Abstract
This article seeks to ascertain whether refugees who are victims of sexual violence in contracting states enjoy access to courts per Article 16 of the United Nations (UN) Convention Relating to the Status of Refugees (1951 Refugee Convention). It does so by comparing the situation of urban refugees in South Africa with that of refugees in camps in Tanzania and settlements in Uganda, beginning with a description of what "accessing courts" entails in the respective domestic criminal justice systems and of what mechanisms are in place for addressing sexual offences. It further uses the qualitative analysis of documented prosecuted cases of sexual violence in South African, Tanzanian and Ugandan courts between 2013-2017, 2009-2016 and 2013-2017 respectively to establish if these countries prosecute cases of sexual violence suffered by their citizens and whether claims of such violations affecting refugees also enjoy the same treatment. The enquiry found that of 328 documented prosecuted cases of sexual offences in South Africa, victims who were citizens were a majority in number. In Tanzania there appeared to be few prosecuted cases of sexual violence against refugees, but given that limited documentation is available, it is difficult to assess the actual figures. In Uganda the 187 recorded prosecuted cases of sexual offences in the years of investigation all related to citizens, despite the introduction of a mobile court to refugee settlements. Overall, this paper recommends that the countries under review adopt measures to ensure the prompt prosecution of cases of sexual violence against refugees and thereby enable them to access courts and testify against their assailants.
Highlights
This article seeks to ascertain whether refugees who are victims of sexual violence in contracting states enjoy access to courts per Article 16 of the United Nations (UN) Convention Relating to the Status of Refugees (1951 Refugee Convention)
It further uses the qualitative analysis of documented prosecuted cases of sexual violence in South African, Tanzanian and Ugandan courts between 2013-2017, 2009-2016 and 2013-2017 respectively to establish if these countries prosecute cases of sexual violence suffered by their citizens and whether claims of such violations affecting refugees enjoy the same treatment
Victims suffer from psychological trauma, mental health problems,5 post-traumatic stress disorders (PTSD),6 spontaneous abortions if raped and pregnant, protracted haemorrhaging, vesicovaginal and rectovaginal fistulas, insomnia, nightmares, chest and back pains, dysmenorrhea, and death resulting from unsafe abortions and suicide
Summary
Female refugees hosted in camps, settlements, urban areas, and reception, detention and repatriation centres suffer sexual violence. Even though sexual offences can lead to manslaughter, fatal injuries, undesired or premature gravidness, sexually transmitted diseases or infections (STD/STIs), barrenness, HIV/AIDS, cervical cancer, and venereal disease, most of the time the perpetrators are not held accountable. Victims suffer from psychological trauma, mental health problems, post-traumatic stress disorders (PTSD), spontaneous abortions if raped and pregnant, protracted haemorrhaging, vesicovaginal and rectovaginal fistulas, insomnia, nightmares, chest and back pains, dysmenorrhea, and death resulting from unsafe abortions and suicide.. South Africa does not host refugees in camps or settlements, which means that refugees are living amongst the citizens - a more liberal type of hosting, while Tanzania and Uganda host refugees in camps and settlements respectively.24 By virtue of their incorporation of refugee law into their domestic laws, these countries are bound to fulfil their obligation to grant refugees who are victims of sexual violence access to court just as they do their citizens who suffer sexual violence. Eberechi Access to Justice 203-204; Art XXVIII(i)(a)(b) of the Constitution of the Republic of Uganda, 1995; Ratification of Treaties Act, 1998 (Cap 204); Wethered v Calcutt (1842) 4 Man & G 566; Concorp International Ltd vs East and Southern Development Bank 2010 UGSC (18 October 2010); Obitre-Gama 2000 https://www.who.int/tobacco/media/en/JUDY2000X.pdf. This article further undertakes a comparative analysis of the treatment received by refugees in South Africa, Tanzania and Uganda to ascertain whether there is compliance with Article 16 of the 1951 Refugee Convention
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