Trusting Democracy: The Law Can Work for Refugees,but what the System Needs Is an ‘Injection of Humanity’

Abstract

Newfound hope was seen in South Africa on 27 April 1994, when the country held its first democratic elections. In that spirit, South Africa acceded to the 1951 United Nations Refugee Convention and agreed to uphold its promise of protecting the most vulnerable. However, 25 years on, refugees have experienced increased exclusion and rights violations. The last 25 years have brought with them numerous struggles for refugee communities, including violence, institutionalised xenophobia and a lack of political will. How do we get back the momentum and spirit that paved the way for democracy in South Africa? While South Africa has robust legislative measures, a sense of humanity has been lost in their implementation. This article offers an overview of what it means to be a refugee in democratic South Africa, and it asks whether we can trust our democracy to protect the most vulnerable. By exploring the day-to-day obstacles that refugees encounter from the moment they arrive in South Africa, this article aims to highlight the systematic breakdown of the generous laws that are supposed to protect refugees. The law can work, but an ‘injection of humanity’ is needed in public and private life to ensure that the vision of democracy is upheld.

Keywords

Refugees democracy rights-based approach South African Constitution xenophobia political will

Introduction

The year 2008 was a terrible one for refugees in South Africa. During this year, the xenophobic attacks resulted in the death of several foreigners. It also led to wide-scale displacement of foreigners in all the major cities in South Africa to places of safety, where they had to be protected by the South African military (McKnight, 2008: 29). Most of these foreigners were refugees (Edwards, 2016).¹ This was a difficult time for them, but it was also a time for intense reflection by ordinary South Africans, and it forced the government to take action to protect everyone present in the country. The wave of xenophobic attacks sparked academic engagement in which researchers set out to answer questions such as: who are the refugees in South Africa (Hassim et al., 2008); why are they coming under attack from ordinary South Africans (Crush et al., 2013); and why should they have the same rights and entitlements as South African citizens (Crush et al., 2013)? They also interrogated xenophobic assumptions held by many South Africans that refugees were stealing their jobs (Smit and Rugunanan, 2014).

This article tracks refugee law and experiences in post-apartheid South Africa and questions whether democracy can be trusted to protect everyone in the country, including refugees and asylum seekers. It also acknowledges that other vulnerable groups, such as women, people of colour and the working class, have also struggled to enjoy the equality promised by democracy and the human rights approach generally. The researchers understand that various groups have been excluded from the promise of democracy, and they note that ‘what flows from the dominance of the liberal quasi-disembodied subject in human rights law is a set of deeply troubling exclusions’ (Peroni and Timmer, 2013: 1061). Drawing on feminist legal theory, it is argued ‘that the many groups that do not fit the liberal archetype – such as women, the dispossessed, people of colour, and asylum seekers, fall outside the scope of the purportedly universal protection of human rights’ (Grear, 2010: 132). The first part of the article traces the evolution of refugee law in South Africa, by charting its progress from a narrow race-based origin to a new framework that places human rights at the centre. It also provides a general overview of the legislative framework within which refugees in South Africa are afforded protection and care, including South Africa’s robust constitutional framework and its adoption of an urban policy that sees refugees integrated into society, as opposed to living in refugee camps. The second part provides an overview of some of the key issues and violations that refugees have faced in the past 25 years, so as to demonstrate the shortcomings of mechanisms in place for refugees and asylum seekers. Lastly, the third part highlights instances where the law has worked, and it shows how functioning institutions combined with progressive refugee laws can offer refugees a meaningful existence in South Africa. However, these victories need to become the norm and not mere anomalies. We acknowledge that the road to a dignified and secure existence is very hard to attain, but it could be easier if those tasked with implementing these laws do so in a humane manner, where dignity is at the fore. This paper therefore actively argues for a rights-based approach to dealing with refugees at all levels, and it argues that refugees need to be acknowledged as sharing common humanity, regardless of their immigration status.

The evolution of refugee law in South Africa

Historical background

South African refugee law and policy have evolved from a preoccupation with race as their organising framework, under colonialism and the apartheid regime, to one that places human rights at the centre, under the new Constitution. The first refugees to arrive in Southern Africa, in 1687, were the Protestant French Huguenots (Coertzen, 2011: 45; Denis, 2003), who fled from religious persecution in France. They came to Southern Africa from Holland as part of a colonial programme when South Africa was under Dutch colonial rule. After the formation of South Africa as a nation state in the 20th century, the country provided sanctuary to many refugees from other regions and countries, such as Eastern Europe, Rhodesia and Mozambique. These refugees were of European descent, and race was the basis of their acceptance into South Africa (Peberdy, 2009). Peberdy and Crush (1998) point out that as soon as it was established that the refugees were readily assimilable with the European inhabitants of the Union (South Africa), meaning that they were white, their presence was embraced. There were no prolonged periods of living as refugees in South Africa for such refugees. In most cases, the grant of a durable stay was immediate, and their status was equivalent to that of a citizen.

