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Ahmr vol 4(1) final press

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AHMR is an interdisciplinary peer-reviewed on-line journal created to encourage and facilitate the study of all aspects (socio-economic, political, legislative and developmental) of Human Mobility in Africa. Through the publication of original research, policy discussions and evidence research papers AHMR provides a comprehensive forum devoted exclusively to the analysis of contemporaneous trends, migration patterns and some of the most important migration-related issues. Editorial board members are selected based on their knowledge and experience related to the topic, analytic perspective and/or methodologies. AHMR contributes to SIHMA’s overall goal of enhancing informed migration policies able to ensure the rights and dignity of migrants, asylum seekers and refugees in Africa.

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Ahmr vol 4(1) final press

  1. 1. AFRICAN HUMAN MOBILITY REVIEW Volume 4 Number 1 January – April 2018 The Regularization of Zimbabwean Migrants: a Case of Permanent Temporariness Sergio Carciotto Exploring the Relationship Between Hutu Refugees’ Protracted Situation and Insecurity in the Great Lakes Region Callixte Kavuro The Lagos Experience: Evidence of the Circularity of Northern Male Migrants in Nigeria Adebayo O. Makanju and Alex E.Uriri Whose agenda? Bottom up Positionalities of West African Migrants in the Framework of European Union Migration Management Lothar Smith and Joris Schapendonk
  2. 2. ii AHMR _________________________________________________________________________________ Chief Editor Prof Mulugeta F. Dinbabo University of the Western Cape, South Africa Board Members Dr Beneberu Assefa Wondimagegnhu Bahir Dar University, Ethiopia Dr Delali Margaret Badasu University of Ghana, Ghana Dr Edmond Agyeman University of Education, Winneba, Ghana Dr Ernest Angu Pineteh University of Pretoria, South Africa Dr Joseph Yaro University of Ghana, Ghana Prof Laurence Piper University of the Western Cape, South Africa Dr Linda Oucho African Migration and Development Policy Centre, Kenya Prof Loren Landau University of Witwatersrand, South Africa Dr Lothar Smith Radboud University, Netherlands Dr Meselu Alamnie Mulugeta Bahir Dar University, Ethiopia Prof Raul Delgado Wise Universidad Autónoma de Zacatecas, Mexico Dr Razack Karriem University of the Western Cape, South Africa Dr Sharon Penderis University of the Western Cape, South Africa Prof Simon Bekker University of Stellenbosch, South Africa Prof Shimelis Gulema Stony Brook University, New York Prof Thomas Faist Bielefeld University, Germany ____________________________________________________________________________________ AHMR is an interdisciplinary peer-reviewed on-line journal created to encourage and facilitate the study of all aspects (socio-economic, political, legislative and developmental) of Human Mobility in Africa. Through the publication of original research, policy discussions and evidence research papers, AHMR provides a comprehensive forum devoted exclusively to the analysis of contemporaneous trends, migration patterns and some of the most important migration-related issues. AHMR is published by the Scalabrini Institute for Human Mobility in Africa (SIHMA) a member of the Network of the Scalabrinian Centers for Migration Studies, with institutions in New York, Paris, Rome, Buenos Aires, Sao Paulo and Manila. Articles and reviews in AHMR reflect the opinions of the contributors. All rights reserved. No part of this publication may be reproduced without the written permission from the publisher. ISSN 2410-7972 (online) ISSN 2411-6955 (print). Webpage: www.sihma.org.za Copyright © 2018 by the SCALABRINI INSTITUTE FOR HUMAN MOBILITY IN AFRICA 47, Commercial St, 8001 Cape Town – South Africa Tel. 0027 021 461 4741, Email: editor@sihma.org.za
  3. 3. Volume 4 Number 1 January – April 2018 iii African Human Mobility Review ___________________________________________________________________________ Volume 4 Number 1 January – April 2018 1101 The Regularization of Zimbabwean Migrants: a Case of Permanent Temporariness Sergio Carciotto 1117 Exploring the Relationship Between Hutu Refugees’ Protracted Situation and Insecurity in the Great Lakes Region Callixte Kavuro 1140 The Lagos Experience: Evidence of the Northern Male Circulatory Migrants in Nigeria Adebayo O. Makanju and Alex E.Uriri 1175 Whose Agenda? Bottom up Positionalities of West African Migrants in the Framework of European Union Migration Management Lothar Smith and Joris Schapendonk
  4. 4. Volume 4 Number 1 January – April 2018 1101 The Regularization of Zimbabwean Migrants: a Case of Permanent Temporariness Sergio Carciotto* Abstract Since the early 2000s there has been a proliferation of policy initiatives in high income countries to attract highly skilled migrants who are perceived to be net contributors to host societies. Generally, highly skilled migrants enjoy numerous socio-economic opportunities and benefit from fast-track procedures to switch from temporary visas to permanent residency. South Africa has sought to capitalize on this trend through domestic legislation and policy that promotes economic growth by facilitating the admission of highly skilled workers. However, these measures have also prevented low-skilled workers from applying for permanent residency, irrespective of their length of time in the country. These policies beg the question whether it is morally acceptable for a liberal democracy to deny a pathway to permanent residency based on skill level. The paper draws on Joseph H. Carens’ theory of citizenship and the principle that “the longer one stays in a society, the stronger one’s claim to remain.” It uses the example of the Dispensation for Zimbabwean Project, a large regularization programme for temporary workers introduced in South Africa in 2010 to argue that temporary status should not be “permanent,” but should lead to permanent residency after a period of time. Keywords Permanent residence, temporary migration, dispensation for Zimbabwean project, ethics. Introduction In his article titled “Back to the future? Can Europe meet its labor needs through temporary, migration?” Stephen Castles inquires whether temporary worker schemes introduced in Europe in the 2000s would resemble past guest worker programs which were abolished in 1974. Such programmes provided employers with young unskilled workers who were unmarried or had left their families at home and worked on a “rotation basis” (Rotationsprinzip) in agriculture, construction, mining, and manufacturing (Jurgens, 2010:348). His *Associate Director at the Scalabrini Institute for Human Mobility in Africa (SIHMA). Email: director@sihma.org.za
  5. 5. Volume 4 Number 1 January – April 2018 1102 answer to the question is no. However, he argues that “some current approaches do share important common features with past guest worker programs, especially through discriminatory rules that deny rights to migrant workers” (Castles, 2006:1). Castles further observes that unlike older guest worker programs, immigration policies and temporary migration schemes in Europe target highly skilled migrants, while restricting entry for less qualified workers and limiting their rights. With regard to working conditions, Castle writes, “lower-skilled workers experience highly restrictive conditions, with limitations on duration of stay and the right to change jobs” (Castles and Ozkul, 2014:30). They face exploitation and abuses, “have a time-limited right to residence and employment in the host country and time spent in employment as a guest worker usually does not count or help them to earn permanent residence rights” (Ruhs and Martin, 2008:250). Temporary migrant workers, particularly low-skilled migrants, are treated as “second-class citizens” at risk of becoming part of a new model of “indentured servitude” (De Genova as cited in Castles, 2014:41). Temporary forms of migration raise a normative question about the socio- economic rights of those who are neither citizens nor long-term residents. They also pose the question of whether the number of years spent in a country should be considered a legitimate and morally acceptable criteria to access permanent residency. If the answer to this question is no, as some argue, temporary workers should not be able to qualify for permanent residency, irrespective of how long they have been in the host country. The term “temporary migrant” refers here to migrant workers employed in low-skilled jobs and excludes other categories of temporary migrants such as asylum seekers, highly skilled workers, foreign investors and international students, to whom many countries offer a fast-track from temporary to permanent residency and full socio-economic rights. Temporary Workers and Rights As noted by Ruhs (2012:1288) “the question about rights involves questions about the rights migrants should receive after admission and whether and how these rights should change over time.” He further argues that the legal rights of migrants depend on their immigration status in the host country and that selective immigration policies are used to “tightly regulate migrants” access to citizenship status and to specific citizenship rights’ (ibid:1288). Some theorists (Ruhs and Martin, 2008) argue that denying temporary low-skilled
  6. 6. Volume 4 Number 1 January – April 2018 1103 workers equal rights is justified by economic needs. They maintain that there is, in fact, a “trade-off, i.e. an inverse relationship between the number of migrants employed in low-skilled jobs in high-income countries, and the rights afforded these migrants. The primary reason for this trade-off is that employer demand for labor is negatively sloped with respect to labor costs, and that more rights for migrants typically means higher costs.” (ibid: 251). In this kind of situation, both employers and migrant workers have something to gain: the former benefits from a reduction in labor costs or to meet a labor shortage, while the latter has an opportunity to migrate safely and legally. According to the “number-rights/trade-off principle” described above, granting more employment rights to migrant workers would simply reduce employers’ demand and, therefore, the number of low-skilled migrants legally employed. Others (Bell, 2006) have argued that a system of unequal rights, as in the case of East Asia, is tolerable because migrant workers accept terms and conditions of employment before they go abroad. This raises the question whether temporary migrants “are better off because they are more likely to be employed or less well off because they endure poorer working conditions” (Fauvelle-Aymar, 2015:14). This paper argues that temporary workers should enjoy the same employment rights that citizens and permanent residents possess. A contractual approach to temporary migration might, in fact, be convenient from the point of view of practical politics, but it cannot be justified on moral grounds as it tolerates a system of “second class” residents with fewer rights. But nonetheless, if those migrants who enter into this kind of working agreement do so voluntarily and, therefore, are willing to receive less rights, this should only be temporary and limited to short term non-renewable visas. An exploitative system where migrant workers’ rights are restricted ad infinitum would not be acceptable and should not be justified even when migrants are willing to accept fewer rights. The question about what rights migrants should receive after their admission and how these rights should change over time remains a highly contentious issue. Political theorist Joseph H. Carens (2008a; 2008b; 2008c; 2013) provides an answer to this ethical dilemma. He notes that democratic states can admit migrants for a limited period of time and restrict their access to public assistance programs but other restrictions are morally problematic. His argument is based on the assumption that the claim to be a member of a political community grows as time spent in a country increases, irrespective of the condition of sojourn or immigration status. Moreover, democratic
  7. 7. Volume 4 Number 1 January – April 2018 1104 legitimacy “lies upon the inclusion of the entire settled population, including those migrants who have spent numerous years in a society and deserve to be included in the citizenry” (Carens, 2008b:22). Membership acquired over an extended period of time spent in a society explains why prolonged temporary status ought to lead automatically to permanent residency first and to citizenship (naturalization) afterwards: [I]f people admitted to work on a temporary visa have no other moral claim to residence than their presence in the state, it is normally reasonable to expect people who have only been present for a year or two to leave when their visa expires. On the other hand, if a temporary visa of this sort is renewed, it ought at some point to be converted into a right of permanent residence. That is also the implication of the principle that the longer the stay, the stronger the claim to remain. (Carens, 2008a:422). The importance of continuous residency leading to permanent residency is echoed by Mares (2017:20) who notes that “the starting point for a consistent liberal response to temporary migration must be a pathway to permanent residence that is, after a certain period of time, unconditional.” It therefore follows that, according to Carens’ point of view, temporary workers must not be allowed “to morph into a permanent underclass” (UN General Assembly, 2017:10) and should enjoy the same universal legal rights as native workers. He argues that after a given time (five to ten years) the moral claim of temporary workers for permanent residency and citizenship can be considered legitimate. Carens’ theory of citizenship, labeled social membership, is based on the principle that “the longer a person stays, the stronger is his or her claim to remain” (Carens, 2008a; 2008b; 2008c). Still the main question remains. Is it legitimate for temporary migrants to acquire, after a set number of years, the legal rights afforded to citizens and long-term residents? Let me try to answer this question with a concrete example: the Dispensation of Zimbabweans Project approved by the Cabinet in South Africa in 2009. The Regularization of Zimbabwean Migrants From 2008 to 2011, South Africa received the highest number of individual asylum applications globally, with a peak of over 300,000 applications in 2009 (Table 1) making it the world’s largest recipient of asylum seekers that year. This fact caused delays in adjudication times and allowed economic migrants without a legitimate asylum claim to reside and work legally in the country.
