Bahame Tom Mukirya Nyanduga, commissioner responsible for upholding the African Charter on Human and Peoples’ rights talks to Hakima Abbas about Africa’s commitment to protecting refugees and his belief that democratic states that tolerate diversity do not experience the conflict that generates the displacement of their citizens.

Hakima Abbas (HA): Please would you give us a brief overview of the situation of refugees and displaced people in Africa?

Bahame Tom Mukirya Nyanduga (BTMN): The situation of refugees and displaced people in Africa by and large reflects the political, economic and historical landscape of the continent. Over the last five decades many African countries have experienced instability of one kind or the other.

There are those countries which attained independence through the armed struggle. Their citizens were displaced because of colonial and racist repression and in the wars of liberation that followed. Then there are those countries which experienced military and one-party rule, which invariably suppressed civil and political rights. Opposition politicians and sections of society which expressed opposition to undemocratic rule, such as student movements, trade unionists and the general population, were subject to gross human rights violations.

For a better part of the period from the early 1960s until today, the continent has experienced civil wars based on ideological, ethnic or religious differences. The 1994 genocide in Rwanda marked the worst form of violation of human rights, the intended purpose being the extermination of the Tutsi ethnic minority. We are currently experiencing conflicts in the Darfur region of Sudan, Somalia, Central Africa Republic, Chad, and the north-east part of the DRC, causing serious human rights violations. All these conflicts have created refugees and internally displaced people (IDPs).

We cannot lose sight of the factors responsible for these situations. In fact, they should be lessons on how best to avoid conflict and therefore reduce displacement. The refugee population in Africa has gone down drastically in recent years, because many conflicts have been resolved and the respective states have adopted democratic reforms and democratic constitutions and have held successful elections. I can mention Liberia, Sierra Leone, Burundi and the DRC as examples, although there are still pockets of conflict in the DRC. The displacement of people in Northern Uganda is less of a problem now because of the peace talks between the government of Uganda and the Lord’s Resistance Army rebels. The security situation in Northern Uganda has improved so much that the government is closing some of the camps that it had established and displaced people are going back to their villages.

The same cannot be said for those countries where conflicts continue and where the numbers of IDPs continue to rise. Africa, the poorest continent of all, has the distinction of hosting the largest number of IDPs in the world, estimated at about 13 million people, or more than half the global total of 25 million people.

I must stress that these figures represent the majority of people who are displaced by conflict. There are other causes of displacement in Africa which happen regularly, such as development projects and natural disasters. Those displaced by conflict or natural disasters invariably receive humanitarian assistance, whereas those displaced by development projects receive little compensation even though their livelihoods are destroyed for good. It is high time that our governments adopted positive measures to assist all victims of displacement in order to restore their dignity and sustain development and stability.

HA: What mechanisms are in place to guarantee the rights of refugees and displaced people in Africa? Why is there a need for a regional mechanism? Are the international systems not sufficient?

BTMN: The African regional mechanism for guaranteeing the rights of refugees and IDPs is found in basic regional legal instruments and institutions. The constitutive act of the African Union reiterates the need to promote and protect respect for human rights and condemns all forms of action likely to lead to violations of human rights, such as unconstitutional access to power. The African Union has established institutions such as the African Human Rights Commission [the commission, hereafter], the African Human Rights Court, and the Peace and Security Council, all of which have mandates to protect human rights in Africa.

Speaking of refugees, we must first of all recognise the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. This was the foremost instrument which localised international refugee law in African realities. The convention was adopted at a time when Africa was experiencing the fight against colonial and racist regimes and the first wave of ethnic conflict, the two major causes of refugee outflows at that time. It expanded the definition of a refugee in Africa to include a person fleeing from external and colonial occupation and domination. It included causes other than those defined by the 1951 Geneva Convention. In other words, and in answer to the question, the regional system was established in response to particular problems and characteristics of Africa.

But secondly, and more importantly, the regional instruments do not substitute for the international system. They operate in tandem. The 1969 convention states that it complements the 1951 convention and recognises the importance of international cooperation in dealing with African refugee problems. The African Charter on Human and People’s Rights [the charter, hereafter] states specifically that it draws inspiration from international instruments.

