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Asylum and refugee policies in Southern Africa: A historical perspective

4. Towards a protection-oriented approach

From the early 1980s, a new breed of laws begun to emerge in the region which were modelled on the international refugee instruments and which were much more about protection of refugees. The first legislation in this category was Zimbabwe’s Refugees Act of 198325 and a very similar Act of Lesotho, with identical name and of the same year. 26 These laws adopt an extended definition of a refugee which is based on the 1951/67 regime and the 1969 OAU Convention, 27 establish institutions and make provisions for refugee status determination including appeals.28 They also expressly prohibit refoulement of refugees.29 Refugees are entitled to enjoy the rights and are subject to the duties as defined under the 1951 Convention, the 1976 Protocol and the 1969 OAU Convention.30

In 1989, Malawi enacted the Refugee Act of 198931 which is perhaps more notable for what did not contain than what it provided for. The Act defined a refugee, established various institutions for the administration of the Act and outlined their functions, and made provisions for non-refoulement and procedures for refugee determination, appeals and cessation of refugee status. The Act was silent on all other aspects of refugee protection. But it should be noted that on acceding to the 1951 UN Convention, Malawi entered reservations on the following provisions: Articles 7 (exemption from reciprocity); 13 (acquisition of property by refugees); 15 (right of association); 17 (wage-earning employment); 19 (practice by refugees of liberal professions); 20 (access to public education); 22 (labour legislation and social security); 26 (freedom of movement) and Article 34 (on naturalisation and assimilation of refugees).32

Next in line were the Refugee Status Act of Angola of 199033 and the Refugee Act of Mozambique of 199134 These Acts make ample provisions for the definition of a refugee35 and fairly reasonable and detailed provisions on the procedures for refugee status determination.36 Through the cross-reference technique, both Acts make the provisions of the 1951 Convention relating to the Status of Refugees, its 1967 Protocol and the OAU 1969 Convention on refugees applicable to refugees in Angola and Mozambique.37 Several other rights are expressly provided for under both the Angolan and Mozambican Acts.38

In 1998, two more protection oriented Acts were enacted in the region. One of these was the Tanzania’s Refugees Act, 1998.39 This Act repealed and replaced the Refugee Control Act of 1966 and sough to align refugee law in Tanzania to international and regional refugee instruments. Unlike its predecessor, the Refugees Act is more comprehensive. It makes provisions for the definition of a refugee which more or less corresponds to the definitions found under international instruments,40, establishes institutions and procedures for refugee determination,41 and provides for limited number of rights of refugees.42 Although this law is a significant improvement on its predecessor, it still retains some of the restrictive aspects of the former law such as the requirement for all refugees to reside in designated areas (read camps)43 and vesting wide ranging powers on authorities such as the powers to detain and slaughter animals belonging to refugees,44 possess and use vehicles belonging to refugees for refugee related work without compensation45 and deportation of refugees.46

The other law is South Africa’s Refugees Act of 1998.47 This Act also makes provisions for the definition of a refugee, which more or less follow the definitions found under international instruments,48 establishes institutions for refugee status determination/adjudication49 and lays down the procedures to be followed in this regard.50 The statute also makes provisions for the rights of refugees.51

In 1999, Namibia enacted the Namibia Refugees (Recognition and Control) Act52 which, as its name connotes, combines both elements of protection as well as control. Like other refugee legislation in this generation, the Namibian Act adopts a definition of a refugee which encompasses both persons covered by the 1951 UN Convention and the 1969 OAU Convention on refugees.53 The Act also establishes institutions for refugee administration, their terms and conditions of tenure, their powers, duties and functions as well as the procedures to be followed in processing applications for refugee status54 including appeals.55 Also provided for are the rights of refugees and asylum seekers including protection from refoulement56 and general rights enjoyable by refugees under the 1951 UN refugee Convention and the 1969 OAU Convention on refugees.57