  8. 8. Volume 4 Number 1 January – April 2018 1105 The increase in asylum claims led the Department of Home Affairs “to implement restrictive practices and policies, stemming both physical access at the border and at the refugee reception offices (RROs), as well as access to protection in adjudication procedures” (Johnson and Carciotto, 2016:169). Table 1: Number of Asylum Applications Filed Annually in South Africa, 2008-2011 Year Asylum Seekers 2008 207,206 2009 341,609 2010 124,336 2011 106,904 2012 85,058 2013 70,010 2014 71,914 2015 62,159 2016 35,377 Source: Adapted from Department of Home Affairs, Annual Asylum Statistics In response to this crisis, one policy adopted to ease the pressure on the asylum system was the implementation of a large regularization program for Zimbabwean nationals in South Africa. In 2009, the Cabinet approved the Dispensation of Zimbabweans Project – or ‘DZP’ – allowing Zimbabwean holders of this special permit to work, conduct business and study in South Africa. At the launch of the DZP in 2010, the Department of Home Affairs (DHA) estimated that there were approximately 1.5 million undocumented Zimbabweans in South Africa (Bimha, 2017).
  9. 9. Volume 4 Number 1 January – April 2018 1106 The DZP relaxed the normal requirements for work, study, or business permits. Applicants were required to submit a valid Zimbabwean passport, evidence of employment in the case of a work permit, evidence of business in the case of an application for a business permit, and an admission letter from a recognized learning institution in the case of a study permit (Amit 2011). The objectives of the ‘DZP’ then were to: a) regularize Zimbabweans residing in South Africa illegally; b) curb the deportation of Zimbabweans who were in South Africa illegally; c) reduce pressure on the asylum seeker and refugee regime, and d) provide amnesty to Zimbabweans who obtained South African documents fraudulently. Just over 245,000 non-renewable temporary permits were issued with a validity of four years. In August 2014, four months before the expiration date of the Zimbabwean special permits (31 December 2014), the Minister of Home Affairs announced the launch of a new Zimbabwean Special Dispensation Permit (ZSP) targeting DZP permit-holders who wished to remain in South Africa after the expiry of their permits. The ZSP allowed permit-holders to live, work, conduct business and study in South Africa for an additional three years until 31 December, 2017. Despite having announced in 2016 that the ZSP would be terminated at the end of 2017, the DHA later announced the availability of the new Zimbabwean Exemption Permit (ZEP) which allowed ZSP holders to work, study and conduct business for an additional period of four years until 31 December 2021. The then Minister of Home Affairs, Hlengiwe Mkhize, remarked that the ZEP was in line with the White Paper on International Migration Policy, approved by the Cabinet in 2017, and was part of a larger effort to address the inflows of low-skilled labor migrants from neighboring South African Development Community (SADC) countries. This is not the first time that South African government has attempted to address the issue of irregular migration within the region: between 1995 and 2000 three regularization projects for contract and undocumented migrant workers from SADC countries were implemented. However, unlike the three previous regularizations which “were designed to give target populations permanent residence status in South Africa” (Peberdy, 2001:20), the DZP, ZSP and ZEP programmes did not allow permit-holders to apply for permanent residence despite their long, continuous tenure in the country. This exclusionary practice raises numerous concerns. Given the fact that “the eligibility criterion for accessing most social assistance benefits is South African citizenship or
  10. 10. Volume 4 Number 1 January – April 2018 1107 permanent residence” (Deacon, et al., 2014) the lack of a pathway to permanent residency restricts migrants’ access to social benefits. In South Africa, all temporary workers are excluded from accessing social assistance, are not entitled to claim unemployment funds and are excluded from accessing unemployment insurance if they are ill or on maternity or adoption leave (ibid, 2014:24). Access to housing and basic education for temporary workers is also restricted by the government (See Table 2). Moreover, low-skilled temporary workers are much more likely to occupy low-wage, precarious jobs than South Africans (ACMS, 2017). In addition, temporary workers are tied to a specific kind of work and are not allowed to change employers. Such restrictions can make migrant workers vulnerable, as recounted by a Zimbabwean national who was granted a permit to work as a gardener under the DZP dispensation and later secured a job in the construction industry: I worked for a month at the construction site because it paid better than working as a gardener. After the first month we were taken to Kimberley to do some work for a few weeks. However, when we got there we encountered people from Home Affairs who were checking for papers [legal documentation]. I was immediately arrested because I was doing a job that was not mentioned in my permit. It was a nightmare. I was told that I would be deported but it took long for me to be deported. I spent one and a half months at a holding centre in Kimberley. They keep you there for some time till they have arrested enough people to fill a truck. (Deacon, et al., 2014:50). The Constitution of South Africa guarantees equality before the law and the right to equal protection and does not justify discrimination based purely on residency. Yet temporary low-skilled workers are vulnerable to exploitation and are not afforded equal protection. Regularization programmes such as the ZDP, the ZSP and the ZEP address permanent labor shortages and fill permanent jobs with temporary workers. Such workers should not be denied a path to permanent residency.
  11. 11. Volume 4 Number 1 January – April 2018 1108 Source: adapted and updated from Mpedi (2011) The 2017 White Paper on International Migration The Immigration Act of 2002 provides for various types of temporary visas with worker rights, and makes holders of work visas eligible for permanent residency after a period of five consecutive years. Section 31(2)(b) of the Act allows the Minister of Home Affairs “to grant, under specific terms and conditions, a foreigner or a category of foreigners the rights of permanent residence for a specified or unspecified period when special circumstances exist which should justify such a decision.” (South Africa, 2002). Provided certain conditions are met, this system “effectively creates automatic qualification for permanent residency and subsequently for citizenship. Thus one of the main criteria used to qualify for permanent residency is the period of stay in the country, irrespective of the type of temporary residence visa initially issued, or purpose of entry” (DHA, 2017:41). However, the 2017 White Paper on International Migration seeks to modify this approach so that the guiding principle to grant permanent residency and naturalization would be the type of residence visa rather than the number of years spent in the country. This policy framework -- which restricts citizenship rights for temporary low- skilled migrants-- is morally questionable and contravenes the principle that “the longer the stay, the stronger the claim to full membership in society and to the enjoyment of the same rights as citizens.” Table 2. Access to social services and benefits in South Africa for different categories of residents Social Assistance Pensions Unemployment Benefit Health Care Public Housing Public School Citizen Yes Yes Yes Yes Yes Yes Permanent Resident Yes Yes Yes Yes Yes Yes Temporary Resident No Yes No Yes No No
  12. 12. Volume 4 Number 1 January – April 2018 1109 The White Paper was approved by the Cabinet in March 2017 with the aim of providing a policy framework to guide the review of immigration and related legislation. According to the South African government, the rationale for an overhaul of migration legislation is the economic, social and legislative changes that have occurred in South Africa during the past eighteen years. The White Paper attempts to respond to the needs of a country that has become a major destination for economic migrants, refugees, students, cross-border traders and entrepreneurs from Africa and the rest of the world. It recommends strategic interventions in eight policy areas: management of admission and departure; management of residency and naturalization; management of international migrants with skills and capital; management of ties with South African expatriates; management of international migration within the African context; management of asylum seekers and refugees; management of the international process for international migrants, and; management of enforcement. The White Paper argues that the current system fails to address the challenges posed by mixed migration flows from neighboring countries “with regard to semi-skilled and unskilled economic migrants, who have been largely unable to obtain visas and permits through the mainstream immigration regime” (ibid:52). This system has had some negative consequences, including a national asylum system overwhelmed and abused by economic migrants, the exploitation of African workers by some South African employers, corruption by police and immigration officials, and costly and ineffective deportation measures. In line with the National Development Plan (NDP) the new migration policy seeks to attract, acquire, and retain the necessary skills by recruiting migrants in a more strategic way in order to achieve national priorities and economic growth. It attempts to align South Africa’s international migration policy with its African-centered foreign policy to better address economic migration of low-skilled and unskilled migrants from the SADC region. To address the growth of undocumented migration and the existing gaps in legislation, the White Paper suggests three strategic initiatives to improve the management of low-skilled economic migrants by expanding the current visa regime (ibid: 56). First, a new SADC visa would be tied to a programme to regularize existing undocumented SADC migrants residing in South Africa along the same lines as the ZSP and other amnesties that South Africa has conducted over the years.
