PROTECTION CHALLENGES FACING RWANDAN REFUGEES IN SOUTH AFRICA

Callixte Kavuro, Global Education MagazineCallixte Kavuro

Doctorate Candidate in Public Law at Stellenbosch University and the Chairperson of the Rwandan platform for Dialogue, Trust and Justice (RDTJ)

 callixtekav@gmail.com

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Abstract:

On December 30, 2011, the UNHCR issued a formal statement declaring that Rwanda is a safe country for Rwandan refugees to return, thereby requesting their host countries to apply a cessation clause that would, among other things, render their refugee status revoked and eventually their refugee rights nullified. In its recommendation, the UNHCR stressed repatriation as the most favourable option over local integration and resettlement. This move was criticised by a number of human rights organisations due to the fact that there is an oppressive regime in Rwanda with a high record of human rights abuses. In this paper it is argued that the declaration simply served to add the general anxiety among Rwandan refugees who were and still are, like in many other countries, facing institutionalised exclusion in the socio-economic realm. The aim of the paper is to illustrate the protection challenges facing Rwandan refugees in South Africa and the manner in which an absence of formal declaration of South Africa’s position on the issue of the applicability of a cessation clause as it pertains to the said group of refugees have substantially augmented their state of limbo and uncertainty about their future; the situation under which they have been living for two decades to date.

Key words: Rwandan refugees, cessation clause, forced repatriation, local integration, resettlement, socio-economic exclusion.

World Refugee Day, global education magazine, south africa

Refugees from various countries stage a protest on 2013 World Refugee Day, outside the South African Parliament. Photo: AFP/Rodger Bosch

1 INTRODUCTION

Like many Western countries, South Africa has adopted an urban asylum policy, which is based on the temporary protection of refugees.1 To that end, refugees and asylum-seekers are treated as “temporary residents,” a legal position that implicitly subjects them to restrictive immigration principles, namely exclusivity and self-sufficiency.2 Such treatment is inimical to the purpose and principles of the 1951 Convention relating to the Status of Refugees and the 1969 OAU Convention Governing the Specific Aspects of Refugees in Africa. These international refugee agreements became a binding law in South Africa when they were enacted into law by the Refugees Act of 1998, as amended.3 Even so, the twin principles of exclusivity and self-sufficiency have deleterious impact on protection of refugees and asylum-seekers generally with respect to access to socio-economic services and to livelihood opportunities. They have an implication of excluding refugees and asylum-seekers in socio-economic arrangements.

In the case of Rwandan refugees who are estimated at 1 600 (0.5% of the global Rwandan refugee population),4 protection challenges do not only emanate from socio-economic exclusion but also from the United Nations High Commissioner for Refugees (UNHCR)’s recommendation that said Rwandan refugee status be revoked through the invocation of cessation clause in accordance with Articles 1C(5) and 1C(6) of the 1951 Refugee Convention.5 Added to this challenge are also those of insecurity, fear and terror, caused by an unending hunting down of Rwandan refugees who live in South Africa and elsewhere. In South Africa, there are constant assassinations, attempted assassinations, intimidations and threats carried out by Rwandan espionage through the Rwandan embassy, based in Pretoria.6 These issues have become a source of imprisonment in fear, predicament, and deprivation, especially for Rwandan refugees who fled Rwanda between 1994 and 1998, to whom cessation clause currently applies. It is believed that 99% of the 1994-1998 refugee population who remain in exile are Hutus. However, Hutus never ceased to flee Rwanda. Those include Hutus who were forced to return under forced massive repatriation, which occurred between 1996 and 2000. Similarly, Tutsi dissidents have been fleeing Rwanda steadily. Among their many motives to seek asylum in other countries are appalling human rights abuses, perpetrated through state-sponsored violence.7 At global level, the Rwandan refugee population is virtually estimated at 300 000.8

The paper therefore illuminates issues of human and refugee rights protection challenges faced by Rwandan refugees in South Africa, with specific reference to the 1994-1998 Rwandan refugees. These challenges are critically analysed in light of three durable solutions, namely, integration, resettlement and repatriation. Each durable solution will be discussed under a separate section in order to delineate difficulties ingrained in domestic laws as they are typically reinforced by the UNHCR attitudes towards Rwandan refugees. The methodological approach towards the analysis of issues of protection in this paper is based on careful examination of the impacts of general treatment of refugees in South Africa and of attitudes of both UNHCR and government of Rwanda towards Rwandan refugees. Included is South Africa’s political approach towards resolving the Rwandan refugee situation.

2 Integration

South Africa’s asylum law is an asylum policy based on self-settlement/integration and self-sufficiency.9 It has been praised by the UNHCR as one of the most progressive in the world. However its approach to integration is in itself the major shortcoming that has an adverse impact on refugees’ integration. South Africa does not offer any material support or humanitarian relief to refugees that would prepare them to adapt to the average South African life style. According to UNHCR, integration is described as:

a legal process, whereby refugees are granted a progressively wider range of rights and entitlements by the host State that are broadly commensurate with those enjoyed by its citizens. These include freedom of movement, access to education and the labour market, access to public relief and assistance, including health facilities, the possibility of acquiring and disposing of property, and the capacity to travel with valid travel and identity documents. Realisation of family unity is another important aspect of local integration.10

