Article 11 Refugee Status Determination and The Rights of Recognized Refugees Uganda.

International Journal of Refugee Law Vol. 24 No. 3 pp.
561–578
© The Author (2012). Published by Oxford University Press. All rights reserved.
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doi:10.1093/ijrl/ees036, Advance Access published on August 20, 2012
Refugee Status Determination and the Rights

of Recognized Refugees under Uganda’s
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Refugees Act 2006
Marina Sharpe* & Salima Namusobya†
Abstract
In 2006 Uganda passed new domestic legislation relating to refugees, replacing the anti-
quated Control of Alien Refugees Act of 1964. The Refugees Act 2006, which represents
a significant improvement on its predecessor, entered into force in 2008 and regulations to
operationalize it were passed in 2010. This article describes the Act’s rights framework and
the process of refugee status determination under it, and analyses those rights guaranteed
by the Act to recognized refugees that fall below regional and international benchmarks.
It argues that the guarantees regarding freedom of movement and residence, freedom of
association and expression, and the right to work are insufficient when measured against
the standards guaranteed by regional and international refugee and human rights instru-
ments to which Uganda has acceded.
1. Introduction
Uganda is one of sub-Saharan Africa’s principal refugee hosting coun-
tries. It has provided asylum for several major groups in flight, most nota-
bly Rwandans fleeing the 1994 genocide, Congolese escaping ongoing
armed conflict, and Sudanese fleeing the SPLA/M struggle. Its new refu-
gee law, on 24 May 2006, repealed the ‘oppressive and archaic’1 Control
of Alien Refugees Act 19642 (CARA), and marks a significant legislative
step towards the rationalisation of refugee status determination (RSD) and
the protection of the rights of Uganda’s 140,382 recognized refugees,3
as enshrined in the 1951 Convention relating to the Status of Refugees4
*
DPhil candidate and Trudeau Scholar, Faculty of Law, University of Oxford. The author previously
worked as a Legal Advisor at the Refugee Law Project, School of Law, Makerere University, Kampala,
Uganda; and as Legal Officer of the International Refugee Rights Initiative, also in Kampala.
†
Senior Legal Advisor, Refugee Law Project, School of Law, Makerere University, Kampala,
Uganda.
The authors are grateful to Jason Pobjoy for his comments on a draft of this article, and for com-
ments received from an anonymous referee. An early draft of this article was presented at a University
of Oxford Refugee Studies Centre workshop on refugee status determination and rights in east and
southern Africa. The workshop was held in Kampala in November 2010.
1
Refugee Law Project, Kampala, ‘Critique of the Refugees Act 2006’ (undated) 2 (RLP).
2
Uganda Control of Alien Refugees Act 1964.
3
As at Mar 2010, Government of Uganda statistics.
4
Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 Apr
1954) 189 UNTS 137.
562 Marina Sharpe and Salima Namusobya
(the 1951 Convention) and regional and international human rights law.
However, the situation for refugees in Uganda still fails in certain respects
to reach regional and international benchmarks. Particular deficiencies of
the Refugees Act 20065 (the Refugees Act or the Act), coupled with issues
of implementation,6 have led to a protection situation characterized by the
widespread and systemic violation of certain critical refugee rights.
This article describes the Refugees Act’s rights framework and, in
practical terms, the RSD procedures under the Act, and provides a
critical assessment of those refugee rights that fall particularly short
of Uganda’s obligations under regional and international refugee and
human rights law. It should, however, be stressed at the outset that the
Refugees Act is largely reflective of Uganda’s regional and international
obligations, as will be demonstrated in the description of the Act’s rights
framework below. While there remains room for improvement, the
Refugees Act should be praised. It is ‘progressive [and] human rights
and protection oriented’7 and represents a significant improvement on
the CARA.
The article begins with background on Uganda’s legal system and
human rights and refugee situation. This is followed by a descrip-
tive overview of the Refugees Act as a whole, with a focus on its rights
framework and the strengths thereof. Section 4 then describes the RSD
process in Uganda,8 in real terms rather than by reference to the Act as
its Regulations,9 which operationalize the RSD procedures the Act estab-
lishes, were not published until 2010 and have yet to be implemented.
The procedure for RSD thus remains largely based on the system that was
prevailing before the adoption of the 2006 Act. The article then moves on
to the legal analysis of rights under the Refugees Act, and those rights that
fall particularly short of regional and international standards are assessed
against relevant refugee and human rights instruments. As will emerge
below, the guarantees that fall short of relevant benchmarks are those for
freedom of movement and residence, freedom of association and expres-
sion, and the right to work.
5
Uganda Refugees Act 2006.
6
Such issues are beyond the scope of this article, however, it is worth briefly mentioning some of the
main implementation issues prevailing in Uganda since the Act’s 2008 entry into force: the Refugee
Appeals Board has yet to be established, there is no procedure for the naturalisation of refugees, it
remains difficult for refugees to obtain a travel document, and services remain concentrated in the
refugee settlements despite the Act’s provisions on freedom of movement, which are discussed below.
7
RLP, above n 1, 3.
8
An analysis of whether individualized RSD in Uganda – as it is prescribed in the Act and as it
plays out in practice – conforms with international standards, as described in UNHCR’s ‘Handbook
on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967
Protocol relating to the Status of Refugees’, is beyond the scope of this article. RLP, ibid, provides an
excellent critique of the Refugees Act, with significant attention devoted to RSD under it.
9
Uganda Refugees Regulations 2010 (the Regulations).
RSD and Refugee Rights in Uganda 563
2. The Ugandan legal context
Uganda is a common law jurisdiction with its laws based on those of the
United Kingdom, from which Uganda gained independence in 1962. Its
1995 Constitution,10 Uganda’s third since independence, was adopted
after a long process of public consultation and debate. In its latest itera-