  13. 13. Volume 4 Number 1 January – April 2018 1110 Second, the White Paper would expand the visa regime to address economic migration from neighboring countries. At least three types of visas are recommended for piloting. The SADC special work visa would allow the holder to work in South Africa in a specific sector for a prescribed period of time. It would be based on a quota-regime implemented through bilateral agreements. The number of visas would be based on labor market dynamics like employment levels and the share of jobs held by foreign nationals. The SADC traders’ visa would be a long-term, multiple-entry visa for cross border traders who frequently enter and exit the Republic. The SADC small medium enterprise (SME) visa would be available for the self-employed and for small business owners. Third, the White Paper provides for stronger enforcement of immigration and labor laws. It seeks to strengthen the enforcement of labor and migration laws in order to ensure fair employment practices and that unscrupulous employers do not pay lower wages to migrants. One of the most significant features of these new temporary schemes for low- skilled migrants is the absence of pathways to permanent legal status. At present, the Immigration Act of 2002 allows holders of certain temporary residence visas under specific conditions to apply for a permanent residence permit and subsequently for citizenship. Thus, access to permanent residency is based on the number of years spent in the country, irrespective of the type of temporary visa initially issued. In the government’s view, this approach “does not allow the granting of residency and naturalization to be used strategically” (ibid:42) and in the best interest of national priorities. Hence, there should not be any automatic progression from residency to citizenship, in order to “dispel a misconception that immigrants have a constitutional right to progress towards citizenship status on the basis of a number of years spent in the country” (ibid:42). In the future, long-term visas may replace permanent permits and be granted only to those migrants who possess high levels of human and financial capital. This new policy will mean that highly skilled workers, investors and international students graduating in critical skill occupations will receive preferential admission conditions and easy access to permanent residency, while temporary low-skilled migrants will not. Thus, the White Paper would negatively impact the rights and social conditions of temporary low-skilled African migrants, who will no longer have
  14. 14. Volume 4 Number 1 January – April 2018 1111 the right to settle permanently. The granting of permanent residency based on highly selective criteria is, in fact, a tool to control and restrict access to civic, political and social rights, including the substantive rights of citizenship. The planned measures to introduce a new visa regime for low-skilled temporary workers acknowledge the demand for low-skilled workers in specific economic sectors, as well as the existence of prevailing colonial circular movements and migration patterns to South Africa. However, this policy plan falls short in addressing issues of “employee portability rights” for temporary contract workers and gives the impression of replicating circular and temporary schemes “which tie migrant workers to certain sectors and employers for a pre-defined period of time, limiting the duration of stay and the right to change job” (Castles, 2014:41). Furthermore, the idea presented in the White Paper of delinking permanent residency from the duration of stay is problematic and morally questionable. This policy runs afoul of human rights and the common good, which demand policies that benefit all members of a given community. In this regard, “long- term settlement does carry moral weight and eventually even grounds a moral right to stay that ought to be recognized in law” (Carens, 2008b:36). Conclusion In South Africa, temporary and exploitative forms of migration date back to colonial times when migrant workers were considered a source of cheap labor for white-owned farms and mines, thus setting the foundation for separate development and the apartheid regime. Since the inception of democracy in 1994 and particularly over the past two decades, South Africa has undergone a protracted process of developing policy and legislation on migration. One of the key policy documents issued by the South African government is the White Paper on International Migration, which supports the enlargement of the current visa regime through the implementation of regularization programmes to accommodate temporary low-skilled workers and reduce the influx of undocumented migrants from neighbouring countries. Examples of these interventions are the Dispensation for Zimbabwean Project, the Zimbabwean Special Dispensation and the Zimbabwean Exemption Permit to regularize migrant workers in South Africa. Originally meant to last only for a period of four years, these programmes, which allow temporary migrants to be employed in different areas such as the hospitality and construction industries, are, at the time of writing, in their
  15. 15. Volume 4 Number 1 January – April 2018 1112 eighth year of implementation. Such programmes do not intend to address short term labor shortages in South Africa, as the nature of the work that permit-holders conduct is not temporary. Yet permit holders will be excluded from a pathway to permanent residency. The fact that after a long period of time Zimbabweans are not allowed to graduate to a permanent legal status under the law indicates how recent policy interventions in South Africa aim to weaken the nexus between the continuous period of residence in the country and permanent residency. This contravenes Carens’ ethical principle that “the longer people stay in a society, the stronger they are morally entitled to the same civil, economic, and social rights as citizens, whether they acquire formal citizenship status or not” (Carens, 2013: 89). According to Carens’ theory of social membership, the claim to membership grows over time and it is the length of residence, not the legal status that is the key moral variable. Moreover, democratic legitimacy rests upon the meaningful participation in civic life of the entire population, including temporary workers who have spent a large part of their lives in the country. Temporary schemes such as the DZP, the ZSP and the ZEP do not resemble European guest worker programmes aimed at filling the demand for cheap labor which were abolished in the late 1970s. However, they introduce limitations on the right to change jobs and to access some work-related social programs. The limitation of certain legal rights (e.g., right to vote or to hold high public office) is justifiable when temporary migrants are only permitted to remain for a limited time but not when temporary visas are renewed numerous times for multiple consecutive years. In this case, at some point, temporary visa holders should be converted into permanent residence and temporariness should come to an end. Non-access to permanent residency, in fact, makes migrant workers more vulnerable and their “temporary status” creates barriers to a meaningful assertion to work-related and social rights. Recommendations Temporary labor schemes represent one of the most controversial topics addressed by the Zero Draft of the Global Compact for Safe, Orderly and Regular Migration, which was released by the United Nations on 5 February 2018. The following recommendations on these programs are drawn from the TEN ACTS document drafted by civil society and the 20 Action Points prepared
  16. 16. Volume 4 Number 1 January – April 2018 1113 by the Vatican Dicastery for Promoting Integral Human Development’s Section on Migrants and Refugees. 1. Ensure that all migrants are protected by their countries of destination, in order to prevent exploitation, forced labor and human trafficking. This can be achieved by prohibiting employers from withholding employees’ documents; by ensuring access to justice for all migrants, independently of their legal status and without negative repercussions on their right to remain; by ensuring that all immigrants can open a personal bank account; by establishing a minimum wage applicable to all workers; and by ensuring that wages are paid at least once a month. 2. The integrity and well-being of the family should always be protected and promoted, independently of legal status. This can be achieved by embracing broader family reunification (grandparents, grandchildren and siblings) independent of financial requirements; allowing reunified family members to work; undertaking the search for lost family members; combating the exploitation of minors; and ensuring that, if employed, minors’ work does not adversely affect their health or their right to education 3. Strengthen the role of the International Labour Organization (ILO), in cooperation with other international agencies, to ensure public availability, transparency, accountability, and human rights norms and standards in bilateral, regional and international agreements on labor mobility, rights and decent work; ensure the implementation of these agreements; and ratify, implement and cooperate transnationally on the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, as well as other human and labor rights conventions. 4. Ensure that all recruitment-related fees are borne by the employer, not the migrant worker; operationalize international standards and cooperation to regulate and monitor migrant labor recruitment and employment; and eliminate abuses of migrant workers and the use of forced labor in supply chains. 5. Enact national policies that provide foreign residents with access to justice, regardless of their migratory status, allowing them to report
  17. 17. Volume 4 Number 1 January – April 2018 1114 human rights abuses and violence without fear of reprisal, including abuses suffered in detention and deportation. 6. Access to welfare should be assured to all migrants, respecting their right to health and basic healthcare independent of legal status, and ensuring access to national pension schemes and the transferability of benefits in case of moving to another country. 7. Implement the SADC Protocol on the Facilitation of the Free Movement of Persons, the draft Protocol on Employment and Labour, and the SADC portability of Social Security Benefits Framework. 8. Include provisions for low-skilled workers in regional labor mobility protocols and assure that labor migration programs guarantee full labor rights and protections for migrants. 9. Ensure that anyone who is allowed to remain in the country for more than a specific time is allowed to graduate to a permanent legal status. On this topic, the Zero Draft of the Global Compact for Safe, Orderly and Regular Migration falls short as it does not encourage the adoption of a pathway to permanent residency for all migrant workers. 10. As indicated by the Zero Draft of the Global Compact for Safe, Orderly and Regular Migration, temporary migrants should be allowed to change employers. 11. Adopt laws which allow for the regularization of status for long term residents of the host country. References African Centre for Migration & Society (ACMS). 2017. Fact sheet on foreign workers in South Africa. Unpublished Report. Johannesburg: University of the Witwatersrand. Amit, R. 2011. The Zimbabwean documentation process: Lessons learned. African Centre for Migration and Society. Bell, D. A. 2006. Beyond Liberal Democracy: Political Thinking for an East Asian Context. Princeton: University Press. Bimha, P. Z. J. 2017. Legalising the illegal: An assessment of the Dispensation of Zimbabweans Project (DZP) and Zimbabwe Special Dispensation Permit (ZSP)
  18. 18. Volume 4 Number 1 January – April 2018 1115 regularisation projects. Master Thesis (Unpublished). Cape Town: University of Cape Town. Carens, J. H. 2008a. Live‐In Domestics, Seasonal Workers, and Others Hard to Locate on the Map of Democracy. Journal of political philosophy 16(4): 419- 445. Carens, J. H. 2008b. Of States, Rights, and Social Closure. New York: Palgrave Macmillan. Carens, J. H. 2008c: The Rights of Irregular Migrants. Ethics & international affairs 22 (2): 163-186. Carens, J. H. 2013. The Ethics of Immigration. Oxford: University. Castles, S. 2006. Guestworkers in Europe: A resurrection? International Migration Review 40(4): 741-766. Castles, S. and Derya O. 2014. Circular Migration: Triple Win, or a New Label for Temporary Migration? In: Battistella, G. (Ed.). Global and Asian perspectives on international migration. Vol. 4. Switzerland: Springer International Publishing. Deacon, B. Marius P. O. and Reason B. 2014. Social Security and Social Protection of Migrants in South Africa and SADC. African Centre for Migration and Society, University of the Witwatersrand. Department of Home Affairs (DHA). 2017. White Paper on International Migration. Policy Report. Fauvelle-Aymar, C. 2015. Immigration and the South African labour market. MiWORC Working Paper 2. From <http://bit.ly/2BEMskr> (Retrieved April 17, 2018). Mares, P. 2017. Locating Temporary Migrants on the Map of Australian Democracy. Migration, Mobility, & Displacement 3 (1): 9-31. Mpedi, L. George. 2011. Code on social security in the Southern African development community. De Jure 44 (1):18-31. Johnson, C, and Carciotto, S. 2016. The State of Asylum System in South Africa. In: O'Sullivan, M. and Stevens, D. (Eds.). States, the Law and Access to Refugee Protection: Fortresses and Fairness. Bloomsbury, 167-179.
  19. 19. Volume 4 Number 1 January – April 2018 1116 Jurgens, J. 2010. The Legacies of Labor Recruitment: The Guest Worker and Green Card Programs in the Federal Republic of Germany. Policy and Society 29 (4): 345-355. Peberdy, S. (2001). Imagining Immigration: Inclusive Identities and Exclusive Policies in Post-1994 South Africa. Africa Today 48 (3), 15-32. Ruhs, M. and Philip M. 2008. Numbers vs. Rights: Trade‐Offs and Guest Worker Programs. International Migration Review 42 (1): 249-265. Ruhs, M. 2012. The Human Rights of Migrant Workers: Why Do So Few Countries Care? American Behavioral Scientist 56 (9): 1277-1293. South Africa. Immigration Act 13 of 2002. From <https://bit.ly/2vm5LBc> (Retrieved April 17, 2018). UN General Assembly, 2017. Report of the Special Representative of the Secretary General on Migration. From <http://bit.ly/2q6mrrK> (Retrieved April 17, 2018).
