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Rights and duties of refugees under municipal law in Tanzania: examining a proposed new legislation

Published online by Cambridge University Press:  28 July 2009

Chris Maina Peter
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Extract

“We have to be realistic and hard-headed about this problem of refugees. We have in particular, to recognise that it is not getting smaller.”

Julius K. Nyerere

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Articles
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Journal of African Law , Volume 41 , Issue 1 , Spring 1997 , pp. 81 - 99
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Copyright © School of Oriental and African Studies 1997

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References

1 Former President of the United Republic of Tanzania (1961–85) in his inaugural speech to the Arusha Conference on the African Refugee Problem of May 1979. This speech is reproduced in Eriksson, L-G. et al. , (eds.), An Analysing Account of the Conference on the African Refugee Problem Arusha, May 1979, Uppsala, 1981, 65.Google Scholar

2 An earlier version of this article was presented at the International Workshop on the Refugee Crisis in the Great Lakes Region (Burundi, Kenya, Rwanda, Uganda, Tanzania and Zaire) held in Arusha, Tanzania from 16 to 19 August 1995. The author would like to thank Mr Bonaventure Rutinwa of Faculty of Law, University of Dar-es-Salaam, currently at the Refugee Studies Programme, University of Oxford, for assistance with current materials on the subject.

3 On the Rwanda civil war see, deWaal, Alex and Omaar, Rakiya, “The genocide in Rwanda and the international response,” (1995) 19, 591Current History 156;Google ScholarReyntjens, Filip, “Rwanda: genocide and beyond”, 1996 9, 3Journal ofRefugee Studies 240;Google Scholar“Crisis in Rwanda: scrambling to save Rwanda—a race with death”, Newsweek (USA) 1 August, 1994, 6;Google ScholarWaller, DavidRwanda: Which Way Now? Oxford 1993; andGoogle Scholar“The long arm of the law”, Newsweek (USA), 20 March, 1995, 54.Google Scholar

4 The refugees were in the following camps: Benaco (330,000), Lukole (8,500), Murongo (15,000), Kagenyi (24,000), Chabilisa (22,000), Nyakasimbi (1,400), Burigi (5,000), other smaller camps (5,000). See Unhcr, , Information Bulletin, Dar-es-Salaam, June 1994, 2.Google Scholar

5 On the ethnic clashes which have taken place in this region and particularly in these two tiny African states see inter alia, Der Meeren, Rachel Van, “Three decades in exile: Rwanda refugees 1960–1990”, (1996) 9, 3Journal ofRefugee Studies, 252;CrossRefGoogle ScholarHoltz, Bruno, Volkermord order Seihstmord? Freiburg, 1973;Google ScholarMeisler, Stanley, “Holocaust in Burundi, 1972”, in Veenhoven, Willem A., (ed.), Case Studies on Human Rights and Fundamental Freedoms: A World Survey (Vol. 5), The Hague, 1976, 225;Google ScholarReyntjens, Filip, Burundi: Breaking the Cycle of Violence, London, 1995;Google ScholarPrunier, Gérard, The Rwanda Crisis—1959–1994: History of a Genocide, Kampala, 1995; andGoogle ScholarDestexhe, Alain, Rwanda and Genocide in the Twentieth Century, London, 1995.Google Scholar

6 See Mackintosh, Anne, “The international response to conflict and genocide: lessons from the Rwanda experience—report of the joint evaluation of emergency assistance to Rwanda”, (1996) 9, 3Journal of Refugee Studies 334.CrossRefGoogle Scholar

7 On the reaction of the government of the United Republic of Tanzania to this abrupt situation see Rutinwa, Bonaventure, “The Tanzania government's response to the Rwanda emergency”, (1996) 9, 3Journal ofRefugee Studies 291. The reaction of the neighbours to the crisis is explained in Odhiambo Anacleti,CrossRefGoogle Scholar“The regional response to the Rwanda emergency”, (1996) 9, 3Journal of Refugee Studies 303.CrossRefGoogle Scholar

8 See Hammer, Joshua, “Rwanda: an overstayed welcome?” Newsweek (USA), 26 February, 1996.Google Scholar

9 See the interview given by Kagame, General Paul, the Vice-President and Defence Minister of Rwanda in “Rwanda can stand alone”, Newsweek (USA), 1 April, 1996.Google Scholar

