Table of Contents
3. The Dilemmas of the Contractual Obligation.. 5
3.1. A Defective or Unconscionable Contract5
3.2 The Unfavourable Conditions. 13
4. Human Rights Violations against the Students. 16
5. Conclusions and Recommendations. 26
The Plight of Eritrean Students in South Africa[1]
Daniel R. Mekonnen[2] and Samuel B. Abraha[3]
15 April 2004
Stellenbosch, South Africa
1. Introduction
This essay aims at elaborating the dilemma of hundreds of Eritrean students in South Africa who find themselves in a desperate situation due to the deteriorating political crisis in their home country. The said students have studied and are studying in various fields under a World Bank funded human resources development programme of the Government of Eritrea. Many of them are not willing to go back to Eritrea for diverse reasons that will be discussed and substantiated in a more acceptable way. This essay is intended also to elucidate the series of human rights violations perpetrated against Eritrean students in South Africa in the last two years or so.
2. The Background
Eritrea is an emergent Eastern African country which was liberated in 1991, from its immediate neighbour Ethiopia, after the unlawful annexation by Ethiopia that lasted for about thirty years. The fact that the country was under illegitimate occupation for several years meant its people did not get the opportunity to have a democratic government of their own until their independence in May 1991. The struggle for independence severely hampered the development of the country. Education in general, the tertiary level in particular has suffered from acute shortage of specialised skills. Consequently, one of the priorities of the nation was and is to create an opportunity for development by special schemes of human resources development programme.
The early years of independence, especially the years between the national referendum in 1993 and the outbreak of the new war with Ethiopia in 1998, were fairly encouraging. Eminent growth has been recorded in diverse sectors such as rehabilitation and national economy which confirmed the potential of the country for development.In 1997 Eritrea ratified its first democratic constitution. Nevertheless, the country had to wage a new war in 1998-2000, with its instant neighbour Ethiopia, which was ignited by a small piece of disputed land.[4] The war has severely hampered the fairly acceptable political transition of the nation, which had to be facilitated by coming into effect of the 1997 Constitution soon after its ratification. The great effort in support of sovereignty of the country has contributed a lot towards the incredible existence of the people’s aspiration and veracity until things begun to change.
Ever since the new clash with Ethiopia, however, the Eritrean Government used the war as an excuse for suspending the duly adopted constitution of the country, postponing free and fair elections, derogating fundamental rights and freedoms in an unlimited manner. This has led inevitably to a serious political crisis. Although intellectuals and prominent political figures of the country took a commendable initiative to settle the political crisis peacefully and amicably, by calling for a democratic transition on the president of the country and his party, the government lent a deaf ear and all democratic initiatives proved futile.[5] The political situation in Eritrea is, therefore, deteriorating time and again bringing adverse developments within the Eritrean populace. It was amidst such situations that more than 600 Eritrean under and postgraduate students came to South African tertiary institutions to specialise in various fields. Most of them arrived at South Africa in 2000-2001.
As was already mentioned, Eritrea’s preoccupation was creating an opportunity for development by special schemes of human resources development programme. In achieving its short and long term development plans as well as facilitating its move towards democracy, Eritrea has been actively involved in various development programmes. The leading of such arrangements is the project known as “Eritrean Human Resources Development Programme – EHRDP” fully recognised and supported by the World Bank. This project is funded by an aid of US$ 53 million secured from the World Bank. The University of Asmara, the only university in Eritrea, coordinates the project on behalf of the Government of Eritrea. The project aims, inter alia, at training numerous professionals in foreign tertiary institutions so that the professionals would be able to fill identified strategic gaps in Eritrea. These include the positions of civil services, teachers training institutions, and teaching posts at the University of Asmara, etc.[6]
As part of the EHRDP, the University of Asmara decided to send more than 600 selected Eritrean students to study at South African tertiary institutions. Most of them were sent to obtain qualification on post graduate level. The first group of such students arrived at various South African tertiary institutions beginning from the year 2000. By that time, Eritrea was only re-emerging from the recent war it waged with neighbouring Ethiopia. What should have been an eventful journey from war to rehabilitation is, however, now known as unstable situation with fragile peace essentially due to the deteriorating political situation in Eritrea. As a result, many of the students in South Africa are not willing to go back to Eritrea despite the immense importance of the entire project to Eritrea and the fact that its success depends on the return of such students to Eritrea after completing their studies.
Prior to their departure, the students have “agreed” to return to Eritrea after completion of their studies, and to take up residence and employment in Eritrea.[7] However, the agreement is, as will be discussed subsequently, subject to controversy due to some negative developments that took place before and after its conclusion. Moreover, for reasons beyond the control of the students, many of them have absconded from the project, some after completing their studies, others at the middle of their studies, and others without even commencing their studies. This is of course a major blow to the Government of Eritrea which unfortunately turned out to be one of the leading autocracies in the new millennium.
3. The Dilemmas of the Contractual Obligation
Many of the students under this project are not willing to go back to Eritrea for a couple of reasons. It might be claimed by the regime in power that students are refusing to go back home simply because they have bee deluded by the relatively Western and affluent standard of life in South Africa. Nevertheless, their refusal is mainly due to defectiveness of the said contract and the deteriorating political crisis in their home country. The causes discussed below are more or less believed to be applicable to all students who are refusing to go back home after completing their studies.
Based on the tripartite contractual obligation, students are normally expected to return to Eritrea after completion of their studies. This seems to be acceptable in light of the fact that students have ostensibly undertaken to do so and serve the people and country under whose expense they were able to conduct their studies. This is believed to be a distinguished element of one’s national obligation.
However, the terms and conditions of the tripartite agreement, students have entered into with the University of Asmara and other South African institutions prior to commencing their studies, are strongly contested by many students on the following main grounds. Students believe that the contract is no more binding since it was a defective or unconscionable agreement from the very beginning and since the favourable conditions for its fulfilment are missing in the country at present time. These grounds will be discussed as follows.
3.1. A Defective or Unconscionable Contract
It is worth mentioning that initially students were asked to deposit an amount of Nakfa 150, 000 (One Hundred and Fifty Thousand of Eritrean Currency) as a guarantee for their return after completion of studies. However, the University of Asmara has shortly realised that such a requirement of surety was beyond the capacity of every student chosen to take part in the project. This happened after the students strongly contested the idea of depositing such a huge amount of money as surety. The University of Asmara, thus, replaced the initial requirement by a new contract drafted independently and without any prior consultation of the concerned parties, the students. By this, the contract lacked some of the main elements of a contractual agreement – a liberated consent of the students. Students were simply pressurised to sign the contract in a take-it-or-leave it approach. This is the main factor that made the contract unconscionable agreement.
Unconscionability is one kind of considerations of a general nature that, according to some South African writers,[8] can be regarded as a factor justifying rescission of a contract. One should look alertly into the circumstances that surrounded the process of transacting the contract at issue. Such circumstances have grievously impaired the equality of bargaining power of the students. The students have borne “undue influence and pressure” by reasons of their “needs or desires”[9] when entering into the contract.
