Together, the Amendment Act and the Regulations introduce concerning provisions that allow for the expulsion of asylum-seekers and refugees to their countries of origin, against international law obligations. One particularly concerning provision restricts the participation of refugees in politics and related activities whilst living in South Africa. It bears mention that refugees and asylum-seekers already enjoy all the protections in the Bill of Rights of the Constitution but for the right to vote (political rights). The Amendment Act limits a refugee from standing for political office in his/her country of origin and from participating in any political activity or campaign, without the Minister’s permission. Failure to abide by this provision results in withdrawal of refugee status and expulsion from the country. The Minister has said that this limit to political rights is an attempt to meet South Africa’s obligations in terms of article 23(2) of the African Charter on Human and People’s Rights, which reads:
“For the purpose of strengthening peace, solidarity and friendly relations, State Parties to the present Charter shall ensure that: (a) any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State Party to the present Charter; (b) their territories shall not be used as bases for subversive or terrorist activities against the people of any other State Party to the present Charter.”
It is worth noting that due to technological advancements, political activity and campaigns have taken new forms. The amendments are not specific regarding what constitutes political activity. Would, say, voicing one’s opinion on social media qualify as a violation of the legislation? The absence of clarity in this regard is concerning, as it opens up individuals to potential deportation for a wide range of conduct.
Further, this limitation ignores the fact that while these individuals are seeking protection from the South African government, they reserve the right to have a vested interest in the rehabilitation/change of the circumstances that influenced their fleeing their countries of origin. It is only reasonable to expect refugees and asylum-seekers to desire to keep up with developments in their countries of origin and, to participate in whatever national projects are available so that the option of returning remains real. In an ideal world, the circumstances that push individuals to seek refuge in other countries change and allow for them to return.
Conflict and political persecution are the primary reason that individuals flee their countries of origin. However, barring refugees and asylum-seekers from participating in the potential change by, for example, advocacy, whilst limiting their political participation in their host countries, limits their social lives and rights to freedom of association and self-determination.
In addition to limiting political activity, the Department of Home Affairs also seeks to limit the areas of work and study for refugees and asylum-seekers. This unfairly affects the livelihoods of these individuals. One must consider that South Africa does not have refugee camps and therefore, it is imperative that asylum-seekers and refugees remain able, with minimum obstacles, to seek and obtain education, skills and work to sustain themselves and their families. In a country where unemployment is unacceptably high, it is worrying that the government would willingly endorse the limitations articulated in the Amendment Act.
The South African government offers no support in terms of integration and employment-seeking beyond issuing the relevant documentation – which process is onerous and lengthy on its own. The Constitution extends the rights to education and freedom of work to all people, not just South African citizens. This distinction must be noted, as it goes directly against the spirit and purport of the Constitution. The Amendment Act sets even more stringent criteria for the attainment of asylum status than before, and fails to take into account the humanity and the vulnerability of these applicants. Onerous time frames and requirements are put in place that must be navigated – all whilst attempting to independently integrate into a new society.
These objections are not intended to discredit the real issues with processing asylum-seekers in South Africa. However, it is common knowledge that at the top of the list of challenges is the unmitigated corruption that allows for the abuse of the system, followed closely by the lack of capacity to effectively process the volumes of asylum-seekers. The Department should be legislating to hold officials accountable for corruption and failing to follow due process. There should be more officials who understand the process and asylum-seekers should be processed expeditiously, and their human dignity respected. A police service that operates with accurate knowledge of the laws and with a human rights culture at its foundation is also necessary.
The political climate of the continent guarantees that South Africa will remain one of the top destination countries for refugees. It behoves the Department, while righting its ship, to remain cognisant of the human rights obligations placed upon it by the Constitution and international law. While legislators must operate in the interests of the Republic, a country cannot legislate away its obligations. South Africa’s inhabitants require different treatment, and the laws that address them must reflect ubuntu, empathy and cognisance of a higher responsibility towards vulnerable groups.
The new laws curtail fundamental human rights and protections guaranteed to all as articulated in the Bill of Rights, including equality, human dignity, freedom and security of the person, as well as education and labour rights. Asylum-seekers and refugees should continue to enjoy maximum protection of the South African system, particularly because of their vulnerable status.
By Ms Rebecca Sibanda: Legal Officer, Centre for Constitutional Rights
27 January 2020