Court stands firm on Rwandan’s refugee status

FORMER Rwandan general Faustin Kayumba Nyamwasa, who stands accused of war crimes in his country, and his family are safe in South Africa – for now.

This is after an attempt by the Consortium for Refugees and Migrants in South Africa (Cormsa) for leave to appeal against his refugee status.

The NGO, with the support of the South-African Litigation Centre (Salc), turned to the Pretoria High Court yesterday for leave to appeal against an earlier order in which Judge Nomonde MngqibisaThusi confirmed Nyamwasa’s refugee status.

Cormsa asked the court to overturn the decision by the Crown Mines refugee centre to grant Nyamwasa and his family refugee status.

It was argued at the time that the South African authorities exceeded their public powers by granting refugee status to Nyamwasa, as he was accused of war crimes and sentenced to life imprisonment by the Rwandan military court for alleged grenade attacks in Kigali, the capital, in 2010.

He is also the subject of three separate extradition requests from Rwanda, France and Spain.

Nyamwasa and his family fled to South Africa early in 2010 after he fell out of favour with Rwandan President Paul Kagame.

An attempt to assassinate him was made in Johannesburg, after which he and his family were granted refugee status.

Cormsa objected to this, stating that he did not qualify for refugee status. It was also said that the South African government failed to comply with the country’s international obligations in terms of UN conventions and protocol.

The court was told that in granting him refugee status, it would open the floodgates to others in the same position.

In danger

Judge Mngqibisa-Thusi at the time refused to overturn his refugee status and said if he returned to Rwanda, his life could be in danger. She could also not find any error on the part of the government in granting him and his family refugee status.

Gilbert Marcus SC, appearing for Cormsa, asked for leave to appeal and said the judge erred in confirming his refugee status.

It was argued that according to international and domestic refugee law, suspected perpetrators of war crimes and crimes against humanity were not entitled to refugee status.

Marcus argued that Nyamwasa had been implicated in these types of crime and was the subject of various extradition requests, yet he was granted refugee status.

Salc said the case raised a number of issues, including the proper interpretation and administration of South Africa’s Refugees Act in accordance with international law and the detection and apprehension of persons accused of international crimes.

It was said that South Africa had an obligation to ensure that it did not become a safe haven for perpetrators of these crimes.

On the other hand, it was argued on behalf of the government that the allegations against the general were nothing more than allegations as nothing was proved. The judge was told that in terms of the Bill of Rights, South Africa had an obligation not to extradite people who could face persecution in their country of origin. To take away Nyamwasa's refugee status would simply result in his being illegally in the country, it was said.

Judge Mngqibisa-Thusa, in a short judgment, refused leave to appeal. She said she was not convinced that another court would come to a different finding.

Salc, however, vowed to take the matter directly to the Supreme Court of Appeal in Bloemfontein.