The international community was appalled by the Lampedusa boat disaster ⁽²⁾ on 3 October 2013, which claimed the lives of more than 360 people, mainly Eritreans and Somalis. Despite calls for the prevention of similar tragedies, the ordeal that migrants face has continued. In May 2014, almost 400 people succeeded in scaling the border fence of Spain’s North African enclave of Melilla,⁽³⁾ and are currently awaiting decision on their asylum applications. In June 2014, about 200 migrants from Ethiopia and Eritrea were detained in Zawiya, west of Tripoli,⁽⁴⁾ en route to Europe. On 19 July 2014, the Italian coastguard intercepted a boat with 600 people on board, south of the island of Lampedusa, among which were 18 dead asylum seekers.⁽⁵⁾ These are only a few instances of African migrants risking their lives trying to reach Europe, adding up to the 42,000 asylum seekers detected in January-April 2014 by the European Union (EU) border management agency FRONTEX.⁽⁶⁾

While most analysis so far has focused on the EU’s response to the plight of African refugees, this CAI paper attempts to highlight the accountability of African governments in the violation of refugees’ human rights. To that end, the major challenges encountered by African migrants ⁽⁷⁾ before reaching European waters or soil are outlined, followed by an identification of major gaps in the legal protection of refugees. Finally, this paper explores possibilities for stepping up efforts by African governments, as well as local non-governmental organisations (NGOs), in order to adequately respond to the needs of refugees before they reach European territories.

A risky journey

The recent instability across North Africa and the Sahel, as well as the erosion of Libya’s capacity to control its borders, has resulted in an unprecedented surge of migrants at the shores of the EU. Profit-seeking criminal networks take advantage of the increasing number of people ready to pay for their ticket to Europe, often along dangerous routes and via over-crowded trucks and unseaworthy boats.

The Global Initiative Against Transnational Organised Crime estimates that in “80% of the cases, the journey ⁽⁸⁾ is ‘facilitated’ by migrant smugglers and criminal groups who provide a range of services such as transportation, fraudulent identification, [and] corruption of border officials.”⁽⁹⁾ Migration essentially becomes a business venture, generating income for local economies, which makes the eradication of related criminal practices more difficult. According to the United Nations Office on Drugs and Crime (UNODC), “to move young girls through North African countries to Europe is a very important business-oriented activity”⁽¹⁰⁾ for smuggler groups in Nigeria. As soon as they cross the border, smugglers often hold migrants in debt bondage or withhold their travel documents, rendering them vulnerable to human trafficking ⁽¹¹⁾ for purposes of forced labour and commercial sexual exploitation.

Some of them manage to escape their traffickers and succeed in acquiring refugee status from a foreign African government. However, this does not necessarily translate into protection of one’s rights. Confined to camps, refugees have limited work rights and opportunities as well as restricted freedom of movement. Due to poor security within confinement sites, armed robbery, torture and gender-based violence become rampant. Consequently, when camps fail to provide the intended refuge, many embark on the dangerous journey towards the Mediterranean, risking their lives at sea. According to Human Rights Watch, “some of the survivors of a boat tragedy in which 357 Eritreans drowned off the coast of the Italian island of Lampedusa on October 3, 2013, had previously registered as refugees in the eastern Sudanese and Ethiopian camps.”⁽¹²⁾

As they near the Mediterranean Sea, migrants and asylum seekers risk being detected and pushed back to the countries of transit. There is mounting evidence of deliberate EU measures to curtail irregular arrivals in Europe by unlawfully expelling asylum seekers and increasing border control and surveillance. African states themselves contribute to such efforts, making the journey even more dangerous for migrants. Engaging in bilateral or regional cooperation agreements, State Parties receive EU funding for border surveillance equipment, training of guards and the establishment of information-sharing systems so that migrants can be stopped before reaching Europe.⁽¹³⁾ Algeria and Morocco are currently negotiating readmission arrangements with the EU, in the process of endorsing “procedures for the expulsion of non-EU citizens present in the EU without authorisation to their country of origin or transit.”⁽¹⁴⁾ Several African governments have already signed bilateral readmission agreements. For instance, Morocco has one with Spain, while Egypt, Libya and Tunisia have entered into similar readmission cooperation agreements with Italy.⁽¹⁵⁾ This increases occurrences of protracted situations of illegality in which individuals face violations of their rights, such as the rights to asylum, liberty and education. These migrants and asylum seekers remain trapped in detention centres in transit countries at the fringes of Europe or they risk “being deported to locations in Algeria and Niger where they are abandoned in the desert.”⁽¹⁶⁾

Addressing legal gaps in the protection of refugees

The protection of refugees and their rights has been shaped in the aftermath of World War II in particular, through the 1951 Convention relating to the Status of Refugees (CRSR) and the later addition of the 1967 Optional Protocol.

