MAINTAINING THE INTEGRITY OF THE REFUGEE SYSTEM: THE CASE OF GENERAL FAUSTIN NYAMWASA

Salc : Angela Mudukuti

Another attempt on Rwandan General Faustin Nyamwasa’s life, the recent murder of his close friend and fellow Rwandan, Colonel Patrick Karegeya, and the rumours of Rwandan President Kagame’s alleged involvement in these crimes makes for ongoing controversy. Nyamwasa, a suspected war criminal, is also the subject of the case of Consortium of Refugees and Migrants in South Africa (CORMSA) v the President of the Republic of South Africa and Others. The case pertains to his being awarded refugee status despite his excludability as a suspected war criminal.

President Kagame stands accused of hunting down his enemies, even those living outside of Rwanda. The murder of Karegeya only strengthened these accusations. Karegeya, a former close ally of Kagame, had been the head of Rwanda’s external intelligence. But in 2004 he was demoted, jailed and later stripped of his title. He fled to South Africa in 2007. He was murdered in Sandton in January 2014.  His murder amplified fears for the safety of other prominent Rwandans living in South Africa who also oppose the Rwandan government-General Faustin Nyamwasa being one of them. The 5 March 2014 attempted assassination only confirmed that these fears are well placed.

Nyamwasa was also once a close confidant of Kagame but he too fell out with the President and fled to South Africa. Here, he has been outspoken in his criticism of Kagame and his administration. In 2010 he survived an assassination attempt that was allegedly orchestrated by Rwandan government agents. A Rwanda based journalist Jean-Léonard Rugambage, working for an independent and openly critical newspaper (Umuvugizi), was murdered in Kigali after he published an article about the attempt on Nyamwasa’s life. Another report from the Umuvugizi newspaper, alleges that Swedish Foreign Minister Carl Bildt, had evidence that the Rwandan government, in collaboration with its Embassy in Sweden, planned to assassinate Rwandan refugees living in Sweden.

But while the threats to opponents of Kagame, and to Nyamwasa particularly, seem very real it must be recognised that what is at issue in the CORMSA case is another matter entirely. CORMSA, supported by SALC, launched a court application in the High Court seeking judicial review of the decision made in 2010 to grant Nyamwasa refugee status.

CORMSA submitted that, Nyamwasa, as a suspected war criminal, is ineligible for refugee status in accordance with South Africa’s Refugees Act 130 of 1998. Section 4(1) (a) of the Act clearly and unequivocally states that a person will not qualify for refugee status if there is reason to believe that he or she has committed war crimes or crimes against humanity. This aligns with international exclusionary principles articulated in international and regional instruments, (acceded to by South Africa in 1996) such as, the United Nations Convention relating to the Status of Refugees 1951.

The charges levelled against Nyamwasa are very serious. Serious enough to make him the subject of indictments and extradition requests. Nyamwasa was a high ranking member of the Rwandan Patriotic Army (RPA) and he allegedly commanded troops responsible for war crimes and crimes against humanity in Zaire (currently known as the Democratic Republic of Congo) and in Rwanda.CORMSA and SALC pass no judgment on Nyamwasa’s guilt or innocence but submit that as a suspected war criminal he is ineligible. To protect the integrity of refugee status, it must be appropriately and fairly allotted in accordance with domestic and international law. That is not to say that Nyamwasa should be left at the mercy of assassins. The South African executive may exercise its discretion to extend other forms of protection to Nyamwasa just not the protection of refugee status which is legally regulated. The CORMSAcase was heard in May 2013 and judgment is expected shortly.

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