10 Act No. 2 of 1996.

11 This Convention is reproduced in 189 United Nations Treaty Series 137 and it has to be read together with the Protocol Relating to the Status of Refugees of 31 January 1967 (606 United Nations Treaty Series 267). See also Goodwin-Gill, Guy S., The Refugee in International Law, 2nd Ed., Oxford 1996, 3; andGoogle ScholarWeis, Paul, “The international protection of refugees”, (1954) 48, 2American Journal of International Law 193.CrossRefGoogle Scholar

12 For the interpretation in the United Kingdom and the United States of America see the cases of R v. Secretary of State for the Home Department, ex parte Sivahanaran et al. [1988] 2 WLR 92 by the House of Lords and Immigration and Naturalization Service v. Cardoza-Fonseca (1987) 480 US 421 by the U.S. Supreme Court. These cases are discussed in Gino Naldi, J., The Organization of African Unity: An Analysis of its Role, London and New York, 1989, 104.Google Scholar

13 This Convention is reproduced in Vol. 8 International Legal Materials, 1969, 1288 and in Melander, Göran and Nobel, Peter (eds.), International Legal Instruments on Refugees in Africa, Uppsala, 1979, 118.Google Scholar

14 See Art. 1 (2). See also Arboleda, Eduardo, “Refugee definition in Africa and Latin America: the lessons of pragmatism”, (1991) 3 International Journal of Refugee Law 185:CrossRefGoogle ScholarRubin, Neville, “Africa and refugees,” (1974) 73 African Affairs 290 at 295;CrossRefGoogle ScholarEze, Osita C., Human Rights in Africa, Lagos, 1984, ch. 7; andGoogle ScholarOloka-Onyango, Joe, “Human rights, the OAU Convention and the refugee crisis in Africa: forty years after Geneva”, (1991) 3 InternationalJournal ofRefugee Law 453.Google Scholar

15 See Hofmann, Rainer, “Refugee law in Africa”, (1989) 39 Law and State 79 at 83.Google Scholar

16 See Reiterer, Michael, The Protection of Refugees by Their State of Asylum, Vienna, 1984;Google ScholarAiboni, Sam A, Protection of Refugees in Africa, Uppsala, 1978Google Scholar;and Tomasi, Lydio F., (ed.), In Defense ofthe Refugees and Territorial Asylum (Vol. V), New York; 1983.Google Scholar

17 Reference is made to this story in Maluwa, Tiyanjana, “The concept of asylum and the protection of refugees in Botswana: some legal and political aspects”, (1990) 2, 4InternationalJournal of Refugee Law 587 at 595.CrossRefGoogle Scholar

18 See Mahalu, Costa R., “The legal regime for refugees in Eastern African states”, (1988) 26 Archil) des Völkeneckts 23 at 24.Google Scholar

19 On asylum in the present epoch see inter alia, Goodwin-Gill, Guy S., “Asylum: the law and politics of change”, (1995) 7, 1; International Journal of Refugees 1; andCrossRefGoogle ScholarGrahl-Madsen, Atle, “Asylum, territorial”, in Rudolf, Bernhardt, (ed.), Encyclopedia of Public International Law, Vol. 8, Amsterdam, 1989, 42.Google Scholar

20 See Hofmann, Rainer, “Refugee law in the African context”, (1992) 5 Zeitschrift für auslandisches Recht and Völkerrecht 318 at 320.Google Scholar

21 See Goodwin-Gill, , “Asylum: the law and politics of change”, op. cit. at 3.Google Scholar

22 These include the American Convention on Human Rights of 1969 (Art. 22 (7)); and African Charter on Human and Peoples' Rights of 1981 (Art. 12 (3).

