CHAPTER ONE

1.0 GENERAL INTRODUCTION

For every human right guaranteed or provided for by law, there should be a remedy. Just as all

rights are for each and every individual, without any discrimination, so should remedies be. This

may not, however, necessarily be the case for some of the most vulnerable and disadvantaged

groups of people in our world, such as the refugees. It is the proposition of this dissertation that

rights do exist for all and the law does seek to protect all, at least in theory but the practice or

reality does not necessarily match the rhetoric.

International human rights law and international refugee law seem to have been conceived as

separate branches of international law and yet the latter is in fact a branch of the former as re-

affirmed in the Vienna Declaration and Programme of Action. 1 This dissertation seeks to

reinforce the correlation between refugee law and human rights law, how the latter augments the

former with particular regard to ensuring that refugees do obtain redress when their human rights

are violated, that refugees just like other human beings do have the right to an effective remedy

guaranteed under international law.

Many people are today forced to run away from their homes as a result of conflict, war,

systematic discrimination, or other forms of persecution from violent groups or their

governments. The major instruments on which they must rely to secure international protection

are the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. At the start of

the twenty-first century, more than sixty-eight years after the drafting of the 1951 Convention

Relating to the Status of Refugees, international refugee rights and protection is still at a

crossroads.
1
Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on
25 June 1993, Article 23.

1
1.1 BACKGROUND TO THE RESEARCH

In a globalizing world and a rapidly changing political environment, the Convention faces many

challenges. These include new forms of persecution and conflict, complex mixed migration

movements which includes forced human trafficking, the reluctance of many state governments

to accept refugees, and the restrictive interpretation of the Convention. Refugee protection

problems as Human rights issues under international law cannot be addressed in isolation. All

stakeholders concerned, whether they be international organizations, governments, judiciaries,

civil society organizations, non-governmental organizations, or academia, need to strengthen

their partnerships and clarify their roles for the protection of the rights of refugees under

international law. Clearer understanding and more consistent implementation by the stakeholders

are an integral part of ensuring that refugee protection burdens and responsibilities are shared

more equally, and that some of the world’s most vulnerable individuals are able to find durable

solutions to their plight and to enjoy the respect that they deserve as human beings. The

Declaration agreed by delegates at the Ministerial Meeting of States Parties to the 1951

Convention and/or 1967 Protocol in December 2001 called on Nation States to ‘strengthen

asylum and render protection more effective’. The world has changed radically since the

establishment of United Nation High Commissioner for Refugees(UNHCR) and the coming into

force of the Convention Relating to the Status of Refugees some sixty-eight years ago. The

modern regime of international refugee protection under international law has been built on these

beginnings in the aftermath of the Second World War and is now a complex structure affording

vital protection to millions of forcibly displaced people. Within this structure, the Convention

and its 1967 Protocol are widely acknowledged as enduring instruments with a ‘central place in

2
the international refugee protection regime’, as States Parties to the Convention and/or Protocol

declared in December 2001. Conclusions have, however, sometimes been drawn which put in

question the ongoing relevance of the Convention or which seem to call for its complete

overhaul, or even abandonment. Such conclusions are misguided, even dangerous. They

contribute to the waning quality of asylum, as State commitment to protection using the available

instruments starts to falter. UNHCR does of course recognize that the challenges today are many

and various and that there are gaps in the refugee protection framework, even while, at the core,

the Convention regime’s fundamental principles are as sound and necessary as ever. There have

been global consultations on international protection of the rights of refugees which have been

UNHCR’s effort to rise to modern challenges confronting refugee protection, and to shore up

support for the international framework of protection principles, as well as to explore the scope

for enhancing protection through new approaches, which nevertheless respect the concerns and

constraints of Nation States and other actors. The process was designed to promote better

understanding of today’s refugee protection dilemmas, from the perspective both of the providers

and of the beneficiaries of international refugee protection. State interests and refugee needs have

not been always easy to reconcile, but certainly the first step in this direction can only be taken

when the possibilities and limitations are properly appreciated.

The primary obligations to respect, protect, and ensure the enjoyment of human rights of

refugees under international convention rests with the states by passing suitable domestic

legislation or otherwise. Likewise, for the social and economic rights of the refugees. Being in a

foreign country, refugees are most vulnerable to the deprivation of minimum subsistence rights

like right to work, education, housing, as well as physical and mental health. Since flight to

safety cannot always be planned and majority of them do not have any valuable possessions,

3
refugees are often dependent upon host country for their survival needs. Failure of the state to

guarantee adequate social and economic conditions to refugees may result in violation of their

right to life and the prohibition of discrimination amongst various refugees. A deprivation of

social and economic rights to refugees, insofar as it forestalls them from realizing an adequate

standard of living, arguably, amounts to indirect refoulement. Such a denial of basic survival

rights is most likely to force the refugees to return to their country of origin where they maybe in

continued danger of being persecuted.

The 1951 Convention Relating to the Status of Refugees (CSR) and the 1967 Protocol to the

Convention2 are the modern legal embodiment of the ancient and universal tradition of providing

sanctuary to those at risk and in danger under international law. Both instruments reflect a

fundamental human rights value on which international consensus exists and are the first and

only instruments at the international level which specifically regulate the treatment of those who

are compelled to run away from their homes because of a rupture with their country of origin.

For half a century, refugees have clearly demonstrated their adaptability to changing factual

circumstances. Beginning with the European refugees from the Second World War, the 1951

Convention has successfully afforded the legal framework for the protection of refugees’ human

rights and individual or group from persecution whether from repressive regimes, the upheaval

caused by wars of independence, or the many ethnic conflicts of the post-Cold War era.3

1.2 STATEMENT OF THE PROBLEM

2
189 UNTS 150; 606 UNTS 267.
3
UNHCR, The State of the World’s Refugees (Oxford University Press, 2000).

4
International refugee protection is as necessary today as it was when the 1951 Convention was

adopted over sixty-eight years ago. Since the end of the Cold War, simmering tensions of an

inter-ethnic nature often exploited by populist politicians have erupted into conflict and strife.

Communities which lived together for generations have been separated and millions of people

displaced whether in the former Yugoslavia, the Great Lakes, the Caucasus, or Afghanistan. The

deliberate targeting of civilians and their enforced flight have not only represented methods of

warfare but have become the very objectives of the conflict. Clearly, this forced displacement is

for reasons which fall squarely within the Convention refugee definition. Yet States in some

regions have often been reluctant to acknowledge this at the outset of the crisis and have

developed ad hoc, discretionary responses instead. There are also many longstanding refugee

situations resulting from conflicts which have not been resolved with the ending of the Cold War

and have taken on a life of their own, often fueled by the plunder of valuable natural resources

and/or illicit trade in small arms.4 Endemic instability and insecurity often accompany

displacement within and from failed States or States where central government only controls part

of the territory – hardly offering conditions for safe return. The displacement resulting from such

situations can pose particular problems to host States, especially if they provide asylum to large

refugee communities, sometimes for decades. There is thus a real challenge as to how best to

share responsibilities so as to ease the burden on any one State unable to shoulder it entirely.

There is also a need to put in place burden sharing – not burden shifting – mechanisms which can

trigger timely responsibility sharing in any given situation. Xenophobia and intolerance towards

foreigners, as it happened recently in the Republic of South Africa against majorly Nigerians and

other African nationals and in particular towards refugees and asylum seekers have also
4
UN General Assembly resolution on the role of diamonds in fueling conflict, UN doc. A/RES/55/56, 1Dec. 2000;
generally, also http://www.un.org/peace/africa/Diamond.html. For the UN Conference on the Illicit Trade in Small
Arms and Light Weapons in All Its Aspects, New York, 9–20 July 2001, see UN doc. A/CONF.192/15 and
http://disarmament.un.org/cab/smallarms/.

5
increased in recent years and present a major problem. Certain media and politicians appear

increasingly ready to exploit the situation for their own ends. In addition, security concerns since

the attacks in the United States on 11 September 2001 dominate the debate, including in the

migration area, and have at times overshadowed the legitimate protection interests of individuals.

A number of countries have, for instance, revisited their asylum systems from a security angle

and have in the process tightened procedures and introduced substantial modifications, for

example, by broadening grounds for detention or reviewing claims for the purpose of detecting

potential security risks. In some situations, it has been noticeable that the post-September 11

context has been used by the United States and other countries to broaden the scope of provisions

of the 1951 Convention allowing refugees to be excluded from refugee status and/or to be

expelled from their respective nations. The degree of collaboration between immigration and

asylum authorities and the intelligence and criminal law enforcement branches has also been

stepped up. The growth of irregular migration, including the smuggling and trafficking of people,

presents a further challenge. These developments are in part a consequence of

globalization,which has facilitatedand strengthened transport andcommunication networks and

raised expectations. In part, the increase in irregular migration can also be viewed as a result of

restrictive immigration policies in many industrialized States, which oblige economic migrants

and refugees alike to use irregular channels, whether they are in search of a better life or, more

fundamentally, freedom from persecution. Visa requirements, carrier sanctions, readmission

agreements, the posting of immigration officers abroad and other similar measures are all

migration control tools which require proper protection safeguards and procedures if refugees are

to be able to reach safety. More specifically, in terms of the interpretation of the 1951

Convention itself, some States use various complementary forms of protection, which have had

6
the effect in some instances of diverting Convention refugees to lesser forms of protection. When

the protection afforded by international human rights instruments is also taken into account, the

result is that many States now have several different procedures for determining international

protection needs. This in turn raises questions concerning the inter-relationship between

international refugee laws on the one hand and international humanitarian and human rights law

on the other.

1.3 RESEARCH QUESTIONS

The dissertation seeks to address the following questions:

a. What exactly is meant by the “right to an effective remedy” under international law?

b. To what extent does refugee law provide for the right of a refugee to an effective remedy?

c. How is a refugee’s right to an effective remedy respected and protected in practice in both

domestic and international law?

1.4 AIMS AND OBJECTIVES OF THE RESEARCH

This dissertation aims to appraise the legal protection accorded to refugees, both under

international law and domestic law. It has oftentimes been said that the way States treat the

marginalized members in their society is an indicator of their level of human rights respect and

protection. Similarly, with regard to refugees (who also usually belong to the marginalized

groups), it has been said that the way States deal with refugees does say a lot about their human

rights health and their tolerance for ethnic, tribal and racial minorities. This could be said not

only of States, but the international community as a whole as we shall see in the ensuing body of

the research.

7
a. To appraise the dilemma faced by refugees which seems to be somewhat more

aggravated today than it was years back when States came up with the concept of refugee

protection through international refugee law.

b. To appraise whether States are more humanitarian and willing to provide temporary

protection to refugees, today as the trend has become one of restricting entry through the

tightening of border controls, enactment of restrictive migration and asylum laws, thus

making it difficult for refugees to secure asylum.

c. To appraise whether the problem of refugees still persists and refugee protection failing

to provide satisfactory solutionsand whether it has become pertinent that other ways of

dealing with the problem of refugees and the problems faced by refugees are explored.

d. To appraise whether International law, particularly human rights law, does seem to offer

some alternatives.

(a) Firstly, whether States should endeavor to abide by their human rights obligations in

good faith. By doing this, States would in effect be striving to prevent the situations

that cause or give rise to the refugee problem.

(b) Each State should therefore ensure that each and every person within its territory and

under its jurisdiction does enjoy all human rights and fundamental freedoms

recognized under international law and which the State has undertaken to respect,

protect and fulfill without discrimination on any of the various grounds enumerated

under the various instruments.

(c) Whether where a person’s rights are violated, infringed upon or abused, the State

should ensure that there is a remedy available to sufficiently redress the violation

suffered.

8
Where citizens have confidence in the human rights protection system of their State, there is no

reason for them to flee in search of refuge in another country. While this may appear rather too

idealistic, as it might seem with all human rights norms, what is required is that steps are taken

by each State to attain the objectives set forth by international human rights law. If each State did

its part in good faith, the problem of refugees would be abated to a great extent.This dissertation

is therefore aimed at highlighting these points and proffering solutions to them.

1.5 SCOPE AND LIMITATIONS OF THE RESEARCH

The rights to an effective remedy, just like all other rights, pertains to each and every person

whose human rights have been violated, abused or infringed upon under international law. This

dissertation shall focus on the applicability of the rights to a special and vulnerable group of

persons, the refugees who are, oftentimes, victims or a product of gross human rights violations

and even in places where they obtain asylum or refuge, their rights might continue to be violated

albeit on another scale. The dissertation shall while conducting an appraisal, examine also the

applicability of the concept of the rights to an effective remedy to refugees, mainly in the country

where they manage to obtain asylum. Since Nigeria do not have a well-documented and

internationally recognized history of refugees presently other than IDPs, the African country

chosen by this researcher to be examined shall be Uganda, for reasons that shall be explained

shortly. It is pertinent that some space and time is allocated to examining whether international

human rights law and refugee law in particular, adequately provides for an effective rights

remedy to refugees (particularly those on the African continent) considering that they are victims

of gross or serious human rights violations, which ordinarily should be redressed. The

dissertation shall thereby stretch from a perusal of a selection of relevant normative international

and regional human rights standards regarding the right to an effective remedy, to an

9
examination of the domestic application of those standards, and how this is reinforced by

international and regional mechanisms in an attempt to examine how effectively these standards

are being implemented in order to achieve their objective with particular regard to refugees.

Taking into account that the rights of refugees under international law is complex, its

implementation and appraisal is a relatively new field of interest and study particularly in

Nigeria, and particularly since Nigeria is not known to have large numbers of refugees within the

international law definition, so information is very scarce. There is also a paucity of literature

available; therefore, this researcher decided to choose Uganda, as an African country and as a

basis for appraisal within the African continent. There is also limited availability of resources to

check on the veracity or order wise on some of the literature materials being used in this

research. To overcome most of these limitations, there will be judicious reliance on modern

technology for research and by secondary sources of information as well as investigation for

comparative analysis on the nature and extent of protecting the human rights of refugees under

international law.

1.6 SIGNIFICANCEOFTHERESEARCH

In the Vienna Declaration and Programme of Action, States recognized that gross human rights

violations, including armed conflicts, are among the multiple and complex factors responsible for

the refugee situation. The UN General Assembly has also gone ahead to adopt Basic Principles

and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of

International Human Rights Law and Serious Violations of International Humanitarian Law

(hereinafter referred to as ‘Basic Principles’) but then these have not yet been applied to redress

refugee issues in particular. As have been seen, refugee law focuses on offering an alternative

solution rather than on redressing the problem, which seems to conflict with the principle that

10
where there is a violation of a right, there should be an effective remedy. The dilemma here is

that the entity, that is, the State, which would be providing the effective remedy is unable to or

unwilling to do so. Available literature explains that this is because international human rights

standards derive their validity and binding nature from treaties, and as a matter of international

law, a State owes its legal obligation to other States parties to the treaty. As such it would be

other States that would ensure that a deviant State actually ‘toed the line’. This would in most

cases be addressed if States took the States communication procedures seriously or referred the

matter to the International Court of Justice as envisaged under Article 38 of the CSR. Therefore,

this dissertation will contribute immensely in re-evaluating the manner in which the rights of

refugees are protected by State parties under international law while offering solutions where

necessary.

1.7RESEARCH METHODOLOGY

Most of the study will be conducted through review of available literature regarding the right to

an effective remedy for refugees, which will include looking at a selection of the relevant

international and regional human rights instruments, examining relevant jurisprudence and

various commentaries and legal texts. The Internet also will provide a very useful source of

research material. With regard to the domestic implementation of the right to an effective

remedy, Uganda was chosen as an example of a country in the African continent. An appraisal of

Uganda’s refugee record with the Uganda’s National Human Rights Institution and also from the

Judiciary will be done. There will not be, however, any structured or set questions to be

employed for the purpose. A lot more information will also be obtained through the annual

reports of various relevant institutions in Uganda. The methodology for this research is non-

fieldwork. In the course of conducting this research study, the bulk of the work will be library-

11
based research; attention will be paid to a critical review of the legal frameworks. There will also

be a general survey of the relevant literatures in the area of the rights of refugees under

international law such as textbooks, journals, articles, workshops and seminar presentations,

which will serve as sources of information.

CHAPTER TWO

LITERATURE REVIEW AND THEORETICAL FRAMEWORK

2.1 CONCEPTUAL FRAMEWORK TO RIGHTS OF REFUGEES UNDER

INTERNATIONAL LAW

12
In the light of the ubi jus, ibiremedium principle, it is pertinent that a human rights protection

regime not only sets down the rights it seeks to protect but also ensure that in case of a violation

of any of those rights, there is an ensuing remedy. Hence the need for the right to an effective

remedy in international law becomes a strong guiding principle. As such there is a series of

international human rights instruments establishing the right to an effective remedy, which shall

be examined in this chapter. This Chapter seeks to examine the content of the right to an

effective remedy as laid down in International Bill of Rights, comprising of the Universal

Declaration of Human Rights, the International Covenant on Economic, Social and Cultural

Rights and the International Covenant on Civil and Political Rights and its two optional

Protocols. These instruments lay down the standards upon which all other human rights

instruments, both international and regional are tailored. On the regional level, this researcher

shall look at the African Charter on Human and Peoples’ Rights in particular, but in examining

the jurisprudence and interpretation of the meaning of the right toan effective remedy, attention

shall also be paid to the jurisprudence of the European Court of Human Rights and interpretation

of the right under the European Convention on Human Rights. The Chapter shall conclude with a

summary enumerating the contents of the rights of refugees towards effective remedy under

international law and under what circumstances violation of the right may be invoked.

