Belgian-based law firm drags Malawi to International Criminal Court on repatriation of refugees into designated camps

Letters to the ICC and to President Chakwera

* Dated October 15, 2023, Flamme Advocaten says had been retained by a number of organisations representing the victims

* Such as FGK Umuhuza Foundation and SOS Refugees in the SADC region (a grouping of Rwandans residing in Europe and all over the world)

* And a group of refugees and asylum seekers of persecution in Malawi from Rwanda, Burundi and Congo

By Duncan Mlanjira

Belgian-based law firm, Flamme Advocaten has asked the prosecutor for International Criminal Court (ICC) to open an official investigation as soon as possible on alleged human rights abuse by the Malawi Government on its legal stand to relocate refugees and asylum seekers to their designated camps of residence.

The country’s authorities enhanced the relocation exercise after many of the refugees and asylum seekers moved away from Dzaleka Refugee Camp into town and cities, where it was discovered they were involved un-permitted and illegal business dealings.

During the relocation exercise in June, the security authorities discovered some dangerous warlords amongst the refugees and were since declared prohibited immigrants with 5 being repatriated to their respective countries out of the 55 which were on the run.

The petition sent by attorney-at-law, Jean Flamme to ICC prosecutor, dated October 15, 2023, said he had been retained on the “human rights situation in Malawi” by a number of organisations representing the victims — FGK Umuhuza Foundation; SOS Refugees in the SADC region (a grouping of Rwandans residing in Europe and all over the world); and a group of refugees and asylum seekers of persecution in Malawi from Rwanda, Burundi and Congo.

Flamme — while stressing that in a letter he first sent to President Lazarus Chakwera dated July 9 that his action is being done “without any prejudice and under reservation of all possible rights” — takes cognizance that the Malawi Government issued a directive on March 27 to enforce “encampment policy relating to recognised refugees and asylum seekers”.

“During severe armed ‘razzia’s’, houses and business were destroyed, entire families were incarcerated arbitrarely and illegally without any form of arrest warrant and without having been brought before a judge,” alleges Flamme.

“These people were already illegally deported to Rwanda in cooperation with the Republic of Rwanda. Hundreds of these people were transferred to an already overpopulated refuge camp.

“The overcrowded camp is unable to meet the food, health, water and sanitation needs of its population,” he said while alleging that the human rights abuse included “severe beating up of children” by Malawi Police and Rwanda agents.

He also informs the ICC prosecutor that his firm sent a letter to Chakwera on July 9 — copied to Ministers of Foreign Affairs and Homeland Security as well as to the Attorney General — which he indicated to the ICC that he had attached, in which he attached a legal opinion stating that their “policy constitutes the commission of crimes against humanity”.

“We believe that this policy is instrumentalised by the Republic of Rwanda and is spreading to other countries,” alleges Flamme on behalf of his clients.

He indicated that the Malawi authorities have not responded to the firm’s letter “notwithstanding a recent reminder”, saying: “…it seems the Malawi authorities will not stop their policy of abduction and expulsion of innocent people”.

“We know of what happens to people who are deported to Rwanda where the dictatorship ignores basic human right systematically. We therefore ask you to open an official investigation as soon as possible.

“The situation is urgent, as many innocent people are on the edge of being deported to Rwanda where they will be incarcerated, tortured and possibly killed,” alleges Famme, who also disclosed that he engaged the Head of Chancery at the Malawi Embassy in Brussels, Billy Malaya on July 5 to explain his position as to the alleged crisis.

“It is our opinion that it is still possible to restore all people who have been hit in their original and basic rights,” said Flamme in his July 9 letter to Chakwera’s administration. “We hope that it will be possible to reach an agreement which is acceptable for both parties.”

The repatriation of the dangerous warlords was done in collaboration with United Nations High Commission for Refugees (UNHCR) and that the Ministry of Homeland Security made a public announcement that the refugees voluntarily accepted to return to their Rwanda and Burundi.

In an engagement with the Parliamentary Committee on Defence & Security in June, Deputy Inspector General of the Malawi Police responsible for administration, Happy Mkandawire announced that during the exercise, they managed to seize 108 shipping containers which they suspected contained illicit goods belonging to the refugees who have been already relocated and others whose whereabouts were yet to be established then.

He added that a total of 125 shipping containers were identified in various locations were were then suspected of containing some illegal items such guns, machines for printing currency as well as huge sums of cash both in local and foreign currencies.

The Committee’s chairperson, Ralph Jooma said it had been established that some of the refugees obtained illegal citizenship documents using local names, assisted by the Immigration Department.

In May, South Africa law enforcement agencies arrested Fulgence Kayishema — one of the fugitives most wanted for crimes they committed in the 1994 genocide against the Tutsi in Rwanda — and discovered that he evade capture by using a Malawian passport.

Kayishema was discovered and arrested in Paarl, South Africa on May 25 and was identified as having used Malawian passport to regularly cross into South Africa from Eswatini under a Malawian name Positani Chikuse.

A report by The New Times of Kigali, Rwanda says on May 19, 1998, Kayishema claimed asylum in Eswatini as a Burundian national, using the alias Fulgence Minani while his wife was also registered as a refugee using a false identity.

Whilst in Eswatini, Kayishema began using the Malawian identity to regularly cross into South Africa and on December 21, 1999, he  claimed asylum in Cape Town as a Burundian national, using the alias Fulgence Dende-Minani.

The report further said between 1999 and the present, he primarily resided in South Africa and that in early 2000, he was granted a temporary residence permit in South Africa.

Throughout 2000, Kayishema continued to cross borders between South Africa and Eswatini under the Chikuse identity, to visit his family in Eswatini [and] in 2001, Kayishema was granted refugee status in Eswatini under the identity, Fulgence Minani, and issued a temporary residence permit.

He later gained refugee status simultaneously in both Eswatini and South Africa. In this period, however, he resided in Cape Town and worked as a car guard at the Blue Route Mall.

Until at least 2006, Kayishema was registered as a refugee in South Africa using the name Fulgence Dende-Minani,” said the report.

Following that development, it vindicated the decision by Malawi Minister of Homeland Security, Kenneth Zikhale Ng’oma, who revoked citizenship of 396 Burundian and Rwandan nationals who were dubiously assisted to acquire Malawian naturalization papers.

The Ministry’s public relations officer, Patrick Botha told the media that the revocation was pursuant to public order and security within the precincts of the laws of Malawi and also in compliance with the Court’s decision in the case of the Republic vs Uladi Mussa and others being Criminal Case Number 2 of 2017.

In accordance with the law, the government pledged that it would continue to review and deprive Malawian Citizenship for all those individuals that did not comply with stipulated legal process.

According to statistics from United Nations High Commissioner for Refugees, Malawi has over 53,000 refugees and asylum seekers.