tion, the Constitution reaffirms the separation of powers fundamental to
the rule of law, in particular the independence of the judiciary, and creates
a Human Rights Commission to monitor the human rights situation in
Uganda. This includes supervision of Uganda’s Bill of Rights.
In addition to domestic human rights law, Uganda has ratified a num-
ber of regional and international instruments. Of particular relevance
here are the African Charter on Human and Peoples’ Rights11 (ACHPR),
which Uganda ratified without reservation in 1986; the International
Covenant on Civil and Political Rights12 (ICCPR), which it ratified with-
out reservation in 1995; the International Covenant on Economic, Social
and Cultural Rights13 (ICESCR), which it ratified without reservation in
1987; the 1969 Organization of African Unity Convention Relating to
the Specific Aspects of Refugee Problems in Africa (OAU Convention),14
which it ratified in 1987; and the 1951 Convention and its 1967 Protocol,15
both of which Uganda ratified in 1976. The impressive legal architecture
has not, however, always translated into respect for human rights in prac-
tice. The rule of law remains weak and Human Rights Watch, among
other organisations, has repeatedly reported gross human rights violations,
including arbitrary detention and the use by the government of torture.16
While human rights have at the very least received legislative attention
since independence, the specific rights of refugees have been neglected,
despite Uganda’s long history as a refugee-hosting nation. The earliest record
of refugees in Uganda pre-dates independence. In the late 1930s, over 7,000
refugees from Cyprus, Egypt, Italy, Palestine, Poland, and Syria found asylum
10
Constitution of the Republic of Uganda 1995.
11
African Charter on Human and Peoples’ Rights (adopted 27 Jun 1981, entered into force 21 Oct
1986) 21 ILM 58 (1982) (ACHPR).
12
International Covenant on Civil and Political Rights (adopted 16 Dec 1966, entered into force 23
Mar 1976) 999 UNTS 171 (ICCPR).
13
International Covenant on Economic, Social and Cultural Rights (adopted 16 Dec 1966, entered
into force 3 Jan 1976) 993 UNTS 3.
14
OAU Convention Governing Specific Aspects of Refugee Problems in Africa (adopted 10 Sept
1969, entered into force 20 Jun 1974) CAB/LEG/24.3.
15
Protocol relating to the Status of Refugees (adopted 31 Jan 1967, entered into force 4 Oct 1967) 606
UNTS 267.
16
See, eg, Human Rights Watch, ‘Uganda: Act Swiftly on Long Term Detainees’ (Press Release),
<http://www.hrw.org/en/news/2009/06/24/uganda-act-swiftly-long-term-detainees> accessed 23
Oct 2010; and Human Rights Watch, ‘Uganda: Kenyan Activists at Risk of Torture’ (Press Release),
<http://www.hrw.org/en/news/2010/09/16/uganda-kenyan-activists-risk-torture> accessed 23 Oct
2010.
in the British protectorate of Uganda.17 Ultimately, these refugees were repa-
triated or resettled to Europe.18 The essentially temporary character of early
flight to Uganda coloured colonial refugee policy, which in turn influenced
the 1955 Control of Refugees from the Sudan Ordinance – enacted to deal
with refugees from the Anyanya civil war19 – and, later, the CARA. Under
both instruments, refugees were viewed as a temporary phenomenon to be
addressed on a largely ad hoc basis.20 Moreover, they were essentially unwel-
come. Kiapi notes that the CARA ‘appears to make refugees intruders who
are not readily welcome and who, therefore, have to be strictly confined to
remote settlements’.21 The effect of this approach was significant: according
to Mwalimu, Uganda started the African ‘trend’ of control-oriented refugee
legislation.22
As mentioned above, Uganda ratified the 1951 Convention and its 1967
Protocol in 1976, at which time it also entered several ‘draconian’23 res-
ervations and declarations.24 Most notable is the reservation to article 32,
in which Uganda purports to preserve its right to expel any refugee at
any time, except insofar as such expulsion would contravene the article 33
norm against refoulement.25 It is hard to conceive of a situation where the
expulsion of a recognized refugee to his or her country of origin would
not constitute refoulement. The reservation to article 32 may therefore be
invalid.26
Even bearing Uganda’s reservations and declarations to the 1951
Convention in mind, the CARA violated many of the refugee rights
Uganda agreed to respect by ratifying it. Moreover, the CARA became
unconstitutional in several respects in 1995 with the adoption of the new
Constitution.27 However, it would be another 30 years before Uganda,
through the adoption of the Refugees Act, brought its domestic law into
closer conformity with its regional and international obligations. During
17
S Tindifa, ‘Refugees and Human Rights in Uganda: A Critical Assessment of the Law, Policy and
Practice’ (1998) 5 East African Journal of Peace and Human Rights 53.
18
ibid.
19
G Verdirame and B Harrell-Bond, Rights in Exile: Janus Faced Humanitarianism (Berghan Books,
2004), 29.
20
A Kiapi, ‘The Legal Status of Refugees in Uganda’ (1997) 3 East African Journal of Peace and
Human Rights 115.
21
Kiapi, ibid, 122.
22
C Mwalimu, ‘The Legal Framework on Admission and Resettlement of African Refugees with an
Emphasis on Kenya, Tanzania, and Uganda’ (2004) 18 Emory International Law Review 455, 464.
23
Verdirame and Harrell-Bond, above n 19, 29.
24
Uganda reserved arts 7, 13, 15, 25, and 32 of the 1951 Convention. It entered declarations in
respect of arts 8, 9, 16, and 17.
25
Section 40 of the Act reflects this reservation, allowing the Minister responsible for refugees to
‘order the expulsion of any recognized refugee from Uganda, if the Minister considers the expulsion
to be necessary or desirable in the interest of national security or public order’.
26
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 Jan
1980) 1155 UNTS 331 (VCLT), art 19(c).
27
For an analysis of the CARA, see Verdirame and Harrell-Bond, above n 19, 29–31.
this time, academics and activists regularly highlighted the divergence
between regional and international refugee law, on the one hand, and
Ugandan refugee law on the other. Writing in 1996, for example, Kiapi
noted, ‘there is … no short-cut to the overhaul of the legal framework
in Uganda in order to make it conform with the letter and the spirit of
international and regional instruments governing the area’.28 Recognising
this, the government refrained from implementing the CARA to the let-
ter, applying it mostly to situations of mass influx but implementing prac-
tices in respect of individual refugees that were at least partly informed by
Uganda’s regional and international obligations.29
3. Overview of the Refugees Act