A refugee, generally speaking, is a displaced person who has been forced to cross national

boundaries and who cannot return home safely. Such a person may be called an asylum

seeker until granted refugee status by the contracting state or the United Nations High

Commissioner for Refugees (UNHCR)5 if they formally make a claim for asylum.6 The lead

5
Bankier, D "Nuremberg Laws" (1990) The Encyclopedia of the Holocaust Volume 3 edited by Israel Gutman, New
York: Macmillan, pages 1076 – 1077.
6
League of Nations Treaty Series, vol. 171, p. 77.

13
international agency coordinating refugee protection is the United Nations Office of the

UNHCR. The United Nations has a second office for refugees, the United Nations Relief and

Works Agency (UNRWA), which is solely responsible for supporting the large majority of 

refugees around the world.7

The first modern definition of international refugee status came about under the League of

Nations in 1921 from the Commission for Refugees. Following World War II, and in response to

the large numbers of people fleeing Eastern Europe, the UN 1951 Refugee Convention defined

"refugee" (in Article 1.A.2) as any person who:8

"owing to 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."9

In 1967, the definition was basically confirmed by the UN Protocol Relating to the Status of

Refugees. The Convention Governing the Specific Aspects of Refugee Problems in

Africa expanded the 1951 definition, which the (Organization of African Unity) now ‘The

African Union’ adopted in 1969.

The Universal Declaration of Human Rights (UDHR)10 is considered the mother of all human

rights instruments and in yet another instance is referred to as the ‘Magna Carta for all
7
Under Article 28 of the Convention.
8
Bankier, D. (1990) Vol. 3. p. 1081.

9
Bankier, D, (1990). Vol. 3, p, 1087.

10
United Nations, Universal Declaration of Human Rights, General Assembly Resolution 217A (III), 3rd Session,
Part 1, Resolutions, p.71 adopted on 10th December 1948.

14
humanity’.11 Although not a legally binding instrument, the Declaration complements the human

rights provisions of the Charter of the United Nations (UN)12 which are binding on all its

member States.13 The UDHR serves as a ‘common standard of achievement for all peoples and

all nations’14 and contains a statement of rights, encompassing all categories of human rights,

which all Member States of the UN are obliged to respect. 15 Article 8 of UDHR provides for the

right to an effective remedy as follows: “Everyone has the right to an effective remedy by the

competent national tribunals for acts violating the fundamental rights granted him/her by

constitution or by law”. Møse explains that Article 8 has to be viewed in relation to other articles

of the UDHR including Article 2 on non-discrimination, Article 9 concerning the protection from

arbitrary arrest, detention or exile and Article 10 on the right to fair trial which includes a fair

hearing before an independent and impartial tribunal.16

In all subsequent international human rights treaties, particularly the ICCPR and the ICESCR,

and the International Court of Justice seems to have developed a similar view. In one of the

Advisory Opinions it was stated that “although the affirmations of the Declaration are not

binding quainter national convention...they can bind the states on the basis of custom...whether

because they constituted a codification of customary law...or because they have acquired the

force of custom through a general practice accepted as law...”. 17 It therefore seems to be

11
Office of the High Commissioner for Human Rights, www.unhchr.ch/udhr/miscinfo/carta.htm, visited on 6th
January 2020.
12
Adopted on 26 June 1945: Article 55(c) calls for the promotion of universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction as to race, sex, language or religion. This should be read
together with Article 56 which enjoins all Member States to ‘take joint and separate action for the achievement of
the purposes set forth in Article 55.
13
Ibid, Article 2(2).
14
Preamble to the UDHR, supra note 5.
15
Lauterpacht, H (1968) ‘International Law and Human Rights’ (Archon Books: Hamden Publishers), p. 34.
16
Møse, E (1999) ‘Article 8’, in G. Alfredsson& A. Eide (eds.), The Universal Declaration of Human Rights: A
Common Standard of Achievement (NijhoffMartinus Publishers, The Hague/Boston/London,) p.195.
17
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
Notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, separate opinion of Vice-President
Ammoun, p. 76.

15
incumbent on all States to ensure that every individual whose rights have been violated enjoys

the right to an effective remedy as laid down in the UDHR.

2.2 REVIEW OF PREVIOUS LITERATURES ON RIGHTS OF REFUGEES UNDER

INTERNATIONAL LAW

The International Covenant on Economic, Social and Cultural Rights (ICESCR) 18 is a legally

binding document in international law and so all States parties 19 to it are obligated to fulfill its

provisions in good faith.20 Article 2(1) of the ICESCR lays down the general obligation of States

to ensure the effective implementation and enjoyment of the covenant rights by all persons in

their territory. The Article stipulates: “Each State Party to the present Covenant undertakes to

take steps, individually and through international assistance and co-operation, especially

economic and technical, to the maximum of its available resources, with a view to achieving

progressively the full realization of the rights recognized in the present Covenant by all

appropriate means, including particularly the adoption of legislative measures.” This Article is

not exactly assertive in the sense that it does not impose an explicit and unambiguous obligation

on States parties to recognize and respect the rights set forth in the Covenant. Its language is

generally weak, especially when compared to a parallel provision in its sister covenant on civil

and political rights, as will be shown below. As a result of this, it has often been argued that

economic, social and cultural rights are not justiciable in nature, 21 they are too vague to be

subject to judicial adjudication and further, if the courts adjudicated upon these rights they would

be making policy which falls in the realm of the executive and legislative arms of government. 22

18
Adopted by UNGA Resolution 2200A (XXI) of 16 December 1966 and entered into force on 3 January 1976.
19
Currently there are 156 States parties to the ICESCR.
20
Vienna Convention on the Law of Treaties, 1969, Article 26.
21
Scheinin, M (2001) 'Economic and Social Rights as Legal Rights’ in A. Eide et al (eds.), Economic, Social and
Cultural Rights (MartinusNijhoff Publishers, Dordrecht/Boston/London), p.10.
22
Vierdag, E. G (1978) ‘The Legal Nature of the Rights Granted by the International Covenant on Economic, Social
and Cultural Rights’ Vol.9 Netherlands Yearbook of International Law, p.103.

16
This interpretation of Article 2(1) would in effect mean that in case of a violation of any of the

economic, social and cultural rights, there cannot be an effective remedy that could be obtained

from the courts of law or any other quasi-judicial tribunal or body; the only available remedy

would be purely administrative or even political governed by State policy and programmes.

When interpreted in the light of Article 8 of the UDHR such an interpretation that negates the

right to an effective remedy for this category of rights would be going against the spirit of the

UDHR, which does not distinguish between thevarious categories of rights and upon which the

ICESCR is modeled.23

The Committee on Economic, Social and Cultural Rights (CESCR or ‘the committee’), which is

responsible for overseeing the implementation of the covenant24 by States parties, has

endeavored to elucidate the meaning of Article 2(1). In its General Comment on the nature of

State parties’ obligations25the committee has stated that “among the measures which might be

considered appropriate, in addition to legislation, is the provision of judicial remedies with

respect to rights which may, in accordance with the national legal system, be considered

justiciable”.26 The committee emphasizes the need of States to adopt laws aimed at the

realization of the covenant rights and further urges them to show “whether such laws create any

right of action on behalf of individuals or groups who feel that their rights are not being fully

realized”.27 Having affirmed that the right to an effective remedy and the ensuing obligation on

States parties to ensure the same does indeed exist under Article 2(1) of the ICESCR, the

23
ICESCR Preamble, Para. 3.
24
More will be said about the CESCR in chapter five.
25
CESCR, Nature of States Parties Obligations (Article 2, Par. 1): 14/12/90, CESCR General Comment 3.
26
Ibid, Para. 6. In fact the committee goes on to list a number of articles in the covenant which would be “capable of
immediate application by judicial and other organs in many national legal systems. This Articles are 3 on equality,
7(a)(i) on fair remuneration, 8 on the right to form and join trade unions, 10(3) on protection of children and young
persons, 13(2)(a) on the right to compulsory primary education, (3) and (4) on liberty of parents and guardians to
choose their children’s schools and 15(3) on respect for freedom for scientific research and creative activity.
27
Ibid, para. 7.

17
committee in yet another general comment 28 details out the nature of that right. It stresses that

“...appropriate means of redress, or remedies, must be available to any aggrieved individual or

group, and appropriate means of ensuring governmental accountability must be put in place”. 29

The committee further re-affirms the connection between Article 2(1) and Article 8 of the UDHR

by mentioning the right to an effective remedy in the latter Article as one of the principles in

light of which the domestic application of the covenant must be considered and that “a State

party seeking to justify its failure to provide any domestic legal remedies for violations of

economic, social and cultural rights would need to show that such remedies are not “appropriate

means” ...or that, in view of other means used, they are unnecessary...”. 30 Unlike the UDHR

which does not specify the nature of the ‘national tribunals’ from which one may seek an

effective remedy, the committee has stressed that “the right to an effective remedy need not be

interpreted as always requiring a judicial remedy. Administrative remedies would also be

adequate if the responsible authority took into account the requirements ofthe Covenant in their

decision-making”.31 However, such remedies would have to be accessible, affordable, timely and

effective and it would be most appropriate if there were an “ultimate right of judicial appeal from

administrative procedures of this type”.32 Although there are no cases when the application of

this provision (Article 2(1) of the ICESCR with regard to the right to an effective remedy) has

been brought into issue,33 some attempts have been made to expound on this right. The

Maastricht guidelines provide that any person or group whose economic, social and cultural

rights have been violated should have access to effective judicial or other appropriate remedies
28
CESCR, The Domestic Application of the Covenant: 03/12/98, CESCR General Comment 9 E/C.12/199824.
29
Ibid, para. 2.
30
Ibid, para. 3.
31
Ibid, para. 9.
32
Ibid.
33
The CESCR does not currently have the mandate to receive complaints of violations of the covenant rights,
However, discussions of adopting an Optional Protocol to the ICESCR are underway, which if successful, would
enable individuals to raise complaints before the CESCR.

18
that accord them “adequate reparation, which may take the form of restitution, compensation,

rehabilitation and satisfaction or guarantees of non-repetition”. 34 There is also a variety of

jurisprudence from national courts, other international and regional bodies in which violations of

economic, social and cultural rights have been alleged and remedies have been obtained. Such

remedies have included declaring that a violation of a right has occurred and ensuring that a

given result is achieved,35 ordering injunctive relief,36 ordering the creation of a regulatory

regime in which measures are actually specified asbeing necessary to solve a defined and

concrete problem37 and reparation or payment of compensation. 38 From the above discussion, it is

clear that States parties to the ICESCR have the obligation to ensure that all persons within each

State’s jurisdiction enjoy the right to an effective remedy when a violation of any of the

economic, social and cultural rights occurs and that arguments such as non-justiciability or non-

self-execution of those rights would not stand. They would actually go against the general

principle of ubi jus, ibiremedium.

The provision on the right to an effective remedy under the International Covenant on Civil and

Political Rights (ICCPR)39 is quite clearer, more elaborate and more specific when compared to

similar provisions in both the UDHR and the ICESCR. Article 2(3) of the ICCPR provides:
34
The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, 22-26 January
1997, paras. 22 and 23. Available athttp://www1.umn.edu/humanrts/instree/Maastrichtguidelines_.html. Visited on
6th January 2020.
35
Minister of Health and Others v. Treatment Action Campaign and Others in which a violation of the right to health
was found and the Court ordered the Government to implement a comprehensive programme to realize
progressively the rights of pregnant women and their children to have access to health services including HIV
testing and counselling. Available in Vol. 97, American Journal of International Law (2003) p.675.
36
Tellis, O & Others v. Bombay Municipal Corporation and Others (AIR, 1986, SC 180) available at
www.elaw.org/resources/text.asp?ID=1104 visited on 6th January 2020. The Court ordered the non-removal of
slums until a stated date and even then the removal should be in accordance with the Court’s judgment.
37
Campaign for Fiscal Equity et al v. the State of New York et al (2001) 719 NYS 2d 475, available at
www.cfequity.org/background.html visited on 6th January 2020.
38
Gaygusuz v. Austria, (1996), ECHR 39/1995/545/631, Reports of Judgments and Decisions 1996- IV, para.
63. Though the case was basically on discrimination, the discrimination affected the complainant’s right to
emergency assistance, an economic and social right.
39
Adopted by UN General Assembly Resolution 2200A (XXI) of 16 December 1966 and entered into force on 23
March 1976.

19
“Each State Party to the present Covenant undertakes: a)To ensure that any person whose rights

or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding

that the violation has been committed by persons acting in an official capacity; b)To ensure that

any person claiming such a remedy shall have his right thereto determined by competent judicial,

administrative or legislative authorities, or by any other competent authorities provided for by

the legal system of the State, and to develop the possibilities of a judicial remedy; c) To ensure

that the competent authorities shall enforce such remedies when granted”.

The importance of this Article 2 (3) cannot be overstated. It provides a vital guarantee to the

rights stated in within the ICCPR and it is therefore “essential to the Covenant’s object and

purpose”.40 It reinforces the position of both the UDHR and the ICESCR that the provision of

remedies is primarily a domestic matter. Commenting upon a similar provision in the European

Convention on Human Rights (ECHR),41 the European Court of Human Rights (hereinafter ‘the

European Court) has stated that the Article gives direct expression to the States’ obligation to

protect human rights first and foremost within their own legal system and that it establishes an

additional guarantee for an individual in order to ensure that he or she effectively enjoys those

rights.42 Hence, States must ensure that they put in place such remedial institutions and

procedures to which victims of violations of human rights may have access. 43 More specifically,

the availability of a remedy must not be hindered by the acts or omissions of the State. 44 The

40
Human Rights Committee (HRC), General Comment on Issues Relating to Reservations Made upon
Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under
Article 41 of the Covenant, General Comment No. 24, UN Doc. CCPR/21/Rev.1/Add.6 (1994), Para.11.
41
Article 13 of the ECHR provides “Everyone whose rights and freedoms as set forth in this Convention are violated
shall have an effective remedy before a national authority notwithstanding that the violation has been committed by
persons acting in an official capacity”.
42
Kudla v. Poland, (2000) ECHR no. 30210/96, Reports of Judgments and Decisions 2000-XI, p.237, para.152. See
also Aydin v. Turkey, ECHR no. 57/1996/676/866, Reports of Judgments and Decisions 1997-VI, p.1895, para.103.
43
Shelton, D (2005) ‘Remedies in International Human Rights Law’ (Oxford University Press, Oxford/New York) p.
8.
44
Aydin case, supra note 36, para.103.

20
Human Rights Committee (HRC)45has emphasized that Article 2(3) obliges States parties to

ensure that “individuals have accessible and effective remedies to vindicate” the Covenant

rights.46 It goes on to state that such remedies can be “effectively assured by the judiciary,

administrative mechanisms, and national human rights institutions”. 47 Therefore, a remedy need

not be judicial to satisfy the standard of effectiveness required under Article 2(3). Nonetheless, it

has been observed that “decisions made solely by political or subordinate administrative organs

do not constitute an effective remedy within the meaning of paragraph 3(b)” and that “States

parties are obligated to place priority on judicial remedies”. 48 This is clearly illustrated in the

decision of the HRC in Vicente et al v. Colombia where it was stated, “in case of violations of

basic human rights, in particular, the right to life, purely administrative and disciplinary

measures cannot be considered adequate and effective”. 49 Upon interpreting Article 2(3),

Schachter is of the view that it “imposes a requirement of independence and objectivity in the

conduct of public officials responsible for granting remedies to individuals whose rights have

been infringed”.50 This then brings into play the procedural guarantees provided for under Article

14 on the right to a fair trial. Chief among the elements stated in Article 14(1) is that everyone is

entitled to a fair hearing before a “‘competent, independent and fair tribunal established by law”.

