UGANDA’S REFUGEE MANAGEMENT APPROACH WITHIN THE …€¦ · EVIE H EFUGE ROTECTIO N ANAGEMEN...

UGANDA’S REFUGEE MANAGEMENT APPROACH WITHIN THE EAC POLICY FRAMEWORK

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A study by youth4policy, a youth think-tank initiative of the Konrad-Adenauer-Stiftung, Uganda and South Sudan Programme

Authors1. Winnie Watera2. Claire Seremba3. IvanOtim4. Donnas Ojok5. Bernard Mukhone6. AnnaHoffmann

©Konrad-Adenauer-Stiftung 2017Allrightsreserved.ReproductionofallorpartsofthispublicationforeducationalorotherNoncommercialpurposesisauthorizedwithoutpriorwrittenpermissionfromthecopyrightHolderprovidedthesourceisfullyacknowledgedandanyalterationstoitsintegrityareindicated.Reproductionofthispublicationforsaleorothercommercialpurposesisprohibitedwithoutpriorwrittenconsentofthecopyrightholder.Theviewsexpressedinthisreportdonotnecessarilyreflectthatof@Konrad-Adenauer-Stiftungbutthatoftheauthors.

A REVIEW OF THE REFUGEE PROTECTION AND MANAGEMENT APPROACHES IN EAST AFRICA 1

CONTENTSIntroduction 2

Background 2

DifferentiatingbetweenRefugeesandAsylumseekers 3

OverviewoftheRefugeeSituationandLegislation 4

Uganda 4

KeyRefugeeData 5

SouthSudanRefugeeCrisis 7

Aprogressiverefugeemanagementapproach 8

ButatWhatCost? 8

RefugeePolicyandLegislation 9

Anassessmentoftheprovisionsintherefugeelegislation 10

Naturalization 11

ThepoliticaleconomyofrefugeemanagementinUganda 12

Thesecuritydimensions 12

TheSecondNationalDevelopmentPlan(NDPII) 14

Kenya 17

RefugeeLegislationandPolicy 18

Thesocio-economicandpoliticalclimatesurroundingrefugeepolicydevelopment 19

Tanzania 22

KeyRefugeeData 23

LegalandPolicyFramework 24

Rwanda 26

SouthSudan 27

Burundi 27

RationaleForRefugeePolicyattheEastAfricanCommunity(EAC)Level 28

OnwardMovementofRefugees 30

Recommendations 31

ATransitionfromRelieftoDevelopment 32

NextGenerationRefugees 33

IntegrationasaViableOption:BettertobePartthantobeApart 33

AnnexI 35

AnnexII 36

2

INTRODUCTIONThe East African region presents a unique casestudy for refugee management and protection.Not only have almost all East African countries(apart from Tanzania) experienced violentconflictsthatforcedmillionsoftheircitizensoutasrefugeesorpoliticalasylumseekersbutsomecountriesintheregionhavealsoplayedkeyrolesinhostingmillionsofrefugeesevenfromthehornofAfrica.The1959civilwar inRwandaand the1994GenocideforcedmillionsoutofRwanda.Todate,Burundi remainspoliticallyunstabledue toPresidentPierreNkurunzizarefusaltostepdownwhenhistermexpired. InKenya,the2007post-electionviolenceforcedmillionstofleetheoncerelativelypeacefulcountrytofindsafety.TheLRAinsurgencyinNorthernUgandadisplacedmillionswhilethecurrentSouthSudanconflicthascreatedthe world’s worst contemporary humanitariancrisis.

Most fundamentally, the region has played apivotalroleinrefugeemanagementandprotection.Kenya’s Dadaab camp was home to more than200,000refugeesforovertwodecades.Uganda’sBidi-Bidi camp is currently the world largestsettlementcampwithmorethan270,000dwellers,all of them South Sudanese refugees. Uganda’sgenerous refugee management approach whichalmost treats refugees as its own citizens givingthem farmlands, work permits, access to health

careandschool facilitieshasbeenhailedasoneof, if not thebest refugeemanagement practicein the world.

ThispaperprovidesacomprehensivereviewoftheEastAfricarefugeemanagementframeworkbothfromlegal,economicandpoliticalangles.Indoingso, thepaperprovidesa comparativeanalysisofdifferentrefugeemanagementapproachesinfiveEastAfricanmemberstates.

Most specifically, the paper takes a closerlook at Uganda’s refugee management ‘best-practice: How sustainable is this approach inthe face of land shortage and the economicsupport for refugees and host communitieswithin the context of larger national economicchallenges?Howbest can theEACasa regionalblock coordinate the management of refugees?

A plethora of recommendations for refugeemanagement and protection approaches aresuggestedbythispaper.Keyofwhichistheneedfor different member states to develop robustandcreativerefugeemanagementpoliciesclearlyspellingoutstrategiesandcontingencyplans.Asanextstep,theharmonizationofregionalrefugeepolicieswillgoalongwayininfluencingregionalconcertedrefugeemanagementinitiatives.

BACKGROUNDTheEastAfricanregionconstitutesaflash-pointofforcedmigration.Withcountriessimultaneouslyhostingandassistinginternallydisplacedpersons,refugees,returnees,victimsoftrafficking,aswellas labor migrants, the region stands out in the management of refugees. However, the trend isbecomingcomplexanddynamicintoday’srefugeecrisisreality.

CurrentlytheEACconsistsofsixmemberstates,i.e. Uganda, Kenya, Tanzania, Burundi, RwandaandSouthSudan.Oncountrylevel,countriesthatare recipients of refugees like Kenya, Uganda,Tanzania and Rwanda, Burundi face a myriadof challenges in the management of refugees;although,thelaws,policiesandattitudestowardsrefugees vary from country to country. Ugandahasmadeatransitionfromrelieftoadevelopmentself-reliance strategy due to the unprecedentedof refugees and the protracted situations underwhichtheyareliving.


DIFFERENTIATING BETWEEN REFUGEES AND ASYLUM SEEKERS Thereisnosingledefinitionoftheterm“refugee”,it has varied over time and differs from countryto country, nonetheless, in reality, a refugee isa person forced to flee their home (involuntarymigrate) due to persecution, whether on anindividual basis or as part of amass exodusduetopolitical,religious,militaryorotherfactorsthatmayariseandthreatentheirpeace.Nevertheless,the definition is associated with humanitarianaims and all refugees have these characteristicsin common; they are homeless, and they lacknationalprotectionandstatus.

In line with Article 1A (2) of the 1951 UnitedNations’RefugeeConvention,arefugeeisdefinedas:

A person who owing to a well-founded fear of

being persecuted for reasons of race, religion,

nationality, membership of a particular social

group or political opinion, is outside the country

of his nationality and is unable or, owing to such

fear, is unwilling to avail himself of the protection

of that country; or who, not having a nationality

and being outside the country of his former

habitual residence as a result of such events,

is unable or, owing to such fear, is unwilling to

return to it.

Theproblemofdefininganasylumseekerandarefugee is becoming a global challenge. Asylumseekers are those who are seeking refugeestatus in another country, they must establishindividually that their fear of persecution iswellfounded, and then undergo a legal procedure inwhich the host country decides qualification fortherefugeestatus.

Whereas it is important to scrutinize betweengenuine refugees and asylum seekers, theEuropean refugee crisis has put the processto the test because it is difficult to qualify anddifferentiate between migrants seeking refugeor asylum during mass migration. It has proventobechallengingforahostcountrytocarryoutindividual screening in certain circumstances, particularlywhereciviliansarefleeing for similarreasons. 1

In reality, a refugee is an involuntary migrant,a victim of politics, war or natural catastrophe.In the above context, one becomes a refugeemigrant, butnoteverymigrant is a refugee.Thebroadercaseisthatnoteveryasylumseekerisarefugee.Thecurrenttrendoftherefugeeproblemindicatesthatthereareasylumseekersdisguisedasrefugees;theyleavetheircountryoforiginwithaneyeonanotherone,usuallyforeconomicreasons.Theoccurrenceofthesetwophenomenahasputthe conversation between refugee and asylumseekersinacontextthatneedstobeexaminedinrelationto the laws,policiesand implementationplansofdifferentcountries.

1 Available at http://www1.umn.edu/humanrts/edumat/studyguides/refugees.html

4

OVERVIEW OF THE REFUGEE SITUATION AND LEGISLATION

UGANDAHistorical Overview of the Refugee Situation

For decades now, Uganda has been a favorabledestination for refugees and asylum seekersfrom neighboring conflict-afflicted areas such asBurundi,Rwanda,Congo,Eritrea,Ethiopia,Kenya,Somalia, South Sudan, Sierra Leone, Senegal,Mozambique, South Africa and Zimbabwe. Thecountry’sfirstexperienceofwelcomingrefugeesdates back to World War II when 7,000 Polishrefugees fleeing the violence in Europe werehosted inNyabyeya andKojja in1942andwerelaterresettledinBritain,AustraliaandCanada.

In1955,Ugandabecamedeeplyimmersedinthe“refugeeproblem”after78,000Sudaneserefugeesentered during the Anyanya civil war; however,after the signing of the Addis Ababa Accord in1972, many were repatriated.2 This influx wassoonfollowedbythearrivalofnumerousrefugeesgeneratedbyunrestintheaftermathofthevariousstruggles for independence in Kenya, includingtheMauMaustruggle.Rwandese,mainlyofTutsiorigin,escapingthedisastrouscivilstrifeof1959also fled to Uganda. Similarly, Congolese, in theaftermath of Patrice Lumumba’s assassination in1961,soughtsafetyinUganda.BoththeCongoleseandtheRwandeseweresettledinthesameareasin western and southwestern Uganda,3 with some being allocated the pastoral lands in Nakivaleand Oruchinga refugee settlements in Mbararadistrict;thesecampswerelocatedinpresent-dayIsingirodistrict.AlthoughitisdifficulttoascertainthenumberofCongoleserefugeeswhomigratedto Uganda, several of them settled in Kyaka 1

refugee settlement near the Kazinga Channelin Kabarole district; many also resettled amongrelativesinKaseseandBundibugyodistrictswhileothers moved to urban areas, such as Kampala.The country also received several refugees fromEthiopiaandSomaliaduringthisperiod.

AspeaceandstabilityreturnedtoRwandain1994,owing to the victory of the Rwandan PatrioticArmy(RPA),manyrefugeeswererepatriated.This,inturn,generatedaninfluxofover1,000refugeestoUganda,most of them ofHutu descent,whofledaftertheRwandaGenocide.Thesamewouldhappen to the Congolese in 2000, when theUNHCRandtheUgandangovernmentpromoteda repatriation project. The Congolese, however,were not as lucky as the Rwandese. They wereforcedtoreturntoUgandaaftertheoutbreakofthe civil war in eastern Congo that displaced up to 1,200refugees.

In1980,civilwarbrokeoutbetweentheSudanesePeople’s Liberation Army/Movement (SPLA/M)andtheKhartoumgovernment.Duringthistime,many refugees had settled in refugee camps inthe northern andWest Nile regions of Uganda.Uganda has continued receiving refugees fromSouthSudanto-date;thisisessentiallyduetotheprotracted tensions in the region.

TheinfluxofrefugeesalsosawUgandansdisplacedto the Congo during the turmoil that followedIdi Amin’s overthrow and those who escaped to South Sudan during the Lord’s Resistance Army(LRA)insurgencyreturn.