The definition of refugee as adopted by article 1A(2) of the CRSR requires objective evidence of a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”⁽¹⁷⁾ This excludes many asylum claimants seeking, for instance, refuge from wars or natural disasters. On the other hand, the landmark document leaves the establishment of asylum proceedings and refugee status determinations to the discretion of each State Party. Additionally, the CRSR does not provide for an oversight body ⁽¹⁸⁾ to monitor the compliance of states, which severely impairs the capacity of individuals to seek redress in cases of violation of their rights.

In a bid to adapt the refugee law framework to the realities of the African context, the 1969 Organisation of African Unity (OAU) Convention governing the specific aspects of refugee problems in Africa expanded the concept of refugee in article 1(2) to include “every person who owing to external aggression, occupation, foreign domination or events seriously disturbing public order”⁽¹⁹⁾ is compelled to leave her/his place of habitual residence.

Regional guarantees are much more inclusive; however, despite being signed and ratified by 45 African states,⁽²⁰⁾ the 1969 Convention is hindered by lack of enforcement. This increasing gap between law and practice is particularly salient in the application of articles 26 and 28 of the CRSR concerning refugees’ freedom of movement within their host country.⁽²¹⁾ Further guaranteed by article 12 of the OAU’s African Charter on Human and Peoples’ Rights, freedom of movement is severely violated by the refugee warehousing policies of many states in the region.

Probably one of the biggest gaps concerning international refugee law regards “mixed flows,” namely situations in which refugees and economically motivated migrants are difficult to distinguish. Claims of “asylum shopping”⁽²²⁾ have allowed countries of entry to imply that many migrants are not genuinely fleeing from persecution, and to thereby justify the rejection of their asylum applications. Furthermore, protection frameworks lack provisions on legal aid for refugees. In cases where such measures are considered, there are few legal advisers who have the necessary preparation to defend refugees.⁽²³⁾

Local solutions for African refugees

First of all, African governments need to create a common front in upholding the rights of African refugees—which are blatantly violated even before entering Europe—as well as to desist from engaging in agreements with the EU that prioritise deterrence over lawful access to asylum procedures. Border control enforcement enacted in disregard of international refugee law is not only detrimental to individuals seeking refuge from persecution, but also to the refugee management systems of African countries with access to the Mediterranean Sea. Maintaining detention centres for indefinite periods of time adds more strain on already feeble economies.

Given that smuggled migration and related human trafficking affect countries of origin, transit and destination alike, a more collaborative approach to regional policy-making is needed. Owing to the transnational nature of smuggling and human trafficking along migration routes, African governments should design and enforce a legal framework allowing for effective prosecutorial measures against smuggling networks on their territories. At the same time, such measures need to refrain from criminalising asylum seekers and human trafficking victims. State actors in Africa should equally acknowledge that economic reasons for fleeing one’s country do not necessarily nullify refugee claims.

On the other hand, governments should tap into the knowledge and skills of refugee communities in their countries, and provide opportunities for their economic agency and self-initiative. Such an approach has the potential to increase the well-being of refugees and the economic development of host communities, while exploiting otherwise neglected openings for private entrepreneurship. Uganda is a model of success in this respect, having adopted a relatively liberal policy towards its 387,000 refugees and asylum seekers, most of whom have fled conflict in the Democratic Republic of Congo and South Sudan.⁽²⁴⁾ The refugee communities throughout the country are actively engaged in global trade networks, being either buyers of products and services in their host communities or employment creators. For instance, in Kampala, 40% of the refugees who are employers provide work for Ugandan nationals and 43% of the employed refugees living in the capital city work for citizens of Uganda.⁽²⁵⁾

Despite the lack of enforcement by governments, legal instruments at international and regional level provide an essential advocacy tool for organisations and individuals to advance the protection of refugees in practice. It is particularly knowledge on their legal rights and related procedures that many refugees lack. Local NGOs should fill this void through targeted information campaigns that ensure that prospective migrants are informed both of the risks of migration and their rights in transit and destination countries alike. Concerted action of NGOs on behalf of refugees is required in order to bring cases before the African Commission on Human and Peoples’ Rights,⁽²⁶⁾ and thereby report grave violations of human rights, when states themselves are the perpetrators.

Concluding remarks

Africa needs to start assuming collective responsibility for its refugees by strengthening enforcement of refugee rights and protection on its soil. Isolating asylum seekers, refugees and migrants in unsanitary, overcrowded camps or incarcerating them in detention centres is not a durable solution to the deeply entrenched causes of forced migration such as poverty, injustice and armed conflict. To the contrary, governments in Africa should support the economic agency of refugee communities in order to combat their dependence on aid and on the resources of the host country. Furthermore, a transnational strategy focusing on effective regional legal frameworks to fight criminal networks related to migration is required. In the absence of efficient mechanisms monitoring compliance of states with their duties towards refugees, the increasingly sustainable civil society sector on the continent ⁽²⁷⁾ needs to augment its advocacy efforts in areas of refugee protection where states are either unwilling or ill-equipped to act.