In fact, the European Court has stated that in most cases Article 6(1) of the ECHR (equivalent to

Article 14(1) of the ICCPR) is deemed to constitute less specialism in relation to Article 13 of
45
This is a body established under Article 28 of the ICCPR composed of 18 independent experts with a mandate to
monitor the implementation of the ICCPR by its States parties. More shall be said about the work of the HRC in
Chapter 5.
46
HRC, General Comment No. 31[80] ‘Nature of the General Obligation Imposed on States Parties to the Covenant’:
26/05/2004. CCPR/C/Rev.1/Add.13. (General Comments) para. 15.
47
Ibid.
48
Nowak, M (1993)‘UN Covenant on Civil and Political Rights: CCPR Commentary (N.P. Engel Publisher,
Kehl/Strasbourg/Arlington) p. 59. See also R.T. v. France, Communication No. 262/87, para. 74, in which the HRC
clearly indicates its preference for judicial remedies when determining whether local remedies have been exhausted.
49
Vicente et al v. Colombia, Communication No. 612/1995, para. 5.2.
50
Schachter, O (1981) ’The Obligation to Implement the Covenant in Domestic Law’, in L. Henkin (ed.), The
International Bill of Rights: The Covenant on Civil and Political Rights (Columbia University Press, New York)
p.331.

21
the ECHR (the equivalent of Article 2(3) of the ICCPR). 51 It therefore seems that a remedy that

is afforded by a body that complies with the provisions of Article 14, particularly Article 14(1)

of the ICCPR will in most cases meet the requirement of effectiveness under Article 2(3). The

element of availability of remedies goes hand in hand with that of accessibility. This calls to

mind Article 2(1) of the ICCPR which prohibits discrimination on grounds of race, color, sex,

language, religion, political or other opinion, national or social origin, property, birth or other

status. This provision is very important for the vulnerable members of society, for instance,

refugees in case they need to have access to aneffective remedy. The HRC has decided that

failure of a State to provide legal aid interferes with the right to pursue legal remedies in

violation of Article 14(3)(d) in conjunction with Article 2(3) of the ICCPR. 52 The point on

accessibility shall be further dwelt upon in the following chapters. Although no particular

remedies are mentioned in Article 2(3), there are quite a number of remedies that are envisaged

under the ICCPR in case of a violation of any of the rights. In particular, Article 6(4) provides

for the right to apply for pardon, amnesty or commutation of a death sentence; the rights to

habeas corpus and judicial review under Articles 9(3) and (4); the right to a remedy against

expulsion under Article 13; the right to an enforceable right of compensation in case anyone has

been unlawfully arrested, detained or convicted under Articles 9(5) and 14(6). In addition to

these remedies, the HRC has provided a non-exhaustive list of possible remedies which includes

reparation53- this could involve restitution, rehabilitation and measures of satisfaction, such as

public apologies, public memorials, guarantees of non- repetition and changes in relevant laws

and practices,54 as well as bringing to justice the perpetrators of human rights violations. The
51
Kudla case, supra note 36, p.235, para.146.
52
Thomas v. Jamaica, (1993) Communication no. 321/1988, U.N. Doc. CCPR/C/49/D/321/1988.
53
Ibid, paras. 16, 17 and 18.
54
This point was underscored in Stalla Costa v. Uruguay, (1990) Communication no. 198/1985, U.N. Doc.
CCPR/C/OP/2 at 221 in which a reparations law providing preferential treatment to reinstatement for civil servants
dismissed by the military government for political reasons constituted an effective remedy against the violation of

22
HRC has insisted upon the latter remedy in a number of cases such as Hugo Rodriguez v.

Uruguay55 where the respondent State had granted amnesty to allegedtorturers without

conducting any investigations. The HRC ruled that failure to carry out investigations, prosecute

and punish the alleged perpetrators violated the right to an effective remedy. 56 Similarly, the

European Court has held that “the notion of an “effective remedy” entails, in addition to the

payment of compensation where appropriate, a thorough and effective investigation capable of

leading to the identificationand punishment of that responsible and including effective access by

the complainant to the investigatory procedure”.57 It, however, needs to be made clear that

success before a national body is not a necessary condition for the remedy to be effective. 58 The

requirement is that there is a remedy which could be granted, even if it was not granted in the

particular case. The critical inquiry is whether the remedy is capable of scrutinizing the

substance of the complaint. 59 As such the European Court has considered judicial review an

effective remedy especially where a country’s courts can “effectively control the legality of

executive discretion on substantive and procedural grounds and quash decisions as

appropriate”.60 Most decisions of the HRC seem to indicate that Article 2(3) may be focused on

‘repressive’ as opposed to ‘preventive remedies’. This was highlighted in C.F. et al v. Canada

where it was stated “[t]he Covenant provides that a remedy shall be granted whenever a violation

of one of the rights guaranteed by it has occurred; consequently, it does not generally prescribe

preventive protection, but confines itself to requiring effective redress ex post facto”. 61 In some

Article 25 of the ICCPR.

55
Communication no.322/1988, U.N. Doc. CCPR/C/51/D/322/1988 (1994).
56
Bautista v. Colombia, (1995) Communication no. 563/1993, U.N. Doc. CCPR/C/55/D/563/1993, para. 10.
57
Aydin case, supra note 36, para.103.
58
Vilvarajah and others v. the United Kingdom (1991), ECHR no. 45/1990/236/302-306, Reports of Judgments and
Decisions 214-220, para.122.
59
Blake, N & Husain, R (2003) ‘Immigration, Asylum and Human Rights’ (Oxford University Press, New York) p.
238.
60
Vilvarajah case, supra note 53, paras. 123-126.
61
Communication no. 113/1981, U.N. Doc. CCPR/C/OP/1 at 13 (1980), para. 6.2.

23
cases, however, such ex post fact remedies have been considered ineffective in which case

preventive remedies would be the most effective. 62 The HRC has also deemed provisional or

interim measures to be necessary in order to avoid continuing violations as a requirement of an

effective remedy in some instances.63 This is more so in cases involving the protection of the

right to life. All in all, as to whether or not a particular remedy is effective will depend on the

circumstances of each particular case taking into consideration the respective national legal

system and the special features ofthe subjective right concerned. 64 Hence, what may be effective

in one case may not necessarily be the effective remedy in another case with regard to a

particular right. Nonetheless, the HRC has insisted that the remedy ought to be effective in fact

not just in theory. In its General Comment it has stated that even where its legal system is

formally endowed with the appropriate remedy, a State should provide information on the

obstacles to the effectiveness of the existing remedies.65 In its Guidelines on State Reporting, the

UN has also lent its voice to that of HRC by calling upon States to “describe the effective

remedies that are available to any individual through national tribunals for acts violating the

fundamental rights granted by the constitution or by law. In addition, States should indicate what

procedural guarantees exist to ensure the rights are respected and enforced by an independent

tribunal in a fair hearing”.66 This brings us to the last element of an effective remedy embodied in

Article 2(3): enforcement. Where a remedy is granted, but not enforced, there shall be a violation

of Article 2(3) as was found in Graciela Baritussiov. Uruguay 67 in which case, the complainant

62
Chief Ominayak& the Lubicon Lake Band v. Canada, Communication no. 167/1984, U.N. Doc.
CCPR/C/38/D/167/1984 (1990); and also Hammel v. Madagascar, Communication no. 155/1983, U.N. Doc.
CCPR/C/OP/2 at 11 (1990).
63
General Comment 31, supra note 41, Para.19.
64
Nowak, M supra note 41, p.63, para. 62.
65
General Comment 31, supra note 31, Para. 20.
66
United Nations, Harmonized Guidelines on Reporting Under International Human Rights Treaties Including
Guidelines on an Expanded Core Document and Treaty-Specific Targeted Documents: Report of the Secretariat,
HRI/MC/2005/3, para.47.
67
Communication no. 25/1978, U.N. Doc. CCPR/C/OP/1 at 136 (1985).

24
was kept in prison for years after a release order had been signed. Nowak explains that the type

of enforcement will depend on the character of the right violated and the type of remedy

afforded.68 Whereas in some cases direct enforcement, that is, by execution of an enforceable

judgment, will be most appropriate, in some cases it may be by rescission of an offending law,

by an order, an administrative act or some other action by the responsible organ. 69 Article 2(3) is

supplementary to Article 8 of the UDHR and Article 2(1) of the ICECSR and so its interpretation

and application does indeed elaborate on the right to an effective remedy under the latter two

instruments, and read all together, one can then clearly come up with what is meant by the right

to an effective remedy in international human rights law. In order to get a more complete and

fuller picture on what is meant by an effective remedy, it is necessary at this point to have a look

at the interpretation of the rights under the African regional system since Africa is much closer as

a region to this researcher.

Unlike the international bill of rights, the African Charter on Human and Peoples’ Rights

(ACHPR or ‘the Charter’)70 does not contain a specific provision on the right to an effective

remedy. Instead the right is derived from Article 7 which provides for the general right of

everyone to have his or her cause heard, read together with Article 26 which provides for the

duty of States to “guarantee the independence of the Courts and allow the establishment and

improvement of appropriate national institutions entrusted with the promotion and protection of

the rights and freedoms guaranteed in the Charter”. The African Commission on Human and

Peoples’ Rights (hereinafter ‘the Commission’)71 has, in order to address this glaring lacuna in

68
Nowak, M supra note 43, p. 64.
69
Ibid.
70
Adopted June 27,1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986.
The Charter has since been adopted by the African Union (AU), which reconstituted the Organization of African
Unity (OAU).
71
Established under Article 30 of the Charter with a mandate to promote and ensure the protection of human and
people’s rights in Africa.

25
the Charter, come up with Principles and Guidelines on the Right to a Fair Trial and Legal

Assistance in Africa,72 in which it has clearly laid out the components of a fair trial synonymous

with and in fact more elaborate than those under the ICCPR. With regard to the right to an

effective remedy, the principles clearly provide for this right to include access to justice,

reparation for the harm suffered, and access to the factual information regarding the violation. 73

Under the principles, States are obligated to ensure that any person whose rights have been

violated has aneffective remedy by a competent judicial body 74 and that the remedy shall be

enforced by competent authorities. Furthermore, in its guidelines on State reporting75 the

Commission has stated that each State party to the Charter is expected to report on “what

judicial, administrative or other authorities have jurisdiction affecting human and peoples’

rights” and “on what remedies are available to an individual whose rights are violated”. Turning

to the jurisprudence of the African Commission, for the right to an effective remedy to be

fulfilled, three criteria76 should be met: the remedy must be available, effective and sufficient as

stated in Jawara v. the Gambia.77 In this case the complainant, a former Head of the respondent

State alleged that the military junta that ousted him had inter alia abolished the Bill of Rights

under the 1970 Gambia Constitution by Military Decree and also ousted the competence of the

courts to examine or question the validity of any such decree. Explaining the three criteria, the

72
African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and
Legal Assistance in Africa, available at http://www.achpr.org/english/declarations/Guidelines_Trial_en.html visited
on 14th January 2020.
73
Ibid, para. C.
74
Although emphasis is on judicial body, administrative or legislative authorities are taken cognizance of a
competent. See ibid, para. C.
75
General Guidelines Regarding the Form and Contents of Reports from States on Civil and Political Rights, Part
One (ii, iii and iv) in R. Murray and M. Evans (eds.), Documents of the African Commission on Human and
Peoples’ Rights (Hart Publishing, Oxford and Portland, Oregon, 2001) p. 51.
76
The three criteria are not distinct from the other and from the decisions of the Commission, it is quite clear that
they do overlap. See also N.J. Udombana, ‘So Far, So Fair: The Local Remedies Rule in the Jurisprudence of the
African Commission on Human and Peoples’ Rights’, Vol. 97:1, The American Journal of International Law (2003),
p. 21.
77
African Commission on Human and Peoples’ Rights, Communication Nos. 147/95 and 149/96 (2000) para.31.

26
Commission stated “a remedy is considered available if the petitioner can pursue it without

impediment, it is deemed effective if it offers a prospect of success, and it is found sufficient if it

is capable of redressing the complaint”. 78 The Commission on the issue of effectiveness of local

remedies decided that: “...remedies, the availability of which is not evident, cannot be invoked

by the State to the detriment of the complainant. Therefore, in a situation where the jurisdiction

of the Courts has been ousted by decrees whose validity cannot be challenged or

questioned...local remedies are deemed not only to be unavailable, but also non-existent”. 79 In

Constitutional Rights Project (CRP) v. Nigeria 80 where a Decree was passed prohibiting courts to

issue writs of habeas corpus, the Commission decided that there were as such no available

remedies in Nigeria for the complainants who had been detained for a long period without

charges. In a position similar to that of the HRC, the Commission has stressed that the lack of

legal aid services in Africa precludes the majority of the African population from asserting their

human rights81 in which case this would greatly lead to an infringement on the right to an

effective remedy where human rights have been violated as recognized under international law.

As regards the effectiveness of a remedy, the Commission has decided that if the success of a

remedy is not sufficiently certain, it will not meet the requirements of availability and

effectiveness.82 This position of the Commission at first instance seems to depart from that of the

European Court that ‘success before a national body is not a necessary condition for

effectiveness’. However, when one looks at the complaints before the African Commission in

which such a position has been held, then the difference between the two positions seems to
78
Ibid, para. 32.
79
Ibid, para. 34.
80
Constitutional Rights Project and Civil Liberties Organization v. Nigeria, African Commission on Human and
Peoples’ Rights, Communication no.148/96 (1999).
81
Conclusions and Recommendations of the Seminar on the National Implementation of the African Charter on
Human and Peoples’ Rights in the Internal Legal Systems in Africa, para. 6(c) (26-30 October 1992), in Murray, R
& Evans, M (eds.), supra note 70, pp. 270 & 272.
82
Jawara case supra note 72, para. 35.

27
disappear. For instance, a local remedy has been found to be ineffective where there is no option

to the applicant for a formal appeal83 or even where the court’s jurisdiction has been ousted (as

illustrated in the cases above), such that the complainant’s entire pursuit of his right to a remedy

seems futile. Hence, while the African Commission looks at the element of success from the

procedural point of view, the European Court looks at the substantive part of it. Concerning the

sufficiency of a remedy, in Constitutional Rights Project v. Nigeria, one of the allegations made

was that the Robbery and Firearms Act enacted by the respondent State made it impossible for

the complainants to pursue an effective remedy. According to the Act, special tribunals were set

up and the ordinary courts could not handle any appeals arising from decisions of the tribunal.

Instead, the power to confirm or disallow a conviction of the Special tribunal lay with the

Governor of a state. In its finding that such a remedy was insufficient, the Commission said,

“[t]he objects of the remedy (provided under the Act) is to obtain a favors and not to vindicate a

right. It would be improper to insist on the complainants’ seeking remedies from sources which

do not operate impartially and have no obligation to decide according to the legal principles. The

remedy is neither adequate nor effective”.84 Having looked at some of the jurisprudence of the

Commission, one can rightly say that it re-affirms in many ways the position under the

International Bill of rights on what amounts to an effective remedy. It clearly shows the link

between the right to an effective remedy as provided for under the various Articles in the

International Bill of Rights and the right to a fair trial. Indeed, it is the jurisprudence of the

Commission that has filled in this gap in the Charter, which as mentioned above, lacks a specific

83
Amnesty International and others v. Sudan, African Commission on Human and Peoples’ Rights, Communication
no. 48/90, 50/91, 52/91, 89/93 (1999) para.37. It was stated herein that “[a]n effective appeal is one that, subsequent
to the hearing by a competent tribunal of first instance, may reasonably lead to a reconsideration of the case by a
superior jurisdiction, which requires that the latter should, in this regard, provide all necessary guarantees of good
administration of justice”.
84
African Commission on Human and Peoples’ Rights, Communication no. 87/93 (1995), para.8.

28
provision on the right to an effective remedy. One quite remarkable feature of the ACHPR,

which is missing from the jurisprudence of the other bodies 85 owing to their circumscribed

mandate and which could have been the stance under the UDHR, had it been legally binding

with a monitoring body, is that the African Commission handles all rights in a holistic manner,

treating them as indivisible, interdependent and interrelated, 86 as indeed they should be. In its

decisionin Social and Economic Rights Action Center v. Nigeria, the Commission asserted

“...collective rights, environmental rights and economic and social rights are essential elements

of human rights in Africa...and there is no right in the African Charter that cannot be made

effective”.87 This decision re-affirms both the justiciability of economic, social and cultural rights

on the same standing as civil and political rights as well as the principle ubi jus, ibiremedium.

