SOUTH AFRICA/RWANDA: JUDICIAL REVIEW OF DECISION BY SOUTH AFRICA TO GRANT REFUGEE STATUS TO FORMER RWANDA GENERAL ACCUSED OF WAR CRIMES

> Precedent Cases, International Criminal Justice > Rwanda, South Africa
Salc : Staff Writer

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. The case was brought by the Consortium for Refugees and Migrants in South Africa (CoRMSA) with the supported of SALC.

According to international and domestic refugee law, suspected perpetrators of war crimes and crimes against humanity are ineligible for refugee status. General Nyamwasa has been implicated in the commission of egregious crimes and is the subject of various extradition requests, yet he was granted refugee status by the South African authorities.

A legal briefing paper was submitted by CoRMSA and SALC to the authorities detailing the legal implications of granting Nyamwasa refugee status. After no meaningful response was received from the authorities, legal proceedings were initiated.

On 26 September 2014 the High Court judgment was handed down. Judge Mngqibisa-Thusi ruled that Nyamwasa was entitled to refugee status as he falls within the category of vulnerable groups in need of protection. She also ruled that the applicant did not show sufficient cause that there is reason to believe that Nyamwasa was involved in the alleged crimes. Leave to appeal against the decision was denied by the High Court.

Dissatisfied with the decision, CoRMSA with SALC’s support, petitioned the Supreme Court of Appeal, which granted them leave to appeal. On 5th May, 2017, the Supreme Court of Appeal endorsed an out of court settlement between the Parties which reviewed the decision of the High Court and set it aside. However, the Order was suspended for a period of 180 days from the date of appeal (24 April 2017) in order to enable the Department of Home Affairs’ Refugee Authorities reconsider and make a final decision on Gen. Nyamwasa’s Refugee Status. The Supreme Court also ordered that any interested parties would be invited to make submissions to be considered during the review of the granting of Nyamwasa’s Refuge Status. Gen. Nyamwasa was also granted permission to make written and oral submissions to the Chairperson of the Standing Committee for Refugee Affairs and the Refugee Status Determination Officer (RSDO).

On 26 February, 2018, the Home Affairs Department heard a fresh application from Gen. Nyamwasa for Refugee Status in South Africa. SALC was notified and submitted representations to the RSDO at the hearing pertaining to Gen. Nyamwasa’s alleged involvement in international crimes committed in Rwanda. In its submission SALC argued that there is substantial evidence contained in two warrants of arrest issued by the Spanish and French Judges and a United Nations Report that makes it possible for the RSDO ‘to reasonably believe’ that Gen. Nyamwasa committed international crimes in Rwanda. This evidence excludes him from qualifying as a refugee under the laws of South Africa, and under international Refugee Law. The RSDO reserved his determination on the application.

High Court Papers

Supreme Court of Appeal Papers