Rwandan General should lose refugees status
Rights groups launch landmark case in SA High Court
In a landmark case beginning in the South African High Court today, the Consortium for Refugees and Migrant Rights in South Africa (CoRMSA) will argue that the former Rwandan General and suspected war criminal, Faustin Kayumba Nyamwasa, should be stripped of his refugee status because he is ineligible under both South African and international law.
Supported by the Southern Africa Litigation Centre (SALC), CORMSA is calling on the High Court to review and set aside the decision of the South African immigration authorities to grant Nyamwasa refugee status, which was made despite the existence of substantial and credible allegations linking him to war crimes and crimes against humanity in both Rwanda and the Democratic Republic of Congo (DRC).
“South African and international law explicitly prohibit granting refugee status to people when there is reason to believe that they have been involved in the commission of international crimes,” said CoRMSA’s Kaajal Ramjathan-Keogh. “Refugee law is intended to protect the persecuted not the persecutor.”
Nyamwasa was granted refugee status in June 2010. Shortly afterwards, CoRMSA and SALC submitted a detailed legal briefing to the South African authorities, which outlined the nature of the allegations against him, explained the legal implications of his presence and called for the reconsideration and withdrawal of his refugee status.
“The rationale for excluding suspected international criminals from refugee status is two-fold – to protect the institution of refugee status from being abused by those who are undeserving and to ensure that those who have committed grave crimes do not escape prosecution,” said Nicole Fritz, Executive Director of SALC. “Preserving refugee status only for those who are in genuine need of protection is integral to maintaining the credibility, integrity and sustainability of South Africa’s refugee protection regime.”
Despite being in possession of the briefing paper and despite repeated calls by SALC and CoRMSA to revisit their decision, the South African authorities have never responded to the concerns raised, justifying their stance on the basis that refugee applications are confidential. The authorities have persistently refused to justify their decision.
“Given the nature of the evidence and gravity of the allegations against Nyamwasa, the South African authorities must explain why he was granted refugee status and why this decision has not been revisited,” said Ramjathan-Keogh.
This case represents the first time that a South African court will have the opportunity to interpret and provide practical and substantive content to South Africa’s exclusion clause. It is hoped that these proceedings will provide guidance regarding the ambit of confidentiality in the context of South Africa’s international refugee and criminal law obligations.
“This decision is not only offensive to those in genuine need of South Africa’s protection but if left unchallenged it will set a dangerous precedent – one that will effectively allow South Africa to use the confidentiality principle in refugee applications to shield perpetrators of international crimes from accountability as well as its own controversial decisions from scrutiny,” said Fritz. “It will send a signal to war criminals the world over that they will find a safe haven here – a haven where they might be actively protected as refugees.”
Nyamwasa has been implicated in variety of serious crimes. He has been indicted by the French authorities for the shooting down of the plane carrying Rwanda’s former President Juvenal Habyarimana, while a Spanish indictment implicates Nyamwasa in the commission of war crimes and crimes against humanity committed in the DRC, including the murder of 2500 Hutu refugees. Spain and France have requested his extradition.
The Rwandan government has also requested Nyamwasa’s extradition and has tried and sentenced him in absentia for alleged terrorist activities. The South African government has rightly denied the extradition request out of concern that if Nyamwasa were to be returned to Rwanda he is likely to face persecution.
CoRMSA and SALC support this decision but the organisations argue that this factor, in light of various other dimensions to be weighed in determining the status afforded to Nyamwasa in South Africa, does not justify the granting of refugee status and his application should have been assessed outside of the refugee framework.
CoRMSA is represented by the Wits Law Clinic.