In a broad sense, a progressively wide range of rights and entitlements are implicitly conferred on refugees and asylum-seekers in terms of the South African Refugees Act of 1998. Except the right to have access to the labour market which is directly guaranteed by the Act,11 other socio-economic rights are indirectly guaranteed and protected.12 An absence of direct protection of socio-economic rights has the dire consequence of excluding refugees and asylum-seekers in socio-economic laws and strategies, aimed at alleviating the poor as well as the most vulnerable and desperate people out of poverty and thereby advancing them socially and economically. Both refugees and asylum-seekers are excluded from most essential socio-economic arrangements on the basis of their legal position in South African society. They are temporary residents who are afforded temporary protection. For this reason alone, they are wholly precluded from accessing the public labour market and partially from private labour market. First, the Public Service Act 103 of 1994 restricts eligibility of employment in public sector to citizens and permanent residents.13 Second, the Employment Equity Act 55 of 1998 prioritises and optimises employment of South African citizens who are previously disadvantaged by apartheid policies in what is termed “Affirmative Action Measures (AAM).” Private industries are obliged to establish an employment plan conforming to the AAM, thereby limiting employability chances of refugees and asylum-seekers. Third, employers erroneously apply the immigration restrictive rules imposed on the recruitment of non-citizens for the protection of the national labour market. The rule requires employers to recruit non-citizens in a position under which no suitable qualified citizen or permanent resident is available to fill.14 All these makes it more and more difficult for unskilled and low skilled refugees or asylum-seekers to find placements.

The labour regulations have been a major problem hampering Rwandan refugees from rebuilding their lives and livelihoods in South Africa. Generally, exclusion of refugees is grounded in the hyped fears of employers and service providers that the Immigration Act of 2002 could impose penalties on them if they do not comply with its rules.15 This misconception is further reinforced by political statements, which hold that the majority of refugees are bogus or economic migrants who are in South Africa in a search of a better life.16 There is apparently an inability to distinguish between applicability of the immigration regime and refugee regime.17 However, it is true that the Refugees Act of 1998 strictly exempts refugees and asylum-seekers from the immigration restrictive measures imposed on non-citizens in certain circumstances. This notwithstanding the exemption, the immigration rules are somehow applied to bona fide refugees, such as Rwandan refugees, by public and private agents. Wholly, bona fide refugees are normatively faced with difficulties to be employed in various economic activities; hence discrimination on the basis of their refugee status has become the norm.

In addition to this, the documentation of asylum-seekers and refugees within a reasonable time has since opening borders to refugees in the late 1990s challenged South Africa. That is among the reasons why some Rwandans, like some other refugees, are in possession of no valid but expired papers. For others, their applications for either asylum or permanent residence permits are still pending. Applications may unduly be pending for more than seven years. Without a formal refugee status or without valid documentation however, these refugees cannot access a range of socio-economic services, provided by private and public institutions, insofar as refugee documentation is a concern. There is a noticeable and recurring problem: the issuance of the maroon identity card. The refugee identity card is not recognised by most of the employers and service providers as a legitimate South African document. On the other hand, the document is viewed by civil societies and refugees themselves as a basis of unfair discrimination. To make the lives of refugees hard and the situation more complicated, refugees sometimes collect their identity cards from the offices of the Department of Home Affairs (DHA) when they are about to expire or are already expired. Similarly, refugees are issued with travel documents that are not recognised by many countries as a document that allow refugees to travel. All these documentation problems are impediments to a successful integration process of Rwandan refugees many of which have been living in South Africa from as early as 1996.

The first movement of Rwandan refugees arrived in South Africa in December 1996 after escaping forced massive repatriation, perpetrated by Burundi, Tanzania, Uganda, Democratic Republic of the Congo (DRC) and Gabon without regard of said refugees’ fears of a personal, real and foreseeable risk of persecution or torture and of probable human rights abuses back home. In 1997, Gabon authorities arrested and handcuffed all Rwandan refugees and took them to Kigali.18 In Rwanda, all victims of the forced massive repatriation were welcomed by different atrocities resulting in those who survived fleeing the country all over again. Some of the survivors of the forced massive repatriation are currently in South Africa. They are living in a protracted and continual state of limbo, which is consolidated by political unwillingness to integrate them within South African communities. Political unwillingness is, in actual fact, illustrated by the lowly insignificant number of twelve (12) Rwandan refugees, who are, at the moment, holders of permanent residence permits.19 As permanent residents, they are entitled to ‘all the rights, privileges, duties and obligations of a citizen, save for those rights, privileges, duties and obligations which a law or the [South African] Constitution explicitly ascribes to citizenship’.20 A permanent residence permit is a vehicle to full integration. In terms of section 27(c) of the Refugees Act, a recognised refugee is eligible to apply for permanent residence permit after five years of continuous stay in South Africa from the date on which he/she was granted asylum. It needs be noted that the Constitutional Court, with reference to integration, ruled that recognised refugees cannot be treated ‘as permanent residents because they are not in the same [legal] circumstances for the simple reason that they have yet to meet the requirements for permanent residence’.21 The requirements include an onus placed on a refugee applicant to provide compelling reasons demonstrating that he/she will remain a refugee indefinitely, subject to an approval by the Standing Committee for Refugee Affairs (SCRA). Individual compelling reasons must arise from political conditions prevailing in the country of origin.