For many students the contract was the only means by reason of which they were able to get an exit visa to leave the country. Although it may seem paradoxical, Eritreans are required to have an exit visa when they leave their own country for what so ever reasons. Eritrea is probably the only country, according to our knowledge, whose citizens are not allowed to leave without securing an exit visa prior to their departure. This can be proved by having a look at any Eritrean passport, including any passport of the students. To secure an exist visa a person must be loyal to the ruling elite without which he may not be allowed to leave his country. It merits to be noted that this is a flagrant violation of the fundamental right to freedom of movement guaranteed by the Eritrean Constitution (Article 19(9)) and some provisions of international human rights instruments to which Eritrea is a signatory.[10]
It follows that any Eritrean cannot secure an exit visa without prior authorisation from top government officials. Therefore, if one did not sign the contract under discussion, he would have not been able to exit the country even on non-academic grounds. The contract under discussion is an outcome of unsound government policy and irrational preconditions applicable to every Eritrean leaving the country. The agreement signed by students must be seen, therefore, in light of this prospect. Many students signed it as the only means for walking out from their country even those who had no plan to conduct further studies. Several students have manifested this by leaving the project after their arrival in South Africa.
A number of factors can be added to prove the ineffectiveness of the contract under discussion and to strengthen the decision of students not to go back to Eritrea. One of such factors is refusal on the part of the University of Asmara to fulfil some of its obligations under the terms of the contract (what we still believed a defective one). The University of Asmara has assumed full responsibility to fund expenses of accommodation, tuition fees and monthly fees for the period of study of every student in South Africa. At times, the University has withdrawn from its obligation for reasons not known to students. This has gone to the extent that the University of Asmara has made several illegal attempts, via the Eritrean Ambassador in South Africa, to send back forcefully some students before finishing their studies. The sponsor’s unwillingness in allowing students to finish their studies is not merely a contravention of the terms of the “contact” but also undermines the objectives of educational norm.
Ordinarily, many students came to South Africa to obtain qualifications on post graduate level in a time scale of two to three years. Some of such students have so far completed only their honours degree. In order to qualify for the degree of masters, they need to study for additional one or more years. However, many of them were informed last year to go back to Eritrea only with the degree of honours. This is unsound decision which has upset many of the students currently studying in various tertiary institutions. Students majoring in chemistry, economics, logistics management and geology at the University of Stellenbosch are some of the victims of the irregularity. Postgraduate students at the University of the Free State majoring in accounting, agriculture and mathematics are the other victims of such unsound decision. The same is true about undergraduate students at Cape Technikon majoring in cartography and post graduate students at the University of Cape Town majoring in food engineering, all of whom are instructed to go back to Eritrea without obtaining the relevant qualifications they came for. All the above students were told to do so by a letter written to every individual student from the Eritrean Ambassador in South Africa on the 2nd of December 2003. The stipends of such students were immediately discontinued exposing them to adverse economic hardship.[11] However, many of them are struggling to pursue their studies assisted by the generous support they have acquired from their respective universities. Nevertheless, they still need assistance to accomplish their studies and overcome some of their basic needs.
In some cases, for instance, students studying at Cape Technikon were pressurised to go back home regardless of the favourable conditions created by the institution to enable them accomplish their studies.[12] As a result of all such and similar irregularities, the University of Cape Town, at last, decided to categorically terminate the co-operative agreement it had with the University of Asmara, aiming at the promotion of the entire project of human resources development programme. The University of Asmara was informed of such a decision of the University of Cape Town by a letter written on 16 April 2003.[13]
The major cause of the above irregularities is believed to be the absence of a well researched work plan at the beginning of the entire programme of the EHRDP. As a result of such shortcomings, some students were assigned to wrong tertiary institutions which caused inevitable delay in completion of their studies. Students did not have the liberty even to choose the area of their specialisation when departing to South Africa.[14] Many of them were members of the Eritrean Defence Forces stationed at the front lines and literally fighting the three years war with Ethiopia. Most of them were sent to South Africa in a matter of one month notice or less. At that time they had no choice, but only to accept the offer given to them by the government without contesting some of the unjust terms of the agreement. For many students that opportunity was akin to a visa to heaven. This is the second major factor to consider the contract accurately unconscionable.
The Government of Eritrea sent the students when it learned it was lagging behind not only in the implementation of this particular project but also in all aspects of development programmes due to the war with neighbouring Ethiopia. That being the unavoidable consequence of the 1998-2000 war, the Government of Eritrea had to rush in sending the students to South Africa.[15] By such a hastening, the government had to prove its “effectiveness” in implementing the World Bank sponsored development programme so as to secure further assistance from the world’s number one development benefactor. The corollary of such a rush was inevitable which has caused a couple of inconveniences to several of the participants in the EHRDP.
One can obviously assess that let alone the contract students signed, but even the entire EHRDP was a flawed project from the very beginning. In the years and months that followed, the Eritrean Government, via its Ambassador to South Africa, did not try to rectify the loopholes of the project, instead it is still pressurising and threatening students to go back home even without completing their studies. The instant return of the students is a political game for the government by which it intends to prove a purported support of the intelligentsia, an ingredient severely lacking in present day Eritrea. The truth is, however, students find themselves in a very difficult situation of unaccomplished end due to the absence of a well researched strategic plan at the beginning of the entire project. Several students have spent a considerable amount of time moving from one to another university and looking for an appropriate tertiary institution. They have not so far completed their studies, but are forced to go back home regardless of that. Accounting students, who first arrived at the University of the Free State and moved to the University of Cape Town, after one year, are one of the best examples.
Apart from the above contentions, we would like to mention the relevant facts about the opportunity of employment of those who have already left for Eritrea after completion of their studies. Some of the returnees have not so far secured jobs pertinent to their profession and specialisation. Some of them have also been sent to Sawa military camp immediately after their return and irrespective of the qualifications they earned of. This is indisputable in light of the fact that one cannot secure decent job and life in Eritrea unless one is loyal to the ruling party, the pre-requisite factor being party loyalty instead of merit and skill. Some of the returnees have been also subject to unlimited scheme of national service programme for which reason many Eritreans are abandoning the country often at a great risk to their lives. It is worth noting that such a scheme also includes recruitment in the army without sufficient salary and for unlimited period of time under the pretext of the threat of war from neighbouring Ethiopia. This is undeniable in spite of the fact that every professional sector in the country is suffering from acute shortage of skilled work force.
Another important point worth mentioning is the severe implications of the contract that went to an extent which jeopardised the fundamental rights of the students to entitlement of degree certificates. Some South African universities have categorically denied handing over degree certificates to Eritrean students on the grounds of the said contract. It is true that under the contract South African universities are obliged to hand over degree certificates only to the Eritrean Government.[16] However, this is one of the most irrational aspects of the contract for which reason many students are demanding its annulment. Therefore, the unconscionability of the agreement must be seen jointly in relation to the restraint the contract has imposed on the students. Such a restraint is another major factor that could justify rescission as was opined by some South African writers.[17]
Several universities have handed over degree certificates to students regardless of the contractual obligation they undertook. Some universities did not enter in to such type of unusual contract, taking in to account the consequence and the infringement of individual rights of the students, right from the beginning. This is truly commendable. However, some have insistently denied students of their degree certificates based on the said contract the terms of which are strongly contested by students.[18] Under all circumstances, students are the only persons entitled to get the degree certificates which are the outcome of their personal capacity and achievement. From a human rights point of view, this is the most appropriate thing all South African universities must adhere to regardless of the terms of the agreement which we believe are null and void as expounded in the previous premises.
The end result of all the above factors is, therefore, reaching a conclusion which holds that the contract we have signed is a defective or unconscionable contract in the sense that it is an outcome of a flawed government policy of human resources development programme launched by the University of Asmara which is a highly politicised institution in Eritrea. The fact that the EHRDP by itself was a blemished project from the very beginning reiterates the defectiveness of the agreement from the start. Moreover, the agreement is an outcome of irrational government preconditions applicable equally and in various forms to all Eritreans leaving the country for what so ever reasons and not necessarily to the students only. Besides, the contract has irrationally undermined the fundamental rights of the students such as the right to entitlement of a degree certificate, and the right to freedom of movement. The contract is, therefore, equivalent to unconscionable agreement which was not signed on equal footing, but “by taking advantage of the want”[19] of the students. The immediate effect of this should be to disregard the contract as null and void.
