CHAPTER ONE

INTRODUCTION TO REFUGEE LAW

You should be familiar with the following areas

  • Concept of Refugee and Refugee Law
  • Development of Refugee Law
  • Sources of Refugee Law

1.1  CONCEPT OF REFUGEE AND REFUGEE LAW

Meaning of Refugee

Is a person seeking asylum in a foreign country in order to escape either of the following

  • Persecutions
  • War
  • Terrorism
  • Extreme poverty
  • Famines
  • Natural disaster

Definition of Refugee under the 1951 Convention on Refugee

Article 1A 1(2) , is person who as result of events occurring before 1st January 1951 and owing to a well founded fear of being persecuted for reasons of race, religion, nationality and membership. From definition it contains exclusion and inclusion clause

Inclusion clause

All qualify refugee before 1st January 1951 including fear of persecution

Exclusion clause

These are clauses which defines persons who are not included in the definition and will not benefit a refugee under the 1951 convention exlusion clauses are covered under Article 1 D,E,Q and F.

Refugee Law is a branch of international law that deals with the rights and protection of refugees. It is a set of rules and procedures that aims to protect persons who seek asylum from persecution, and persons who are recognized as refugees under the relevant instruments. It provides a distinct set of guarantees for refugees.

1.2  HISTORICAL DEVELOPMENT OF REFUGEE PROCTECTION

Worldwide

In Biblical point of view Refugee can be traced back during Adams and Hawa when they move from Babylon (Eden Garden) that was called an Refugee.

Then coming back to French Revolution in 17th Century but protection of refugee could not there, during French revolution people who where fight during revolution they were considered as political offender. However political offender could not be taken back.

It was developed as protection given to political offenders and then to other people/offender then to refugee. The principle is that whoever run from his gout he must be taken back, however with some exceptions which extended to a bigger up to the refugee protection.

Before 20th Century the opposite was the principle that a person could run from his gout to other gout and the other gout could return you back home. The mechanism was not established until the First World War. The outbreak of First World War created refugee which led to the formation of league of nation 1999 that it was first time that protection started to be offended to refugees.

Refugee protection was very poor that it is not satisfactory the intentional organ for protection of Refugee. Failure of league of nation led to other organization to be formed which championed by the ideas of league of nation.

Until 1950 the league of Nations and thereafter the UN, established and dismantled several international institutions devoted to refugee in Europe. The international Refugee Organization was last to proceed UNHCR and was created in 1947 to deal with the problem of refugees in Europe in the aftermath of the Second World War and was to be terminated by June 30th, 1950.

December 1949, the General Assembly derived to replace the IRO with UNHCR which was established for an initial period of three years a subsidiary organ of the General Assembly until Article 22 of the UN Charter.

On December 14, 1950 the General Assembly adopted the statute of the UNHCR, the tasks started thereon were to provide international protection for refugees and to seek permanent solutions to their problems by assisting governments to facilitate their voluntary repatriation or their assimilation within new national communities.

Development of Refugee Protection in Africa

1951 Convention the convention was the first and indeed remains the only binding refugee protection instrument of universal charter. It addressed particularly to the question of the status of refugee not to solutions or to the causes. Principal developed 1951 Convention which to global definition of refugee to mean the person who flies their country because of well founded fear of persecution on the ground of race, religion, nationality membership of particular group or political opinion.

1959 Convention it based on specific Aspects of Refugee problem in Africa (OAU Convention). OAU Convention added a paragraph specifying that the term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign domination or event disturbing public order in either part or the whole of his country of origin or nationality is compelled to leave his place of habitual residence more to see refugee in another place outside his country of origin or nationality.

1979 –International Conference on Refugee and Displaced Persons in Southern Asia at Geneva Convention, at three way agreement emerged from the conference

  • Asian Counties promised to prove temporary asylum
  • Vietnam undertook to promote orderly departures in place of illegal exists
  • Third countries agreed to accelerate the rate of resettlement

1.3  SOURCES OF REFUGEE LAW

1.3.1        THE CONVENTIONS

(a)   The 1951 Convention Relating to the Status of Refugee

Under this Convention is the key legal document that forms the basis, in this convention 145 state parties, it defines the term refugee and outlines the rights of the displaced as well as the legal obligations of states to protect them.

  • The 1967 Protocol Part of 1951

Article 1 of the Convention as states that “ As a result of events occurring before 1 January 1951 and the words a result of such events in Article IA (2) were omitted.

  • OAU Convention Governing Specific Aspect of Refugee Problem in Africa

Under preamble recognizing the need for and essentially humanitarian approach towards solving the problems of refugee. Article 1 define the term “Refugee”

  • Human rights Instruments

Include UNHCR and Africa Charter. UNHCR it consider the definition of refugee, persecution and the reasons for persecution as spelled out in the 1951 convention relating to status refugee . Africa Charter under article 2 and 3 quarante to all individuals the enjoyment of rights and freedom to refugee.

1.3.2        GENERAL PRINCIPLES OF INTERNATIONAL LAW

It comprises a range of universal and regional convention (treaties) rule of customary international law. General principles refer to logical proposition resulting from jurisdiction reason on the basis of existing international law as well as the base of municipal law. Asylum-the protection granted by a status to someone who has left their nature country as political refugee. Protection that a state grants an its territory or in some other place under to a person who carries to seek it is a well known institution in international law and its historical roots in state practice are established.

1.3.3        CUSTOMARY INTERNATIONAL LAW

In order to qualify for such protection the individual must belong to group recognized by international law as being the recipient of rights. The most obvious illustration is that nationals of a state have a right to seek the protection of their own state in respect of injury suffered at time occurring before 1951. In considering the position of refugee the starting point must be to examine whether they constitute an identifiable group which states have bestowed the protection of international law

1.3.4        THE CONSITUTION OF UNITED REPUBLIC OF TANZANIA

In regard to bill rights whereby our Constitution incorporated human right(civil, political economic, social and cultural rights) are universal and belong to all human beings including refugees.

As such in Tanzania, refugee enjoy certain human rights specifically linked to their particularly vulnerable status including the right to seek asylum freedom from force able return, freedom of movement right to nationality and to rescue protection and assistance in securing their basic economic, social and cultural rights, art.12-29

1.3.5        LEGISLATIONS

Refugee Act, under section 9(3) expressly states that no person claiming to be a refugee within the meaning of section 4 (defining refugee) shall merely for reasons of his illegal entry be declared a prohibited immigrant, detained or penalized in any other way unless one fails to comply with the procedure provided under section 9(1).

Section 6 of the Tanzania Refugee Act, establishes the National Eligibility Committee (NEC) the membership of which consists the Director and no less than seven other members appointed by the Minister from the following departments in consultation with their respective ministers

1.3.6        CASE LAWS

The provision of the constitution and statutes are broadly phased, and their meaning is interpreted and explained by the courts. The High Court of Tanzania and the Court of Appeal of Tanzania has final word on the meaning of the text. incase of Republic v Ally Gibert and others[1], 10 people including a refugee were arrested by the immigration officials on 19 February 2002 and charged for unlawful presence in Tanzania under section 31(1)(i) of the Immigration Act.126  The refugee had an official permit to leave the camp and was due to expire on 25 February 2002.  The court dismissed charges against him because he was a recognised refugee in Tanzania. For such case law become the sources of refugee law.

[1] Criminal Case No. 106 of 2002, Kigoma District Court at Kigoma, Unreported.  1�{ ,[