It is in this context that the UNHCR, the United Nations agency responsible for refugees worldwide, has worked closely with affected African states to respond to refugee situations. The African Union (and the OAU before it) also works closely with the UNHCR. Through its executive council and commission (formerly the OAU Secretariat), it has established an institutional and policy framework to ensure that refugee issues are given an appropriate response.

The African Charter on Human and Peoples’ Rights established the right to seek and receive asylum, which may be enjoyed by any individual who is persecuted. It also recognises the right to return to one’s own country. The charter established the African Commission on Human and People’s Rights, which receives complaints against states and makes determination on violations of the charter, including where refugee rights are concerned. The idea of establishing these mechanisms is to develop a culture of respect and protection for all human rights, including the rights of refugees and displaced people.

The commission established the special rapporteur mechanism for refugees and IDPs in order to highlight their plight on a continuous basis and sensitise governments about the need to find durable solutions to these problems. The rights of African refugees are also recognised in other regional instruments, such as the Protocol on the Rights of Women, and the Charter on the Rights and Welfare of the Child in Africa.

As far as IDPs are concerned, I must emphasise that the responsibility to protect them rests squarely on the state of which they are citizens. IDPs are citizens who remain on a state’s territory when they flee a part of the country which is affected by conflict, natural disaster or a development project. Every state has a responsibility under international law to protect its citizens. This responsibility does not cease when a person is displaced from their village or town. It is the duty of a state to continue to ensure the human dignity, physical security and integrity of IDPs. International humanitarian assistance, as and when it is necessary, will continue to be provided to ameliorate the living conditions of IDPs during their displacement. However, this does not relieve the state of its primary responsibility to protect and assist them, and to ensure that they are safe and can return to their habitual places of residence or are resettled once the conditions which forced them into displacement improve.

In order to entrench the rights of refugees and displaced people there must be wider dissemination of information about all these instruments, because at the root of the problem is a lack of respect for the rights of these people at the community or national level.

HA: Where is the intersection and divergence between refugee law and human rights law in Africa?

BTMN: Intersection and divergence between refugee law and human rights law is not a peculiarly African issue. The analysis I have set out above is not a distinction between refugee law and human rights law. Nor am I suggesting that Africa treats these cases differently. If anything, one must speak of intersection rather than divergence. Africa recognises that refugee law is part of human rights law. The African refugee experience introduced certain concepts which until 1969 were not known to international refugee law. This was a result of historical and political conditions peculiar to Africa, which I explained earlier, as well as the conditions in which African refugees lived. These were experiences unknown at the time the international 1951 convention was drawn up.

The restatement of a number of legal principles in the 1969 convention – such as that asylum is a humanitarian act and shall not be considered an unfriendly act, that refugee camps shall be located at a reasonable distance from the border of the home state, and that refugee involvement in subversive activities is expressly prohibited – reflected very particular African situations and concerns, where armed conflicts and civil wars were conducted by liberation movements and groups from territories in states neighbouring the home countries. The legal principles and practices which have evolved through the African refugee experience, such as the principles of voluntary repatriation and those mentioned earlier, now form part of the core principles of international refugee law.

HA: What are the challenges in guaranteeing the rights of refugees and displaced people in Africa?

BTMN: In my view, the first major challenge is intolerance of diversity and inattention to the plight of the victims. African states that recognise diversity of opinion, nationality and ethnicity do not experience the same problems as those that are preoccupied by ethnicity or eschew political pluralism. Without a proper sense of nationhood, these problems will continue to occur. African states which have embraced democratic reforms and accountable forms of political and economic governance, and recognised racial and ethnic diversity as well as plurality of political views, do not experience conflicts caused by political or economic mismanagement, nor the refugee and internally displaced situations that follow.

The second challenge is the level of poverty in all African states, and the inadequate social and economic provisions within society that this entails. This may lead to the marginalisation of some sections of the population which in desperation become involved in conflict, hence creating refugees and IDPs. Lack of resources can also lead to a failure to provide for refugees’ basic needs in the countries of asylum.

The third challenge is a lack of knowledge on the part of refugees, IDPs, and the general population about their basic legal rights, such that they cannot advocate or demand them when they become refugees and IDPs.