The next section will discuss the second major factor for the ineffectiveness of the contact.
3.2 The Unfavourable Conditions
The political situation in Eritrea is deteriorating time and again bringing adverse political developments within the Eritrean populace. This is particularly true from the year 2000 at which time many of the students begun to leave Eritrea for South Africa. The current regime in Eritrea is one of the few known for their alarming records of human rights abuses. A once promising African country, Eritrea, has recently been identified, by many international entities and democratic dispensations, as a thwarted model of emerging democracy[20] which collapsed in the hands of distrustful despots. As to the reliability of this account, reference can be made to the annual reports and concerns published by many reputable sources such as Amnesty International, Human Rights Watch, the EU, USA, Inter-Parliamentary Union, several renowned writers, major Eritrean opposition groups, etc.[21] Most importantly, reference must be made to the recent landmark ruling of the African Commission on Human and People’s Rights[22] as well as the latest position of UNHCR[23] on the return of rejected asylum seekers to Eritrea.
Unlike other newly emerging states, Eritrea is lagging behind in the sense that it has not so far committed itself to a genuine and peaceful transition to democracy. This is true particularly from September 2001 at which time the government’s blatant autocrat deeds begun to materialize officially and unashamedly. These include the following disturbing incidents, counting also other unpleasant events that took place before the year 2001:[24]
- the
hunt of Jehovah's Witnesses, from early 1990's until now, for refusing to take part in
national referendum and military training programmes due to religious
reasons
- the brutal repression of the mutiny of war disabled veterans and former combatants in 1993
- the extra-judicial execution of hundreds of Eritreans on the grounds of sympathising with opposition groups or religious fundamentalism, in 1997
- the extra-judicial execution of hundreds of soldiers on the grounds of "treason" in the 1998-2000 war with neighbouring Ethiopia[25]
- the abuse and sexual harassment of female army members in military camps at several instances
- the arbitrary arrest of the president of the University of Asmara’s Student Union, in August 2001 (who escaped prison after a year and currently in exile in Sweden)
- the detention of thousands of university students in military camps, in August 2001 as a punishment for their peaceful and non-violent opposition to government policies and the arrest of the president of their union
- the dismissal of the Chief Justice/President of the High Court - the highest court in the country - in August 2001, after he published his eminent paper entitled The Eritrean Judiciary: Struggling for Independence[26]
- the detention of prominent political dissidents and elders who sought mediation between the government and its critics, in September 2001
- the ban of all independent papers and the arrest of their editors and writers, in September 2001
- the outlaw of several Protestant and Evangelical Churches and the hunt of their followers from May 2003 until now
- the encampment of thousands of the youth in military camps, from 2003 until now, on the grounds of "improved curriculum", but actually for purposes of forced labour and prolonged and unpaid military/national service
- etc.
- the brutal repression of the mutiny of war disabled veterans and former combatants in 1993
It was during such epoch of disenchanted transition and escalation of despotism that the students signed the agreement with the government and departed to pursue further studies safely in South Africa. In the months and years that followed, there were optimism and hope that the leaders would regret the injustices they have perpetrated and would commit themselves to a peaceful and negotiated transition. To the dismay of many students, things are deteriorating time and again fetching adverse political developments of alarming nature. As a result, Eritreans are continually abandoning their motherland often at great risk of their lives. For obvious reasons, those who have already left the country, including students in South Africa, are not willing to go back to Eritrea until circumstances change favourably.
4. Human Rights Violations against the Students
Several meetings have been convened in South Africa by top government officials, including the President of the State Isaias Afewerki, in which a number of students have addressed the seriousness of the political crisis Eritrea is stumbled on.[27] However, students were blatantly intimidated on such occasions by the irresponsible reply given to their questions. They were pressurised to condemn scores of political prisoners and reformers arbitrarily detained by the regime in power. Regrettably, the funds of the program were also politicised and used as an effective means of retaliation against dissent, that being a major factor for many students to stay calm until recently.
Moreover, many students favoured silence considering the opportunity for higher studies offered to them at the expense of the Eritrean people. On the face value, the sources of funding for their studies are the coffers of Government of Eritrea, but actually the responsibility of paying back the World Bank debt lies not on the shoulders of the present repressive regime which will be ousted very soon, but practically on the shoulders of the Eritrean public and next generations to come. The likely failure of students in their studies is, therefore, something that can undermine the aspirations of Eritrea and its people. At any cost students had to give priority to their educational career until such time when they would be able to oppose tyranny safely and without any pressure.
Out spoken disobedience proved to have its own serious ramifications – the major impact being termination of stipends, accommodation, health insurance, tuition and other fees. The golden opportunity offered to students was meant to contribute to the enhancement of the Eritrean public and economy. Hence, students had to avoid disruption of what so ever nature and accomplish their academic career after which they would gain more competence to say no to subjugation. This is indisputable fact by majority of the students and in the long run such intent is believed to be of dual purpose – killing two birds with one bullet. If there is something successfully accomplished by the people in power, it is their shrewdness in sowing seeds of suspicion and doubt amongst Eritreans every where. For many students it was hardly possible, until recently, to effectively avoid the obstacles of such filthy business.
Coming back to the major point of silence, we will explain now why many students were not daring enough to speak and act publicly against the leaders.We have seen in our own eyes some fellow students illegally deported from South Africa. We have witnessed the stipends of some fellow students discontinued arbitrarily after challenging the President of the State in the Durban Meeting in July 2002. The same is true about people who are believed to be politically disobedient. The most pertinent example is the case of Hussein Mohammed, an Eritrean student from the University of Cape Town, whose stipends were terminated instantly after he challenged President Isaias Afewerki in the Durban Meeting for detaining his father without due process of law.
This happened on 8 July 2002 when the Head of State convened all Eritrean students in Durban, South Africa. He came to partake in the inaugural meeting of the African Union in the middle of which he called the meeting of all students. Asked by Hussien as to when the government will release political prisoners or bring them to a court of law, including his father, the President answered blatantly:[28]
Whenever we feel like doing so. Do you have any idea about the Guantanamo Bay in Cuba, where the United States has detained prisoners of Taliban for reasons of national security? So can we do; just like that. We can detain people whom we believe are a threat to our national security, if we want indefinitely. We will bring them to trial when we feel like doing it, in a closed session of a special court in which we try secretly those who are a national security threat…
In another question the president was asked as to what incentives would his government provide to students who are studying in South Africa so that they would return home after completion of their studies. The president answered:
I had anticipated this question. When I was leaving Eritrea, to come here, they told me, lest you vanish, to meet with you and advise you to come back home. I told them 'Globalisation is Equalizer.' If there is money, there is no problem. You can import people. In the past, we looked for and couldn't find labourers and construction workers. We imported from Sri Lanka, the Philippines and India. Yesterday, we were looking for five architects and we brought them form the Philippines. If we cannot find a professor, we go to India and import him. So, if one says, "I want to go to America," let him try it … [one can only secure cheap jobs].[29]
It needs no special wisdom to realize how desperate every one was at that night to hear such contemptuous words from one's own president. With such desperation, with the inevitable delay in the process of asylum application and the unpromising protection accorded to asylum seekers and foreigners in South Africa, many students were discouraged to act publicly or even to apply to asylum status in South Africa.[30] South African authorities, especially in the Department of Home of Affairs, have been always agreeable to assist and implement any kind of instruction given to them by the Eritrean Ambassador to South Africa without even questioning the validity of such instructions. By now, a considerable amount of evidence has been accumulated about this.[31]
Consequently, many students opted to leave South Africa and move to other safer countries where they can securely protest the tyranny in Eritrea. Nonetheless, there are many of them who opted to fight Eritrean despotism clandestinely within South Africa via the series of articles and poems published under pennames and real names. Such articles and poems criticised flawed government policies and misconduct of the leaders and were widely published in major opposition web sites in exile.[32] Several discreet meetings were also convened among such students in various South African universities aimed at discussing the fate of their home country. At the moment, such students are formalising an organization by which they can wage a peaceful and official struggle against the dictators in Eritrea, safeguard their rights in South Africa and ultimately contribute their share in the democratisation of Eritrea. The name of the organization is yet to be formalised and its draft constitution to be adopted. The organization and its drafted constitution are being registered in a form of voluntary association that will be publicised soon pursuant to relevant South African laws.[33] Certain paragraphs of the Preamble of the Draft Constitution of the said organisation provided as follows:
We, the undersigned Eritrean residents and students, in the Republic of South Africa:
…
Cognizant of the severe deterioration of political, social, and economic situations of [our] country in the past few years; hence, realizing the incapability of the current government to maintain a stable and peaceful Eritrea with a sustainable democracy, which guaranties its citizens’ dignity and prosperity;
…
Reaffirming the formation of our [organisation] in Pretoria on the 3rd of December 2003, to bring a constructive change by creating a platform for Eritreans to facilitate discussions and debates on various important national issues and by enlightening the world community;
Now therefore, solemnly adopt the following Constitution of our [organisation].