The Refugees Act was tabled in 1998 and passed in 2006. It entered into
force in 2008, and the Regulations to operationalize it were finalized in
2010. It is organized in six parts, the first and last being devoted to prelimi-
nary and miscellaneous matters respectively.
Part II covers the determination of refugee status. It includes refugee
definitions based on those of the 1951 Convention,30 to which it adds
failure to ‘conform to discriminating gender practices’ as an additional
ground of persecution,31 and on the broader OAU Convention defini-
tion.32 All rights in the Act are guaranteed regardless of the definition
under which a refugee is recognized. Part II also deals with exclusion33
and cessation.34 The exclusion clause follows the formulation of the OAU
Convention (which itself is based on the 1951 Convention), with the addi-
tion of a fourth ground of exclusion, disqualifying from refugee status a
dual national who has not availed him or herself of the protection of his
or her other country of nationality.35 The cessation clause also follows the
OAU Convention (which, again, is based on the 1951 Convention), with
the addition of surrender as a basis of cessation.36
Part III deals with administrative matters relating to refugees. It estab-
lishes the Refugee Eligibility Committee (REC) and Appeals Board and
prescribes the procedures by which each operates.37 It also establishes the
28
Kiapi, above n 20, 129.
29
Kiapi, ibid, 122. See also L Hovil and M Okello, ‘The Right to Freedom of Movement for Refugees
in Uganda’ in D Hollenbach (ed), Refugee Rights: Ethics, Advocacy and Africa (Georgetown University Press,
2008), 77–90, 82.
30
Refugees Act, above n 5, ss 4(a) and (b).
31
ibid, s 4(d).
32
ibid, s 4(c).
33
ibid, s 5.
34
ibid, s 6.
35
ibid, s 6(1)(d).
36
ibid, s 6(1)(b).
37
ibid, ss 11–17.
Office of Refugees, which serves as, among other things, the secretariat of
the REC,38 and creates the public office of Commissioner for Refugees.39
Part IV sets out the procedures for RSD, which are discussed in practical
terms in section 4 below.
Part V deals with refugee rights. It begins by noting that:
every refugee is entitled to the rights and shall be subject to obligations provided
for or specified in (a) the [1951] Geneva Convention; (b) the OAU Convention;
and (c) any other convention or instrument relation to the rights and obligations
of refugees to which Uganda is a party.40
The latter reference, reflecting article 5 of the 1951 Convention, may
refer to certain regional human rights instruments, which contain several
provisions pertaining specifically to refugees.41 Moreover, it could arguably
refer to general human rights law, since such rights are generally owed to
‘everyone’, including refugees. This issue is discussed in greater detail below.
Section 29,42 within part V, lays out most of the rights of recognized
refugees in Uganda; some rights, such as to freedom of movement and
to a travel document, benefit from their own section. Section 29, and the
dedicated sections on refugee rights generally, reflect the rights laid out
in articles 3 to 34 of the 1951 Convention. However, the structure of the
Act differs from that of the 1951 Convention and there are some impor-
tant omissions. Importantly, the gradations of treatment dependent on the
refugee’s degree of attachment to the host state that characterize the 1951
Convention do not feature in the Act; all rights therein accrue only to
‘refugees’, who are defined at section 2 as individuals who have been rec-
ognized as such by the REC or on a prima facie basis as provided for under
section 25. A second fundamental structural difference relates to the use of
reference groups: the Act includes only one, ‘aliens generally in similar cir-
cumstances’, while the 1951 Convention employs ‘aliens generally’, ‘aliens
generally in the same circumstances’, a most-favoured foreigner standard,
and a citizen standard. Section 29(1)(e) lists those rights in respect of
which refugees must receive treatment in accordance with ‘aliens gener-
ally in similar circumstances’: rights regarding moveable and immovable
property,43 the transfer of assets,44 public education above the elementary
38
ibid, ss 7–8.
39
ibid, s 9.
40
ibid, s 28.
41
African Charter on the Rights and Welfare of the Child (adopted 11 Jul 1990, entered into force
29 Nov 1999) OAU Doc CAB/LEG/24.9/49, art 23 (Child’s Rights Charter); Protocol to the African
Charter on Human and Peoples’ Rights on the Rights of Women in Africa (adopted 11 Jul 2003,
entered into force 25 Nov 2005), arts 4(2)(k), 10(2)(c) & (d), and 11(3).
42
In Uganda, ‘section’ is used in reference to all acts of parliament; ‘article’ is used only in reference
to the Constitution and international instruments.
43
Refugees Act, above n 5, s 29(1)(e)(i).
44
ibid, s 29(1)(e)(ii).
level, self-employment, liberal professions, and wage-earning employ-
45 46 47
ment.48 All other rights guaranteed under the Act – to an identity card49 or
travel document,50 to remain,51 to non-discrimination,52 to administrative
assistance,53 to freedom of religion,54 to freedom of association,55 to access
the courts,56 and to freedom of movement57 – are protected without refer-
ence to any other group.
The rights enumerated above evidence the range of 1951 Convention
refugee rights that find expression in Uganda’s domestic refugee law.
Several, however, are missing. Most international refugee rights omitted
from the Refugees Act relate to welfare: articles 20, 21, 23, and 24 of the
1951 Convention on rationing, housing, public relief, and labour legisla-
tion and social security, respectively, are not protected under the Act.
Uganda did not make reservations to any of these welfare rights when it
ratified the 1951 Convention, however, given that Uganda struggles to
provide its own citizens with even basic social security, it is understand-
able that it is not in a position to guarantee such rights to non-nationals.
The only other international refugee right not explicitly protected under
the Refugees Act is that to artistic and industrial property, which is guar-
anteed by article 14 of the 1951 Convention; Uganda did not reserve this
provision. Certain other internationally guaranteed refugee rights not
explicitly protected under the Refugees Act nevertheless find expression
there. For example, the 1951 Convention’s provision on fiscal charges58
does not feature in the Refugees Act, however the Act does provide that
refugees in Uganda must pay taxes ‘in accordance with the applicable
tax laws of Uganda’.59 Uganda’s income tax law does not distinguish
between nationals and refugees, thereby achieving the same result as if
the 1951 Convention’s provision on fiscal charges had been explicitly
included.
While some 1951 Convention rights are omitted from the Refugees
Act, in many respects the Act goes beyond its international counterpart.
For example, the Refugees Act explicitly allows recognized refugees the
45
ibid, s 29(1)(e)(iii).
46
ibid, s 29(1)(e)(iv).
47
ibid, s 29(1)(e)(v).
48
ibid, s 29(1)(e)(vi).
49
ibid, s 29(1)(a).
50
ibid, s 31.
51
ibid, s 29(1)(b).
52
ibid, s 29(1)(c).
53
ibid, s 29(1)(d).
54
ibid, s 29(1)(f).
55
ibid, s 29(1)(g).
56
ibid, s 29(1)(h).
57
ibid, s 30.
58
1951 Convention, above n 4, art 29.
59
Refugees Act, above n 5, s 35(f).
right to remain in Uganda,60 a result that is arguably implicit in, but is by
no means explicitly provided for by, the 1951 Convention. Moreover, the
lack of an elaborate structure of reference groups means that, in many
instances, recognized refugees in Uganda benefit from a higher stan-
dard of treatment than would be the case under the 1951 Convention
alone. For example, the 1951 Convention guarantees rights of associa-
tion as regards non-political and non-profit-making associations and trade
unions on the same basis as ‘the most favourable treatment accorded to
nationals of a foreign country, in the same circumstances’.61 The Refugees
Act, by contrast, provides simply that refugees in Uganda ‘have a right
of association as regard non-political and non-profit making associations
and trade unions’,62 thereby freeing refugees from any restrictions that
may be placed on the rights of non-nationals more generally. Finally, the
Refugees Act includes sections specifically guaranteeing the rights of refu-
gee women63 and children.64 Both provisions explicitly guarantee rights for
women and children set out in the pertinent international instruments: the
Convention on the Elimination of All Forms of Discrimination Against
Women;65 and the ACHPR with respect to women; the rights contained in
Uganda’s Children Act;66 the African Charter on the Rights and Welfare
of the Child;67 the Convention on the Rights of the Child;68 and the 1951
Convention in relation to children.
4. Refugee status determination in practice

