File image - Rwandan exile,
Kayumba Nyamwasa, front, and his wife Rosette Kayumba sit in the
Johannesburg court Thursday July 12, 2012, after finishing his testimony
as a witness in the trial of six East Africans accused of attempted
murder in his 2010 shooting. (AP Photo/Denis Farrell)
A former Rwandan army chief who survived
several assassination attempts should never have been granted refugee
status in South Africa because he was suspected of being a war criminal,
the High Court in Pretoria heard on Monday.
The Consortium for Refugees and
Migrants in South Africa (CoRMSA) applied for the court to set aside the
June 2010 decision by South African authorities to grant refugee status
to former Rwandan general Faustin Kayumba Nyamwasa.
Anton Katz SC, appearing for the
applicant, argued Nyamwasa should never have been considered for refugee
status because he was suspected of war crimes.
Section 4 of the Refugees Act, in
accordance with international practice, excludes persons who are
reasonably believed to have committed a crime against peace, a war
crime, or a crime against humanity, from applying for refugee status.
CoRMSA only learnt of Nyamwasa's
presence in the country when he became the victim of an assassination
attempt in Johannesburg in June 2010.
Nyamwasa
blamed his former ally, Rwandan president Paul Kagame, for
orchestrating the attack. He and his family were granted refugee status
shortly after the attack.
South African authorities have
refused an application for Nyamwasa's extradition to Rwanda, where he
was last year sentenced in absentia to a lengthy prison term for his
alleged involvement in a series of grenade attacks in the country's
capital Kigali.
According to CoRMSA, a French
judge issued an arrest warrant for Nyamwasa in 2006 for involvement in
orchestrating the shooting down of an aircraft carrying former Rwandan
president Juvenal Habyarimana.
Two years later a Spanish judge
indicted Nyamwasa for war crimes, and earlier this year asked for help
from South African authorities to interview him.
The indictment implicated Nyamwasa
in the killings of civilians in Rwanda and the DRC, and maintained he
had been responsible for the massacre of 2500 Hutu refugees and the
murder of four Spanish nationals.
South African authorities
contended the evidence was not sufficient to conclude there was reason
to believe Nyamwasa might have been involved in international crimes.
Katz said the applicant did not want Nyamwasa to go back to Rwanda because of the political climate in that country.
“We agree that he can't be sent
back to Rwanda, but that does not concern this court. This court must
decide if he's entitled to refugee status.
“If the decision was irrational
this court must set it aside... He (Nyamwasa) may find himself having to
apply for another type of permit.”
Katz said it would appear Nyamwasa
had applied for and was granted refugee status within a day, which was
unheard of in South Africa.
He argued that refugee laws
provided for the protection of the vulnerable and persecuted, not for
those who perpetrated atrocities.
“The facts demonstrate an absolute failure on the part of the respondents to understand what they were doing.”
He argued the decision to grant Nyamwasa refugee status was irrational, unlawful and unconstitutional and should be set aside.
South African authorities have
attacked CoRMSA's legal status to bring the application and also
refused to make documents available on which the decision was based,
saying the act conferred confidentiality on all asylum applications.
A legal skirmish broke out when
the authorities sought to introduce a document which it said would prove
Nyamwasa had applied for asylum long before he was granted refugee
status.
Katz objected, describing the application as “improper and distasteful”.
Contributed by Legal Link Partners in South Africa.
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