  20. 20. Volume 4 Number 1 January – April 2018 1117 Exploring the Relationship between Hutu Refugees’ Protracted Situation and Insecurity in the Great Lakes Region Callixte Kavuro Abstract This paper reflects on the complex dynamics of the relationship between forced repatriation of Hutu refugees with protracted refugee situations and insecurity prevailing in the Great Lakes region, in particular, the Democratic Republic of the Congo (DRC). It critiques misconceived and misguided regional and international responses to the influx of Hutu refugees. The refugees were initially stereotyped as fleeing from prosecution and their influx was seen as a source of friction between Rwanda and its neighbouring countries and as burden to host countries’ social and economic progress. Viewing them as fugitives and as an economic burden, host countries forced Hutu refugees to return. This was done in cooperation with the Rwandan government (i.e. the persecutor) under auspices of the United Nations High Commissioner for Refugees (UNHCR). The purpose of this paper is to illustrate that the forced repatriation resulted not only in the resistance of the Hutu refugees, but also in turning the territory of the DRC into a fully-fledged battlefield for the Hutus and Tutsis. Further, it is argued that this Hutu-Tutsi conflict gave rise to the recurring cycle of violence in the eastern DRC. Keywords Ethnic conflict, genocide, mass murder, Hutu refugees, cessation clause, mass repatriation, armed resistance, regional insecurity. Introduction The eastern DRC has been characterised by recurring and persistent armed violence since 1996, when the Rwandan Defence Force (RDF) crossed the border to repatriate Hutu refugees that were viewed as a threat to the newly established government of the former Tutsi-dominated rebel movement, the Rwandan Patriotic Front (RPF)-Inkotanyi. At the time, the international community supported the RDF invasion of the DRC as the RDF was, ironically, applauded for putting an end to genocide in Rwanda when, in fact, they  Doctoral Candidate, Department of Public Law, Stellenbosch University, South Africa. Email: callixtekav@gmail.com
  21. 21. Volume 4 Number 1 January – April 2018 1118 triggered it (Erlinder, 2013; Rever, 2018). The invasion was not viewed as a violation of international law, but rather as a noble cause to pursue and forcefully repatriate Hutu refugees who were believed to have fled from criminal accountability. Millions of Hutu refugees were viewed not only as genocidaires but also as a burden to host countries (Whitaker, 2002). Viewing Hutu refugees as a burden and as fugitives led countries of the Great Lakes region to expel the refugees from their territories in 1996, which resulted in Hutu refugees taking up arms to resist their expulsion. Today, Hutu refugees are symptomatic of the tragedy of ongoing armed conflicts and political violence prevailing in the Great Lakes region, specifically the DRC. The nature of the instability of the DRC is both regional and international since it affects regional peace and stability, thereby involving regional countries as well as the international community. As a result, African states are committed to restoring peace and stability and encouraging development under the Peace, Security and Cooperation Framework for the DRC and the region. This document was signed in Addis Ababa on 24 February 2013 under the auspices of its guarantors, the Secretary-General of the United Nations (UN), the Chairperson of the African Union (AU) Commission, the Chairperson of the Southern African Development Community (SADC) and the Chairperson of the International Conference on the Great Lakes Region (ICGLR). In light of this context, this paper seeks to explore Rwanda’s invasion of the DRC for the purpose of forcing Hutu refugees to repatriate, as well as the nexus between regional insecurity and this forced repatriation. From a theoretical point of view, the paper works under the presupposition that, today, the Great Lakes region is marred with violence and armed conflict. The volatile situation – which negatively impacts the regional economic stability – has attracted regional and international interventions to restore peace. For instance, the UN deployed a peace-keeping mission, known as the UN Organisation Stabilisation Mission in the Democratic Republic of Congo (MONUSCO), and the SADC deployed troops from Malawi, Tanzania and South Africa under the Force Intervention Brigade (FIB). Both of these efforts had a mandate to neutralise and disarm Congolese and foreign armed groups. Accordingly, this paper focuses primarily on the driving factors causing Hutu refugees to engage in armed resistance and the implications of such armed resistance on regional peace and stability. Methodologically, the paper draws on literature to demonstrate that the Hutu refugees’ protracted situation was created by consistent and repeated attempts by Rwanda to encourage the
  22. 22. Volume 4 Number 1 January – April 2018 1119 UNHCR to invoke article 1C(5)-(6) of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (the 1951 Refugee Convention), so as to ensure that Hutus are criminally held accountable upon return. In light of this, the paper explores the relationship between the RPF’s obsession with controlling all Hutus, resulting in the furtherance of armed violence. In addition, a critical analysis of the causes and rationale for armed violence is approached from the standpoint of illuminating the marginalisation and objectification of Hutu refugees on the basis of collective guilt of genocide, coupled with their lack of political muscle to voice their views. More fundamentally, the armed violence is critically analysed through the lens of the deep-seated Rwandan ethnic conflict. Rwandan Political Turmoil from a Historical Perspective Historical Hutu-Tutsi Conflicts During the pre-colonial era, the Hutu majority was marginalised and subjugated by the Tutsi minority (14% of the population). The Germans and Belgians – who held colonial rule – socially and politically intensified this marginalisation when they positioned Tutsis as superior to Hutus (85% of the population) and Twas (1% of the population) (White, 2009: 474). This fragmentation of society engendered ethnic conflict, which manifested itself in the form of mono-ethnic governance replete with inhumane and discriminatory practices that continued to subject Hutus and Twas to ill- treatment (Kintu, 2005: 2). Prior to independence, Hutus and Twas were treated as secondary citizens and were socially positioned as slaves to their superiors, the Tutsis (ibid.). This was reflected in the letters and memorandums sent to the UN Visiting Mission (the Mission) in the 1950s. When Hutus submitted a memorandum, known as the “Bahutu Manifesto”, to the Mission, which contained their moral and political views on how the iniquities of the time could be redressed in order to achieve a just and equal society, the Tutsis wrote letters dated 17th May 1958 addressed to the same Mission. In the letters, they emphatically stressed that Hutu and Tutsi were not related and could never, in any way whatsoever, act in the spirit of brotherhood (Oppenheim & Van der Wolf, 2000: 31). These letters stated that Hutu and Tutsi do not share the same ancestors, but only share a slave-master relationship. The letters had the following implications. Firstly, they were a true reflection of the institutionalised racism inherent in the assumption that Tutsis were superior to Hutus because of their non-African roots as per the colonial master’s view (White, 2009: 474). Secondly, they set out the course of
  23. 23. Volume 4 Number 1 January – April 2018 1120 future Rwandan politics in that they contributed immensely to the 1959 social revolution that ultimately culminated in deposing the Tutsi monarchy and installing the Hutu majority regime as a republic on 28 January 1961 (Ibid: 475; Twagilimana, 2015: 130). Consequently, when Hutus ascended to power, two historical events occurred. Firstly, Tutsi fled the country to defy being governed by their servants, the Hutus. Secondly, they used every means necessary to depose the Hutu majority government. They formed a rebel movement known as INYENZI, an acronym for “Ingangurarugo ziyemeje kuba ingenzi,” literally meaning “those who attack first and who have vowed to be the best” (Kaarsholm, 2006: 84; Thompson, 2007: 84; Twagilimana, 2015: 114). INYENZI instigated sporadic insurgencies between 1961 and 1967, waged for the purpose of restoring Tutsi supremacy in Rwanda (Banton, 1995: 5). Fearing Tutsi oppression and subjugation, Hutus retaliated mercilessly to any incursion. Each Tutsi incursion was followed by outbursts of reprisal killings against Tutsi civilians, which, in turn, uprooted them to seek asylum in neighbouring countries (White, 2009: 475). The combination of governmental military operations and civilian retaliatory attacks brought the INYENZI’s insurgencies to an end in 1967 (Ibid.). The acts of aggression were, however, revived on 1 October 1990 under the banner of the RPF-Inkotanyi. This was after the Tutsi refugees’ objection to a voluntary repatriation programme, initiated and encouraged by the Hutu regime. Rather, they opted to return through military actions, which later resulted in instability first in Uganda, then Rwanda, and now the DRC. Regional instability is rooted in the Tutsian understanding that leadership belongs to them and that every means necessary should be used to protect their leadership. The instability is exacerbated by Hutu refugees who are not willing to accept defeat and surrender themselves to Tutsis, as this would imply that Tutsis are superior to them. Put briefly, the current political struggle and armed conflict is embedded in two contrasting beliefs: one belief holds that Hutus should be under control of Tutsian authoritarian leadership, while the other belief holds that there should be a Hutu majority rule through democratic processes. Roots and Causes of Hutu Refugees The fall of President Obote of Uganda can be said to be the root cause of Hutu becoming refugees. Although it may sound unusual to make such an assertion, the reality is that Tutsi refugees engaged in Museveni’s armed rebellion that
  24. 24. Volume 4 Number 1 January – April 2018 1121 ousted the Obote government in 1986. Despite their major role in establishing the Museveni regime, it did not sit well with Ugandans to see Tutsi refugees assuming powerful positions and ranks in the newly established government. This led Museveni “to support their return to Rwanda by force of arms” (Erlinder, 2013: 65). On 1 October 1990, Tutsi refugees invaded Rwanda under the RPF movement. As a result, Rwanda experienced armed violence, massacres and atrocities that uprooted a large percentage of the population during the course of the civil war (Ndagijimana, 2009). The RPF army is wholly to blame for initiating and carrying out a systematic genocide of Hutus as part of a campaign of cleansing intended to clear certain areas for Tutsi habitation or, more clearly, to establish Tutsiland (Deme, 2010: 157; Erlinder, 2013: 42). The RPF’s military tactics were centred on causing terror in the mind of the Hutus in that the RPF army deliberately targeted Hutu civilians. It is reported that, between 1990 and 1998, shell and mortar were deliberately fired into densely populated villages, centres and towns, as well as in camps housing internally displaced people (IDP), killing many Hutu civilians (UN Security Council, S/1994/1157, para 31). In addition, the RPF, prior to the fall of the Kigali capital, managed to carry out assassinations of Hutu elites countrywide through infiltration of the Hutu regime. Assassinations included the Hutu presidents Juvenal Habyarimana of Rwanda and Cyprien Ntaryamira of Burundi. Their deaths remain at the centre of conflict today. These facts are still unknown to many because the official narrative of the victors, the Tutsis, disregards them. This official narrative blames Hutus for planning and carrying out the genocide of Tutsis. The alternative narrative, however, recognises that both warring parties engaged in wanton killings and thus defined the tragedy, which hit the country as from 1990 as the Rwandan genocide. The alternative narratives take into account three theoretical assertions. The first assertion considers that there was the “genocide against the Tutsis”, implying that there was a genocidal mass killing of Tutsis by Hutus. The second assertion acknowledges that there was a “counter genocide against Hutus”, implying that the RPF’s troops were responsible for a litany of atrocities and massacres against Hutus, especially after the Tutsi genocide ended (Pean, 2005; Davenport & Stam, 2009; Collier & Strain, 2014: 72; Wells & Fellows, 2016: 61). The third assertion considers that the RPF systematically murdered thousands of people – overwhelmingly Hutus, along with Tutsi, Twa and others – as it advanced across the country in 1994, thousands more in gruesome massacres and summary executions after coming into power, and tens of thousands during the 1996 military campaign to destroy Hutu refugee
  25. 25. Volume 4 Number 1 January – April 2018 1122 camps and neutralise the defeated Forces Armée Rwandaise (FAR) combatants (Longman, 2009: 309). When the Tutsis retained control of the country on 4 July 1994, many Hutus defied governance by Tutsis. Due to the vivid memories of the pre- independence Tutsi autocracy, coupled with the RPF’s campaign of terror, Hutus fled Rwanda to neighbouring countries en mass. In response to this, the RPF troops immediately initiated “the hot pursuit operation”, aimed at forcing Hutu refugees to return. In 1995, this operation launched an unprovoked military assault on civilianrefugees at Kibeho IDPs Camp,who had been fearful of returning home due to the RPF’s terror (Khan, 2000: 106; Binet, 2016: 107). Military assault resulted in the killing of tens of thousands of Hutus. The assault was morally justified on the basis of reprisal attacks, as Hutus were collectively accused of committing genocide and fleeing from prosecution (MSF, 1995). These atrocities followed the June 1994 mass killings of Gakurazo, in which Roman Catholic Archbishops, Bishops, Priests, Brothers and Sisters (of Hutu backgrounds) perished along with their congregations (Reyntjens, 2013: 57). The gruesome assassination of Hutu preachers served as a strong message to Hutus that the RPF government would spare no one. It was also compelling evidence of the intent to instigate fear in the minds of the Hutu community. Throughout the occurrence of these events, there was a deafening silence from the UNHCR and international community. This silence marked the start of the RPF government’s campaign to force Hutu refugees to return en mass. Forced repatriation started at home and gradually extended to include Hutu refugees who sought asylum in neighbouring countries. The RPF pursued them not only to ensure their return but also to destroy them (UN Mapping Report, 2010: paras 191-193, 495). It is this hot pursuit of Hutu refugees in the deep forests of the DRC that created instability and the collapse of the country, as the invading army left destruction and insecurity in their wake, thereby further weakening the sovereignty of the DRC. Consequently, the fervent pursuit of Hutu refugees resulted in the overthrow of the Mobutu regime and the establishment of Laurent Kabila’s regime. Despite their efforts to escape from the RPF attacks, a large number of Hutu refugees had no alternative but to return. When they did, Hutu elites were selected from returnees and were either killed or jailed (Erlinder, 2013; Rever, 2018).
