An Analysis and opinion on the restriction of Refugees from political activities by South African Refugee Act 130 of 1998 as amended, reading it with other international Law instruments, based on the following statement by Director-General of the Department of International Relations and co operation of the Republic of South Africa, by Kennedy Gihana, practicing Attorney, of the South African High Court, specialized in Public International Law and International Human Rights Law.
It has come to the attention of the South African Government that certain Rwandan citizens claim to have engaged in political activities against the Government of the Republic of Rwanda “with the approval of the South African Government”. South Africa and Rwanda maintain friendly diplomatic relations and such statements are devoid of all truth. Mr Nyamwasa is a refugee in South Africa and in terms of the law governing refugees, South African Refugee Act number 130 of 1998, he is required to refrain from engaging in any political activity or subversive action against any government as this would constitute a breach of the law and he could be liable to lose his refugee status.
Who is General Kayumba Nyamwasa?
For those who do not know General Kayumba Nyamwasa, is former army chief of staff of Rwanda and former Rwandan Ambassador to India. In February 2010 he thought political asylum in South Africa. General Kayumba survived an assassination attempt near his home in Johannesburg in June 2010. General Kayumba’s supporters, family and some individuals in South African government linked the government of Rwanda to the failed murder on the General’s life.
He was prosecuted for and convicted of, making insulting and defamatory statements to the person of President General Paul Kagame of Rwanda, criticizing the oppression, tyranny and dictatorship of the current regime and was sentenced by the Rwandan Military High Court in absentia to 24 years in prison.
Participation in political activities/organizations with peaceful Agenda
As stated in the United Nations High Commissioner for Refugees Policy document titled “Protection Policy and Legal Advice Section, Department of International Protection, 2003 (http://www.unhcr.org/protect), – “given the reasons for which individuals become refugees, it is unsurprising that many of them will become politically active while in exile.
Campaigning for change in their country of origin may, indeed, be the only way of increasing the chances of being able to return home eventually. In general, participation in such political organisations is guaranteed by a refugee’s human rights, in particular the right to freedom of expression and association. If the situation were otherwise the “oppressive system in their country of origin would be watertight”.
Such organisations are entitled to carry out a wide range of activities, including publicising their views through the media, holding peaceful demonstrations and sending representatives to highlight their concerns before governments and international organisations. Moreover, host State toleration of, or indeed support for, such organisations will not place that State at risk of violating its obligations against any State whose authorities are the subject of the group’s criticism.
Similarly, refugees are entitled to join organisations concerned with domestic politics in the host State, for example those that wish to promote the position of foreigners in society. The fact that refugees do not have the right to vote or stand in elections does not mean that they have no right to express their views on matters of concern in the country in which they reside. In this case,
General Kayumba is a political refugee and like any other aliens legally in the country, surely has rights to participate in political activities and organizations that are peacefully in order to seek democratic change/ reforms in his country of origin.
Substance of Applicable Law.
The right of refugees to hold and express a political opinion is a fundamental in nature and indeed it is the suppression of this right that often leads to refugees situations.
Let us examine extend and scope of political rights of refugees in context of South African Refugee Act 130 of 1998 and International Law.
The Refugee Act 130 of 1998 is silent on the question of political activity of refugees, save to note that Sec 27 grants full legal protection to refugees, which including the rights set out in Chapter 2 of the Constitution of the Republic of South Africa (The Bill of Rights), these are fundamental rights as contained in The Universal Declaration of Human Rights of 1948.
The Bill of Rights is the cornerstone of democracy in South Africa, it enshrines the rights of all people in our country and affirms democratic values of human dignity, equality and freedoms, the state must respect, protect, promote and fulfill the Bill of Rights (sec7).
Some of these rights in the Bill of Rights are the right to freedom of expression (sec16 (1)), However this is not absolute and is limited by subsection (2) of this section in case of propaganda for war or hatred or incitement to cause harm, freedom of association (sec18), freedom of assembly, demonstration, picket and petition (sec17), freedom of movement (sec 21).
It must be noted that The Constitution of The Republic of South Africa is the Supreme Law in the Republic, Sec 2 states that “the constitution is the supreme law of the Republic, law or conduct inconsistent with it is invalid and that obligation imposed by it must be fulfilled”.
Sec 8 states that, “The Bill of Rights applies to all laws, and binds the legislature, the executive, the judiciary and all organs of state”.
The interpretation of these rights in the constitution must be “generous and purposive” and must give expression to the underlying values of the constitution (S v Makwanyane 1995 (3) SA 391 (CC) para 9).
