The Migration of Refugees from Tanzania to Uganda:
Whose Responsibility?
February 2003
Response to the Crisis
The Obligations of the Government of Uganda (GoU)
Regardless of their status, international law imposes upon the GoU responsibility for the protection of the refugees in question. For instance, both the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social and Cultural Rights, enjoin States to protect the rights of every person on their territories. Further guidance as to how the refugees should be treated can be sought from EXCOM Conclusion number 58, paragraph (f), which deals specifically with the issue of so-called 'irregular movers'. While Conclusion 58 recognises that movement by refugees from one country to another poses problems to the existing international assistance structures, it requires states to protect refugees in their territory. In other words, they should not be sent back if they have reason to fear persecution. To date, the government has met its obligations by allowing the refugees to remain in Uganda, in line with Conclusion 58.
The responsibility of the UNHCR
While the GoU has demonstrated its willingness to adhere to international standards, UNHCR is abdicating its obligations by giving a flawed interpretation of EXCOM Conclusion 58. This abdication became apparent in a press statement in The Monitor of Saturday February 8th 2003, ("UNHCR denies help to refugees") in which the information officer for the UNHCR Uganda office reportedly claimed that, "UNHCR's position remains that irregular movers who have previously found protection in Tanzania will not be provided with assistance nor international protection by the Office of the UNHCR in Uganda."
This statement raises pertinent questions regarding the accountability and competence of UNHCR. It is a position that is legally and morally untenable for three fundamental reasons. First, it is an incompetent reading of the relevant law, which is enshrined in EXCOM Conclusion No. 58 (XL) of 1989 (The Problem of Refugees and Asylum Seekers who Move in an Irregular Manner from a Country in which they have already found Protection). Because the EXCOM represents all the member States of the UN and advises the High Commissioner on issues of refugee protection, its Conclusions must be interpreted in context, and particularly taking into account the travaux preparatoires (report of deliberations) leading up to a given Conclusion. Thus, although the present Conclusion recognises that refugees are sometimes compelled to leave one country where they have found protection and move to another because of the 'absence of educational and employment possibilities and other non-availability of long-term durable solutions by way of voluntary repatriation, local integration and resettlement', the travaux preparatoires reveal that these factors are not a closed category. Indeed, the Chinese delegation to the EXCOM raised serious objections to the idea that the Conclusion's wording is exhaustive. It must also be noted that a number of states posted various interpretations to the Conclusion.
Member states agree that this problem can only be eradicated if the root causes of 'irregular movement' are addressed — by removing or mitigating the causes; for instance, establishing appropriate arrangements for the identification of refugees (in case they are still asylum seekers) in the countries concerned or by ensuring humane treatment for refugees and asylum seekers who, because of their uncertain situation, feel compelled to move from one country to another. To achieve this, member states conclude, governments in close cooperation with the UNHCR should put in place 'measures for the care and support of refugees and asylum seekers in countries where they have found protection pending the identification of durable solutions.' In addition, governments and the UNHCR should 'promote appropriate durable solutions with particular emphasis firstly on voluntary repatriation and, when this is not possible, local integration and the provision of adequate resettlement opportunities'. In general terms, to what extent has UNHCR in Uganda cooperated with the government of Uganda in light of this advice?
Thus far, nothing in the Conclusion states that the so-called 'irregular movers' should not be assisted. To the contrary, paragraph (f) of the Conclusion states that where refugees and asylum seekers have already moved in an irregular manner, two possible actions can be taken: either have them returned to the country where they have come from (which must be balanced against the cardinal principle of non-refoulement) or, where return is not possible, 'permit them to remain in the host country and be treated in accordance with recognized basic human rights standards until a durable solution is found for them.' Does this leave anyone in doubt that the Rwandese and Barundi refugees, whatever their reasons for leaving Tanzania, need to be assisted? Where does the UNHCR get the interpretation that the so-called 'irregular movers' are not to be assisted? So far, the GoU and the local people of Nakivale refugee settlement have shown more respect for human dignity than the UNHCR and other international organisations, and should be applauded for such a sense of responsibility.
