In 2010‚ former Rwandan army general Faustin Nyamwasa arrived in South Africa as a refugee‚ fleeing from his home following a disagreement with President Paul Kagame.
Weeks after his arrival‚ four men tried to kill him.
Nyamwasa‚ who together with Kagame founded the Rwandan Patriotic Front (RPF) which took power in 1994‚ survived the hail of bullets‚ and the suspects are behind bars.
Later‚ another attempt was foiled by State Security.
Nyamwasa has been mired in controversy since his arrival‚ with some claiming he was involved in war crimes and crimes against humanity during the Rwandan genocide that left more than 800‚000 people dead.
The Consortium of Refugees and Migrants in South Africa (CormSA) has in court papers expressed fears that allowing him to live in the country under the protection of the government is spreading a false impression that South Africa is a “safe haven” for those fleeing persecution for atrocities.
Armed with this core argument‚ CormSA has been embroiled in legal battles for nearly six years.
The Supreme Court of Appeal (SCA) in Bloemfontein yesterday heard an appeal by CormSA against a North Gauteng High Court ruling that agreed with the state that Nyamwasa qualifies because he is a “vulnerable person” likely to face persecution if deported‚ as stipulated in clause 3 of the Refugees Act.
That stipulation outweighs clause 4 of the Act‚ which states no person is allowed asylum if he or she is believed to have been involved in war crimes or crimes against humanity.
The state has maintained there is no concrete evidence Nyamwasa was involved in crimes in Rwanda‚ despite two investigations by the French and Spanish judiciary which ended in warrants of arrest being issued.
He himself has through an affidavit told French investigators that he heard Kagame say RPF forces were responsible for the assassination of former president Juvenual Habyarimana‚ whose French-crewed plane was shot down with a missile on 1994.
The state has further maintained that‚ according to the confidentiality of asylum applications‚ it is not obliged to divulge any details of why it decided to grant him refugee status‚ details of which CormSA hoped would be made public through the courts.
Habyarimana’s death launched a campaign that targeted Rwanda’s Tutsi people and resulted in close to 800‚000 people being slaughtered in cold blood in 100 days.
The first French probe in 2006 resulted in arrest warrants being issued for several people close to Kagame‚ including Nyamwasa‚ who responded by cutting diplomatic ties with France.
CormSA has maintained in court papers that Nyamwasa’s refugee status should be declared invalid‚ arguing that the investigations by foreign authorities were competent and with merit.
The Spanish have since dropped their indictment‚ but vowed that if Nyamwasa was to set foot on its territory‚ he would be arrested and charged in connection with the killings of Spanish nuns during the genocide.
CormSA has now approached the SCA to provide a proper definition of the clauses in the Refugees Act with arguments set to get under way today.
Loren Landau‚ the SA research chair for mobility and the politics of difference at the African Centre for Migration and Society at Wits University‚ has called the entire case “suspicious”.
“This is a suspicious case. South Africa typically rejects applications first and asks questions later. In many instances this means people with genuine fears‚ those not accused of complicity in crimes of human rights violations‚ face undue rejection‚” Landau said.
“While this man may well deserve asylum‚ if South Africa is serious about taking a ‘risk-based’ approach to asylum‚ they must take seriously accusations and concerns raised when people like Nyamwasa apply for asylum‚” he concluded.