Even though the 1951 United Nations Convention Relating to the Status of Refugees (the 1951 Refugee Convention) and the Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (the OAU Refugee Convention) were already in operation, they had no impact on South Africa’s refugee law during apartheid. Refugee admission remained race-based, and the broad discretion accorded by law meant that the entry and settlement of desirables, such as Europeans or Africans of European descent, such as Rhodesians and Mozambicans, were granted full citizenship immediately (Peberdy and Crush, 1998).

South Africa, which was systematically denying its own black citizens basic human rights, ‘refused to acknowledge the presence of black refugees from these same countries who were forcefully returned to places where they are likely to suffer harm, repatriated or ignored and forced to live as undesirables on the margins of society [sic]’ (Murray, 1986: 145). It was only in 1991 that the apartheid government enacted the Aliens Control Act (Act 96 of 1991), which empowered the Minister to issue temporary permits to ‘prohibited persons’.² The Act was strongly criticised for not being sufficiently favourable towards black refugees (Peberdy, 2009), and it was only during the last days of apartheid that a memorandum of understanding was signed with the United Nations High Commissioner for Refugees (UNHCR), to facilitate repatriation³ of Mozambican refugees to Mozambique.

By 1994, South Africa had decided to move away from a policy of exclusion to one of inclusion, on the basis of its new constitutional values (Handmaker and Ndessomin, 2008). South Africa ratified a number of international and regional refugee law instruments and enacted refugee-specific legislation. These constitutional developments, where refugees were accepted on the basis of these legal instruments, significantly altered the basis of South African refugee law and policy.

A brief overview of the Refugees Act

South Africa enacted the Refugees Act in 1998 (South Africa, 1998). While the implementation of the Refugees Act leaves much to be desired (Kavuro, 2015; Palmary, 2002), substantively it is compatible with international refugee and human rights law. It sets out structures and mechanisms for administering refugee status determination. These include refugee reception offices, staffed by reception officers and status determination officers, with two oversight bodies – the Refugee Appeal Board (RAB) and the Standing Committee for Refugee Affairs (SCRA) – to review and hear appeals against decisions taken by the status determination officers.

The Refugees Act also offers a generous range of rights and entitlements to refugees. It defines a refugee in terms similar to the UN Refugee Convention and the OAU Refugee Convention (Refugees Act, section 3). It expressly states that all rights in the Bill of Rights of the South African Constitution apply to refugees (section 27).

Like the UN Refugee Convention and the OAU Refugee Convention, the Act has provisions on cessation of refugee status (section 5), and it recognises the principle of not forcing refugees to return to countries in which they are persecuted (section 2). Refugee law and policy after apartheid have seen movement from an ad hoc approach during apartheid – which led to abuse by executive and administrative officials and excluded black refugees and citizens – to a more inclusive human rights framework. The previous policy used the doctrine of sovereignty to regard citizenship as a privilege of the state, so that the state could choose without censure to whom it granted refugee status and citizenship. The present law requires this right to be counterbalanced by the country’s commitment to human rights. However, the question remains whether this change in approach offers refugees and asylum seekers adequate access to their rights.

South Africa’s adoption of an urban refugee policy

South Africa’s current laws have afforded a broader range of rights to refugees. In theory, refugees can access education, healthcare, employment and other constitutional rights. The UNHCR introduced the concept of an urban policy for refugees (UNHCR, 2009), when it realised that the rights on paper were insufficient to ensure meaningful integration of refugees in urban areas (Landau, 2006). The urban policy, envisaged by the UNHCR, allows for the enjoyment of a range of rights. It is viewed as a counterweight to the confinement of refugees in camps, which breaches human rights laws and treaties on multiple fronts, where these camps have been likened to concentration camps (Agamben, 1998). At a legislative level, South Africa can be seen to be pioneering a human rights approach to refugee protection in Africa. Many African countries have signed reservations to the freedom of movement afforded by the UN Refugee Convention, and the OAU Refugee Convention is silent on human rights. The urban policy considers urban areas and cities to be legitimate places for refugees to enjoy their rights. It aims to ‘expand the protection space’ for refugees, by offering freedom of movement and protection (paras 14–22). Its goal is to facilitate the enjoyment of rights by refugees and their integration in their local communities (Obi and Crisp, 2000).

Despite the inclusion of human rights in the UN Refugee Convention and the adoption of the convention by the Global North, it is evident that the world is struggling to provide sufficient protection for refugees, hence the adoption of the ‘Global Compact on Refugees’ (UNHCR, 2018), which aims to ensure responsibility sharing.

