PROTECTION FAILURES IN THE STATUS DETERMINATION PROCESS
Responsibility for Status Determinations
It is the responsibility of the government of Uganda to assess the status of refugees in its territory. UNHCR's ExCom has reiterated this responsibility of governments on several occasions by stating "the importance of establishing and ensuring access consistent with the 1951 Convention and the 1967 Protocol for all asylum seekers to fair and efficient procedures for the determination of refugee status."89
The fact that the government of Uganda is involved in the status determinations for asylum seekers is a mixed blessing. Uganda's neutrality is sometimes in doubt when the individual asylum seekers arriving in Uganda come from countries in which Uganda has a clear foreign policy or military interest.
However, Uganda has gone a long way towards establishing and ensuring access for the determination of refugee status. Procedures are in place, and police officers and ministers work on a daily basis to process asylum seekers' applications. The importance of guaranteeing the efficiency and fairness of these procedures has been reiterated by UNHCR's ExCom on several occasions.90 The ways in which the government is falling short of these standards will be discussed in the following sections.
UNHCR also has a role to play in status determinations. In government-run procedures, such as those established in Uganda, UNHCR assumes more of a capacity-building and even "watchdog" role over the process. The agency has a responsibility to ensure that "normal procedural safeguards" are in place during status determinations.91 All states parties to the Refugee Convention, including Uganda, should "give favorable consideration to UNHCR participation" in status determination.92 Uganda has allowed UNHCR to play its capacity building and watchdog role to some extent. However, given the fears of bias and lack of confidentiality held by refugees in Uganda, UNHCR could do much more to fulfill this role and to build confidence among refugees in Uganda.
Procedural Deficiencies in the Status Determination Process
According to the Refugee Status Determination Handbook, applicants for refugee status should "receive the necessary guidance as to the procedure to be followed."93 Contrary to this standard, asylum seekers in Kampala do not receive information about the legal standards or procedures that will be followed in their cases. As a result, many refugees in Uganda are poorly informed about the asylum determination process, which contributes to the fear and confusion it can engender in some asylum applicants. Asylum applicants are also confused about the institutional affiliations of the officers interviewing them, and the legal standards or procedures applicable to their cases. Human Rights Watch interviewed one refugee who thought the Ugandan Police working at Old Kampala Police Station were staff of UNHCR,94 and several others who thought that the UNHCR protection officers who conduct interviews at the NGO InterAid were staff members of InterAid and not of UNHCR.
The status determination process is particularly inaccessible to Somali refugees. Of nine Somali refugees interviewed by Human Rights Watch, only two had undergone the status determination process. The others refrained from having their refugee status assessed because they were afraid of the first step in the process - registering with the Ugandan police. The reasons for this fear in the Somali community could be the result of any one or a combination of several factors. First, Somali refugees are poorly informed about what actually transpires during registration with the police. For example, Samatar B., a middle-aged man whose wife was killed in Somalia, had fled with ten children, all of whom were sleeping with him in a crowded room that they shared with several other refugee families. He told a Human Rights Watch researcher, "I have been here for three years. I do not go to the police... they will ask me for documents."95
Second, Somalis are afraid of the process because so many passed through Kenya, and fear that their cases will be rejected on secondary movement grounds (a subject that is discussed more fully in Part IV, below). Third, Somalis are simply afraid of being arrested or otherwise harassed by the police if they go to register. This is not surprising given that Somali refugees are often caught up in police swoops conducted in neighborhoods in Kampala heavily populated by refugees. For example, a middle-aged woman named Awa H. who was given a place to sleep by other Somalis living in Kampala explained, "I came one year ago because of civil war and insecurity from Kenya to here.... The problem I have is that I am unwelcome here... I didn't go to the police. If I go there, they will lock us in!"96
Given the brevity of the initial interviews conducted at Old Kampala Police station, many refugees are fearful that the notes are incomplete and they worry that these notes remain with their files throughout the process. Some refugees raised doubts as to whether discrepancies between these notes and the later interviews could impact the outcome of a particular individual's case. Refugees were particularly worried because the police officers conducting the interviews do not speak their language, for example, French or Kinyarwanda.
