The enforcement of refugees’ employment rights in Africa and the regional human rights framework
Christian Pangilinan is the Georgetown Fellow and a Volunteer Legal Advocate at Asylum Access Tanzania. This post draws from a paper he presented at the African Conference on International Law on October 5, 2012 on the “Potential of the African Court on Creating a Binding Regional Framework for Refugee Protection.”
By Christian Pangilinan
As Marina Sharpe explained earlier on this blog, refugees in Africa are entitled to social and economic rights under the 1951 UN Convention Relating to the Status of Refugees. These include a right to wage-earning employment that is equal to that of other foreign nationals lawfully resident in a country, a right to engage in agriculture and industry on terms no less favorable than resident aliens, as well as various welfare rights.
Although the 1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa did not expressly guarantee these rights, the 1969 Convention does identify itself as the regional complement of the 1951 Convention and its acknowledgment that the 1951 Convention as the “basic and universal instrument relating to the status of refugees” (Sharpe presents two other arguments in her blog post).
Nonetheless, these rights often go unenforced and unrecognized. To give an example from Tanzania, the Refugees Act of 1998, makes no reference to refugees being entitled to access employment if they marry a Tanzanian national, have a Tanzanian child, or reside in Tanzania for at least three years. This appears to contradict Article 17 of the 1951 Convention, which provides refugees with protection from labor policies designed to protect nationals.
While the Director of Refugee Services within the Ministry of Home Affairs is empowered to provide refugees with work permits, this is discretionary. Elsewhere in Africa, once liberal refugee policies have likewise shifted towards a “significant erosion of basic rights to human dignity, as well as self-sufficiency rights.”
How can this happen when Africa has a regional refugee rights framework as well as a regional human rights system?
African human rights monitoring institutions include the African Commission on Human and Peoples’ Rights (which has a Special Rapporteur on Refugees and Internally Displaced Persons), the African Court of Human and Peoples’ Rights, and the New Partnership for Africa’s Development’s Peer Review Mechanism. Ostensibly, this regional framework should serve as a means of reviewing governments’ adherence to refugee rights and relevant human rights standards. However, the regional framework has been mixed in its impact – active with respect to mass expulsions of refugees, but inactive on refugees’ rights to employment or to freedom of movement.
The African Commission
In a number of decisions, the African Commission, has criticized the mass expulsion of refugees, finding expulsions to violate principles of non-discrimination, bars on mass expulsions, and laws against summary deportation. Yet, the African Commission has rarely made use of refugee rights instruments in reaching its decisions – even when they concern refugees. When the Commission was faced with issuing an interpretation of refugees’ access to employment, it demurred.
In Mouvement des Refugiés Mauritaniens au Senegal v. Senegal, Mauritanian refugees complained that Senegal’s refusal to provide them with identification documents rendered them vulnerable to harassment and limited their opportunities for employment. The Commission found the communication inadmissible for failure to exhaust local remedies and because the complainants had not identified which specific provisions of the African Charter they alleged were violated.
This determination ignored the difficulties that refugees without identification documents would have in exhausting local remedies by first beginning litigation in-country. It also overlooked the Commission’s presumed capacity to itself identify what rights were at stake. In this sense, Mouvement des Refugiés Mauritaniens may have been a lost opportunity for the African Commission.
The requirement of exhausting local remedies will likely continue to serve as a barrier to making use of the regional framework to attempt to enforce refugee rights whether through the Commission or through the African Court. Exhaustion requires both willing clients and willing advocates who are ready to challenge governments on a controversial issue, which may not have broad public support. It also requires African human rights mechanisms that are prepared to address refugee issues head on upon failure of local remedies.
The African Court
The African Court may be one promising avenue for addressing refugees’ rights within the regional human rights system. The Court, which was established to serve as a final arbiter of the African Charter and is empowered to provide binding judgments on states parties, could serve to create regional standards for refugee hosting countries. In the alternative, it might pursue settlements between refugee rights advocates and governments that can produce concrete improvements in conditions for refugees.
Given that no cases challenging states’ treatment of refugees have been launched, it remains to be seen whether the African Court will fulfill its potential for resolution of refugee rights violations.
 Bonaventure Rutinwa, The End of Asylum? The Changing Nature of Refugee Policies in Africa, 21 Refugee Survey Q. 12 (2002).
 E.g., Organisation Mondiale Contre la Torture and Others v. Rwanda, Comm. Nos. 27/89, 46/91, 99/93 (1996); Rencontre Africaine pour la Defense des Droites de l’Homme v. Zambia, Comm. No. 71/92 (1997).
 Jamil Ddamulira Mujuzi, The African Commission on Human and Peoples’ Rights and the promotion and protection of refugees’ rights, 9 Afr. Hum. Rts. L.J. 160 (2009).
 Mouvement des Réfugiés Mauritaniens au Sénégal v. Sénégal, African Commission on Human and Peoples’ Rights, Comm. No. 162/97 (1997).
 Mujuzi, supra note 3.