Johannesburg — South Africa has thus far stubbornly resisted international pressure to extradite the former Rwandan military strongman, General Faustin Kayumba Nyamwasa. That might change soon, however. Apart from the multiple requests for his extradition, this week the High Court could force the South African government to rescind Nyamwasa’s refugee status. Lawyers argue that Nyamwasa does not fit the criteria stipulated by international law to define a refugee.
The Consortium for Refugees and Migrant Rights in South Africa (CORMSA) believes former Rwandan General Faustin Kayumba Nyamwasa should be stripped of his refugee status. They argue South African and international law both render him ineligible for the privileges attached to the status of a refugee, and maintain his protection was granted unethically.
The Department of Home Affairs, meanwhile, is resisting the criticism with all its might, arguing that all the usual procedures were followed and that Nyamwasa is as worthy of protected status as anyone else.
Not that the attempt to reduce state protection for Nyamwasa will necessarily be the final nail in his coffin. Various extradition requests for Nyamwasa have severely tested South African diplomacy in the last two years, and although the possibility of having his refugee status revoked will be concerning to him, it does not mean he will automatically face extradition. The application currently before the High Court seeks only to put forward a request to rescind Nyamwasa’s refugee status.
It is strictly in the interests of refugee justice, say the applicants.
Nicole Fritz, Executive Director of the Southern Africa Litigation Centre (SALC), says the application at the High Court seeks to protect the institution of refugee status from being abused by those who are undeserving, while also ensuring that those who have committed grave crimes do not escape prosecution.
Nyamwasa, for his part, has been implicated in a number of serious crimes. He has been indicted by French authorities for the shooting down of the plane carrying Rwanda’s former President Juvenal Habyarimana, while a Spanish indictment implicates Nyamwasa in the commission of war crimes and crimes against humanity committed in the DRC, including the murder of 2,500 Hutu refugees. Spain and France have both requested his extradition.
Fritz says rescinding Nyamwasa’s refugee status is about ensuring that only those in genuine need of protection are granted refugee status in South Africa, which helps to maintain the credibility, integrity and sustainability of the country’s refugee protection regime.
CORMSA argues that Nyamwasa’s application was processed in a single day on 22 June 2010. If this is accurate, it means the decision to grant him the refugee permit was irrational and evaded due protocol that stipulates a person does not qualify for refugee status if there is reason to believe that he or she is a war criminal.
Counsel for the Department of Home Affairs, however, has sought to admit a document that reportedly shows Nyamwasa’s application was not processed on the same day. The document in question is an asylum seeker’s permit issued to Nyamwasa on May 28 2010. Applicants for refugee status are usually issued an asylum seeker’s permit while their application is being processed. If Nyamwasa’s permit is admitted, it would mean the department did not process the application in one day.
CORMSA, however, has objected to the admission of the document, arguing that they would need further time to assess the document’s relevance and authenticity.
Not that the entire case rests on the authenticity of said document, though. Fritz says the organisation’s argument goes beyond the time frame of Nyamwasa’s refugee status being awarded.
“It’s not the entirety of the argument made by any stretch,” she says, adding that refugee protection is meant to apply to the persecuted, not the persecutors.
“The refugee status is that essentially one has most of the rights and entitlements of a citizen, bar a few exceptions, so it’s a protective status within South Africa. And for most intents and purposes, one is treated and is given the same status as though one is a citizen,” Fritz explains.
Despite Fritz’s assertion that the application is in the interests of maintaining fair refugee protection, it is likely that Nyamwasa’s refugee status may have little bearing on future responses to extradition requests. Fritz emphasises that efforts to extradite Nyamwasa are not an issue in this court case, but says CORMSA’s application to the court includes answers from government representatives in parliament. According to these, South Africa refused the extradition request to Rwanda but is still considering the French and Spanish requests.
“They seem to suggest that his refugee status would not interfere in any decision meeting the requests from France and Spain,” Fritz says.
Nonetheless, the South African state appears to have gone to some lengths to protect Nyamwasa’s refugee status and conceal the reasons for doing so – in contrast to the often-chaotic circumstances facing other refugees.
Anthony Mutiti, a Zimbabwean refugee in South Africa, says that it is not entirely inconceivable to have received refugee status so quickly, but that it is rare. He fled political violence in 2003 and received an asylum seeker’s permit on the same day of his application, plus refugee status shortly thereafter. He says he was able to provide documents that supported his claims that his life was in danger, thus expediting the process.
“I had clear evidence that I was a victim of political violence,” he says.
Mutiti adds, however, that his experience of speedily receiving refugee status through the Department of Home Affairs is not the case for many other asylum seekers. He explains: “It is extremely difficult for others. For some, it takes five years just to be granted a simple interview [with Home Affairs officials] for their application to be determined.
“It’s not such an easy process.
“It’s only easy for those like me who can prove they were victims of political violence, but go to any refugee reception office and you’ll see it takes time.”
Mutiti says the process is repetitive and that a day-long turnaround is not the norm. “They call you for interviews on several occasions, or they just extend your temporary permit without ever calling you for an interview. So it’s not always as easy as I experienced it.”
Mutiti believes that refugee status in South Africa is not as safe as it could be ideally, although for Nyamwasa it must undoubtedly be his most attractive current option. “At the end of the day, the slip of paper they give us as refugees is often meaningless in South Africa,” Mutiti says.
“It is challenging. There are some opportunities for refugees, but many people don’t understand. I don’t think the South African state can always protect me.”
Whether it will protect Nyamwasa in the face of the current legal battle also remains to be seen.