23 See Goodwin-Gill, Guy S., “The obligation of states and the protection function of the office of the United Nations High Commissioner for Refugees”, Michigan Yearbook of International Legal 1982, New York, 1982, 291.Google Scholar

24 For example, in September 1986 the leaders of Burundi, Rwanda, Tanzania, Uganda and Zaire agreed that refugees in each other's territory should be kept at least 50 kilometres away from their country of origin. On these so-called “Safe zones” see Mtango, Elly-Elikunda, “Military and armed attacks on refugee camps”, in Gill, Loescher and Laila, Monahan (eds.), Refugees and International Relations, Oxford, 1989, 87 at 119; andGoogle ScholarRutinwa, Bonaventure, “Beyond durable solutions: an appraisal of the new proposals for prevention and solution of the refugee crisis in the Great Lakes Region”, (1996) 9, 3Journal of Refugee Studies 312.CrossRefGoogle Scholar

25 These basic rights of a refugee are clearly enumerated in Khokhlov, Igor, “The rights of refugees under international law”, No. 91/1 Bulletin ofHuman Rights, New York, 1992, 85.Google Scholar

26 On the liberation struggle in the Southern African region see inter alia, Braganca, Aquino de and Wallerstein, Immanuel (eds.), The African Liberation Reader, 3 vols, London, 1982;Google ScholarPalmberg, Mai (ed.), The Strugglefor Africa, London, 1982;Google ScholarDavidson, Basil, The People's Cause: A History of Guerrillas in Africa, Harlow, Essex, 1981;Google ScholarGrundy, Kenneth W., Guerrilla Struggle in Africa: An Analysis and Preview, New York, 1971;andGoogle ScholarHargreaves, J.D., Decolonisation in Africa, London, 1988.Google Scholar

27 See Warioba, Joseph S., “Rights and obligations of refugees,” in Eriksson et al., An Analysing Account of the Conference on the African Refugee Problem Arusha, May 1979, op. cit. at 102.Google Scholar

28 See Amate, C.O.C., Inside the OAU: Pan Africanism in Practice, London, 1986, 213.Google Scholar

29 On the history of this region and the ethnic balance in these two countries which accounts for the ever-occurring crises leading to refugee status see inter alia, Newbury, Catharine, The Cohesion of Oppression: Clientship and Ethnicity in Rwanda—1860–1960, New York, 1988; andGoogle ScholarLemarchand, Rene, Rwanda and Burundi, London, 1970.Google Scholar

30 See Okoth-Obbo, George, “Bridging th e legal gap”, (1994) 91, 2Refugees 8 at 9.Google Scholar

31 Ibid.

32 See Nobel, Peter, “Refugees, law, an d development in Africa”, Michigan Yearbook of International Legal Studies 1982, New York, 1982, 255 at 269.Google Scholar

33 On several occasions the Minister responsible for refugee matters has invoked this provision. For example vide the Refugees (Declaration) Order, 1968 (Government Notice No. 433 of 1968), he declared every person who has entered Tanzania from Malawi after 7 September, 1965, and who is a Malawi national, and equally every South African national having entered Tanzania after 21 March, 1961, as a refugee under the Refugees (Control) Act, 1966. See inter alia Holborn, Louise W., Refugees: A Problem of Our Time—The Work of the United Nations High Commissionerfor Refugees, 1951–1972, Vol. II, Metuchen, New Jersey, 1975, ch. 41 which discusses refugees in the United Republic of Tanzania.Google Scholar

34 S. 4. Several refugee settlements have been established in the country and have been in operation for years. These include Katumba and Mishamo in Sumbawanga and Ulyankulu in Tabora. On the activities taking place in some of these settlement camps see Choi, Anthony A., “The influence of law and related factors in the integration of refugees in Tanzania”, (1992) 4 International Journal of Refugee Law 171.Google Scholar

35 S. 5.

36 For example, under the Foreign Investments (Protection) Act, 1963, (ch. 533 of the Revised Laws of Tanzania Mainland), all powers relating to issue of investment certificates were given to the Minister of Finance who could, at his own discretion, decide on the fate of an application of an investor.

37 S. 2 of the Act defines competent authority as “a Regional Commissioner or an Area Commissioner”. This means that all refugees living in a given area are at the mercy of the Regional or Area Commissioner who may at his own discretion order deportation of any refugee.