2 Available at http://www.immis.org/wp-content/uploads/2010/05/Policy-Analysis-Report-Uganda.pdf3 Lomo, Z., Naggaga, A. and Hovil, L. (June 2001). The Phenomenon of Forced Migration in Uganda: An Overview of Policy

and Practice in an Historical Context. The Refugee Law Project. 4 Rwamwanja, Kamwenge and Kyaka in the districts of Kabarole and Kyenjojo.5 Available at http://www.immis.org/wp-content/uploads/2010/05/Policy-Analysis-Report-Uganda.pdf6 Palorinya (Moyo), Rhino Camp (Arua) Madi Okollo (Nebbi), Ikafe and Imvepi (Aringa) and Mongula (Adjumani), among

others.


Sinceachievingherindependencein1962,Ugandahas been hosting an average of approximately161,000refugeesperyear.7 In the recent past, the UNHCRhasreportedthatabout37,491refugees

were welcomed into Uganda just three weeks afterSouthSudanplunged into civil unreston8July2016.

Ugandaisnowhometo1.2millionrefugeesfrom13 countries with at least 86% comprising ofwomenandchildren;theserefugeesaresettledinvarious refugee settlements inninedistricts, thenumbersurged,doublingfromwhenaWorldBankstudyonforceddisplacementandmixedmigrationin the Horn of Africa estimated the number at500,000.8

It is therefore argued that Uganda’s forward-looking approach is being stretched to its limits. Uganda is currently the largest refugee-hostingcountry in Africa, after surpassing Ethiopia andKenya inearly2017.Bidibidi became the largestrefugee camp hosting more than 270,000displaced persons9.

KEY REFUGEE DATA

Country of Origin Number

South Sudan 900,000

DemocraticrepublicofCongo 219,463

Somalia 39,902

Burundi 39,902

Rwanda 19,951

OtherNationalities 13,301

Table 1:TheEstimatedRefugeeandAsylumSeekerPopulationinUganda

Source: UNHCR

7 Available at http://blogs.worldbank.org/nasikiliza/engendering-hope-ugandas-progressive-policies-on-refugee-management

8 Forced Displacement and Mixed Migration in the Horn of Africa.9 The https://www.theguardian.com/global-development/2017/apr/03/uganda-at-breaking-point-bidi-bidi-becomes-

worlds-largest-refugee-camp-south-sudan

Figure 1:AerialViewoftheBidibidirefugeesettlement.

Photo Credit: Dan Kitwood/GettyImages

6

10 Available at https://opendocs.ids.ac.uk/opendocs/bitstream/handle/.../mulumba_MAK_res.pdf?...1

Figure 2: AmapshowingtherefugeehostingdistrictsinUganda

Nakivale is theninth, hostingmore than60,000refugees, most of them from the DemocraticRepublicofCongo(DRC).10TheNyumanzitransitcentre,whererefugeeswaitbeforetheirrelocationtopermanentsettlements inAdjumani,wasbuiltin early 2014 tohold2,000people for nomorethantwoweeks.Nowitholds5,000andstaysofamonthormoreareroutine.AnewsettlementatPalabek,inLamwodistrictwasopenedtoenhancerefugeereceptioncapacityfornewarrivals.

While the refugee situation in Uganda becomesprotracted owing to the continuous influx ofrefugees from different conflict stricken regionsandtheonwardmovementofrefugeestoUganda,the sizeof land, amajor sourceof livelihood forrefugees and nationals alike, has remained thesame, causing scarcity and increased tensionamonghostcommunities.

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Moyo

Yumbe

Abim

Agago

Alebtong

Amolatar

Amudat

Amuria

Amuru

Apac

Arua

BudakaBududa

Bugiri

Buhweju

Buikwe

Bukedea

Bukomansimbi

Bukwo

Bulambuli

Buliisa

Bundibugyo

Bushenyi

Busia

Butaleja

Butambala

Buyende

Dokolo

Gomba

Gulu

Hoima

Ibanda

Iganga

Isingiro

Jinja

Kaabong

Kabale

Kabarole

Kaberamaido

Kaliro

Kalungu

Kamuli

Kamwenge

Kanungu

Kapchorwa

Kasese

Katakwi

KayungaKibaale

Kiboga

Kibuku

Kiruhura

Kiryandongo

Kisoro

Kitgum

Kole

Kotido

KumiKween

Kyankwanzi

Kyegegwa

Kyenjojo

Lamwo

Lira

Luuka

Luwero

Lwengo

Lyantonde

Manafwa

Maracha

Masaka

Masindi

Mayuge

Mbale

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Mityana

Moroto

Moyo

Mpigi

Mubende

Nakapiripirit

Nakaseke

Nakasongola

Namutumba

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Ngora

Ntoroko

Ntungamo

Nwoya

Otuke

Oyam

Pader

Pallisa

Rakai

Rubirizi

Rukungiri

Serere

Sheema

Sironko

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Wakiso

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UgandaRefugees and asylum-seekersas of 01 March 2017

total refugees and asylum-seekers1,139,374

855,640 283,734bio-metrically registered pending bio-metric registration*

new arrivals in transit/reception centres pending bio-metric registration in RIMS

COUNTRIES OF ORIGIN

*

REFUGEE LOCATIONSKEY FIGURES

Dispersed refugee location¹H

Creation date: 12 Jan 2017 Sources: Geodata: UNHCR, UNCS, UBOS. Statistics provided by Government (OPM), Refugee Department, Registered in (RIMS) and UNHCR Field OfficesAuthor: UNHCR Regional Service Centre in Nairobi Feedback: [email protected]

The boundaries and names shown and the designations used on this map do not imply official endorsement or acceptance by the United Nations.

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3.6%

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BURUNDI

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KYAKA IIKYANGWALI

KIRYANDONGORWAMWANJA

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NAKIVALEMOYO

ADJUMANIYUMBE

Source UNHCR 2017


SOUTH SUDAN REFUGEE CRISISSouthSudan,theworld’sneweststateiscurrentlysaddledinaprotractedconflict,economictroublesandfaminewhichhasforcedmorethanhalfofthecountry’spopulationtofleetheirhomesand/ortoseekrefugeinneighboringcountrieslikeUganda,

Ethiopia, Sudan, Kenya and The Central AfricanRepublic.ThismakesSouthSudanthemostfledcountry in theworld after Iraq andAfghanistan.ByJuly2017,theWestNileandAcholisub-regionswerehometomoreover800,000refugees.

In March 2017, the South Sudanese influx toUgandapeakedatover2,800refugeesregisteredper day while it is projected that 1,025,000

refugees from South Sudan will be hosted inUgandabytheendof201711.

Figure 3: RefugeesattheBidibidiRefugeeCamp

Figure 3: Refugees at the Bidibidi Refugee Camp. Photo Credit - James Akena

Figure 4: TrendsDepictingRefugeeArrivalsinUganda

11 UNHCR 2017

8

Todate,thereisnoendinsighttoSouthSudan’sconflict. The Schism between SPLM-IG andSPLM-IOcontinuewideningasRiekMacharandSalvaKiir,theleadingprotagonistsfailtoagreeona sustainable political path for the country. Theconflict has since experienced an ethnic twist,with the major tribes the Nuer and Dinka and

othersmallertribesconstantlygettingembroiledinviolentcontestations.Recently,therehavebeenwarningsofethniccleansinginseveralpartsofthecountryandevenapotentialgenocidehasbeenreported.Further, therehasbeenanemergenceof various new armed groups, exacerbating analreadyfragilepoliticalandsecuritysituation.

A PROGRESSIVE REFUGEE MANAGEMENT APPROACH

BUT AT WHAT COST?

Uganda’s refugee management approach hasbeenhailedasonewhich isnotonlyprogressiveandcompassionatebutalsosmart.AspartoftheInternational Solidarity Summit tour around thecampsinWestNileinJune2017,AntonioGuterres,andtheUNSecretaryGeneralremarked:

“… It important to underline that Uganda, in the

past, received these South Sudanese refugees

and I had the opportunity when visiting the same

area that I visited yesterday, to see that they

were not in camps but in so-called settlements

that are in reality villages, like villages of the

Ugandan people. This allows them to farm the

land, allows them to go to the same schools, the

same health centers, to have jobs, to allow them

to have normal lives, to live in dignity.”

In Uganda, refugees are allocated settlementswhereresidentialandagriculturallandisprovided.In Uganda, refugees access social services likeeducation; they participate in the labourmarketandenjoyfreedomofmovement.Bythis,refugeesare able to pursue their livelihoods just like the Ugandanpopulation 12.

The principle of responsibility sharing enshrinedin the international human rights and refugeelaw, where States’ have obligations to providesupport to each other to host refugees has sofar not yielded enough support.Many examplesprovide conclusive evidence that international

commitmenttowardsrefugeemanagementisstillwanting.Forinstance,in2015,theU.N.appealedfor $1.6 billion to assist 4.6 million refugees inneedin2015butonly62percentoftherequiredfinances were raised. By May 2017, the SouthSudan Refugee Response Plan for Uganda was

12 Kiranda, Y & Ojok D (2017) A home away from home? Exploring the situation of South Sudan refugees in Uganda. Country Report of the Konrad Adenauer Stiftung.


only 15 percent funded. The refugee solidaritysummitwasheldinKampalainJune2017.Ittookplace when Uganda had the highest number ofrefugeeseverandthemaincontributingfactortothecrisiswastheongoingconflictinSouthSudan.The summit aimed to mobilize internationalsupport to meet the immediate humanitarian needsofrefugees,inadditiontothelonger-termneedsof refugees andhost communities. It alsoaimed toprovidesignificant funding for theSTAand ReHOPE. Slightly above 350 million dollarswas raised.

However,82.3percentofthetargetoftwobilliondollars isyet tobe realised.Ugandaneedsmoresupport. 13

Many experts have expressed concerns aboutthe international community’s failure to playtheir roles.MuthoniWanyeki,AmnestyRegionalDirectorforEastAfrica, theHornandtheGreatLakeslamented,

“By failing to share responsibility with Uganda,

donor countries are failing to protect thousands

of refugees’ lives; which is an obligation under

international law.”

Uganda is party to international and regionalconventions including the 1951 RefugeeConvention and its 1976 Protocol and the 1969Organization of African Union Convention onRefugees (known as the AU Convention). Manyoftheearlylawsbuildoncolonialeraimmigrationcontrollegislation.Priortoindependence,refugeelegislation fell under the colonial government,whichpromulgatedtheControlofAliensOrdinanceof1960.Thenewindependencegovernmentlateradopted these ordinances, theControl ofAliensand Refugees Act which, however, left a lot tobe desired. To this end, the Act was repealedand the Refugees Act of 2006 was enacted,followed by the Refugee Regulations of 2010,which enshrined the UN and OAU Conventionsgoverning specific aspects of refugee problemsand other international obligations of Ugandaonthesame.TheActprovidedfor theset-upoflegal frameworks and infrastructure to cater forrefugeemanagement.

Pursuant to the Refugee Act of 2006 Article7 (2), the Office of the Director of Refugees isresponsible for the protection of refugees and

thecoordinationof theprovisionof services fortheir welfare; identifying and initiating projectsfor refugees in refugee-affected areas as wellasensuringthemaintenanceof lawandorder inrefugee settlements. Therefore, theDepartmentof Refugees and Disaster Preparedness was setupundertheOfficeofthePrimeMinisterandtheDirectorate of Refugees under this departmentworks closely with the public service to recruitcommandants, who, in turn, work with the refugees.

