Assessing the Refugee Claims of the Members of the Mouvement des Forces

Démocratiques in Casamance

Cristiano d’Orsi

• In the 20th century the region defined as“Casamance” has often been subjected toadministrative reorganizations. Consequently, thegeographical term “Casamance” has often been usedin an unclear way to define the borders of theregion. The ambiguity surrounding the exactdefinition of the area called Casamance has beenexploited by both the central government of Senegaland by the liberation movement to promote theirown agenda in the conflict.

• The Mouvement des Forces Démocratiques deCasamance (whose acronym is MFDC) was firstfounded in 1947 as an anti-colonial movement andreformed in 1982, In 1998 it has been defined as a:

“[c]landestine, armed separatist movement whichhas been operating since 1982. The movementadvocates the secession of the Casamance region insouthern Senegal.” (Report-United States Bureau ofCitizenship and Immigration Services).

• Just after Senegal gained its independence (20 June1960), L. Senghor, first President of independentstate, had promised that Casamance would attainindependence from Dakar twenty years followingSenegal’s independence from France, according tothe separatists. Although there is no final proof thatthis promise had been made, the first public proteststook place in Ziguinchor (Casamance) on 26December 1982, to which the Senegalese regimereacted with military intervention and politicalrepression.

• The 1993 “Charpy Report” drafted by J. Charpy,former director of the French West Africa archives inFrance, seemed to endorse the point of view of thecentral government—and for this reason; it wasrejected by the MFDC-. The report affirmed thatCasamance did not exist as an autonomous regionbefore colonization and that the problem posed byCasamance to French was not a matter ofgovernment, but merely a problem ofadministration.

• In one of his studies (2004) M. Evans argued that“objectively” independence for Casamance was “outof question” because of the lack of real support forthe MFDC by the Casamancais and because of thefrictions among the different wings of the MFDC,further affirming that the MFDC demand forindependence was “ill-formed and unrealizable.”

• To find a way to settle the crisis, the African Commission onHuman and Peoples’ Rights (ACHPR), in a mission undertakenin Senegal from 1 to 6 June 1996, adopted a “diplomaticapproach” to the conflict arguing that:

“[I]t appears that neither the position of the separatists, northat of the state authorities, can be taken in its entirety. Forthis reason, a frank and constructive dialogue must beinstituted between the two parties, from which a solution canemerge, a solution which will assure the cohesion andcontinuity of the people of the unified Senegalese state in acommunity of interest and destiny.”

• Unfortunately, the statistics on the number of peoplefrom Casamance applying for refugee status are ratherfragmented and to date, there are no statisticsavailable exclusively concerning MFDC members (G.Hopkins estimated that there were between 10,000and 11,000 refugees from Casamance in The Gambiain 2011 –both registered and unregistered.)

• The most recent statistics indicate that at the end of2012, The Gambia hosted 9,042 refugees fromSenegal, with a major inflow of 680 in the same year,while in Guinea-Bissau there were 7,700 refugeesfrom Senegal (all of them UNHCR-assisted). Novoluntary repatriation took place in the same period.

(UNHCR, Statistical Yearbook, 2012)

• According to the actions undertaken by the membersof the MFDC, the most important test to determine ifthey deserve refugee status concerns the “seriousnon-political crime outside the country of refugeprior to his/her admission to that country as arefugee”, exclusion clause mentioned in article 1F b)of the 1951 Geneva Convention and I5 b) of the 1969OAU Convention.

• The clause on “serious non-political crimes” is alsopart of the domestic laws of both The Gambia andGuinea-Bissau, the two sovereign states borderingCasamance (which are thus the most natural “wayout” for MFDC asylum-seekers in Africa)(Art. 23.2 a)of the 2008 Gambian Refugee Act and Art. 3.3 of theBissauan Lei No. 6/2008 on Refugees).

• The category of “serious non-political crimes” doesnot cover “minor” crimes nor prohibitions on thelegitimate exercise of human rights. In determiningwhether a particular offence is sufficiently serious,international rather than local standards arerelevant.

• The following factors should be taken into accountfor the test: the nature of the act, the nature of thepenalty, the actual harm inflicted, the form ofprocedure used to prosecute the crime, and whethermost jurisdictions would consider it a serious crime.

• Thus, for example, murder, rape and armed robberywould undoubtedly qualify as serious offences.

(UNHCR Handbook 2011, para. 14 at 118)

• A serious crime should be considered non-politicalwhen other motives (such as personal reasons orgain) are the predominant feature of the specificcrime committed.

• Where no clear link exists between the crime and itsalleged political objective or when the act inquestion is disproportionate to the alleged politicalobjective, non-political motives are predominant.

