National Protection of Internally Displaced Persons in Africa: Beyond the rhetoric (Sustainable Development Goals Series) 3030668835, 9783030668839

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Sustainable Development Goals Series Peace and Justice, Strong Institutions

Romola Adeola   Editor

National Protection of Internally Displaced Persons in Africa Beyond the rhetoric

Sustainable Development Goals Series

World leaders adopted Sustainable Development Goals (SDGs) as part of the 2030 Agenda for Sustainable Development. Providing in-depth knowledge, this series fosters comprehensive research on these global targets to end poverty, fight inequality and injustice, and tackle climate change. The sustainability of our planet is currently a major concern for the global community and has been a central theme for a number of major global initiatives in recent years. Perceiving a dire need for concrete benchmarks toward sustainable development, the United Nations and world leaders formulated the targets that make up the seventeen goals. The SDGs call for action by all countries to promote prosperity while protecting Earth and its life support systems. This series on the Sustainable Development Goals aims to provide a comprehensive platform for scientific, teaching and research communities working on various global issues in the field of geography, earth sciences, environmental science, social sciences, engineering, policy, planning, and human geosciences in order to contribute knowledge towards achieving the current 17 Sustainable Development Goals. This Series is organized into eighteen subseries: one based around each of the seventeen Sustainable Development Goals, and an eighteenth subseries, “Connecting the Goals,” which serves as a home for volumes addressing multiple goals or studying the SDGs as a whole. Each subseries is guided by an expert Subseries Advisor. Contributions are welcome from scientists, policy makers and researchers working in fields related to any of the SDGs. If you are interested in contributing to the series, please contact the Publisher: Zachary Romano [[email protected]]. More information about this series at http://www.springer.com/series/15486

Romola Adeola Editor

National Protection of Internally Displaced Persons in Africa Beyond the rhetoric

Editor Romola Adeola Centre for Human Rights University of Pretoria Pretoria, South Africa

ISSN 2523-3084     ISSN 2523-3092 (electronic) Sustainable Development Goals Series ISBN 978-3-030-66883-9    ISBN 978-3-030-66884-6 (eBook) https://doi.org/10.1007/978-3-030-66884-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgements

The support from the Global Engagement Network on Internal Displacement in Africa (GENIDA) (EP/T003227/1) and the Interdisciplinary Network on Internal Displacement, Conflict and Protection INDCaP (AH/T005351/1) projects, funded by the UK Research and Innovation Global Challenges Research Fund, is acknowledged. The kind support of the professional team at Springer is appreciated. Special appreciation goes to Zachary Romano for leading the editorial process and to Joseph Quatela, Herbert Moses and Gowdham Santhanam for their excellent editorial support.

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Contents

1 Introduction����������������������������������������������������������������������������������������  1 Romola Adeola 2 Towards a Legal Framework on Internal Displacement in South Sudan ����������������������������������������������������������������������������������  5 Rose Mwebi 3 Mediating Protection of Forcibly Displaced Populations in the Frontlines of the Central African Republic�������������������������� 13 Walters Samah 4 The Adequacy of Law and Policy Frameworks on Internal Displacement in Ethiopia: A Critical Appraisal������������������������������ 27 Enguday Meskele Ashine 5 Beyond Accountability and Eminent Domain: Development Rights and Development-Induced Displacement in Kenya������������ 37 Nelly C. Rotich 6 A Review of Land and Property Rights of Internally Displaced Persons in Zimbabwe: Steps Towards Restitution�������� 47 Nqobizitha Ndlovu and Enyinna S. Nwauche 7 Internally Displaced Children in Nigeria: A Rights-Based Situational Appraisal ������������������������������������������������������������������������ 65 Olanike Adelakun 8 Straddled Between Government Forces and Armed Separatists: The Plight of Internally Displaced Persons from the Anglophone Regions of Cameroon������������������������������������ 73 Walters Samah and Emmanuel Sunjo Tata 9 National Protection of Internally Displaced Persons in Africa: Law and Policy Beyond the Rhetoric������������������������������ 93 Romola Adeola Index���������������������������������������������������������������������������������������������������������� 109

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Introduction Romola Adeola

Realising the sustainable development goals requires significant attention to the protection of various categories of persons within national contexts. Integral to this process is the need to ensure that law and policy responses are developed that take into account the need to ensure that ‘no one will be left behind’ (UN General Assembly 2015) in the furtherance of devising long-term sustainable goals. However, achieving this requires a significant understanding of the pertinent challenges of various groups including internally displaced persons (IDPs). This edited book focuses on this category of persons, considering national protection of IDPs in Africa. Over the last decades, the protection of IDPs has become a pertinent issue for which significant solutions are required. Across various countries of the world, and also in Africa, the extent to which IDP issues are not properly addressed has begun to raise significant concerns. With data also reflecting the fact that more people are displaced within state borders than externally, the urgency of solutions have become fundamental. The absence of sustainable solutions has, in many instances, led to protracted displacement with IDPs left in precarious conditions for many years without adequate rehabilitation centred around

R. Adeola (*) Centre for Human Rights, Faculty of Law, University of Pretoria, Pretoria, South Africa

their effective participation. Increasingly, there is a call to pay attention to the peculiar needs of IDPs given the fact that these persons are within state borders and, as such, are often in dire need of protection and assistance where adequate measures are not taken to ensure that they are significantly safeguarded. This has led to global discussions. Evidently inherent in the narrative of global governance on the issue is a tension between state sovereignty and obligations that resonate from international commitments. However, with the emergence of the notion of sovereignty as responsibility and the acceptance of the responsibility to protect doctrine within the African regional context, for instance, the pertinence of protection beyond state-centric ideations has emerged. While much of these have been orchestrated from the point of strategic direction and diplomacy, it has had the effect of increasing awareness on national-level governance measures. While there has been pertinent attention to the issue of refugee protection, not much attention has been paid to the furtherance of IDP issues. The essence of scholarship on internal displacement resonates from the need to advance sustainable solutions to the protection and assistance of IDPs, through critical reflections on the issue. A pertinent area where this has become imperative is in the context of national protection of IDPs. Understanding what national mechanisms exist in the furtherance of IDP pro-

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. Adeola (ed.), National Protection of Internally Displaced Persons in Africa, Sustainable Development Goals Series, https://doi.org/10.1007/978-3-030-66884-6_1

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R. Adeola

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tection and assistance is crucial in building effective structures at this level of governance where solutions are most required. Evidently, such structures at national level are of primary importance given the fact that it is at this level that the primary test of protection and assistance to IDPs resonates. And obviously, this is where a significant amount of activities on IDP protection and assistance is carried out as states have primary responsibility for addressing IDP issues. Globally, in response to the peculiar challenges experienced by this category of persons, a framework was developed in 1998 which seeks to provide comprehensive protection leveraging on the complex web of norms, notably in the context of international human rights and humanitarian law (UN Guiding Principles on Internal Displacement 1998). This framework provides an optics from which to explore adequate protection and assistance for IDPs, particularly in view of its recognition of various root causes of internal displacement beyond armed conflict and its specific protection measures that are relevant to the peculiar IDP context. Besides providing a context for the emergence of global efforts on internal displacement, the global framework has influenced the development of regional norms on internal displacement in Africa, notably: the Protocol on the Protection and Assistance of Internally Displaced Persons (2006) and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (2009) (Kampala Convention). Through this framework, the regional discourse on internal displacement has gained attention, evidently in view of the fact that they accentuate binding legal obligations on states for the furtherance of IDP safeguards and consequently require national-­ level action. This edited volume engages the issue of IDP protection with specific attention on various national contexts. The aim of this edited book is to provide context-based engagement on the subject of internal displacement across countries in Africa. A synopsis of the chapters in this book is provided in the next section.

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Outline of Chapters

This book examines the issue of internal displacement, reflecting on national perspectives to build knowledge on the furtherance of protection and assistance of IDPs. Each of the chapters in this book draws on significant context-­ based knowledge and on the issues. There are nine chapters in this book. Chapter 1 provides a background to the discussion. In Chap. 2, Rose Mwebi examines the emergence of the normative framework on internal displacement in South Sudan. The author considers the process of formation of the national legal framework, reflecting on the opportunities presented by the regional framework for the furtherance of protection and assistance to IDPs in South Sudan. In Chap. 3, Walters Samah considers IDP protection from the perspective of humanitarian mediation. Drawing on the Central African Republic, he considers how protection for IDPs may be mediated. This chapter examines how actors on the humanitarian scene are engaging in the furtherance of IDP safeguards through mediation, specifically humanitarian mediation as a means of overcoming humanitarian access concerns. In Chap. 4, Enguday M. Ashine reflects on the national protection of IDPs in Ethiopia. The chapter reflects on the existing gaps and how these gaps may be addressed through a rights-­ based approach to the furtherance of IDP protection. Moreover, with the ratification of the Kampala Convention in Ethiopia, the author argues that it is pertinent to reflect the tenets of this instrument within the domestic regime, more concretely. In Chap. 5, Nelly C.  Rotich reflects on the issue of development projects and internal displacement. With specific reference to Kenya, this chapter examines the duty to protect the right of IDPs development, while also considering the benefits of development projects. She concludes that there is a need for compliance with relevant standards, including standards on IDP protection in order to protect persons displaced by development projects.

1 Introduction

In Chap. 6, Nqobizitha Ndlovu and Enyinna S. Nwauche review the domestic laws and policies in Zimbabwe relevant to the land and property rights of IDPs. This chapter makes the pertinent point that in the absence of a specific normative framework on IDPs, the 2013 Constitution of Zimbabwe provides a basis for rights-based protection flowing from the Bill of Rights. In Chap. 7, Olanike Adelakun considers the protection of children in the context of internal displacement, with specific reference to Nigeria. Drawing on data generated through field study, the author examines the protection of specific rights of internally displaced children across camps in the northern region of Nigeria affected by the Boko Haram conflict. The author emphasises the importance of strengthening national protection on internal displacement and the need for structural arrangements particularly to address the societal dimensions on IDP protection and assistance. In Chap. 8, Walters Samah and Emmanuel S.  Tata examine the situation of IDPs in the Anglophone region of Cameroon. The authors significantly reflect on the crisis in the region of the state, considering the humanitarian effect of the crisis and how it relates to the broader political debate around the Anglophone problem in

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Cameroon. While the authors reflect on the measures taken by the state and the extent of its effectiveness, they argue for an end to the violence through a deliberative process involving various levels of governance. In Chap. 9, Romola Adeola examines national protection of IDPs in Africa, reflecting on law and policies across the continent. This chapter examines what has been done in various national contexts and how protection may be enhanced in the furtherance of the global and regional frameworks on internal displacement.

References African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, adopted at the Special Summit of the African Union Heads of States and Government in Kampala, Uganda (19-23 October 2009) International Conference on the Great Lakes Region Protocol on the Protection and Assistance of Internally Displaced Persons (2006) UN Commission on Human Rights, Addendum, ‘Guiding Principles on Internal Displacement’ Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission on Human Rights resolution 1997/39, UN Doc. E/ CN.4/1998/53/Add.2 (11 February 1998) UN General Assembly Transforming our world: the 2030 Agenda for Sustainable Development, UN Doc A/ RES/70/1 (21 October 2015)

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Towards a Legal Framework on Internal Displacement in South Sudan Rose Mwebi

Abstract

Keywords

In 2018 on the 20th anniversary of the 1998 UN Guiding Principles on Internal Displacement (Guiding Principles), South Sudan moved forward with development of a national law, namely the “Protection and Assistance to Internally Displaced Persons Act 2019” for the protection and assistance of internally displaced persons (IDPs), based on the Guiding Principles and the African Union Convention for the Protection and Assistance of Internally Displaced Persons (Kampala Convention). Although the finalised draft legislation is yet to be adopted by the Government as at September 2020, the initiative represents an important step towards development of a legally binding national instrument of protection for IDPs. This chapter considers the process of developing the national law and how the draft national legislation provides for protection of IDPs.

Internally displaced persons · Internal displacement · Law · Protection · South Sudan

The views expressed in this chapter are those of this author. R. Mwebi (*) UNHCR Senior Policy/Humanitarian Advisor (seconded to IGAD), Juba, South Sudan e-mail: [email protected]; [email protected]

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Introduction

In 2018, on the 20th anniversary of the 1998 Guiding Principles on Internal Displacement, the Republic of South Sudan, which gained independence in July 2011, embarked on a journey to develop a national legislation, “The Protection and Assistance to Internally Displaced Persons Act 2019” based on the 1998 Guiding Principles on Internal Displacement (Guiding Principles) (United Nations 1988) and the 2009 African Union Convention for Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) (African Union 2009). As the product of a 1-year deliberations and consultations with Government, partners and internally displaced persons (IDPs), the national legislation represents the first significant effort to transform the Guiding Principles (United Nations 1998) and the Kampala Convention (African Union 2009) into a legally binding instrument of protection for IDPs in South Sudan. Even as the process of developing the national legislation

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. Adeola (ed.), National Protection of Internally Displaced Persons in Africa, Sustainable Development Goals Series, https://doi.org/10.1007/978-3-030-66884-6_2

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was under way, South Sudan acceded to the Kampala Convention (African Union 2009) on 29 May 2019 becoming the 28th State in Africa to ratify the instrument (African Union 2009). While the national legislation expresses a normative dimension in re-establishing the social contract to protect between the government and its people, there has to be a lasting peace in South Sudan for effective implementation of the national legislation. In the absence of peace, the law will not be of benefit to the people of South Sudan. Indeed, efforts by the Government to address the root causes of the conflict in South Sudan were revived in 2017, when the leaders of the Inter-Governmental Authority on Development endorsed the creation of a HighLevel Revitalization Forum to bolster the essentially obsolete 2015 Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS) (Inter-Governmental Authority on Development 2015). This development presented a window of opportunity for the United Nations High Commissioner for Refugees (UNHCR) and International Committee of the Red Cross (ICRC) to renew advocacy for South Sudan’s accession to the Kampala Convention (African Union 2009) which had been delayed, due to the civil war of December 2013. The High-Level Revitalization Forum (HLRF) led to the signing of the Revitalized Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS) (Inter-Governmental Authority on Development 2018) in September 2018 and has resulted in the formation of a Revitalised Transitional Government of National Unity (R-TGoNU), providing new opportunities to address the root causes of the civil war in South Sudan (United Nations Security Council 2019). The R-ARCSS (Inter-Governmental Authority on Development 2018) addresses humanitarian assistance and reconstruction in Chap. 3, which provides for the rights of IDPs to return in safety and dignity, and tasks the R-TGoNU to institute programs for relief, protection, repatriation, resettlement, reintegration, and rehabilitation of IDPs and returnees in coordination with the United Nations and other relief and humanitarian agencies, and to offer special consideration to

R. Mwebi

conflict-affected persons (Inter-Governmental Authority on Development 2015). The elaboration of a national legislation on IDPs for South Sudan, at this time, was seen as timely, in light of the R-ARCSS (Inter-Governmental Authority on Development 2015), which lays emphasis on the need for solutions for both IDPs and refugees. Thus, the national legislation on IDPs is to enable the Government to better prevent instances of internal displacement, provide enhanced protection and assistance to IDPs and enable achievement of durable solutions. Such steps, while commendable, come at a time when there is still widespread insecurity in the country and violence towards IDPs as evidenced by the United Nations Security Council Resolution on South Sudan (United Nations Security Council 2020). An estimated 1.6 million South Sudanese are internally displaced (United Nations Office for the Coordination of Humanitarian Affairs 2020), approximately 200,000 of them living in United Nations Protection of Civilian (PoC) sites, seeking protection. Also, over 2.2  million displaced South Sudanese have sought refuge in neighbouring countries (United Nations High Commissioner for Refugees 2019a). The current wave of displacement in South Sudan is a result of the conflict that arose in 2013 and further localised violence across the country, which culminated in another major conflict in Central Equatoria State in July 2016. Although the conflict in July 2016 seemingly lacked the intensity of fighting experienced in 2013, the number of reports on gross violations of human rights, including summary killings, rapes and other forms of Sexual and Gender-Based Violence (SGBV) targeting civilians attributed to members of organised military forces, raised significant alarm within the humanitarian community (United Nations Security Council 2018). Many IDPs continue to face vulnerabilities resulting from the conflict and postconflict situation, with women and children bearing the impact of suffering and violence (United Nations Security Council 2019), while their rights to access basic services—food, water, shelter and health care—are not adequately met due to the magnitude of needs and dwindling

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humanitarian funding. (United Nations Office for the Coordination of Humanitarian Affairs 2020). The nature of this situation has made the development of a draft national legislation an imperative in protecting and assisting IDPs. This chapter reflects on the development process of the national legislation on IDPs.

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Developing the Draft National Legislation

The development of the national legislation was an initiative of the Government through its Ministry of Humanitarian Affairs and Disaster Management (MHADM), aimed at ending years of displacement and strengthening its national legal system for the protection of IDPs. As such, MHADM led the process with the support of UNHCR and contribution of various stakeholders. Throughout the process of developing the law, UNHCR provided technical support to the Government. Chaloka Beyani was the Government and UNHCR expert for drafting of the national legislation and tapped into local expertise at the MHADM, Return and Rehabilitation Commission (RRC) of South Sudan and partners. Prior to commencement of the drafting process, the South Sudan Law Society undertook legal review to identify gaps in the national laws relating to IDP protection, providing critical recommendations on legal gaps to be addressed in drafting the national legislation. Developing the national legislation built on a participatory process akin to the process of drafting the Kampala Convention (African Union 2009), most notably the principles of participation, inclusiveness, partnerships and ownership (Beyani 2006). The core goal of the participatory consultations was to identify the needs of IDPs and challenges to state responses in order to determine how the legislation should respond to the needs and challenges. The global initiative on internal displacement (GP20) Plan of Action and the South Sudan GP20 Action Plan provided the necessary platforms for such consultations. Thus, the coordination platform established under the

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South Sudan GP20 served as the mechanism for steering the development of the legislation. In addition to the South Sudan GP20 forum, existing networks such as the Humanitarian Country Team (HCT), Inter-Cluster Working Group (ICWG) and Protection Cluster (PC) coordination mechanisms, provided an added advantage. The process of elaborating the legislation began in earnest in 2018 when the Government and UNHCR jointly convened a workshop on law making for IDPs, with the country’s two parliamentary Committees of Human Rights and Humanitarian Affairs, and Legislation and Justice, playing a key role. The aim of the workshop was to help build capacity of the actors on law and policy, in order to boost their participation in the process. That workshop sealed the marriage of convenience between political will and law making for IDPs. It ended with a halfday validation event during which representatives of the Government, South Sudan GP20 partners and other members of the Inter-Agency coordination mechanisms in South Sudan contributed to key areas of the legislation and its provisions. The participation of line ministries at the technical level at the workshop provided practical insights on coordination and delivery of protection and assistance, thus guiding formulation of the legislation. In the validation event, the workshop and validation event had been planned to seek further inputs from middle and senior government authorities who also reviewed the outcomes of the workshop and provided additional perspectives towards the initial draft of the legislation. The donor community and designated officials from government ministries and parliament had positive reviews of the progress made during the workshop. Participation of IDPs was key to the process, and in particular, active participation of IDP women ensured that their specific protection concerns and solutions challenges were well articulated in the legislation. The right to participation of IDP women was also highlighted in UNHCR research undertaken in South Sudan and Niger that indicates that a lack of meaningful participation of internally displaced women in decision-making and law-making processes often contributes to their disempowerment

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and even marginalisation (United Nations High Commissioner for Refugees 2019b). A roundtable was convened in Juba that validated the zero draft of “The Protection and Assistance to IDPs Act 2019” resulting from the above workshop and validation event. The roundtable was convened by MHADM and UNHCR and attended by humanitarian and development partners, academia, African Union (AU) representatives, civil society organisations and representatives of IDPs, both men and women. Consultations on the draft legislation during this event were aligned to the Guiding Principles (UN High Commissioner for Refugees 1988) and the Kampala Convention (African Union 2009) with respect to: Obligations of State Parties relating to Protection from Internal Displacement (Principle 19 and Article 4), Protection and Assistance During Internal Displacement (Kampala Convention Article 9) and Sustainable Return, Local Integration or Relocation (Kampala Convention Article 9). For example, when considering obligations for protection from displacement, within the prohibited categories of arbitrary displacement enumerated in Article 4, an internally displaced woman who had suffered multiple displacements due to the conflict raised the question of national responsibility to protect and effectiveness of early warning systems. It was recommended to stregthen early warning systems to enable identification of threats, with the aim of managing, resolving or preventing violent conflict. Discussions on protection during displacement as provided by Article 9 of the Kampala Convention (African Union 2009) encompassed mechanisms for coordination of protection and assistance and adequacy of state responses. It was resolved that effective coordination for protection and humanitarian assistance for IDPs requires a multi-tiered, inter-ministerial approach, to meet the coordination needs. In addition, an inter-sectoral platform would facilitate improved planning, assessment and prioritisation of needs across the responses. The composition of the national level inter-­ sectoral forum would include all relevant stakeholders with participation of South Sudan National Human Rights Commission to strengthen monitoring mecha-

R. Mwebi

nism. Participation of representatives of various groups of IDPs including women and children of diverse backgrounds in the coordination of the planning and response would be facilitated through regular field visits and their involvement in national and state level coordination meetings. It was important to ensure that the draft legislation establishes a focal point for the coordination of protection and assistance for IDPs. The legislation iterates the role of RRC as focal body in protection and assistance of IDPs to mirror the Return Resettlement and Rehabilitation (RRC) Act of 2016 (Government of South Sudan 2016) with overall strategic responsibility of the MHADM. Similarly, based on the Guiding Principles (UN High Commissioner for Refugees 1998) and the Kampala Convention (African Union 2009) that substantively provide for durable solutions, there were discussions around a stronger role of Government in enabling free choices of IDPs in durable solutions. In this respect, return should be planned in such a way that it reflects the cause of displacement, intention of IDPs and integration needs in return areas such as systems for the furtherance of rule of law, provision of basic services and mechanisms for reconciliation. Further, the roundtable discussed challenges to achieving durable solutions such as inadequate measures for resolving housing, land and property (HLP), and to this end, recommended strengthening capacities of government institutions to respond to IDPs and host communities’ needs in reintegration. In this regard, it was noted that while there are existing national laws that afford protection to IDPs, for instance, as citizens, there were challenges relating to inconsistencies between law and practice in addition to institutional challenges. The legislation received comments and reviews from a variety of stakeholders, under an approach of inclusiveness and participation, which allowed the expert to refine the zero draft legislation. Further, bilateral consultations allowed inter-ministerial committees and experts in law and policymaking from Government to play a key role in the drafting process. Clarification on roles and responsibilities of line ministries and commissions in coordination of

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protection and assistance to IDPs was further elaborated in the legislation. A final stride in developing the legislation was a seminar co-organised by the MHADM, UNHCR and the University of Juba to sensitise the public on the legislation and its role in addressing internal displacement. The seminar was able to further build on the participatory process of developing the legislation through participation of senior government officials and a range of stakeholders. Such participation included key architects of law-making process in South Sudan including the author of the Guiding Principles, Dr. Francis Deng, Dr. Chaloka Beyani, UN agencies, AU representatives, human rights and humanitarian NGOs, women and youth groups, academia and civil society organisations. The role of civil society in raising awareness on the plight of IDPs as well as its capacity for direct and rapid engagement with IDP communities was stressed during this event, providing important insights on broader issues of protection and assistance to IDPs. Likewise, the important role of human rights institutions was highlighted and encouraged.

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 pportunities Presented by O the Legislation

The scope of protection and assistance in the law aligns with the Guiding Principles (United Nations 1998): from prevention through to durable solutions for IDPs. In addition, the legislation includes discussions on peace and transitional justice and provides for incorporation of provisions of the Kampala Convention (African Union 2009) in the on-going implementation of the R-ARCSS (Inter-Governmental Authority 2018). Drawing from the Kampala Convention (African Union 2009), the draft legislation acknowledges and recognises the possibility of holding non-state actors accountable for human rights violations. It requires the state to exercise criminal jurisdiction over individuals who cause displacement. This is an important provision noting the general developments on individual responsibility and accountability in the Kampala Convention (African Union

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2009) and in international law generally (Orchard 2016). The legislation clarifies who an IDP is in line with the Guiding Principles (United Nations 1998) and the Kampala Convention (African Union 2009), the rationale for creating the IDP category, being merely that of highlighting the specific vulnerabilities of the populations, which was deemed helpful for courts and practitioners. Further, the draft legislation clarifies that IDPs are citizens of the country, having the same rights granted to citizens and residents under national laws and the Constitution of the country. In this respect, the notion of “internal displacement” does not entail the creation of a new legal category. The draft legislation goes further to clarify the definition of host communities and populations affected by displacement, to avoid leaving the categories to broad interpretations. The draft national legislation, in parallel with the Guiding Principles (United Nations 1998) and the Kampala Convention (Kampala Convention 2009), reaffirms economic, social and cultural rights of IDPs as with the primary responsibility of the State to implement these rights, while also providing a role for the international community to support the state in realising the rights. Within the context of protection for internally displaced women, the legislation adapts international protection benchmarks to suit local conditions, particularly in the areas of property restitution, and property rights of women and children born out of wedlock. The legislation also creates an inter-­ministerial coordination mechanism under the auspices of the Office of the President, thus providing an opportunity to implement the law and strengthen state responses to internal displacement as discussed during the roundtable consultations. Beyond the enumerated protection in the Kampala Convention, the legislation includes innovations such as area-based solutions, transitional solutions, use of cash grants to support resilience for IDPs and relocation from UN Protection of Civilian (PoC) sites that are specific to South Sudan context. The legislation further links humanitarian and peace actions with longterm socio-economic development within the

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Sustainable Development Goals (SDGs). Furthermore, the legislation introduces the doctrine of “civilian and humanitarian character” of IDP by drawing on applicable legal frameworks, in particular international humanitarian law, in order to promote protection of IDPs in the cause of displacement. Moreover, noting that many states that have ratified the Kampala Convention often lack means of fully domesticating the treaty, the legislation establishes an integrated fund for implementation of the legislation and strategies for resource mobilisation to ensure that funding for IDPs is obtained beyond the emergency phase. The proposed fund will be financed by budgetary provision and a percentage of revenue from the proceeds of oil by the Government. In establishing the Fund, the legislation reinforces the funding mechanism for implementation of Chap. 3 of the R-ARCSS (Inter-Governmental Authority on Development 2018) which establishes a Special Reconstruction Funding to bolster programmes for return, relocation and reintegration of South Sudanese refugees and IDPs.

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Conclusion

The development of the draft national legislation on internal displacement in South Sudan is notable and constitutes a valuable example of implementing the Guiding Principles and the Kampala Convention. Together with the R-ARCSS (InterGovernmental Authority on Development 2018), the legislation contributes to advancing the regime on conflict prevention and peace and implementing comprehensive solutions consistent with relevant international standards including the Global Compact on Refugees (United Nation 2018). Such benefits, however, can only be realised, if implementation is sustained. Having significantly supported the collective efforts in developing the legislation together with the Government, I would offer the following suggestions, as next steps in the furtherance of the legislation:

• Mapping of stakeholdersand and their key roles in advocacy towards adoption and implementation of the law. • Developing of summary notes on the legislation to inform stakeholders and internally displaced persons of its key provisions and thematic areas. • Conducting training sessions for parliamentarians on their role in the process of adopting the law and its implementation and capacity building activities for relevant line ministries. • Promoting inter-state learning through study visits to neighbouring countries that have made commendable national efforts in implementing national legislations and policies on internal displacement. • Consultations with internally displaced persons in the execution of protection and assistance programmes and in implementing durable solutions with attention to the protection needs of women, children and persons with specific protection concerns. • Stregthening coordination between the inter-­ ministerial committee and national mechanisms linked to the South Sudan National Human Rights Commission to identify the service delivery gaps and how the provisions of the legislation can provide advocacy to mitigate the gaps. • Collaborative profiling exercise led by the government, national bureau of statistics, humanitarian and development partners should inform advocacy strategies based on research and positions based on common evidence. • Providing technical support to the inter-­ ministerial committee, RRC and transitional mechanisms under the R-ARCSS (InterGovernmental Authority on Development 2018) to strengthen implementation. • Providing technical support to line ministries and lower level operational and technical inter-sectoral forums dedicated to the humanitarian situation within government to ensure that the national law permeates

2  Towards a Legal Framework on Internal Displacement in South Sudan

through the government and non-governmental programmes. • Designating a focal point in each ministry to record activities for purposes of institutional memory and to feed information to the interministerial coordination forum and RRC that is designated as focal point under the legislation. • Promoting South Sudan’s participation in peer exchanges on dealing with displacements and durable solutions and development under the auspices of the AU and other regional institutions including IGAD, to foster solidarity among the countries in the region.

References African Union (2009), Kampala Convention and ratifications at: https://au.int/en/treaties/african-­ union-­c onvention-­p rotection-­a nd-­a ssistance-­ internally-­displaced-­persons-­africa. Accessed on 27 June 2020 C. Beyani (2006), Recent Developments in the Treatment and Protection of Internally Displaced Persons, LSE, Law Dept. Working Paper 4-2006 GP20 (2018), GP20 Global Plan of Action at: http://www. globalprotectioncluster.org/_assets/files/unhcr-­gp20-­ plan_of_action-­a5-­scren.pdf Accessed on 26 June 2020 Inter-governmental Authority on Development (2015), Revitalised Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS) at: https://igad. int/index.php?option=com_content&view=article&i d=1193:agreement-­on-­the-­resolution-­of-­the-­conflict-­ in-­t he-­r epublic-­o f-­s outh-­s udan&catid=1:latest-­ news&Itemid=125 Accessed on 28 June 2020 Inter-governmental Authority on Development (2018), Revitalised Agreement on the Resolution of the

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Conflict in South Sudan (R-ARCSS) at: https://igad. int/programs/115-­south-­sudan-­office/1950-­signed-­ revitalized-­a greement-­o n-­t he-­r esolution-­o f-­t he-­ conflict-­in-­south-­sudan Accessed on 28 June 2020. United Nations Office for the Coordination of Humanitarian Affairs (2020), Humanitarian Response Plan at: https://reliefweb.int/report/south-­sudan/ south-­s udan-­h umanitarian-­r esponse-­p lan-­2 020-­ december-­2020 Accessed on 30 May 2020 Phil Orchard (2016), Global Responsibility to Protect, Vol.8, No. 2-3 South Sudan GP20 (2018), South Sudan GP20 Concept Note at: http://www.globalprotectioncluster.org/news-­ and-­events/gp20-­a ctivities-­a nd-­i nitiatives/south-­ sudan-­gp20-­concept-­note/ Accessed on 26 June 2020 United Nations (1988) res. 60/L.I, para. 132, UN doc. A/60/L.I. Guiding Principles on Internal Displacement at: http://www.internal-­displacement.org/internal-­ displacement/guiding-­p rinciples-­o n-­i nternal-­ displacement: Accessed on 30 June 2020 United Nation (2018), Global Compact on Refugees, at: https://www.unhcr.org/5c658aed4.pdf Accessed on 28 June 2020 United Nations High Commissioner for Refugees (2019a), Regional Refugee Response plan, at: https://www. unhcr.org/refugee-­response-­plans.html Accessed on 28 June 2020 United Nations High Commissioner for Refugees (2019b), Tearing Down the Walls: Confronting the Barriers to Internally Displaced Women and Girls’ Participation in Humanitarian Settings, at: https://data2.unhcr.org/ en/documents/details/70156 Accessed on 30 June 2020 United Nations Security Council (2019), SG’s 90-day report on South Sudan” S/2019/491 at: https:// www.securitycouncilreport.org/un_documents_ type/secretary-­g enerals-­r eports/?ctype=South%20 Sudan&cbtype=south-­sudan Accessed on 30 May 2020 United Nations Security Council (2020), Resolution 2521(2020) at: https://www.un.org/press/en/2020/ sc14199.doc.htm

3

Mediating Protection of Forcibly Displaced Populations in the Frontlines of the Central African Republic Walters Samah

humanitarian actors to communities in need of essential life-saving assistance and services. Drawing examples from the Central African Republic, this chapter looks into humanitarian action during armed conflict and demonstrates how aid organisations are increasingly turning to humanitarian-driven mediation to overcome the humanitarian access challenge and protect displaced people.

Abstract

Forcibly displaced populations are among the most vulnerable and defenceless groups of people in situations of armed conflict. Often, their vulnerabilities are exploited by warring parties, particularly non-state armed groups as a deliberate tactic of war. Flagrantly disregarding International Humanitarian Law, non-­ state armed groups are increasingly targeting civilians, and humanitarian actors and the conflicts they engage in have resulted in high civilian casualties and massive human displacement. According to the United Nations High Commissioner for Refugees, Africa is home to nearly a third of the world’s refugees and Internally Displaced Persons with these numbers soaring recently due to the crises in the Central African Republic, South Sudan, Burundi and Nigeria. Armed conflicts remain the primary drivers of forced displacement. In many of the conflict situations, humanitarian workers face severe challenges in their quest to access and offer protection to displaced communities. A central factor to the effectiveness of humanitarian action is access by The views expressed in this chapter are those of this author. W. Samah (*) African Union Mission in Somalia (AMISOM), Mogadishu, Somalia

Keywords

Internally displaced persons · Internal displacement · Humanitarian mediation · Protection · Central African Republic

1

Introduction

The Central African Republic (CAR) is a landlocked country that has been plagued by decades of instability and violence since its independence in 1960 (Global Conflict Tracker, Council on Foreign Relations 2018). The most recent wave of armed violence began in late 2012 when a predominantly Muslim rebel coalition known as Séléka, led by Michel Djotodia launched a violent campaign that led to the overthrow of President François Bozizé in March 2013 (Human Rights Watch 2013b). In the process of seizing power, rogue rebels of the Séléka coali-

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. Adeola (ed.), National Protection of Internally Displaced Persons in Africa, Sustainable Development Goals Series, https://doi.org/10.1007/978-3-030-66884-6_3

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W. Samah

14

tion, which included mercenaries from Chad and Sudan (Human Rights Watch 2014; Sayare 2013)), committed abuses and atrocities against civilians of the Christian majority in Bangui and other regions including killing, looting, ransacking property and burning churches.1 Consequently, with the official dissolution of Séléka on 13 September 2013; followed by the resignation in January 2014 of the CAR’s first Muslim leader President Djototia, a mainly Christian self-­ defence militia, called anti-Balaka, emerged and began attacking the country’s Muslim minority. With Christians considered supporters of the anti-Balaka and Muslims supporters of the former Séléka rebel coalition, the CAR’s conflict quickly transformed from what was a political conflict into a sectarian and inter-community crisis. This prompted fears that such a dangerous move would lead to ethnic cleansing, evoking memories of the 1994 Rwandan genocide (Escoffier et al. 2014: 2; Amnesty International 2014). What followed were reprisal and counter-­ reprisal attacks that caused thousands of deaths, massive population displacements and an unprecedented protection crisis, characterised by horrific human rights violations inflicted on the civilian population by all the parties to the conflict (Human Rights Watch 2014). These attacks bore a heavy toll on the CAR’s Muslim population as entire communities were wiped out. The situation of Muslims in the CAR was best captured by Peter Bouckaert, Emergencies Director at the Human Rights Watch, who on 16 March 2014 reported that (Bouckaert 2014) Baoro was once home to at least 4,000 Muslims and more than a dozen mosques. Now there are none. The last Muslims of Boali, where the local Catholic priest sheltered 700 in his Church, left for Cameroon. The last Muslims of Yaloke, where more than 10,000 had lived, left for Chad. The last Muslim in Mbaiki, Saleh Dido was murdered recently by the anti-Balaka, his throat slit as he tried to find shelter with police.

Even the presence of a 6000 strong African Union (AU) peacekeeping force backed by French Before the outbreak of the civil war, the CAR’s population comprised of about 50% Christians, 15% Muslims and 35% indigenous believers. 1 

forces did not prevent the continuation of targeted killings, looting and burning of homes and businesses. However, understanding the cycles of violence within the CAR goes deeper beyond the religious or ethnic dichotomies. For decades, political elites, driven by ‘self-interest, self-­ preservation and material gain,’ have manipulated these identities in the pursuit of state power and resources (Varin and Abubakar 2017: 150). In response to the situation in the country, the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) was established on 10 April 2014 under Chapter VII of the UN Charter with the protection of civilians as its utmost priority (UNSC Resolution 2149). However, the mission has not succeeded to deliver significant improvements in security (Human Rights Watch 2017). As a result, there has been repeated and continuing attacks against civilians, which have led Doctors Without Borders to describe the UN peacekeepers in the CAR as ‘roving, passive and spectators’ (Gupta 2019). Worse still, some of MINUSCA’s operations have themselves contributed to displacements, thereby deepening public mistrust towards the UN and the government.2 This, coupled with the lack of an effectively functioning State, makes the situation in the CAR extremely challenging for aid workers to provide life-saving assistance and services to civilians in need. However, an AU-brokered political agreement negotiated in Khartoum and signed in Bangui on 6 February 2019 between the CAR President Austin Archange Touadera and representatives of 14 rebel groups brought renewed hope for peace, reconciliation and stability. This peace deal is the eighth of its kind since 2012 (Internal Displacement Monitoring Centre 2019). On 15 November 2019, the UN Security Council extended MINUSCA’s mandate for 1 year until 15 November 2020 outlining some priority tasks for the mission such as supporting the CAR’s ‘Peace Agreement and proThe populations often blame the UN peacekeepers for firing on and killing civilians. For example, in April 2018, a botched military operation by MINUSCA troops accompanied by the  CAR security forces to forcibly disarm Muslims in PK5 led to civilian casualties and displacements.

2 

3  Mediating Protection of Forcibly Displaced Populations in the Frontlines of the Central African Republic

tecting civilians amidst continued attacks by armed groups’ (UNSC Resolution 2499). Meanwhile, the humanitarian crisis resulting from this conflict has called for proactive measures in achieving humanitarian action, particularly for Internally Displaced Persons (IDP). It is against this background that this chapter examines how humanitarian mediation has been utilised to improve humanitarian access and in response to the displacement situation.

2

 he Forced Displacement T Context

The majority of the CAR’s Muslim community in 2013, which was estimated at 15% of the total population of 4.5 million, fled to the north-east of the country in order to escape the violence and to neighbouring Cameroon and Chad, while several thousands were trapped in enclaves, schools and religious compounds across the country (Human Rights Watch 2013a). Separated by mutual fear and suspicion, there was little hope for restoring social cohesion between Muslim and Christian communities in the CAR (Neal 2014: 14). Elections in 2016 raised hope of an end to the violence, but the opportunity for peace slipped away when violence erupted again at the start of 2017. Indeed, the renewed violence led to widespread displacement, with tens of thousands of

15

people fleeing their homes and a growing number forced to escape to remote locations beyond the reach of humanitarian organisations. The year 2017 saw the security situation worsen with intense violence and displacement continuing into 2018 with clashes between armed groups in Ouham Pende, Ouaka and Haut-Kotto prefectures leading to the recorded 510,000 new displacements (Internal Displacement Monitoring Centre 2019). Statistics from the UN High Commissioner for Refugees (UNHCR) indicate that as of October 2019, 593,000 refugees from the CAR fled to neighbouring Cameroon, Chad, the Democratic Republic of Congo, the Republic of the Congo, Sudan and South Sudan while the number of the IDPs was 600,000 (UN High Commissioner for Refugees n.d.). As of December 2019, at least 2.6  million people needed humanitarian assistance (UN Office for the Coordination of Humanitarian Affairs n.d.). The UNHCR further indicated that insecurity was affecting areas such as the centre northwest, east and south-east of the CAR some of which had not been affected by violence formerly (UN High Commissioner for Refugees n.d.). The evolving security situation remains bleak, raising fears of further displacement within and beyond the borders of the CAR. The figure below by the Internal Displacement Monitoring Centre (IDMC) maps the wave of displacement in the CAR between 2009 and 2018 (Internal

Annual conflict and disaster displacement figures

IDPs (Stock)

800,000

800,000

600,000

600,000

400,000

400,000

200,000

200,000

0

2009

2010

2011

2012

2013

IDPs (Stock) Conflict

2014

2015

2016

2017

2018

New Displacements (Flow)

1,000,000

1,000,000

0

New Displacements (Flow) Disaster

Source: Internal Displacement Monitoring Centre (IDMC) –2019

Source: Internal Displacement Monitoring Centre (IDMC)—2019

16

Displacement Monitoring Centre 2019). Notably, displacement was at its peak in 2013 when the Seleka took over the capital, Bangui, installing its leader Michel Djotodia as President and triggering the sectarian conflict that ensued.