2.3THEORETICAL FRAMEWORK

2.3.1 COMPLIANCE BASED-THEORY

One of the major problems facing the international community is how states can effect

compliance with various international laws in their operations. Aldrich argues that “compliance

in practice continues to fall short of reasonable expectations, and the law itself is less developed

with respect to the promotion of compliance.”88 He maintains that noncompliance with the

standards of international law brings the law into disrepute. The United Nations recognizes the

importance of compliance with the rules of international law and respect for human rights as a

prerequisite for maintaining international peace and security. It has always called on states to

work individually and cooperatively for greater compliance with the standards of international

85
The HRC can be said to have looked at some cases on Economic, Social and Cultural Rights but not thesubstance
of the rights, rather with regards to Article 26 of the ICCPR on equality of all persons before the law and the right to
equal protection of the law.
86
Vienna Declaration, supra note 1, Article 5.
87
African Commission on Human and Peoples’ Rights, Communication no. 155/96 (2001), para. 68.
88
Aldrich, GA. Compliance with the Law: Problems and Prospects in Hazel Fox et al (ed) Effecting Compliance:
Armed Conflict and the new law, volume 11, 1993. p3

29
law. Several authors have attempted to provide explanations for compliance with international

law. Prominent among them and relevant to this research are Aldrich (1993), Dugard (2000),

Guzman (2002) and Gurowitz (2004). According to Guzman “states are rational and act in their

self-interest, and are aware of the effect of international law on their behavior.” 89 Guzman’s

theory claims that by entering into an international agreement, the state offers its reputation as

collateral and therefore there should be appropriate mechanisms that sanction states for violating

or not complying with international law. This theory explains why states obey international law

in some instances and undermine or violate the same in other. This explains why states comply

with international law despite the weakness of enforcement mechanisms. Its importance derives

from the position it assumed between the international law theories and those of international

relations, and an understanding of the relationship between international law and state actions. 90

This theory emphasizes the need for states to comply with their obligations once they have

entered into international agreements, as that will have far reaching implications on their

reputations and future engagements. It thus argues that by developing and preserving a good

reputation states are able to extract greater concession for future engagements. 91 Countries are

keen not to tarnish their international image and colour world opinion on their deficiencies in

complying with their agreements. Guzman sustains that the compliance-based theory is built

upon the institutionalism theory and has certain elements that are consistence with neorealism

and liberal theory. Compliance-based theory therefore saw national law as those promises and

89
Guzman A.T, A Compliance –Based Theory of International Law: California LAW Review , University of
California, Vol.90, 2002, p1823-1887
90
NarteaAlexandru, Compliance with International Human Rights and Refugee Rights Principles. A Case of
Myanmar and its Refugees in Thailand, Linkoping University, Sweden.2003. p9.
91
NarteaAlexandru, Compliance with International Human Rights and Refugee Rights Principles. A Case of
Myanmar and its Refugees in Thailand, Linkoping University, Sweden.2003. p9 1
ttp://www.ep.liu.se/exjobb/eki/2003/impier/006/exjobb.pdf.

30
obligations that make it materially more likely that a state will behave in a manner consistent

with those promises and obligations than would otherwise be the case.”92

According to Dugard, international law is “essentially made up of treaties, reflecting the express

agreement of states and custom, which comprise those rules of international conduct to which

states have given their tacit consent.93 He contends that states acting through their governments

recognize and comply with international law for a wide range of reasons. These include an

interest, either selfish or altruistic, in the maintenance of peace and good order. Secondly, an

acceptance of the legitimacy of the rule of international law and country’s reputations both at

home or abroad and thirdly, the realization for the need for co-existence and fear of diplomatic,

economic, political, cultural and sport isolation. In conclusion, he maintains that states comply

with international law for reasons unrelated to sanction. In this respect, he argues that

“international law is not binding because it is enforced, but that it is enforced because it is

already binding”94 This research differs a bit with Dugard as sanction has been widely

recognized as one of the reasons that motivate states to comply with the international law when

they realizes its implications.

Aldrich focuses on three main factors responsible for non-compliance of states with international

law.95 First, insularity and ignorance of the law that make states ignore the law or not knowing

they are violating the law. Second, skepticism and cynicism engendered by the belief that

compliance with international law cannot be effectively enforced and that violation cannot be

effectively punished. Third, concern absence of effective monitoring, reporting, and mechanism

that effect compliance and as well assess what states are doing.

92
Ibid. p. 10.
93
Dugard John, International Law: A South African Perspective, JUTA, South Africa.2000. p47.
94
Ibid. p.10.
95
Aldrich, GA. Compliance with the Law: Problems and Prospects in Hazel Fox et al (ed) Effecting Compliance:
Armed Conflict and the new law, volume 11, 1993. p3.

31
On his presentation, Gurowitz uses rationalist and neo-liberal approaches of international law to

interpret compliance to international law. According to Gurowitz, an examination of

international refugee law on the protection of the rights of refugees “illustrates some

shortcomings of the rationalist perspective of international law and domestic politics.” 96 States

recognize relevant international law for refugees and reconcile it with their national interest with

regard to the traditional notion of state sovereignty. Therefore, refugee protection in post-

apartheid South Africa cannot be understood outside the historical and social context that shaped

apartheid and the post-apartheid political realities.

These debates have critical implications on compliance with the international instruments and

refugee protection in particular in democratic South Africa. Actors within and outside these

debates have used these contestations to determine, undermine or shape immigration policies and

practices including refugee legislation that governs the rights of refugees and the right to seek

asylum in South Africa. The neo-liberal approaches to international law beg the question of why

states recognize international law. According to neo-liberal approach, South Africa has recently

recognized international refugee law not because it is seen as inherently well for its national

interest but as a necessary step to gain legitimacy as a member of the international community

after many years of isolation. This indicates in the larger extent how refugee protection is

perceived and understood in the post-apartheid milieu irrespective of the international standards

and the forces that shaped it.

Peberdy argues that “interrogation of the relationship between immigration policy, notion of

citizenship and nation-building suggest that both immigration policy and citizenship legislation

including refugee legislation have yet to make significant breakaway form the past policies and

96
Gurowitz, A. International Law, and Migrant Rights in Reus-Smit, The Politics of International Law(ed)
Cambridge University Press, South Africa, 2004. p132.

32
practice.”97 Hathaway argues that “while governments proclaimed to be willingness to assist

refugees as a matter of political discretion or humanitarian goodwill, they appear committed to a

pattern of defensive strategies designed to avoid international legal responsibilities towards

involuntary migrants”98 and as such use asylum as a political leverage or as a public relation tool.

Some governments see this shift away from a legal paradigm of refugee protection as a means of

enhancing operational flexibility in the face of changing political circumstances. 99 As South

Africa strives to be seen as democratic and legitimate state, complying with the international

refugee law and standards demonstrate its commitment to the international community.

CHAPTER THREE

LEGAL AND INSTITUTIONAL FRAMEWORK FOR PROTECTION OF REFUGEES’

RIGHTS UNDER INTERNATIONAL REFUGEE LAW

3.1 LEGAL AND INSTITUTIONAL FRAMEWORK FOR PROTECTION OF

REFUGEES’ RIGHTS UNDER INTERNATIONAL REFUGEE LAW

A refugee, fleeing persecution from his or her country as defined under international law, or civil

war or armed conflict, as recognized under the African refugee protection regime, becomes “an

object of international concern under refugee law,100 where the circumstances are such that he or

she has lost or been deprived of protection under law in his or her country of origin, and is in
97
Peberdy Sally Ann, Selecting Immigration: Nationalism and National Identity in South Africa’s Immigration
Policies,1910 to 1998, Queen’s University Kingston, Canada. 1999. P28.
98
Hathaway, J.C et al, Making International Refugee Law Relevant Again: A Proposal for Collectivized and
Solution-oriented Protection, Harvard Human Rights Journal, Cambridge.1997. p116.
99
Ibid.
100
Although international refugee law does not recognize persons fleeing armed conflicts as refugees, these
have come to be included within the UNHCR’s protection mandate under the category of ‘persons of concern’ as
persons who are unable to return to their country of origin owing to serious and indiscriminate threats to life,
physical integrity of freedom resulting from generalized violence or events seriously disturbing public order.
UNHCR, UNHCR and International Protection: A Protection Induction Programme (UNHCR, Geneva, 2006) p. 22.

33
need of another source of protection”. 101 Owing to the principle of State sovereignty, it does not

automatically follow that a refugee will obtain protection of another State. In fact, international

law generally does not explicitly recognize the right to obtain asylum, 102 but it recognizes the

principle of non-refoulement, which shall be expounded upon shortly. There is thus a gap from

when a refugee flees his or her country to when he or she is formally accepted or granted asylum

in another State. In order to fill in this gap, the international community created the Office of the

United Nations High Commissioner for Refugees (UNHCR) with a specific mandate to “provide

international protection to refugees and to seek permanent solutions to the problem of refugees

by assisting, primarily, Governments to facilitate the voluntary repatriation of refugees, or their

assimilation in new national communities”.103

3.2 REFUGEE PROTECTION Vis-à-vis LEGAL PROTECTION

Having defined the term ‘refugee’,104 whom it includes and whom it excludes, the Statute of the

UNHCR in Article 8 lays down the elements of the nature of the protection that the UNHCR

shall accord to refugees. These are: a) promoting the conclusion and ratification of international

conventions for the protection of refugees, supervising their application and proposing

amendments thereto; b) promoting through special agreements with governments the execution

of any measures calculated to improve the situation of refugees, and to reduce the number

requiring protection; c) assisting governmental and private efforts to promote voluntary

repatriation or assimilation within new communities; d) promoting the admission of refugees, not

101
Helton, A. C (2003) ‘What is Refugee Protection? A Question Revisited’ in M. Steiner, M. Gibney& G. Loescher
(eds.), Problems of Protection: The UNHCR, Refugees and Human Rights (Routledge, New York and London)
p.20.
102
The UDHR in Article 14 provides for the right to seek and enjoy asylum, however neither the ICCPR nor the
Convention relating to the Status of Refugees recognize the right to asylum, more so the right to enjoy asylum.
103
UN, Statute of the Office of the United Nations High Commissioner for Refugees, U.N. General Assembly
Resolution 428(V) of 14 December 1950, Article 1.
104
The Statute defines a refugee in almost similar terms as the Convention relating to the Status of Refugees, but it
goes further than the five conventional criteria to include ‘reasons other than personal inconvenience’ which may
make one unable or unwilling to avail oneself of the protection of one’s country.

34
excluding those in the most destitute categories, to the territories of States; e) endeavoring to

obtain permission for refugees to transfer their assets and especially those necessary for their

resettlement; f) obtaining from Governments information concerning the number and conditions

of refugees on their territories, and the laws and regulations concerning them; g) keeping in close

touch with Governments and inter-governmental organizations concerned; h) establishing

contact in such manner as he may think best with private organizations dealing with refugees

questions; i) facilitating the co-ordination of the efforts of private organizations concerned with

the welfare ofrefugees. The above-stated protection functions of the UNHCR do not, however,

seem to come strictly within the ambit of legal protection, which as explained by Helton “must

be associated with entitlements under law and, for effective redress of grievances, mechanisms to

vindicate claims in respect of those entitlements”. 105 Thus, legal protection is in fact synonymous

with the right to an effective remedy. It is thus apparent that refugee law accords another kind of

protection, which we shall now closely examine. A refugee, as previously defined is a person in

flight away from his or her country of origin or nationality (that is no longer able to provide the

necessary protection, including legal protection) and is in search of a safe haven, away from that

persecution or any other life-threatening situation that may have caused him or her to flee and it

is protection from this that refugee law provides through the principle of non-refoulement. This

principle is enshrined in Article 33 of the Convention relating to the Status of Refugees,

paragraph 1 of which provides that a Contracting State shall not “expel or return (‘refouler’) a

refugee in any manner whatsoever to the frontiers of territories where his life or freedom would

be threatened on account of his race, religion, nationality, membership of a particular social

group or political opinion”. This principle is the cornerstone of refugee protection, and refugee

105
Helton, A. C (2003) supra note 89.

35
law for that matter, and it has been endorsed as ‘generally accepted by States’ 106and also said to

be ‘acquiring the character of a peremptory rule of international law’. 107 The principle of non-

refoulement has arguably acquired the status of customary international law. 108 Helton

enumerates some aspects of refugee protection, in practical terms, as including: fair and non-

discriminatory status determination in a country of protection, provision of protection and

respect for the fundamental individual rights for refugees, especially those held in camps

following flight from persecution, and respect for the principle of non-refoulement. 109 He sums it

all up by saying that, “in a fundamental sense, protection means to ensure the enjoyment of basic

human rights and to meet primary humanitarian needs. Granting asylum is a very effective way

to protect a refugee in flight...”.110 It is this protection that the UNHCR, in carrying out its

protection mandate, tries to ensure in its day-to-day dealings with States by, inter alia,

responding to emergencies, relocating refugee camps away from border areas to improve safety,

re-uniting separated families, providing information to refugees on conditions in their home

country so they can make informed decisions about return, documenting a refugee’s need for re-

settlement to a second country of asylum, visiting detention centers, and giving advice to

Governments on draft refugee laws, policies and practices.111 These functions, however, need to

be carried out with the consent of the host State and as such UNHCR will employ diplomatic

means such as negotiations or the use of good offices in order to effectively fulfill its mandate.

106
UNHCR, Executive Committee Conclusion No. 6 (XXVIII) (1977)
http://www.unhcr.org/excom/EXCOM/3ae68c43ac.html visited on 12 July 2020.
107
UNHCR, Report of the 33rd Session, UN Doc. A/AC.96/614, para. 70.
108
UNHCR, Advisory Opinion on the Extra-Territorial Application of Non-Refoulement Obligations under the 1951
Convention Relating to the Status of Refugees and its 1967 Protocol, 26 January 2007, para. 15. UNHCR Ref:
World, available at: http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=45f17a1a4 visited on 12 July
2020.
109
Helton, A. C (2003) supra note 89, p.23.
110
Ibid.
111
UNHCR, Refugee Protection: A Guide to International Refugee Law, Handbook for Parliamentarians, No.2
(UNHCR, Geneva, 2001) p.21.

36
Protection obtained from the asylum country that is considered safe for a refugee where he or she

can once again enjoy his or her basic human rights, is the remedy or solution that refugee law has

to offer with regards to addressing the refugee problem. Hathaway does, indeed, explain refugee

law as a “remedial or palliative branch of human rights law” 112 and more specifically refers to it

as a “situation-specific human rights remedy”.113 However, in view of what legal protection or a

human rights remedy should entail, as previously discussed, refugee protection does not amount

to legal protection hence, applying the word ‘remedy’ to it would be using the term in its

broadest sense. It is more of a solution to a problem rather than the remedy to it, especially when

one considers that refugee protection was conceived as temporary protection. If the aim of

refugee law were to redress the violations that occasion flight from one’s home and this was in

fact reflected in international law, then one would argue that it does accord legal protection.

Thus, for as long as no redress is provided under refugee law in terms of attempting to ensure

effective remedies for refugees, then refugee law only provides the second best alternative by

ensuring that States respect the principle of non-refoulement. Having seen that protection of

refugees from refoulement is the primary mandate of the UNHCR, with the asylum State bearing

the rest of the responsibilities, specifically having its human rights obligations extended to cover

refugees, it is pertinent to look at whether, in such circumstances, the right to an effective

remedy as clearly laid down under human rights law, is provided for. In this regard, we shall

look mainly at the Convention relating to the Status of Refugees as the main law in this area.

3.3 RIGHT TO AN EFFECTIVE REMEDY UNDER THE CONVENTION RELATING

TOTHE STATUS OF REFUGEES

112
Hathaway, J. C (2005) The Rights of Refugees under International Law (Cambridge University Press, Cambridge)
p. 5.
113
Ibid, p. 998.

37
The Convention relating to the Status of Refugees (hereinafter referred to as ‘the Convention’ or

the CSR),114 asides from providing the definition of a refugee in international law, also provides

for the treatment of refugees in countries of asylum. It has been referred to as a “statement of the

minimum rights of refugees”.115 It provides for a myriad of rights, civil, political, economic and

social, that a State should ensure to refugees. However, unlike under the International Bill of

rights, the Convention does not contain an express provision on the right to an effective remedy

in case any of the rights provided therein are violated. Hence, there is no express obligation on

States to ensure the right to an effective remedy under the CSR. Nonetheless, the Convention in

Article 16 (1) provides: “[a] refugee shall have free access to the Courts of law on the territory of

all Contracting States”. Much as the provision seems to be stated in absolute terms, the

Convention, unfortunately does not give any details on how this access to courts can be ensured

in practical terms. Nonetheless, applying the interpretation of ‘access’ under the right to an

effective remedy, it could mean that a refugee’s access to a court of law must not be hindered by

acts or omissions of the State, or by the enactment of laws that oust the jurisdiction of courts

with regard to refugees’ rights hence, making the effective remedy unavailable and therefore

inaccessible. It also means that the State should go a step further and provide legal aid services to

refugees,116 since most of them, especially those in refugee camps, cannot afford legal services,

in case they need to access the courts. The need to provide legal assistance to refugees was

reiterated by the Secretary-General when he asserted that the refusal by States to grant refugees

the benefit of legal assistance makes the refugee’s right to sue and be sued illusory. By

interpreting Article 16(1) of the CSR in terms of the criteria of the right to an effective remedy
114
Supra note 2.
115
Goodwin-Gill, G. S (1996) The Refugee in International Law, 2nd ed. (Oxford University Press, Oxford) p.296.
Also in accordance with Article 5 of the CSR, a State may grant more rights or benefits than those provided for in
the CSR.
116
The provision of legal aid, however, seems to be mandatory under Article 16 (2) for refugees with habitual
residence in the Contracting State only to the extent granted to citizens of that State.