Moreover, Human Rights Watch documented several problems with the quality of interpretation during the UNHCR interviews. Both UNHCR and InterAid explained that the interpreters available for the social worker interviews and the UNHCR status determination interviews came from one of two sources. Either the refugees bring the interpreters themselves, or an InterAid interpreter is provided for them.97 However, UNHCR was candid with Human Rights Watch that the quality of interpretation at InterAid is "a bit of a problem."98 The Director of InterAid supplied more information about the interpreters "provided" when he told Human Rights Watch that "for translations we usually choose a translator at random from among the refugees, or refugees can bring their own translator."99 Choosing a translator at random from a group of waiting refugees creates serious security risks
Accounts from refugees substantiate this problem. Eddy L., a Congolese refugee explained, "translations are poor. One refugee I know told HCR that someone wanted to kill him, and the translator translated this as `someone wanted to kill someone else.' . . . Sometimes they look for another refugee to do the translations, which can create security problems."100
Another applicant who had been a human rights activist in his country of origin described the problems he had with interpretation:
I registered with the police on December 5, 2000. On December 6, 2000 I had my interview with InterAid. After that interview, they closed for the holidays. On January 6, 2001 I had an interview with the JPO [the UNHCR Junior Protection Officer]. The interpreter was badly prepared, and the JPO doesn't speak French. They referred me to the REC, but I asked the [UNHCR] why should a human rights activist go before the REC? [UNHCR] did another interview with me. This time, he asked me to speak in English - which was very difficult for me. I still have had no answer from them on my case.101
Asylum seekers also complained of interpretation problems at OPM and the Special Branch. One Rwandan told a Human Rights Watch researcher, "I had problems with the translator [at OPM] and I couldn't explain myself very well."102 One Rwandan who had requested an interview in Kinyarwanda was refused by the Special Branch, and his claim for refugee status was later rejected.103 When a Human Rights Watch researcher inquired about the procedures followed during interviews at Special Branch, we were told,
Sometimes we take one hour to make the interview. At other times the interview is as short as ten to fifteen minutes. We usually speak to them in Swahili. If someone doesn't speak Swahili we try as much as possible to get interpreters. We have some staff who speak Kinyarwandan. Somalis are difficult to interview, sometimes we need to use other Somali refugees. Interpreters are expensive. Some come with their own interpreters.104
Hasty interviews and poor interpretation fall far short of the Refugee Status Determination Handbook's standards, which state:
It should be recalled that an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own. His application should therefore be examined within the framework of specially established procedures by qualified personnel having the necessary knowledge and experience, and an understanding of an applicant's particular difficulties and needs.105
These basic requirements, which reflect the special situation of the applicant for refugee status, to which reference has been made above, and which would ensure that the applicant is provided with certain essential guarantees, are the following: The applicant should be given the necessary facilities, including the services of a competent interpreter, for submitting his case to the authorities concerned.106
The most common problem refugees experience with REC is delay. Several refugees interviewed by Human Rights Watch had to wait without status for several months while REC considered their claims.
For example, Jean-Baptiste C., a male refugee from the DRC fled from Bukavu because of problems with the RCD said, "On September 28, 2000 I was arrested by RCD security, where I was kept in an unknown place until December 27, 2000." He was then transferred on December 29, 2000 to the central prison in Bukavu. He was suspected of working against the RCD, because there had been a big "explosion" [grenade attack] in Bukavu about three weeks before September 28, 2000 that killed several people.107 Jean-Baptiste told a Human Rights Watch researcher,
I had nothing to do with [the outbreak in fighting]. I was beaten in jail and they broke my teeth. They asked me questions and I didn't have the answers and that was why they first took me into custody. They killed people every day in that prison, and they didn't allow visitors to come. My wife paid money for my food but I didn't get to see her at all.... On January 13, 2001 I was allowed to pay $900 (USD) for my provisional bail. I have no record of this payment because they refused to give me a receipt, instead they wrote that I paid $100 (USD) bail.108
After several other incidents in which Jean-Baptiste's property was destroyed and his life was threatened by the military in Congo, he fled to Uganda. On September 13, 2001 Jean-Baptiste C. was interviewed at OPM and he was referred to the Special Branch. Jean-Baptiste told Human Rights Watch what happened next,
I was so tired of waiting for appointments like that, so I decided to speak with an intermediary to try to get an appointment sooner. I paid [U.S]$45 to get an appointment sooner with the Special Branch. On October 1, 2001 I was given that appointment. However, the officer I spoke with only talked to me for five minutes. At first I was happy because I thought that the money was working. He said I would have a decision in one month.109
