November 2000
Given that international protection must palpably centre upon the human rights of refugees, the reality in most of Africa shows a system that is being stood on its head. Increasingly, the priority shaping both state and community responses on the continent is the "protection" of the country of refuge from refugees themselves. Thus, containment, rather than protection, is figuring as a major purpose in the relationship with refugees at the national level.
One hastens to underline that in a number of African countries, the authorities and people still strive, often gallantly, to meet the obligations owed to refugees. Moreover, policies, legislation and administrative practices, which are positive and progressive, are undeniably still part of the picture of the refugee reality on the continent. Be that as it may, the pre-occupation with domestic interests over those of refugees is clearly gaining the upper hand. The dialogue on refugees has become centred on priorities such as national security, law and order and a concept of the social security of the national population that allows little room for the elevation of refugees. The notion that they are or should be the subject of peremptory, priority rights is evidently losing ground. Just as troublingly, this preponderance of domestic priorities has come to be instrumentalised in ways that have included resort to the violation of the rights of refugees as a matter of deliberate state policy.
The system of refugee protection in Africa is not simply weathering more protracted stress from interests with which it has always been in competition. As a postulate of the domestic legal and political order, it is being purposely devalorised, undermined and swept aside.3
The premise of this paper4 is, first, that this system must be preserved. Second, that it should be enhanced in its essential human rights-oriented and refugee-centred character. Evidently, the dichotomy in the interest that asylum states may have, as they see it, of self-preservation on one hand, and, on the other, the humanitarian imperative to protect refugees is approaching acute and apparently irreconcilable proportions on the continent.5 It is in this context that the possible role and value that mediation may have is considered. After all, could not a concept whose purpose is to bring out of conflict a "mutual and acceptable" result6 be instrumental in devising a solution that secures both national interests and those of refugees?
To address this question, the paper sets out, first, the basic elements of the system of international refugee protection. The obligations owed by states to refugees and the standards of treatment which apply are underlined accordingly. The reality of the refugee situation in Africa is then considered, from which a pre-occupying picture emerges. What is needed in this situation to restore the central position of protection priorities is then explored. The possible role of mediation is theorized in this context.
Within a domestic setting of governance, the quintessential element in the political and legal relationship between a state authority and its citizenry consists in the former's duty to secure the basic human rights and sustainability of the latter. To scholars such as Francis Deng, popular responsibility and accountability of governance are not only the measure, but indeed the pivotal rationale of sovereignty. In other words: The concept of sovereignty cannot be dissociated from responsibility: that is to say, a state should not be able to claim the prerogatives of sovereignty unless it carries out its internationally recognized responsibilities to its citizens, which consist of providing them with protection and life-supporting assistance."7
This past decade or so, the view has increasingly been propounded that the failure of a state authority to secure for its populace life-sustaining services creates a right of international intervention to provide humanitarian assistance.8 However, as much as this right may be asserted, its existence as an affirmable principle of international law remains a hotly debated topic.9 Certainly, international law is even further away from the position whereby the authority of a state can involuntarily, yet legally, be supplanted within its sovereign borders for failing to assure the human rights protection of the populace or parts thereof. In any case, state authorities the world over have been able to misuse and abuse power and authority with impunity, with grave consequences for the human rights of individuals or groups within the national population. Moreover, even where there may be no derelictual state behaviour or institutionalized tyranny, the citizenry often find their lives and liberty placed in peril because of war, civil strife or general state dysfunction, failure or powerlessness.10 Instead of being able to turn to their home authorities for protection, or even just to remain in the locus of their country of nationality, these are instead the source or terrain of imminent danger. Where nationals should normally "look to their government and other state institutions to protect their rights and physical security,"11 persecution, tyranny and anarchy force them to seek the same elsewhere. For, as Goodwin-Gill says:
where...life and liberty [are] threatened, the necessities of life denied, and the institutions of stability destroyed;...where there is lack of protection in the sense of broad rights and expectations, displacement soon takes place."12
International protection is the system which has been devised by the international community to enable refugees to gain access to the safety and security that they are compelled to seek away from home. It makes it possible for them as persons who have lost or are unable to claim national protection in both its legal and territorial sense, to find another approximate, extra-territorial framework to secure their lives, safety and liberty. It is called "international protection" because those who are unable to benefit from the national protection of their countries of origin come to obtain the substitute protection of another state and the international community acting in concert together. In this context, the system guarantees refugees access to safety, security and the ability to recreate the normalcy and fulsomeness of a human life to the greatest degree possible.
