Migration, Refugees, and Racism in South Africa
Jeff Handmaker and Jennifer Parsley
Abstract se penche sur la manière dont les actes des forces The paper looks at South Africa’s complex history and poli- policières et des fonctionnaires de l’état peut refléter les cies of racism, social separation and control and the impact sentiments du grand public, préjudiciant ainsi davan- that this has had on the nature of migration and refugee pol- tage les réfugiés et les immigrants. icy. The paper argues that this legacy has resulted in policy Les résultats de la CMCR (« Conférence mondiale and implementation that is highly racialized, coupled with a contre le racisme, la discrimination raciale, la xéno- society expressing growing levels of xenophobia. phobie et l’intolérance qui y est associée ») sont ex- Some causes and manifestations of xenophobia in South aminés et les gains obtenus en faveur des réfugiés et Africa are explored. It further examines how actions of police des demandeurs d’asile sont salués. Les implications and civil servants can mirror the sentiments of the general pour l’exécution (du programme d’actions) sont dis- public, further disadvantaging refugees and migrants. cutées à la lumière des attaques contre les États Unis. The outcomes of the WCAR are discussed with acknow- Pour conclure, l’article propose un certain nombre ledgment of the positive gains made for refugees and asylum de recommandations, dont la nécessité de mettre en seekers. The implications for implementation are debated in place des stratégies pour garder l’opinion publique light of the attacks on the USA. bien informée, la valeur des Déclarations de la CMCR In conclusion, a number of recommendations are made in- en tant qu’outils pour le lobbying, un processus cluding the need for ongoing public awareness strategies, the démocratique et pragmatique pour développer des value of the WCAR Declarations as lobbying tools, a prag- lignes directrices politiques et la nécessité de mettre en matic and democratic policy process and the need to high- valeur les enjeux touchant le développement à l’in- light development concerns in approaches to address these térieur des solutions proposées pour résoudre ces issues. problèmes.
Résumé 1. Introduction Cet article examine l’histoire complexe de l’Afrique du Sud The images we have seen are abominable, horrible. et ses politiques racistes et ségrégationnistes et l’impacte que It’s an assault against human rights.1 cela a eu sur la politique sur l’immigration et les réfugiés. L’article soutient que ce lourd patrimoine a donné naissance his was the reaction by the Mozambique Minister à une politique et une pratique fortement imprégnées par of Labour to a police training video that reached des considérations de race ainsi qu’une société qui fait mon- Tnational and international television, showing tre de niveaux croissants de xénophobie. Mozambican migrants being attacked by police officers Sont ensuite explorées certaines causes et certaines mani- and dogs in a “training exercise.” The incident deeply festations de la xénophobie en Afrique du Sud. Puis, l’article shocked the conscience of even the most cynical of ob-
Migration, Refugees, and Racism in South Africa
servers, not only in the sheer level of the violence portrayed, but sand, to heavily exaggerated figures ranging into the also in the way it rekindled memories of the apartheid-style “millions,” supported by “pseudo-scientific” data.5 police brutality. Whatever the numbers, it is clear that the nature of most While media coverage and public debates on violence and regional migration is “circular,” with migrants express- racism in South Africa are nothing new, debates on migration, ing little wish to remain permanently.6 Furthermore, refugees, and xenophobia have only relatively recently hit the while employer demand plays a significant role in stimu- public spotlight, and links between racism and xenophobia are lating irregular/undocumented cross-border migration, rarely made. As this article will seek to amplify, the nature of “enforcement targets employees, not employers.”7 migration and refugee policy and the manner in which it is implemented in South Africa is highly racialized, stemming 3. Racialized Nature of Migration Policy in from the country’s complex history and policies of social South Africa separation and control. Equally, the growing xenophobia in Prior to 1994, South Africa was infamous throughout the the country is profoundly characterized by racism and a high world for its racialized policies and seemingly limitless degree of violence. measures of social control. Migration control in South Africa was in line with apartheid-era policy and has al- 2. Nature of Migration to South Africa2 ways been restrictive and security orientated, with similar Since 1994, the context of migration to South Africa has dra- origins as the notorious pass laws, as a cornerstone of the matically altered. The democratic government has rapidly em- previous government’s policy of influx control, which braced entry into the global arena, pursuing neo-liberal were enforced against black people in South Africa as a economic policies aimed at encouraging the free movement of means of controlling domestic migrant labour. The pass international trade and capital. An area of contradiction, how- laws were particularly harsh, as is reflected in police arrest ever, is related to the free movement of people, particularly statistics; prior to the abolition of influx control, pass law African unskilled economic migrants (often in the form of offences featured disproportionately high.8 informal sector traders) and refugees. In a sense, influx control was effectively “transferred” Contemporary migration to South Africa is characterized to the borders in the form of the Aliens Control Act, a by a number of factors, ranging from individuals taking up compilation of various pieces of immigration legislation, contract labour to work in the country’s huge mining and the latest version coming into force in 1991. South Af- agricultural industries to persons seeking protection from rica’s policy on entry and residence, including tempo- persecution, human rights violations, and war. rary migration, immigration (permanent