A core principle of the 1951 Convention is the principle of ‘non-refoulement’, which requires signatory state parties not to return a refugee to a country where his/her life or freedom would be threatened because of “race, religion, nationality, membership of a particular social group or political opinion.” Unfortunately, the South African asylum process has been besieged with systemic corruption for years. For example, 30 officials were arrested in December 2015 at the Marabastad Refugee Reception Office in relation to corruption.
To address this systemic corruption, the Refugees Amendment Bill (the Amendment Bill), was introduced in the National Assembly in September 2016. The Amendment Bill provides extensive measures to combat corruption and provides, amongst other things, further disqualification provisions of refugee status.
The CFCR made written and oral submissions to the Portfolio Committee of Home Affairs on the highly-contested Amendment Bill, as it impacts a vulnerable group of people who are subjected to potential abuse within the asylum system. The CFCR was specifically concerned that the additional grounds for exclusion of refugee status are in harsh contrast to the 1951 Convention and in conflict with the ‘non-refoulement’ principle. Furthermore, these additional exclusionary grounds may also be susceptible to corruption. They are based solely on the decision of one official, namely the Refugee Status Determination Officer (RSDO), and their “reasonable belief” that an asylum-seeker is guilty of “such an act”. These acts for instance include the failure of an asylum-seeker to report to a Refugee Reception Office within five days of entry in the country, unless they have compelling reasons not to have done so, or an offence in relation to a South African travel document. However, despite the CFCR’s concerns, the further-amended version of the Amendment Bill – which was adopted by the National Assembly and sent to the National Council of Provinces to concur – does not address these concerns at all.
It is crucial to highlight that article 1F of the 1951 Convention only restricts the denial of refugee status to individuals where there are “serious reasons” to believe that they are guilty of war crimes, crimes against humanity, serious non-political crimes, as well as acts contrary to UN principles. This means that the principle of ‘non-refoulement’ can be deviated from only in exceptional circumstances. The whole point is that the asylum system seeks to protect those vulnerable individuals who are fleeing their home countries due to the fear of persecution. The asylum system should not become a safe haven for international war criminals and individuals guilty of horrendous crimes against humanity. The recent case involving Rwandan General Nyamwasa is one such matter, which reveals the weaknesses of South Africa’s current asylum-seeking system. He was granted refugee status in 2010, despite being the subject of three international indictments concerning allegations of war crimes, crimes against humanity and genocide in the Democratic Republic of Congo in the mid-90s.
The granting of Nyamwasa’s refugee status by the Department of Home Affairs (DHA) is potentially in contravention of the 1951 Convention. Nyamwasa’s refugee status was challenged by the Consortium for Refugees and Migrants in South Africa. Only on 24 May 2017, when the matter was appealed to the Supreme Court of Appeal, did the parties agree to an order that Nyamwasa’s refugee status be set aside, which is suspended for 180 days to allow the DHA to reconsider the matter.
At the core of it, South Africa’s asylum system needs to ensure that it firstly upholds the international standards of the 1951 Convention and it needs to be seen by the public – and especially by asylum-seekers – to be doing so in a fair and just manner. Not only will this narrow the potential scope for corruption but it will also give effect to the constitutional rights of dignity and the right to fair administrative action. The admirable objectives of the Amendment Bill to combat corruption might be completely defeated if the DHA does not ensure it firstly applies international standards consistently and transparently. Secondly, there must be supervision of all decisions by the RSDO on the status of refugees, especially considering the additional grounds for exclusion. South Africa has the potential to be a beacon of hope for refugees who are in dire need of protection but it is crucial that the asylum-seeking process not only functions in a fair and just manner but is also seen to be fair and just.
By Christine Botha: Legal Officer, Centre for Constitutional Rights