38 This is sanctioned under s. 9(3).

39 Art. 24 of the Constitution of the United Republic of Tanzania is very clear on the right of everyone to own property and prohibits deprivation of the same. The Tanzanian Bill of Rights is reproduced in Peter, Chris Maina, Human Rights in Africa: A Comparative Study of the African Human and Peoples' Rights Charter and the New Tanzanian Bill of Rights, New York, 1990, 95.Google Scholar

40 This freedom is guaranteed under Art. 17 of the Constitution of the United Republic of Tanzania, 1977.

41 See Chol, , “The influence of law”, op. cit. at 175.Google Scholar

42 The Frente de Iibertacao de Mozambique or Front for the Liberation of Mozambique (FRELIMO) was the liberation movement which fought and defeated the Portuguese colonial power in Mozambique and led the country to independence in 1975. On this struggle see inter alia, Isaacman, Allen and Isaacman, Barbara, Mozambique: From Colonialism to Revolution, 1900–1982, Boulder, Colorado, 1983;Google ScholarHenriksen, Thomas H.Revolution and Counterrevolution: Mozambique's War 1964–1974, Westport, Connecticut, 1983;Google ScholarCouto, Filipe J., Mosambik und Frelimo, Freiburg, 1974;Google ScholarPaul, John, Memoirs ofa Revolution, Harmondsworth, Middlesex, 1975;andGoogle ScholarMondlane, Eduardo, The Struggle for Mozambique, London, 1983.Google Scholar

43 The Movimento National de Resistencia de Mocambique (MNR) which later came to be known as Resistencia National Mocambicana (RNM or RENAMO) was a force organized and supported by the whites in the then Rhodesia and later by South Africa to fight the FRELJMO-led government of independent Mozambique. See Nilsson, Anders, “From pseudo-terrorists to pseudo-guerrillas: the MNR in Mozambique”, (1993) 57 Review ofAfrican Political Economy 60;CrossRefGoogle ScholarHanlon, Joseph, Mozambique: The Revolution under Fire, London 1984, 219; andGoogle ScholarEgerö, Bertil, Mozambique: A Dream Undone—The Political Economy of Democracy, 1975–84, Uppsala, 1987. The two warring parties signed a General Peace Agreement in Rome, Italy in October 1992 which ended the 17 years of warfare and led to the October 1994 general elections. SeeGoogle ScholarAlden, Chris “The UN and the Resolution of Conflict in Mozambique”, (1995) 33, 1Journal of Modem African Studies 103.CrossRefGoogle Scholar

44 See Art. 2 of the Constitution of the United Republic of Tanzania of 1977.

45 S. 3(l)(a). On persons with double or multi-nationalities, the proposed Act indicates that the term “a country of which he is a national” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of which he is national if, without any valid reason based on the well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national. This is provided in s. 3(2).

46 S. 3(l)(b).

47 S. 3(3)(a) to (g). This whole section is taken from Art. 1 (4) of the OAU Convention.

48 S. 3(4). Again this is based on Art. 1 (5) of the OAU Convention.

49 S. 4(1).

50 S. 4(4).

51 S. 4(2).

52 It should be noted that even now there is a National Eligibility Committee which advises the Minister responsible for refugees on various issues. This Committee has been in existence since 1982 and meets at least once per month. Therefore, the new proposal is just institutionalizing what is currently done informally. That is to make de jure what is there de facto.

53 S. 5(1).

54 S. 5(2).

55 S. 5(3).

56 S. 6(1).

57 S. 6(3) and (4).

58 S. 6(5).

59 S. 7.

60 Arms and ammunition as referred to in this legislation have the same meaning as that ascribed to them in the Arms and Ammunition Ordinance and the provisions of this legislation should be read as an addition to and not a substitute to the above Ordinance. See s. 10(4).

61 S. 10(1). The Act provides a very wide definition of an authorized officer. It includes the Principal Secretary, The Commissioner for Refugees, an Assistant Commissioner for Refugees, a Refugee Officer, Settlement Officer, Police Officer and an Immigration Officer. See s. 2.

62 S. 10(3).

63 S. 12(1).

64 S. 12(2).

65 S. 12(3). The Tanzania Refugee Trust which is envisaged to be established and operated under the Trustees Incorporation Ordinance (ch. 375 of the Revised Laws of Tanzania Mainland) is supposed to cater for situations where there are properties which do not belong to specific individual refugees. For instance, property which cannot be carried out of the country by leaving refugees or properties of refugees who die intestate. This Trust Fund is intended to further the interests of all refugees in the country.

