Pretoria – South African authorities exceeded their public powers and acted unlawfully and irrationally by granting refugee status to former Rwandan general and suspected war criminal Faustin Kayumba Nyamwasa. This decision should be set aside.
This is according to the Consortium for Refugees and Migrants in SA, supported by the Southern Africa Litigation Centre.
They have called on the Pretoria High Court to review and set aside the decision by South African immigration authorities to grant Nyamwasa refugee status.
This challenge is seen as a landmark case as there is virtually no case law on this subject.
A decision in this case could have implications for others in the same position as Nyamwasa.
Nyamwasa has been implicated in serious war crimes by French and Spanish authorities, who have requested that he be extradited.
This has also been requested by the government of Rwanda, where Nyamwasa has been sentenced in absentia to life imprisonment for terrorist activities.
Nyamwasa fled to South Africa early in 2010 after the relationship between him and Rwandan President Paul Kagame became strained.
He was wounded in a shooting in June 2010 in Joburg and accused Kagame of orchestrating the attack. This was strongly denied by the Rwandan government. Nyamwasa and his family were granted refugee status shortly after the incident.
Anton Katz, SC, for the Consortium for Refugees and Migrants in SA, told Judge Nomonde Mngqibisa-Thusi on Monday that he was not asking for Nyamwasa to be returned to Rwanda. He was only attacking the fact that he was granted refugee status in South Africa, and he was doing so because the government did not follow the law, he said.
Katz based his argument largely on the fact that Nyamwasa applied for refugee status on June 22 – and on the same day received this status.
In terms of the Refugee Act, attaining refugee status was a drawn-out process, with immigration authorities having to verify information before coming to a conclusion on whether to grant this status, Katz said.
“How can he walk into a refugee office applying for refugee status and walk out the same day with refugee status? It is unheard of. It is absurd… it cannot be done lawfully in one day,” Katz told the court.
In obtaining refugee status, the person was given full legal protection by the country and this, among other things, entitled him to basic health and other benefits, he said.
“He is almost regarded as a South African citizen. How can he achieve all this in one day?”
Katz said South Africa was party to the UN convention on refugees and the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa.
The country had also incorporated its international refugee obligations into South African law by way of the Refugees Act.
This act, in line with international practice, contains an exclusion clause. It states that “a person does not qualify for refugee status if there is a reason to believe that he/she has committed a war crime or a crime against humanity”.
The consortium maintained there was reason to believe that Nyamwasa had committed war crimes and crimes against humanity. The decision to grant him refugee status was therefore unlawful.
Katz said while they did not say he should be sent back to Rwanda, Nyamwasa should have to apply for another permit.
“The only issue before court now is whether he is entitled to refugee status. We don’t say his rights should not be protected.”
Marumo Moerane, SC, for the government, asked the court to induce new evidence before it regarding Nyamwasa’s application for refugee status. He denied the process had been completed in one day. It was stated in Nyamwasa’s application that he and his family applied for refugee status long before June 22, he said.
Katz vehemently opposed this. The government could not, now that “the shoe pinched”, induce new evidence at this late stage, he said.
Counsel for the former general said they did not want to divulge all the information to court as there had been several attempts on Nyamwasa’s life.
The government is to launch a formal application on Tuesday to place this evidence before court.