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SA government not serious about protecting refugees
Author: Callixte Kavuro
Published: 23/06/2020

Despite the Refugees Act and its noble intentions, South Africa is politically not willing to offer asylum-seekers and refugees the protection they so desperately need, argues Dr Callixte Kavuro from the Department of Public Law in an opinion piece for Weekend Argus (20 June).

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SA government not serious about protecting refugees

Callixte Kavuro*

On Saturday 20 June, people across the globe will observe World Refugee Day. On this special day state officials, civil societies and academics take time to recognise the distressful journey of refugees to and their plight and resilience in host communities. For South Africa, it is a moment to reflect on its commitment to protect refugees for the past 20 years.

It is crucial to point out that refugees were not allowed in the country before 1994. Those who were able to sail through borders into South Africa had to stay in the country as illegal migrants and had to survive through labour exploitation. Because there was no refugee protection system in place, refugees could claim neither state support nor legal protection. Legally and politically, they were viewed as “undesirable people" who had to be traced, apprehended and deported.

When South Africa became a democracy in 1994, it opened its borders to asylum-seekers. Driven by the principles deriving from the philosophies of ubuntu and human dignity, South Africa acceded to the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa and the 1951 Convention Relating to the Status of Refugees (and its 1967 Protocol) in 1995 and 1996, respectively. The accession was ratified through the adoption of the Refugees Act of 1998, which came into effect in 2000.

Unlike other African countries where refugees live in refugee camps, South Africa applies the community integration approach. This approach implies that those individuals who flee their countries to seek asylum in South Africa should be assisted to integrate into the community. Humanitarian assistance is central to community integration simply because asylum-seekers do not carry enough food with them during their distressful journey into exile or during their initial integration in a country of asylum. While walking or travelling – often through difficult terrains or open sea – to their destination, they face violence, dehydration, malnutrition, hunger, exhaustion and increasing vulnerability to ill health.

Despite these humanitarian concerns, South Africa adopted a self-integration refugee policy, which does not provide for humanitarian responses. Accordingly, asylum-seekers must integrate themselves in communities. They must support themselves until their applications are successful and they are formally recognised as “genuine" refugees. During this time, they have to find accommodation, food, and send their children to school. In order to meet their needs, they need to work.

Although they are required to fend for themselves, refugee laws bar asylum-seekers from taking up employment, engaging in small business or having access to critical and life-saving services. Exclusion from social welfare and economic activities led the Supreme Court of Appeal in the 2004 case of Minister of Home Affairs vs Watchenuka to order the state to allow asylum-seekers to work and study. Whereas the right to study was seen as a means of acquiring vocational skills, the right to work was considered as the only tool asylum-seekers can use to meet their basic needs.

The Watchenuka decision did not sit well with the state. In 2017, it revised the Refugees Act under which it indicated that the rights to work and study are available in very restricted circumstances. The 2017 amendments (not yet in operation) seek to remove asylum-seekers from communities and to confine them in the Asylum Seeker Processing Centres where they would be provided for by the United Nations High Commissioner for Refugees. This gives credence to the state's unwillingness to protect asylum-seekers.    

This reluctance manifested in the closing down of Refugee Reception Offices (RROs) in Cape Town and Port Elizabeth. Asylum-seekers in these cities had to travel every three months – along with their dependents – to RROs in Gauteng, Limpopo and KwaZulu-Natal to regularise their permits. Destitute asylum-seekers, who were unable to travel to these provinces, became illegal foreigners over nights. This led to a collision with law enforcement and a loss of employment as they were no longer legally staying in the country. Without work, life became unbearable. Without valid permits, they were subject to, among others, arrest, detention and deportation.  

Non-protection of asylum-seekers is justified by the state on the ground that they are irregular migrants who do not deserve refugee protection. They are accused of abusing the asylum management system to regularise their stay and competing with citizens for access to available national resources thereby placing the nation at risk.

The 2017 White Paper on International Migration consolidates these contentions by noting with concern that South Africa is the largest economy in the SADC region and the African continent in that it attracts a high number of economic migrants that use the asylum management system as an entry point. With these high demands being placed on refugee protection, the state's ability to offer effective protection services to “genuine" refugees and asylum-seekers in the greatest need of protection, is therefore compromised.

In her 2011 World Refugee Day commemoration address, Ms Fatuma Chohan, former Deputy Minister of Home Affairs, acknowledged that the influx of economic migrants in South Africa serves to disadvantage formally recognised refugees, as resources are diverted away from offering them full legal protection services that the Refugees Act strives to achieve.

The state's misconceptions about asylum-seekers have negative impacts on their protection and their applications. For the last ten years, 90% of applications were rejected, compelling asylum-seekers to stay in the country as individuals awaiting decisions on their appeals. This creates anxiety and uncertainties about their future in the country. This situation of being limbo is further exacerbated by the state's reluctance to renew their permits. Documentation actually becomes integral to the frustration and uncertainties faced by both asylum-seekers and “genuine" refugees. This is a reality despite of fact that the Refugees Act is praised to be progressive.  

It is clear that in the last 20 years the state has displayed conflicted and ambivalent attitudes towards the protection of genuine refugees, as opposed to “bogus" asylum-seekers and economic migrants. These conflicted attitudes manifest themselves in the adoption of socio-economic measures that tend to distribute socio-economic rights and benefits to previously or historically disadvantaged people.

Refugees are excluded from socio-economic measures taken to redress and eradicate deep-seated or inherited inequality. They have no access to subsidised socio-economic development programmes such as housing and student financial aid scheme. They do not fall within the scope of Affirmative Action in terms of employment. Black Economic Empowerment and National Health Insurance are out of their reach.

In this lockdown, the conflicted attitudes are evident in the exclusion of refugees and asylum-seekers from the COVID-19 economic relief measures designed to respond to an economic and humanitarian crisis. Struggling to access critical basic services, refugees and asylum-seekers took to the streets of Cape Town and Pretoria and demanded to be resettled in a third country.

In light of the above, it is fair to say that despite the Refugees Act and its noble intentions, South Africa is politically not willing to offer asylum-seekers and refugees the protection they so desperately need.

*Dr Callixte Kavuro is a post-doctoral researcher in the department of public law at Stellenbosch University.