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02 Mar 2018 00:00
Save our souls: Refugees need President Cyril Ramaphosa to uphold South Africa’s Constitution and laws so that the rights of asylum seekers are protected. (Mike Hutchings/Reuters)
Dear President Ramaphosa,
I heard your call for “Thuma mina” in your State of the Nation address and I am writing to let you know that I am ready to lend a hand.
What stood out for me was your statement that South Africa belongs to all who live in it and your commitment to addressing poverty and creating jobs for our youth.
You spoke of a new dawn and recognised that sometimes we fail merely because we fail to implement our laws.
One glaring example of this is the treatment of refugees in South Africa, in particular refugee children. South Africa boasts one of the most robust and liberal constitutions in the world; at the very least, it should protect the dignity of everyone in South Africa, but sadly this is not the case. I have witnessed our laws fail those most vulnerable in society.
During my time as director of the Refugee Rights Clinic at the University of Cape Town, I have witnessed, at times with horror, the devastating effect of noncompliance with our laws on the lives of refugees and refugee children.
At the clinic, we provide free legal services to refugees, with the assistance of the United Nations High Commission on Refugees. We provide a direct legal service to about 5 000 clients a year, and witness first hand refugees’ struggles to assert their basic human rights. In some cases, poor service delivery and a disregard for the law result in absurd situations.
Recently, a pair of grieving parents came to our office after the tragic loss of their infant child. After giving birth in a South African hospital, our clients were issued with a handwritten notice of birth. Despite the fact that the father held a valid asylum-seeker permit, the child was refused a birth certificate because the mother was an undocumented asylum seeker.
On many occasions we have pointed out to the department of home affairs that the notice of birth leads to a denial of rights. When this baby died, the cruelty and the inhumanity of the department’s recently introduced policies were exposed. The mortuary would not release the body of the child because the mother had no valid documents, and home affairs would not issue a death certificate because the child had no birth certificate. Imagine the suffering of the parents.
In the end, our offices had to threaten high court litigation to obtain relief for our clients. After engagement with home affairs, only the most senior person in the office would agree to issue a death certificate. This ordeal lasted 11 days. Only then was the tiny body of the baby finally put to rest.
It is important to engage with the complexity of this matter to understand the irrationality of these policies. The mother, an asylum seeker, is not an illegal immigrant. This tragic situation was a direct result of restrictive and systemically xenophobic practices introduced by home affairs. They have denied refugees access to the asylum system. They have ignored court orders to reopen refugee reception offices and provide essential services to asylum seekers and refugees.
Mr President, I appeal to you to address the lack of respect for binding court orders as a matter of urgency.
In December, eight Zimbabwean children, some as young as two, were arrested when their mothers tried to smuggle them into South Africa. The department of social development has held these children in custody for three months and is preventing them from seeing their parents. This department cannot, apparently, distinguish between trafficking and smuggling.
If it is determined that the parents are in South Africa illegally, unite them with their children and return them all to Zimbabwe. It is not in the best interest of these children to be kept in isolation and apart from their parents.
Our post-apartheid refugee laws have shown respect for the exiled and have recognised that the exiled do not cease to be human beings.
But recent years have seen the adoption of inhumane practices and laws by the department of home affairs.
In December, when we celebrated your victory at Nasrec, then-president Jacob Zuma signed into law the Refugees Amendment Act, which disregards the international laws on refugees and children that we have ratified. It also, in my opinion, disregards our Constitution.
Please, Mr President, help! — Dr Fatima Khan, director, Refugee Rights Clinic, University of Cape Town law faculty
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