According to the World Refugee Survey 2009 statistics, the five East African Community States host a combined population of 949,000 refugees. Of this number, about 300,000 are citizens of East African States living as refugees in the territory of other Community member States. As conflicts in traditional refugee-producing Community member states  abate and their citizens return home, conflict in previously tranquil states like Kenya have injected more refugees into the Community pool. Globally, there seems a consensus among states on finding durable solutions to refugee situations and minimizing the circumstances that forcibly displace people and force them to cross international borders in search of refuge. Whether this consensus translates to tangible policies and practices is another question entirely.

On the occasion of this year’s World Refugee Day commemorations, the global focus is on creating conditions that make it conducive for refugees to return home in dignity and creating situations that enable them to make their countries of asylum as much ‘home’ as possible.

At a sub-regional level, efforts are in full gear to implement the East African Community, an economic and political entity which aims to ‘improve the standard of living of the population’ and ‘promoting the sustainable development of the region with a view to creating a prosperous, internationally competitive, secure, stable and politically united’ entity.
It is important to note that no economic or political community can truly attain this lofty goal while ignoring the question of forced displacements and the status of refugees. It is worrisome that in the 120-paged ‘Treaty for the Establishment of the East African Community’, the word ‘refugee’ is mentioned only twice in Article 124 (4), (5)(h) which respectively provide that ‘Partner states undertake to establish common mechanisms for the management of refugees’. Little or nothing more, has been done to give effect to this Treaty commitment, instead the EAC has witnessed an increase in number of refugees being generated from Community member states owing to bad governance, flagrant abuse and disrespect for human rights, political and ethnic persecution among others. The region has also increased intolerance towards refugees, a greater willingness by member states to deny asylum to citizens of community member states and to deport asylum seekers to situation where their safety from abuse and torture is less than guaranteed as well as political
manoeuvring by certain states to frustrate efforts by their citizens to gain asylum in other states.

The question on the lips of many community refugees is what their status will be under an East African Federation. Will community citizens, under a regime that allows for freedom of movement and mobility of labour still be regarded as refugees within the Federation? The lack of initiatives towards the establishment of a refugee regime within the EAC leaves much scepticism as to how much thought is actually going into the implementation of the EAC and the formation of the Federation.

As states like Rwanda and Burundi explore avenues to invoke a cessation of refugee status for their citizens and the states hosting them seem eager to repatriate these refugees back to their countries, care must be taken to avoid creating situations that will precipitate further
conflict and generate more refugees. EAC member states should rather begin to take steps towards creating a community where every community citizen irrespective of nationality will feel safe and able to actualize his/her full potential. While Community member states plan towards establishing a common mechanism for the management of refugees, individual member states should show their commitment to this Treaty obligation by changing or amending laws and policies that restrict access to employment, social services and naturalisation for refugees. The greatest challenge facing refugees in the East African region today is an inability to attain self-reliance because of laws and policies which quarantine them in refugee camps, deny them access to employment and consequently economic independence, and condemn them to live in perpetual limbo by denying them a chance to naturalisation which is constitutionally guaranteed to other categories of aliens. Until these legal and political impediments are addressed the idea of an East African Community where
community citizens live prosperous, secure and stable lives will remain a mirage.

The question of refugees within an economic and political union should not be one to be viewed with suspicion by Community member states; East Africa will not be the first economic community to deal with the question of refugee community citizens. The 16-state Economic Community of West African States [ECOWAS] has succeeded in establishing an economic union where community citizen reside freely and safely in community member states. ECOWAS has also taken very practical steps to address the issue of refugees within
that Community. These steps include the adoption of the Protocol relating to the Free Movement of Persons, Residence and Establishment and its four supplementary Protocols [collectively known as the Free Movement Protocols]. Together, these Protocols create a regime which – grants community citizens the right to enter and reside in member states; provide valid travel documents to their citizens; grant community citizens the right of residence for the purpose of seeking and carrying out income-earning employment; ensures
appropriate treatment for persons being expelled; places an obligation on ECOWAS states not to expel Community citizens en masse; and limit the grounds for individual expulsion to reasons of national security, public order or morality, public health or non-fulfilment of an
essential condition of residence. Similarly, ECOWAS by a Memorandum of Understanding with the UN Refugee Agency, UNHCR has agreed to cooperate on measure to guarantee the full enjoyment of the rights of community refugees as other community citizens.

