The Department of Home Affairs has come under fire after it deported 16 Burundian asylum seekers early on Wednesday this week, despite attempts by the individuals’ lawyers to obtain an urgent stay of deportation.
The department’s action violated South Africa’s obligations under the International Convention against Torture, says the Refugees Ministries Centre, which represented the Burundians, as well as Section 2 of the Refugees Act of 1998, which outlines individuals’ right not to be returned to a country where their lives are at risk.
The Refugees Ministries Centre is a project sponsored by the Methodist and Anglican churches of Southern Africa.
Abeda Bhamjee, of the Wits Law Clinic, acting on behalf of the Refugees Ministries Centre, told the Mail & Guardian: ”The deportations amount to a grave breach in the fundamental human right of non-refoulement or non-return.”
The Burundians, 14 of whom had been held for more than 30 days at the Lindela repatriation centre, were refused release to apply for asylum.
According to Bhamjee, the Department of Home Affairs violated South African law in two ways. It acted acting against the provisions of the Immigration Act, which states that any undocumented foreigner who expresses a desire to apply for asylum must be granted a Section 23 permit.
Such a permit allows foreigners 14 days to travel to one of the five refugee reception offices around the country, to have their claim put on record.
Furthermore, said Bhamjee, the department contravened Section 34 (1) (d) of the Immigration Act, which states that undocumented foreigners ”may not be held in detention for longer than 30 calendar days without a warrant of a court”. Even with a court warrant, the department cannot detain someone over a period of more than 120 days.
On Monday and Tuesday, the Wits Law Clinic, along with the Refugee Ministries Centre, conducted interviews with 40 people at Lindela. It found that none of the detainees had been informed of their rights, or shown the requisite administrative notices regarding the extensions of their detention. This meant that all their detentions were, de facto, illegal.
According to Dr Emmanuel Ngenzi Nyakarashi, project coordinator for the Refugees Ministries Centre, there are many instances where detainees in Lindela are forced to sign deportation papers without fully understanding what they are signing due to language barriers. He claims that even if they do understand what they are signing, they are coerced, or threatened with violence or continued detention, if they do not sign the documents.
Bhamjee said: ”We have limited resources and limited time, and we are concerned that many more people are falling through the gaps. It shouldn’t fall to NGOs or human-interest lawyers to protect the rights of these people.” She maintains that it is incumbent upon the Department of Home Affairs to safeguard the rights of detainees at Lindela.
The Wits Law Clinic and Lawyers for Human Rights, working in partnership on the case, are now submitting a court application compelling the Department of Home Affairs to stop acting with impunity in contravening South African law.
They are seeking further relief for Lindela inmates by requesting that the department be compelled to create lists of all detainees held longer than the prescribed 30-day detention period outlined in Section 34 of the Immigration Act, as well as copies of court warrants required to extend the detention of an individual beyond the 30 days.
Furthermore, the court application seeks to have the current policies and practices at the Lindela repatriation centre declared unlawful.
The department could not be reached comment regarding the deportation of the 16 Burundians or the human rights abuses perpetrated at Lindela.
In an e-mail to the Mail & Guardian, departmental spokesperson Nkosana Sibuye did say: ”Our capacity in terms of human material resources and systems cannot withstand such high numbers of applicants who visit our offices daily and as such, delays in the speedy processing of refugee applications are inevitable.”
He pointed out that the department is working to alleviate the problem by opening new refugee reception offices with state-of-the-art information technology, including a new refugee system and queue-management system. For the Burundians, however, it is too late.