38
under international law, it follows that the CSR does in a way provide for the right to an effective
117
remedy, though to a much less extent than that envisaged under international human rights

law. The Convention presumes the availability of courts and their competence to handle refugee-

related matters and as such, as Hathaway argues, where the court lacks subject matter jurisdiction

to entertain claims of the kind being advanced by refugees, Article 16(1) does not afford refugees

a remedy.118 Furthermore, the Convention, though acknowledging the special circumstances of

refugees, does not state how the access to courts shall be ensured in practice. Hathaway explains:

“to the extent that the State is willing, UNHCR may... provide direct assistance to refugees to

enforce their rights in the asylum country”.119 In fact, in some cases the UNHCR has intervened

to secure the release of illegally detained asylum-seekers and also visited detention centers to

monitor treatment and recommend improvements. 120 However, it cannot be said to provide legal

aid services, but it uses its good offices to ensure that the State fulfills its obligations towards

refugees. The Convention also fails to adequately address the requirement of a fair hearing by a

competent authority in Article 16. However, in Article 32, which deals with the expulsion of a

refugee on grounds of national security or public order, it is provided that such an expulsion

decision shall be reached in accordance with due process of law and that “except where

compelling reasons of national security otherwise require, the refugee shall be allowed to submit

evidence to clear himself, and to appeal to and be represented for the purpose before a competent

authority or a person or persons specially designated by the competent authorities”. 121 This

provision, which is similar to Article 13 of the ICCPR, is the only one in the Convention that

117
Secretary-General, ‘Memorandum’ at 30 in Hathaway, J. C (2005) supra note 100, p.906.
118
Hathaway, J. C (2005) ibid, p. 647.
119
Ibid, p.992-993.
120
United Nations, Note on International Protection: Report of the High Commissioner (A/AC.96/1038, 29 June
2007) para. 15. http://www.unhcr.org/doclist/excom/3b54444912.html visited on 16 July 2020.
CSR, Article 32(2).
121
CSR, Article 32(2).

39
links the right of a refugee, in this case, the right not to be arbitrarily expelled, to the fair hearing

guarantees that are part and parcel of the right to an effective remedy. As regards, other rights,

which do not fall within the ambit of Article 32, in case of redress, a refugee has to resort to the

general provisions of Article 16, and this will depend on the legal and judicial regime in each

individual State. As Hathaway aptly explains: “under the decentralized implementation structure

envisaged by theCSR, it is Governments themselves which ultimately remain responsible to

ensure that refugees are treated as the Convention requires”. 122 The protection of the right to an

effective remedy under refugee law does not seem to be as compelling as under the international

Bill of Rights and as such, a State’s obligation to ensure the observance and respect of this right

will depend on whether the State has ratified the other binding human rights instruments that

adequately provide for the right to an effective remedy.

3.4 REFUGEE PROTECTION UNDER THE AFRICAN SYSTEM

The African refugee protection system has its legal basis in the OAU Convention on the Specific

Aspects of Refugees in Africa (hereinafter the ‘OAU Convention’). 123 This instrument is only

complementary to the CSR and only seeks to address specific refugee problems in Africa. 124 The

OAU Convention re-affirms the principle of non-refoulement in even greater detail than the

CSR. It specifically prohibits rejection at the frontier and also explicitly provides for the grant of

temporary asylum where a refugee is denied refugee status. 125 This provision coupled with

Article 12 (3) of the ACHPR, which explicitly provides for the right to seek and obtain asylum in

other countries, offers very strong protection for refugees. Despite the strong protection from

refoulement, the OAU Convention does not enumerate the rights that refugees enjoy as contained

122
Hathaway, J. C supra note 106, p. 993.
123
Supra note 3.
124
Ibid. Preamble, para. 9 and also Article VIII (2).
125
Ibid. Article II (2) and (3).

40
in the CSR. It only emphasizes non-discrimination, 126 voluntary repatriation127 and the issue of

travel documents.128 It does not impose an obligation on States to ensure the right to an effective

remedy to refugees nor does it in the least provide for the right to access to courts as in the CSR.

Since the OAU Convention is only complementary to the CSR and actually recognizes it as the

basic and universal instrument relating to the status of refugees, the rights stipulated in the latter

instrument do apply in the former. Furthermore, in contrast to the international refugee

protection regime, the African system lacks a general supervisory or monitoring body akin to the

UNHCR making the OAU Convention and its strong provisions on refugee protection into, more

or less, a paper tiger. In order to address this glaring gap, the UNHCR together with the African

Commission on Human and Peoples’ Rights came up with a Comprehensive Implementation

Plan (CIP)129, which included proposals to strengthen refugee protection in Africa. This CIP was

later endorsed by both the OAU Council of Ministers 130 and the OAU Assembly of Heads of

States and Governments,131 which directed that the UNHCR conclude an agreement with the

African Commission with one of the aims being strengthening the African Commission’s

monitoring capacity and programme of work with respect to human rights of refugees and

asylum-seekers. Pursuant to the ensuing Memorandum between the African Commission and the

UNHCR, the African Commission established the position of the Special Rapporteur on

refugees, asylum-seekers and Internally Displaced Persons (IDPs) in Africa. The Special

Rapporteur’s mandate,132 with regard to refugees, involves: a) to seek, receive, examine and act

126
Ibid, Article IV.
127
Ibid, Article V.
128
Ibid, Article VI.
129
Adopted by the Special OAU/UNHCR Meeting of Government and Non-Government Technical Experts on the
Occasion of the 30th Anniversary of the OAU Convention in Conakry, Guinea on 29 March 2000.
130
Endorsed by the 72nd session of the OAU Council of Ministers Meeting in Lomé, Togo.
131
37th Session of the OAU Assembly of Heads of States and Governments in Lusaka, Zambia, July 2001.
132
African Commission on Human and Peoples’ Rights, Resolution on the Mandate of the Special Rapporteur on
Refugees, Asylum Seekers and Internally Displaced Persons in Africa, 36th Session held from 23 November – 7
December 2004, Dakar, Senegal. Available athttp://www.achpr.org/english/_info/rdp_res_1.html visited on 16 July

41
upon information on the situation of refugees; b) to undertake studies and research to examine

appropriate ways to enhance protection of refugees; c) to undertake fact-finding missions,

investigations and visits to refugee camps; d) to assist Member States of the AU to develop

appropriate policies, regulations and laws for the effective protection of refugees; e) to co-

operate and engage in dialogue with Member States and other stakeholders; f) to develop and

recommend strategies to better protect the rights of refugees; g) to raise awareness and promote

implementation of refugee law instruments; h) to submit reports to the African Commission on

the situation of refugees in Africa. This mandate is even much narrower than that of the UNHCR

since it caters more for promotional and supervisory activities rather than protection activities. In

fact, from the reports of the Special Rapporteur to the African Commission, most of his activities

involve attending conferences and writing to respective Governments to comply with their

international obligations.133 The African Commission will in turn make a report to the African

Union (AU) Heads of States and Governments.134 The wide mandate of the Special Rapporteur

that covers refugees, asylum seekers and IDPs in Africa seems to be too onerous a task for one

person to handle considering the great extent of the problem in Africa and that the Rapporteur in

his capacity as a Commissioner also has other duties to handle. This burdensome work is

aggravated by the fact that no additional resourcesappear to have been allocated to the

Commission for the additional task of monitoring the OAU Convention. 135 The African

Commission, has nonetheless, received complaints filed on behalf of refugees seeking to

vindicate their rights.136 In the case of RADDHO v. Zambia, the Commission reaffirmed that the

2020.
133
Reports of the Special Rapporteur on Refugees, Asylum Seekers and IDPs to the African Commission on Human
and Peoples’ Rights, 40th and 41st Sessions of the African Commission, available at
http://www.achpr.org/english/_info/rdp_intersess.html visited on 16 July 2020.
134
ACHPR, supra note 65, Articles 53 and 54.
135
Murray, R (2005) ‘Refugees and Internally Displaced Persons and Human Rights: The African System’, Vol. 24,
Issue 2, Refugee Survey Quarterly, p. 62.
136
Organization MondialeContre la Torture v. Rwanda, African Commission on Human and Peoples’ Rights,

42
ACHPR “imposes an obligation on the Contracting State to secure the rights protected in the

Charter to all persons within their jurisdiction, nationals or non-nationals”. 137 In this case it found

a violation of ACHPR, Article 2 (non-discrimination), Article 7 (1) (a) (right to have one’s cause

heard) and Article 12 (5) (prohibition of mass expulsions). The African Commission, however,

only urges States to remedy the violations that have been occasioned, thus authenticating the

human rights norm that States are primarily responsible for implementing the right to an

effective remedy.

From the examination of protection accorded to refugees under international refugee law, it is

inferable that the main aim of international refugee law is to ensure that persons fleeing

persecutionfor any of the grounds specified in the respective instruments do obtain temporary

protection. Refugee law as such does not in any way attempt to provide for legal redress for

refugees, and tends to ignore the fact that these people are, undoubtedly a product ofhuman

rights violations, some of which could amount to gross or serious violations of both international

human rights and humanitarian law. This could be a manifestation of a lack of will on the part of

States to act as each other’s human rights monitor; otherwise they would have sought to ensure

that the refugee-producing State stopped the violations that occasioned flight of its nationals to

seek protection elsewhere. This failing, refugee law provides the next best alternative or solution

by imposing an obligation on States, not of guaranteeing asylum (except under the African

Communication Nos. 27/89, 46/91, 49/91, 99/93 (1996) in which a violation was found of Articles 4 (right to life
and integrity of the person), 5 (Freedom from torture, cruel, inhuman, degrading punishment or treatment), 6(Right
to liberty and security of the person), 7 (right to have one’s cause heard), and 12 (3,4 and 5) (right to asylum and
prohibition of arbitrary and mass expulsions). In Union Inter Africaine des Droits de l’Homme and others v. Angola,
African Commission on Human and Peoples’ Rights, Communication No. 159/96 (1997), there was found a
violation of Articles 2, 7, 12 (4 and 5), 14 (right to property) and 18 (right to work). However, there are some cases
that have been rendered inadmissible mainly due to the non-exhaustion of local remedies. See, for example, Institute
for Human Rights and Development (on behalf of Jean Simbarakiye) v. Democratic Republic of Congo, African
Commission on Human and Peoples’ Rights, Communication No. 247/2002 (2003), and also Mouvement des
RéfugiésMauritaniens in Senegal v. Senegal, African Commission on Human and Peoples’ Rights, Communications
No. 162/97 (1997) and No. 254/2002 (2003).
137
RecontreAfricaine pour la Defense des Droits De l’Homme (RADDHO) v. Zambia, African Commission on
Human and Peoples’ Rights, Communication No. 71/92 (1996) para. 22.

43
system), but rather the obligation of non-refoulement to ensure that the refugee is safe and that

he or she can once again enjoy his or her most basic human rights. With regard to ensuring legal

protection for refugees in the asylum State, refugee law, unlike international human rights law,

does not provide for the right to an effective remedy, but only obliges States to provide refugees

with free access to courts and nothing further. As we saw previously, access to courts is only but

one aspect of the right to an effective remedy and as such refugee law does not look into the

availability, effectiveness and enforcement of the remedies. Of course, the State is expected to

fulfill its obligations in good faith, but where it fails to do so, refugee law does not provide any

enforcement mechanism. Although the UNHCR is supposed to supervise the application of the

Convention, it will only urge States to comply with their obligations and nothing more.

Hathaway suggests that the UNHCR should be empowered, just like the pre- Second World War

supervisory body before it, to undertake quasi-consular representation on behalf of refugees,

which would greatly assist in vindicating their rights, but then this proposal was not tabled with

States much preferring that they assume the basic responsibility to facilitate the exercise of rights

by refugees.138 Therefore, in order to ensure effective protection and enjoyment of the right,

recourse would have to be made to the other international human rights instruments, such as

theinternational Bill of Rights and the monitoring mechanisms there under depending on whether

the respective State has ratified the relevant instruments.

Although the African system provides rather strong protection for refugees in terms of law, the

practical protection and implementation of the refugee protection provisions is not as strong.

More shall be said about this in chapter five of this thesis. In a nutshell, refugee law does not

adequately cater for the right to an effective remedy. It leaves the implementation of the right

solely in the domain of each State and the mandate of its oversight mechanism, the UNHCR, is
138
Hathaway, J. C (2005) supra note 106, p. 633-634.

44
such as not to compel States to ensure this right as say would the Committees under the ICCPR

and the ICESCR. This being the position, we shall now take a look at the how a refugee’s right

to an effective remedy is implemented in the domestic arena, and whether the State does comply

with its obligations in good faith as expected under international law.

CHAPTER FOUR

4.1 CHALLENGES AND PROSPECT FOR PROTECTION OF REFUGEES’ RIGHTS

UNDER INTERNATIONAL REFUGEE LAW

The world’s refugee problem139 is one of the most complicated challenges facing the

international community today.140 Studies estimate that there are millions of refugees in Africa

who are vulnerable to abuse and, therefore, are in need of protection to ensure that their human

rights and fundamental freedoms are not violated. More than half of the world’s refugees reside

in urban areas.141 In Uganda it is particularly urban refugees 142 that require special protection

since the Refugees Act of 2006 provides that refugees who live outside of the provided camps do

not qualify for protection and humanitarian assistance from the government and the United

Nations High Commissioner for Refugees (UNHCR).143 The Ugandan government argues that
139
The 1951 Convention defines a refugee as a person who ‘owing to a 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 to or, owing to such fear, is unwilling to avail himself of the protection of
that country’. See art 1(A)(2) of the UN Convention Relating to the Status of Refugees, 28 July 1951. The 1969
OAU Convention offers an extended definition to include ‘people fleeing external aggression, occupation, foreign
domination or events seriously disturbing public order’. See art 1(2) of the 1969 AU Convention Governing Specific
Aspects of Refugee Problems in Africa.
140
UNHCR World at war: Global trends: Forced displacement in 2014 (2014) 2.
141
UNHCR (n 2 above) 13.
142
Kibreab defines urban refugees as those refugees who drift to cities and towns in pursuit of making a living. See G
Kibreab ‘Eritrean and Ethiopian urban refugees in Khartoum: What the eye refuses to see’ (1996) 39 African Studies
Review 154.
143
Art 44 Ugandan Refugees Act 21 of 2006.

45
‘[i]n practice, this provision encourages refugees to reside in settlements to their own advantage

in terms of physical protection and material support as well as in the interest of national

security’,144 and discourages those who cannot support themselves from remaining in the city. 145

This practice obliquely coerces refugees to dwell in rural resettlements. Consequently, most

urban refugees who do not want to reside in the settlements end up residing in ‘slums’ or

informal urban refugees who do not want to reside in the settlements end up residing in ‘slums’

or informal settlements on the fringes of urban areas. 146 This circumstance impedes the protection

and realization of their rights, including access to services and opportunities that exist in the

urban areas.147 International refugee law guarantees the rights of all refugees, including the right

to housing;148 the right to work;149 the right to education;150 the right to access the courts;151 the

right to freedom of movement within the territory; 152 as well as the right to be issued with

identity and travel documents153 for refugees to live decent lives.154

Uganda is a state party to the 1951 UN Convention Relating to the Status of Refugees (1951

Convention) and the 1969 OAU Convention Governing the Specific Aspects of Refugee

Problems in Africa (1969 OAU Convention).155 Uganda adopted the Refugees Act 21 of 2006156

to domesticate these international instruments. Since Uganda adopts the dualist approach to
144
J Bernstein & MC Okello ‘To be or not to be: Urban refugees in Kampala’ (2007) 24 Refuge 47.
145
Bernstein &Okello (n 6 above) 48.
146
Lucia, A (2012) ‘Challenges and livelihood strategies of Darfurian refugees living in Kampala, Uganda’ MA
thesis, University of San Francisco.
147
S Pavanello& M Montemurro (2010) ‘Displacement in urban areas: Implications for humanitarian action’ 34
Forced Migration Review 57.
148
Art 21 1951 Convention (n 1 above).
149
Arts 17, 18 & 19 1951 Convention.
150
Art 22 1951 Convention.
151
Art 16 1951 Convention.
152
Art 26 1951 Convention.
153
Arts 27 & 28 1951 Convention.
154
Lomo, Z. A (2000) ‘The struggle for protection of the rights of refugees and IDPs in Africa: Making the existing
international legal regime work’ 18 Berkeley Journal of International Law 6.
155
Omata, N & Kaplan, J (2013) ‘Refugee livelihoods in Kampala, Nakivale and Kyangwali refugee settlements:
Patterns of engagement with the private sector’ 95 Refugee Studies Centre Working Paper Series 6.
156
Ugandan Refugees Act (n 5 above).

46
international law,157 an international instrument becomes part of domestic law only after the

government through parliament has passed an enabling Act to give force to that particular treaty.