Theabovenotwithstanding,Uganda’sprogressivelegal framework has other impressive aspects:(1)openingUganda’sdoor toallasylumseekersirrespective of their nationality or ethnicaffiliation; (2) granting refugees relative freedomof movement, administrative permits to leaveand return to their designated settlements, andtherighttoseekemployment;(3)providingprimafacieasylumforrefugeesofcertainnationalities;and(4)givingapieceoflandtoeachrefugeefamilyfortheirownexclusive(agricultural)use.

There is, however, one significant limitation of

REFUGEE POLICY AND LEGISLATION

13 Ibid

10

the legal framework, as it does not provide apermanent solution of citizenship for refugeeswho can neither be repatriated nor be resettledelsewhere. The position is not very different inmost countries in Africa and across the world.For the refugees to whom repatriation is not afeasiblesolution,therehavebeencallsforrealisticalternativesolutions.

In 1999 the Government of Uganda and theUNHCRembarkedonimplementinga“self-reliancestrategy” (SRS) for long-term refugees. Self-relianceisdefinedas“theabilityofanindividual,householdorcommunitytodepend(rely)ontheirownresources(physical,socialandnaturalcapitalorassets),judgmentandcapabilitieswithminimalexternal assistance in meeting basic needs, andwithout resorting to activities that irreversiblydeplete the household or community resourcebase”. 14Theoverarchinggoalof theSRSwastomove from the relief model to a developmentmethodofrefugeemanagement.

Theplanwasthatby2003everyrefugeewouldbeabletosupportthemselves.CriticscalledtheSRSa‘conceptualapproach’thatassumedself-reliancewasalinearprocessovertimeanditdidnotfactorintheeffectsofdroughtandothershocks.15

The achievements, shortfalls and lessons learntfrom the SRS provoked government action andDevelopment Assistance for Refugees (DAR)was conceptualized. DAR was envisaged as a solution to the protracted refugee situation andaimedatpromotingself-relianceforrefugeesandat improving burden-sharing for countries andcommunitieshostinglargenumbersofrefugees.16 The solutions under DAR include voluntaryrepatriation, local integration or resettlement toathirdcountryandare intendedtobenefitbothrefugeesandthehostcommunities.

TheUgandangovernmentalsoholdstheviewthatrefugeesareheldinsettlementsareas,notcamps,re-echoing Omata & Kaplan (2013), who notedthat

“unlike many of its neighbors, which encamp

refugees, the Ugandan government promotes

the ‘self-reliance’ of refugees; this means that

rather than limiting responses to refugees

to humanitarian relief, a space is open for a

development-based approach to refugees.” 17

Uganda accords refugees the rights enshrinedin the UN Convention Relating to the Statusof Refugees and African Union ConventionGoverning the Specific Aspects of RefugeeProblems in Africa, freedom of movement andthe right to work. The Refugee Act, althoughcommendable for streamlining the institutionalstructures with regard to refugee management,has stipulated restrictions to movement, workand livelihood thathavehadvarying impactsonrefugeesettlement.

AN ASSESSMENT OF THE PROVISIONS IN THE REFUGEE LEGISLATION

14 Handbook for Repatriation and Reintegration Activities. UNHCR, 2004.15 Strategy Paper: Self-Reliance for Refugee Hosting Areas in Moyo, Arua, and Adjumani Districts, 1999-2006.16 Ibid., p. 34.17 Omata and Kaplan, “Refugee livelihoods in Kampala, Nakivale and Kyangwali refugee settlements: patterns of engagement

in the refugee sector”, quoting Betts, 2012. Humanitarian Innovation Project, Refugee Studies Centre, University of Oxford, Working Paper Series No. 95, October 2013. Available at: http://www.rsc.ox.ac.uk/publications/refugee-livelihoods-inkampala-nakivale-and-kyangwali-refugee-settlements-patterns-of-engagement-with-the-private-sector.


Section30(1)ofUganda’sRefugeeActstatesthat“arecognizedrefugeeisentitledtofreemovementin Uganda”, but the provision is contradicted bysection 30(2), which states that this is “subjectto reasonable restrictions specified in the lawsof Uganda”. Despite acknowledging Uganda’s“freedom of movement” for refugees, researchfindings by Betts et al. from 2014 assert thatrefugees in Nakivale and Kyangwali settlementsdonottypicallyventureoutsidethosedesignatedspaces to transact business. As such, although refugees can move about freely within thesettlement, their freedom of movement remainsrestrictediftheywanttotravellongerdistances.

Per Regulation 65 of the Uganda RefugeesRegulations 2010, refugees who reside indesignated refugee settlementshave free accesstolandfortheconstructionofprivateresidences(residentialplots)andcultivationtoimprovetheirwelfare/livelihoods.No refugee can sell lease oruse settlement land as security or alienate suchlandallocatedtotheminanyway.

Studieshaveindicatedthatrefugeesarestillfacedwithproblemssuchasinadequatehealthprovision,lack of housing, critical food shortage, unclearpolicies relating to their right towork,detentionbecause of lack of proper documentation, and afrequentperceived lackofpersonal securityandsafety(Dryden-PetersonandHovil,2003).18

Section45oftheRefugeesAct,theconstitutionandanyother lawsinforceinUgandaregulatingnaturalizationshallapply to thenaturalizationofa recognized refugee.Ugandahas longoperateda prima facie status determination system; andalthough since 2007 it has been conductingindividual assessments, the country stoppedgranting prima facie status in 2007. Similarly,in section 46 on the voluntary repatriation ofrefugees, a recognized refugee who voluntarilywishes tobe repatriated shall expresshisorherwishinwritingtotheCommissionerwhoshall,inconsultationwithUNHCR,causearrangementstobemadefortherepatriationofthatrefugee.

UnderEACArticle104ofthetreaty,thepartnerstates agreed to adopt measures to achieve free movement of persons, labor and services

and to ensure the enjoyment of the right ofestablishment and residence of their citizenswithin the community. Under the domesticrefugeelawsofUganda,anasylumseekerwhoseapplication for refugee status is rejected mayappealtoanadministrativeappealsbody–whichinthecaseofUgandaiseffectivelythesamebodythatheardtheinitialstatusapplication–butthereis no automatic possibility appeals the courts ofrejected cases.

Since naturalization is almost impossible, manyrefugees in protracted situations have beenintegratedas‘defacto’Ugandancitizens,whoownproperty and have intermarried with Ugandans.However, without legal protection refugees areleft vulnerable, as they do not knowwhen theirlegalstatusmightbequestioned.19

NATURALIZATION

18 Mulumba, D. and Mlahagwa Olema, W. (2009). Policy Migration Report: Mapping Migration in Uganda.Available at http://www.immis.org/wp-content/uploads/2010/05/Policy-Analysis-Report-Uganda.pdf19 South Sudanese Refugees in Adjumani District, Uganda: Telling a New Story. The International Refugee Rights Initiative.

July 2015. Available at http://www.refugee-rights.org/Publications/Papers/2015/TellingADifferentStory.pdf

12

18 Mulumba, D. and Mlahagwa Olema, W. (2009). Policy Migration Report: Mapping Migration in Uganda.Available at http://www.immis.org/wp-content/uploads/2010/05/Policy-Analysis-Report-Uganda.pdf19 South Sudanese Refugees in Adjumani District, Uganda: Telling a New Story. The International Refugee Rights Initiative.

July 2015. Available at http://www.refugee-rights.org/Publications/Papers/2015/TellingADifferentStory.pdf

20 South Sudanese refugees in Adjumani district, Uganda: Telling a new story. The International Refugee Rights Initiative. July 2015. Available athttp://www.refugee-rights.org/Publications/Papers/2015/TellingADifferentStory.pdf

21 Accessed fromwww.bbc.com/news/10593771

Article 14(1) of the Universal Declaration ofHumanRightsstatesthat,“Everyonehastherightto seek and to enjoy in other countries asylumfrom persecution”. However, the political andeconomic climate of host countries, combinedwiththeinternational/globalregimes’politicsthatgovern the humanitarian and development world, plays amajor role indeterminingnationalpolicyframeworks.

Countries have argued that internationalconventionsandagreementshaveostracizedtheindividualeconomicinterestsofhostgovernmentsasmanyarefinding it ratherstrenuous tohonortheir humanitarian commitments and to meet theirdomesticneedsatthesametime.

Ugandahas longbeen in thecenterofviolence-proneareas, inaddition toherown internalcivil

unrest. As such, the presence of refugees indesignated areas and surrounding areas is not a new phenomenon. As a respondent shared in a studyonSudaneserefugeesinAdjumani:

“We are used to refugees – they have been

here for a very long time and they continue

coming because there is a saying that at one

time some of us were refugees from South

Sudan before we became citizens ourselves”. 20

Initially, the Ugandan government assumed thecrisistobetemporaryandassuchsetuptransitcamps like Nyumanzi. However, the civil andpoliticalupheavalshaveshownnosignof lettingup,but thesemeasurescontinue inplace,actinginsufficiently as permanent solutions. This hasexacerbated the political tensions within thecampsandthehostcommunities.

Many of the original acts match the security-rights dichotomy that influenced the 1969Convention deliberations. Although Article26 of the 1951 United Nations ConventionRelating to the Status of Refugees confers theright to freedom of movement, these rights aresometimesunrecognizedinrelationtothepoliticaland security realities of host states. Refugeeshave beenmarked as sources of insecurity. Thegovernmenthasthusstatedthatnotonlydoesthe

influxof refugees lead to thespreadofviolenceatitsborders,butitalsoisanavenueformilitantinsurgents to penetrate the country. Take, forinstance,theinsurgenceattacks,suchastheJuly2010Kampalaattackinwhichover74liveswerelost at Kyadondo Rugby Stadium. These attackswereattributed toSomali Islamistmilitantcells21 operating inKampala slums thathadpenetratedthe borders under the guise of seeking refugeeassistanceandsettlement.

THE POLITICAL ECONOMY OF REFUGEE MANAGEMENT IN UGANDA

THE SECURITY DIMENSIONS


Furthermore,economicconditions inhost statesaggravate the tensions. Most African statesare underdeveloped, with scarce or minimal resources tocater for the localpopulation; thus,refugees are deemed as an added economicburden, unsustainable without the assistance ofthe international community. ‘Local settlements’were reckoned to be a durable solution by theruling government; however, social services andresources are stretched thin. A case in point is Elegu Primary Schoolwhich is attended by over1,000refugeesdaily.AccordingtoAnthonyAtubeOmach, an Amuru district official, some SouthSudanese refugees who had camped at EleguPrimarySchoolhavebeenrelocatedtostopthemfromencroachingonthelocals’land.

“It was creating another conflict because

local people in the area felt deprived of their

resources and infrastructure,” heexplained.22 Whereas the host countries have shown a willingness to accommodate the plight ofrefugees,theyarereluctanttobearthefurthercosts involved in diverting the considerableresources and adjusting infrastructure that maybeneededtoaccommodaterefugees.