Having ratified international refugee law and human rights instruments (without reservations) and having adopted and implemented appropriate domestic refugee legislation, South Africa’s constitutional rights apply to all those physically present in the country, including refugees (Obi and Crisp, 2000). South Africa has already distinguished itself as one of the few African countries to allow refugees to settle in urban areas (Landau, 2006: 308).

South African refugee legislation makes provision for all the necessary elements for the successful local integration of refugees. Refugees are entitled to identity documentation that allows them to legally settle in South Africa and the government is empowered to determine who is and who is not a refugee in the country. The legislation also guarantees various socio-economic rights which ought to allow refugees to integrate into South African society (Jacobsen, 2006). The policy adopted by South Africa is therefore in line with its constitutional commitment to human rights and dignity on paper, but reality on the ground can be a very different experience for refugees.

South Africa’s constitutional framework

At its core, the Constitution seeks to remedy South Africa’s previous disregard of human rights, by bringing laws into harmony with international human rights standards. Section 39(1) of the Constitution thus obligates the courts, when interpreting the Bill of Rights, to ‘promote the values that underlie an open and democratic society based on human dignity, equality and freedom’, and to consider international law (South Africa, 1996). Furthermore, section 233 of the Constitution requires courts, when interpreting legislation, to ‘prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law’ (South Africa, 1996).

The South African Bill of Rights has been lauded for recognising a wide range of rights, encompassing both civil and political rights and economic, social and cultural rights. Among the socio-economic rights, the Bill of Rights enshrines the right to have access to adequate housing, and the right to have access to healthcare, food, water and social security, including appropriate social assistance (South Africa, 1996: section 27). With regard to these socio-economic rights, the government has a duty to take reasonable legislative measures, within its available resources, to achieve the progressive realisation of each right.

In addition to the rights of adults, the Constitution recognises specific rights for children and includes ‘every child’ in this description (South Africa, 1996: section 28). It is noteworthy that the Bill of Rights uses the term ‘everyone’ when defining general constitutional rights, and the term ‘every child’ when defining the special or specific rights of children. Both these terms can be interpreted to refer to refugees, adults and children, respectively. The rights that do not extend to refugees or non-citizens are specifically identified by the Bill of Rights. For example, section 20 provides that ‘(n)o citizen may be deprived of citizenship’, and section 22 provides that every citizen has the right to choose their trade, occupation or profession freely (South Africa, 1996). Apart from these few exceptions, the rest of the rights in the Bill of Rights apply to non-citizens, including refugees and asylum seekers. The extensive protection given to human rights means that the South African Constitution has a framework for a rights-based approach to refugee protection.

With the advent of the democratic era in South Africa and the fact that the foundation of South African refugee law has respect for the universality of human rights, there has been a realistic expectation that refugees will live with dignity in South Africa. As demonstrated above, the acceptance of an urban policy, as opposed to the warehousing of refugees in refugee camps and detention centres, clearly developed out of respect for human rights.

In South Africa, the right to equality and the right to human dignity are recognised as independent rights and as fundamental constitutional values. For example, sections 1(a) and (b) of the Constitution provide that the Republic of South Africa is founded on ‘human dignity’, ‘the achievement of equality’, ‘non-racialism’ and ‘non-sexism’ (South Africa, 1996). Furthermore, section 7(1) recognises equality as a democratic value (South Africa, 1996). The right to equality is protected in section 9 as having several elements: the right to equality before the law, the right to equal protection and benefit of the law, the right to full and equal enjoyment of all rights and freedoms, and the right not to be discriminated against unfairly (South Africa, 1996). Section 10 provides that ‘(e)veryone has inherent dignity and the right to have their dignity respected and protected’ (South Africa, 1996).

In South Africa, human dignity is intimately connected with the idea of rights – whether with the grounding of rights, the content of certain rights, or the form and structure of rights. This article endorses the concept that dignity is not only a moral concept, but it is also a juridical concept. If South African constitutional law operates from the premise that dignity is ‘inherent in every human being’, the law ought to protect refugees when their right to dignity is violated.

‘A dream deferred’? Legislative promises versus life on the ground

In the aftermath of apartheid, the new South Africa guaranteed inclusion and hope for all. Regardless of race, religion, gender, sexual orientation or country of origin, human rights were promised to every person who dwelled within South Africa’s borders, including refugees.⁴ Legal provisions were made for refugees that offered them the right to work and residence, and an urban policy approach presented refugees with the chance to build a meaningful life. As such, the democratic ideals of human dignity, freedom and equality enshrined in the Constitution offered newfound optimism that a culture of human rights would prevail. However, 25 years later, refugee experiences often paint a bleaker picture. While some refugees have been able to thrive in this urban-based setting with a human rights framework and have forged rich lives amid the struggles that refugeehood inevitably brings, the experiences of others have been marred by failed administrative systems, public and private xenophobia, a lack of socio-economic opportunity and protection, and, at worst, a sheer lack of political will and impunity. It is important to note that many of these failings also impact poor and working-class South Africans, and thus structural inequality exists for many.

