33rd ORDINARY SESSION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS

NIAMEY, NIGER, 15-29 MAY 2003

INTERVENTION by MR. ILUNGA NGANDU
UNHCR Regional Liaison Representative
Regional Liaison Office for Africa, Addis Ababa

Mr. Chairman,
Commissioners,
Ladies and Gentlemen,

I would like first of all, on behalf of Mr. Ruud Lubbers, UN High Commissioner for Refugees, to thank the Commission for having invited UNHCR to participate in this important meeting, and for ensuring the inclusion of refugees on the agenda.

I. Challenges posed by the problems of refugees and gaps in their protection:

Mr. Chairman,

1.1. The challenges which exist in the promotion and protection of the rights of refugees and other forcibly displaced populations are numerous.

Available statistics for the beginning of 2003 put the refugee population in Africa at approximately 3.3 million. While these figures represent a decline from 3.9 million at the beginning of the previous year, and a decline from 6 million over the previous decade ago, much remains to be done to resolve the problem of refugees and to find durable solutions to their problems.

1.2. It is widely acknowledged that refugees and internally displaced persons are a direct consequence of the actual or threatened abuse of rights. Such abuses are further exacerbated by conflicts. It thus stands to reason that a truly durable solution to the problems of these groups, will only be achieved if respect for human rights is restored in their country of origin. It can also be concluded that new refugee outflows may only be prevented if a culture of peace and respect for fundamental rights can take root. Despite the decline in the number of refugees therefore, the figure of 3.3 million, combined with the alarming figure of some 12.5 million internally displaced persons, clearly indicates that respect for human rights by states is far from being the norm.

1.3. At the continental and regional levels, efforts by the African Union, in conjunction with other African institutions and Member States to resolve the continent’s many conflicts show mixed results. While some peace initiatives reflect a marked improvement in the prospects for durable solutions for certain groups of refugees and internally displaced persons, elsewhere, many old conflicts persist and new ones erupt.

1.4. At the national level, and pending durable solutions, primary responsibility for the protection of refugees and asylum seekers rests with States Parties to the 1951 UN Convention on Refugees, the 1967 Protocol and the 1969 OAU Convention on Refugees. While Africa is unique in having a regional instrument for the protection of refugees, the situation on the continent is far from satisfactory.

1.5. Of the 47 AU Member States which have ratified the 1969 Convention, only 28 have enacted legislation to give effect at the national level to the international obligations they have undertaken. In many instances, the legislation enacted falls short of the standards laid down in the international instruments. Some laws are formulated and applied as instruments of control, focusing on the obligations of refugees, while remaining silent on their civil, social and economic rights, or severely curtailing these rights.

1.6. Furthermore, only twenty six of the 28 States Parties which have enacted legislation, have institutionalized the requisite procedures for determining the eligibility for refugee status of those persons seeking asylum. A further 5 States Parties which have not yet enacted legislation have nevertheless established ad hoc eligibility procedures. However, of the thirty-one eligibility procedures in existence, only ten are functional. The result is that asylum seekers are subjected to prolonged delays in the determination of their status. They exist in a state of limbo, without identity documents, without the protection of their host government, and frequently subjected to harassment and/or arbitrary detention by law enforcement officials.

II. Strategies for enhancing the promotion and protection of the rights of refugees and other persons of concern in Africa

2.1. Over recent years and in co-operation with the African Union and its Member States, UNHCR has launched a number of initiatives aimed at enhancing its own capacity and that of States Parties, to more effectively provide international protection to refugees and others of concern. The Organisation is conscious of the fact that developments at the international level since the end of the Cold War have greatly influenced the context in which it functions. Some of the more significant of these developments include:

· The changing effects of conflict and the rise of terrorism,
· Tension between sovereignty, national security and humanitarian responsibilities
· Increasingly complex donor fatigue in relation to protracted refugee situations, and
· Mixed flows of refugees, economic migrants and armed elements.

2.2. All of these underscore the complexity of the environment in which UNHCR and its partners must operate and therefore the need to define new approaches in order to respond adequately. The role of each African Member State is essential if much progress is to be achieved.

The Global Consultations

2.3. One of the most important initiatives has been the Global Consultations. Launched in the latter part of 2000, this broad-ranging dialogue on refugee protection has resulted in a jointly owned ‘Agenda for Protection’. The Agenda consists of two parts: a Declaration adopted by the concluding Ministerial Meeting of States Parties to the 1951 Convention - which included a significant number of African States - reaffirming the validity of the Convention and pledging to meet their obligations under the treaty

2.4. The second part of the Agenda for Protection is a Programme of Action
which identifies six inter-related goals. UNHCR’s Africa Bureau has identified a number of these which it considers to be particularly relevant to refugee situations in Africa. Among them:

-the promotion of local capacity building for host Governments and national NGOs.

2.5. To address gaps identified in the national protection of refugees,
UNHCR will:

· redouble its efforts to train and sensitize government officials at every level and in all concerned departments,

· In the area of outdated or “control oriented” legislation, UNHCR will continue to provide technical assistance to States Parties to give effect to more “protection oriented” legislation and to advocate for the withdrawal of reservations to refugee instruments at the time of accession.