HA: What is your role and mandate as Special Rapporteur on Refugees and IDPs in Africa?

BTMN: My mandate is outlined in a resolution adopted by the commission in December 2004 during its 36th session held in Dakar, Senegal. It requires me to study and highlight the plight of refugees, asylum seekers, internally displaced people and migrants in Africa, to engage African states and governments, the African Union and the international community, and consider strategies to reduce these problems by making recommendations through the commission. It involves work with different stakeholders, as stated above, including civil society and national human rights institutions, to address and focus attention on these problems in order to try and find lasting solutions to them.

My role is therefore one of facilitator, helping bring the human rights issues and problems encountered by these specific groups of African people to the attention of their governments and the African Union. The role of special rapporteurs is very flexible. It enables them to respond to any of the aforesaid situations depending on the access they are accorded by the organisation and states responsible, with whom they must interact in order to promote awareness about the problems facing these groups and to protect their rights.

HA: How do you feel that your role as special rapporteur, and the work of the African Commission on Human and People’s Rights more broadly, has affected the situation of refugees and displaced people in Africa?

BTMN: It is not for me to assess my role as special rapporteur. This I will leave to other observers. In any case it was one of the later mechanisms established by the commission, in 2004, unlike others which had been established a number of years earlier. I am the first person to hold it, so there was no experience to learn from. However, let me say that I feel that I have contributed, to a certain extent, to bringing visibility to human rights and to the issues facing refugees, IDPs and migrants in particular. My role has made it possible for these issues to be discussed at every commission session, since my reports are a regular part of the agenda.

In terms of the role and impact of the commission, it has made a number of decisions concerning complaints submitted on behalf of refugees, one of them concerning the mass refugee expulsion from Rwanda in the early 1990s. The commission found that Rwanda had violated the African Charter on Human and People’s Rights in expelling Burundian refugees. More recently it found Guinea in violation of rights in a complaint brought on behalf of refugees from Sierra Leone. The commission recommended that the two states find a solution to these violations.

The commission’s reports of activities are submitted to the AU summit every six months, which means that all states parties to the charter closely follow the activities of the special rapporteur and of the commission in general. I am confident therefore that, through our work, all our stakeholders recognise that much still needs to be done in protecting the rights of all these people.

HA: The recent debate around continental unity at the African Union saw many advocating for a borderless Africa. How would African citizenship affect the plight of refugees and internally displaced people in Africa? Is this an effective solution to the issue?

BTMN: Let me state that any answer that I will give to this question reflects my personal views, and is not an answer in my capacity as special rapporteur. This is because the larger question, or the ‘grand debate’, has not been raised for discussion within the commission, and therefore I cannot assume to speak on behalf of it.

Theoretically speaking, the answer to your question would be that a borderless Africa would precipitate an African citizenship, which means freedom of movement for all Africans from Cape to Cairo, and Dar es Salaam to Dakar, and therefore the absence of refugees. In other words, an African unity government would mean the absence of inter-state and intra-state conflicts. There could still be internally displaced people, because people are likely to be displaced from causes other than internal conflict.

The problem, in my view, is that in several countries on the continent the intolerance to diversity which I explained earlier makes it difficult for democratic values to thrive. The repression of opposition groups illustrates this point. Many African states, including the leading proponents of this debate, lack the kind of political and economic liberalism which gives rise to a divergence of political views and a culture of freedom of expression and opinion. Very few general elections are held on the continent without allegations of vote rigging, intimidation and outright disdain for the opposition.

Therefore, much as I am a believer in continental unity, I am not a proponent of unity at the expense of stability and the need for shared social, economic and political values. A rushed union without basic shared values, such as unequivocal respect for fundamental human rights, will create a worse situation. For me, the ultimate test of continental unity will be when the objectives and principles enshrined in the constitutive act of the African Union and the NEPAD programmes, including the African Peer Review Mechanism, become a reality for all 53 AU member states, and when the processes of the regional economic communities are implemented in good faith. If these minimum standards are hard to achieve, then it is my gut feeling that African unity is still far ahead of our time. If these programmes succeed, then a foundation will have been laid for sustainable continental unity.