66 Art. 13.

67 See ss. 17 to 22.

68 S. 23.

69 S. 23(4).

70 S. 24.

71 Ch. 16 of the Revised Laws of Tanzania Mainland.

72 Act No. 9 of 1985.

73 Ch. 490 of the Revise d Laws of Tanzania Mainland.

74 S. 25(1).

75 Ch. 585 of the Revise d Laws of Tanzania Mainland.

76 S. 25(2).

77 S. 26(l)(d).

78 See Art. 33 of the United Nations Convention Relating to the Status of Refugees of 1951 and Article II(3) of the OAU Convention Governing Specific Aspects of Refugee Problems in Africa of 1969. These provisions are digested in D'Sa, Rose M., “The African refugee problem: relevant conventions and recent activities of the Organization of African Unity”, (1984) 31 Netherlands International Law Review, 378 at 387. See alsoCrossRefGoogle ScholarVierdag, E.W., “Asylum and refugee in international law”, (1977) 24 Netherlands International Law Review 287 at 299.CrossRefGoogle Scholar

79 Hatty McGhee escaped from the Keko Remand Prison in Dar-es-Salaam together with Pius Mutakubwa Lugangira alias Uncle Tom. For the trial of those alleged to have facilitated their escape see “Witness unaware of prisoners exchange”, Daily News (Tanzania), 19 March, 1987.

80 Ochuka and his colleague Pancras Oteyo Okumu had been granted asylum by the Chief Resident Magistrate A.G.G. Korosso who had rejected the attempt by the Kenyan government to have them extradited in R v. Hezekiah Ochuka and Another Resident Magistrate's Court of Dar-es Salaam, Criminal Case No. 1059 of 1982 (unreported).

81 See Hodson, H.V. (ed.), The Annual Register: A Record of World Events 1985, Vol. 227, London, 1986, 220.See alsoGoogle ScholarPeter, , Human Rights in Africa op. cit, 20–21.Google Scholar

82 S. 27.

83 S. 29. Permits are issued for any refugee wh o qualifies for the same and can be withdrawn for good cause subject to the refugee and/or his employer being given one month's notice and the right to make any presentation to the Commissioner as per s. 29(2).

84 S. 30. According to this provision, a refugee or asylum seeker may be exempted from paying taxes where the Commissioner for Refugees certifies in writing that the refugee or asylum seeker or a group thereof have not been self-supporting. This might not be all that controversial because even now refugees who ar e engaged in productive activities are paying taxes on their income to the government. See Gorman, Robert F., Coping with Africa's Refugee Burden: A Timefor Solutions, Dordrecht, 1987, 115.Google Scholar

85 S. 31.

86 S. 32. This is for refugees resident in Tanzania who would like to join or be joined by any member of their families outside or within Tanzania. Application for family re-union are submitted to the Refugee Eligibility Committee through the office of the Commissioner for Refugees.

87 S. 33. Resettlement relates to refugees residing in Tanzania wanting to resettle in any other country outside Tanzani a and refugees residing outside Tanzania wanting to settle in Tanzania and coming through the good offices of the United Nations High Commissioner for Refugees or the Refugee Bureau of the Organisation of African Unity.

88 S. 34. Naturalization is open to those refugees who have been continuously resident in Tanzania for a period of seven years and have been sufficiently integrated into the Tanzania society and have no criminal record or tendency. These may apply for Tanzanian citizenship through the Commissioner for Refugees. On how this issue was previously dealt with in practice see Gasarasi, Charles P., “The Mass naturalization and further integration of Rwandese refugees in Tanzania: process, problems and prospects”, (1990) 3, 2Journal of Refugee Studies 96; andCrossRefGoogle ScholarReed, Cyrus W., “Exile, reform, and the rise of the Rwanda Patriotic Front”, (1996) 34, 3Journal of Modem African Studies 479.CrossRefGoogle Scholar

89 See Bauer, Carl-Walter, “Das Rotkreuz-Basislager K9 bei Benaco/Tanzania: Muzunguz essen Gulasch”, (1995) 4 Die Gute Tat, 10.Google Scholar

90 It is a fact that the country had been forced to feed the refugees on its own which can explain the emergence of some anti-refugee sentiment. Some of these have reflected in poems in the local newspapers, such as the Kiswahili poem entitled “Wakimbizi ni Kero” (literally: refugees are a nuisance) by George W.P. Ndunguru (Makande), Ofisi ya Kilimo (Mifugo) (M) S.L.P. 53 Songea, Tanzania appearing in the local Majira daily newspaper.