It is recommended that the East African Community borrows a leaf from other economic and political communities that have developed policies and effective refugee regimes in order to ensure the region’s refugee situation does not become the neglected element that
defeats the idea of a stable, prosperous and united East African Community.

Kenechukwu C. Esom is Head of the Legal and Psychosocial Department, Refugee Law Project, Faculty of Law, Makerere University Kampala.

Photo credit: UN Photo/Flickr

The criminalization of immigration has garnered considerable media attention in the United States due to the harsh new anti-immigrant law recently enacted in the state of Arizona.  That law makes it a state crime to not carry proper immigration documents (making it a misdemeanor for the first offense and a felony for the second offense).  Moreover, the law requires police in Arizona to determine a person’s immigration status if they have a “reasonable suspicion” that the person is an unauthorized immigrant.  Needless to say, this new directive to the police is so broad and ambiguous that it is likely to promote racial stereotyping of all Latinos in the state, including legal immigrants and native-born U.S. citizens.  The law has provoked a furious outcry from advocacy groups on behalf of immigrants, Latinos, and civil rights, which object to what they see as the targeting of an entire group of people in Arizona based on nothing more than ethnicity.  Adding insult to injury, the new law comes at the same time law-enforcement officers in the state’s Maricopa County, under the leadership of Sheriff Joe Arpaio, have transformed themselves into immigration-enforcement agents.  Among many other ethical and human-rights transgressions, the sheriff and his deputies in Maricopa County have used the state’s anti-smuggling law to criminally charge unauthorized immigrants with conspiring to smuggle themselves into the United States.

However, it is important to keep in mind that the criminalization of immigration in the United States extends far beyond Arizona, and applies to legal immigrants as well as the unauthorized.  For instance, in 1996 the U.S. government enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which expanded the list of crimes for which legal immigrants can be deported.  More precisely, the law expanded the definition of an “aggravated felony,” which was originally defined for immigration purposes as murder and other crimes so heinous that no relief from deportation should be available to the perpetrator.  But IIRAIRA re-defined it to encompass nearly all crimes, no matter how minor the infraction or small the punishment.  This includes many relatively minor, non-violent crimes – such as shoplifting, drug possession, and tax evasion – which are not necessarily felonies under federal or state criminal law.  In addition, the law is applied retroactively, meaning that legal immigrants can be deported for crimes committed years before those crimes were made deportable offenses.  The law made even more harsh and inflexible the two-tiered system of justice which already existed for legal immigrants in the United States; a system in which they pay twice for their crimes: once in the criminal justice system, and then again in immigration court – where the penalty is deportation.

An ironic aspect of these sorts of measures to criminalize immigrants is that they are often carried out in the name of fighting crime.  Despite a century’s worth of compelling evidence that immigrants of all nationalities and education levels are less likely than the native-born to commit serious crimes or be incarcerated, the popular stereotype of immigrants as violent criminals persists.  This stereotype has served to fuel the passage of anti-immigrant measures such as Arizona’s new law and IIRIRA in 1996, which then turns the myth of immigrant criminality into a self-fulfilling prophecy as new classes of “criminals” are created (such as the immigrants-only definition of “aggravated felons” under IIRIRA).  This sort of circular reasoning notwithstanding, the fact remains that the vast majority of immigrants are not “criminals” in any commonly accepted sense of the word.  Anti-immigrant measures such as IIRIRA and Arizona’s new law target a group of people who are less likely to engage in serious crimes than native-born Americans.  Yet this crucial fact is too often lost in the emotional rhetoric that defines so much of the immigration debate in the United States.

