South Africa: one of the worst places for refugees

KAAJAL RAMJATHAN-KEOGH

Just over one year has elapsed since the outbreak of xenophobic attacks around South Africa in May of 2008. While almost as many people were injured and killed as in the 1960 Sharpeville massacre, last year’s violence has not provoked the same level of sustained public outrage or scrutiny. Instead, most have been evicted from temporary safety camps and victims of violence deported to their countries of origin.

The state has been largely silent in the aftermath of the attacks, despite violence of a level and intensity not seen since the 1994 elections. Although many of the perpetrators of the xenophobic violence were arrested in the days immediately following the attacks, further state responses have proved disappointing.

For a start, there has been no real interrogation on the part of government into the causes of the xenophobic violence, nor have the factors leading to the attacks been sufficiently addressed. Even before May of last year, refugees and foreign nationals were regular targets of violent crime as a long-standing and increasingly prominent feature of post-apartheid South Africa. To date, sporadic attacks still continue, and are particularly directed at small business operators. Much of this anti-foreigner violence has been masked under the guise of service delivery protests. However, independent research over the past year has shown that in many communities, violence was organised, incited and led by identifiable individuals, leaders and community organisations.

Further, the state has failed to send out a strong message to the perpetrators of the May violence. Despite large numbers of arrests, only a small number of perpetrators have been successfully convicted. According to the National Prosecuting Authority (NPA), after one year, less than 7% of these cases had been finalised with a verdict, of which 4% were found guilty. More than 12% of cases had been withdrawn. Official ambivalence towards the attacks, and towards victims, has helped to entrench the public conviction that non-citizens are not equal before the law.

In response to the inability of the state to protect them, many refugees are now opting to return to their home countries, where they may face persecution or death, rather than remain in South Africa. Stand-offs have ensued when refugee communities have demanded to be resettled in other countries, in a desperate attempt to escape further violence in South Africa.

Targeting specific social groups, motivated by intolerance as seen in the xenophobic attacks, in fact constitute hate crime, and should be treated by government as such. Hate crimes impact significantly on both victims and their communities, and have consequences for community cohesion and social stability.

Migration does not threaten South Africa’s economic or physical security. Quite the contrary, if managed properly, it can lead to investment, job creation and a more productive economy. It is critical that government – which through law enforcement officials is responsible for policing, safety and security – recognise that by permitting any part of the population to remain marginalised and outside of social and legal protection, they put us all at risk.

This risk is well-illustrated in the case of current treatment of Zimbabwean nationals in South Africa. In April of this year, previous Home Affairs Minister Nosiviwe Mapisa-Nqakula announced a moratorium on deportations to Zimbabwe, as well as a special dispensation authorising Zimbabweans to reside and work in South Africa temporarily. She also announced a waiver of visa requirements for Zimbabweans wishing to travel to South Africa: both progressive developments indicating a shift in state policy. This policy shift recognises the importance of accommodating the needs of vulnerable Zimbabwean migrants, and understanding that while many would not qualify as refugees under a strict interpretation of the Refugees Act, they are still in need of humanitarian protection.

However, following the April elections and the appointment of President Zuma’s new Cabinet, these changes were placed under review by the new Minister, Nkosasana Zuma-Dlamini. In August, Home Affairs reiterated that the special dispensation would be rolled out, but has not indicated any timelines for the commencement of this process.

While government delays the roll-out of the special dispensation, hundreds of Zimbabweans continue to be arrested daily and detained by police and immigration officials across the country. Despite the moratorium on deportations to Zimbabwe, police do not appear to have received any instructions to cease arrests.

Zimbabwe’s temporary political stabilisation notwithstanding, new migrants continue to arrive in South Africa and are likely to continue to do so at similar levels for the next two to five years. Perceptions of further instability or problems within Zimbabwe’s Government of National Unity could provoke even larger volumes of migration.

Given the presence of Zimbabwean migrants in South Africa already and the recognition of their humanitarian needs, a clear and consistent policy is required. For example, a special residence permit for Zimbabwean migrants would mean more protection from arrest and detention, and more rights in accessing employment.

In broader terms, much more work is required to improve the protection of migrants and refugees in South Africa, and to prevent future hate crimes. In 2008, the US Committee for Refugees and Immigrants (USCRI) rated South Africa, along with Kenya, Tanzania and the Democratic Republic of Congo, as among the worst places for refugees. Better protection of migrant rights is not exclusively limited to wealthy nations: the USCRI has ranked the asylum procedures of Niger, among the world’s poorest countries and ranked last on the United Nations Human Development Index, as particularly strong in terms of policy, including in the areas of access to courts, freedom of movement and residency, protection from harm, and the ability to work legally.

Our government should also encourage and promote the reporting of all incidences of hate crimes. Seeing as the law is an expression of a society’s values, a long-term approach would also develop specific anti-hate crimes legislation. This would also be a way of recognising the harm experienced by victims, and of expressing the commitment of the criminal justice system to better serve and protect them in future.

In its 2009 Report on Protecting Refugees, Asylum Seekers and Immigrants in South Africa, the Consortium for Refugees and Migrants in South Africa (CORMSA) makes the following further recommendations on how to deal with the scourge of hate crimes and anti-foreign violence, beginning with a full enquiry into last year’s xenophobic attacks:

  • Encourage a speedy, thorough and independent enquiry into the May 2008 attacks;
  • Initiate ongoing, systematic enquiries into anti-migrant and anti-outsider violence;
  • Ensure prosecutions and strengthen justice mechanisms;
  • Identify and implement effective and law-bound conflict resolution mechanisms and establish effective early-warning and response systems;
  • Evaluate the roles and actions of community leadership structures, and adjust functioning and/or oversight measures in accordance; and
  • Address institutionalised xenophobia and discrimination.

Following the May 2008 attacks, migration policy and our responsibility to protect foreigners in South Africa were at the centre of popular and political debate. While government and civil society rallied together in condemnation of the attacks, these issues have now moved out of the spotlight, and continue to be excluded from the priorities on government’s agenda. While there has been recognition by some isolated local governments that refugees and migrants are an important part of the population, few have the resources or expertise to implement any significant positive change.

Kaajal Ramjathan-Keogh heads the Refugee and Migrant Rights Programme at Lawyers for Human Rights. She is also the chairperson of the Consortium for Refugees and Migrants in South Africa.

© Institute for Justice and Reconciliation, 2009.

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