GENERAL ARTICLES 53 FMR 34 Beyond good intentions: implementing the Kampala Convention Prisca Kamungi

The new Convention for the Protection and such issues as statelessness, birth Assistance of Internally Displaced Persons in (Kampala registration and enforcement of existing international and African Convention) outlines the obligations of a wide range of actors in all standards, which they felt were phases of displacement. not adequately addressed by the Convention or hindered effective Africa is taking the lead in formul- the domestication of the Guiding protection at the national level.3 ating human rights standards to Principles into national legislation. An AU-CSO pre-summit meeting legislate for protection and assistance (organised by the AU Citizens and for IDPs. , Burundi, Sierra Even as this process was underway, Diaspora Directorate and the Pan Leone and were among the the AU recognised the need to have African Movement) contributed first in the world to develop national an overarching continent-wide to the AU Action Plan for speedy policies or plans of action based legal framework on IDPs in Africa, ratification and implementation of the on the UN Guiding Principles on similar to the 1969 Organisation of Convention. CSOs will be involved in African Unity monitoring and evaluating progress Convention on implementing the Convention governing and the ensuing AU Action Plan. the Specific Aspects of Opportunities

UNHCR/J Akena UNHCR/J Akena The Convention outlines general Problems provisions for the prevention in Africa. of displacement. It summarises measures aimed at preventing and The approach mitigating internal displacement by for drafting eradicating the root causes, such as the Kampala persistent and recurrent conflicts and Convention2 the effects of natural disasters. The borrowed Convention requires states to modify heavily from their national criminal law in order the IC/GLR to “declare as offences punishable by process, most law acts of arbitrary displacement notably the that amount to genocide, crimes principles of or crimes against humanity” (Article The prime minister of Uganda, Apolo Nsibambi, (right) with ’s foreign minister, Zeinab Bangura, at the African Union Summit in Kampala, Uganda, 19 October 2009. participation, 4(6)) – a measure that resonates inclusiveness, positively with the need to restrict partnership African states and non state actors’ Internal Displacement. From 1999, and ownership. In this regard, tendency to displace populations as the International Conference on the concept of ‘comprehensive a war or counter-insurgency strategy the Great Lakes Region (IC/GLR), leadership’ that recognises the need or in order to disenfranchise groups a joint UN-AU (African Union) for inputs from all stakeholders was associated with political opposition. effort to address complex conflicts, adopted. Within this framework, displacement and underdevelopment inter-ministerial committees and Inclusion of civil society in the in the Great Lakes region, led to thematic experts from member states drafting process provided useful the formulation and signing of the played a key role in the drafting criticism and expertise that 2006 Pact on Security, Stability and process, with critical input from helped capture disparate causes Development. This Pact, which came CSOs including human rights and of displacement and contextual into force in June 2008, represents humanitarian NGOs, trade unions, challenges to effective response. the first multilateral instrument in women and youth groups. Before the CSOs also helped refine the drafts by the world to commit member states adoption of the Kampala Convention pointing out factual errors, aligning to adopt and implement the Guiding at the Special Summit on , the Convention’s obligations with Principles, through its Protocol Returnees and IDPs in October 2009, provisions of the Guiding Principles on the Protection and Assistance CSOs developed a communiqué and making suggestions on the of Internally Displaced Persons.1 presented to the Heads of States, language such as on obligations It also provides the legal basis for in which they raised questions on of armed groups. The Convention 54 GENERAL ARTICLES FMR 34

recognises the challenges to durable solutions such as land disputes, disputes relating to property of IDPs and lack of reconciliation. It

provides for freedom to choose UNHCR/P Taggart residence, and calls for “an effective Thousands legal framework to provide flee the IDP just and fair compensation” site and surrounding and for states to protect the area in individual property of IDPs. Kibati, north Kivu, The Kampala Convention, like the IC/ Democratic Republic GLR Protocols, calls for registration of Congo, of IDPs.4 This requirement is November designed to address situations 2008. where governments minimise or otherwise manipulate numbers of IDPs or make it difficult for them to access assistance or social services.