Conclusively,TaniaKaiser(2000:18)states:

“Integration can only be temporary […]

because it exists in the full expectation that

the presence of the refugees itself is only

temporary and will be brought to a conclusion

by an eventual repatriation.” 23

The idea of repatriation is still not within sight.Not only is there a need to consolidate thepolicies and legal frameworks to reflect theneeds of both refugee and host populations;therealsoisaneedtoorganizebetterstructuresand mobilize resources and infrastructure toaccommodate the rising numbers of refugees. Itis important tonote thatUganda is signatory toall the principal international instruments24 on the protection of refugees. The governing lawis theRefugeesAct of 2006.Whereas the draftpolicy is still under development, it is generallyperceived as progressive and forward-looking. Itseekstobuildself-relianceandintegraterefugeesand asylum seekers into the host communities.Insteadoflimitingrefugeestohumanitarianrelief,developmentbasedresponseisemployed.25

However, Uganda now hosts a population ofabout1.2millionrefugeesanditsforward-lookingapproach is stretched to its limits. In addition,while the refugee situation in Uganda becomesprotractedwiththecontinuousinfluxofrefugeesfrom South Sudan, Burundi and the DRC, thequantityof land,amajorsourceof livelihoodforrefugees and nationals alike, has remained thesame,causingscarcityofresourcesandincreasedtensionamonghostcommunities.26

22 Available at http://www.irinnews.org/report/99477/refugee-arrivals-uganda-raise-humanitarian-security-concerns. Smolinská, L. (2004). No chance to find safe asylum: What factors contribute to the plight of refugees? A case study: 23

Sudanese refugees in Uganda and Kenya. PRAGUE. Available at http://www.unhcr-centraleurope.org/_assets/files/content/resources/pdf_cz/evaluation_and_research/smolinska_ap.pdf

24 The 1951 Refugee Convention, the 1976 Protocol and the 1969 OAU (Organization of African Unity) Convention.25 Betts, 2012.26 Available at http://www.refugeelawproject.org/files/working_papers/RLP.WP08.pdf

14

The government of Uganda included the scopeof refugeestothefive-yeardevelopmentmasterplan.Theplanrequiresthegovernmenttoenhance national response capacity to refugee emergency management. Theinterventionsproposedinclude;

i. Formulate and implement a national refugee policy

The Ugandan government is currently intheprocessofdraftinganationalrefugeepolicy.Thispolicyisgenerallyperceivedasprogressiveandforward-looking. Itseeksto build self-sufficiency and integraterefugeesandasylumseekersintothehostcommunity.Insteadoflimitingrefugeestohumanitarian relief, adevelopment-based‘self-reliance’approach isemployed .Thelegislation andpolicies inUganda initiatestrategies that invoke self-sufficiency,but amidst this lies the need to develop more durable solutions to the refugeequestion.27

The mass entry into Uganda is mainlyattributed to the liberal ‘policy’ thatUganda holds in regard to refugeemanagementhasbeen referred toasnotonly progressive but compassionate andsmart’,Thewelcomingattitudeofboththegovernment of Uganda and Ugandans isin practicenot consolidated in policy.ByJuly 2017, the legislation and policies inUgandainitiatedstrategiestoinvokeself-sufficiency, but amidst this lies the needtodevelopmoredurablesolutionsto therefugeequestion.

ii. Develop and implement a Refugee Settlement Transformative Agenda (RSTA)

The goal of the RSTA is to achieve self-

relianceandlocalsettlementforrefugees,and to promote social development in the refugees hosting areas as a durablesolution to the refugees’ problems,whileprotecting national and local interests.Given that refugees are allotted piecesof land, the main justification of theprogramme is to shift refugees fromthe traditional peasant economic modelto more productive and economicallydiverse opportunities. Over a period offive (5) years, the programme has sixobjectives;Landmanagement,sustainablelivelihoods, governance and rule of law,peaceful co-existence, environmentalprotection and community infrastructureand is supported by the United Nation’sHuman Rights Commission for Refugees(UNHCR).

iii. Receive and grant asylum to refugees in accordance with national, regional and international covenants

Uganda is living up to its internationalobligationstorefugeesnotwithstandingthepressures created by the unprecedentedinflux. In addition, refugees enjoy legal,physical and social protection. Refugeesuse available public health services, have access to universal primary and lowersecondary education, and engage ineconomicactivityinadditiontorelieffromaidrelatedagencies.Mostrefugeesresideinruralsettlements(notCamps)alongsideUgandan citizens. Uganda is among thenations which has pioneered an out ofcamppolicyintheregion.Duetofreedomofmovement,nearly100,000liveasurbanrefugeesintownsandcities.

THE SECOND NATIONAL DEVELOPMENT PLAN (NDP II)

27 Betts, 2012.


iv. Develop and implement projects and programs for refugees and refugee hosting areas.TheUgandangovernmenthascommittedto continue supporting the settlementproject for refugees. In June 2017,Uganda’s Parliament approved a50-million-dollar World Bank loan toenabletheimplementationoftheRefugeeand Host Population Empowerment(ReHOPE) programme. Through thisinitiative,hostcommunitiesandrefugeesare envisaged to build strong social ties and create a better environmentfor economic engagement. Gradually,surrounding districts where refugeesettlements are located have started towitness improvements in public service delivery in sectors such as health andeducationforboththehostcommunitiesand the refugees28. This optimism isshared by the Ugandan legislator activeonSouthSudanparliamentarydiscussionswho opined that Uganda’s progressive refugee approach will go a long way inbeing a successful model if it continuesstriking a balance between the interest/needsofthehostcommunitiesandthatoftherefugees.29

v. Develop and implement contingency plan for refugee emergencies. Contingency planning is an inter-agencyprocess, in anticipation of potentialcrises, of developing strategies, practicalarrangements and procedures, and identifying additional resources needed,to address the humanitarian needs ofthose adversely affected by crises. Inter-agency contingency planning for refugeesituations is (co-)ledbyUNHCRwith thehostGovernment30.

vi. Review domestic laws governing refugees.

Refugee Policy is now in draft stages.Stakeholderwideconsultationshavebeencarried out.

28 Kiranda, Y & Ojok D (2017) A home away from home? Exploring the situation of South Sudan refugees in Uganda. Country Report of the Konrad Adeneauer Stiftung.

29 Ibid30 https://emergency.unhcr.org/entry/35283/ppre-contingency-planning-refugee-situations

16

Photo Credit: Caritas International


KENYAHistorical Overview of the Refugee Situation Kenyahosts a large asylum-seeking and refugeepopulation. This dates back to the 1960s whenneighboring countries descended into conflict.This is due largely to the country’s location ina conflict-prone region. For example, refugeesfrom neighboring Uganda, Rwanda, SouthSudan, Somalia and Ethiopia have trickled intoKenya over the years. In 1971, Kenya receivedits firstmajorwaveof refugees,mainly ofAsianorigin, trying to escape the political upheavalsin Uganda during President Idi Amin’s regime.31 In 1984, the idea of a refugee lawwas formallyproposedatgovernmentlevelasKenyacontinuedtoexperienceaninfluxofrefugeesfromUganda.Atthetime,thegovernmentwasresponsibleforrefugee status determination (RSD) through theRefugeeSecretariatundertheMinistryofHomeAffairs.

Conflict ensued in the Sudan, Ethiopia andSomalia in the 1990s and the influx of refugeesto Kenya increased tenfold, from 20,000 in the1970s to 200,000 in the 1990s. Following theoverthrow of President Mohamed Siad Barre in1991,123,000SomalirefugeesmovedandsettledinKenya,withanestimated3,000crossingoverdaily. By June 1991, 13,000 Ethiopian refugeeshadalsoarrivedinKenya,followingtheoverthrowofMengistuHaileMariam,inabidtoescapetheensuingconflict.Thus,campswereestablishedinKakuma in the Rift Valley Province of ManderainnortheasternKenyaandUtange inthecoastalregion for Somali refugees. It was also the yearthatmarkedthebeginningofencampmentastheofficial government refugee management policy.In April of the following year, 46,500 EthiopianrefugeesarrivedinKenya,withanestimated1,000crossing over daily. A year later in 1992, Kenyawashometoanestimated400,000refugees,themajorityofwhomwereofSomaliorigin.32

Asaresult,asmallrefugeecampwasestablishedin Dadaab (although now it is the largest in theworld)innortheasternKenya.

By the endof 1990,Kenya’s refugee populationwas recorded at 14,400 refugees; at the sametime,theUNHCRbudgetforKenyawasestimatedatUSD2.7million.Twoyears later inDecember1992, the refugee population in Kenya wasestimated at over 287,000, with the numbersgoingsteadilyup.

By January 2015, Kenya was hosting 585,363registered refugees and asylum seekers residingeither in the Dadaab and Kakuma camps, orregistered inNairobi. The refugee population ofDadaabstoodat356,014(178,488female)whilethat of the Kakuma refugee camp was 178,079(83,297female).33A totalof26,604newarrivalshavebeenregisteredsincethebeginningof2016,ofwhich4,060newarrivalswereregisteredduringDecember2016alone.

Asof31December2016,39,316Somalirefugeeshadreturnedhomefrom8December2014,whenthe UNHCR started supporting the voluntaryreturn of Somali refugees in Kenya. Out of thisnumber, 33,725 were supported in 2016 alone.UNHCR reported the number of registeredrefugeesandasylumseekersat490,656(444,964and45,692respectively).

On the 3rd January 2017, UNHCR reported thatrefugeemanagementinKenyawouldrequireUSD272.1million, including special situations for theyearand104.6million (38%) incontributionshadbeen received.34

31 Available at https://en.wikipedia.org/wiki/Expulsion_of_Asians_from_Uganda32 Thousands of Sudanese Stream into Kenya. New York Times, 31 May1992.33 Available at http://reporting.unhcr.org/node/2537?y=2016#year34 Available at http://www.unhcr.org/ke/wp-content/uploads/sites/2/2017/01/Kenya-Operation-Factsheet-

December-2016.pdf

18

35 Ibid.

As a signatory to the 1951 United NationsConventionrelatingtotheStatusofRefugees,andthe1967Protocolin1981andbeingpartytothe1969 African Union (AU) Convention Governingthe Specific Aspects of Refugee Problems inAfrica,Kenyahadanobligationtowardstherightsandwelfareofrefugeeswithinherborders.

In 1991, a draft Refugee Bill was preparedbut owing to conflicting opinions from thegovernment, NGOs and UN agencies, the billwasshelvedin1994.Afterconsultationsin1991,fresh reviews began in 2000; but the bill wasonly published as theRefugeeBill in 2003 afterreviewsoftheRefugeeBill2000wereundertakenbytheGovernment,NGOsandUNagenciesandrecommendations made. In 2005, the RefugeeAffairs Secretariat was revived. By the end oftheyear,thesecretariatwasmadeadepartmentwithin the Ministry of State for Immigrationand Registration of Persons. Parliament finallyconsideredthebillin2006whenitwasrepublished(afteritsexpiryin2003)andbecametheRefugeeBillof2006.

In2006,KenyaenactedtheRefugeeActthatwasconsequently operationalized in 2007. The law,among other things, established the Department of Refugee Affairs (DRA), the Refugee AffairsCommitteeandtheRefugeeAffairsBoard,bodiesthat were legally charged with the affairs of allrefugees. The Department of Refugee Affairsis managed jointly by the United Nations HighCommission for Refugees (UNHCR) and theGovernmentofKenyaestablishedunderthe2006RefugeesActandthe2009RefugeesRegulations.

