
On 29 and 30 October 2012 the North Gauteng High Court in Pretoria will hear argument in Consortium for Refugees and Migrants Rights in South Africa (CoRMSA) v President of the Republic of South Africa and Others. CoRMSA, with the support of SALC and legal representation of the Wits Law Clinic, will argue that former Rwandan general and suspected war criminal, Faustin Kayumba Nyamwasa, is not eligible for refugee status. This Q and A will tell you everything you need to know about the case. For live updates from the Court room follow SALC on twitter @follow_SALC and visit the SALC website for even more information.
What is this case about?
This case concerns the judicial review of the decision of the South African authorities to grant refugee status to a former Rwandan general and suspected war criminal, Faustin Kayumba Nyamwasa, in June 2010. This case is being brought by the Consortium for Refugees and Migrants Rights in South Africa (CoRMSA) and is supported by the Southern Africa Litigation Centre (SALC). It raises a number of issues, including:
- The proper interpretation and administration of South Africa’s Refugees Act in accordance with international law;
- The intersection between refugee law and international criminal law and the detection and apprehension of persons accused of international crimes;
- South Africa’s obligation to ensure that it does not become a safe haven for perpetrators of international crimes;
- South Africa’s constitutional mandate to ensure accountable, transparent and rational decision making.
- Who is Faustin Kayumba Nyamwasa?
- How did SALC and CoRMSA learn about Nyamwasa’s presence in South Africa?
- Why are CoRMSA and SALC challenging the decision?
- In November 2006, French Judge, Jean Louise Bruguiere, issued an arrest warrant for Nyamwasa for his involvement in orchestrating the shooting down of the aircraft carrying former Rwandan President, Juvenal Habyarimana and a number of French nationals in 1994.
- In February 2008, Spanish Judge, Fernando Andreu Merelles, indicted Nyamwasa for war crimes – on the basis of a comprehensive analysis of witness testimony identifying Nyamwasa as the Commanding Officer of all military units of the RPA in the DRC. The indictment implicates Nyamwasa in the killings of civilians in Rwanda and the DRC and maintains that Nyamwasa was responsible for the massacre of 2500 Hutu refugees and the murder of four Spanish nationals, as well as other serious crimes. In September 2010, the Spanish authorities requested the South African government to extradite Nyamwasa to stand trial in Spain. In July 2012 the Judge made a request for assistance from the South African authorities to interview Nyamwasa.
- In 2010 a United Nations Mapping Report linked the RPA to gross human rights violations and the events documented correspond to the period in which Nyamwasa was a high-ranking official in the Rwandan army.
- What is the legal basis of the challenge?
- Was based on material errors of law because the authorities applied the incorrect standard of proof and gave insufficient weight to the indictment and extradition requests;
- The South African authorities failed to understand the rationale and purpose of the exclusion clause;
- The decision amounted to an abuse of discretion because the authorities took into account irrelevant considerations and failed to consider relevant ones;
- The authorities failed to abide by a number of statutory obligations; and the decision was arbitrary, irrational and unreasonable.
- Why are the South African authorities opposing this case?
- What relief are CoRMSA and SALC asking for?
- Nyamwasa is the subject of extradition requests from Spain, France and Rwanda; are CoRMSA and SALC asking the Court to order his extradition?
- Does this case have broader implications?
- Who is representing CoRMSA
- David Watson says: 25 OCTOBER, 2012 AT 10:17 PM This is a great brief and it sounds like an important case. I look forward to reading the updates! REPLY
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