Although South Africa’s robust legislation does offer avenues through which to counter such abuse, and this should be celebrated, it is critical that our constitutional ideals are upheld and properly implemented by those in authority. If refugees are to truly experience the promise of a better life that democracy promotes, an ‘injection of humanity’⁵ is needed in the very bodies that are tasked with facilitating their stay. The following section tracks some of the key struggles and rights violations that refugees and asylum seekers have experienced in South Africa, and it demonstrates how a lack of implementation undermines our democracy.

A lack of adequate implementation of refugee policy

If the rights and dignity of refugees and asylum seekers are to be realised, government policies regarding their legal status need to be effectively implemented by institutions tasked with this directive (Onuoha, 2006). While the Department of Home Affairs (DHA) is mandated to provide refugees with enabling documents that are vital for their integration and legal stay in South Africa, they have been accused of making this process unnecessarily burdensome (Amit, 2012). Amit (2012) highlights their ineptitude and argues that asylum seekers face ‘persistent bias and incapacity’ when it comes to refugee status determination. She further reveals that the DHA is ‘failing to fulfil its mandate’, and that a department that disobeys the very laws it is compelled to implement ‘has serious implications for the rule of law’ (Amit, 2012).

In an illuminating letter to Parliament on World Refugee Day 2018, the human rights organisation Lawyers for Human Rights (2018) argued that the DHA was ‘disregarding the laws of South Africa and the values of the Constitution’ in their treatment of refugees and asylum seekers. The organisation tracked the department’s failings, including the backlog of refugee status applications, which has left many waiting for over 15 years to attain their refugee status. More than a year later, these problems persist, and little has been done to rectify them.

Many asylum seekers are left in limbo as they wait for permit extensions or are turned away by the department and are given later appointment dates. This lack of enabling documentation makes asylum seekers particularly vulnerable, even if they abide strictly by the law. A lack of documentation can lead to threats of ‘arrest and deportation’ (Lawyers for Human Rights, 2018) and can increase vulnerability to ‘widespread corruption and extortion of bribes by officials’ (Lawyers for Human Rights, 2018). Added to these shortcomings is the fact that three of the six refugee reception offices have closed down in recent years (Scalabrini Centre, 2018b). The refugee reception office is the first port of call for new arrivals, and it allows them to obtain an asylum seeker permit. Without this documentation, local integration becomes impossible and asylum seekers become susceptible to deportation, as they are in violation of immigration law (Hiropolous, 2017). The Cape Town office was closed in 2012, and, despite the Supreme Court of Appeal and the Constitutional Court ruling that it should be reopened (Shelly, 2018), the DHA ignored this judgment. The new office was supposed to open in March 2018, yet two years later this obligation has been ignored. In consequence, asylum seekers are often forced to live without enabling documents or are forced to travel great distances – at their own expense – to reach the remaining offices. Since asylum seeker permits are only valid for six months, this process becomes onerous and potentially oppressive when there is no end in sight. A lack of respect for the judiciary by government institutions thus undermines democracy.

Asylum applications are determined by a refugee status determination officer, and legally, this decision must be made within 180 days (Regulation 3 of the Refugees Act, 2000). They can either grant refugee status, deny it and allow the applicant to appeal this decision at the Refugee Appeal Board or they can reject it and send it for a further review at the Standing Committee for Refugee Affairs. Unfortunately, many status determination officers have been accused of incompetence, and many of the written decisions have reflected ‘critical errors of laws (and the) misapplication of essential concepts in refugee law’ (Moodley, 2012). In 2009 the Forced Migration Studies Programme conducted a national survey to explore the experiences of the asylum determination process. Ninety-six percent of respondents noted that their interviews lasted less than 20 minutes, which highlights the fact that these interviews often do not grant asylum seekers an adequate ‘opportunity to fully explain their asylum claim’ (Forced Migration Studies Programme, 2009). Without such opportunity, asylum seekers may be unduly denied refugee status and be forced to return to a situation where they might be persecuted.

Without documentation, refugees cannot gain lawful employment or access social grants. It also becomes increasingly difficult to navigate various socio-economic rights, including education, healthcare and employment. Many refugees face economic vulnerabilities, and the perpetual threat of arrest can make an already difficult situation all the more troubling. These socio-economic challenges are compounded by xenophobic rhetoric, which often permeates both community life and the political realm.

