Amended refugee act restricts fundamental rights
The Department of Home Affairs has limited work and study options for refugees and asylum seekers, and discouraged political activity. Activists and experts say this is unconstitutional.
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16 January 2020
Minister of Home Affairs Aaron Motsoaledi has defended the new amendments to the Refugees Act that came into effect at the beginning of the year, saying they serve to tie up loose ends and fill gaps that led to regulation abuse. But they have been met with an avalanche of criticism citing human rights.
The 1998 Refugees Act, which is modelled on the 1951 Refugee Convention, a United Nations treaty, prescribes rules and regulations for asylum seekers and refugees. The act was recently amended to restrict access to work, curtail certain liberties and discourage political involvement or contact with diplomatic missions under threat of deportation.
Some of the amendments include a withdrawal of refugee status if one engages in political activity or campaigns, an age limit for dependents of refugees and a committee determining a refugee’s field of study and the limits to the work for which refugees may apply.
Vusimuzi Sibanda, chairperson of refugee advocacy group the African Diaspora Forum, says it is hoping this position will be reconsidered using the South African Constitution as a guide.
“There are certain parts of the Constitution that look at rights which can be limited. The right to participate in the political affairs of a country is a right that cannot be limited by anyone because that is a right to self-determination,” he says.
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Sibanda adds that even if asylum seekers are in South Africa fleeing human rights violations, they are still citizens of their own countries. They have to be given the option of getting politically involved in fixing their country, so they can return.
Academic Jane Duncan agrees, saying that the regulations are disgraceful and that they remove fundamental rights from an already vulnerable constituency.
“[They] most likely would have been victims of persecution in their own countries and their ability to organise around the very issues that created their refugee status is denied to them … Unless refugee organisations can freely organise about issues affecting them directly, they will not be able to change those situations back home, which will create a bigger refugee crisis,” she says.
Political dissidents
Director of the Cape Town-based refugee support group Unifam, Patrick Matenga, who was born in the Democratic Republic of the Congo (DRC), says that the amendments contain both good and bad parts. But he agrees with the Department of Home Affairs that some people abuse the system.
“International law provides for refugees to not be involved in politics … Some people are here to abuse the system of asylum seekers. They are here for political reasons and penetrate into the political system,” he says.
South Africa is home to a number of political dissidents who have organised in South Africa and been instrumental in shedding light on the plight of those in their countries of origin. Many former allies of Rwandan President Paul Kagame fled to South Africa, leading to the country being used as a site for violence and assassination. The situation became so tenuous that both nations removed diplomatic staff from the other.
Motsoaledi has previously positioned the amendment to political participation as a contribution to the continental peace and security architecture. In a radio interview, he said the department was complying with Article 23 of the African Union’s 30-year-old African Charter on Human and Peoples’ Rights.
Motsoaledi’s spokesperson, Siya Qoza, defended the amendment as necessary to prevent people from using South Africa as a ground for political warfare. “What we don’t want is … people to run away from their home countries, saying they are being persecuted for political participation, and coming here and using South Africa as a base to launch an attack against a country which is legitimate,” he says.
Qoza says African countries are all recognised by international and national bodies as being legitimate governments, citing free elections and independent judiciaries across the continent.
A question of legitimacy
Michael Neocosmos, the author of From ‘Foreign Natives’ to ‘Native Foreigners’, says legitimacy is beside the point as everybody has a human right to engage in the expression of political dissent so long as it’s peaceful. The formulation in the AU Charter mentions the terms “subversion and terrorism”, not “political” as the amendment states.
“No one is denying the legitimacy of the state. But the point is some states are oppressive and deny people their human rights, therefore that’s not the issue. Do they deny certain people their rights? If you are in Myanmar and seek asylum in Bangladesh, it doesn’t mean Myanmar isn’t legitimate, it just means you are oppressed in some way by being denied human rights,” he says.
Having received succour from other African states during the anti-apartheid struggle, it’s easy to spot the dissimilarity in support and sanctuary provided by South Africa to immigrants. But Qoza says the two cannot be compared.
“Here is the difference. ANC comrades went there as freedom fighters, they did not go there as refugees. Apartheid was declared a crime against humanity … ANC people were in camps, they were not integrated into society and provided for under specific conditions,” he says.
Securitisation and internationalism
Duncan says there have been problematic advances towards making the department increasingly securitised, which may move it towards the likes of the United States’ homeland department.
“Home Affairs has been historically and should remain a civil function, not a security or national security function. Broadening out our understanding instead of narrowing it … is going to lead to immigration [becoming] defined as a national security threat,” she says.
“They are dealing with symptoms in the unhealthiest way, in a way that could lead us to what we have seen in the US. That closing up of our relatively open society is moving us towards a different direction,” she adds.