Jean-Baptiste was issued a letter on September 11, 2001 that stated "while your case awaits the REC decision, this letter serves as a provisional identification and will expire three months from today." The expiration date was extended twice, first to November 2, 2001 and later to December 4, 2001. Four months later, Jean-Baptiste told Human Rights Watch he was afraid to go back to OPM to have his documents extended yet again. As of April 2002 he still had not heard anything about the REC's decision in his case. 110
Uganda's Political and Military Interests - Potential for Bias
Many of the fears and problems asylum seekers experience while moving through Uganda's status determination process can be attributed to Uganda's political and military roles in their countries of origin. One Congolese refugee told a Human Rights Watch researcher, "People are afraid to declare themselves to the police because Uganda is fighting a war in our country."111
Specific bias concerns arise for many refugees when they present their claims to OPM or the Special Branch. Several Sudanese refugees interviewed by Human Rights Watch said that they were accused by OPM officials of fleeing a "just cause" when they decided to leave the SPLA and the SPLA-controlled camps. Similar accusations were leveled against those who expressed fears of forced recruitment by the SPLA.112 For example, Abdu T., a twenty-five-year-old Sudanese man fled from southern Sudan after his family had been attacked because they were a part of the Muslim minority in the south. In 1992 his father had been abducted because he opposed the SPLA and he was known as a leader in opposition to the SPLA. He told a Human Rights Watch researcher,
A faction wanted to recruit me in 1995 when they took my mother. I was tortured because I refused to fight. The SPLA said I was a spy of the Arabs and they kept me underground and tortured me until December 28, 1995. Then, they took me with them to work for them. They made me work with the relief trucks, to unload supplies. I worked like that for a long time....113
Abdu went to InterAid on January 6, 1996 and received his referral letter from UNHCR to OPM. Then he went to OPM. Abdu said,
The [OPM] officer who interviewed me started to threaten me and to ask "why don't I return to Sudan to fight?" He didn't give me any documents and we spoke for only fifteen minutes. [He] told me to go to the camp, but [the SPLA] will abduct me from those camps. They know I ran away from them, but they also know the case of my father very well because he is well-known in the opposition. I said I would not go and I stayed here just with that asylum seeker document through 1997 and 1998.114
The case of Olivier C., introduced previously, illustrates some of the problems Rwandan asylum seekers have in presenting their claims to both OPM and the Special Branch. Olivier's family had been subject to persecution in Rwanda because of their political activities. He told a Human Rights Watch researcher that Rwandan agents had arrested and beaten him, holding him incommunicado for close to one year. Olivier told Human Rights Watch about his interview with OPM,
I had problems with the translator and I couldn't explain myself very well. They stopped asking me questions and listening when I told them about what happened at the Rwandan's house. They didn't take notes when I started to talk about the beatings. They said they didn't want to hear about the beatings. The OPM said I was lying about my arrest. They said, "how can [the Rwandans] arrest you, what do they want with you? You are still very young!"
I was then asked to go for an interview with the Special Branch. I did that interview on January 10, 2002. At that interview I was very afraid. They gave me a form to fill out that asked about my identity, my family, my tribe, which border I crossed, etc... I did the interview for about one hour. Three people interviewed me there. They asked me why I left and what job I did in Rwanda. There was no interpreter there and one man said he understood Kinyarwanda and translated for the others but he didn't understand me very well at all. I tried to explain that I fled because of my family, because of the problems of my family. It is not only my problems, but now they have become my own problems because of my family.115
As of April 2002, Olivier C. had not received any updates on the status of his case.
In addition, sometimes the security function of the Special Branch makes refugees so fearful that they do not give the officers all the facts upon which a decision can be made. For example, Béatrice K. (introduced previously) was interviewed by the Special Branch in February 2001. She did not tell them her story because she was too afraid. So they rejected her and they said her case was "not understandable."116 Béatrice K. admitted to a Human Rights Watch researcher that she gave unlikely reasons for her flight. She told Human Rights Watch, "The Rwandan refugees are not accepted in this country as refugees. They are made to wait a long time at REC. They remain there. The government does not provide a place for them."117
The fears of bias that refugees such as Olivier and Béatrice have are supported by some recently publicized high-profile cases. Unlike Olivier and Béatrice, though, UNHCR took an active role in advocating on behalf of the rights of approximately forty-five RPA officers who had fled Rwanda for Uganda in late 2001 in order to seek asylum.118 While the government and UNHCR were considering their refugee status, the Ugandan government arrested and detained a number of the officers. Subsequently, the governments of Uganda and Rwanda established a Joint Verification Team (JVT) to determine whether either of the countries was training the others enemies (rebels and dissidents) in their territory or in the eastern region of the DRC.119 The JVT was organized after a high-profile mission by the United Kingdom's Secretary of State for International Development, Clare Short, under the auspices of the British High Commission, and was comprised of the deputy head of Central Military Intelligence (CMI), a military attaché from the British High Commission, and several Rwandan officers. The JVT presented the names of the defectors to Rwandan President Kagame at a joint meeting in London.
