AU WATCH

African Framework for Refugee Protection

1 An overview of the (1969) OAU Convention governing the specific aspects of refugee problems in Africa

Main Debates

  • What are the regional legal bases for refugee protection in Africa?
  • How enforceable are these rules and standards proclaimed in the regional refugee law and human rights instruments at national courts?
  • Is refugee protection legal or political?
  • Does the OAU Convention fill the gaps in international refugee law?
  • Does the OAU Convention adequately address the unique issues facing African refugees?

Main Points

  • Individual v. group-based status determination
  • Similarities and differences between the OAU Refugee Convention and the 1951 UN Convention
  • Substantive v. Procedural elements
  • Refugee rights and duties in the light of the African refugee law and human rights frameworks
  • States’ ratification of the relevant instruments v. their compliance
  • National legislation of refugee law v. policy-based administration of refugees
  • Complementarity between the regional and international refugee protection frameworks

Treaties

  1. African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990).
  2. African (BANJUL) Charter on Human and Peoples’ Rights 21 I.L.M. 58 (1982), entered into force 21 October 1986 (ACPHR) – The African Commission on Human and Peoples Rights is the supervisory organ of the ACPHR. It has been tasked to monitor States’ compliance with the OAU Refugee Convention and to encourage States to implement the OAU Refugee Convention in its domestic law.
  3. OAU, African Charter on Human and Peoples’ Rights, 21 I.L.M. 58, 27 June 1981.
  4. OAU, Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 September 1969, 1001 U.N.T.S. 45.

2 An analysis of the (1969) OAU Convention governing the specific aspects of refugee problems in Africa

Main Debates

  • Does the OAU Convention refugee definition contain a subjective element or is the definition predicated on the mainly objective events compelling someone to flee their place of habitual residence?
  • Does the OAU Convention refugee definition exclude sur-place refugees?

Main Points

  • The meaning of ‘compelled to flee’
  • Assessment of whether the term ‘compelled’ indicates that the OAU Convention definition has a subjective element
  • Test for establishment of the causal connection between the individual’s flight and the enumerated events
  • Strict interpretation of compelled to flee may exclude sur-place OAU Convention refugees

Main Debates

  • Has the OAU Refugee Convention significantly expanded the protection against refoulement?
  • Does rejection at the frontier constitute refoulement?

Main Points

  • Safe third country rule
  • First country of asylum rule

Main Debate

  • Does Article 3 of the OAU Convention adequately address issues of national security and social stability?

Main Points

  • National security v. protection for refugees
  • Freedom of expression v. international relations

Main Debate

  • With no mechanisms in place to support burden-sharing, it remains an ideal.

Main Points

  • While Article 2 of the OAU Refugee Convention was drafted in the spirit of burden-sharing, the reality reflects otherwise.
  • Neighbouring States and States with better human rights records are attracting larger numbers of refugees.

Main Debate

  • Various academics are challenging UNHCR’s view that voluntary repatriation is the preferred solution. Is this a valid criticism?

Main Points

  • Local integration v. voluntary repatriation

3 An overview of subregional frameworks and domestic legislations

Main Debate

  • Will a free movement protocol ease or increase the burden on States?

Main Point

  • Urban v. camp based refugees

Main Debate

  • What are the effects of transit migration from Sub-Saharan Africa to Mediterranean, European and the Maghreb states?

Main Point

  • Barriers to accessing countries of asylum of choice

Main Debate

  • How do mixed migration movements affect the protection needs of refugees who migrate with other forms of migrants within the region?

Main Point

  • Increased intra-regional mobility is compounded by factors such as climate change and environmental degradation.

Regional

Main Debates

  • Are East African states meeting their obligations under the human rights and refugee law instruments they have ratified at the continental and sub-regional levels?
  • What are the roles of Eastern African states in the protection of refugees?

Main Points

  • Distinctive and similar features of the East African states
  • Emergence of national refugee-specific legislation for the protection of refugees
  • Development of IDPs policy frameworks

Protection challenges in Africa

Main Debates

  • Is refugee protection in Africa safe from being exploited by fugitives from justice?
  • Role of the international community during conflicts that disturb public order and generate mass displacement

Main Points

  • Exclusion during mass influx situation
  • Sources of excludable crimes/acts
  • Procedural safeguards

Main Debate

  • Border patrol and control v. entry of genuine refugees

Main Points

  • Non-refoulement
  • Refugee law v. immigration law
  • Illegal immigrants v. genuine refugees
  • Rejection at the frontier, expulsion of genuine refugees

Main Debate

  • Legality of the encampment of refugees

Main Points

  • Urban refugee management and protection
  • Self-reliant v. vulnerable refugees in urban areas
  • Limitation of assistance to camp-based refugees
  • Camp location v. right to freedom of movement

Main Debates

  • Is resettlement a right or a privilege?
  • Who determines whether to resettle or not?
  • Are African States suitable for resettlement?

Main Points

  • Resettlement v. protection concerns
  • Absence of legal provisions for resettlement as a durable solution