A Commentary On The Provisions Of The African Union Convention For The Protection And Assistance Of Internally Displaced Persons In Africa

1. INTRODUCTION

The lack of legally binding regional and international institutional frameworks for the prevention of internal displacement and the protection of internally displaced persons (“IDPs”) led to the adoption on 23 October 2009, and entry into force on 6 December 2012, of the African Union Convention for the Protection and Assistance of Internally Displaced Persons (“Kampala Convention”). The Kampala Convention was adopted in the context of the 1998 United Nations (UN) Guiding Principles on Internal Displacement (“Guiding Principles”) and applies those Guiding Principles to the specific situation of internal displacement in Africa. It also refers to other relevant African Union (“AU”) international human rights and humanitarian law instruments by combining the principles they enshrine into one treaty. The Kampala Convention is the first-ever binding, comprehensive instrument governing internal displacement that captures all causes and stages of internal displacement. Moreover, the Kampala Convention adopts an African approach to the problem of internal displacement in Africa. As a contribution to the Guiding Principles, the Kampala Convention provides an expanded list of acts that may cause arbitrary displacement and also extends the definition of displacement to account for a wide range of other factors resulting in displacement, including natural or human-made disasters and large-scale development projects.[1]

There is a need to clarify and improve the understanding of the provisions of the Kampala Convention through commentaries. A commentary explains legal terms, identifies important legal authorities, and clarifies and interprets legal concepts and issues.^[2] Therefore, a commentary would provide a systematic legal and interdisciplinary study of the normative content of each provision of the Kampala Convention.

In this article, I explain why a commentary on the provisions of the Kampala Convention is necessary and elucidate its benefits for African States parties and other actors accountable for implementing it.

2. NECESSITY OF A COMMENTARY

Institutionally, the machinery for monitoring and reviewing the implementation of the Kampala Convention are, the Conference of States Parties, the African Peer Review Mechanism (“APRM”), and the African Commission on Human and Peoples’ Rights (“African Commission”).[3] Since the Kampala Convention is a human rights instrument that the African Court on Human and People’s Rights (“African Court”) has jurisdiction over, matters pertaining to it can also be brought before the African Court. While the above institutions support states in fulfilling the objectives of the Kampala Convention, there are no general comments that have been developed by the African Commission on any provision of the Kampala Convention and at the regional level, there have not been any judicial pronouncements by the African Court and African Commission on the Convention.

Under the Kampala Convention, States Parties are obligated to indicate the legislative, and other, measures that they have taken to give effect to the Kampala Convention when presenting their periodic reports to the African Commission and the APRM.[4] However, States Parties have often not adhered to this obligation. Under the African Peer Review country reports, there have not been any report by States Parties on measures they have taken to give effect to the Kampala Convention. Only the Republic of Cameroon has submitted its initial report on the Kampala Convention to the African Commission.[5] The state reporting procedure also creates a forum for states and civil society organisations to engage in constructive dialogue on the level of protecting and assisting IDPs and providing durable solutions to IDPs in Africa. Civil society organisations (“CSOs”) can present shadow reports that complement, clarify or question what states have achieved. The African Commission’s Special Rapporteur on Refugees, Asylum Seekers and Internally Displaced Persons (“Special Rapporteur”) plays a huge role in ensuring that states effectively implement the Kampala Convention through its mandate. This includes assisting states to develop appropriate policies, regulations and laws for the protection of IDPs, including having meaningful dialogue with states, National Human Rights Institutions and CSOs. The Special Rapporteur also presents reports on situations of IDPs in every session of the Commission. While efforts have been made by several states to adopt domestic legislation or policies to implement the Kampala Convention,[6] more still needs to be done by states to translate the Kampala Convention into practice.[7] In 2018, the AU Assembly adopted a Model Law to facilitate the incorporation of the Kampala Convention into national frameworks. The Model Law consists of 14 chapters that detail the Convention’s provisions and how all crucial aspects of responses to displacement should be regulated.^[8] Nigeria consulted the Model Law in the development of its proposed IDP Bill.^[9] The Model Law has been subject to criticism. Article 7 of the Model Law emphasises the protection of IDPs but fails to mention issues of assistance to IDPs, which is one of the main pillars of the Kampala Convention.^[10] The Model Law also fails to ensure that in situations of evacuation, evacuation sites should have proper accommodation, and it fails to state that during evacuation, families should not be separated.^[11] It is for these reasons that a comprehensive commentary on the provisions of the Kampala Convention is necessary.

