Source: International Refugee Rights Initiative
Imagine being denied citizenship and treated like a foreigner in the only country you have ever known, the country where you were born and spent your whole life, the place where everyone you know (friends, family, even perhaps your grandparents) live. Citizenship provides both practical rights and protections (such as the right to vote) and a symbol of belonging. However, despite many refugees having been in Uganda for over 20 years, they have not been able to acquire Ugandan citizenship, prompting the Refugee Law Project (RLP) and the Center for Public Interest Law (CEPIL) in 2010 to apply to Uganda’s Constitutional Court (the court) in an attempt to clarify that refugees can acquire citizenship under the law.
On 6 October 2015, the court handed down this long-awaited decision on the rights of refugees in the country to acquire Ugandan nationality. RLP and CEPIL had asked the court to interpret Articles 12(1) and 12(2) of the 1995 Ugandan Constitution (the constitution) relating to the eligibility of refugees to acquire citizenship by registration as well as their right to naturalise under Article 13 of the constitution (the process of registration is generally easier and allows the state less discretion than the process of naturalisation). They also asked the court to order “that the relevant government departments and or agencies process applications for citizenship by registration and or naturalisation by refugees who satisfy the requirements for citizenship under the relevant legislation and regulations.”
“We filed the case because there was disagreement on the interpretation of the constitutional provisions regarding whether refugees can acquire citizenship in Uganda. There were a number of refugees who wanted to become citizens after having lived in Uganda for a long time, but the immigration [department] did not allow them access to the application procedure arguing that the constitution bars refugees in Uganda from ever acquiring citizenship. We therefore sought interpretation of the relevant constitutional provisions from the constitutional court, the court mandated to interpret the constitution,” explained Salima Namusobya, Executive Director of the Initiative for Social and Economic Rights, who filed the case whilst working at RLP.
The October 2015 decision was a mixed bag, with the judges declaring that refugees could not access citizenship on the basis of registration, but that they were eligible for naturalisation. The judges also refused to grant the petitioners’ request that they order the government to start considering these applications, saying that the petitioners had not presented evidence that the government departments had failed to do so to date, suggesting that the petitioners should bring forward persons who had been adversely affected.
The Legal Framework
Ratified by Uganda in 1976, the 1951 UN Convention relating to the status of Refugees states that “the Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.”
In Ugandan law, the legal instruments that determine access to citizenship are the constitution (as amended in 2005), the 1999 Uganda Citizenship and Immigration Control Act (UCICA), (as amended as of 2009) and the 2006 Refugee Act. Unfortunately, these provisions are neither consistent internally nor applied in practice.
Citizenship by registration
In Uganda, conditions for citizenship by registration can be found in Article 12 of the constitution and in Article 14 of the UCICA. The petitioners in the case argued that refugees ought to be eligible for citizenship by registration based on Articles 12(2)(c) and 14(2)(c) which provide that a person “who, on the commencement of this Constitution, has lived in Uganda for at least twenty years”, arguing that this should allow access to citizenship for refugees living in the country since 1985.
However, other parts of the legislation, explicitly discriminate against refugees. Articles 12(1) and 14(1) state that someone born on the territory is eligible for citizenship by registration, but only if “neither of his or her parents and none of his or her grandparents was a refugee in Uganda.” In addition, Articles 12(2)(b) and 14(2)(b), which enable citizenship by registration for migrants who live in Uganda for more than ten years according to the constitution, 20 years according to the UCICA, provided they migrated “legally and voluntarily.” Since refugees are forced to flee, the requirement of voluntariness would appear to exclude refugees.
Citizenship by naturalisation
The constitution provides the basic framework for naturalisation by providing that “Parliament shall by law provide for the acquisition and loss of citizenship by naturalisation.”
More specific requirements are provided for by UCICA Article 16, which stipulates that the National Citizenship and Immigration Board (the board) may grant naturalisation where the applicant fulfils a number of criteria including 20 years residence (of which 24 months must immediately precede the application), adequate knowledge of English or a prescribed vernacular language, and good character.
