Since May 2008, the Centre for Human Rights has been engaged in the Strengthening Democracy Project, which focuses on researching the extent, solutions to, and possible causes of xenophobia and xenophobic violence in South Africa. A Centre project on the xenophobic violence of 2008 was completed in 2009, and published as The nature of South Africa’s legal obligations to combat xenophobia.
In March 2008, a wave of xenophobic violence swept across many parts of South Africa, including Tshwane. This study aims to provide an analysis of the potential role that law, and particularly human rights law, may play in combating such violence and its root causes. The study considers the issue from a multidisciplinary perspective, by informing itself of the views of both nationals and non-nationals on pertinent issues. Against this background, an analysis is made of South Africa’s legal obligations, deriving from its Constitution as well as United Nations and African Union treaties to which it is a state party.
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About the Xenophobia Project
Starting in March 2008, xenophobic violence swept across many parts of South Africa. This may not have been the first time it had occurred, but it was the fiercest manifestation of xenophobia to date in South Africa.
These events caused serious violations of the human rights of many people living among us; including within Tshwane. The Centre for Human Rights at the University of Pretoria, therefore, undertook a research project ‘Strengthening Democracy in South Africa: Fighting Xenophobia, to look into the causes and some pertinent manifestations of human rights violations, and to investigate what the role of human rights law has been and how its role could have been more pronounced.
The legal analysis was informed by in-depth interviews of 40 respondents from the Law Faculty of the University of Pretoria, from refugee camps and ‘townships’ around Pretoria. Arising from these interviews, the South African government’s legal obligations are considered. In particular, the study examines the government’s obligations to respond to violence, in respect of repatriation, reintegration, access to socio-economic rights and obligations in respect of prevention of future xenophobic attacks.
The study uses the term ‘foreign nationals’ to broadly include all non-South Africans resident within South Africa. Within this circle, the study identifies documented foreign nationals as those who have been accorded refugee status or recognised as asylum seekers, in possession of official documents testifying to this fact. These categories of persons are legally within South Africa. Undocumented foreign nationals, also often referred to as illegal immigrants are those residing in the country without official permission. These categories are dependent on whether the persons in question are officially recognised by immigration authorities or not. Other terms used to describe foreign nationals reflect the reason why they are within the country or why they left their country of origin. Such categories include ‘economic refugees’, and ‘migrant workers’, who may be within the borders of South Africa legally or illegally, but are here for economic reasons. Internally displaced persons as a category will overlap with other categories, and refers to those uprooted from their usual place of residence within South Africa.
The main sources of South Africa’s obligations are found at the international and national level. At the international level, South Africa has ratified the International Covenant on Civil and Political Rights, the Convention on the Elimination of all forms of Racial Discrimination, Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women, and the ILO’s Convention 111 concerning Discrimination in Respect of Employment and Occupation. South Africa also committed itself to implementing the programme of action developed during the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in 2001.
At the regional level, the African Charter on Human and Peoples’ Rights as well as the OAU Convention Governing Specific Aspects of Refugee Problems in Africa are relevant. Although the SADC framework does not explicitly speak to human rights issues, reference is made to rights and freedoms in the African Charter on Human and Peoples’ Rights, the Universal Declaration of Human Rights and ILO Conventions. At the national level, the Constitution of South Africa and the Refugees Act are among the most important sources of the state’s obligations.
South Africa has an obligation to respect and protect all persons resident within the country from violations to the right to liberty and security of person. In the context of the xenophobia the state was obliged to protect the victims from attacks by non-state actors, that is, the individuals who perpetrated the violence. The government failed to discharge the obligation and continues to violate the obligation by failing to provide remedies.
The principle of non-refoulement obliges states not to reject or return refugees, asylum seekers and other immigrants (illegal immigrants included) back to their country of origin or any other country without regard to the persistence of persecution in the territories where they are repatriated. The state has a duty in line with the non-refoulement principle not to return refugees and asylum seekers to territories where they might face persecution unless through a normal asylum application process, the applicant has failed to qualify for protection and has exhausted available appeal procedures. In the aftermath of the xenophobic violence, refugees, asylum seeker permit holders and undocumented migrants were directly mass deported. By virtue of deporting refugees and asylum seekers without having established whether indeed they were in the country illegally, because victims had no official documentation, where the possibility existed that such documentation was destroyed during the violence; and by subjecting victims to unbearable detention conditions, the state constructively refouled genuine migrants back to territories where migrants expressed a well-founded fear of persecution on their return.
3 Access to socio-economic rights
The state is obliged to realise the socio-economic rights of all persons within South Africa. No distinction is made in the Constitution between nationals and foreign nationals in relation to socio-economic rights. To the extent that state functionaries were implicated in their capacity as such, in unlawfully destroying identity and immigration documents and the means of livelihood of foreign nationals, this constituted a breach of the obligation to respect the right to access socio-economic rights for foreign nationals. By failing to prevent the violence that destroyed the livelihoods of xenophobia victims, the state similarly failed to protect their rights. To the extent that the perception that refugees are not entitled to access social services served as a basis for the violence and the state has not taken action to counter such perceptions, the state is found liable for breach of its obligations to fulfil access to socio-economic rights by foreign nationals. In addition, by failing to effectively set out a policy on access to socio-economic rights by foreign nationals the state has exacerbated and contributed to the problem of xenophobia.
There is no international or national refugee law obligation to locally integrate refugees, or displaced foreign nationals for that matter. To the extent that the government undertook publicly to re-integrate those displaced, a moral obligation exists to do so. Having decided to act in this manner the government was under an obligation to ensure that their actions accorded with the expected standards that govern re-integration. Government’s action fell short of such requirements and they were as such in violation of their obligations.
Summary of Recommendations
- South Africa should ratify and domesticate all relevant instruments, including the Convention on the Rights of All Migrant Workers and Members of their Families.
- The process of state-reporting, which is a necessary component of ratifying international instruments, should where relevant include the situation of foreign nationals and the measures taken to ensure that their rights are realised. Measures should be put in place to implement the concluding observations made by treaty bodies on these reports.
- South Africa, as the site where the negative events related to xenophobia took place, as well as the host nation for the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, should inspire and galvanise more action on the realisation of the goals in the Conference programme of action. South Africa should capitalise on the opportunity presented by the Durban Review Conference to be held in April 2009 to re-commit itself to achieving the goal of a xenophobia free-society.