Written by Teodora Drăgulescu ⁽¹⁾

NOTES:

(1) Teodora Drăgulescu is a Research Associate with CAI and a Schuman Fellow with the European Parliament. Her main research interests focus on human rights and transnational terrorism in Africa. Contact Teodora through Consultancy Africa Intelligence’s Rights in Focus unit ( rights.focus@consultancyafrica.com). Edited by Liezl Stretton. Research Manager: Mandy Noonan.
(2) Nelson, Z., ‘Lampedusa boat tragedy: A survivor’s story’, The Guardian, 22 March 2014, http://www.theguardian.com.
(3) Kassam, A., ‘400 migrants break through border fence in Spain’s African enclave Melilla’, The Guardian, 28 May 2014, http://www.theguardian.com.
(4) ‘African migrants detained in Libya’, Al Jazeera, 2 June 2014, http://www.aljazeera.com.
(5) ‘African migrants suffocate on voyage to Italy’, Al Jazeera, 19 July 2014, http://www.aljazeera.com.
(6) Adams, P., ‘Migration surge hits EU as thousands flock to Italy’, BBC, 30 May 2014, http://www.bbc.com.
(7) For the purpose of this paper, migrants are defined as individuals who make a conscious decision to leave their country for better life opportunities, but are able to return at any point in time. Unlike migrants, refugees are forced to flee their countries of origin because they have experienced, or they risk, persecution. The category of asylum-seekers refers to persons that have applied for asylum under international law and are awaiting approval. Most often, the boundaries between the three categories are blurred as people embark together on their voyage towards Europe.
(8) For information on the most common routes to Europe, see Reitano, T., Adal, L. and Shaw, M., ‘Smuggled futures: The dangerous path of the migrant from Africa to Europe’, The Global Initiative Against Transnational Organised Crime, May 2014, http://www.globalinitiative.net.
(9) Reitano, T., Adal, L. and Shaw, M., ‘Smuggled futures: The dangerous path of the migrant from Africa to Europe’, The Global Initiative Against Transnational Organised Crime, May 2014, http://www.globalinitiative.net.
(10) ‘Smuggling of migrants into, through and from North America’, UNDOC, 2010, https://www.unodc.org.
(11) Smuggled migrants have a consensual relationship with their smugglers and are free at the end of the journey, while trafficked persons are enslaved and exploited by their traffickers.
(12) ‘I wanted to lie down and die: Trafficking and torture of Eritreans in Sudan and Egypt’, Human Rights Watch, 11 February 2014, http://www.hrw.org.
(13) ‘The human cost of Fortress Europe: Human rights violations against migrants and refugees at Europe’s borders’, Amnesty International, 9 July 2014, http://www.whenyoudontexist.eu.
(14) Ibid.
(15) Cassarino, J.P., ‘An overview of North African countries’ bilateral cooperation on the removal of unauthorised migrants: Drivers and implications’, Middle East Institute, 4 May 2012, http://www.mei.edu; ‘UN Special Rapporteur on the human rights of migrants concludes his third country visit in his regional study on the human right of migrants at the borders of the European Union: Italy’, Office of the High Commissioner for Human Rights, 8 October 2012, http://www.ohchr.org.
(16) Ibid.
(17) ‘Convention and protocol relating to the status of refugees’, The United Nations Refugee Agency, 1951, http://www.unhcr.org.
(18) Wood, T., ‘International refugee law: How are refugees protected by international law?’, 9 November 2012, http://thinkafricapress.com.
(19) ‘OAU Convention governing the specific aspects of refugee problems in Africa’, 10 September 1969, http://www.unhcr.org.
(20) According to the African Commission on Human and People's Rights, Djibouti, Madagascar, Mauritius and Somalia signed but did not ratify the 1969 Convention, while Eritrea, Namibia, Sao Tome and Principe and South Sudan neither signed nor ratified it. See more at http://www.achpr.org.
(21) Article 12 of the 1966 International Covenant on Social and Political Rights, signed and ratified by the majority of African states, reaffirms the liberty of movement.
(22) Woldemariam, J., ‘African refugees: The untouchables of our time’, 10 June 2014, http://thinkafricapress.com.
(23) Bhandari, R., ‘Experts weekly: World Refugee Day. How can international protection of refugees be improved?’, 20 June 2012, http://thinkafricapress.com.
(24) Betts, A., Bloom, L., Kaplan, J., and Omata, N., ‘Refugee economies: Rethinking popular assumptions’, University of Oxford, Refugee Studies Centre, 20 June 2014, http://www.rsc.ox.ac.uk.
(25) Ibid.
(26) For further information on how to bring communications on human rights violations before the African Commission, see http://www.redress.org.
(27) For a detailed account on the topic, refer to the 2012 CSO Sustainability Index for Sub-Saharan Africa, http://www.usaid.gov.