State fails in obligations to refugees
The recent surge of violence against foreign nationals in South Africa has raised fears that South Africans abroad may be at risk of similar violence. These fears have some basis as the media has reported incidents in Mozambique of the stoning of South African trucks and expressions of concern raised by foreign governments and international institutions such as the African Union.
These reactions highlight the importance of our international obligations and what happens when we do not fulfil what is expected of us and our government in international law. Unfortunately South Africa has not lived up to its obligations which has created a refugee system in disarray and a dangerous situation for many of the most vulnerable in our society as we’ve seen recently. This is despite a progressive refugee protection framework.
The first thing to understand about our international obligation to protect refugees is that we chose to be bound to the international conventions regulating the treatment of refugees. These conventions include the 1951 UN Convention on the Status of Refugees, the 1969 AU Convention regulating Refugees in Africa as well as various conventions relating to the Rights of the Child, Eliminating Discrimination against Women and the covenants ensuring political rights. Most of these conventions were only signed after South Africa's democratic dispensation. They could certainly only be enforced through a democratic government and a free and independent judiciary.
Prior to 1994, refugees who were forced to flee their countries because of persecution or in times of war and found themselves in South Africa were normally kept in insecure conditions in former homelands - if tolerated at all. After the birth of democracy, South Africa became more open to providing protection and opted for an urban-based refugee protection policy. This meant refugees would not reside in camps along the border like elsewhere on the continent, but would be allowed to live in cities and integrate into local communities. It also meant they would support themselves by finding their own work and shelter and therefore independent livelihoods. This was reflected in the 1998 Refuges Act which incorporated the conventions signed during the 1990s.
Since then, the urban protection policy has become the cornerstone of South Africa’s refugee policy. Not only was this in line with our international obligations but, perhaps more importantly, in line with our Constitution and the founding principles of human dignity, equality and freedom. It became a beacon of our democracy and something to be proud of. Our courts have confirmed that these essential rights apply equally to citizens and asylum seekers/refugees.
What was not expected, however, was the collective failure of the government, and particularly the Department of Home Affairs, to comply with our obligations and our own legislation. Since the Act came into operation in 2000, access to the asylum system has been one of the most important barriers to effective protection. This has manifested itself in various ways, for example, through long queues, questionable pre-screening procedures and lengthy delays. Particularly atrocious periods included the eight-month “appointment slip” and the deplorable SMG detention centre at Musina where arrested undocumented migrants were forced to sleep on the floor of a converted basketball court on a military base and relieve themselves in buckets along the wall before being shoved in the back of a police bakkie and “deported” to Zimbabwe. Up to 15 000 per month were being deported in this fashion until that scheme was declared unlawful by the North Gauteng High Court in 2009.
This must be seen in light of the watershed events from 2008. In January of that year, the Central Methodist Church in the Johannesburg city centre was cordoned off and invaded by police who arrested upwards of 800 people who were all eventually released after coordinated bail applications. In March of that year, the elections in Zimbabwe saw some of the worst political violence, forcing thousands of people to flee to South Africa. In May, the large-scale attacks that loom large in our collective memory and the protection camps (which were eerily similar to the beginning scenes of the film District 9) forced us to look at xenophobia as a major social issue. This all occurred as Eskom introduced the term “load-shedding” to our vernacular. No doubt the refugee system was strained under the weight of the political and economic meltdown of our neighbours. Extra resources were thrown into the refugee system and a new dispensation programme was developed for Zimbabweans fleeing economic hardships.
Today, as we again battle to keep the lights on, the refugee is again under strain. But this is not because of the same large numbers but rather from a Department grappling with a lack of clear vision over its refugee and immigration policy. Since 2010, half of South Africa’s refugee reception offices have been closed leaving the Southern two-thirds of the country with no services for new asylum seekers. This has resulted in increased queues at the remaining offices with a concomitant decrease in access and rampant corruption. The situation is particularly desperate to renew permits on time due to a confusing, and clearly unlawful, procedure to fine asylum seekers and refugees who do not renew their permits on time. If the permit has expired, you are told to go pay R1000 fine at the local police station. However, that’s not how fines work. Much like a traffic fine, you must be given a form to tell you when you must appear in court or by when you may pay an admission of guilt fine to avoid going through the court process. When asylum seekers arrive at the police station, they are simply told to pay or they will not have their permits renewed, no matter whether they have a good reason (such as hospital stays or an unwillingness to pay a corrupt official). The few cases that we have brought to the High Court to require a proper fine to be issued have not changed the system. This results in expired permits and the perception that people are “illegal” – a sentiment we have seen echoed in ongoing violence.
In light of the ongoing access problems, so-called “illegal foreigners” may not be so illegal. They are just the victims of a vicious cycle of political unwillingness to improve the system. Instead, political leaders have been blaming foreigners for not complying with South African laws and sending the army to the border. While we have seen instances of irregular border crossing, sending a squad of armed soldiers to patrol the border is an empty gesture since even lawful immigrants are unable to renew their permits on time and are then considered “illegal”.
Part of the problem is the fact that Home Affairs does not have a coordinated refugee and immigration policy. The Minister has recently established roundtables to develop a coordinated policy, but until then, there are few options for low to medium skilled foreign nationals who are attracted to South Africa’s economy. We all too often hear the word “abuse” of the refugee system. Home Affairs quotes rejection rates of almost 95% to justify this. But research has already shown the poor quality of decision-making.
Until we begin looking at fixing our refugee system and adhering to our international obligations, these problems will continue to worsen. Statements from our officials of “increasing security” and “patrolling the borders” do little to address the problem, on the contrary they serve only to further alienate this vulnerable population and perpetuate negative connotations.
South Africa needs a system that will permit low-skilled individuals who do not qualify for the highly competitive and skilled visas under the Immigration Act to seek dignified employment and regularise their stay. This will assist not only the economy by ensuring a regulated migration system, but will also relieve the burden on the refugee system which is meant to provide protection to those fleeing situations in which their life and fundamental liberties are at stake. Such as system would satisfy the state’s interest in tracking the number of foreign nationals in the country. It is time to reconsider a SADC temporary workers visa, much like we have seen with the Zimbabwe Dispensation Permit.
Sadly, however, documentation is not the only complaint that the propagators of xenophobic violence have had against foreign members of their communities. Many of the victims from 2008 and 2015 have been South Africans – irrationally targeted because they “look” or “sound” foreign. Our first and foremost international obligation is to ensure equal protection of the law to everyone, no matter where they were born. Once that message gets out, then all Africans will feel at home anywhere on the continent.
David Cote heads the Strategic Litigation Programme at Lawyers for Human Rights