Due to the worsening political situation in Eritrea, by now many students find themselves in complete disagreement with the ruling elite. Their independent mind and inquisitive nature have already created antipathy with the Eritrean Government. Many of them have participated in organising and mobilising Eritreans in South Africa to the effect of conducting a peaceful march aimed at condemning the injustices perpetrated by the current regime and disseminating petitions having the same effect to various international organisations and heads of missions in South Africa and else where. The best example of such commitments is the petition disseminated via the Office of the President of the Republic of South Africa, at Union Buildings in Pretoria, on the 4th of December 2003.[34]
For this and other reasons, many students have received intimidating messages by email and other mediums which forced them to reconsider their decision of going back home after completion of studies. Apparently, they cannot go back home on account of “a well-founded fear of persecution” and possible retaliatory measures as has been done against numerous political opponents of the government. The evident thing that could happen to them, if they depart back home, is arrest without having a day in a court of law or possibly extra-judicial execution.
In this regard, mention can be made to certain examples of deportations or attempted deportations of Eritreans from South Africa and other sad events believed to be backed by the Eritrean Ambassador in South Africa. By feeding distorted information to the South African Government officials under the pretext of the “contract” students have signed prior to coming to South Africa, by the benefits of his diplomatic status and other deceitful acts, at times, the Ambassador was able to cause the arrest and illegal deportation of some innocent Eritreans, threaten to deport others who are believed to be dissenters, arbitrarily restrict the right to freedom of movement of every Eritrean student in South Africa and revoke the right to passport of several students.[35]
The Ambassador has illegally revoked and denied to renew the passports of several Eritreans at several instances. He has outwardly restricted the freedom of movement of all Eritrean students in South Africa by instructing the Department of Home Affairs and all heads of missions in South Africa not to grant a visa or necessary authorisation to any Eritrean student in South Africa wishing to travel abroad on any account. This was done officially by a letter written from the Eritrean Embassy to the above bodies on 9 December 2002. Such a restriction is still effective against all Eritrean students in South Africa inconveniencing their private lives, but above all things violating their constitutional right to freedom of movement as guaranteed by Section 21(1)-(3) and Article 19(8) of the South African and Eritrean Constitutions respectively.[36]
Consequently, many students have sustained a great deal of moral and material damage. In some cases, students were arbitrarily arrested by South African authorities in what is believed contrary to the South African constitutional order, merely on account of the instructions given to the authorities by the Ambassador.
Some of the students who have been exposed to such violations of human rights include Isaak Habte and Rahel Tesfamariam from the University of Cape Town, Yared Teka from the University of Western Cape, Solomon Russom from the University of Stellenbosch, Amanuel Belete, Tsegay Gebreyohans and Samuel Andeberhan from the University of the Free State. The latter (Samuel Andeberhan) was saved from unwarranted deportation by what can be said a miraculous phenomenon only recently, on the 6th of February 2004. He was saved by a marvellous order of the High Court of South Africa, Transvaal Division which reached Johannesburg International Airport only a few minutes before Samuel boarded the flight of deportation.[37]
On the 7th of April 2004, one day only before Good Friday, Abraham Ogbayonas Tekle was saved similarly by the generous assistance of the Legal Resources Centre in Cape Town.[38] Isaak and Rahel were, unfortunately, deported last year without the knowledge of their host university and an appropriate South African court.[39] The other students Yared, Solomon, Amanuel and Tsegay were made arbitrarily arrested and nearly deported by the involvement of the Eritrean Ambassador in South Africa and unjustified assistance of the Department of Home Affairs.
One might argue that in the first place the students would not have been selected for the EHRDP, if there was any possibility of them being persecuted by their government. However, it should be noted that the grounds that qualify many of the students for protection under the eminent phrase “well-founded fear of persecution” materialised largely after their arrival to South Africa. By the time they arrived at South Africa, many of them of course did not flee Eritrea for fear of persecution. It is true that many students came under rigorous selective procedures of government sponsored scholarship. Nonetheless, this does not mean that they are safe to return to Eritrea now. At this time many of them have become leading figures in mobilising Eritreans in South Africa against the tyranny in Eritrea. Therefore, it would be quite logical to conclude that such students should not be compelled to return to Eritrea, but should be accorded with adequate protection in the country they are sojourning now.
Historically, South Africa was a classic example of refugee-producing country. During the apartheid era, many South Africans were forced to leave the country due to the increasing severe attacks against and arrest of many political movement leaders by the state.[40] All who fled the country were given legal protection by many countries in the world thereby enabling them to mobilize their struggle against the apartheid system. The support and protection that have been accorded to South Africans when they needed it yesterday must not be denied to others when they seek it today in democratic South Africa. Most importantly, special protection must be accorded to those groups of refugees who fled their countries mainly due to excessive brutality of their governments. One of such group of refugees are Eritreans who are currently scattered at every corner of the world because their government proved to be one of the most repressive regimes the world has ever seen since the beginning of the new millennium.
In this regard, we would like to refer to the recent judgement of the Constitutional Court of South Africa in which Yacoob J has opined remarkably as follows:[41]
The very fabric of our society and the values embodied in our Constitution could be demeaned if the freedom and dignity of … foreigners are violated in the process of preserving our national integrity.[42]
These rights are integral to the values of human dignity, and freedom that are fundamental to our constitutional order. The denial of these rights to human beings who are physically in side the country … would constitute a negation of the values underlying our Constitution.[43]
The right to [freedom] has particular significance in the light of our history during which illegitimate detentions without trail of many effective opponents of the pre-1994 government policy of apartheid abounded. We must never again allow a situation in which that is countenanced.[44]
The above opinion of the court must be seen in light of the illegal cancellation of passports the Eritrean Ambassador is practicing in a daily basis. Thus far, the Ambassador has unlawfully cancelled eight passports of innocent Eritrean students. That is the only way by which he can suppress the political disobedience of dissidents who are lucky enough to leave Eritrea safely. One might wonder how the Ambassador cancels a passport simply because he wanted to do so. This is of course one of the dilemmas the solution of which we are looking from an appropriate body in South Africa. The Ambassador can do so any time unless some kind of restriction is made on his arbitrary command.