Kenya recognizes twoclassesof refugees:primafacierefugeesandstatutoryrefugees.Allasylumseekersgothroughan initial registration.At thispoint, they are screened for their eligibility toseekasylum.35ThelawprovidedforClassMentrypermits to regulate the entry and settlement ofthe refugees and the interpretation of the termrefugee. However, it circumvented the terms oftheir residence, did not legally provide for non-refoulement(i.e.theforciblereturnofrefugeesorasylumseekerstoacountrywheretheyareliabletobesubjectedtopersecution),therighttowork,orfreedomofmovement.Inotherwords,thelawwas not as comprehensive, and did not provide durable solutions for the refugee situation inKenya.

Criticsofthelawassertthatwhileitprovidesforthe right to work and access work permits; thesamelawrestrictsthemovementofrefugeesandconfinesthemwithinthesettlementcamps,whichtheycanonlyleaveafterauthorization.Refugeesactingcontraryare liabletopenaltiesprescribedinthelaw–eitherasix-monthjailtermorafineof20,000Kenyanshillings(approximatelyUSD200),orbothpenalties.

REFUGEE LEGISLATION AND POLICY


THE SOCIO-ECONOMIC AND POLITICAL CLIMATE SURROUNDING REFUGEE POLICY DEVELOPMENTKenya’s outlook on the refugee question datesbackto1992aftershestartedexperiencingvastinfluxesof refugees.With the influxof refugeesevery year and their protracted stay, Kenya’swelcoming attitude towards refugees drasticallychanged.36The refugeesnotwithstanding,Kenyaat the time was also experiencing a problemwith internally displaced persons (IDPs) becauseof land clashes in various parts of the country.The situation was exacerbated by a sharpincrease in crime and the entry of illegal armsintothecountry.Sincethiswasthesameperiodwithinwhichboth refugees and foreignerswereflooding thecountry, inevitably the formerwereblamed for this. Furthermore, in the same year,economic troubles befell the country as Kenyawasundergoingeconomicchanges,especiallythestructural adjustment programmes that caused unemployment and inflation to soar by morethan50%. In the lightof theeconomicchanges,therefugeeswereseenthroughdifferentlenses,particularly as an unwelcome competition forthe locals. The government handed over theresponsibility for RSD and management to theUnitedNationsHighCommissionerforRefugees(UNHCR) in 1992. Between 1995 and 1997,camps in urban areas were gradually closedand amalgamated with Dadaab and Kakumarefugee camps, which became bigger camps toaccommodate the ever-increasing numbers andremainedtheonlycamps.

Amidconsultationsontheproposedrefugeelawbythestakeholders,KenyatransitionedfromtheKenya African National Union (KANU) in 2003.Whilethisstalledtheprocesstoacertainextent,refugees were still pouring into Kenya in vastnumbersin2006andthisrevivedtheprocesstore-

considerthebill.WithRCKchampioningadvocacyfor the law, the Refugee Bill was introduced toParliament for the secondtime15 years after itwasfirstdrafted.ThebillwaspassedasanActofParliamenton29November2006 and assentedto on 30December 2006. Consequently, on 15May2007,theRefugeeActwasoperationalised.

In2012Kenyasentoutadirectiveinresponsetothe2012terroristattacksallegedlyattributed towarring factionsofal-Shabaab inSomalia.Citingabreachofsecuritybythosewelcomedthroughthe borders, the government issued the Structural Encampment Policy aimed at refugees living inurban centers. The directive in December 2012ordered refugees from Somalia living in Kenya’surban areas to move to Dadaab in the northeast, andtheothernationalitiestomovetoKakumainthenorthwestofthecountry.Thecountryceasedthe registration of refugees outside camps andillegal migrants were targeted for deportation,while refugees were relocated to camps. Thefollowing year on 5 June 2013, theKenyan andSomali governments announced an agreement on voluntary repatriation for Somali refugees inKenya. The resettlement process inDadaab hadbeen complicated by growing insecurity in thecamp and subsequent difficulties in accessingpopulations living there. Resettlement wasconsidered an important, viable and durable solution for Somali refugees. These dynamicsgreatlyaffecteddiscussionsaroundthereviewofexistingrefugeelaws.

In2014,effortstorealignsomespecificlawswiththe Kenyan constitution were started, to eitherrepeal or amend the Refugees Act of 2006. In2014, theSecurityLaws (Amendment)Act2014

36 Development of Refugee Law in Kenya.

20

waspassed.While itwasmainlygeared towardsthe security situation in Kenya, it affected theaffairs of refugees directly. One clause cappedthe number of refugees allowed in the countryat 150,000. The constitutionality of eightclauses was questioned, with a verdict passedrecently proving the illegality. Under a USD 9million Security Partnership Project (SPP), thegovernment deployed 692 police officers toDadaabandKakuma.OwingtotheeffortsmadebytheGovernmentofKenya(GoK)andtheUNHCRunder the SPP, Dadaab has been pacified andhas experienced a decline in security incidents,particularlyregardingimprovisedexplosivedevice(IED)attacksandkidnappings.

InMay 2016, theGoK announced that itwouldbeclosingDadaabandrepatriatingover260,000refugees.Thegovernmentclaimedthatthecampacted as a breeding ground formilitias and alsocited the economic, environmental and social issues posed by the refugees’ continued stay.Kenyawas accusedof excessivepoliticisationofrefugee issues and themove to close the campwasreferredtoaspoliticalrhetoric.TheUNHCRwarned against political pressure to curtail therights of refugees, contrary to national andinternationallaw.

The International Conference on Assistance toRefugeesinAfrica,1981and1984(ICARA1andICARA 2) highlighted the ‘burden’ that refugeesplaceontheirhoststates,i.e.imposingadditionalcosts on already hard-pressed public and socialwelfare budgets, arresting economic growth,distorting markets, causing environmentaldegradationandputtingpoliticalstrainsonalreadyfragileandconflict-affectedcountries.38

TheseburdensresonatedwiththereasonstheGoKhas candidly spoken about. Dr. Karanja Kibicho,thePrincipalSecretaryintheMinistryofInteriorand Coordination of National Government, saidthat

“Kenya has continued to shoulder a very

heavy economic, security and environmental

burden on behalf of the regional and

international community.” He added, ‘the Government of Kenyaacknowledges that the decision will have adverse effectsonthelivesofrefugeesandthereforetheinternational community must collectively takeresponsibility on humanitarian needs that willarise out of this action.’39 Refugees have beenaccusedofcuttingdowntreestobuildsheltersortouse asfirewood. Localshave complained thataid agencies hire refugees as cheap labour andgivemore assistance to refugees than to needylocals, all accounts denied by aid agencies. Onthe other hand, research on Dadaab has shown apositiveeconomic impactof thecampson thehostcommunity.40

The humanitarian approach to refugees haveignored the impact host communities face as aresultofrefugees.41Often,therearediscrepanciesbetween what host governments and donors/NGOs seek as long-term benefits for refugees.While governments tend to assess the impacts and costsfortherefugeesaswellashostcommunities,donors and NGOs focus on the outcomes oftheir skills development and income-generatingprojects, food rations or cash and vouchersassistance for refugee livelihoods – which onlycreate dependency and are not sustainable. AcaseinpointiswhathappenedinJune2015whentherefugees’dailyfoodrationswerereducedby30%.42

37 Available at http://www.standardmedia.co.ke/article/2000152677/judges-declare-eight-sections-of-new-security-law-illegal/?pageNo=2

38 Are refugees an economic burden or benefit? Roger Zetter.39 Available at http://reliefweb.int/report/kenya/kenya-ps-karanja-kibicho-explains-why-government-shutting-down-

refugee-camps40 Available at http://tinyurl.com/reliefweb-dadaab2010 41 Available at http://www.fmreview.org/preventing/zetter.html#_edn242 Available at https://www.wfp.org/news/news-release/lack-funds-forces-wfp-reduce-food-rations-again-refugees-

kenya


Kenyahasconsideredthesepolicyandconceptualchallenges and contended that the ‘costs’ ofrefugeestotheirhosts–risingfoodandcommodityprices, the depression of localwage rates, fiscalpressures,increasingenvironmentaldegradation–outweighothermicro-economic,macro-economicandsecuritybenefits.43

Notwithstanding that Kenya is party tointernational treaties and conventions relatingto human and refugee rights, the interpretationwithin the confines of the national laws arearbitraryandunpredictable—dualistjurisdiction—as this invariably depends on political will andinterest. On the other hand, it is important to note that though the 2010KenyanConstitutiondoes not make specific provisions for refugeesandasylumseekers, itsprovisionsoncitizenshipmay be of benefit to refugees where Kenyans,for example, can confer citizenship on refugeesthroughmarriage(seeRefugeeRights,p.8).

The Constitution of Kenya also offers severalkindsofprotectiontorefugeesviaChapterIVthatguaranteesthefundamentalrightsandfreedomsofallpersonsandgroups.Similarly,theconventionsandtreatiesarefullydomesticatedviasection16of the RefugeesAct,which is to the effect thatevery recognized refugee and everymember oftheirfamilylivinginKenyashallbeentitledtotherightsandbesubjecttotheobligationscontainedin the international conventions towhichKenyaisparty.

43 Ibid.

22

TANZANIAHistorical Overview of Refugee Situation

AtthedawnofindependenceinTanzaniain1961,theinfluxofrefugeesfromallovertheGreatLakesregionwas attributed to Julius Nyererewho, asthepresident,encouragedan“open-doorpolicy”.His vice president, Rashid Kawawa, enunciatedthisgovernmentpolicysaying:

“Tanzania’s government is convinced that her

independence is incomplete before the whole

of Africa becomes free. We shall neither give

up nor lag behind in supporting the refugees

[…]. We cannot help those who run away to

seek a luxurious life. We will help those who

want to free their countries.” 44

Tanzania’s stand on refugees was premised onthe fact that the borders in Africa were drawnbyautocraticforces,andtheonuswasonhertowelcomebothvictimsandfreedomfightersalike,sincethewindsofpoliticalchangewereblowing.Despitehavingaweakeconomy,Tanzaniabelievedshe had sufficient resources to share and tocaterforthelocalpopulation.Tanzania’srefugeepopulationmainly came from theDRC, RwandaandBurundi.However,overtheyears;thereweredoubtsastothesustainabilityofTanzania’spolicyonrefugees.

The post-Nyerere era saw a reduction inthe influx of refugees into Tanzania. In 1993Burundi experienced armed conflict afterMelchior Ndadaye, the first Hutu president,was assassinated, sparking violence against the Tutsis. The conflict escalated in 1994, after theassassination of the Rwanda and Burundianpresidents Juvénal Habyarimana and CyprienNtaryamira as they returned from the ArushaPeaceAccordMeeting.Over700,000Burundianssoughtrefuge750,000fromRwandain24hours,the largest and fastest influx ever recorded inhistory.Tanzaniaendeduphostingover2,000,000refugees.Benacorefugeecamp, innorthwesternTanzania,becamethelargestintheworld.

Shortlyafter,in2006,theDRCalsoplungedintoconflict and the refugee camps in the easternpartofthecountrywereattackedsotherefugeesrelocated to Tanzania together with Congolesefleeingthewar.Thenumberof refugees literallyquadrupledfromonly400,000between1961and1993to1.5millionbetween1993and2000.MostofthesewereallottedlandintheunderdevelopedwesternregionsofKagera,RukwaandTabora.