W. Samah

with undefined end dates implying prolonged humanitarian need, poses a key challenge for humanitarian action that is usually programmed to be a short-term measure to ultimately pave the way for long-term development responses. To overcome this challenge, humanitarian agencies have begun to change strategy by not only offer3 Mediating Humanitarian ing emergency assistance but also addressing underlying root causes of conflict (Weiss and Access in the CAR Evans 2012: 83–84). To this end, some have been In the post–World War II era, most wars have attempting to conduct post-conflict peace-­ been intra-state as opposed to the inter-state wars building demonstrated by the ‘desire to spread of the first half of the twentieth century. Usually development, democracy, and human rights’ asymmetric, these intra-state wars are character- while creating ‘stable, effective and legitimate ised by the increased participation of armed non-­ States’ (Weiss and Evans 2012: 83–84). state actors who often disregard the laws of Furthermore, to overcome new challenges armed conflict, and this presents a new challenge related to delivering aid and protecting victims of to humanitarian action particularly humanitarian violent conflict, some humanitarian entities have access. As a consequence, humanitarian actors come to realise the necessity to adopt more flexare increasingly finding themselves on new fron- ible and adaptable ‘operating principles’ and tiers requiring engagement with non-state armed ‘styles’ (Weiss and Evans 2012: 70). This has led groups in order to access and offer assistance and to, among other factors, the acknowledgement of protection to civilians in need (Mc Hugh and the need for ‘mediation on a humanitarian basis’ Bessler 2006). The worsening security situation in contexts where political dialogue or face-to-­ in the CAR has continued to pose difficulty in face negotiation has proven to be a challenge accessing civilians who increasingly became vic- (Centre for Humanitarian Dialogue n.d.). tims of the violence. The security and humanitar- Mediating among non-state armed groups thus ian situation in the country is further compounded becomes one of the critical entry points to reach by the fact that humanitarian workers are also and deliver the much-needed assistance to those targets of these armed groups. In 2017, the CAR in need. became one of the world’s most dangerous places A relatively new concept, humanitarian mediin which to deliver humanitarian assistance, with ation is different from political mediation and 265 incidents targeting humanitarian actors and other forms of humanitarian engagements, such 14 aid workers killed (Kleinfeld 2018a, b). as humanitarian negotiation.3 It denotes a volunHumanitarian actors are thus finding themselves tary and inclusive process that seeks to address in complex operational environments, and there- humanitarian concerns in an emergency context, fore, it is becoming increasingly and urgently by which a neutral, impartial and independent critical that the international humanitarian archi- actor assists conflicting parties to establish or re-­ tecture finds innovative ways to deliver its establish communication in order to find a solumandate. tion to their problem (CCHN 2016: 11–13). By Humanitarian action in the CAR is further engaging all parties to a conflict without bias, the undermined by the gross underfunding of the international humanitarian response, difficulties 3 It is not uncommon for humanitarian organisations to in coordination of humanitarian action, weak engage with armed groups. However, while humanitarian local capacities, and uneven distribution of fund- negotiation mostly focuses on non-state armed actors to protect their operations, humanitarian mediation proacing across the region (Norwegian Refugee tively seeks to engage closely with all relevant stakeholdCouncil and Internal Displacement Monitoring ers to protect not only their operations but also those of Centre 2014). The transformed war landscape, other actors as well as civilians.

3  Mediating Protection of Forcibly Displaced Populations in the Frontlines of the Central African Republic

humanitarian mediation process seeks to provide a space for everyone to discuss and resolve their grievances. Jacob Bercovitch and Richard Jackson note that mediation is ‘humanitarian’ when its objective is to ease the suffering of people and further to act in the face of increasingly brutal wars (Bercovitch and Jackson 2009). Linked to humanitarian mediation is insider mediation, which draws upon the abilities of trusted institutions or individuals within a conflict environment. The concept emerged from the recognition that key actors in communities at risk of conflict must be equipped with the appropriate skills for mediation and dialogue (United Nations Development Programme 2014). Insider mediators may include community, religious organisations, political leaders and state authorities who are trusted and respected by the community. They bring with them a greater level of legitimacy, cultural closeness with the parties, and the ability to convene all relevant stakeholders, including those impacted by the conflict.

3.1

 he Case of the Danish T Refugee Council

With the return of armed violence in late 2012 followed by the March 2013 coup d’état, the DRC expanded its activities in the country  in order to strengthen its protection capacities and enable durable solutions to displacement challenges.4 In early 2014, the DRC began ­implementing a humanitarian engagement proj-

In 2014 the DRC scaled up its emergency activities in the CAR by developing a social cohesion project to respond to the growing needs of displaced and other conflictaffected populations. The project was launched in Bangui, and its primary objective was to promote peaceful coexistence among communities torn apart by conflict before expanding to several provinces. This was done by strengthening local institutions, including mediation committees and enhancing local capacity for addressing safety needs and conflict-related issues, setting up community security plans, promoting a culture of peace and non-violence through an awareness campaign and developing conflict management skills, especially among the youth. The social cohesion project was complemented by the Emergency Mediation and Dialogue Facilitation Project. 4 

17

ect in the CAR known as emergency mediation and dialogue facilitation. This was a third-party neutral humanitarian mediation initiative funded by the European Union (EU)‘s Common Humanitarian Fund (CHF)5 and the European Commission’s Civil Protection and Humanitarian Aid Operations. The main aims of the project were to (DRC 2014b): • Prevent forced displacement and facilitate the return of returnees. • Prevent or reduce the impact of the outbreak of violence leading to a humanitarian crisis. • Improve humanitarian access of aid actors and agencies to affected populations. • Enhance respect of the fundamental rights of affected populations. • Facilitate access of affected populations to essential services (health, education, livelihood), humanitarian assistance and their fundamentals rights. • Support community dialogue processes to promote peaceful co-existence in communities torn apart by conflict. The DRC emergency humanitarian mediation and dialogue facilitation project sought to partner with local and regional actors, equipping them with community-based tracks II and II mediation and dialogue facilitation skills. It adopted this approach after experimenting it in two conflict hotspots, Bangui and Boda (DRC, Rapport d’evaluation 2014). An assessment of this pilot phase revealed three main lessons, namely there was a strong political will to support reconciliation efforts at the community level; community buy-in from the start is essential; and the lack of humanitarian assistance had created a gap between government and communities. The assessment also revealed that the community mediation and dialogue facilitation approach was useful and well adapted to the Central African CHF is a country-based pooled fund that provides early and predictable funding to NGOs and UN agencies for their response to critical humanitarian needs. It enables Humanitarian Country Team to allocate resources where they are most needed swiftly and to fund priority projects as identified in a Consolidated Appeal Process (CAP).

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context. Similar to the situation in the Democratic Republic of Congo described by Severine Autesserre (TED Global 2014), armed violence in the CAR is mostly driven by local grievances and bottom-up conflicts that require local remedies. Also, there is a multiplicity of pre-existing community or regional-based peace, dialogue and mediation committees (Zahar and Mechoulan 2017). To implement the project, DRC hired international mediation experts with experience in mediating inter-community conflicts in Africa to conduct a conflict-sensitive analysis of conflict hotspots and to help train, coach and mentor national staff.6 National staff selected to become mediators and dialogue facilitators underwent a 6-week intensive training in third-party mediation, during which they learned how to uncover the sources and dynamics of conflicts, clarify intentions and facilitate the development of solutions towards resolution. To ensure the quality of the training provided, the DRC hired the Canadian Institute for Conflict Resolution (CICR), which runs an accredited Third-Party Neutral (TPN) programme. Through teaching, role-plays and conflict scenarios, the training enabled DRC mediators to develop capacities in conciliation, mediation and facilitation of groups in conflict and to design conflict interventions. The DRC Emergency Mediation and Dialogue Facilitation project in the CAR relied on three main pillars, which included conflict analysis, training and mediation/dialogue facilitation (DRC 2014b).

3.1.1 Conflict Analysis The first pillar consisted of DRC conducting a comprehensive conflict analysis, aimed at advancing the understanding of the conflict dynamics. This required the deployment of mediation teams, composed of one international staff and three national mediators to each of the targeted hotspots. Coached in strong conflict analysis skills, these mediators spent between 6 and The author was a part of the team of international mediation experts hired by the DRC to implement the project, and many of the data in this section is based on his fieldwork.

6 

W. Samah

8  weeks in each of the hotspots. During their deployment, the mediation teams engaged with all relevant actors, from armed groups, community and religious leaders, grassroots organisations, women’s and youth leader communities, government entities and humanitarian and UN actors, to gain an in-depth understanding of the conflict dynamics. Data collected from the fieldwork was used in the production of baseline conflict-sensitive analysis reports of the hotspots. The reports examined the political, security and socio-economic drivers of conflict in the conflict hotspots, identified locally existing conflict/dispute resolution mechanisms and capacities. Also, the reports looked at the potential and possibilities for peace by exploring factors that foster or obstruct stability in an area, as well as the connectors and dividers. Besides, the reports highlighted the community’s sense of security and perception regarding critical factors such as the government, the armed groups, the other, government security forces (police and gendarmes), local authorities and the international peacekeeping force. More importantly, they formulated evidence-based recommendations for interventions.

3.1.2 Training Another pillar of the DRC humanitarian mediation and dialogue facilitation project is capacity building through training. To this end, two types of training were conducted, namely the basic training and training of trainers (TOT). The basic training was conducted for relevant stakeholders during the initial deployment of the DRC teams to a hotspot. Participants included armed groups (anti-Balaka and ex-Séléka), community leaders, religious leaders, civil society members notably youth and women’s representatives, security forces (police, gendarmerie), international forces and aid organisations. Apart from familiarising trainees with the main tools and techniques of community mediation and social dialogue, the basic training was designed to also sensitise them on the need for employing non-violent methods in resolving conflicts. Using role-plays and other practical exercises, the topics covered included understanding con-

3  Mediating Protection of Forcibly Displaced Populations in the Frontlines of the Central African Republic

flict, foundations and principles of mediation and dialogue facilitation, role and functions of the mediator/facilitator mediation and dialogue processes and stages and effective communication tools. The training sessions equipped civil society actors with the skills to enter into dialogue with armed groups and state authorities helped parties in conflict to understand that many of their differences were rooted in false perceptions about the ‘other’. It also helped them to know the destructive effects of rumour and how it can be managed. Concerning the TOT training, DRC trainers provided participants with the pedagogical tools to train others and coached them as they designed their first conflict transformation processes for their communities. Also, participants were taught the principles of impartiality, neutrality, consensus-­ building and confidentiality. These training workshops transformed local stakeholders, including armed militia fighters, to overcome their differences and develop collaborative action plans to resolve neighbourhood security and displacement issues. The mediation and dialogue facilitation model employed by DRC was based on an impartial third party who listens for the interests behind the positions of the parties, clarifies what is being disputed, does not judge or determine what is best for the parties, but instead helps them to find common ground and develop their solutions to their dispute. Though this conflict resolution approach was based on a Western model that departed vastly from local customs,7 DRC ­trainers made deliberate efforts to ensure it was contextualised by integrating local conflicts in the role-plays and exercises. According to Al-Zyoud, ‘the concept of impartiality resonated with the trainees and was greeted with tremendous enthusiasm and the skills learnt were later integrated in the traditional grievance mechanisms of different communities’ (Al-Zyoud 2015). In addition, many of The traditional justice system anchored on village and neighbourhood chiefs who lead an arbitration process in which the parties explain their grievances and the chief renders a decision.

7 

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the participants quickly found applications for these new skills in their daily lives and at work, as many began getting referrals from their neighbourhood chief to resolve community disputes. For the DRC, the training workshops provided an opportunity for its mediators to enhance their understanding of the issues affecting communities’ safety and security, as well as served as ‘door opener’ by facilitating stakeholder contacts and acceptance, in a context in which other organisations would otherwise offer humanitarian aid.

3.1.3 D  RC Humanitarian Mediation and Dialogue Interventions The DRC mediation and dialogue facilitation teams offered their services to the broader humanitarian community in the CAR. They were often solicited by aid organisations, including UN OCHA, to intervene in areas where there were difficulties in humanitarian access (Rapport d’ évaluation 2014). Accordingly, between March 2014 and June 2015  the DRC undertook many mediation and dialogue missions to various towns and villages across the country including Bangui, Boda, Poua, Berberati, Zemio, Dekoa, Carnot Nana, Bakassi, Ndele, Bossangoa, Batangafo, Kabo and Boka. Once deployed to the field, the DRC teams began by first identifying the relevant community peace committees and trusted individuals for training, coaching and mentoring. To this end, hundreds of local actors including traditional and religious leaders, respected elders, traders, school headmasters, and youth and women leaders benefitted from this initiative. Where local peace committees were inexistent, the DRC supported the establishment and proper functioning of new ones, while ensuring that they were inclusive in representation. The peace committees performed many functions including serving as go-betweens between armed groups and communities, mediating conflict and facilitating dialogues with armed groups, negotiating community violence-­ reduction deals and performing early-warning functions. In some locations, DRC mediators, frequently placed in the frontlines between the ex-Séléka and the anti-Balaka, organised inter-­

W. Samah

20

ethnic, inter-religious and agro-pastoral dialogues around security issues including transhumance and displacement. Ouham Pende is one province of the CAR that benefitted extensively from the DRC’s interventions in terms of mediation and dialogue facilitation support. By mid-2014, the province was awash with several armed groups that were restricting humanitarian relief personnel freedom of movement to carry out their tasks. When they were not attacking humanitarian convoys and stealing relief supplies, they were placing conditions for allowing the passage and distribution of relief to populations in need. However, by working with community-based mediation committees and through regular engagements with many of these armed groups, the DRC mediation teams were able to convince some of the armed groups to allow humanitarian access, denounce violence and agree to disarm and liberate schools in order to allow pupils to return to schools. For instance, on 11 November 2014, ‘General’ Senapou Elie one of the anti-Balaka leaders operating on Pougoul, located about 15 km from Paoua, sent a letter to the regional authorities and the MINUSCA contingent informing them of his decision to lay down his weapons and to stop erecting illegal checkpoints to harass and extort transporters drivers and motor taxis. Claiming he was heading an armed group numbering 337 fighters, ‘General’ Elie expressed his readiness to disarm and willingness to collaborate with  the administration to neutralise other armed groups. Paoua had an influential peace and mediation committee that played a key role interfacing between the community and armed group leaders. Composed of 21 members and headed by a trusted insider named Céline Nadjikouma, the committee was credited for negotiating an ­agreement on the free movement of people with Séléka leadership in Paoua in 2013. Even after the departure of the Séléka coalition, the committee continued to play a crucial role to promote the return of peace in the region. Accordingly, with the assistance of DRC mediators, it negotiated the release of people arrested and held by anti-­ Balaka and armed groups, and for the return of the displaced. Besides, it conducted advocacy

campaigns against the attacks of the Muslim community in Paoua and facilitated dialogue between different armed groups and with MINUSCA.  Also, discussions during meetings with armed groups often centred on how they could guarantee accessibility and safety for displaced communities and for humanitarian engagements with the areas under their control. In December 2014, the DRC was invited by aid organisations to intervene in Berberati, located near the border with Cameroon, some 450 km from Bangui. Before the war, Berberati, with its large Muslim community of several thousand, was seen as a model of religious tolerance cohesion. It was a place where inter-marriages between Muslim and Christian was common and Christian and Muslim children attended the same schools. However, when the crisis started, the Muslim community came under sustained and devastating attacks from anti-Balaka groups, forcing the majority to flee to neighbouring countries, leaving behind about 500 people who had taken refuge at the city’s Catholic seminary.8 By the time the DRC mediation team was deployed to Berberati in January 2015, the Muslim community were wholly confined inside the seminary, as they were prevented from going out even to fetch water, foodstuff or firewood by the anti-­ Balaka militia. An analysis of the situation in Berberati by the DRC mediation team revealed that inter-­ community dialogue had become difficult due to feeling of hate, betrayal and mutual suspicion. According to Nathalie Al-Zyoud, in the aftermath of the war, the trauma experienced by both the Christian and Muslim communities led to the creation of parallel narratives of victimisation which kept them physically and emotionally divided (Communities in Transition 2015). An attempt by the Archbishop of Berberati, Denis Kofi Agbenyadzi, to broker a dialogue between Since the start of the current crisis in the CAR in 2013, religious leaders have been playing a pivotal role in protecting displaced populations. For instance, at the height of the crisis, Catholic churches across the country did not only open the doors of their churches to terrified Muslims fleeing the violence, in many cases, they also took up mediation role.

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3  Mediating Protection of Forcibly Displaced Populations in the Frontlines of the Central African Republic

anti-Balaka and the Muslim community failed, leading to further killings of Muslims by the anti-­ Balaka militia. One of the reasons for the failure of the Archbishop’s mediation initiative was because it was not viewed favourably by the anti-Balaka which accused the Church of collaborating with Muslims, calling them traitors (Alexandre 2014). Consequently, the priest who was directly responsible for facilitating the dialogue with the anti-­ Balaka received many death threats and was held at gunpoint on many occasions (Alexandre 2014). However, the DRC mediation team’s initial engagements with the relevant stakeholders revealed an overwhelming desire for peace and security to return to Berberati. The violence which led to the departure of the Muslim business people that dominated the commercial sector had caused inflation and a significant deterioration in the quality of life for most of the city’s residents. What the people needed was a neutral third party to initiate dialogue, a role the DRC mediation team was willing and ready to play. Accordingly, the DRC mediation team, in collaboration with the regional administrator or Prefet, convened a conference under the theme: How to improve security in Berberati and its environs? Facilitated by DRC mediators and presided over the Prefet, the conference brought together all the relevant stakeholders, including state officials and representatives from anti-­ Balaka, the Muslim community, civil society organisations, traditional authorities, media, security forces and UN (MINUSCA and OCHA). After identifying and discussing the security challenges facing the city, participants working in committees formulated recommendations for possible interventions, including practical and realistic solutions. Additionally, participants agreed to set up an inclusive peace and reconciliation committee to follow up on the outcomes of the conference. This example shows how the humanitarian mediation process can enable local communities to set the agenda themselves and to find solutions to their most pressing security problems (Communities in Transition 2015). The immediate benefits of the conference was a de-­

21

escalation of the inter-community and inter-­ religious tension and violence. Furthermore, for the first time in nearly a year, the conference permitted members of the Muslim community to leave the Catholic seminary and go out to the city, without being attacked by anti-­ Balaka elements. Building on this initial success, the DRC team embarked on training the members of the newly established peace and reconciliation committee in community mediation and dialogue facilitation. It also assisted the committee in developing a roadmap/action plan for restoring peace and reconciliation in Berberati, including dealing with the question of the return of the Muslim community to their homes. The committee became the driving force for the restoration of peace in Berberati. With the DRC support, Muslim refugees and internally displaced people who had fled violence in Berberati slowly began to return to their home. After years of displacement, many who had been away for a long time found their homes occupied by other people in their absence. However, through dialogue and mediation, the returnees were assisted in regaining access to their homes. Nevertheless, the tension between the Muslim community and anti-Balaka was not the only factor causing tension in Berberati. On 20 December 2014, Congolese (DRC) community in Berberati were attacked, and their businesses and homes looted and ransacked by anti-Balaka militias, forcing them to flee and took refuge at the Catholic Church compound. The attack was in retaliation for a local anti-­ Balaka leader who had allegedly been killed by a UN peacekeeper from the Republic of Congo. This was a case of mistaken identity as anti-­Balaka militia could not distinguish between Congolese from the Democratic Republic of Congo (Congo Kinshasa) and those from the neighbouring Republic of Congo (Congo Brazzaville), their intended target. Living in constant fear and anxiety, each time the members of the Congolese community tried to go out to the city, elements of anti-Balaka attacked them. That was the state of affairs at the time DRC mediators deployed to Berberati in January 2015.

W. Samah

22

To initiate the dialogue between the two parties, the DRC mediation team held separate pre-­ mediation meetings with representatives of the Congolese community9 and anti-Balaka leaders. The outcome was an agreement to meet face-to-­ face to discuss issues relating to the protection, free movement and return of Congolese refugees to their homes. Accordingly, on 16 January 2015, DRC mediators facilitated dialogue between the two parties, in a meeting that was attended by three anti-Balaka leaders; 15 representatives of Congolese refugees; the Abbot Jean-Noel representing the Bishop of Berberati; 1 representative of MINUSCA and 4 DRC mediators. After listening to members of the Congolese community recount their ordeal since the attack, the anti-Balaka leaders apologised for their acts, which they attributed to a misunderstanding. They took a commitment to do everything necessary to prevent further violence against Congolese in Berberati. To this end, they promised to launch a radio sensitisation campaign to encourage the return of Congolese refugees to their homes. Similar interventions were carried out in other regions of the CAR. In Bangui and the enclaves of Boda, Dekoa and Carnot,  for example, DRC interventions led to a significant reduction of violence against civilians, greater freedom of movement for populations at risk and improvement in humanitarian access and acceptance especially in areas where NGOs were threatened or directly targeted by armed groups. Furthermore, since early 2016, humanitarian mediation and dialogue facilitation are still being used in returnee sites in Bangui to ensure a safe and conducive environment for the return of IDPs and refugees to their areas of origin and to enhance community participation and involvement in humanitarian response planning processes (Grimaud 2016: 2). In many other parts of the country, one of the issues that required the intervention of the DRC mediation teams was the DRC was granted permission to the Catholic Priest to meet the victims, who explained with alarming detail the horror they had gone through. At the Church compound, the DRC team met and discussed with frightened victims who had survived the attack, with some asking for assistance to return to their country.

tension and frequent clashes between armed groups and UN peacekeeping troops. In such areas, this translated to public animosity towards UN mission.10 To ease the tension, the DRC mediation team facilitated dialogue sessions between anti-Balaka and UN peacekeepers and between community leaders and the peacekeepers. The humanitarian community in the  CAR widely hailed DRC’s strategy of implementing humanitarian mediation and dialogue by supporting local community mediation as a success story. Attesting to this, the CAR Humanitarian Response Plan (HRP) which began promoting similar interventions as part of its humanitarian access strategy noted in 2015 (CAR Humanitarian Response Plan 2015, 14 and 23) that mediation carried out on local and community levels is a tool that complements traditional assistance, noting that: “Through inclusive forums, mediation opens a dialogue between representatives of civilian society, authorities, humanitarian actors, international forces and armed groups, leading to negotiated solutions that foster the reduction of violence, humanitarian access and protection of civilians’, while also stressing the necessity for improved intra- and intercommunity relations through mediation, dialogue and social cohesion initiatives”.

Additionally, the CAR protection cluster in its 2014–2015 strategy stressed the importance of ‘strengthening emergency mediation efforts in conflict areas in order to prevent tensions and facilitate humanitarian access’ (Cluster Protection RCA 2015: 4–5). Similarly, the draft report of the Inter-Agency Humanitarian Evaluation (IAHE) of the Response to the Central African Republic’s Crisis 2013–2015 indicated that ‘The response employed a commendably conflict-sensitive approach that took innovative steps to reduce conflict through local humanitarian mediation that was seen as impartial by the divided communities, leading to reduced conflict, increased

9 

Two days after the team arrived in Berberati, there was a public demonstration to protest the alleged killing by UN peacekeepers of a civilian, whose body was being displaced, by the protesters.

10 

3  Mediating Protection of Forcibly Displaced Populations in the Frontlines of the Central African Republic

access, and protection of civilians’ (Grimaud 2016: 3; CCHN 2016). Moreover, in November 2015, a study on protection in the  CAR by the Overseas Development Institute (ODI) concluded that ‘emergency mediation and social cohesion have opened the way to a closer engagement with armed groups and helped to prevent and reduce violence and protect civilians. This contrasts with standard approaches … that attach only to the consequences of violations’ (Barbelet 2015: 19; Grimaud 2016: 3). Given its relevance and based on the groundwork that had been laid by DRC mediators, various international organisations operating in  the CAR and elsewhere began to promote and implement some elements of humanitarian mediation and dialogue facilitation, an indication that the approach is gaining momentum. For example, in 2015, United Nations Development Programme (UNDP) in collaboration with the UN mission, hired DRC to train local authorities/mayors from the different regions of the CAR as part of a Civil Affairs initiative. In late 2017, Norwegian Refugee Council started implementing humanitarian mediation projects in three African countries, including the CAR, Congo and Mali, which aimed to mitigate violence, prevent forced displacements and facilitate returns as well as improve humanitarian access. Other international organisations that have used conflict–resolution tools to protect civilians are OCHA, Agency for Technical Cooperation and Development (ACTED), Catholic Relief Services (CRS), the Centre for Humanitarian Dialogue, Conciliation Resources, Cordaid, Finn Church Aid, the Norwegian Refugee Council, Search for Common Ground, Communities in Transition (CIT) and World Vision. Nevertheless, the emergence of humanitarian mediation as a form of humanitarian engagement has sparked a new debate among humanitarian practitioners who are seeking clarity on how it is different from humanitarian negotiation. Accordingly, the Annual Meeting of Frontline Negotiators hosted in Geneva Switzerland on 25–26 October 2016 by the Centre of Competence on Humanitarian Negotiation (CCHN) invited DRC and OCHA experts to share their experi-

23

ence in developing and implementing humanitarian mediation in the  CAR,  with the view to exploring ways to forge possible tools and policy instruments that could be developed to support frontline negotiators (CCHN 2016). However, despite its proven usefulness and effectiveness, the use of humanitarian mediation as a protection mechanism in situations of armed conflict is not devoid of risks, limitations and controversies. For instance, it may be perceived as legitimising armed groups. Because mediators seek out parties that have emerged as leaders through violence and force, their intervention can be perceived as giving legitimacy to militia groups, rewarding impunity and contributing to the institutionalisation of armed groups. Moreover, if not well managed, humanitarian mediation during intense conditions at frontline risks can also become a politically tainted. Furthermore, there is the possibility of retribution after the mediation process is over, as humanitarian mediation may create security risks for individuals who participate in dialogue/mediation process solution, as they may be considered as sell-outs. The same risk applies to local/insider mediators. Despite the high degree of legitimacy they may have earned for leading the mediation process, they too may be perceived as a threat to the interests of those benefiting from the chaos. Furthermore, there is the risk of exacerbating the conflict if the mediation initiative fails or if parties are dissatisfied with the outcome.

4

Conclusion

Humanitarian-driven mediation processes can be very effective as a short-term emergency response to deal with issues relating to protection and prevention of violence against civilians in general and forcibly displaced populations in particular, in times of crises. Given its usefulness in addressing some of the constraints relating to humanitarian access, it bears immense possibilities for growth within the humanitarian community. Under the framework of its flagship emergency mediation and dialogue facilitation project, the Danish Refugee Council was able to

24

effectively implement this relatively new approach in humanitarian engagement in the Central African Republic. It did so by developing a structured strategy backed by a rigorous methodology for engaging stakeholders, including the state and non-state armed actors. Geared towards supporting the pre-existing mechanisms, the project enjoyed the credibility that enabled mediators to operate within challenging and volatile environments. Recognising the State as the actor with primary responsibility for protecting forcibly displaced populations within its borders, the Danish Refugee Council partnered with state institution to empower local and regional authorities, thereby promoting national ownership. Given its success, humanitarian mediation is increasingly being used by other international aid organisations to deliver on their critical mandate to protect civilians, including displaced populations.

References Alexandre M ‘Church protecting Muslims in Central African Republic’ Caritas Internationalis 24 March 2014. https://www.caritas.org/2014/03/ church-­protecting-­muslims-­central-­african-­republic/. Al-Zyoud N “Assessing the Risks of Conducting Emergency Mediations in War Zones”, Paper presented at the international conference on mediation, University of Basel, Switzerland, 21 – 23 June 2016. Al-Zyoud N (2015) Mediating the Aftermath of War, 2 June 2015. https://communitiesintransition.com/ MediatingtheAftermathofWarz. Amnesty International “Ethnic Cleansing and Sectarian Killings in the Central African Republic”, February 2014, CAR Report. Barbelet V “Central African Republic: Addressing the Protection Crisis” Overseas Development Institute, November 2015. Bercovitch J & Jackson R Conflict Resolution in the Twenty-First Century: Principles, Methods, and Approaches, 2009, Ann Arbor, University of Michigan Press. Bouckaert P “The Central African Republic has become a Nightmare for Muslims”. The Washington Post, 16 March 2014. Centre for Humanitarian Dialogue. Humanitarian Mediation. https://www.hdcentre.org/what-­we-­do/ humanitarian-­mediation/. Centre of Competence on Humanitarian Negotiation, Final Report of Annual Meeting of Frontline Humanitarian Negotiators, 25-26 October 2016, Geneva. (23

W. Samah December 2016). https://frontline-­negotiations.org/ annual-­meeting/wp-­content/uploads/2017/02/CCHN-­ Final-­Report-­on-­2016-­Annual-­Meeting-­2017.pdf. Communities in Transition ‘Mediating the aftermath of war’ Communities in Transition, 2 June 2015. https://communitiesintransition.com/ MediatingtheAftermathofWar. Danish Refugee Council (2014) Rapport d’evaluation: activités de facilitation de dialogue/médiation et de cohésion sociale à Boda, 10 October 2014. Danish Refugee Council, 2014b. “Accès humanitaire et protection des civils à travers la cohésion sociale et la médiation en République Centrafricaine” Unpublished CHF Project Proposal, 25 August 2014. Escoffier S et al “Nature et formes de la violence, causes du conflit en République Centrafricaine”, Irénées, February 2014. Global Conflict Tracker  – Council on Foreign Relations (2018): Violence in the Central African Republic. Updated: 8 August 2019. https://www. cfr.org/interactive/global-­c onflict-­t racker/conflict/ violence-­central-­african-­republic. Grimaud J “Strengthening Protection and Humanitarian Access through Humanitarian Mediation and Dialogue”. Paper presented at the annual meeting of frontline negotiators, organised by the Centre of Competence on Humanitarian Negotiation, Geneva, 25-26 November 2016. Gupta P “UN Peacekeepers Failed to Protect Civilians Last Year” Al Jazeera 18 February 2019. https://www.aljazeera.com/videos/2019/02/18/ un-­peacekeepers-­failed-­to-­protect-­civilians-­last-­year/. Human Rights Watch 2013a “Central African Republic: Siege on Capital’s Muslims. Provide Protection in Bangui, Safe Passage for Those Leaving”, 27 March 2013. Human Rights Watch 2013b “Central African Republic: War crimes by ex-Seleka Rebels. Hold Commander Accountable for Attack on Town”, 24 November, 2013. Human Rights Watch World Report 2014: Central African ­Republic, https://www.hrw.org/world-report/2014/ country-chapters/central-african-republic# Human Rights Watch “Central African Republic: Civilians Targeted as Violence Surges. UN Peacekeeping Mission Faces Renewal, Needs Expansion” 27 October 2017. Internal Displacement Monitoring Centre. (2019): Central African Republic. Kleinfeld P (2018a) The New Humanitarian: Part 1: Inside Mission Impossible. 24 May 2018. https://www. thenewhumanitarian.org/special-­report/2018/05/24/ part-­1-­inside-­mission-­impossible. Kleinfeld P (2018b) The New Humanitarian: Central African Republic, part 2: ‘We Have Become the Targets.’ 31 May 2018. https:// www.irinnews.org/special-­r eport/2018/05/31/ central-­african-­republic-­aid-­worker-­target-­danger. Mc Hugh G & Bessler M United Nations: Humanitarian Negotiations with Armed Groups: A Manual for Practitioners, 2006, United Nations, New York.

3  Mediating Protection of Forcibly Displaced Populations in the Frontlines of the Central African Republic Neal A (2014) “Supporting Social Cohesion in the Central African Republic” Humanitarian Exchange, September 2014. Protection Cluster RCA Plan d ‘Action du Cluster Protection, July-December 2014-2015. Sayare S “Mystery Shrouds Rise and Aims of Rebels at the Helm of Central African Republic”, New  York Times, 4 April 2013. TED Global (2014): TED Global: To Solve Mass Violence, Look to Locals (Severine Autesserre) https://www.ted. com/talks/severine_autesserre_to_solve_mass_violence_look_to_locals. United Nations High Commissioner for Refugees. (2019): Africa. https://www.unhcr.org/africa.html. United Nations Office for the Coordination of Humanitarian Affairs (n.d.) Central African Republic (CAR). https://www.unocha.org/car.

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United Nations (2014) Security Council Unanimously Extends Mandate of United Nations Multidimensional Integrated Stabilization Mission in Central African Republic. https://www.un.org/press/en/2019/sc14022. doc.htm. Varin C & Abubakar D Violent Non-State Actors in Africa: Terrorists, Rebels and Warlords, 2017, Cham, Palgrave Macmillan. Weiss TW & Evans G Humanitarian Intervention (2nd ed), 2012, Cambridge, Polity Press. Zahar M-J and Mechoulan D Peace by Pieces? Local Mediation and Sustainable Peace in the Central African Republic (2017, International Peace Institute, IPI Publications).

4

The Adequacy of Law and Policy Frameworks on Internal Displacement in Ethiopia: A Critical Appraisal Enguday Meskele Ashine

Abstract

Keywords

With three million displaced people over the last couple of years, Ethiopia has one of the highest populations of internally displaced persons (IDPs). Large number of people are forced to flee their homes within the country due to conflict. The aim of this chapter is to doctrinally examine the adequacy of existing legal and policy frameworks concerning IDPs in Ethiopia. This chapter examines whether the existing national frameworks adequately protects IDPs, and if not, what gaps exist. This chapter argues that while existing domestic legal and policy frameworks contain elements relevant to protection of IDPs, they are not comprehensive and do not comprehensively respond to the specific needs and vulnerabilities of IDPs. This chapter makes the point that the absence of an adequate domestic legal and policy framework for protection of IDPs underlines the importance of domesticating the Kampala Convention.

Internally displaced persons · Internal displacement · Law · Kampala Convention · Ethiopia

E. Meskele Ashine (*) IHL and Human Rights at School of Law, Wolaita Sodo University, Wolaita Sodo, Ethiopia

1

Introduction

Internal displacement has been an on-going challenge in Ethiopia for many years. Conflict over resources and local boundaries combined with recurrent drought and seasonal floods generate population displacement every year (IDMC 2019a). New waves of violence have triggered significant internal displacement (IDMC 2018: 5). About 2.9 million people were forced to flee their homes as a result of conflict-induced displacement in the first half of 2018 (IDMC 2019b: 14). According to the latest Displacement Tracking Matrix (DTM), published on August 2019, conflict is the leading driver of displacement followed by displacement due to natural disasters exacerbated by climatic factors (IOM 2019a). As of January 2019, the number of displaced people stood at 2.23  million and conflict-­ induced displacement counts the largest (IOM 2019b). In the late 2020, the military confrontation between the Federal

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. Adeola (ed.), National Protection of Internally Displaced Persons in Africa, Sustainable Development Goals Series, https://doi.org/10.1007/978-3-030-66884-6_4

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Government of Ethiopia and the Tigray People’s Liberation Front governing (TPLF) (governing the Tigray region in the north of Ethiopia) also triggered population displacement (DW 2020).1 Internal displacement has already left hundreds of thousands of Ethiopians in dismal condition by disrupting livelihood and food security, and affecting access to basic social services like health and education (OCHA 2019a). Many IDPs have been exposed to malnutrition, deteriorated health and living condition and disruption of education. The UN Office for the Coordination of Humanitarian Affairs (OCHA) has reported that 3.19  million IDPs and returnees are in need of assistance, among which 30% are in acute need (OCHA 2019b: 4). Moreover, it has been revealed that emergency shelter and non-food items are priorities (OCHA 2019b: 50 and 52). In response to the displacement crisis, the government has attempted to take a number of measures ranging from establishing a Ministerial Task Force (entrusted with the mandate of addressing the displacement crisis) to setting up Emergency Operation Centres in affected area (Refugees International 2018: 8). Moreover, the government, in cooperation with humanitarian partners, has responded to critical needs of displaced persons by providing food and other materials to displaced persons living in various camps (OCHA 2019c: 1). The government adopted a Strategic Plan to address Internal Displacement and a costed Recovery/Rehabilitation Plan in Several months of tensions between the Federal Government and the TPLF reached its peak when on 4 November 2020, the Federal Government launched a military attack against forces of the TPLF in response to an alleged assault by the TPLF on the Ethiopian National Defence Force base in Tigray (Atlantic Council 2020). The fragile relationship dates back to 2018 when the Prime Minster Abiy Ahmed came into power. The ruling coalition at the time—the Ethiopian Peoples’ Revolutionary Democratic Front (EPRDF) was subsequently dismantled and replaced with a single national party—the Prosperity Party (PP), which the TPLF refused to join (International Crisis Group 2020). The relationship rapidly deteriorated following the Federal Government’s postponement of the national election that was to take place in August due to the COVID-19 pandemic. However, the Tigray region held its own election in September 2020 (International Crisis Group 2020). 1 

E. Meskele Ashine

2019 (OCHA 2019c: 3). The overall objective of the Plan is to ensure the voluntary, safe, dignified and sustainable return or relocation of those persons displaced by inter-communal conflict in different regions of the country (OCHA 2019c: 3). Although there have been various efforts in response to the critical needs of displaced persons, IDPs continue to live in dire circumstance in the absence of sustainable solutions and inadequate levels of assistance. Humanitarian assistance has been hampered by resource constraints and security issues (OCHA 2019c: 1 and 2). Resource shortfall has affected life-saving activities, particularly delivery of assistance in three sectors such as food, health and nutrition (OCHA 2019c: 1). Following the adoption of the Strategic Plan, the government has carried out intensive return operations in Oromia, SNNPR and in the Somali region (OCHA 2019d: 2–7). Though the government has claimed that the return is voluntary and security conditions in return areas have been assessed, the mass return operation has been criticised for being forceful and premature (Refugee International 2019). The government-­ led mass return operation has been undertaken through restricted humanitarian aid in the area of displacement, the dismantling of IDP sites and the coercion of displaced persons to move to return areas where aid would be provided, essentially leaving them with no choice but to return (Refugee International 2019). Nonetheless, many IDPs could not actually return to their houses fearing security threats and the lack of rehabilitation support that helps them to resume their livelihood and get on with their life in their area of origin (Refugee International 2019). As a result, a majority of returnees are living in secondary displacement conditions in areas close to their home (OCHA 2019e: 2). This government-led relocation process has seriously affected the efforts of humanitarian aid workers in the protection of IDPs (OCHA 2019d: 1). However, this is contrary to relevant international standards. On 13 February 2020, Ethiopia ratified the AU Convention for the Protection and Assistance of IDPs in Africa (2009) (the Kampala Convention). Against this backdrop, this chapter examines the adequacy of national standards in

4  The Adequacy of Law and Policy Frameworks on Internal Displacement in Ethiopia: A Critical Appraisal

the furtherance of IDP protection and assistance in Ethiopia. This chapter is divided into three main sections. The first section discusses national legal and policy frameworks relevant to protection of internally displaced persons, while the second section critically assesses the gaps within existing legalisations and policies relevant for the protection of IDPs. The third section examines the implication of ratifying the Kampala Convention.

