Pretoria -
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”.
The application continues. - Sapa