African Journal of Legal Studies 6 (2013) 265–285 brill.com/ajls From Durable Solutions to Holistic Solutions: Prevention of Displacement in Africa Dan Kuwali* Centre for Conflict Studies, University of Cape Town, Cape Town, South Africa Abstract The problem of internally displaced persons (IDPs) is prevalent in Africa due to conflicts, development projects, man-made as well as natural disasters that are commonplace on the continent. The Kampala Convention, which is an innovative tool, seeks to provide African States with a roadmap towards long- term solutions to prevent and eradicate the causes of displacement. As such, African States, humanitarian agencies, the African Union and other stakeholders should go beyond durable solutions, which are reac- tive, and pay more attention to proactive strategies to eradicate the factors that lead to displacement. To do this, there is need to adopt a holistic approach to address the question of IDPs on the continent through a three-tiered strategy that includes; firstly, short-term strategy to protect the IDPs by provid- ing safety and security, freedom of movement as well as basic livelihood to the IDPs; secondly, medium- term strategy to restore IDPs’ dignity and ensure adequate living conditions through return, resettlement, (re)integration, reparation, restitution and rehabilitation; and thirdly, long-term strategy to eradicate root causes of displacement and fostering an environment conducive to respect of human rights, rule of law and good governance. Keywords Africa; African Union; conflict prevention; durable solutions; holistic solutions; Internally displaced persons (IDP); Kampala Convention 1. Introduction The plight of people uprooted within their borders in Africa was brought into sharp focus following the recent crises in Goma in the eastern region of the Dem- ocratic Republic of Congo (DRC), Central African Republic (CAR) and Northern Mali.1 The dire situation of internally displaced persons (IDPs) who hide in remote areas, usually in conditions of poor sanitation and without access to basic services *) E-mail: [email protected]. The author is a Senior Researcher, Centre for Conflict Studies, University of Cape Town, Post-Doctoral fellow, Centre for Human Rights, University of Pretoria; and Fellow, Centre for Human Rights Policy, Harvard Kennedy School of Government. 1) K. Patel, Internally Displaced People: An African Solution to a Huge African Problem, available online at http://www.dailymaverick.co.za/article/2012-12-06-internally-displaced-people-an-african-solution-to-a- huge-african-problem/#.UmanxFNoLnk (accessed 20 October 2013). © Koninklijke Brill NV, Leiden, 2013 DownloadedDOI: from10.1163/17087384-123420 Brill.com09/25/2021 2802:04:43PM via free access 266 D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 is a source of instability and tension for African States.2 Apart from displacement caused by natural disasters and development projects, people displaced due to armed conflicts find themselves in situations where there is virtually no security, which facilitate widespread human rights violations that trigger massive displace- ment, including attacks on the population, ill-treatment, destruction of property, sexual violation and restricted access to health care and other essential services. Personal information and records of individuals may be destroyed when their communities are attacked or lost during their flight to safety, which has negative impact on data collection and statistics. Most IDPs, who include women, children and the vulnerable, have been killed and thousands forcibly displaced. Humanitarian workers have also been killed by armed men in conflicts.3 IDPs range from persons who are displaced in the major cities, farmers with rights to their own land; farmers who rented their land; agri- cultural workers and squatters and persons who owned small businesses.4 Most displaced children do not have access to education as school buildings are usu- ally destroyed, closed or occupied by armed groups. In armed conflicts, displaced children are also particularly vulnerable to forced recruitment by armed groups, raped and forced to be ‘wives’ of warlords. The continent is home to about 10.4 million people displaced by conflict in sub- Saharan African countries, making up 40% of the world’s population of IDPs who have been displaced as a result of conflict.5 There are almost four times as many IDPs as there are refugees in Africa.6 The number is even higher when the 8.16 mil- lion people displaced by natural disasters in 2012 are -included.7 Unlike refugees, IDPs do not have a special status under international law. For this reason, the Afri- can Union (AU) adopted the Convention for the Protection and Assistance of the 2) See African Union, The African Union Convention for the Protection and Assistance of the Internally Dis- placed Persons in Africa (the Kampala Convention), available online at http://www.unhcr.org/4ae9bede9 .html (accessed 22 October 2013), Preambular para. 1. The Kampala Convention was adopted by the Afri- can Union (AU) and currently legally binds 15 African countries to prevent displacement, assist those who have been forced to leave their homes, and find safe and sustainable solutions to help people to rebuild their lives. A total of 37 African countries have demonstrated their commitment to the convention by sign- ing it, but are not yet legally obliged by its contents. See also C. Beyani, Special Rapporteur on the Human Rights of Internally Displaced Persons by the Human Rights Council in September 2010, available online at http://www.ohchr.org/EN/Issues/IDPersons/Pages/IDPersonsIndex.aspx (accessed 19 October 2013). 3) United Nations Human Rights Council, UN Rights Expert Calls for the Urgent Protection of those Dis- placed by Current Crisis, available online at http://reliefweb.int/report/central- african-republic/un-rights- expert-calls-urgent-protection-those-displaced-current (accessed 20 October 2013). 4) As noted by the Representative of the Secretary-General for the Human Rights of IDPs in his mis- sion report, following his visit to Kenya in May 2008. See K. Diagne and A. Solberg, Lessons Learned from UNHCR’S Emergency Operation for Internally Displaced Persons in Kenya (September 2008), available online at http://www.unhcr.org/48e5d90d2.pdf (accessed 7 October 2013). 5) Norwegian Refugee Council (NRC), Kampala Convention: Africa Takes the Lead! (6 December 2012), available online at http://www.nrc.no/?did=9666497 (accessed 10 October 2013). 6) As above. 7) See The African Union/Office for the Coordination of Humanitarian Affairs (OCHA), ‘Africa: Displace- ment by Natural Disaster in 2012’, 21 May 2013. Downloaded from Brill.com09/25/2021 02:04:43PM via free access D. Kuwali / African Journal of Legal Studies 6 (2013) 265–285 267 Internally Displaced Persons in Africa (“the Kampala Convention”), which is the first of its kind in the world, as it holds States legally accountable for upholding the rights of IDPs.8 The Kampala Convention builds on international humanitarian law (IHL) and international human rights law (IHRL), as well as the United Nations (UN) Guiding Principles on Internal Displacement.9 Although significant strides have been made in terms of finding durable solutions for IDPs, this approach is reactive and does not address the factors that lead to displacement in the first place. It is for this reason that this discussion focuses on a ‘holistic approach’ to prevent and eliminate the root causes of internal displacement in Africa.10 The discussion draws inspiration from preambular paragraph 5 of the Kampala Convention, which sets out to prevent and eradicate the root causes of displace- ment and Article 2(1) of the Convention, which seeks to “promote and strengthen regional and national measures to prevent or mitigate, mitigate, prohibit and eliminate root causes of internal displacement as well as provide for durable solu- tions.” The discussion hinges on Article 3 of the Kampala Convention, which pro- vides obligations for States to prevent displacement as well as protect and assist IDPs. To address the perennial problem of IDPs on the continent, the discussion proposes a three-pronged strategy that divides the holistic approach into short- term responsive measures that include safety, dignity, and basic rights of IDPs; medium-term remedial measures that include return, resettlement, (re)integra- tion, and reinstitution; and long-term solutions to create a conducive environment by eradicating root causes of displacement, including prevention, protection and accountability measures. 2. Challenges to Prevention of Displacement and Protection and Assistance of IDPs in Africa The Kampala Convention defines IDPs as “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual resi- dence, in particular as a result of or in order to avoid the effects of armed con- flict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.”11 This definition, which mirrors the definition the UN Guiding Prin- ciples, has attempted to comprehensively address different causes of internal dis- placement, namely: conflict, generalised violence, man-made or natural disasters, and development projects such as mining projects, building dams or clearing land 8) Patel, note 1 above. 9) See United Nations, ‘Guiding Principles on Internal Displacement’, United