2

 aw and Policy Frameworks L Relevant to Internal Displacement

Despite the absence of a specific framework to guide response to internal displacement in Ethiopia, internal displacement issues have been addressed within the general legislation and disaster response system. The Constitution of the Federal Democratic Republic of Ethiopia (the FDRE Constitution) make reference to displacement. The FDRE Constitution states that “All persons who have been displaced or whose livelihoods have been adversely affected as a result of State programmes have the right to commensurate monetary or alternative means of compensation, including relocation with adequate State assistance” (Article 44). Furthermore, the Constitution guarantees protection against displacement for Ethiopian pastoralists (Article 40(5)). These provisions of the Constitution are of paramount importance for persons affected by development-induced displacement or displacements caused by state-initiated programmes. In addition to this, the Constitution contains bills of rights which apply without reservation to all IDPs such as the right to life, personal security, the right to movement and protection against discrimination (Article 14, 15, 25 and 31). Moreover, the Constitution underscores the fact that “Government shall take measures to avert any natural and man-made disasters, and, in the event of disasters, to provide timely assistance to the victims” (Article 89(3)). However, the aforementioned provisions are not complemented by domestic legislations or policies that are tailored

29

to particular needs and vulnerabilities of IDPs. Thus, neither the civil law nor the criminal law legislations contain provisions elaborating on the above constitutional stipulations. Besides the FDRE Constitution, the most relevant instrument in the context of internal displacement is the National Policy and Strategy on Disaster Risk Management of 2013 (the DRM policy). This Policy and Strategy is an amendment of the 1993 National Policy on Disaster Prevention and Management. The DRM Policy provides for a comprehensive framework of disaster risk management system that focuses on multi-hazard and multi-sectoral approaches as well as on measures that need to be taken before, during and after the disaster period (DRM Policy 2013). The DRM Policy has brought a paradigm shift by moving away from a disaster management approach that focuses on drought and provision of emergency relief assistance to a more proactive, multi-sectoral and multi-hazard DRM approach (DRM Policy 2013: 5). It recognises the fact that Ethiopia is vulnerable to multiple hazards and associated disasters caused by climate changes and conflict (DRM Policy 2013: 3). The policy stipulates the need to save lives, protect livelihood and ensure all disaster affected populations are provided with recovery and rehabilitation assistance (DRM Policy 2013). By doing so, the policy extends protection to all disaster-affected people including people who are victims of disaster induced displacement. Moreover, the policy and its associated Strategic Programme and Investment Framework (DRM-SPIF) contain important statements that could boost the reliability of government’s response to internal displacement issues. The DRM activities implemented during the pre-­ disaster phase contribute to the prevention and mitigation of conditions that might lead to disaster-­induced displacement. For instance, the DRM policy emphasises the need to provide a response on the basis of early warning or disaster assessment information system (DRM Policy 2013: 6). This is very helpful to the prevention or mitigation of climate change-induced displacement. It is generally acknowledged that measures taken to reduce risks in areas prone to climate-­

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induced disasters help to reduce the scale of disaster-induced displacement and its impact. Also, the DRM policy lays down general direction and major implementation strategies on a decentralised DRM system, information management, funding, international cooperation and integration of disaster risk reduction into development plans (DRM Policy 2013). Giving effect to these provisions could help efforts to address disaster-induced displacement. Though the DRM policy comes with provisions relevant to disaster-induced displacement, it is not specifically tailored to the particularities and challenges of internal displacement. It is against this backdrop that the Ethiopian government launched the Federal Government’s Strategic Plan to address Internal Displacement and a costed Recovery/Rehabilitation Plan (the IDP Strategic Plan) with the aim of ensuring the voluntary, safe, dignified and sustainable return/relocation of people uprooted by conflict in seven regions2 and one administrative City (OCHA 2019c).3 The IDP Strategic Plan sets out activities in order to achieve the following four results: Result 1—Restoring law and order and the restoration of justice to address crimes committed; Result 2— Ensuring peace and reconciliation and the formation of enabling systems to allow for IDPs’ informed decision to pave the way for voluntary and informed return or relocation; Result 3— Rehabilitation and livelihood support in areas of return or relocation; and Result 4—Interim multi-­ sector assistance of affected persons in areas of displacement, return or relocation (OCHA 2019c: 3). This instrument aims to return/relocate/reintegrate IDPs in three phases. Accordingly, the first phase addresses persons displaced from within their region of origin and where conditions allow voluntary, dignified and sustainable return. The second phase targets persons displaced from areas where substantial security and rehabilitation of basic services are required before returns. The third phase deals with persons displaced from areas where alternative solutions to returns Tigray, Amhara, Oromia, Somali, SNNP, Benishangul Gumuz and Harari regions. 3  Dire Dawa city administration. 2 

E. Meskele Ashine

are preferred, including IDPs whose place of origin is deemed viable for return but who still choose not to return (OCHA 2019c: 4). Proper implementation of the Strategic Plan will improve the IDP situation and pave the way for finding durable solutions. That is why the international community welcomed the government’s effort to advance durable solutions and, also affirmed its support (OCHA 2019c). With the major aim of guiding the efforts of all partners engaged in finding durable solutions for IDPs, the Ethiopia Durable Solutions Initiatives (herein after DSI) was launched on December 2019. It aims at providing a principled operational framework and platform to design and implement durable solutions in support of internally displaced persons (IDPs) in Ethiopia and host communities/communities at locations of return, relocation or local integration (Ethiopia DSI 2019). The Ethiopia DSI intends to coordinate collective action and cooperation between the Ethiopian government at various levels and with international actors. This instrument reflects principles and standards in the UN Guiding Principles on Internal Displacement (1998) and the Inter-Agency Standing Committee (IASC) Framework on Durable Solutions for IDPs by stating key principles that should guide the search for durable solutions including rights and need-­ based approach to durable solutions, participatory and community-based approaches and government-led processes in support of durable solutions (Ethiopia DSI 2019). Unlike the IDP Strategic Plan, the Ethiopia DSI provides a comprehensive base to guide efforts in pursuit of durables solutions. The Durable Solution Initiative seeks lasting solutions to displacement problems by promoting and creating a conducive environment for local integration, safe and voluntary return and sustainable relocation. Moreover, the DSI articulates provisions of start-up capital, social protection benefits and affordable housing as means to find individualised solutions (Ethiopia DSI 2019). Besides, it envisages the integration of displacement issues into development programmes and humanitarian actions as part of a comprehensive durable solution (Ethiopia DSI 2019). The significance of the

4  The Adequacy of Law and Policy Frameworks on Internal Displacement in Ethiopia: A Critical Appraisal

DSI lies in its intervention approaches sensitive to conflict induced displacement. For instance, strengthening the capacity of local level conflict resolution mechanisms and reconciliation activities considered as location-specific activities which facilitate safe and voluntary return (Ethiopia DSI 2019). Another important aspect is that the DSI places a higher premium on cooperation among the Ethiopian government’s authorities at national, regional and local level and with the international community in pursuit of durable solutions. The National Social Protection Policy of Ethiopia 2012 is another instrument which aims to address IDP issues indirectly. The Policy highlights specific strategic priorities to better support different section of the population particularly those who are vulnerable, which technically includes displaced persons as well. Another major legal development concerning IDPs is in the Somali Region of Ethiopia. In October 2017, Ethiopia’s Somali Regional State adopted a regional durable strategy with the aim of assisting the Somali Region IDPs including pastoralist populations in finding durable solution (Somali Regional State Government 2017). The strategy was the first of its kind at regional as well as national level. The Strategy is aligned with international principles and frameworks including the UN Guiding Principles on Internal Displacement, the IASC Framework on Durable Solutions for IDPs, and Kampala Convention (Somali Regional State Government 2017: 5). It also establishes linkage with relevant national frameworks (Somali Regional State Government 2017). Moreover, the strategy reflects the definition of an IDP proposed by the UN Guiding Principles and Kampala Convention (Somali Regional State Government 2017). The strategy also covers all the types of IDPs. Although the application of the strategy is limited to particular regions, it is the first framework specifically dedicated to the furtherance of IDP safeguards. Thus, the strategy fills an important gap within the national framework by enacting IDPs’ entitle-

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ments and setting out corresponding institutional responsibilities. Essentially, it provides an opportunity to better organise durable solutions at the regional level and facilitate tailored responses to the region’s displacement situation. The Somali region’s strategy can provide a template for other regions and can also be scaled up nationally. While there are frameworks that provide some level of protection for IDPs, these are piecemeal. The next section examines the gaps in the existing frameworks.

3

 aps in the Existing Law G and Policy Frameworks

While certain provisions of the FDRE Constitution as well as the DRM policy are relevant to the protection of IDPs, Ethiopia does not have a comprehensive legal or policy instrument that guides responses to internal displacement. This lacuna poses a protection imbalance that could hamper the efforts to resolve the vulnerabilities of IDP holistically. Clearly, the FDRE Constitution provides a legal base for the protection of displaced persons by stating that “All persons who have been displaced or whose livelihood have been adversely affected as a result of State programmes have the right to commensurate monetary or alternative means of compensation, including relocation with adequate assistance” (Article 44(2)). However, the scope of the provision is limited to State programmes such as situations of development induced displacement so that it does not cover all causes of displacement. As such, persons displaced as result of conflict or man-made or natural disasters do not benefit from the protection guaranteed under this provision. In similar vein, Article 40 of the FDRE Constitution which recognises the right to property provides insufficient basis on which to address IDPs’ specific needs and vulnerabilities. IDPs are often at risk of losing their property and personal belongings at times of displacement. Undoubtedly, legal protection of property-related interests is a key part of finding durable solutions

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for IDPs. Article 40 of the FDRE Constitution guarantees property rights that remain applicable for IDPs as well (Article 40(1)). Moreover, the Constitution affirms Ethiopian peasants and pastoralists have the right to obtain land for free, and guarantees protection against eviction and displacement (Article 40(5) and (6)). These constitutional provisions are backed up by other legislation that deals with compensation schemes for those affected by development-induced displacement (Expropriation of Land Holding for Public Purposes, Payment of Compensation and Resettlement of Displaced People Proclamation No. 1161/2019). Accordingly, those who have lost the right to the use of land as a result of expropriation for public purpose are entitled to compensation (Expropriation of Land Holding for Public Purposes, Payment of Compensation and Resettlement of Displaced People Proclamation No. 1161/2019). However, the rights laid down under the FDRE Constitution as well as the complementary legislation exclude non-pastoralist and non-peasant communities from protection against displacement and the right to get compensated as a result of displacement. Thus, there are no laws or policies in place for IDPs who lose their land due to conflict-­ induced displacement or displacement caused by man-made or natural disasters. While the frameworks prohibit the displacement of pastoralists and provide compensation for those who are affected by the State development projects, the need to achieve durable solutions is not provided for in the legislations. In addition, the FDRE Constitution contains bill of rights that could potentially address protection needs of IDPs regarding life and personal security, non-discrimination, personal liberty, protection of subsistence, and movement-related needs (Article 14, 15, 16, 17, 32 and 41). Unfortunately, there is no national law, policy or strategy to help translate these provisions into actual tools towards better protection of IDPs. It can be concluded that the FDRE Constitution does not ­provide a sufficient basis of protection for various IDPs. On the other hand, Article 89 sub-article 3 of the FDRE Constitution obliges the government

E. Meskele Ashine

to avert natural or man-made disasters, and in the event of disasters, to provide timely assistance to the victims. In line with this obligation, the government has adopted the National Policy and Strategy on Disaster Risk Management of 2013. The DRM policy of 2013 intends to address the needs and vulnerabilities of all disaster affected persons by moving away from an approach that focuses on drought and the provision of emergency relief assistance (DRM Policy 2013). The revised DRM policy of 2013 is of paramount importance for improving the protection and well-being of IDPs. Pre-displacement prevention efforts often include measures that aim to eliminate or mitigate the causes of displacement. It has been noted that disaster-risk activities that integrate the concern of internal displacement may help efforts to eliminate or mitigate displacement problems (IDMC 2013: 70). The revised DRM policy had defined displacement as “the process of people being forced to move from their home to other places because of a natural hazard, war/conflict, other human-made action” (DRM Policy 2013). Thus, the policy recognises conflict- as well as disaster-induced displacement though without providing the definition of an IDP.  The revised DRM policy and its respective Strategic Plan and Investment Framework promote disaster risk reduction efforts through establishing and implementing comprehensive approach (DRM Policy 2013). In line with this commitment, the DRM policy and its strategic plan set out measures to be taken at pre-disaster, disaster and post-disaster phases (DRM Policy 2013). The pre-disaster phase includes prevention, mitigation and preparedness activities that are relevant to reduce and substantially mitigate causes of internal displacement. Thus, prevention, mitigation and preparedness activities such as early warning systems, risk and vulnerability assessment, contingency plan which forms part of the disaster risk management framework are also useful in terms of preventing or mitigating disaster induced displacement. Moreover, humanitarian/emergency responses and recovery/rehabilitation components that are part of disaster and post-disaster phase of disaster risk management system may help efforts to

4  The Adequacy of Law and Policy Frameworks on Internal Displacement in Ethiopia: A Critical Appraisal

improve the protection of IDPs. Thus, measures and activities undertaken as part of disaster risk management system are also relevant in the context of internal displacement. However, the revised DRM policy and its Strategic Programme and Investment Framework do not address issues of particular concerns to IDPs apart from defining the term displacement in the policy document. First of all, the definition of who an IDP is, is not provided under the Policy document. Second of all, it does not consider specific needs of IDPs such as the need to receive relief and humanitarian assistance, restoration of lost properties and documents. The DRM policy and its strategy link protection and durable solution needs of all affected population by stating that “In time of disasters, to save lives, protect livelihoods, and ensures all disaster affected population are provided with recovery and rehabilitation assistances”. However, it does not provide in great details the mechanisms on how best to save lives and promote livelihoods, recovery and restoration of the living situation of IDPs as it limits itself mainly to preparedness, mitigation, early warning and response to natural disasters such as drought- and flood-related risks. Thus, the DRM policy and its strategic programme do not specifically address protection, assistance and the need to find durable solutions. In addition, the DRM and its respective strategic programme do not spell out mechanisms to deal with risks associated with conflict which is a primary displacement driver (IOM 2019a). Hence, the disaster risk management approach is unable to respond to the challenges of the current situation of displacement. Moreover, certain prevention and preparedness measures undertaken in the course of disaster management process are not responsive to vulnerabilities of persons displaced by inter-ethnic and inter-regional conflicts. For instance, IDPs face difficulties in claiming entitlements to the Productive Safety Net Program (PSNP, which is part of the prevention and mitigation activities) due to ­ administrative barriers for registration in the area of displacement and conflict (Protection ClusterEthiopia 2017: 3). It is practically impossible to

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access the PASNP services for those IDPs who fled their area of origin due to inter-ethnic conflict as they cannot return back because of security issues. At the same time, it is difficult to access the services in the area of displacement since it depends on the willingness of host community and the availability of resources there. Hence, avoiding administrative barriers for registration in area of displacement is crucial so as to address challenges that IDPs experience in accessing PASNP and other long-term assistance. The 2019 Federal Government’s Strategic Plan to address Internal Displacement and costed Recovery/Rehabilitation is another important instrument which provides governments with the much-needed base to engage in efforts to resolve displacement problems sustainably (OCHA 2019c). This instrument is limited in scope as it is designed to address a particular phase of the displacement process, i.e. the need to achieve durable solutions. The IDP Strategic Plan was adopted with the overall aim of ensuring the voluntary, safe, dignified and sustainable return/relocation of people uprooted by conflict in different parts of the country (OCHA 2019c). It envisages a phased approach to return/reintegrate or relocate IDPs. It aims to ensure return of 80% of IDPs to their areas of origin, while 15% of the total IDPs will be reintegrated in current areas of displacement and 5% of the total IDPs will be relocated to other areas (OCHA 2019c). Accordingly, the government has completed the first phase of government-­ led return operations (OCHA 2019c). Though the government insists that return operations have been carried out in adherence with internationally established principles and practices, there have been incidents that demonstrate that the return process is involuntary and premature. Thus, the government has been coercing IDPs to return to unsafe areas through demolishing displacement sites and restricting access to humanitarian assistances (Refugee International 2019; OCHA 2019d). On the other hand, both the Guiding Principles and the Kampala Convention emphasise that a competent authority has the duty to ensure that IDPs’ return/reintegration or reset-

E. Meskele Ashine

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tlement process is voluntary, in safety and dignity (UN Guiding Principles 1998; AU Kampala Convention 2009). The IASC Framework on Durable Solutions for IDPs also emphasises that one of the key principles that should guide the search for durable solutions is respect for the right of IDPs to make an informed and voluntary choice on what durable solution to pursue and also to participate in the planning and management of durable solutions (Brooking Institution 2010). It has been noted that the needs, rights and legitimate interest of IDPs should be the primary consideration when making decisions on durable solutions. In contrast, Ethiopian government-led return operation has disregarded individual rights and access to aid given the dismantling of displacement sites, the dispersing of IDPs upon return and minimal to non-existent assistance made available in the areas of return (OCHA 2019d). In some areas, IDPs were intimidated, detained and beaten by security force (OCHA 2019d). Although all durable solution operations are to be conducted upon prior assessments of availability of services and security conditions in area of returns, many returnees end up in secondary displacement sites near their village due to inadequate security and the lack of interim assistance in the area of return (OCHA 2019d). The IDP strategic plan has a number of limitations that may affect its potential to address the displacement crisis sustainably. First of all, the IDP Strategic Plan of 2019 is designed to address the durable solution needs of conflictinduced IDPs. Thus, this instrument does not provide much support for those persons displaced, for instance, by climate change factors. Secondly, it does not spell out the rights of IDPs and the corresponding responsibilities of state and other actors in detail. Consequently, there are gaps in the implementation of the strategic plan. While conditions that help to attain long-term safety, security and freedom of movement are emphasised, the IDP strategic plan does not provide intervention mechanisms to restore livelihood without which displaced persons cannot achieve sustainable solutions. In contrast, the Ethiopia DSI circumvents the

weakness of the IDP Strategic Plan by explicitly articulating location-­specific activities that need to be in place to achieve local integration, safe and voluntary return and sustainable relocation (Ethiopia DSI 2019). Moreover, it also provides for restitution of land and other property and addresses challenges related to housing, land and property (Ethiopia DSI 2019). However, the DSI does not address both development-induced displacement and climate change-induced displacement in greater detail given that most intervention approaches envisaged under the DSI designed in response to conflict-induced displacement. On the other hand, the Somali Regional Durable Solutions Strategy is much more detailed than the DSI.  Thus, the former seeks to assist various categories of IDPs in the region to find durable solutions (Somali Regional State Government 2017). Moreover, it clearly articulates the rights of IDPs and responsibilities of the state and other actors (Ibid). Also, the strategy reflects international established principles on IDPs (Somali Regional State Government 2017). However, this strategy is not applicable to all IDPs since its scope is limited to IDPs in certain geographic area. In view of the existing gaps in the furtherance of IDP protection, it is important for Ethiopia to adopt a specific law on internal displacement. This chapter examines the potential of the Kampala Convention in filling this gap.

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Implication of Ratification of the Kampala Convention

Ethiopia ratified Kampala Convention on 13 February 2020 with reservations (FDRE House of People’s Representative 2020). The instrument fused into national law through “ratification proclamation” entitled African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa Ratification Proclamation No. 1187/2020 (herein after Kampala Convention ratification proclamation). According to the proclamation, Ethiopia accepts the definition of IDPs as provided under Article

4  The Adequacy of Law and Policy Frameworks on Internal Displacement in Ethiopia: A Critical Appraisal

1(k) of the convention (Kampala Convention Ratification Proclamation No. 1187/2020). This marks a milestone achievement for the country that has witnessed a significant rise of internal displacement over the past years. As one of the State Parties to the Convention, Ethiopia committed itself to very detailed obligations to protect IDPs’ rights. One can plausibly argues that the ratification of the Kampala Convention creates a conducive environment to urge government to adopt law and/or policy to give it domestic effect, as well as to amend existing laws or policies which are not compatible with the rights guaranteed under the treaty. The need to consider the domestication of the Kampala Convention is largely dictated by the reality that Ethiopia is among the leading countries in internal displacement which are disproportionately affected by the challenges of displacement. Unresolved and cyclical inter-­ ethnic tensions combined with recurrent drought and other natural disasters continue to generate large number of IDPs, highlighting the importance of systematic and comprehensive approach to resolve internal displacement problem. The Kampala Convention provides an excellent opportunity for states to put in place mechanisms (including adoption of national frameworks) that guide comprehensive responses to internal displacement problems (Kampala Convention 2009). The more compelling reason is the fact that the existing legal and policy frameworks do not provide adequate bases for responding to the specific needs and vulnerabilities of IDPs in Ethiopia. Evidently, the absence of adequate domestic legal and policy frameworks for the protection of IDPs underscores the importance of domesticating the Kampala Convention and the possible contribution it can make to national efforts to deal with displacement challenges. Very important is the fact that the Kampala Convention provides a basis for the accountability of those who cause displacement (Dieng 2017). The importance of this provision lies in the fact that more often than not, displacement is

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caused by a breakdown in the rule of law (Dieng 2017: 276). This holds true in the Ethiopian context where most of the displacements are instigated by individuals and groups who are “attempting to profit at the expense of citizenry and in violation of human rights”(Addis Standard 2019). On the other hand, the Kampala Convention articulates state obligation to ensure individual accountability and accountability of non-state actors who involves in displacing others (Article 3(1)). This provision is critical in the face of the increased incident of displacement instigated by non-state actors like individuals and group of persons in the country. In addition, the Kampala Convention’s provision in relation to obligations of international organisations and humanitarian agencies (Article 6), compensation (Article 12), registration and personal documentation (Article 13) are relevant to improving the protection of IDPs in Ethiopia.

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Conclusion

The issue of internal displacement has become a daunting challenge in Ethiopia due to the escalation of inter-ethnic clashes and recurrent drought and seasonal floods. Nevertheless, Ethiopia is yet to establish the required legislative and policy framework. While the existing domestic legal and policy frameworks contain provisions relevant to the protection of IDPs, they did not provide a sound basis to address the specific needs and vulnerabilities of IDPs during all phases of displacement. Most of the government’s and partner’s efforts to deal with internal displacement are based on short-term strategic plan and soft law instruments that are unsuited to the displacement situation. This protection imbalance exacerbates the situation of IDPs in Ethiopia. Having ratified the Kampala Convention, Ethiopia has made a giant stride in reinvigorating its commitment towards IDPs. However, Ethiopia needs to domesticate the Kampala Convention which has the potential of providing comprehensive guidance on the protection and assistance of IDPs.

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References Addis Standard (2019) Feature: How Ethiopia is dealing with unprecedented IDP crisis. http:// addisstandard.com/feature-­how-­ethiopia-­is-­dealing-­ with-­unprecedented-­idp-­crisis/s/ African Union (2009) Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) adopted by the Special Summit of the African Union held in Kampala, Uganda on 22 October 2009 (entered into force 6 December 2012) Atlantic Council (2020) Experts react: Understanding the conflict in Tigray. https:// www.atlanticcouncil.org/blogs/africasource/ experts-­react-­understanding-­the-­conflict-­in-­tigray/ Brooking Institution-University of Bern Project (2010) Inter-Agency Standing Committee (IASC) Framework on Durable Solutions for Internally Displaced Persons. https://www.unhcr.org/50f94cd49.pdf Dieng, A. (2017) ‘Protecting Internally Displaced Persons: the value of the Kampala Convention as a regional example,” International Review of the Red Cross 99(1):263-282 DW (2020) Civilians at risk in Ethiopia’s Tigray War. https://www.dw.com/en/ethiopia-­tigray-­war­civilians/a-55583111 Ethiopia Durable Solutions Initiatives (DSI) (2019) available at https://ethiopia.un.org/sites/default/files/2020­01/DSI%20Ethiopia%20low%20res.pdf Expropriation of Landholding for Public Purposes, Payment of Compensation and Resettlement of Displaced People No. 1161/2019, Fed.Negarit Gazette 25th Year No. 90, 2019 available at https://chilot.me/wp-­c ontent/uploads/2020/04/ Expropriation-­of-­Land-­holdings-­for-­Public-­Purposes-­ Payments-­o f-­C ompensation-­a nd-­R esettlement-­ Proclamation-­No.-­1161-­2019.pdf FDRE Disaster Risk Management Strategic Plan and Investment Framework (2013) available at https:// www.refworld.org/pdfid/5a2689ea4.pdf FDRE House of People’s Representative (2020) African Union Convention (Kampala Convention) for the Protection and Assistance of Internally Displaced Persons in Africa Ratification Proclamation No. 1187/2020, 26th Year No.24 IDMC (Internal Displacement Monitoring Center) (2013) National Instruments on Internal Displacement A Guide to their development. https://www.internal-­ displacement.org/sites/default/files/publications/ documents/201309-­national-­instruments-­on-­internal-­ displacement-­thematic-­en2.pdf IDMC (Internal Displacement Monitoring Center) (2019a) Ethiopia: Country Information. http://www. internal-­displacement.org/countries/ethiopia IDMC (Internal Displacement Monitoring Center) (2018) Mid-Year Figures: Internal Displacement in 2018. p.  5 available at https://reliefweb.int/report/world/ idmc-­mid-­year-­figures-­internal-­displacement-­2018

E. Meskele Ashine IDMC (Internal Displacement Monitoring Center) (2019b) Global Report on Internal Displacement. http://www.internal-­displacement.org/global-­report/ grid2019/ International Crisis Group (2020) Steering Ethiopia’s Tigray Away from Conflict, Crisis Group Africa Briefing No. 162. https://www. c r i s i s g r o u p . o rg / a f r i c a / h o r n -­a f r i c a / e t h i o p i a / b162-­steering-­ethiopias-­tigray-­crisis-­away-­conflict IOM (International Organization of Migration) (2019a) Displacement Tracking Matrix-Ethiopia (DTM). https://displacement.iom.int/ethiopia IOM (International Organization of Migration) (2019b) Displacement Tracking Matrix (DTM) Ethiopia. https://displacement.iom.int/ethiopia OCHA (UN Office for Coordination of Humanitarian Affairs) (2019a) Ethiopia: Humanitarian Response No. 21. https://reliefweb.int/report/ethiopia/ethiopia-­ humanitarian-­r esponse-­s ituation-­r eport-­n o-­2 1-­ february-­2019 OCHA (UN Office for Coordination of Humanitarian Affairs) (2019b) Humanitarian Need Overview 2019, Ethiopia. https://reliefweb.int/sites/reliefweb.int/ files/resources/ethiopia_humanitarian_needs_overview_2019.pdf OCHA (UN Office for Coordination of Humanitarian Affairs) (2019c) Humanitarian Bulletin, Ethiopia Issue 7 https://reliefweb.int/sites/reliefweb.int/files/ resources/humanitarian_bulletin_1_-­_14_april_2019. pdf OCHA (UN Office for Coordination of Humanitarian Affairs) (2019d) Ethiopia IDP Situation Report. https://reliefweb.int/report/ethiopia/ethiopia-­i dp­situation-­report-­may-­2019 OCHA (UN Office for Coordination of Humanitarian Affairs) (2019e) Humanitarian Bulletin Ethiopia. https://reliefweb.int/sites/reliefweb.int/files/resources/ humanitarian_bulletin_03_-­_16_june_2019_final.pdf Protection Cluster-Ethiopia (2017) Ethiopia: Protection Strategy 2016-2019. https://www.humanitarianresponse.info/en/operations/ethiopia/document/ ethiopia-protection-strategy-annex Refugees International (2018) The Crisis Below the Headlines: Conflict Displacement in Ethiopia. https:// www.refugeesinternational.org/reports/2018/11/14/ the-­crisis-­below-­the-­headlines-­conflict-­displacement-­ in-­ethiopia Refugee International (2019) Ethiopia’s treatment of its own IDPs making crisis worse. https://www.refugeesinternational.org/advocacy-­letters-­1/2019/5/17/ethiopias-­ treatment-­of-­its-­own-­idps-­making-­crisis-­worse Somali Region Durable Solution (2017) available at https://www.humanitarianresponse.info/sites/ www.humanitarianresponse.info/files/documents/ files/171117_final-­durable_solutions_strategy_for_ somali_region_2017-­2020.pdf UN Human Rights Commission (1998), The UN Guiding Principles on Internal displacement: Report of the Representative of the Secretary General, U.N.Doc. E/ CN.4/1998//53

5

Beyond Accountability and Eminent Domain: Development Rights and Development-Induced Displacement in Kenya Nelly C. Rotich

Abstract

1

Internally displaced peoples’ right to development is challenged by development-induced displacements caused by either corporations or states in exercising eminent domain rights on public needs grounds. While eminent domain for development projects are within states’ mandates, states are obligated to promote and protect the right to development of persons displaced by such development projects. States are called upon to balance the right of internally displaced persons to development and the need to develop for the public good. This chapter therefore examines the interplay between the duty to protect the right to development of internally displaced persons and the duty to develop for the public benefit in the case of development-induced displacements in Kenya.

While it is within states’ mandates to compulsorily acquire land for development projects based on public needs, states are mandated to promote and protect the right to development of persons displaced by development projects by balancing the right of those displaced with the need to develop for the public good. This chapter examines the structures put in place in Kenya in creating a balance. In analysing the developmental challenges posed to internally displaced persons (IDPs) by development-induced displacements in Kenya, this chapter shall proceed in seven parts. Section 2 interrogates the framework for recognition and protection of the right to development in Kenya. While the Sect. 3 examines the framework for internal displacements by development projects in Kenya. Section 4 analyses select notable cases on internal displacements by development projects in Kenya. Section 5 then examines the interplay between the right of IDPs to development and the right to develop for the public benefit. Section 6 looks at the eminent domain of the Government of Kenya in relation to IDPs right to development in Kenya. Section 7 analyses the challenges to development posed by development-induced displacements in Kenya. Section 8 then concludes the chapter.

Keywords

Internally displaced persons · Internal displacement · Development · Developmentinduced displacement · Kenya

N. C. Rotich (*) University of Pretoria, Pretoria, South Africa

Introduction

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. Adeola (ed.), National Protection of Internally Displaced Persons in Africa, Sustainable Development Goals Series, https://doi.org/10.1007/978-3-030-66884-6_5

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N. C. Rotich

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2

Frameworks for the Protection of the Right to Development

Whether or not development is a justiciable right has been a subject of numerous debates by different scholars. Kéba M’Baye, who is considered a father of the right to development, in his 1972 lecture first made a proposal for a definition of the right to development as a human right (M’Baye 1972; Marks and Malhotra 2017). Saah (2018) argues that the right to development ‘does not concern charity but rather enablement and empowerment’. Kofi Annan, the Former United Nations Secretary General, defined the right to development as ‘the measure of the respect of all other human rights’. The right to development was for the first time recognised at the international level in 1945 under Paragraph (a) of Article 55 of the Charter of the United Nations which promotes the right to higher standards of living, full employment and conditions of economic and social progress and development. It was later recognised in 1986 following the adoption of the United Nations Declaration on the Right to Development (UN Declaration 1986). Article 1(1) of the UN Declaration recognises the right of every person ‘to participate, contribute to and enjoy social, cultural, political and economic development as an inalienable human right’. The responsibility to primarily create conditions for the realisation of the right to development is bestowed on the state under Article 3(1). Article 1 of The International Covenant on Civil and Political Rights of 1966 recognises the right of every person to ‘pursue their economic, social and cultural development by virtue of the right self-determination’ (Browning 2011). These and other international instruments ratified by Kenya are applicable in Kenya by virtue of Article 2(5) and (6) of the Constitution of Kenya, 2010. At the regional level, the African Charter on Human and Peoples Rights (the African Charter) in 1981 recognised for the first time the right of every person to economic, social and cultural development. Just like the UN Declaration, the primary obligation to realise the right to develop-

ment rests with the state (Article 22). Article 20 of the African Charter provides for the right of every person to pursue economic and social development based on their chosen policy. In addition to this, general satisfactory environment favourable to development is guaranteed (Article 24). The right to development was later recognised by the African Commission on Human and Peoples’ Rights (African Commission) in the Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of the Endorois Welfare Council versus Kenya, decided in 2009 (Endorois case). The Commission re-affirmed the arguments made by the United Nations Independent Expert that development is not about provision by the states but rather allowing people to choose what is best for their development (Endorois case, para 278). In so doing, the affected communities should not be coerced in their choices of development (Endorois case, para 279). The right to development of indigenous people  was also recognised by the African Court on Human and People’s Rights in African Commission on Human and Peoples’ Rights versus The Republic of Kenya, decided in 2017 (Ogiek case). Displacements in this case were carried out to preserve Mau forest. Though the right to development is not expressly provided for under the Kenyan law, the Constitution of Kenya, 2010 protects the right of every person to health, adequate housing and freedom from hunger, clean and safe water, social security and education (Article 43). These rights constitute the right to development. The Constitution of Kenya also recognises the right of communities to further their development (Article 174(d)). Sustainable development is also outlined under the Constitution as a national value and principle of governance (Article 10). Development is believed to be at the epicentre of every human activity and in eradicating poverty. Development also allows human beings to enjoy other freedoms and fundamental rights (Sen 1999). It is therefore necessary for the state and corporations to protect the right to development of persons displaced by development projects.

5  Beyond Accountability and Eminent Domain: Development Rights and Development-Induced…

3

Conceptualising Internal Displacement by Development Projects in Kenya

Adeola (2017) analyses two forms of displacements by development projects: direct and indirect. She argues that direct displacements occur ‘when people are forced to move from their homes in order to pave way for a development project’. Indirect displacements on the other hand ‘occur when geographical, environmental or socio-political consequences of a development projects occurs over time’. In analysing development-­induced displacement, Adeola identifies various development activities not limited to ‘mining, agriculture, irrigation, airports, industrial plants, railways, road developments, urbanizations, forestry, conservation projects and construction of hydroelectric power’. More often than not, displacement by development projects result in internal displacement situations. Displacements by development projects are recognised in Kenya under the Prevention, Protection and Assistance of Internally Displaced Persons and Affected Communities Act of 2012 (Kenya Law) (Kenya IDP Act). Article 2 of the Kenya IDP Act includes in its definition of an IDP, persons or groups of persons who are forced to move from their homes as a result of ‘large scale development projects’. Section 5 (2) of the Kenya IDP Act obligates the Government and organisations to prevent internal displacements by development projects. Section 12 of the Kenya IDP Act has established the National Consultative Committee on IDPs whose responsibility is to address internal displacement matters. It is tasked with ensuring that there are no arbitrary displacements of populations. Section 21 of the Kenya IDP Act calls on the Government of Kenya to refrain from relocation of people for development. At the regional level, Kenya is a party to the Great Lakes Protocol on Protection and Assistance to IDPs (Great Lakes Protocol) which was adopted by the International Conference on the Great Lakes Region in 2006. Article 1(5) of the Great Lakes Protocol recognises that IDPs

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include persons who have been displaced by large-scale development projects. Article 5 of the Great Lakes Protocol expressly calls on member states to see to it that there are no arbitrary displacements by development projects. Where it is necessary to displace people for a development project, states are called upon to provide ‘proper accommodation’ to persons displaced by the projects. The displacements ought to also meet healthy, safety, nutrition and hygienic conditions. At the African level, internal displacement is covered under the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa 2009 (Kampala Convention). Kenya is yet to sign and accede to the Kampala Convention (African Union 2020). This lack of accession notwithstanding, lessons can be drawn from the Kampala Convention on internal displacements by development projects. Article 1(k) and (i) of the Kampala Convention defines IDPs as persons or groups of persons who in order to avoid the effects of armed conflict, violation of human rights, generalised violence situations or disasters have been forced to move from their homes to another location within the internationally recognised borders of the same state. Though internal displacement as a result of development projects is not expressly stated in this definition, its inclusion may be implied firstly from displacements resulting from ‘violation of human rights’. This is so since displacement by development projects often results in violation of numerous IDP rights. Secondly, it can be implied that the resultant causes list is non-exhaustive hence a reading-in of displacement by development projects. Thirdly, a reading of Article 10 of the Kampala Convention demonstrates that parties to the Convention had displacements by development projects in mind. Fourthly, the Kampala Convention ‘applies to all situations of internal displacement regardless of its causes’ (Article 15(1)). At the international level, the United Nations Guiding Principles on Internal Displacements were developed by the United Nations in 1998 (UN Guiding Principles 1988). Though it is a soft law, the Kampala Convention, the Great Lakes

N. C. Rotich

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Protocol and the Kenya IDP Act draw inspiration from it. The Preamble of the Kampala Convention, the Preamble and Article 1(3) of the Great Lakes Protocol and section 2 of the Kenya IDP Act recognise the UN Guiding Principles as an important international framework for the protection of internally displaced persons. The UN Guiding Principles apply to IDPs in Kenya pursuant to the Constitution of Kenya 2010 and the Kenya IDP Act (Section 3). Principle 6 of the UN Guiding Principles prohibits arbitrary displacements by large-scale development projects.

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Case Review of Development-Induced Displacements in Kenya

Kenya like most countries in Sub-Saharan Africa has limited data on development-induced displacements. The country’s quest for development has witnessed a surge in large-scale development projects in the recent past. Such development projects have come at a cost, particularly, where displacements of populations have been unlawfully carried out. This section explores some of the notable development-induced displacements that have been reported in Kenya in order to point out the extent to which the right to development of displaced populations was infringed. They are then examined against the obligation of the Kenyan Government to develop for the greater good. To begin with, the Endorois case is a locus classicus case on development-induced displacements and the right to development. In this case, the Kenyan government had evicted approximately 60,000 people of the Endorois community to pave way for the creation of a game reserve for tourism within the Lake Bogoria region in Rift Valley. A communication was lodged by the Centre for Minority Rights Development (CEMIRIDE) with the assistance of Minority Rights Group International (MRG) and the Centre on Housing Rights and Evictions on behalf of the community on allegations of violation of the African Charter, the Constitution of Kenya and relevant international legal provisions.

Specific rights that were alleged to have been violated are the failure to adequately compensate for loss of property, violation of the rights to development, culture and religion and disruption of their pastoral enterprises. The African Commission in its judgment held that the government of Kenya had violated the Endorois’ rights to property, health, culture, religion, free disposition of natural resources and development. The Commission ordered for a reinstatement of the Endorois to their land, compensation for loss incurred and enjoyment of benefits derived from the game reserve and employment opportunities (Endorois case, paras 144–298; Juma 2013). The decision of the African Court on Human and Peoples’ Rights (African Court) in the African Commission on Human and Peoples’ Rights versus The Republic of Kenya (Ogiek Case 2017) is yet another notable case that relates to violation of the right to development due to displacements by development projects in Kenya. In this case, The African Court ruled the Government of Kenya had violated various rights of the Ogeik people. The facts of the case relate to evictions of the Ogiek people from the Mau forest for the purpose of preserving the forest. Over 200,000 people of the Ogiek community were either faced or threatened with evictions. Among other rights, the African Court observed that the Kenyan Government had violated the right to development of the Ogiek people. The African Court was not convinced by the Kenyan Government’s argument that the evictions were necessary to protect Mau forest. This was largely because, no consultation between the Government and the Ogiek community was conducted prior to the evictions. The case was lauded for recognising the rights of indigenous people. In Save Lamu & 5 others v National Environmental Management Authority (NEMA) & another (Kenya Law Reports 2019), the local community was threatened with direct and indirect displacements for purposes of setting up a coal-fired power plant in Kwasasi area in Lamu, Kenya. The project was however challenged at the Kenya National Environmental Tribunal in 2019 for failing to adequately engage the local community. The environmental impact assess-

5  Beyond Accountability and Eminent Domain: Development Rights and Development-Induced…

ment license was suspended by the Tribunal in June 2019 since the local communities were not given adequate notice and opportunity to participate in the environmental impact assessment. The exercise did not also take into account other feasible alternatives to the project. The case called for balancing of the economic benefits of the project and the development rights of the local communities. This case drew lessons from the Lamu Port and Lamu-Southern Sudan-Ethiopia Transport Corridor infrastructure project which resulted in indirect displacements of populations due to environmental impacts caused by the project (United Nations Environment 2018). While the project was necessary for the public good, the development rights of the affected people was disregarded. Two other most recent Kenyan cases that necessitated balancing between the right to development of the affected people and the need to develop for the public good are the Mau forest evictions and the Embobut forest evictions. Both the displacements were necessary in order to preserve the environment. While it was justifiable for the Government of Kenya to carry out the displacements, the displacements were carried out in ways that affected the right to development of the affected people. The Mau forest evictions resulted in massive displacements of the local communities. The evictions were forceful and the police officers deployed to foresee the eviction-­ destroyed property of the local communities. The affected people were not allowed to salvage their property. Land titles that were legally acquired were cancelled by the Government of Kenya (Human Rights Watch 2019). The Embobut forest evictions were forcefully carried out to pave way for ‘Water Towers Protection and Climate Change Mitigation and Adaptation Programme’, a conservation programme under the funding of the European Union. While this was a justifiable reason, the displacements disregarded the rights of over 2000 displaced families. Homes were burnt down during the process and several other properties destroyed (Amnesty International 2018, 2020). These cases justify the need for the Government and corporations to see to it that the right to development of local communities is pro-

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tected where it is necessary to displace them for purposes of development projects.

5

I nternally Displaced Persons’ Right to Development Versus the Right to Develop for the Public Benefit

This section builds on the preceding sections by briefly analysing the conflicting IDPs’ right to development and the right to develop for the public benefit. The question that is often asked is: which of these two competing rights rank higher? This section shall attempt to give a response to this question in the subsequent paragraphs. To begin with, the preceding sections have demonstrated that ‘every person’ is entitled to the right to development. Additionally, Article 2(3) of the UN Declaration observes that the right to development necessitates ‘active, free and meaningful participation in development’. The African Commission in the Endorois case recognised five main criteria for achieving the right to development: ‘equitability, non-discrimination, participation, accountability and transparency’ (Endorois case, para 277). The African Commission further opined that the right to development of local communities is realised when there is improvement of their ‘capabilities and choices’ (Endorois case, para 283). It emphatically stated that in achieving the right to development, equity and choice are the overarching themes (Endorois case, para 278). In Saramaka People v Suriname (Saramaka case), the Inter-American Court of Human Rights (Inter-American Court 2007) observed that the state has a duty to consult with the communities affected by a development project ‘in conformity with their traditions and customs’ and allow them to ‘reasonably participate in the benefits’ resulting from any such development project. The duty to consult was also emphasised by the African Commission in the Endorois case (Endorois case, para 281). Such consultation, according to the African Commission, should be effective and must be done in good faith. This is attained by obtaining the free, prior and informed consent of

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the affected communities (Endorois case, paras 289 and 290). The African Commission in the Endorois case noted the need for benefit-sharing with the local communities as ‘key in the development processes’ (paras 294 and 295). The African Commission observed that failure by the Kenyan Government to ‘provide adequate compensation and benefits or provide suitable land for grazing’ ‘did not adequately provide for the Endorois the development processes’ (Endorois case, para 298). The Inter-American Court in the Saramaka case observed that benefit-sharing is essential in realising the right to development of the local communities. It noted that ‘the right to development will be violated when the development in question decreases the well-being of the community’ (Endorois case, para 294). From the foregoing analysis, fulfilling the right to develop for the public benefits necessitates a fulfilment of the right to development for the local communities in the form of active participation by the local communities by way of obtaining their free prior and informed consent and ensuring benefit sharing. Allowing the communities to choose what is best for their development is important.

