The Migration of Refugees from Tanzania to Uganda:
Background to the Crisis – The Tripartite Agreement
At a meeting held in Geneva in September 2002, aimed at finding durable solutions to the problem of Rwandese refugees in Tanzania, the governments of Tanzania, Rwanda, and the UNHCR agreed on three conclusions. First, that changes in Rwanda's socio-political environment made it unlikely that the refugees in question would be persecuted upon return to Rwanda.
Second, many of the Rwandese refugees in question were thought to be either economic migrants or fugitives from justice (having been complicit in the 1994 genocide), in which case they were not entitled to refugee status. Third, it was asserted that some of the refugees constituted a threat to Tanzania's own security. Therefore, in a tripartite agreement the parties resolved that all Rwandese refugees be repatriated voluntarily by the end of 2002.
However, while there is nothing wrong with the purported aim of the tripartite agreement – i.e. voluntary repatriation – the manner of its implementation is cause for serious concern, and is the genesis of the present crisis. Despite having agreed that the repatriation of the refugees must be voluntary, the Tanzanian and Rwandan governments subsequently disregarded any screening component and expedited the repatriation process by coercing the refugees onto homebound trucks. This arbitrary and involuntary repatriation did not take into account the security fears of each individual, and it is hardly surprising that many of the refugees chose to flee from Tanzania to its neighbours.
Furthermore, it is questionable whether the tripartite agreement sits well with international law concerning the repatriation of refugees. The repatriation of a refugee must be governed by certain rights-based principles. To begin with, repatriation must be voluntary, with refugees choosing to go home when they consider it safe to do so. Thus, even if Tanzania invoked the Cessation Clauses of the 1951 Refugee Convention with a view to withdrawing refugee status from the refugees in question, the withdrawal process must have two elements. In the first instance, it must be objective (determining whether any change in circumstances prevailing in the refugee's country of origin makes it unlikely that the refugee, should s/he return to such country of origin, will not be persecuted on account of his/her race, religion, nationality, membership of a particular social group or political opinion (Convention grounds)). Second, it must also be subjective (giving due regard to the individual refugee's opinion about such change of circumstances). The objective aspect of the status cessation is supposed to ensure that the refugee's repatriation is based upon safe return while the subjective element ensures that such repatriation is voluntary. To disregard the principle of safe return is a violation of the rule of non-refoulement, enshrined in Article 33 of the 1951 Convention, namely, that no refugee should be returned to a country s/he has fled against his/her will. Likewise, to ignore the voluntary nature of repatriation is a breach of UNHCR Executive Committee Conclusion (EXCOM) no. 18 of 1980. In a nutshell, refugee status cannot be withdrawn in a blanket or automatic manner that does not consider each individual case on its merits.
The Rwandan refugees in the present case claim that they "learnt that our government reached an agreement with the Tanzanian government to have us returned to Rwanda. Yet many of us still fear that we will be harassed by the Tutsi regime." Against such a background, good practice requires that the repatriation process be carried out in a conscious and selective way, allowing those who were willing to return to Rwanda, to be facilitated in so doing, while those with genuine security concerns should continue to benefit from international protection. Finally, those who were guilty of perpetrating international crimes should be excluded from international protection and sent to the International Criminal Tribunal for Rwanda (ICTR) in Arusha, to face justice. To merely characterize an entire group of refugees as genocidaires or economic migrants undeserving of international protection and, in the process, forcing them to flock en masse into the frontiers of a country other than the country of origin, is a gross abdication by Tanzania, Rwanda and UNHCR of their responsibilities under international law.