Individuals seeking asylum in Uganda will generally arrive at one of the
rural refugee settlements69 or at the capital, Kampala. The first port of call
for refugees in Kampala is the Refugee Front Office at the police station in
the Old Kampala neighbourhood. The Refugee Front Office is staffed by
officers of the Criminal Investigation Division’s Crime Intelligence Unit.
These officers record basic bio-data, provide the refugee with an ‘asylum
seeker registration slip’, which includes a registration number, and inform
the refugee that, in two days time, he or she should undergo a second
registration procedure, this time with the Directorate of Refugees under
60
ibid, s 29(1)(b).
61
62
Refugees Act, above n 5, s 29(1)(g).
63
ibid, s 33.
64
ibid, s 32.
65
Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 Dec
1979, entered into force 3 Sept 1981) 1249 UNTS 13.
66
Uganda Children Act, ch 59, 1996.
67
Child’s Rights Charter, above n 41.
68
Convention on the Rights of the Child (adopted 20 Nov 1989; entered into force 2 Sept 1990) 1577
UNTS 3.
69
‘Settlement’ is the largely euphemistic Ugandan government term for what is really a refugee
camp.
the Ministry of Disaster Preparedness and Refugees in the Office of the
Prime Minister (OPM). Upon presentation of the asylum seeker registra-
tion slip at OPM, the Office issues the refugee with a ‘temporary asylum
seeker attestation’ and an identification document that is valid for 90 days,
renewable until a decision is reached on refugee status. The refugee must
then undergo a third and final registration, this time with the office of the
United Nations High Commissioner for Refugees (UNHCR), via its imple-
menting partner InterAid. Throughout this process, no material assistance
is provided, as government and UNHCR policy is that, to be eligible for
assistance, asylum seekers must reside in a rural settlement.
Refugees who arrive at one of the refugee settlements report to the set-
tlement commandant and then register with UNHCR. Temporary shelter
is provided at the settlement’s reception centre pending the decision on
refugee status by the camp commandant in the case of prima facie status
determination, or the REC in the case of individual status determination.
Once the process of registration is complete, refugees undergo status
determination. Refugee status was, until recently, granted on a prima facie
basis to all refugees from the Democratic Republic of Congo (DRC) and
Sudan – who constituted the vast majority of Uganda’s refugee popula-
tion – pursuant to section 25 of the Refugees Act. A few days after reg-
istration with the Refugee Front Office, a Kampala-based refugee from
either the DRC or Sudan would receive a letter from OPM confirming his
or her status and referring him or her to one of the rural refugee settle-
ments, where a plot of land and basic material assistance – including food
and non-food items such as seeds, hoes, blankets, basins, and saucepans
– would be provided by OPM and UNHCR respectively. (In practice, a
refugee who deems him or herself self-sufficient may choose to remain in
Kampala, although under the Refugees Act explicit permission is required
to do so.) If refugee status was determined on a prima facie basis in a settle-
ment, the refugee would then be relocated from the reception centre to a
plot of land and would receive basic material assistance.
Since 2007, however, status determination has largely been carried out
on an individualized basis.70 Adjudication is the responsibility of the REC,
which represents ten different government departments including the Office
of the President, the Ministry of Justice and Constitutional Affairs, and all
security organs of government. UNHCR sits on the REC in an advisory
capacity and the Commissioner for Refugees (or his or her representative) is
an ex-officio member. The REC interviews refugees in the settlements, how-
ever, refugees in Kampala are interviewed by the Refugee Front Office at
Old Kampala police station. Interpretation services are not provided at these
interviews. Notes from the Refugee Front Office interviews are transmitted
70
B Rutinwa suggests the general reasons behind this shift in ‘The End of Asylum? The Changing
Nature of Refugee Policies in Africa’ (2002) 21 RSQ 12.
to the REC, however, neither refugees nor any legal representatives may
appear in person before it.71 The REC must make a decision within 90 days
of the status determination interview72 – although in practice this may take
up to two years, and there is no formalized fast track procedure for vulner-
able cases – and must inform the refugee of its decision in writing within
14 days.73 Uganda’s rate of refugee recognition is high, at approximately
95 per cent. The REC only provides rejected asylum seekers with written
reasons for its decision.74 Rejections are often based on miscommunications
in Refugee Front Office interviews owing to language barriers.
Rejected claims are appealable to the Appeals Board within 30 days of
the negative decision,75 however, this body has yet to be put in place. For
the time being, appellants are re-interviewed by an OPM officer or at the
Refugee Front Office, depending on whether the individual resides in a
settlement or in Kampala. Once it is established, the Appeals Board will
examine appeals. However, lacking the authority to make its own deci-
sions, the Appeals Board will either confirm the REC’s negative decision
or set it aside and refer the matter back to the REC for reconsideration.
Under regulation 39 of the Regulations, a person dissatisfied with the deci-
sion reached on appeal may apply to a court for judicial review. Assuming,
however, that the process of RSD results in the recognition of refugee
status, a refugee in Uganda can expect to enjoy those rights set out at
articles 3–34 of the 1951 Convention, with three important exceptions.
These exceptions are examined in section 5 below.
5. Critical analysis of the legal framework for refugee