Public and private xenophobia threatening democracy

In striving for a transformative democracy, it is essential that xenophobic sentiments be tackled at both a personal and a political level. Xenophobia undermines the very tenets of democracy and threatens to erode meaningful integration of refugees. Many refugees, due to their socio-economic position, settle in townships or under-resourced areas (Women’s Refugee Commission, 2011), where there are already existing frustrations about a lack of service delivery and state support amongst South African citizens. This may heighten already existing tensions and may render refugees an easy target for misplaced blame.

While the 2008 xenophobic attacks received global outcry (Bearak and Dugger, 2008), this anti-foreigner sentiment continues. Numerous xenophobic flare-ups were seen in 2019. Foreigners in Durban were attacked in April 2019, and on 7 August of the same year xenophobic violence flared up once again, when foreign-owned shops were destroyed in Johannesburg. Alarmingly, this attack was carried out in front of police officials (Bornman, 2019), who did little to protect those facing harm. This lack of police response provoked an unsettling question by Jean Pierre Misago of the African Centre for Migration & Society: ‘Is the state complicit in xenophobic violence in South Africa?’ (Misago, 2019). And if it is, what does this mean for the future of our democracy?

Political xenophobia has often been utilised during political campaigns. Foreigners are a handy scapegoat for failed service delivery and the lack of employment in the country, which is currently sitting at 29% (Trading Economics, 2019). Insinuations that foreigners are undesirable ‘criminals’ (Neocosmos, 2008) have been propagated by prominent politicians, and foreigners are an easy target to blame when promises are not kept, and when increasing socio-economic insecurity and frustration threaten political support.

Beyond community life and political rhetoric, xenophobia also pervades public institutions. South Africa’s Department of Health has been accused of medical xenophobia, and reports have surfaced of public hospitals denying foreigners medical assistance (Lepodise, 2018). The Refugees Act explicitly acknowledges that refugees have the right to basic education and healthcare, yet many hospitals refuse to treat foreign nationals. In 2017 a pregnant woman from the Democratic Republic of the Congo was forced to give birth at Johannesburg’s Park Station (Waters, 2017), after she was denied medical care from three different hospitals. At the Mamelodi Day Hospital in Pretoria, a Zimbabwean woman was allegedly mistreated by nurses and forced to give birth standing up (Maromo, 2019). Her child subsequently died, and a criminal case was opened. Crush and Tawodzera (2014) confirm the prevalence of medical xenophobia, noting that it ‘categorises patients by language, appearance, and national origin and treats them accordingly’.

There have also been instances of xenophobia at schools, despite refugees having the right to basic education. In 2017 the Human Rights Commission learnt that foreign students at a primary school in Johannesburg were given letters that were supposedly sent by the DHA. The letters read ‘All learner’s [sic] documents need to be up to date. If any foreign learner arrives here . . . we will phone the police to come and collect your child and you can collect your child at the police station’ (Gaum, 2017). Education offers a ‘pathway out of hardship, breaking the cycle of socioeconomic exclusion’ (Gaum, 2017). Denying refugee children this right undermines the law and erodes democratic rights.

Xenophobia thus operates at varying levels of public and private life. Raymond Suttner (2019) notes that it ‘repudiates foundational values of South Africa’ and goes against ‘the main values that drove the struggle for liberation in South Africa’. When xenophobia is combined with other forms of discrimination, refugees and asylum seekers can face even greater abuse and exclusion. This further undermines the success of our democracy.

The intersection of refugeehood and other vulnerabilities

Refugeehood can make already existing vulnerabilities more pronounced. South Africa’s legislative framework offers a promising stance when it comes to sexual and gender rights (see section 9 of the Constitution). South Africa was the first country in the world to legislate against discrimination on the grounds of sexual orientation or gender identity, and this put it on the map as a democratic society that takes human rights seriously. In a climate of increasing global homophobia (Bosia, 2014), and amid the rhetoric of homosexuality being ‘un-African’, South Africa has often been seen as a safe haven for many lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) refugees, who want to escape criminalisation in their country of origin. Nonetheless, this promising legislation does not often reflect life on the ground for LGBTIQ South Africans and refugees alike.

A study by People Against Suffering, Oppression and Poverty (PASSOP, 2012), aptly entitled A dream deferred, highlighted the abuses suffered by 25 LGBTIQ asylum seekers living in South Africa. The report documents the discrimination they experienced and how they often faced difficulties when accessing housing and employment. It further reveals that many were unable to integrate into the country safely. Ninety percent of the respondents were unemployed, and many others reported experiences of xenophobia and homophobia, despite the fact that prior to their seeking asylum in South Africa they believed that the country would offer them safety. Only 2 of the 25 respondents had received refugee status. One respondent who sought refuge from Ethiopia revealed that

I realised that human rights in South Africa are only written in legal texts and the constitution but are not practiced in real life. That’s why I was so disappointed, upset and shocked by what I experienced . . . I can’t apply asylum in (a) country which is unable to protect me [sic]. (PASSOP, 2012: 17–18).

