Human Rights Brief
A Legal Resource for the International Human Rights CommunityFall 1994
The African Approach to Refugees
by Fernando González-Martín
Of the approximately 20 million refugees in the world today, six million are found on the African continent. Not included in these figures are the so-called "internally displaced," which raise the numbers to 15 million in Africa alone and 25 million across the globe. To put the African figures into perspective, in 1969, the number of African refugees rose to a total of 700,000. At the time, even this relatively low figure was considered alarming and prompted action on the part of African nations to address problems resulting from the ever-increasing number of refugees. Since its inception in 1963, the Organization of African Unity (OAU) has sought to lessen the plight of this often ill-defined category of individuals.
The legal regime governing refugee law in Africa is comprised of three main legal instruments: the 1951 UN Geneva Convention (45 States Party in Africa) and its 1967 Protocol (46 States Party in Africa), the 1969 OAU Convention Governing the Specific Aspects of the Refugee Problem in Africa (42 States Party), and the African Charter on Human and People’s Rights (49 States Parties). It is noteworthy that most of the 53 States on the African Continent have ratified these international agreements.
The OAU Convention, in particular, which was adopted in 1969 and entered into force on 20 June 1974, was prepared, in part, to take into account the unique aspects of the refugee situation on the African Continent. The Geneva Convention definition of refugees as "persons fleeing a well-founded fear of persecution" had not considered several problems encountered by African refugees and was too narrow within the African context. As a result, Article One of the OAU Convention’s definition adds a second paragraph which reads as follows:
The term "refugee" shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.
The OAU provisions of non-refoulement further illustrate what is often referred to as "the traditional hospitality of African Societies." These provisions provide more protection to refugees than the provisions contained in the Geneva Convention. For example, Article Two of the OAU Convention provides that:
(1) Member States of the OAU shall use their best endeavors consistent with their respective legislation to receive refugees and to secure the settlement of those refugees who for well-founded reasons are unable or unwilling to return to their country of origin or nationality.
(2) No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion which would compel him to return to or to remain in a territory where his life, physical integrity or liberty would be threatened.
As with most international and regional laws, problems have been encountered in implementing the OAU Convention at the national level. With few exceptions (i.e. Zimbabwe), most countries have been reluctant to replace their domestic legislation governing immigration, aliens, national security and the like with the Convention. In many instances, this legislation is contrary to the protective regime provided for by the OAU Convention. The lack of human resources needed to implement the regime is yet another serious obstacle to the implementation of the OAU Convention’s provisions. Several countries have adopted the necessary implementing legislation but lack adequately trained personnel to see that it is observed. Paradoxically, the government agencies charged with refugee protection are often the police, immigration authorities, and, at times, even the army, the very agencies responsible for the plight of the refugees.
Criticism of the refugee protection regime set up by the OAU Convention goes far beyond the practical nature of the implementation of its provisions. One major legal lacuna in the body of the Convention is the specific problem of the "internally displaced," often referred to as de facto refugees as opposed to de jure refugees. The OAU Convention is silent on this point. This problem, however, concerns three times as many people and is potentially even more explosive than the refugee crisis.
Although the protection of refugees in Africa is far from complete, it is at least in principle more inclusive than in many, if not all, other regional systems. One of the most significant aspects of this relatively new model of protection is that it has prompted other regional systems, in particular the Inter-American system, to emulate its positive factors and minimize its inadequacies.
The proper citation for this article in the Human Rights Brief Volume 2, Number 2, beginning at page 5 is: 2 No. 2 Hum. Rts. Brief 5 (1995).