Like Tanzania’s Refugees Act of 1998, (and unlike the majority of legislation of this generation) the Namibian Act contains many of the features reminiscent of the refugee control oriented generation. Thus, the Act permits the designation of areas (read camps) for reception and residence of refugees and empowers the Minister to require asylum seekers, refugees and the members of their families to reside in such areas. Failure to obey the order of the Minister is an offence punishable with imprisonment of up to 90 days. It is prohibited to enter designated reception area or refugee settlement without permission and non compliance is an offence punishable with a fine of N$2,000 or imprisonment for a period of up to six months or both.58 The Act also permits the detention or expulsion of recognised refugees and protected persons.59

The above recent developments have resulted in the countries in the Southern African region having similar laws which approximate to the standards found under the main international instruments on refugee law. However, at the same time, there is an observable tendency towards more restrictive practices towards refugees. Many traditionally hospitable countries such as Tanzania are increasingly taking the view that would-be refugees must be protected in their countries of origin.60 In some cases, measures have been taken to avoid the refugee burden which amount to refoulement or burden-shifting. Thus, a paradoxical conclusion follows that when the Southern Africa had draconian refugee laws, it had the most liberal practice but now that it adopted liberal laws, the practice has become more restrictive.

Footnotes:
 
  1. Refugees Act 1983, Act No. 13 of 1983.
  2. The Refugee Act 1983, Act No. 18 of 1983.
  3. Identical section 3 of the Refugee Act of Lesotho and the Refugee Act of Zimbabwe.
  4. Identical section 7 of the Lesotho and Zimbabwe Acts.
  5. Sections 11 and 13 of the Lesotho and Zimbabwe Acts respectively.
  6. Sections 13 and 12 of the Lesotho and Zimbabwe Acts respectively.
  7. The Act entered into force on 8th May 1989.
  8. See Government of Malawi, Statement Presented at the First Meeting of the Commonwealth Iter-governmental Group on Refugees and Displaced Persons, London, 2nd - 3rd October, 1996, Appendix 1b.
  9. Refugee Status Act (No. 8/90)
  10. Refugee Act, (No. 21/91).
  11. Refugee Status Act, Angola, ss 1-9 and Refugee Act, Mozambique, Articles 1-2.
  12. Refugee Status Act, Angola, ss 10-20 and Refugee Act, Mozambique, Articles 3; 7-11.
  13. Refugee Status Act, Angola, Article 21 and the Refugee Act, Mozambique, Article 5.
  14. For example, the Angolan Act provides for the right of non-refoulement (Art. 4) and right to work, education and health assistance (Art. 8). The Mozambican Act expressly provides for family reunion (Art. 4), non-refoulement (Art. 14) and quite uniquely, the enforceable right to naturalisation to refugees who meet the conditions of nationality (Art 12).
  15. The Refugees Act, No. 9 of 1998.
  16. The Refugees Act, No 9 of 1998, Section 4.
  17. See Part II of the Act, ss 5-8.
  18. E.g education (s. 31) and work (s. 32).
  19. Section 17 of the Act.
  20. Section 13 of the Act
  21. Section 14 of the Act.
  22. Section 28 of the Act.
  23. The Refugees Act, No. 30 of 1998.
  24. Sections 3-5 of the South African Act.
  25. See Chapter 2.
  26. See Chapters 3 & 4.
  27. See Chapter 5.
  28. Act No. 2 of 1999.
  29. Sections 3-5.
  30. See Sections 6-15.
  31. Sections 27 & 28.
  32. Section 26.
  33. Section 18.
  34. See sections 19-22.
  35. Section. 24.
  36. For the most recent reaffirmation of this position see Intervention by The President of the United Republic of Tanzania, His Excellency Benjamin William Mkapa, at the Symposium on the Great Lakes Region, Nile International Conference Centre, Kampala, Uganda, 10th April 2002, pp 3-4.

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