By Sophie Chiasson, a volunteer with the International Refugee Rights Initiative (IRRI)
Freedom of movement is not only an internationally recognised right of refugees, it is also critical to their day-to-day lives and to their ability to enjoy other human rights. In October 2014, IRRI launched a campaign to promote the enjoyment by refugees of this fundamental human right. As part of that effort, IRRI is beginning to explore the particular challenges to refugee freedom of movement by looking at individual country situations with a view to being able to address them. This article looks at what extent refugees in Tanzania are able to access their internationally recognised right to freedom of movement and what impact it has on their ability to access other rights.
Tanzania is considered one of the world’s major refugee-receiving states. According to UNHCR, there are currently 253,190 refugees in the country, with Burundian and Congolese refugees comprising the majority. Additionally, the current instability in Burundi has increased the number of individuals seeking refuge in the country. As of 24 May 2015, international aid organisations have estimated that anywhere between 47,000 and 70,000 new Burundian refugees have arrived in Tanzania since the inception of the recent political crisis in the country. Tanzania has only one permanent refugee camp – known as Nyarugusu – and with more Burundians entering each day, the camp is estimated to be at 200% of its original capacity.
In Tanzania, policy discourse distinguishes between “settlements” mainly set up to house refugees who arrived in the 1970s and “camps” primarily set up to house those that arrived in the 1990s. Settlements are distinguished from camps in that refugees in settlements typically had access to larger plots of land. However, in both cases refugees’ rights to freedom of movement are similarly restricted.
The development of refugee policy in Tanzania
In the period immediately following its independence in 1961, Tanzania had what was considered an “open door” policy for refugees, which drew on then-President Nyerere’s pan-African vision. Nevertheless, the law retained restrictions on the containment of refugees inasmuch as the majority were confined to settlements.
In 1998 Tanzania enacted new legislation, the Refugees Act, 1998 (the 1998 Act), which replaced older laws and sought to conform with the country’s obligations pursuant to the signing of the OAU Convention Governing Specific Aspects of Refugees Problems in Africa of 1969 (the OAU Convention). In addition to seeking conformity with the country’s continental commitments, a secondary objective of the 1998 Act, Dr. Khoti Kamanga, of the University of Dar es Salaam, argues was “to signal disengagement from the Open Door policy of the [previous] Nyerere administration, with a view to making Tanzania a less attractive destination for asylum seekers, and sending a deterrent message to authorities in refugee-generating countries.” Government policy also encouraged repatriation as the preferred solution. On a practical level, the new legislation intensified restrictions on the rights of refugees in the country and controls on the movement of encamped refugees increased. As Dr. Lucy Hovil, a senior researcher for IRRI, explains in Going home or staying home? “although [refugees] had long required permission to leave their settlements, these controls became stricter over time, and eventually their movements were restricted to a four-kilometre radius from the centre of the camps.”
Tanzania’s current legislation and policy
The 1998 Act makes no specific mention of the right of freedom of movement for refugees, however, pursuant to sections 16 and 17, authorities have the power to require any asylum seeker or refugee to reside within a “designated area” (DA) – a euphemism for a refugee camp or settlement. According to UNHCR, however, “[i]n practice, all refugees are required to reside in camps or settlements.” Further, Tanzania’s 2003 National Refugee Policy (2003 Policy), which is not codified law but frames the general direction the government intends to pursue for refugee matters, affirms in paragraph 28 that “refugees will be hosted in designated areas whereby the international community will be obliged to provide material assistance.”
The government of Tanzania vigorously enforces restrictions on the movement of refugees once they reside within a DA. For instance, if a refugee is caught attempting to leave their designated camp without permission, officials may detain the individual for up to three days in a camp jail and issue a fine of up to five thousand shillings (just over USD 2). In order to leave their DA, pursuant to section 17(5)(a) of the 1998 Act, a refugee must obtain a temporary movement permit from an official who then determines the specific “terms and conditions” of the permit. A movement permit can only be issued for up to 14 days unless the Director of Refugee Services has specifically allowed a permit for a longer period of time. If the individual fails to comply with the terms and conditions of their permit, they may be guilty of an offence against the Act, and if convicted, can be imprisoned for up to six months or fined fifty thousand shillings (about USD 23), or both. Refugees and asylum seekers found outside camps without proper authorisation have also been prosecuted for unlawful presence in Tanzania under the Immigration Act, 1995 and could be imprisoned for two years followed by deportation from Tanzania. However according to the United States Committee for Refugees and Immigrants, “[a]uthorities typically sentence them to only community service.”
Although not codified in the 1998 Act, a practice has developed which prohibits refugees from moving outside a four-kilometre radius of their camp. This is intended to allow refugees to move outside their DA in order to collect amenities, such as firewood. However, because there is no clear demarcation to where the DA ends, refugees may cross the four-kilometre boundary line without knowing it and can be subject to penalties.
