As a loyal member of Rwanda’s national security service, Alex Ruta didn’t question his superiors when he was ordered to travel to South Africa to “engage” members of the exiled opposition party, the Rwanda National Congress.
According to court papers, Ruta, 38, was given a passport and documentation to facilitate his journey to South Africa via Tanzania, Zambia and Zimbabwe. Over the Christmas period in 2014, he snuck into South Africa, where he met another agent from the security service who helped him find accommodation, and gave him money for living expenses and a list of names of people from the opposition party he should “befriend”.
In February 2015, Ruta again met the agent, who told him he would organise a gun. Months after being briefed about his mission, Ruta realised its objective. In his affidavit, Ruta said he “started to panic and resolved to distance [himself] from the … agent”. He approached the Hawks and was immediately placed in witness protection, pending investigation into his allegations.
Assassination plots against Rwandan President Paul Kagame’s political opponents are nothing new. On 1 January 2014, the body of Rwanda’s former chief of external intelligence, colonel Patrick Karegeya, was discovered in his suite at the Michelangelo Towers in Sandton, Johannesburg. In the same year, four men were found guiltyof attempting to murder Rwanda’s former army chief, general Faustin Kayumba Nyamwasa, in South Africa in June 2010.
A witness unprotected
While in witness protection, Ruta claims he tried to apply for asylum, but was not given the opportunity by home affairs officials. In March 2016, he was arrested for possession of a fraudulent asylum seeker’s permit, which was later dropped, and driving an unlicenced motorcycle without a driver’s licence. Following his trial and conviction, and facing imminent deportation, Ruta approached the high court for an order to interdict his deportation so he could apply for asylum.
The Department of Home Affairs appealed the matter at the Supreme Court of Appeal. A majority judgment found that Ruta had enough time – a full year – to apply for asylum before his arrest, and that he was disqualified from applying for a refugee permit because he had been convicted of a crime.
On Thursday, independent human rights organisation Lawyers for Human Rights, on behalf of Ruta, challenged the department’s interpretation of the provisions of the Refugee Act that relates to exclusion of an applicant from refugee status.
Advocate Steven Budlender, who appeared on behalf of Ruta and the organisation, argued that the department’s actions were procedurally incorrect and not administratively fair because an immigration officer instead of a refugee status determination officer decided Ruta should be disqualified from applying for refugee status.
“This application and the issue it involves is the critical issue regarding the rights of asylum seekers. It is this: may the immigration officials employed by the Department of Home Affairs prevent any prospective asylum seeker from applying for asylum and having his claim determined by the specialist decision-makers established by the Refugees Act?” Budlender asked.
A refugee status determination officer would be required to issue a written decision to the asylum applicant. This procedure would ensure an applicant would not be arbitrarily sent back to a country where they could face persecution.
One of the department’s objections to Ruta’s application was that he did not immediately apply for asylum in South Africa. Instead, he found a job as a delivery man at a pizzeria and obtained a fraudulent permit, although it emerged that Ruta’s employer obtained the permit for him and Ruta was cleared of that charge.
Budlender argued that because Ruta expressed his desire to apply for asylum only after refusing to carry out the assassination, which he was not aware was expected of him when he arrived in South Africa, the department’s objection was misplaced.
The advocate argued that in terms of the handbook of the United Nations High Commission for Refugees, Ruta qualified as a “refugee sur place” – someone who becomes a refugee after having left their country of origin – because of his own actions, and that the department had no basis to deny Ruta the opportunity to apply for asylum.
Ruta’s papers filed at the Constitutional Court argued that: “When [he] refused to carry out the assassination, it logically attracted an imputation by the Rwandan government that he harbours a differing political opinion…”
Lawyers for Human Rights spokesperson Carol Mohlala said Ruta was anxious about the outcome of the case. “He is in hiding, fearing for his life. He does not have the luxury to move around as he pleases. He hopes to be given asylum. He does not want to be deported back to Rwanda.”
‘Not a constitutional issue’
Advocate Mike Bofilatos, who appeared on behalf of the department, argued that Ruta should not be allowed to apply for asylum because the Immigration Act stated that no person was allowed to enter South Africa in any way other than through a port of entry and with a valid passport.
He further argued that the act provided an important instrument of protection to asylum seekers in the form of an asylum transit visa valid for a period of five days. During this time, the person should travel to their nearest refugee reception office to apply for asylum.
He said Ruta failed to do this, and argued that in a situation in which there was an unreasonable delay, the asylum seeker should be considered an illegal foreigner and be subjected to deportation.
He argued Ruta’s application to the Constitutional Court to interdict the department from deporting him and allow him to apply for asylum was “an abuse of the refugee process”. “Under the circumstances … it would appear that this is an application by a largely unsuccessful applicant … Strictly speaking, it shouldn’t really be considered a constitutional issue.”
Bofilatos suggested the appeal by Ruta and Lawyers for Human Rights should be dismissed with costs. Judgment has been reserved.