6

Eminent Domain and Internally Displaced Persons’ Right to Development in Kenya

Eminent domain is ‘the right by governments to compulsorily acquire land for public use’ (Black’s Law Dictionary 1968). This is characterised in this article by compulsory acquisition of land by governments to allow for setting up of development projects. The United Nations Declaration on the Rights of Indigenous Peoples (2007) states to ‘consult and cooperate in good faith with the indigenous peoples in order to obtain their free and informed consent prior to the approval of any development project affecting their lands or territories and other resources’ (Article 32(2)). The UN Guiding Principles call on states to displace persons for development

projects where there is ‘compelling and overriding public interest’ (Principle 6 (2)). Principle 9 of the UN Guiding Principles further mandates states to ensure that local communities are protected against displacements where it is shown that they have a ‘special dependency and attachment to their lands’. Article 4(5) of the Kampala Convention obligate states to protect communities with special attachment to their land due to particular culture and spiritual values save for compelling and overriding public interest. Articles 3(1)(a) and 4(1) of the Kampala Convention emphasise the primary obligation on states to prevent internal displacement of persons. In particular, states are obligated to ‘prohibit, refrain from and prevent arbitrary displacement of people’. In so doing, states are obligated to ensure that there is individual responsibility for acts of internal displacement (Article 3(1)(g)). The African Charter allows for encroachment of the right to property ‘in the interest of public need or in the general interest of the community’. Such derogation according to the African Charter shall be ‘in accordance with the provisions of appropriate law’ (Article 14). The Great Lakes Protocol calls on the Kenyan Government to justifying displacements by large-scale development projects on overriding and compelling public interest and development. While so doing, the free and informed consent of the affected people should be obtained (Article 5). In the case of large-scale development projects in Kenya, public interest is construed under Section 2 of the Kenya IDP Act as the ‘development interest and benefits derived from the project by the people of Kenya as a whole’. Under section 6(3) of the Kenya IDP Act, displacement by development projects is justified only by ‘compelling and overriding public interest’. Any such displacement ought to be in tandem with both the UN Guiding Principles and the Great Lakes Protocol. Section 21 of the Kenya IDP Act obligates the Government of Kenya to refrain from displacing or relocating people for development projects. This cover displacements by projects to preserve the environment. Where it is necessary to displace persons for purposes of set-

5  Beyond Accountability and Eminent Domain: Development Rights and Development-Induced…

ting up a development project, such displacements can only be carried out in accordance with the law and when there is a justified and compelling public need. There should also be no other feasible alternatives. The Government of Kenya is further mandated with providing durable solutions where displacements are permanent. Displacements by projects necessary for the preservation of the environment is permissible if it is carried out in accordance with the law, it is in the public interest and in instances where there are ‘no feasible alternatives’ (section 21(2) of the Kenya IDP Act). Section 22 of the Kenya IDP Act obligates the Government of Kenya to promptly pay in full of just compensation to affected communities where internal displacement results from lawful compulsory acquisition of land. Article 40(3) of the Constitution of Kenya, 2010 requires the Kenyan Government to only deprive a person of property where compulsory acquisition is necessary ‘for a public purpose or in the public interest’. In so doing, payment of just compensation should be promptly made in full. Kenya has also enacted the Land Acquisition Act Chapter 295 (Revised 2010) which sets out the procedures for compulsorily acquiring land in Kenya. The Inter-American Court in the Saramaka case (Saramaka case, para 127) noted that the right to property is not absolute. The Court observed that ‘a state may restrict the use and enjoyment of the right to property where the restrictions are previously established by law, necessary, proportional and with the aim of achieving a legitimate objective in a democratic society’. In so doing, the state should consider whether the restriction results in the denial of tradition and customs in a way that would endanger the lives of the affected communities (Saramaka case, para 128). The state must also ensure that there is effective participation by the affected communities in ‘conformity with their customs and traditions’, ensure that affected communities benefit from any such development project and also ensure that there is a prior environmental and social impact assessment by independent and technically capable entities (Saramaka case, para 128).

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Development-Induced Displacement as a Development Challenge

As has been stated previously in this chapter, IDPs often lose their property, livelihoods, education, security and access to healthcare services. The IDMC Global Report emphasises that the prerequisites of SDGs are reduced where large numbers of IDPs seek refuge in cities since it results in competition for work, healthcare, housing, education and other basic services (IDMC Global Report 2019: 77). Urban development also poses a development challenge where there are massive displacements without relocation or compensation. According to the IDMC Global Report, ‘displacement impoverishes individuals, families and communities’. The Report analyses the impact of displacement on housing and infrastructure resulting in an increase in expenses if IDPs have to rent or build new houses, temporary or permanent. The Report further analyses the impact of displacements on livelihoods in the form of lost income, disrupted labour markets and unemployment. Impacts of displacement on social networks, education, security, health and environment are also analysed in the Report (IDMC Global Report 2019). This general perspective on the impact of displacements on IDPs reflect the challenges resulting from development-­ induced displacements in Kenya. The Handbook on the United Nation’s Basic Principles and Guidelines on Development-­ Based Evictions and Displacement (UN Basic Principles and Guidelines Handbook 2019) highlights violation of the right to housing due to forced evictions. The Handbook emphasises that forced evictions violate the rights to adequate housing, food, education, water, health and security of the person (UN Basic Principles and Guidelines Handbook 2019: 40–41). It notes that homelessness, landlessness and loss of livelihood have been exacerbated by development projects that fail to follow due process (UN Basic Principles and Guidelines Handbook 2019: 20). The Handbook further emphasises the need for governments to ‘invest in preventive solutions for

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an inclusive and sustainable development’. It recommends well-designed development interventions to help mitigate displacements, for example, an adoption of human rights-based approaches which takes into consideration the principles of accountability, consultation and human rights consistency (IDMC Global Report 2019: 86).

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Conclusion

While states may acquire land to pave way for development projects on public needs grounds, states are mandated to ensure that any resulting displacements do not infringe on the right of displaced persons to development. The UN Guiding Principles, the Kampala Convention, the Great Lakes Protocol, the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act of Kenya and relevant case laws requires the state to refrain from arbitrary displacement of people. In particular, the free, prior and informed consent of the project affected people should be obtained prior to implementing a development project. This should be done in an equitable, non-discriminatory, participatory, accountable and transparent manner while taking into consideration the traditions and customs of the project affected people. The project affected persons should be allowed to choose what is best for their development in the process. The project affected persons should also be allowed to reasonably participate in the benefits resulting from any such development project for it is key in their development processes. Any such benefits or compensation should be adequate.

References Adeola, R. (2017). The Responsibility of Businesses to Prevent Development-Induced Displacement in Africa. African Human Rights Law Journal, 17 (1), pp 245–265. African Charter on Human and Peoples’ Rights (27 June 1981) OAU Doc CAB/LEG/67/3 rev 5; 1520 UNTS 217; 21 ILM 58 (1982), entered into force 21 October 1986 African Commission on Human and Peoples’ Rights, case number 276 of 2003. Decision issued in May 2009.

African Commission on Human and Peoples’ Rights. Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of the Endorois Welfare Council versus Kenya. Decided in 2009. African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa of 2009. African Union. (2020). List of Countries Which Have Signed, Ratified/Acceded to the Kampala Convention. Available at: https://au.int/sites/ default/files/treaties/36846-­s l-­A FRICAN%20 UNION%20CONVENTION%20FOR%20THE%20 PROTECTION%20AND%20ASSISTANCE%20 O F % 2 0 I N T E R NA L LY % 2 0 D I S P L AC E D % 2 0 PERSONS%20IN%20AFRICA%20 %28KAMPALA%20CONVENTION%29.pdf Amnesty International. (2020). Burning of 28 Sengwer Homes in Embobut Forest, Elgeyo Marakwet. Available at: https://www.amnestykenya.org/burning-­ of-­2 8-­s engwer-­h omes-­i n-­e mbobut-­f orest-­e lgeyo-­ marakwet/ Amnesty International. (2018). Kenya: Sengwer evictions from Embobut Forest flawed and illegal. Available at: https://www.amnesty.org/en/latest/news/2018/05/ kenya-­s engwer-­e victions-­f rom-­e mbobut-­f orest-­ flawed-­and-­illegal/ Black, H.C. (1968). Black’s Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern West Publishing Company, 4, pp. 616. Browning, R. (2011). The Right To Development In Africa: An Emerging Jurisprudence? Examining the Endorois recommendation by the African Commission for Human and People’s Rights. Kenya Law. Available at: http://www.kenyalaw.org/kl/index.php?id=1900 Handbook on United Nation’s Basic Principles and Guidelines on Development-based Evictions and Displacement (2019) Housing and Land Rights Network, Fifth Edition. Human Rights Watch. (2019). Kenya: Abusive Evictions in Mau Forest. Available at: https://www.hrw.org/ news/2019/09/20/kenya-­abusive-­evictions-­mau-­forest IDMC (2019) Global Report on Internal Displacement. Available at https://www.internal-­displacement.org/ global-­report/grid2019/ Inter-American Court of Human Rights. Saramaka People v Suriname. Series C no 172, Judgment of 28 November 2007. International Covenant on Civil and Political Rights, Adopted by General Assembly resolution 2200 (XXI) of 16 December 1966 International Conference on the Great Lakes Region. (2006) Great Lakes Protocol on Protection and Assistance to IDPs of 2006. Juma, L. (2013). Protection of development-induced internally displaced persons under the African Charter: the case of the Endorois community of Northern Kenya. The Comparative and International Law Journal

5  Beyond Accountability and Eminent Domain: Development Rights and Development-Induced… of Southern Africa. Vol. 46, No. 2 (JULY 2013), pp. 211–233 Kenya Law. (2012). ‘Kenyan Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act 56 of 2012’ Assented 31 December 2012. Kenya Law. (2010). Land Acquisition Act Chapter 295 (Revised 2010). Marks, S. & Malhotra, R. (2017). The Future of the Right to Development. M’Baye, K. (1972). Le Droit au Développement Comme un Droit de L’Homme, Leçon inaugurale de la Troisième Session d’enseignement de l’Institut International des droits de l’Homme. Revue des droits de l’homme, 5, pp. 503. Saah, C. N. (2018). ‘Marianne-The Symbol of Freedom: A Critical Analysis in Light of the Right to Development in Africa’ in Ngang CC et al (eds), Perspectives on the right to development pp. 18. Save Lamu & 5 others v National Environmental Management Authority (NEMA) & another (2019) eKLR.

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Sen, A. (1999). Development as Freedom. Alfred A. Knopf The African Commission on Human and Peoples’ Rights versus The Republic of Kenya, Application 006/2012. Decided on 26 May 2017 (Ogiek case) The Constitution of Kenya, 2010, Government Printer. The Charter of the United Nations Charter of 1945, Drafted 14 August 1941. The United Nations Declaration on the Rights of Indigenous People Adopted by the UN General Assembly on 13 September 2007. United Nations Declaration on the Right to Development of 1986. United Nations Environment. (2018). The Impacts on the Community of the Proposed Coal Plant in Lamu: Who, if Anyone, Benefits from Burning Fossil Fuels? Perspectives, Issue No. 31. Available at https://wedocs.unep.org/bitstream/handle/20.500.11822/25363/ Perspectives31_ImpactCoalPlantLamu_28032018_ WEB.pdf?sequence=1&isAllowed=y United Nations Guiding Principles on Internal Displacements of 1988.

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A Review of Land and Property Rights of Internally Displaced Persons in Zimbabwe: Steps Towards Restitution Nqobizitha Ndlovu and Enyinna S. Nwauche

Abstract

1

Land and property rights are fundamental to finding durable solutions for internally displaced persons (IDPs). While international instruments such as the Guiding Principles on Internal Displacement and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) provide for the protection of land and property rights of IDPs, such instruments require domestication before they acquire the status of national legislation in Zimbabwe. This chapter explores the protection of land and property rights of IDPs in Zimbabwe. It is argued that while there is no national legal framework specifically recognising and providing for the protection and assistance of IDPs, the 2013 Constitution articulates a Bill of Rights that protects the basic rights of IDPs. This chapter reviews the constitutional land and property rights framework from an IDPs’ perspective.

As at the end of 2018, 41.3 million people were estimated to be living in internal displacement and unable to return to their homes (Internal Displacement Monitoring Centre 2019). About 36% of the IDPs are within the Sub-Saharan Africa region (Internal Displacement Monitoring Centre 2019). The displacement has resulted in the loss of land and property. Smit (2012) notes that for displaced people, land is much more than just an economic asset, but it is also linked with the communities’ autonomy and self-­ determination. In largely traditional societies like Zimbabwe, land defines the sense of social belonging and identity. According to FAO (2019), land ownership and distribution are major issues in Zimbabwe where 70% of the population is rural and dependent on agriculture. The communal land tenure system is applicable to rural areas in terms of the Communal Land Act (Chapter 20:04). In rural areas, land is communally owned and is a central economic resource for the communities. Further, spiritual, cultural and social values and relations are intricately attached to land (Smit 2012). Hence, retaining and returning to one’s traditional land and territory is a deeply felt aspiration as it restores spiritual, cultural and social relations that constitute a person’s identity (Smit 2012). Displacement invariably entails the involuntary removal of people from their homes or residences, which comes with various socio-­ economic risks (Teshome 2019). The risks

Keywords

Internally displaced persons · Internal displacement · Land and property rights · Restitution · Zimbabwe N. Ndlovu (*) · E. S. Nwauche Nelson Mandela School of Law, University of Fort Hare, East London, South Africa e-mail: [email protected]

Introduction

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. Adeola (ed.), National Protection of Internally Displaced Persons in Africa, Sustainable Development Goals Series, https://doi.org/10.1007/978-3-030-66884-6_6

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a­ssociated with displacement include conflict over resources which has led to landlessness and consequent problems (joblessness, homelessness, food insecurity and social disarticulation) (Cernea 2000). While internal displacement is not a new phenomenon in Zimbabwe, it remains largely unrecognised as a problem. Internal displacement in Zimbabwe can be traced to the displacement of the Tonga in the 1950s to pave way for the construction of Kariba Dam (Mashingaidze 2013). Besides development-induced displacements, there are several causes of internal displacement in Zimbabwe which include conflicts, disasters, such as floods, droughts, cyclones and government policies (Internal Displacement Monitoring Centre 2020). Developmentinduced displacements (DID) from government development policies however account for a huge number of displacements in Zimbabwe. This may be explained by Adeola’s assertion that independence, many African states embarked on large-­scale development projects such as dams, urban renewal and extraction of natural resources (Adeola 2021). There is however no official information on the number of IDPs in Zimbabwe (Internal Displacement Monitoring Centre 2020). Further, the existing legal framework does not provide for any formal recognition of internal displacement (Internal Displacement Monitoring Centre 2020). This is despite the fact that IDPs remain among the most vulnerable groups in Zimbabwe (Internal Displacement Monitoring Centre 2020). It has been noted that poor security of tenure in Zimbabwe is not only a driver of displacement, but it also hinders durable solutions to the problem of internal displacement (Internal Displacement Monitoring Centre 2020). This chapter explores the role of the protection of property rights as a solution to forced displacement, particularly development-induced displacements. Specifically, it analyses the Zimbabwean legal framework on the protection of property rights of Internally displaced persons (IDPs). This chapter explores various remedies available to IDPs such as restitution and compensation. As argued by Smit (2012),

Security of tenure and land is among the most important issues to be resolved for a durable solution to be achieved through local integration. Whatever, the durable solution envisaged, the effective treatment of land and property issues is key to making the solution sustainable.

The structure of the chapter is as follows. The introduction constitutes Sect. 1 and gives an overview of land rights and IDPs. Section 2 provides a historical overview of internal displacement in Zimbabwe through a case study approach. While the government of Zimbabwe has consistently shied away from recognising the existence of IDPs in Zimbabwe, this section provides historical evidence by profiling six incidences of various types of internal displacements pre- and post-independence. Section 3 discusses land and property rights of IDPs under international law. The section focuses on the Guiding Principles on Internally Displaced Persons and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention). Section 4 is a review of the national legal framework on IDPs in Zimbabwe. Section 5 analyses the 2013 Constitution and seeks to interrogate the level of protection afforded by the Constitution to IDPs through the property and land rights clauses. The discussion culminates in an exposition of constitutional remedies available for possible violations of the right to property in Sect. 6 and a conclusion in Sect. 7.

2

 Historical Overview A of Internal Displacement in Zimbabwe

Despite the lack of a specific legal framework on IDPs in Zimbabwe, the phenomenon of internal displacement as a result of government policies, conflicts and natural disasters straddles the pre-­ colonial and post-colonial times. The Internal Displacement Monitoring Centre (2008) has noted that, ‘Hundreds of thousands of people have been internally displaced in Zimbabwe as a result of the actions of their own government’. However, there are other causes of internal

6  A Review of Land and Property Rights of Internally Displaced Persons in Zimbabwe…

d­ isplacements in Zimbabwe including political conflicts and natural disasters. This section provides profile of the three major causes of internal displacements in Zimbabwe, that is, conflicts, development-­induced displacements and natural disasters.

2.1

The Kariba Dam

During the pre-independence period, the construction of the Kariba Dam between 1955 and 1959 resulted in the forced displacement of 57,000 Tonga without consultation or compensation (World Commission on Dams 2000). Mashingaidze (2013) chronicles the effects of the Kariba dam-induced displacements from the ecologically rich Zambezi River plains on the Tonga people. He notes that the minority Tonga have occupied marginal positions in Zimbabwe’s ethno-class hierarchies due to the forced displacements (Mashingaidze 2013). Besides displacing the Tonga without any consultation and obtaining their free, prior and informed consent, the government did not pay any compensation or carry out environmental, social and economic impact assessments before the hasty relocations to the dry, infertile and tsetse fly infested but wildlife-rich adjoining upland plateaus (Mashingaidze 2013). Mashingaidze (2013) further notes that due to their marginal influence in the country’s power relations and resource distribution networks, the Tonga did not access the electricity and waters of Kariba Dam as well as the wild animal resources in the safaris and national game parks abutting their new villages. Commenting on the exclusion and marginalisation of the Tonga, Muntanga (2008) has argued that: The story of Lake Kariba was “one of massive but unshared technology. One of plentiful water but perpetual drought.” The “spectacular Lake Kaliba” (Kariba as it is known) is a thing of beauty for tourists. But for the local Tonga, it buried their ancestors under the water, separated their families and failed to bring irrigation to their arid farmlands.

Tremmel (1994) quotes a lamentation by one of the Tonga women, Simpongo Munsaka, who

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during the focus groups kept repeating, ‘We left with our property and our bodies, but we left our water behind. We would like our water to follow us. They promised that the water would follow us’. The water never followed the Tonga. Besides the loss of access to water, the Tonga lost their ancestral land rights due to the displacements. As a result of the forced displacements, the socio-­ economic, religious and cultural life and livelihood of the Tonga were disrupted. Currently the Zimbabwean government recognises the Tonga as one of the most ‘marginalised people’ in the country who survive mainly from donor funds and food handouts (Mashingaidze 2013). According to Mashingaidze (2013), owing to the politics of structural exclusion of the Tonga from their own natural resources and discrimination, Tonga activists from the 1990s appropriated the emerging discourse of indigeneity to shore up their entitlements to natural resources within the Zambezi Valley and to assert the right to better livelihoods for their marginalised ethnicity in the nation at large.

2.2

The Gukurahundi Massacres

The Gukurahundi massacres of the 1980s in Matabeleland and Midlands is one of the major examples of post-independence conflictinduced internal displacement in Zimbabwe. Gukurahundi is a Shona term referring to ‘the first rain that washes away chaff before the spring’ (Eppel 2006). Gukurahundi was a code name for the Fifth Brigade soldiers, an army that was sanctioned by the Prime Minister Mugabe to dismantle ZAPU and the defected military wing Zimbabwe People’s Revolutionary Army (ZIPRA) officials (CCJPZ 1997). The term has been simultaneously adopted to refer to the massacres of over 20,000 people and dehumanising acts against thousands by government-sanctioned security forces in the Midlands and Matabeleland regions between 1980 and 1987 (Murambadoro 2015). According to Crash and Tevera (2010), the declaration of independence from colonial rule witnessed two waves of internal and external displacement.

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One involved the displacement of white colonial settlers fleeing black majority rule (Crash and Tevera 2010). The second-migration wave, according to Crash and Tevera (2010), as yet unquantified, was the displacement of thousands of Ndebele people from the southwestern part of the country who fled into urban areas and into South Africa and Botswana to escape the Gukurahundi massacres of the early 1980s when the Zimbabwean government’s Korean-trained 5th Brigade brought terror to Matebeleland in its effort to put down anti-­ government rebels labelled by the government as “dissidents”.

However, as noted by Maruta and Mpofu (2004), the Gukurahundi massacres also saw massive displacements of rural people who were forced to abandon their homes and a much better life in the rural areas to join the sprawling urban squatter camps. Gukurahundi destabilised the region and created a negative impression among victims and survivors that the government had a vendetta against the nonShona speaking population (Murambadoro 2015). The Matabeleland massacres officially ended with the signing of the negotiated Unity Accord on 22 December 1987 between ZANU-PF led by Robert Mugabe and ZAPU led by Joshua Nkomo, which led to the amalgamation of the two parties into a de facto oneparty state under Robert Mugabe’s party (Mlambo 2014). Mashingaidze (2010) however has argued that minimal efforts have been made by the government to address the atrocities that occurred. The reports of the two commissions regarding the clashes at Entumbane and Gukurahundi, that is, the Dumbutshena and Chihambakwe Commissions of Enquiry in 1981 and 1983, respectively, were never made public (Murambadoro 2015). Further, the Organ for National Healing, Reconciliation and Integration (ONHRI) established in 2009 has, according to Mashingaidze (2010), encountered many obstacles, particularly relating to the lack of political will from parties involved in coming up with a national framework for reconciliation. As a result, the atrocities that occurred during these

episodes remain unaccounted for and much of the work to address the past is being driven by community leaders and Civil Society Organisations, with little support from the government (Hapanyengwi-Chemhuru 2013). Murambadoro (2015) has further noted that in spite of the gravity of the Matabeleland massacres, the government seemingly did not make provisions to prevent the use of excessive force by security agents and ZANU-PF militias against civilians in successive conflicts such as the food riots in 1998, fast-tracked land reform since 2000, electoral violence against opposition parties since 2000 and Operation Murambatsvina in 2005.

2.3

Operation Murambatsvina (Operation ‘Clear the Filth’)

Post-independence, an estimated 570,000 urban dwellers were rendered homeless by the government urban clearance policy dubbed Operation Murambatsvina (Operation ‘Clear the Filth’) (Internal Displacement Monitoring Centre 2020). Without notice, on 24 May 2005, the police and army descended on the suburbs of Harare where it bulldozed and burnt homes and forced occupants to destroy their properties on the basis that they were illegal structures. The operation spread to other cities and towns. The operation disproportionately affected the already vulnerable groups in society who depended on the demolished properties as shelter. The demolitions attracted international condemnation. The United Nations sent a Special Envoy Anna Tibejukiti to Zimbabwe to report on the scope of the crisis. Tibejukiti’s report noted the massive forced displacements which had resulted from Operation Murambatsvina (Report of the Fact-Finding Mission to Zimbabwe to Assess the Scope and Impact of Operation Murambatsvina 2005). Property rights of citizens were violated with impunity. In the aftermath of Operation Murambatsvina, the government failed to provide the displaced persons with necessities such as food, clothes and shelter (Nicolai 2006).

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2.4

 ast Track Land Reform F Programme

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parts of Masvingo province. The Sunday Mail (2017) reported that the construction of Tokwe-­ Mukosi dam is a moving development for During the same period, the government launched Zimbabweans and their economy. The dam was the Zimbabwe’s Fast Track Land Reform touted as a catalyst for socio-economic transforProgramme (FTLRP). The FTLRP was formally mation in Masvingo province due to opportunilaunched in 2002 with the enactment of the Land ties in areas such as agriculture, fisheries and Acquisition Act (Chapter 20:10) which paved tourism (Chazireni and Chigonda 2018). When way for the expropriation of white-owned com- the dam was built, the government had a vision mercial farms and estates without consultation for the dam to transform the livelihoods espeand compensation (Mkodzongi and Lawrence cially in Chivi area and to recover the national 2019). While the FTLRP process fundamentally economy. The government spent more than changed the colonial unequal and race-based 200 million in construction of the dam. The conland ownership pattern, it created new problems, struction of the dam was completed on 10 especially among farm labourers who lived with December 2016 (Chazireni and Chigonda 2018). their families on the farms. An estimated popula- The dam is Zimbabwe’s biggest development of tion of more than 150,000 former farm workers the twenty-first century (Tapfumaneyi 2014). were displaced from the white-owned farms However, despite the positive economic which were subject to compulsory acquisition impacts of the dam, the construction of the largwithout consultation and compensation (Refugees est inland dam in Zimbabwe also resulted in the International 2004). internal displacement of 6393 families (Human Rights Watch 2015). According to Human Rights Watch (2015), most displaced families were 2.5 The Tokwe-Mukosi Dam evicted without payment of compensation. The displaced families were told that the government Adeola (2021) has argued for the need to strike a would only financially compensate them based balance between the imperative of development on property evaluations ‘as soon as resources are and the rights of displaced persons within the available,’ at an undetermined time (Human context of the Kampala Convention. In post-­ Rights Watch 2015). As at 2014, only 896 out of independence states, developmental imperatives 6393 families since work began on the dam usually trump the rights of minorities all in the 16 years earlier had been compensated (Human name of ‘national interests’. Adeola (2021) notes Rights Watch 2015). Further, the government that in post-independence states, development reneged on its undertaking to offer the displaced projects are considered a panacea for Africa’s families 17 hectares of land per each family development. As such the economic interests of (Human Rights Watch 2015). When eventually the majority are often considered over and above relocated, the families were offered 4-hectare the interests of the minority of people who are plots, with the size scaled down to 1-hectare plots displaced by these projects (Adeola 2021). The in Chingwizi. construction of the Tokwe-Mukosi dam is one example of a scenario where the economic interests of the majority came at the expense of the 2.6 Cyclone Idai minority displaced persons. The idea of constructing the large water reser- Zimbabwe is prone to natural disasters, espevoir that will transform lowveld into the green cially cyclones. According to Chanza et  al. belt was debated decades ago by the British colo- (2020), the past two decades have been punctunial government of Rhodesia. The major reason ated by a series of cyclones, which have left serifor the construction of the dam was to provide ous impacts in the entire socioeconomic system. irrigation water and electricity to the southern These events can be chronicled from the 2000

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Cyclone Eline that caused 91 deaths, 357 injuries, destroyed 59,187 houses, and resulted in about 2.7 million people being affected (Brown et  al. 2012). This was followed by Cyclones Japhet in 2003, Dineo in 2017, and Idai in 2019. Tropical Cyclone Idai which hit eastern Zimbabwe with heavy rains and strong winds on 15–16 March 2019 (International Organization for Migration 2019). Manicaland and Masvingo provinces were mostly impacted, where floods and landslides due to the cyclone caused severe damage on the affected populations. According to the International Organisation for Migration (2019), an estimated 270,000 people were affected. About 51,000 individuals were internally displaced and were accommodated in collective centres, displacement sites, and in host communities (International Organization for Migration 2019). Amnesty International (2020) has noted that 1 year after Cyclone Idai tens of thousands of people are still trapped in appalling conditions with inadequate shelter or sanitation. Many affected people are still living in makeshift tents in camps set up by the UN Refugee Agency (Amnesty International 2020). The Cyclone Idai-­ induced displacements have not only exposed deficiencies in the country’s disaster management system, but also in the policy and legal framework on the rehabilitation and reconstruction of victims of internal displacements.

3

Judicial Responses to Internal Displacement

An analysis of the court cases surrounding internal displacement and specifically development-­ induced displacement reveals several human rights violations. Firstly, the lack of consultation of the affected local communities is a violation of their constitutional rights to fair administrative action and protection from arbitrary eviction as enshrined in sections 68 and 74 of the Constitution, respectively. However, notwithstanding the lack of consultation, forced evictions and destruction of houses which accompanied operation Murambatsvina, the High Court in the case of Dare Remusha

Cooperative vs. The Minister of Local Government and Urban Development & Others (HC 2467/05), ruled that the evictions were justifiable because the applicants had constructed illegal structures in contravention of the planning regulations. The court did not consider the applicant’s right to housing or fair administrative conduct. This position changed with the advent of the 2013 Constitution which expressly provides for protection from arbitrary eviction and unfair administrative conduct. In the case of City of Harare v Makungurutse & 3 Others (SC 46/18), the Supreme Court decided that section 74 of the Constitution forbids, in clear and unambiguous terms, the demolition of homes without a court order. The Supreme Court held that the failure to first approach a court and obtain a court order for eviction renders any eviction and demolition of property unlawful and unconstitutional. The judiciary has also held that the failure to give adequate notice of eviction and sufficient time within which to relocate is unconstitutional. Judge Justice Chigumba in the case of Dusabe & Another v Harare City & Others (HH 114/16) strongly stated the position thus, Every citizen of this country has the right to administrative justice which is enshrined in s 68 of the Constitution. This means that administrative conduct must be lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair. It is a disgrace for two government departments to admit that houses which had been built without the requisite planning authority were demolished and razed to the ground without a court order, without notice in writing being given to all those likely to be affected. The process was not procedurally fair. What is shocking and of great concern is the apparent misapprehension by these government departments, of their duty to uphold the Constitution, by ensuring that their conduct is not only lawful, it must be procedurally fair. Under no circumstances are government departments at liberty to unilaterally and arbitrarily demolish any structures in the absence of a court order authorizing them to do so, whether the structures were built without approval of building plans, or layout plans or without complying with any other legal requirement. Even if the structures are an eyesore, they cannot just be razed to the ground at the drop of a hat, or on a whim. This is a democratic society in which such conduct, especially on the part of government department whose ­operations are funded by taxpayers’ money, is not justifiable.

6  A Review of Land and Property Rights of Internally Displaced Persons in Zimbabwe…

Despite the several pronouncements by the judiciary, the Zimbabwe Human Rights Commission (2017) has noted that the violation of the right to freedom from arbitrary eviction through the demolition by government agencies continues. Arbitrary deprivation of property amounts to a violation of the right to property which, it is argued, is a strong premise for protecting IDPs. The High Court in the Dusabe case also recognised the right to fair and adequate compensation for the acquisition of property within a reasonable time. Quoting section 71 of the Constitution, the court held that no person may be compulsorily deprived of their property unless the deprivation is in terms of a law of general application, in the interests of defence, public order, public safety, public health, and town and country planning. However, the court gave a restrictive interpretation of section 71 holding that “the reference in s 71 (3) (a) to deprivation in terms of a law of general application does not entrench in the Constitution, a right to fair compensation (s 71 (3) (c) (iii) to just anyone ‘deprived of their property’.”. The High Court thus restricted the right to adequate and fair compensation only to the compulsory acquisition of land in terms of the Land Acquisition Act (Chapter 20:10). It can be argued that this interpretation violates the constitutional interpretation principle that a provision must be interpreted in favour of promoting fundamental rights. In the case of Chihava & Anor v Mapfumo NO & Anor CC-6-15, the Constitutional Court held that the court should give a generous and purposive construction to the constitution’s provisions, particularly the entrenched fundamental rights and freedoms. Thus, it is argued that any deprivation of property should be subject to fair and adequate compensation. While the judiciary has consistently ruled against arbitrary evictions, the phenomenon of displacements has continued to result in the loss of land, homes, movable property, traditional and cultural lifestyles. As a result of the loss of land, which is a fundamental point of economic, social and cultural reference for traditional communities, the displaced communities are living in a state of poverty and are among the most

53

v­ ulnerable groups in Zimbabwe (Internal Displacement Monitoring Centre 2008).

4

 and and Property Rights L of Internally Displaced Persons Under International Law

While international law does not specifically address the plight of IDPs, this does not mean that they are not protected under the law (Global Protection Cluster 2008). IDPs are entitled to enjoy, equally and without discrimination, the same rights and freedoms under international and domestic law as do other persons in their country (Global Protection Cluster 2008). As noted by Phuong (2005), the non-mention of the expression ‘internally displaced persons’ in any internal treaty does not mean that the internally displaced do not enjoy any legal protection under existing international law. The international legal framework on the protection of IDPs heavily draws from international human rights law and humanitarian law (Phuong 2005). As a result, the Guiding Principles on Internal Displacement, which are the most authentic international basis for providing protection and assistance to IDPs are simply a restatement of relevant provisions of human rights law, as enshrined in international human rights law treaties (Chaloka 2006). The protection of land and property is one such provision enshrined in international human rights instruments which has been incorporated in the Guidelines (Article 17 of the Universal Declaration of Human Rights, and Article 14 of the African Charter on Human and Peoples Rights). Under international human rights law, every person has the right to ownership and peaceful enjoyment of property and possessions, either individually or communally. In terms of article 17(2) of the UDHR, any deprivation of property and possessions and rights related to them by the state or authorised by it must be in the public interest and subject to the conditions provided for by law and by the general principles of international law, including the payment of just compensation. As such, rights in property,

N. Ndlovu and E. S. Nwauche

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possessions, homes, and lands should be respected and ensured to all individuals without discrimination of any kind, including based on displacement (Williams 2008). Besides the Guiding Principles, the Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) is critical for the protection of IDPs within the African human rights system. Unlike the Guiding Principles, which is a soft law instrument, the Kampala Convention is a binding regional instrument on IDPs. It also adopts a human rights framework by incorporating relevant norms from the African regional human rights instruments like the right to property (Adeola 2018). The right not to be arbitrarily displaced mirrors the international human right from arbitrary eviction and deprivation of property. There is thus a case for the argument that the right to property is a really strong premise for protecting IDPs. The following advances this argument by analysing the Guiding Principles and the Kampala Convention and exploring how the two instruments revolve around the right to property and protection from arbitrary eviction and deprivation of property.

4.1

 he Guiding Principles T on Internal Displacement

The Guiding Principles on Internal Displacement are a key international instrument in the protection of IDPs. The principles are a non-binding soft instrument. However, according to Cohen (2004), they have gained widespread and universal acceptance and authority. They provide a ‘comprehensive international minimum standard for the treatment of IDPs’ (Cohen 2004). IDPs are defined in article 2 of the Guiding principles as, persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights, or natural or human-made disasters and who have not crossed an internationally recognized State border.

The Guiding Principles recognise the critical role of land and property rights to IDPs. Principle 21 embodies the right to property. It guarantees against arbitrary deprivation of property and possessions. States have an obligation to protect the property of IDPs from destruction, arbitrary appropriation and use. The Principles recognise the intricate attachment of certain groups in the society to land. These include indigenous peoples, peasants, minorities, pastoralists and other groups who have a special attachment to their lands. The states are under an obligation to protect such vulnerable groups with special attachments with their land from arbitrary displacement. Arbitrary displacement itself is prohibited. Principle 6 embodies the prohibition thus, ‘Every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence’. This prohibition against arbitrary displacement includes displacement in cases of large-scale development projects which are not justified by compelling and overriding public interest. Further, in the planning and implementation of development projects, the Guiding Principles maintain that it is incumbent on the authorities first to explore all feasible alternatives to avoid displacement altogether (Principle 7). Where it cannot be avoided, and no alternatives exist, DID should be minimised along with its adverse consequences (Principle 7). Moreover, authorities must demonstrate that such displacement is justified by compelling and overriding public interest. In all instances, principle 8 provides that displacement should not threaten life, dignity, liberty, or security, and it should be effected in conditions of adequate shelter, safety, nutrition, and health. Principle 7 mandates authorities undertaking displacement in situations other than during the emergency phases of disaster or armed conflict to ensure that the displacement is lawfully mandated and carried out; it flows from the free and fully informed consent of those affected, as well as their active participation; it guarantees compensation and relocation, where applicable; and it is subject to the right of judicial review and effec-

6  A Review of Land and Property Rights of Internally Displaced Persons in Zimbabwe…

tive remedy. DID falls within the provisions of principle 7 since it is not a result of emergency phases or armed conflict. Principle 9 is of huge significance to indigenous peoples. It provides that the authorities must take special care to protect against the displacement of indigenous peoples, minorities, peasants, pastoralists, and others with special attachment to their lands. Guiding principle 29 asserts that: Competent authorities have the duty and responsibility to assist returned and/ or resettled internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation.

According to Williams (2008), this principle represents a significant development in the emergence of a right to post-displacement property restitution in human rights law. Another crucial development from the Guiding principles is that Free, Prior and Informed Consent (FPIC) has become a key requirement for projects that risk causing displacement (Cernea 2000). Minter et  al. (2012) defines FPIC as the internationally recognised right of indigenous populations to be fully informed, prior to its start, on the foreseen negative impacts and potential benefits of any intervention on their lands, livelihoods and social and natural environment; and to give or deny the consent for these activities to those proposing them without manipulation or force. In short, it is the right of indigenous peoples to be fully, and freely involved in decision-making processes on activities that may displace them. While the Guiding Principles are non-binding, they provide an important normative framework for the protection and assistance of IDPs. The constitutional right to property and freedom from arbitrary eviction enshrined in Sections 71 and74, respectively, of the Zimbabwean Constitution reflects article 21 of the Guiding Principles. The Guiding Principles thus present a normative framework to develop the rights to property and freedom from arbitrary eviction. The Constitutional Court recognised the utility of soft

55

law in the Zimbabwean domestic law in the case of Makoni v Prisons Commissioner & Another (CCZ 8/16) thus, The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinion juris. … [A] series of resolutions may show the gradual evolution of the opinion juris required for the establishment of new rule.

Thus, the Constitutional Court has set the stage for the application of the Guiding Principles within the domestic legal system. This conclusion is bolstered by the fact that the Guiding Principles do not constitute a new set of international rules but is merely a collation of the main rules of international law, drawn from international human rights law and international humanitarian law that are relevant to protection in situations of internal displacement (Kalin et  al. 2010).