After JuliusNyerere’s retirement in1985, anewwaveofleadersemerged.ThesewereAliHassanMwinyiandBenjaminMkapa,towhomtheopen-doorpolicydidnotappeal intermsofeconomic,environmental and social development. Therefugees in Tanzania were viewed as more of aliability than an asset, with President BenjaminMkapareferringtothemas‘anunbearableburden’posingaserioussecuritythreatwhichwouldundotheprogressTanzaniahadmadesofar.TheGreatLakescrisissawabout1,000,000refugeesenterTanzania, and soon there was a reversal in thistrend. In 1995 the western border of Tanzaniawasclosedbythegovernment,becamemilitarisedand refugees were forcibly denied entry, incontravention of the non-refoulement principle.Amidst an international backlash, PresidentMkapaannouncedthatallRwandeserefugeesinTanzaniawere expected to return home by 31st

December 1996.Consequently,manyRwandeserefugeeswererepatriatedandin1998,atripartiteagreement was signed between Burundi, TanzaniaandtheUNHCRtopromoteBurundianrepatriation. In the same year, the Refugee Act,whichendedtheopen-doorpolicy,wasenacted.These were meant to discourage refugees fromseeing Tanzania as a favorable place to seekrefugeandasylum.ThestipulationswithintheActconfinedrefugeeswithinthecampsasopposedtointegrating them into society, and forbade themfromworkingoutsidethecampsandfromowningfarmswithinthecampgrounds.Theliberalizationpolicy also de-emphasized the agriculturalindustry, rendering labor-intensive techniquesimpracticalfortheTanzaniangovernment.

44 Chaulia, 2003.


In2002,anothertripartiteagreementwassignedbetween Burundi, Tanzania and the UNHCR topromote the voluntary repatriation. In 2003, anational refugee policy was implemented whichmadeavailableonlythreeoptionsfortherefugees,i.e. resettlement, safe zones and voluntaryrepatriation. By 2008, Tanzania had repatriatedapproximately300,000andhadclosedsixcamps,leaving only five in the northwestern part ofTanzaniatoaccommodatethe200,000refugees.At a point where the government set deadlines to repatriate all Burundian refugees because there

was no political strife in the country, Burundiarguedthatshedidnothavetheinfrastructuretoaccommodatethereturningrefugees.

Recently, Tanzania experienced an influx ofBurundian refugees as conflict broke out afterthe controversial election of Pierre Nkurunzizain2015.Thecountryishometotheworld’sthirdlargestrefugeecamp,Nyarugusu,holding140,000Burundians and 60,000 Congolese, three timesthe number it was meant to hold.

Tanzania received a large population of bothasylumseekersandrefugeesfleeingconflictareaswithin the first three decades of independence.There isanestimated1,000,000refugees inthecountry,99%ofwhomoriginatedfromtheGreatLakesregion.TheoverwhelmingmajorityofthemareBurundians(69%)(Roos,2005).45

According to the UNHCR, over 800,000refugees reside in Tanzania,withBurundian andCongolese refugees comprising the majority.Additionally, the current instability in Burundihas increased the number of individuals seekingrefuge in the country. As of 24 May 2015,international aid organizations have estimatedthatanywherebetween47,000and70,000newBurundian refugees have arrived in Tanzaniasince the inception of the recent political crisisinthecountry.Tanzaniahasonlyonepermanentrefugee camp – known as Nyarugusu–and withmoreBurundiansenteringeachday, thecamp isestimatedtobeat200%ofitsoriginalcapacity.46

Tanzania hosts currently a large number ofrefugees, of this number, some 409,419 areassistedby theUNHCR ineleven camps,mainlyinnorthwesternTanzania–250,961arerefugeesfromBurundi,153,568arefromtheDRC,2,867areSomalis,183areRwandeseand1,840areofmixedorigin.About200,000refugeesresideintheself-supportingsettlementsinRukwaandTaboraregions.47Additionally,thegovernmentestimatesthat there are200,000 refugeeswithout officialstatusinTanzania,themajorityofwhoarebelievedto have spontaneously settled in Tanzanianvillages. One estimate suggests that there are20,000 refugees living clandestinely in urbanareas.RefugeesfromBurundiarepredominantlyHutu.Currently,theUNHCRisfacilitatingreturnto all but four provinces of Burundi, namelyBururi, Bujumbura Rural, Bubanza and Cibitoke, which are too insecure.48 Manyof the153,000CongoleserefugeesinTanzaniaarefromtheKivuProvinces.49

KEY REFUGEE DATA

45 Available at http://urban-refugees.org/dar-es-salaam/46 Available at http://reliefweb.int/report/united-republic-tanzania/state-freedom-movement-refugees-tanzania-overview47 Available at http://www.unhcr.org/uk/474ac8c90.pdf48 Ibid.49 DR of Congo: UN reports big increase in refugee returns from Tanzania.

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Theseareasremainhighlyinsecureand,therefore,facilitated repatriation of Congolese refugeesis not being contemplated at this moment. TheSomalirefugeesinTanzaniaarepartoftheBantuSomalis, many of whom trace their origins toTanga Region in Tanzania. In early 2003, theserefugees were allowed by the Government ofTanzania to settle in Chogo, a settlementwithinTangaRegion.50

Bymid-2004, theUNHCRwasmaking progressin assisting the refugees with their applicationsfor citizenship despite the fact that some ofthe refugees were still determined to return toSomalia, while others were more attracted by

resettlement in the U.S. As noted earlier, thereare some800,000 refugees and asylum seekersin Tanzania. Of these, the 409,419 who residein official settlements assisted by the UNHCR,some 200,000 refugees in the self-supportingsettlementsinRukwaandTaboraandtherefugeeswho have been authorised to reside in urban areas have official status. By simple calculation, thismeans that nearly 200,000 refugees, or about25%,donothaveofficialstatus.Thesecompriserefugees who have spontaneously settled invillages. The UNHCR has a prominent presenceinrefugeecampsinTanzania,whichincludessub/field-offices in Kasulu, Kibondo, Kigoma, LugufuandNgara.51

50 The East African.51 Available at http://www.unhcr.org/429b19982.pdf52 Refugee politics in Tanzania: Receding receptivity and new approaches to asylum refugee politics, p. 15.53 Kamanga, 2005, p. 103.54 United Republic of Tanzania, 1965, p. 7.

In the period immediately following itsindependencein1961,Tanzaniaco-optedexistingBritishlawsonrefugeesandbecamesignatorytothe 1951RefugeeConvention in 1964. Tanzaniaalso had what was considered an ‘open-door’policy towards asylum seekers and freedomfightersalthoughawrittenaccountofthiswasnotformulated and never would.52 This stems fromthen-President Nyerere’s socialist moral beliefsand Pan-African vision that sought a unifiedAfrican state. The main tenets of the policyfocused on Nyerere’s policy of self-sufficiency:1) prima facie/group (as opposed to individual)determinationofstatus;2)generousallocationofland,localintegration;and3)theofferofen-massecitizenshipthroughnaturalisation.53 However, this policylackedaclearlegalframework.

Owing to colonial influences and structures,post-independence governments enacted theRefugees(Control)Actin1965withtheintentionof administering settlement in an organisedmanner.The law,however,wasproblematicas itdidnotdefinea ‘refugee’orprovide for ‘refugeeentitlements’. This Act (1965) introduced theconfinement of refugees to designated areas,thereby restricting their movement unlessgrantedpermission,withtheintentofcontrollingrefugee influxes and their negative implications.Government officials also exercised overzealouspowers to ensure that the camps were administered inanefficientandorderlymanner.54

LEGAL AND POLICY FRAMEWORK


In 1998 Tanzania enacted a new piece oflegislation,theNewRefugeesAct,whichreplacedolder laws and sought to conform with thecountry’s obligations pursuant to the signing oftheOAUConventionGoverningSpecificAspectsofRefugees’ProblemsinAfricaof1969(theOAUConvention).55 In addition to seeking conformitywith the country’s continental commitments, asecondary objective of the 1998 Act, Dr KhotiKamanga, of the University of Dar-es-Salaam,argues, was

“to signal disengagement from the open-door

policy of the [previous] Nyerere administration,

with a view to making Tanzania a less

attractive destination for asylum seekers, and

sending a deterrent message to authorities in

refugee-generating countries.”The government policy also encouragedrepatriation as the preferred solution, the newlegislation intensified restrictions on the rightsof refugees in the country and controls on themovementofencampedrefugeesincreased.AsDrLucyHovil,aseniorresearcherforIRRI,explains;

Although refugeeshad long requiredpermissiontoleavetheirsettlements,thesecontrolsbecamestricterovertime,andeventuallytheirmovementswere restricted to a four-kilometer radius fromthecenterofthecamps.56

The1998Actmakesno specificmentionof theright of freedom of movement for refugees.However, pursuant to sections 16 and 17,authoritieshavethepowertorestrictanyasylumseekeror refugee to residewithina “designatedarea”(DA)–aeuphemismforarefugeecamporsettlement.However,pertheUNHCR,“inpractice,allrefugeesare required to reside in camps or settlements.”Further,Tanzania’s2003NationalRefugeePolicy(2003Policy),whichisnotcodifiedlawbutframesthegeneraldirection thegovernment intends topursueinrefugeematters,affirmsinparagraph28that

“refugees will be hosted in designated areas

whereby the international community will be

obliged to provide material assistance”.57 Furthermore,thegovernmentalsoadvocatestheestablishment of ‘safe zones’ within the conflictcountries, to alleviate the burden of refugee-receiving countries.

55 Available at http://reliefweb.int/report/united-republic-tanzania/state-freedom-movement-refugees-tanzania-overview

56 Ibid.57 Ibid.

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RWANDA The Rwandan repealed refugee law stated thatany personwhono longer has a nationality andstaying outside the country of her/his formerhabitual residence and owing to a well-foundedfear of being persecuted for reasons as statedabovewasarefugee.Furthermore,“[a]nypersonwhoowingtoanexternalaggression,occupation,foreigndominationoreventsseriouslydisturbingpublicorderiscompelledtoleavehis/herplaceofhabitualresidencetoseekrefugeinanotherplaceoutsidehis/hercountryoforiginornationality.”58

Per the 2001 law, the national department incharge of refugees had a mandate to establisha National Refugee Council, whose role was tofollowupandexamineissuesofnotonlyforeignrefugeeswhosoughtasyluminRwandabutalsoof Rwandan refugees in the diaspora. What iscriticalisthatunderArticle4ofthe2001law,thecouncil was composed of a representative fromthePresident’sOffice,thePrimeMinister’sOffice,the Ministry of Refugee Affairs, the Ministryof Foreign Affairs, the Ministry of Security, theMinistry of Justice, the Ministry of Defenseand National Integrity, the Ministry of HumanResettlement and Environmental Protectionand, finally, theNationalCommissiononHumanRights. With regard to the process or procedure forobtainingrefugeestatusArticle12statedthat:

“any person who flees his/her own country for reasons mentioned must on arrival in Rwanda present himself/herself to the nearest local district/town authority and without prejudice to other legal provisions. The person must register himself/herself to the nearest immigration office within a period not exceeding fifteen (15) days of his/her arrival.” 59

In the process under Article 15, the NationalRefugee Council would then examine everyapplication submitted to it within a period notexceedingsixmonthsfromthetimeofnotification.Inthefollow-upArticle17,ifapersonapplyingforrefugee status is not satisfiedwith the decision

takenbytheNationalRefugeeCouncil,heorshemayfileacasewiththeHighCourtoftheRepublicwithin a period not exceeding 15 working daysstartingfromthedayofthedecision.