The legal structure, definition and essential elements of the system are derived, in the first instance, from the explicit and implicit dictates of international human rights law and, secondly, treaty law. The latter refers to international refugee instruments which set down more specific principles, standards, rights and obligations. From the point of view of human rights law, refugees have the same rights to life, liberty and security as any other human being, wherever they may find themselves and under whatever status. This essential basis for refugee protection is explained, once again, by Goodwin-Gill who poses the question "what is it in a refugee's claim that requires it to be met?" and answers that:
It is the right of every human being to life, liberty and security which may be jeopardized by breach of the principle of refuge. At this level, there is no essential difference between the claim of the potential victim of persecution and that of the potential victim of violence as, in either case, the refusal of refuge may be a critical link in the causative chain leading to the loss of life, liberty and security".13
Given this primacy of human rights obligations, refugee-specific instruments serve to articulate precision, coherence and predictability in the international protection system. There are three main international legal instruments that are applicable for this purpose in Africa. The first is the 1951 United Nations Convention Relating to the Status of Refugees.14 The second is the 1967 Protocol Relating to the Status of Refugees15 and the third is Africa's own continental refugee instrument, the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa.16
The system of refugee protection elaborated in these instruments sets down criteria for claiming the protections they establish, the key element being the definition of a refugee. According to the 1951 Convention, a refugee is a person who, because of:
well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling, to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.17
The 1969 OAU Convention employs this definition of a refugee as well and further adds what is commonly referred to as the "expanded OAU definition". It provides that:
The term "refugee" shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.18
Persons or groups who meet these criteria are owed the obligation to be treated in accordance with certain human rights and refugee-specific standards. The most important of the pertinent rights and responsibilities can be stated briefly. They include the duty of a state to admit the refugee into the territory in which he or she seeks safety, for the refugee to be enabled to enjoy asylum and, above all, not to be returned to danger. These twin principles, admission into asylum and the prohibition of forcible return, or the non refoulement principle as it is also known, are the cornerstones of the system of international protection. With regard to the duty of admission, the 1969 OAU Convention states:
Member states of the OAU shall use their best endeavours consistent with their respective legislations to receive refugees and to secure the settlement of those refugees who, for well-founded reasons, are unable or unwilling to return to their country of origin or nationality.19
The obligation to protect refugees from being returned to territories where they may face danger and to ensure that they are admitted into safety is spelt out in the provision stating:
No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out [in the Article which defines who is a refugee].20
Those admitted into asylum and who meet the criteria of a refugee are entitled to be recognized before the law both as persons and specifically as refugees. Further to the principle of admission and non-refoulement which international refugee law secures for the refugee as such, the refugee protection system embraces the entire spectrum of the refugee's life, liberty and personal status. In addition to the protections enjoyed under human rights law from, among others, torture or cruel, inhuman and degrading treatment, refugee law sets out the rights to non-discrimination, residence, freedom of movement and the attainment of a durable solution.
The last of these rights are designed to create for the refugee a path towards his or her becoming again a full member of a community. The refugee should thus be able either to integrate legally, socially and economically in the country of asylum, another country or to return in safety, dignity and security to the country of origin. Other rights include exemption from the doctrine of reciprocity and exceptional measures which an asylum state can otherwise take against nationals of a foreign state, entitlement to travel documents, identity cards, administrative assistance, transfer of property and non-punishment for illegal entry or presence in the country of refuge.21
So as to be able to view properly the crisis taking root in refugee protection in Africa as examined further below, it is necessary to discuss in more detail the matrix of responsibilities of the system. Four main pillars can be identified. The most critical of these is of course the state of asylum, the essence of whose duties have been summarized in the preceding paragraphs. If a state of asylum refuses or fails to discharge those obligations, it is not possible to create the political, executive and territorial basis for the surrogate protection which the refugee must receive.
The second pillar of the system is made up of the international community. This in turn consists, first, of states, upon which rest the important obligation to rally to and alleviate the burden borne by those states which grant asylum to refugees. For, as the 1951 Convention says, "a satisfactory solution" to the refugee problem otherwise "cannot be achieved without international co-operation."22 On the other hand, the international community, acting through the United Nations, has created a standing institutional mechanism through which its principal international refugee responsibilities can be discharged in a systematic and organized fashion. This is the Office of the United Nations High Commissioner for Refugees23 (UNHCR), which was established in 1949. Its main mandate is:
Providing international protection under the auspices of the United Nations, to refugees...and of seeking permanent solutions for the problem of refugees by assisting Governments...to facilitate the voluntary repatriation of such refugees."24
The third pillar of the system comprises the refugees themselves. Upon them is visited personal responsibility to abide by the obligations designed to ensure credibility of the institution of asylum and its capability thereby to be reproduced in a viable and sustainable manner. Treaty law thus obliges the refugee to "conform to the laws and regulations" of the country in which he or she finds her/himself "as well as to measures taken for the maintenance of public order."25 In the case of the 1969 OAU Convention, this duty is framed in very particular terms, Article III (1) dictating that:
Every refugee has duties to the country in which he finds himself, which require in particular that he conforms with its laws and regulations, as well as with measures taken for the maintenance of public order. He shall also abstain from any subversive activities against any Member State of the OAU.26
Finally, of course, we have the state of origin itself. Its responsibility in the context of refugee law needs to be framed carefully and precisely. Especially in recent times, that responsibility has been highlighted in relation to the legal implications which arise from the role of such state in the "production" of refugees.27 This is evidently an important legal issue all on its own. Even so, the view taken in this paper is that the matter belongs more properly in legal spheres other than refugee law properly so-called.
A key responsibility of the state of origin which falls within the realm of refugee law concerns the obligation to make it possible for refugees to return home safely and securely. The 1951 Convention itself does not make a direct reference to this obligation, which is accordingly not expatiated as such in that instrument. On the other hand, the 1969 OAU Convention, the first international treaty to elaborate detailed provisions on refugee repatriation, commands a state of origin to collaborate with the country of asylum in making "adequate arrangements for the safe return of refugees who request repatriation." It shall, "on receiving back refugees facilitate their resettlement and grant them the full rights and privileges of nationals of the country and subject them to the same obligations." Other responsibilities include the duty not to penalize the returning refugees in any way "for any reasons giving rise to refugee situations" and to enable them to "return without risk and to take up a normal and peaceful life without fear of being disturbed or punished."
If this gamut of principles, obligations and responsibilities works in the way intended, a situation should prevail whereby the refugee is seen to receive and enjoy the protections mandated under the international protection system. The behaviour of states should in any case at least be oriented primarily towards ensuring that refugees can and do receive those protections. Is this what is actually happening in Africa today?