What is apparent from the above analysis is that, for more than a decade, Rwandan refugees were unable to turn their refugee rights into actual entitlements. They remain poor, vulnerable and in a precarious situation. It is sad that the majority of them cannot afford dignified or even adequate housing, let alone affording sending their children to school. In many instances, some of their children are unable to enjoy their right to basic education due to possessing expired documentation, which the lack of validation thereof is not to their parents’ fault but due to the DHA’s inefficiency, coupled with a lack of political will to improve refugee administrative services. It cannot be denied that documentation is also a vehicle to accessing socio-economic freedom. The freedom advocated here is not the one based on property and free market, but the freedom to acquire, within a reasonable time, valid and legitimate documents that will allow the bearer open access to certain socio-economic services. In a refugee’s life, the key ingredient to socio-economic freedom is, in an explicit way, favourable treatment that creates conditions that increasingly recognises refugee rights, including, for instance, exercise of individual autonomous choice, freedom to compete in labour markets, access to socio-economic rights, and, at the very minimum, protection of their dignity, health and well-being. Normally, socio-economic institutions and policies are consistent with the standards of socio-economic freedom when they aim at improving the conditions of the poor, vulnerable people to such an extent that they are able to care for themselves and live in dignified conditions, comparable to those around them.

For the protection of dignity of human beings, work is the most essential right that would restore the hope and dignity that refugees have lost. There is a strong relationship between work and attaining an adequate standard of living and of being accepted as socially useful in a community, or as a valued member of society. The paper therefore argues that it is within this freedom to work that people realise their human fulfilment and enormously contribute to social progress and the prosperity of a nation instead of being a financial burden on a state purse. This is possible only if the state is of course willing to integrate refugees in its society. Increasingly, refugees are inextricably tied to socio-economic exclusion due to the misconception of regarding them as “alien,” “not belonging,” “others” or “makwerekwere” (a slang for foreigners in South Africa) within their host communities. In South Africa, the majority of citizens support a political argument holding that refugees must return back to their respective home countries. This leads the author to examine when it is possible for refugees to return home.

2 Voluntary Repatriation

Refugees are intimately connected to a reasonable or well-founded fear of return to their home countries where they truly belong. They fled their countries and become refugees in foreign countries because remaining in their home countries would have been risking their lives. In other words, conditions prevailing in their home countries have worsened to such a degree that they are no longer tolerable and endurable. Fleeing may be seen as the solution to such a situation, but, fundamentally, fleeing creates a refugee problem that is mainly resolved through voluntary repatriation, as a viable solution. Before repatriation, a refugee problem is ethically dealt with by the host state in cooperation with other countries through the UNHCR. Other durable solutions are local integration and resettlement. However, among these three durable solutions, voluntary repatriation is, according to the UNHCR, the best and most viable solution.

Normally, refugees are expected to return voluntarily. If not, Article 1C(5) of the 1951 Refugee Convention permits the host state to return refugees to their home countries involuntarily when ‘the circumstances in connexion with which [they have] been recognized as [refugees have] ceased to exist’. Conversely, Article 1C(5) does not apply to refugees who are able to demonstrate that there are compelling reasons arising out of previous persecutions for their refusal to return. Alas, Rwanda is characterized by systematic, well-organised, state-sponsored ethnic and political violence. They range from arbitrary arrest, incommunicado detention, torture, trumped-up charges, to enforced disappearances. In the year 2014 alone, more than 50 000 people were made or enforced to disappear.22 In a situation such as this, involuntary repatriation is at odds with the principles of non refoulement, freedom from torture,and human dignity. Essentially, forced repatriation deprives concerned refugees of their fundamental rights and freedoms, more precisely individual autonomy and humane treatment. Ethically, human and refugee rights are built on the liberal principles of autonomous choice and most favourable treatment – ingredients of an ideal of human dignity – that is recognised by most free and democratic societies, including South Africa. In that, respect for human dignity of refugees should include desisting from treating refugees as mere objects in the sense of forcing them to return without giving them an opportunity to be heard. Refusing them such an opportunity points to a real fact that refugees, upon losing the protection of their state, enjoy fewer and insignificant rights. Truly, they have lost their primary protector of their rights and freedoms or they have lost a virtue of citizenship and rights associated with it. As result, both UNHCR and host states traditionally trespass the refugee rights as they please without any legal repercussions. This includes invocation of cessation clause to which affected refugees are vulnerable and defenceless. Fundamentally, it impairs the refugees’ basic rights in a way of subjecting said refugees to further persecution, torture or death back home. This behaviour of pushing them from pillar to post cannot at all give them a space to foster a life of dignity. The principles of non refoulement, in combination with the principles of human dignity and most favourable treatment imposes a responsibility in certain circumstances on States not to apply the cessation clause to refugees and asylum-seekers, whose home country is not safe for them to return. Otherwise, the decision to implement cessation clause will result in the violation of a number of fundamental rights, including the right to life, to equality, to human dignity and to freedom from ill-treatment and torture; all lies at the heart of the 1951 Refugee Convention, human rights law, and constitutional frameworks.

Within this perspective, Paul Weis describes refugees as ‘a vessel on the open sea, not sailing under any flag’23 while Hannah Arendt observed that refugees are without rights because each nation-state has primary obligation to protect the rights, interests and expectations of its own citizens first, no matter where they are.24 However, both international and national refugee laws are adopted with the sole aim to ensure entitlement of the basic rights, proclaimed under a range of human rights conventions.25 Under these conventions, respect for human dignity of each and every human person is underlined as a foundation to freedom, justice and peace. Seemingly, human dignity (standard of humanity treatment) is in most cases ignored and thus host states proceed to forcefully repatriate refugees without having regard to what might happen to them once returned.