Animportantaspectofthe2001Rwandarefugeelawwas that the applicant had the right to stayin Rwanda during the period in which he or she filedthecase,untilthedaythecourtrendereditsirrevocable decision. The law gave refugees arighttoafairhearing,whichisnotthecasewiththelawsofothercountries.Intheeventthattheapplicantisdeniedrefugeestatus,he/sheisaskedto leavebuthas the right to stay inRwanda foran extra period not exceeding 60 working daysrenewableonlyonce,asstatedunderArticle20.

It is important to recognize that under the circumstances stated in Article 22, withoutprejudicetoexistinglaws,everyrefugeehadthesame rights and liberties as those recognized ininternational conventions. Among these rightsis the right tonon-discriminatory treatment; thefreedom of worship; the right to movable andimmovable assets; the right to copyright andpatentrights;therighttobepartofassociationsand political activities; the right to sue and tobe represented in courts of law; the right toemployment; the right to shelter; the right toassistance from the administration; the right offreemovement.Theserightsexistedforrefugeesunder the repealed law.

Thenewrefugeelawof2014domesticatescriticalprovisionsofinternationalrefugeelaw,reflectedinthe1951Convention,thatwerepreviouslyabsent,including provisions related to non-refoulement,cessation, exclusion, revocation, naturalization,family unity and references to socio-economicrights.Thenew lawalso clarifies the roleof thegovernmentconcerningtheinfluxofcombatantsand provides clear timelines with regard to theapplication process. According to the Ministryof Disaster Affairs and Refugee Management,Rwandacurrentlyhosts163,000refugees inthesix refugee camps and urban areas around thecountry,withthelargestcamp,Mahama,hosting51,000Burundianrefugees.

58 Rwanda: Law No. 13 ter/2014 of 21/05/2014 relating to refugees59 Procedure for attaining refugee status.


SOUTH SUDAN Following a power crisis that erupted in Juba in2013, South Sudan has spiraled into a national,politicalandethnicconflictthathasquicklyspreadacrossmanypartsof thecountryand led to thedeathofthousandsofwomen,childrenandmen.Since then, more than 4.7 million people havebeen forced toflee their homesowing tobrutalwar.Outofthese,1.9millionhavebeeninternallydisplaced in South Sudan and over a million have soughtsafetyinUganda.60

South Sudan is, therefore, a major source ofthe refugees hosted by the other EAC memberstates. For instance, as of July 2017more than70%of the refugee influx intoUgandahasbeenattributedtoSouthSudan.BetweenJanuaryandJune2017,Ugandareceivedmorethan300,000SouthSudanese refugeesandBidi-Bidi,now theworld’slargestrefugeesettlementishometoonlySouthSudaneserefugees.

BURUNDIMore than 99% of the refugees in the countryoriginatefromtheDRCbecauseoftheprotractedcivil and armed conflict there.61 Burundi is also oneofthemajorsourcesofrefugeesinEastAfricaand other countries.62

60 Available at https://www.oxfam.org/en/emergencies/crisis-south-sudan61 Available at http://www.unhcr.org/afr/burundi62 The Burundi situation.

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1) AU Refugee Convention: A Catalyst of Regional Policy Formulation

All members of the EAC are signatories to theAfrican Union Convention Governing SpecificAspects of Refugee Problems in Africa of 1969(the AU Refugee Convention) which notes withconcern “the constantly increasing numbersof refugees in Africa” and “the need for anessentially humanitarian approach towardssolving the problem of refugees”. South Sudanbecamethe46thcountrytohaveratifiedtheOAUConvention63 and some of the duties bestowedupon member states include the granting ofasylum, 64 the issuance of travel documents,65 providing the Secretariat with information andstatisticaldatarequestedconcerningtheconditionof refugees, and implementing the convention,laws, regulations and decrees that are in forcerelatingtorefugees.66

However,whiletheAURefugeeConventionwasenactedwith a purpose of setting standards forthetreatmentofrefugeesinrecipientcountries,itisnotaddressingitselftoeventsinthecountriesoforigin.67Atthetimetheconventionwassigned,manyAfricanstateswereenthusiasticandwillingtotakeinmanyrefugees.

ThisismainlyattributedtosolidaritywithAfricansfleeing conflict arising from the struggle againstcolonialism.Giventhatmanyoftherecentconflictsarehomegrown,refugeesarenotwelcomedwiththegustothatonceusedtoexist.68Africanstatesareincreasinglyfollowingtheleadofotherregionsbyclosingtheirbordersandthreateningtoforciblyreturn those who have made it into their territories, suchasinthecaseofKenyaandTanzania.Eveninthecountrieswhererefugeesarereadilyadmittedand where comprehensive policies are in place, the treatment does not always conform to theconvention.69

The commitment by state parties under theconventionmakesacompellingcasefortheneedfor the EAC to further articulate refugee issueswiththeaimofdevelopingconcrete, long-lastingstrategies. Despite the shortcomings, members of the EAC can carry the good intentions ofthe convention further by developing a morestreamlined regional policy that is in line withemerging refugee issues, e.g. the need tointerrogate the role of countries of origin, theemergingsecurityconcerns,asustainablesolutionto the management of refugees and issuesattributed to the increasing influxof refugees inthe region.

RATIONALE FOR REFUGEE POLICY AT THE EAST AFRICAN COMMUNITY (EAC) LEVEL

63 The instruments of accession were deposited at the African Union in Addis Ababa on 19 May 2016.64 Article II, OAU Refugee Convention.65 Article IV, OAU Refugee Convention.66 Article VII, OAU Refugee Convention.67 Okello, J.O.M.The 1969 OAU Convention and the Continuing Challenge for the African Union. Available athttp://www.

fmreview.org/faith/okello.html68 Ibid.69 Ibid.


2) The Need to Expand the Refugee Paradigm

Governments in the EAC view forced migrationmajorly through the prism of national security,as a cautionary measure, and several nationalpolicydecisionsarenearlydevoidofhumanitarianlanguage.An examplewas theplan to force themore than 70,000 Burundian refugees living inRwanda to seek shelter elsewhere, with Rwanda citingnationalsecurityreasons,70 and the decision bythegovernmentofKenyatoclosetheDadaabrefugee’s camp as a measure against increasedmilitia activity.71 Similarly, Tanzania has closedpolicyon refugees informedbynational securityarguments.

The root causes of forced migration should beinterrogated at regional level to elevate each country’s understanding of the refugee crisisbeyond the narrow national security prism.Expansion should encompass the economic,social and environmental concepts that have a proceeding impact of refugee incursions intothe EAC. Limiting solutions to containment andrestrictive laws is unlikely to reduce the massinfluxofrefugeesintoEastAfrica.72

Intermsofrefugeemanagement,theEACishometo hundreds of thousands of refugees owing totheregions’proximitytocentersofconflictwithinthe Great Lakes region and the Horn of Africa.In accordancewith Article 124 (4) and (5) (h) ofthetreaty,thepartnerstatesagreedtoestablishcommon mechanisms for the management ofrefugees. Inaddition,Article7(8)oftheProtocolon the Establishment of the East AfricanCommunity CommonMarket stipulates that themovement of refugees is to be governed by therelevantinternationalconventions.73

Under priority area 3, on the promotion ofregionalpeaceandsecuritystrategicintervention(h), it is stated that the strategic frameworkwillsupport the harmonization of IDP and refugeemanagementpracticesacrosstheregion.

In viewof the above,weexaminehow theEACis ceding refugee management in the region tointernationalconventions,although,accordingtothestrategicplan,thereisaplaninthepipelineforthedevelopmentoftheEACrefugeemanagementpolicyandactionplan.

70 Rwanda’s Way of Solving Its Refugee Problem? Kick Its Refugees Out. See http://foreignpolicy.com/2016/02/12/rwandas-way-of-solving-its-refugee-problem-kick-its-refugees-out/

71 Available at http://www.bbc.com/news/world-africa-3795334472 Supra, n. 1 at p. 34.73 Protocol on the Establishment of the East African Community Common Market.

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Uganda has been, and continues to be, afavoritedestinationforrefugees,standingatthegeographical centerof a region characterizedbyinstabilityandconflict.Thecountryhashadmanyissues that have led to an increase in the numbers ofrefugees.

Thecountrycontinuestopresentdifferentimagestotheworldonmattersofhandlingrefugeeswitha long standing history in managing refugees.74 Theonwardmovementofrefugeeschallengesthecountrymoreinitseffortstomanagetherefugeepopulation.Thismovement involvespeoplewhohavebeenrecognizedasrefugeesinacountryoffirstasylum,butwhohavemovedontoanotherstate to access better protection, solutions orimproved livelihoods. For instance, there isevidencetosuggestthatsomeoftheBurundians,Congolese,EritreansandRwandansmovingsouthare people leaving refugee camps to look forbetterprotectionandopportunitieselsewhere.75

The onward movement in Kenya from theDadaabandKakumacampsisforreasonssuchaspopulationpressures,limitedaccesstolivelihoodsand restrictions on freedom of movement.76 These reasons and many others make refugeeschoose to move on to where the environment is most favorable.Thismovementpresents severalprotection challenges as it is recognised thatrefugees cannot be returned to their country oforiginandmustbeprotectedagainstrefoulement.Moreover,states in theregiongenerally lackthecapacity to identify and return refugees whoare engaged in onward movement while, also, countriesoffirstasylumareunwillingtore-admitrefugeeswhohavelefttheirterritory.77

ONWARD MOVEMENT OF REFUGEES

74 Available at http://refugeelawproject.org/files/working_papers/RLP.WP01.pdf)75 In harm’s way: the irregular movement of migrants to Southern Africa from the Horn and Great Lakes regions76 A Long and Winding Road. Background Paper (September 2010) Regional Conference on Refugee Protection and

International Migration: Mixed Movements and Irregular Migration from the East and Horn of Africa and Great Lakes Region to Southern Africa -United Nations High Commissioner for Refugees and International Organisation for Migration.

77 UNHCR: A Long and Winding Road.


Feasibility of a Refugee Policy at EAC Level

According to the Universal Periodic Review ofRwanda,78 the UNHCR recognised the lack ofpolicy coordination in the EAC. The followingis an extract of the submission on the issue;and there are notable differences in asylumprocedures, policy, and strategies within theEAC. InMarch 2010, the Representative of theUNHCR to Tanzania, Mr Oluseyi Bajulaiye, andthe Secretary-General of the EAC, AmbassadorJumaVolterMwapachu,signedaMemorandumofUnderstanding inDar-es-Salaam.Thisagreementaimed to establish a framework for cooperationbetween the EAC and the UNHCR in areas ofcommon concern, including the protection offorcibly displaced people, regulatory regimesaffecting themovement of persons, immigrationandrefugeemanagement.79

It was declared that central to the partnership wouldbethepromotionoftherightsofrefugeesand internally displaced people, includingstrengthening of national legislation. The twoorganizationswould also join efforts to enhancetheir response to the increasingly complexmigratory movements of people within andthrough the sub-region, which include peoplefleeing conflict. Additionally, the promotion ofhumanrights,peace-building,anddevelopingearlywarningsystemswouldalso featureprominentlyamongthejointactivities.

However, the member states have not been convening and have not demonstrated tangible efforts to harmonize their asylum policies witha view to protecting the rights of persons ofconcern. Among other serious incidents, where the respectofdueprocesswasproblematicandthattookplaceinEACcountries,in2013Tanzaniaexpelledover14,000Rwandanaswellas15,000Burundiannationals.

