Major new development for law and rights related to African refugees, migrants

6 August 2021 · Carmel Rickard

A new ‘centre of excellence’, focused on law that deals with refugees and migrants in Africa, was announced this week. Based at the University of Cape Town, the project has three major backers: the UNHCR (the UN’s refugee agency), the International Association of Refugee and Migration Judges and the Judicial Institute for Africa. Among its chief objects, the project will focus on university-certified training in refugee and migrant law for judges, magistrates and others working with refugees in Africa. It will also provide an immediately accessible, constantly updated database of relevant decisions, legislation and policy documents from around Africa that can be used by judges and magistrates as well as lawyers working with refugee and migrant clients, policy-makers and others.

The UNHCR (the UN’s refugee agency), the International Association of Refugee and Migration Judges (IARMJ) and the Judicial Institute for Africa (Jifa), have committed to an exciting and potentially far-reaching new joint project: the establishment of a centre of excellence, based at the University of Cape Town, providing university-certified courses to judges around Africa on issues of asylum and refugee law.

These courses will also cover nationality law and statelessness with the participating judges, magistrates and others working with refugee law.

At a virtual signing event this week, representatives of the three arms that are working together on the project explained its great significance.

Refugee status

The director of the UNHCR’s regional bureau for Southern Africa, Valentin Tapsoba, said the new centre of excellence would target English-speaking participants from Africa and that there were plans for other such centres to assist judicial officers and advocates from French, Arabic and Portugese-speaking countries.

Tapsoba said the project would help the UNHCR build capacity in the field of refugee law, in developing policy in Africa and in strengthening the determination of refugee status.

The project would also include a continuously updated ‘refugee law hub’ to provide credible and up-to-date sources of relevant law for the legal community. Tapsoba characterised the project as offering a reliable source of law for judges to use in drafting decisions, for advocates who are preparing litigation, for civil society in the formulation of policy and for academics engaged in research.

Protection

‘This will contribute to improving protection, policy and practices for refugees and stateless persons as well as promoting knowledge of, and respect for, legal instruments and policy guidelines relating to refugees and stateless people.’

Gauteng judge president, Dunstan Mlambo, chair of the Africa chapter of the International Association of Refugee and Migration Judges, and thus another signatory of the memorandum of understanding officially signed this week, said in the past it had been difficult to keep up to date with developments in law and decisions on refugees and stateless people in the continent’s various jurisdictions. The new centre of excellence was therefore an important development and a new website, facilitated by Jifa, would allow access to the law as it is handed down.

Judge Mlambo said it meant that, sitting in his office, he could get African jurisprudence on refugee and migration law, as it happened, ‘at the touch of a button’.

Professional development

Speaking of refugees who are at the heart of the project, he said they had to enjoy the same protections as any other member of society.

Vanja Karth, director of Jifa, the third branch of the new project, said Jifa had been set up to complement the work of domestic judicial institutes in Africa, where they exist, and to offer opportunities for judges from jurisdictions where there were no judicial institutes to participate in courses for professional development.

Through its work, Jifa had realised that there was a huge problem of access to resources that judicial officers and legal practitioners needed for their work. In addition, Africa jurisprudence was often ‘largely ignored or poorly referenced across the globe.’

Search tool

Jifa had partnered with 15 legal information institutes across the continent, to create subject specific indexes, ‘making access to legislation and case law easily searchable through a federated search tool.’

Cases in the free access collections were tagged with relevant keywords, and a team of students wrote summaries for each case. ‘Through this partnership with the UNHCR and IARMJ we will be developing an index that focuses on refugee and migrant issues, hosted on an African platform, but also shared with the UNHCR’s Refworld site, to ensure that African jurisprudence is available at a global level.’

In addition Jifa had a team of ‘virtual clerks’, PhD students trained to write legal memos and do comparative research for judges on request. Now, these resources would be available to the other partners in the refugee project as well, she said.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.