For years, the refugee reality in Africa featured a striking paradox. On one hand, this was the continent that was unrivalled as home to the largest number of refugees. Yet, it was just as remarkable for the generous and hospitable manner in which it received and treated its refugees. It is true that, as numbers continued to rise and refugee caseloads endured for inordinately long periods without a solution, warnings would start to be sounded that this solidarity was beginning to wane and even unravel.28 The late Mwalimu Julius Nyerere, President of Tanzania at the time and indisputably Africa's foremost icon in championing the most favourable treatment of refugees possible, however provided a firm and unequivocal retort. As he saw it, there could be no going back on the continent's, and particularly States', obligations towards the refugees, all else notwithstanding:
There are now about 3.5 million refugees...in Africa...All these men, women and children are Africans for whom the Governments and Liberation Movements...are severally, and through the OAU, jointly responsible. Thus, if our claim to speak for Africa has any meaning, then these 3.5 million people are our responsibility. [We have] to face up to the implications of our common humanity with these millions of souls. They are victims of forces beyond their control.29
As in words, Tanzania also led the way in deeds, allowing thousands of refugees to be settled on its territory, granting them the opportunity of its citizenship through naturalization and facilitating their social and economic integration. To greater or lesser degrees, this was the same practice observed in most other countries in Africa. It is indeed true to say that refugees were welcome in most of the African countries in which they found themselves. They were allowed to settle free of charge upon large tracts of land even in countries where it was scarce. They shared with their host communities the resources available for all. They were admitted into local schools and allowed to compete for jobs. "Refugee" in many cases was essentially an anecdotal term of reference. It was neither the invective it has become today, nor a barrier serving to separate refugees from the experience of legal, social, economic and community rights which only nationals were allowed to claim.
Looking at the situation today in light of those times, it is remarkable how abysmal things have become! The valorization of the refugee as an individual worthy of and entitled to solidarity, protection and assistance has been turned on its head. The refugee is now seen as a problem, a "headache" to be kept at bay away from national territory. While international law obliges states to admit refugees onto their territories and treat them in accordance with standards which approximate to those claimable by nationals, they are viewed in the popular sentiment today as a threat from which a responsible government must protect its people.30
Thus, no less than Tanzania itself has been at the head of some of the most dramatic measures designed to achieve precisely such a result. In an action which even only just a few years ago would have been unthinkable, and which would be imitated later by, for instance, the Zairian government, Tanzania closed its borders in the face of Burundian refugees fleeing danger in their country. Its Minister for Foreign Affairs would later explain: "We are saying enough is enough. Let refugees go home and no more should come".31 Not too long after this incident, the same government frog-marched Rwandese refugees willy-nilly back to their country in an exercise euphemistically referred to as "redirected repatriation."32 There was more to come. In an incident of refoulement, 126 would-be Burundian refugees were forcibly returned to their country from Tanzanian territory, there to be summarily executed.33
Tanzania is not singled out here on the purport that it is the only country in which the withdrawal from the obligations owed to refugees is figuring in official actions. Similar aspersions have taken place or continue in many other countries, including those in which sometimes just as serious violations have been perpetrated. For instance, long before the Tanzanian government closed its borders, the authorities in Kenya forced some 1 300 Somali refugees across the border back into their country at gunpoint in just a single incident of refoulement.34 Before this, it had been accused of having led back out to sea a boatload of Somali asylum-seekers, 59 of whom lost their lives when the vessel capsized.
Tanzania is, however, in a special position. For years, it has been the unblemished, unparalleled bastion of refugee protection in Africa, the paragon cited across the continent as the example to be emulated by others. Its violations of the refugee protection principles, especially when carried out explicitly as measures of deliberate national policy, were liable to have more phenomenal demonstration effect upon other states than if a lesser country in this respect had been the perpetrator. One must thus wonder whether the brazen affront upon the refugee protection regime which has accelerated across the continent these past few years could be considered as the emboldening result of Tanzania's own actions.
For sure, the violation of refugees' rights in Africa is in itself not a new phenomenon. It has, however, galloped to qualitatively new heights and troublingly greater scale over these past few years and continues to do so. The current phase is particularly distinctive by the fact that measures which are patently against the established obligations and principles to which governments should otherwise adhere are carried out as a matter of deliberate state policy. Thus, in addition to incidents such as those summarized above, there have been others where governments have blatantly refused to grant refugee status to asylum-seekers even where they otherwise qualify. In many countries on the continent, there are large backlogs of asylum applications awaiting adjudication, many for years. In fact, a number of asylum-seekers have been denied access to the refugee status determination procedures themselves.35
Among the other increasingly more restrictive measures to contain and deter refugees, states have carried out "round-up" campaigns to encamp refugees and asylum-seekers or even forcibly return them to their countries of origin. In one such round-up of Sudanese refugees in Ethiopia in January 1998, such uncompromising force was resorted to that the killing of a refugee during the operation was treated as little more than an incidental detail. Overall, there has undoubtedly been a general increase in the trampling of refugees' and asylum-seekers' personal rights and freedoms, including arrest, detention, deportation and even killings.
Refugee protection is being challenged from new sources as well. As democratic and pluralist politics have been reasserted across the continent, the general populace has come to exercise a more telling impact in shaping and influencing governance than in the days when inveterate despots reigned supreme. On the whole, this has been a good and positive development, as the ascending role of the citizenry should normally help to foster more accountable and rule of law-oriented exercise of political power.