rights in Uganda
Refugees who are recognized as such, whether individually or on a prima
facie basis, benefit from the range of rights set out in part V of the Refugees
Act, titled ‘Rights and Obligation of Refugees’. As mentioned above, the
section begins by noting that in addition to the Act refugees benefit from
the rights enshrined in the 1951 Convention, the OAU Convention and
‘any other convention or instrument relating to the rights and obligations
of refugees to which Uganda is a party’.76 This language is susceptible to
two different interpretations.
On the one hand, the list clearly omits international human rights
instruments such as the ICCPR. In confining itself to instruments ‘relating
71
The Act provides for formal written asylum applications and legal representation, however, these
have yet to be implemented.
72
Refugees Act, above n 5, s 20(2).
73
ibid, s 20(3).
74
ibid, s 20(4).
75
ibid, s 21.
76
ibid, s 28(c).
to the rights and obligations of refugees’, the Refugees Act excludes the
77
many guarantees from which refugees benefit under regional and inter-
national human rights law. On the other hand, refugees clearly benefit
from instruments such as the ICCPR under international law. Indeed,
article 2(1) of the ICCPR prohibits discrimination in the enjoyment of
rights on the basis of national origin or other status. This was affirmed
by the Human Rights Committee, which noted that ‘the rights of the
Covenant must be guaranteed without discrimination between citizens
and aliens’.78 Therefore, ‘any other convention or instrument relating
to the rights and obligations of refugees’ may be interpreted as includ-
ing regional and international human rights instruments. Following the
principle of statutory construction favouring plain, literal meanings, it is
likely that the first interpretation – excluding regional and international
human rights law from incorporation within the Refugees Act – reflects
the Ugandan legislature’s intent. However, states cannot override their
international obligations with domestic legislation.79 Therefore, regard-
less of one’s interpretation of section 28(c) of the Refugees Act, refu-
gees remain beneficiaries of regional and international human rights law.
These instruments and particular areas of divergence between them and
the Refugees Act will be examined below.
First, however, it is important to note a general shortcoming of the Act,
unrelated to any right in particular. As mentioned above, due to the declar-
ative nature of refugee status, the 1951 Convention guarantees its rights to
refugees before their formal recognition as such; it also protects, to varying
degrees, the rights of refugees physically present and lawfully present. The
rights framework applicable under the Refugees Act, by contrast, applies
only to formally recognized refugees, leaving asylum seekers with no spe-
cific protections beyond those provided by human rights law more gener-
ally and violating the ‘government’s legal duty to grant convention rights
to all persons under its jurisdiction who are in fact refugees’,80 whether or
not they have been authenticated as such.
5.1 Benchmarks
Uganda’s regional and international obligations under the Universal
Declaration of Human Rights81 (UDHR), the ACHPR, the ICCPR, the
ICESCR, and the 1951 Convention are the benchmarks against which the
77
Emphasis added.
78
UNHRC, General Comment 15, ‘The Position of Aliens Under the Covenant’ (1986) in
‘Compilation of General Comments and General Recommendations adopted by Human Rights
Treaty Bodies’ (1994) UN doc HRI/GEN/1/Rev.1, para 2.
79
VCLT, above n 26, art 27.
80
J Hathaway, ‘What’s in a Label’ (2003) 5 European Journal of Migration and Law 1, 3.
81
Universal Declaration of Human Rights (adopted 10 Dec 1948) UNGA res 217 A(III) (UDHR).
Refugees Act’s rights framework is measured.82 Aspects of the Refugees
Act that do not meet the standards set by these instruments contravene
regionally and internationally agreed protection standards. Furthermore,
although Uganda traditionally follows the dualist approach to international
law – pursuant to which international treaties are not municipally enforce-
able until domestication by an act of parliament – the aforementioned
treaty obligations may also be owed domestically as a result of recent juris-
prudence suggesting a shift away from strict dualism. In Uganda Law Society
and Jackson Karugaba v Attorney General, it was held that international treaties
to which Uganda is party are of direct domestic effect.83
When using regional and international human rights obligations as
benchmarks against which to measure domestic law, one must bear res-
ervations and declarations in mind. As mentioned above, Uganda rati-
fied each of the ACHPR, ICCPR, and ICESCR without reservation. As
a resolution of the United Nations General Assembly, the UDHR is of
course not subject to reservations or declarations. It does, however, contain
a general limitation clause, included in recognition of the fact that not all
rights are absolute. The provision provides:
[i]n the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due recogni-
tion and respect for the rights and freedoms of others and of meeting the just require-
ments of morality, public order and the general welfare in a democratic society.84
The general nature of this provision makes it difficult, in a short arti-
cle such as this, to assess whether particular restrictions imposed by the
Refugees Act contravene the customary international law that some argue
is expressed by the UDHR. The UDHR is therefore only discussed in a
general sense. Detailed treatment of whether certain restrictions on ref-
ugee rights under the Refugees Act violate Uganda’s obligations under
regional and international law is limited to the ACHPR, the ICCPR, the
ICESCR, and the 1951 Convention. Reservations to the 1951 Convention
are mentioned where relevant in the analysis that follows.
5.2 Freedom of movement and residence