residence) Many migrants come from neighbouring Mozambique. In and, until recently, refugee status determination, had the past these included refugees fleeing the war in Mozam- fallen under the Aliens Control Act. The Act was concep- bique,3 braving a collection of horrors, including dangerous tualized to primarily exclude the entry of Indians (dur- wild animals in Kruger National Park (which borders both ing the early part of the twentieth century), Jews (during countries) and a fence generating a lethal electric voltage, in the Second World War) and communists (especially their desperation to avoid border control officials in order to during the Cold War). reach relative safety in neighbouring South Africa. The broad discretion accorded by the Act facilitated Nowadays, the reasons for migrating from Mozambique are generous entry to anti-communists from Eastern related largely to economic factors rather than persecution or Europe and immigrants from Western Europe, many of war, although since the maintaining of the Rome Peace Accord whom were sympathetic to the nationalist cause. While between Renamo and Frelimo in 1992, Mozambique has been this discretion also prevented entry to foreign activists beset with a crippling economy and environmental disasters and journalists, it primarily operated to exclude black generating a “new generation” of forced migrants, not least the migrants, whose entry was strictly limited to bilateral, devastating floods that displaced hundreds of thousands in contract-labour treaties between South Africa and 2000. neighbouring states to provide cheap labour, mainly for Migration to South Africa from other countries is believed the mining and agricultural industries. Once in South by many to have increased. Media reports on migration Africa, officially or not, black migrants (predominantly abound with headlines such as, “An Invasion to be Halted,” “6 from Mozambique) fell under the influx control legisla- Million Headed Our Way,” and “Africa Floods into Cape tion. Town.”4 However, the actual numbers of migrants entering The Act (even in its latest versions) was rooted in the South Africa in recent years continue to be heavily contested, previous government’s overarching policy of apartheid, ranging from conservative estimates of several hundred thou- and was thus a policy “rooted in racism” as Peberdy and
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Crush have observed.9 Even Billy Masethla, the Director Gen- appropriate and pragmatic manner, not least through an eral for the Department of Home Affairs, concurs and has analysis of South Africa’s objective labour needs and an described the Aliens Control Act as “draconian” and an acknowledgement of the positive contributions informal “apartheid dinosaur.”10 sector trade can and does make to South Africa and Despite tremendous pressure from the international com- Southern African economies. munity, the previous government showed itself to be stub- bornly resistant to change, reinforcing its control through a 4. Efforts to Reform13 civil service and police force that were: The first migration policy reform came in 1995, with a statutory amendment14 to the Aliens Control Act No. 96 …always in the front line in the enforcement of apartheid … (and) of 1991. It was Parliament’s intention to bring the Act ensured that black South Africans were kept in their places in more in line with the country’s new constitution. Before segregated and inferior institutions.11 being amended in 1995, s. 55 of the Act even provided that no decision of the Department was reviewable by a The department designated to enforce migration policy court or tribunal, and persons could be held in detention today is the very same that, in the past, was responsible for indefinitely, without judicial review.15 The 1995 Amend- enforcing influx control. The “sunset clause,” which was part ment removed this provision and provided that deten- of South Africa’s negotiated settlement leading to democracy, tion for periods beyond thirty days ought to be subject to ensured job security for most in the civil service. This has review, although in practice it appeared that this was resulted in a government where those at the top may have being inconsistently applied.16 In short, despite the re- changed, but many of the apartheid era officials (and their forms, there were still concerns that the Aliens Control unforgiving attitudes) are still there. Act fell far short of constitutional expectations.17 Clearly, The Lindela Deportation Centre provides stark evidence of more comprehensive reforms were necessary. the continued racialized nature of migration policy and im- Attempts to overhaul the country’s migration policies plementation in South Africa. This facility faced considerable were at one stage pragmatic in their approach and char- scrutiny by the South Africa Human Rights Commission after acterized by active civil society involvement, as demon- an enquiry into a range of human rights abuses;12 one will not strated by the draft Green Paper on International find in it any of the thousands of European tourists who have Migration and Refugees Act. Both documents, appear- overstayed their visas. The facility can hold up to 1,500 de- ing in 1997 and end of 1998 respectively, proposed tainees, and it has been shown that those being held as sus- practical measures to address the country’s objective pected undocumented migrants are people whose skins are labour requirements, and incorporated a principled darker, clothes more colourful, vaccination marks in different commitment to human rights. However, this approach places; Africans who are unable to speak a local African lan- was short-lived, as it become increasingly evident that guage; and people who have a host of other physical attributes the government was to sacrifice this approach in favour not deemed “South African” and therefore “illegal.” of a more security and control oriented approach. There is also current discussion on proposed reception/de- The White Paper on International Migration, the Im- tention centres for asylum seekers to be located far from urban migration Bill, and the Regulations to the Refugees Act, centres. Whether these centres would accommodate, for