The enforcement of the above-mentioned treaties has been characterized by major complications

and sensitivities.158 Referring explicitly to the protection of refugees, Goodwin-Gill argues that

protection policies must be derived from the principles explicit or implicit in the existing law as

developed and interpreted in practice as well as from the principles of fundamental human rights

acknowledged by the international community’. 159 He contends this has become necessary as ‘it

appears that protection had lost ground to the politics of solutions and to the even more uncertain

politics of migration’.160 In a different study Goodwin-Gill further argues that ‘the conception of

the refugee as an unprotected individual should be divorced from the politics of the moment and

located in a space where the refugee can be recognized as a person with dignity, worth and basic

human rights’.161

4.2 LEGAL REGIME GOVERNING REFUGEES IN UGANDA

Under the Constitution of Uganda (hereinafter referred to as ‘the Constitution’), there is no

specific mention of refugees, be it in the National Objectives and Directive Principles of State

Policy (hereinafter referred to as ‘National Objectives’) nor the substantive part of the

Constitution. However, in chapter 4 of the Constitution, which deals with the protection and

promotion of fundamental and other human rights and freedoms, Article 21(1) provides for the

equality of all persons before the law and for the equal protection of the law. Paragraph 2 goes

157
This implies that international treaties to which Uganda is signatory are not part of Ugandan law until they have
been adopted through domestic statute.
158
Shah Alam, M (2006) ‘Enforcement of international human rights law by domestic courts: A theoretical and
practical study’ 53 Netherlands International Law Review 400.
159
Goodwin-Gill, G. S (2014) ‘The dynamic of international refugee law’ 25 International Journal of Refugee Law
651.
160
Goodwin-Gill (n 159 above).
161
Goodwin-Gil, G. S (2008) ‘The politics of refugee protection’ 27 Refugee Survey Quarterly 8.

47
further to stress that no person shall be discriminated against on the ground of sex, race, color,

ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or

disability. The Article therefore extends to refugees who are entitled to all the rights provided for

in the Constitution. For a long time, the law on refugees in Uganda was the Control of Alien

Refugees Act (CARA)162 enacted in 1960 by the colonial Government. This Act did not reflect

the international standards on the protection and treatment of refugees as enshrined in the CSR;

its main aim was to control the large numbers of foreigners who, it was feared, could threaten the

stability and development of Uganda.163 The CARA also failed to define who a refugee was, and

as such the law was very difficult to enforce; it was very much considered “retrogressive and

archaic and not in accordance with international law and practice”. 164 Nonetheless, it remained

the applicable law until recently in May 2006 when a new Refugees Act 165was passed by

Parliament. In comparison to the CARA, this law is very much in accordance with international

norms relating to refugees as well as the Constitution, and rather than imposing new practices, it

codifies what the practice has been, which the respective government departments adopted in

order to fill in the gaps in the CARA. Relevant provisions of this new law shall be looked at in

the ensuing sections of this chapter.

4.3 REFUGEE PROTECTION AND STATUS DETERMINATION

Section 3(2) of the Refugees Act clearly stipulates that the Government of Uganda has the

sovereign right to grant or deny asylum or refugee status to any person, which reinstates the

principle of State sovereignty. Refugee Status Determination (RSD) in Uganda is by two ways:

the prima facie determination, where there is a mass influx of asylum seekers in Uganda and the
162
Cap. 62, Laws of Uganda.
163
UHRC, Annual Report 2000-2001 (UHRC, Kampala, 2001), p.43.
164
Interview by the Deputy Director of the Directorate of Refugees, ‘Refugees are Still Human Beings Entitled to
Human Rights’ in UHRC Monthly Magazine, Your Rights: The Exodus, The Rights of People Fleeing Conflict and
Persecution, Vol. III, No. 1 (UHRC, Kampala, January 2000), p.11.
165
The Refugees Act, 2006, Laws of Uganda Act No. 21 of 2006.

48
Minister in charge of refugees may declare them as refugees and issue an order permitting them

to reside in Uganda without requiring their individual status to be determined. 166 The other way is

by individual status determination. The Refugees Act entrusts refugee affairs including

protection, provision of welfare services, maintenance of law and order in refugee settlements,

advising government of its obligations relating to refugees, etc., to the Office of Refugees,167

which is under the Office of the Prime Minister. Under the Office of Refugees, is the Refugee

EligibilityCommittee (REC), which is responsible for the consideration of applications for

refugee status, reviewing or revising cases dealt with by it, recommending expulsion or

extradition, cessation of refugee status, just to mention a few. In short, it is the REC with the

ultimate power to grant or deny refugee status. The REC is composed of nine members, six of

whom are from Government Ministries or departments and three of whom are from the security

and intelligence organs. The UNHCR representative is an ex officio member who attends

meetings in an advisory capacity. Thiscomposition of the REC has been criticized as purely

political in which case it could enhance possibilities of arbitrary decisions of denial of asylum. 168

Upon entering Uganda, a refugee is required to make a written application to the REC within

thirty days and the REC has ninety days within which to make its decision. In practice, however,

a refugee is required to do more than write an application: he or she has to go through a series of

interviews and interrogations with the UNHCR and the Special Branch of the police, before his

or her application can be determined. The REC may approve or deny the application and in the

case of the latter, one may make an appeal to the Refugee Appeals Board (RAB). 169 The powers

166
Ibid, Section 25(1-3).
167
Ibid, Sections 7 and 8.
168
Refugee Law Project (RLP), Critique of the Refugees Act (2006) available at
http://www.refugeelawproject.org/resources/legalres/ visited on 17 January 2020.
169
Established under Section 16 of the Refugees Act and it is composed of five members appointed from among
persons with knowledge or experience in refugee law or matters relating to immigration, foreign affairs, national
security, local administration, human rights and refugees generally.

49
of the Board are, however, limited to confirming or setting aside the decisions of the REC, or

order a re-hearing, or dismiss the appeal. In any case, the RAB cannot make a decision granting

refugee status,170 which makes it more of a review than an appeal mechanism, and its decision is

final171 hence, it cannot be appealed against in an ordinary court of law. This provision,

depending on how independent and impartial the RAB is, could come into conflict with the right

to an effective remedy as seen from the Amnesty International and Others v. Sudan case. 172 It

also seems to contravene Article 42 of the Constitution, which provides that any person

appearing before an administrative tribunal or body shall have the right to apply to a court of law

in respect to any administrative decision taken against him or her. Furthermore, during the

hearing of the application and at the appeal the refugee is entitled to legal representation, but this

is at his or her cost173 and considering that most of the refugees cannot afford costs of hiring a

lawyer, then failure by the State to provide legal aid services could infringe on one’s right to

have an effective remedy.174

Where an application is rejected, the refugee is given another ninety days to enable him or her to

seek asylum elsewhere and at the expiration of this period, the refugee shall be expelled or

deported. The refugee may however, apply to the Minister to extend this period. 175 Where the

application is accepted, the refugee is either sent to a refugee settlement 176 of his or her own

choice or one may opt to live in a city, in which case he or she would have to look after
170
Refugees Act, Section 17.
171
Ibid, Section 21 (4).
172
Ibid, supra note 98.
173
Refugees Act, Sections 21(3) and 24(3).
174
Thomas v. Jamaica, supra note 67.
175
Refugees Act, Section 23(2-4).
176
In Uganda the use of the term ’settlement’ is preferred to ‘camp’ as the latter term connotes “an enclosure where
everything is provided by UNHCR”, which the Uganda government sees as different from its settlement policy. See
interview by Deputy Director, Directorate of refugees, supra note 127, p.9. The UNHCR currently caters for at least
eleven settlements in Uganda, which accommodate about ninety percent of the total refugee population in Uganda.
See UNHCR, UNHCR Global Report 2006, Uganda, June 2007. UNHCR Ref-World, available at
http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=country&docid=466d19a42 visited on 117
January 2020.

50
themselves without assistance from either Government or UNHCR. The living conditions in each

settlement will vary one to the other.

4.4 ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN REFUGEE SETTLEMENTS

The Refugees Act lays out a number of economic, social and cultural rights that recognized

refugees are entitled to and these include the right to education, right to engage in agriculture,

industry, commerce, etc., the right to practice one’s profession, the right to have access to

employment opportunities and engage in gainful employment, the right of association as regards

non-political associations, including trade unions, and protection of intellectual property rights.

Some of these rights are to be enjoyed on the same standing as nationals while others are enjoyed

on the same standing as aliens generally. In practice, Uganda has got a Self-Reliance Policy in

place for refugees in settlements, which is intended, among others, to make refugees self-

sufficient in food production and sell the surplus as a means of generating revenue. Once in a

settlement, the refugee is given a piece of land 177 to cultivate crops or rear animals, if they are

pastoralists. At the start, refugees receive food rations provided especially by the World Food

Programme (WFP), but after about three years they cease to be dependent on international aid

and are presumed to be self-reliant. With regard to the right to education, this is highly

respected.178 Some settlements have schools built and supported by donors, while other refugee

children attend Government schools, which provide free primary education, or Universal

Primary education, as it is popularly known. Most camps also offer adult literacy programmes.

However, the available schools are understaffed179 and lack scholastic materials. The quality of

the education received thus comes into question. With regard to the right to health, refugees have

177
The piece of land allocated will vary in each settlement. For example, in Nakivale settlement, each refugee family
is given one hectare of land, while in Kyaka II, each family is given a piece of land 50x100m.
178
UHRC, 7th Annual Report, 2004 (UHRC, Kampala, 2005), p.123.
179
In one school, for example, with a population of 777 pupils, there were only two teachers, that is the headmistress
and her deputy. Ibid.

51
access to health services.180 Just like the schools, most of these health facilities are built by and

supported by donors. However, there are problems such as understaffing and while some may be

well-stocked, others have a limited supply of drugs. The conditions do indeed vary from

settlement to settlement. Some of the settlements are really congested, thus overstretching the

available facilities, the sanitary conditions are also generally not good resulting into many cases

of diarrhea, there are also rampant cases of malaria, which in turn affect other rights such as

education, and also some cases of malnutrition and sexually transmitted diseases. On the whole,

in the Ugandan context, the economic, social and cultural rights of refugees are quite respected

and in some places the refugees are so much better off than the indigenous population, which has

created some tensions.181 This is because of the international assistance in the settlements, which

the local communities may not be privy to, and which are not under the direct control of the

Government. Otherwise in some instances, where the Government is responsible such as the

right to work, there have been some complaints of discrimination. 182 In addition, refugees have to

obtain work permits, which is cumbersome and also once in a settlement it is difficult to get out

to seek employment elsewhere. The major responsibility of the Government is therefore to

provide the land, administer the settlements and co-operate with international agencies, which do

most of the provision of facilities.

4.5 CIVIL AND POLITICAL RIGHTS IN REFUGEE SETTLEMENTS IN UGANDA

The Refugees Act provides for the following civil and political rights: the right to be issued with

an identity card, the right to remain, the right to property (on the same standing as aliens), the

right to have free access to courts, including legal assistance, and the freedom of movement,

180
Ibid, p.123.
181
Byamukama, N (2000) ‘IDPs Should Be Treated as Refugees’ in Your Rights, supra note 129.
182
In some settlements, some refugees are employed as teachers, medical workers, counsellors etc., but are paid less
than Ugandans working in the same capacity. See UHRC, Annual Report 2000-2001, supra note 130, p. 43.

52
subject to restrictions. Although a few civil and political rights appear to be specified. Section 28

of the Act generally makes applicable all other rights contained in the CSR, the AU Convention

and other human rights Conventions or instruments to which Uganda is a party. The civil and

political rights of refugees in settlements do not seem as much respected as the economic, social

and cultural rights. There are some instances where the lives and security of refugees have been

at stake, especially in the settlements in Northern Uganda where an armed conflict has been

raging for the last twenty or so years.183 Refugees are also usually subjected to torture, cruel,

inhuman or degrading treatment or punishment;184 illegal detentions and infringements on their

right to personal liberty;185 delays in status determination which means that they do not get any

assistance from either government or UNHCR; deprivation of property; 186 and the most common

complaint, an affront to personal dignity, domestic violence, especially towards women and

children.187 They have also been reported cases of re-foulement, 188 in contravention of the law,

which apparently guarantees the right to remain. The violations of civil and political rights in

refugee settlements seem to be more rampant than those of economic, social and cultural rights.
183
In its Annual Report 2000-2001, the UHRC reported that camps had on occasion been attacked by the Lord’s
Resistance Army rebels and that the Sudanese Peoples’ Liberation Army was also known to forcibly enter the camps
and recruit refugees into rebel ranks, supra note 153, p. 44. See also, UHRC, 7th Annual Report, supra note 146, p.
122. Also, E. Bagenda and L. Hovil, ‘Sudanese Refugees in Northern Uganda: From One Conflict to the Next’ in
Forced Migration Review, Issue 16, (Refugees Studies Centre, University of Oxford, January 2003), pp. 14-16.
184
The African Centre for the Treatment and Rehabilitation of Torture Victims (ACTV) has received a number of
complaints from refugees, though some of these are committed in their home countries, but there are also cases of
torture in Uganda. See Redress, Torture in Uganda: A Baseline Study on the Situation of Torture Survivors in
Uganda, http://www.redress.org/www.redress.org/www.redress.org/country_uganda.html pp. 19-20, visited on 18
July 2020. There have also been instances of corporal punishment and flogging inflicted by camp commandants on
refugees. See also U.S. Committee for Refugees and Immigrants, U.S. Committee for Refugees and Immigrants
World Refugee Survey 2007- Uganda, 11 July 2007. UNHCR Ref-World, available at http://www.unhcr.org/cgi-
bin/texis/vtx/refworld/rwmain?page=country&docid=4696388e1e&skip=&coi=UGA visited on 18
July 2020.
185
Refugee Law Project, Annual Report 2005 (Refugee Law Project, Kampala, 2006) p. 4.
186
There has been an on-going conflict in one of the settlements in western Uganda whereby the local population,
encouraged by politicians has encroached upon the land allocated to refugees claiming that they can now repossess
it, and the government has been rather slow in resolving the conflict. See UHRC, Annual Report, 2001-2002
(UHRC, Kampala, 2002), p. 27.
187
UHRC, 7th Annual Report, supra note 166, p. 122.
188
Onyalla, H (2007) ‘3000 Rwandan Refugees Denied Asylum’, New Vision Publishers. See also, U.S. Committee
for Refugees and Immigrants, supra note 149.

53
One possible explanation for this could be that there are quite a number of international agencies

involved in the implementation of the latter rights, while the former are solely within the domain

of the Government of Uganda. It is therefore appropriate at this point to examine what

mechanisms the Government has put in place to address cases of human rights violations with

regard to refugees in these settlements. In other words, how and to what extent is the right to an

effective remedy for refugees in Uganda respected and protected?

4.6 REFUGEE RIGHTS TO AN EFFECTIVE REMEDY IN UGANDA

Article 50 (1) of the Ugandan Constitution states that; “Any person who claims that a

fundamental right or freedom guaranteed under this Constitution has been infringed or

threatened, is entitled to apply to a competent court for redress...”. In paragraph 3 of the same

Article, provision is made for an appeal to the appropriate court where one is aggrieved by the

initial decision. In addition, the Constitution in Article 51(1) establishes the Uganda Human

Rights Commission (hereinafter referred to as ‘UHRC’) with a mandate that includes

investigation of violations of human rights; inspecting jails, prisons and places of detention and;

recommending to Parliament effective measures to promote human rights, including provision of

compensation to victims of violations of human rights. 189 The UHRC is also bestowed with

powers to summon any person before it and order the production of any documents or records

relevant to any of its investigations; to question any person in respect of an investigation and

require any relevant disclosures.190 The Commission has utilized this mandate and powers to

establish a tribunal, a quasi-judicial body that conducts hearings and makes decisions regarding

human rights complaints before it. The Commission consists of seven members who are

appointed by the President with the approval of Parliament and the Commission’s independence

189
Constitution of Uganda, 1995, Article 52(1) (a), (b) and (d).
190
Ibid, Article 53(1).

54
is guaranteed under Article 54, which explicitly states that the Commission shall not be subject

to the direction or control of any person or authority. Chapter 8 of the Constitution establishes

the judiciary with the Supreme Court being the highest appellate court, followed by the Court of

theAppeal and then the High Court, which has got unlimited original jurisdiction. These courts

are considered the superior courts of record and below them are Magistrates’ courts (Grade I and

II) and then the Local Council (LC) courts. Article 128 of the Constitution guarantees the

independence of the judiciary and further prohibits interference with the courts or judicial

officers in the exercise of their functions.

4.7 CONSTITUTIONAL PROVISIONS.

In all cases, both parties have the opportunity to be heard and equality of arms is usually ensured.

Where a party is aggrieved by the decision of the UHRC, they can appeal to the High Court and

appeals can lie from the High Court up to the Supreme Court. All in all, as regards, availability

of channels of redress in case of human rights violations, it is my opinion, that Uganda would

meet the requirement of availability of competent and independent tribunals or bodies which

abide by the procedural guarantees of a fair hearing and can provide effective remedies. Even

where at the lower levels, such as RWCs and LC courts, the authorities are not so competent,

with the possibility of an appeal this can be remedied at the higher levels.