Everyone within a territory has the right to move freely inside that terri-
tory and to choose his or her place of residence within it.85 The content
82
The OAU Convention confers neither civil and political, nor socio-economic rights – such
are derived from the 1951 Convention – and so it is not, in and of itself, a relevant benchmark.
Benchmarking against human rights instruments aimed at particular vulnerable groups, such as the
Convention on the Elimination of all Forms of Discrimination against Women and the Convention on
the Rights of the Child, is beyond the scope of this article.
83
Uganda Law Society and Jackson Karugaba v Attorney General, constitutional petitions nos 2 and 8, 2002.
84
UDHR, above n 81, art 29(2).
85
ICCPR, above n 12, art 12(1).
of the right has been elaborated by, among others, the Human Rights
Committee, which states:
[t]he right to move freely relates to the whole territory of a State, including all
parts of federal States. … [P]ersons are entitled to move from one place to another
and to establish themselves in a place of their choice. The enjoyment of this right
must not be made dependent on any particular purpose or reason for the person
wanting to move or to stay in a place.86
This right is guaranteed by the UDHR (at article 13), the ACHPR (at
article 12), the ICCPR (at article 12), and the 1951 Convention (at arti-
cle 26), however, under each instrument the right may be limited. The
ACHPR guarantees the right to freedom of movement and residence to
every individual ‘so long as he abides by the law’.87 Under the ICCPR, the
right only attaches to individuals whose presence in the territory is lawful,88
and restrictions ‘which ... are necessary to protect national security, public
order (ordre public), public health or morals or the rights and freedoms of
others, and are consistent with the other rights recognized in the pres-
ent Covenant’89 are permitted. The 1951 Convention allows freedom of
movement and residence to be ‘subject to any regulations applicable to
aliens generally in the same circumstances’.90
The scope of freedom of movement under the Refugees Act is similarly
subject to restrictions. Section 30(1) of the Refugees Act provides that all
refugees in Uganda are entitled to freedom of movement, but section 30(2)
provides that this right may be restricted in line with the laws of Uganda
or the directions of the Commissioner for Refugees applicable to aliens
generally in the same circumstances, ‘especially on grounds of national
security, public order, public health, public morals or the protection of the
rights and freedoms of others’. This limit is elaborated when read with
section 44(1)(b), which provides that the Minister for Refugees may desig-
nate public lands for the ‘local settlement and integration’ of recognized
refugees; any refugee who wishes to reside outside such designated areas
must apply to the Commissioner for permission to do so.91 Furthermore, as
a matter of policy, only refugees residing in the settlements are eligible for
humanitarian assistance.92 The notable absence from the Act of freedom
of residence contrasts with the above-mentioned instruments, which all
guarantee such freedom alongside freedom of movement.93
86
UNHCR, General Comment 27, ‘Freedom of Movement’ (1999) A/55/40 vol I (2000) 128, para
5 (General Comment 27).
87
ACHPR, above n 11, art 12(1).
88
ICCPR, above n 12, art 12(1); the Human Rights Committee has elaborated upon this require-
ment at para 4 of General Comment 27.
89
ICCPR, ibid, 12(3).
90
91
92
Hovil and Okello, above n 29, 78.
93
It is not entirely clear whether the restriction on refugees’ freedom of
movement and the absence of any freedom of residence under the Refugees
Act violates Uganda’s regional treaty obligations under the ACHPR, pur-
suant to which limitations on freedom of movement and residence are
permitted if the relevant individual has not abided by the law,94 a for-
mulation which affords states broad interpretive discretion. ‘Law’ is not
defined so in the case of Uganda, it could include the Refugees Act, with
the circular result that a refugee who asserts his or her right to freedom of
movement by leaving a settlement without permission has violated the law
and therefore is no longer entitled to the protection of the Charter. Such
an interpretation would, however, vitiate the object and purpose of the
ACHPR article 12 guarantee. Moreover, article 12 has been elaborated
by the African Commission on Human and Peoples’ Rights in a way that
suggests that permissible limitations cannot be based on the violation of an
arbitrary or discriminatory law. In the case of Malawi African Association and
Others v Mauritania,95 it held that the forced eviction of black Mauritanians
from their homes violated, among other provisions, the ACHPR article 12
guarantee of freedom of movement and residence, despite the fact that the
individuals expelled had been convicted of violating Mauritanian law and
indeed were evicted in part as a result of this. It seems likely, therefore, that
the Refugees Act contravenes the ACHPR.
At first sight, it may appear that the ICCPR’s seemingly broad limita-
tion clause makes it unlikely that Uganda’s failure to allow refugees free-
dom of movement and residence contravenes of its obligations under that
instrument. However, the Human Rights Committee has clarified the wide
scope of ICCPR article 12 in its General Comment 27 on Freedom of
Movement, according to which freedom of movement is ‘an indispensable
condition for the free development of a person’96 and:
the permissible limitations which may be imposed on the rights protected under
article 12 must not nullify the principle of liberty of movement, and are governed
by the requirement of necessity provided for in article 12, paragraph 3.97
Confining refugees to settlements arguably nullifies the principle of free-
dom of movement, and it would be difficult to maintain that such confine-
ment is necessary ‘to protect national security, public order (ordre public),
public health or morals or the rights and freedoms of others’.98 Even if
confining refugees to settlements successfully addressed security concerns,
such concerns ‘would have to be sufficiently grave so as to rise to the level
94
95
Malawi African Association and Others v Mauritania, African Commission on Human and Peoples’
Rights, comm nos 54/91, 61/91, 98/93, 164/97 to 196/97, and 210/98 (11 May 2000).
96
General Comment 27, above n 86, para 1.
97
ibid, para 2.
98
of necessity in order to warrant restrictions’. Indeed, Hovil and Okello
99
conclude:
the refugee settlement policy and its attendant restrictions of freedom of move-
ment have not achieved the standards required under international law, and con-
sequently, Uganda has breached the rights of refugees under international …
human rights law.100
The restrictions on freedom of movement and the lack of freedom of
residence for refugees do not, strictly speaking, violate Uganda’s interna-
tional obligations under the 1951 Convention. Article 26 of that instru-
ment permits such limitations as are applicable to ‘aliens generally in the
same circumstances’, meaning that the movement of refugees may be
restricted but no more so than that of other aliens. Uganda’s Constitution
does not afford aliens freedom of movement: article 29(2)(a) grants the
right to Ugandan nationals only. This prevents the restrictions on freedom
of movement imposed by sections 30 and 44 of the Refugees Act from fall-
ing foul of Uganda’s international obligations under the 1951 Convention.
The Constitution, however, is in conflict with the ICCPR. Article 287 of
the Ugandan Constitution provides that international obligations under
treaties in force before the enactment of the Constitution are not affected
by conflicting constitutional provisions. Uganda ratified the ICCPR on 21
June 1995. Its new Constitution entered into force on 22 September 1995.
Thus Uganda’s international obligation under article 12 of the ICCPR
persists and the constitution’s blanket denial of freedom of movement to
non-nationals conflicts with it.
5.3 Freedom of association and expression

