By Gustave Niyonzima
First of all, before discussing the issue of repatriation of refugees in Burundi, let me first define legally what refugees are.
In accordance with Article 1 of the International Convention relating to the Status of Refugees of 14 December 1950, which came into force on 28 July 1951, refugees are people who flee war or persecution, often orchestrated by their country of origin, by crossing borders to seek refuge in another country. And these refugees are placed in a situation of great vulnerability and are not protected by their own government, which is often the source of the threats of persecution against them.
This is in stark contrast to IDPs who have not crossed an international border to find refuge but have remained within their own country. Even if they have had to flee for reasons similar to those of refugees (armed conflict, generalized violence), IDPs remain legally under the protection of their own government.
As for refugees in terms of asylum and refugee rights, Burundian refugees are governed and protected by the International Geneva Convention relating to the Status of Refugees of 14 December 1950, which entered into force on 28 July 1951, and the African Union Convention governing the specific aspects of refugee problems in Africa of 10 December 1969, which entered into force on 20 June 1974. These two conventions have the same legal scope and are almost identical.
However, the African Union Convention Governing the Specific Aspects of Refugee Problems in Africa allows signatory countries the possibility of receiving refugees en masse and granting them refugee status without a case-by-case examination, the so-called prima facie refugees.
Moreover, under both conventions, refugees have rights and duties on the same basis as nationals. They retain their rights and access to protection under both human rights law and international humanitarian law. Analysis by Maître Gustave NIYONZIMA, President of the Collectif des Avocats des Victimes de Crimes de Droit International Commis au Burundi (CAVIB) in exile.
Repatriation of refugees in the Burundian political context
UNHCR and its partners have facilitated the voluntary repatriation of Burundian refugees since 2017, the majority from Tanzania, with smaller numbers from the Democratic Republic of Congo (DRC) and Kenya. Until recently, almost all returns from Rwanda and Uganda were self-organised.
Following the conclusion of elections in Burundi in May 2020, increased interest in voluntary return was expressed by refugees living in several countries. Based on tripartite consultations and assessments to ensure the voluntariness of return, UNHCR began facilitating returns from Rwanda in August 2020 and resumed returns from DRC in September 2020. Repatriation is still proceeding normally.
From the legal point of view, at least if we refer to Article 5 of the African Union Convention Governing the Specific Aspects of Refugee Problems in Africa of 10 December 1969, which entered into force on 20 June 1974, it must be stated from the outset that no refugee may be repatriated against his or her will, and the essentially voluntary nature of repatriation must be respected in all cases.
Refugees who freely decide to return to their homeland on the basis of such assurances or on their own initiative should receive all possible assistance from the country of asylum, the country of origin, and from voluntary agencies, international and intergovernmental organizations, to facilitate their return.
Regardless of the provisions of international refugee law, some countries, because of their political affiliation with Burundi, do not promote respect for the 1951 Geneva Refugee Convention and the African Union Convention Governing the Specific Aspects of Refugee Problems in Africa of 20 June 1974.
This is the case in Tanzania, where the authorities have committed serious abuses against Burundian refugees and asylum seekers.
The fate of several victims of enforced disappearance is still unknown, and other Burundians have suffered similar abuses.
Between October 2019 and June 2021, Tanzanian police and intelligence services forcibly disappeared, tortured and arbitrarily detained at least 300 Burundian refugees. Some have been released, others remain unaccounted for, and the Tanzanian authorities have returned more than 50 others to Burundi in violation of Article 33 of the 1951 Geneva Refugee Convention.
The enforced disappearances of Burundian refugees and asylum seekers in Tanzania by the Tanzanian authorities are heinous crimes, particularly because of the anguish and suffering caused to family members, many of whom have fled similar abuses in Burundi.
Legally speaking, the Tanzanian government should urgently and impartially investigate allegations that Burundian refugees have been abducted, tortured or illegally handed over to the Burundian authorities, and ensure that those responsible are brought to justice. What is deplorable is that nothing is done, all the perpetrators remain unpunished because of the bilateral relations between Burundi and Tanzania.
Obstacles and impediments of the Burundian political system to Burundian refugees’ return to Burundi
More than thousands of Burundian refugees live in camps in neighbouring countries including Tanzania, Rwanda, DRC, Uganda and Kenya. Many fled the violence after former president Pierre Nkurunziza decided to run for a disputed third term in 2015.
Today, the Government of Tanzania is pressuring the refugees to return to Burundi.
The hate speech propagated by the regime, in the absence of independent media and civil society organisations, creates fertile ground for the development of murderous extremism. Resentment is building up and, above all, the government is trying to ethnicise its military power and strengthen its own Imbonerakure militia.
Despite the repatriation during these days, those who return live in fear of being eliminated one by one, as is the case of the many examples already reported in different parts of the country, as well as those who have been released via presidential pardon.
Other refugees who cannot afford to return are pinning their hopes on a better life abroad, through naturalisation in their country of asylum, or resettlement to a country in the North via the United Nations High Commissioner for Refugees (UNHCR).
In short, despite the arrival in power of Evariste Ndayishimiye and the return of some refugees, many Burundians in exile prefer not to return home yet because they still fear for their safety.
Cases of forced disappearances, atrocious torture, targeted assassinations and illegal imprisonment are commonplace. And the victims are only political opponents and people of opinion (members of the CNL, ex-FAB Tutsi etc.).
In these speeches, President Evariste Ndayishimiye contradicts himself from day to day by saying one thing and its opposite, which undermines the confidence of the refugees themselves who prefer to remain in exile.
The lessons to be learnt are that there are notable episodes of violence in the Great Lakes Region that generate a lot more refugees. The consequences of these conflicts persist and the birth and presence of armed groups is noticeable and makes the context ever unstable until there is even a consequent deterioration of relations between neighbouring countries, affecting the movement of people and goods and the potential for cooperation in the region. If the international community or the countries concerned that have cleared out their own citizens do not take the refugee issue as a priority, there will always be refugees in the Great Lakes region and these same countries. This situation risks fuelling a vicious circle of violence, especially as the reality of the region has shown us that the majority of leaders were themselves refugees before turning to rebellions.
Recommendations
Spaces for dialogue are much more emphasised as factors that contribute most to reconciliation. Dialogue and mediation should take precedence over coercion and confrontation in order to bring about the repatriation and rehabilitation of refugees. In addition to these spaces for dialogue and mediation, common interest projects between neighbouring countries should be promoted as another important factor for reconciliation. And the fight against impunity, bringing the perpetrators before the courts and ensuring that the victims receive fair justice is a real way of resolving the refugee issue.
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