African Union and its Policies on Voluntary and Forced Migration

By: Mehari Taddele Maru

This writing has been published as part of the Brief 39 Migration and Displacement in Sub-Saharan Africa, The Security-Migration Nexus collection by Bonn International Center for Conversion Page.90

Introduction

In Africa, migration takes varied forms and trends. Apart from forced migrants due to conflicts, there is spontaneous migration of peasants due to drought and famine as well as seasonal migration of pastoralist communities in search of water and grazing lands. The number of migrants within Africa in search of better opportunities and security outside the country of origin is also large. If we look at the causes of migration, we find that they are multifaceted and often overlap and reinforce each other. Poor socio-economic and environmental conditions as well as armed conflicts (affecting one-fourth of Africa’s 53 countries)1 have resulted in a significant increase in refugees and internally displaced persons (IDPs). Bad governance contributes to poverty and conflict, which in turn contributes to unemployment, migration, and to flows of refugees and IDPs. The rising number of forced migrants who are women and children is also a serious cause of concern. The negative impacts of forced migration on the human rights of migrants, on the security and stability of the host countries, on the health, particularly of migrants, and host communities, as well as the impact of refugee and IDP camps on the environment are huge and need to be addressed hand in hand with the prevention of displacement and the protection of IDPs, and refugees, as these factors are not only the effect but also the cause of forced migration. Not only have the numbers of migrants increased In Africa but their social and economic impact is also widely felt. To tackle these challenges, the African Union has been interested and engaged in the governance of migration and policy issues for a long time. This Paper provides a brief summary of African Union policy and legislative frameworks as well as institutional initiatives on migration, particularly the protection and assistance of forced migrants. These policies and institutions do indeed show that forced migration remains a priority on the agenda since the foundation of the Organization of African Unity and later on the African Union. Two major initiatives are the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969 OAU Refugee Convention), and the draft AU Convention on the Protection and Assistance of Internally Displaced Persons (draft AU IDPs Convention), which is expected to be adopted in early 2009. The 1969 OAU Refugee Convention is ratified by more than 45 of the 53 Member States.2

AU Legal, Policy and Institutional Framework to Address Forced Migration

The following list of instruments and policies provides the legislative and policy frameworks as well as the institutional mechanisms to address and govern forced migration in Africa. 

A. Legal and Policy Framework3 a. OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969 OAU Refugee Convention); b. The AU Constitutive Act; c. The Ouagadougou Declaration on Refugees, Returnees and Displaced Persons 2006; d. The AU Peace and Security Council Protocol; e. The Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons; f. The African Charter on Human and Peoples’ Rights; g. African Union Policy on Post-Conflict Reconstruction and Development (PCRD).

B. Institutional Mechanisms

a. African Union Peace and Security Architecture (AU PSA) with its seven structures including

i. The Peace and Security Council (PSC)

ii. The Panel of the Wise (PW)

iii. The Continental Early Warning System (CEWS),

iv. The African Standby Force (ASF)

v. The Peace Fund vi. The Military Staff Committee (MSC) vii. The Commission of the African Union 

b. The Commission of the African Union with several departments working on the issue of migration and forced migration. It includes

i. AU Social Affairs Department, Labour, Employment and Migration Division;

ii. African Migration Fund;4

iii. Civil Society and Diaspora Directorate;

iv. Political Affairs, Humanitarian Affairs, Refugees and Displaced Persons Division.

c. Other Organs of the AU also have mandates on forced migration

i. The African Commission which has a Special Rapporteur for Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa;

ii. The African Court on Human and Peoples Rights (African Court of Justice and Human Rights);

iii. Sub-Committee of the Permanent Representatives’ Committee.

d. Regional Economic Communities and their policy and institutional mechanisms   

AU Legal Instruments on Forced Migration

The most prominent legal instruments of the African Union governing forced migration are the 1969 OAU Refugee Convention, and the draft AU IDPs Convention, which is expected to be adopted in April 2009. The 1969 OAU Refugee Convention is ratified by 45 of the 53 Member States.5 It not only strengthened the underpinning principles of the 1951 UN Refugee Convention but also improved it through its liberal and more contextual redefinition of the legal concept of refugees. 