  26. 26. Volume 4 Number 1 January – April 2018 1123 Regional Responses and Their Contribution to the Conflict Massive Expulsion The first regional response to the influx of Hutu refugees was expulsion. The RPF’s invasion of the DRC in 1996 triggered the wave of expulsion or forced repatriation of Hutu refugees. Fear of being invaded by the RPF led the government of Tanzania to unleash its heavily armed troops to repatriate Hutu refugees by force under a military operation dubbed “Operesheni Rudisha Wakimpizi”, in English “Operation Return Refugees” (Whitaker, 2002: 330). The Ugandan and Burundian governments used similar force. This mass expulsion angered the Hutu refugees and thus motivated them to take up arms and defend themselves against the injustice, vindictiveness, cruelty and repression. When Hutu refugees took up arms to defend themselves, Rwanda and its neighbouring countries initiated joint military operations – dubbed Umoja Wetu, Amani Leo, Kimya I and Kimya II – aimed at compelling Hutu refugees to return under the façade of combatting, neutralising and eliminating Hutu militia elements (Trefon, 2011: 64; Levine, 2013: 260, 266). Forced repatriation practically and fundamentally impairs and undermines the human dignity of refugees. The use of force or duress to induce refugees’ return is not only contrary to international refugee law, but also deprives refugees of their humanity, as they are treated like objects. This objectification deprives them of their human dignity, individual autonomy and freedom of choice. What pained Hutu refugees, and still pains them, is that this objectification spurred the UNHCR to surrender them to their oppressor, the RPF. Objectification of Hutu refugees is one of the reasons that Hutu refugees resisted their oppression through violence in the DRC. In turn, the violence fuelled insecurity in the region as the resistance levelled up. Contribution to Criminal Justice From the outset, Hutus who took flight from the RPF’s litany of atrocities and massacres were not viewed as refugees but as outcasts due to the perceived belief that they had committed genocide in Rwanda, with an estimated 800,000 Tutsi and Hutu civilians dying in the space of 100 days. In the eyes of the UNHCR and host communities, they were seen as cold-hearted fugitives undeserving of the right to seek and obtain refuge, not to mention unworthy of being treated with dignity. They are not what they portrayed to be. However, as fugitives, they were not afforded refugee and human rights protection as no country was prepared to be a hub for criminals. As alleged
  27. 27. Volume 4 Number 1 January – April 2018 1124 criminals, they were deprived of liberties to participate in decision-making, including voicing their views, deciding their destinies and making moral choices about their futures. The societies of the Great Lakes region that should have provided them with a safe haven instead reacted by expelling them en mass back to Rwanda to account for their alleged crimes. Proceeding from this premise, forced repatriation was employed as a strategy to ensure that Hutu refugees, as genocidaires, were returned home to receive punishment for fictitious crimes. It was believed that they should not evade justice. However, nothing was done to separate suspects from genuine refugees. This purposeful absence of separating the bad elements from the good elements ensured that the burden of protecting the refugees as a collective group was lessened. As such, the forced repatriation was based on the premise of collective guilt, which consolidated and fuelled Hutu-Tutsi conflict that turned the territory of the DRC into a zone of fully-fledged armed conflict. Abandoning Refugees to Their Own Fate Viewing Hutu refugees as criminals, the UNHCR turned its back on them. This resulted in their exposure to serious violations of international humanitarian law, including murder, torture, beatings, rape and other forms of ill-treatment, such as the denial of medication, food and water. The RPF committed these crimes against humanity in an effort to force Hutu refugees to return. Surprisingly, during forced repatriation processes, the UNHCR offered financial, technical and logistical assistance to the RPF and host countries. Nevertheless, all refugees did not return. Today, there are approximately 245 000 Hutu refugees in the forests of the DRC, who do not receive any humanitarian relief or assistance from the UNHCR or any other humanitarian organisation. Forced repatriation was characterised by the criminal and vengeful spirit of the RPF troops as President Kagame himself affirmed. At the swearing-in ceremony of his army officers on 13 April 2010, President Kagame stated: “We have done all we promised […] Those who preferred repatriation were safely brought into the country, but those who chose otherwise were shot. That is what we did” (Rwandainfo, 2010). Therefore, it comes as no surprise that the findings of the 2010 UN Mapping Report (2010: paras 22-33) demonstrate that the vast majority of the 617 most serious incidents committed in the territory of the DRC by the RPF and its allies included war crimes and crimes against humanity committed against Hutu refugees and Congolese people.