African states have led the way in signing and ratifying international This results in a hostile, indeed Policy on IDPs based on the IC/GLR Conventions and their adoption of dangerous, political environment Protocols, the Guiding Principles and the Kampala Convention – in the for victims and for advocates (lately) the Kampala Convention. face of the scale and complexity pushing for durable solutions. It also of the issues – is to be applauded. translates into protracted situations In most African countries, States often, however, fail to of displacement, suggesting that the formulation of regional or adhere to the binding provisions. displacement in most of Africa international instruments is In drafting the Convention, states is a political question needing undertaken by the foreign ministry, have also incorporated mechanisms far more than legal solutions. with some of these ministries to monitor compliance (Article 14), demonstrating limited technical including a regular Conference of Speaking on the IC/GLR, Zachary expertise. Often, such ministerial State Parties and regular reporting Lomo argued that the key problem participation is at the highest level, under the African Charter on facing IDPs is not the absence of laws not at the practical level which is Human and People’s Rights but rather “the absence of strong guided by existing government and the African Peer Review national systems and local and policy. Lack of inter-ministerial Mechanism. These internal and international commitment to enforce coordination blocks the entry of new external mechanisms aim to provide existing international standards.”5 guidelines. oversight in the implementation of The formulation of international or the Convention, safeguard against regional standards for protection The interval between adoption of diplomatic rhetoric and ensure and assistance for IDPs reflects the regional instruments and coming participation of stakeholders in good intentions of individuals and into force of legislation can lead remedying displacement situations groups and states seeking to alleviate to protracted legal lacunae in governments may be unable human suffering and to promote a responding to IDPs’ needs – or unwilling to respond to. human rights culture. These good particularly when Members of intentions are often defeated by Parliament are opposed to the Like any other legal instrument, political imperatives or founder due legislation, as is often the case the Kampala Convention can be to lack of an effective strategy of because of questions such as land used by advocates as an advocacy engagement with the powers that be. access and the desire for justice. tool to encourage member states to acknowledge the plight of In addition to the overarching While multilateral diplomatic IDPs and to provide increased political challenges, there appear processes to adopt the instruments protection and assistance. to be disconnects between can enjoy political backing, programming for IDPs and legal including allocation of resources, The challenge of implementation provisions. For example, the such political will wanes very In most African countries, good humanitarian response in Kenya soon after. Indeed, many countries laws are frequently rendered following the 2007 post-election take a very long time to accede to impotent by a political culture violence relied on agencies’ standard new standards or to deposit their of impunity. Perpetrators of operating procedures (SOPs) and the instruments of ratification, thus human rights violations are often mechanics of the Cluster Approach, delaying the coming into force of untouchable: powerful people with little reference to existing legal such standards. States may ignore in government, in the economy guidelines. In fact, it was towards the new international instruments, and in other influential sectors. the end of the intervention that citing competing development, The strength of their control and the Protection Cluster began to reconciliation or reconstruction influence undermines civil society. think of formulating a National priorities or lack of resources. GENERAL ARTICLES 55 FMR 34

