affordable for girls attending rural schools and easily disposable, the main problems facing adolescent school-age girls coping with menstruation. I concluded that the sanitary napkins on the desk in front of me must be these new sustainable Ugandan-made pads.

“Yes, I think so,” I replied. “Aren’t they the ones made locally in Uganda?”

“No,” Vicky replied firmly, “they are international sanitary napkins,” (with extra emphasis on the word international, in case I should conclude that these were merely shoddy Ugandan-made products). “They are very good quality, the best available. Would you like to buy some?”

A representative of the Office of the Prime Minister of Uganda is trying to sell me sanitary pads? I wasn’t quite sure how to handle the situation. So I did what I usually do – I blurted out the truth. “I don’t use pads,” I replied.

Vicky’s curiosity was piqued. She leaned forward across her desk, looking very interested in what I had to say. “Ahhh, you use tampons?” she asked me.

“No, not necessarily,” I replied. Vicky was confused, and I felt that I had no choice but to embark on an explanation of alternatives to tampons and pads. Vicky was very curious, and asked lots of questions.

Once we’d finished our conversation about menstruation and sanitary napkins and tampons, we passed to what Vicky seemed to feel was the much less interesting subject: my clients and their futures as refugees in Uganda. Vicky’s attention waned visibly, and she rushed me through what I had to say.

“No, we can’t handle that – UNHCR has to deal with it,” in reference to a client who has been unable to obtain asylum seeker status for almost a year because of issues around his repatriation.

“OK, give it to me, I’ll look at it later,” in reference to a client whose testimony has been lost not once, but twice, by OPM, and as a result has been without status for two years in Uganda. And so on.

Evidently buying sanitary napkins is an easier mission to accomplish at the OPM than resolving issues of status for asylum seekers.

UNLESS the right sum of money enters the right person’s pocket, I was later to learn.

A group of RLP’s clients have formed an organization called the Association of Torture Victims, or ATV. ATV is supported by RLP, provided with space for meetings and occasionally given funding for its activities. In the last week of June ATV organized anti-torture day, inviting torture victims as well as various organizations involved with torture victims to attend. The event took place in the field of Old Kampala Secondary School, across the street from RLP. Three big tents were set up for attendees, and various speeches and performances took place, including music and acting.

One of the highlights of the day was a series of skits put together by members of ATV meant to communicate their experiences as asylum seekers in Kampala. OPM was one of the organizations featured in one of the skits. The actor playing an OPM representative, as part of the skit, asked an asylum seeker for money in order to process his application, a procedure which is meant to be free. The asylum seeker had no choice but to hand over the money in order to proceed with his application in a timely manner.

After the skits wrapped up, speeches began. Various people got up and spoke, including Mama Eunice, the much-loved head of the Legal and Psychosocial Department at RLP. Her heartfelt words drew much applause from the large audience.

The next person to take the microphone was a representative of OPM, who, after pronouncing some insincere words on the plight of torture victims, proceeded to launch into a defence of her agency, stating outright in response to the earlier skit that OPM officials never take bribes. This is not the way OPM operates, she explained. The agency is staffed by honest folks who wouldn’t dare do such a thing!

On this warm day in the middle of the school field with the sun beating down on us, this questionable statement drew the liveliest reaction of the day from the hot, hungry audience. The ATV members and other clients of RLP in attendance, who were numerous, began waving their arms in the air and booing so loudly that they drowned out the words of the OPM representative. Anyone who may have been dozing at that point was rudely awakened.

The message from the audience was clear. Do OPM representative take bribes? Ha! Is the sky blue? Do Ugandans eat matooke? The OPM representative, looking embarrassed and unsure of herself, rushed through the end of her speech and hurried back to her chair to take a seat.

I wonder how many Ugandan shillings you have to slide into an OPM representative’s palm to get a box of high-quality international sanitary napkins along with your refugee status determination. I suppose I’ll never know. But any women in Kampala looking for some top-notch pads, ask for Vicky at the OPM. Maybe she can help you out, for the right price of course.

The Myth of a Durable Solution

By Molly Joeck

Refugee Law Project is spread across three rectangular-looking buildings on a short red dirt road in Old Kampala, across from a primary school with a sign affixed to its fence that reads, “Virginity is good.”