  28. 28. Volume 4 Number 1 January – April 2018 1125 In particular, the 2010 UN Mapping Report notes with concern that there were crimes of genocide committed against the Hutu population. The report states that Hutus – Congolese citizens and refugees alike – were targeted by the RPF as an ethnic group under multiple attacks. It further indicates that in the First Congo War (July 1996 - July 1998), Laurent-Désiré Kabila’s Alliance des Forces Démocratiques pour la Libération du Congo-Zaire (AFDL) campaign to oust the regime of Mobutu with the support of the RPF troops was characterised by the RPF troops’ relentless pursuit of Hutu refugees across the entire Congolese territory (ibid: paras 191-193). After the destruction of their refugee camps, Hutus began their long trek across the country from the eastern DRC westward towards Angola, Congo-Brazaville and the Central African Republic (CAR). In this desperate journey, they were rounded up and either shot or bombed by the RPF troops. Accordingly, there were widespread incidents of planned and systematic massacres and killings, which targeted Hutu refugees, resulting in the death of men, women, children, the sick and the elderly. The UN Mapping Report (2010: para 515) notes that “if they were proven before a competent court, [these actions] could be classified as crimes of genocide.” Apart from what happened in the Congolese territory, it is reported that forced repatriation, especially in Uganda, Tanzania and Burundi, included serious violations of human rights and international humanitarian law. These violations manifested in the form of arbitrary arrests, detentions, abductions and deportations of Hutu refugees, in addition to the refusal to distribute food parcels to them as a means of encouraging them to return (Rever, 2013). By its very nature, involuntary mass repatriation constitutes a crime against humanity and is at odds with the principle of peace and security (Kamanga, 2008: 168-169). The campaign to repatriate Hutu refugees using force did not only negatively affect the regime of Mobutu, which was deposed in the process, but also engendered an unending spree of violence in the DRC that continues to this day. The violence has cost the lives of more than 6 million people and left millions more as either IDPs or refugees (Bellamy & Dunne, 2016: 734). The Nexus between Forced Repatriation and On-Going Regional Violence Impulse to Defend the 1959 Legacy As noted, the 1959 social revolution emanated from the radical need to oppose the institutionalised discrimination and degradation of the Hutu population by the Tutsis. Social denigration and discrimination are an invasion of an individual or targeted group’s human dignity as they intrinsically inflict emotional and psychological harm in the form of trauma, humiliation and
  29. 29. Volume 4 Number 1 January – April 2018 1126 debasement. These social pathologies are sustained through physical violence. Physical violence, in turn, maims people and, in cases, deprives them of their lives. The physical violence perpetrated against the Hutu population prior to the 1959 social revolution was again perpetrated against them beginning in 1990. Armed violence, which involved the intentional use of physical force to cause greater damage and deaths to Hutus as a group, was employed as a mechanism to repatriate Hutu IDPs and refugees. Considering the devastating effects of prolonged and intensive violence against Hutu refugees as well as unhindered killings and massacres, coupled with continual humiliation and debasement, Hutu refugees were compelled to find ways to defend and preserve themselves, as their fathers did in 1959. There was a radical need to show resistance. The resistance started with counter-attacks perpetrated by the FAR combatants through military infiltration of Rwanda between 1995 and 1998 (UNHCR, 2011: para 26). In 2000, Hutu elites (including FAR combatants) who were still in the forests of the DRC, established a Hutu resistance movement, the Forces Démocratiques de Libération du Rwanda (FDLR) that combined armed struggle and political aspirations. The FDLR employs protectionist measures that ensure that Hutu refugees are free from the RPF’s retaliation attacks. It is at the forefront of fighting against forced repatriation, advocating for the plight of Hutu refugees, and calling for political transformation in Rwanda that will allow for dignified voluntary return (FDLR, 2000). Viewing the armed and political struggle of the FDLR as a hope of restoration of dignity, some Hutus fled Rwanda to join the FDLR. Those who were forced to return and later re- escaped Rwanda to seek asylum in the DRC, also joined the FDLR. Given that the RPF government pursues repressive policies and applies state sponsored persecutions to gain control over the Hutu majority populations and to silence real or perceived opponents regardless of their ethnic backgrounds, Rwandans flee the country and feel urged to join the resistance movement. The RPF governance, characterised by autocracy, despotism and totalitarianism, drives not only Hutu refugees but also Tutsi refugees to seek ways to oust the RPF regime. The return of Tutsi totalitarianism gradually urges Hutus to resist the neo-oppression and to defend the legacy of the 1959 Social Revolution. The move of Hutu refugees to self-defend through physical violence has been a constant source of insecurity and instability in the eastern part of the DRC. The insecurity is, firstly, caused by the desire of the RPF government to
  30. 30. Volume 4 Number 1 January – April 2018 1127 suppress the FDLR forces. However, the FDLR appear to be strong as it has not been neutralised or eliminated by the joint military operations, mentioned earlier. Secondly, the listing of the FDLR as a terrorist group by the UN has caused insecurity and instability, as the MONUSCO and the FIB were jointly deployed to dismantle the FDLR and other armed groups (Levine, 2013: 267). Thirdly, the birth of the FDLR has led many national and foreign opportunistic groups to capitalise on it in forming their own armed groups in the eastern DRC, escalating the war that attracted various African and western countries to intervene and resulting in the so-called “scramble for Congo” (Turner, 2007) or Africa’s World War. Fourthly, some of these Congolese groups have been cooperating with the RPF government to facilitate the pursuit of its economic objectives, including looting the DRC’s natural resources. It follows that Rwanda used the FDLR as a scapegoat to create further proxies to legitimise the renewed political conflict. The RPF government is in fact a hawkish state that has become the epicentre of successive invasions and economic crises in the region, the last being the creation and support of the M23, which drove the economic sanctions that some western countries have taken against Rwanda (UN Security Council, S/2014/42). Moral Justifications of Return by Armed Force There is a moral force behind refugees preparing to wage a war against their home country for their rights and freedoms rather than live in a country where their hosts constantly remind them that they have no place. The desire of refugees to fight to find their way back home and to topple the government from which they had fled can be morally linked to the host country’s refusal to treat refugees with dignity. Their desire to return home by any means necessary is motivated by the fact that they are reduced to the scum of the earth, especially when they are forced to return or dumped in camps where they are viewed as human waste with no useful role to play in the host country’s economy. There is no intention on the part of the host community to integrate them into the social and economic order and, as such, for refugees living in the camps there is no hope of return (Pinson et. al., 2010: 9). Hutu refugees were left to their own miserable fate and ultimately forgotten in the dense forest of the DRC. Likewise, Hutu refugees who live in urban cities find it difficult to gain access to basic public services, given that they are – like other refugees – excluded from the socio-economic order. As a result, they live in intolerable conditions. When refugees are both impoverished and experiencing the ills of the host country, they are persuaded to return. To Hutu
  31. 31. Volume 4 Number 1 January – April 2018 1128 refugees, return through military campaign is the only option since the Rwandan government has opted to hunt them down. They are pursued by the RPF army and spies in their respective host countries where, in addition to living under protracted refugee situations, they are killed, abducted and abandoned to their own fate by the international community. Furthermore, Hutu refugees’ moral desire to return by means of force is strengthened by the fact that (i) the RPF have re-installed apartheid policies in Rwanda that exclude the Hutu majority from socio-economic designs and political participation, (ii) the RPF government has objected to any political dialogue or negotiations that would lead to voluntary and dignified repatriation and (iii) Hutu refugees see no future in the host countries. It has now been more than 20 years since the onset of the Rwandan crisis, and the Hutu refugee situation remains unresolved even though host countries have and continue to periodically apply forced repatriation under the auspices of the UNHCR. Today, it is estimated that there are more than 300 000 Rwandan refugees around the world. A combination of the these difficulties motivates Hutu refugees not only to fight for their survival, respect and dignity in their host countries but also to establish an armed rebellion against the draconian regime instated in Rwanda by the RPF. From their point of view, the military campaign for repatriation is seen as a viable solution to their never-ending misery and suffering. Proceeding from this premise, armed violence is viewed as a mechanism to limit the power of the RPF government in various ways: by coercing the RPF to enter into political negotiations with Hutu refugees, abandon its apartheid policies in order to open a political space, compromise its political ideologies and stance on the nature of genocide and encourage it to make concessions. Historically, the use of armed violence is a political strategy that has been employed by refugees to induce a fundamental change in their home countries. For example, the same methodology has been successfully used by the Tutsi refugees from Rwanda and Hutu refugees from Burundi (Ndarishikanye, 1998: 140-56; Pontzeele, 2004: 19-21). Similarly, it was employed by South African refugees during the liberation struggle against the apartheid regime that oppressed black people in South Africa and forced them to flee (Yousuf, 1985: 65-66). It follows that it is morally and legally just for individuals or groups who are victim(s) of physical attacks or violence to resort to force to mitigate or repel such violence. This moral understanding is recognised under Article 20 of the
  32. 32. Volume 4 Number 1 January – April 2018 1129 1981 African Charter on Human and Peoples’ Rights. Article 20 clearly states that “colonised or oppressed peoples shall have the right to free themselves from the bonds of the domination by resorting to any means recognised by international community.” Furthermore, it states that nothing justifies domination of one by another. In this context, Hutu refugees resort to armed resistance so as to exercise their right to self-determination, which includes free participation in democratic processes and the pursuit of economic and social development. That said, in a country such as Rwanda, where power is not derived from the people or from the consent of the governed, or in a country where people are oppressed and subjugated, people will indeed resort to violence to voice their dissatisfaction and to bring about the desired socio-political change. The oppressed will use violence to remind the rulers that the powers they possess derive from the people, and to compel an authoritarian regime to accept the conditions put forward by leaders of the liberation. An armed liberation struggle is a mechanism used to depose the despotic regime or to bring it to the negotiation table (Shaw, 2009: 97). In resorting to armed struggles, Hutu refugees are exercising their right to self-determination, and through it, they claim the human dignity afforded to others. They seek to make the regional and international communities hear their voices and sympathise with their suffering, and they aim to compel the RPF government to accept their conditions relating to their peaceful return and participation in Rwandan affairs. The Hutu refugee survivors created the FDLR in line with the spirit of fighting against the bonds of Tutsi domination and oppression and for the realisation of several components of the concept of self-determination. The moral intent of the RPF to carry out a campaign to combat and eliminate all Hutu refugees is substantive enough to justify the moral demand and appeal for the Hutu to resort to any means necessary to fight for equal rights and freedoms. The onus rests on them to liberate themselves from unfair geopolitics that result in their oppression, subjugation and humiliation. The statements of President Kagame, holding that refugees are human waste, useless species, criminals and terrorists sheltered by host countries, are provocative enough to induce and entice Hutus to wage a war against such denigration and debasement (Salem- News, 2011). What is apparent from the president’s description of Hutu refugees is a radical need for Hutus to restore their pride, glory and dignity through resistance and armed struggle.