The lack of effective refuge for gender minorities has been interrogated in Transgender Refugees and the Imagined South Africa (Camminga, 2019). In this book, Camminga argues that common-sense readings of the gender/sex binary by officials at reception offices can ‘reignit(e) the process of exclusion (experienced) in countries of origin’ (Camminga, 2019: 203). Without a home or a sense of community, rights alone might not ‘secure liveability or a liveable life’ (Camminga, 2019: 202) for gender refugees.

Thus, identities that make people visibly ‘other’ can exacerbate xenophobic sentiments. Intersections of race, class, gender and sexual identity can shape the experiences of foreigners living in South Africa in diverse ways. Added to this are issues around documentation and possible detention. Camminga (2019) reveals that a transgender woman carrying documents which identify her as male is at greater risk of facing fraud accusations and being arrested. A lack of appropriate documentation for LGBTIQ refugees makes them particularly vulnerable to discrimination, and it erodes their rights to freedom, equality and dignity. Unfortunately, state institutions and public officials are often complicit in this assault against constitutional democracy.

Without adequate implementation of laws, the potential of state institutions and public officials to uphold democracy becomes null and void, and the rights of refugees will continue to be violated at both a personal and a political level. While democracy equips civil society and human rights organisations with important tools to hold those in power to account, it needs to be reflected in the very institutions that are tasked with supporting refugees. Refugees are required to apply for asylum without delay as soon as they enter the country. If they are caught without documentation, they are subjected to xenophobic interpretations of the law, which often result in detention or deportation orders. Because there are only three functioning offices that provide new documents, asylum seekers are placed in a precarious position from the moment they arrive, and the state does little to ensure safe and timely integration. This is exacerbated by a lack of political will and xenophobia, which trickles down to the DHA and impacts community life, healthcare and education. It also results in other forms of discrimination and prejudice, which make refugees and asylum seekers particularly vulnerable to abuse.

As stated, the law and democracy can work for refugees, and the third part of this article highlights some positive examples of this. However, as it stands, more needs to be done, to ensure that they work effectively at all levels, so that the dream of democracy can become a reality for all.

The law works, but democracy remains elusive

Despite the numerous challenges that refugees and asylum seekers face, it is important to acknowledge the positive framework that exists to protect and support those sojourned here. Post-apartheid democratic South Africa has developed a progressive legal system that aims to ensure that refugees and asylum seekers can build a meaningful life whilst living in asylum. However, the question remains whether this works for them on the ground.

The vital role of our courts

The South African courts have confirmed on several occasions that constitutional rights apply to refugees. Perhaps most laudably, in Minister of Home Affairs and Others v. Watchenuka and Others (2003), the Supreme Court stressed the universal right to dignity as a fundamental element of our Constitution and international law. In this case the court confirmed asylum seekers’ right to work, which was previously limited in law. In arguing the need for financial independence, the court boldly stated that ‘human dignity has no nationality’ and that limiting the right to work does not just limit self-fulfilment, but it constitutes a ‘restriction upon his or her ability to live without positive humiliation and degradation’.⁶ It demonstrated that the right to dignity, which is repeated in international treaties and the South African Constitution, could be relied upon to challenge notions of sovereignty to protect non-nationals, in this case asylum seekers, from ‘humiliation and degradation’.

More recently, the Western Cape High Court confirmed that dependants of refugees and asylum seekers could legalise their status in a process called ‘family joining’ (Sonke Gender Justice, 2019). The judgment allows dependants, who would otherwise have remained undocumented, to access education, obtain legal employment and perform daily activities without fear of arrest and deportation. While the judgment is laudable and is a positive step towards achieving a democracy that is transformative, diverse and fair, it is regrettable that such a case had to be taken to court, when legislation already provides for such entitlements. This is a common occurrence within refugee law, as the DHA, the SCRA and the RAB often apply the law incorrectly and display widespread institutional xenophobia.

There have been many decisions by the High Court and the Supreme Court of Appeal in which the courts have reprimanded the SCRA for failing to apply the law correctly (see Akanakimana v. Chairperson of the Standing Committee for Refugee Affairs and Others, 2015; Katshingu v. Chairperson of the Standing Committee of Refugee Affairs, 2011; N v. Chairperson of the Standing Committee for Refugee Affairs and Others, 2017). A prime example of this was the case Bolanga v. Refugee Status Determination Officer and Others (2015), in which a refugee had applied for asylum in 2005, but only received a negative response from the status determination officer two years later. According to law, this process should take a maximum of 180 days. The applicant then appealed the decision, which took a further few years. It was only in 2012, some seven years after his arrival, that the applicant received relief from the court. Considering that those holding asylum seeker permits have limited rights and freedoms when compared to those with official refugee status, such a history of events is concerning, but it is not uncommon (Amit, 2012).