ex- presented in May 1999, February and April 2000 respec- ample, possible white asylum seekers from Zimbabwe without tively, explicitly condemned racism and xenophobia, yet condemnation is doubtful. they also made it clear where the government ultimately Policy is therefore not in line with contemporary realities of stood in dealing with migration – a position not dramati- modern migration. One reality is that skills are leaving the cally different from the past. The security and control country (in the form of mostly white emigrants), while skilled oriented approach was evident in the focus on deterring immigrants often face impossible hurdles. Another reality undocumented migrants and “bogus” asylum seekers.18 (mentioned earlier) is that the majority of migrants enter The policy proposals pursue a strategy overwhelmingly South Africa mainly for the purposes of short-term trading or aimed at punishing19 those responsible for trafficking employment, but with no intention to remain. A further real- and employing foreigners on a permit basis. Further, it ity is that a far smaller group of migrants (refugees) are enter- is the drafters’ intention that the enforcement of border ing the country seeking protection from political persecution controls rely on the community. In its earlier drafts, it or war and other disasters. Most forms of these activities are was proposed that a professional security service be es- aimed at survival and, contrary to the aspirations of the Act, tablished in order to identify and apprehend unwanted uncontrollable. However, they might be managed in a more foreigners, although we now understand that this idea
Migration, Refugees, and Racism in South Africa
was resisted by other government agencies. With already high There are not enough resources (especially staff, the levels of xenophobia, human rights organizations have raised majority of whom urgently need training) on hand to concern over the implications of encouraging the community process the steadily increasing numbers of asylum appli- to act as “whistle-blowers” against suspected undocumented cations.23 migrants. The South African Human Rights Commission and The Aliens Control Act is likely to be repealed this year, and migration experts, amongst others, have raised serious it is hoped that the last vestiges of the apartheid dinosaur will concerns about the consistent failure to achieve satisfac- finally be buried; however, there is considerable concern tory standards of administrative justice.24 This is evident whether the legislation that replaces it will appropriately ad- through unfair delays of applications, racist and dis- dress the country’s migration challenges and increasing levels criminatory practices, and inconsistent application of of xenophobia.20 the law. While the number of applications received appears to 5. Asylum Determination Regime: Policy and have stabilized in recent years (Figure 1; note that these Capacity Challenges are cumulative statistics) and cannot be regarded as pre- Reforming refugee policy has received comparatively more senting a situation of “mass influx,” as compared with attention. The Refugee Act was passed in 1998 and entered into other countries on the continent, the cumbersome sys- force in April 2000. The development of a workable structure, tem places a heavy burden on those struggling to re-es- however, for administering the country’s asylum determina- tablish their lives as refugees in South Africa.25 tion regime has been complicated by a number of factors, both Of particular concern to human rights activists are the policy and capacity related. implications of the section 22 Asylum Seeker permit, South Africa’s Refugee Act 1998 has its origins in the coun- issued in terms of the 1998 Refugees Act. Designed to try’s Aliens Control Act and, although representing a signifi- deter “bogus” asylum claims, the permit removes the cant departure from the ACA, has in numerous respects failed right to work and study for asylum seekers for the 180 to provide adequate due process guarantees to applicants, and days while the claim is being processed.26 In this interim is implemented in an ad hoc manner.21 Capacity-related prob- period, no social assistance is made available and the lems are largely a consequence of the fact that the issue is still common refrain from asylum seekers is, “We are given quite new in South Africa, and that the asylum system has fit a piece of paper from the Department of Home Affairs. uncomfortably within the country’s immigration system.22 Can we eat this piece of paper?”27
70000 64341
60515 60000 60278
54759
50000 47612
40000
32510 30000
Number of Applicants to date 20000 16967
10000
3644 0 May-95 Dec-95 Jul-96 Feb-97 Sep-97 Apr-98 Nov-98 Jun-99 Jan-00 Aug-00 Mar-01 Month / Year
Figure 1: Applications Received to Date (1995-2001, cumulative)
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Table 1 Refugee Applications in South Africa: 1995–2001 (Cumulative Statistics) Source Dated Received Approved “Refused”* Outstanding
UNHCR (State of the World’s Refugees) May 1995 3.644 383 517 2.744 DHA / UNHCR (recorded figures) June 1996 16.967 1.915 5.649 9.403 DHA / UNHCR (recorded figures) Aug. 1997 32.510 4.002 6.118 22.390 DHA ** Nov. 1998 47.612 7.927 19.031 20.654 DHA / UNHCR (recorded figures) June 1999 54.759 8.504 25.020 21.235 DHA / UNHCR (recorded figures) Apr. 2000 60.278 15.006 29.219 16.053 DHA / UNHCR (recorded figures) June 2000 60.515 15.116 29.899 15.500 DHA / UNHCR (recorded figures) Apr. 2001 64.341 17.198 34.184 12.959 * “Refused” includes: Rejected, cancelled, expired, withdrawn and manifestly unfounded applications ** Speech by Deputy Minister of Home Affairs to Parliament, November 5, 1998