Other principles that are, in a situation of Rwandan refugees, not observed by host countries are due process and presumption of innocence.26 Regardless of these principles, once Rwandan refugees have left their state, they were viewed as fugitives who must be hunted down. The government installed by the Rwandan Patriotic Front (RPF) in July 1994 ‘has built [its] credentials on the heroic tale of having stopped the Tutsi genocide and sending the Hutu “genocidaires” into exile.’27 For that reason, the RPF government has been arguing that those who fled Rwanda between 1994 and 1998, regardless of their well-founded and reasonable fear to repatriate, ‘have a dark, ugly past to hide and are running away from prosecution’ but not persecution.28 Whereas it cannot be denied that some genocide perpetrators remain at large, it can strongly be argued that a list of Hutu refugees who were suspected of having committed genocide crimes was established and thus handed out by the RPF government to the International Criminal Tribunal for Rwanda (ICTR). Accordingly, genocide suspects were arrested and transferred to ICTR for prosecutions. Only nine suspects wanted for trial by the ICTR remain at large.29 These nine fugitives do not justify branding all Rwandan Hutu refugees, their children, and their unborn children as criminals on the run.

Unfortunately, with acknowledgement of the RPF version as the only truth, Rwandan refugees were and are still deprived of humanness and subsequent rights associated with humanity. Even the UNHCR, which is mandated to protect them, views them as “social outcasts.” The campaign to manhunt Rwandan refugees began with the invasion of DRC by the RPF government in 1996. The main purpose of the invasion of DRC was to force Rwandan refugees to return home and face justice as it was falsely projected. This idea was nonetheless supported by the international community and, as a result, Rwandan refugee camps were bombed under the auspices of the UNHCR. Resultantly, said refugees were, by use of military force, repatriated. A handful of them were left scattered in the forest of DRC and they were abandoned to their own fate. To date, about 245 000 Rwandan refugee, including women, children, elderly and the infirm, remain in the forest of DRC without any humanitarian assistance.30 Some who escaped the horrendous campaign sought refuge in Africa, South Africa included, and elsewhere, including Europe and the United States (US). Since then, survivors of these unspeakable atrocities live under consistent fear of being assassinated by Rwandan espionage agents or even facing forced repatriation in their respective countries of asylum. For the specific purpose of hunting refugees, the RPF government has created an asylum system scandal whereby bogus Rwandans pretending to be refugees infiltrate countries hosting Rwandan refugees and clandestinely work as espionage agents to kill said ‘old’ refugees, most often through poisoning, them. Most targeted for these modes of elimination are Tutsi critics of the current Rwandan government and Hutu intellectuals. The list of the Rwandan refugees assassinated in exile is non-exhaustive.31

For example, an inquiry into the brutalities perpetrated against the 1994-1998 Rwandan refugees who had sought a safe haven in the DRC, conducted by the United Nations’ Office of the High Commissioner for Human Rights (OHCHR) and eventually released under the 2010 Mapping Report,32 revealed that the UNHCR and other international agencies collaborated with the RPF in the military operation to forcefully repatriate Hutu refugees between 1996 and 2000. The military operation cost the lives of more than 300 000 Hutu refugees in a systematic and discriminatory manner. This barbaric conduct, which, among others included blockages of humanitarian assistance by the RPF soldiers caused a lot of death, malnutrition and disease.33 Rwandan refugees – survivors of this barbarism, – who live in South Africa or elsewhere, psychologically suffer from these brutalities and trauma associates with them. It remains fresh in their minds.

We should also note that those refugees, who were not fortunate to cross the DRC forest to seek asylum in other countries are among those whom the UNHCR is targeting to involuntarily repatriate. This conduct of the UNHCR has led Rwandan refugees to ironically praise it for its steady contribution to their trauma, social stigmatisation, massive massacre, fear, persecution, and, in various respects, to their impoverishment. It is therefore not surprising thatOHCHR, after a thorough inquiry, came to the conclusion that the above-mentioned barbaric acts against refugees constituted war crimes, crimes against humanity and possibly crimes of genocide, subject to confirmation by a competent international criminal court or tribunal.34 So far, no charge has been brought forward. Justice is denied not only to families of the Hutu refugees but also the families of six to eight million people, perished during said forced and militarised repatriation (which culminated in the deposing of President Mobutu) and the subsequent on-going armed violence in the east of DRC.

Up to now, the UNHCR has not yet left Rwandan refugees to rest. Because of this, some are hiding in rural villages and others are always on the run, from one village to another, from one city to another, or from one country to another. What can be inferred from this is the fact that, in failing Rwandan refugees, the UNHCR has failed to honour its international obligation to protect refugees.

For instance, uncertainty about the 1994-1998 Rwandan refugees’ future in exile is compounded by the recent resolution of the United Nations Security Council (UNSC) to launch military attacks on refugees based in the DRC.35 No account has been taken concerning the fact that they are survivors of the 1996-2000 massive forced repatriation and that they have been more vulnerable to extremely stressful and traumatic events that took place since the invasion of Rwanda on October 01, 1990.36 Although they are indeed susceptible to posttraumatic stress disorder, depression, high level of fear and anxiety (psychosomatic) and/or malnutrition caused by the persecution and destruction of the war, no one who wants to empathise with them. Though the resolution may, on the face of it, appear unrelated to the protection of Rwandan refugees in South Africa and thus exclusive, it is interrelated with and reinforces the applicability of the cessation clause. Military attacks and cessation clause reinforce one another at the point of intersection. All these international measures target the 1994-1998 Rwandan refugees. In other words, the United Nations (UN) appears here to be prepared to use all its powers to ensure this category of refugees is repatriated. Why? They are viewed as a threat to international peace and security. Paradoxically, in order to promote viable peace in the Great Lakes region in general and in Rwanda in particular, the declaration of applicability of Articles 1C(5) and 1C(6) was made in 2003 and their implementation as applied to all Rwandan refugees was initially set for 31 December 2011, then postponed to 30 June 2012, then finally set for 30 June 2013. This time however, it was restricted to Rwandan refugees who fled Rwanda between 1959 and 1998. However, on closer examination, its hidden agenda is a pretence to also include Tutsi refugees (who fled Rwanda between 1959 and 1994) and to force Hutu refugees (who fled between 1994 and 1998) to return. In fact, the 1959-1994 Tutsi refugees returned home upon the fall of Kigali at the hands of Tutsi refugees’ rebellion in July 1994. Unlike the post-1994 Rwandan refugees, the pre-1994 (mainly Tutsi) refugees were locally integrated in their communities. They were equally working in both public and private sectors. For example, President Kagame is a former Ugandan army officer and a former Director of Uganda’s Military Intelligence. Most of current Rwandan officials were integrated well enough in their former host countries.37 On the other hand, the post-1994 Rwandan refugees could not be integrated into their host communities due to the contemporary strict immigration measures, reinforced by the terrorism control and emerging exclusionary socio-economic and labour measures.