  33. 33. Volume 4 Number 1 January – April 2018 1130 The Impact of the UNHCR Declarations of Cessation Clause On Regional Insecurity As from 1996, the UNHCR has been cooperating with persecutors to assist them in locating their victims. In this respect, the UNHCR employed a mechanism referred to as the Declaration of the Cessation Clause. In September 2012, the UNHCR declared Rwanda a safe country, which enabled distant host countries to turn Hutu refugees away. The declaration was intended to ensure that the RPF gained control over them or otherwise silenced their dissenting voices in an attempt to strengthen and enhance the RPF’s exclusive power. The declaration led to negotiations and tripartite agreements between the UNHCR, Rwanda and a number of African countries hosting Rwandan refugees. These countries included CAR, Burundi and Tanzania in 2002; then Zambia, Congo-Brazzaville, Uganda, Malawi, Namibia, Mozambique and Zimbabwe in 2003; and South Africa in 2004 (Amnesty International, 2004: 2). Implementing these tripartite agreements was incorporated under the 2004 Dialogue on Voluntary Repatriation and Sustainable Reintegration in Africa, which focused on massive repatriation of refugees in nine African countries: Angola, Burundi, the DRC, Rwanda, Eritrea, Somalia, Sudan, Liberia and Sierra Leone. However, the date of return for Rwandan refugees was initially and officially set to commence on 31 December 2011 and all aspects of the cessation of refugee status for Hutu refugees were to be implemented throughout 2012 so as to enable their status to cease by latest 30 June 2013. The date on which refugee status would cease was later set for 31 December 2017. These declarations have severe implications on the recognition of Hutu refugees as people genuinely seeking asylum in distant host countries. The UNHCR declarations are, accordingly, regarded among Hutu refugee communities as the international community’s final betrayal, whereby they have sided with the perpetrator when the victims have not been consulted as stakeholders or given a platform to voice their concerns. Within this understanding, recommendations by the UNHCR to host countries to apply the cessation clause have led many Hutu refugees in countries implementing it – in African countries in particular– to prepare to flee anew. Some have targeted the Great Lakes Region, especially the DRC, as a point de rappel in the hopes of losing themselves in the chaos there. Others, especially the youth, have given up on the peaceful resolution of the protracted uncertainty of their future and have opted to join the FDLR resistance movement to fight for their cause so
  34. 34. Volume 4 Number 1 January – April 2018 1131 that they can one day go home in peace and dignity. Still others have chosen to press forward and aim for Europe and America in an effort to find lasting peace in a sanctuary that is perhaps better than their previous one. Whatever choice Hutu refugees make, it will undoubtedly contribute to the already existing protracted insecurity and instability in the Great Lakes region. Hutu refugees’ asylum has never been secure and this uncertainty is mainly caused by the UNHCR. For that reason, refugees lament about the UNHCR’s chosen methods in trying to end their asylum, which has deleteriously affected their lives and impaired their dignity. They have never enjoyed peace, freedom and justice in exile. Although the Rwandan refugee communities and independent international institutions and organisations have voiced much criticism and concern regarding the declarations of the UNHCR, the UNHCR, in cooperation with some African countries, was undeterred and proceeded to implement the cessation clause for Rwandan refugees, rendering them informal and illegal refugees in Africa. So far, Zambia, Uganda and Malawi have responded to the cessation clause by indicating that they will consider other legal status as an alternative to repatriation for the purpose of ending the protracted limbo and uncertainty of Hutu refugees. The European Union also took the decision to not abide by the UNHCR’s recommendation to invoke the cessation clause (Harrell-Bond & Cliché-Rivard, 2012). Other countries cannot, therefore, justify the implementation of the cessation clause which implicitly targets Hutu refugees who fled Rwanda between 1994 and 1998. The cessation clause is discriminatory by its very nature because it does not apply to the Tutsi refugees who fell out of the Kagame regime as from 2000. The message is very clear: the cessation clause actually targets Hutu refugees as those Tutsi who fled Rwanda prior to 1994 have retained ruling power in Rwanda. From this perspective, one cannot hesitate to point out that the UNHCR contributes to regional insecurity when it takes a biased decision aimed at suppressing Hutu refugees. Impact of Partial Transitional Justice on Regional Instability The official narrative of the RPF on genocide holds that all Hutus are responsible for the 1994 Rwandan calamity and that Hutus from all walks of life should be prosecuted. They were prosecuted by either the Gacaca courts or the International Criminal Tribunal for Rwanda (ICTR). The ICTR had prosecuted almost a hundred former Hutu leaders, and not a single Tutsi. Likewise, the Gacaca courts have prosecuted more than 1.2 million Hutu elements without calling any Tutsis to account (UN, 2014). The absence of
  35. 35. Volume 4 Number 1 January – April 2018 1132 justice for Hutu victims is another important factor that logically and morally legitimises the belief that the Hutu need to rise up and claim criminal justice for themselves and their rightful place in Rwanda. Undoubtedly, it has always been the duty of the living to seek justice for the dead. If Hutus remain without voice in post-genocide Rwanda, the impunity will prevail on the side of Tutsi counterparts and their oppression will never end. The 1994 tragedy remains elusive and difficult to define because the voices and narratives of Hutus on the genocide are missing. It remains debatable whether the tragedy should be recognised as Rwandan genocide as to accommodate all victims – that is Hutus, Tutsis and Twas – or whether it should be recognised as Tutsi genocide so as to restrict it to Tutsi victims only. Social and political injustice are embedded in the establishment of the RPF regime around the political rhetoric of the collective guilt of Hutus without distinguishing between the guilty and the innocent. The RPF’s insistence on collective guilt is to entrench and consolidate an exclusive power in its hands and, in that respect, justice is used as an instrument of repression to achieve a political goal. Any aspiring Hutu politician is thus silenced through accusation of having a genocide political philosophy. Genocide has become a political weapon used by the Tutsian governance to reduce Hutu majority to second- class citizens, blocking the avenues of reconciling a divided and fragmented society. A great deal has been written on the genocide, particularly illustrating its genesis, discrediting the Hutus’ collective guilt and expounding the reasons behind the international community’s reluctance to hold the Tutsis to account (Ndagijimana, 2009; Erlinder, 2013). For example, Kintu (2005), a UN researcher, dismisses the argument holding that Hutus have an extensive plan to eliminate Tutsi civilians. This argument holds that if they had such a plan, they would not have been defeated by the Tutsi minority. His view was confirmed by the findings of the ICTR, in Prosecutor v Bagosora and Others, Case No. ICTR-98-41-T of 18 December 2008 (paras 1996, 2258); Bagosora and Another v The Prosecutor, Case No. ICTR-98-41-A of 14 December 2011 (paras 730, 740); Ndindliyimana and Others v The Prosecutor, Case No. ICTR-00-56-A of 11 February 2014 (paras 253, 278, 322, 388); and Karemera and Another v The Prosecutor, Case No. ICTR-98-44-A of 29 September 2014 (para 643), which stated that there was no evidence to support the contention that Hutu leaders were involved in any plan or conspiracy to destroy Tutsi civilians given that the ICTR prosecutorial team failed to discharge the onus to prove their guilt beyond reasonable doubt.
  36. 36. Volume 4 Number 1 January – April 2018 1133 Testimonies provided by senior leaders of the RPF – who fell out of the RPF regime – attest that the RPF planned and executed the shooting down of the former President Habyarimana’s plane, which triggered Hutus’ reprisal attacks against Tutsi (Ruzibiza, 2005; Erlinder, 2013: 25-6). The Tutsi elites’ testimonies and confessions state that the RPF, after assassinating the President, immediately launched attacks in which mass killings and ethnic cleansing were perpetrated. The ICTR describes this situation as the Hutu and Tutsi civilians being caught up in war-time violence. Despite such recognition, international justice has done nothing to call Tutsis to account. Judges Bruguiere of France and Merelles of Spain have made an attempt to indict and issue arrest warrants for the RPF leaders, including President Kagame, for crimes committed by the RPF (Erlinder, 2013: 152). In this regard, the one- side justice has become a major problem that contributes to the reluctance of Hutu refugees to return home. Politically, the Hutu refugees’ refusal to return is used to judge and condemn them without regard for their victimisation by the RPF. Relying on the justice system to exclude and silence Hutus does not appease the anger caused by the 1990s invasion of Rwanda and the crimes of the RPF against the Hutu community; rather, it augments such anger and strengthens the desire to fight back. What actually saddens and pains the Hutus is that evidence clearly indicates that a higher number of Hutus than Tutsis perished in the horrendous events of 1990-1994. The number of genocide victims during the 1994 genocide is often stated as 800 000 Tutsi and moderate Hutus by the UN reports, and is often stated as more than one million Tutsi by the RPF Government (Turner, 2013: 300). This narrative is contested by many researchers who have developed a counter narrative asserting that if the total number of the Tutsi victims ranged from 800 000 to one million people, “the majority of the victims must have been Hutu and Twa Rwandans, because there were not enough Tutsi in Rwanda in 1994 to yield victim numbers of this magnitude” (Erlinder, 2013: 63; Wells & Fellows, 2016: 61). This implies that most of those accused and brought before Gacaca courts were in fact victims of RPF atrocities, whom the RPF was able to silence through criminalising any claim, narrative, view or opinion holding that Hutus were the majority victims of the genocide. Any person who challenges the official genocide narrative is charged with the crime of minimising or denying the Tutsi genocide. According to Human Rights Watch (2011: 32), the genocide law creates criminal tools such as “revisionism,” “negationism,” “genocide denial” and “gross minimisation of genocide” that are used to quash debate on the responsibility
  37. 37. Volume 4 Number 1 January – April 2018 1134 of the RPF in Rwanda. Suppressing debate and invoking collective guilt are, as Kintu (2005: 18) puts it, intended to protect the true designers of mass murder and ethnic cleansing. The fight of Hutus also includes a struggle to expose the true culprit behind the Rwandan tragedy. In other words, the twisting of facts and truth, which degrades and humiliates Hutu, strengthens their conviction to emancipate themselves from institutionalised moral degeneration. Conclusion and Recommendations The regional instability cannot be separated from the Tutsi’s struggle for political domination and supremacy and Hutu’s defiance against being governed by the Tutsi minority in Rwanda. To ensure that the Hutus are subjugated and controlled, they were collectively blamed for committing genocide and the collective blame has been used as a weapon to unleash reprisal attacks against them. The RPF government has been invoking the collective blame to call upon host countries to deny or deprive Hutu refugees of asylum or to cross the borders to attack them in their shelters. Whilst the international community has abandoned Hutu refugees to their own despondent, it has been supporting the RPF to attack Hutus at home and abroad with impunity. Killing Hutus with impunity angers and pains Hutus. They have been killed from 1990 to this day. In an attempt to defend themselves, Hutus – especially refugees – have taken up arms. As Hutu refugees are forced to return through military means and as attacks on Hutu refugees continued unabated, the Hutu resistance blossomed into an armed rebel movement. As the Hutu citizens are subjugated, and as the armed resistance gains wide support among the Hutu population, the territory of the DRC is becoming a fully-fledged battlefield for Hutus and Tutsis. It has been demonstrated that the Hutu-Tutsi conflict is historically deep- rooted and has led both Hutus and Tutsis to engage in wanton killings during different periods. The Tutsis desire to destroy Hutus in order to maintain exclusive power and the battle has been transferred to the DRC. What this tells us is that, in finding durable solutions to armed violence in the DRC, regional and international actors should grasp the inherent Hutu-Tutsi conflict and thus find ways of reconciling them. Durable solutions should be devised with regard to the significance of the legacy of the 1959 Hutu emancipation from Tutsi oppression and enslavement; the RPF’s invasion of Rwanda in 1990 and the rationale behind it; the litany of atrocities committed by the RPF since 1990; and the RPF’s shooting down of the presidential plane that triggered the
  38. 38. Volume 4 Number 1 January – April 2018 1135 reprisal attacks against Tutsi civilians. Considering the 1959 legacy is key to any durable solution of the Rwandan ethnic tension. The Rwandan Republic is constituted on the 1959 legacy, including the recognition of democratic governance based on the will of the people. Because Hutus constitute the majority, discussions of power-sharing as well as watchdog institutions are crucial to safeguard any proposed power-sharing. Restoring democratic governance is possible through negotiated political settlement, which will introduce the compromised leadership whereby Hutus and Tutsis will have equal political voice and participation. Compromised leadership will protect the interests of every citizen regardless of his or her ethnic background. It follows that peace and stability in the region will ensue if the regional and international actors have the willpower necessary to consider the killings of the Hutus by the RPF soldiers and to investigate the assassination of President Habyarimana and prosecute the perpetrators. Finding an effective solution to armed conflict in the DRC is a political question that requires political response by addressing the Rwandan ethnic conflict. First of all, the UNHCR and other regional and international actors need to inform themselves of the politics of Rwanda to grasp the political problems that have uprooted the Hutu refugees, which resulted in the Hutus’ resistance to return unless their desired political changes are met. In finding viable solutions, the UNHCR must treat refugees as autonomous individuals able to choose their own destinies, make independent moral choices, shape their identity and participate in the decisions that may adversely affect their lives. Both the UNHCR and host countries must desist from viewing all Hutu refugees as criminals, and rather see them as human beings whose inherent dignity and equal worth must be respected at all times. In respecting their human dignity, authorities must adhere to the fairness and justice principles, including the presumption of innocence until proven guilty. Refugee status cannot diminish these principles. Therefore, the UNHCR should meaningfully engage with all stakeholders with a particular focus on the protection of Hutu refugees who are the victims of the RPF’s persecutions. It is unfair to return individuals to their persecutors without evidence that they are criminals. As a UN agency mandated to protect refugees, the UNHCR must use its power to influence regional countries to initiate an inclusive dialogue between Hutu refugees and the RPF government in an effort to establish peace, security, harmony and tolerance. It has been shown that unilateral, non-democratic, and non-transparent decisions to force Hutu refugees to repatriate will, for
  39. 39. Volume 4 Number 1 January – April 2018 1136 example, breed further internal and external violence as such decisions will simply work to intensify the need to repatriate by force of arms. Regional countries should also be at the forefront of initiating and mediating an inclusive dialogue to discuss the alleviation of ethnic Hutu-Tutsi conflict before it spills beyond the region under the pretext of hunting down Hutu genocidaires. International community intervention is needed to put an end to the collective guilt card that the RPF uses to violate the territorial integrity of other nations. Violence is the only weapon that can be used by Hutu refugees to express their dissatisfaction or to compel or induce the totalitarian regime to accept some of the conditions put forward by the oppressed. If there is to be enduring peace in the Great Lakes region, refugee voices and actors must be included in the determination of their fate. Failure to do this will result in protracted conflict and insecurity for the unforeseeable future, or worse, a spread of violence in the region as other state actors are drawn in. References African Charter on Human and Peoples’ Rights ("Banjul Charter"), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58. Amnesty International. 2004. Protecting their Rights: Rwandese Refugees in the Great Lakes Region. AI Index: AFR 47/016/2004, London: England. Bagosora and Another v The Prosecutor, Case No. ICTR-98-41-A of 14 December 2011. Banton, M. 1995. Ethnic Hatred: Genocide in Rwanda. London: ASEN. Bellamy, A.J. and Dunne, T. 2016. The Oxford Handbook of the Responsibility to Protect. Oxford: Oxford Press. Binet, L. 2016. The Violence of the New Rwandan Regime 1994-1995. Australia: Medicin Sans Frontieres. Collier, E.W. and Strain, C.R. 2014. Religious and Ethical Perspective on Global Migration. London: Lexington Books. Davenport, C. and Stam, A.C. 2009. What Really Happened in Rwanda? From < https://bit.ly/2Jf9eaY > (Retrieved March 10, 2016). Deme, A. 2010. Rwanda 1994 and the Failure of the United Nations Missions: The Whole Truth. Toronto: Xlibris. Erlinder, P. 2013. The Accidental… Genocide. Chicago: Penknife Press.
