Source: Refugee Law Teaching Material
Developed by: Gizachew Admassu
Sponsored by the Justice and Legal System Research Institute
General Observations on Ethiopian Refugee Proclamation No. 409-2004
(a) Definition of Refugees
The 2004 proclamation incorporated refugee definition from both the 1951 Convention and the 1969 African refuge convention verbatim. Article 4 of the proclamation adopted a combined definitions of refugees given by the above two instruments.
While the 1951 convention refuge definition has been at times considered to be too restrictive, the 1969 OAU definition on the contrary has been hailed to be inclusive. The fact that the Ethiopian Refuge proclamation combines the two definitions suggest an enormous interest on the part of Ethiopia to be more accommodative and more open to the plights of refugees.
The Ethiopian Proclamation does not provide for subsidiary or supplementary protections, a kind of scheme that has been developed to extend international protection to individuals who do not satisfy the refuge definition but who otherwise need protection. Given the broader definition of refugee adopted in the proclamation one may, however, argue that such persons could even be subsumed into the definition itself.
Under its Article 19, the proclamation talks about group refugees. The provision reads as follows:
If the Head of the Authority considers that any class of persons met the criteria under Article 4(3) of this Proclamation, he may declare such class of persons to be refugees.
The reading of this provision suggests that a group of persons, whom the authority believes that they meet the refuge definition, may be recognized as refuge without even having gone through individual refuge determination procedure. In effect, this provision seems to refer to what is commonly referred to as prima facie refuge, that is that a group could be recognized as refugee, in the absence of evidence to the contrary, especially during mass influx situations, without having undertaken an individual determination procedure.
The Ethiopian refuge convention adopts definition of the 1951 convention and the 1969 OAU definitions verbatim, and because Ethiopia is a party to these conventions, the meaning and content of this definition in the proclamation should be approached as per the understanding we have reached in those chapters. In order to understand the definition under this proclamation one may, thus, have to refer to the analysis under those chapters.
(b) Non- Refoulement
The protection against refoulment is an international preemptory norm. States are obliged both under refuge specific and more broadly under international human rights instruments not to expel an individual to the place where she or he risks persecution. That though this obligation suffers certain exceptions under the 1951 convention, it has largely been conceived, under human rights instruments, as absolutely absolute.
Article 9 of the proclamation provides for the protection against refoulment in the following words:
No person shall be refused entry in to Ethiopia or expelled or returned from Ethiopia to any other country or be subject to any similar measure if as a result of such refusal, expulsion or turn or any other measure, such person is compelled to return to or remain in a country where:
- the may be subject to persecution or torture on account of his race, religion, nationality’, membership of a particular social group or political opinion: or
- his life, physical integrity or liberty would be threatened on account of external aggression, occupation, foreign domination of events seriously disturbing public order in part or whole of the country.
As with the 1951 convention, the proclamation, in addition, provides for grounds of exception in the following words:
The benefit of this provision may not, however, be claimed by a refugee whom there are serious reasons for regarding as a danger to the national security, or who having been convicted by a final judgment of a particularly serious crime, constitute a danger to the community.
Clearly, this provision of the proclamation is nothing more than a direct copy of the relevant provisions of the 1951 convention and the 1969 OAU Convention. Accordingly, one should refer to the rather lengthy discussion on non-refoulement under chapter three of this material so as to be able to better understand what it means under the proclamation.
It is also worth noting that unlike the 1951 convention, the Ethiopian proclamation provides for expulsion clause under its article 10 stating that a ‘refugee who is lawfully resident in Ethiopia shall not be expelled except on the ground of national security and public order’. This clause authorizes the concerned authority to expel a refuge on the grounds of national security and public order. While it is understandable that a refuge is not protected under the convention against refoulement in certain exceptional situations, and same is adopted by the proclamation under the non-refoulement clause, providing for another clause on expulsion might be criticized as a move to make the exception go wider.
Furthermore, any restriction to the protection against refoulment should be limited to those exceptional convention reasons. The trend to expand the exceptions would suggest nothing less than going counter to the contemporary understanding of the international community.