-addressing security-related concerns more effectively to preserve the civilian character of refugee camps

2.6. The 1969 OAU Convention acknowledges that the refugee problem raises both humanitarian as well as security concerns, in that the presence of refugees may impinge upon sound international relations if they are infiltrated by armed elements pursuing a political agenda which is incompatible with the civilian and humanitarian character of asylum.

2.7. Respect for the civilian and humanitarian character of asylum is not only a prerequisite for effective refugee protection, but also of paramount importance to ensure the security of humanitarian workers and their ability to effectively carry out the mandate entrusted to them by the international community.

UNHCR will therefore also redouble its efforts to promote better adherence to this crucial principle by all actors and, in this context, is planning to organize a conference in West Africa with countries where former combatants have been successfully interned in separate facilities. This conference will promote the exchange of experiences and the identification of best practices which could encourage other countries facing similar problems to adopt this approach;

-combating sexual and gender-based violence and exploitation (SGBV)

2.8. During the past year, the question of SGBV and sexual exploitation
came dramatically to the fore, and UNHCR programmes in many African countries are particularly vulnerable to such problems. A series of measures have already been put in place in a number of countries to address the problem of SGBV and the Organisation is continuing to take action. However, the support of Member States and civil society is crucial.

UNHCR has also made the adoption and implementation of a Code of
Conduct for all its staff and those of its partners a top priority.

-engaging civil society in refugee protection

2.9. Local capacity building in the face of dwindling UNHCR resources and limited government capacity is crucial. Given that a vibrant civil society is growing in many African countries, this offers an opportunity to try and build local capacity by reaching out to civil society and harnessing its energies to further the cause of refugees.

-Promotion of durable solutions/repatriation through support to peace processes and the inclusion of humanitarian issues in peace agreements

2.10. Ultimately, the best protection for refugees and other displaced persons lies in the full restitution of their citizenship and other fundamental rights through voluntary repatriation in safety and dignity once peace and security have been restored in their home countries. For these reasons, UNHCR strongly supports the efforts of the African Union and its Member States in advancing peace processes on the continent as a means of ensuring durable and sustainable solutions to the plight of refugees, returnees, internally displaced persons and former combatants.

The Comprehensive Implementation Plan (CIP)

2.11. Another important initiative was the Special OAU/UNHCR Meeting of Government and Non-Government Technical Experts held in Conakry, Guinea, in March 2000 in commemoration of the 30th anniversary of the 1969 OAU Refugee Convention. Faced with the many challenges to the effective implementation of the 1969 OAU Convention and the provision of international protection and humanitarian assistance to refugees in Africa, the OAU and UNHCR agreed that the most appropriate commemoration would be this conference to formulate concrete proposals to help strengthen and enhance implementation of the 1969 OAU Convention and also facilitate the search for effective and durable solutions.

2.12. The Conakry meeting adopted a 25 point Action Plan known as ‘the Comprehensive Implementation Plan’ (CIP). For the period 2003-2004, a number of priority areas for action have been identified and are to be implemented in close collaboration with the African Union and its Specialized Agency, the African Commission on Human and Peoples’ Rights (ACHPR).

III. Co-operation with the African Commission on Human and Peoples’ Rights (ACHPR)

3.1. One of the most important initiatives to address some of the challenges outlined above, Mr. Chairman, has been our closer collaboration with the African Union and, more specifically, with your Commission, as mandated by the Conakry Meeting, mentioned above.

In this context, the Consultative Meeting between our two institutions which took place on 20 and 21 March 2003 in Addis Ababa, adopted a draft Memorandum of Understanding (MOU) which outlines a number of specific areas of co-operation. The underlying objective of the MOU is to strengthen co-operation between your Commission and UNHCR, with the aim of more effectively promoting and protecting the human rights of refugees, asylum seekers, returnees and other persons of concern under our respective mandates.

Recommendations to the African Commission on Human and People’s Rights

Mr. Chairman,

3.2. One of the major constraints to the effective protection of refugees, returnees, asylum seekers and other persons of concern, is the lack of a supervisory mechanism under the 1951 UN Convention and the 1969 OAU Convention. In the absence of such mechanism, monitoring of compliance by States Parties with their international obligations is diffuse and difficult. Contrary to the practice under many human rights treaties, States Parties to the 1951 UN and the 1969 OAU Conventions are not even required to produce periodic reports detailing the measures they have taken to give effect to the provisions of these Conventions.

3.3. It is with a view to remedying these deficiencies that the Office of the UNHCR welcomes the prospect of the adoption and signing of the draft Memorandum of Understanding (MOU) by the full Commission.

3.3. UNHCR is also optimistic that your Commission will give further concrete expression to its commitment to the protection of refugees, returnees, asylum seekers and other persons of concern under our respective mandates, through the adoption of the important Conclusions and Recommendations of our Consultative Meeting and through the adoption of a Protocol for the operationalization of the MOU and the Recommendations.