The Ouagadougou Declaration on Refugees, Returnees and Displaced Persons, which was adopted in 2006, is the basis for the draft AU IDPs Convention. Since then, the African Union has organized different consultative meetings of experts, ministers and Heads of State towards a better governance of displaced migration, particularly the preparation of a draft AU Convention on IDPs. After almost three years of consultation, the preparation of the draft AU Convention on Protection and Assistance to IDPs in Africa and a draft declaration on the adoption of the AU IDPs Convention is now completed. It will be presented to the AU Special Summit on Refugees, Returnees, and Displaced Persons in Africa, which will take place in Kampala, Uganda, in April 2009. When adopted and ratified, the AU IDPs Convention will be the first legally binding convention on IDPs at continental level. At sub-regional level, we already have another legally binding instrument which is the Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons adopted in 2006. This Protocol has contributed to the drafting process of the draft AU IDPs Convention. In the next few pages, I shall try to briefly introduce the main arguments and discussion points during the preparation of the draft Convention.

The Main Principles and Core Discussion Points of the Draft AU IDPs Convention

The underpinning principles of the draft AU IDPs Convention is the state’s Responsibility to Protect (R2P) by ensuring effective prevention of displacement, protection during displacement and provision of assistance to IDPs. It reasserts that IDPs have special human needs different than ordinary citizens due to their vulnerability and reduced agency. Hence, such status should not be seen as a source of special privilege or a basis for discrimination but for protection and assistance. The approach is rather a human rightsbased approach designed to meet the specific needs of IDPs in terms of protection during displacement and provision of assistance as well as prevention of forced migration. As provided under the UN Human Rights Committee, General Comment No. 276 , forced migration has to be seen from the prism of freedom of movement and residence. It is also necessary to notice that freedom of movement and residence is not only about freedom to move and reside but it is also the freedom to remain in the place of one’s choice. It includes the freedom “not to move” (United Nations, 1999). Thus, states have to protect and come to the aid of people forced to migrate. The draft Convention also clarifies the state’s obligation not only in terms of protection and assistance of IDPs but also with regard to their responsibility in cases of development-induced displacement. It also has provisions on the protection and restitution of property rights, political freedoms of IDPs as they remain legal citizens of the country. 

Defining IDPs

Even if there are attempts to concisely define IDPs, such definitions still lack clarity (Norwegian Refugee Council et al. 2008). The concept of IDPs is neither legally clear nor sociologically coherent. For example, pastoralist communities in Africa rove around not only in search of water and grazing land but also in search of security. Migration for them is one of the several coping and survival mechanisms when they are faced with natural and man-made adversities. Are these pastoralist communities IDPs? And if so could they claim assistance and protection from their state, the international community including the United Nations and African Union? Pastoralists in the Horn of Africa (across Ethiopia, Kenya, Somalia, Sudan) cross the border without identifying themselves as displacees or refugees. This is true even if the cause of their displacement is violence, or conflict, or famine and drought. Where is their home or place of habitual residence? They do not identify and consider themselves to be refugees or IDPs. Mainly because perpetual seasonal mobility is their way of life, which, strictly speaking, does not grant them the status of ‘displacees’. Nor are they ‘refugees’, in legal terms, for borders to them are meaningless, and external imposition and state protection are alien to them. Protection is given by kin communities or clan authorities (not the states) on both sides of the porous border. They rather understand state power as an encroachment on their ‘soil and life’. While they are ‘displaced’, however, they are not proper ‘displacees’ or ‘refugees’. Most often they join their ethnic community across arbitrarily drawn borders. Life, in general, is not attached to the space they are in; the inherent defining element of their existence is mobility, whether it be spontaneous, forced by nature or man-made. Immobility, not displacement, is uprooting them from their way of life. In such a case, being displaced, not to be ‘rooted’ is a normal condition. Pastoralist would stay in some UNHCR refugee camps in the Somali region of Ethiopia until the right season for grazing comes and walk away from the camps. The assumption that people are displaced when they are not rooted in one place is wrong. First it presupposes that all people are rooted disregarding the pastoralists communities, second, it implicitly assumes that all displacements are bad. 

Hence, the concept of IDPs is very uncertain as it is an extremely difficult exercise to categorize people as IDPs as a social category. The categorization of people as IDPs swallows everybody in one category, disregarding the diversity of causes and impact of displacement, needs and identification of the individual displacee. There will always be relatively better development somewhere else, which results in internal migration even if there is development in a certain area. Moreover, as there is no common conception as to which degree of ‘lacking development’ causes IDPs, such movement remains migration. People migrate because they hope to have more opportunities and a higher living standard somewhere else. 

