South Africa is proudly known as the rainbow nation throughout the world. This is so not only because of the colourful variety of peoples, culture, religions and customs indigenous to South Africa alone, but also because of the openness with which we have traditionally welcomed many other foreign nationals, especially other African countries such as Zimbabwe, Malawi, Mozambique and even as far away as Nigeria, the Congo and Somalia.
Since South Africa’s transition to full democracy in 1994, there has been a very large influx of especially African foreign nationals into the country, some of whom are seeking refuge from conflict, tyranny and / or persecution in their own countries. Most, however, are simply trying to build a better life for themselves in Africa’s economic powerhouse. The presence of foreign refugees has, however, become a matter of national concern – particularly in the wake of recurrent xenophobic attacks.
The critical comments on refuges that were recently made by ANC-LP Maggie Maunye, Chairperson of the Parliamentary Portfolio Committee of Domestic Affairs, require further analysis, even though she and the ANC have since apologised for them. Ms Maunye’s comments came just a day after two Somali men were brutally murdered in Delft on the Cape Flats, although the South African Police has stated officially that the motive for the crimes is unknown.
Ms Maunye, after visiting a refugee centre in Maitland, said she wondered “if there was anyone left in Somalia” and that she wondered “for how long still South Africa is going to continue tolerating this influx of people”. She continued that “in Spain one sees on television how they send the refugees back and here we are told of human rights and laws…all types of excuses…here we have people living in poverty, people who are unemployed…we have never enjoyed our freedom as South Africans…we received it in 1994 and we have encountered a barrage of refugees and undocumented people”. Such statements can have an incendiary effect in the current climate of high unemployment and service delivery failure that pervades many of our communities.
What is the legal position of refugees in South Africa?
The South African Constitution is applicable to all people who find themselves within our borders. Section 7(1) of the Bill of Rights unambiguously states that the Bill of Rights is a cornerstone of democracy in South Africa. It entrenches the rights of all people in our country and confirms the democratic values of human dignity, equality and freedom. The legislature, executive as well as the judiciary are bound by the Constitution and the Bill of Rights by virtue of Section 8(1). Although certain rights will only apply to certain categories of people or beneficiaries (for example the right to vote for citizens), nearly all rights are enjoyed by “everyone”, regardless of whether not they are South African citizens. Similarly, the Constitution’s core underlying values of human dignity, equality, the advancement of human rights and freedoms, non-racialism and non-sexism also apply to refugees.
Our Courts have been very consistent in the view that the benefit of the so-called “universal rights” may be claimed by anyone within the national territory, irrespective of whether they are here legally or illegally, temporarily or permanently. These include Sections 10, 11 & 12 of the Constitution which entrench the rights to human dignity, life and freedom and security of the person. It is accordingly unacceptable to make statements that might lead to the violation of these rights in respect of foreign nationals. The rights of foreign nationals in South Africa could be diminished only if the State were to have recourse to Section 36 of the Constitution, which stipulates how the rights contained in the Bill of Rights may be limited.
It would also seem from Ms Maunye’s remarks that she was trying to blame the poor socio-economic conditions experienced by millions of South Africans on the influx of foreign nationals into South Africa since 1994. Recent studies have indicated that a major cause of the most recent xenophobic attacks was the resentment of the unemployed South Africans that foreigners had caused their unemployment by taking the available jobs. However, other studies have shown that most foreigners are self-employed.
What are South Africa’s responsibilities towards refugees in terms of international law?
South Africa is a party to the United Nations Convention Relating to the Status of Refugees which defines who is a refugee, sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. Countries ratifying the Refugee Convention are obliged to protect refugees who are in their territory.
South Africa is also a party to the African Union (AU) Convention Governing the Specific Aspects of Refugee Problems in Africa in terms of which a humanitarian and non-discriminatory approach should be employed when dealing with refugees.
Aside from the binding nature of these international legal instruments, the Constitution also stipulates that international law must be considered in the interpretation of the Bill of Rights.
The influx of illegal refugees is a contentious issue all over the world. However, in South Africa, it is an issue that must be addressed within the framework of the Constitution. Pending the development of a coherent policy to regulate refugees, they, like everyone else, continue to enjoy the full protection of the Constitution.
Adv Jacques du Preez
Previous: Cape Town 11 July 2011