Irrespective of their daily struggle to earn a living, the 1994-1998 Rwandan refugees are facing an imminent threat of forced repatriation. As luck would have it, they remain in South Africa because South Africa has not yet approved the UNHCR recommendations. In Africa, only four host countries – Cameroon, Zambia, Zimbabwe, Malawi, and DRC agreed to apply the said provisos. Later Zambia opposed repatriation and rather offered local integration to 4000 Rwandan Hutu refugees, more or less, through naturalisation.

In light of the above, legal positions of the 1994-1998 Rwandan refugees who live in South Africa remain unclear. In particular, the UNHCR recommendation has in various respects affected the legitimacy of the claims of asylum, lodged by those who fled Rwanda as from 1999. Admittedly, Rwanda cannot be safe for some post-1994 refugees to return to, and simultaneously be dangerous to others, more specifically those who are fleeing it today. Allowing the post-1999 refugees to remain in exile, coupled with accepting individual fleeing Rwanda to lodge fresh claims of asylum, are all factors pointing to the fact that Rwanda is not a safe and stable country it is portrayed to be. To Rwandan refugees and international human rights organisations, the recommendation of the invocation of cessation clause is another mechanism of forcing refugees to return against their will and perhaps oppressing them when they arrive home. According to the former South African Minister of Home Affairs, Ms Naledi Pandor, ‘much work was still needed to be done on the part of the UNHCR to clearly articulate the reasons for the revocation of the Rwandan refugee status.’ To her, the cessation declaration merely served to augment anguish and uncertainties among Rwandan refugee who remain unwilling to return due to various valid and legitimate reasons.38

Lack of consultation with affected refugees is amongst valid reasons. In principle, refugees must be consulted in the processes leading to the cessation clause, but Rwandan refugees were never consulted by the UNHCR. On top of this, it objected to taking into account the human rights reports, indicating that Rwanda was not a safe place to return. The attitude of the UNHCR and international community as a whole towards Rwandan refugees leads Arendt’s observation to be true: Refugees are without even basic human rights. Having the UNHCR and international community’s backs turned against Rwandan refugees, they are left on their own. They are left with no choice but to put themselves at the mercy of South Africa. The revocation of refugee status has an implication of depriving them the right enjoyed by other refugees in their host countries. They are no longer among refugees recognised by the UNHCR. All this which begs the question of “who are they in South Africa?” or “what is their legal position in South Africa?” Of course, at this stage, they are neither naturalised citizens nor granted permanent residence. So are they bogus refugees, economic migrants or illegal foreigners?” South Africa is yet to declare their legal status in this respect.

The bottom line is this; what Rwandan refugees want and perhaps even need is to return home in a dignified way and in a peaceful country characterised by the rule of law, liberalisation and democratisation. It is the refugees’ desire to return to a country where the government derives from the will of people and where equality in rights, in dignity, in benefits and in opportunities is at the centre of the distribution of national resources and materials. They are highly unlikely to return to a country where people are debased and degraded through collective guilty political rhetoric, arbitrary enforcement of the genocide laws, arbitrary arrest, forced disappearance, and arbitrary detention. Voluntary return is possible provided that every Rwandan citizen is treated with equal concern, dignity, respect, and care. The author turns to analyse the problems related to resettlement.

3 Resettlement

As noted above, resettlement is one of the three espoused durable solutions. In circumstances where local integration is not viable option and where the conditions in their home country remain intolerable for refugees to return, the only viable solution is to resettle them in a third country. In principle, a resettlement is considered when it is transpired that a refugee is ‘at risk in the county of first asylum or there is no other durable solution to [his or her] plight.’39 It is described as:

[t]he transfer of refugees from the country in which they have sought refuge to another State that has agreed to admit them. The refugees will usually be granted asylum or some other form of long-term resident rights and, in many cases, will have the opportunity to become naturalized citizens. For this reason, resettlement is a durable solution as well as a tool for the protection of refugees.40

The UNHCR plays a leading role in finding third countries willing to provide a permanent safe haven to refugees. Above all, the main purpose of creating the UNHCR is to protect refugees and asylum-seekers and to help them find durable solutions to their plight. In the case of Rwandan refugees, the UNHCR believes that a viable solution to their refugee problem is to repatriate them whether they like it or not. This standpoint towards solving the Rwandan refugee problem is prejudicial to some Rwandan refugees’ efforts to seek a resettlement in a third country as a solution. It is not in dispute that many of them are facing an imminent threat posed by the hunting down of Rwandan refugees (regardless of their ethnic backgrounds) by Rwandan espionage. Although a very small percentage of Rwandan refugees might be beneficiaries of resettlement as a solution to their plight, it is an extremely important protection tool that must be available to them on account of their refugee status.