Related article: Policing Migration in South Africa: Disinformation, Development, and Accountability by Loren Landau

* Walter A. Ewing is Senior Researcher at the Immigration Policy Center (IPC) of the American Immigration Council in Washington, DC. He has written or co-written roughly 25 reports for the IPC and contributes regularly to IPC’s Immigration Impact blog. He has also written articles for the Georgetown Journal of Law and Public Policy, Stanford Law and Policy Review, and Society; as well as opinion pieces for the Wall Street Journal, Miami Herald, Philadelphia Inquirer, Sacramento Bee, and Politico.  Prior to joining the IPC, he was an Immigration Policy Analyst at the U.S. Conference of Catholic Bishops, and a Program Director at the U.S. Committee for Refugees and Immigrants. He received his Ph.D. in Anthropology from the City University of New York (CUNY) Graduate School in 1997.

Photo Credit: Crunchy Footsteps

As the five East African governments accelerate the momentum towards regional integration, which is contemplated to be complete and functional by the year 2015 some important issues compel thoughtful considerations. This is partly because policies and decisions made will have far reaching impact- probably more than what is anticipated by government officials and politicians- but also partly the human element about this construction has not received adequate attention. Further more the process is not well synchronised especially with regard to cross border migration. On this score suspicion still characterizes the relationship between Kenya and Tanzania regarding issues of trade and migration. For cross border migration, a few but salient realities will need to be thoroughly considered by the five governments.

A huge and porous border: with an area covering 1.8 million square km, the outer border of this region will be probably longer than that of the entire Western Europe. This boundary is by no means static however; projections are that upon attaining peace Somalia may opt to join the union. Depending on the outcome of the referendum scheduled for next year Sudan, Southern Sudan might be the next candidate. The long and porous border has practical implications besides security issues. One is that EAC will have as her neighbours, seven different countries with whom to deal with in matters of cross border migration. The concern is, does EAC have the capacity to monitor and control such a huge border? The practical reality is that even if it wanted to, the resources available are desperately needed to tackle more pressing matters such as education, health and infrastructure. The best alternative would then for EAC to change its diplomatic orientation towards active cooperation to ensure that there is considerable peace in the neighbouring countries. Sharing of information, technology and skills may make border management easier and amicable.
Trans-national communities: the other challenge which is directly linked to the first is that of trans-national communities, that is ethnic or linguistic communities straddling common borders. Given the arbitrary nature of most boundaries in Africa communities are scattered in different neighbouring countries. While the expansion of borders will definitely benefit some communities by bringing them  together in one political and administrative unit such as the Masaai and Kuria of Kenya and Tanzania, Teso, Samia and Luo of Uganda and Kenya but it still leaves others out.   The question, how does the EAC plan to deal with such communities who have their kith and kin within the boundary? Will special considerations be given to such people when they want to visit relatives!

Common drivers of cross-border migration: the apprehension of some member countries of their labour market being flooded by immigrant workers from the other countries may be best addressed by considering the actual drivers of migration in the region. Consider the movement of labour. Although it is true that skilled labour normally follows capital, it is also true that unskilled labour goes the opposite direction. For example, Kenya’s capital investment in Rwanda, Uganda and Tanzania will attract highly skilled professionals, the unskilled labour from Kenya are not likely to go to these places. This is because unskilled labour in these places will fetch very little in terms of real income. Instead the unskilled labour from Tanzania or Uganda can easily move to Kenya because the pay is relatively better. The other driver is education. Uganda for example benefits greatly from the education industry as many Kenyans join secondary schools and tertiary institutions there. Kenyans prefer going to Uganda because education is affordable and one is likely to complete their studies in time. This way, Kenya and Uganda benefits from regional migration. Trade and commerce is equally and important driver. New products and services get exchanged and new markets are created.  With a population of 120 million people region provides a great opportunity for all those concerned to benefit. However forced displacement also contributes significantly to cross border migration. The region will have to deal with this phenomenon constructively.  If member states consider and improve their areas of strength in this matrix they are likely to benefit from cross border migration.

