Uganda is one of the top refugee-hosting nations in the world. This has been attributed especially to its progressive refugee legal framework that opens its doors to all asylum seekers, irrespective of their nationality or ethnic affiliation. Importantly, this framework stipulates specific rights such as the right to a fair hearing.
The Constitution of Uganda undoubtedly emphasizes the right to a fair hearing as a prerequisite to the determination of a civil right – in this case, the determination of the grant of refugee status. The core idea implicit in this right was solely that a party ought to be given adequate opportunity to make his or her statement in explanation of any question and answer any arguments put against him or her. Article 44 of the constitution clearly guarantees the right to a fair hearing as one which must not be subject to derogation. Similarly, Section 24(2) of the Refugee Act No.47 of 2006 specifically spells out an asylum seeker’s right to a fair hearing during the consideration of his or her application.
With such procedural guidance clearly on the books, one would hope that claims by asylum seekers for refugee status would be determined upon according them a fair hearing and on the basis of the facts shared, and in accordance, with the law. On the contrary, administrative decisions, such as the refugee status determination, have been cordoned off by overuse or misuse of power by bodies or officials charged with the welfare of asylum seekers and refugees. This has often been done with impunity.
A case in point is the directive by the Minister for Relief, Disaster Preparedness and Refugees, ordering official focal persons and bodies in the refugee status determination process to stop and close all applications for grant of refugee status by Pakistani asylum seekers. This was following suspicion that they could be coming into the country as “fortune seekers” so they do not qualify to be registered as refugees in Uganda. Such rhetoric is an emblematic manifestation of Uganda’s attempts to systematically deter Pakistanis from seeking asylum.
In contrast to the Minister’s suspicion, most of the Pakistani asylum seekers affected by his directive are Ahmadiyya Muslims (Ahmadis) who fled Pakistan because of religious persecution. Although Ahmadis identify themselves as Muslims, an amendment to the Constitution of Pakistan in 1974 declared the Ahmadis as non-Muslims. This provision is still embedded in the current Constitution which is incompatible with Article 2 of the 1992 United Nations Declaration on Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, which stresses the right to profess and practice one’s religion without interference or any form of discrimination.
In addition to the Constitution, Pakistan’s Parliament has enacted stringent blasphemy laws, the centerpiece of which is Section 295 of the Pakistan Penal Code Act, which provides for penalties for “offenses against religion,” ranging from hefty fines to a death sentence. This has undoubtedly been used as a State’s tool for religious persecution of religious minority groups like Ahmadis who have been forced to flee severe violations of religious freedom.
In this context, the Pakistani asylum seekers (Ahmadis in particular) have a genuine claim of religious persecution as a reason of persecution on a basis on which refugee status can be recognised. Like other asylum seekers of different origins and as of right, Pakistani asylum seekers should be subjected to the administrative process of refugee status determination under Section 24(2) of the Refugee Act which process exhibits fairness if strictly followed. Most importantly, proceedings that comprise of questions of determination of civil rights as this, should ordinarily be resolved by appropriate application of the law to the facts and not the exercise of ministerial discretion.
The directive by Minister to stop and close all applications for grant of refugee status by Pakistani asylum seekers without observing the statutorily laid out procedure for refugee status determination is in my view a breach of the rules of natural justice (which entails a right to fair hearing) and amounts to procedural impropriety – which must not pass unchallenged before the courts of law.
This does not mean that ‘fortune seekers’ disguising as asylum seekers do not exist; not at all, but we shouldn’t allow those in authority like the Minister, to exploit these vices as opportunities to misdirect themselves in law and improperly purport to exercise power that they do not have. That way, we shall inculcate a culture where those in authority exercise the powers conferred on them reasonably, in good faith, and without exceeding the limits of such powers.
Bwambale Asiimwe Micheal (@MicBwambale) is a human rights lawyer working with the Refugee Law Project-Center for Forced Migrants, at Makerere University School of Law, under the Access to Justice Programme. Click here to email.