It is interesting to note that under its sub article 4, the provision of the proclamation envisaged a kind of moratorium whereby the decision to expel could be delayed, upon request of the refuge, so that a refuge seek admission to a country other than the country to which he is to be expelled. As shown before, what is prohibited is not only expelling a person to the country where he or she risks persecution but also to the country from where that person could subsequently be expelled to a place where he or she risks persecution. The sub- article is significant in giving a chance to the refugee to look for safe-heavens elsewhere, and extending that chance, in effect, will help Ethiopia lives to the obligations of non-refoulemeent as provided by a number of international and regional human rights instruments to which it is a party.
(c) Exclusion from Refuge Status
Though an asylum seeker has satisfied the requirement to be recognized a refuge, he or she may be excluded from such status. Exclusion comes after a refuge determination is undertaken. Exclusion from refuge status is meant to limit protection only to those deserving cases and to avoid the possibility of individuals escaping prosecution for serious crimes they have committed.
Accordingly, as with the 1951 convention, the Ethiopian Proclamation, under article 5, provides for grounds for excluding asylum seekers from refuge status. The grounds of exclusion given in the proclamation are similar to the grounds given under the convention except that the proclamation provides for one more grounds of exclusion under its sub article 4. This sub article provides that a person shall not be considered a refuge if;
having more than one nationality, he has not availed himself of the protection of one of the countries of which he is a national and has no valid reason, for not having availed himself of its protection.
One could argue that this sub article is either unnecessary addition to the provision or perhaps misplaced.
What is provided under this sub article is a component of the definition of refuge under the 1951 convention as well as the proclamation. Having a dual nationality and a refusal to avail oneself of that protection, without good reason, is and should be an element of a refuge determination process and hence should not be raised at exclusion stage. This is because a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
Such part of the definition of a refuge is intended to deny from refugee status all persons with dual or multiple nationality who can avail themselves of the protection of at least one of the countries of which they are nationals. Wherever available, national protection takes precedence over international protection.
(d) Family Unity
The Ethiopian proclamation, as with the other international and regional refugee instruments, recognizes family unity under its article 12. It is part of states humanitarian obligation to allow and facilitate the family members of the asylum seeker and refugee join the latter in a country where the asylum is sought. The proclamation does not limit the right of family unity only to refugees. It rather equally recognizes the right of family unity of asylum seekers. The family members of both asylum seekers and refuges have the right to enter Ethiopia with a view to reunite with the asylum seeker and refugee. The family members of the asylum seeker enjoy same measure of rights the asylum seeker enjoys and if the asylum seeker is found not to deserve refuge status, they also loose protection unless otherwise, of course, they are given refuge status on their right.
Family members of the refuge are entitled to the same measure of rights a refuge is entitled to under the proclamation. Interestingly enough, in order for them to enjoy those rights, they need not have to apply for refuge status and need not necessarily have a refuge status themselves. The family of asylum seekers and refugees, however, has the right not an obligation to apply for refuge status.
Though the proclamation does not provide the details of how Ethiopia would facilitate family reunification, the fact that the proclamation recognizes family unity both for asylum seekers and refugees alike and that they are entitled to same rights the refuge has without they having been required to have a refuge status is an extremely positive gesture of humanitarianism and is in line with its commitment under the convention.
(e) Procedure for the determination of refuge status
The procedure for the application and determination of refuge status should be fair. The asylum seeker should be given the opportunity and time to lodge his application before a designated authority and the right to a fair hearing. These obligations have been duly recognized by international and regional refuge instruments. Similarly, the Ethiopian refuge proclamation extends procedural protections to asylum seekers in its provisions 13-18.
The Proclamation, under its article 13, requires asylum seekers to apply for asylum both at the frontier and within Ethiopia in 15 days time. They can report either at the nearest police stations or the office of the authority. The police station receiving the application shall, as soon as possible forward the application to the Authority. The applicant shall fill relevant forms and vouch for the truth of the statement therein. Having received the application, the Authority shall provide the applicant with identity card attesting to his status as asylum seeker pending refuge status determination.