Once the Ambassador cancels a passport, a student becomes vulnerable and subject to the controversial phrase “illegal foreigner” to which recourse is made routinely by the Department of Home Affairs without validating the circumstances that led to such a situation.[45] In several instances, South African authorities proved too eager in believing the reports coming from the Ambassador and implementing his instructions without allowing Eritreans to protect themselves by every possible means recognised under the law.
To sum up, one of the pre-occupations of Eritrean students in South Africa is to seek appropriate relief for the above damages in a suitable South African, regional or international court of law in which we would be able to ascertain our rights. In this regard, students are optimists in the sense that several individuals and organisations will be in support of the noble objectives we all aspire to achieve.
5. Conclusions and Recommendations
In light of the above arguments, it can be concluded that the agreement students signed with the University of Asmara prior to their departure is unconscionable or defective in the sense that students were not on equal footing with the government when signing the agreement. They were at a disadvantaged position at the time of signing the contract. They believe the contract was an outcome of unbalanced government policy and flawed programme of human resources development plan of the University of Asmara which is only a politicised institution serving the interests of the ruling elite. The contract has undermined certain fundamental rights of the students by “taking advantage of their wants”. Hence, the terms of the agreement should be rendered inoperative due to all such factors.
Alternatively, if the contract is said to be operative, we hold the position that the favourable circumstances for its fulfilment are missing in the Eritrean present reality. These favourable conditions include, among other things, accountable and democratic governance, sound economic policies, the provision of basic pillars of human rights and decent public services and so on. One should not be forced to go back to his country and serve his people without these factors put in place.
What is more, students are being pressurised to return to Eritrea regardless of the perils they may encounter after repatriation and irrespective of the fact that some of them have not earned the qualifications they came for. The ultimate objective of such a pressure is purely political. Given the level of desperation of the Eritrean people towards the legal, political and economic situation in the country, one can easily assess that the government is totally isolated from the people. The government is trying to conceal such isolation by pressurising students to return to Eritrea at any cost thereby sending a message which sounds like:
The government enjoys full support of its citizens especially from the intelligentsia irrespective of accounts of autocracy portrayed by “foreign forces” and “enemies of the country”. This can be proved by the number of students who are coming back to their country regardless of alleged accounts of despotism.
It goes without saying that the decision of students to refuse to go back to Eritrea is justified in terms of an appropriate account of the relevant circumstances in the country. The immediate effect of this would be, therefore, to disregard the contractual agreement and not to force them to go back to their home country when circumstances to do so are no more encouraging. Moreover, the incessant acts of the Eritrean Ambassador to South Africa in pressurising students to go home should not be tolerated any more. The unwarranted assistance he has secured from the Department of Home Affairs by which he is enforcing his dishonest claims should be challenged properly. If the Ambassador and his government think that they have certain entitlements they can claim from the students, they should do so only through proper means, simply put, in a court of law. The intolerable restrictions the Ambassador and the Department of Home Affairs have put on the constitutional right to freedom of movement of several Eritrean students must be lifted by all appropriate means.
Finally, the Ambassador and the Department of the Home Affairs must be held accountable[46] for the moral and material damage they have caused on blameless Eritrean students as a result of the irresponsible acts of the Ambassador and the unwarranted assistance he has secured from the Department of Home Affairs. Equally, the moral and material damages sustained by the students must be rectified by proper mechanisms of appropriate relief as provided in the South African Constitution and other relevant laws. Students are mainly concerned about their human dignity and integrity, their freedom of movement and speech, and the deterrence of the illegal actions perpetrated against them.
Eventually and believing that the problems of the students will get the necessary attention, we would like to stress on the following essential points.
South Africa, as a state, founded on "human dignity, the achievement of equality and the advancement of human rights and freedoms," should stand guard against any kind of abuses refugees might encounter. This will truly accelerate the realization of the democratic commitments South Africa aspires to. It must be seen hand in hand with the obligation the country has assumed by reason of assenting to prominent international and regional instruments on the protection of refugees.[47] The manner in which a given country treats foreigners tremendously concerns the international community. If a state admits a foreigner into its territory, its treatment should conform to internationally determined standards. Therefore, South Africa has to provide protection that complies with civilized standards.[48]
South Africa and South Africans have the moral and legal obligation to nurture a global culture of human rights in which the values of dignity, democracy, human rights and rule of law are cherished and protected. One must realise that in the rapidly globalizing world the principle of state sovereignty is a fundamentally out-dated conception especially with regard to the protection of human rights under which the protection of refugees are of the main categories.[49] This emanates from the notion that human rights issues are no more domestic affairs which solely concern a particular nation.[50] As a result, countries have begun to move toward a millennium in which the idea of human rights will shape the aspirations of people around the world.
This is a reflection of the profound change in individual and government attitude as well as a widespread recognition of the need to render effective international protection to human rights.[51]Governments may seek the shelter of the old view of international law and hide their actions behind the veil of national sovereignty giving rise to the theory of cultural relativism.[52] However, at the very least states are morally bound to respect what are internationally recognized as minimum standards of civilized behaviour. Any kind of treatment a nation accords to citizens or foreigners must comply with such standards.[53]
South Africa, as of one of the leading democracies in the African continent and a country blessed with people like Nelson Mandela should no more tolerate the snubbing of individual rights of Eritrean citizens in South African primarily necessitated by the unwarranted involvement of the Eritrean Ambassador to South Africa.
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[1] The background of this essay is a petition, submitted to regional and international organisations and heads of missions in South Africa via the Office of the President of the Republic of South Africa, at Union Buildings in Pretoria, on the 4th of December 2003. The petition was prepared by Eritrean students, residents and refugees in South Africa. Several other articles written by the petitioners and other people, as acknowledged herein, have also been used in preparing this work. We have also made an extensive use of the Draft Constitution and the Project Proposal of the organisation Eritrean students and residents are formalising in South Africa.
[2] LLB (Asmara), LLM (Stellenbosch); former Judge of Zoba Maekel Regional Court, Asmara Eritrea; African Judicial Network, Network Development Committee Member; currently in exile on account of “well-founded fear of persecution”.
[3] LLB (Asmara), LLM (Stellenbosch); former President of Zoba Semenawi Qeyh Bahri Regional Court, Massawa, Eritrea; currently in exile on account of “well-founded fear of persecution”.
[4] A boundary commission has already given a decision on the disputed land, but due to reluctance of the Ethiopian Government to accept the outcome, the decision is yet not implemented.
[5] See the letter authored by the reformers, know as G-15, and usually quoted as “An Open Letter to all Members of the PFDJ: A Call for Peaceful and Democratic Dialogue,” online: Asmarino.com Home Page, <http://news.asmarino.com/PFDJ_Membership/Introduction.asp> (date accessed: May[?] 2001); see also the “The Chronology of the Reform Movement,” online: Awate Research Unit, Awate Foundation Home Page <http://www.awate.com/cgi-bin/artman/exec/view.cgi/17/578/printer> (date accessed: 5 December 2002); “Open Letter to President Isaias Afewerki (the so called “Berlin Manifesto”),” online: Eritrea One Home Page <http://eritreaone.com/Archive/FebruaryArchive.htm> (written October 3 2000, date accessed: 2 April 2004).
[6]World Bank “Eritrea, Human Resources Development Project,” online: World Bank Home Page, <http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:20026851~menuPK:34471~pagePK:40651~piPK:40653~theSitePK:4607,00.html> (dated accessed 15 January 1998).