Heightened civic participation in shaping public policy, executive and administrative practices should ordinarily be regarded as a good thing for refugees as well. However, in a number of instances, the result has been to make the asylum and protection situation more difficult. For instance, governments can no longer easily allocate large tracts of communal land for occupation and use by refugees without expecting some kind of negative backlash from the local population. Today, we see these communities actively and even violently opposing the establishment of refugee camps and settlements among or close to them. Refugee camps and settlement are thus increasingly being confined to marginal, hostile and difficult topographical locations, usually along borders, with all manner of awkward protection and management consequences.
There is an even more sinister and compounded result stemming from the increased participation of the populace in shaping public policy and actions towards refugees. This refers to the xenophobia, hatred and intolerance against foreigners which have mushroomed in many places in Africa. Refugees and other foreigners have thus found that often they have more to fear from the ordinary citizen than from the agents of the state, whose record in treating refugees in many countries is in any case already quite deplorable. Some governments, in turn casting an eye on the voting power of the populace so critical today for political survival, or simply unable to resist pandering to an easy bogey subject, find it increasingly difficult to stem anti-foreigner behaviour, policies and administrative practices.
Here in the Southern African region, no other issue dominates more the plight of foreigners in general. Indeed, there are those who hold that xenophobia is worst in the Southern African region in general and South Africa in particular. And strange as it might first seem, asylum-seekers, refugees and immigrants from "sister" African countries are bearing the brunt of this hatred and intolerance which, in its worst and most pernicious form, has included chillingly brutal murders. Following his examination of the problem early in 1998, the United Nations Special Rapporteur on Racism, Xenophobia and Discrimination reported that:
Research shows that since the 1994 elections, xenophobia attacks towards immigrants, particularly Africans, has increased steadily among the population, both Black and White. It is evident in the common tongue where contemptuous terms "amakwerekwere" "amagrigamba" and "amagongo" are used to designate foreigners and in the press which holds illegal immigrants responsible for all the troubles of South African society (criminality, drugs, etc). The invasion by immigrants syndrome, well known in Europe and America, can be found in South Africa where it feeds into every fear, appearing as "Swart gevaar" (the Black Peril, in Afrikaans) in the section of the press which still clings to the old ideas about Africans. In addition, the South African police encourage an atmosphere of manhunt and incrimination.36
The South African government was to greet the report with its own concern that:
The Government shares the Special Rapporteur's concerns about the unprecedented rise in xenophobic sentiments in South Africa. We are shamed by the increasingly inhospitable, often brutal welcome accorded refugees and migrants arriving on our shores which we view as a blemish on our democratic values and an affront to the fundamental tenets enshrined in our Constitution and Bill of Rights.37
Notwithstanding all this, there are those who hotly debate the existence at all of xenophobia, or at least seek to situate it in some rationale, a typical demur being that not every negative public attitude should be explained as being rooted in xenophobia. One among these objectors has cautioned that:
It is too easy and it might even be misplaced to reduce community responses to unauthorized immigration entirely to xenophobia. It is primarily a question of unemployment and living standards. Fix that and everything else will take care of itself."38
It is a fair warning. Indeed, it is valid and important in this debate to both understand and acknowledge the root causes of the problem. Yet, it is just as clear that an instrumentalist theory of human security is alone not sufficient to explain the antipathy mushrooming against refugees and other foreigners across Africa, and particularly in Southern Africa. Moreover, to move from the claim that there are objective factors breeding xenophobia to rationalizing it or the stereotypes on which it is built, is nothing short of being irresponsible.
It would not be surprising to find politicians and government officials denying the reality of xenophobia in their respective countries or seeking to justify it by attributing all social ills to foreigners.39 On the other hand, the attempt to clothe this same exercise in academic pretensions is more difficult to appreciate. One such example is a paper by Hussein Solomon in which attention is devoted to the problem of illegal immigration in South Africa. Typically, it is foreigners from African countries who are the focus of this researcher, with the thousands of immigrants from other regions not figuring at all. Again typically, the African foreigners are characterised as all essentially "illegal". The paper then proceeds to heap upon them, without any sophistication, distinction or qualification whatsoever, blame for "decreasing the capacity of the state to deliver impoverished South Africans from misery,...placing a heavy strain on health services in the country, [and]... bringing diseases with epidemic potential". Yellow fever, cholera, tuberculosis and AIDS are highlighted. They are also blamed for crime, with "rape, murder, theft burglary, gunrunning, drug trafficking, prostitution and money laundering" cited as the examples. They are further said to be "affecting investor confidence, unlawful squatting, negative impact on the domestic labour market"...the list goes on and on.40
Few would dispute that some immigrants might indeed be found involving themselves in one or another of these alleged activities. Also, every state obviously has the right, indeed duty, to exercise immigration control and regulation and to enforce its laws across the board. Yet, to paint an entire group of people in such broad stereotypical strokes requires, if it is to be caste as a serious intellectual exercise, evidentiary proof of the type that is nowhere offered in the paper referred to above. Nor does one usually find in campaigns of this nature any recognition of the patronage and positive contributions which immigrants and refugees bring with them. Why not also refer to reports which, for instance, show that by investing in a part of Johannesburg abandoned by South African businesses themselves for reasons of crime, African immigrants have brought about a revival and are "building the foundations of a new, more cosmopolitan African community"41?