Legally, even if it is difficult, it should not be impossible to carve out a legal definition for IDPs, which could however be inconsistent with sociological facts. For example, one of the vital criteria of refugee determination is the crossing of an international border. However, this criterion was highly criticized by many scholars who subscribe more or less to the African conception of refugees and the difficulty of accepting crossing an international border as one of the vital and objective criteria (see Shacknove, 1985). For the Organization of African Unity, international borders were accepted as a necessary evil, as borders were arbitrarily drawn by colonial powers dividing kin communities and livelihood resources. This makes the definition of ‘refugee’ under the 1951 UN Refugee and 1969 OAU Refugee Conventions an imposed definition which served its purpose very well. As refugee status determination, it seems that the 1951 Convention is not capable of giving a solution to such problems coherently. The only coherent ground for the determination of refugee status would be the international border crossing (jurisdictional aspect of state obligation to protect) which may still be an artificial legal construct rather than realty for many pastoralists. The refugee regime serves as a ‘back-up protection’ when your state fails to protect its citizens. IDPs are rather still the responsibility of their own state. The need may be the same; the experience may be similar for IDPs and refugees, but the tools used to solve the two problems are different. Beneath such a different assortment of tools lie ethical and moral considerations—the principles of responsibility to protect, crossing of an international border, sovereignty and jurisdiction, self-determination and autonomy. More than the shared experiences, causes and needs of refugees and IDPs, the definition and criteria given when determining refugees and its clarity stems from its imposed legal construct. 

Currently, the concept of IDPs is less clear than that of refugees, not only because of its diverse causes, patterns and nature but also because it lacks a commonlyshared agreement or developed state practice, or an imposed meaning. Hence, as the Refugee Conventions did, the draft AU IDPs Convention could construct its own legally binding expanded concept and definition of IDPs like the Guiding Principles on Internal Displacement although it will be a very ambiguous definition leading to discrepancies in interpretation and implementation. 

Under the Guiding Principles on Internal Displacement, IDPs are:

Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognised state border (emphasis added) (United Nations, 1998). 

The draft AU IDPs Convention under Article 1(k) and (I) provides the definition of IDPs. Article 1(K) is a verbatim copy of the above definition under the Guiding Principles. However, the draft definition does not stop there. Under Article 1(I), it provides as follows:

“Internally Displaced Persons” also means persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of large scale development projects, or lack of development and who have not crossed an internationally recognized State border. 

Nonetheless, it must be clear that the inclusion of the “due to lack of development” (cf. below) makes the definition of IDPs under the draft AU IDPs Convention more of an economic or sociological rather than legal definition. It is important to note that this conceptual ambiguity is not limited to IDPs and refugees but also to other forms of migration. This is clear from the terms we use to describe migrants falling under this. People who do not fall either under the category of refugee or IDP are called many different, and most often confused and confusing terms, such as ‘economic migrants’ ‘mixed migrants’, ‘labor migrants’, ‘illegal migrants’, ‘irregular migrants’, ‘circular migrants’ and ‘failed asylum seekers’.

With regard to the  persons who migrate “as a result of or in order to avoid the effect of large-scale development projects”, persons concerned by unless, such measure is taken arbitrarily, then such movement or population transfers conducted in accordance with international human rights laws and constitutions of the specific country should be excluded from the IDP definition of the IDP Convention. In other words, all unconstitutional decisions related to development projects such as nationalization of land and those in violation of international law as adjudicated by court of law.

Disagreement on ‘IDPs due to lack of development’

The draft AU IDPs Convention added another category of migrants under IDPs. These are persons who are forced to migrate “due to lack of development’ or ‘as a result of or in order to avoid the effect of large-scale development projects”. On this issue, the disagreement was whether migrants due to “lack of development” could be categorized as IDPs. Many member states of the African Union expressed their concern on the inclusion of this broad and non-legal definition of IDPs in the draft. A long debate ensued on this kind of broad definition of IDPs. The Guiding Principles on Internal Displacement does not include such a broad definition of IDPs: Lack of development at the local level can be a cause of displacement, but is such a person who migrates due to lack of development or in search of better opportunity an IDP? Another question that was raised with regard to the concise conceptualization and definition of the term IDPs: Can an individual be treated as IDP or is it a group status? Is it a collective or an individual category?

Indeed, in the 1951 UN Refugee Convention the term ‘refugee’ is more or less clearly defined. However, the 1951 UN Refugee Convention then had time limits, as it was designed to apply only to refugees in Europe after the Second World War. It was also geographically limited at least in the case of Africa, thus the 1969 OAU Refugee Convention has defined ‘refugee’ in an expansive manner to include almost all people crossing international border due to generalized and massive violence and persecution due to anti-colonial struggle, civil war or disasters. The status determination of refugee in the 1969 OAU Refugee Convention, consequently, is rather on a collective than on an individual basis. Hence, can we say that the draft AU IDPs Convention is following this trend of having an expansive and broad definition of IDPs? If so, is it practically possible to provide protection and assistance to all those ‘IDPs’ who migrate to better developed areas?  