(UNHCR Handbook 2011, para. 15)

• The fact that a particular crime is designated as non-political in an extradition treaty is of significance, butnot conclusive in itself.

(See: Extradition treaties Senegal/The Gambia andSenegal/Guinea-Bissau)

• In any case, MFDC members accused by theSenegalese authorities (confirmation given by theNGOs working in the field) of homicide of civilians,kidnapping, and rapes quite undisputedly havecommitted “serious non-political crimes.”

(In this regard, see also UNHCR Handbook 2011,para. 152, at 30)

• In evaluating the nature of the crime presumed tohave been committed, all the relevant factors –including any mitigating circumstances – must betaken into account.

• It is also necessary to have regard to any aggravatingcircumstances as, for example, the fact that theapplicant may already have a criminal record.

(UNHCR, Handbook 2011, para. 157, at 31)

• The fact that an applicant convicted of a serious non-political crime has already served his sentence or hasbeen granted a pardon or has benefited from anamnesty is also relevant.

• In the latter case, there is a presumption that theexclusion clause is no longer applicable, unless it canbe shown that, despite the pardon or amnesty, theapplicant’s criminal character still predominates.

(UNHCR, Handbook 2011, para. 157, at 31)

• In practice, this means that MFDC membersamnestied in 2004 were entitled to apply and toreceive asylum although

“[the] amnesty prevented any criminal proceedingsagainst the perpetrators of massive human rightsviolations and abuses, including extrajudicialexecutions, forced disappearances, torture, longterm arbitrary detentions without trial anddeliberate and arbitrary abductions and homicides,committed throughout the 1990s.” (AI, 2010)

• In applying this exclusion clause, it is also necessaryto strike a balance between the nature of the offencepresumed to have been committed by the applicantand the degree of persecution feared.

• If a person has well-founded fear of very severepersecution, e.g. persecution endangering his life orfreedom, a crime must be very grave in order toexclude him. (UNHCR, Hanbook 2011, para. 156, at31)

• In effect, we are talking of the members of amovement in a country (Senegal) where:

“Throughout the 1990s, the Senegalese securityforces systematically used torture to extract“confessions” from men and women who were oftenarbitrarily arrested because they belonged to theDiola community. […] During the four AmnestyInternational missions to Casamance between 1997and 2003, the organization documented severalmethods of torture regularly used by the Senegalesesecurity forces on people detained in police custody,which can legally be for eight days.” (AI, 2010)

• And in 2002, the ACHPR clarified that:

“9) Circumstances such as state of war, threat of war,internal political instability or any other publicemergency, shall not be invoked as a justification oftorture, cruel, inhuman or degrading treatment orpunishment.”(ACHPR, Resolution on Guidelines and Measures forthe Prohibition and Prevention of Torture, Cruel,Inhuman or Degrading Treatment or Punishment inAfrica 2002, ACHPR/Res. 61 (XXXII)02, 17-23 October2002)

• According to the African practice, it seems clear forthe African countries that certain acts of violenceshould not be treated as “crimes” in the sense ofarticle 1F b) of the 1951 Geneva Convention and I5b) of the 1969 OAU Convention. Among these acts,we have also those put in place by movementsfighting in a national liberation war, such as the oneundertaken by the MFDC in Casamance, on thecondition that such actions are undertaken bycombatants and as long as they do not commit warcrimes or crimes against humanity.

• Examples: Azawad refugees from the NationalMovement of the Liberation of Azawad (Mali) inBurkina-Faso, the Cabindan refugees from the ForcasArmadas de Cabinda (Angola) in the DemocraticRepublic of Congo, the Lozi refugees from the CapriviLiberation Army (Namibia) in Botswana, the Oromorefugees from the Oromo Liberation Front and fromthe Front of Liberation of Oromia (Ethiopia) in Kenya.

• An effort should be made by the receiving countries(notably The Gambia and Guinea-Bissau) inscreening bona fide refugees from “criminals”belonging to the MFDC.

• Such a screening could be made, for instance,through the adoption of credible domesticlegislations on counter-terrorism.

• In many African countries, including The Gambia andGuinea-Bissau, the main destinations of the MFDCmembers, the conception and the application ofcounter-terrorism measures have, however, founddifferent obstacles in their path.

• Until now, the first of them has been a generaldisinclination to embrace an anti-terrorismlegislation attributing extensive powers to the localgovernment in a situation where the principles of therule of law are substantially new in spite of theexistence of the 1999 OAU Convention on thePrevention and Combating of Terrorism (and itsrelative 2004 Protocol.)

Thank You