AHMR African Human Mobilty Review - Volume 8 No 3, SEP-DEC 2022
However, the majority of displacements attributable — at least in part — to climate
change, are internal.32 In Africa, persons who are internally displaced due to climate
change have access to legal protections pursuant to the African Union Convention
for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala
Convention).33 However, persons who are displaced externally due to the effects of
climate change do not have access to the same protections as them.
In light of this gap in the law, Ndimurwimo and Jahning engage in their
contribution with challenges to the legal protection of stateless persons externally
displaced due to the effects of climate change. The authors draw on case studies
from South Africa, Mozambique, and Tanzania to provide context to their analysis.
The case studies are used to assess current legal frameworks inasmuch these apply
to persons who are rendered stateless due to the effects of climate change and
highlight where protection is lacking or absent. Based on this analysis, the authors
make recommendations for ameliorating these frameworks so as to provide more
comprehensive legal protections.
The need for stateless persons to have access to adequate legal protections is
evidenced by the many articles in this Special Issue, which highlight that the human
rights of stateless persons are routinely violated. One such violation is arbitrary
detention.34 Unable to demonstrate that they have a legal right to remain within the
state, stateless persons are vulnerable to arbitrary detention. Khan critically analyses
the practice of immigration detention in South Africa as it is applied to stateless
persons. She explains the disconnect between the purpose of immigration detention
— namely, deportation — and the reality that it is unlikely for stateless persons to be
deported to a state where they will obtain citizenship. The author finds that stateless
persons are summarily detained as they are unable to confirm their legal status essentially, they do not have legal protection from immigration detention in South
Africa. The treatment of stateless persons, as demonstrated by the author, stands
in stark contrast with the values and rights of the South African Constitution. In
response to this problem, Khan advocates for solutions that would provide stateless
persons with legal protection from detention, among these being to apply the
Immigration Act in a manner that considers their specific challenges.
Last but not least, the article by Muchindu is focused on an equally important
aspect - protracted refugee situations- by definition situations where at least 25,000
refugees from the same country have been living in exile and find themselves in a
long-lasting and intractable state of limbo-35 and their implications for statelessness.
J McAdam ‘Building international approaches to climate change, disasters and displacement’ (2016) 33 Windsor Yearbook of Access to Justice at 1, 2.
33
United Nations Treaty Series (UNTS) 3014 ‘African Union Convention for the Protection and Assistance of Internally
Displaced Persons in Africa (Kampala Convention)’. Adopted on 23 October 2009, entered into force on 6 December
2012.
34
United Nations Treaty Series (UNTS) 171 ‘International Covenant on Civil and Political Rights 999’ Article 9(1). Adopted on 16 December 1966, entered into force on 23 March 1976; United Nations Treaty Series (UNTS) 217 African
Charter on Human and Peoples’ Rights 1520’ Article 6. Adopted on 27 June 1981, entered into force on 21 October 1986
35
See, UNHCR, “Protracted Refugee Situations Explained” (2020) available at https://www.unrefugees.org/news/
protracted-refugee-situations-explained/
32
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