For almost 20 years, Rwandan refugees remain in exile without a hope of a durable solution to their refugee problem. They are not integrated in the South African society. Repatriation remains unattainable because they can risk their lives if they return home. Yet, UNHCR deprives them their refugee status and thus international protection, which could qualify them for resettlement and other UNHCR opportunities. Accordingly, they are living in prolonged and indefinite limbo in the midst of continued exclusion from essential socio-economic structures.

Rwandan refugees are not victims of the UNHCR’s policy per se but the victims of the superpower’s foreign policies that place economic interest above human rights. The US, United Kingdom (UK), France, and other Western countries manipulate the doctrines of human rights and good governance to suit their economic interest and national priorities but not to suit vulnerable and voiceless humanity in Africa.41 Their support for the RPF remains unwavering despite numerous reports of human rights violations which predates the Rwandan genocide and which triggered genocide and led to the destabilisation of the Great Lakes region. History is full of evidence that US supported and still supports African dictatorial regimes. It was at the top of those countries that supported the apartheid regime in South Africa and Namibia. In a similar fashion, the US continue to turn a blind eye to heinous crimes and human rights violations, committed through state-sponsored violence by the Kigali regime, led by strong man President Paul Kagame. This is contrary to the President Obama’s statement in Accra that African countries need a strong, democratic, and responsive institution but not strong men. The US’s double standards have cost the lives of Rwandans, be it inside and outside Rwanda, for more than two decades now.

4 Concluding Remarks

Rwandan refugees are caught in the line of fire of national and international politics. In South Africa, they find themselves in a xenophobic environment due to the majority of South African’s fear that non-citizens might benefit from the fruits of their liberation struggle.42 South Africa is the country that has the third highest number of refugees and asylum-seekers in the world.43 For instance, between 2008 and 2013, it has registered 869100 asylum-seekers. By 2013, the number of individuals recognised as refugees was 65 881.44 This figure included an unknown number of those Rwandans recognized as refugees. Nonetheless, the perception persists that a higher number of refugees and asylum-seekers pose a threat to South Africa’s interest, especially in the area of national security, socio-economic liberalisation and economic globalisation. This era of globalised economy is characterised by the shrinking of the international solidarity and burden-sharing, which had traditionally been the foundation for the response to refugee problems around the world.

Besides, it is now evident that the competition between refugees and citizens in the South African labour market and other economic sectors is not only the means for survival but also a source of xenophobic violence in South Africa. Why? Because South Africans are not willing to share their economic and material resources with refugees and asylum-seekers. Though South Africa opened its borders and welcomed refugees fleeing persecutions, the current approach towards treatment of refugees shows a sign of a fatigue of hosting refugees.45 It becomes a metaphysical question as to whether Rwandan refugees should blame South Africa for having laws that protect the human rights and interests of its citizens or whether they blame the superpowers foreign policies that led to the negation of the principles of human and refugee rights, resulting in their current sufferings and predicament or whether they blame the oppressive regime installed in Rwanda, a regime only interested in tracking them down for assassination. Openly, their subjection to the RPF’ political maneuvers, in its complicity with the superpowers, through UNHCR, has rendered Rwandan refugees the scum of the earth – unwanted, vilest people – who do not deserve respect and concern, rather desire to be arrested on the basis of unjustified criminal allegations and thus returned to Rwanda. To Rwandan refugees, human rights is nonsense, valueless; a non-substantive ideal and nothing else but a political rhetoric.

In reality, superpowers’ foreign policies are designed and formulated to advance their security and prosperity at the expenses of the third countries’ humanity. It has been proven that they care less about human rights and democratic governance. It is within this context that President Kagame and President Museveni are, for example, praised to be visionary leaders, instead of being isolated and sanctioned for their dictatorial leaderships.

NOTES AND REFERENCES

An earlier version of this paper was drafted for and presented at the refugee roundtable discussion on Human Rights, Protection and Challenges Faced in South Africa, organised by the Agency for Refugee Education, Skills, Training & Advocacy (ARESTA), facilitated by the Embassy of the United States of America in Cape Town, South Africa 23rd October 2014.

1 For temporary protection discussion, see Handmaker J (2001. No Easy Walk: Advancing Refugees in South Africa. African Today. Vol. 48. Pp91-113; Aruforce v Minister of Home Affairs and others, Case No. 2010/1189 para 5 (an asylum-seeker is granted a temporary asylum-seeker permit in accordance with section 22(1) of the Refugees Act); and Kerber K (1999-2000). Temporary Protection in the European Union: A Chronology. Georgetown Immigration Law Journal. Vol. 14:35, pp35-50.

2 Section 30(1)(a) of the Immigration Act 13 of 2002, as amended by the Immigration Amendment Act 13 of 2011 prohibits an admission of non-citizens who cannot take care of themselves while staying in South Africa and allows deportation of those whose likely to become a public charge. This approach towards migrants signifies that they cannot have access to socio-economic programmes.

3 Act 130 of 1998, as amended by the Refugees Amendment Act 33 of 2008 and Refugees Amendment Act 12 of 2011.

4 In 2011, UNHCR estimated that there was about 100 000 Rwandan refugee population globally and that 56 000 refugees resided in the Democratic Republic of Congo (DRC) (See UNHCR. Implementation of the Comprehensive Strategy for the Rwandan Refugee Situation, including UNHCR’s recommendations on the applicability of the “ceased circumstances” cessation clause. IOM/093 – FOM/094/2011 (hereafter “the 2011 UNHCR’s Recommendations on the Applicability of the Cessation Clause”) at para 5). Yet according to the most recent DRC’s National Commission for Refugees (CNR) figures, the Rwandan refugee population in DRC was virtually at an estimated 245 000. In 2012, the Department of Home Affairs estimated the figure of the Rwandan refugee population to be at 1600. The number of the Rwandan refugees who fled Rwanda between 1994 and 1998 remains unclear.