4.2

The Kampala Convention

The African Union (AU) adopted the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) as a normative framework to protect and assist (IDPs) in the continent in October 2009. According to Adeola (2018), the Convention owes its development in large part to the Guiding Principles on Internal Displacement. It however goes beyond the Guiding principles in that it reflects and incorporates relevant aspects of norms from African regional human rights frameworks (Adeola 2018). It further transformed what was hitherto soft law into hard law by clearly articulating the rights and obligations of duty bearers and right holders (Won 2011). Chaloka (2008) asserts that as a result, IDPs are treated as subjects of rights rather than victims. One way in which the Kampala Convention heavily mirrors the Guiding Principles is in its definition of IDPs. Using the language in the Guiding principles, it defines IDPs in article 1 (k) as:

N. Ndlovu and E. S. Nwauche

56 persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situation of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.

effective consultation with persons likely to be displaced must be carried out and socio-­economic and environmental impact assessment must be carried out. In undertaking any form of displacements, including in situations of development projects, states are under an obligation to respect human rights. The Convention revolves around the right not Another crucial aspect of the Kampala to be arbitrarily displaced. Adeola (2018) argues Convention relates to measures to address the that this right is at the crux of the protection of negative impacts of displacement on IDPs. IDPs. It elevates IDPs’ protection from internal Article 12(1) of the Convention requires the displacement from an ethical consideration to a states to provide effective remedies for affected binding legal duty (Adeola 2018). Without pro- persons. It is the duty of states to establish effecviding a definition of arbitrary displacement, tive legal frameworks to provide just and fair article 4(4) of the Convention recognises that all compensation and other forms of reparations to persons have a right to be protected against arbi- IDPs. Damages incurred as a result of displacetrary displacement. Various prohibited categories ment should be settled by states. Further, such of arbitrary displacement are listed in article 4(4) remedies must be in accordance with interna(a)–(h) of the Convention. While the list is non-­ tional standards. exhaustive, article 4(4) is silent in respect of development projects. The only reference to development-induced displacement is made in 5 Legal and Property Rights article 10 of the Convention which provides that of Internally Displaced states must ‘as much as possible’ prevent disPersons in Zimbabwe: placement caused by projects. As noted by The Domestic Legal Adeola (2017), this provision ‘sets a vague stanFramework dard for understanding what constitutes arbitrariness in development-induced displacement The Zimbabwean domestic legal system is comsituations’. However, in the case of communities posed of several sources of law regulating land which have a special attachment to and depen- and property rights. These include the dency on land, article 4(5) of the Convention Constitution, which is the supreme law, common requires states to ensure that displacement does law, statutory law, customary law and internanot occur except where ‘compelling and overrid- tional law (Constitution, section 2, 176 and ing public interests’ exist. 327(6)). While there is no specific mention of the Article 9(2) of the 2009 Kampala Convention term IDPs in any domestic legal instruments, the provides that States Parties shall: government has recognised the phenomenon of internal displacement through ratification and Take necessary measures to protect individual, colsigning of international instruments on IDPs. The lective and cultural property left behind by displaced persons as well as in areas where internally government of Zimbabwe was among the first displaced persons are located, either within the African countries to demonstrate commitment to jurisdiction of the State Party, or in areas under a legally enforceable IDP framework by signing their effective control. the Convention on Protection and Assistance for Article 10 further sets a prescription that even Internally Displaced Persons (the ‘Kampala if displacement may be permissible—it must still Convention’). The Kampala Convention was ratified by be carried out in accordance with due process of law—that is, fulfilling all minimum procedural the government of Zimbabwe in October 2009. guarantees. The three procedural requirements While the Convention represents a milestone in implicit in article 10 are that prior to the displace- IDP law, being the first legally binding treaty ments, feasible alternatives must be explored, seeking to create an enforceable IDP f­ ramework

6  A Review of Land and Property Rights of Internally Displaced Persons in Zimbabwe…

in Africa, the government of Zimbabwe has not domesticated the Convention as required of signatory parties. The failure to domesticate the Convention more than a decade after ratification is contrary to Section 34 of the Constitution which provides that ‘The State must ensure that all international conventions, treaties and agreements to which Zimbabwe is a party are incorporated into domestic law’. While the section does not prescribe a time frame to domesticate international instruments, it can be implied that such domestication must be within a reasonable time. Constitutionally, Zimbabwe subscribes to the common law tradition of dualism which requires domestication of ratified international law treaties through an Act of Parliament to have application in the domestic legal system. Section 327 of the Constitution sets out two constitutional requirements for an international treaty which has been concluded or executed by the President to be binding in Zimbabwe. Firstly, it must obtain Parliamentary approval, and secondly, it must be incorporated into domestic law through an Act of Parliament. Although undomesticated international treaties do not form a part of Zimbabwean law, section 327(6) of the Constitution requires the judiciary to adopt an interpretation of the law that is consistent with any international treaty, convention or agreement that is binding on Zimbabwe. Thus, while the Kampala Convention does not form part of the law of Zimbabwe, the judiciary has a constitutional obligation to adopt legal interpretation which is consistent with the Convention. This argument is vindicated by the remarks of Judge Justice Charewa in the High Court case of the State v Shepherd Banda (HH 47–2016) who observed thus, I note a worrying trend that judicial officers seem not to be aware that, s 327 (6) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (the Constitution), requires them, in interpreting legislation, to adopt any reasonable interpretation that is consistent with international conventions, treaties, agreements that are binding on Zimbabwe.

Noting that Zimbabwe is party to the United Nations Convention on the Rights of the Child and the African Charter on Human and Peoples

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Rights, the court argued for their applicability despite their non-domestication thus, It has been recognised that domestic judicial officers must, when dealing with cases which impact on the human rights of children in particular, take cognisance of best practices and standards elsewhere including international standards set by regional and international treaties and conventions to which their country is party. In our jurisdiction therefore, judicial officers must, in the discharge of their mandate, take into account the norms and standards that Zimbabwe has subscribed to in the treaties and conventions it has ratified.

The court went on to emphasise the need to progressively interpret section 327(6) of the Constitution holding that, Section 327 (6) of the Constitution effectively means that, gone are the days when it was enough for a judicial officer to be insular in his jurisprudence, but that attention must be paid to international best practices, particularly on matters that impinge on the rights of vulnerable groups, such as children.

This position was confirmed by the Constitutional Court in the case of Makoni v Prisons Commissioner & Another (CCZ 8/16). The full Constitutional bench held that the effect of Section 327(6) of the Constitution is that, in addition to considering all other relevant factors that are to be taken into account in the interpretation of a Constitution, courts and tribunals must take into account international law and all treaties and conventions to which Zimbabwe is a party and may, where appropriate, consider relevant foreign law. Further, the court held that the section requires the adoption of an interpretation that is consistent with any treaty or convention that is binding on Zimbabwe. Proceeding on this legal reasoning, the court relied on several non-­ domesticated international treaties, soft law and foreign cases from various jurisdictions including Namibia, South Africa and the European Court of Human Rights. These include the International Covenant on Civil and Political Rights (1976), the International Covenant on Economic, Social and Cultural Rights (1976) and the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) adopted by the General Assembly on 17 December 2015 (Resolution 70/175).

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The court recognised the role of soft law in the domestic legal system thus, In normative terms, the Standard Minimum Rules of 1957 are generally considered to be “soft law” and cannot be equated to obligations under a treaty or convention. The same applies to the successor Rules of 2015. As such, they are not legally binding on member States of the United Nations. Nevertheless, the general consensus amongst States is that they are highly persuasive in influencing and regulating the treatment of prisoners and the administration of penal institutions generally. They are regarded as being the primary source of standards relating to treatment in detention and as the key framework used by monitoring and inspection mechanisms in assessing the treatment of prisoners.

It is thus argued that while there is no specific lex on the domestication of the Kampala Convention in Zimbabwe, the Constitutional Court approach and interpretation of Section 327(6) of the Constitution renders its provisions binding on the judiciary. Non-domestication therefore cannot be a shield against the application of international treaties to which Zimbabwe is a party to. The courts have an obligation to adopt any reasonable interpretation of the legislation that is consistent with any international convention, treaty or agreement which is binding on Zimbabwe, in preference to an alternative interpretation inconsistent with that convention, treaty or agreement. Besides reliance on international instruments, the 2013 Constitution articulates a Bill of Rights that protects the basic rights of IDPs. This includes among others the property rights as enshrined in Section 71 of the Constitution, rights to agricultural land as enshrined in Section 72 and freedom from arbitrary eviction as enshrined in Section 74 of the Constitution. These constitutional clauses are important in the protection of IDPs’ land and property rights.

5.1

 he Constitutional Property T Clause: Section 71

Section 71 of the 2013 Constitution makes provision for property rights in Zimbabwe. As noted by Tsabora (2016), it embodies the constitutional

property clause. Unlike most constitutions, the Zimbabwean property clause is positively worded. The mischief behind a positively worded property clause signifies the prominent role the right to property plays in Zimbabwe’s political economy. Unlike the 2013 Constitution, the 1980 Constitution did not enshrine a right to every person to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others. Rather, Section 16 of the 1980 Constitution provided a right to protection from deprivation and provided that no property of any description shall be compulsorily acquired except under the authority of a law of general application. Despite this constitutional provision, there were widespread farm invasions and occupations targeting white-owned farms which started in earnest in 2000 (Moyo and Yeros 2005). From the outset of land invasions, the courts declared the land occupations as illegal. The Commercial Farmers Union (CFU) won three High Court orders in 2000 forcing the police to remove the illegal farm occupiers and restore law and order. In CFU v the Minister of Agriculture Land and Resettlement (HC3985/2000a), Justice Paddington Garwe declared that the invasions were illegal and ordered the Commissioner of Police to evict the unlawful occupiers from the land within 24 h. The Commissioner appealed on the basis that the state had no resources to enforce the High Court judgement. The appeal was dismissed. When the police refused to comply with the High Court order, the CFU approached the Supreme Court in the case of CFU v Minister of Agriculture Land and Resettlement (SC132/2000b). The full Supreme Court bench held that the ongoing farm invasions did not amount to a land reform programme and was a violation of the rule of law. In response to these legal challenges, the government proceeded by introducing the Land Acquisition Act in 2002 which legalised what became known as the Fast Track Land Reform Programme (FTLRP). Constitutional Amendment No. 17 of 2005, which confirmed all acquisitions meant that illegal farm occupiers who had invaded white-owned farms could no longer be

6  A Review of Land and Property Rights of Internally Displaced Persons in Zimbabwe…

evicted. About 4000 court applications by commercial farmers challenging the seizure of their properties which were pending in the country’s courts were removed from the court’s role. The amendment ousted the jurisdiction of the courts over all cases of acquisition rendering impotent national and international obligations for the right to protection of the law and property. The amendment effectively extinguished any judicial authority over land. The wording of the property rights clause in the 2013 Constitution should thus be understood within the context of arguments that the FTLRP had eroded the vested right to private property. Firstly, Section 71 of the Constitution defines property as ‘property of any description and any right or interest in property’. The definition of property is so broad that it covers both rights and interests of movable and immovables. Thus, rights and interests in a property are constitutionally protected. Arising from this, it follows that use and occupation rights and interests on land are definite property rights. The communities’ use, and occupation rights to land are thus constitutionally protected and guaranteed. Section 71 also goes beyond recognising individual ownership of property. Collective property rights are recognised. The section is positively framed and explicitly guarantees individual and collective private property rights thus, ‘Subject to section 72, every person has the right, in any part of Zimbabwe, to acquire, hold , occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others’. Thus, while recognising the common law classical individual property rights, the property clause extends protection to rights and interests to property such as occupation, lease, use and possession. However, the property clause contains an internal limitation provision. Section 71 introduces compulsory deprivation. It provides that a person may be compulsorily deprived of their property where the deprivation is in terms of a law of general application and is in ‘the interests of defence, public safety, public order, public morality, public health or town and country ­planning’. Compulsory deprivation is also con-

59

stitutional where it is necessary ‘in order to develop or use that or any other property for a purpose beneficial to the community’. Procedural safeguards within the section include the requirement to give reasonable notice of the intention to acquire the property to ‘everyone whose interest or right in the property would be affected by the acquisition’. This procedural safeguard is critical in the protection of IDPs’ property rights. Apart from reasonable notice, the property clause also provides for judicial remedies like fair and adequate compensation for the compulsory deprivation of property. Where the acquisition is contested, the acquiring authority has to apply to a competent court before acquiring the property or not later than 30 days after the acquisition, for an order confirming the acquisition. Any person with an interest in the property has the right to approach the court. The section provides for various remedies which include the prompt return of the property if the court does not confirm the acquisition, the determination of the existence, nature and value of a claimant’s interests in the property, the legality of the deprivation and the quantum of compensation payable. These procedural and substantive remedial provisions are broad enough to provide protection for IDPs. The Constitution is however not emphatic on consultation of affected individuals or communities before the compulsory deprivation of property. While reasonable notice provisions meet the constitutional requirement of fair administrative action, it is argued that for IDPs, the notice provisions without consultation-­consent provisions offer little protection to their property rights. Notice provisions are different from consultation provisions in the sense that notice is unilateral and non-consultative. While theoretically this weakness can be cured by the constitutional requirement of confirming the deprivation before a competent court, this provision offers little protection to marginalised societies who have no access to justice due to various reasons including poverty and lack of knowledge on the justice system.

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5.2

 ight to Agricultural Land: R Section 72

Section 72 of the 2013 Constitution embodies the land’s rights clause. It opens by providing a definition of three terms being agricultural land, land and piece of agricultural land. What is notable about the definition of agricultural land is that it expressly excludes communal land. The definition of agricultural land seems to be deliberately targeted on commercial agricultural activities at the exclusion of subsistence agricultural activities. Probably the mischief behind the exclusion of communal land from the definition is that the land rights clause embodies the land redistribution regime through the compulsory acquisition of agricultural land. However, the resultant outcome is that the communal land tenure system which is applicable to 42% of Zimbabwe’s land area is excluded from the constitutional land rights clause (Cliffe et al. 2011). The exclusion of the communal land tenure system from the definition of agricultural land contrasts sharply with evidence that communal areas account for approximately 70% of the country’s population (FAO 2019). Communal areas are occupied by a rural populace which depends on subsistence agriculture for their livelihood (FAO 2019). The exclusion of communal land in the definition of what amounts to agricultural land leaves communal occupiers with a weak system of tenure. According to the Communal Land Act, all communal land is vested in the State President who has powers to permit its occupation and utilisation in accordance with the Act. Communal area inhabitants thus have usufructuary rights over communal land. Rural District Councils, on the other hand, have special permission to allocate land to qualified persons on behalf of the State. Thus, while the rural land occupiers have usufructuary rights on communal land, the land is not regarded as agricultural land. The exclusion of communal areas from the definition of agricultural land does not detract from the protection of usufructuary rights as property in terms of Section 71 of the Constitution. Communal area inhabitants can claim protection of their usufructuary rights to communal land in terms of Section 71.

6

 he Constitutional Remedial T Framework in Zimbabwe

6.1

Compensation

Sections 71, 72 and 295 of the constitution provide the constitutional framework within which the duty to compensate for compulsory deprivation, compulsory acquisition, the amount of compensation and the time and manner of payment must be determined. The constitutional compensation framework differentiates compensation payable following the act of compulsory deprivation from those available after the act of compulsory acquisition. Firstly, while compulsory deprivation creates a duty to pay fair and adequate compensation for the property, compensation payable under compulsory acquisition of land depends on who owns the land. The compensation regime differentiates between indigenous Zimbabweans, landowners protected by Bilateral Investment Treaties (BITs) and any other person. In contrast to indigenous Zimbabwean-owned land and BIT-protected lands, other owners of land such as foreign investors or non-indigenous Zimbabweans are only entitled to the payment of compensation on the improvements on the land and not on the land itself. Secondly, the owner of property which is subject to compulsory deprivation can challenge the legality of the deprivation in a competent court. The Constitutional Court in the case of Greatermans stores (1979) (private) limited t/a Thomas Meikles stores & Another v The Minister of Public Service, Labour and Social Welfare & Another (CCZ 2/18) laid the principle that compulsory deprivation can be challenged before the courts while the Constitution has ousted the court’s jurisdiction in relation to compulsory acquisition of agricultural land. The court set the distinction between compulsory deprivation and compulsory acquisition thus, There is a distinction between compulsory deprivation and compulsory acquisition of private property by the State. Deprivation does not necessarily amount to acquisition or taking away of property by the State. It may be confined to the imposition of restrictions on the use, enjoyment or exploitation of the private property. In that case, ­deprivation

6  A Review of Land and Property Rights of Internally Displaced Persons in Zimbabwe… must be by a law of general application and be for the purpose of one of the public interests listed in s 73(1)(b) of the Constitution. Where the compulsory deprivation involves the acquisition or taking away or dispossession of private property, there is expropriation. It cannot be disputed that acquisition means and implies the acquiring of the entire title of the expropriated owner, whatever the nature or extent of that title might be. The whole bundle of rights which were vested in the original holder would pass on acquisition to the acquirer, leaving nothing in the former. Expropriation requires the payment of a fair and adequate compensation. In that case, all the requirements of validity of the law prescribed under s 71(3) of the Constitution must be met.

Further, under compulsory deprivation, an owner has a right of access to courts to seek an order for the prompt payment of compensation. This contrasts with the compulsory acquisition clause which ousts the jurisdiction of the courts on issues of legality of the compulsory acquisition and payment of compensation. Further, the right to non-discrimination as enshrined in Section 56 of the Constitution has been ousted as a ground of challenging compulsory acquisition. As noted by Tsabora (2016), the judicial ouster clause in Section 72 means there is no recourse to the courts to determine any questions on compensation, except compensation for improvements to the land. Despite the compensation framework, evidence suggests that citizens, including IDPs, who have lost their property and land remain without compensation (Vengesai and Schmidt 2018).

6.2

Towards Restitution as a Constitutional Remedy: The Land Commission (Gazetted Land) (Disposal in Lieu of Compensation) Regulations, 2020

Restitution as a remedy finds no express provision in the 2013 Constitution. However, Section 71 provides that in the case of compulsory deprivation, if the court does not confirm such acquisition, any person whose property has been acquired can apply to a competent court for ‘the prompt return of the property’. Further, the Land

61

Commission (Gazetted Land) (Disposal in Lieu of Compensation) Regulations, 2020 (the Regulations) provide for restitution as an alternative to compensation for compulsorily acquired agricultural land. On 6 March 2020, the Minister of Lands, Agriculture, Water and Rural Resettlement, in terms of Section 21 as read with Section 17 of the Land Commission Act (Chapter 20:29), gazetted the Land Commission Regulations. The object of these Regulations is set out in Section 4 as follows: The object of these regulations is to provide for the disposal of land to persons referred to in section 4, who are, in terms of section 295 of the Constitution, entitled to compensation for acquisition of previously compulsorily acquired agricultural land.

The objective of the Regulations is to provide a legal means of land restitution to the farmers who are entitled to compensation in terms of the Constitution. Section 9 of the Regulations provides that the effect of alienation is to extinguish any compensation claims against the government. While the property rights clause and the land rights clause expressly make provision for compensation, the Regulations have the effect of recognising restitution as an alternative remedy for compensation. It is yet to be seen how this restitution framework will develop in practice. It is however a progressive development which broadens the protection of land and property rights of IDPs.

7

Conclusion

The basic right to own property and the protection of the right to property have attained universal recognition as a fundamental human right. The right is not only essential to the economic system of any given society, but it is fundamental in the exercise of other socio-cultural rights which include religion, culture, self-­determination and development. As a result, many states have mechanisms which protect citizens against forced deprivations of property as well as remedies in case of such deprivations which include compensation and restitution. Lending support to the right to property are several international instruments which include the Kampala Convention.

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The right to property and land assumes fundamental meaning to IDPs. Internal displacement does not only lead to loss of property and land. It also results in loss of social identity and relations, traditional and cultural identity as well as religious identity. Thus, for IDPs, property and land rights represent their entire politico-economic and socio-cultural well-being. With the elaboration of a human rights approach to human rights violations, internal displacement has been approached as a condition that states are obliged to remedy. Land and property rights are integral in finding solutions to the problem of IDPs. Control of land provides a crucial entry point in understanding local and lived realities of IDPs. Yet despite the international recognition and discourse on IDPs, Zimbabwe has consistently refused to recognise the presence of IDPs within the country. This is despite the fact several internal displacements have resulted from government’s own policies and natural disasters. As a result, despite ratifying the Kampala Convention, Zimbabwe has not yet domesticated it. There is no national legal framework specifically recognising and providing for the protection and assistance of IDPs. Despite this lack of a domestic framework on IDPs, the 2013 constitution contains a Bill of Rights which applies to every person thus encompassing IDPs. The constitutional property rights clause accords some measure of protection to every person whose right or interest to property is subject to compulsory acquisition. It has been argued that the definition of property is wide enough to encompass individual and collective ownership and rights as well as interests in a property. For rural communities, their usufructuary rights in communal land are regarded as property and subject of protection in terms of Section 71 of the Constitution. Compulsory deprivation and compulsory acquisition create a duty on the acquiring authority to pay compensation. While fair and reasonable compensation is payable for compulsory deprivation, compulsory acquisition introduces a compensation framework which is discriminatory. Indigenous Zimbabweans and BITs protected farm owners are entitled to compensation for both the land and improvements thereon

while other farm owners are only entitled to compensation on the improvements. It is ­ ­recommended that a good starting point in developing a domestic IDP framework is through the domestication of the Kampala Convention. The development of a compensation and restitution policy for IDPs is critical in the protection of land and property rights of IDPs.

References Adeola, R. (2021). Development-induced Displacement and Human Rights in Africa: The Kampala Convention. London: Routledge Adeola, R. (2018). The Kampala Convention and the right not to be arbitrarily displaced. https://www.fmreview. org/sites/fmr/files/FMRdownloads/en/adeola.pdf. Adeola, R. (2017). The Legal Protection of Development-­ Induced Displaced Persons in Africa. African Journal of Legal Studies, 10(1), 91-104. Amnesty International. (2020). One year after Cyclone Idai, tens of thousands of people still homeless. https://www.amnesty.org/en/latest/news/2020/03/one-­ year-­after-­cyclone-­idai-­tens-­of-­thousands-­of-­people-­ still-­homeless/. Brown, D., R.  Chanakira, K.  Chatiza, M.  Dhliwayo, D.  Dodman, M.  Masiiwa, D.  Muchadenyika, P. Mugabe, and S. Zvigadza. (2012). Climate change impacts, vulnerability and adaptation in Zimbabwe. Climate change working paper 3. London: International Institute for Environment and Development (IIED). Catholic Commission for Justice and Peace in Zimbabwe (CCJPZ) & Legal Resources Foundation Zimbabwe 1997. Breaking the silence, building true peace: A report on the disturbances in Matabeleland and the Midlands, 1980 to 1988. Harare, Catholic Commission for Justice and Peace in Zimbabwe. Cernea, M.  M. (2000). Risks, Safeguards, and Reconstruction: A Model for Population Displacement and Resettlement. Economic and Political Weekly, 35(41), 3659–3678. Chaloka, B. (2008). The Politics of International Law: Transformation of the Guiding Principles on Internal Displacement from Soft Law into Hard Law. Proceedings of the ASIL Annual Meeting 194. Chanza, N., Siyongwana, P.Q., Williams-Bruinders, L., Jakarasi, G.  V., Mudavanhu, C., Sithole, B.  V., & Manyani A. (2020) Closing the Gaps in Disaster Management and Response: Drawing on Local Experiences with Cyclone Idai in Chimanimani, Zimbabwe. International Journal Disaster of Risk Science, 11, 655–666. CFU v the Minister of Agriculture Land and Resettlement (HC3985/2000a). CFU v Minister of Agriculture Land and Resettlement (SC132/2000b).

6  A Review of Land and Property Rights of Internally Displaced Persons in Zimbabwe… Chaloka, B. (2006). The Elaboration of a Legal Framework for the Protection of Internally Displaced Persons in Africa. Journal of African Law, 50 (2), 187-197. Chazireni, E., & Chigonda, T. (2018). The socio-­economic impacts of dam construction: Case of Tokwe Mukosi in Masvingo province, Zimbabwe. European Journal of Social Sciences Studies, 3 (2), 209-218. Chihava & Anor v Mapfumo NO & Anor CC-6-15. City of Harare v Makungurutse & 3 Others (SC 46/18). Cliffe, L., Alexander, J., Cousins, B. & Gaidzanwa, R. (2011). An overview of Fast Track land Reform in Zimbabwe: Editorial introduction. The Journal of Peasant Studies, 38, 907-938. Cohen, R. (2004). The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting. Global Governance, 10, 459–480. Crash, J. & Tevera, D. (2010). Zimbabwe’s Exodus Crisis, Migration, Survival. Cape Town: Southern African Migration Programme. Dare Remusha Cooperative vs. The Minister of Local Government and Urban Development & Others (HC 2467/05). Dusabe & Another v Harare City & Others (HH 114/16). Eppel, S. (2006). Healing the dead: Exhumation and reburials as a tool to truth telling and reclaiming the past in rural Zimbabwe. In Borer, Tristan Anne 2006 ed. Telling the truths: Truth telling and peace-building in post-conflict societies. Notre Dame: University of Notre Dame Press. FAO. (2019). Gender and Land Rights Database. http:// www.fao.org/gender-landrights-database/country-profiles/countries-list/land-tenure-and-relatedinstitutions/ en/?country_iso3=ZWE. Global Protection Cluster. (2008). Handbook for the Protection of Internally Displaced Persons. https:// www.refworld.org/pdfid/4790cbc02.pdf. Greatermans stores (1979) (private) limited t/a Thomas Meikles stores & Another v The Minister of Public Service, Labour and Social Welfare & Another (CCZ CCZ 2/18). Hapanyengwi-Chemhuru, O. (2013). Reconciliation, conciliation, integration and national healing: Possibilities and challenges in Zimbabwe. African Journal on Conflict Resolution, 13 (1), 79–99. Human Rights Watch. (2015). Homeless, Landless, and Destitute The Plight of Zimbabwe’s Tokwe-Mukorsi Flood Victims https://www.hrw.org/sites/default/files/. Internal Displacement Monitoring Centre. (2019) Global Report on Internal Displacement 2019. https://www. internal-­displacement.org/global-­report/grid2019/. Internal Displacement Monitoring Centre. A review of the legal framework in Zimbabwe relating to the protection of IDPs in the context of the Kampala Convention and other supranational normative frameworks. 2020. https://www.reliefweb.int/sites. Internal Displacement Monitoring Centre. (2008). The many faces of displacement: IDPs in Zimbabwe. https://www.reliefweb.int/sites. International Organization for Migration. (2019). Zimbabwe Cyclone Idai Response: Situation Report

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#27 24-30 April 2019. https://reliefweb.int/report/zimbabwe/zimbabwe-­cyclone-­idai-­response-­situation-­ report-­27-­24-­30-­april-­2019. Kalin, W., Williams, R.  C., Koser, K., & Solomon, A. (2010). Incorporating the Guiding Principles on Internal Displacement into Domestic Law: Issues and Challenges. Studies in Transnational Legal Policy, 41, 1-661. Makoni v Prisons Commissioner & Another (CCZ 8/16). Mlambo, A. S. (2014). A history of Zimbabwe. New York: Cambridge University Press. Maruta, S. & Mpofu, S. (2004). Now that we know... A case for a community-driven national reconciliation process. Harare: Centre for Conflict Management and Transformation. Mashingaidze, T.  M. (2010). Zimbabwe’s illusive National Healing and Reconciliation processes: From independence to the Inclusive Government 1980– 2009. Conflict Trends, 2010 (1), 19–27. Mashingaidze, T.  M. (2013). Beyond the Kariba Dam Induced Displacements: The Zimbabwean Tonga’s Struggles for Restitution, 1990s–2000s. International Journal on Minority and Group Rights, 20, 381-404. Minter, T., De Brabander, V., Ploeg, V.  J., Persoon, G.  A., & Sunderland, T.  Whose Consent? Hunter-­ gatherers and extractive industries in the Northeastern Philippines. Society & Natural Resources, 2012 25 (12), 1241-1257. Mkodzongi, G. & Lawrence, P. (2019). The fast-track land reform and agrarian change in Zimbabwe. Review of African Political Economy, 46 (159), 1-13. Moyo, S. & Yeros, P. (2005). The Resurgence of Rural Movements under Neoliberalism. In S.  Moyo & P. Yeros (Eds.), Reclaiming the Land: The Resurgence of Rural Movements in Africa, Asia and Latin America. London: Zed Books. Muntanga, D. (2008). The Story of the River People. https://www.mulonga.net . Murambadoro, R. (2015). ‘We cannot reconcile until the past has been acknowledged’ Perspectives on Gukurahundi from Matabeleland, Zimbabwe. African Journal on Conflict Resolution, 15, 33-57. Nicolai, J. (2006). Operation Murambatsvina: A Crime Against Humanity Under the Rome Statute? American University International Law Review, 21 (5) 813-844. Phuog, C. (2005). The legal protection of internally displaced persons. United Kingdom: Cambridge University Press. Refugees International. (2004). Analysis of the Situation of Displaced Farm Workers in Zimbabwe. https:// www.refworld.org/docid/. Smit, A. (2012). The Property Rights of Refugees and Internally Displaced Persons: Beyond Restitution. Abingdon: Routledge. State v Shepherd Banda (HH 47-2016). Tapfumaneyi, R. (2014). Tokwe Mukosi: The untold positive side. http://www.newzimbabwe.com. Teshome, R.  G. (2019). Social Justice Quests in the Process of Development-induced Displacement.

64 https://www.ejiltalk.org/social-­justice-­quests-­in-­the-­ process-­of-­development-­induced-­displacement/. Tremmel, M. (1994) The People of The Great River: The Tonga Hoped The Water Would Follow Them. Gweru: Mambo Press. Tsabora, J. (2016). Reflections on the Constitutional Regulation of Property and Land Rights under the 2013 Zimbabwean Constitution. Journal of African Law, 60 (2), 213–229. U.N.  Special Envoy on Human Settlements Issues in Zimbabwe, Report of the Fact-Finding Mission to Zimbabwe to Assess the Scope and Impact of Operation Murambatsvina, 13, delivered to the U.N. Secretary General (July 18, 2005).

N. Ndlovu and E. S. Nwauche Vengesai, S. & Schimdt, C. (2018) Challenges to Relocation and Compensation of Rural Communities Displaced by Development Projects in Zimbabwe: Centre for Conflict Management and Transformation. Williams, R. C (2008). Guiding Principle 29 and the right to restitution. Forced Migration Review, 23-24. Won, K. (2011). Managing Forced Displacement by Law in Africa: The Role of the New African Union IDPs Convention. Vanderbilt Journal of Transnational Law 44 (1), 1–82. World Commission on Dams. (2000). Dams and Development: A New Framework for Decision-Making. United Kingdom: Earthscan Publications Ltd.

7

Internally Displaced Children in Nigeria: A Rights-Based Situational Appraisal Olanike Adelakun

Abstract

1

With a significant proportion of internally displaced children in Nigeria, there is a need to discuss adequate protection and assistance of this population. This chapter examines this issue. It specifically considers the protection of internally displaced children from a rights-­ based perspective. This chapter contextualises the discussion with respect to children in IDP camps. The chapter specifically considers the right of children to education, health, family protection, freedom from violence and child labour in select IDP camps in Nigeria. The data used in this study was collected between April and July 2019.

The paradigm shift from inter-state conflict to intra-state conflict in Africa in the twentieth century has led to a reconceptualisation of the idea of conflict. Top of the list of the causes of displacements across Africa is conflict. Conflict-induced displacements is often a gradual and accumulated process that could be triggered by political instability, poverty, weak governance and injustice (Kellenberger 2009). Though there is a widespread perception that internal displacement is associated with conflicts, human rights violations and disasters, displacements can actually occur in situations where people are forcibly ejected from their homes for development projects (Adeola 2016). Over the last decades, Nigeria has witnessed quite a significant number of conflicts ranging from the Niger Delta conflict to the Boko Haram insurgency and also the Herdsmen-­ Farmers’ conflicts. These conflicts have led to significant loss of lives, destruction of properties, displacements of persons, increase in refugee status, human trafficking and increased poverty, to mention a few (Afolabi 2009). A major challenge in humanitarian services and processes is internal displacement. Significantly due to the fact that those displaced within this context do not cross the borders of the state of displacements but stay within the country. One of the significantly affected population are children. Against this background, this chapter examines the level of

Keywords

Internally displaced persons · Internal displacement · Protection · Children · Rights Nigeria The author expresses profound gratitude to Christine Vihishima, a law student of American University of Nigeria, for her support in data collection and interpretation of recorded interviews from various local languages to English language. O. Adelakun (*) School of Law, American University of Nigeria, Yola, Nigeria e-mail: [email protected]

Introduction

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. Adeola (ed.), National Protection of Internally Displaced Persons in Africa, Sustainable Development Goals Series, https://doi.org/10.1007/978-3-030-66884-6_7

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O. Adelakun

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protection offered to internally displaced children in the north-east conflict region of Nigeria. This chapter is divided into three parts with this introductory part being the first part. The second part examines the specifics of legal and institutional framework in Nigeria on internal displacement. The third part considers the situation of internally displaced children across five IDP camps in Nigeria, focusing on specific rights.

2

Legal and Institutional Frameworks for the Protection of Internally Displaced Children in Nigeria

The African Charter on Human and Peoples’ Rights (African Charter 2004), which Nigeria has ratified and domesticated, seeks to protect the rights of every individual, complementing the provision of chapter four of the Nigerian Constitution which provides for the fundamental human rights. Similarly, Nigeria has developed a national policy on IDPs which is still adoption. In effect, Nigeria is yet to domesticate Kampala Convention which it has ratified in the light of section 12 of the Nigerian Constitution. The Nigerian government also developed a Violence Against Persons (Prohibition) Act (VAPPA) in 2015. The VAPPA covers areas of physical, emotional, psychological and economic abuse. The act provides remedies for victims of violence and prescribes punishment for offenders. Institutionally, the National Human Rights Commission (NHRC 2004) is established with the mandate of ensuring that human rights are adequately protected. The NHRC plays an ­important role in protecting human rights in Nigeria and has a record of investigating and condemning human rights violations across the country. However, the NHRC lacks the power to make binding decisions on complaints brought before it. The National Commission for Refugees, Migrants, and Internally Displaced Persons (NCRMI 2004) was established with the primary mandate of managing migration, protecting refugees and engaging in IDP-

related issues in Nigeria including voluntary return and reintegration. In 2017, the North East Development Commission (NEDC) was established with the mandate of receiving and managing funds from the Federal government and international donors for the purpose of rehabilitating victims of the Boko Haram insurgency and also for the purpose of addressing the problems of poverty, illiteracy and environmental and developmental challenges in the States of the north-eastern region. The governing board of the Commission was inaugurated in April 2019 (Umoru 2019). While this initiative is a welcoming one in addressing the challenges associated with IDPs in the North-East, there are other parts of the state where similar initiatives are required, for instance, the Middle Belt region where there are clashes between the pastoralists and the farmers. It comes as no surprise that the other geopolitical zones in the country are pushing for their development commissions (Ayado 2020). Another pertinent institution is the National Emergency Management Agency (NEMA) which is saddled with the responsibility of managing disaster situations. NEMA was established in 1999 and has structures and departments in place to tackle disasters. NEMA has among its infrastructures the Mission Control Centre (MCC) which is a satellite technology designed to pick distress calls and locations; Geographic Information System (GIS) which is a laboratory for early warning and precision for distress management; mobile clinics stationed in strategic locations for deployment in case of disasters; helicopter for the purpose of search and rescue. In line with one of its mandate to distribute relief materials to victims of natural or other disasters and assist in rehabilitation where necessary, NEMA established the relief and rehabilitation department. To ensure that NEMA functions effectively in times of emergencies, the NEMA Act (1999) established State emergency management committees for each of the 36 States of the Federation. To complement the efforts of NEMA, national and international humanitarian agencies, NGOs and religious organisations are also involved in

7  Internally Displaced Children in Nigeria: A Rights-Based Situational Appraisal

managing IDPs across Nigeria. These agencies and organisations rely on international aids and donations to fund their operations. Despite the establishment of NEMA, Nigeria is finding it increasingly challenging to manage the increasing rate of IDPs in the country (Eweka and Olusegun 2016). Some of the activities of NEMA have been constrained by inadequate funding and corruption. This is evident in the situational analysis of the IDP camps in the country. Nigeria has also ratified the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC), both of which are relevant to the protection of internally displaced children. In compliance with the requirement of section 12 of the Nigerian Constitution and to give effect to the CRC and ACRWC, the Nigerian government enacted the Child’s Rights Act (CRA) in 2003. However, child-related matters fall under the residual list of the Nigerian Constitution such that the Federal government can only legislate in respect of children in the nation’s capital (Federal Capital Territory Abuja), while each of the 36 States have to incorporate the federal legislation to give it effect within the state (Adelakun 2018). However, the States of the north-east region of the country with the highest number of IDPs are yet to domesticate the CRA which translates to the fact that there is no specific legislative framework that focuses on the protection of the children in the North-East in line with the CRC and the ACRWC. However, there is an ongoing advocacy bound to yield positive results.

3

Research Findings on the Situation of Internally Displaced Children in Nigeria

Fresh data was collected between April and July 2019 from five IDP camps across Nigeria. The data collected focuses on the specific rights of the displaced child as it affects education, health and nutrition, protection from violence and child labour which are integral to the survival and development of the child.

3.1

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 verview of the IDP Camps O Studied

This study was conducted across five camps in Nigeria: Ngala IDP camp, Maraban Kajuru IDP camp, Kuchingoro Camp, Daudu Camp 1 and Daudu Camp 2. The Ngala IDP camp is located within the premise of Ngala International Secondary School, Ngala local government area, Borno State, about 5 km away from the Gambaru Dikwa Cameroon border. This camp was reported to be the largest IDP camp in Nigeria with an average influx of about 100 IDPs on a weekly basis. The camp was established in 2015 with the Nigerian government having control of the camp with support from international agencies. The exact number of persons as at the date of collecting this data was unknown due to the movement of IDPs in and out of the camp but the officials claims that the camp is home to about 100,000 IDPs with about 82–85% of this population being children and women. The Maraban Kajuru IDP camp is located within the Kajuru Local Government Area of Kaduna State. The camp was created to provide for better management by collapsing smaller camps within the local government to a single camp that would be easily managed. The camp houses people that are displaced by ethnic and religious violent crisis with the bulk of the population being IDPs from the clashes between the Adara people and the Fulanis which resulted in thousands losing their homes and properties to destruction. When the camp was established, there were over 2000 IDPs on the camp with more than 70% of the population being children and women. Presently, there are 652 IDPs residing in the camp. The Kuchingoro camp is located in the suburb of Abuja Municipal Area Council, by Games Village, Federal Capital Territory (Abuja). The camp was established in 2015 to provide shelter to IDPs displaced as a result of Boko Haram insurgency in the North-East. The camp hosts about 1650 IDPs with the majority being children and women who rely on humanitarian assistance to survive. The exact number of IDPs on the camp could not be ascertained.

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Two camps were studied at Daudu in Guma Local Government Area of Benue State. The camps were established to provide for the shelter and basic needs of victims of pastoralist incursions in Benue State. As in 2018, the two Daudu camps housed almost 22,000 IDPs with children comprising about 11,000 of the displaced population. As at the time of the study, there were 1777 IDPs in Daudu camp 1 and 2000 dwellers in Daudu camp 2 with the number of households in both camps coming to 2002. A total of 4238 of this population are children and 2022 are women while 619 are men. There were 258 nursing mothers in the camp with another 142 pregnant women, 363 aged persons and 174 persons with disability.

3.2

Access to Education

The right to education of the child is recognised in the CRC, ACRWC as well as the CRA.  Education, which is key to sustainable development, is essential to the development of individuals, their families, local and national communities (UNESCO 2012). It has been posited that education is life just as life is education because the way a person turns out is largely dependent on the education the person receives (Callaway 1975). As such, education has been described not only as a means to an end but as an end in itself (Adelakun-Odewale 2018). Thus, without access to education, there is no future for the child in the sense of full participation in the development process, self-actualisation and personal freedom. In Daudu Camp 1, 1850 children were enrolled in school while 939 were enrolled in school in Daudu camp 2. However, attendance in school by these children fluctuates with a high record of absenteeism when there is no food. The education of the children in camps is mainly controlled by the State Emergency Education Programme under State Universal Basic Education Board (SUBEB). Studying in these camps is however challenging because there are no structured classrooms for children to learn; hence, children have to sit on the floor to study under trees.

The study of Daudu camps also revealed that there are more students than teachers, and even though efforts are being made in these camps to ensure that learning processes continue for the children, there is a lack of basic facilities for teaching such as instructional materials, writing materials, textbooks and first aid. To manage resources, students have to use a single exercise book (writing book) for multiple subjects. Though over 4000 children are enrolled in school in both the camps, attendance records show that less than half of this population attend school due to the fact that they are mostly hungry and would rather go out to source for food. While schools exist within the Kajuru Local Government Area which hosts the Maraban Kajuru camp, most schools in the area were closed down due to insecurity and displacement. Teaching and learning in the camp were based on individual and NGOs volunteer educational programmes. As such, it was difficult to keep track of the number of children that attended these educational programmes because of lack of consistency. A rough estimate of about 100 students were noted to have enrolled in the educational programmes. A commendable note from one of the dwellers revealed that the quality of education that the children receive in the camp is more advanced than what they had back home before they were displaced. However, a cause of concern is the low enrolment of children in these educational programmes. Kuchingoro camp has a primary school, but just like Daudu camps, all children are not enrolled in school due to one impediment or the other. About 124 students are enrolled in the school at Kuchingoro camp. This is an improvement according to the official interviewed, who mentioned that before the intervention of the school project, many of the internally displaced children could not go to school because of the inability to afford uniform and associated fees. In the school within Kuchingoro camp, children are allowed into classes even without school uniforms. However, the school is still far from providing adequate education because of the shortage of qualified teachers, teaching resources and instructional materials.

