By Nelly Marcoux – Fears of unwanted repatriation have been spreading among Rwandan refugees and asylum seekers in Uganda over the last months. In 2003, the signature of a Tripartite Agreement between the Governments of Rwanda and Uganda and the Office of the United Nations High Commissioner for Refugees (UNHCR) had laid the foundations of a framework to eventually repatriate Rwandan refugees. Following its 6th meeting, held in 2009, the Tripartite Commission issued a statement to the effect that “the retention of refugee status by present Rwandan refugees (was) no longer justifiable or necessary”. At the 8th Tripartite Commission Meeting, it was finally decided that come 31 December, 2011, the cessation clauses of Uganda’s Refugee Act 2006, of the 1969 Organization of African Unity (OAU) Convention and of the 1951 UN Convention relating to the Status of Refugees (1951 Convention) would be invoked against all Rwandan refugees, causing them to be stripped of their refugee status.
Cessation of refugee status is a mechanism within refugee law which allows for the removal of international protection when it is deemed that the circumstances having justified its extension no longer exist. It can be applied on an individual basis or to a group of refugees whose initial flight shares similar characteristics and motives. Certain conditions must be fulfilled to lawfully invoke such clauses: first, there must first be fundamental change in the circumstances existing in the country of origin; such change must be enduring, beyond transitory; and finally, state protection must be restored to the forced migrant. Exemption procedures are provided for those individuals who remain in need of international protection and those who, due to compelling reasons based on previous persecution, cannot go back.
Seventeen years after the 1994 genocide, as of January 2011 there were an estimated 16,300 Rwandan refugees in Uganda, with asylum seekers being numbered at approximately 11, 551. These migrants have been coming into the country in successive waves, fleeing various conflicts since 1959. Following the mass exodus created by the 1994 genocide, asylum seekers have been trickling in steadily into Uganda since 1998. In March and April 2010 alone, for example, 1,312 officially recognised asylum seekers arrived in Uganda.
Rwanda boasts an impressive economic growth and rapid improvements in the areas of education and health; it is perceived as having achieved stability and as successfully managing the daunting tasks of promoting national reconciliation and nation building. As such, the Rwandan government benefits from a favourable image in the eyes of the international community. In recent years, having deemed that it was time for its exiled nationals to return “home”, Kigali has invoked this record to support its claim; it has also pursued spirited means of repatriating its citizens, notably through the signing of tripartite agreements with Uganda and Tanzania. Increasingly, the idea that refugee status for Rwandans is “no longer justified or necessary” has gained currency in international discourse and accordingly, policies are put in place to encourage, facilitate or implement return.
In Uganda, some of these measures involve severe restrictions on livelihoods, and have resulted in an overall decrease in the protection afforded to Rwandese refugees. For instance, as a means of “encouraging repatriation” and “promoting self-reliance”, Rwandan refugees in Ugandan settlements have seen their land confiscated and have been forced to rely on rations only for survival, the rationale behind that policy being that attachment to land constitutes a factor undermining repatriation. Decreases in rations and in access to other services have also been reported. Such policies have severely curtailed refugees and asylum seekers’ ability to ensure their food security or to engage in income generating activities
Although it is important to acknowledge that a vast number of migrants have successfully returned to and stayed in Rwanda, questions remain: why are so many Rwandans reluctant to go back? Why have some promptly made their way across the border again after returning voluntarily, choosing the hardships of refugee life over repatriation? Several reasons have been cited by the latter to explain their decision; for instance, many report having been unable to recover the property left behind during the initial flight, and having faced violence in attempting to do so. Others mention fear of persecution on various grounds, or of the potential abuses of the gacaca system, set up to implement transitional justice following the 1994 genocide; and many Hutu refugees report fearing blanket accusations of participation in and responsibility for the genocide.
Furthermore, several human rights abuses and restrictions on civil and political freedoms in Rwanda have been documented, prompting the Commonwealth Human Rights Initiative to issue the following statement in its 2009 report on Rwanda’s application for membership of the Commonwealth:
There are considerable doubts about the commitment of the current regime to human rights and democracy. It has not hesitated to use violence at home or abroad when it has suited it.
Arbitrary detentions and restrictions on political activity and freedom of expression are also reported, notably on account of the implementation of legislation against “genocide ideology”, a set of legal instruments emphasizing national unity and reconciliation by banning “ethnic classifications or any discussion of the country’s diversity”; some critics allege that this law, as currently implemented, works to suppress public debate around issues relating to ethnicity, and to stifle criticism of current government policies.
Also of concern are the circumstances surrounding two instances of forcible return of Rwandan refugees conducted in recent years, which have raised the alarms of the international community. In October 2007, some 3000 Rwandan ‘rejected’ asylum seekers “illegally” in Uganda, were expelled at gunpoint, in the early hours of the morning. On July 14, 2010, at Nakivale and Kyaka refugee settlements, over 1,700 Rwandans refugees and asylum seekers were told to gather to receive food rations or obtain the results of their asylum applications from the Office of the Prime Minister (OPM); they were then rounded up by the military and loaded onto trucks which drove them across the border. Two individuals died and 26 were injured as they attempted to jump off the trucks; families were also reportedly separated, as parents were deported while children remained in the settlements. It is significant to note that Rwandan officers were on the premises during the operation which, according to Salima Namusobya, legal officer at the Refugee Law Project, was “coordinated between the governments of Rwanda and Uganda.” Notwithstanding the obvious problems associated with this way of proceeding, from a strictly legal point of view, these operations have deprived refugees and asylum seekers from exhausting the appeal procedures provided for Refugee Status Determination in Uganda’s Refugees Act, 2006”; they also violated principles of international law prescribing that repatriation must be conducted in safety and dignity.
Months away from December 31, and despite the seriousness and widespread character of these concerns, the paucity of information available publicly about the implementation of cessation, even among refugee agencies, and NGOs, is surprising. Uncertainty lingers with regards to roadmaps, timeframes and modalities of implementation; questions also remain concerning the institution of mechanisms to ensure that all those in need of international protection will be able to access the recourses to which they are entitled under domestic and international law.
Refugee law provides for three durable solutions, namely local integration, repatriation and resettlement to a third country. Yet in the case of Rwandan refugees, repatriation seems to be strongly emphasized to the detriment of the remaining two options. As a result, Rwandan refugees in Uganda face pressure such that their situation has been qualified as “constructive refoulement” by some analysts. Non-refoulement, a cornerstone of refugee law, bars states from returning anyone to a place where they would risk persecution. Yet, the indiscriminate application of cessation to all Rwandans risks creating such a situation by failing to account for the circumstances of individuals who run very real risks, should they be compelled to repatriate. Any solution prematurely withdrawing international protection to individuals in need of such protection, in violation of fundamental principles of refugee law, would be anything but durable.