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African Asylum at a Crossroads: Activism, Expert Testimony, and Refugee Rights

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African Asylum at a Crossroads: Activism, Expert Testimony, and Refugee Rights African Asylum at a Crossroads African Asylum at a Crossroads Activism, Expert Testimony, and Refugee Rights Edited by Iris Berger Tricia Redeker Hepner Benjamin N. Lawrance Joanna T. Tague, and Meredith Terretta Foreword by Penelope Andrews Afterword by Fallou Ngom Ohi O University Press • Athens, OhiO Ohio University Press, Athens, Ohio 45701 ohioswallow.com © 2015 by Ohio University Press All rights reserved To obtain permission to quote, reprint, or otherwise reproduce or distribute material from Ohio University Press publications, please contact our rights and permissions department at (740) 593-1154 or (740) 593-4536 (fax). Printed in the United States of America Ohio University Press books are printed on acid-free paper ƒ ™ Library of Congress Cataloging-in-Publication Data African asylum at a crossroads : activism, expert testimony, and refugee rights / edited by Iris Berger [and four others] ; foreword by Penelope Andrews ; afterword by Fallou Ngom. pages cm Summary: “African Asylum at a Crossroads: Activism, Expert Testimony, and Refugee Rights examines the emerging trend of requests for expert opinions in asylum hearings or refugee status determinations. This is the first book to explore the role of court-based expertise in relation to African asylum cases and the first to establish a rigorous analytical framework for interpreting the effects of this new reliance on expert testimony. Over the past two decades, courts in Western countries and beyond have begun demanding expert reports tailored to the experience of the individual claimant. As courts increasingly draw upon such testimony in their deliberations, expertise in matters of asylum and refugee status is emerging as an academic area with its own standards, protocols, and guidelines. This deeply thoughtful book explores these developments and their effects on both asylum seekers and the experts whose influence may determine their fate. Contributors: Iris Berger, Carol Bohmer, John Campbell, Katherine Luongo, E. Ann McDougall, Karen Musalo, Tricia Redeker Hepner, Amy Shuman, Joanna T. Tague, Meredith Terretta, and Charlotte Walker- Said”— Provided by publisher. Includes bibliographical references and index. ISBN 978-0-8214-2138-3 (hardback) — ISBN 978-0-8214-4518-1 (pdf) 1. Political refugees—Legal status, laws, etc.—Africa. 2. Asylum, Right of—Africa. 3. Expert testimony. 4. Evidence, Expert. I. Berger, Iris, 1941- editor. KQC567.A37 2015 342.608'3—dc23 2015004840 Contents FOREWORD PENELOPE ANDREWS vii Preface and Acknowledgments xi INTRODUctiON Law, Expertise, and Protean Ideas about African Migrants BENJAMIN N. Lawrance, IRIS BERGER, TRICIA REDEKER HEPNER, Joanna T. TAGUE, AND MEREDITH Terretta 1 ONE Before Asylum and the Expert Witness Mozambican Refugee Settlement and Rural Development in Southern Tanzania, 1964–75 Joanna T. TAGUE 38 TWO Fraudulent Asylum Seeking as Transnational Mobilization The Case of Cameroon MEREDITH Terretta 58 THREE The Evolving Refugee Definition How Shifting Elements of Eligibility Affect the Nature and Focus of Expert Testimony in Asylum Proceedings KAREN MUSALO 75 FOUR Expert Evidence in British Asylum Courts The Judicial Assessment of Evidence on Ethnic Discrimination and Statelessness in Ethiopia JOHN CAMPBELL 102 v FIVE “The Immigration People Know the Stories. There’s One for Each Country” The Case of Mauritania E. ANN MCDOUGALL 121 SIX Cultural Silences as an Excuse for Injustice The Problems of Documentary Proof Carol BOHMER AND AMY SHUMAN 141 SEVEN Between Advocacy and Deception Crafting an African Asylum Narrative IRIS BERGER 163 EIGHT Allegations, Evidence, and Evaluation Asylum Seeking in a World of Witchcraft Katherine LUONGO 182 NINE Sexual Minorities among African Asylum Claimants Human Rights Regimes, Bureaucratic Knowledge, and the Era of Sexual Rights Diplomacy Charlotte WALKER-SAID 203 TEN The “Asylum-Advocacy Nexus” in Anthropological Perspective Agency, Activism, and the Construction of Eritrean Political Identities TRICIA REDEKER HEPNER 225 AFTERWORD FALLOU NGOM 247 About the Authors 257 Index 263 vi Contents Foreword This important and timely volume explores an emergent development for scholars engaged in African studies, specifically, requests to provide expert testimony for asylum hearings or refugee status determinations. In other words, those who have and are engaged in scholarly research on Africa now find themselves as expert witnesses in an unforeseen arena— courts of law. As the editors observe, this is the first volume to explore the role of court-based expertise as it pertains to Africa. It is also the first volume to focus, in an interdisciplinary fashion, on the legal subjectivities