HA: Under President Nyerere, Tanzania had an open policy on refugees and displaced people in Africa that provided for broad assimilation into Tanzanian society. This policy seemed to maintain stability in the country despite the flares of conflict that spread throughout the region. Present-day South Africa, on the other hand, has a very closed policy toward refugees and migrant workers, which the government justifies as a means to maintain national stability. How do national policies toward refugees and displaced people affect political stability, and what are the ideal policies that governments must adopt?

BTMN: The refugee policy of any state is informed not only by the obligations it has assumed under international and regional instruments but also by the material conditions obtaining in the country at the time the policy is adopted and implemented. In comparing the refugee policies pursued by President Nyerere’s government with those adopted by the later South African government we must recognise that they were informed by different conditions and epochs. Many of the refugees during President Nyerere’s time came from Southern and Central Africa. Members of liberation movements trained and went to fight for the freedom of their countries. The refugees from Central Africa did not fight their home states until the 1990s, and they did not do so from Tanzanian soil.

It must be said as well that, as a result of hosting refugees for the last five decades, the open door policy pursued by the Tanzanian government has changed. A number of factors may have accounted for such a shift. Assistance to refugees in Africa decreased in the early 1990s when the international donor community shifted its support and assistance to Eastern Europe after the collapse of the communist regimes there. Secondly, security issues associated with the conflicts in the Great Lakes region became problematic in areas where refugee camps were located, which was not the case in the early 1960s to the mid-1980s. The conflicts of the 1960s and 1970s did not significantly affect the people living in the Tanzanian border regions. The exceptions were a few cases of the Portuguese colonial army bombing Southern Tanzania. But since the 1990s, acts of banditry associated with the flow of small arms in the Great Lakes region have affected many communities close to the refugee camps and beyond. This has had a negative impact on the local people, some of whom have become proponents of anti-refugee policies.

On the other hand, after the democratisation of South Africa, its government had to contend with an influx of refugees and economic migrants. The fact that the democratic government had to deal with the inequities of the apartheid era, and make provision for the majority of its people who had lived in conditions of poverty for a century, must not be overlooked. It is my hope that as she faces the challenge of dealing with refugee issues, in particular the dire political and economic situation across her northern border, and since she is the leading economy in Africa, South Africa’s refugee policy will distinguish genuine refugees from economic migrants, while addressing these very serious concerns. The government must also undertake sensitisation campaigns to encourage tolerance by its people towards foreign citizens, particularly those from African countries beset by conflicts, such as Somali asylum seekers who are said to be subject to victimisation by unknown assailants.

Persistent conflict in refugees’ home country cannot foster political stability in their host country. The instability experienced in Northern Uganda for about 20 years was linked to its support for the Sudan People’s Liberation Movement, which led Sudan to support the Lord’s Resistance Army. The resolution of one conflict has created conditions for the resolution of the other. The same is true of the Darfur conflict vis-à-vis those in Chad and the Central African Republic. Resolution of the Darfur conflict is likely to lead to resolution of the others, all of which have generated major refugee and IDP situations.

Tanzania and many other African states, such as Angola, Chad, Kenya, Uganda, Sudan, Guinea and Zambia, have borne the brunt of hosting refugees despite their poor economies and to the detriment of their land and environment. This has never been quantifiable in monetary terms, yet it has not discouraged them from fulfilling their responsibilities towards refugees.

States must respect the rights of their citizens and their obligations to protect them. Where a refugee or IDP situation arises as a result of conflict, the country’s political leadership must seek peaceful solutions rather than embark on military strategies. Experience in many conflicts in Africa, such as in Burundi, DRC, Liberia, Mozambique, Sierra Leone and Southern Sudan to mention but a few, shows that military solutions do not succeed. The peace and stability we have seen in these countries is because they have been underpinned by peace agreements rather than outright military victories.

HA: Some might say that given the continuing human rights violations that plague the continent, including for instance the situation in Darfur, the African human rights system is a failure. Would you agree?