Freedom of association and expression are guaranteed by articles 19 and
20 of the UDHR, articles 9 and 10 of the ACHPR, and articles 19 and
22 of the ICCPR. They are not, however, protected in any significant way
by the 1951 Convention.101 That instrument is basically indifferent to the
political rights of refugees,102 the result of concern at the drafting confer-
ence that refugees tend to be more politically active than other immigrants
and that such militancy could threaten security in the host state.103
This concern seems to be reflected in the Refugees Act. Mirroring arti-
cle 15 of the 1951 Convention, section 29(1)(g) of the Refugees Act affords
99
Hovil and Okello, above n 29, 85.
100
ibid.
101
And, to the extent that they are, Uganda has reserved the relevant provision. Art 15 of the
1951 Convention provides refugees lawfully staying with rights of association of a non-political and
non-profit making nature no less favourable than those accorded to aliens generally. Uganda’s reserva-
tion allows it to withhold such rights of association from refugees as a class.
102
J Hathaway, The Rights of Refugees Under International Law (CUP, 2005), 119.
103
Hathaway, ibid, 100.
refugees a right of association ‘as regards non-political and non-profit making
associations and trade unions’. However, section 35(d) of the Act stipulates
that refugees may not ‘engage in any political activities in Uganda, whether
at local or national level’. Moreover, section 35(e) prohibits refugees from
undertaking any political activities against any country, including the refu-
gee’s country of origin. The section 35(e) restriction is based on article 3 of
the OAU Convention, which prohibits refugees from engaging in ‘subversive
activities’ against any OAU (now African Union (AU)) member state. ‘Political
activities’ is much broader than ‘subversive activities’ and, furthermore, the
restriction in the Act goes beyond that in the OAU Convention by prohibiting
political activities against ‘any country’, not just AU member states.
According to the ACHPR, every individual has the right to ‘express and
disseminate his opinions’104 and to ‘assemble freely with others’.105 Each of
these provisions is subject to the same limitation: every individual has the
right to express and disseminate his or her opinion ‘within the law’ and has
the right to free association provided he or she ‘abides by the law’. Even
given the imprecise nature of this limit, the Refugees Act’s blanket prohibi-
tion against refugees’ political activity, within Uganda and ‘against’ other
countries, clearly runs foul of the ACHPR.
The ICCPR provides that the right to freedom of expression includes
the ‘freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in the
form of art, or through any other media of his choice’.106 Furthermore,
‘everyone shall have the right to freedom of association with others’.107
Just as the ICCPR guarantee of freedom of expression is more detailed
than its African counterpart, so too are the limitations that may be placed
on it. Article 19(3) provides that freedom of expression may only be
restricted to protect the rights and reputations of others and for the pro-
tection of national security or public order, health or morals. Article 22(2)
provides that restrictions on freedom of association must be necessary ‘in
a democratic society in the interests of national security or public safety,
public order (ordre public), the protection of public health or morals or the
protection of the rights and freedoms of others’. According to the Human
Rights Committee, restrictions on freedom of expression may not jeopar-
dize the right itself.108 As was the case under the ACHPR, the restriction
on refugees’ political activity under the Refugees Act is much broader
than is permitted by the ICCPR.
104
105
ibid, art 10(1).
106
107
ibid, art 22(1).
108
UNHRC, General Comment 10, ‘Freedom of Expression’ (1983) in ‘Compilation of General
Comments and General Recommendations adopted by Human Rights Treaty Bodies’ (1994) UN doc
HRI/GEN/1/Rev.1, para 11.
5.4 The Right to Work
Everyone has the right to work under article 23 of the UDHR and arti-
cle 15 of the ACHPR. Neither instrument permits limitations on this
right. Employment rights are not protected under the ICCPR. As a
socio-economic right, the right to work is addressed by the ICESCR. In
article 6, it provides that the right to work ‘includes the right of everyone
to the opportunity to gain his living by work which he freely chooses or
accepts’; as a developing country, the ICESCR’s general article 2(3) limi-
tation applies to Uganda. Article 17 of the 1951 Convention guarantees
the right to wage-earning employment to refugees lawfully staying in the
country of asylum on the same basis as ‘the most favourable treatment
accorded to nationals of a foreign country in the same circumstances’.109
Providing a standard of treatment lower than that of the 1951
Convention, section 29(1)(e)(vi) of the Refugees Act guarantees that rec-
ognized refugees shall receive the same treatment as ‘aliens generally in
similar circumstances’ regarding the right to engage in gainful employ-
ment. That the reference group ‘aliens generally in similar circumstances’
is a group with the right to work is suggested by section 35(f) of the Act,