Furthermore, up until now, the right of freemovement between the members of the EACis not recognized for refugees residing in themember states. This rightwould create valuablelivelihoodopportunitiesforprotractedrefugees.

Whereas the 1951 Refugee Convention doesnot force a state to admit a refugee, it is clearthat there is a gap here between the individual’s righttoseekasylumandthestate’sdiscretion inproviding it. Because of this ambiguous state ofaffairs, governments’practice ingrantingasylumvaries widely, in terms of both the proceduretheyuse for determining refugee status and theactual legislation that is applied. It is, therefore,fundamental that the policy should lay out apositiononwhatprocess asylum seekers shouldundertake,i.e.theprocessofapplyingorrefugeestatus that does not undermine the individual rightsoftheasylumseekers.

The practical realization of a regional refugeepolicyislikelytobemetbymajorchallenges,suchas a notable lack of reliable data on migrationflows in the region and many knowledge gaps.Therefore, afirst step for a regional strategyonmigrationandmobilitymightbethedevelopmentof strong migration information systems andnationalmigrationprofiles,asabasisforevidence-basedpolicyformulation.

Elsewhere on the continent, positive stepshave been taken by other regional economiccommunities. A case in point is the EconomicCommunityofWestAfricanStates(ECOWAS)thathasdeveloped theECOWASCommonApproachon Migration. The member states recognizesix principles to maximize the developmentalpotentialofmigrationandmobilityintheregion:80

1) Free movement of persons within theECOWAS zone is one of the fundamentalpriorities of the integration policy ofECOWASmemberstates.

RECOMMENDATIONS

78 As of March 2015. See http://www.refworld.org/pdfid/56371c604.pdf p. 8.79 East African Community Secretariat, Arusha, Tanzania, 22 March 2017.80 ECOWAS Common Approach on Migration.

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2) Legal migration towards other regions oftheworld contributes to ECOWASmemberstates’ development.

3) Combating human trafficking and

humanitarian assistancearemoralimperativesofECOWASmemberstates.

4)Harmonizingpolicies.

5)Protectionof therightsofmigrants,asylumseekersandrefugees.

6) Recognizing the gender dimension ofmigrationpolicies.

TheCommonApproachonMigrationgoesaheadto define action plans under each principle.On the protection of the rights of migrants,asylumseekersandrefugees, thememberstatesundertaketoputinplacemechanismsforgrantingrightsofresidenceandestablishmenttorefugeesfromECOWAScountries.

A TRANSITION FROM RELIEF TO DEVELOPMENT

Self-reliant integration has allowed cultivationtoproduce foodandgenerate income toenablerefugees to become more self-reliant. However,thisapproachhasbeencriticizedforconcentratingalmost entirely on the integration of serviceprovision and not broader economic and social integration.

Landhasbeenmadeavailablefortherefugeestouse,butasadversity ispredominant in the ruralareaswheremanyofthesettlementsarelocated,inadequate resources and infrastructure haveseriouslyunderminedsuchattempts.

Self-reliance strategies (SRS) will be introducedto avoid the establishmentof parallel structuresand foster the capacity of refugees to sustain

them. This aims to integrate refugee serviceswithin district development plans basing on the recognition that refugees and local communitiesshare services.

Theaspectofself-relianceasastrategyhasgonesomeway to integrate the services provided torefugeesandthelocalhostpopulationtoreduceaid dependency. The implementation of thestrategyhasbeenconstrainedbylackofresourcesandproblemsofinsecurity.Owingtoinadequateresourcefundingtotheproliferatingprogrammesfor refugees, many refugees continue to live inharsh conditions, with inadequate facilities forschooling, health and other basic humanitarian needs.


NEXT GENERATION REFUGEES Incontrast, forrefugeeswhoarrive intheirhostcountryaschildrenoraschildrenofimmigrantsorwhoareborninthehostcountry,schoolinginthehostcountryisanimportantdeterminantoftheirchildhood development and labor performancein the future. As economic growth is a centralaspect in most growing nations, an educatedcritical mass will be beneficial to both refugeesandhostcountries.Therefore,policiesthatensurecomprehensive access to educationprogrammeswillenablethedevelopmentofaproductivelaborforce. Furthermore, in the case of the refugees

whoarriveintheirhostcountryasadults,whohavecompleteddifferentlevelsofformaleducationintheirhomecountry,orwhowereengagedinanyskilled labor, thepresenceof restrictivemobilitypolicieswillonlybeahindrancetotheeconomicgrowthofthehostcountries.Itisthusimportantto have a policy that reflects the long-termtertiaryorvocationaleducationforrefugees.Thepolicyshouldconsidertheexistingskillsets.Hostcountries can capitalise on and develop these individuals’capabilitiesbyinitiatingthemintothelabourmarket,therebycreatinghumancapital.

INTEGRATION AS A VIABLE OPTION: BETTER TO BE PART THAN TO BE APARTThe integration of refugees is determined byhowcommunitiescanunderstandthechallengesand be part of the solution. The reality ofrefugee life is that migration brings with it theaspect of multiculturalism, which is all aboutthe need for recognition and the celebrationof different cultures in a society. The nature ofthis multiculturalism varies from one countryto another. Culture involves beliefs, values andnorms that determine the behavior acquiredduringsocializationbyacertaingroupofpeople.

The process should be able to build on inter-culturalism, which would essentially be aboutpromoting interactionbetween themajority andtheminoritycultures,thusfosteringunderstanding.Thiswouldplayaroleinfosteringrespectforthedifferentcultureswithintherefugeesituationandthehostcommunitiesbecauseculturedefinesouridentity.

Thelong-termprospectsforinterculturallearningcould sustainably hinge on the freedom tointermarry, in the process advancing the role ofhostcommunities.

A comprehensive training package using online trainingprogrammesforstudentsandcommunityoutreach consisting of several modules usedtogether, as well as discussing the protectionof and assistance to refugees guaranteed byinternational law, will be important. With thecrisis becoming complex, higher institutions oflearning should start refugee studies as part oftheir curriculum.

The New York Declaration for Refugees andMigrants81 expresses the political will of worldleaders to save lives protect rights and share responsibility on a global scale. At the summit,the long-term expectation from the landmarkdeclaration would be that world leaders’

81 New York Declaration for Refugees and Migrants.

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commitment to the implementation as regardstorefugees,migrantsandthosewhoassisttheminthehostcommunitieswouldresultinbenefits.TheNewYorkDeclarationalsocontainsconcreteplansforbuildingonthese,especiallywithregardtorefugeemanagementandresourcedistribution.

TheNewYorkDeclarationcontainscommitmentsto address the issues the world is faced withnowwhilepreparingforfuturechallenges.Thesecommitmentsinclude:I. Protectingthehumanrightsofallrefugeesand migrants, regardless of status. Thisincludestherightsofwomenandgirlsandpromoting their full, equal andmeaningfulparticipationinfindingsolutions.

II. Ensuring that all refugees and migrant children are receiving education withina few months of their arrival in the hostcountry.

III. Preventing and responding to sexual andgender-basedviolence.

IV. Supporting those countries rescuing, receiving, and hosting large numbers ofrefugeesandmigrants.

V. Working towards ending the practice ofdetaining and hosting large numbers ofrefugeesandmigrants.

VI. Strongly condemning xenophobia againstrefugees and migrants, and supporting aglobal campaign to counter it.

VII. Strengthening the positive contributionsmade by migrants to economic and socialdevelopment in their host countries.

VIII. Implementing a comprehensive refugeeresponse, basedon anew framework thatsets out the responsibility of memberstates, civil society partners and the UNsystem,wheneverthereislargemovementofrefugeesoraprotractedsituation.

IX.FindingnewhomesforallrefugeesidentifiedbytheUNHCRasneedingresettlement,andexpanding the opportunities for refugeesto relocate to other countries through, for example, labor mobility or educationschemes.

X. Strengthening the global governance ofmigration by bringing the InternationalOrganization for Migration (IOM) into theUNsystem.

Insupportoftheaboveissues,itisimportantthatthecurrent trendof increasing refugeenumbersbetakencareofundertheNewYorkDeclarationforRefugeesandMigrants.Thecommitmentgoesfurthertosupportcountriesrescuing,receivingandhosting largenumbersof refugeesandmigrants.Thiswillimprovethedeliveryofhumanitariananddevelopment assistance to those countries most affected,includingsupportingthroughinnovativemultilateralfinancialsolutionstheunderstandingthat largenumbersofmigrants comewith costsfor theeconomyof thehost countries, and thatthereis,therefore,needtocloseallfundinggaps.

The declaration reflects the will to move on toa comprehensive refugee response, based on anew framework that sets out the responsibilityofmember states, civil society partners and theUNsystem,wheneverthereislargemovementofrefugeesoraprotractedrefugeesituation.


ANNEX IUganda has ratified the following international legislation relevant to mixed migration and protection of human rights of migrants and refugees:

• 1951 Convention relating to the Status of Refugees and the 1967 Protocol

• 1969 International Convention on the Elimination of All Forms of Racial Discrimination

• 1976 International Covenant on Civil and Political Rights

• 1976 Optional Protocol to the International Covenant on Civil and Political Rights

• 1976 International Covenant on Economic, Social and Cultural Rights

• 1981 Convention on the Elimination of All Forms of Discrimination against Women

• 1987 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

• 1990 Convention on the Rights of the Child

• 2002 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in

armed conflict

• 2002 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child

prostitution and child pornography

• 2003 International Convention on the Protection of the Rights of All Migrant Workers and Members of

their Families

• 2003 United Nations Convention against Transnational Organized Crime

• 2003 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,

supplementing the United Nations Convention against Transnational Organized Crime (signed but not yet

ratified)

• 2004 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations

Convention against Transnational Organized Crime (signed but not yet ratified)

• 2006 Pact on Security, Stability and Development in the Great Lakes Region, including its protocols on

IDPs and the property rights of returnees

• 2008 Convention on the Rights of Persons with Disabilities

• 2008 Optional Protocol to the Convention on the Rights of Persons with Disabilities

• 2010 International Convention for the Protection of all Persons from Enforced Disappearance (signed but

not yet ratified)

• 2012 AU Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala

Convention)

36

ANNEX IIThe following are refugee related legal frameworks adopted in Uganda

• Aliens (Registration and Control Act) 1985

• Adoption of Children Rules, 1997 (No. 52 of 1997)

• Children Act, 1997 (Cap. 59)

• The National Policy for Internally Displaced Persons, 2004

• Employment (Recruitment of Ugandan Migrant Workers Abroad) Regulations, 2005 (2005 No. 62)

• The Uganda Citizenship and Immigration Control Act

• Refugees Act 2006 (Act No. 21 of 2006)

• Equal Opportunities Act, 2007

• Prevention of Trafficking in Persons Act, 2009

• Refugee Regulations, 2010

• Employment (Employment of Children) Regulations, 2012 (S.I. 2012 No. 17)

• Prevention and Prohibition of Torture Act, 2012 (No. 3 of 2012)

i ibid

38

Konrad-Adenauer-StiftungUgandaOffice

51A,PrinceCharlesDrive,KololoP.O.Box647Kampala,Uganda.

T:+256-393-262011/2E:[email protected]/uganda/en

/[email protected]/uganda/en/


Cover Page Photo Credit: James Akena/Reuters

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