We need focused attention on the plight of refugees to ensure their vulnerabilities are addressed, writes Lawrence Mushwana.
Johannesburg - The overall theme for this year’s World Refugee Day – living together is key for development – reflects the work that needs to be done to ensure that all people, regardless of national origin, are treated with respect and dignity.
As we celebrate the day, we are reminded of the global headlines that continue to paint a picture of the harrowing effects of conflict on millions of people around the world.
Protracted conflict in Iraq, Syria, Mali, the Central African Republic and South Sudan and the continued instability in many parts of the Middle East have led to the loss of lives and the forced displacement of millions of people.
What we see in the immediate aftermath are the remnants of war: the refugees who have little except resilience and the will to survive.
That is heroic and at the same time humbling.
It is against this backdrop that on Friday we took the time to yet again pay homage to refugees around the world.
Why do we need to honour refugees?
It is clear that they are a vulnerable group whose plight is exacerbated by the complex linkage of the root causes of their flight to poverty, poor governance and human rights violations.
The context within which they emerge provides an onus for focused attention on their plight to ensure that their vulnerabilities are adequately addressed and specific legal norms and standards are created to offer protection.
These would ensure that even in flight and in seeking refuge, refugees and asylum seekers are respected and treated with dignity.
Thus the rights and the plight of asylum seekers and refugees must be seen within the broader context of human rights, which belong to everyone.
The Universal Declaration of Human Rights in its preamble recognises that the foundation of freedom, justice and peace lies in the inherent dignity and the equal and inalienable rights of all members of the human family.
States are duty bound to adhere to the legal norms and standards arising from the 1951 International Convention Relating to the Status of Refugees (and its 1967 Protocol) and for African States, the 1969 Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa.
The existence of these treaties does not negate asylum seekers and refugees’ entitlement to the rights and fundamental freedoms spelt out in international human rights instruments.
They rather serve to create a comprehensive and complementary protection framework for refugees and asylum seekers.
It is worth noting that in addition to seven of the nine core human rights instruments, South Africa is party to the UN and OAU conventions on refugees and thus has the obligation to create a legislative environment that reflects its duties and responsibilities that arise from these instruments. South Africa has created a refugee protection regime which is underpinned by the Refugee Act of 1998.
However, the existence of a legislative and policy framework represents only a small aspect of the entire protection regime which must encapsulate the challenges of the refugee protection system.
South Africa is seen as a beacon of hope, representing a haven for those fleeing conflict, civil strife and situations of wide-scale human rights violations.
Yet many asylum seekers and refugees are often confronted by an environment that is hostile and at times violent.
For instance in 2008, there was an outbreak of xenophobic violence that led to loss of lives, destruction of property and displacement of thousands of people in several parts of South Africa.
Sporadic incidences of violence, particularly those targeting foreign shop owners, reflect the continued vulnerability of migrants to human rights violations.
This has a considerable impact on the integration of refugees and asylum seekers in their host environment and calls for a renewed commitment from the government to take necessary and adequate steps to positively impact on the status of social cohesion in South Africa.
Social cohesion provides an important avenue through which some of the challenges with the promotion and protection of human rights of refugees and asylum seekers can be addressed.
The social narrative has been affected by migration for centuries, yet the sense that divisions remain is apparent.
There is a definite need for cultural diversity to be understood as an asset rather than a liability – a process that can succeed if viewed with a human rights lens.
In addition, in speaking about social cohesion, I highlight the fact that in its periodic review at the UN Human Rights Council in May 2012, South Africa’s state of social cohesion and the problem of xenophobia were brought into question.
Several states urged South Africa to take the necessary steps to promote social cohesion and to effectively address xenophobia.
We need to hold our government accountable and also work with its departments to ensure a commitment to dealing with the challenges that beset the promotion and protection of human rights for refugees, asylum seekers in particular and migrants in general.
While the state has the primary duty to ensure the promotion and protection of human rights, there are other actors such as National Human Rights Institutions (NHRI) that play a critical role in monitoring the state of the realisation of human rights in a country.
The SA Human Rights Commission is an ‘A’ status national human rights institution, which is constitutionally mandated to promote and protect the rights of all people, including refugees.
