To what extent does Zimbabwe comply with its international obligations for the protection of unaccompanied and separated refugee children?
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Date
2015
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Publisher
University of the Western Cape
Abstract
This study set out to analyse Zimbabwe’s obligations under international law for the protection of UARC. Chapter one was an introduction to the study laying out the background of refugee and child protection. The background established that it was after World War II that the international community saw the need for an international instrument to define the legal status of refugees, after the refugee problem had not been resolved after World War I. This development saw the creation of the 1951 UN Refugee Convention. On the African continent the large number of people fleeing wars and internal conflict led to the adoption of the OAU Convention to address the unique problems associated with African refugees. The chapter also established that the protection of UARC should be integrated early into the design and implementation of assistance programmes. A child ought to be treated as a child first and as a refugee second. The main hypothesis of the research as set out in the chapter was that the children and refugee policies and laws in Zimbabwe do not sufficiently protect children in vulnerable situations such as UARC. Subsequent chapters addressed the issues raised in chapter one, that is outlining the obligations that Zimbabwe has internationally and showing whether these obligations are being fulfilled. Chapter two of the study examined Zimbabwe’s obligations in both international and regional law for protection of UARC. The study concluded that Zimbabwe by ratifying all refugee and children’s conventions, regionally and internationally is bound to protect refugee children, especially those who are unaccompanied. The chapter also established that the refugee Conventions do not fully protect UARC, as the definition of a refugee does not cater for children. It was submitted that these definitions require amendment. Specific protection for refugee children is provided in Art 22 of the CRC and Art 23 of the ACRWC, establishing that the best interests’ of the child principle is paramount especially to unaccompanied refugee in all stages of their displacement cycle until they receive appropriate accommodation. General Comment 6 lays out the various legal obligations that States have which include the obligation to respect the best interests of the child, the obligation pertaining to non-discrimination, providing care and accommodation arrangements and respect for the child views. Although being soft law, the General Comment as discussed in chapter two cannot be simply ignored as it is a vital tool used by treaty bodies to further explain or give flesh to rights provided in a UN Convention. Included in these obligations are also procedural needs and general and special protection needs. Chapter two also established that pertinent to the issue of refugee protection is the issue of burden sharing which entails that a State that faces difficulties in refugee protection issues can appeal for help from other States. Zimbabwe needs to cooperate with other States such as South Africa which hosts most refugees in Africa, if the rights of UARC are to be fully realised. Such cooperation can range from assisting children to trace their families, reunification and the issuing of identity documents. The government though has and continues to engage with non-governmental organisations to ensure that it fulfils its obligations. It is also established that the UNHCR plays a very significant role in refugee protection and is the central agency for refugee protection. It has published various executive committee conclusions on UARC emphasising the need for cooperation between States in protection issues.⁴⁶² In chapter three, the study examined Zimbabwe’s legislation that protects unaccompanied refugee children and Zimbabwe’s encampment policies, concluding that there are still gaps in the law that protects UARC and asylum seekers. By and large, the Children’s Act of Zimbabwe conforms with international treaties. In particular, it declares that the best interest of the child shall be paramount in matters concerning them; however, it is largely silent on children’s right to participation.⁴⁶³ Reference to UARC in the Children’s Act can be inferred from the reference made to children in need of care. As highlighted in chapter 3 above, this provision is highly inadequate and in need of amendment. The Refugees Act of Zimbabwe, as discussed in chapter three, clearly falls short in addressing the specific needs of children by not providing a specific section that relates to children. It, further, omits to take into account the fact that children in some instances become refugees as a result of socio economic factors such as poverty amongst others. The definition of a refugee in the Act does not accommodate children since it is basically a duplication of the 1951 Convention and the OAU Conventions’ definitions which do not cater for children as discussed in chapter 2 above. The Constitution of Zimbabwe is very significant in that it provides for rights exclusively applying to children over and above those provided to everyone resident in Zimbabwe.⁴⁶⁴ The State is obliged to adopt policies and measures to fulfil these rights, however, subject to the limitation of available resources. The limitation, however, has not been subjected to progressive realisation, which implies that the State is not committed to the immediate and tangible progress towards realising children’s socio economic rights.⁴⁶⁵ The CESCR has reiterated that progressive realisation implies a specific and continuing obligation on states to, as much as possible, be expeditious and effective in working towards the full realisation of the rights.⁴⁶⁶ Implementation of these laws is also still a problem in Zimbabwe. The current economic problems in Zimbabwe, in which the State is failing to cater for its own people, hinders the State from fully fulfilling its obligations towards UARC. Thus, although the government has in place a social and legislative mechanism aimed at promoting the rights of children, it has not been able to fulfil its obligations in full because its duty has been limited to the State’s available resources. This study, therefore, makes the submission that NGO support and international cooperation is highly necessary for the realisation of refugee children’s rights in Zimbabwe. The study also established that there is need for proper accommodation, adequate food and quality education for UARC at the Tongogara refugee camp in Zimbabwe.
Description
Magister Legum - LLM
Keywords
Asylum seeker, Children, International protection, Refugee camps, Zimbabwe