The exercise resulted in endangering refugees because the JVT, under the auspices of the British government, shared information about asylum seekers with high-ranking country of origin officials. Since the three governments were the "examiners" of these asylum seekers' claims, this seriously undermined the confidentiality of the officers' asylum applications and constituted a breach of refugee law by all governments involved. UNHCR's Refugee Status Determination Handbook states unequivocally that, "It will be necessary for the examiner to gain the confidence of the applicant in order to assist the latter in putting forward his case and in fully explaining his opinions and feelings. In creating such a climate of confidence it is, of course, of the utmost importance that the applicant's statements will be treated as confidential and that he be so informed."120
The UNHCR protested the JVT's operations on these grounds, but the information had already been shared between the governments. In addition, the Joint Verification Commission went to the refugee settlements looking for Rwandans. UNHCR told a Human Rights Watch researcher that the activities of the JVT were "unacceptable and [we] intervened with the U.K."121
Eventually, two-thirds of the Rwandan officers were given status and resettlement referrals. About one third were considered "Ugandans who didn't want refugee status."122 As of April 2002, those who had been recognized as refugees were under twenty-four-hour house arrest in Kampala.123 UNHCR explained to a Human Rights Watch researcher that Uganda's "Central Military Intelligence is providing protection to those who were recognized, and some are slated for resettlement."124 However, as of June 2002 it was still not clear what had happened to those who allegedly "didn't want status." In addition, UNHCR was encountering difficulties in finding a third country that would be willing to accept the officers who had been referred for resettlement.125
The Ugandan government was also accused of bias in its treatment of approximately forty Rwandan students who sought asylum in December 1999.126 The students fled Rwanda because they refused to study in French - a fact that neither the Ugandan government nor UNHCR considered as adequate grounds for asylum. However, when the issue became the subject of public debate and the students' demonstrations were covered in the press, UNHCR determined that the sur place127 effect of the publicity made it impossible for the students to safely return to Rwanda. The government of Uganda disagreed and continued to insist that the students would be safe upon return. UNHCR eventually made arrangements for the students to be resettled in a third country since Uganda would not accept them. While the students waited to travel, the government finally agreed to provide them with twenty-four-hour security protection.128
Uganda has established procedures for the determination of refugee status, and has therefore gone a long way towards fulfilling its obligations as a state party to the Refugee Convention. However, as this section has demonstrated, there are several problems with the status determination system. Many of the most grievous are linked to the lack of confidence that refugees coming from the DRC, Sudan, and Rwanda have in the Ugandan government. The role of Uganda in regional conflicts causes these refugees to doubt the impartiality of the decision-makers involved.
Moreover, asylum seekers are ill-informed about the process and about what to expect at each stage. The quality of the determinations is also being harmed by the perceived or real bias on the part of the government, since many asylum seekers refuse to disclose the details of their cases. Improved information and transparency would also enhance asylum seekers' confidence in the integrity of the system.
Finally, procedural problems such as the use of entirely inappropriate interpreters, or none whatsoever, and the lengthy delays asylum seekers experience once their cases are referred to the Special Branch and REC are of serious concern. With such major flaws in the system, Uganda is falling short of making "prompt determination[s] of refugee status in fair procedures."129
89 See, e.g. ExCom Conclusions on International Protection Nos. 71, 74, 87.
90 See, e.g. ExCom Conclusions No. 71, 1993, and 82, 1997.
91 See UNHCR, Follow-up on Earlier Conclusions of the Sub-Committee on the Determination of Refugee Status, inter alia, with Reference to the Role of UNHCR in National Refugee Status Determination Procedure, UN Doc. EC/SCP/22, August 23, 1982, para. 8.
92 See UNHCR, Status Determination Handbook para. 193.
93 See UNHCR, Status Determination Handbook para. 192(i).
94 Human Rights Watch interview with refugee, Kampala, Uganda, April 11, 2002.
95 Human Rights Watch interview with refugee, Kampala, Uganda, April 16, 2002.
96 Human Rights Watch interview with refugee, Kampala, Uganda, April 16, 2002.
97 Human Rights Watch interview with representative of UNHCR, Kampala, Uganda, April 16, 2002.
98 Human Rights Watch interview with representative of UNHCR, Kampala, Uganda, April 8, 2002.
99 Human Rights Watch interview with representative of InterAid, Kampala, Uganda, April 8, 2002.
100 Human Rights Watch interview with refugee, Kampala, Uganda, April 8, 2002.
101 Human Rights Watch interview with refugee, Kampala, Uganda, April 10, 2002. Another asylum seeker from Eritrea told a Human Rights Watch researcher, "I already did my interview with InterAid [interviewee meant UNHCR]. They asked me why I don't go back to Eritrea. I try my best with the translator, but it is not easy and they did not even talk with me for twenty minutes." Human Rights Watch interview with refugee, Kampala, Uganda, April 12, 2002.