Xenophobic "community responses" against foreigners are directed specifically to those from Africa, and particularly black Africans
Even more seriously, this manner of stereotypical disquisition fails to problematise xenophobia properly. Focusing again on South Africa, various studies42 have indeed shown conclusively that the so-called "community responses" against foreigners are directed specifically to those from Africa, and particularly black Africans. This is therefore simultaneously foreigner hatred and racism. Secondly, what is being witnessed in this region is not just simply an attitude of mind or only facile "resentment". It is an active and instrumentalised behavior which has resulted in the killing of more than 30 asylum-seekers and refugees in South Africa alone. Moreover, the problem also includes systemic forms of violence and denial of rights perpetrated against refugees and other foreigners. Thus, when the South African Human Rights Commission, the National Consortium on Refugee Affairs and UNHCR joined hands in an effort to roll back the scourge of xenophobia and its effects on refugees, it was on the basis that:
there is more to xenophobia than killings and attacks on the streets of South Africa. Extortion and abuse at the hands of some sections of the police and civil servants and discrimination in areas of education, health care and labour markets are but examples of institutions and segments of society where xenophobia manifests itself."43
Plainly, no matter what might be the objective reasons behind xenophobia, it is inherently wrong and amounts plainly to a violation of human rights.44 What is more, whereas it may be considered as a phenomenon counterpoising nationals, on one hand, to foreigners on the other, xenophobia in fact also typifies a society in contradiction with itself. The point is that xenophobes demonstrate resistance to diversity not only of external origin, but even internally as well. In South Africa and elsewhere in Africa, xenophobia thus threatens not just foreigners only, but even the very society that breeds it.
To sum up, the picture that emerges is one whereby human rights and protection language are being displaced by national security and domestic priorities which now occupy centre-stage as the articulators of state and community behaviour towards refugees and asylum-seekers. For sure, there were past transgressions of the rights and standards of treatment owed to refugees. However, even when they occurred on quite a serious scale, they were not pleaded as part of a scheme to systematically disrupt, subvert and depart from the obligations the state otherwise owed to refugees. Today, it is clear that such violations are, at least in certain cases, deliberately relied upon as instruments of domestic policy. Many states, instead of discharging their responsibilities towards refugees, are rather discharging themselves of those responsibilities. UNHCR's Director of International Protection at the time, Dennis McNamara, basing himself on the refugee crisis which unfolded in the Great Lakes region of Central Africa in the aftermath of the Rwanda genocide, characterized the situation as abdication of responsibility:
The international failure to protect civilian refugees during the Great Lakes crisis has brought into sharp focus some of the basic dilemmas and challenges facing the international refugee protection regime. Most acutely, it has shown that unless Governments are prepared to provide muscle to support refugee protection, refugees will not be protected. It has also shown that many of the governments instrumental in creating the system of protection are themselves unwilling to support the system when needed. When Governments openly, systematically and intentionally violate the most basic principles of refugee protection with apparent impunity, the system itself is fundamentally threatened. 45
The disengagement and abdication from responsibility towards refugees are dovetailing and mutually reinforcing themselves with a public attitude driven by antipathy, hatred and intolerance against refugees and other foreigners. The confluence is a critical one, for it represents a domestic consensus between the State apparatus and the civilian population which, rather than nourishing and enhancing solidarity towards refugees, is typical of the motive to unbundle those obligations and erect walls of exclusion against them. The responsibility, which should be organized and implemented in favour of the protection of refugees, is instead being paternalized to the priorities and interests of a domestic constituency. The system of refugee protection could be shutting down in Africa!
From the picture portrayed thus far, it emerges that there are contradictory forces pulling at each other viciously within refugee protection and that a critical and apparently intractable juncture is in view. Intractability is the same stalemate which, when reached in the spheres of political, military or other protracted social contentions, mediation might be considered imperative as the way to move forward. It is this conjuncture which has inspired consideration of the possible relevance of mediation.
A non-expert new to the field is well-served to proceed cautiously in counterpoising the discipline of mediation to refugee questions. It is a complex subject, made no easier by the fact that practitioners in the field do not all implicitly rally to a single definition of the concept.46 For instance, the publisher of Track Two, the Centre for Conflict Resolution (CCR), bases its activities on a concept of mediation which is a "process whereby an independent third party assists parties in a conflict to reach a collectively acceptable settlement through dialogue and negotiation".47
CCR has elaborated a set of six "strategic principles" to under-gird its approach to mediation as a process that is fundamentally consensual and co-operative, based on dialogue and solutions devised mutually. Those principles are that (1) mediators must not be partisan; (2) the parties must consent to mediation and the appointment of the mediator; (3) conflict cannot be resolved quickly and easily; (4) the parties must own the settlement; (5) mediators must be flexible; and (6) mediators must not apply punitive measures.48 It could be pointed out that the equality and independence of the disputing parties upon which this view of mediation is based is rarely the reality in many a conflict. Furthermore, it is not alone the interests, priorities and choices of the parties to the conflict which are set to be "balanced" in most disputes, nor would a balance limited to only these interests always be guaranteed to ensure a durable and sustainable settlement. This is a critical point in a refugee context where the result sought in a critical protection situation can be expected to be at variance with the particular interests espoused by at least one, if not both of the parties whose interests are central to the crisis at stake.
