The above statement from the United Nations Secretary-General, Ban Ki-moon, perfectly encapsulates South Africa’s relationship with and treatment of migrants, refugees and asylum-seekers. South Africa’s Constitution affords human rights to all persons, while various laws and policies protect and promote the rights of migrants, refugees and asylum-seekers. However, in practice, their rights are often violated with impunity, and the government is all too often complicit in these rights violations.
Post-1994, South Africa has seen a steady increase in the number of refugees and asylum-seekers. In 2010, these figures ensured that South Africa had the most individual asylum-seeker applications from Africa and elsewhere. The United Nations High Commission for Refugees (UNHCR) states that there are 65 000 recognised refugees in South Africa. In addition, at the end of 2013, there were 230 000 asylum-seekers awaiting decisions from the Department of Home Affairs (the Department). According to the UNHCR, most refugees and asylum-seekers in South Africa have fled the conflict in the Democratic Republic of the Congo, the security situation in Somalia, or are individuals who have faced persecution in countries such as Burundi, Ethiopia, Rwanda and Zimbabwe.
The South African refugee protection system is governed by the Refugees Act, which promotes the integration of the urban refugee population. The Refugees Act incorporates the basic principles of refugee protection, including freedom of movement, the right to work, and access to basic social services. However, the asylum system is overwhelmed. The increasing number of applications has created a backlog, which affects the quality and efficiency of refugee status determination. This means that the government is often unable to effect its legal mandate to both efficiently andeffectively conduct refugee status determinations, as well as providing documentation to refugees.
Other organisations such as the University of Cape Town’s Refugee Law Clinic point out that South Africa has also failed to promote an overall environment of protection of the rights of refugees, and that it regularly acts unlawfully. These unlawful actions were recently highlighted when the Department detained more than 200 people – including refugees and asylum-seekers – all the while denying the detained people access to attorneys in accordance with the law. Some of the individuals were reportedly deported, meaning that South Africa may have possibly breached the principle of non refoulement, which guarantees refugees the right to be protected against forcible return. This is an international customary law principle, which is also included in the United Nations Convention Relating to the Status of Refugees, which South Africa has signed and ratified. As such, South Africa is obliged to uphold this principle.
Another example of the government’s apparent reluctance to promote the rights of refugees and asylum-seekers is the fact that in 2012 and 2013, Lawyers for Human Rights obtained court orders setting aside the closure of the Port Elizabeth Department of Home Affairs office. The Department ignored both court orders. The Refugee Reception Office was closed in 2011, with the result that asylum-seekers have to travel long distances to renew their permits elsewhere. Furthermore, the Department has refused to transfer files to the remaining Refugee Reception Offices in Pretoria, Durban and Musina. The Supreme Court of Appeal has given Home Affairs until 1 July 2015 to reopen the Refugee Reception Office in Port Elizabeth. It remains to be seen whether the Department will comply with the court order, this time. The intention of the Department appears to be a bid to restrict the rights of asylum-seekers, including freedom of movement and right to work, pending the final determination of their claims.
Under these circumstances, asylum-seekers and refugees often remain vulnerable in South Africa, despite the laws and established procedures that exist to examine claims for refugee status. Arbitrary detention and xenophobia have been widely reported, with experts drawing a link between the prevailing socio-economic environment – high unemployment, poor service delivery, and economic inequality – and the strained relations between refugees, asylum-seekers and host population. While hundreds of individuals have been arrested or detained for crimes against migrants, South Africa is yet to successfully prosecute and convict any individuals for such crimes. This suggests a government unwilling or unable give migrants, asylum-seekers and refuges the protection they seek.
It must be borne in mind that The Universal Declaration of Human Rights recognises the right to seek and enjoy asylum as a basic human right. The UNHCR has noted that refugees and asylum-seekers, particularly when they arrive in large numbers, can have a major impact on a country of asylum and the local population, and this in South Africa has been evidenced by the violent bouts of xenophobic attacks. However, it is also important to recognise the positive contribution that refugees can make to South Africa, and to acknowledge their need for humanitarian support and protection.
Phephelaphi Dube: Legal Officer, Centre for Constitutional Rights