102 Human Rights Watch interview with refugee, Kampala, Uganda, April 15, 2002.
103 Human Rights Watch interview with refugee, Kampala, Uganda, April 9, 2002.
104 Human Rights Watch interview with officer at Special Branch, Kampala, Uganda, April 16, 2002.
105 See UNHCR, Status Determination Handbook para. 190.
106 UNHCR, Status Determination Handbook para. 192(v) (emphasis added).
107 There were reports of a grenade attack on a charity fair being held in Bukavu at the end of August 2000. The explosion killed at least seven people and injured another forty-three. In September, fighting in the region continued to cause civilian deaths. Mai-Mai warriors ambushed and shot at a bus on its way to Bukavu, killing at least fourteen people and wounding six others. See Associated Press Newswires, "Seven Killed, 43 Injured in Grenade Attack During Charity Fair," August 28, 2000; PANA Daily Newswire, "14 Killed in Bukavu Ambush," September 13, 2000.
108 Jean-Baptiste's bail document reveals that he was released on the following conditions: 1) payment of $100 (USD), 2) ordered not to leave Bukavu, 3) ordered not to cause a public disturbance, 4) ordered to appear at the Magistrate-Instructeur's office every Friday and Tuesday [notes taken by Human Rights Watch directly from the bail document].
109 Human Rights Watch interview with refugee, Kampala, Uganda, April 10, 2002.
110 Human Rights Watch interview with refugee, Kampala, Uganda, April 10, 2002.
111 Human Rights Watch interview with refugee, Kampala, Uganda, April 8, 2002.
112 Human Rights Watch interview with refugee, Kampala, Uganda, April 9, 2002.
113 Human Rights Watch interview with refugee, Kampala, Uganda, April 13, 2002.
114 Human Rights Watch interview with refugee, Kampala, Uganda, April 13, 2002.
115 Human Rights Watch interview with refugee, Kampala, Uganda, April 15, 2002.
116 Human Rights Watch interview with refugee, Kampala, Uganda, April 11, 2002.
117 Human Rights Watch interview with refugee, Kampala, Uganda, April 11, 2002.
118 See Uganda Gives UN List of Renegade Rwandans, New Vision, (Kampala, Uganda) October 31, 2001.
119 See, e.g. BBC Monitoring Service: Africa, "Government `Protests' Against Uganda Defence Minister's Remarks," February 27, 2002.
120 See UNHCR, Status Determination Handbook para. 200 (emphasis added).
121 Human Rights Watch interview with UNHCR official, Kampala, Uganda, April 8, 2002.
122 See BBC Monitoring Service: Africa, "UNHCR May Relocate `Renegade' Rwandan Soldiers," November 2, 2001; BBC Monitoring Service: Africa, "Over 30 Former Rwandan Army Officers Rounded Up," November 9, 2001; Xinhua News Agency, "Uganda to Hand Over 30 Rwandan Army Deserters to UNHCR," November 10, 2001.
123 Human Rights Watch interview with UNHCR, Kampala, Uganda, April 13, 2002.
124 Human Rights Watch interview with UNHCR, Kampala, Uganda, April 8, 2002.
125 See Asia Intelligence Wire, "UNHCR Cannot Find a Home for Kampala and Kigali Dissidents," April 22, 2002.
126 See BBC Monitoring Service: Africa, "UN Refugee Agency Refuses to Assist Asylum-seeking Rwandan Students," December 17, 1999; BBC Monitoring Service: Africa, "Group of Asylum-seeking Rwandan Students `Disappear,'" December 24, 1999; BBC Monitoring Service: Africa, "Stranded Rwandan Students Rap Rwandan Vice-President Kagame," January 31, 2000.
127 A person who was not a refugee when she left her country, but who becomes a refugee at a later date, is called a refugee "sur place." UNHCR's Status Determination Handbook notes that, "a person may become a refugee `sur place' as a result of his own actions [among other enumerated reasons], such as associating with refugees already recognized, or expressing political views in his country of residence." See UNHCR Status Determination Handbook para. 96.
128 Human Rights Watch interview with UNHCR, Kampala, Uganda, April 8, 2002.
129 See ExCom Conclusion No. 71, 1993 at para (k).