7  Internally Displaced Children in Nigeria: A Rights-Based Situational Appraisal

3.3

Access to Health and Nutrition

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In cases that require referral, the camp is not at liberty to provide funds for the treatment of the As with the right to education, the right to health IDPs, but there have been recorded cases of of the child is also guaranteed under the CRA, humanitarian interventions to support the health specifically section 13. Though a directive prin- needs of dwellers in camp. Significantly, the ciple under the Nigerian Constitution, the right to camp had no record of still birth or maternal health ‘must be enjoyed without discrimination mortality. on the grounds of race, age, ethnicity or any other In Daudu camp 1 and camp 2, there were no status’ (WHO 2017). designated health facilities on the camp premises, Although some camps have healthcare desig- but the health needs of IDPs were directly nated areas, many IDPs, especially children are attended to by the community clinic which is still denied access to healthcare due to lack of well equipped. IDPs had positive comments inadequate resources. While most host commu- about the quality of services they received at the nities have healthcare facilities, funds and dis- community health centres. Children and adults tance are barriers for IDPs from accessing these were well attended to with their health needs facilities. Many parents have to resort to self-­ promptly catered for. An inspection of the commedication or medication from camp coordina- munity health centres reveals a neat and well-­ tors who are not trained medical personnel. In managed centre with polite staff. Though the some cases, where humanitarian agencies donate camp had records of maternal mortality, it was medical needs and medicines, IDPs still have to not associated with medical negligence because pay to access these facilities. However, where there was adequate care for children and pregnant the donating agencies attend personally to IDP women. children in need of medical attention, such children get the necessary medical attention and medication. A camp officer interviewed at 3.4 Protection from Violence Kuchingoro camp in Abuja lamented about how they have to watch some children die because This is an issue for which much attention is their parents could not afford the medical bills required. Dwellers refused to talk about child/ needed to treat the children. When asked what forced marriage, circumcision and other forms of the camp officials do to intervene in such violence such as rape, sexual violence and instances, the officer lamented that there are sev- gender-­based violence. Camp officials also deny eral cases like that, and they have had cause to the occurrences of these forms of violence. contribute personally to treat some children, but However, the presence of ‘perceived under-aged’ there is a limit to what the officers can do with- married girls (judging from observations) speaks out government intervention. otherwise. Moreover, media reports of rape, In Maraban Kajuru camp, there were three gender-­ based violence, forced/child marriage health workers, effective in attending to IDPs that and other forms of practices against IDPs within require medical attention. However, there were and outside IDP camps makes interventions inadequate mosquito nets for IDPs, and this important. makes cases of malaria on the high side. Also, a Generally, there is security presence in and lot of children were malnourished because the around camps. There were two police men and camp could only provide meals to IDPs once a four vigilante members at each of the Daudu day in the form of lunch. The IDPs thus had to camps. However, there was no police presence at feed themselves in the morning and at night. The Maraban Kajuru camp although there was police officials at the camp claim that the health workers presence around the camp. Military presence was are prompt in attending to health needs of the also confirmed around Kuchingoro camp. When IDPs and where cases of death or complications dispute arises, they are mostly settled by the occur, it is not as a result of medical negligence. camp officials.

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3.5

Child Labour

On the issue of child labour at the camps, the camp officials have little to say in defence. Many households have to cater for themselves. The camp only complements when the government intervenes by providing assistance in the form of food items. Interventions also come from random donors and donations from international humanitarian organisations as well as NGOs, CSOs, religious groups and community philanthropists. These interventions are however not constant as a result of which households have to find alternative means of survival. Some households in IDP camps have to save up money from donations that they receive and then trade with this money in order to fend for themselves. In such instances, children have to hawk in order to assist their parents and guardians. Additionally, children fend for themselves by begging for alms in communities. Some people give these children money and food items. Some children also have to assist on the farm in order to retain their shelter and have access to food. One case that stood out is the case of a child that had an interest in education but always missed classes. Upon investigation, it was revealed that the child lives with a guardian who has eight children and this particular child alone has to follow the guardian to farm every day on an empty stomach and miss school. The matter was however reported to the camp officials for resolution. When queried on why the child lives with a guardian, the officials responded that orphaned children are made to live with relatives in order to reduce the congestion in camp.

4

Conclusion

While there are relevant frameworks for the protection of internally displaced children in Nigeria, there are still gaps particularly in relation to the states that have not adopted the CRA. The persistent reluctance of the North-East and some North-Central governments to give effect to the CRA on cultural and religious grounds creates a lacuna in terms of a legal framework for the pro-

tection of children in these regions. Based on the findings of this study, the following recommendations to ensure that the rights of displaced children are protected are essential: –– Government should be more involved in the protection of displaced persons by showing more commitment, especially by domesticating Kampala Convention. –– The North-East governments should strike a balance between the religious and cultural demands by domesticating the CRA with required modification. –– SUBEB should be actively involved in the education of displaced children by ensuring that each IDP community has at least a school to cater for the education of the children in line with the free and compulsory basic education commitment of the Nigerian government. –– There should be a structured arrangement for the feeding of displaced children to ensure that they get the necessary nutrients for physical and intellectual growth without facing the risk of child labour and violence in a bid to sustain themselves.

References Adelakun, O.S. (2018). Application of the subsidiarity principle in intercountry adoption in Nigeria: lessons from South Africa. Journal of Comparative Law in Africa, 2, 22–44. Adelakun-Odewale, O. (2018). Right to inclusive development of the girl child in Africa in Onuora-Oguno, A.C., Egbewole, W.O. and Kleven, T.E. (Eds.) Education law, strategic policy and sustainable development in Africa (pp. 146–178). Switzerland: Springer. Adeola, R. (2016). The right not to be arbitrarily displaced under the United Nations Guiding Principles on Internal Displacement. African Human Rights Law Journal, 16(1), 83–98. Afolabi, B.T. (2009). Peacemaking in the ECOWAS region: challenges and prospects. 2009 (2) Conflict Trends, 2 https://www.accord.org.za/publication/ conflict-­trends-­2009-­2/ (last accessed 19 May 20019). African Charter on Human and Peoples’ Rights Cap A9 Laws of the Federation of Nigeria 2004. Ayado, S. (2020). The politics of zonal development commissions and concerns over non-performance. Business Day. https://businessday.ng/features/article/ the-­politics-­of-­zonal-­development-­commissions-­and-­

7  Internally Displaced Children in Nigeria: A Rights-Based Situational Appraisal concerns-­over-­non-­performance/ (last accessed 9 June 2020). Callaway, H. (1975). Indigenous education in Yoruba society in Brown, B.B. and Hiskett, M. (eds) Conflict and harmony in in education in tropical Africa. London: George Allen & Unwin Ltd. Child’s Rights Act 26 of 2003. Eweka, O. and Olusegun, T.O. (2016). Management of internally displaced persons in Africa: comparing Nigeria and Cameroon. African Research Review, 10(1), 193–210. Kellenberger, J. (2009). Root causes and prevention of internal displacement: the ICRC perspective’ 23 October 2009 Statement presented at special summit on refugees, returnees and IDPs in Africa, Uganda. https://www.icrc.org/en/doc/resources/documents/ statement/displacement-­s tatement-­2 31009.htm (accessed 15 May 2019). Kolade, S. (2019). Aid agencies should take note of how displaced people in Nigeria survive. The Conversation. https://theconversation.com/aid-­a gencies-­s hould-­ take-­n ote-­o f-­h ow-­d isplaced-­p eople-­i n-­n igeria-­ survive-­118077 (last accessed 10 June 2019). Mayer, B.S. The Dynamics of Conflict Resolution: A Practitioner’s Guide. San Francisco: Jossey-Bass. Mmahi, O.P. (2016). The impact of internal displacement on women and children in Nigeria. International Journal of Innovative Research and Advanced Studies, 3(8), 6-15. Mohseni, O. (2019). Nigeria: emergency tracking tool report 123 (10-16 June 2019). DTM http://www.glo-

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baldtm.info/nigeria-­emergency-­tracking-­tool-­report-­ 123-­10-­16-­june-­2019/ (last accessed 24 June 2019). National Commission for Refugees, Migrants, and Internally Displaced Persons Act Cap N21 Laws of the Federation of Nigeria 2004. National Emergency Management Agency Act 12 as amended by Act 50 of 1999 (NEMA Act). National Human Rights Commission Act Cap N46 Laws of the Federation of Nigeria 2004. Umoru, H. (2019). North East Commission takes off. Vanguard https://www.vanguardngr.com/2019/04/ north-­east-­commission-­takes-­off/ (last accessed 9 June 2020). UN General Assembly. (1989). Convention on the Rights of the Child. UN Treaty Series Vol 1577. UN General Assembly. (1951). Convention Relating to the Status of Refugees. United Nations Treaty Series vol 189. https://www.unhcr.org/1951-­refugee-­convention. html (last accessed 16 June 1981). UN OCHA. (2018). Nigeria: 2019 humanitarian needs overview. https://www.humanitarianresponse.info/ en/programme-­cycle/space/document/nigeria-­2019-­ humanitarian-­needs-­overview (last accessed 24 June 2019). UNESCO. (2012). UN system task team on the post 2015 UN development agenda: education skills for inclusive and sustainable development beyond 2015. (UNICEF 2012). World Health Organization. (2017). Human rights and health. https://www.who.int/news-­room/fact-­sheets/ detail/human-­rights-­and-­health (last accessed 9 June 2020).

8

Straddled Between Government Forces and Armed Separatists: The Plight of Internally Displaced Persons from the Anglophone Regions of Cameroon Walters Samah and Emmanuel Sunjo Tata

makes the Anglophone Crisis of particular humanitarian concern is that for two consecutive years, it has been classed by the Norwegian Refugee Council as the most neglected displacement crisis in the World (NRC 2019, 2020). While this research is mostly based on secondary and online data, it has also benefited from interviews conducted with some displaced or formerly displaced people.

Abstract

The Anglophone Crisis in Cameroon started in October 2016 as a peaceful, unarmed protest by English-speaking lawyers, teachers and students before quickly morphing into an armed conflict that has triggered a complex humanitarian emergency characterised by massive forced displacement. This chapter delves into the crisis, analysing its pervasive humanitarian effect with a keen focus on forced displacement. Examining the plight of internally displaced persons, who are straddled between government forces and armed separatist fighters, it argues that the efforts by the State to provide protection and assistance to the affected populations have been inadequate, inconsistent and contradictory. Indeed, if anything, the Anglophone Crisis has exposed Cameroon’s unwillingness to and deficiencies in discharging its responsibilities to provide protection and assistance to its forcibly displaced populations, in line with applicable international law. What

Keywords

Internally displaced persons · Internal displacement · Anglophone Crisis · Armed conflict · Cameroon Individuals who are forced from their locations of primary attachment due to violent political conflict find themselves situated in an indeterminate space. The landscape of this space is both geographically desolate and dangerous, situated as they are along the contested borders of nation-states; as well as psychically dislocating. Individuals and communities caught in this disruption are in peril, both in terms of their immediate well-being and their continued existence as an identifiable group. (James-­ Deramo 2009: 1)

The views expressed in this chapter are those of  the authors. W. Samah (*) African Union Mission in Somalia (AMISOM), Mogadishu, Somalia E. S. Tata Department of Geography, University of Buea, Buea, Cameroon

1

Introduction

Cameroon is in the midst of unprecedented security and humanitarian crises due to the Anglophone Crisis, and the Boko Haram insurgency

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. Adeola (ed.), National Protection of Internally Displaced Persons in Africa, Sustainable Development Goals Series, https://doi.org/10.1007/978-3-030-66884-6_8

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in the country’s Far North region. The Anglophone Crisis is an armed conflict pitting government forces against Anglophone separatist fighters. It is the struggle of people who, after suffering decades of historical, socio-cultural, economic and political injustice from the Francophone-dominated State, decided to resist by taking up arms to protect and defend their collective identity (Chukwudi and Chukwuma 2020). Accounting for about 20% of the total population of Cameroon estimated at 25  million people, Anglophone Cameroon, which is synonymous with the Northwest and Southwest regions of the country, is located in the Gulf of Guinea, bordered to the west by Nigeria and the south by the Atlantic Ocean, and sharing a maritime border with Equatorial Guinea. To the east lies French-speaking Cameroon, comprising the eight other regions of the country. Despite occupying only about 9% of the total land surface, Anglophone Cameroon, particularly the Southwest region, has enormous agricultural and mineral potential including oil, the primary source of Cameroon’s wealth. Before the outbreak of the Anglophone Crisis, the separatists represented a tiny fraction of Cameroon’s English-speaking community. However, since the crisis, armed separatist groups have not only seized but are now driving the narrative, drowning out moderate voices seeking a return to federalism or an effective decentralisation (Siobhán 2019). To deal with the crisis, the government opted for a militarycentred approach that is focused more on protecting and defending the State than protecting civilians. This has transformed what started as civil unrest into an armed conflict that has created mass internal displacement, making Cameroon to be ranked among the least peaceful countries in Africa (Global Peace Index 2019). This chapter highlights the effects of the crisis on the civilian population, with a particular emphasis on internally displaced persons (IDPs) and proposes measures that could help to mitigate the adverse outcomes and also put an end to the crisis.

2

Normative Frameworks

IDPs must be protected at all times under international law, particularly the International Human Rights Law that applies at all times and the International Humanitarian Law that is applicable during wartime. Besides, there exist other necessary international and continental instruments for the protection and assistance of IDPs. For instance, the 1998 UN Guiding Principles on Internal Displacement (the UN Guiding Principles) is a landmark international instrument that addresses both protection of displaced persons and their access to humanitarian assistance taking into consideration gaps and grey areas in their protection. At the continental level, there is the African Union (AU) Convention for the Protection and Assistance of Internally Displaced Persons in Africa adopted by the AU Heads of State and Government at a Special Summit in Kampala, Uganda, in October 2009. Also known as the Kampala Convention, the document which entered into force on 6 December 2012 defines IDPs as ‘persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights or natural or human-­made disasters, and who have not crossed an internationally recognised State border’ (Kampala Convention 2009: article 1k). As an important milestone, the Kampala Convention is a continent-wide legally binding instrument for the protection and assistance of IDPs. It provides a sound framework for the protection and assistance of IDPs given its multi-­ sectoral approach in facilitating engagement with states, supporting international aid organisations and enhancing the development of national legislation. It requires the application of its provisions at all times and therefore does not provide for the possibility of derogation even in the event of national emergency, or armed conflict. Further, it defines the rights and responsibilities of IDPs and States’ responsibility within the African context. The Kampala Convention is of particular relevance to Africa, given that the continent is home

8  Straddled Between Government Forces and Armed Separatists: The Plight of Internally Displaced…

to over a third of the World’s forcibly displaced persons (UNESCO 2019). Cameroon acceded to the Kampala Convention on 6 April 2015 and was therefore required to adopt laws and policies in line with its provisions. However, there has been no significant actions taken by the government of Cameroon towards domesticating the Kampala Convention through the development of a national normative framework on internal displacement. This could be attributed to the fact that until the intensification in 2014 of Boko Haram activities in the far north region of Cameroon, followed by the outbreak of the Anglophone Crisis in 2016; internal forced displacement was not a major issue in the country. However, since 2017, some efforts are being made towards the domestication of the Kampala Convention. For example, on 10–11 October 2017, the government of Cameroon with the support of the United Nations High Commissioner for Refugees (UNHCR) held a workshop aimed at launching the process of domesticating the Kampala Convention into national law by training government officials responsible for drafting the new law (UNHCR Cameroon Factsheet, October 2017). The workshop also provided an opportunity to commence substantive discussions on the appropriate legal framework (either a law or a national policy) that will be adopted to domesticate the Kampala Convention. Facing two  crises that are generating forced displacement, and given that the Kampala Convention reaffirms the State’s responsibility to take action, it has become urgent for the government of Cameroon to expedite the domestication of the Kampala Convention in order to adequately deal with the challenges associated with internal displacement. The Anglophone Crisis and its humanitarian implications can also be placed within the framework of key AU peace, security and governance framework documents. First, the AU Constitutive Act shows a clear determination by African countries to tackle the multifaceted challenges confronting the continent, by addressing the scourge of wars, the promotion and protection of the rights of the African people, consolidation of the democratic process, and ensuring good governance and the rule of law—which are prerequi-

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sites to promoting peace, security and stability (AU Constitutive Act 2000). This reflects a recognition that finding lasting solutions to the problem of armed conflict and forced displacement in Africa is vital to sound democratic governance and effective conflict prevention. On 26 May 2013, the Assembly of AU Heads of State and Government adopted the 50th Anniversary Solemn Declaration, in which African leaders committed to achieving the goal of a conflict-free Africa, by ridding the continent of civil wars, genocide, human rights violations and humanitarian disasters, commitments that were translated in January 2015, into AU’s Agenda 2063 and its key priority initiative of ‘Silencing of the Guns 2020’. The aspirations in Agenda 2063, particularly Africa’s development, cannot be realised in an environment devoid of peace and stability, which gives credence to the necessity of the ‘Silencing the Guns 2020’ initiative. Other AU policy initiatives include the AU Humanitarian Policy Framework and the AU Common Position on Humanitarian Effectiveness that outline a broader vision for revamping the humanitarian and development architecture. Furthermore, in recognition of the challenges and the nexus between displacement, peace, security and development, the AU Assembly at its 31st Ordinary Session held in Nouakchott, Mauritania on 1–2 July 2018 adopted a decision declaring 2019 as the ‘Year of Refugees, Returnees and Internally Displaced Persons: Towards Durable Solutions to Forced Displacement in Africa’.

3

 he Anglophone Crisis T as a Symptom of the Anglophone Problem in Cameroon

In late 2016 lawyers, teachers and university students in Cameroon’s Anglophone regions took to the streets to protest against their marginalisation by the Francophone-dominated State. They demanded more political, social and cultural recognition from the highly centralised government (Lunn and Brooke-Holland 2019). However, this should be seen as part of the long-standing

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Anglophone Problem whose roots can be traced presidential and centralised political system. This back to colonialism. ushered in a period of systematic marginalisation Administered by Germany from 1884 to 1915 of the Anglophones in all aspects of life including as a colony, Cameroon was divided in 1916 into their sub-systems, which have been well docutwo unequal parts and administered as such by mented by various scholars (Awasom 2020; France and Britain following the defeat of the Konings and Nyamnjoh 2003; Kofele-Kale 1986; Germans in the First World War. The division of Samah 2010; Bayart 1978; Fombad 2017; Cameroon between Britain and France led to the Fröhlich and Köpp 2019). On the economic front, establishment of two distinct and often conflict- for instance, the English-speaking minority gets ing cultural, political and legal traditions with only a meagre share of development resources profound implications on the future of the terri- from the State budget, compared to the tory (Fombad 2017). French Cameroons achieved Francophone regions, even though it accounts for independence in 1960 as La Republique du most of the country’s resources including oil, Cameroun. On 1 October 1961, British-­ mineral and agriculture (Samah 2010: 253; administered UN Trust Territory of Southern Susungi 1991). To illustrate this disparity, Cameroons reunited with French-speaking Cameroon’s 2017 public investment budget alloCameroun. Together with the two territories, with cated far more resources to the less populated vastly different colonial heritage, formed a single French-speaking South region (over 570 projects country, negotiated on a constitutionally man- with over $225  million) than the two English-­ dated two-state federal system, named the Federal speaking Northwest region (more than 500 projRepublic of Cameroon (Fombad 2017). ects with over $76 million) and Southwest region According to a prominent Anglophone leader and (over 500 projects with over $77 million) (IPSS political activist Simon Munzu,1 the initial intent 2020: 4). was to make Cameroon become a country of To many English-speaking Cameroonians, the “One Nation and Two Systems” in which each of Anglophone Problem is not attributable to natuthe Anglo-Saxon and French (Jacobin) cultures is ral tensions arising from efforts by the Cameroon recognised, given equal value and status and nation to foster national unity out of its bi-­cultural allowed to thrive in its territorial zone of influ- diversity, but rather from a deliberate action by ence and to strengthen and enrich each other for the Francophone-dominated government to prothe good of every Cameroonian (Munzu 2019). gressively but systematically wipe out their However, once the reunion was consummated, Anglo-Saxon heritage. For example, Simon the Francophone-dominated government in Munzu attributes the problem to the government Yaoundé began to steadily and progressively of Cameroon’s deviation from the underlying undermine the federal structure leading to the foundation of the new nation by crafting and assimilation and complete annexation of the applying a system of governance that allowed English-speaking region (Anyangwe 2008). one culture to dominate the other (Munzu 2019). In May 1972, the federal structure that allowed From the foregoing, it can be argued therefore for the English-speaking minority to retain its that the collapse of the federal system in autonomy was abolished, leading to a strong Cameroon is the single most significant factor that brought about the Anglophone Problem. Since then, the dominant Francophone-led gov1  An advocate and member of the Cameroon Bar ernment has denied the English-speaking minorAssociation, Simon Munzu is the former Representative of the United Nations High Commissioner for Human ity the right to restore their nationhood, as Rights in Côte d’Ivoire, Deputy Special Representative of expressed in the 1961 Federal Constitution, and the United Nations Operation in Côte d’Ivoire (UNOCI); the possibility to preserve their distinct Anglo-­ Chief of UNOCI’s Human Rights Division and Director Saxon heritage (Chukwudi and Chukwuma 2020; of Political Affairs in the United Nations Organization Stabilization Mission in the Democratic Republic of the Samah 2010; Konings and Nyamnjoh 1997; IPSS Congo (MONUSCO). 2020).

8  Straddled Between Government Forces and Armed Separatists: The Plight of Internally Displaced…

Hence, with the return to multi-party democracy in Cameroon in the 1990s, there was an increase in the Anglophones’ demand for the restoration of the two-state federal system. However, due to government’s persistent rejection of the federalist option, insisting on the maintenance of the unitary State, some Anglophone leaders began threatening to declare the independence of the English-speaking regions unless their demands were met (Konings and Nyamnjoh 1997; Mwakideu 2017). This was followed by the emergence of a small group of secessionists who began to symbolically declare and celebrate the independence of Anglophone Cameroon each year on 1 October, leading to their frequent arrests and detention by government forces and forcing some to go into exile. Nevertheless, this early call for secession did not gain much traction among the English-speaking population, as the majority still wanted a return to a federal system. Nevertheless, the situation changed in 2016 with the outbreak of the Anglophone Crisis.

4

 rom Civil Unrest to Armed F Conflict

Despite priding itself as a democracy, Cameroon frequently uses its security forces to quash free speech and suppress political opponents. The Anglophone Crisis, in many ways, is a cautionary case of the repercussions of using State violence including military force to respond to essentially socio-political problems (Chukwudi and Chukwuma 2020; Munzu 2019). This was evidenced in October 2016 when government forces brutally suppressed a strike action called by English-speaking lawyers and teachers’ trade unions, under the banner of the Cameroon Anglophone Civil Society Consortium (CACSC). They were calling for a return to the federal system of government as the framework to solve their long-standing grievances. Furthermore, in January 2017, the government banned the CACSC, arrested many of its leaders, forced many to go into exile and shut down internet access in Anglophone regions (IPSS 2020: 10). This brutal response by the government radi-

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calised Anglophone protesters, whose demands shifted from calls for the restoration of the federal State to the creation of an independent state (IPSS 2020: 7). The outcome was the emergence of several resistance groups. In addition to the SCNC (Southern Cameroon’s National Council) which was formed in the 1990s, there was the Southern Cameroon’s Youth League (SCYL), the Ambazonia Governing Council (AGoC) and its military wing, the Ambazonia Defence Forces (ADF) led by Cho Ayaba, the Movement for the Restoration of the Independence of Southern Cameroons (MORISC), the Ambazonia Freedom Fighters and the Southern Cameroons Ambazonia Consortium United Front (SCACUF) formed in 2017 as a governing body to unite all organisations fighting for independence. After adopting a roadmap for independence, SCACUF transitioned into an Interim Government of Ambazonia and elected Sisiku Ayuk Tabi as its leader. In September 2017, a year after the first protest began, separatist groups led by Sisiku Ayuk Tabe began mobilising Anglophones for a declaration of an independent state called Ambazonia. Committed to maintaining national unity and protect territorial integrity, the government dispatched additional security forces to the conflict-­ affected Northwest and Southwest regions, issued administrative orders to restrict the movement of people and vehicles and warned the public to ignore the call for secession. Despite these measures, Anglophones across the two English-­ speaking regions turned out en masse on 1 October 2017 and declared a new state of ‘Ambazonia’. In response, government forces used disproportionate force against unarmed civilians, including opening fire on unarmed civilians. Consequently, between 28 September and 2 October 2017, security forces killed at least 40 civilians, wounded over a hundred and jailed over 500 people (Crisis Group Briefing No. 30, Africa, 2017). With these routinely harsh reprisals from security forces, the population quickly turned against the government and increased their support for the separatists. Confirming this fact, International Crisis Group reported that ‘due to

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such murderous repression, secessionist ranks are growing by the day, and some are more firmly evoking the idea of an armed struggle or “self-­ defence”’ (Crisis Group Briefing No. 30, Africa, 2017). Accordingly, many young people who had dropped out of school got radicalised as a result of the extreme violence perpetrated on the population by government forces, thereby becoming easy recruits for secessionist leaders (Foreign Policy, May 2019; Freudenthal 2018a, b; Siobhán 2019). With the transformation of the civil strife into an armed conflict, there was a proliferation of armed separatist groups called Amba-boys, an umbrella name for all those fighting for independence, as communities and villages began establishing their own  groups to defend and protect themselves. It is estimated that there are at least ten separatist groups, most of which depend primarily on old hunting rifles and unpredictable funding from the Diaspora (Chothia  2018; Freudenthal 2018a, b). With such rudimentary weapons and without any unified command and control structure, there is no match between the Amba-boys and the professionally trained and equipped soldiers of the Cameroonian army, estimated at 60,000, including its Rapid Intervention Battalion (BIR), a special force trained and equipped by the French, Israeli and US forces (ICG 2016; Freudenthal and Van Der Weide 2020). However, the strength of the armed separatist groups can be attributed to the support received from the English-speaking Diaspora, particularly in North America, Europe and South Africa. Pushed into action by the excessive use of force against civilians by government forces, the Anglophone diaspora, some of whom went into exile to escape the same government repression, have played a significant role in supporting the armed resistance, led by  the Amba-boys. The Amba-boys also enjoy strong support from the local community that see them as freedom fighters or defenders of the Anglophone cause and essential agents of protection (Willis et al. 2020: 51–52). Generally, in situations of armed conflict where communities are trapped between the conflicting parties, taking up arms or allying with

W. Samah and E. S. Tata

and supporting an armed group is one of the many coping or survival tactics used by civilians to enhance their security. However, some of the armed groups fighting the government survive by abducting prominent persons and extorting ransom from their families (Tah 2018). In January 2018, Anglophone separatist leader Sisiku Ayuk Tabe and about a dozen of his separatist followers were arrested by Nigerian security forces in Abuja and transferred to Cameroon. On 20 August 2019, a military court in Yaoundé sentenced the Ambazonia leader and nine other members of the separatist movement to life imprisonment on several charges including terrorism and secession. The court sentencing undermined prospects for dialogue between the government and separatists. Since then, the Anglophone Crisis has increasingly become brutal, mutating from what was civil unrest to armed conflict with profound humanitarian implications. What followed was an escalation of the violence and the dominance of the separatist narrative. Against this backdrop, the government, facing increased attacks from separatist fighters, quickly hardened its position and began to project the conflict as a problem of terrorism, labelling the armed separatists as terrorists who must be combated with force (African Arguments 2019). This characterisation was to justify its military response, which included increased militarisation of the English-speaking regions and brutal crackdown on separatists. The government has also justified its military response in the English-speaking regions by arguing that it is aimed at defending and protecting civilians who are being attacked, terrorised and held hostage by armed separatists (Siobhán 2019). However, instead of eliminating or diminishing the separatist threat, these measures have instead forced a growing number of young people to take up arms and join separatist groups to defend themselves and their communities. Asked why he joined the Ambazonia Defence Forces, the main armed group fighting government forces, a 22-year old boy explained that, ‘We cannot sit back and watch the army kill our families and relatives and burn down our villages without reacting; so I joined the struggle out of annoy-

8  Straddled Between Government Forces and Armed Separatists: The Plight of Internally Displaced…

ance’ (Unah 2018). In December 2019, the Washington Post reported the case of an Anglophone IDP who declared that ‘I don’t want Cameroon anymore … I want to fight for a new country’ after government forces attacked his village and shot an old woman dead (Washington Post, 5 February 2019). Over the past 3 years, at least 3000 civilians, 235 members of the security forces and nearly 1000 alleged separatists have reportedly been killed, and over 800,000 people displaced as a result of the armed conflict (Craig 2020a; GCR2P 2020; Global Trends Report 2019).

5

Government Appeasement Measures and the Grand National Dialogue

Since the crisis started in late 2016, the government of Cameroon has carried out a set of measures, in an attempt to appease the Anglophones and reduce the escalating violence. These include the translation of the Organization for the Harmonisation of Business Law in Africa (OHADA) into English, creation of a National Commission on Bilingualism and Multiculturalism, special recruitment of bilingual teachers for secondary education and recruitment of English speaking court clerks. Also, the government announced plans to create a Common Law section at the Advanced School of Administration and Magistracy (ENAM) and Common Law Bench at the Supreme Court and the acceleration of the decentralisation process (IPSS 2020: 11). Nevertheless, the most significant effort undertaken by the government to address the Anglophone Crisis was the convening of the Major National Dialogue that took place in Yaoundé from 30 September to 4 October 2019, aimed primarily to resolve the Anglophone Crisis. The national dialogue brought together some 600 delegates from the country’s ten regions and the Diaspora. It was however boycotted by the main Anglophone separatist leaders, who had conditioned their participation to the withdrawal of Cameroon’s military from the

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Northwest and Southwest regions and the release of the ten prominent separatist leaders who had been sentenced to life imprisonment on terrorism charges (IPSS 2020: 11). Also, their participation was conditioned on the dialogue taking place on neutral ground to resolve the crisis, facilitated by international mediation (IPSS 2020: 11; Kouagheu 2019). Perhaps the most significant outcome of the national dialogue was a recommendation to grant the English-speaking community a special status under the framework of decentralisation, in line with Article 62 of Cameroon's Constitution. Other critical recommendations derived from the national dialogue included setting up a special plan to reconstruct the conflict-affected areas; public sensitisation on the government’s offer of amnesty to armed separatists who drop their weapons and enter the reintegration process; setting up a team responsible for mediating with separatist backers in the Diaspora, taking specific measures to ensure equality of the English and French languages in all aspects of national life; reinforcing the autonomy of decentralised local councils and improving the infrastructure of judicial services. This notwithstanding, the national dialogue failed to resolve the crisis due to several factors. First, it did not seek to address and transform the underlying causes of the conflict. Its agenda was pre-determined by the government, denying participants’ real ownership of the agenda (Chimtom 2019). Criticising the national dialogue, political leader and former Cameroon representative of Transparency International Akere Muna, who had walked out of the dialogue in protest over what he considered were attempts by the government to stifle debate, declared that the ‘Speakers were pre-arranged. You couldn’t even ask a question. It was stage-managed. So [Cameroonian authorities] were actually looking for spectators, not participants’ (Chimtom 2019). Consequently, the national dialogue did not generate the required legitimacy and buy-in for success (African Arguments 2019; The Conversation 2019). Besides, it  was not sufficiently inclusive and credible. Unsurprisingly, therefore, shortly after it was concluded, there were renewed calls

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by key international partners such as the UN, the EU and the UK and the US governments for a more inclusive and legitimate dialogue. For example, at a meeting in Brussels to discuss the situation in Cameroon, the EU Foreign Affairs Council called for a genuinely inclusive national dialogue, through strengthening the participation of all relevant actors both within and outside the Diaspora, including women, youth and civil society (EU Council, Press Release 14 October 2019). Meanwhile, to implement the recommendations of the national dialogue, the Cameroon Parliament convened an extraordinary session called by President Biya in mid-December 2019. It approved two bills which the government hoped would bring an end to the Anglophone crisis, namely bill on the promotion of English-­ French bilingualism and the bill on the decentralisation granting the special status to the country’s two English-speaking regions. However, the decentralisation bill and its provision granting special status to Anglophone regions, signed into law by the President Paul Biya on 24 December 2019, was largely inadequate, as Yaoundé ceded very little power and resources to the regions.

6

Human Rights Violations and Abuses

Many human rights violations have been committed against the civilian population by both the government forces and the armed separatists. However, at the start of the conflict, government forces, mainly the Rapid Intervention Battalion, known by its French acronym BIR, were mostly responsible for systematic human rights violations against the population. Government forces have carried out what the Addis Ababa-based Institute of Security Studies has described as a ‘scorched earth’ policy (IPSS 2020), which has seen the military engage in indiscriminate killings of civilians, rape, violence against women and children, arbitrary arrest and detention, torture, firing on crowds, and destruction of property including burning down homes and entire

villages (Human Rights Watch 2018, 2020; International Crisis Group 2017, EU Parliament). Despite numerous reports on human rights violations by security forces, the government of Cameroon, which has the responsibility, under international law, to investigate, prosecute and punish these violations and ensure that victims/ survivors are compensated and has consistently been in denial, insisting that its military operations are conducted in strict compliance with their rules of engagements (The African Criminology Journal 2018). As a result, a large majority of atrocities committed by government forces have not been investigated, leading to a general prevailing context of wanton impunity. Due to this State of affairs, the government of Cameroon has repeatedly been criticised by many international human rights organisations, the United Nations, European Union and foreign governments over its handling of the Anglophone Crisis. In May 2018, for example, the US Ambassador to Cameroon, Peter Barlerin, accused the government forces of carrying out ‘targeted killings’, attacks on hospitals and other human rights violations in the two Anglophone regions. In December 2018, a group of US Senators urged the Trump Administration to impose sanctions on individuals implicated in these human rights violations (House of Commons Briefing Paper, 17 April 2019). In February 2019, the US Government scaled back its military assistance to Cameroon, owing to credible allegations of gross violations of human rights by security forces. Furthermore, on 31 October 2019, the US Government, citing persistent gross human rights violations by security forces, announced it would be terminating Cameroon’s trade benefits under the African Growth and Opportunity Act (AGOA) as of 1 January 2020. Again, on 12 December 2019, a group of Members of the US Congress sent a letter to the President Paul Biya expressing their deep concern over the violence and human rights violations and abuses in Anglophone Cameroon (US Congressional Letter to President Paul Biya, 12 December 2019). Facing increasing calls for accountability and coming under national and international pres-

8  Straddled Between Government Forces and Armed Separatists: The Plight of Internally Displaced…

sure, the government of Cameroon finally agreed in February 2020 to investigate atrocities committed by its soldiers. This came following what was arguably the deadliest civilian massacre since the start of the crisis, the brutal killing in the remote village of Ngarbuh, Northwest region, on 14 February 2020, of at least 22 civilians, including 14 children and pregnant women, by the military with the help of a local vigilante group (Human Rights Watch 2020; Craig 2020b). When the investigation confirmed the army’s role in the killings, the government took full responsibility and assured the victims of its resolve to ensure that those responsible were held accountable (Human Rights Watch Statement, 25 April 2020). Accordingly, the three soldiers who were directly involved in the killings were immediately placed in provisional detention in Yaoundé military prison, where they were later charged with murder. On their part, Anglophone separatist fighters, at the start of the conflict, targeted government employees and facilities, regional politicians, security officers, traditional rulers and civilians suspected of collaborating with the government or not showing solidarity with the Ambazonian cause (Willis et al. 2020: 51–52). However, with the escalation of violence, the Amba-boys have increasingly committed grave human rights abuses against the populations. For instance, they have engaged in kidnapping, abduction or hostage-­ taking, recruited children as fighters, attacked teachers and school buildings, prevented children from going to school and used school buildings as their bases, restricted freedom of movement through lockdown-attacked aid workers and impeded access to affected populations. While both sides have violated international law, there should be no moral equivalency between the armed separatist groups and Cameroonian troops. According to Willis et  al., the crimes committed by the Government forces are of a ‘special kind and must be condemned on their own terms, without qualification and comparison’ (Willis et al. 2020: 4). On his part, the archbishop emeritus of Douala, Cardinal Christian Tumi, who has been advocating a peaceful resolution of the crisis, has argued that

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government forces are responsible for most of the attacks and human rights violations (Press Hour, CRTV, 17 November 2019). Consistent with this assertion, the US Congressional Letter of 12 December 2019 to President Paul Biya stated categorically that ‘there is consistent and convincing evidence from a variety of unbiased and independent sources that Cameroonian security forces are responsible for the majority of killings of unarmed Cameroonian citizens and destruction of property including the burning of homes’. Unsurprisingly, therefore, the majority of people fleeing their homes in the English-speaking regions to the Francophone regions are running from the government troops (Siobhán, The Washington Post, 2020). On the economic front, the generalised violence coupled with the ghost town/lockdown operations called by the armed separatists have severely undermined the local economy, including the agro-industry, timber, cocoa, energy, telecommunications, tourism and transport sectors, affecting livelihoods in the English-speaking areas (US Congressional Letter to President Paul Biya, 12 December 2019). This has further aggravated the humanitarian situation in Cameroon, where over three million people required humanitarian assistance by the end of 2018 (UNFPA 2019: 9). Another area that has been severely affected by the ongoing crisis is the education sector. By the end of October 2019, about 90% of public primary schools and 77% of public secondary schools in the English-speaking Northwest and Southwest regions remained closed or non-­ operational (UNICEF Press Release, 5 November 2019). As a result, over 855,000 children had dropped out of school, among whom almost 150,000 comprised of children displaced from their homes, which increases their vulnerability and trauma. This creates the risk of losing a generation of young people, who will grow up unskilled, undeveloped and prone to unemployment and criminality. According to Paul Collier, former Director of the World Bank’s Development Research Group, each additional year of education reduces a person’s likelihood to engage in violent conflict by 20% (Collier 1999: 5). Moreover, when children

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are out of school, they face a higher risk of recruitment by armed groups, child marriage, early pregnancy and other forms of exploitation and abuse (UNICEF Press Release, 5 November 2019). Unsurprisingly, child soldiering is increasingly becoming a problem in Cameroon, as children who are no longer going to school are being recruited to join the ranks of the Amba-boys (Fröhlich and Köpp 2019). Though the Anglophone Crisis has not been officially classified as a Non-International Armed Conflict (NIAC); the attacks on schools and hospitals, abduction, recruitment and use of children as soldiers constitute three of the six grave violations against children in armed conflict, as per the United Nations Security Council Resolution 1612 (2005). Against this backdrop, some international actors have called for an international investigation into human rights violations and abuses committed since the start of the crisis. In December 2019, for example, the US Congress called on the Trump Administration to lead an effort at the United Nations to pass a resolution calling for an end to the violence in Cameroon and the establishment of an independent international fact-finding mission that will help ‘determine the facts and circumstances of gross human rights violations being committed by the ­country’s military, security forces and armed separatists…’ (US House of Representatives Letter to the US Representative to the United Nations, 3 December 2019).

