Die Suid-Afrikaanse regering het onwettig en irrasioneel opgetree deur die Wysigingswet op Vlugtelinge van 2020 te aanvaar, het versuim om die menseregte van vlugtelinge te beskerm en het die regte van kindervlugtelinge geïgnoreer - hoor deelnemers aan die Global Scholars Academy (GSA) wat by die Universiteit Stellenbosch (US) plaasgevind het (16-20 Januarie 2023).
Meer as 100 jong regsgeleerdes en senior akademici van top-universiteite van regoor die wêreld en Suid-Afrika het deelgeneem aan die GSA se weeklange werkswinkels, paneelbesprekings en gaslesings wat gefokus het op dringende wêreldkwessies in internasionale reg, beleid en ekonomie.
Closing GSA guest speakers Prof Fatima Khan, Director of the Refugees Unit at the University of Cape Town (UCT) and a human rights lawyer, and Emeritus Professor Sonia Human of SU's Law Faculty emphasised the importance of challenging justifiable cases of refugees in the courts on the basis of the protection of human rights and children's rights respectively.
South Africa completely unprepared to deal with refugees
“The Government has bypassed their obligations towards refugees by amending four times the original human rights-oriented Refugees Act of 1998; by closing refugee reception offices (RROs) and having negative interactions with refugees; spreading the narrative of 'bogus asylum seekers', and by deliberately delaying the processes for refugees to obtain legitimate documents such as identification documents to be able to gain access to the country's basic services," Khan explained, who estimates that there might be as many as 250 000 refugees and asylum seekers in South Africa, with many more undocumented. Most of these refugees come from Somalia, Ethiopia, Burundi, Rwanda and the Republic of the Congo – countries plagued by wars, civil unrest, and “countries that have survived genocides.
“In the early days of democracy, South Africa showcased its commitment to upholding human rights and separated its refugee law from the immigration law, the latter being control-oriented whereas the refugee law is protective in nature. However, to say that South Africa was unprepared in dealing with refugees with an urban refugee policy is a gross understatement," Khan said, adding that refugee camps are not an approach that are attainable in South Africa, given that refugees, like all other human beings, have the right to freedom of movement according to the Constitution.
Referring to the xenophobic incidents a few years ago, Khan said that some positive progress has been made with refugees living amidst the communities as a result of community police forums who have been educating and informing South African communities about refugees' status, circumstances and human rights.
States' sovereignty not cast in stone
Not only in South Africa but also worldwide, the refugee crisis is causing ongoing tension between governments' rights to sovereignty and territorial integrity on the one hand, and the protection of refugees' human rights and freedom of movement, on the other hand.
“But sovereignty is not cast in stone, and the South African Government as a sovereign nation cannot continue to deny that its Constitution and the Bill of Rights apply to everyone in this country," she said. “In this regard, we have defended many refugees' cases successfully. The litigation process might be slow, but the law in South Africa is still effective," she concluded.
Refugee children: A tragedy unfolding
Against the background that many countries are increasingly closing their borders for refugees, it is a tragedy that refugee children are being discriminated against and their rights as children being ignored or even violated, according to Human. She drew attention to the importance of the Refugees Convention and the Convention of the Rights of Children (CRC), the latter being “the most widely ratified convention worldwide and one which all member-countries of the United Nations signed, including South Africa.
“When it comes to the protection of children's rights, Articles 2 and 22 of the CRC are of critical importance," Human said. “Article 22 briefly states that refugee children should receive appropriate protection and humanitarian assistance, whereas Article 2 specifies that states shall not discriminate against refugee children in any way, which in effect means that the moment a refugee child crosses the borders of a country, that child is entitled to all the rights enshrined in the CRC without any discrimination. But we do not see this happening in South Africa. Instead, we see terrible injustices towards refugee children".
Move away from 'adult paradigm'
Durable solutions to the crisis are needed urgently and immediately. “We should move away from the 'adult approach' used in the Refugee Convention, which places additional burdens on children in the application process for refugee status: refugee children cannot be expected to prove a well-founded fear why they are unwilling or unable to return to their country of origin, given that these children have already been through trauma that many of us cannot imagine," Human said.
Use the courts to fight discrimination against children
“Furthermore, Article 2 of the CRC is a threshold as it unlocks all the rights of children and deals with discrimination. On the very notion of discrimination, it can – and should – be fought in court," Human emphasised. “No refugee child should live with a refugee status forever. They are first and foremost children, then refugees. As such, we must remember they have only one childhood, which can never be given back."
- This article by Michèle Boshoff on behalf of Stellenbosch University