The 1998 Act also made it a formal offence for a refugee to live outside a DA without obtaining a permit. Asylum Access explains “[s]uch permits are difficult to obtain and are only granted for exceptional cases involving almost exclusively medical needs, religious work and higher education.” For camp-based refugees seeking to pursue higher education, significant tuition fees act as a barrier to enrolment and thus receiving a permit. In the case of a work permit, if a refugee is found working outside a DA without one, they face a fine of just under USD 100 or imprisonment up to three years, or both. There are no available statistics on how many individuals are currently living outside of DAs without authorisation but if found by authorities they face expulsion from Tanzania.
Freedom of movement: legal, ethical and practical implications
As a result, Tanzania’s legislation violates international legal statutes, which protect the rights of refugees to freedom of movement. For instance, the Universal Declaration of Human Rights, the foundation document of international human rights law, states that “everyone has the right to freedom of movement and residence within borders of each state.” Further, the 1951 Convention Relating to the Status of Refugees and its Related Protocol (the Refugee Convention) – of which Tanzania is a signatory – also affords refugees the right to freedom of movement, however, it does state that these rights may be subject to regulations imposed by the host state.
Beyond respecting international legal obligations, recognising the rights of refugees to freedom of movement is, as IRRI’s Themba Lewis writes, “crucially important” to the extent that “nearly all other [rights] are contingent upon it” including the rights to employment, education and naturalisation. Further, the authors of Refugee Rights point out how freedom of movement is closely tied with human dignity and that “refugees who are not allowed freedom of movement are, effectively, locked-up members of society.” UNHCR’s recent Policy on Alternatives to Camps (UNHCR policy) also acknowledges that camps, by definition, place limitations on the rights and freedoms of refugees, and maintains that is therefore essential to pursue alternatives to camps wherever possible.
Not only is it in contravention of international law, by prohibiting refugees from leaving camps, Tanzania’s current legislation also prevents refugees from building sustainable, independent livelihoods. For instance, refugees are not entitled to pursue employment opportunities other than by engaging in small income-generating activities within the confines of the camps. Further, because refugees are prevented from travelling more than four kilometres outside of a DA, economic activity between refugees and local populations is stunted. For one Congolese refugee who has been in the camp for the past 18 years, this means he is able to sometimes earn USD 0.90 a day by cutting hair or doing odd jobs. However, the 26 year old says he “needs a job” and “want[s] to do something for [his] life.” While some may claim that refugees will take employment opportunities away from citizens if they are allowed access to local markets, the opposite is true according to UNHCR policy; instead “camps may distort local economies and…the presence of refugees in communities can actually stimulate local economies and development.”
Refugees who choose to leave the camps or avoid going there in the first place are drawn to urban centres including Kigoma, Mwanza and Dar es Salam with hopes for better livelihoods. These refugees cite reasons which touch on the effective hindering of their ability to achieve self-reliance; including, as Asylum Access notes, “generalized insecurity, outbreak of diseases, insufficient support and services and lack of employment.” However, refugees who remain outside DAs without a permit have no way to access formal humanitarian assistance, support or legal protection and are instead at risk of prison and/or deportation as undocumented immigrants. UNHCR’s office in Dar es Salaam does not offer protection or assistance to urban refugees unless they are camp-based refugees referred to Dar es Salaam for medical reasons. Refugees who may be forced to leave the camp because of a specific security reason, but cannot obtain a permit, are therefore forced to live without formal assistance. Further, because of the high cost of obtaining a work permit, as described above, Asylum Access has found that “many non-encamped refugees are forced to seek work in the informal economy to support themselves and their families” and are effectively delegated to the shadows of society. The precarious situation of urban refugees is made worse due to the constant threat of arrest and deportation. Dr. Hovil notes that with the inception of Tanzania’s 1998 Act, “unrecognised or self-settled refugees also felt the impact of tightening restrictions, becoming increasingly vulnerable to arbitrary arrest and refoulement.”
As Burundians once again seek safety in Tanzania, it is important the country consider the negative impact encampment has on the livelihood and dignity of long-term refugees. As Dr. Hovil has argued, “there needs to be a paradigm shift in responses to refugees in the [East African] region” which should include solutions viewed through a citizenship lens, something Tanzania has recently undertaken with the naturalisation of almost 200,000 former Burundian refugees. Despite this welcomed step, for those refugees who are unable or do not want naturalisation, a renewed Tanzanian refugee policy must respect their international rights to exercise freedom of movement and should focus on promoting local integration. This will not only offer a durable solution to displacement but may also serve as a means to protect long term security in the region because, as UNHCR policy states: “Where people work, study and play together, they are better equipped to resolve differences and live peacefully.”