5 See the 2011 UNHCR’s Recommendations on the Applicability of the Cessation Clause (n4 above).

6 For more detailed information with respect to hunting down Rwandan refugees, see for example, Kavuro C (2012). Rwandan Diplomats Intensify Threats And Intimidations Towards Rwandan Refugees. TheRwandan. Available at <http://www.therwandan.com/blog/rwandan-diplomats-intensify-threats-and-intimidations-towards-rwandan-refugees/> Retrieved on 01 October 2014 and Wrong M (2014). 20 yrs after Rwandan genocide, is Kagame’s gov’t assassinating critics?.Rwanda Speaks. <http://rwandaspeaks.com/tag/president-paul-kagame/>. Retrieved on 23 September 2014.

7 See, for example, RDTJ (2014). RDTJ Briefing Notes: Endless Persecutions of Rwandans. Issue 1, November 2014. See too Amnesty International (October 2012). Rwanda: Shrouded in secrecy: Illegal detention and torture by military intelligence. Report AFR 47/004/20 and Human Rights Watch (May 2014). Rwanda: Spate of Enforced Disappearances. Available at <http://www.hrw.org>. Retrieved on 15 October 2014.

8See the 2011 UNHCR’s Recommendations on the Applicability of the Cessation Clause (n4 above) and CNR (n4 above).

9 Handmaker J (2002). Evaluating Refugee Protection in South Africa. SAMP Migration Policy Brief 7; Landau LB (2007). Regional Integration, Protection and Migration Policy Challenges in Southern Africa. In Handmaker J & Klaaren J (Ed.). Advancing Refugee Protection in South Africa. (pp27-46) New York: Oxford, Berghahn.

10 UNHCR (2002). Local Integration, Global Consultations on International Protection, EC/GC/02/6, 25 April 2002,Para 5.

11 Section 27(f) of the Refugees Act 130 of 1998 states that a refugee is entitled to the right to seek employment.

12 Ibid: section 27(b) states “a refugee enjoys full legal protection, which includes the rights set out in Chapter 2 of the Constitution and the right to remain in the Republic in accordance with the provisions of this Act.”

13 See section 10 of the Public Service Act 103 of 1994.

14Section 19(2)(a) of the Immigration Act 13 of 2002.

15 Ibid: Section 49.

16 See Landau LB (2006). Protection and Dignity in Johannesburg: Shortcomings of South Africa’s Urban Refugee Policy. Journal of Refugee Studies. Vol. 3, p 316 and Danso D & McDonald DA (2001). Writing Xenophobia: Immigration and Print Media in Post-Apartheid South Africa. Africa Today. Vol. 48. p119.

17 CorMSA (2009). Protecting Refugees and Asylum-Seekers and Immigration. (p106) Johannesburg: CorMSA states that employers object to employing refugees and asylum-seekers on the basis of being non-citizens or because they are unfamiliar with the validity of the documentation issued to refugees and asylum-seekers.

18 See Kanene (August 2011). Are Rwandan Hutu Refugees Facing Discrimination in the International Protection Regime?. Available at <http://kanere.org/2011/08/21/are-rwandan-hutu-refugees-facing-discrimination-in-the-international-protection-regime-2/>. Retrieved on 13 October 2014.

19Statistics South Africa (March 2013). Documented immigrants in South Africa, 2012. Statistical release. P0351.4, p58.

20Section 25 of the Immigration Act 13 of 2002.

21Union of Refugee Women & Others v The Director: The Private Security Industry Regulatory Authority & Others, 2007 (4) BCLR 339 (CC), para 65 (concerning the rights of refugees to work in the private industry in South Africa).

22See RDTJ (n7 above), Amnesty International (n7 above) and Human Rights Watch (n7 above).

23 Weis P (1954). The International Protection of Refugees. American Journal of International Law. Vol. 48, p193.

24 Arendt H (1979). The Origins of Totalitarianism. (p267). Florida: Harcourt Brace Jovanovich, stated that ‘once [refugees] had left their homelands they remained homeless, once they had left their state they became stateless; once they had been deprived of their human rights they were rightless, scum of the earth.’

25They are, for example, the International Covenant on Economic, Social and Cultural Rights, GA Res 2200A (XXI) of 16 December 1966(ICESCR) and International Covenant on Civil and Political Rights, 2200A (XXI) of 16 December 1966 (ICCPR).

26 See Art. 14(1)-(7) of the ICCPR.

27 Yoletta Nyange ‘Rwanda’s refugees should not be forced to return,’ 30 Jun 2013, available at <http://www.aljazeera.com/indepth/opinion/2013/06/20136301155211706.html >. Retrieved on 02 October 2014.

28 Nyange op.cit. (n27 above).

29 Upon the closure of the ICTR, the ICTR Prosecutor requested referrals to Rwanda in the cases of six fugitives: Fulgence Kayishema, Charles Sikubwabo, Ladislas Ntaganzwa, Aloys Ndimbati, Charles Ryandikayo, and Pheneas Munyarugarama to be tried by the Mechanism for International Criminal Tribunals (MICT). The MICT also retains jurisdiction over the following three accused: Mr Felicien Kabuga, the alleged chief financier of the genocide; Major Protais Mpiranya, the former commander of the Presidential Guards; and former Defense Minister Mr Augustin Bizimana.

