Almost a year after an application by refugees and asylum seekers, the High Court has made a ruling which government says permits it to immediately effect its order for all rural-based refugees to go back to Dzaleka camp
The High Court in Blantyre has removed an injunction for a judicial review that was sought by Abdul Nahimana, other asylum seekers and refugees, stopping government’s order for all refugees and asylum seekers to return to Dzaleka Refugee Camp.
In April last year, government gave the refugees and asylum seekers who had left the country’s only refugee camp and were staying in rural areas of the country, 14 days to return to the camp or face eviction.
On June 9, 2021 the court granted permission to apply for judicial review and stay of the government’s decision.
Friday, Judge Mandala Mambulasa made his ruling.
And according to Senior Legal Advisor in the office of Commissioner for Refugees and Supervisor for refugee status, Ivy Chihana, the removal means the government’s directive has to be implemented immediately.
“Briefly let me just say that the permission that was sought from the court to apply for judicial review has been set aside, meaning that the refugees, as they were applying for judicial review, are not going to be granted the judicial review, which means the directive that was there by the government for them to relocate back to the camp still stands,” she said.
Chihana said as State, they will make sure that the directive made earlier by government be implemented.
“Last year. a directive was given for a month as a notice and as you can see, a month has passed. This is another year which means it has to be implemented immediately. As part of the state, this is what we wanted and this is a welcome ruling and we will make sure that it is implemented,” she said.
Counsel for the claimants Luciano Mickeus said it is also a win for his clients, arguing they are not affected since they are urban residents.
He said according to the ruling, the judge ruled that his clients did not have a basis to seek judicial review because the notice did not concern them.
“What the court has decided today is that the injunction be removed on the basis that the applicants technically do not have locus standi as being refugees or asylum seekers that are residing within the urban areas and not rural areas as alluded to in the notice.
“It therefore means all applicants except one who they have said is not asylum seeker but all other applicants who appeared before the court should continue living where they are staying. It means those that are staying in the urban areas remain the same until the government says otherwise.
“Initially, the government wanted to remove the injunction so that they can relocate all the asylum seekers and refugees back to Dzaleka Camp. However, while in the course of arguing the case, it transpired that the notice did not affect those people that are staying in urban areas as the court has alluded to that those in urban areas do not have locus standi meaning if they are staying in town they are not affected,” he said.
In the order government said the about 2,000 refugees who live among the communities outside the camp pose a danger to national security.
The then Homeland Security Minister Richard Chimwendo Banda told a press conference in Lilongwe that government’s Encampment Policy prohibits refugees from operating business outside a refugee camp.
However, rights campaigners in Malawi and around the world warned the government to implement the order while being careful to avoid stirring up resentment in communities against the refugees.
Spokesperson for the U.N. High Commissioner for Refugees (UNHCR) in Malawi, Rumbani Msiska, told the media then that the move to relocate the refugees was concerning.
He said that while government might have had legal justifications for the relocation, returning the refuges to the camp would create serious problems at the country’s only refugee camp, such as school overcrowding, and a scramble for water and even health facilities.
Representatives of the refugees at Dzaleka Refugee Camp also bemoaned the order, saying it would be detrimental to their well-being. They cited security of their investments across the country and poor conditions at the camp.
“We are begging government to listen to us as their children. We are not against government’s position but if we go by the 28th April deadline, we will not be able to move in time as some of us have businesses, some have houses and other properties.
“Government should allow us one more year so that we can finish our businesses and go back to the camp,” said Roman Bijangala, a representative of the Congolese refuges at the camp.
He further urged government to ensure there is a proper plan so that refugees’ property is not looted and that no migrant should suffer xenophobic attacks following the order.
On April 28, 2021 one of the refugees Elie Mukunzi obtained and injunction against the government’s decision. In May, the High Court sitting in Lilongwe vacated the injunction.
In her ruling, Judge Ruth Chinangwa ruled that the decision made by the State did not affect Mukunzi after he told the court that he had a valid permit to do business in the country.
“Apart from this observation, the court notes that the applicant is asking the court to make the decision based on fears; it would suppose the same would not be tenable before the courts just as a suspicion is not,” Chinangwa said in the ruling.
But government could not implement the order as there was also a parallel application by Nahmana, on his own behalf and on behalf of other refugees and asylum seekers, with the High Court in Blantyre.
According to UNHCR, as of December 2021, Malawi had 52,678 persons of concern. The majority live in the Dzaleka refugee camp.
The United Nations body says Dzaleka camp registered a monthly average of 300 new arrivals (62 percent from the DRC, 19 percent from Burundi and 7 percent Rwanda and 2 percent other nationalities.
It says 45 percent of them are women, and 48 percent are children.
The camp, according to UNHCR, was initially established to host between 10,000 to 12,000 people but now hosts over 52,000 individuals.
Of the total population, 21,530 have refugee status, 30,910 are asylum seekers, with 238 others of concern.
“The protracted nature of the camp settlement and encampment policy increases the risks of its inhabitants to infectious diseases, protection, and self-sufficiency,” it says.