Response on Ministers visit to Lindela, November 2009

The Minister’s recent visit to the Lindela Repatriation Centre (“Immigrants at Lindela on the Decrease”, The Star, 18th  November)—where foreign nationals are detained pending deportation—was a welcome step in her commitment to reform the Department of Home Affairs. The Minister highlighted delays in the deportation process. Unfortunately, her visit failed to acknowledge that many deportations are occurring outside of the law.

 

Detention and deportation processes require strict adherence to legal procedures to avoid infringements of human dignity. Yet, Lindela operates without the protection of the Judicial Inspectorate of Prisons, and with no independent oversight of the activities of either Home Affairs or Bosasa—the private security company contracted to run day-to-day operations at the Centre.

 

Government is entitled to detain people pending deportation, provided they adhere to the protections found in the law. Government is also entitled to deport those properly found to be illegal, provided they have been given the opportunity to exhaust all available appeal mechanisms.

Every deprivation of liberty must be subject to the strictest legal safeguards. These safeguards are found in our Constitution, and are also given effect through the Immigration Act, the Refugees Act and the Promotion of Administrative Justice Act. The legal protections include notification of the reasons for the detention and the deportation, and a clear explanation of the rights of appeal and review. In addition, all detentions over 30 days must be authorized by a Magistrate, after a detainee has been given the opportunity to provide written reasons challenging his or her continued detention. Despite these protections, the majority of detainees that we at Lawyers for Human Rights (LHR) consult with regularly have not been able to exercise these rights. Most are not even aware that these rights and procedural guarantees exist.

Lindela is home to numerous asylum seekers—protected under international and domestic law from being returned to the persecution they fled in their home countries. Despite a legal right to remain in the country until their asylum claim is properly adjudicated, many are deported without being informed of their rights, or having any means of accessing them. This is a serious violation of South Africa’s legal obligations, and can be tantamount to a death sentence for those in need of asylum protection.

Moreover, asylum seekers detained under the Refugees Act must appear before a judge of the High Court after 30 days. LHR has not come across a single asylum seeker who was brought before a judge after 30 days

LHR welcomes the Minister’s call for faster processing of deportees to reduce their time in detention, but cautions that hastening deportations of detainees without proper screening raises serious human rights concerns—particularly in the case of asylum seekers who face the risk of persecution, torture, or other grave dangers if returned to their home countries. Immigration officials at Lindela are not legally authorized to decide on the seriousness or sincerity of an asylum claim. Only a refugee status determination officer at a refugee reception office is empowered by law to make this determination. The law requires that asylum seekers—even those in detention—be able to access these procedures. 

In the Star article, the Acting Director of the Facility stated that Zimbabweans are no longer brought to Lindela due to changes in immigration requirements. This is incorrect. The special dispensation for undocumented Zimbabweans, announced in April 2009, has not yet come into effect—leaving Zimbabweans in a legal limbo. Police have continued bringing large numbers of Zimbabweans to Lindela, where they are detained for up to 3 weeks pending confirmation of their nationality.

The unlawful detention or deportation of even one individual is cause for alarm. Government must uphold its legal obligations and serve by example if we are to have a constitutional democracy that operates in accordance with the rule of law. But Home Affairs’ failures to comply with the law at Lindela continue with impunity, while detainees continue to be denied the minimum legal safeguards. This failure to adhere to due process guarantees is an affront to our post-apartheid character as a constitutional democracy.

South Africa has signed the Optional Protocol to the Convention Against Torture (OPCAT), which requires the establishment of National Preventive Mechanisms to oversee every place of detention. This includes Lindela. LHR urges government to ratify OPCAT and put these mechanisms into place.

In the meantime, minimum compliance with the law as it exists will go a long way towards ensuring the protection of basic rights and human dignity, including the dignity of foreigners in immigration detention. Such compliance is also vital in order to reassure all South Africans that our government is not above the law.

 

Gina Snyman

Lawyers for Human Rights