30 A recent census conducted by assisted by UNHCR provides that figure of the Hutu refugees who are still in the DRC. See, for example, Berwouts K (August 2014). Congo/Rwanda: FDLR demobilization provides some light, but not end of the tunnel. African Arguments. Available at < http://africanarguments.org/2014/08/29/congorwanda-fdlr-demobilization-provides-some-light-but-not-end-of-the-tunnel-by-kris-berwouts/>. Retrieved 15 October 2014.

31 Examples of those assassinated includes Col. Théoneste Lizinde and businessman Augustin Bugirimfura (both assassinated in Nairobi, Kenya, on 6 October 1996); former Interior Minister Seth Sendashonga (assassinated in Nairobi, Kenya, on 5 May 1998); former CEO of Rwanda African Continental Bank Pasteur Musabe (assassinated in Yaoundé, Cameroon, on 14-15 February 1998); Regina Uwamariya, the sister of Col. Théoneste Bagosora (assassinated in Brussels, Belgium, in December 2000); Col. Laurent Bangaya (assassinated in Nigeria, in June 2003); Charles Ingabire, a Rwandan journalist (assassinated in Kampala, Uganda, on 01 December 2011); Théogéne Turatsinze (murdered in Maputo, Mozambique, on 15 October 2012); Col. Patrick Karegeya, former external intelligence chief (assassinated in Johannesburg, South Africa, on 31 December 2013), and Emile Gafirita (made to disappear in Nairobi, 13 November 2014).

32 United Nations Office of the High Commissioner for Human Rights (OHCHR), Report of the mapping exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003.

33 OHCHR op.cit. (n32 above), para 98.

34 OHCHR op.cit. (n32 above), para 85.

35 SC/11533 of 28 August 2014; SC/11586 of 3 October 2014; S/PRST/2013/17 of 14 November 2013; and S/PRST/2015/1 of 8 January 2015.

36 They include but not limited to beating and torture, combat situation, shelling/bomb attacks, experienced crossfire/sniper attacks, experienced burning houses, injured with weapons, rape, sex for food/security, witnessed suicides, witnessed dead, witnessed torture and witnessed killing and torture.

37 For more details, see Kintu R (March 2005) .The Truth Behind the Rwandan Tragedy. Available at < http://repositories.lib.utexas.edu/bitstream/handle/2152/4486/3588.pdf?sequence=1>. Accessed on 18 October 2015.

38 See Opening remarks by Home Affairs Minister Ms Naledi Pandor during UNHCR meeting on the Implementation of the comprehensive Durable Solution Strategy. 18 April 2013. Available at < http://www.dha.gov.za/index.php/statements-speeches/152-opening-remarks-by-home-affairs-minister-ms-naledi-pandor-during-unhcr-meeting-on-the-implementation-of-the-comprehensive-durable-solutions-strategy>. Retrieved on 18 October 2014.

39Jastram K & Achiron M (2001). Refugee Protection: A Guide to International Refugee Law. Geneva. UNHCR. pp78,91.

40 Jastram & Achiron op.cit. (n39 above) p132.

41 See, for example, Uwizeyimana DE (2014). International Donors’ Obliviousness to Human Rights Violations and Lack of Democracy in the Disbursement of Aid: A Case of Post-Genocide Rwanda. Journal of Asian and African Studies. Vol. 1, pp1-17; Gaddis JL (2005). The Cold War: A New History. (pp 256-7). New York: Penguin; Brown S (2005). Foreign aid and Democracy Promotion: Lessons from Africa. European Journal of Development Research. Vol. 17, p181 and Makinda SM (1996). Democracy and Multi-party Politics in Africa. Journal of Modern African Studies. Vol. 34. Pp555–573.

42 See Kavuro C (2013). Reflecting on Refugees and Asylum-seekers Tertiary Education in South Africa: Tension Between Refugee Protection and Education Transformation Policies. Global Education Magazine. Vol. 4. p23, states that Dr. Mangosuthu Buthelezi, former Minister of Home Affairs believed that the social and economic transformation would not be possible if non-citizens who were and are admitted within South African borders are allowed access to the national resources. This belief is shared by many others such as Ms Maggie Maunye, former Chairperson of the Portfolio Committee on Home Affairs who stated that non-citizens prevent South Africans from enjoying the fruits of their freedoms and Ms Fatima Chohan, Deputy Minister of Home Affairs, who stated that given the huge influx of individuals abusing the asylum management system, the state cannot allow refugees’ access to national resources until the asylum system is reviewed and strengthened to ensure bogus asylum-seekers are detected, including the reviewing of the cases of those who were granted asylum.

43 See UNHCR Global Trends (2011). A Year in Crisis. Geneva, p3,40.

44 See UNHCR Global Trends (2013). War’s human Cost. Geneva, p3,42.

45 Kavuro op.cit. (n42 above) p23 states that there are policy shifts in the immigration and refugee policies towards restricting economic migrants and refugees from entering South Africa and from accessing socioeconomic rights. See too Lawyers of Human Rights Policy (2013). Shifts in the South African Asylum System: Evidence and Implications. (p3). Pretoria: The African Centre for Migration & Society; and Scalabrini Centre v Minister of Home Affairs 2013 (7) BCLR 819 (WCC), para 105 (the state acknowledged that the idea of relocating the Refugee Reception Offices to ports of entry near South Africa’s northern borders was a policy shift in refugee policies).

This article was published on 22nd March 2015, for the World Water Day, in Global Education Magazine.

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