BTMN: I don’t think that the answer to this question is as simple ‘yes’ or ‘no’. The situation in Africa is more complex than that. I outlined earlier the historical and political aspects of the human rights situation in Africa. We have to recognise that Africa has made positive gains in a number of areas. For instance, the number of democratically elected governments on the continent today, compared with 10 or 15 years ago when military or one-party regimes were the norm, is far larger. This does not mean that the level of democratic governance on the continent is perfect. But there is definitely progress in developing a culture of democracy and human rights.

I stated earlier that the African Union does not recognise undemocratic means of access to power. What does this mean? It means that Africa will not have another Idi Amin or Abacha, hence the kind of violations which were perpetrated then are not likely to recur. What happens now is that, even when there is a ‘progressive coup’ in an African state, the state is immediately sanctioned and suspended from AU activities. It has to conduct elections within a very short time to restore constitutionality. It is these kinds of measures that are restoring dignity to the system. With these developments, the remnants of undemocratic tendencies and the conflicts that we are seeing in places like Darfur or Somalia are the last kicks of dying horses. Some of them are sustained by ideology or the greed of foreign economic interests. None of them serves the interests of the people.

The human rights system in Africa reflects African realities. I mentioned one of the challenges to the guarantee of human rights in Africa being lack of resources. The institutions which have been established to protect human rights on the continent cannot be condemned as failures when we know the capacity and resource limitations. I may add another challenge: political will is necessary to make them effective. The establishment of the Peace and Security Council and its proactive involvement with the Darfur and Somali conflicts should not be underestimated. The contribution of peace monitoring troops by a number of African states to assist in the resolution of these conflicts must be recognised as part of the system for dealing with these conflicts.

My analysis does not paint a picture of a continent plagued by conflict, but of one where conflicts are on the decrease. For me, the system is in evolution, not a failure. If you look at it carefully you will see successes, however small. After all, Rome was not built in a day.

HA: In November the African Commission on Human and People’s Rights will celebrate its 20th year of existence. What do you feel has been the greatest accomplishment of the commission in this time?

BTMN: The greatest accomplishment in my view is the fact that the commission has continued to exist, increased its visibility, and carried out its mandate under very difficult circumstances. The lack of resources has not diminished the commitment of the members of the commission and its staff to continue working within the limitations imposed on them by political circumstances and budgetary constraints. Human rights issues in Africa, as is the case everywhere else, are very politically emotive. They touch on the sensitivities of states and governments.

By commenting on the various human rights concerns across Africa in the form of decisions rendered on communications, or by conducting investigations during missions and publishing resolutions on the human rights situation in a number of African states, the commission has been able to influence official policies in these countries as well as opinion throughout the continent and elsewhere about what is happening.

I believe that there is still great scope for enhancing the visibility of the commission and the accomplishment of its promotion and protection mandate, resources permitting.

HA: Moving forward, what do you think would strengthen the work and impact of the commission?

BTMN: The commission cannot carry out many of its plans because of lack of resources. More resources will ensure that it recruits the best staff for the secretariat. This also requires political will from member states and the African Union Commission, both of which are responsible for ensuring that adequate resources and competent staff are put at its disposal.

Finally, the states parties to the African Charter on Human and People’s Rights must cooperate with the commission. There is no point in having a commission if it cannot point out violations of the charter, but when it does so it is labelled a tool of external interests. The yardstick to any finding of violations is the facts on the ground and how they relate to the obligations assumed by member states under the charter.

HA: How can civil society and citizens in Africa help to guarantee the rights of refugees and displaced people on the continent?

BTMN: As I stated elsewhere, dissemination of the charter as well as all other regional and international human rights instruments will enable people to know their rights. I believe that dissemination is best done by civil society because they regularly interact with people at different levels. The citizenry has a corresponding duty to learn and understand their rights and respect the rights of others. An ignorant citizenry is not good for democracy or for human rights. The introduction of human rights education must be a priority pursued by civil society and the general population. This is a long- term process which needs to be started immediately. I hope that when the culture of human rights is entrenched we shall see less and less conflict and, as a consequence, no more refugees or internally displaced people.

* Hakima Abbas is the AU Policy analyst for Fahamu Networks for Social Justice

* Please send comments to or comment online at www.pambazuka.org