With no access to social assistance and removal of the right Xenophobia, although a contested term, is widely to economic participation, asylum seekers find themselves in defined as the irrational fear of the unknown, the fear or an alarming situation of “enforced destitution,” denying them hatred of foreigners by nationals against non-nationals. the ability to survive legally.28 Once refugee status has been Xenophobia is largely based on unfounded myths and obtained, a number of barriers continue to impede the ability stereotypes with foreigners scapegoated for domestic of refugees to integrate and meaningfully participate in soci- social and economic problems. In South Africa foreign- ety. There is a need for government to reconsider the inhu- ers are blamed for the high crime rate, the HIV/AIDS mane restrictions that the section 22 permit imposes on pandemic, the high levels of unemployment, and the asylum seekers and to address the issue of refugees and asylum lack of social services. It would appear that in South seekers holistically. This requires commitment, through pol- Africa, foreigners and refugees fear both the ordinary icy and information, to provide material assistance and sup- citizens and agents of the state. port for asylum seekers and refugees that extends beyond the Xenophobia is manifested in a number of ways rang- provision of legal protection.29 ing from derogatory terms to unacceptable levels of violence against foreigners. Asylum seekers and refugees 6. Racism and Xenophobia are in many ways particularly vulnerable since they are On a spring day in September 1998, a horrifying incident took more obviously “distinguishable” from South Africans place on a train between Johannesburg and Pretoria. A mob of and furthermore are more “visible” because of their legal unemployed South Africans demonstrating against the pres- status. ence of foreigners in South Africa murdered one Mozambican There are a number of arguments/hypotheses as to and two Senegalese asylum seekers, who were scraping a living why xenophobia is manifesting and growing in South selling sweets to passengers.30 The public’s response, however, Africa. Some will be mentioned here, bearing in mind was muted. The victims were black foreigners. that more comprehensive research is needed in this field. According to Okkoth-Obbo this is an alarming trend visible in many other African countries: South Africa’s isolation The xenophobic violence that South Africa is experienc- Xenophobia, hatred and intolerance against foreigners has mush- ing is in many ways a legacy of the country’s racist history. roomed in Africa. Once renowned for the generous and hospitable It is also the product of a futile, isolationist policy de- manner in which it received refugees and foreigners, refugees and signed to intimidate and control foreigners. South Af- foreigners now often find that they have more to fear from the rica’s past exclusion from the international community ordinary citizens than from agents of the state.31 has resulted in the inability to tolerate and accommodate difference. Hobsbawm describes xenophobia “as the
Migration, Refugees, and Racism in South Africa
product of social transition, as a defence against the anxiety Xenophobia and Racism induced by ‘the unknown’.”32 As mentioned previously, South Africa has only recently emerged from a violent, racially divided past. According Economic deprivation and scapegoating to Okkoth-Obbo, xenophobia typifies a society in contra- Exploitative economic policies and continued wars and conflict diction with itself: “The point is that xenophobes dem- have had a negative effect on the social and economic develop- onstrate resistance to diversity not only of external origin, ment of Africa with major implications for migration. Central but internally as well.”36 to xenophobic tensions is the competition for scarce resources Crucial in constructing a nation is a common destiny. and the perception that non-nationals pose a significant threat Governments trying to unite an internally fractured rac- in terms of limited opportunities and resources.33 Added to this ist society may embark on a nation-building project that is the seemingly endless duration of conflicts in Africa leading constructs the “insiders” as the nationals and the “out- to compassion fatigue and declined empathy in assisting refu- siders” as the non-nationals. Yuval-Davis argues that the gees and asylum seekers. Some South Africans view the South common destiny needs to be enhanced through the African liberation struggle as a real struggle compared with construction of a “symbolic border guard,” the creation ethnic and religious conflicts elsewhere on the continent. of boundaries dividing the world into “us” and “them.”37 When confronted with xenophobic violence, many whites Research in South Africa has shown that xenophobic do not perceive this issue as affecting their own security di- attitudes are held at all levels of society across race, class, rectly, and so tend to ignore it. This kind of response is and gender divides.38 reminiscent of the previous government’s declarations de- scribing most of the violence in the country as being “black on Lack of Knowledge black.” On the other hand, there are white South Africans If knowledge is power, it is clear why South Africans and claiming, in an odd kind of solidarity, that the government foreigners are disempowered in contemporary South Af- should put South Africans first, blaming foreigners for the rica. Basic information—Who is a refugee? Who is a country’s social and economic ills – an argument that also foreigner? Where do “they” come from? What are “they”’ provides a convenient distraction from discussions on eco- doing here? What are their rights in South Africa?—are nomic redistribution. not known, not only by the average South African, but also by key civil servants and law enforcement officials. Democracy, The Nation and ‘Others’ South Africa, understandably, is in the process of constructing 7. Institutionalized Racism and Xenophobia a national identity out of a violent and fractured past, contested There is a strong sensitivity in South Africa to claims of between disparate cultures and communities. In this construc- being racist; reactions are often hostile and deeply polar- tion, Africa features prominently via the current South African ized. However, the screening of the police training video President’s African Renaissance ideal. These two processes, on national television was so utterly shocking that it did nation-building and Africa-building, operate simultaneously; manage to stimulate some debate as to whether the inci- but they are producing tensions and contradictions on the dent smacked of racism, or (gruesome as it was) was