4.8 ACCESSIBILITY

The Constitution makes leeway for anyone whose rights are violated to present their complaint to

a competent court and the Refugees Act also provides for the right to “free access to courts,

including legal assistance under applicable laws of Uganda”.191 Despite these enabling

provisions, there is quite a negligible number of complaints by refugees that make it either to the

191
Refugees Act, Section 29(1)(h).

55
UHRC or to the High Court192 and these are mainly from urban refugees, not those in

settlements. The following are some of the factors that hinder refugees’ access to the UHRC and

to courts despite the rampant human rights violations that they may face. a)Restrictions on the

freedom of movement: Section 30 of the Refugees Act provides for the freedom of movement

for recognized refugees, but then again it greatly curtails that freedom when it provides: There

are some cases that before the enactment of the Refugees Act were presented to the High Court

for review of the REC’s decision denying an asylum application, for instance

TesfayeShiferwaAwala v. Attorney General, High Court of Uganda, Miscellaneous Application

No. 668 of 2003. The UHRC also receives very few complaints from refugees and these are

mainly to do with delays in processing applications, which are usually referred to the Refugee

Law Project: Interview with Regional Human Rights Officer, UHRC central regional office held

at UHRC Offices, Kampala on 26 July 2007.

“The freedom of movement of a recognized refugee in Uganda is subject to reasonable

restrictions specified in the laws of Uganda, or directions issued by the Commissioner, which

apply to aliens generally in the same circumstances, especially on grounds of national security,

public order, public health, public morals or the protection of rights and freedoms of others.”

One could perhaps; say that this section contravenes the Constitution in which the provision on

the freedom of movement does not contain any such restrictions, but then the freedom of

movement under the Constitution applies to only Ugandans.193 This restriction is applied

religiously in all settlements whereby a refugee must obtain a permit from the camp commandant

whenever he or she wants to set foot out of the settlement and even then it is sometimes not easy

192
The registrar, High Court admitted that they are almost no cases presented by refugees and that if there are, then
they are really few. Interview with Registrar, High Court held at the High Court Premises on 18 July 2020.
193
Unlike other human rights provisions under the Constitution which apply to ‘every person in Uganda’ or ‘all
persons’, Article 29(1) is specific; it provides: “Every Ugandan shall have the right to move freely throughout
Ugandaand especially in settlements.”

56
to obtain the permission.194 The refugee has to specify the destination, purpose, number of days

of travel and the date of return. Much as this practice and policy seems to contravene even the

Refugees Act itself, making the Actself-defeating in a sense, it still prevails making the supposed

‘free access to courts’ almost impossible, especially where the complaint by the refugee is

against the administrators of the settlement. b)Location of settlements in remote areas: most of

the settlements are situated in remote areas, far away from the appropriate institutions that

provide redress, which are usually located in the towns. Refugee settlements are located as far as

sixty miles from towns195 and even then, the road infrastructure to and from settlements is usually

bad and the means of transport poor. In addition to the law and policy not being in favour of the

refugees’ movement, the physical location also poses a great difficulty for a refugee’s access to

courts. c)Lack of legal assistance: instituting a case in a court of law is generally costly and yet

poverty is one of the major problems faced by refugees. Complaints to the UHRC are, however,

not subject to any fees whatsoever. Although Section 29(1)(h) makes provision for “legal

assistance under the applicable laws of Uganda”, there are no such laws in existence yet and

neither does the Government have any legal aid programme in place, not even for the

nationals.196 In addition, the Government of Uganda made a reservation to Article 16(2) of the

CSR to the effect that it would not provide refugees with more legal assistance than it gave to

foreigners generally. Considering that presently there is no such legal assistance to foreigners, in

effect there is none for refugees. Provision of legal aid is usually being NGOs, 197 the most

notable of which is the Refugee Law Project (RLP), which helps refugees with their applications

and making appeals to the REC, intervening and handling cases of human rights violations.
194
UHRC, 7th Annual Report, supra note 146, p. 126.
195
U.S. Committee for Refugees, supra note 152.
196
Under the Advocates Act of Uganda, all advocates are required to offer pro Bono services, but this provision is
yet to be implemented. See also, J.C. Hathaway, supra note 121, p. 911.
197
Most of these legal aid providers do not specifically deal with refugees, though if they do, it is not clearly
documented. Most of them handle general cases or human rights cases generally.

57
However, the RLP has only got one office in Kampala and a small number of legal staff and they

can only reach a few settlements, a few refugees and handle few cases. 198 Moreover, the

Constitution does allow for any person or organization to bring an action on behalf of a victim of

a human rights violation. This provision could enable NGOs to present cases on behalf of

refugees, but save for the RLP, there are not many organizations that have done so on behalf of

refugees.199 d)Ignorance: this ignorance is on the part of both refugees and those who are

supposed to assist them, say in the course of accessing justice, for instance the members of the

RWCs. Most refugees are not aware of the channels available to them when their rights have

been violated. Although the UHRC has a mandate to conduct human rights education and

awareness programmes, so far it has not carried out any for refugees. 200There is an instance

where the UNHCR has presented a case to UHRC Fort Portal regional office to assist refugees

on committal who had spent a long time on remand and their families risked being repatriated.

The UHRC intervened with the Deputy Registrar, High Court in Fort Portal and their cases were

heard. Interview with Regional Human Rights Officer, UHRC Fort Portal held at UHRC Offices,

Kampala on 8 August 2007.

The RLP has provided some education to refugees in the city and not for those in settlements. On

the part of officials, the RLP has provided some training in refugee law to members of the legal

profession as well as immigration officers.201 However, there are few judicial officers

knowledgeable in matters of refugee law.202 e)Poor litigation culture: there is a poor culture of

198
Seehttp://www.refugeelawproject.org/about/lac/index.htm visited on 18 January 2020.
199
Kanyeihamba, G. W (1999) ‘Overview: Comment on Refugee Issues’ paper presented at the Judicial Seminar on
Refugee Issues and Asylum, Makerere University, Kampala.
200
In one instance in Fort Portal where a group of Congolese refugees requested the UHRC to offer human rights
education to members of their association, the Office of the Prime Minister discouraged this saying that it was
divisive with potential to cause conflict in the settlement. Hence, it was never held: Interview, ibid.
201
Ibid.,Supra note 160.
202
G. W. Kanyeihamba (1999) ‘Overview: Comment on Refugee Issues’ paper presented at the Judicial Seminar on
Refugee Issues and Asylum, Makerere University, Kampala.

58
litigation in Uganda, and African countries generally, even where the individual’s rights are

being blatantly abused. This is more so in rural than in urban areas. It could be attributed partly

to the ignorance of people of their rights as well as the technicalities and bureaucracy involved in

litigation, which frighten away possible litigants, particularly if they are poor and illiterate. In

Uganda, only about 18.2% of the people in rural areas are able to access a magistrate’s court

within a distance of less than five kilometers, compared to an overwhelming 56% in urban

areas.203 For a refugee, who is on the one hand grateful to the State for having granted him or her

asylum and on the other hand is limited by other factors such as poverty and those discussed

above, litigation is not the obvious option in case of a human rights violation.

4.9 REMEDIES AVAILABLE

In case a refugee does manage to get his case heard and is successful, there are various remedies

available depending, of course, on the nature of the right violated. The Constitution provides for

some specific remedies including: compensation204 where one has been unlawfully arrested,

restricted or detained;205 the right to an order of habeas corpus, which is inviolable and one of the

non-derogable rights under the Constitution;206 and Article 42 allows for judicial review to a

court where one is aggrieved by a decision of an administrative authority or body, though this

does not seem to be the case with refugees’ status determination decisions. The UHRC also has

powers to order, in addition to payment of compensation, the release of a detained or restricted

person, and any other legal remedy.207 The Commission has used this power extensively to order

remedies ranging from cautions, payment of damages and other common law remedies as are
203
Justice, Law and Order Sector, A Study on Gender and Access to Justice, available at
http://www.jlos.go.ug/reports.php visited on 21 July 2020
204
Under Article 50(1) compensation is mentioned as one of the available remedies; under Article 53(2)(b), one of
the remedies the UHRC can order is payment of compensation, Article 126(2)(e) also provides that courts shall
award adequate compensation to victims of wrongs.
205
Constitution of Uganda, Article 23(7).
206
Ibid, Articles 23(9) and 44(d).
207
Ibid, Article 53(2).

59
appropriate in each case. Using its power of investigation, the UHRC has managed to investigate

some serious violations of human rights normally committed by government security agencies,

and had the tribunal hear the cases. One barrier to the effective performance of the UHRC’s

investigation of such cases is with regard to access into army detention places and to ‘safe

houses’, where it has often been alleged that serious violations occur. Although the UHRC

should, going by its mandate, have free and unhindered access to all places of detention, it is

required to give at least forty-eight hours’ notice before it can inspect army detention centres, 208

while it has virtually no access to ‘safe houses’ as their location is largely unknown. 209 The

inability of the UHRC to carry out impromptu investigations in army detention houses or safe

houses does adversely affect the right to an effective remedy, especially for refugees who are

really vulnerable to illegal arrests and detentions. 210 The UHRC tribunal has handled some

complaints from refugees, although these are not so common. Interview with Director, Legal and

Tribunals Directorate, UHRC held at UHRC Offices, Kampala on 6 August 2007. The courts of

law in Uganda apply the common law system and do avail a range of remedies, both common

law and equitable remedies. The courts would be the most appropriate channel to stay the

expulsion or refoulement of refugees, but then these powers lie with the Minister and the REC.211

4.10 ENFORCEMENT OF REMEDIES

208
This 48-hour notice requirement is a recent development; otherwise before 2004 UHRC had no access at all to
such places. The UHRC prefers that this notice requirement be waived in order for it to operate effectively- see
UHRC, 8th Annual Report, supra note 161, p. 112-113.
209
Ibid, p. 120. The army also admits that they do have ‘safe houses’ which are usually transitory, however they deny
that any torture takes place there, quite contrary to the allegations from complaints received.
210
See Redress, Torture in Uganda, supra note 152, pp. 19-20.
211
Refugees Act, Sections 39 and 40.

60
Where a complaint is against a private individual, then enforcement shall be by execution of the

judgment by, for example, attachment of property, attachment and sale, arrest and detention. The

situation is different where the Government is the respondent and yet most cases of serious

human rights violations are against the Government. The UHRC has time and again complained

that the Government has not expedited honoring compensation to victims and yet the law does

not permit executions to be carried out against Government. By 2004, of the UGX784, 000,000

due to victims of violations, Government had so far only managed to pay UGX93, 280,428 over

a period of about seven years.212 Repeated calls for the Government to honour its obligations are

not yielding any substantial results. The Ministry of Justice also reports that awards from courts

are also pending and the reason given for this non-payment of awards is that they are not

budgeted for initially,213 which is rather a lame excuse considering that some of these awards

have been pending for years. As for remedies, other than compensation, such as the release from

detention, the respondent state organs usually comply with such orders, except again in cases of

army detentions where the army may at times delay in complying. As far as ordering prosecution

of perpetrators of human rights violations is concerned, the UHRC has recommended to the

Attorney-General, who is vicariously liable for acts committed by Government officials, to

ensure that such individuals are brought to justice. So far there are neither reports nor indications

that this has been done, although at times security agencies take internal disciplinary measures

against the individuals responsible. This, however, could fail to meet the standard of an effective

remedy as was clearly stated by the HRC in Bautista v. Colombia 214that purely disciplinary and

administrative remedies cannot be deemed to constitute adequate and effective remedies in the

event of particularly serious violations of human rights.

212
UHRC, 8th Annual Report, supra note 161, p. 112.
213
Ibid.
214
Supra note 61, para. 8.2.

61
The right to an effective remedy, generally speaking, is well-catered for under the Constitution

and laws of Uganda. Going by the Constitutional provisions, any person, refugees included,

wishing to vindicate their rights has access to competent, independent and impartial institutions

that will hear his or her case and where, a violation is established then provide an appropriate

remedy. Thus far, the Government of Uganda is very much in compliance with its obligation to

ensure the right to an effective remedy to all persons within its territory and under its

jurisdiction, without discrimination, as provided under international human rights law. When it

comes to the practical implementation of these human rights and constitutional guarantees, then

the right appears to be rather illusory particularly for refugees in settlements. The law provides

for their free access to courts, but at the same time it greatly restricts their movement. This is

worsened by the practice and other factors, as seen above, which in effect negates refugees’

access to courts and any other institutions which would vindicate their rights. Moreover, these

institutions do not go ‘knocking at peoples’ doors’ looking for violations; it is the people to go to

them. The UNHRC has the mandate to inspect and monitor human rights situations in such

places and it usually does monitor the settlements and has documented the human rights

violations that take place there, but other than making recommendations to Government, it does

not seem to take on such cases for hearings. 215 Though the remedies are available in case one’s

complaint is successful and a violation is found, for as long as Government does not meet the

awards made against it, the remedy is rendered ineffective as seen in the case of Baritussio v.

Uruguay216 thus amounting to a violation of the right to an effective remedy. As far as refugee

protection is concerned, the right is to a great extent respected, though there are some cases of

refoulement as seen above. The Refugees Act does establish procedures for the withdrawal of

215
Interview Records with Human Rights Officer, Monitoring and Inspections Directorate held at UHRC Offices,
Kampala on 22 August 2007.
216
Ibid. Supra note 82.

62
refugee status and expulsion, but effectiveness of such procedures in order not to amount to a

human rights violation will, to a great extent, depend on the impartiality and independence of the

bodies or authorities vested with such power, namely the REC and the Minister for refugees.

Recognized refugees in Uganda may be well provided for and protected, though this varies from

settlement to settlement, but they also continue to be vulnerable to human rights abuses and

violations where they should be protected. The situation is even worse for asylum seekers whom

the human rights provisions under the Refugees Act does not apply to, making them one of the

most vulnerable groups among the vulnerable. Some of the violations are occasioned by private

individuals, including the refugees themselves, while some are occasioned by government

officials. Avenues do exist for providing redress for rights violations, but for refugees accessing

such competent institutions is not as easy as provided for under the law. Even where there is

access and the case is successfully heard, having the remedy enforced may take quite a long

while, especially if it is against the Government, which is usually the case. Without access and

enforcement of the remedy, two of the vital aspects of the right to an effective remedy,

enjoyment of the right becomes elusive and in such circumstances it would be difficult to argue

that a State is indeed complying with its obligation to ensure the right to an effective remedy to

all persons within its territory and under its jurisdiction.

CHAPTER FIVE

SUMMARY OF FINDINGS, OBSERVATIONS, RECOMMENDATIONS,

CONTRIBUTION TO KNOWLEDGE, SUGGESTED AREAS FOR FURTHER
RESEARCH, CONCLUSION

63
5.0 INTRODUCTION

Forced displacement and rising numbers of refugees around the world and particularly over the

past three decades have emerged as a burning human rights concern. The rights of refugees and

their protection by Nation states have long been recognized by international law. The primary

international human rights instruments that promote and protect the rights of refugees around the

world and Africa in particular are the 1951 UN Convention Relating to the Status of Refugees,

its 1967 Protocol, and the 1969 OAU Convention Governing the Specific Aspects of Refugee

Problems in Africa. Uganda as an example in this dissertation, is a state party to the 1951

Convention and the 1969 Convention, and has adopted laws to promote and protect the rights of

refugees in her country. These include the 1995 Constitution, the Refugees Act of 2006 and the

Refugees Regulations of 2010 which guarantee the rights of refugees to reside in on-camp

settings, and to work and make a living. However, it has been argued in this dissertation that one

of the gaps in the national framework is the protection of the rights of refugees residing in urban

settings. The international and regional refugee laws are not clear on the benchmark against

which to appraise state compliance. In light ofthe foregoing, this dissertation has explored the

normative content of the Ugandan 1995 Constitution and Ugandan Refugee Act of 2006, and

observed that these laws and policies are progressive and yet generally fall short of most

international human rights standards and best practices. Therefore, this dissertation postulatesthat

the progressive legal framework is not sufficient if not backed by a responsive and appropriate

administrative system that is practically and procedurally fair and just.

5.1 SUMMARY OF FINDINGS

The United Nations High Commissioner for Refugees (UNHCR), as this researcher has stated

earlier, was created to provide international protection to refugees, which protection includes

64
ensuring non-refoulementand ensuring that States comply with their obligations under the CSR.

