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Repatriation or Else: Closing the Mtabila Refugee Camp in Tanzania

Refugee Rights News
June 2009

The Mtabila refugee camp in northwestern Tanzania, home to approximately 36,000 Burundian refugees, was scheduled to close 30 June 2009. However, prior to the deadline, realising that it would be logistically impossible to meet the deadline the government of Tanzania and UNHCR announced the Burundian population would be allowed to repatriate through the end of September 2009. While the extension is welcomed by many to ensure a more orderly return, the failure to offer alternative, durable solutions means the extension may merely delay potential forced returns.

Refugees in Tanzania

Since independence, Tanzania has played host to millions of refugees and has a reputation as one of the most welcoming countries for those seeking refuge in the region. Julius Nyerere, the first post-independence Tanzania president, espoused a Pan-African vision arguing against the constraints of colonial borders and welcomed migrants and refugees.

However, over time, Tanzania’s policies have become more restrictive for displaced persons as the government seemingly views repatriation as its preferred option. While the 1998 Refugees Act, a replacement of the 1966 Refugees Control Act, was seen as a step forward in many respects by aligning national law with international standards, such as the 1951 UN Convention on the Status of Refugees and the 1969 Organisation of African Unity Refugee Convention, the new act makes integration difficult by restricting movement and the ability to work for refugees.

In contrast to the restrictions placed on many refugees, Burundian refugees who arrived in the 1970s (known as the “1972 caseload”) have been offered citizenship as an alternative to repatriation. Nearly 80% of the roughly 220,000 refugees in the 1972 caseload have opted for naturalisation – although the verification process is ongoing and there have been reports of undue pressure on refugees to choose repatriation over naturalisation. This possibility has not been offered to the 36,000 Burundians living in the Mtabila settlement who arrived more recently, and repatriation appears to be the only option on offer. (See “Going Home or Staying Home? Ending Displacement for Burundian Refugees in Tanzania”)

The International Law Framework

On 30 June, the planned closure date for Mtabila, UNCHR released a statement welcoming the extension, and noted, “[t]he Minister [of Home Affairs, Hon. Lawrence Masha] also reiterated that no refugee will be forcibly returned and reaffirmed his government's commitment to uphold international laws and standards relating to the protection of refugees.” While Tanzania has ratified the applicable international agreements and has committed itself to upholding them, forced return of Burundian refugees would be in violation of the country’s legal obligations. The concept prohibiting forced return, non-refoulement, is not strictly limited to physically removing or expelling refugees from the country, and more subtle government actions may be in violation of the principle. As the UNHCR Global Consultations session on the topic concluded in 2001

The principle of non refoulement…encompasses any measure attributable to the State which could have the effect of returning an asylum seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she is at risk of persecution, including interception, rejection at the frontier or indirect refoulement.

Regarding the 2007 expulsion of Rwandan and Burundian refugees by the Tanzanian government, but still applicable to the current situation, the late Alison Des Forges noted, “Tanzania has the right to expel people who are illegally within its territory, but it must assess cases individually. Arbitrary expulsion of people based on their national origin is a serious violation of international law.”

According to articles 32 and 33 of the 1951 UN Convention on the Status of Refugees, the 1969 OAU Convention Governing the Specific Aspects of the Refugee Problem in Africa, and Tanzania’s 1998 Refugees Act refugees cannot be returned to a place where they might be subject to persecution except under certain limited circumstances. Even under the exceptional circumstances removals must be conducted with due process of law.

The “1993 Caseload”

The majority of the people living in the Mtabila refugee camp fled Burundi during its 1993 civil war, and the camp is the last remaining settlement for the “1993 caseload.” Since refugees in the camp were not given land to farm, they have been completely dependent on food rations and other supplies from UNHCR and NGOs. These refugees are not being given the option of naturalisation afforded to the 1972 caseload. According to Eric Pitois, the Head of Burundi/Tanzania Office for the European Commission's Humanitarian Aid department, “[a] small number of refugees who fled Burundi as a result of the 1993 conflict have been resettled as they have genuine concerns for their safety were they to go back to Burundi. The policy towards this so-called '1993 caseload' is, however, clear; they are refugees and they should go back to their own country.”

Although violence in Burundi has subsided, many refugees are reluctant to return. According to Pitois, “[t]here are of course many people who are apprehensive for a variety of reasons. They have bad memories of the conflict; family members may have died. They are worried about access to land.” Concerns over the reclamation of land are often cited as a major concern for returning refugees in the region. As 45,000 refugees from the 1972 caseload have returned to Burundi, many have found their land occupied. The land commission established to resolve disputes has thousands of cases with a waiting period of up to eight months. As a result, many of these returning refugees are living in temporary settlements created by the UN in Burundi.

In addition to concerns regarding land, Burundian refugees in Mtabila camp face additional barriers to return. The camp has a tradition of supporting the opposition Forces Nationales de Libération (FNL-Palipehutu), and many of the refugees say that they fear that they will be targeted by the government because of their presumed association with this group.  The fear of political repression is compounded by the upcoming 2010 Burundian elections, which refugees fear may lead to a destabilisation of the government and further insecurity.

[In]voluntary Repatriation?

As the process of closing the Mtabila camp has unfolded, various problems have arisen, raising concerns among the refugees that the closure is a precursor to forced return. Tanzania has a recent history of forcibly returning refugees, including expelling hundreds of thousands of Rwandan refugee in 1996 and, more recently, in 2006 and 2007 returning thousands of Rwandan and Burundian refugees against their will.

According to a June Human Rights Watch press release, “Tanzanian officials have ’consolidated’ the camp by burning or bulldozing houses. Evicted refugees have not received new building materials, so they have been forced to live in makeshift shelters.” Refugees were reportedly told that they must return home and that they did not have any options other than repatriation as the site of the Mtabila camp was going to be converted to a military installation on 1 July. Although Tanzania has assured refugees that they will not be forcibly returned to Burundi, no options are being offered other than return.

In addition to the “consolidation” of the camps, according to the United States Committee for Refugees and Immigrants (USCRI), authorities have, “prohibit[ed] all income generating activities, as well as crop cultivation and animal slaughter…and severely distrupt[ed] schooling”. While these factors are not evidence of direct forced return, the government of Tanzania is creating and/or allowing an environment in which refugees have little choice regarding their decision to leave.

By restricting movement and work, the government of Tanzania has made it difficult for any repatriation process for Burundian refugees in Mtabila to be truly voluntary and in accordance with the principle of non-refoulement. While the cessation clause could be invoked by the government of Tanzania in order to pave the way for return, they have not yet done so. Even if this clause was invoked, procedural guarantees would need to be respected.

According to Zachary Lomo the former director of the Refugee Law Project at Makerere University in Kampala, with respect to a declaration of cessation for a particular group of refugees “the cessation clause does not apply automatically [to each individual]; a refugee who has reason to fear persecution – reprisals, revenge killings, including deprivation of his or her land – in his country of origin, cannot be forced to return to that country”. In other words, if cessation were invoked refugees would need to be given the opportunity to have their cases individually assessed for continuing protection needs. Given the circumstances surrounding the repatriation effort, it is difficult to conceive how Tanzania can uphold its international legal obligations absent other options being clearly presented to refugees. The Tanzanian authorities have given assurances that they will uphold their obligations, but the failure to detail durable solutions beyond repatriation raises questions about the feasibility of closing the Mtabila refugee camp.