Legal Mechanisms for the Enforcement of the Fundamental Right of Refugees and Termination of Refugee Status

Legal Mechanisms for the Enforcement of the Fundamental Right of Refugees and Termination of Refugee Status

According to the convention relating to the status of refugees, 1951, the contracting parties shall, as far as possible, facilitate the assimilation and naturalization of refugees. The NCFR provided for the rights and duties of refugees. This entails that a refugee is entitled to enjoy his human right and also fundamental rights in Nigeria.

A refugee shall have free access to the courts and shall be entitled for by and large, all the rights available to a common man in a civilized society or at least the rights available to other citizens in the country of refuge, such as, personal status and dignity, acquisition of moveable and immoveable property, artistic rights and industrial property, right of association, freedom of movement etc. the refugees shall not be subject to any discrimination on grounds of race, religion or country or origin.

The convention also requires that the contracting states shall cooperate with UN Agencies and the national authorities shall render possible assistance to the UNHCR in monitoring the application and implementation of the provisions of the 1951 convention as also its protocol.  Furthermore, the legal mechanism for the enforcement of the fundamental right of refugees is through the court or tribunal properly constituted by law.

Fundamental rights are generally regarded as those aspects of human rights which have been recognized and entrenched in the constitution of a country. They are specially provided for to enhance human dignity and liberty in every modern state.

In the case of Uzoukwu V Ezeonu II ors[1] the court per Nasir P.CA held that fundamental rights remain in the realm of domestic law. They are fundamental because they have been guaranteed by the fundamental law of the country that is the constitution. Fundamental rights mean any of the rights provided for in the chapter IV of the constitution and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.[2]

In Nigeria, by virtue of Order 1 Rule 1 of FREP Rules,[3]every victim of human rights violations is empowered to seek redress in a High court located in any state of the federation where their fundamental right has been, is being or likely to be contravened. In the case of Isuama V Governor of Ebonyi State,[4] the Court of Appeal held: Section 46 of 1999 constitution of Nigeria is a special provision which deals with matters of fundamental rights.

It confers jurisdiction on any High court in a state in matters of fundamental rights irrespective of who is affected by an action founded on such rights.  Before the enactment of the 2009 FREP Rules, the term “any person” under section 42(1) of the 1979 constitution and Section 46(1) of 1999 constitution was interpreted by the courts to mean the actual person whose fundamental right has been violated and this was reiterated in the case of University of Ilorin V Oluwadare[5].

Legal Mechanisms for the Enforcement of the Fundamental Right of Refugees and Termination of Refugee Status

In any fundamental right of a refugee before any High Court, the issue of locus standi cannot be a limitation because of the preamble to the FREP Rules has laid to rest and provides that “no human rights case may be dismissed or struck out for want of locus standi”. On that premise, any fundamental right application can be brought on behalf of a refugee or by a refugee whose rights has been, or likely to be breached.

Furthermore, Article 7(a) of the African Charter[6]has also guaranteed the right of every individual to appeal to competent national organs against acts of violation of their fundamental rights as recognized by conventions, laws, regulation and customs in force.

In the case of Ohakosim V Commissioner of Police, Imo State[7] it was held that by virtue of Cap A9, laws of the federation of Nigeria, 2004, the African Charter constitutes part of the laws of Nigeria and must be upheld by all courts in the country. In Abacha V Fawehinmi[8] it was held that since the charter has become part of our domestic laws, the enforcement of its provisions like all our other laws falls within the judicial powers of the courts as provided by the constitution and all other laws relating thereto.

Conclusively, the only legal mechanism of enforcing the fundamental rights in Nigeria is through the Federal or State High Court of each state and the refugees in Nigeria also has the right to access to court and therefore, their fundamental right can be enforced through the court.

Termination of Refugee Status

Refugees have a temporary status and this status may be terminated in diverse manner. The termination of refugee status means that the refugee cease to be refugee and his benefits, privileges or rights as a refugee are withdrawn in the country of refuge and the obligations he owns the country ceases.

Read also: Overview of the Concept of Human Rights

Article 1 of both the UNO and OAU convention provides for occasions when a refugee status ceases. The convention shall cease to apply on a person

  1. Who has voluntarily relieved himself of the protection of the country of his nationality
  2. Who having lost his nationality has voluntarily reacquired it
  3. Who has acquired a new nationality and enjoys the protection of the country of his new nationality
  4. Who has voluntarily re-established himself in the country which he left or remained outside owing to fear of persecution
  5. Who can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to continue to refuse to avail himself of the protection of the country of his nationality or in the case of a stateless person is able to return to the country of his habitual residence

Furthermore, the OAU convention does not deal expressly with stateless refugees. The Convention also stipulates that it shall cease to apply where the refugee has committed serious non-political crime outside his country of refugee after the purposes and objective of the convention.

Read also: Boustany Foundation 2022 Cambridge University MBA Scholarship

Legal Mechanisms for the Enforcement of the Fundamental Right of Refugees and Termination of Refugee Status

By way of emphasize, the refugee status can be terminated in any of the following ways

  1. Naturalization: this is one of the ways of termination of refugee status recognized by law. Naturalization occurs when a person becomes subject or citizen of a state where he was previously an alien. It involves the acquisition of the nationality of country in question. Section 27[9] provides for how and who is qualified for citizenship by naturalization. (1) Subject to the provisions of section 28 of this constitution, any person who is qualified in accordance with the provisions of this section may apply to the president for the same of a certificate of naturalization.

Furthermore, section 17[10]  a subject to the provisions of relevant laws and regulation relating to naturalization, the federal commissioner shall use his best endeavors to assist a refugee, who has satisfied the criteria relating to the acquisition of Nigeria nationality, to acquire the status of naturalization under such relevant laws and regulations.

  1. Repatriation: this is the sending or returning back of refugee to their country of origin. It can be forceful or voluntarily. A voluntary repatriation connotes two things; the refugees returns home willfully and the relationship between citizen and homeland is re-established. Voluntary repatriation is the most preferred durable solution to the refugee problems.

In the case of repatriation of Nigerian refugees for instance, the reason that triggered their exile has not yet been settled, they are returned to Nigeria while the Taliban group Boko Haram is still continuing with its insurgency.

The UNHCR through its handbook has laid down grounds for voluntary repatriation, for repatriation to be voluntary, it must not be forced, it should be done in a safe and dignified manner and that whatever triggered the refugees to go to exile must have changed significantly so that those who decide to return home should feel secure in doing so.[11] According to UNHCR, repatriation is no longer voluntary when host countries do not give the refugees the option to decide on their return.

  1. Expulsion: This is the act of expelling or the state of being expelled and it is one of the ways a refugee status can be terminated. Section 16(1)[12] provides; a refugee may be detained or expelled for reasons of national security or public order provided that no refugee shall be expelled to a country where he has reasons to fear persecution. This provision was reiterated in Article 32 OAU 1967.

 

[1] (1991) 6 NWLR (PT 200) 708 @761

[2] (Cap A9) LFN 2004

[3] Fundamental Rights Enforcement Procedure Rules 2009

[4] (2007) 20 WRN 170

[5] (2006) 45 WRN 145

[6] African Charter on Human and Peoples’ Rights Cap A9, LFN 2004

[7] (2009) 15 NWLR (PT 1164) 229

[8] (2000) 6 NWLR (PT 660) 228 @ 289

[9] CFRN, 1999

[10] National Commission for Refugee  Act

[11] UNHCR Handbook, 2004

[12] National Commission for Refugees  Act

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