Protecting or targeting migrants?

The raids and subsequent detention of an estimated 400 migrants and refugees at the Central Methodist Church in Johannesburg earlier this month raised questions about the real reasons for the deployment of the army to so-called "xenophobic hot spots".

The South African National Defence Force’s (SANDF’s) joint operations with the South African Police Service (SAPS) and the Department of Home Affairs was originally touted by politicians as a means to shield vulnerable immigrants from the spate of xenophobic attacks that left seven foreign nationals dead.

While the presence of the army may be a visible deterrent against further hate crimes, the nature, scope and aftermath of the raids under the banner of Operation Fiela (Reclaim) prompted massive public concern.

It is now clear that the operation is more about targeting than protecting foreigners and harassing protesters deemed to be dissidents by the state. The arbitrary detentions are patently unlawful.

Lawyers for Human Rights won an urgent interdict halting the Department of Home Affairs’ hasty deportations of genuine asylum seekers.

The Thembelihle informal settlement south of Johannesburg and hostels in Alexandra, the Johannesburg CBD, Mayfair, Bellville in the Western Cape and elsewhere were also raided. The joint operation flouts several pieces of legislation and the Constitution.

Minister in the Presidency Jeff Radebe, who heads the interministerial committee on migration, defends the raids: "There is no mission to single out foreigners in Operation Fiela search-and-seizure operations. Our operations are intelligence-driven and will continue to target areas … that are known to be frequented by criminals."

He says that of the 3,914 people arrested, 1,650 were undocumented migrants.

Although Defence Minister Nosiviwe Mapisa-Nqakula said last month that the SANDF would not be deployed to assist in quelling the xenophobic violence crisis, because they were not trained "in crowd control" but rather to "shoot to kill", she announced a week later that the army was being deployed and warned people involved in xenophobic violence that they were "doomed".

Lawyers for Human Rights attorney Clare Ballard says the army can be used in two instances relevant to recent circumstances: by the president in terms of section 201 of the Constitution "in co-operation with the police service"; and by the president or minister of defence in terms of section 18 of the Defence Act. Where the president authorises their deployment, the army then enjoys typical policing powers such as search and seizure.

As the speaker of Parliament was notified, the deployment of the SANDF was lawful. But questions remain about whether Parliament exercised essential oversight. The portfolio committee on intelligence meetings are closed to the public and the media, so there is a lack of clarity on the SANDF’s mandate in Operation Fiela, despite their directive being in the public interest.

When announcing that the army would play a role in Operation Fiela, Ms Mapisa-Nqakula justified the lack of transparency about their mandate by saying "we never make operations public".

The raids and the army’s role in them flies in the face of Police Minister Nathi Nhleko’s announcement in July last year that steps were being taken to demilitarise public-order policing.

Lawyers for Human Rights head of immigration and detention monitoring Wayne Ncube says that when he approached the station commander at the Johannesburg Central Police Station after the raid on the Central Methodist Church, he was refused information about how many migrants and refugees were arrested, and why they were being detained.

Mr Ncube says the raid was seemingly not in keeping with immigration law as it occurred at 4am while people were sleeping, with children present — search-and-seizure operations are meant to happen in daylight hours unless a court order is granted under special circumstances.

Also, there was a lack of discretion shown as people were rounded up in the church — of those arrested, some were South African; at least one Zimbabwean had an asylum-seeker permit; many had expired documents, despite being promised by immigration officials they would be renewed in February; and others were lodging claims for asylum.

Lawyers for Human Rights says in court papers that this in direct violation of the law as "the status of a refugee or an asylum seekers is governed by the provisions of the Refugees Act and not the Immigration Act, until such time as a final determination has been made of their refugee status".

This includes anyone who has an expired asylum-seeker document and serves to protect them from being deported. Section 2 of the Refugee Act states that no person, including undocumented migrants, can be deported if they face persecution in their home country.

By the time Lawyers for Human Rights brought their application to court, they were only allowed to consult one detainee who told Mr Ncube’s team that during the raid, people sheltered in the church were not presented with a warrant before they were arrested. Lawyers for Human Rights had to go to court twice to force the SAPS to allow them full access to all detainees requesting legal assistance.

Section 35 of the Constitution deals with the rights of arrested and detained persons, and says that all persons in SA, irrespective of their immigration status, have the same rights — including the right to choose and consult with a lawyer.

The High Court in Johannesburg granted an interdict forbidding the Department of Home Affairs from deporting any detainees arrested in the joint operation, for a period of two weeks. Mr Nhleko and the station commander at the Johannesburg Central Police Station were also ordered to provide the names of all the people rounded up in the raids, including their locations and the reasons for their detention.

The court also ordered that Lawyers for Human Rights be given access to all detainees who requested legal consultation, whether they were being detained at the Johannesburg Central Police Station cells or the Lindela Repatriation Centre.

A week after the army was deployed on April 30 an estimated 80 people — including 60 allegedly undocumented migrants — were arrested in an early morning raid at the Thembelihle informal settlement.

The community’s protests for basic services were met with rubber bullets, tear gas and the indiscriminate arrests of residents earlier this year, leading to speculation that Operation Fiela gave the security cluster a convenient excuse to revisit a community regarded as troublemakers.

Thembelihle Crisis Committee leader Bhayiza Miya says there is an "undeclared state of emergency" in the settlement, with activists being arrested for holding meetings of more than three people. Community leaders claim they are under surveillance and speak of an authoritarian, public-order type policing of the area.

African National Congress secretary-general Gwede Mantashe has assured the public that Operation Fiela is here to stay, despite the raids violating the Constitution, the Criminal Procedure Act, criminalising asylum seekers and community activists, and embedding the securocrats that have come to define the post-Marikana era.

• Stegeman is an African politics researcher and freelance journalist. She has a masters in violence, conflict and development from the University of London.