These buildings are like labyrinths once you enter, with winding hallways and offices of every size and shape piled upon one another. After a month, I still don’t know my way around every corner of all three buildings. I’m only beginning to feel like I understand where all the doors and hallways in my building lead, and how I can use the back door to go print a document without making my way through the main hallway, where I am bound to encounter a client seeking a follow-up appointment, waylaying me and causing me to forget why I’d left my office in the first place.

At the beginning of the week, when new clients are received and assessed, the courtyard outside the main building, and even the street below (not the sidewalk, for there are no sidewalks), are bustling with refugees and asylum seekers. Winding my way through these crowds of people to my office in the mornings, I can hear old men and young women, toddlers and teenagers, families and friends, chatting to each other in French, Somali, Lingala, Kinyarwanda, English, Amharic, and any number of other languages. The liveliness of it is both inspiring and overwhelming. The diversity of RLP’s clients and their backgrounds means that I am never bored, but the daunting reality of how many people are in need of assistance weighs heavily on my untried shoulders.

My office is on the second floor of the main building. I am in a unit called Durable Solutions, which is just one piece of the puzzle that is the bigger department, Legal and Psychosocial Services. In my first week here, having read through some documents explaining the mandate of the Durable Solutions Unit (or DS), I felt like I would be right at home. DS provides client-based legal services that fall squarely within the domain of refugee law, which I have studied and worked in more than any other field of law in the past three years. Though the disparate nature of the problems asylum seekers face means that we address a myriad of problems, the main mandate of DS is, as its name indicates, to find, facilitate and implement durable solutions for refugees.

Durable solutions refers to the aspirational notion that a long-term solution should be sought for refugees, rather than the temporary, precarious reality that so many of them live. This seems particularly important in the Ugandan context, where, unlike in Canada, accepted refugees have no avenue towards any sort of permanent resident or citizen status in their country of asylum, short of marrying a Ugandan citizen.

What are these durable solutions for which my unit is named? There are, in theory, three: repatriation, local integration or resettlement.

Though I have only been in Uganda for one month, my skepticism for the first two of these solutions is already firmly established. The majority of the clients I see have fled the DRC, Somalia, or Rwanda. Without knowing a lot about the issues specific to each of those countries, it is not hard to guess that refugees from these source countries are not very warm to the idea of being repatriated, which means return to their countries of origin. I have not yet had one client ask about the option of repatriation, and a quick survey of my colleagues who have been here for much longer than me revealed that, though once in a blue moon a client might come along who is curious about repatriation, that is the exception rather than the rule.

The fear of return among many refugees, which makes them so hostile to the suggestion of repatriation, certainly seems to me to be well-founded. Life in Uganda is not easy for refugees- tens of thousands of them live in camps, a life I can hardly fathom, where the local dish posho (milled maize cooked into a rubbery cake) is the daily sustenance, and life is restricted to a tiny plot of land with very little freedom of movement. Those who live in Kampala struggle to scrape together enough shillings to rent some sort of abode and feed and clothe their families, making them very vulnerable to attack, theft, and other forms of urban violence. If the situation were more stable in these refugees’ home countries, they would be able to return to a place where they understood the language, where their culture is not the minority, where their families would be nearby. However, their resistance to repatriation is founded upon a deep-rooted fear of the violence and repression that these source countries are still mired in.

And local integration? I have trouble understanding how this can even be on the list of durable solutions in a country like Uganda where, by definition, refugees are in a temporary situation by virtue of their status. Should UNHCR decide that the danger that refugees fled in a certain source country is no longer present and invoke the cessation clause of the Refugee Convention (as it has in the case of Rwanda), refugees can be faced with the suspension of their status, and the possibility of powerful pressure to “voluntarily” repatriate. Not to mention the discrimination and exclusion refugees can face in Uganda for both practical reasons, such as language, as well as cultural reasons. Local integration is not a durable solution.

Which brings us to resettlement- the pot of gold at the end of the rainbow for many refugees. While I would characterize my daily tasks at RLP as diverse, it is true that the vast majority of the clients who come to see me want only one thing: resettlement. I have spent hours and hours explaining that the criteria for resettlement are very rigourous, that many who apply are refused, that the process takes years, that a short-term solution should be thought of first…that, that….but all too often it feels like my explanations fall on deaf ears. For these refugees know that, in reality, resettlement is the only way to a truly durable solution. Defeated by the thought of eking out a meagre existence in Kampala or, worse, in a camp, and traumatized at the thought of returning to their country of origin, the only way out they see is resettlement to a third country.