Based on this outlook, I have theorised a notion of mediation based on priorities of public good, and as processual in emphasis as conceptual, as the model best applicable to refugees.49 In this construct, three main features of mediation are stressed as tactically and strategically instructive in addressing the problems outlined in this paper. The first one hinges, as just underlined, on the necessity of third agency involvement to be directive, that is, to help in achieving a specific result. Mediation is viewed in this context as offering the ability to alter, by appropriate means of course, the power relations between the contending values in favour of a particular, peremptory result. Vis-a-vis the African refugee situation, this is to secure and preserve a human rights oriented protection regime.50
The second element relevant to the refugee problematic derives from the priority that mediation places on the imperative to locate the deeper, organic interests at stake in the disputes addressed through mediation and to engineer solutions accordingly on this objective basis. Very often, disputes and crises express themselves or are played out in conjunctural form, masking the real root causes. The organic emphasis in exploring the refugee crisis means that not only the legal aspersions to refugee protection, but, above all, the underlying forces which motivate those situations or behaviour must be prodded, understood and addressed. In other words, the crisis of refugee protection has to be examined not only in jurisprudential, but primarily in terms of political economy.51
The third feature of mediation is that, precisely in order to arrive at these objectives, it fosters critical engagement with the problem at hand, that is, systematically focusing on the problem in a targeted manner and with deliberative strategies.
In applying these optical and strategic mediation features to the task of guaranteeing for refugee protection in Africa the conditions to survive and endure in its essential human rights-oriented character, a new intellectual manoeuvre needs first to be transacted in the way that refugee problems have been viewed. It will be necessary to problematise the continent's refugee protection crisis not simply as derelictual failure by states to adhere to legal responsibilities, but primarily as a clash of interests; as a conflict between the political and other national priorities of states on one hand and those of refugee protection on the other. The strategies to ensure adherence by states to the obligations they owe refugees also have to be conceived as consisting essentially in the challenge of properly mediating and reconciling these interests with each other in a deliberative and systematic manner. In fact, UNHCR itself has acknowledged this imperative, the High Commissioner for Refugees underlining that:
If we do not attempt to resolve the apparent contradictions between humanitarian principles and State interests, countless innocent persons will suffer. I therefore wish to propose to States and to regional organisations, and primarily the Organisation of African Unity, a two-way effort: my office is ready to discuss with governments measures which must be adopted to facilitate the respect for humanitarian principles and which take into account their concerns. I hope that States will put forward proposals in this respect, but, more importantly, that they will reconfirm their commitments to these principles.52
Compliance by states with their obligations to refugees has usually been seen as a peremptory duty mandated by force of law, therefore the approach derived from mediation constructs as outlined earlier has not been usual thus far. Evidently, in the era when dictators and despots dominated the political landscape in Africa, it was possible to keep refugee protection priorities relatively well insulated and protected from countervailing domestic pressures. Authority and instrumentalised power, both legal and brutal, held sway over politics, thus they could be relied upon under those circumstances as the basis for ensuring the balance of forces. Moreover, with international refugee law, policy and practices then anchored firmly in the interstices and logic of the Cold War, they could benefit from the international consensus which at that time was fundamentally in favour of protection as the principal way of dealing with refugees.
This approach is not longer possible today. The ascendancy of authority and legal force over politics is being reversed, or at least has become attenuated. Meanwhile, the international consensus in favour of refugees has clearly shifted in the opposite direction. The mood, both abroad and at home, is one which is against refugees and their protection, while their control and containment are increasingly being embraced as the more timely policy objectives. Moreover, it is indeed true that the burdens of hosting refugees, along with the constraints which these movements bring with them, are clearly more obvious and critical today than ever before. All these factors are serving to place the refugee question increasingly in a political, rather than mainly legal, setting.
Configured along elements drawn from the concept of mediation, the refugee protection regime is better able to play out its requirements and needs in a setting of this nature. The notion of the protection crisis as a function of interests makes it possible not only for the legal, but also the political, social and economic factors relevant to the realisation of the refugee standards to be centred as integral elements of the discourse and action on compliance. Other non-legal and non-refugee actors, measures or realities which would otherwise normally be considered as only collateral, secondary or peripheral can also be brought further up to the centre of the dialogue. This more complex and varied consideration of course needs to be carried out, and be delimited within parameters which are legally denominated by international refugee and customary law and refugee law in particular.
Applying mediation constructs to the refugee problematic in Africa in this manner, three main areas can be examined in detail in the context of the critical state of refugee protection discussed in this paper. They are the root causes of refugee displacements, the challenges of asylum and those relating to refugee solutions, particularly repatriation.
Beginning with the root causes of refugee displacements, there can be no doubt that one among the most important causes of the closing of the vistas of refugee protection in Africa has originated from the endless cycles of displacement which asylum countries have had to bear. When the Tanzanian Minister vouchsafed that "enough is enough!"53, he was essentially voicing a frustration borne out of the protractedness of the refugee situations his country has had endure for years. Elsewhere, the depth of this frustration can also be seen from the fact that some asylum countries these days go so far as to see in repetitive cycles of refugee flows a design by the countries of origin concerned to transfer their national demographic and political problems to others.54
The conventional refugee system is neither established nor tooled with the capability to address effectively the complex, deep-seated political, religious, ethnic, social and economic dislocations out of which refugee displacements result. The shibboleth that prevention is better than cure, when applied to the wars, civil strife and conflicts which cause refugee displacement, points more firmly in the direction of the instruments and institutions of political mediation than those available within the refugee protection regime itself. Whereas, for the latter, humanitarian institutional mechanisms, most notably the UNHCR, are the key players, for purposes of mediation in the context of root causes, organisations dressed with political, peace and security mandates will be at the forefront.