Freedom of expression (speech) and opinions of political nature or civil rights as the may be, is very important not because people have any intrinsic moral right to say what they wish, but because allowing them to do so will produce good effects for the rest of us. See Ronald Dworkin freedom’s Law (1996) 200
These rights in the Bill of Rights are limited only by the law of general application (sec 36) and must be justifiable and reasonable.
Rights of Refugees in International Law
The preamble of The Universal Declaration of Human Rights of 1948 states that, “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”.
Refugee Convention of 1951 relating to the Status of refugees has no explicit provision dealing with the political rights of refugees. However, article 2 makes it clear that refugees have duties to the country of asylum, including respect for its laws and measures taken for the maintenance of public order.
The convention does lay down specific standards for the treatment of refugees in certain areas, but only one of these is relevant to the question of political rights. Article 26 requires that refugees lawfully within the territory be granted freedom of movement subject to any regulations generally applicable to aliens. For matters other than freedom of movement Article 7(1) must apply. It states that “Except where this convention contains more favourable provisions, a contracting state shall afford to refugees the same treatment as is accorded to aliens in generally.
As a consequence, refugees are to be afforded the same political rights as other aliens in the country of asylum.3 Furthermore, the rights covered by Article 7(1) are subject to Article 3 which therefore prohibits any discrimination between refugees in the enjoyment of political rights solely on the basis of their race, religion or country of origin.
Finally, by virtue of Article 7(3), refugees shall continue to enjoy any additional rights to which they were entitled (for example, as a result of domestic laws in the country of asylum) at the date of entry into force of the Convention for the State in question. Thus, subject to any pertinent provisions in regional instruments, reference to international human rights law is necessary in order to flesh out the standards set out in the 1951 Convention.
Freedom of expression
This is the external manifestation of the right to freedom of thought/conscience and is central to the ability of individuals to carry out any meaningful political activity. The guarantee of freedom of expression in Article 19(1) of the ICCPR is universal in coverage – aliens, including refugees, fall within its scope. However, this right is not without limitations. As with many other provisions of the ICCPR, Article 19 explicitly acknowledges that the interests of the wider community need to be balanced against the interests of any one individual. Article19(3) states that freedom of expression may be subject to restrictions necessary for respect of the rights and reputations of others or for the protection of national security, public order, public health or public morals. In essence, these restrictions are not concerned with the effect of any political statements on a third State, but rather the interests of the host State. Therefore the right of aliens to express their political opinions, whether these be on matters pertaining to their country of origin or to the host country, is not absolute. However any restrictions would appear to be the same as that for citizens given Article 2(1) which prohibits any discrimination in the enjoyment of ICCPR rights on the grounds, inter alia, of national origin or race. Any imposition of greater restrictions on aliens rather than on citizens would appear to constitute unlawful discrimination in the absence of any reasonable, objective justification. Certain forms of expression are expressly prohibited by the ICCPR. Article 20 states that all propaganda for war shall be prohibited. Moreover “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Accordingly, the country of asylum is under a duty to prevent any individual or political organisation, including those run by refugees, from engaging in such behavior.
As for the ability of refugees to express publicly their political views, either individually or in a group, this depends greatly on the extent to which freedom of expression is generally respected in a State. In this case South Africa grants and respects this right as we have seen above.
With respect to the situation in African States, Article 19 in their report, ‘Voices in Exile: African Refugees and Freedom of Expression’ (2001) noted: “Not surprisingly, those governments that have a generally poor record of respect for human rights are more likely to be restrictive of refugee rights. But this is not universally the case. Many countries including South Africa have legislation granting freedom of speech to everyone. Examples include Belgium, Canada, Chile, USA, Mexico, Liberia, Italy, Germany, Poland, Thailand and Turkey (Tiburcio in The Human Rights of Aliens under International and Comparative Law (2001)).
In many countries, no distinction tends to be drawn between the right of political expression of citizens and that of aliens. However, there are still a significant number of States where aliens are prevented from freely expressing their views. For example, it was only in 1992 that the South African courts overturned as discriminatory, and therefore unconstitutional, legislation prohibiting aliens from taking part in speeches and discussions at public meetings about the internal politics of Bophutswana.( Nyamakazi v President of Bophutswana 1992 (4) SA 540 (BGD).
Freedom of movement
Freedom of movement is guaranteed for all those lawfully within a State by Article 12 of the ICCPR subject to restrictions necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and which are consistent with other rights guaranteed by the ICCPR. This right would therefore also apply to all refugees lawfully within a State.