just ground.34 the latest in a series of anti-foreigner attacks. In this new political landscape, the government is under Joyce Tlou, lawyer and national coordinator of the pressure to deliver to a voting electorate. Voting populations National Consortium on Refugee Affairs (NCRA) in have a growing sense of their rights and entitlements, thus South Africa, was unequivocal in her response: “black laying claim to the limited socio-economic resources available. people felt very strongly that the issue is not about dogs If foreigners are perceived as a threat to the development of and brutality but racism and that this is what should be the nation, it is easier for government departments, particu- addressed.” The South African Human Rights Commis- larly with regard to migration policy, to pander to populist sion, in a press release on the incident, highlighted the sentiments rather than be unequivocal in their commitment links between racism and xenophobia: to human rights. Billy Masethla, the Director General of the The fact that the victims were black, foreign and may Department of Home Affairs, concedes that the department have been here without the proper authorisation obvi- “finds itself increasingly locked between, on the one hand, ously contributed to the police thinking that no matter human rights considerations on the handling of these foreign- what pain they inflicted, they would not be held account- ers and, on the other, growing xenophobic attitudes towards able. There is a direct link between the alarming degree them among South Africans.”35 of xenophobia and racism prevailing in our society and
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the existence of such beliefs in people who are entrusted with access to legal documentation, safety and security, edu- the job of upholding the law.39 cation, housing, and a host of other social services, civil Like violence in general, police brutality is an enduring servants are powerful figures in the lives of asylum seek- problem in South Africa. The incident described at the begin- ers and refugees. Presently, the conduct of many govern- ning of this article, disturbing as it was, merely represents the ment officials depends largely on individual feelings and tip of the iceberg, the latest in a flood of allegations that has opinions rather than on professional human rights con- overwhelmed the capacity of the South African Independent duct.44 Complaints Directorate (ICD) monitoring the activities of the Compounded by the lack of a coherent policy, inade- police in South Africa. The link between the brutality of the quate information on the social and economic needs of police and racism is also well established, the victims being refugee and asylum seekers, lack of knowledge by refu- almost invariably black and often treated in a racist manner, gees and asylum seekers on their rights of access and, as both Tlou and international observers such as Human most especially, the hostility and negative attitudes that Rights Watch40 and Amnesty International41 have observed. It refugees and asylum seekers face when attempting to is therefore no coincidence that the victims of “xenophobic” access government services, it is not surprising that an attacks are, almost invariably, black people from African asylum seeker recently protested, “Xenophobia in the countries. civilian population is almost easier to manage… It is the In March 2000, an exceptionally xenophobic exercise was institutionalized xenophobia of government officials undertaken by the South Africa Police Service (SAPS). Called that leaves us feeling the most powerless.”45 Operation Crackdown, it propounded to be an anti-crime World Refugee Day, June 20, 2001, was used as an blitz with expressed goals to “thoroughly ventilate all criminal opportunity to engage government on some of the cru- elements and illegal immigrants.”42 Targeting areas with large cial legal, socio-economic, and safety concerns facing migrant communities such as Hillbrow, the Operation led to refugees and asylum seekers. A workshop titled “Refugee countless allegations of human rights abuses, including genu- Life in South Africa: Building Partnerships towards Bet- ine refugee papers being destroyed and refugees being herded ter Solutions” was planned as a follow-up to the South up and sent to the Lindela Deportation Camp. African National Conference on Racism held in Septem- Further incidences have sparked outrage within the South ber 2000. Article 30 of the South African Millennium African community. On March 12, 2001, Sylvia Manda, a Statement on Racism and Programme of Action states: South African teacher in Hillbrow, was arrested, assaulted, and detained for several hours on suspicion of being an undocu- Appropriate social assistance for asylum seekers and refu- mented immigrant. When the police captain, Bongani Dube, gees needs to be considered in close co-operation with was asked to elaborate on what grounds they suspected her of NGOs, which would help in their integration into South being an illegal immigrant [sic], Dube replied, “complexion, African society and increase their contribution in skills and facial appearance, accent and her style of dressing.”43 The case expertise towards national development. The Conference of Sylvia Manda is not unique, with other darker-skinned calls for the development of closer co-operation between South Africans reporting similar incidences. Operation Crack- government, the National Consortium on Refugee Affairs down and cases such as that of Sylvia Manda have a further and the UNCHR in order to co-ordinate improved services implication in reinforcing existing stereotypes of foreigners to asylum seekers and refugees. and criminality. Another, less publicized, implication is the cost of human The workshop brought together key government de- rights violations to the South African taxpayer: Sylvia Manda partments, NGOs, faith-based organizations, the NCRA, and many of the victims of Operation Crackdown have insti- the Roll Back Xenophobia Campaign, and the UNHCR tuted civil claims against the police running into millions of to begin deliberations on the policies of asylum and to rands. consolidate processes needed to holistically address the Responsibility for attacks and hostility against foreigners grim realities facing refugees and asylum seekers. The does not lie on the doorstep of the police alone, however. workshop also addressed the barriers that racism and Indeed, in democracies the world over, police and civil ser- xenophobia pose in the access to quality services and vants often mirror the sentiments of the general public as a integration into the South African society. kind of moral justification for their actions, and South Africa Furthermore the South African Police Service (SAPS) is no exception. is currently working in partnership with human rights Civil servants provide the hands-on delivery, which is es- organizations46 in a series of pilot workshops aimed at sential to implementation of policy. As the gatekeepers of sensitizing the police to the rights of refugees and non-
