‘Once a refugee, always a refugee’: Uganda’s high court disagrees with passport control officer’s views

21 June 2023 · Carmel Rickard

Uganda is Africa’s most generous refugee host and more than 1.5 million refugees and asylum seekers have been registered there. But despite this open-arms approach, there seem to be problems with local officials discriminating against refugees, as the case of Abucar v Attorney General illustrates. It was a matter brought by a group of plaintiffs who say they have met the requirements for citizenship, but that a senor passport official had issued a circular that effectively cancelled their right to citizenship status, thus making them permanent refugees.

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This is a case that illustrates how, even when a host country has an officially welcoming policy, as does Uganda, refugees may still face discrimination thanks to the attitude of senior officials.

Ironically, the plaintiffs in this matter told the court they are not, in fact, refugees. However, they are being treated as though they were.

The seven individual plaintiffs say they have lived in Uganda all their lives and are entitled, by law, to all benefits of citizenship. The eighth, an organisation called Multiracial Community Uganda (MCU), says it represents many others who find themselves in a similar position.

Discriminatory

The complaint is that, though they are entitled to citizenship by birth, the directorate of immigration and citizenship (DIC) and the national identification and registration authority (NIRA), have refused to recognise this right. The individual plaintiffs and MCU say the DIC and the NIRA have, among others, denied them, or their members, access to and renewal of documents like passports and a national identity card, and that this is discriminatory, unfair and illegal.

They say that while the attorney general (the defendant in this case) issued clarification in 2007 about the citizenship status of Ugandans of Somali origin, agents of the DIC and the NIRA have continued to treat them as ineligible for citizenship by birth.

The judge hearing the matter, Musa Ssekaana, went on to find these contested actions unlawful and in contravention of the constitution and other laws.

Once a refugee, always a refugee

But the complaint at the heart of the application concerns a telling circular, issued in 2007 by Uganda’s deputy passport control officer, Anthony Namara. He wrote to all processing officers:

‘… [A]ny immigration officer worth his salt must be able to tell a non-citizen from an indigenous person. … [O]ther tribes the Somalis, Indians, Yemenis can never be citizens by birth unless there was an intermarriage with local communities as listed in the constitution. Thus, half castes must first convince you that in their line, there is or there was an intermarriage. Short of that, let them show evidence that they were either registered or naturalised! And the evidence is a copy of a certificate, nothing else! Lastly, all of you should internalise Article 12. The import of Article 12 is simple: once a refugee, always a refugee, whether born in Uganda or not, inclusive of all your offspring.’

The judge said he ‘entirely disagreed’ with these views, and that the constitution was very clear about who was entitled to the status of citizenship by birth. ‘The circular issued to give guidance [to processing officers] is very erroneous, skewed and gives whims to immigration officers to determine citizenship by looking at skin colour based on indigenous Ugandans, which is extremely dangerous, derogatory and discriminatory.’

Alien

Race- and colour-based discriminatory decisions at the hands of government officials were clearly what MCU and its members experienced, however.

MCU said that the circular meant ‘that Somalis, Yemenis, Oman, Indian and all half castes can never be citizens by birth’ and that before new passports were issued to them or old ones were renewed, they would have to provide proof of registration and/or naturalization, proof of intermarriage with an indigenous community, among others. But in the constitution and the citizenship laws on who qualifies to become a citizen, ‘race, colour, ethnic origin [and] intermarriage are not among the legal requirements provided for under the law regarding proof of citizenship.’

MCU added that most of its members ‘have one black parent from the indigenous communities of Uganda and one coloured parent, that makes their skin light which does not mean that they are alien thus warranting denial of citizenship’.

Callous and discriminatory

The actions of government officers in denying MCU members citizenship, were thus ‘unlawful, arbitrary, callous, irregular and discriminatory’ in terms of the constitution, MCU said.

Ssekaana found that the contentious circular had led to the denial of passports and other documents to the applicants and that they were unfairly treated ‘due to their colour and origin’.

The AG had produced no evidence that the applicants had acquired their documents fraudulently, said the judge, ‘but rather relied on the circular issued by the deputy passport control officer who seemed to base his position on the plaintiffs’ colour rather than the constitutional provisions, thus being discriminatory and unfair to [them] by denying them citizenship whimsically.’

Stateless

He therefore found that the actions of NIRA and DIC officers were unlawful and unconstitutional ‘and that their actions may render the plaintiffs and other persons in that category stateless due to denial of citizenship, which is a violation of Uganda’s international obligations.’

Finally, the judge issued a four-part order: he declared that the circular was ‘irregular, null and void’; the AG was ordered to declare that the plaintiffs fulfilled the requirements to be citizens by birth; the court further declared that eligible members of Uganda’s Somali community, qualifying for citizenship by birth, were entitled to be issued with Ugandan identification and citizenship-related documents, and finally, the directorate of citizenship and immigration control was ordered to issue national identity cards to eligible applicants who are Ugandans of Somali origin, as citizens by birth.

This outcome will clearly have been important and satisfying to the plaintiffs, but you have to wonder what has been the impact of that circular, and the thinking behind it, on Uganda’s refugee community over the last 15 years and more.

Carmel Rickard

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