The development of region-wide highlighting reservations, and 1. Protocol at http://tinyurl.com/2006PactIDPProtocol See also Jesse Bernstein and Olivia Bueno, ‘The Great binding conventions or standards organisation of multi-stakeholder Lakes Process: new opportunities for protection’, FMR involves much diplomatic bargaining forums to discuss the reservations 29, January 2007 http://www.fmreview.org/FMRpdfs/ FMR29/73.pdf and compromise to reach consensus and possible solutions 2. http://tinyurl.com/KampalaConvention on issues. Often, the need to move 3. Recommendations of the Civil Society Meeting the process forward creates loopholes ■■production of periodic audit on African Union mechanisms and the Protection of Refugee, IDP and Citizenship Rights, 19-20 October 2009 for states to avoid responsibility reports to the AU Economic, 4. Article 13(1): “State Parties shall create and maintain for complex problems such as Social and Cultural Council an up-dated register of all internally displaced persons statelessness. In both the IC/GLR (ECOSOCC) to lobby governments within their jurisdiction or effective control …” 5. Zachary Lomo ‘Regional or national protection for and the Kampala Convention, states (as part of the obligation to Great Lakes IDPs?’ FMR Special Issue December 2006. failed to prioritise the challenge monitor compliance) http://www.fmreview.org/FMRpdfs/BrookingsSpecial/14. of statelessness or to establish pdf 6. The New Partnership for Africa’s Development mechanisms to address statelessness. ■■provision of technical or advisory http://www.nepad.org services to implementation 7. GPPAC http://www.gppac.net Suggestions for civil mechanisms including 8. http://www.darfurconsortium.org society advocacy government bodies and bodies 9. Responsibility to Protect http://www.responsibilitytoprotect.org Civil society organisations have within Regional Economic identified four key roles that Commissions (RECs) and the AU they can play to speed up the Resource for Civil implementation of the Convention: ■■initiating the drafting of Society on the Kampala appropriate laws for domestication Convention ■■understand and disseminate of international law; understanding the message of the Convention the law-making process and Civil society has a critical among and within countries identifying allies in parliament; role to play in promoting and and among IDPs so that they and identifying influential supporting implementation of can seek the protection and caucuses among MPs and lobbying the African Union Convention for assistance that it offers them to support such laws the Protection and Assistance of Internally Displaced Persons in ■■determine how to enable and ■■making sure civil society bodies Africa (Kampala Convention). enhance effective protection and are aware of the Convention and assistance for IDPs based on CSOs’ base their strategic plans and To support such efforts, a new own activities and presence programming objectives on key Guide for Civil Society on the provisions of the Convention Convention for the Protection and ■■explore how the Convention can Assistance of Internally Displaced be used to provide a stronger and ■■working with both low- and Persons in Africa: Supporting the clearer legal basis for states and high-level civil servants to Convention’s Ratification and other stakeholders to protect IDPs ensure legislation percolates Implementation is being prepared through government and non- to provide information on key ■■undertake specific post-ratification governmental programmes, and provisions of the Convention and activities in the AU’s Plan of Action. encouraging the designation of highlights ways in which civil a focal point in each ministry society can raise awareness of the In addition to these, other actions (who should record activities Convention in AU member states, to be taken to push for speedy for purposes of institutional advocate for its ratification, and ratification and implementation might memory and continuity) contribute to its implementation. include: ■■focusing advocacy on positive The Guide is being developed ■■coordination with line ministries aspects of the Kampala Convention in consultation with African with national monitoring – legislators are often motivated civil society organisations mechanisms linked to NEPAD6 to to pass or reject laws by through the AU Economic, identify the service delivery gaps perception of political mileage Social and Cultural Council and how the provisions of the (ECOSOCC) and the AU Citizens Convention can mitigate these gaps ■■establishing working groups and Diaspora Organisations and partnering with global Directorate (CIDO), and will ■■fostering a cordial working campaigns for peace, security be published in partnership relationship with the government. and IDP protection – such as with the Internal Displacement Adversarial advocacy strategies the Global Partnership for the Monitoring Centre (IDMC). make government officials reluctant Prevention of Armed Conflict,7 to work with human rights groups, the Consortium,8 and R2P Arabic, English, French and which they dismiss as ‘noise- (the Responsibility to Protect)9. Portuguese versions of the Guide makers’. Civil society organisations will be available for download should conduct research and argue Prisca Kamungi ([email protected]) as of mid-2010 at: http://www. from positions backed by data. is a PhD candidate at the Forced internal-displacement.org or in Migration Studies Program at the hard copy by contacting idmc@ ■■analysis of the status of ratification University of the Witwatersrand, nrc.ch or [email protected].

of international instruments and South Africa.