Migration, Refugees, and Racism in South Africa
nationals and the obligations of SAPS in ensuring their safety tion and intolerance experienced by people presumed to and security. be foreign nationals.49 Furthermore, detailed recom- mendations call for renewed commitment to equitable 9. The World Conference against Racism in Durban and non-discriminatory assistance for refugees in vari- ous regions of the world. The Conference condemns any form of co-operation with South In the Final Declaration and Program of Action,50 Africa… the international community is exerting all its efforts there are many references to the protection of migrants, toward the objective of completely isolating the racist regime of migrant workers, and refugees. Of particular note is 47 South Africa. paragraph 16 of the Final Declaration:
These were the words of the Declaration and Programme of 16. We recognize that xenophobia against non-nationals, Action adopted at the World Conference to Combat Racism particularly migrants, refugees and asylum-seekers, consti- and Racial Discrimination 1983. Indeed almost the entire Dec- tutes one of the main sources of contemporary racism and laration of 1983 was focussed on outrage against apartheid. It that human rights violations against members of such was therefore not subtle irony, but rather a continuation of the groups occur widely in the context of discriminatory, xeno- country’s globally celebrated democracy, that brought the next phobic and racist practices World Conference to the “rainbow nation” of South Africa. The World Conference Against Racism (WCAR),48 accom- Of note to South African NGOs participating at the panied by a parallel NGO Forum, was undoubtedly one of the NGO Forum and the WCAR was the active international most significant human rights events to take place at an inter- migrant caucus concentrating largely on the plight of national level in the last decade. It is perhaps for this reason migrant workers. The preparation and organization of alone that the number of items on the meeting’s agenda the caucus highlighted the weaknesses of both the Afri- proved to be so considerable, if not overwhelming, each item can region and the value of a focussed, internationally certainly worthy of a separate conference on its own. The integrated caucus lobbying for refugees and asylum significant media attention during the early stages of the con- seekers in particular. Considering the massive refugee ference was a positive illustration of the increased awareness crisis facing the continent, the lack of participation by of human rights issues since the last meeting, which took place African NGOs in the meetings dealing with refugees and in 1983. On the other hand, the large agenda was also a sad asylum seekers raised a number of questions about a lack reflection that there continues to be a great deal of human of commitment to the issue, limited resources for or- rights abuse taking place around the world as well as a deep- ganizations working in the field, and levels of disempow- ening dissatisfaction that past abuses remain unresolved. erment of the refugee community themselves to actively It was unfortunate that considerable attention on the part represent their issues at a forum of this nature. Gains of NGOs and the media focussed overwhelmingly on issues at made at the conference were largely due to a handful of the NGO Forum dealing with the situation in Israel / Palestine. committed activists who made particularly useful con- The reactionary response by the United States and Israel of tributions.51 withdrawing their delegations in response to an NGO-pro- It is of course too early to predict with any certainty duced Draft Declaration (soon followed by a drastic reduction whether the principles contained in the “Durban Decla- in the delegations of European countries) was even more ration” will translate into progressive, concrete actions disappointing. These events had the impact of drawing atten- on the part of states to address xenophobia and racist tion away from the many other areas being positively ad- practices towards foreigners, though it is difficult to feel dressed at WCAR, not least issues pertaining to the treatment positive about the future. Our fear is that, on one hand, of migrants, migrant workers, and refugees. a true commitment to these principles on the part of With regard to refugees and asylum seekers, it is interesting states will prove to be increasingly elusive, as tradition- to note that in the 1983 Declaration refugees are largely re- ally has been the case. ferred to in the context of the anti-apartheid liberation strug- The fact that powerful states withdrew or drastically gle and those fleeing the racist South African regime of the day. reduced the strength of their delegations early on in the The NGO document and Government Declaration of 2001 conference was a grim message implying a serious lack reflect widely applicable gains for migrants in particular, but of state commitment to these issues. On the other hand, also for refugees. The NGO document attempts to address the progressive language on the rights of migrants and for- conference focus on racism by providing a specific acknow- eigners that was incorporated into the Declaration pro- ledgement of xenophobia as a particular form of discrimina- vides a potentially powerful tool for future advocacy.