3. BENEFITS OF A COMMENTARY

Firstly, a commentary will provide a systematic interpretation of the Kampala Convention’s provisions in order to clarify its intent and implications in enhancing the protection, assistance and long-term solutions provided to IDPs in Africa. It would trace the legal, political, economic foundations and justifications of the Kampala Convention and its provisions. It would also support the AU Model Law, facilitate the adoption of measures aimed at preventing and putting an end to internal displacements by eradicating its root causes, protect and assist IDPs, and initiate debates, discussions, and interest on these matters on the continent. It is an opportunity to add to academic and non-academic works that are focused on understanding the fundamental

Secondly, a commentary on the provisions of the Kampala Convention has the ability to support and guide the work of the Conference of States Parties, CSOs, APRM, and African Commission. These are the mechanisms that monitor the implementation of the Convention and ensure that IDPs in Africa are protected and assisted and that there are favourable conditions for the development of durable solutions for them. This will improve the engagement between the African Commission, States Parties, CSOs, academia, host communities and states, and other actors, such as non-state actors, who have obligations under the Kampala Convention.

Lastly, a commentary on the provisions of the Kampala Convention would analyse normative standards developed by the AU and AU member states and institutional efforts made by the African Commission and AU member states to improve the protection and assistance of IDPs in Africa. Therefore, a commentary on the provisions of the Kampala Convention could better guide states, the actors vested with the primary responsibility to prevent internal displacement and assist IDPs, in the implementation of the Kampala Convention, especially as research shows that states still need clarity to effectively understand the Kampala Convention.^[12] In this regard, a commentary can highlight the content of the provisions of the Kampala Convention, in order for states to effectively understand the nature and scope of measures they are required to adopt to protect and assist IDPs under the Convention. It will guide states in any future legislative amendments or reforms, and also guide states that are in the process of adopting legislative or other measures by helping them to effectively fulfil their obligations elements of the Kampala Convention.

In conclusion, states, the African Commission, international organisations, policy makers, and judges will be better able to fulfil their duty to protect and assist IDPs if they understand the normative content of the protections provided by the Kampala Convention.

Dr Omotunde Enigbokan has joined the Centre for Human Rights & Legal Pluralism (CHRLP) as an O’Brien Human Rights Fellow in Residence. She is a qualified lawyer and an expert in migrant’s and stateless person’s rights. Omotunde holds an LLD from the Centre for Human Rights, University of Pretoria, South Africa (September 2023). Her research interests focus on the intersection between birth registration, legal identity, prevention of statelessness and rights of refugees, migrants and internally displaced persons.

Omotunde worked as a research assistant and project coordinator on several migration projects while working in the Migrant’s Rights Unit of the Centre for Human Rights, University of Pretoria from 2019 to 2023. She worked as a research assistant to Dr Romola Adeola (former Assistant Director, Centre for Refugee Studies York University) on the Global Engagement Network on Internal Displacement in Africa (GENIDA) project which was an international collaboration between the Centre for Human Rights, University of Pretoria, South Africa, and the Refugee Law Initiative at School of Advanced Study, University of London, United Kingdom. She also worked as a research consultant on a project funded by the UNHCR Southern-African Bureau in partnership with the Centre for Human Rights, which focussed on ‘the application of African refugee law in the context of the effects of climate change, environmental degradation, and disasters, particularly their impact on “public order”. Omotunde also engages in advocacy missions to African countries, promoting the ratification of African human rights instruments.

She is among the expert contributors to African Guiding Principles on the Human Rights of All Migrants, Refugees and Asylum Seekers (2023). She has lectured severally on the international and African regional human rights laws on statelessness and nationality in the annual Advanced Human Rights Course of the Centre for Human Rights on the protection of forcibly displaced persons in Africa.

She is a valued member of an international research team for a Social Sciences and Humanities Research Council (SSHRC) Partnership Development Grant-funded project on Canada-South Africa Human Rights Engagement led by Prof Obiora Okafor and Prof Sylvia Bawa of York University, Toronto, Canada.

Omotunde holds an LLM from the University of Kwazulu-Natal South Africa and she is also a Refugee Law Initiative research affiliate of the School of Advanced study, University of London.”