  40. 40. Volume 4 Number 1 January – April 2018 1137 FDLR. 2000. Manifeste-Programme et Status des Forces Démocratiques de Libération du Rwanda of 2000. From < https://bit.ly/2M3do3s> (Retrieved June 05, 2014). Harrell-Bond, B. and Cliche-Rivard, G. 2012. Rwandan Refugees Face No Choice But Repatriation. From <https://bit.ly/2kQc7kd> (Retrieved March 11, 2016). Human Rights Watch. 2011. Justice Compromised: The Legacy of Rwanda’s Community-Based Gacaca Courts. New York: Human Rights Watch. Kaarsholm, P. 2006. Violence, Political Culture & Development in Africa. Oxford: James Currey. Kamanga, K. 2008. Human Rights, the Use of Force, and Displacement in the Great Lakes Region. In: Hollenbach, D. (Ed.). Refugee Rights: Ethics, Advocacy, and Africa. Washington: Georgetown University Press, pp 163 - 175. Karemera and Another v The Prosecutor, Case No. ICTR-98-44-A of 29 September 2014. Khan, S.M. 2000. The Shallow Graves of Rwanda. London: I.B. Tauris & Co Ltd. Kintu, R. 2005. The Truth Behind the Rwanda Tragedy. Paper prepared upon request and presented to the U.N. Tribunal on Rwanda, Arusha, Tanzania, March 20, 2005. Levine, D.H. 2013. The Morality of Peacekeeping. Edinburg: Edinburg University Press Ltd. Longman, T. 2009. An Assessment of Rwanda’s Gacaca Courts. Peace Review: A Journal of Social Justice, 21: 304-312. MSF. 1995. Report on Events in Kibeho Camp. From <https://bit.ly/2kNJN1C> (Retrieved April 10, 2014). Ndagijimana, J.M.V. 2009. How Paul Kagame Deliberately Sacrificed the Tutsi. Orléans Cedex: Edition la Pagaie. Ndarishikanye, B. 1998. La Conscience Historique des Jeunes Burundais. Cahiers d'études Africaines, 38: 135-171. Ndindliyimana and Others v The Prosecutor, Case No. ICTR-00-56-A of 11 February 2014.
  41. 41. Volume 4 Number 1 January – April 2018 1138 Oppenheim, J. and Van der Wolf, W.J. 2000. Global War Crimes Tribunal Collection. Holmes Beach: Global Law Association. Pean, P. 2005. Noires Fureurs, Blancs Menteurs. Paris: Les éditions Fayard. Pinson, H., Arnot, M. and Candappa, M. 2010. Education, Asylum and the ‘Non- Citizen’ Child: The Politics of Compassion and Belonging. Hampshire: Palgrave MacMillan. Pontzeele, S. 2004. Burundi 1972/Rwanda 1994: L’ Efficacite Dramatique d’une Reconstruction Ideologique du Passé sur le Present. PhD Thesis. (Unpublished). Lille: France. Prosecutor v Bagosora and Others, Case No. ICTR-98-41-T of 18 December 2008. Rever, J. 2013. What is Happening to Rwandan Refugees in Uganda?. From <http://mondediplo.com/blogs/what-is-happening-to-rwandan-refugees-in- uganda> (Retrieved June 02, 2014). Rever, J. 2018. In Praise of Blood. Toronto: The Cooke Agency International. Reyntjens, F. 2013. Political Governance in Post-Genocide Rwanda. New York: Cambridge University Press. Ruzibiza, A.J. 2005. Rwanda, L’Histoire Secrete. Paris: Panama. Rwandainfo. 2010. President Kagame Proud to have Killed Hutu Refugees in DRC. From <https://bit.ly/2kT5AF7> (Retrieved March 10, 2016). Salem-News. 2011. Stop Killing Rwandans or Resign: RNC Tells President Kagame. From <https://bit.ly/2JoQsNZ> (Retrieved August 11, 2016). Shaw, M. 2009. Conceptual and Theoretical Framework of Organised Violence. International Journal of Conflict and Violence, 3: 97-106. Thompson, A. 2007. The Media and the Rwanda Genocide. London: Pluto Press. Trefon, T. 2011. Congo Masquerade: The Political Culture of Aid Inefficiency and Reform Failure. London: Zed Books Ltd. Turner, E. 2013. Documenting Genocide: The Record of Confession, Guilty Plea, Repentance and Apology in Rwanda's Gacaca Trial. Technical Communication Quarterly, 22: 285-303.
  42. 42. Volume 4 Number 1 January – April 2018 1139 Turner, T. 2007. The Congo Wars: Conflict, Myth and Reality. London: Zed Books Ltd. Twagilimana, A. 2015. Historical Dictionary of Rwanda. Lanham: Scarecrow Press. UN. 2004. Background Information on the Justice and Reconciliation Process in Rwanda. From <https://bit.ly/1oXoyq7> (Retrived April 15, 2014). UNHCR. 2011. Implementation of the Comprehensive Strategy for the Rwandan Refugee Situation, including UNHCR’s Recommendations on the applicability of the ‘Ceased Circumstances’ Cessation Clause of 30 December 2011. From < https://bit.ly/2LoCtEW> (Retrieved May 15, 2016). UN Mapping Report. 2010. United Nation Human Rights: Democratic Republic of the Congo, 1993-2003: Report of the Mapping Exercise Documenting the Most Serious Violations of Human Rights and International Humanitarian Law Committed within the Territory of the Democratic Republic of the Congo Between March 1993 and June 2003, released on October 01, 2010. From < https://bit.ly/2LZpvPh> (Retrieved May 16, 2016). UN Security Council, S/1994/1157: Situation of Human Rights in Rwanda: Note by the Secretary-General. UN Security Council, S/2014/42: Letter dated 22 January 2014 from the Coordinator of the Group of Experts on the Democratic Republic of the Congo addressed to the President of the Security Council. Yousuf, H.S. 1985. The OAU and the African Liberation Movements. Pakistan Institute of International Affairs, 38(4): 55-67. Wells, M. and Fellows, N. 2016. History for the IB Diploma Paper 1 Conflict and Intervention. Cambridge: Cambridge University Press. White, K.R. 2009. Scourge of racism: Genocide in Rwanda. Journal of Black Studies, 39: 471-481. Whitaker, B.E. 2002. Changing Priorities in Refugee Protection: The Rwandan Repatriation from Tanzania. Refugee Survey Quarterly, 21: 328-344.
  43. 43. Volume 4 Number 1 January – April 2018 1140 The Lagos Experience: Evidence of the Circularity of Northern Male Migrants in Nigeria Adebayo O. Makanju and Alex E. Uriri Abstract The growing importance of circular migration has largely been neglected in most Nigerian migration literature, despite the fact that this phenomenon continually fosters the diffusion of socio-economic resources between spatially differentiated regions in Nigeria. This vacuum can be attributed to the absence of a national migration policy and its resultant implementation. This paper studies the circularity of northern male migrants as manifested by return frequency and acculturation status while living in Lagos state. The aforementioned problem was accessed using both the Markovian chain analysis and with a localised acculturation instrument named the Northern Male Acculturation Measure (NMAM). The Markov switching matric between the states in two consecutive years is parameterised and estimated using a logit specification from data sourced from a field questionnaire. The results show that 100% of the migrants are indeed labour migrants, coupled with a high return probability of 98%. These returns are influenced by factors such as family considerations, age, agricultural purpose and remittances. The process is controlled by well-institutionalised social network systems. The study concludes that harnessing the benefits of internal circular migration is a necessary condition for the actualisation of the Lagos state megacity plan. Keywords Acculturation, Labour migrants, Remittances, Markov chain analysis, Nigeria. Introduction Nigeria is the most populous country on the African sub-continent, with a burgeoning population exceeding 180 million persons (UN-IGME, 2017). This demographic reality portends that Nigeria grapples with a host of fluid internal migration-based visceral issues, among which are massive inter- regional cum sub-regional migration complexities1 (Ikwuyatum, 2016). Although Chapter 4 Section 41(1) of the 1999 Constitution of the Federal  Department of Geography and Planning, University Of Lagos. Email: adebayomakanju@gmail.com  Department of Geography and Planning, University Of Lagos. Email: auriri@unilag.edu.ng

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