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The challenge is now on the part of the UN, NGOs, and supporting collaborative training, might prove to be of progressively minded governments to advocate these princi- great benefit.54 International experience should be used ples in positive, creative ways. In South Africa, there is a small for examples of best practices, without ignoring the spe- but vocal group including the South African Human Rights cific nature of migration in South Africa. Commission, NGOs, and CBOs advocating for the rights of A new migration policy in South Africa should repre- refugees in South Africa. In light of the above-mentioned sent a clean break from the country’s racist past, focuss- observation, however, there is a need to lobby at regional and ing more on objective realities of the country’s urgent continental levels to ensure that the WCAR documents assist labour requirements in the context of a human-rights- in halting the current erosion of refugee rights in the region regarding society (as proposed by the Green Paper), and and the continent. less on issues of security. International experience has demonstrated the overwhelming failure and cost of 10. Conclusions mechanisms aimed at control, and the great value of Apportioning blame to foreigners for the considerable socio- those aimed at stimulating development. economic problems of South Africa has perhaps been the most Changing attitudes and the implementation of policy visible feature in the migration debate in South Africa, with very is a much greater task. In our view, there must first be an little put forward in the way of concrete, rights-regarding solu- honest assessment and acknowledgement of the causes tions. Advocacy organizations on behalf of foreigners have been of racist, xenophobic violence perpetrated against for- small in number, facing seemingly insurmountable obstacles in eigners and the implications thereof. their efforts to motivate for a rational policy and to change This year (2001), with the international community attitudes. Returning to a principled and pragmatic approach to gathering in Durban, South Africa, for the United Na- migration policy, as advocated by the South African Draft tions-sponsored International Conference on Racism Green Paper on International Migration and partly reflected in and Xenophobia, provided an ideal opportunity for re- the Refugees Act, could be a way of reaffirming the country’s examining these issues, although as mentioned above it commitment to social and economic development and human is unclear to what extent the progressive principles and rights, and acknowledging the realities of why people move. program of action contained in the final declaration will But whatever the change in policy may be, it is clear that it translate into concrete results. will have to be accompanied by a major change in attitude on The signs are that this could prove to be a very difficult the part of society and officials. Although the Roll Back Xeno- task indeed, further worsened by the attacks of Septem- phobia Campaign52 has made a number of significant gains in ber 11, 2001, in the United States.55 Events that have public awareness and education targeting civil servants, the followed have included numerous, shocking reports of police, and the general public, it will, however, take the overt a “backlash” against foreigners, particularly of Arabic support and commitment of senior government and political and South Asian backgrounds, and nationals of Arabic leaders to make a concerted impact at changing attitudes and and South Asian descent, including verbal and physical mindsets. attacks and the desecration of mosques and businesses. Anti-xenophobia awareness campaigns aimed at changing Finally, it has for some time been clear that govern- society’s perceptions need to be adequately resourced and ments hosting refugees and migrants are seeking to im- developed, supported as well by expanding the targeted train- pose ever more restrictive policies regarding entry. The ing of police officers, immigration officers, and civil servants. United States, which has traditionally pursued a policy Attitudes need to be changed at their core, and racism in of routinely detaining asylum seekers who spontane- particular needs to be addressed at a fundamental level. ously arrive and seek asylum, is now introducing even The experiences of other countries might be useful in this stronger mechanisms in regard to detention, measures regard. As one police officer from the Netherlands (who par- to introduce tougher measures against undocumented ticipated in a training program in South Africa) has noted: arrivals,56 and counter-terrorism measures that have (positively) been described as “draconian” by U.S. Presi- police cultures have great similarities in democracies all over the dent Bush. While many of Australia’s refugee activists world. It is a culture that often transcends national boundaries, and were lobbying at the NGO forum, the Australian govern- a proven way of addressing negative attitudes within the police is ment was refusing Afghan asylum seekers entry to their to improve professionalism in the force.53 ports. The situation for Afghan refugees has sub- sequently worsened with the closing of neighbouring In this context, promoting the exchange of officials between borders in the wake of the threatened U.S. retaliation. two countries dealing with the reception of migrants, and These approaches to those seeking asylum highlight the