[7] See section 4.3 of the agreement. See also section 8 of the agreement which stipulated that the “interpretation, implementation and remedies pursuant to breach of this agreement shall be governed by the laws of South Africa.” In this regard, a note must be made about the fact that no signature of certain parties of the agreement appears in certain copies of the original agreement until this time; none of such original copies are in possession of neither the Eritrean Government nor the respective universities.
[8] Schalk van der Merwe et al Contract: General Principles (Juta & Co: Cape Town, 1994) at 96. The writers opined that “the fact that the result of a contract is greatly inequitable, or oppressive or unconscionable may also be contributing factors which would justify rescission.”
[9] Ibid. See the English case Lloyds Bank v Bundy (1975) QB 326 339 as quoted by the authors; compare also Article 1710(2) of the Transitional Civil of Code of Eritrea which provides as follows:
“Where justice requires … [a] contract may be invalidated as unconscionable where the consent of the injured party was obtained by taking advantage of his want …”
[10] Compare section 21(1) and (2) of the South African Constitution. It is worth noting that Eritrea is a member and a signatory to major international bodies and human rights instruments which include mainly but not only the United Nations Charter, the African Charter on Human and People’s Rights, the Universal Declaration of Human Rights, the Covenant on Civil and Political Rights, the Covenant on Economic, Social and Cultural Rights and the Convention Governing the Specific Aspects of Refugee Problems in Africa. See “Status of Ratification of the Principal International Human Rights Treaties,” on line: UNHCHR Home Page <http://www.unhchr.ch/pdf/report.pdf> (date accessed: 2 November 2003).
[11] See the contents of the letter sent from the Ambassador to certain Eritrean students on the 2nd December 2003. The case of Abraham Obgayonas Tekle who was arrested by the Immigration Officers in Cape Town on the 7th of April 2004 and released on 8th of April 2004, on the eve of Good Friday, is the best example of such students.
[12] See the contents of the letter sent from Cape Technikon to the Eritrean Ambassador in South Africa on 1st September 2003.
[13] See the contents of the letter sent from the University of Cape Town to the University of Asmara. The letter is one of the best manifestations of the unwillingness of certain South African universities to cooperate with the only Eritrean University which is nothing but a politicised institution without academic freedom.
[14] The writers of this essay were, for instance, sent to major in Law of Contact (Samuel B Abraha) and Law of Property (Daniel R Mekonnen) without having the opportunity to choose their area of specialisation; but they shifted to IBT and Human Rights Law respectively once they arrived at Stellenbosch University. See the letter of assignment of fields of specialisation for postgraduate students at the Eritrean Ministry of Justice as attached in the article of Daniel R Mekonnen “Wedi Itay: Another Hero Languishing Behind Bars,” online: Featured Articles, Awate Foundation Home Page <http://www.awate.com/artman/publish/article_3199.shtml> (date accessed: 30 March 2004).
[15]“Hasty Travel for Higher Education,” online: Gedab News,Awate Foundation Home Page, <http://www.awate.com/cgi-bin/artman/exec/view.cgi/18/1504> (date accessed: 12 November 2000).
[16] See sections 4.4 and 5.4 of the agreement.
[17] R H Christie The Law of Contract in South Africa 3ed (Butterworths: Durban, 1996) at 409-414.
[18] In light of the continuous discussions students are having in connection to this particular point with the relevant university, we would like to point out that we are following the results of such discussions attentively. We hope the problem will be solved amicably; until then, we opt not to resort to any legal remedy we are entitled under the law.
[19] See note 9 supra.
[20] See Daniel R Mekonnen “The Role of Newly Emerging Democracies in the International Protection of Human Rights: With Specific Reference to Eritrea,” (unpublished PhD proposal submitted to and approved by the University of Aberdeen in 2003).
[21] For further details and reports about the government’s ever-growing autocrat deeds, reference can be made to “Crimes Committed in Zemene Isaias,” online: Eritrean Human Rights Advocacy Group (EHRAG), Awate Foundation Home Page <http://www.awate.com/artman/publish/article_2888.shtml> (date accessed: 4 January 2004); “Human Rights Overview: Eritrea,” online: Human Rights Watch Home Page <http://hrw.org/english/docs/2004/01/21/eritre6987.htm> (date accessed: January 2004); US Department of State “Country Reports on Human Rights Practices - 2003,” online: US Department of State Home Page <http://www.state.gov/g/drl/rls/hrrpt/2002/18202.htm> (date accessed: 11 March 2003); “Human Rights Watch World Report 2003,” online: Human Rights Watch Home Page <http://www.hrw.org/wr2k3/africa4.html> (accessed on 14 January 2003); “Inter-Parliamentary Union: Resolution Adopted Uninanimously by the Governing Council at its 173rd Session,” online: Inter-Parliamentary Union Home Page <http://www.ipu.org/english/issues/hrdocs/173/eri01.htm> (accessed 5 October 2003); “European Parliament Resolution on Eritrea,” online: European Parliament Home Page <http://www4.europarl.eu.int/registre/recherche/ResultatsAbreges.cfm> (date accessed: 7 February 2002); “Amnesty International Report: Arbitrary Detention of Government Critics and Journalists,” online: Amnesty International Home Page <http://web.amnesty.org/library/Index/engAFR640082002?OpenDocument&of=COUNTRIES\ERITREA> (date accessed: 18 September 2002); “Open Letter to President Isaias Afewerki”; “A Call for Peaceful and Democratic Dialogue” and “The Chronology of the Reform Movement” in note 5 supra”. For a well narrated account of the recent political developments in Eritrea see also Dan Connell “Enough: A Critique of Eritrea’s Post-Liberation Politics,” online: All Africa.com Home Page <http://allafrica.com/stories/200311060876.html> (posted and accessed on 6 November 2003); Paulos Tesfagiorgis “In search of a Normal Eritrea,” online: Eritrea One Home Page <http://eritreaone.com/pipermail/opinion_eritreaone.com/2003q4/000001.html> (date accessed: November 3 2003); Martin Plaut “The Birth of Eritrean Reform Movement” ROAPE 91 (2002) at 114-122; Adhanom Gebremariam (translated by T.Giorgis Zewde) “The Warsay/Ykalo Campaign – A Campaign of Slavery,” online: Eritrea One Home Page <http://news.asmarino.com/Articles/2002/09/TesfagiorgisZewde-1.asp> (accessed on September 2002); “Interview with Ambassador Abdella Adem” online: Awate Team, Awate Foundation Home Page <http://www.awate.com/artman/publish/article_2973.shtml> (date accessed: 25 January 2004); Saleh A A Younis “Why We Should (And Will) Dialogue?,” online: Alnahda, Awate Foundation Home Page <http://www.awate.com/artman/publish/article_2596.shtml> (date accessed: 13 November 2003); Yosief Ghebrehiwet” The Continuous Deferral of Civil Liberties: The Culture of Martyrdom,” online: Asmarino.com Home Page <http://news.asmarino.com/Comments/July2003/YosiefGhebrehiwet_01.asp> (date accessed 1 July 2003)
Yosief
Ghebrehiwet
”Demarcation
First, Reform Second?: Eritrea's
Greatest Liability,”
online: Asmarino.com Home Page
<http://news.asmarino.com/Comments/July2003/YosiefGhebrehiwet_28.asp> (date
accessed: 28 July 2003). Due to the multitude of reports, interviews, news
outlets, press releases and other documents, only the most relevant and
recent sources are cited.