These provisions would seem to suggest that any refugee who has been residing in Uganda since 1995 or earlier could naturalise, as was argued by the petitioners in this case. However, until 2006, with the introduction of the Refugee Act, the applicable law, the 1960 Control of Alien Refugees Act prevented refugees from accessing naturalisation, with Article 18 stating that “for the purposes of the Immigration Act and the Uganda Citizenship Act, no period spent in Uganda as a refugee shall be deemed to be residence in Uganda.” Thus, this article made it impossible for refugees to fulfil the residency requirement for naturalisation. In 2006, the adoption of a new Refugee Act appeared to change that by removing the prior provision and by providing that naturalisation would be regulated simply by “the Constitution and any other law in force in Uganda”.
The Constitutional Court’s findings
With regards to citizenship by registration, ultimately, the court ruled that the section must be read as a whole and that refugees are therefore not eligible for citizenship by registration. However, the court did agree with the petitioners that naturalisation was now open to refugees, but refused to grant an order to the government to process such applications on the grounds they considered the request “spurious given the lack of evidence” that any such application had been rejected or not processed.
However, refugee advocates report that refugees who approach the board are not formally rejected, but rather are simply refused application forms or told that they do not qualify. These informal rejections are difficult to document. In addition, RLP documented incidents in which the Department of Immigration in Kampala made the acquisition of citizenship onerous or impossible. For example, officials at times appeared to base their knowledge on obsolete laws such as the Uganda Citizen Act of 1964 despite the fact that this was replaced by UCICA in 1999. The forms still quote the Uganda Citizen Act instead of the now relevant statutes. As a result, the refugees are either refused before even getting the form or handed useless forms about registration (for which they are not eligible).
The petitioners had managed to identify and provide affidavits for three refugees who had been rejected or not processed and had attempted to present these to the court, however they were ultimately unable to do so as due to the time it took for the court to hear the case, two of the refugees in question had been resettled to the US and the third could no longer be reached.
Reacting to this element of the decision, Ms. Namusobya said, “we are more than disappointed. The judgment is legally wrong and the case is appealable” before the Supreme Court.
Recent discussions about citizenship and refugees
In between the filling of the case in 2010 and the subsequent decision by the court in 2015, in 2012, the Ugandan government set up a committee to discuss citizenship by naturalisation for refugees, especially Rwandans and Congolese, who had entered the country in the 1960s and 1990s. The Ugandan Commissioner for Refugees, David Kazungu, stated that at least 5,000 refugees filled out application forms for citizenship and that “all of them will be considered, and those who qualify will be granted citizenship.” Apparently though, this process continues to be delayed and to date, the refugees have yet to be granted citizenship.
More recently, in January 2015, the then Minister of Internal Affairs launched a campaign throughout the country that should enable any non-citizen that meets the conditions of UCICA Article 14 to become a Ugandan citizen. The forms were intended to be processed in one day, enabling eligible individuals to apply for and receive their certificates of citizenship by naturalisation the very same day. This campaign, which operated for one month, though positive, seemed to exclude refugees, with the Minister stating that refugees were not eligible to participate and “should therefore not attempt to participate in the exercise.”
The outcome of the RLP/CEPIL case has left every stakeholder in uncertainty. Annet Tabo from CEPIL believes that chances for a successful appeal are very low, in part because finding and presenting an individual case of a refused refugee is a delicate matter, as testifying against the government could put refugees at real or perceived risk. Also as noted above there is often no paper evidence of refusal. In addition, any future legal motion is likely to take a lot of time, considering that the initial case was decided only five years after the petition was filed.
Despite this, RLP has continued to try and enable some refugees in Uganda to naturalise. In November and December 2015, RLP held information sessions in Kampala as well as in the refugee settlements in order to notify those who are interested in applying for naturalisation. Unfortunately, the criteria set by the UCICA that refugees must have lived in Uganda for over twenty years excludes many refugees with most of the refugees, according to Susan Alupo from RLP, having only spent between 12 and 18 years in the country so far. RLP is confident, however, that they will be able to identify a few individuals who are eligible for naturalisation and will then support them to get the necessary forms at the Immigration office. In the event that they get rejected, RLP believe this will provide stronger evidence to the judges as to the difficulties refugees are facing and will then seek to submit a new case to the Uganda Constitutional Court. For now, the Immigration office states that citizenship will be granted for those who meet the criteria and fill out the forms.
This case has highlighted an interesting conflict both within Uganda law and with regards to how Uganda deals with its long term refugees. Given its reputation as a refugee friendly country and to avoid the need for further litigation, Uganda has the opportunity to take proactive steps to ensure that citizenship is made accessible to refugees and should do so.