However, the UNHCR lacks the mandate to examine State reports in relation to refugee’s rights

in any given State party or to receive individual complaints from refugees looking for redress for

human rights violations occasioned by the State, as most other human rights treaties establish for

their special bodies. This to a great extent limits the UNHCR’s protection of refugees, which

should be protection in a holistic sense, that is, protection against non-refoulement and ensuring

that a refugee obtains redress when his or her rights have been violated or abused; 217 and yet the

UNHCR is the only body that deals exclusively with refugees. Nonetheless, UNHCR’s

protection officers sometimes intervene with authorities in an effort to prevent, ameliorate or

redress violations using a blend of human rights monitoring, negotiation and activism. 218 Despite

these efforts, the UNHCR has come under heavy criticism for concentrating less and less on its

protection functions and more and more on providing humanitarian assistance, which could,

according to the critics, be well and ably handled by other international agencies.219

Under Article 38 of the CSR, where there is a dispute between States parties relating to the

interpretation or application of the Convention, one of the parties to the dispute may refer it to

the International Court of Justice. Besides the fact that this provision has never been applied by

any States parties, it clearly excludes the individuals who are most affected by a States action

217
One of the explanations for this weak mandate of the UNHCR is that States did not want to regulate in detail
international obligations which would apply to the sensitive issues of entry and admission, an area still well guarded
by the concept of State sovereignty. Hence, a discretionary humanitarian approach was much preferable to a binding
human rights-oriented framework of norms. See Türk, V ‘The Role of the UNHCR in the Development of
International Refugee Law’ in Nicholson, F &Twomey, P (eds.), supra note 11, pp. 171-172. Hathaway also further
explains that the UNHCR Statute does not grant UNHCR any clear power to champion the enforcement of refugee
rights, the primary responsibility of which falls on the States. See Hathaway, J. C supra note 121, p. 628.
218
Helton, A. C supra note 110, p. 26.
219
Steiner, N, Gibney, M & G. Loescher (eds.), (2003) ‘Problems of Protection: The UNHCR, Refugees and Human
Rights’ (Routledge, New York and London) p.13. Hathaway further criticizes the UNHCR for being a tacit co-
conspirator with States to minimize international refugee protection since the UNHCR gets its funding, which is
negligible compared to its workload, from the very States it ought to be influencing. See Hathaway, J. C
‘Reconceiving Refugee Law as Human Rights Protection’ in Gowlland, V & Samson, K (eds.), (1992) ‘Problems
and Prospects of Refugee Law’ (The Graduate Institute of International Studies, Geneva), p.11.

65
and that would mean relying on a State to present their claims, which State could be the very

violator of their human rights. As such the monitoring mechanism under international refugee

law is considerably very weak when it comes to ensuring the rights of refugees other than non-

refoulement. Therefore, a refugee whose right of access to court has been denied or violated

cannot have recourse to the UNHCR to enforce that obligation upon the State. This then leaves

the refugee with the option of seeking redress from other mechanisms established under various

human rights law treaties, for example, the ICESCR and the ICCPR. Needless to say, the entire

refugee protection regime would be greatly enhanced by the establishment of an independent

monitoring or supervisory mechanism to provide oversight of State activities in refugee rights

protection.220In this thesis, this researcher has examined the meaning of the right to an effective

remedy as interpreted by various international and regional bodies, namely: the HRC, the

CESCR, the European Court of Human Rights and the African Commission on Human and

Peoples’ Rights. Going by the way these bodies have interpreted this right, one can deduce that

the right to an effective remedy implies one; procedural remedies or the means by which a victim

of a human rights violation may obtain substantive redress and these should be competent,

independent and impartial tribunals, not necessarily judicial which abide by the procedural

guarantees as set out under human right law. Such institutions for obtaining remedies should be

both available and accessible. Secondly, it implies that the remedy obtained by the victim should

sufficiently redress the violation that has occurred and as such the nature of the remedy may take

various forms ranging from reparation, compensation, investigations and prosecution of

individual offenders to amending offending laws. The actual realization of the right, moreover,

occurs when the particular remedy is enforced.

5.2 OBSERVATIONS
220
Steiner. N et al, ibid, p. 16. Also J. C. Hathaway, supra note 121, pp. 663.

66
 1. It has been observed that refugees face other extreme challenges particularly those

categorized as urban refugees and these challenges do not affect those residing in camps and

settlements. This researcher contends that while refugees who remain in camps and settlements

have access to basic provisions such as shelter, food and water, refugees residing in urban areas

have no choice but to be self-reliant.It is further observed that the International Rescue

Committee contends that in most cases urban refugees do not have legal recognition and

protection in the host country, which makes it more complicated to access basic services as well

as exposing them to abuse and exploitation.

2. It was also observed that even though the refugees lack proper identificationand documents,

yet they must find employment and face the threat of detention, deportation or forced relocation.

Even in countries where they do have legal recognition and protection, many refugees are

frequently faced with harassment by police, including physical abuse, intimidation, illegal

detention and demands for bribes. Women refugees are particularly vulnerable to physical and

sexual abuse.

3. It is also observed that in most African countries plagued by economic crises and social

problems, refugees are used as convenient scapegoats. For instance, in Sudan, it is observed that

the local population accuses refugees of being responsible for higher rents, intermittent shortages

of basic necessities, overcrowded schools and inadequate healthcare facilities, increasing crime

rates and other urban ills.

4. It has been noted that in most African countries landlords and employers often take advantage

of particularly the urban refugees who do not have legal protection by charging them higher rents

or paying them less than locals with equivalent skills. There is also a misconception among

governments that refugees in urban areas cause an increase in crime rates in the cities.

67
5. It is further observed that migrants and refugees are far more likely to be victims of crime or

police harassment than locals. Particularly, the experiences of refugees in some African cities

such as Cairo, Johannesburg, Kampala and Khartoum are typified by a high level of helplessness

due to the subjective enforcement of international and national protection regimes.

6. Finally, in practice, therefore, the international human rights laws and its implementation in

some African countries are often an impediment rather than a solution. For example, these laws

are used to perpetuate their status as refugees indefinitely.

5.3 Recommendations

In the Vienna Declaration and Programme of Action, States recognize that gross human rights

violations, including armed conflicts, are among the multiple and complex factors responsible for

the refugee situation. The UN General Assembly has also gone ahead to adopt Basic Principles

and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of

International Human Rights Law and Serious Violations of International Humanitarian Law

(hereinafter referred to as ‘Basic Principles’) but then these have not yet been applied to redress

refugee issues in particular. As have been seen, refugee law focuses on offering an alternative

solution rather than on redressing the problem, which seems to conflict with the principle that

where there is a violation of a right, there should be an effective remedy. The dilemma here is

that the entity, that is, the State, which would be providing the effective remedy is unable to or

unwilling to do so. It has been assumed that it is because international human rights standards

derive their validity and binding nature from treaties, as a matter of international law, a State

owes its legal obligation to other States parties to the treaty.

As such it would be other States that would ensure that a deviant State actually ‘toed the line’.

This would in most cases be addressed if States took the States communication procedures

68
seriously or referred the matter to the International Court of Justice as envisaged under Article 38

of the CSR.

Ironically though, States do mandate the UNHCR to ‘seek permanent solutions’ to the refugee

problem without giving it the power that would enable it ensure that States responsible for

refugee outflows remedy the situation. Therefore, here are direct recommendations for

implementation:

a) Compensation or Restitution: Under the Principles Concerning Treatment of Refugees, it

is provided that a refugee “shall have the right to receive compensation from the State or

country which he left or to which he was unable to return”.

b) Truth and Reconciliation: One of the ways of redressing gross human rights violations is

through truth and reconciliation commissions. However, this approach taken on its own

could leave many victims without full remedies and perpetrators without complete

sanction, which might defeat the purpose of justice.

c) Accountability/Prosecution: As it has been indicated earlier, human rights bodies

emphasize the importance of investigating and prosecuting human rights violators as one

of the effective remedies. Now with the establishment of the International Criminal Court

(ICC), this may be possible for those individuals who, by their actions that amount to

gross and serious or systematic human rights violations, create refugee situations.

Although the ICC does not specifically deal with the issue of refugees, the fact that it

deals with persons responsible for gross, serious and systematic violations of human

rights would in effect enable it prosecute individuals responsible for refugee outflows.

There are other remedies provided under the Basic Principles, which include satisfaction,

guarantees of non-repetition, rehabilitation and which could also be accorded to refugees. There

69
are thus other available channels in international law that could be applied to ensure that refugees

do obtain effective remedies, and these should be applied hand in hand with refugee law. The

basic proposition here is that the international community should adopt a two-pronged approach

to the refugee problem: one which seeks to provide an alternative and temporary solution, and

the other which aims at providing redress or remedies for human rights violations suffered by the

refugees. Finally, States should take their international obligations seriously instead of saying

one thing on paper and doing the other in practice.

5.4 CONTRIBUTION TO KNOWLEDGE

This researcher has been able to show that Refugees need practical and fast paths to integrate

into new societies. Refugee children and adolescents who are integrated into national school

systems build lasting friendships with local children, learn languages, and develop vital skills

they need to sustain themselves and their families. They thereby contribute to the growth of the

respective communities where they live.

Through research, the dissertation showed that as of last year 2020, over 38,000 people were forced to

leave their homes and country every day due to violence, persecution, and conflict. Unprecedented levels

of forced displacement have caused a global migration and refugee crisis, but world leaders have failed to

come up with any long-term solutions. The researcher has shown that there are an estimated 24.2 million

refugees around the world, and many find themselves in limbo for years, denied the rights they need to

become self-sufficient and restart their lives. Refugees need practical and fast paths to integrate into new

societies. This begins with quality education.

The dissertation has shown the importance of education as not only a fundamental right; but that

it is one of the most valuable assets a refugee can have. Refugee children and adolescents who

are integrated into national school systems build lasting friendships with local children, learn

languages, and develop vital skills they need to sustain themselves and their families. For refugee

70
children, school can be a safe place where they can learn and play—basic necessities for any

child growing up, but especially important for those that have been torn from their homes and

seen the horrors of war.

The researcher has lamented that despite the crucial role that education plays for refugee

communities, it is ignored by aid donors and governments. The researcher showed that only 2%

of funding in emergencies is dedicated to education. As a result, there are approximately 3.9

million refugee children out of school. The impact of this is devastating, with children easily

falling victim to exploitation or forced to work to earn money for their households. Some

families resort to child marriages in order to survive, causing as many as 90% of girls to drop out

in some areas.The researcher brought to the fold that unfortunately, 86% of refugees are hosted

by developing countries that are already facing tight budgets, and the scale of the crisis has

strained their limited resources. Refugee children often face legal barriers to enrollment, and

schools are not properly equipped to handle the large influx of students. To get these refugee

children access to education, these countries need more teachers, more schools, and more

capacity to deal with the cultural, mental and physical health needs of these children.

The researcher lead it to be known that Children fleeing conflict are the most susceptible to

violence and abuse, and education is often a lifesaving intervention that offers protection and

preserves their futures. Education is a basic human right, and without the chance to study, the

world would risk losing an entire generation of children when the solution is in our hands. 

It is high time when world leaders must deliver a credible plan to provide all refugee children

with quality education, with at least one million reached by the end of this school year 2021.

5.5 SUGGESTED AREAS FOR FURTHER RESEARCH

71
For the extensive research conducted for this dissertation, it is the believe of this researcher that

further research need to be conducted on the general area of public perception of refugees and

migrants, paying some attention to the roles of politicians, the media and civil society in shaping

public opinion. The current state of public opinion towards refugees and migrants is a major

concern. Research polls need to be conducted on this topic.The further research should

emphasize the importance of situating analysis of public opinion within the specificities of

national context.It is understood that people in the countries where refugees are migrating to can

roughly be divided into three segments: pro-migration liberal cosmopolitans, anti-migration

hostile nationalists and an ‘anxious middle’. The ‘anxious middle’ – the biggest population

segment in this context – is characterized by mixed and conflicted points of view. There is a need

for a confirmed research for the belief of widespread support worldwide for a humanitarian duty

to take in refugees. However, there is an emphasize that this belief is supported by many in the

‘anxious middle’, but that this segment’s feelings around obligations towards refugees are

counterbalanced by concerns in three categories:

• Culture: Feelings like ‘my country is disappearing’, a threat to belonging and identity.

• Security: This was especially high in countries which have suffered attacks.

• Economy: Views on this varied from country to country, showing the importance of national

context. For example, in France people were worried about jobs due to high unemployment rates;

in the UK it is the National Health Service (NHS), transport and pressure on local services that

attract the greatest concern.

Another area for further research concerns the impacts of refugees’ migration which have been

exacerbated by genuine failures of different government integration policies. Further research

need to be conducted emphasizing whether there is evidence to support the ‘contact theory’ –

72
that those who have more contact with refugees and migrants are likely to be positive – or not as

this has been a complex picture with respect to different countries around the world.

Furthermore, there is a need to conduct further research on the importance of coalition-building.

It seems that influencing the ‘anxious middle’ may involve working with like-minded groups in

unusual areas, for example the military or liberal thinking politicians who support refugees.

Research in this area can confirm the need for collaboration, including between volunteers,

NGOs and the media. Emphasizes should be the importance of bringing people together.

5.6 CONCLUSION

International human rights law, as mentioned in the Preamble to the UDHR, aims to ensure the

equality of all people that should live with all dignity and worth inherent in all human beings

without any discrimination whatsoever. The primary subjects of international law being the

States, they carry the responsibility to ensure that all persons within their sovereign territory and

under their jurisdiction do fully enjoy the rights guaranteed under international law and which

the respective State has undertaken to respect, protect and fulfill. With regard to the obligation to

protect, the State, in addition to putting in place appropriate policies and legislative measures, is

specifically obligated to ensure that every person in its territory enjoys the right to an effective

remedy when his or her rights have been violated. This thesis sought to look into how or whether

this right to an effective remedy is realized by refugees both in domestic law and in international

law generally. What follows is a sum-up of the major deductions with regard to the questions

that the thesis set out to answer. One of the chapters in this thesis examined the nature of the

protection accorded to refugees under international refugee law and whether this comes within

the ambit of the protection that is stressed under human rights law that a victim of a human rights

violation should have the right to an effective remedy. It was submitted that the protection

73
envisaged for refugees is not remedial in the strict sense of the term in that it does not redress the

violations that occasioned the refugee’s flight (which is the objective of the right to a remedy),

but rather seeks to provide an alternative means of redress by ensuring that refugees are

temporarily protected in another State, which is under an obligation to ensure that the refugee is

not returned to the country where he or she faces danger of persecution (non-refoulement).

Nevertheless, the CSR does provide for the rights of refugees in the asylum country, among

which is free access to courts. However, it goes no further than this, leaving the details into the

hands of each individual and sovereign State. It was the conclusion in this chapter that refugee

law does indeed fall short of providing for a refugee’s right to an effective remedy and as such

one would have to fall back onto the mainstream human rights law provisions for adequate

guarantees of the right.

Chapter four looked at the law in practice. In chapter four, this researcher conducted an appraisal

of the human rights situation of refugees in settlements in Uganda and the extent to which the

Government of Uganda has fulfilled its obligation of ensuring the right to an effective remedy to

its refugees. The conclusion was that whereas such remedies may be readily available both in

law and fact, the reality is that they are rather inaccessible by refugees in settlements, mainly

because their freedom of movement is greatly restricted, but also because of other factors that

were mentioned. A further hurdle to the realization of the right to an effective remedy is the

reluctance of the Government of Uganda when it comes to the actual enforcement of remedies

that may be awarded by the competent bodies. The failure to enforce a remedy makes the right to

an effective remedy illusory and in effect renders whichever right for which a remedy was

sought illusory as well. There are mechanisms put in place at both the international and regional

levels that monitor the implementation of the respective human rights instruments in a State

74
party to the instrument. It is the operation and effectiveness of these mechanisms that were

examined in chapter five. At this level, there are a number of ways supervision of a State’s

compliance with its obligations may be conducted and this is mainly through examination of

State party reports and the examination of individual complaints for those bodies which have the

mandate to do so. However, it was noted that as far as providing remedies or ensuring that

remedies are provided to victims of human rights violations is concerned, these bodies are not

quite as effective and that they rely so much on the good faith of the State to carry out its

international obligations. They as such can offer no remedies to a victim of a violation, but can

only recommend to and hope that the State will provide the effective remedy. Moreover, these

bodies do not deal specifically with refugees and yet are far removed from refugees thus raising

the question of accessibility. The only body that deals specifically with refugees, the UNHCR,

lacks the mandate that would enable it ensure that when the rights of refugees are violated, the

State does in fact provide the effective remedy.

It is therefore humbly submitted by this researcher that while the right of refugees to an effective

remedy is adequately provided for under both international law and in domestic law (that is, in

Uganda), it is not that easily realized by a refugee, especially the kind of refugee that this

researcher appraised. While international law and its protection or monitoring mechanisms aim

to ensure that this right is available to all, they can only, in most cases, go as far as making

declarations that a State has violated its obligations and that it should provide a remedy. This is

even more pronounced under the African regional human rights and refugee protection system.

The plight of a refugee would therefore be better redressed in a domestic setting, if the system is

in fact functioning as envisaged under international human rights law, but even where it is not,

75
the practice in international law is that the ultimate solution and enforcement of any right will

depend on the good faith of the State in carrying out its human rights obligations.

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