which provides that gainfully employed refugees shall pay taxes, and regu-
lation 64 of the Regulations, which mirrors the 1951 Convention in stat-
ing that refugees may engage in gainful employment according ‘to the
most favourable terms accorded to foreign residents in similar circum-
stances’. Beyond this, however, the Refugee Law Project points out that the
nature of the reference group is unclear.110 Under section 53 of Uganda’s
Citizenship and Immigration Control Act,111 an alien intending to work in
Uganda must obtain an entry permit authorising such work in advance of
arrival. It would clearly be impossible for refugees to undergo any kind of
pre-arrival clearance, as recognized by article 6 of the 1951 Convention,
which provides that ‘in the same circumstances’ should not be interpreted
so as to require a refugee to fulfil a requirement that as a refugee he or
she is incapable of fulfilling. If the reference group is not aliens but per-
manent residents – who do not need any kind of authorisation to work –
then refugees should not be required to obtain a work permit either.112 Yet
109
Art 17 is subject to a declaration by Uganda specifying that it ‘shall not be construed as extending
to refugees the benefit of preferential treatment granted to nationals of the states who enjoy special
privileges on account of existing or future treaties between Uganda and those countries’. This reserva-
tion clearly predicted the free movement of labour in the region that is only now beginning to emerge
within the East African Community and with ongoing work towards the formation of an African
Economic Community. Interestingly, regulation 9 of the Regulations provides, ‘A person who applies
and is granted refugee status in Uganda and is a national of a member state of the East African
Community shall enjoy all the rights and privileges conferred on “community nationals” as set out in
the Treaty and Protocols for the establishment of the East Africa Community’.
110
RLP, above n 1, 23.
111
Uganda Citizenship and Immigration Control Act 1999.
112
RLP, above n 1, 23.
article 64 of the Regulations suggests that refugees need a permit to work.
It states that ‘recognised refugees shall exceptionally be exempt from any
requirement to pay any charges or fees prior to the taking up of any offer
of or to continue in his or her employment’. This exceptional exemption
implies that in most cases refugees are required to obtain and pay a fee for
a work permit. This suggests that the reference group is one other than
permanent residents, in violation of the 1951 Convention’s most favoured
nations approach to the right to work. The Act should specify that ‘aliens
generally in similar circumstances’ refers to permanent residents, who do
not need a work permit, or simply state that refugees do not need to obtain
a permit to work. Moreover, the Ugandan government’s policy of rural
encampment makes it difficult for refugees to realize the right to work,
especially for refugee professionals or those with specialized skills.
6. Conclusion
The 2006 adoption of the Refugees Act marked a significant achievement
in terms of bringing Uganda’s domestic legal framework in line with its
regional and international obligations, thereby better protecting the rights
of refugees in its territory. However, the relevance of regional and inter-
national human rights law for refugees is not clear under the Act, and
particular shortcomings of the Act mean that certain refugee rights guar-
anteed under regional and international law are still systemically infringed
in Uganda. In particular, refugees experience violations of their freedoms
of movement and residence, and association and expression. Refugees’
employment rights under the Act are also problematic. While the legisla-
tive intent seems to be in keeping with Uganda’s regional and interna-
tional obligations, the Refugees Act is not clear on how refugees in Uganda
should go about exercising their right to work.
Uganda should amend certain sections of its Refugees Act. Section 28
on the international sources of refugee rights should be clarified. Section
44 articulating the settlement policy should be deleted, as should section 35
limiting refugees’ political activity. Finally, section 29(1)(e)(vi) on employ-
ment rights should be clarified, specifying that refugees will be treated like
permanent residents for the purposes of the right to work. Such amend-
ments would create a domestic refugee rights framework more reflective
of Uganda’s regional and international obligations under the UDHR,
ACHPR, ICCPR, ICESCR, and 1951 Convention.

Article 11 Refugee Status Determination and The Rights of Recognized Refugees Uganda.

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Article 11 Refugee Status Determination and The Rights of Recognized Refugees Uganda.

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International Journal of Refugee Law Vol. 24 No. 3 pp.

Refugee Status Determination and the Rights

Marina Sharpe* & Salima Namusobya†

3. Overview of the Refugees Act

4. Refugee status determination in practice

5. Critical analysis of the legal framework for refugee

5.2 Freedom of movement and residence

5.3 Freedom of association and expression

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