Responsibilities of states and armed group

Another point of much debate, during the drafting process, were provisions on the responsibility of states and armed groups. Many delegates of African Union member states, as expected, seem to support that on the one hand responsibility be imposed on ‘armed groups’ but on the other do not want the convention to implicitly grant recognition to them. This is very difficult to legally conceptualize as responsibility can not be imposed on groups not recognized by the law of their respective countries. Many member states expressed their concern, and some argued vehemently, that a mere mentioning of armed groups and their responsibility in the draft AU IDPs Convention entails the recognition of armed groups by the state parties. Principle 2 of the Guiding Principles on Internal Displacement stipulates that: 

These Principles shall be observed by all authorities, groups and persons irrespective of their legal status and applied without any adverse distinction. The observance of these Principles shall not affect the legal status of any authorities, groups or persons involved (United Nations, 1998).

Rebel groups and liberation movements clearly fall under such category of ‘armed group’. But why are only armed groups responsible for forced migration (IDPs)? The term ‘armed groups’ does not necessary include opposition groups, rioters such as town gangsters responsible for the attacks on migrants in South Africa or political parties and self-styled groups in Kenya who caused the displacement of a large part of the population in the post-election violence,. National or transnational companies could also be responsible for forced migration. However, such companies do not fall under the term ‘armed group’. Hence, to avoid this problem, a suggestion was made to change the term ‘armed groups’ to ‘non-state actors’. The term ‘non-state actors’ is not only all inclusive but could also avoid the disagreement and concerns expressed by AU member states regarding recognition of ‘armed groups’. This was another area of serious disagreement and the suggestion was not taken and no change was made in the draft.

Other AU Migration Policies

There are four other African Union policies on migration that emphasize the importance of the governance of forced migration as a priority activity of the African Union. These are the “Migration Policy Framework for Africa”, the “African Common Position on Migration and Development”, the “Joint AU-EU Declaration on Migration and Development”, and the “Ouagadougou Action Plan to Combat Trafficking in Human Beings, Especially Women and Children”. 

The ultimate aim of the policies is to ensure migration is voluntary and legal through methods such as the respect for human rights of migrants and collaboration among actors, including migrants, countries of origin, transit and destination. The Migration Policy Framework for Africa mainly focuses on building the capacity of African states to effectively respond to forced migration, refugees, asylum seekers, and particularly IDPs, and to refugee crises. It also focuses on efforts to find durable solutions for refugees in collaboration with UNHCR and other national and international partners. More importantly, an emphasis is given to the need to address the root causes of refugee movements, including conflict and political instability. The Policy Framework also calls for equal treatment of African refugees in comparison to refugees from other parts of the world in line with international standards. The main points of recommendation of the Policy Framework are: 

a. Ratification and compliance with the 1951 Convention on the Status of Refugees and its 1967 Protocol, the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa;

b. Ratification of the four Geneva Conventions of 1949 and their two Additional Protocols of 1977;

c. Respect for the principle of non-refoulement;

d. Capacity-building through training and the establishment of a body working on refugee issues and establishing intra-regional cooperation;

e. Strengthening bilateral cooperation between states with regard to the treatment and status of refugees;

f. Integration of the UN Guiding Principles on Internal Displacement into regional and national legislative and policy frameworks, and

g. Establishing a system of peer accountability by member states.  

In conclusion, it is important to emphasize that even if the policy framework and institutional architecture for the prevention of forced migration, protection, and assistance of forced migrants already exists at AU level it will still have to be harmonized. Until now the African Union has focused on norm-setting and, to some extent, on norm-diffusion by way of popularizing and disseminating these policies. It now has to move fast towards the norm-implementation phase of it policies. Moreover, the devil lies in the details of implementation. Even if the duties of the African Union and Regional Economic Communities are mainly in facilitating the implementation and monitoring the progress of the implementation of these policies, ultimately implementation remains mainly the responsibility of the African Union member states.

Read more 

 Reference

Norwegian Refugee Council. Internal Displacement Monitoring Centre and United Nations Office for the Coordination of Humanitarian Affairs, eds. 2008. Guidance on Profiling Internally Displaced Persons. April.

Shacknove, Andrew E. 1985. “Who Is a Refugee?” Ethics, Vol. 95, No. 2, January, University of Chicago Press, pp. 274–284.

United Nations. Office of the High Commissioner for Human Rights. 1998. “Guiding Principles on Internal Displacement.” E/CN.4/1998/53/Add.2, dated 11 February.

________. 1999. “Addendum GENERAL COMMENT No. 27 (67) Freedom of movement.” Adopted at the 1783rd meeting (sixty-seventh session), held on 18 October.