What happens to those who do not repatriate voluntarily? Protection and prospects for the residual caseload of Angolan refugees in Zambia

Abstract: In February 2002, the UNITA rebel leader Jonas Savimbi was shot dead by Angolan Government forces, thereby putting an end to almost four decades of war in Angola. Once peace had been declared, the Government of Zambia together with the Government of Angola and the UNHCR began to make arrangements for the voluntary repatriation of the large Angolan refugee population residing in Zambia. However, due to such things as the ethnic, religious and cultural similarities of the two countries and the protracted nature of the Angolan refugee situation, many Angolan refugees no longer have any desire to return to Angola. What will happen to this group of refugees has still not been decided. Under international and regional refugee law, there exist a few principles that can protect the refugees who wish to remain, the so-called 'residual caseload', from being forcefully returned to Angola. At the time of the voluntary repatriation operation, the cardinal principle for the residual caseload is the principle of non-refoulement. Two possible corollaries to this principle are the principle of voluntariness and the right to return in safety and dignity. After looking closely at the content and legal basis of these principles, the legal obligation of Zambia to respect them as well as their implementation in the present repatriation operation, the thesis came to the conclusion that they offer inadequate protection to the residual caseload. The Refugees (Control) Act of Zambia, does not provide foolproof protection for Angolan refugees against refoulement, and in practice, the principle of non-refoulement is further undermined by the Zambian authorities' constant application of the Immigration and Deportation Act to refugees and asylum-seekers. The latter Act does not concern itself at all with the principle of non-refoulement. Even though the Tripartite Agreement seems to implicitly suggest that that the authorities responsible for the operation consider themselves bound to respect the principle of non-refoulement, and even though it explicitly states that the voluntary nature of the repatriation shall be adhered to, the practical implementation of the repatriation operation suggests otherwise. Firstly, as the future of the residual caseload was not fully decided upon prior to the intended date of the voluntary repatriation operation, there is a risk that refugees not wanting to return to Angola actually feel compelled to do so due to the uncertainty of what will happen to them should they choose to remain in Zambia. Some may even feel that they have no choice but to return. Secondly, the authorities are likely to undertake individual and systematic status determination of the residual caseload as soon as the movement phase of the voluntary repatriation operation has been completed. By making the option not to return conditional on being able to demonstrate genuine reasons for requesting continued international protection, indirect pressure is in effect put on the refugees to repatriate. Consequently, the principle of voluntariness is at risk of being compromised and what was intended to be a voluntary repatriation of Angolan refugees from Zambia will be more similar to a safe return of the refugees to Angola. However, there has been insufficient attention devoted to the actual safety of the refugees' return because the intended key to the refugees' promoted repatriation was supposed to be their voluntary decision to repatriate. Effectively, the Angolan refugees in Zambia fall between two stools and seem to be at risk of being repatriated involuntarily to unsafe conditions in Angola. Thereby the principle of non-refoulement ends up being violated after all. Following the repatriation operation, when conditions have improved further in Angola, Zambia will be at liberty to apply the cessation clause relating to change of circumstances in the country of origin in relation to Angolan refugees. When, and if, that happens, exceptions to the cessation clause can offer protection to the residual caseload from being forcefully returned to Angola. Should Zambia make arrangements for such exceptions, two groups of refugees can be eligible to stay: those who can present compelling reasons arising out of previous persecution&semic and, those who cannot be expected to leave due to a long stay in Zambia resulting in strong family, social and economic links there. Due to the protracted nature of the Angolan refugee situation, and on account of the high level of social and economic interaction between the Angolan refugees and their Zambian host communities, the latter group can be expected to be the largest. At present however, Zambian domestic legislation is not very favorable to the legal integration of the residual caseload in Zambia, and what their status would be is unclear. The most appropriate legal status, which is citizenship through naturalization, is effectively precluded for refugees by the Citizenship of Zambia Act in combination with the Constitution of Zambia. The former Act does not accord citizenship to refugees born in Zambia either. Granting humanitarian status to the residual caseload present problems as the ability to do so is not properly codified in Zambian legislation. Humanitarian status would also be inferior to full citizenship as it does not grant the residual caseload the same rights and benefits accorded to ordinary Zambians. Furthermore, due to the administrative costs involved in assigning the residual caseload with a new status, there is a great risk that the residual caseload will simply end up continuing to receive refugee assistance and protection in the refugee camps and settlements of Zambia.