of African immigrants as a means to acquire new knowledge and ideas about historical and contemporary Africa. A defining feature of late twentieth-century and early twenty-first- century Africa has been the movement of its people across borders. Championed today as an offshoot of contemporary globalization, this movement of people is supposed to signal yet another successful story of human migration. But such migration, as we know, is often involuntary, reinforcing another aspect of late twentieth-century and early twenty- first-century Africa, namely, refugees and asylum seekers. The desperate situation for refugees and asylum seekers—spawned by the internal conflicts in many parts of Africa, including the Central Af- rican Republic, the Congo, Somalia, and other nations—is recorded with regularity by international human rights and humanitarian organizations and popular media. The chapters in this volume give meaning to the ex- periences of these refugees as they proceed on their way as asylum seek- ers in the United States, the United Kingdom, Australia, and elsewhere. The refugee crisis is fundamentally a human crisis, one that generates expectations, hopes, and fears that will ultimately influence the political and legal arenas. This volume takes the readers from that initial experi- ence of political and geographic dislocation and disruption to a court- room or other institutional setting, where a refugee or asylum hearing will determine the refugee’s fate. This process can be lengthy, with refugees languishing in detention facilities or in ghettos on the outskirts of cities in a kind of legal limbo that often takes years or decades to resolve. The situation of refugees has become one of the defining human tragedies of the late twentieth and early twenty-first centuries. vii Collectively, these chapters relate a narrative that begins with the migrant’s experience in his or her native country, traces the journey that leads to the courtroom and the expert’s testimony, and concludes with the decision of the judge or other adjudicator. The human drama unfolds before witnesses, expert and otherwise, through the historical, geographic, political, and other “facts” and evidence that are presented, under the watchful eye of the judge or adjudicator. The subject matter of this volume—the use and influence of expert testimony provided by scholars of Africa—is a novel category of research in African law, politics, and society. This research is at the intersection of individualized unique narratives and the relevant expertise required to elaborate and emphasize such uniqueness, while at the same time con- forming to legal norms, characterizations, and structures. The need to create an influential and “successful” story of persecution has profoundly altered the legal process with respect to refugee and asylum law, and it raises complicated questions for the migrant as refugee or asylum seeker. These questions involve the subject matter, status, and role of the expertise involved in this process. Who qualifies to be an expert? What constitutes expert knowledge? How is “objectivity” guaranteed? What role is there for advocacy on the part of the expert? Is there a litmus test for cultural uncer- tainties and fluidity or for contested historical or individual memory? The contributors to this volume explore and expand upon this human drama by advancing legal, historical, sociological, anthropological, and other academic perspectives to probe the many dimensions of the issues confronting African migrants. They investigate the contradictory imperatives generated by African migrants refugees and asylum seekers—explicitly, individuals who are to be rescued but whose history and culture need to be denigrated if they are to benefit from rescue. Indeed, the African migrant and his or her quest for political asylum stimulate many tropes, from the “ancient” or “exotic” (as reflected in the practices of witchcraft) to traditional cultural norms to ethnic rivalries. The African migrant’s claim for political asylum exists at the juncture of law, advocacy, human rights, and expert evidence. It creates a fragile bal- ance between competing realities of identity, agency, victimhood, truth, and sexuality, on the one hand, and the apparent certainty of law and evidence, on the other. The contributors to this volume, all authorities in their respective dis- ciplines and subject matters, explore the issues in thoughtful, engaging, viii Foreword and provocative ways. They have produced a wonderful anthology that provides insightful perspectives and raises many questions. That is the significance of this anthology; in addition to its rich analyses, it invites continued research on this noteworthy and timely subject. The volume will be an invaluable source for a multidisciplinary range of scholars of Africa in law, the social sciences, and the
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