Such instances are not exclusive to the SCRA. The RAB and the DHA have faced similar scrutiny of their practices and findings, which often go against the spirit of the Refugees Act. In Tafira and Others v. Ngozwane and Others, the DHA had attempted to create a pre-screening system in which refugees were prevented from applying to be asylum seekers (Tafira and Others v. Ngozwane and Others, 2006; Vigneswaran, 2008: 50). The process was dismissed by the court as unlawful. Similarly, in the Western Cape the court found that limiting the number of applications for asylum seeker permits that can be received per day was unlawful (Kiliko and Others v. Minister of Home Affairs and Others, 2006). In all the above cases the courts mentioned the vulnerabilities of refugees and noted that they have limited understanding of the South African legal system (Tafira and Others v. Ngozwane and Others, 2006, para. 18; Kiliko and Others v. Minister of Home Affairs and Others, 2006, para. 12).

The law can work for refugees, provided that individuals have the agency and the means to seek legal support. However, if department officials lack the political will to assist refugees and to apply the law in good faith, the law, and consequently democracy, will always be found lacking. Transformative laws are rendered nugatory when they are not applied consistently and fairly. As it stands, the principles of freedom, equality and dignity, which are fundamental to our constitutional democracy, remain elusive to refugees and asylum seekers in South Africa. They also often remain elusive to other vulnerable members of the community, including the working class and the poor.

The advantages of South Africa’s democracy remain elusive for refugees

Refugees and asylum seekers face particular difficulties in accessing the freedoms and rights offered by our democracy. Since refugeehood is not a homogeneous identity, varying intersections that shape people’s lives can exacerbate these vulnerabilities and place many on the periphery of democracy. As stated, refugees do not always know the law, and even when they are aware of the legal requirements that they need to meet, they are met with institutional setbacks. How can the asylum system punish refugees for lacking documentation when the institution that is tasked with furnishing such documents is not in operation or fails to assist? Refugees and asylum seekers do not have adequate support in our democratic matrix, and, unfortunately, current law and policy lack the will to transform this.

Although South African refugee legislation provides for local integration, there is no comprehensive policy to facilitate the legal, social and economic integration of refugees. Far too much is expected of refugees in this unfamiliar urban environment. Refugees thus bear the responsibility to seek the enabling documentation, housing, healthcare, employment and education, and to access the courts. Furthermore, not only do refugees have to navigate the institutions themselves, they are also responsible for holding the state to account when the institutions inevitably fail. If they fail to achieve this, they face deportation or detention (see, for example, Ersumo v. Minister of Home Affairs and Others, 2012).

In addition, government officials who are tasked with assisting refugees need more information about the presence of refugees and how to engage them in all sectors of South African society. This is lacking in South Africa. Furthermore, there is very little social cohesion between South African society and refugees – the South African government and the UNHCR have a responsibility to assist with the integration of refugees. Leaving it entirely to refugees or to South African society has failed, and this is demonstrated by the numerous xenophobic attacks.

As has been shown above, the courts play a vital role in our democracy, as they continue to uphold the values of the Refugees Act and our Constitution. They also provide for the important victories that facilitate meaningful livelihoods for refugees, but for these victories to be realised the court orders issued must be upheld. This has not been the case on several important occasions. For example, in 2015 the Western Cape High Court found that the DHA’s policy of only renewing asylum permits at select offices was unconstitutional (Nbaya & Others v. Director-General of Home Affairs & Others, 2015). Despite this, ‘(the) orders have not been adhered to and asylum seekers remain undocumented and vulnerable to arrest, detention and deportation’ (Scalabrini Centre, 2018a). Separate to this, several refugee reception offices remain closed, despite court orders instructing them to reopen. The persistent disregard for court orders by the DHA further illustrates that democracy has failed refugees. As per the Refugees Act, only the DHA may issue asylum seeker permits, and while the courts can order that they fulfil their mandate, such orders are often ignored. Thus, many refugees remain vulnerable, as they are unable to access their constitutionally protected rights.

Can the mechanisms of democracy be trusted?