Common Visa: Given that EAC will soon be a political entity there are the travel implications for those wishing to visit the region from outside.  While the EAC has experimented with a common East African passport, a common visa has never been tried. In the future these two issues will be critical. Issuing a common visa will be greatly useful in reducing bureaucracy at border points, ease movements and make the regional attractive to visit and to do business. Experience shows that most people who come to the region normally visit two or more of the countries. These four agenda should inform the policy processes of EAC with regard to cross border migration.

On 2 March 2010, Provincial Police commissioners went before the South African parliament insisting that, ‘illegal immigrants are stretching police resources and manpower.’ The acting chief of police for Gauteng Province—home to Johannesburg and Pretoria—argued that the government had simply not budgeted for the 3 million illegal immigrants in Gauteng and the millions elsewhere in the country. With such an influx, it was nary impossible to combat crime. While their claims are misleading and inaccurate, they do point to the lack of adequate planning for human mobility and the ease which human mobility can be blamed for development failures.

The realities of migration and criminality

Although South Africa has long relied on labour from across its borders, international migrants—regardless of legal status—have been continually blamed for many of the country’s social ills: HIV/AIDS, cultural decay, unemployment and, naturally, crime. In May 2008 these tensions helped generate anti-migrant violence that killed more than 60 people and displaced well over 100 000. In this light, it is not surprising to hear the police express the unrealistic assertion that tightly controlling the borders would effectively combat local and transnational crime and may even help protect migrants themselves.

To be sure, a larger population, mobility, and heightening social and economic heterogeneity make policing more a more challenging task. But good policing —like any form of policy — relies on a sound understanding of the empirics. If police claims were right, illegal immigrants would represent almost 30% of Gauteng Province’s total population. However, the 2007 Community Survey by Statistics South Africa —the most recent and most accurate data available— show that international migrants comprise only 5% to 6% of the population; roughly 580,000 people. At a national level,the same survey found that foreign-born residents (including South African citizens) were just 2.79% of the total population, somewhere around 1.2 million. That number is has since climbed, but is unlikely to have topped 2 million.

Not only are there fewer foreigners than the police (and many South Africans) imagine, but there is no empirical evidence that foreigners are disproportionately involved in criminal activity. With immigration so much less significant than the police’s alarmism suggests and crime so prevalent, it would take a hyper-active, criminally inclined immigrant population to claim a serious portion of the country’s robberies, rapes, and murders.

What’s behind these claims and what are they costing?

Given the country’s inability to combat developmentally disabling levels of criminality, the migrant spectre provides the police a materially and politically profitable resource. Since immigrants are easy to find and have few legal protections, police can embellish their performance statistics through night raids, round ups, road blocks, and arbitrary arrests. At other times, threats of such actions can be used to generate extra pocket money. The fact that so many citizens believe that the country is being drowned by a ‘human tsunami’ , makes these actions all the more possible.

While politically valuable, current immigration policing practice comes at significant costs to the country’s finances and security. In a report issued in September 2009 (One Burden Too Many? A Cost-Benefit Analysis of Immigration Policing in Gauteng), researchers concluded that the Gauteng police spend approximately one quarter (26%) of its human resource budget on immigration policing. This without evidence that their efforts are making South Africa safer. Indeed, in an environment of resource scarcity, targeting people because they are foreign means not targeting people because they are criminals. To be fair, some station commissioners have issued instructions to restrain immigration enforcement. However, to fully counter these tendencies will require more prohibitive directives and different ways of measuring police performance.

Where the police is right

The police have exaggerated the numbers, but they are right that migration is a concern for public servants across the country. While Gauteng may not have 3 million immigrants the police claims, there are close to 3.9 million Gauteng residents who were born in other provinces. Other urban centres are also becoming destinations and transit points for people leaving villages, rural areas, and former ‘homelands’. In many instance, the fastest urbanisation rates are in small or peri-urban municipalities with few financial and human resources.

Unfortunately, few municipalities or provinces have projected this growth, let alone planned for it. Even if they had, the national system of resource allocation provides little support for local authorities preparing for growing populations. Instead, resources are allocated based on past numbers, all but guaranteeing shortfalls. Migration is not the only cause of lagging service delivery, but poor planning makes such underperformance almost inevitable.