The argument being made here is that mediation, understood as both the political function and institutions geared to the prevention of conflict and securing peace, has an important and decisive role to play in the sphere before the international refugee system itself is called into service. The latter system comes into play when war, social and political collapse or abuses of human rights have already brought about a failure in national protection. As the Secretary-General of the United Nations has put it:
Since 1970, more than 30 wars have been fought in Africa, most of them intra-state in origin. In 1996 alone, 14 of the 53 countries in Africa were afflicted by armed conflicts, accounting for more than half of all war-related deaths world-wide and resulting in more than 8 million refugees, returnees and displaced persons. The consequences of these conflicts have seriously undermined Africa's efforts to ensure long-term stability, prosperity, and peace for its peoples. Preventing such wars is no longer a matter of defending states or protecting allies. It is a matter of defending humanity itself. 55
While the language of prevention has been used for some time now in relation to the refugee problematic, demonstration that such initiatives are concretely applied to the problem is not easy to see. Certainly, it is usual to witness in Africa crises likely to produce refugee exoduses being allowed to fester and eventually erupt without any significant measures at prevention being taken. Indeed, instances of forced displacement of populations far outstrip in number any examples that might be cited of decisive efforts to stem the root causes.
This is the gap that must be bridged. Mediation, that is, a "system of phased and prioritised facilitating processes"56 for the management of political crises and conflicts, has to move up and occupy this space in operational, effective and decisive terms. Included among these would be measures more robust than consensual dialogue, and embracing preventive diplomacy, peace making and even peace enforcement. This is not to deny that dialogue-based mediation may often be the most effective form of third party intervention to a conflict. It is, rather, to underline that in the context of the kind of prevention under consideration here in relation to refugee displacement, a hierarchy of ascending responses each working at specific points along the "crisis spectrum" will be necessary.
The other situation where the refugee protection regime needs to be buttressed in this manner by mediation-related catalogues concerns the challenges that states and host communities face in meeting their obligations towards refugees. The discussion so far may have given the impression that states and communities are faltering in their responsibilities to refugees as a result of only moral turpitude or contemptuous disregard for human rights. It should be underlined, then, that some of the recent refugee influxes have been of such unprecedented magnitude, swiftness and complexity in profile that the very viability and survival of many a host state has been put at stake.
The refugee situation which developed in eastern Zaire (as it was then known) may have been an extreme example, however it is illustrative of the pressures which come to compromise the integrity of the asylum system and to weaken the resolve of even those states otherwise minded to abide by their obligations towards refugees. In that case, a defeated genocidal regime in effect managed to regroup within a refugee setting. From there, it started to engage in political and military actions which not only seriously jeopardised law, order and safety in the camps and local communities, but ultimately threatened bilateral and even regional security to the extreme. Not only had law and order virtually broken down, in almost all the areas into which displacement had taken place the asylum state had for all practical purposes lost both sovereignty and control of these locations. The impact on the environment, the social, and economic infrastructure was unbearable, with community activities and services having all but collapsed.
Yet, this was the situation into which the humanitarian refugee mandate was placed in trying to ensure that it could protect refugees.57 The task was, and could only be, an uphill and virtually impossible one. Under conditions of normal civic stability, the refugee mandate and its machinery are of course capable of discharging the specific functions necessary to secure the legal protection of refugees. In circumstances such as those which it faced in the Great Lakes region, that regime itself needed the assistance of different and superior mandates and machineries. For, although this was on the face of it a refugee setting, in reality it had become one of most serious and generalised crises of regional peace and stability ever witnessed anywhere in independent Africa.
At the core of that crisis was a severe, extra-constitutional competition for power between the former government, now regrouped in the refugee setting, and the new one which had assumed office in Rwanda. The logic and needs of exile politics, political competition, survival, war and conflict would now become the predominant aspects of this crisis, holding the refugee aspect itself hostage. The institutions, instruments and initiatives of conflict resolution and mediation were again the ones which were principally called for in this situation. To the extent that there were indeed genuine, innocent, civilian refugees in this situation, any protection and assistance measures for their benefit would not be possible unless peace, law and order could first be established. For the humanitarian refugee mandate to function, it was necessary for other mandates to negotiate, mediate or even enforce an enabling environment and space for it out of the sinister reality in which it became enveloped. The region as a whole, the country of asylum, the country of origin and their respective continental and international allies needed precisely this type of third agency involvement.
The notion of mediation being used here underlines the necessity to buttress and underpin the refugee protection regime by superior, more robust mandates capable of directly engaging questions of state political polarisation, competition and subversion. Even though these contradictory interests were playing themselves out in a refugee setting, refugee institutions and mechanisms were not enough to deal with the problem and should not have been allowed to be the only instruments applied in addressing the situation. That, however, is what happened, ensuring that the refugee question would become even more deeply imbedded in a configuration of contradictory domestic, regional and international political, military and economic forces. All this ultimately made the violent and tragic end which took place impossible to avoid. The need to underpin and buttress the refugee protection regime in the manner just argued is not unique to only those situations where a refugee setting is held hostage to deeply political and security factors. The interplay of economic, social, ethnic and other forces with the refugee issue have the same potential ultimately to compromise the refugee regime generally but, above all, the safety and security of refugees. This volatile interplay is depicted in refugee situations throughout Africa today and is found expressing itself in different forms. In some places it appears as the challenge of scarce resources and therefore competition over employment, social and community services. In others, it is the problem of access to land. Elsewhere, it could be the limited capacity of governments and communities to manage properly and effectively refugee matters. Problems of security, law and order and environmental pressures also typify this relationship.
In arguing that the notion of mediation has a role to play in under-girding refugee protection in these cases, the following additional points can be made. First of all, the legal and humanitarian framework under which refugees are protected needs itself to be protected and rescued from the sway of domestic political, social and economic contradictions in which it is increasingly being caught in many African countries. This rescue operation is not necessarily a legal or humanitarian function and must rely upon political and particularly mediation models of intervention, including a variety of advocacy measures.