Through its mandate, the commission engages in community outreach work, through educational initiatives such as workshops, seminars and community dialogues; advocates and lobbies for a rights-based legislative framework; builds awareness and places issues on the public agenda through the media; provides redress where there have been human rights violations and monitors the implementation of policies.
The commission values the contributions that civil society, experts within the field – from academia and specialist organisations – can make towards the realisation of rights for refugees and asylum seekers in South Africa.
For instance, the commission closely worked with a coalition of non-governmental organisations led by Lawyers for Human Rights to conduct an investigation into the conditions at Lindela Repatriation Centre, including access to health care for detainees.
The report of the investigation has been finalised and will be shared with all the stakeholders once published.
In 2010, the commission published its report on the 2008 xenophobic violence titled Investigation into issues of Rule of Law, Justice and Impunity Arising Out of the Violence against Non-nationals.
Certain findings and recommendations showed that South Africa failed to adequately protect the rights of migrants.
The overall state response was criticised largely due to political ambivalence to the crisis which had a rippling effect on the security response, the low level of prosecutions and convictions of alleged perpetrators and provision of poor humanitarian assistance to those affected.
The resultant efforts of the Protection Working Group has since seen the establishment of a focal point within the SAPS for the co-ordination of a rapid response to threats of outbreak of xenophobic violence as well as an early-warning system in pre-empting violence before it spirals out of control.
The commission is also tasked with ensuring the legislative environment governing refugees and asylum seekers complies with international norms and standards.
It has been actively involved in contributing to the discourse and development of South Africa’s immigration laws, policies and has in the past engaged on pieces of immigration legislation at parliamentary and departmental levels.
The commission made a submission to the Department of Home Affairs on the draft Immigration Regulations (2014) where we cited, among others, the conflict with some existing pieces of legislation such as the Children’s Act and also that the regulations needed to be aligned with the Refugees Act and the principle of non-refoulement.
The constitutionality of the Immigration Regulations is being challenged in court.
There are key areas which, if attended to effectively, will provide a solid foundation to strengthen efforts to ensure that all people in South Africa enjoy their human rights. First, I draw upon the 2001 Durban Declaration and Programme of Action (DDPA), which encouraged states to develop national action plans to promote diversity, equality, equity, social justice and the participation of all.
Fifteen years after the adoption of the DDPA, South Africa has yet to adopt its National Action Plan, though it is worth noting that the Department of Justice and Constitutional Development presented a draft before the cabinet last year for approval for public consultation.
This would also need to be complemented by the implementation of the Social Cohesion Plan mandated to the Department of Arts and Culture.
Both tie to the effective implementation of development plans or policies.
Second, to address impunity for crimes against migrants (and as evidenced in the SA Human Rights Commission report in the aftermath of the xenophobic attacks in 2008, South Africa needs to criminalise xenophobia.
The Prohibition of Racism, Hate Speech, Xenophobia and Related Intolerance Bill was scheduled to be tabled in Parliament in the 2012/2013 financial year.
We hope the momentum generated by this event will provide the impetus for the bill to be tabled before Parliament and contribute to the overall strengthening of the protection regime for refugees, asylum seekers and migrants in general.
Related to this point is the need for the government to ensure that it signs and ratifies outstanding human rights treaties such as the Convention on the Rights of Migrant Workers, which provides additional rights for migrants which would enrich the protection framework.
Last, human rights training needs to be an integral part of the policies developed in relation to immigration and refugee and asylum policies.
Governmental officials and the police need to receive comprehensive training on the rights of migrants and be held accountable for any discrimination and ill-treatment that may occur in their dealings with migrants, including refugees and asylum seekers.
It is also important that refugee and asylum policy be viewed as parallel to immigration policy.
The development of refugee and asylum laws and policies in compliance with international norms and standards and their effective implementation will provide a basis for the creation of a society that is cohesive and one which appreciates diversity.
There is no easy solution to the challenges that beleaguer the promotion and protection of the rights of refugee and asylum seekers.
However, a collective effort grounded on human rights ideals that incorporates a multifaceted and multidimensional approach may provide the best possible way to address these challenges and promote equality for all.