Interestingly enough, unlike the refugee convention which allows for a possibility of detaining asylum seekers who are inside the country illegally, the proclamation prohibits both detention and criminal prosecution against a person who has applied or is about to apply for refuge status on the account of his illegal entry and presence in the country. Seen even from the standard provided by the refugee convention point of view, the proclamation is a step ahead as it categorically prohibits detention and prosecution of any sort for unlawful entry or presence.
According to the 2008 world refuge survey, ‘there were no reports that Ethiopia detained refugees or asylum seekers for illegal entry, presence, work, or movement, but the Government kept several Eritreans in detention on national security grounds, allowing the International Committee of the Red Cross (ICRC) to visit them.’
Having received the application of the asylum seekers and issued an asylum seeker with an identity card, the Security, and Immigration, and Refugee Affairs Authority (SIRAA) determines the refuge status of the applicant. In deciding asylum application, the SIRAA shall ensure that every applicant is given reasonable time to present his case; ensure the presence of qualified interpreter during all the stages of the hearing; cause the person concerned to be notified of its decision and the reason thereof in writing; decide on every application or case referred to it within reasonable period of time; and invite the United Nations High Commissioner for Refugees to participate as an observer.
Apart from these procedural guarantees the proclamation does not provide for a right to legal aid, an essential component of fair hearing. But one would only hope that an asylum seeker shall be given a free legal aid at least in circumstances where this looks imperative to establish the truth.
Any asylum-seeker, who is aggrieved by the decision of the SIRAA, may within thirty days of being notified of such a decision, appeal in writing to the Appeal Hearing Council. This organ, hearing the appeal of the asylum seeker, follows same procedure the SIRAA follows to reach its decision. If the Appeal Hearing Council affirms the decision of the SIRAA, as the proclamation stands now, that would be the end of the matter and the asylum seeker may have to leave as our proclamation does not seem to have recognized, at least explicitly, the so called subsidiary or complimentary protection. While it has been an important factor of a fair refuge determination procedure, the fact that the proclamation does not provide for a judicial review by ordinary courts is regrettable.
(f) Rights and Obligations of Asylum-seekers and Refugees
Several states subject asylum seekers and refugees to different standards of treatment such as alien, preferred nation’s nationals and as nationals. The contemporary understanding of the refugee convention, however, means that refugees should be entitled more or less to the same measure of rights nationals are entitled to. In other words, discriminatory treatment between nationals and refugees is increasingly becoming unacceptable.
The Ethiopian refuge proclamation, under its article 21, provides that a refuge shall be permitted to remain within Ethiopia, issued with identity card and travel document to travel outside of Ethiopia. In practice, the Government and UNHCR jointly adjudicated refugees’ written applications for international travel documents for educational, work-related, or urgent personal reasons.
The proclamation has also reaffirmed that refugees are entitled to the rights recognized under both the refuge convention and the OAU refuge convention.
Notwithstanding the above, the proclamation under its sub article 2 provides that the Head of the Authority may designate places and areas in Ethiopia within which recognized refugees, persons who have applied for recognition as refugees, and family members thereof shall live, provided that the areas designated shall be located at a reasonable distance from the border of their country of origin or of former habitual residence.
As shown before, the 1995 Constitution also provides that ‘any … foreign national lawfully in Ethiopia has, within the national territory, the right to liberty of movement and freedom to choose his residence, as well as the freedom to leave the country at any time he wishes,’ but reserved the right of reentry to nationals.
Clearly, the 2004 Refugee Proclamation gave refugees the right to international travel documents, but likewise authorized the head of SIRAA to designate areas where refugees and asylum seekers must live, thereby imposing residential restrictions.
