Judges’ role in Africa’s expanded refugee definition

This year marks the 50th anniversary of the 1969 OAU Convention Governing the Specific Aspects of Refugees in Africa (1969 Convention). To commemorate this milestone, more than one hundred refugee law judges and decision-makers convened in Cape Town at the start of September to discuss and reflect on the Convention’s key contributions and critical challenges. Kaldor Centre Affiliate Dr Tamara Wood was there to participate in the event and to share her research on the interpretation and application of Article I(2) of the 1969 Convention – Africa’s ‘expanded refugee definition’.

The 1969 Convention is Africa’s regional complement to the 1951 Refugee Convention. Adopted in the context of African liberation from colonial and minority rule, the 1969 Convention is widely recognised for a number of distinguishing features. 

Foremost among these is its ‘expanded refugee definition’, which extends refugee protection in Africa beyond individuals with a well-founded fear of persecution to those fleeing more widespread and indiscriminate forms of harm – namely external aggression, occupation, foreign domination and events seriously disturbing public order. 

In recent years, Africa’s expanded refugee definition has received increased attention at both the regional and international levels, with the African Union, UNHCR and others exploring the definition’s role in addressing current and emerging causes of displacement, such generalised violence, armed conflict, disasters and the negative effects of climate change.

The 1969 Convention has other unique features as well, including provisions relating to asylum, voluntary repatriation, and responsibility-sharing among states. 

But in practice, the 1969 Convention faces significant challenges, including rudimentary refugee status determination procedures in African states, increasing securitisation of refugee protection on the continent, and a lack of clear and detailed understanding of the substance of the scope and meaning of the Convention’s terms.

To commemorate the 50th anniversary of the 1969 Convention, the International Association of Refugee and Migration Judges (IARMJ) Africa Chapter convened a conference dedicated to discussing the key contributions of the 1969 Convention and the critical issues faced in its implementation.

Refugee law judges and decision-makers from across Africa were joined by distinguished guests, including the Chief Justice of South Africa, the President of the IARMJ, and senior officials from the African Union and UNHCR. The proceedings included plenary presentations as well as a two-day pre-conference training segment, aimed at developing the capacity of judges, decision-makers and other government officials in various aspects of refugee law and refugee status decision-making.

Dr Tamara Wood took part in both the training and plenary segments of the conference, where she presented her ground-breaking research on the expanded refugee definition (Article I(2) of the 1969 Convention) and spoke about the role of refugee law in protecting disaster- and climate-change-displaced persons in Africa. 

The need for further interpretative guidance on the refugee definition was a key theme of the conference, and both UNHCR and the African Union have pledged further engagement on this important task.

But, as Dr Wood argues in a forthcoming article in the International Journal of Refugee Law, the critical thing with any interpretative guidance on the expanded refugee definition is that it should accord with the principles of interpretation set out in the Vienna Convention on the Law of Treaties.

A principled approach is critical to ensuring consistency and fairness in refugee status decision-making and the integrity of refugee protection regime overall. Most importantly, it is essential to ensuring that refugees entitled to protection in Africa can access it in practice.

Dr Wood is grateful to the Platform on Disaster Displacement for their support of her attendance at this event.