[22] “Mussie Ephrem v Government of Eritrea: AU's Ruling; Government's Response,” online: EHRAG, Awate Foundation Home Page <http://www.awate.com/artman/publish/article_3194.shtml> (date accessed: 27 March 2004).
[23] “UNHCR Position on Return of Rejected Asylum Seekers to Eritrea”, January 2004.
[24] Supra note 21.
[25] The only available report of such a massacre, still unconfirmed by an independent source, is the Tigrigna report given by the Popular Movement for the Liberation Rights of Eritrea and posted as “Truth and Accountability,” online Asmario.com Home Page <http://news.asmarino.com/Information/2003/10/images/PMLRE_1_23.gif> (date accessed 23 October 2003).
[26] We personally assert that the arbitrary dismissal of the Chief Justice was the biggest blow on the independence of the Eritrean Judiciary. It has added a lot to the devastation of the already non-independent Eritrean Judiciary. See also Teame Beyene “The Eritrean Judiciary: Struggling for Independence (a paper submitted to the Conference on the 10th Anniversary of Eritrea’s Independence – Asmara May 2001),” online: Asmarino.com Home Page <http://news.asmarino.com/Comments/August2001/kidaneHG_08_23.asp> (date accessed 23 August 2001).
[27] Other meetings
include those convened at various times by the President of the University
of Asmara, Dr Wodeab Yishak, the former Advocate General Mr Mussa Hussien
Naib, another senior government officer by the name Mr Andeberhan
Woldegiorgis and the Eritrean Ambassador to South Africa Mr Tesfamichaeal
Gerahtu himself. In all of these meetings, several controversial issues
were raised by students which were not adequately addressed by the
conveners. In all instances, the officials, especially the Ambassador, did
nothing but only intimidated those who asked challenging questions,
discontinued their bursaries, revoked their passports, made them deported
and arrested arbitrarily by South African authorities under the pretext of
contractual obligations. For further details see Stringer # 17 (a coded
name of Daniel R Mekonnen) “South
Africa: Eritrean Students Deported, Arrested,” online: Gedab News,
Awate Foundation Home Page
<http://www.awate.com/artman/publish/article_1503.shtml>
(date accessed: 8 June 2003);
Stringer # 17 “Mr. Musa
Naib & Dr. Weldeab Isaac's South African Tour,” online: Gedab
News Reportage, Awate Foundation
Home Page <http://www.awate.com/artman/publish/article_1644.shtml>
(date accessed: 2 July 2003); Mskr
Ayni (meaning Eye Witness, a penname of Daniel R Mekonnen ) “South Africa: Students Stipends
Delayed,” online: Gedab News, Awate Foundation Home Page
<http://www.awate.com/artman/publish/article_1952.shtml>
(date accessed 5 August 2003).
[28] See also Gedab News “President Isaias Afewerki in South Africa: A Partial, Near Verbatim Transcript of the Questions and Answers Session with Eritrean Students,” online: Awate Foundation Home Page <http://www.awate.com/GEDAB/isayas_students_15july02.htm> (date accessed: 15 July 2002); see also FtHi Ynges (meaning Let Justice Reign, a penname for Daniel R Mekonnen) “Durban ab Ameta” – a satirical Tigrigna (Eritrean language) poem inspired by the Durban meeting and versified to divulge the contempt of the current regime on the Eritrean people: online Shimagle.com Home Page <http://www.shimagle.com/AabOameta122203.htm> (date accessed: 22 December 2003).
[29] Ibid.
[30] This is the main
reason that compelled certain Eritreans to flee to Ethiopia, a country
still regarded as number one enemy of Eritrea. The guys left for Ethiopia
only recently after the miraculous rescue of Samuel Aandeberhan from
prison and illegal deportation. For further details see Eritrean Students and Residents in
Pretoria, South Africa “Hunger Strike at the UNHCR Office in Pretoria,
South Africa,” online: Talking Point, Asmarino.com Home Page <http://zete.delina.org/zete/79.asp?quSri=79>
(date accessed 5 February 2004); Eritrean Students and Residents in
Pretoria, South Africa “Justice Has Prevailed!,” online: Talking Point,
Asmarino.com Home Page <http://zete.delina.org/zete/79.asp?quSri=79>
(date accessed 6 February); Eritrean
Students and Residents in South Africa “The Conspiracy and the Victory,” online: Talking
Point, Asmarino.com Home Page <http://www.eritreancommunity.com/insidelink6.htm>
(date accessed: February 2004); Rusom Mesfin “Exclusive Interview
with Eritrean Students in South Africa,” online: Face the Erespora,
Asmarino.com Home Page <http://dmsi.delina.org/FTE/CURRENT.ASP>
(date accessed: February 2004); Rusom Mesfun “Ambassador T. Gerahtu
Declines to Answer Questions (An Interview in Tigrigna - Audio),” online: Face
The Erespora, Asmarino.com Home Page <http://dmsi.delina.org/FTE/southafrica/gerahtu.asp>
(date accessed: 9 February 2004);
Eritrean Students and Residents in South Africa “Press Release,” online:
Talking Point, Asmarino.com Home Page <http://zete.delina.org/zete/113.asp?quSri=113>
(date accessed: 24 March 2004);T.
A. Taddesse “Needed Letter Writing Campaign Sponsors,” Talking Point,
Asmarino.com Home Page <http://zete.delina.org/zete/114.asp?quSri=114>
(date accessed: 24 March 2004);T. A. Taddesse “Are You Ready To Help Our Compatriots
In South Africa?,”
online: Featured Articles, Awate Foundation
Home Page <http://www.awate.com/artman/publish/article_3180.shtml>
(date accessed 29 March 2004);
[31] See note 27 supra and notes 35-38 infra.
[32] See note 21 supra; see also the following articles Yoel Alem and Mussie Zena “Enough is Enough: Let's Break the Silence,” online: Asmarino.com Home Page <http://news.asmarino.com/Comments/August2003/yoel_Mussie_25.asp> (date accessed: 25 August 2003); Deleyti Selam, Eritrean Students Movement in South Africa (ESM) “Yes, It is Time to Break the Silence: Well Done Jaboni and Wedi Zena,” online: Asmarino.com Home Page <http://news.asmarino.com/Information/2003/8/ESM_27.asp> (date accessed 27 August 2003); Betty (Eritrawi Temeharay) “Reply to Habtom Zerai: Addendum to Jaboni and Wedi Ziena!,” online: Asmarino.com Home Page <http://news.asmarino.com/Comments/September2003/Betty%20_3.asp> (date accessed: 3 September 2003); Eritrean Students Movement in South Africa (ESM), Eritrawi Temeharay (Betty) “[Cheap Politics]: Reply to Haile Muzi,” online: Asmarino.com Home Page <http://news.asmarino.com/Comments/September2003/Betty%20_16.asp> (date accessed: 16 September 2003); Movement for Democratic Change (MDC) South Africa “Should We Live Cursing the Darkness or Light a Candle?” online: Asmarino.com Home Page <http://news.asmarino.com/Information/2003/9/MDC_SouthAfrica_15.asp> (date accessed: 15 September 2003); Daniel R Mekonnen “A Magistrate and a Party Member: A Paradox in the Eritrean Judiciary,” online: Awate Foundation Home Page <https://webmail.sun.ac.za/exchweb/bin/redir.asp?URL=http://www.awate.com/artman/publish/article_3177.shtml> (date accessed: 21 March 2004); Mskr Ayni (meaning Eye Witness, a penname for Daniel R Mekonnen) “Lessons the Isaias of Angola Could Teach the Isaias of Eritrea,” online: Featured Articles, Awate Foundation Home Page <http://www.awate.com/artman/publish/article_1669.shtml> (date accessed: 1 July 2003); Mskr Ayni “The Connotation of Mandela’s 85th Birthday,” online: Featured Articles, Awate Foundation Home Page <http://www.awate.com/artman/publish/article_1812.shtml> (date accessed: 18 July 2003); Mskr Ayni “Lessons Eritrea should Learn from Zuma and Nguca (in Tigringna),” online: Asmarino.com Home Page, <http://news.asmarino.com/Comments/October2003/Images/mskr_ayni_29_1.gif> (date accessed: 30 October 2003); Mskr Ayni “Day of National Reconciliation in South Africa (in Tigrigna),” online: Asmarino.com Home Page < http://news.asmarino.com/Comments/December2003/Images/mskr_ayni_16_1.gif> (date accessed: 16 December 2003); various Tigringna poems under penname FftHi Ynges as posted on the Home Pages of Asmarino.com and Shimagle.com; see also Mekonnen “The Role of Newly Emerging Democracies”; Daniel R Mekonnen “An Overview of the Right to Administrative Redress in Eritrea” (forthcoming); Daniel R Mekonnen “Transitional Justice: Framing a Model for Eritrea” (forthcoming); Daniel R Mekonnen “A Commentary on the Retort of the State of Eritrea to the African Commission’s Landmark Ruling” (forthcoming); Daniel R Mekonnen A Commentary on the case 6th Police Station v Chairman of the Union of the University of Asmara Semere Kesete (forthcoming).