Where to go from here?

It is imperative to find ways to improve planning for human mobility across South Africa’s public services. Without a good grip on how people are moving, where they live and what they do, planning for security, education, waste management, housing, and health care will all be compromised. The first step in addressing this need is to develop a sound empirical basis for public policy decisions. The country’s budgeting process must also be reformed so local authorities are supported for the population they have and those that are likely to come through migration or natural increase. There is also an imperative to shift policy so the police are not doing immigration control. This can begin with pragmatic reforms to immigration policy that allow people to move into the country legally and without fear. Pragmatic reforms will also help prevent migrants from slipping further into zones of informality and illegality by giving them a chance to embrace the formal system of policing, access the courts, and help fight crime.

Related article: Two-Tiered Justice: Anti-Immigrant Laws in the United States by Walter A. Ewing

* Julia Hornberger is researcher with the Forced Migration Studies Programme at the University of Witwatersrand, Johannesburgh.

The Global Forum on Migration and Development, at its third edition,  was recently held in Athens on 2-3 November 2009.

The discussion was structured in 3 main tracks focusing on migration in relation to: MDGs, integration/reintegration issues and institutional and political coherence.  Issues such as the role of Diaspora, integration, protection and empowerment of migrants, the effectiveness of circular migration and reintegration for development, amongst the others, were addressed during the two-day meeting.

Looking through the pages of recommendations generated, the forum’s conclusions seem to be positive and discouraging at the same time.
Despite the progress made in the last years in the policy debates and the greater awareness reached on challenges and opportunities of migration for development (throughout the UN HLD and the forum itself), the overall debate seems stuck in rhetoric.

The discussion as reported in the conclusive documents – although recognising migration as a priority issue in the international agenda – presents a series of repetitive proposals and ideas when dealing with policy measures and recommendations. The establishment of databases and observatories to collect data, the promotion of circular migration, a greater engagement of diaspora groups, are some of the major indications emergine. The need for research and information sharing is also confirmed as well as the need for greater coordination and policy coherence within and among governments.
In a sense such recommendations give a sense of the little progress made so far in the policy debate worldwide and suggest that there is much work ahead.

In a sense, the debate as it emerges through the little documentation available, seems to reflect an agenda of the past.

To give an example, circular migration and reintegration programmes – as proposed and implemented so far – have often failed because the achievements were completely at odds with the original expectations and purposes. For many reasons: financial resources were insufficient and most of the times programmes were inconsistent with migrants’ aspirations.

Furthermore, the migration policy agenda of origin and destination countries is most of the times at odds. Beyond the general commitment to strengthen their cooperation, the European and African continents for instance, do not share the same concerns: the former is essentially interested in halting irregular migration; the latter aims to prevent and minimise brain drain.  In other words, the first focuses on migrants workers, while the second focuses on professionals.

Did the forum acknowledge and address such stunning divergence? Do the participants speak a common language?
It would have been worth reflecting during the forum on whether and how the proposed measures (including circular migration) can
effectively reconcile such dichotomy?

Significantly, bilateral agreements and regional initiatives are indicated as potential channels to be strengthened in the decision making, while the multilateral channel is barely mentioned. What does this mean?

Bilateral agreements can probably be a more effective means to manage human flows, border control and programmes of return. However, it may happen in some cases that important issues like the protection and recognition of legal, social and economic rights of migrants are downplayed or left aside due to the lack of interest in dealing with such issues.

Bilateral vs multilateral is thus another dichotomy that needs to be addressed and reconciled when dealing with migration in such fora.

On the other hand, from a more optimistic perspective, the summit looks promising given the UN Secretary General’s opening speech: Vision of Migration. If only for the fact that human mobility is put in relation with some of  major problems in today’s society.

Human  mobility is ever more challenged by economic crisis, climate change and human trafficking – Ban Ki Moon said. Slower remittances flows, less job opportunities, environmental degradation together with forced labour, slavery conditions, abuse and exploitation, are increasingly threatening migrant’s life and well being as well as making more difficult for people to move freely.