The second reason why the UNHCR's position is untenable is because the concept of 'irregular movers' is based on a flawed paradigm of the international protection mechanisms — what the EXCOM members described as the 'structured international efforts to provide appropriate solutions to refugees.' Flawed because, first, while the Conclusion recognizes that refugees often have genuine reasons for moving from one country to another, it limits the reasons to those it is familiar with. Secondly, 'protection' and 'appropriate solution' have different meanings to Member states, UNHCR, the army of international humanitarian NGOs (helpers) and refugees. Practical experience has demonstrated that 'protection' and 'appropriate solution' to the helpers of refugees means resources and administrative convenience or control — mitigating or reducing the hustle of moving food and other items, the distribution of the 500 grams of cereals per person per day, etc. To refugees, 'protection' and 'appropriate solutions' mean a sense of security that allows them each to exploit their creative genius, such as the ability to unpack assistance boxes and repackage them in ways that allow them to regain their independence and freedom, to choose where to live and what to do, and to grow their own food, if agriculture was their pre-occupation, and to determine what to eat and when and how to eat it. Protection also entails freedom from the fear of arbitrary return to the county of origin. A refugee's life is often marked by paradox: the urge to one day return home in safety, and the fear of being forcibly returned to one's country where one is not sure what awaits them there. The fear to return is often prompted by the realization that instead of deciding to flee, this time round, someone else, often far detached from the refugee's subjective circumstances, will determine whether it is safe to go home. This sense of insecurity is further heightened by the realisation that political calculations by those in power in the country of origin, feature, more than anything else, in discussions of repatriation. This is precisely the situation of some of the Rwandan refugees in the present instance. The Refugee Law Project's preliminary findings indicate that some of the refugees fear returning to Rwanda because it is not safe. They heard about the agreement between the Rwandan and Tanzanian governments to have them returned home. The basis for their fears can only be ascertained through impartial scrutiny. The fact that some amongst them might be genocidiares cannot be the basis for denying protection to others. To do so would be a disregard of due process standards and a blatant case of collective punishment.
Third, UNHCR's position is wrong on purely moral grounds. To brand persons who fear for their lives as 'irregular movers' ineligible for international assistance without investigating whether such fears, however minimal they might be, have substance to them is an insult to the dignity of the concerned persons. As stated above, refugees often have genuine reasons for moving from one country to another. In some countries the levels of xenophobia are simply intolerable and discrimination is rife. In other cases the very people a refugee has fled from have free access to the areas in which they have sought refuge. Because they have not been harmed does not mean they should not flee. Legally, a refugee need not establish fear beyond reasonable doubt in order to be eligible for protection. What should be considered in these circumstances is what would happen if s/he were returned to his or her country, and whether s/he would be persecuted. Whether that happens immediately or not is immaterial as long as it can be ascertained that it is not safe to return.
Although UNHCR Geneva has produced elaborate handbooks setting out standards for states on how to protect refugees and asylum seekers, the practice of UNHCR in Uganda and Africa as a whole, rarely reflects the standards prescribed in such handbooks. Indeed, it seems to take horrendous occurrences — such as the attack on a Rwandan refugee family and subsequent hacking to death of the two children in Nairobi, in April 2002 — for UNHCR to take action. Without denying that refugees are often at fault in their overall attitude towards UNHCR and other helpers, the abuse of their rights is never justified.
In the final analysis, UNHCR's position is extremely unfortunate and legally untenable. By mechanically invoking the provision of EXCOM Conclusion 58 to deny assistance to refugees, UNHCR Uganda and other offices in the region are abdicating their international responsibilities and setting a most unsavoury precedent for States Parties to the 1951 Convention. They are becoming immigration officers controlling migration rather than an international UN body charged with protecting people who have lost the protection of their country of origin. Nothing in the EXCOM Conclusion gives UNHCR in Uganda any basis for not working in collaboration with the Government of Uganda refugee officials, who have allowed the refugees to remain here as long as other international stakeholders come to their assistance.