91 Citizenship in Tanzania is governed by the Citizenship Act, 1961 (ch. 452 of the Revised Laws of Tanzania Mainland).

92 This is in accordance with Art. 13 (6)(a) of the Constitution of the United Republic of Tanzania which provides that in order to ensure equality before the law, when the right and obligations of any person are being determined by the court or any other organ, such a person should be afforded the opportunity to be fully heard and the right to appeal and any other legal reliefs.

93 Ch. 38 of the Revised Laws of Tanzania Mainland.

94 See the case of Re Felix Bwogi High Court of Tanzania at Dar-es-Salaam, Miscellaneous Criminal Cause No. 29 of 1980, as per Kimicha, J. (as he then was).Google Scholar

95 This suggestion is from Ngung Etul-Mpwotsh, the Director of the OAU Bureau of Refugees. He is quoted in Kanyhama Dixon-Fyle “Prevention as the best solution”, (1994) 96, 20Refugees 22 at 23.Google Scholar

96 See for the example the arguments and the model suggested in Nobel, Peter, “National laws and model legislation on the rights and protection of refugees in Africa”, in Goran, Melander and Peter, Nobel (eds.), African Refugees and the Law, Uppsala, 1978, 58.Google Scholar

97 See Mukalazi, Sam, “Museveni and Mkapa meet over Burundi”, The East African (Kenya), 29 July, 1996, 1. On the events leading to the military takeover see inter alia,Google ScholarMisser, Francois, “Burundi: war escalates”, (1996) 343 New African 25.Google Scholar

98 The sanctions imposed on Burundi by the neighbouring states are aimed at forcing the new military junta to bring about a conducive climate for the return to democracy and they have full support of the Organization of African Unity (OAU). See Riyami, Khadija, “Economic sanctions imposed on Burundi”, Daily News (Tanzania), 1 August, 1996, 1;Google Scholar“No looking back on sanctions: Tanzania rules out military intervention”, Business Times (Tanzania) 23 August, 1996, 1; andGoogle ScholarThomas, Juma, “Army power no solution for Burundi”, Sunday Observer (Tanzania), 4 August, 1996, 1.Google Scholar

99 This is just a re-opening of an old wound as over the years people from Burundi have from time to time been forced to run to Tanzania for refuge. See Chretien, Jean-Pierrre, “Burundi: the obsession with genocide,” 95, 601Current History 206;Google ScholarStrizek, Helmut, Ruanda und Burundi von der Unabhänggkeit zum Staatszerfall: Studie über gescheilerte Demokratie in afrikamschen zwischensegebiet, Munchen/Köln, 1996; andGoogle ScholarLaely, Thomas, Autorität und Staat in Burundi, Berlin, 1995.Google Scholar

100 In fact the international community has in principle agreed to assist Rwanda in dealing with this large number of returning nationals from Zaire. See “The world makes up its mind(s) about Zaire”, The Economist (UK), 16 November, 1996, 55; andGoogle ScholarBogert, Carrol and Mabry, Marcus, “Washington clears the way for a rescue mission in Zaire—but a massive refugee exodus alters the calculus”, Newsweek (US), 25 November, 1996, 8. On the involvement of the international community in the current problems relating to Rwanda see inter alia,Google ScholarSinjela, Mpazi, “The UN and internal conflicts in Africa: a documentary survey—Rwanda”, 3 (1995) African Yearbook of International Law at 285 at 318; andGoogle ScholarPottier, johan, “Relief and repatriation: view by Rwanda refugees; lessons for humanitarian aid workers”, (1996) 95, 380African Affairs 403.CrossRefGoogle Scholar