Neocosmos says reactionary attitudes need to change from seeing immigration as a containment issue posing security risks to an opportunity for economic growth. He says refugees typically put more into the economy than they take out.
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“You don’t see foreigners as bringing skills, bringing employment, bringing in different ways of doing things … Instead, you criminalise them. More restrictions will not stop people from coming,” he says.
Neocosmos sees this as an abandonment of the internationalist perspective by the ruling party, contending that this moves South Africa into isolation on the continent.
“The ANC had an internationalist perspective. It stood up officially in its rhetoric and in its statements for oppressed peoples. They had an internationalist perspective, but now they seem to deny people their basic rights to organise and engage in political activity, which is the complete opposite. It’s denying internationalism, it’s throwing internationalism under the bus and it shows that there is a core of chauvinism and xenophobia at the heart of the ANC,” he says.
Neocosmos says the amendments will cause more administration and make life even more difficult for refugees and asylum seekers, which is the intention.
“The legislation has always been there, it’s just harassing people. That’s another way of instituting legislation to throw people out … The legislation has always been one to build a fortress around South Africa,” he says.
Tough criteria
Qoza says there are criteria an asylum seeker must satisfy to be granted refugee status: They must prove that they are persecuted on particular grounds, including religion, culture and tribe, with the option to appeal if denied.
“Even if your country has a law against something, you must still … evidence that you as an individual have been targeted. That applies to all [criterion] including political violence, LGBTQIA+ … For example, not all regions in the DRC are at war. Those [in areas of] war must still show that [their] life is directly at risk … That is how the international law operates and we are using it along those lines,” he says.
Qoza says this does not apply to those in the country such as academics or sportspeople, “it only applies to people who came here saying that their lives are in danger and they need protection”.
Sibanda says this approach is a misinterpretation of the Refugees Act, because it assumes you must be directly affected by a disturbance in your country or that you are seeking asylum because you are fighting with your government.
People are running because their governments are not able to protect them from Islamist groups in Nigeria and opposition group Renamo in northern Mozambique, for instance, he says.
“There has always been Renamo in that particular area. Those people who run, run away because of the brutalisation that takes place because of the disagreements between the government and Renamo,” he says.
In a country like Uganda or Kenya, where you can be arrested based on your sexual orientation, or your family arrested for knowing about your preference and not turning you in, it would surely be a tangible fear that you can be persecuted at any time and should be afforded protection.
“They are trying to deal with broader issues. But the way they are trying to go about it, they are preventing people that could have genuine problems, and that is where the biggest concern is,” says Sibanda.
Qoza says that, hypothetically, if a refugee or asylum seeker needed to access documents through their embassy, that asylum seeker would have to alert the home affairs department. They could also make representations to the government if they had sought refuge in South Africa but wanted to participate in the political processes of their country of origin.
Work restrictions
The Department of Small Business Development will introduce new laws aimed at restricting the sectors in which refugees and asylum seekers can work following the landmark Watchenuka case, which set parameters on refugee affairs relating to employment while waiting for their status to be declared.
Motsoaledi has said that this caused problems on the labour front, including employers citing the judgment when hiring undocumented immigrants. He has previously claimed in Parliament that 95% of asylum seekers were in fact looking to come to South Africa to seek employment rather than refugee status.
Matenga takes issue with the restrictions on work, saying this will cripple those coming into South Africa.
“Their work is their work. We have no refugee camps in South Africa. So, the only way for them to survive is for them to find work, because they are not afforded assistance,” he says.
Unisa law professor Babatunde Fagbayibo says many countries make use of a local content policy, including Nigeria and Zimbabwe, but that this was not the way to deal with immigration as it made the issue worse without addressing challenges. He attributed the amendments to the securitisation of South Africa, which he says sees itself inside of Africa, but not of Africa.
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“There is a sense of othering. South Africa is becoming more nationalistic and this is the foreign policy that is in line with it … It is a schizophrenic foreign policy in which democracy is only respected inside the country. Anything over the Limpopo River, and South Africa looks the other way,” he says.
Interested parties had 13 business days from 29 June 2018, when the suggested changes were first published, to comment. Consortium for Refugees and Migrants in South Africa media officer Abigail Dawson says the lobby group advocated consistently against the amendments from the time they were drafted, dubbing them a big step away from the progressive 2008 Refugees Act.
“These amendments will enforce much more restrictive avenues … and additional procedural processes for protection, which are unrelated to the protection of refugees and asylum seekers … while denying fundamental rights to work and study,” she says.
Qoza says the department is open to people coming into the country, provided they do so using the appropriate channels and declare their true intentions.
“We need to make sure that people who get in are people who qualify for the status that they are applying for, or else they must apply for a permit which accords with what [they] want to do when in South Africa,” he says.