This is the hardest part of my job- facing person after person, women, men, Rwandese, Somalians, and trying to explain gently that their dream of building a life in a country free of violence and persecution is, at least for the moment, unattainable. Or facing someone who has been through the gruelling process of resettlement- interview after interview, and years of waiting, only to be told they have been rejected because the date they gave for their brother’s death does not synch with the account given of that event by their sister, or cousin, or brother, and trying to explain that re-applying is not really an option, that there is no way to appeal, that there is really nothing to be done.

I can’t help but feel like there is no durable solution. The unit I work in should be renamed, perhaps. “Short-term solutions,” or “Long-term aspirations,” or “Unrealizable dreams.”

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.

An uncertain future for Rwandese refugees in Uganda

kelly_mcmillanBy Kelly McMillan

Last Wednesday afternoon, cell phones started ringing throughout RLP. In hushed, urgent tones, reports began circulating among refugees and staff: Rwandese asylum seekers were being forcibly repatriated from Nakivale refugee settlement in Western Uganda. Interpreters were quickly reassigned from consultations and testimony taking, as RLP staff and volunteers scrambled to figure out what was going on in Uganda’s largest refugee settlement, located several hours from Kampala.

Within hours, reports were confirmed: dozens of Rwandese asylum seekers (whose claims for refugee status had been rejected in a recent sitting of Uganda’s Refugee Eligibility Committee (REC)) were lured to basecamp with promises of food, and claims that their status rejection would be reconsidered. There, rejected asylum seekers were herded onto lorries by Ugandan soldiers. As reality began to set in and chaos erupted (people running in all directions), soldiers fired shots into the air, people were injured, and families separated. At least five lorries filled with asylum seekers left Nakivale settlement for the Ugandan-Rwandan border. [See RLP/IRRI joint press release].

As in Canada, Uganda’s Citizenship and Immigration Act provides for a review process for rejections of asylum seekers’ claims. The Act also provides for procedural safeguards for the deportation of those who have exhausted all avenues for appeal. These forcible removals thus violate Uganda’s own refugee law, not to mention the principle of non-refoulement in international law.

The removals are also part of a troubling political landscape that Rwandese asylum seekers and refugees in Uganda are currently facing… On which more later!

*Internship undertaken with the financial support of the Government of Canada provided through the Canadian International Development Agency (CIDA)

Law as a tool for development?

kelly_mcmillanBy Kelly McMillan

After finishing an undergraduate degree in international development studies, I was eager for some “real field experience”. Sure, I had participated in a number of valuable development-related internships in Canada, but I wanted a taste of how Development (as industry) operates on the ground. In 2006, I headed to Cameroon to participate in a 10-month internship on housing rights. I touched on a wide range of projects over those months, from trainings on income-generating activities for women, to facilitating the commercialization of local produce, to improving an existing microcredit facility, to organizing workshops on gender-based violence, to offering legal information seminars on housing and family law issues.

It was this last experience that ultimately motivated me to study law. Over the course of that year, I was exposed to a number of consultants in various fields passing through the organization and offering their expertise with concrete, tangible results. I felt my background in IDS was insufficient to allow me to make any really meaningful contribution. In particular, I was frustrated by the small scale of the community-based interventions I was involved in, and was discouraged by the lack of immediate results in some of the more policy-oriented initiatives. I felt that law—and community legal services in particular—would be my own “tool” to use to further women’s rights in the international context.

So, four years later, I was thrilled to have been selected for McGill CHRLP’s internship placement at the Refugee Law Project. I have already worked for two legal clinics in Montreal, and love the satisfaction that comes from solving a real human being’s concrete problem. It was a perfect combination of my IDS background and legal skills.

Perhaps it shouldn’t have come as so much of a shock to me that a few short weeks into my internship, the things that seemed less significant to me in my first overseas experience are the exact ones I find starkly absent in my present placement—namely, small-scale income-generating activities, vocational training programs and microcredit facilities! Not to mention an overarching philosophy of what is trying to be achieved.