According to the 2008 world refuge survey, Ethiopia required nearly all Eritrean, Sudanese, and Somali refugees to live in seven camps near their respective orders and required them to obtain permits to leave. The Government issued permits specifying the period of travel to camp residents for personal, medical, educational, or safety reasons. In general, Ethiopia restricted aid to refugees in camps or those with specific permission to live in urban areas. Some refugees from the Great Lakes area lived in Sherkole camp in the west because aid was available to them only there. In the north, refugees lived with local communities in 24 remote locations, but in February UNHCR, regional authorities, and the World Food Programme limited aid to two distribution sites near Dubti and Berhale.
Understandably, one could see that there is a general trend of confining refugees to campus. Such measures will deprive refugees of a chance to locally integrate with the people of Ethiopia and live a normal life free of confinement. Furthermore, such a measure apparently runs counter to the country’s obligation to seek and work towards durable solution one of which being local integration.
Sub article 3 of Article 21 of the proclamation imposes further restriction on the scope of rights refugees could enjoy in Ethiopia in the following words: ‘…Every recognized, refugee, and family members thereof shall, in respect to wage earning employment and education, be entitled to the same rights and be subjected to the same restrictions as are conferred or imposed generally by the~ relevant laws on persons who are not citizens of Ethiopia.’
According to the 2008 world refuge survey, Ethiopia did not allow refugees to work. The Government granted work permits to foreigners only when there were no qualified nationals available and rarely issued permits to refugees. The Government also tolerated some refugees with special skills working illegally. Authorities tolerated refugee participation in the informal sector, including trading in markets or doing other piecemeal jobs.
The 1995 Constitution offered only citizens the right to work; and also granted them the right to join unions, to bargain collectively, and to strike, as well as to other labor rights generally. The 2004 Proclamation exercised Ethiopia’s reservation to the 1951 Convention’s right to work, placing the same restrictions on refugees as on other foreigners.
The Constitution offered only citizens the right to run enterprises and reserved other limited property rights to citizens. The state owned all land and all radio and television stations. Only permanent residents could operate newspapers. Refugees, however, could hold title to and transfer other types of property.
As far as the right to education is concerned, the 1995 Constitution limited its offer of equal access to publicly funded services to citizens. The 2004 Proclamation exercised Ethiopia’s reservation to the 1951 Convention’s right to primary education, placing the same restrictions on refugees and their children as on other foreigners. In June, the UN’s Committee for the Elimination of Racial Discrimination expressed concern about refugee children’s enjoyment of their right to education and recommended that Ethiopia “adopt adequate measures” to ensure their equal access to education.
According to the 2008 world refuge survey, girls’ enrolment in primary school was less than 50 percent in all the camps. Government schools did not accept refugees, but UNHCR contributed to private primary school tuition, uniforms, transportation, and books for 350 students in Addis Ababa. In Kebribeyah, only 22 percent of school-aged children went to primary school. There was only one textbook for every four students and an average of 61 students per classroom and only 10 trained teachers. There were, however, over 800 children enrolled in 15 Koranic schools in the camp.
In relation to provision of food and medical care, the 2008 world refuge survey indicates that only in Dimma camp did refugees receive the standard provision of 20 liters of water per person per day, and in Bonga and Kebribeyah refugees received only 11 liters. In Kebribeyah, global acute malnutrition was over 10 percent and trained staff attended fewer than 10 percent of births. Newly arrived refugees in Shimelba camp reportedly had to trade sex for shelter. Only about one in five of the Sudanese refugees in Bonga, Dimma, and Fugnido camps had blankets, jerry cans, and cooking sets. Most in these camps and Sherkole camp had not received such nonfood items in over six years.
Government clinics in camps provided health services, including drugs. In general, refugees and asylum seekers outside camps received services from Government hospitals on par with nationals, including free anti-retroviral treatment. UNHCR’s implementing partner reimbursed Ethiopian hospitals for the treatment of refugees. Only Dimma and Sherkole camps had HIV/AIDS programs. New Eritrean arrivals received four eucalyptus poles and a plastic sheet for shelter. Most Eritreans could use hospitals and other public services, but some local government officials reportedly denied medical services to indigent Eritreans.