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need for intensified, sympathetic, and sophisticated lobbying & Human Rights in a Democratic South Africa (Cape Town: by human rights activists to reclaim and reaffirm the principles Southern African Migration Project, 1998) 18–36. of the fledgling WCAR commitments. 10. B. Masethla, “Refugee Law, Policy and Practice in South Statements coming from the South African government, Africa” (Presentation at a workshop titled Refugee Life in however, give us greater reason for hope. The government not South Africa: Building Partnerships for Better Solutions, organized by the NCRA, RBX, and the UNHCR, on World only made considerable effort to try to convince governments Refugee Day, 20 June 2001) [unpublished]. not to withdraw their delegations from the WCAR, but in 11. G. Cawthra, Policing South Africa (Cape Town: David response to the events of September 11, the South African Philip, 1993) at 1. Ministry of Foreign Affairs has issued statements calling for 12. Illegal? Report on the apprehension and Detention of Sus- 57 restraint. It is hoped that these same sentiments will be pected Undocumented Migrants (Johannesburg: South Af- shared by the Ministry of Home Affairs (responsible for im- rican Human Rights Commission, February 1999), online migration and refugees) as well as the police and the South
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23. In April 2000, there were around one hundred officials working 38. R. Mattes et al., Still Waiting for the Barbarians; South Africa within the Refugees Sub-Directorate of the Department of Home Attitudes to Immigrants and Immigration, SAMP Policy Affairs. Series, paper no. 14 (Cape Town: Southern African Migra- 24. J. Klaaren and C. Sprigman, “Refugee Status Determination Pro- tion Project, 1999). cedures in South African Law” supra note 22; W. Kerfoot, “The 39. South African Human Rights Commission, Press Release Lack of Due Process in Asylum Determination in South Africa" in response to SAPS dog attack on non-nationals, “A ‘dog (presentation at the conference Refugees in the New South Africa, eat dog’ world ??” (17 November 2000). organized by Lawyers for Human Rights, Pretoria, 27–29 March 40. Human Rights Watch, supra note 21, at 119. 1998) [unpublished]; and Z. Majodina, Human Rights Implica- 41. Amnesty International, London, Press Release, “South Af- tions of Refugee Protection (presentation at a workshop titled rica: Amnesty International welcomes Government action Refugee Life in South Africa: Building Partnerships for Better against racially-motivated violence by police” (8 Novem- Solution, 20 June 2001) [unpublished]. ber 2000). 25. J. Handmaker, “Who Determines Policy”, ibid. at 290. 42. H. Radebe, “Time we became a bit more neighbourly” The 26. According to the Jesuit Refugee Services, in reality it takes be- [Johannesburg] Star Newspaper, (March 2000). tween eight and ten months, as the 180 days is calculated from the 43. M. Monare, “Cops Assault Teacher Facing Suspension” date of the first official interview. The [Johannesburg]Star Newspaper (13 March 2001). 27. Refugee participant in Roll Back Xenophobia Campaign work- 44. The Roll Back Xenophobia Campaign, Braamfontein shop on the rights of women refugees, November 2000. Statement (1998) and National Plan of Action; Racism and 28. This situation is confirmed in a recent research report, F. Belve- Xenophobia: A Violation of Human Rights, by the South dere, P. Pigou, J. Handmaker, Realising Rights: The development African Human Rights Commission, produced by the Na- of health and welfare policies for asylum seekers and refugees in tional Consortium on Refugee Affairs and the UNHCR; South Africa (Johannesburg: Community Agency for Social En- online:
Migration, Refugees, and Racism in South Africa
53. Statement by Rob Ruts, senior partner at Ennea consultants and head of the Expert Centre on Community Policing of the National Police Training Institute in The Netherlands, in a discussion with J. Handmaker, 17 May 2001. 54. As Ruts (ibid.) has also noted, addressing attitudes amongst officials goes hand in hand with the need to address corruption, though this is nearly impossible to tackle if the police officers responsible are barely able to make a living on their existing salary. Strategies to improve accountability and reduce corruption, therefore, need to be tied to improvements in the working con- ditions of the police (including remuneration). 55. We of course refer to the terrorist attacks against the World Trade Center in New York City and the Pentagon in Washington, D.C., on 11 September 2001. 56. For a recent and useful review of U.S. policies on border control, see P. Martin, B. L. Lowell, and E. Taylor, “Migration Outcomes of Guest Worker and Free Trade Regimes: The Case of Mexico – US Migration” in B. Ghosh, ed., Managing Migration (Oxford: Oxford University Press, 2000). 57. “Pahad asks US to use restraint’ Pretoria News (19 September 2001).
Jeff Handmaker, LLB (Newcastle), LLM (SOAS, London) and U.K. barrister (non-practising), is a freelance consultant, based in The Netherlands and engaged in various projects concerning human rights and development co-operation. Jennifer Parsley, BA (UCT), MA (Witwatersrand University), is Coordinator of the Roll Back Xenophobia Campaign, a joint initiative of the National Consortium on Refugee Affairs (NCRA), South African Human Rights Commission (SAHRC), andUNHCR.Formoreinformationonthecampaignsee: www.sahrc.org