This is consistent with the approach taken in Article 26 of the 1951 Convention guaranteeing freedom of movement, to the same extent as aliens generally, only for those refugees lawfully on the territory.
Freedom of association
The guarantee of freedom of association in Article 22 of the ICCPR applies equally to aliens and citizens alike. This, in principle, accords refugees the right to form political organisations. However the formation or operation of such organisations may be restricted on the same grounds as Article 21. Thus, it is lawful to ban a refugee organisation that incites hatred against a particular political group in the host country where this demonstrates a risk to public order. On the other hand, the right of refugees to belong to an organisation that merely campaigns for a peaceful change of government in their country of origin would seen to be protected by Article22.
The approach to freedom of association in respect of aliens under Article 11 of the ECHR is the same as that regarding freedom of assembly. With respect to the State’s ability to restrict such freedom on national security grounds, in the case of Ozdep v Turkey 8 December 1999, the European Court of Human Rights held that such action was not justified in the case of political parties that do not advocate the use of violence.
Freedom of assembly
The coming together of individuals is often an important prerequisite for political activity. Aliens, like citizens, benefit from the right of assembly under Article 21 of the ICCPR subject to restrictions necessary in the interests of “national security or public safety, public order (ordre public) of the state of asylum, the protection of public health or morals or the protection of the rights and freedoms of others”.
Regional refugee instruments
The 1969 Organisation of African Unity (‘OAU’) Convention Governing Specific Aspects of the Refugee Problem in Africa (‘OAU Convention’), like the 1951 Convention, specifically states that refugees must respect the laws of the country of asylum (Article III(1)). However it goes further by (a) proclaiming that refugees must not take part in any subversive activities against an OAU member State (Article III(1)) and (b) requiring all States parties to prevent refugees from attacking other OAU States or engaging in activities likely to cause tensions between such States (Article III(2)).
No definition of “subversive”, “attacking” or “likely to cause tensions” is given in the OAU Convention.
It is, therefore, possible, and arguably desirable, to interpret the limits on political activity set out in Article III in line with the human rights obligations of OAU States.
However, this provision limits refugees’ right to freedom of expression and contradicts the rights enshrined in the African Charter on Human and Peoples’ Rights. Article 9(2) “Every individual shall have the right to express and disseminate his opinions within the law”.
For this reason, the formulation of the prohibition has been criticized as being overbroad. Others, such as the Lawyers Committee for Human Rights, have also warned of the consequences of the prohibition (See African Exodus: Refugee Crisis, Human Rights and the OAU Convention, 1995).
There is evidence that some OAU States have adopted a rather sweeping approach to Article III, interpreting it as prohibiting any political activity with respect to the refugee’s country of origin, or indeed any political activity whatsoever. See UNHCR, ‘Addressing Security Concerns without Undermining Refugee Protection’ (2001) and Amnesty International, ‘Rights at Risk’ (2002).
It is clear that article III of the OAU convention can not super cede/ or be supreme to our own constitution Act 108 of 1996, which grants the rights in the Bill of Right. See Sec 2 of the RSA constitution above.
Therefore, Act 130 of 1998 as amended is in conflict with the constitution (which is the supreme law in the Republic) and therefore invalid if it is read together with OAU convention to deny Gen Kayumba his rights to participate in political activities and organizations that are peaceful.
The exercise of certain political rights is fundamental to the human dignity of refugees including Gen Kayumba. Although refugees have no right to vote in their country of asylum, their refugee status does not preclude them from being able to express political opinions and engaging in a meaningful political life.
Indeed, refugees, like other aliens, are entitled to the same freedom of expression, association and assembly as citizens.
The granting of political rights is, however, often seen as a threat to the national cohesion of the country of asylum or to its relations with the country of origin.
This need not be the case. International law also makes provision for protecting the legitimate security concerns of the country of origin and respecting the sovereignty of other States. In doing so, it does not discriminate between refugees and any other person in the country of asylum.
It is my submission that the above statement made by Director General was an error of law and that Act 130 of 1998 as amended is silent on the question of refugee’s political rights in the country of host.
Further that if the refugee Act 130 of 1998 as amended is interpreted and applied with due regard to the OAU convention of 1969 and its protocol of 1967, then it in conflict with constitution and therefore invalid, as the constitution is the supreme Law of the Republic of South Africa ito Section 2.
And therefore, it is my opinion that Gen Kayumba as a legal political refugee in South Africa, the constitution and international law grants him right to participate in peaceful political activities or organizations.