7

Forced Displacement

How African governments respond to their citizens’ priorities and grievances is at the heart of much of the displacement on the continent. Accordingly, the poor handling of the Anglophone Crisis by the government of Cameroon has led to an escalation of the conflict from civil unrest into an armed conflict, forcing tens of thousands of people to flee their homes to become either IDPs or refugees. Hence, as the African Union was celebrating 2019 as the ‘Year of Refugees, Returnees and Internally Displaced Persons: Towards Durable Solutions to Forced Displacement in

Africa’, Cameroon was experiencing record numbers of forced displacement emanating from violence perpetrated by government forces and armed separatists. From 2017 to 2019, government forces conducted military operations in more than 100 villages in the English-speaking regions, with most of the inhabitants of the targeted villages fleeing and taking refuge in the forest, where they had no access to shelter, water or sanitation (GRID 2019: 16). Some of these operations by security forces appeared to be acts of retaliation and revenge against communities perceived to be supporting armed separatist groups. As a result of the continuing violence, several thousand people fled their homes either to safer neighbourhoods within the Anglophone regions or to urban areas in French-speaking Adamawa, Littoral, West and Central regions unaffected by the conflict (Tah 2018). An assessment carried out by the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA 2020) revealed that the number of people displaced from the two English-speaking Northwest and Southwest Anglophone regions to the Francophone regions of the country increased almost threefold from 80,000 to 220,000 persons, between July 2018 and August 2019 (UNOCHA 2020: 11). This has contributed to what the humanitarian community refers to as the urbanisation of displacement (Chaloka et al. 2016: 39–42). By the end of 2018, the forcibly displaced communities in Cameroon comprised of 792,831 internally displaced, 35,700 refugees and 18,665 asylum seekers (Global Trends Report 2018). In June 2019, Cameroon was ranked 8th among the most extensive and fastest-growing displacement crises in Africa caused by armed conflict and persecution (GRID 2019). With the escalating violence and forced displacement, the humanitarian needs in both the Northwest and Southwest regions became acute. In early 2020, more than two-thirds of the total population needed humanitarian assistance, but the response has been limited (UNHCR 2019b). The United Nations launched a $15.2 million Emergency Response Plan to

8  Straddled Between Government Forces and Armed Separatists: The Plight of Internally Displaced…

assist 160,000 IDPs from the two English-­ speaking regions, was able to mobilise only 40% of the required funding by the end of 2018 (GRID 2019: 16; UNOCHA 2018). According to Allegra Baiocchi, Humanitarian Coordinator for Cameroon, the ‘2019 humanitarian response in Cameroon was the least funded in Africa, leaving millions of people without vital humanitarian assistance and protection, reinforcing the vicious cycle of vulnerability and violence’ (UNOCHA 2020: 5). The massive displacement of the population as a result of the Anglophone Crisis is not without severe repercussions for IDPs. Christelle Cazabat has detailed the ripple effect and multidimensional impacts of internal displacement, emphasising the imperative to differentiate the impact of the conflict and violence across different groups within the population (Cazabat 2018). While everyone experience suffering during conflict situations, studies have found that the impact on women and girls, children, the elderly and persons with disabilities suffer the most (Mugabi 2014: 123–127; Carpenter 2005: 295–334; Balarabe 2012). Worldwide, women and girls constitute 80% of forcibly displaced populations. The disadvantage they have is heightened by the risk of falling victims to violence, rape and forced prostitution, among others. In the case of the Anglophone Crisis, more than two-thirds of the displaced population are constituted of women and children in dire need of humanitarian assistance (UNOCHA 2020; Chukwudi and Chukwuma 2020). Concerning forcibly displaced persons living with physical disabilities, the Human Rights Watch has reported numerous cases of those whose homes were burned down by security forces, leaving them without accessible home environments, shelter and assistive devices. Furthermore, since the outbreak of the armed conflict, displaced persons with diseases such as HIV/AIDS, high blood pressure, diabetes and people placed under coordinated therapies are unable to receive their regular medication. According to a female medical staff who has been assisting IDPs with HIV/

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AIDs, the health conditions of many patients living in the bush have degenerated, owing to irregular taking or complete lack of drugs, resulting in many deaths (Interview with Solange, aged 36  years, Buea, Southwest Region, 29 June 2019). Humanitarian organisations willing to provide critical assistance to suffering populations face numerous obstacles to accessing affected populations due to insecurity, poor road network and to the lack of cooperation by the government and armed groups in the provision of humanitarian assistance. This has left around 65% of both the regions out of bounds to aid workers, who are facing increasing attacks and risk of being taken hostage (UN News, 5 November 2019). While there have been efforts by the humanitarian community to step up assistance to IDPs who are living in relatively stable towns and villages within the Anglophone regions and in urban centres in the Francophone regions, those living in faraway bushes and forests beyond the reach of humanitarian actors have lagged behind. They live in total deprivation which makes them feel abandoned by humanitarian actors. Such IDPs face additional adverse conditions which put them at an elevated risk level. Besides inadequate access to food, medication and shelter and appalling sanitary conditions, IDPs living in the bushes and forests also face harsh environmental conditions. It should be noted that the Anglophone region falls within the malaria endemic zone in central Africa. Many parts of the region, particularly those in the coastal proximity, receive high annual rainfall amounts averaging 2500  mm which comes in within 8  months of the wet season. Generally, during the rainy session, access to goods and services becomes even more difficult for IDPs, especially for those hiding in the bushes and forest (UNOCHA Report no. 5, 15 April 2019). These conditions can best be captured in the words of IDPs themselves. After spending 2 months living in the forest in Munyenge in the South West Region, a female IDP explained that:

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84 When I was still in the bush, we were eating just anything we could find edible. We stayed in the bush for days without a bath for fear of being killed by stray bullets in the course of going far away in search of water. Many people, especially children, were looking sick, and some men and women with a bit of knowledge on traditional medication were preparing traditional concoctions for those who were sick. While this helped a lot, I still watched people dying like flies and being buried in the forest. This was scary to me, and I had to look for every possible means to get to a safe place. Worse still, we used leaves of trees as sanitary pads during menstruation. The conditions were simply despicable. (Interview with Stella, aged 33, Muyaka, Southwest Region, 9 August 2019)

Describing her ordeal living in the forest, another IDP, from Manyu Division of the South West Region, stated that: We ran to this forest when we heard heavy artillery activities advancing towards our village. Since then, we have been living here for the past two to three months. We constructed makeshift houses even though the rains are getting heavier and sometimes pass through the thatched roofs. … We have been trying to feel comfortable in the present condition while praying and hoping God will make this war to end for us to live normal lives again. However, our major problem here is that there are lots of mosquito bites causing malaria, and we do not have access to modern medication. (Interview with Ashu, aged 52, Buea, Southwest Region, 29 July 2019)

The continuing confrontations between government forces and armed separatists and frequent burning and destruction of homes and villages mostly by government forces will continue to pose significant risks to displaced persons wanting to return. Addressing the UN Security Council in May 2019, the UnderSecretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Mark Lowcock, noted that the fear of further attacks was preventing people from being able to return home and from accessing their previous livelihoods, mainly farming and thereby making them increasingly reliant on humanitarian assistance. As the prevailing atmosphere on the ground does not guarantee a return to normalcy any time soon, it is anticipated that the numbers of forcibly displaced people will likely continue to increase.

7.1

 he (In)Effectiveness of State T Response

Similar to its political response to the Anglophone Crisis, the approach of the government of Cameroon in protecting and assisting IDPs has largely depended on the use of force. Hence since the start of the crisis, it has deployed thousands of troops in the Anglophone Northwest and Southwest regions where several new bases and camps have been established. However, these deployments, which the government says are to protect the population and their property, have triggered new and secondary displacements, due to public distrust of the security forces and for fear of being caught in the crossfire (VOA news, 27 May 2020). Moreover, Cameroon security forces are generally perceived as aggressors by the local population (Willis et  al. 2020: 5). As a result, the deployment of additional security forces in Anglophone regions has become a controversial issue. For instance, to de-escalate the tension and show its willingness to make peace, many stakeholders, including Cameroon Opposition leaders and civil society organisations, have suggested that the government should instead withdraw or reduce its military’s presence in the Northwest and Southwest regions (VOA news, 7 December 2018). Meanwhile, as part of its humanitarian response, the government, on 20 June 2018, launched a $23 million (12.7  billion FCFA) Emergency Humanitarian Assistance Plan for the Northwest and Southwest Regions to ensure multifaceted protection of and assistance to displaced persons as a matter of priority and the provision of healthcare to people affected by the crisis (Government of Cameroon 2018a, b; IPSS 2020). In this regard, by January 2019, the government claimed it was providing aid assistance to more than 60,000 IDPs in the Englishspeaking Northwest and Southwest regions (Kindzeka 2019a, b). Representing a small fraction of the more than 430,000 people that had been displaced by conflict at the time, this aid distribution was mostly limited to governmentcontrolled areas.

8  Straddled Between Government Forces and Armed Separatists: The Plight of Internally Displaced…

Another challenge faced by the government’s humanitarian response plan was that it failed to gain international backing. This was partly because the government was demanding aid organisations wishing to undertake operations in the Northwest and Southwest regions to openly declare their support to the government and its humanitarian and security objectives (Refugees International 2019: 11, 15), which would be a violation of the humanitarian principle of neutrality. In addition, while calling on national and international stakeholders to support its humanitarian response plan for the Northwest and Southwest, the government of Cameroon was actively discouraging the humanitarian community’s engagement in the two regions (Refugees International 2019). In a further attempt to assist IDPs from the English-speaking regions, the government of Cameroon prioritised the question of IDPs and refugees during the national dialogue it organised in Yaoundé from 30 September to 4 October 2019. One of the key outcomes of the national dialogue was a recommendation for the strengthening of humanitarian assistance to displaced persons (Major National Dialogue Report, 4 October 2019). To this end, national dialogue participants requested the government to set up communication channels for better deployment of the army and freer movement of people, as well as take measures towards the construction of decent homes for displaced persons; take measures geared towards granting general amnesty to foster the return of refugees and IDPs; conduct a physical headcount of all displaced persons and come up with an estimate of their socio-economic needs such as schools, health facilities and accommodation; and provide resettlement and reintegration kits to refugees and IDPs. Following the conclusion of the national dialogue, the government established a plan for the reconstruction and development of the Anglophone regions that would focus on the rehabilitation of basic infrastructure and promotion of social cohesion. About the right to education of IDP, the government of Cameroon has been encouraging public schools’ authorities in Francophone regions to accept into their schools

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IDP children from the Anglophone regions. This has enabled thousands of IDP children to continue their education. Furthermore, on 30 November 2018, it established the National Disarmament, Demobilization and Reintegration Committee with regional centres in Bamenda, Buea and Mora responsible for organising, supervising and managing the disarmament, demobilisation and reintegration of ex-fighters of Anglophone armed separatist groups and Boko Haram (Cameroon Government 2018a, b). This notwithstanding, the government’s efforts at fulfilling its responsibility to protect and provide assistance to the populations, particularly internally displaced communities, have been inadequate and ineffective. It can be attributed to two main reasons. Firstly, despite the continued deterioration of the security and humanitarian situation on the ground, the government kept projecting a false narrative of an improving situation in a bid to shape national and international perceptions. According to the Global Centre for the Responsibility to Protect, by continuously denying the severity of the crisis and failing to address the root causes of the Anglophone conflict, the government has failed to uphold its responsibility to protect (Global Centre for the Responsibility to Protect 2020). Secondly, the government’s inadequate response to protect and assist IDPs could also be part of an effort to prevent the Anglophone Crisis from gaining the international spotlight. This may explain why since the start of the Anglophone Crisis, the overall strategy of the government has been to project the conflict simply as internal strife that falls within its domestic jurisdiction. During the first 2 years of the conflict, several administrative orders were issued by government authorities imposing a travel ban and dawn to dusk curfews in the conflict-ridden Southwest and Northwest regions. For example, on 1 March 2016, Southwest Governor Bernard Okalia Bilai, a Francophone civil administrator, prohibited the movement of commercial vehicles and private cars from 7:00 p.m. to 6:00 a.m. in five administrative divisions of the region. Such measures made it difficult for the population to escape the violence to safer locations in the country or out-

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side the country. Similarly, in late August 2019, when there was a mass exodus of people from the Northwest and Southwest regions amid calls by separatist groups for a lockdown, the Southwest Governor downplayed the situation by claiming that: ‘The people leaving are holidaymakers who are returning to their regions of origin. It is a normal activity during this time of the year when schools are about to start’ (Xinhua, 29 August 2019). Similarly, Northwest Governor Adolph Lele Lafrique, also a Francophone civil administrator, argued that the figures of those leaving his region were exaggerated, claiming that most of those leaving were students on holidays who were returning to start a new academic year in September, adding that ‘Nobody is running away from the region because of the so-called lockdown’ (Xinhua, 29 August 2019). It is clear with these examples that in their handling of the crisis, the Southwest and Northwest governors, none of whom is from the English regions, showed lack of understanding of the problem and its context. Furthermore, the frequent appointment and deployment of governors and other senior administrators to the Anglophone regions is a further indication of the government’s insensitivity to the plight of English-speaking Cameroonians. The government of Cameroon has also suppressed press freedom as a means to undermine the seriousness of Anglophone Crisis. To this end, many journalists have been threatened and harassed by the government, which has been ­trying to dictate how journalists report about the crisis. The government has also accused journalists of fake news and un-patriotism, alleging some are supporting Anglophone separatists (VOA news, 13 August 2019). Similarly, it has denied international journalists and reporters access to the Anglophone regions affected by the crisis (Siobhán, 2019). Human rights organisations have criticised these measures. For instance, on 29 October 2019, over 60 other human rights and civil society organisations, including the Committee to Protect Journalists, Human Rights Watch and Amnesty International issued a joint letter to the African Commission on Human and Peoples’ Rights (the Commission) calling for the

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Commission to address what they describe as serious and systematic human rights violations in Cameroon, including the jailing of journalists. On June 2020, the government of Cameroon announced the death of Anglophone journalist Samuel Wazizi, almost a year after he was arrested in Buea, the capital of the Southwest region and transferred to Yaoundé (New Africa Daily, 16 June 2020). The Cameroon military claimed he died from severe sepsis, but many Cameroonians believed it was from torture and physical abuse in the hands of the military (New Africa Daily 16 June 2020; Durosomo, 2020). Deeply concerned about the situation, the Director-General of UNESCO Audrey Azoulay, called on the Cameroonian authorities to shed light on the circumstances surrounding the journalist’s death and ensure that any contravention to his rights as a journalist and as a detainee were brought to justice (UNESCO, 2020). On their part, national and international media lobby groups such the Committee to Protect Journalists and Reporters without Borders questioned Wazizi’s detention, the cause of his death and why it took long for his death to be made public and called for an independent investigation into the death (Human Rights Watch 2020). The government of Cameroon has also been denying the existence of a humanitarian crisis in Cameroon and has repeatedly accused some local and international organisations of using the conflict to ‘make financial gains’ to the detriment of the suffering population (Xinhua 2019a, b). Besides, the government, through its Minister for Territorial Administration Paul Atanga Nji, has rejected statistics from humanitarian organisations, including specialised UN agencies such as UNOCHA, on the deteriorating humanitarian crisis in the English-speaking regions. On 29 December 2019, for example, Minister Paul Atanga Nji claimed that after visiting the two regions, he found no evidence of humanitarian crisis and accused aid organisations of trying to feed off the conflict by giving false reports to suggest the humanitarian crisis in the English-­ speaking regions was getting worse (The Post Newspaper, 2 September 2019). Paradoxically, he was making this claim in Yaoundé while

8  Straddled Between Government Forces and Armed Separatists: The Plight of Internally Displaced…

announcing that President Paul Biya was sending a special humanitarian convoy of 100 trucks of food and other items for the IDPs from these areas. Even more concerning, Minister Atanga Nji has accused some aid organisations of engaging in trafficking and supporting armed separatist groups without providence any evidence. These claims and accusations prompted a social media response by the United Nations Cameroon Office, which reiterated that ‘Statistics on the humanitarian situation in Cameroon are not fake news. Humanitarian aid is based on needs; it is neutral, impartial and independent. Aid workers are not a target. They work to alleviate suffering. They should be supported not targeted’ (United Nations Cameroon, Facebook post, 30 December 2019; Journal du Cameroun, 30 December 2019; Newsday Cameroon, 30 December 2019). To conduct a needs assessment, the humanitarian personnel should have unhindered access to the suffering communities. Nevertheless, this remains a considerable challenge in Cameroon. In May 2019, Refugees International reported that the Cameroonian authorities have not only denied the severity of the displacement and humanitarian need but have also restricted freedom of movement, preventing local populations from accessing their land and basic services and have taken steps to limit the access of humanitarian workers to populations affected by the conflict (Refugee International 2019: 4). It also noted that humanitarian workers had reported ­numerous cases in which the government forces requested that they provide their list of beneficiaries in order to be given access to certain areas. Worse still, Government forces, like many of the armed groups operating in the Northwest and Southwest regions, have established checkpoints on roads where they often threaten, forcibly detain and extort civilians including aid and health workers, forcing some to surrender their equipment (Refugee International 2019: 4). Despite this prevailing situation, aid organisations are afraid of openly criticising the government or complaining about their poor treatment by security forces. According to a Refugee International field report:

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Given that the government has downplayed the crisis and been unwilling to guarantee safe passage for humanitarian actors, many organisations fear speaking out against the government or publicly reporting the extent to which it has interfered with aid delivery. Aid groups withhold their criticism in the hope of preserving the already-limited humanitarian space. Many groups fear that the government will retaliate by blocking their access not only in the NWSW, but also in the Extreme North Region of Cameroon, where humanitarian organisations are providing for those displaced by Boko Haram's ongoing violence. (Refugee International, May 2019)

However, some foreign governments have openly called out the government of Cameroon for restricting humanitarian access. In a letter dated 3 December 2019, to the US Representative to the United Nations, Ambassador Kelly Craft, the Chairman of the Foreign Affairs Committee of US House of Representatives, Eliot L. Engel, noted that ‘humanitarian organisations are experiencing difficulties in accessing conflict-affected populations and the Government of Cameroon refuses to provide access to international human rights organisations seeking to identify the perpetrators of atrocity crimes’ (US House Letter to US Representative to the United Nations, 3 December 2019). Since the escalation of the Anglophone Crisis, the government of Cameroon has also been trying to prevent the situation from being discussed by the AU Peace and Security Council and the UN Security Council. This strategy seems to be working because neither the UN Security Council nor the AU Peace and Security Council have put the Anglophone Crisis on its official agenda for consideration since the crisis began in late 2016. These bodies may have placed the Anglophone Crisis under Cameroon’s national jurisdiction, with the expectation that the government would handle it without any recourse to regional or international intervention (IPSS 2020: 12). However, the UN Security Council held an informal meeting to discuss the worsening humanitarian crisis in the country. At the meeting, the UN Under-Secretary-General for Humanitarian Affairs, Mark Lowcock, reported that civilians had been subjected to violent attacks by armed actors, noting that the level of the

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humanitarian crisis was alarming (Statement to the UNSC, 13 May 2019). During the meeting, the UK Deputy Permanent Representative to the UN Jonathan Allen expressed concern that the dire humanitarian situation in Cameroon was not being taken seriously and requested the Council to send a clear message to the government of Cameroon on the importance of ensuring access for both humanitarian and human rights workers (Statement at the UNSC, 13 May 2019). Defending his government, Cameroon’s Ambassador to the UN, Michel Tommo Monthé, argued that the humanitarian situation in Cameroon did not constitute a threat to international peace and security, claiming the meeting was convened to tarnish Cameroon as a ‘hellish country of unspeakable ills’ (Statement at the UNSC, 13 May 2019; Besheer 2019). Generally, the government of Cameroon has been adept at using the argument of protecting national sovereignty to push back on statements issued by Western powers that seem to be critical of its handling of the crisis. However, sovereignty should not be seen only as a protection against foreign interference but also a responsibility whereby the State is accountable to both domestic and external constituencies. According to Deng et al., governments cannot legitimately complain against the interference of international humanitarian intervention if they cannot discharge their responsibility of sovereignty (Deng et al. 2010: xvi). Concerning the Anglophone Crisis, the government of Cameroon has shown unwillingness or lack of political will to resolve the crisis. It has also refused to recognise the seriousness of the humanitarian crisis and has placed numerous barriers on humanitarian action, including restriction of humanitarian access, hindering the media and human rights reporting on the evolving situation. Due to these factors, the Anglophone Crisis has been under-reported and consequently has received comparatively very little international attention (Refugees International 2019). This has had negative implications for the well-being of people and contributed to the failure of the international community to provide an effective humanitarian response to the situation.

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Based on the above, it can be argued that in its handling of the Anglophone Crisis and the humanitarian situation it caused, the government of Cameron has failed to uphold applicable international law and humanitarian principles. According to the Global Centre for the Responsibility to Protect, the government has not only failed in protecting populations from violations and abuses of human rights but also in adequately holding security forces accountable for human rights violations and extrajudicial killings (GCR2P 2020). Unsurprisingly, the UN High Commissioner for Human Rights, Michelle Bachelet, has repeatedly called on the government to hold members of the security forces accountable who commit serious human rights abuses (OHCHR 2019, 2020). This failure on the part of Cameroon to uphold international law is not limited only to its treatment of IDPs but extends to refugees and asylum seekers living in Cameroon. With the Anglophone Crisis coupled with Boko Haram threat, Cameroon authorities have shown increasing hostilities towards refugees, mostly Nigerian nationals. Often equating Nigerian refugees and asylum seekers with extremism and claiming that they constitute a security and economic threat to the country, Cameroon authorities have, since 2016, forcibly returned thousands of Nigerian refugees to Nigeria, including to the same volatile areas from where they fled (Mbiyozo 2017). In July 2019, for example, six Nigerian asylum-­ seekers, including three children who had been forced to return to Nigeria, were killed as the Cameroonian army truck transporting them was hit by an improvised explosive device in Homaka, in the Far North region (Abaji 2019). According to a Nigerian independent journalist and human rights campaigner, Philip Abaji, ‘Cameroon forces have mistreated, tortured and abused many of these refugees and asylum-seekers in the course of their forced journey back home’ (Abaji 2019). These actions contravene applicable international and regional law on the protection of displaced people, including the OAU 1969 Refugee Convention and the Kampala Convention. They have also severely dented

8  Straddled Between Government Forces and Armed Separatists: The Plight of Internally Displaced…

Cameroon’s decades-long good record as a hospitable country for refugees and asylum seekers.

8

Way Forward

A prolonged and unresolved violent conflict perpetuates displacement. Hence, as long as the violence in Cameroon’s English-speaking regions persists, there is going to be a continuation of displacement, human rights violations and the humanitarian situation will worsen, further exposing displaced communities to even more risks. This will further weaken national cohesion, undermine the economy and continue robbing people of their dignity. For a government keen to defend its sovereign right over its territory, safeguarding national sovereignty requires applying a sound conflict resolution mechanism that provides a durable remedy to the Anglophone Crisis and adequate protection and assistance to those affected by the conflict, including the forcibly displaced populations. Moreover, putting an end to the violence will provide a conducive operational environment for government, humanitarian actors and especially civil society organisations, including community and faith-based organisations to effectively assist IDPs. While the military has been able to inflict casualties on separatists, armed militias are currently in positions of strength in rural areas where they enjoy community support (Crisis Group Report No. 272, 2019). The government of Cameroon should therefore recognise that its approach of using the military to resolve the crisis has failed. To end the violence, national and international actors should mount more pressure on the government to engage directly with all the relevant Anglophone stakeholders including the armed separatist groups, political actors and civil society leaders, with a willingness to make concessions. However, given the mistrust between the two sides, such a dialogue, if accepted by the government of Cameroon, should be facilitated by a neutral international third-party mediator. In this regard, many Western governments, notably the UK and Switzerland, have offered to help

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Cameroon resolve the crisis, should they be invited to do so by the government of Cameroon (House of Common Briefing Paper Number 8331, 17 April 2019). In their Congressional Letter of 12 December 2019 to President Paul Biya, a group of nine members of the US Congress called on the government of Cameroon to demonstrate political will by engaging in the Swiss-led facilitation process towards an inclusive negotiation that would lead to institutional reforms and greater power-sharing and decision-­ making processes in Cameroon (Congressional Letter to President Paul Biya, 12 December 2019). In the meantime, it is also imperative for the government of Cameroon to undertake proactive measures to hold both its forces and armed separatist groups accountable for human rights violations and abuses. It can be achieved by conducting investigations of all credible allegations and ensuring transparent prosecution of perpetrators. This will serve as a warning to both parties in the conflict and send a positive signal to the public, thereby improving the government’s credibility. Furthermore, there is a need for adequate humanitarian assistance to the population, particularly the IDPs living in the forest and bushes. To this end, both the government forces and separatist fighters must ensure that the IDPs in particular and population in general are protected against further violations of their rights. Notwithstanding, there would be no dramatic change in the humanitarian landscape without a cease-fire between the government of Cameroon and armed separatist leaders as a first step towards a political solution.

9

Conclusion

By opting for a military solution and resorting to a full-blown operation to counter the emergence of armed separatists groups in its English-­speaking regions, the government of Cameroon created the conditions for the transformation of the Anglophone Crisis from civil unrest to an armed conflict with devastating repercussions for the country. Due to armed violence resulting from

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deadly clashes between the government forces and the Anglophone separatist fighters, there was the outbreak of a humanitarian crisis, with hundreds of thousands fleeing their homes to become IDPs or refugees. Similar to its political response to the crisis, the government’s response to the humanitarian situation has been insufficient. As a result, Cameroon has found itself wanting in the provision of protection and assistance to its displaced communities and refugees within its borders, thereby undermining its decades-long reputation as an exemplary refugee-­hosting country in Africa. With no peace in sight to the Anglophone Crisis, the plight of the conflict-­induced displaced persons will likely be protracted. In the meantime, while the humanitarian community is working to improve the humanitarian conditions of the IDPs, pressure must be put on both the government of Cameroon and the non-state armed actors to bring an end to the conflict.

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8  Straddled Between Government Forces and Armed Separatists: The Plight of Internally Displaced… news/2020/02/06/Cameroon-­elections-­anglophone-­ separatist-­insurgency-­Ambazonia. Accessed 02.06.2020. Craig, J., (2020b), “How an ‘execution-style’ massacre unfolded in Cameroon”, The New Humanitarian. https://www.thenewhumanitarian.org/analysis/2020/03/03/Cameroon-­A mbazonia-­N garbuh-­ massacre. Accessed 15.05.2020. Deng, F.M et  al. (2010), Sovereignty as Responsibility: Conflict Management in Africa, Brookings Institution Press. Fombad, C.M. (2017), “Developments in Cameroonian Constitutional Law: The Year 2016  in Review”, Global Review of Constitutional Law, I·CONnect, http://www.iconnectblog.com/2017/11/developments-­ in-­cameroonian-­constitutional-­law-­the-­year-­2016-­in-­ review/. Accessed 20.12.2019. Freudenthal, E., (2018a), “Cameroon’s Anglophone War, part 1: A rifle as the only way out” The New Humanitarian, Special Report, https://www.thenewhumanitarian.org/special-­r eport/2018/06/12/ cameroon-­s-­anglophone-­war-­part-­1-­rifle-­only-­way-­ out. Accessed 20.11. 2019. Freudenthal, E. (2018b), “Cameroon’s Anglophone war, part 2: Inside the separatist conflict” The New Humanitarian, Special Report, https://www.thenewhumanitarian.org/special-­r eport/2018/08/02/ cameroon-­s-­anglophone-­war-­part-­2-­inside-­separatist-­ conflict. Accessed 20.11.2019. Freudenthal E., & Van Der Weide, Y. (2020), “Making a killing: Israeli mercenaries in Cameroon” African Argument. https://africanarguments.org/2020/06/23/ making-­a-­killing-­israeli-­mercenaries-­in-­cameroon/. Accessed 24.06.2020. Fröhlich, S. & Köpp, D. (2019), “Who are Cameroon’s self-named Ambazonia secessionists?” https:// www.dw.com/en/who-­a re-­c ameroons-­s elf-­n amed-­ ambazonia-­secessionists/a-­50639426. Accessed 19.10.2019. Global Centre for the Responsibility to Protect (2020), “700,000+ people have been internally displaced in the north-west and south-west regions” https:// www.globalr2p.org/countries/cameroon/. Accessed 01.06.2020 Global Report on Internal Displacement (2019), Cameroon: A deepening but neglected crisis: Excerpt from Internal Displacement Monitoring Centre’s (IDMC), www.internal-­displacement.org/sites/ default/files/publications/documents/2019-­I DMC-­ GRID-­spotlight-­cameroon.pdf. Accessed 20.08.2019. House of Commons Library (2019), The Anglophone Cameroon Crisis: April 2019 update. Briefing Paper N° 8331, https://researchbriefings.parliament.uk/ ResearchBriefing/Summary/CBP-­8331. Accessed 12.08.2019. Human Rights Watch (2018), “These killings can be stopped: abuses by government and separatist groups in Cameroon’s Anglophone Regions”. https://www. hrw.org/report/2018/07/20/these-­k illings-­c an-­b e-­ stopped/abuses-­government-­and-­separatist-­groups-­ cameroons. Accessed 08.07.2019.

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Human Rights Watch (2020), “Cameroon: Ensure Independent Probe of Reporter’s Death”. https:// www.hrw.org/news/2020/06/09/cameroon-­e nsure-­ independent-­probe-­reporters-­death. Accessed 10.06.2020. Institute for Economics and Peace, Global Peace Index 2019: Measuring Peace in a Complex World, June 2019. Institute for Peace and Security Studies (2020), “Cameroon Conflict Insights”, Peace & Security Report, Vol-1. International Crisis Group (2017), Cameroon: A Worsening Anglophone Crisis Calls for Strong Measures, Crisis Group Africa Briefing N°130. International Crisis Group (2016), Cameroon: Confronting Boko Haram, Africa Report N°241 James-Deramo, M. (2009), “Theorising the Social and Political Intersectionalities of Identityfor Refugee Women”, Feminist Theory, 1–28. Kindzeka, M.E. (2019a), “Cameroon Journalists Threatened by Government”, https://www.voanews. com/africa/cameroon-­j ournalists-­t hreatened-­ government. Accessed 22.10.2019. Kindzeka, M.  E. (2019b), “Cameroon Struggles to Aid IDPs in Anglophone Separatist Areas” https://www. voanews.com/africa/cameroon-­s truggles-­a id-­i dps-­ anglophone-­separatist-­areas. Accessed 20.01.2020. Kofele-Kale N “Ethnicity, Regionalism, and Political Power: A Post-Mortem of Ahidjo’s Cameroon”, in (eds) M G Schatzberg & I W Zartman, The Political Economy of Cameroon, New York, Praeger Publishers: 53–82. Konings P. & Nyamnjoh F.B. (1997), “The Anglophone Problem in Cameroon” The Journal of Modern African Studies 35, 2: 207-229. Konings P. and Nyamnjoh, F.B. (2003), Negotiating an Anglophone Identity: A Study of the Politics of Recognition and Representation in Cameroon, Vol 1, Brill, Leiden, Boston, Afrika-Studiecentrum Series. Kouagheu, J. (2019), “Cameroon peace talks falter as separatists, politicians boycott”, Reuters News, https:// ca.reuters.com/article/idUSKBN1WF1NZ. Accessed 20.01. 2020. Lunn, J. & Brooke-Holland, L., (2019), The Anglophone Cameroon Crisis: April 2019 Update, House of Commons Briefing Paper N° 8331. Mbiyozo, A-N. (2017), “Cameroon’s Forceful Repatriation of Nigerian Refugees”, ISIS Policy Brief No. 110. Mugabi, I. (2014), “Protection of Vulnerable Groups during Armed Conflicts,” China-US Law Review 11, 10: 1273-127. Munzu, S. (2019), "The Crisis in the Southwest and Northwest Regions of Cameroon  – Lessons from our Past and Vision for our Future" Keynote Address at the National Dialogue on the situation in the Northwest and Southwest regions of Cameroon, Yaoundé. Mwakideu, C. (2017), “Will ‘Ambazonia’ become Africa’s newest country?” Deutsche Welle (Dw), 02.10.2017. Accessed 18.12.2019.

92 OHCHR, “Cameroon killings: Bachelet urges full accountability”. https://www.ohchr. org/EN/NewsEvents/Pages/DisplayNews. aspx?NewsID=25817&LangID=E. Accessed 31.04.2020. OHCHR, “Bachelet welcomes Cameroon’s willingness to cooperate to tackle human rights crises”. https:// www.ohchr.org/EN/NewsEvents/Pages/DisplayNews. aspx?NewsID=24565&LangID=E. Accessed 12.11.2019. Refugees International (2019), “Crisis Denied in Cameroon: Government Refuses to Recognise Suffering in the NWSW Deters Donors”. https:// www.refugeesinternational.org/reports/2019/5/28/ crisis-­d enied-­i n-­c ameroon-­g overnment-­r efusal-­t o-­ recognize-­suffering-­in-­nwsw-­deters-­donors. Accessed 07.09.2019. Samah, W. (2010), “Anglophone Minority & the State in Cameroon: Historical and Contemporary Perspectives” In Mbanaso M. U. and Korieh C J. (ed.) Minority & the State in Africa, New  York, Cambria Press, pp. 243–265. Siobhán, O’Grady, “Divided by Language: Cameroon’s crackdown on its English-speakingminority is fueling support for a secessionist movement” Washington Post, 5 February 2019, https://www.washingtonpost. com/graphics/2019/world/cameroon-­a nglophone-­ crisis/. Accessed 29 November 2019. Susungi N.N. (1991), The Crisis of Unity and Democracy in Cameroon: Can a Country which has pronounced itself Dead be saved by democracy? London, n.p. Tah, P. (2018), “Cameroon conflict: We live in fear in Bamenda” https://www.bbc.com/news/world-­ africa-­46178620. Accessed 20.08.2019. The Conversation (2019), “Why Cameroon must move beyond dialogue to solve its Anglophone crisis” https://theconversation.com/why-­c ameroon-­m ust-­ move-­b eyond-­d ialogue-­t o-­s olve-­i ts-­a nglophone-­ crisis-­125241. Accessed 28.10.2019. Unah, L. (2018), “Why are young Anglophone men taking up arms to fight Cameroon’s military?” https:// www.trtworld.com/magazine/why-­a re-­y oung-­ anglophone-­men-­taking-­up-­arms-­to-­fight-­cameroon-­ s-­military-­20275. Accessed 10.09.2019.

W. Samah and E. S. Tata UNESCO (2019), “Refugees, Returnees and Displaced Persons: Towards Durable Solutions” http://www. unesco.org/archives/multimedia/document-­4 873. Accessed 16.11.2019. UNFPA, (2019), Humanitarian Action 2019 Overview, New York: UNFPA. UNHCR, (2019b), Cameroon Situations, Responding to the Needs of IDPs and Cameroonian Refugees in Nigeria, Supplementary Appeal January  - December 2019. UNICEF (2019), Press Release, https://www.unicef. org/press-­r eleases/more-­8 55000-­c hildren-­r emain-­ out-­s chool-­n orth-­w est-­a nd-­s outh-­w est-­c ameroon. Accessed 11.11.2019. United Nations, “Nearly two million Cameroonians face humanitarian emergency: UNICEF"UN News, 5 November 2019, https://news.un.org/en/ story/2019/11/1050611. Accessed 21.05.2020. UN OCHA (2018), Emergency Response Plan: Cameroon Northwest and Southwest. UN OCHA (2019), Cameroon: North-West and South-­ West Crisis Situation Report N° 8. UN OCHA (2020), Humanitarian Response Plan Cameroon, Humanitarian Programme Cycle. US Government (2019), Press Release, President Trump Terminates Trade Preference Program Eligibility for Cameroon, https://ustr.gov/about-­us/policy-­offices/ press-­office/press-­releases/2019/october/president-­ trump-­terminates-­trade. Accessed 20.11.2019. Willis, R. et al. (2020), ‘We Remain Their Slaves’ Voices from the Cameroon Conflict. A Working Paper submitted to the UK Parliament for response, University of Oxford. Xinhua (2019a), “Cameroon officials deny reports of mass exodus in Anglophone regions” http://www.xinhuanet.com/english/africa/2019-­08/29/c_138348559. htm. Accessed 22.10.2019. Xinhua (2019b), “Cameroon lays guidelines for humanitarian support to IDPs in troubled Anglophone regions”. http://www.xinhuanet.com/english/2019-­06/12/c_138134899.htm. Accessed 10.10.20. UNHCR, Global Trends Forced Displacement in 2018, June 2019, https://www.unhcr.org/figures-at-a-glance.html

9

National Protection of Internally Displaced Persons in Africa: Law and Policy Beyond the Rhetoric Romola Adeola

Abstract

As the test of international legal frameworks is the extent to which they find expression within the national context, it is relevant to reflect on the law and policy terrain at the domestic level to understand whether such frameworks are occasioning a paradigm shift on the subject matter of focus. It is against this backdrop that this chapter examines the protection of IDPs across law and policies in Africa. This chapter reflects on the law and policy terrain on internal displacement in Africa and how this terrain may be enhanced through a consideration of triggers that occasion action. Keywords

Internally displaced persons · Internal displacement · Protection · Law and policy · Africa

1

Introduction

The issue of internal displacement has emerged as an important issue requiring sustainable solutions in Africa. With millions internally displaced

R. Adeola (*) Centre for Human Rights, Faculty of Law, University of Pretoria, Pretoria, South Africa

in Africa, the pertinence of giving attention to this issue has emerged. Following the Second World War, significant attention was on the refugee situation, and it is around this issue that much of the protection for displaced populations have congregated, including at the regional level with the adoption of the OAU 1969 Refugee Convention. However, the issue of internal displacement had mostly been a concern within states, and as such, there was no arrangement for the protection of these persons, due to the nature of protection which was primarily at the national level, within the state of displacement. In the early 1990s, scholars such as Deng began to emphasise the importance of conceptualising sovereignty as responsibility (Deng et al. 1996). Evidently, the situation in countries such as the Sudan (Ruiz 1998: 139, 155–156), with the conflict between the northern and southern regions gave an impetus to this argument. However, the pertinent question was how such protection should be codified at the global level. Several proposals were echoed in the early 1990s, not least, the need to develop a globally binding instrument. However, this was not considered a viable option as conditions were not conducive for the development of such framework. The doctrine of sovereignty was firmly entrenched in the UN Charter (1945). Only on the condition of breach of international peace and security, approved by the UN Security Council, could interference be legal. But there was certainly an emerging consensus

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. Adeola (ed.), National Protection of Internally Displaced Persons in Africa, Sustainable Development Goals Series, https://doi.org/10.1007/978-3-030-66884-6_9

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R. Adeola

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post-Cold War that the issue of internal displacement was an issue that had to be addressed. Following a Deng-led process, the UN Guiding Principles on Internal Displacement 1998 (Guiding Principles) was developed as a response. Although soft law, the Guiding Principles have become a significant global statement of protection and assistance to IDPs. Across Africa, it has also influenced the development of the national laws and policies on internal displacement. Notably, the Guiding Principles have also influenced the formation of the regional law on internal displacement— the AU Convention for the Protection and Assistance of Internally Displaced Persons in Africa which was adopted in  2009 (Kampala Convention). However, the extent to which these frameworks resonate in national regimes is a question that is yet to be significantly explored. Against this background, this chapter examines the extent to which global and regional frameworks have found expression within national contexts. This chapter provides a reflection across the countries on the continent on the issue of internal displacement and how law and policy formations may be enhanced. In advancing the discussion, this chapter is divided into two parts. The first part examines the law and policy terrain on internal displacement. The essence of this discussion is to examine what exists in law and policy and how norms may be developed. The second part of this chapter considers how law and policies may be triggered, leveraging on existing practices in countries with normative responses across the continent.

2

The Law and Policy Terrain

Africa is the region where many of the law and policy on internal displacement exists, significantly with the emergence of a Protocol on the Protection and Assistance to Internally Displaced Persons, adopted by the International Conference on the Great Lakes (2006) (Great Lakes Region) and the Kampala Convention covering the entire continent (Adeola 2020). At national level, there has also been strides in the furtherance of protection and assistance to IDPs, but this is mostly reflected in policies. In fact, since the adoption of the Kampala

Convention in 2009, Niger was the first country to develop a binding legal framework in December 2018 (Niger Law No 2018–78, 2018). While ratification of the instrument was fast-­ paced between 2009 and 2012 with 15 ratifications in this period, the curve seemed to have dropped in the periods between 2013 and 2016 with only eight ratifications in this period, and only two in 2017 and none in 2018. However, the momentum driven by the AU Theme of Year 2019 on forced migration (African Union 2018) drove a renewed commitment on IDP issues and led to the ratification of the instrument by four more countries (Equatorial Guinea, Ethiopia, Somalia and South Sudan). However, in the periods between 2009 and 2019, only one country (Niger) had actually adopted a law. Although there are several draft instruments that have been developed over this period which are yet to be adopted by parliaments. However, before the emergence of the Kampala Convention, at least six countries developed some form of law and policy document on internal displacement, mostly out of a conflict context. These countries are Angola (2001, 2002), Sierra Leone (2001), Burundi (2001), Liberia (2002, 2004), Sudan (2009) and Uganda (2004). Angola’s framework emerged in the wake of the decades-long war between the National Union for the Total Independence of Angola (UNITA) and the People’s Movement for the Liberation of Angola (MPLA). While acknowledging the Guiding Principles (Angola 2001) and utilising its description of an IDP (Angola 2002: art 1), Angola’s framework focuses significantly on the durable solution of return. However, it notably establishes a coordination mechanism (Angola 2002). Sierra Leone’s framework also focuses on the facilitation of IDP returns (Sierra Leone 2001: para 1.2). Burundi’s framework focuses on creating a mechanism for consultation, which is pertinent, particularly, in the light of the importance of consultation to the development of sustainable solutions in the furtherance of IDP protection and assistance (Burundi 2001). Liberia’s frameworks present an interesting picture by taking a rights-­based lens through a rights declaration (Liberia 2002) and also through directly incorporating the Guiding Principles into

9  National Protection of Internally Displaced Persons in Africa: Law and Policy Beyond the Rhetoric

national law through an instrument of adoption (Liberia 2004). While the country is also in the process of developing a national legislation (Liberia 2018), the 2002 and 2004 frameworks provide some good practices in developing normative regimes, particularly in situations where legislations are ongoing or yet to be explored. Sudan’s policy seeks to provide a text for action on IDPs, notably incorporating nine specific reference frameworks for the operationalisation of the Policy (Sudan 2009: para 4.2). However, the first country to adopt a specific policy on the Guiding Principles is Uganda with the development of a national IDP policy (Uganda 2004). The institutional arrangement on IDP issues in Uganda reflects a good practice, particularly as it is placed at the highest level of national governance—within the Office of the Prime Minister. But there are other frameworks that have been developed since 2009, significantly reflecting the Guiding Principles and the Kampala Convention. For instance, policies in Zambia (2013), Malawi (2015), Ethiopia (2017), and Somalia (2014, 2019a, b). While not having ratified the Kampala Convention, Kenya developed a law (Kenya 2012) and draft policy (Kenya 2011) on internal displacement with specific reference to the Guiding Principles. Sudan’s IDP policy (2009) also reflects aspects of the Guiding Principles. At least five countries are also in the processes of developing draft frameworks on internal displacement, including Nigeria (2012, 2016), Democratic Republic of Congo (2014, 2016), Central African Republic (2015), Mali (2015) and South Sudan (2019). Overall, at least 17 countries have developed or are developing laws and policies on internal displacement. But there are other complementary regimes for the protection of IDPs, notably in the context of disaster management, civil protection and environmental law. In some post-conflict contexts, peace agreements have emerged incorporating aspects of IDP protection, particularly in the context of durable solutions with an emphasis often placed on return. At least two countries have penal legislations that prohibit arbitrary displacement (Rwanda 2018: art 96; Chad 2017: arts 285–292), while two other countries have constitutions that prohibit displacement (Egypt 2014: art 63;

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Ethiopia 1994: art 40.5), and three other countries have child legislations that protect internally displaced children (Kenya 2001; Nigeria 2003; Liberia 2011). In many instances, the absence of specific instruments on internal displacement consequently makes protection and assistance of IDPs less certain institutionally. While the mandate over the protection of this category, in some instances, is handled by refugee agencies, in other instances, IDP protection falls within civil protection units or other governmental outfits in charge of internal affairs. However, the complexities of protection and assistance to IDPs are not always evident in the institutional mandates of these institutions. In some other instances, there is limited knowledge on addressing the complexities of protection and assistance to IDPs. There are also evident problems with coordination of protection and assistance, particularly, in situations where there are several institutions within national governments with mandates relating to issues of internal displacement. The reality that laws and policies are integral to the emergence of concrete actions, or at the very least, can trigger a more coordinated response to internal displacement, has emerged in the literature. Notably, with respect to the Kampala Convention, the importance of laws and policies has been firmly established. And in fact, the norm emerged from an intention to develop ‘a legal framework for preventing internal displacement, and protecting and assisting internally displaced persons in Africa’ (Kampala Convention 2009: art 2). However, there is a pertinent need to move beyond the rhetoric that laws and policies are important and actually ensure that these laws and policies exist. While the Guiding Principles and the Kampala Convention provide pertinent texts, translating these norms into concrete national level provisions require an understanding of action triggers. While the subsequent section examines pertinent measures that can ignite law and policy responses on the issue of internal displacement in Africa, Table 1 presented below provides a tabular representation on the law/policy and institutional landscape relevant to internal displacement in Africa.