The risk, one may argue, is to use climate change and the economic recession as arguments to prevent or counter people’s movements.

On the contrary, the major goal nowadays is -as stated by the Secretary General – “to harness the power of migration to reduce poverty and inequality (…) and to achieve the millennium development goals”. Migration is not just a journey of people, it is a journey of policy. Our destination is a global system of mobility that allows people to move in legal, safe and orderly way, with full respect for their dignity and human rights.

The challenge now is to move from talk to action.

Photo Credit: Dr John2005

However, the Economist argues,  “the new treaty promises much, but will not help  those who need most urgently” .
Read more: The Economist

SID related posts:
The AU convention on dispalcement: not all that glitters is gold
African Union addressing internal displacement: A turning point for Africa

According to the organizers this  does not represent a lack of political will of commitment of the African States. On the contrary, the convention is an important milestone in order to address development in Africa. Read more: Irin

Indeed the convention is the first legally binding instrument for the protection of the IDPs (after the 2006 IDP Protocol of of the Great Lakes Pact) and the African Union is the first regional organisation worldwide to adopt such an instrument. The United Nations and the international agencies dealing with refugees and IDPs welcome the convention as a tremendous achievement that can not be underestimated and that generate hope for the future.  Read more: ReliefWeb, IDMC

However, a certain scepticism on the real political will behind the agreement emerges. No Head of State of the countries worst hit by the refugee and IDPs crises – namely Rwanda, Burundi, the DR Congo and Sudan – had participated to the Summit. The AU has been asking member states to contribute to the AU Special Refugee Contingency Fund but several countries don’t seem particularly keen to embrace such obligations.
Broadly speaking, the convention obliges states to prevent displacement, to protect IDPs and to provide durable solutions. This implies for countries to embrace a number of provisions, national laws and most importantly to end support to armed groups. Different approaches also emerge among countries with regards to people’s integration and or repatriation.
Read more: The East African, The Observer

How likely will the convention succed then?

Resources:
Convention
Conference website

This can be a decisive moment for the African continent and the world as the “Convention on the Protection and Assistance of Internally Displaced Persons in Africa”, if adopted, will be the first binding instruments with such a regional scope.

The Convention is expected to provide a regional framework of protection and assistance of IDPs, before, during and after displacement. It will be aimed also to ensure that the international legal standards are respected and integrated into national law.

Prior to this, eleven African countries signed in 2006 the IDP protocol of the Great Lakes Pact,  under the auspices of the International Conference on the Great Lakes Region (ICGLR). The protocol – part of the broader Pact on Security, Stability and Development in the Great Lakes Region – entered into force in 2008.

Resources

Conference website
Conference Info Note

From the Civil Society
Press Statement by Refugee Law Project

Data & Stat

IDPs Africa Map (by IDMC)
UNHCR  Statistics
IRIN  on IDPs in Africa

Pree Release
Afrik.com
AllAfrica
FIDH>Les Droits de l’Homme
Office of the President: Uganda Media Centre
Relief Web
UNHCR

Press Statement, by Refugee Law Poject, Makarere University (Uganda), on the occasion of the African Union Special Summit on Refugees, IDPs, Returnees in Africa, 19-23 october 2009.

Transitional Justice is key to addressing the challenge of mass displacement in Africa

As African heads of state and government converge in Kampala for a special summit on refugees, Internally Displaced Persons (IDPs) and returnees in Africa (19 – 23 October), hopes are high that they will sign a draft African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. If they do, the Convention will be the first instrument in the world to legally oblige States to protect and assist IDPs. State signatories will also commit to elimination of the root causes of persistent conflict on the continent, and to putting in place a comprehensive framework for ending displacement and providing reparations for victims of war and conflict. As such it is an important step towards clearly recognising the role of transitional justice in resolving forced migration situations.

Read the full document by Chris Dolan, Director, Refugee Law Project

Source: EUobserver, 02/09/2009

Full Article by Leigh Phillips for EUobserver