[33] The writers of this essay are some of the founders of the movement. It took them quite a long time to realise the establishment of this movement which is still suffering from acute financial problems.
[34] Several of the concerns and pleas contained in that petition are also included in various forms under this essay.
[35] We believe all such acts of the Ambassador and officials of the Department of Home Affairs were in violation of several provisions of the South African Bill of Rights (Chapter Two of the South African Constitution) and other relevant laws. Such violated provisions include, mainly but no only, the following sections of the South African Constitution: 9 (equality before the law), 10 (human dignity), 12 (freedom and security of the person), 21(1) and (2) (freedom of movement), 33 (administrative justice), 34 (access to courts), 35 (the right to bail, a writ of habeas corpus and other incidental rights); 38 (the right to enforcement of rights and seek an appropriate relief). Compare the above provisions of the South African Constitution with Articles 14, 15(2), 16, 17, 19(8)-(9), 24 and 28 of the Eritrean Constitution. It should be noted that other statutory rights guaranteed by a couple of South African laws such as the 1998 Refugees Act, the Promotion of Administrative Justice Act of 2000 and the Immigrations Act of 2002 have also been violated.
[36] One of the writers of this essay, Daniel R Mekonnen, was particularly harassed, ill-treated and his application for a German visa unduly delayed due to such restrictions. See the emails exchanged between the author, the German Consulate General in Cape Town and the Europa Universitat, Viadrina (Germany) from 25-27 August 2003.
[37] See the order given by the Honourable Justice R.D Claassen on the 6th of February 2004 in Yoel Alem v The Minister of Home Affairs and Others (Case No 2597/2004), unreported case, which was sent to the said Airport by a facsimile as explicitly enjoined by the judge. Samuel Andeberhan was phenomenally saved by the relentless assistance secured from Lawyers for Human Rights in Pretoria and Eritreans across the world. See also note 29 supra.
[38]Eritrean Students and Residents“Abraham Obgayonas Tekle Released Today,” online Featured Articles, Awate Foundation Home Page <http://www.awate.com/artman/publish/article_3225.shtml> (date accessed: 8 April 2004); Eritrean Students and Residents – South Africa “Abraham’s Case Finalised Swiftly and Successfully,” online: Talking Point, Asmarino.com Home Page <http://zete.delina.org/zete/148.asp?quSri=148> (date accessed 14 April 2004). The successful and swift finalisation of Abaham’s case is one of the promising developments that emerged recently. It is hoped that other students will also be assisted similarly. See also the letter sent from the Legal Resources Centre to the Senior Refugee Reception Officer in Cape Town on 13 April 2004.
[39] See note 26 supra, “Crimes Committed in Zemene Isaias” and “South Africa: Students Deported, Arrested.” See also Deleyti Selam, Eritrean Students Movement in South Africa (ESM) “Arrested Students in South Africa Released: However …?,” online: Asmarino.com Home Page <http://news.asmarino.com/Information/2003/9/ESM_4.asp> (date accessed: September 4 2003); EHDR-UK “The Troubling Situation of Eritrean Students in South Africa,” online: Asmarino.com Home Page <http://news.asmarino.com/Information/2003/7/EHDRUK_7.asp> (date accessed: July 7, 2003).
[40] “US Committee for Refugees Country Report: South Africa,” online: Refugee.com Home Page <http://www.refugees.org/world/contryrpt/africa/1999/south_africa.htm> (date accessed?).
[41] Lawyers for Human Rights and another v Minister of Home Affairs and another 2003 CCT18/03. See also De Lange v Smuts NO and Others (1998) (3) SA 785 (CC); 1998 BCLR 779 (CC) para 22 as quoted in the judgement of Yacoob J.
[42] CCT18/03 para 20.
[43] CCT18/03 para 26.
[44] CCT18/03 para 36.
[45] This means particularly in the case of Eritreans.
[46] As provided by various provisions such as section 33, 38 and 172 of the Constitution, section 8 of the PAJA, etc.
[47] Anton Katz "Refugees" in John Dugard International Law: A South African Perspective 2ed (Juta & Co: Cape Town, 2002) 269. South Africa is a signatory to the 1951 Convention Relating to the Status of Refugees, its Protocol of 1967 and the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugees Problems in Africa; see also Daniel R Mekonnen “The South African Legal Approach Towards Protection of Refugees” 2003 (unpublished paper).
[48] Pranlal Purshotam "The Right of Aliens and Migrants to Administrative Justice and a Brief Look at the Abuse Suffered by them in South Africa" 1999 116 SALJ 32; see also Jonathan Klaaren "So Far Not So Good: An Analysis of Immigration Decisions under the Interim Constitution" 1996 12 SAJHR 605;Tetty and another v Minister of Home Affairs and Another 1999 (3) SA 715 (D) ; Sidorov v Minister of Home Affairs 2001 (4) SA 202 (W); Watchenuka and Another v Minister of Home Affairs 2003 (1) SA 610 (C); Lawyers for Human Rights and another v Minister of Home Affairs and another 2003 CCT18/03; Lawyers for Human Rights and another v Minister of Home Affairs and another 2003 (8) BCLR (T) and Daniel R Mekonnen and Samuel B Abraha “The Principle of non-refoulment in South African Laws” (forthcoming).
[49] Klaaren “So Far not So Good” at 605.
[50] Richard Pierre Claude and Burns H. Weston, ed., Human Rights in the World Community: Issues and Action 2ed (Philadelphia: University of Pennsylvania Press, 1992) at 2.
[51] Ibid.
[52] Ibid. ‘Cultural relativism is a theory which permits national derogations from certain human rights principles to be free of international criticism.’ This theory is believed to be irreconcilable with the international law of at least civil and political rights. Likewise, the Eritrean Ambassador should not be tolerated to hide his actions under the veil of “diplomatic immunity”. We believe the diplomatic immunities and privileges provided by section 4 of the South African Diplomatic Immunities and Privileges Act of 2001 and Article 31 of the Vienna Convention on Diplomatic Relations of 1961 should not abused by the Ambassador to the extent that he enjoys the liberty of perpetration of human rights violations out side his country of origin.
[53] Ibid.
also published in: http://shimagle.com/plight041604.htm
