The International Association of Refugee and Migration Judges (IARMJ) Biennial Conference of the Africa Chapter took place from the 14 to 18 November 2022 in Arusha, Tanzania. The conference was attended by more than 205 delegates from all over the world and the theme of the conference was ‘Access to Asylum; Access to Territory, Access to Justice; Access to Rights’. Among the various dignitaries who attended were –
The conference also addressed the following (non-exhaustive) sub-themes, namely judicial independence, and the rule of law, non-refoulement, statelessness, regional courts, human rights (including the right to dignity, family life and socio-economic rights) and emerging challenges.
The conference commenced with two days of intense workshops in both English and French.
The keynote address was given by the President of the African Court of Human and Peoples’ Rights, Justice Imani Daud Aboud. In her address, Justice Aboud requested that the delegates of the conference keep in mind the broad context of the deliberations. She advised that according to the UNHCR at the end of 2021 there were at least 89,3 million people who had been forced to flee their homes for fear of persecution, conflict, violence, human rights violations, or events seriously disturbing public order. The UNHCR estimates that there are millions of other people who are stateless and as a result, lack access to basic rights such as education, health care, employment and freedom of movement. She expressed that we live in a world where there is a marked resentment towards refugees, asylum seekers and migrants. She pointed out that contrary to some popular perceptions, the problems of refugees and asylum seekers are not only an African problem. The conflicts in Syria, Afghanistan and most recently the Ukraine have thoroughly debunked this myth. The world must unite because this is the only way in which meaningful solutions could be devised.
Justice Aboud made mention of Article 12 of the African Charter on Human and Peoples’ Rights, which deals with fundamental protection for refugees and asylum seekers. Article 12 provides for the right to freedom of movement and residence to anyone within a country. It also provides for everyone’s right to leave their country and return to the same. Article 12(3) of the Charter guarantees the right to seek asylum in other countries.
Justice Aboud called on the IARMJ to be pivotal in developing evidence-based interventions for dealing with refugees and asylum seekers. ‘Societies across our continent should be taught to view refugees and asylum seekers not so much as a burden but an opportunity and to work towards harnessing their potential contribution to the societies in which they live.’
IARMJ Africa Chapter President, Judge Dunstan Mlambo said: ‘The choice of hosting the conference in Tanzania … demonstrated the burden that the country carried in hosting countless revolutionaries fleeing colonialist driven persecutions in their country of origin’. Edward Qorro writes, ‘he applauded Tanzania for its role in getting rid of colonial regimes, in Southern Africa in particular. “My own uncle Johnson Phillip Mlambo spent his exile years in [Tanzania] after his release from Robben Island”, he recalled. The said uncle, who died last year, was a South African politician and anti-Apartheid fighter’.
According to Edward Qorro, ‘Deputy Development Director, Ms Eduarda Mendonca-Gray from the UK High Commission commended Tanzania for its efforts of shielding refugees and asylum seekers since independence. …
IARMJ President Judge Isaac Lenaola … was nostalgic of the days he served at the East Africa Court (EACJ) … .
Among other things, … [the] conference sought to develop the capacity of judges, refugee status decision-makers and other relevant government officials in refugee and migration law and related human rights law as well as provide participants with a plenary forum in which to discuss and reflect on – including in comparative perspective – the critical issues and challenges they face in their work’ (Edward Qorro ‘Tanzania lauded for its role in hosting refugees, asylum seekers’ (https://dailynews.co.tz/, accessed 9-1-2023)).
Senior magistrate at the Wynberg Magistrate’s Court, Mohammed Moolla (middle) with conference delegates at the International Association of Refugee and Migration Judges Biennial Conference of the Africa Chapter.
The Arusha Declaration of 2022 applauded the solidarity of many African States in hosting refugees and the efforts of African States to find collective solutions for them. African States that were not yet party to the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, and the 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa were urged to accede to these instruments and incorporate all international standards relating to protection of refugees into their national legislation to ensure that refugees and asylum-seekers can effectively enjoy all their civil, economic and socio-cultural rights in their country of asylum.
The Arusha Declaration observed that the principle of non-refoulement constitutes the cornerstone of international refugee protection, and that, to prevent refoulement, African States should uphold the right to seek and obtain asylum as set out in Article 12(3) of the African Charter on Human and People’s Rights.
African States were urged to monitor entry points and management of procedures to prevent refoulement, to address concerns with regards to inconsistent access to asylum, and to expand and strengthen protection-sensitive entry systems in their border management policies, to enhance identification and referral of asylum-seekers to the responsible authorities.
The challenges of irregular onward movements of refugees and asylum-seekers was acknowledged, and the States were urged to ensure due process in individualised assessment of cases for onward movers as a means to prevent incidents of (chain) refoulement, and to identify appropriate responses to the root causes of onward movement.
It was noted with concern that the right to seek and obtain asylum is only effective if African States have asylum systems, which are consistently accessible, fair, efficient, adaptable and which have integrity.
The delegates also visited the fact that the African Court on Human and Peoples’ Rights was established by the member states of the African Union to enhance the protection of human and people’s rights in Africa. ‘The mission of the court is to enhance the protective mandate of the African Commission on Human and Peoples’ Rights by strengthening the human rights protection system in Africa and ensuring respect for and compliance with the African Charter on Human and Peoples’ Rights, as well as other international human rights instruments, through judicial decisions’ (African Court on Human and Peoples’ Rights ‘The African Court in Brief’ (www.african-court.org, accessed 9-1-2023)).
The African Court is composed of 11 judges who are nationals of State Parties to the Protocol. The judges are elected by the Assembly of Heads of State and Government of the African Union for a period of six years and may be re-elected only once. The judges are elected after nomination by their respective States, in their individual capacities, from among African jurists of proven integrity and of recognised practical, judicial, or academic competence and experience in the field of human and people’s rights.
The court may issue appropriate orders where it finds there has been a violation of human and/or people’s rights. Such orders include remedying the violation as well as including payment of fair and adequate compensation. ‘In cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court can adopt provisional measures as necessary’ (African Court on Human and Peoples’ Rights ‘FAQs’ (www.african-court.org, accessed 9-1-2023)). An example of a situation where provisional measures could be adopted is when the alleged victim is facing execution of a death sentence.
Mohammed Moolla BProc (UKZN) LLM (UWC) is a senior magistrate at the Wynberg Magistrate’s Court in Cape Town.
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