On one of my first days, a counsellor at RLP summed up the general feeling of frustration I have since heard echoed by a number of RLP staff: “I refuse to counsel a hungry refugee!”

For someone who had initially been so optimistic about the promise of legal aid in development, this was a disturbing thing to hear. I have been thinking about it more and more: legal aid and psychosocial support is well and good, but is not enough for a person who fails to meet even the basic daily needs of herself and her family. Many refugees wait outside RLP all day without a meal. Many of the children cannot attend school for want of funds for transportation, uniforms and supplies and so instead work as house girls under oftentimes harsh conditions. I have heard the children themselves articulate education as their single biggest priority. As Intake Officer, a majority of my clients’ problems are not really legal, but medical or financial.

Although, admittedly, one organization cannot do everything, perhaps CONGEH did have the right recipe after all: an integrated approach focusing on finding sustainable ways to meet communities’ basic needs first, with some small resources to address individual legal problems in the short-term, but with a greater emphasis on preventing the legal issues from arising through information campaigns. I certainly don’t have an easy answer to this (surely there isn’t one), but now I have an even greater respect for (and am more in tune to) the priorities as identified by refugees, rather than donors.

So while Uganda’s theme for this year’s world refugee day (June 20th) is “Self-Reliance: Life Beyond Relief Aid”, I am perplexed by an almost total lack of services available to Kampala’s refugees to assist them in actually building such a life. For a person who has just lost everything, a start-up loan could go a long way…

A snapshot of the first four weeks

kelly_mcmillanBy Kelly McMillan

The first four weeks of my stay here in Kampala, Uganda, have been a whirlwind. If I didn’t contribute to this page earlier, it’s not for want of subject matter. Rather, I have been trying to wrap my head around everything I have been seeing and experiencing—both in my daily life and in terms of the legal issues I have been exploring in my internship.

Children and youth from the refugee community participate in an SGBV workshop at Old Kampala Primary School, May 15, 2010

Children and youth from the refugee community participate in an SGBV workshop at Old Kampala Primary School, May 15, 2010

Since my arrival, I have been busy getting lost in the chaos of Kampala’s taxi parks; learning to say “I don’t eat meat” (silia nyama) and other choice phrases in Luganda; sampling Ugandan cuisine (posho [known elsewhere in East Africa as ugali], matoke [mashed plantain], mputa [Nile Perch]); listening to  stories of the Buganda kingdom; venturing through congested markets on the shores of Lake Victoria (ten minutes from my house); not to mention dealing with such common occurrences as power outages, water shortages, vehicle break-downs and flash flooding! Just getting through the day in Kampala has proved exhilarating, to say the least.

At work, the learning curve has been just as steep. The Refugee Law Project is a large, bustling NGO of approximately 65 local and international staff, interns and volunteers. RLP is part community legal clinic, part crisis centre, part public policy advocate, part research institute, and part language school. At any given moment, dozens of refugees from a handful of countries can be found milling around the front courtyard waiting for legal or counseling services; attending English-language classes in the back; or even—in the case of one refugee women’s association—giving back by cleaning the office on a Friday afternoon.

I work in RLP’s Legal & Psychosocial Department (LPD). I spent my first two weeks assisting with the planning and execution of a week of events to raise awareness on sex and gender-based violence in the refugee community, including a children’s workshop, a police training and a roundtable discussion with stakeholders.

More recently, I have started doing “intake”, which is essentially the front line of RLP’s services. I listen to the client’s story and if her situation falls within one of the LPD’s program areas, I schedule a moment later in the week to take the client’s detailed testimony (everything from her experiences in her country of origin to her life here in Uganda). If the problem does not fall within RLP’s mandate, I refer the client to another organization.

One of my passions as a law student has been community legal services, and I am certain that interacting with RLP’s clients will be the most rewarding aspect of my time here. Nonetheless, I don’t think anything could have prepared me for some of the stories I’ve listened to over the past two weeks. So while my first month has been largely devoted to settling into a new city, a new culture and a new workplace environment, I have also taken the time to step back and reflect on some the social and legal issues facing Kampala’s refugees. I look forward to sharing these thoughts in later posts.

*Internship undertaken with the financial support of the Government of Canada provided through the Canadian International Development Agency (CIDA)

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