R. Adeola

96 Table 1  Laws and policies relevant to internal displacement in Africa S/N Country 1 Algeria

IDP law/policy –

2

Angola

3

Benin

Decree Number 1/01: Norms on the Resettlement of Displaced Populations (5 January 2001) Decree No 79: Implementation of Norms on the Resettlement of Displaced Populations (2002) –

4

Botswana

–

5

Burkina Faso

–

Other relevant law/ policy Law No 04-20: Prevention of Major Risks and Disaster Management in the context of sustainable development (2004) Act 28/03: Basic Law on Civil Protection (2003). Amended: 23 May 2020

Institutional arrangement Additional (main) information Directorate of Civil Protection

Decree No 87-408 of 7 December 1987 on the National Organization for Disaster Relief (ORSEC Plan) Decree No 2012-426 of 6 November 2012 on the creation, attributions, organisations and functions of the National Agency for Civil Protection (2012) Law No 2018-18 of 6 August 2018 on climate change in the Republic of Benin (2018) National policy on Disaster Management (1996)

National Agency for Civil Protection

Law No 012-2014/ AN of 22 April 2014 Relating to the Prevention and Management of Risks, Humanitarian Crisis and Disasters (2014)

National Council for Emergency Relief and Rehabilitation

National Civil Protection Commission (CNPC) coordinated by the Ministry of Interior

National Disaster Management Office, Office of the President

Angola Lusaka protocol (15 November 1994)

High Court of Botswana decision in Sesana and others v AttorneyGeneral (2006)

(continued)

9  National Protection of Internally Displaced Persons in Africa: Law and Policy Beyond the Rhetoric

97

Table 1 (continued) S/N Country 6 Burundi

IDP law/policy Protocol for the Creation of a Permanent Framework for Consultation on the Protection of Displaced Persons (2001)

7

–

Cameroon

Other relevant law/ policy Law No 100/292 of 16 October 2007 on the Creation, Missions, Composition, Organisation and Functions of the National Platform for Disaster Risk Prevention and Management (2007) National Strategy for the Socio-­Economic Integration of Persons Affected by the Conflict (2010) National Strategy for the Reintegration of Disaster-affected Persons in Burundi (2017) Law No 100/083 of 20 July 2018 on the Organisation of the Ministry of Public Security and Disaster Management (2018) Cameroon: Decree No 96/054 of 12 March 1996 on the composition and attribution of the National Council of Civil Protection (1996) Order No 2018/127/ CAB/PM of 12 November 2018 on the Creation, Organisation and Function of the Centre for the Coordination of Emergency Humanitarian Assistance Relating to the Situation in the North West and South-West Regions (2018)

Institutional arrangement (main) Directorate of Civil Protection and Disaster Management

Additional information Arusha Peace and Reconciliation Agreement for Burundi (28 August 2000)

Directorate of civil protection/Centre for the Coordination of Emergency Humanitarian Assistance

Regional Protection Dialogue on the Lake Chad Basin: Abuja Action Statement (8 June 2016)

(continued)

R. Adeola

98 Table 1 (continued) S/N Country 8 Cape Verde

IDP law/policy –

9

Central African Republic

10

Chad

National Plan for the Protection and Assistance of Internally Displaced Persons in Central African Republic (2015) (Draft) –

11

Côte d’Ivoire

–

12

Comoros

–

13

Congo

–

Other relevant law/ policy National Strategy on Disaster Risk Reduction (2017) National Adaptation Programme of Action on Climate Change, 2008–2012 (2007)

Chad Penal Code (2017)

Action Plan for Disaster Risk Reduction (2014) Law No 003/91 of 23 April 1991 on the Protection of the Environment (1991)

Institutional arrangement Additional (main) information National Civil Protection Service

Permanent National Committee for the Coordination and Management of Protection of IDPs

Political Agreement for Peace and Reconciliation in the Central African Republic (6 February 2019)

Directorate of Civil Protection, Ministry of Interior/National Commission for the Reception and Reintegration of Refugees and Returnees (CNARR)/National Coordination of Support for Humanitarian Activities and Integrated Security Detachment (CONSAHDIS)/ National Committee for Assistance to Displaced Persons (CCNAPD) Office of Civil Protection, Ministry of the Interior Directorate General of Civil Security

Regional Protection Dialogue on the Lake Chad Basin: Abuja Action Statement (8 June 2016)

Ministry of Social Affairs, Humanitarian Action and Solidarity

Republic of Congo Agreement on ending hostilities in the Republic of Congo—Chapter II: The Monitoring Commission for the Agreements on Cease-Fire and End of Hostilities (29 December 1999)

Ouagadougou Political Agreement (4 March 2007)

(continued)

9  National Protection of Internally Displaced Persons in Africa: Law and Policy Beyond the Rhetoric

99

Table 1 (continued) S/N Country 14 Democratic Republic of Congo

15

Djibouti

IDP law/policy Bill providing protection and assistance to internally displaced persons (29 September 2014) Provincial Strategy for Durable Solution for Internally Displaced Persons in North Kivu (2016) –

16

Egypt

–

17

Equatorial Guinea

–

18

Eritrea

–

19

Eswatini

–

20

Ethiopia

Somali Region Durable Solutions Strategy: 2017–2020: The Durable Solutions Strategy of the Somali Regional Government of Ethiopia (2017)

Other relevant law/ policy General Policy of Zaire on Natural Disasters (1994) Provincial Strategy and Plan of Action for Stabilisation in North Kivu (2015)

Institutional arrangement (main) National Commission for Refugees/National Crisis Committee

Additional information Ceasefire Agreement (Lusaka Agreement) (1999)

Law No 140/ AN/06/5th L of 11 March 2006 on the National Policy for Disaster Risk Management (2006)

Directorate of Civil Protection in the Ministry of Interior and Decentralisation

Law of the Prime Minister No 1537 (2009) on Formation of a National Committee for Crises/Disasters Management (2009) National Action Plan for Adaptation to Climate Change (2013) Proclamation No. 145/2005 of 2005, Non-Governmental Organization Administration Proclamation (11 May 2005) Disaster Management Act (2006) National Policy and Strategy on Disaster Risk Management (July 2013)

National Committee for Crisis/Disaster Management and Disaster Risk Reduction

National Peace and Reconciliation Agreement (26 December 1994) Reform and Civil Concord Agreement (12 May 2001) Constitutional protection (art 63 of the Constitution of the Arab Republic of Egypt 2014)

Ministry of Fisheries and Environment

National Disaster Management Agency National Disaster Risk Management Commission

Constitutional protection (art 40(5) of the Ethiopian Constitution, 1994)

(continued)

R. Adeola

100 Table 1 (continued) S/N Country 21 Gabon

IDP law/policy –

22

Gambia

–

23

Ghana

–

24

Guinea

–

25

Guinea-­ Bissau

–

Other relevant law/ policy Law No. 02/2004 of 2 February 2005 relating to the risk exposure plan (2005) Law No 0672/PR/ MISPID of 16 May 2011 on the creation, attributions and functioning of the National Platform for the Prevention and the Reduction of the Risk Disaster (2011) National Disaster Management Act (2008) National Disaster Management Organisation Act (1996) Law L/96/009 of 22 July 1996, relating to the Management of Natural and human-made disasters in the Republic of Guinea (1996) National Strategy on Disaster Risk Reduction (2012) National Programme of Action of Adaptation to Climate Change (2006)

Institutional arrangement Additional (main) information Minister for Interior/ National Platform for Disaster Risk Reduction

National Disaster Management Agency

National Committee for Disaster Management, the Ministry of Environment

National Service of Civil Protection (SNPC)/National Commission for Refugees and Internally Displaced Persons (CNRD)

Agreement between the government of Guinea-Bissau and the self-proclaimed military junta (Abuja Peace Agreement) (November 1998) (continued)

9  National Protection of Internally Displaced Persons in Africa: Law and Policy Beyond the Rhetoric

101

Table 1 (continued) S/N Country 26 Kenya

27

Lesotho

28

Liberia

29

Libya

IDP law/policy Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act 2012 National Policy on the Prevention of Internal Displacement, Protection and Assistance to Internally Displaced Persons (IDPs) in Kenya (2011) –

Declaration of the Rights and Protection of Liberian Internally Displaced Persons (IDPs) (26 September 2002) Instrument of Adoption of Guiding Principles on Internally Displaced Persons (8 November 2004) An Act for the Implementation of the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Liberia (2018) (Draft) –

Other relevant law/ policy National Disaster Response Plan (2009) National Climate Change Response Strategy (April 2010)

Institutional arrangement (main) National Consultative Coordination Committee on IDPs

Lesotho: Disaster Management Act (1997) National Disaster Management Policy (October 2012)

Disaster Management Authority Liberia Refugee Repatriation and Resettlement Commission National Disaster Management Agency

Additional information The Children’s Act No. 8 2001

Peace Agreement between the government of Liberia, the Liberians United for Reconciliation and Democracy, the Movement for Democracy in Liberia and the Political Parties (18 August 2003) Children’s Law of Liberia (2011)

Ministry of Displaced Person’s Affairs/High Committee for the Return of Displaced Persons (continued)

R. Adeola

102 Table 1 (continued) S/N Country 30 Madagascar

IDP law/policy –

31

Malawi

32

Mali

33

Mauritania

Durable Solutions for Internally Displaced Persons (IDPs) and flood affected populations in Malawi (14 March 2015) National Strategy on the Management of Internally Displaced Persons and Returnees (2015–2017) (May 2015) –

34

Mauritius

–

35

Morocco

–

36

Mozambique

–

37

Namibia

–

Other relevant law/ policy Law No 2015-031: National Policy on Disaster Risk Management (2015) National Disaster Risk Management Policy (2015)

Institutional arrangement Additional (main) information National Disaster Risk Management Council Unit for Prevention and Management of Emergencies Department of Disaster Management Affairs

National Multi Risk Plan for Disaster Preparedness and Response (2010)

Ministry of Solidarity, Humanitarian Action and Reconstruction of the North

Law No 17-2002 relating to the Organization of Emergency Relief (2002) National Disaster Risk Reduction and Management Act (2016) Law 110-14: Establishing a Plan to Cover the Consequences of Catastrophic Events and Modifying and Completing the Law No 17-99 on the Insurance Code (2016) Law 15/2014 of 20 June 2014: Establishing the Legal Framework for Disaster Management (2014) National Disaster Risk Management Policy (2004)

Directorate of Civil Protection /Inter-­ Ministerial Committee for Emergencies

Agreement for Peace and Reconciliation in Mali resulting from the Algiers Process (15 May 2015)

National Disaster Risk Reduction and Management Centre Directorate General of Civil Protection/ National Monitoring and Coordination Centre

Mozambique: Peace Accords (2019)

Directorate Disaster Risk Management, Office of the Prime Minister (continued)

9  National Protection of Internally Displaced Persons in Africa: Law and Policy Beyond the Rhetoric

103

Table 1 (continued) S/N Country 38 Niger

IDP law/policy Law No. 2018-74 of 10 December 2018, relating to the Protection and Assistance of Internally Displaced Persons (2018) National Policy on Internally Displaced Persons (1 August 2012) (Draft) Rights of Internally Displaced Persons (IDPs) Bill (2016)

Other relevant law/ policy

Institutional arrangement (main) Ministry of Humanitarian Action and Disaster Management

Additional information Regional Protection Dialogue on the Lake Chad Basin: Abuja Action Statement (8 June 2016)

National Disaster Response Plan (National Emergency Management Agency) (2002) National Disaster Framework (2010) Nigeria: Rebuilding the North East (The Buhari Plan) (June 2016)

National Emergency Management Agency North-East Development Commission National Commissioner for Refugees, Migrants and IDPs Ministry of Humanitarian Affairs, Disaster Management and Social Development Ministry of Disaster Management and Refugee Affairs

Child Rights Act No 26 (2003) Regional Protection Dialogue on the Lake Chad Basin: Abuja Action Statement (8 June 2016)

39

Nigeria

40

Rwanda

–

The National Disaster Management Policy: Revision of the 2009 National Disaster Management Policy (June 2012)

41

São Tomé and Princípe

–

42

Senegal

–

43

Seychelles

–

National Adaption Programmes of Action on Climate Change (2006) Law No 99-172 of 4 March 1999 repealing and replacing Law No 93-1288 of 17 November 1993 adopting the National Relief Organisation Plan (1999) Disaster Risk Management Act No 15 (18 August 2014)

Directorate General for the Environment/ Committee on Climate Change Directorate of Civil Protection, the Ministry of Interior

Prohibition of displacement as a crime (Law No 68/2018 of 30 August 2018: Law determining offences and penalties in general (2018), art 96

Zinguinchor Peace Agreement between Government of Senegal and the Movement of the Democratic forces of Casamance (MFDC) (30 December 2004)

Division of Risk and Disaster Management, Ministry of Environment and Energy (continued)

R. Adeola

104 Table 1 (continued) Other relevant law/ policy Disaster Management Policy (June 2006)

Institutional arrangement Additional (main) information National Commission for Social Action/ National Disaster Management Department, Office of National Security National Commission for Refugees and IDPs in the Ministry of Interior, Federal Affairs and Reconciliation

S/N Country 44 Sierra Leone

IDP law/policy Resettlement Strategy (1 October 2001)

45

Somalia

National Eviction Guidelines (2019)

46

South Africa

Puntland Policy Guidelines on Displacement (2014) National Policy on Refugee-Returnees and Internally Displaced Persons (2019) Banadir Regional Administration and Municipality of Mogadishu: Internally Displaced Person and Refugee Returnees Policy (January 2019) –

Disaster Management Act (2002)

National Disaster Management Centre

47

South Sudan

Protection and Assistance to Internally Displaced Persons Act 2019 (Draft)

Framework for Return, Reintegration and Relocation of Displaced Persons: Achieving Durable Solutions in South Sudan (Ministry of Humanitarian Affairs and Disaster Management, 2017)

Ministry of Humanitarian Affairs and Disaster Management

48

Sudan

The National Policy for Internally Displaced Persons (IDPs), 2009

High Committee on IDPs/National Council for Civil Defence

National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance (2019) Transitional Constitution of the Republic of South Sudan 2011 (Council of States is to: monitor the repatriation, relief, resettlement, rehabilitation, reintegration of returnees and internally displaced persons, and reconstruction of disaster and conflict affected areas) Doha Document for Peace in Darfur (14 July 2012)

(continued)

9  National Protection of Internally Displaced Persons in Africa: Law and Policy Beyond the Rhetoric

105

Table 1 (continued) S/N Country 49 Tanzania

IDP law/policy –

50

Togo

–

51

Tunisia

–

52

Uganda

53

Western Sahara

The National Policy for Internally Displaced Persons (August 2004) National Internally Displaced Persons Return, Resettlement and Re-Integration Strategic Plan for Lango and Teso Sub-Regions (November 2005) –

54

Zambia

55

Zimbabwe

Guidelines for the compensation and resettlement of internally displaced persons (October 2013) –

Other relevant law/ policy The Disaster Management Act 2015 Law No 2008-005: Providing a Framework on the Environment (2008) Law No 93-121 of 27 December 1993: Creation of the National Office of Civil Protection (1993) National Policy for Disaster Preparedness and Management (April 2011) National Climate Change Policy (April 2015)

Institutional arrangement Additional (main) information Disaster Management Agency

–

–

National Resettlement Policy (1 October 2015)/ National Disaster Management Policy (July 2015) Civil Protection Act (1989)

Department of Resettlement, Office of the Vice President

National Agency on Civil Protection National Platform for Disaster Management National Office of Civil Protection

Department of Disaster Preparedness and Refugees, Office of the Prime Minister

Directorate of Civil Protection

Constitution of the Sahrawi Arab Democratic Republic (2015), art 41 (protection of victims of the liberation war)

Agreement between the Zimbabwe African National Union-Patriotic Front (ZANU-PF) and the two Movement for Democratic Change (MDC) formations, on resolving the challenges facing Zimbabwe (Global Political Agreement) (September 2008)

R. Adeola

106

2.1

Tabular Illustration

This section reflects the laws/policies and institutional arrangements on internal displacement in Africa. It examines all 55 states of the African Union.1

3

Moving Beyond the Rhetoric

Moving beyond the rhetoric on internal displacement requires an understanding on ways of achieving action. Evident from existing practices are five pertinent precipitants of action: technical support from regional and global institutions, sustained spotlight on the issue of internal displacement, post-conflict reconstruction, norm influencers, peer support and learning  (Adeola and Orchard 2020). Technical support from institutions at various levels of governance, particularly, at regional and global levels is a viable way for achieving action. Evidently, in the translation of norms into concrete action within various contexts, this is an important precipitant. This was an evident trigger in the context of South Sudan with the development of a draft legislation on internal displacement. The support provided by the UN Refugee Agency through the provision of support to the government led to the emergence of the national framework. Similar forms of support have also precipitated the emergence of frameworks in Ethiopia (Somali Regional Government Ethiopia 2017) and Niger (2018). International support may be in the form of financial assistance, technical expertise, awareness-raising and training. However, it is pertinent that such forms of assistance are context-specific and orchestrated with the support of government and civil society. Sustained spotlight on the issue of internal displacement is also imperative. In many instances, this has precipitated action on issues of internal displacement. An evident example of this Discussions on the laws and policies contained in this table are initially contained in Adeola, R (2020) The internally displaced person in international law. Edward Elgar: Cheltenham. 1 

is in the case of Kenya where the ‘development of a legal and policy framework on internal displacement … was driven by the level of prominence afforded to internal displacement following the 2007/2008 PEV [post-election violence]’ (Norwegian Refugee Council and Internal Displacement Monitoring Centre 2015: 10–11). While such attention may help to build initial momentum, it is important that this is sustained by active civic engagements that can foster accountability, particularly, to ensure implementation. Moreover, post-conflict reconstruction is another crucial precipitant for action as exemplified in countries such as Angola and Liberia. The decades-long conflict in these countries led to the development of normative frameworks on internal displacement. In Angola, this precipitated the establishment of a coordinated institutional response at various levels of national governance. However, with a significant emphasis on durable solutions and specifically on return. While post-­ conflict reconstruction processes are valuable to developing IDP instruments, it is important that these frameworks are developed beyond the period of the conflict. A pertinent case that illustrates this point is the situation in Sierra Leone where, following the implementation of the Resettlement Strategy (2001), it was assumed that the situation of internal displacement had been addressed. However, McGoldrick (2003) observes that the process of resettlement lacked ‘agreement on even the most basic definitions’. There was an evident misunderstanding about who IDPs were. As McGoldrick observes (McGoldrick 2003: 32) For those IDPs not wishing to return for various reasons, the government decided they should no longer be considered IDPs. The prevailing lack of consensus over these fundamental issues has, at the very least, shown that there must be more to the label 'IDP' than simply a formal status granted or removed by the authorities without full regard to conditions on the ground and that there can, in some cases, be a fine line between voluntary and forced return.

Evidently, the existence of an IDP legislation, leveraging on the Guiding Principles, could have provided a minimum standard for operational

9  National Protection of Internally Displaced Persons in Africa: Law and Policy Beyond the Rhetoric

action and provided a basis for understanding the extent to which solutions were durable. Beyond conflicts, it is important that significant effort is made towards developing an actual comprehensive framework on internal displacement, also to ensure that future situations of internal displacement are addressed. Another important precipitant is the existence of influencers. A significant occasion where the pertinence of this precipitant was demonstrated is the Nigerian situation. The draft legislation on internal displacement that was introduced in 2016 before the Federal House of Representatives was significantly driven by a member of the House who was evidently passionate about driving IDP issues. At the time, the representative was also the Chairperson of the House of Representatives’ Committee on IDPs and was instrumental in the emergence of the framework. Norm influencers could be specific individuals, civil society or transnational networks. It is imperative to be fully abreast of the national context in which this approach is sought to be utilised. Looking into other similar situations where such influencers have precipitated the development of normative frameworks is integral to this process. Another pertinent precipitant is peer support and learning. A notable instance where this has worked is in the Lake Chad Basin with the development of the Abuja Statement by countries in the region. This statement emerged from a Regional Protection Dialogue carried out in 2016 (Abuja Action Statement 2016) and reaffirmed in 2019 (Abuja Action Statement: Reaffirmation 2019) in response to the forced displacement crisis in the region. However, such processes are better sustained through external support. In the case of the Regional Protection Dialogue, the UN Refugee Agency provided the required facilitation. In sustaining such processes, an important forum that may be utilised is the meeting of the Conference of State Parties (Conference) to the Kampala Convention. As the Kampala Convention has attained significant ratification, the meeting of the Conference can provide a significant forum for such peer support and learning. The first meeting of the Conference was held in Harare,

107

Zimbabwe in 2017 at which a regional plan of action was adopted (Conference of State Parties 2017).

4

Conclusion

As the significant place where action occurs, the national level is imperative for the furtherance of protection and assistance to IDPs. Developing normative responses to IDP issues at this level is crucial in providing a pertinent standard for the development of concrete actions. Having examined the terrain of laws and policies on internal displacement, this chapter has further reflected on pertinent precipitants that can stimulate national-level law and policy formation. Evidently, this will vary across contexts. But it is crucial, however, to be mindful of the fact that there are lessons that may be extrapolated across regions. Having a rich understanding of these precipitants is imperative across various national contexts. Overall, it is imperative that sustained action is undertaken towards the implementation of these laws and policies once adopted to ensure adequate protection.

References Adeola, R (2020) The internally displaced person in international law. Edward Elgar: Cheltenham Adeola, R and Orchard, P. (2020). The role of law and policy in fostering responsibility and accountability of governments towards internally displaced persons. Refugee Survey Quarterly, 39, 412–424 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa 2009 African Union Decision on the 2019 theme of the year “The Year of Refugees, Returnees and Internally Displaced Persons: Towards Durable Solutions to Forced Displacement in Africa, AU Assembly/AU/ Dec.707 (XXXI) (1–2 July 2018) Angola: Decree Number 1/01: Norms on the Resettlement of Displaced Populations (5 January 2001) Angola: Decree No 79: Implementation of Norms on the Resettlement of Displaced Populations (2002) Abuja Action Statement – Regional Protection Dialogue on the Lake Chad Basin (6–8 June 2016) Abuja Action Statement: Reaffirmation of the Commitments of the Abuja Action Statement and their

108 Implementation – Second Regional Protection Dialogue on the Lake Chad Basin (28–29 January 2019) Burundi: Protocol for the Creation of a Permanent Framework for Consultation on the Protection of Displaced Persons (2001) Central African Republic: National Plan for the Protection and Assistance of Internally Displaced Persons in Central African Republic (2015) (Draft) Chad Penal Code (2017) Conference of State Parties to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) Harare Plan of Action for the Implementation of the Kampala Convention (2017–2022) Democratic Republic of Congo Bill providing protection and assistance to internally displaced persons (29 September 2014) Democratic Republic of Congo: Provincial Strategy for Durable Solution for Internally Displaced Persons in North Kivu (2016) Deng FM, Kimaro S, Lyons T (2010) Sovereignty as responsibility: conflict management in. Africa (1996) Egypt: Constitution of the Arab Republic of Egypt (2014) Ethiopia: Constitution of Ethiopia (1994) Ethiopia: Somali Region Durable Solutions Strategy: 2017–2020: The Durable Solutions Strategy of the Somali Regional Government of Ethiopia (2017) Kenya: National Policy on the Prevention of Internal Displacement, Protection and Assistance to Internally Displaced Persons (IDPs) in Kenya (2011) Kenya: Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act 2012 Kenya: The Children’s Act No. 8 2001 Liberia: An Act for the Implementation of the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Liberia (2018) (Draft) Liberia: Children’s Law of Liberia (2011) Liberia: Declaration of the Rights and Protection of Liberian Internally Displaced Persons (IDPs) (26 September 2002) Liberia: Instrument of Adoption of Guiding Principles on Internally Displaced Persons (8 November 2004) Malawi: Durable Solutions for Internally Displaced Persons (IDPs) and flood affected populations in Malawi (14 March 2015)

R. Adeola Mali: National Strategy on the Management of Internally Displaced Persons and Returnees (2015–2017) (May 2015) McGoldrick C ‘Sierra Leone: resettlement doesn’t always end displacement’ (2003) 17 Forced Migration Review 31 Niger: Law No 2018-78 of 10 December 2018: Relating to the Protection and Assistance of Internally Displaced Persons (2018) Nigeria: Child Rights Act No 26 (2003) Nigeria: National Policy on Internally Displaced Persons (1 August 2012) (Draft) Nigeria: National Rights of Internally Displaced Persons (IDPs) Bill (2016) Norwegian Refugee Council and Internal Displacement Monitoring Centre A review of the normative framework in Kenya relating to the protection of IDPs in the context of the Kampala Convention and other supranational frameworks (August 2015) Ruiz, HA (1998) ‘The Sudan: Cradle of Displacement’ in Roberta Cohen and Francis M Deng (eds) The Forsaken People: Case Studies of the Internally Displaced. Brookings Institution Press: Washington Rwanda: Prohibition of displacement as a crime (Law No 68/2018 of 30 August 2018: Law determining offences and penalties in general (2018) Sierra Leone: Resettlement Strategy (1 October 2001) Somalia: Puntland Policy Guidelines on Displacement (2014) Somalia: National Policy on Refugee-Returnees and Internally Displaced Persons (2019a) Somalia: Banadir Regional Administration and Municipality of Mogadishu: Internally Displaced Person and Refugee Returnees Policy (January 2019b) South Sudan: Protection and Assistance to Internally Displaced Persons Act 2019 (Draft) Sudan: The National Policy for Internally Displaced Persons (IDPs) (2009) Uganda: The National Policy for Internally Displaced Persons (August 2004) United Nations Charter 1945 United Nations Guiding Principles on Internal Displacement 1998 Zambia: Guidelines for the compensation and resettlement of internally displaced persons (October 2013)

Index

A Act of Parliament, 57 African Charter, 42 African Charter on Human and Peoples’ Rights (African Charter), 66 African Charter on the Rights and Welfare of the Child (ACRWC), 67 African Growth and Opportunity Act (AGOA), 80 African Union (AU), 55 Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS), 6 Agricultural land, 60 Ambazonia, 77 Ambazonia Defence Forces (ADF), 77 Ambazonia Freedom Fighters, 77 Ambazonia Governing Council (AGoC), 77 Anglophone Crisis abuses, 80–82 Cameroon, 75–77 civil unrest to armed conflict, 77–79 civilian population, 74 collective identity, 74 community support, 89 conflict, 89 government appeasement measures, 79, 80 Grand National Dialogue, 79, 80 human rights violations, 80–82 humanitarian assistance, 89 military-centred approach, 74 normative frameworks, 74, 75 regions, 74 security and humanitarian crises, 73 US Congress, 89 Armed conflict, 74, 77–79, 89 AU Common Position on Humanitarian Effectiveness, 75 AU Convention for the Protection and Assistance, 28 AU Humanitarian Policy Framework, 75 B Bilateral Investment Treaties (BITs), 60

C Cameroon, 75–77 Cameroon Anglophone Civil Society Consortium (CACSC), 77 Canadian Institute for Conflict Resolution (CICR), 18 Central African Republic (CAR) abuses and atrocities, 14 African Union (AU), 14 AU-brokered political agreement, 14 challenges, 16 civilian population, 14 conflict environment, 17 emergency assistance, 16 forced displacement context, 15, 16 humanitarian actors and engagements, 16 humanitarian mediation process, 17 insider mediators, 17 instability and violence, 13 intra-state wars, 16 long-term development responses, 16 Muslims, 14 non-state armed groups, 16 official dissolution, 14 process, 13 protection, 14, 16, 17, 23 region, 16 religious/ethnic dichotomies, 14 reprisal and counter-reprisal attacks, 14 sectarian and inter-community crisis, 14 security and humanitarian situation, 16 state power and resources, 14 transformed war landscape, 16 Centre for Minority Rights Development (CEMIRIDE), 40 Centre of Competence on Humanitarian Negotiation (CCHN), 23 Centre on Housing Rights and Evictions, 40 Child labour, 70 Child’s Rights Act (CRA), 67 Commercial Farmers Union (CFU), 58 Common Humanitarian Fund (CHF), 17

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. Adeola (ed.), National Protection of Internally Displaced Persons in Africa, Sustainable Development Goals Series, https://doi.org/10.1007/978-3-030-66884-6

109

Index

110 Constitutional Court, 55 Constitutional Property Clause, 58, 59 Constitutional Remedial Framework in Zimbabwe compensation, 60, 61 Land Commission, 61 Constitution of the Federal Democratic Republic of Ethiopia (the FDRE Constitution), 29 Convention on the Rights of the Child (CRC), 67 D Danish Refugee Council assessment, 17 conflict analysis, 18 humanitarian engagement project, 17 humanitarian mediation and dialogue interventions anti-Balaka elements, 21 anti-Balaka leaders, 22 claiming, 20 collaboration, 21 commercial sector, 21 community and armed group leaders, 19, 20 community-based mediation committees, 20 conflict–resolution tools, 23 Congolese community, 22 dialogue facilitation, 22 displacement, 20 functions, 19 gaining momentum, 23 humanitarian community, 22 humanitarian engagement, 23 humanitarian mediation, 22, 23 inter-community dialogue, 20 interventions, 22 legitimacy, 23 local actors, 19 mediation process, 23 Muslim community, 20 regional authorities, 20 regular engagements, 20 roadmap/action plan, 21 security challenges, 21 stakeholders, 21 transhumance, 20 violence, 21, 22 inter-community conflicts, 18 national staff, 18 training, 18, 19 Democracy, 77 Development-induced displacements (DID), 48 Displacement Tracking Matrix (DTM), 27 Domestic legal framework Act of Parliament, 57 agricultural land, 60 Constitution, 56, 57 Constitutional Property Clause, 58, 59 international instruments, 56, 58 Kampala Convention, 56, 57 land and property rights, 56

legislation, 58 State v Shepherd Banda, 57 Durable Solution Initiative (DSI), 30, 31 E Emergency Humanitarian Assistance Plan, 84 Emergency Operation Centres, 28 Ethiopia, 27–31, 34, 35 Ethiopia Durable Solutions Initiatives, 30 European Commission’s Civil Protection and Humanitarian Aid Operations (ECHO), 17 European Court of Human Rights, 57 F Fast Track Land Reform Programme (FTLRP), 51, 58 Federal Government of Ethiopia, 27–28 Federal Government’s Strategic Plan, 33 Federal structure, 76 Forced displacement administrative orders, 85 African governments, 82 Anglophone Crisis, 82, 84, 87, 88 Anglophone regions, 82 Cameroon, 82 conflict, 87 English-speaking regions, 85 female medical staff, 83 foreign governments, 87 foreign interference, 88 Francophone regions, 83, 85 government, 86 government forces, 82, 84 human rights organisations, 86 humanitarian assistance, 83, 84 humanitarian community, 82, 83 humanitarian crisis, 86 humanitarian organisations, 83 international and regional law, 88 neutrality, 85 Nigerian asylum-seekers, 88 Northwest and Southwest regions, 84 physical disabilities, 83 population, 83 security forces, Cameroon, 84 social cohesion, 85 socio-economic needs, 85 South West Region, 83, 84 urban areas, 82 G Geographic Information System (GIS), 66 Global Centre for the Responsibility to Protect, 85 Grand National Dialogue, 79, 80 Guiding Principles, 5, 8, 9, 54, 55 Guiding Principles 20 (GP20), 7

Index Guiding Principles on Internal Displacement, 53 Gukurahundi massacres, 49, 50 H High-Level Revitalization Forum (HLRF), 6 Housing, land and property (HLP), 8 Humanitarian Country Team (HCT), 7 Humanitarian negotiation, 16 Humanitarian Response Plan (HRP), 22 I IDP Strategic Plan, 30, 33 Inter-Agency Humanitarian Evaluation (IAHE), 22 Inter-Agency Standing Committee (IASC) Framework, 30 Inter-American Court, 43 Inter-Cluster Working Group (ICWG), 7 Intergovernmental Authority on Development, 6 Internal displacement, 5, 9, 10, 27, 28, 93–95, 106, 107 Africa, 96–105 Internal Displacement Monitoring Centre (IDMC), 14, 15, 48 Internal displacements in Zimbabwe Cyclone Idai, 51, 52 FTLRP, 51 Gukurahundi massacres, 49, 50 judicial responses, 52, 53 Kariba Dam, 49 legal framework, 48 Operation Murambatsvina, 50 Tokwe-Mukosi dam, 51 Internally displaced persons (IDPs), 15, 37, 94 activities, 2 assistance, 1 Cameroon, 3 context-based knowledge, 2 development projects, 2 displacement crisis, 28 domestic laws, 3 global governance, 1 government-led relocation process, 28 humanitarian assistance, 28 humanitarian law, 2 humanitarian mediation, 2 inter-communal conflict, 28 internal displacement, 2, 3, 27, 28 international human rights, 2 issue of refugee protection, 1 Kampala Convention, 34, 35 level of governance, 2 national contexts, 2, 3 national protection, 1, 2 need of protection, 1 normative framework, 2 operationalisation, 95 optics, 2 policies, 3

111 protection, 1, 95 regional discourse, 2 sectors, 28 sovereignty, 1 Strategic Plan, 28 sustainable development goals, 1 violence, 27 International Committee of the Red Cross (ICRC), 6 International Crisis Group, 77 International Human Rights Law, 74 K Kajuru Local Government Area, 68 Kampala Convention, 5–10, 31, 34, 35, 42, 55, 56, 66, 74, 75, 94 Kariba Dam, 49 Kenya development challenge, 43, 44 development-induced displacements, 37, 40, 41, 43, 44 displacements by development projects, 39, 40 eminent domain, 42, 43 internally displaced persons, 42, 43 protection, 38 public benefit, 41, 42 public needs, 37 recognition and protection, 37 Kuchingoro camp, 68 L Land and property rights communal land tenure system, 47 development-induced displacements, 48 Guiding Principles, 54, 55 internal displacement, 48 internally displaced persons, 53 international law, 48, 53 international legal framework, 53 Kampala Convention, 55, 56 internal displacement, 47 large-scale development projects, 48 legal framework, 48 national legal framework, 48 property and possessions, 53 protection of property rights, 48, 53 socio-economic risks, 47 Zimbabwe, 47 Land Commission, 61 Law, 6–10 Law and policy, 94, 107 climate change-induced displacement, 29, 34 Constitution, 29 constitutional provisions, 32 development-induced displacement, 34 dignity, 34 disaster-risk activities, 32 disaster risk management approach, 33

Index

112 Law and policy (cont.) domestic legislations/policies, 29 DRM policy, 29, 30, 32 Ethiopia, 29 FDRE Constitution, 31, 32 IDP strategic plan, 34 instrument, 30, 33, 34 legal development, 31 legislation and disaster response system, 29 national level, 31 natural disasters, 33 phase, 30 planning and management, 34 pre-disaster phase, 32 safety, 34 security force, 34 security issues, 33 State development projects, 32 State programmes, 31 strategic plan, 34 use of land, 32 M Ministry of Humanitarian Affairs and Disaster Management (MHADM), 7 Minority Rights Group International (MRG), 40 Mission Control Centre (MCC), 66 Movement for the Liberation of Angola (MPLA), 94 Movement for the Restoration of the Independence of Southern Cameroons (MORISC), 77 Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA), 14 Multi-sectoral approach, 74 Muslim community, 20 N National Commission for Refugees, Migrants and Internally Displaced Persons (NCRMI), 66 National Emergency Management Agency (NEMA), 66 National Human Rights Commission (NHRC), 66 National legislation, 74 National Policy and Strategy on Disaster Risk Management of 2013, 29, 32 National Social Protection Policy of Ethiopia 2012, 31 Nigeria, IDPs access to education, 68 access to health, 69 camps, 67, 68 child labour, 70 conflict-induced displacements, 65 humanitarian services and processes, 65 legal and institutional frameworks, 66, 67 nutrition, 69 recommendations, 70 violence, 69 Nigerian Constitution, 66

1993 National Policy on Disaster Prevention and Management, 29 Non-International Armed Conflict (NIAC), 82 Norm influencers, 107 North East Development Commission (NEDC), 66 O Operation Murambatsvina, 50 Organ for National Healing, Reconciliation and Integration (ONHRI), 50 Organization for the Harmonisation of Business Law in Africa (OHADA), 79 Overseas Development Institute (ODI), 23 P Policymaking, 8 Post-conflict reconstruction, 106 Productive Safety Net Program (PSNP), 33 Protection, 5–10, 65, 67, 69, 70, 93–95, 107 Protection Cluster (PC), 7 R Rapid Intervention Battalion (BIR), 78 Restitution, 48, 55, 61 Return and Rehabilitation Commission (RRC), 7 Return Resettlement and Rehabilitation (RRC) Act of 2016, 8 Revitalised Transitional Government of National Unity (R-TGoNU), 6 Revitalized Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS), 6 S Sexual and gender-based violence (SGBV), 6 Social cohesion, 15 Socio-economic transformation, 51 Somali Regional Durable Solutions Strategy, 34 Somali Region of Ethiopia, 31 South Sudan Inter-Agency coordination mechanisms, 7 law and policy, 7 legislation, 7, 10, 11 national legislation, 5, 7–9 opportunities, 9, 10 participation, 7 workshop and validation event, 7 Southern Cameroons Ambazonia Consortium United Front (SCACUF), 77 Southern Cameroon’s National Council (SCNC), 77 Southern Cameroon’s Youth League (SCYL), 77 State Emergency Education Programme, 68 State Universal Basic Education Board (SUBEB), 68 State violence, 77 Strategic Plan and Investment Framework, 32 Strategic Programme and Investment Framework, 29, 33 Sustainable Development Goals (SDGs), 10

Index T Third-Party Neutral (TPN) programme, 18 Tigray People’s Liberation Front governing (TPLF), 28 Tokwe-Mukosi dam, 51 Training of trainers (TOT), 18 Trump Administration, 80 U UN Guiding Principles, 31, 74 UN Guiding Principles on Internal Displacement (1998), 30 UN High Commissioner for Refugees (UNHCR), 15 United Nations High Commissioner for Refugees (UNHCR), 6, 75 United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), 82

113 United Nations Protection of Civilian (PoC), 6 United Nations Security Council Resolution on South Sudan, 6 UN Office for the Coordination of Humanitarian Affairs (OCHA), 28 UN Protection of Civilian (PoC), 9 UN Security Council, 87 V Violence, 69 Violence Against Persons (Prohibition) Act (VAPPA), 66 Z Zimbabwe People’s Revolutionary Army (ZIPRA), 49