Privacy and Impunity in South Africa

Megan Pierce

2015 Michigan Program in Refugee and Asylum Law Fellow

On September 26, 2014 the North Gauteng High Court in Pretoria handed down its decision in CoRMSA v President of the Republic of South Africa.  The case was brought by the Consortium for Refugees and Migrants in South Africa (CoRMSA) as a challenge to the Refugee Status Determination Officer’s (RSDO) June 2010 decision to grant Faustin Kayumba Nywamwasa refugee status in South Africa.  Nyamwasa is a former Rwandan general who has been accused of war crimes and crimes against humanity in both Rwanda and the Democratic Republic of the Congo.[i]  Allegations included the murder of 2,500 Hutu refugees and four Spanish nationals.  While Nywamwasa previously had a close relationship with President Paul Kagame, he has since fallen out of favor with the Rwandan leader, which caused him and his family to flee Rwanda for South Africa in February 2010.  The Rwandan courts have tried and convicted him of crimes in absentia, and in June 2010 Nyamwasa was shot in Johannesburg, with strong allegations that President Kagame was behind the attack.

The two main points of interest raised in the case are the application of the exclusion clause of the Convention relating to the Status of Refugees (“Convention”)[ii] and the extent of the right to privacy held by asylum seekers.  There is no disagreement that Nyamwasa faces a well-founded fear of being persecuted by the Rwandan government based on Convention grounds. Instead, the Applicant, CORMSA,  contends that the allegations of Nyamwasa’s involvement in war crimes and crimes against humanity are sufficient to disqualify him for refugee status under article 1F of the Convention.  The High Court’s judgment involves a general lack of engagement with the facts and the legal issues involved in applying the Convention’s exclusion clause, including wrongfully asserting that the Spanish allegations are based on those made by the French judge and dismissing them without any real analysis.  Similarly, the High Court conflates the issues of extradition and refugee status, arguing that Nyamwasa was correctly granted refugee status because if he was extradited to Rwanda, South Africa would violate the jus cogens norm of non-refoulement.  By making this argument, the High Court completely ignored the possibility of extraditing Nyamwasa to France or Spain, or simply trying him for his crimes in South Africa using universal jurisdiction.  Most importantly, the High Court overlooked the fact that, if there are serious reasons for considering that Nyamwasa is guilty of war crimes or crimes against humanity, he may not be granted refugee status under the Convention.  The High Court’s failure to acknowledge this mandate carries the risk of undermining the integrity and sustainability of the international refugee system.

Importantly, the High Court held that confidentiality guarantees extended to asylum applicants and refugees in terms of section 21(5) of the South African Refugees Act are “peremptory in the case where the applicant qualifies for refugee status” and, in this case, prohibits the High Court from reviewing the RSDO’s decision.  In consequence, the High Court simply assumes that the RSDO considered, and did so adequately, the accusations against Nyamwasa.  Without review of the RSDO’s decision, it is impossible to tell what burden of proof was applied to the accusations made by France and Spain.  Under article 1(F), Convention protections do not apply to any individual for whom there are “serious reasons for considering” that he or she has “committed a crime against peace, a war crime, or a crime against humanity.”  This is a unique evidentiary burden, and it is important to ensure that it is correctly applied and to achieve international consensus as to its meaning and application.  While the Constitutional Court has previously held that the confidentiality extended to asylum applicants and refugees is not absolute, the High Court held that, in this case, the public interest in reviewing the RSDO decision did not overcome Nywamwasa’s safety and privacy concerns.  CoRMSA is expected to appeal the decision this year, and the extent and reach of confidentiality protections will surely be under issue, especially considering the public attention already focused on Nyamwasa’s case. More importantly, the application of the exclusion clause will certainly feature in the review.  As there is no strong international consensus about the burden of proof necessary to find that there are “serious reasons for considering” that an asylum seeker has “committed a crime against peace, a war crime, or a crime against humanity,” any decision by the South African Court of Appeals or the Constitutional Court could have a significant impact on the international consensus around this issue.  Furthermore, an adequate and effective review of Nyamwasa’s asylum status is essential for the continued confidence in and integrity of the international refugee system.

[i] In 2006, a French judge issued a warrant for Nyamwasa’s arrest for his alleged involvement in the shooting down of the plane carrying former Rwandan President Juvenal Habyarimana and a number of French nationals. Furthermore, a Spanish judge indicted Nyamwasa in 2008 for war crimes he allegedly committed around the DRC and Rwandan border while serving as Commanding Officer of all military units of the Rwandan Patriotic Army (RPA).  Both countries have sought extradition of Nyamwasa.

[ii] Which is reflected in South African domestic law in article 4 of the Refugee Act of 1998.

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