South Africa fails in duty to offer refuge

Over the past four days, we have watched Lindela Detention Centre being sold off to the highest bidder. And in this chaos and crisis, the Department of Home Affairs has been silent. This is consistent with the crisis in the asylum system and the related crisis of detention of the most vulnerable in our country.

But perhaps it can be no wonder that surges of popular violence against some of the continent’s most vulnerable have continued to pepper our news headlines. The reception that fleeing foreign nationals receive once crossing our borders and attempting to make use of our dedicated state processes — intended to provide mercy to desperate populations — likewise make headlines for their inadequacies.

Anti-foreigner sentiment appears increasingly institutionalised, having taken firm root in our procedures, reflected in statements by our politicians and echoed in the conditions of detention experienced by asylum-seekers denied refuge in our country.

We have forgotten, in the words of Somali poet Warsan Shire, in her poem, Home, that “no one leaves home unless home is the mouth of a shark”.

The United Nations Committee against Torture is a body of 10 independent experts that monitors implementation of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment by its State parties, of which South Africa is one. In 2019 it assessed the country’s submission of its second periodic report on compliance with the convention.

The committee made special mention of the severe difficulties experienced by individuals in gaining access to refugee status determination procedures. It further noted with concern the lack of adequate safeguards against refoulement — or the forcible return of asylum seekers to their countries where they may be subjected to persecution — in our country. This, despite the recent Constitutional Court victory on behalf of Lawyers for Human Rights’ client, Alex Ruta, confirming the sanctity of the principle of non-refoulement.

The report lamented, too, the prolonged detention, without a warrant and prior to their deportation, of asylum seekers whose applications have been rejected at Lindela Repatriation Centre — essentially a holding centre for those awaiting deportation, and the subject of countless reports by judicial and human rights groups — including Lawyers for Human Rights — calling attention to a litany of abuses against its population.

The committee found similarly, noting that individuals are held at Lindela “in inadequate conditions that include overcrowding and a lack of hygiene and medical services”. We know, too, that Lindela is not the only place where such individuals are detained — indeed, police stations frequently play host to these migrants, detained in similar, wholly deficient conditions.

These circumstances stand in stark contrast to international law, as well as in contravention of the UNHCR’s Guidelines on Detention of Asylum-Seekers.

Of course, these findings are not, in themselves, “news”. Lawyers for Human Rights constituted several years ago a dedicated unit to monitor the conditions of detention for asylum-seekers and other migrants, and to provide legal assistance where necessary. The call for such services today far outstrips our ability as an organisation to provide them.

Over the years we have encountered many individuals detained without due process or judicial oversight. This has led to refugees and asylum seekers with valid permits being detained without a proper verification process, minors being detained with adults at Lindela and individuals being detained past the statutory limits of detention without access to courts to challenge the lawfulness of their detention. Our courts have also seen a number of damages claims from individuals who have been tortured in Lindela.

This Human Rights Day offers an important moment for reflection on these realities, and not least in light of the recent sale of Lindela in the Bosasa auction. While the fate of its current detainees remains unclear, one thing is indisputable: the refuge that South Africa offers to desperate populations must be more than this. As an organisation, we acknowledge the country’s large caseload of refugees and asylum-seekers. We certainly acknowledge that no state is obliged to grant asylum as a matter our course. But respecting the right to seek asylum, as South Africa must, means instituting humane reception arrangements for asylum-seekers, and this must include safe and human rights-compatible treatment for these individuals while they remain within our country’s borders.

Far too frequently, the calls we receive regarding the treatment of migrant detainees reflect a blatant disregard for these obligations. The South African Human Rights Commission reflected this sentiment in a 2014 investigative report on healthcare provision at Lindela. This report highlighted consistent human rights violations of detainees, from violent attacks on the detainees by security guards to denial of access to medical services and limited access to basic sanitary provisions. Indeed, the very use of detention as any kind of deterrent to migration, or to dissuade those who have commenced their claims from pursuing them, is inconsistent with international norms.

We, therefore, urge our lawmakers, Department of Home Affairs staff, our police force and other state officials to recall their duties under the law to provide a safe haven for asylum-seekers, including through any period of detention.

The dangerous, anti-foreigner sentiment that appears to be taking firm root in our country does a deep disservice to our identity as a nation which has a Constitution that enshrines a commitment to human rights, forged in part out of opposition to historical persecution of many of our own people and a brutal infringement of these basic human rights which were denied to the majority of the people of this country simply because of the colour of their skin.

Institutionalised xenophobia, clearly manifest in the ill-treatment of detained asylum seekers, lends support to these views. No space must be given to this sentiment. MC

Sharon Ekambaram is the manager of the Refugee and Migrant Project at Lawyers for Human Rights.