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Confidentiality under the Refugees Act – A shield for suspected perpetrators of grave crimes

After waiting for more than a year, judgment in the case of Consortium for Refugees and Migrants in South Africa (CORMSA) v The President of the Republic of South Africa and Others has been handed down.

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 was brought by 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; and South Africa’s constitutional mandate to ensure accountable, transparent and rational decision making.

Presiding Judge Mngqibisa-Thusi of the North Gauteng High Court correctly ruled that this was a matter of public interest and as such CORMSA have legal standing. The judge also ruled that the conduct of the authorities did fall within the bounds of administrative law allowing the application in terms of The Promotion of Adminstrative Justice Act (PAJA).

Unfortunately, the rest of the judgment leaves a lot to be desired.

Judge Mngqibisa-Thusi ruled that Nyamwasa is entitled to refugee status as he falls within the category of vulnerable groups in need of protection. She also ruled that the applicants did not show sufficient cause that there is reason to believe that he was involved in alleged crimes despite the existence of evidence and indictments from France, Spain and Rwanda.

Firstly, the Refugees Act is very clear as it states that a person does not qualify for refugee status for the purposes of the Act if there is “reason to believe” that he or she has committed war crimes or crimes against humanity. The reasonable belief test has a low threshold and she did not provide reasons for why she held that credible United Nations reports were not “sufficient cause” for a reasonable belief that he was involved in these crimes.

Secondly, the judge assumes that just because the Minister of State Security was cited in the legal papers (by the applicant) it constitutes an acknowledgment by the applicant, that all the relevant government departments had interacted and exchanged information relevant to Nyamwasa’s application. This reasoning is fallacious.

Thirdly, the judgment states that because the relevant authorities were informed of the existing allegations it must automatically mean that they took this into consideration when making the decision to award him refugee status.  Yet, there is no evidence to suggest that this was done as the judge refused to allow access to Nyamwasa’s refugee application indicating that it was confidential and that its release would endanger lives. The judge completely ignored the applicant’s suggestion that the record be revealed to legal representatives who are professionally and legally bound by the strictest standards of confidentiality.

Had the judge facilitated access to the documents to legal representatives, this could have allowed her to make an evidence based determination on whether the allegations were indeed noted and taken into consideration. For the judge to simply assume that the allegations were taken into account purely based on the “word” of the relevant authorities completely negates the principles of the law of evidence.

Fourthly, the judge prohibited the disclosure of his refugee application file based on the misunderstanding that the interests of the public were not sufficiently compelling in this instance. This is particularly disappointing in light of the 2013 Constitutional Court judgment in the Krejcir case  where the court not only endorsed giving the Refugee Appeal Board discretion to disclose their appeal board proceedings after taking into account relevant factors including public interest, but also declared section 21 (5) of the Refugees Act which states that,  “the confidentiality of asylum applications and the information contained therein must be ensured at all times”  unconstitutional.

The Nyamwasa judgment makes no reference to this very clear Constitutional Court judgment and even relies on section 21 (5) despite the fact that it has been ruled unconstitutional and is due for amendment by Parliament.

Fifthly, the erroneous reference to the non-existent “International Criminal Court of Rwanda” also leads one to question the judgment. Accepting this as an honest mistake and assuming that the learned judge meant to refer to the International Criminal Tribunal for Rwanda (ICTR) would be perfectly feasible, however, the rationale that follows this reference will not survive scrutiny as it demonstrates a lack of understanding of the ICTR’s mandate and the crimes Nyamwasa is accused of.

The judge says that because the ICTR makes no mention of Nyamwasa somehow means that there is no basis for suspicion. She completely ignores the fact that a vast number of the crimes Nyamwasa is accused of fall outside the jurisdiction of the ICTR due to the time that they were allegedly committed.

All in all, the long awaited judgment is disappointing and legally unsound. An appeal to adequately ventilate the issues is undoubtedly warranted.


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