On 10 September 2019, the Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Refugee Convention) turned 50, while on 23 October 2019 the African Union (AU) Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) turned 10. It is against this backdrop that the designation by the AU Assembly of Heads of State and Government of 2019 as the Year of Refugees, Returnees and Internally Displaced Persons (IDPs) in Africa, is significant.

This article traces the contributions of African states to the development of international refugee law and explores the role African human rights supervisory bodies have played in the interpretation and application of this field of law. While Africa's contributions to international refugee law are often overlooked, this article sets out to identify Africa's involvement in the drafting process of the UN Refugee Convention and its 1967 Protocol. It also explores the legal framework for refugees in Africa, in particular the OAU Refugee Convention and the Bangkok Principles on Status and Treatment of Refugees, and the extent to which these two instruments have enriched international refugee law. The article argues that some of their provisions may provide evidence of customary rules of international law. Lastly, it examines some of the authoritative pronouncements made by African human rights supervisory bodies, in so far as they adopt a progressive approach to interpreting the rights of refugees and asylum-seekers.

The protection of refugees languishing in camps in Africa has posed a challenge for the international community for far too long. The OAU Refugee Convention does not reflect refugee rights or provide a durable solution for refugees in host states. Over the last 50 years there have been multiple attempts to resolve what remains one of the greatest challenges facing Africa. Each resolution has clarified the steps required to enhance the situation for those most affected and to provide solutions for refugee-hosting countries in need of strategic policies and funding. This article considers recent developments in refugee law since the adoption of the New York Declaration. It specifically evaluates the benefit of the Global Compact on Refugees (GCR) for African states and the refugees they host. Furthermore, because the OAU convention is the first refugee convention to make international solidarity (ie burden-sharing) a state obligation, the article assesses how the GCR builds on the convention.

Over the last several decades, states have demonstrated significant political commitment towards advancing protection and assistance for internally displaced persons. A notable form in which this commitment has been reflected is in the emergence of normative standards, with the UN Guiding Principles on Internal Displacement (UNGP) as the guiding text. The fact that the UNGP framework has found expression in the landscape on internal displacement is evidenced at various levels of governance. Within the African context, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) draws on pertinent normative frameworks, with the UNGP as the leading framework. While this point is often made in general terms, this article focuses on the extent to which the norm on internal displacement has diffused and expanded within the African context.

This article explores the responsibility to protect (R2P) as an organizing concept for preventing, addressing and finding durable solutions to internal displacement in Africa. While the most innovative norms for protecting the forcibly displaced have been conceptualized in Africa, they have not durably addressed displacement, due to limitations in implementation. R2P has similarly faced criticisms emanating from a lack of clarity and distrust. Restated norms underlying frameworks for internally displaced persons (IDPs) and R2P complement each other, and can be operationalized simultaneously through a more credible regional approach, to encourage effective protection of IDPs in Africa. The article explores pillar one, pillar two and the non-coercive elements of pillar three of R2P, and its underlying moral principles, using Kenya as a case study of the process of seeking to secure state responsibility for the protection of displaced civilians victimized by mass atrocities.

Arguably the least discussed root cause of internal displacement, harmful practices are a prevalent concern in many African societies. The explicit mention of harmful practices is one of the many innovations of the Kampala Convention and reinforce its forward-looking, context-specific focus on Africa. This article argues that the convention has an absolute prohibition of harmful practices. This is an important starting point from which to discuss the content of states’ obligation to set measures for preventing harmful practices. However, in the event that displacement occurs due to these practices, it is important that protection, humanitarian assistance and durable solutions are provided. This article argues that states must set measures for ensuring that non-state actors are held accountable in the event that they orchestrate harmful practices. In fostering compliance, this article argues that there is an important role for institutions beyond the state, particularly those emphasized under article 14 of the convention.

This article considers the protection of, and assistance for, internally displaced children (IDCs) in Africa. Internal displacement has become one of Africa's most pressing human rights challenges. Over the last decade, millions of persons have been internally displaced on the continent by conflict, disaster and other causes. Children are one of the most affected categories of persons, given the implications of displacement for them. Article 23(4) of the African Charter on the Rights and Welfare of the Child incorporates specific protection for IDCs. This article examines the protection of IDCs in the context of this regional framework. It argues that, while article 23(4) requires that both refugee children and IDCs should be accorded the same protection from a rights-based perspective, it also requires that the protection of IDCs should be construed with reference to the Kampala Convention, which is the most recent applicable regional regime governing internal displacement.

In 2019, the African Commission on Human and Peoples’ Rights adopted General Comment No 5 on the African Charter on Human and Peoples’ Rights: The Right to Freedom of Movement and Residence (Article 12(1)). In this general comment, the commission elaborated on the right to freedom of movement and residence within state borders. This issue, while explicit in international human rights law, is a challenge within various jurisdictions, including in Africa. This article provides a background to and commentary on General Comment No 5, leveraging on the insight of the authors, who participated in its drafting. Unlike the UN Human Rights Committee's earlier general comment, General Comment No 5 provides detailed guidance on the internal dimension of the right to free movement and residence. As “soft law”, its persuasive force depends on a number of factors, including its use at the domestic level, its visibility and its integration into regional human rights jurisprudence.

This article argues that xenophobic acts towards black foreigners remain a human rights challenge in South Africa. Foreign nationals, mostly black Africans, continue to experience physical attacks, discrimination and looting of businesses, as well as targeted crime. Prevalent xenophobic attitudes continue to trouble the conscience of all well-meaning South Africans. There is ample evidence that xenophobia has morphed into afro-phobia, the hatred of black foreigners. Xenophobia continues to evolve and attackers are increasingly linking the presence of foreign nationals to socio-economic challenges facing the country. This article argues that, even though South Africa's Constitution does not expressly identify Ubuntu as a national value, it does recognize customary law and many of its provisions are anchored in Ubuntu philosophy. This article proposes Ubuntu, or African “humanness” whose “natural home” should be located in South Africa, as a pragmatic social intervention and a morally sustainable solution to address xenophobia that would be acceptable to both South Africans and foreign nationals.