South Africa’s asylum system is in crisis. Construction is due to begin on the first of a series of border “processing centers” where migrants could find themselves detained for years at a time. Meanwhile refugee reception centers around the country – asylum seekers only resort for gaining legal status – are being closed, forcing people to travel vast distances in a struggle to get documented.
Instead of reforms to bring our immigration law into the democratic era, the current government has resorted to xenophobic populism. The hostility to non-nationals within South African communities that was exposed by spates of xenophobic violence in 2008 and again in 2015 has seen heavy-handed police actions and mass deportations rather than humanitarian assistance or inclusion efforts.
More than two decades have passed since the end of apartheid but immigration policy is still regulated by a law predating the shift to democratic rule. The 1991 Aliens Control Act symbolizes the racist and anti-Semitic past and institutionalizes the practice of favoring whites over blacks in immigration-related issues.
The white paper on international migration recently adopted by South Africa’s cabinet after a brief public consultation process accelerates a hard-line agenda in response to migration. While there are progressive elements to the white paper, they come at the expense of asylum seekers and refugees who face lengthy periods of immigration detention. Politicians are scapegoating refugees and asylum seekers for all the social ills including unemployment, crime and lack of decent housing.
The government regularly uses inflated asylum figures to justify new restrictions. This includes the ludicrous claim that there are more than 1 million asylum seekers in South Africa. The 2011 census showed that only 4.4 percent of South Africa’s 52 million population were born outside of South Africa. Meanwhile the Department of Home Affairs’ own statistics show there were 218,000 asylum seekers and 91,000 recognized refugees as of the end of 2016.
The current shifts in policy, especially with regard to refugees and migrants, go against the ethos of South Africa’s progressive constitution. The cornerstone of South Africa’s Bill of Rights is equality and respect for human dignity for all who live in South Africa and not just its citizens.
Conditions at Lindela Repatriation Center outside Johannesburg, the country’s largest detention facility for undocumented migrants, demonstrate long-standing infringements of the basic rights of non-nationals. Since its opening in 1996, 10 separate reports have denounced Lindela, which is now operated by a private company, Bosasa.
Damning evidence of human rights abuses includes: detainees who have been incarcerated for more than the 120-day limit, physical abuse of detainees by guards, lack of access to medical services and interference by Lindela staff in due immigration process.
This is the backdrop against which Lawyers for Human Rights and other organizations are challenging recent policy shifts. In a submission to the government, the organization pointed out: “The constitution will not permit arbitrary and irrational deprivation of liberty of an entire class of persons, particularly based on the very grounds of persecution from which they are fleeing.”
At LHR we run the largest refugee and migrant rights program in the country, with law clinics at which we consult with 10,000-16,000 clients every year. Our clients have their rights and dignity trampled throughout their engagement with the Department of Home Affairs and more specifically, the refugee reception offices. The current asylum protection system in South Africa is in crisis and is effectively dysfunctional.
There is an urgent need for an effective plan to deal with the endemic and systemic corruption that takes place at the refugee reception offices. This corruption acts as a barrier to asylum seekers, preventing them from getting legal documentation. Other serious issues include lack of capacity to deal effectively and efficiently with claims for asylum and lack of resources to allow department officials to conduct their work independently and fairly.
Instead, the white paper contains proposals that further entrench the shift in policy from one based on urban integration and protection to one that sees asylum seekers and refugees as a threat. This policy shift has been apparent since 2013 when LHR warned against the potential fallout from moves to create remote border camps.
The provision of shelter and basic services will necessarily be a central aspect of keeping large numbers of newly arrived asylum seekers in a remote border area with limited opportunities for self-sufficiency for the period of time needed to have some or all aspects of their status applications processed. If adequate provisions are not made, a humanitarian emergency is likely to result, as was the case in Musina in 2009.
That was when South Africa’s High Court found that the detention facility at the Soutpansberg Military Grounds near Musina was operated in substandard and inhumane conditions. The Refugees Act only provides for the establishment of temporary reception centers for asylum seekers in the case of a “mass influx,” so establishing such centers without such conditions would require a change in the Act.
We anticipate that moving refugee reception offices to remote ports of entry will be coupled with the detention of asylum seekers. South Africa has a non-encampment policy but there are several indications that some form of de facto detention is planned, even if such detention may not be officially titled as a camp.
Despite repeated calls for accountability and overwhelming evidence of abuse there is no independent oversight of immigration detention centers, even given their outsourcing to private contractors. In April 2017, LHR heard testimony of what amounts to collective isolation and punishment of asylum seekers from the Democratic Republic of Congo (DRC): 11 detainees, all originating from the DRC, were confined in one cell and refused the right to leave the room for meals or to mingle with the other inmates. Medical examination by a physician from Doctors Without Borders confirmed that collective isolation was accompanied by excessive use of violence, which – according to the detainees – included being shot with rubber bullets from close range and being beaten with lead pipes.
The situation will only get worse. The proposed changes to the policy include the establishment of detention centers at the borders, currently referred to as “processing centers.” Without independent monitoring of these detention centers, the subhuman conditions will worsen.
South Africa needs to consider alternative strategies to immigration detention that will be cost-effective. The struggle for justice and equality has made South Africa a symbol of freedom all over the world. We cannot have policies that deny another human being their basic rights, purely on the basis of their nationality. As the late Nelson Mandela said at his inauguration: “Never, never and never again shall it be that this beautiful land will again experience the oppression of one by another.”
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Refugees Deeply.