Secondly, as underlined already, it is clear that legal obligations alone cannot any more be relied upon as the basis upon which states will be expected to discharge their responsibilities to refugees. Increasingly, asylum for refugees, their protection and treatment in line with international standards has to be negotiated and fought for from among the many municipal priorities and forces juxtaposed to and sometimes in fierce competition with those of refugee protection. Here, refugee protection will increasingly need to ally itself with negotiation and mediation-capable actors and resources, individual or organisational.
Thirdly, not only is it necessary to negotiate a constituency for refugee protection principles in the asylum context, it is also necessary to mediate and foster a constituency for refugees and refugee protection at a global level. Most crucially, the consensus building up world-wide against refugee protection has to be reversed and re-directed in favour of protection. The point is that as walls are erected against refugees in more and more of the world, this attitude and behaviour begins to be invested with a sense of normalcy. States for the time being minded to act in favour of refugees become emboldened to do otherwise. The primacy of a human rights-oriented protection regime must be renewed and affirmed.
Finally, with all the pressures that the refugee regime is weathering, including the social and economic burdens of providing asylum and protecting refugees, a genuine system of international solidarity and burden-sharing must be brought back to the centre of the refugee system. To act in favour of this shift back to the valorization of the refugee individual as the subject of rights and to build an international constituency for the refugee problem as such are both eminently political in the nature of the actions that must be taken.
We can now conclude this part of the paper by touching briefly on mediation in the context of solutions, namely refugee repatriation. Even more clearly than in the context of protection in the country of asylum, the return of refugees to their countries of origin in safety usually must be built up through hard bargaining and negotiations. Indeed, refugee repatriation is quite often a central issue of many a peace settlement. Even so, it is true that throughout Africa, the repatriation of refugees tends to take place in reaction to events that eventually come to pass out of their own motive force, rather than because efforts have been specifically devoted to creating the conditions necessary to enable refugees to return home. Indeed, there have been far too many examples where the inability to find a solution for refugees through return to their countries has led to massive political eruptions, war and violence.
A central challenge arising out of this situation is to break the situation whereby refugee situations endure for decades and generations of refugees yet the two countries concerned are unable able to engineer a solution, nor even attempt to apply to the problem the same tools which they so easily employ for other neighbourhood problems. Here again, essentially political efforts and energies are what are needed to find a way to move forward. As, through such initiatives, more and more refugees are able to make the choice safely to go home because conditions have been created accordingly, and it is made clear that refugee situations can indeed end, it should be possible for asylum states and communities to view their responsibilities towards refugees in less threatening terms and thus to renew their commitment to discharge the obligations which abound.
Theorising about mediation in the context of refugee protection at a mainly conceptual level as I have done in this paper should not downplay the critical nature of the ergonomic questions to which the theory gives rise. In essence, what has been argued is that various other mandates and actors, and particularly those involved in constituency-building for human rights, peace-making and fostering international security, law and order should rally to and under-gird the system of refugee protection. But, as every student of the subject knows, mediation efforts ultimately have to be given concrete and operational form. And this question expresses itself in many ways, for instance, which entity will bear the responsibility to discharge the mediation "mandate" of the type proposed in this paper? Is this a mandate which is only reactive or does it provide also the right of initiative? Indeed, is it mandatory or only voluntary? By what methodologies shall it be exercised? How will the political and security mandates on one hand and the refugee on the other hand interface with each other? Is there not the potential for conflict and that they would compromise each other?
It would lengthen this paper beyond the limits set for purposes of the present publication to attempt a fulsome answer to these questions. Suffice it to say that in the prolegomena set out thus far, my main interest has been to engender the more complex relationship between refugee protection and the underlying social and political economy elements I have sought to point to in the paper. The traditional way is to view the foundation of refugee protection primarily in relation to the responsibilities flowing from legal obligations. It is an argument which says, "well you signed the refugee conventions, so you must act accordingly". This is of course a legally correct and powerful argument which must continue to be made. Yet, a much broader menu of factors must be brought within the same optic of obligations and strategies to realise them. Mediation is one among these factors which, moving from the theoretical aspects explored in this paper, needs to be increasingly discussed concretely in the various roles and benefits it may bring to bear.
Beyond this, problem of refugee protection in Africa faces a deeper ideological challenge. This is that the African continent and its peoples need to come to terms with themselves and recreate an ideological footing in which Africans can implicitly accept, identify with and support each other in all their challenges, refugees included. Africa needs urgently a moral rebirth that, in the words of Barney Pityana, "promotes social responsibility and solidarity, the duty of care, the virtues of sensitivity, selflessness and devotion to duty and the vision of a society founded on justice and equality".58
The African Renaissance is today being posited as the essential ideological framework for this overall rebirth of the continent.59 Among the debates on this subject, questions have been asked as to what is meant by being African and the basis upon which the African Renaissance shall be organised and thrust forward. These questions need to be brought as well to the centre of the discussions on the resolution of the protection crisis on the continent. For, without redefining the issue as one of solidarity among Africans based on our common, shared identity and destiny, all the mediation that might be pressed into service on behalf of refugees will ultimately fail to deliver any result. So saying, the words of another who has inquired into this subject more fulsomely can be borrowed to conclude, most appropriately, the discussion in this paper:
The African Renaissance is an invitation to Africans - those on the continent and in the diaspora - to redefine themselves and take their destiny into their own hands. To succeed, Africans must have a common purpose and speak in one voice...We shall act as a collective for our own sake, for the sake of posterity and the mother continent.60
ENDNOTES
George Okoth-Obbo is UNHCR Deputy Regional Director for Southern Africa in Pretoria, South Africa.