If the causes of the prejudices and difficulties that refugees and asylum seekers face are rooted in a lack of political will, it is important to assess the current political climate. It does not seem as though it is headed in a positive direction, since various political parties have used xenophobia as a political weapon, and foreigners as scapegoats. For example, in November 2018 the then Minister of Health Aaron Motsoaledi delivered a presentation at a nursing summit hosted by the labour union Nehawu. In unpacking the causes of poor hospital conditions and the general overcrowding, he stated that immigrants ‘get admitted in large numbers, they cause overcrowding, (and) infection control starts failing’ (Business Live, 2019). However, he provided no evidence to support his claims. Of the 1.6 million foreigners in South Africa, only 120,000 are documented refugees (Statistics South Africa, 2016). No matter how often refugees and asylum seekers use public hospitals, it is clear that with the proportion of refugees and asylum seekers being so low, it is incorrect and unfair to state that they are the cause of an overburdened system. Such rhetoric not only deflects attention from the poor service delivery that has been achieved in the last 25 years, it also places refugees and asylum seekers in physical danger.

Beyond the DHA there seems to be impunity for xenophobic crimes, evidenced by the lack of prosecution and due investigation following waves of xenophobic violence. Despite the 68 deaths that resulted from the 2008 anti-foreigner violence, no convictions were made (Konanani and Odeku, 2013: 805). The lack of institutional support for refugees is evidence of the state’s complicity in denying refugees and asylum seekers the constitutional rights they were promised.

If democracy is to be taken seriously by government officials and civil society, a commitment must be made by leaders and those with institutional power. Xenophobic rhetoric sets the tone of how the law is implemented within the DHA, and it does not help in protecting some of the most vulnerable in our society.

In addition, South Africa’s democracy is also regrettably marred by a refugees-versus-citizens scenario. This is an unfortunate situation, but it also finds itself playing out globally. From the above it is evident that many South Africans are questioning the progressive approach adopted by their government with regard to the presence and rights of refugees. South Africa’s young democracy therefore needs to find a way to continue the human rights approach demanded by the Constitution, and at the same time demonstrate to its citizens that refugees are not in competition with them, and that assistance to refugees does not necessarily mean a loss of rights or privileges for its citizens. A functioning democracy requires all three spheres of government (national, provincial and local) to play their part, and the executive need to be more robust in their implementation of the law. The executive sphere includes official bodies such as the DHA, the RAB and the SCRA, all of which are responsible for processing refugee and asylum seeker claims (Vigneswaran, 2008).

That is not to say that our law has failed completely. Constitutional democracy can work. The last 25 years have brought victories to refugees and asylum seekers that would not have been able to be won without the rights and freedoms offered in our law and the Constitution. There has been significant change in the demographics of our society, something that would have been unimaginable 40 years ago. That much deserves celebration, and it points towards a society that is becoming more inclusive.

However, transformation has been slow for refugees and has largely been led by partnerships between the UNHCR and other grassroots organisations, as opposed to state-driven initiatives (UNHCR, 2015). The victories have not been far-reaching, with issues being addressed only once the courts get involved. This is insufficient, as the issues are only addressed on a case-by-case basis, and this leaves many refugees unable to access the law effectively.

Conclusion

For democracy to be considered a success, it needs to work for all, not just those who were born within our borders or have certain socio-economic advantages. This article argues that democracy can be trusted only if public and private institutions fully commit to its ideals. However, while South Africa’s democracy has fallen short, its values remain powerful and have the potential to support the most vulnerable in our society. South Africa has accepted thousands of refugees who have fled war, and they are entitled to work, seek healthcare, integrate into communities and create a meaningful existence. However, the next 25 years of our democracy need to focus on moving those entitlements from the pages of our law to lived realities. The state needs to be proactive in upholding the rights of the most vulnerable, rather than being complicit in the erosion of these rights. For South African democracy to be successful it cannot only work for a few, but rather needs to support the freedom, equality and dignity of all. If democracy is to be trusted, and if it is to work for everyone, we need a renewed ‘injection of humanity’. And, above all, we need to remember that refugees and asylum seekers are human beings, before they are foreigners. Democracy can be said to have failed refugees in South Africa, in that the state has focused on excluding them from the system rather than including them. In sum, the political culture needs to change from a culture of nationalistic exclusivity to a culture of democratic inclusivity.

Footnotes

Funding

The authors received no financial support for the research, authorship, and/or publication of this article.

Notes

Author biographies

Fatima Khan is an Associate Professor of Law at the University of Cape Town and Director of the Refugee Rights Unit.

Siphokazi Mbatani is a UCT Law (LLB) graduate and has a Masters degree in Law (LLM). Siphokazi is a researcher at the Refugee Rights Research Unit, Law faculty, University of Cape Town.

Charlotte Marais is a UCT graduate with an undergraduate degree in the social sciences (BSocSc) and a Masters in Social Science. Charlotte is a researcher at the Refugee Rights Research Unit, Law faculty, University of Cape Town.

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