Home Affairs Minister Minister Aaron Motsoaledi.(Alet Pretorius/Foto24/Gallo Images)
On 5 November, Home Affairs Minister Aaron Motsoaledi published the White Paper on Citizenship, Immigration and Refugee Protection, which states that the first democratic government made a serious mistake when it failed to have reservations in relation to the protection of socio-economic rights for refugees. Because of this mistake, the White Paper proposes that South Africa reviews and/or withdraws from two international refugee treaties — the 1951 United Nations Convention Relating to the Status of Refugees and the 1969 African Union Convention Governing the Specific Aspects of Refugee Problems in Africa.
Since the adoption of the Refugees Act 130 of 1998 that came into effect in 2000, South Africa has attempted to exclude refugees and asylum seekers from socio-economic programmes. Hence the Act did not harmonise with socio-economic laws.
In addition, the Act was initially silent on the socio-economic protection of asylum seekers until the 2004 case of Minister of Home Affairs v Watchenuka in which the supreme court of appeal held that asylum seekers must be allowed to work and study if they don’t receive any humanitarian relief and assistance from the government.
Whereas the government amended the Refugees Act in 2008 to include asylum seekers as beneficiaries of socio-economic rights, it changed this legislation again in 2011 by introducing restrictive measures relating to applications for asylum and more conditions under which refugee status can be withdrawn. Surprisingly, no regulations were adopted to operationalise them. But in practice, the government implemented those provisions that worsened the plight of refugees and asylum seekers.
In 2016, the Green Paper on International Migration was introduced with the intent to harmonise the refugee regime with the Immigration Act 13 of 2002. The Green Paper proposed that asylum seekers be excluded from communities and be held at asylum facilities near the country’s borders. Following public comments, this policy document was redrafted into the 2017 White Paper, which underscored that the exclusion of asylum seekers from communities was appropriate. This meant that they would no longer have access to jobs, social welfare and public services.
This approach was incorporated in the 2017 Refugees Amendments. Accordingly, asylum seekers ought to be confined in shelters where their basic needs would be catered for by charity organisations, unless they can support themselves. This was not implemented.
On 1 January 2020, the amendments of 2008, 2011 and 2017 were finally operationalised by the Refugees Regulations of 2018. But, until the introduction of the 2023 White Paper, the government did nothing to remove asylum seekers from communities, except rounding up illegal foreigners for either deportation or expulsion.
The 2017 White Paper sought to comprehensively revise the Refugees Act. The government finds this to be an unwise approach and thus introduces the 2023 White Paper to revise refugee, immigration, citizenship and birth registration regimes in their entirety and harmonise them into a single migration regime.
The introduction of a single migration regime was justified on the main grounds that existing regimes are (i) not aligned with the country’s development path on the needs and considerations of citizens; (ii) unable to curb the influx of undocumented migrants; (iii) falling shorts of the international trends; (iv) not taking into consideration the problems South Africa faces; and (v) colonially flowing from apartheid laws.
It is true that the international trend of restricting admission of asylum seekers has led to an externalisation of the asylum protection mandate. The new White Paper proposes that South Africa becomes part of this trend by withdrawing from international refugee treaties. But this will not absolve the country from its commitment to protect asylum seekers. The international obligations to do so will persist and will be consolidated by the founding values of a democratic South Africa enshrined in the Constitution — human dignity, the achievement of equality and the advancement of human rights and freedoms.
Furthermore, the developed refugee jurisprudence will not absolve the country from its obligations to protect the vulnerable people in its territory. Any action of the government will always be measured against the said founding principles to determine whether the proposed refugee protection will pass constitutional muster.
For example, writing the concurring judgment in the 2007 case of Union of Refugee Women v The Director, The Private Security Industry Regulatory Services, Judge Albie Sachs stressed that the protection of refugees and asylum seekers must be understood in the social and historical contexts of South Africa as set out by the then the deputy minister of home affairs, Lindiwe Sisulu. She stated that because of its history and struggle, South Africa has “increasingly had to bear the mantle of champions of the oppressed”. She further said that “because of the political and economic stability of South Africa, and the fact that thousands of South Africans have experienced the pain of destitution and homelessness, South Africa is in a unique position to chart a humane policy as far as refugees are concerned.”
In her view, there was a radical need to develop and adopt a progressive refugee policy that would domesticate the practices of principles of international solidarity and burden sharing. Such practices would assist the victims of international conflicts and human violations to seek a safe haven in South Africa.
The need to offer humane refugee protection resonates with the spirit of Ubuntu and pan-Africanism against which determinations must also be made of what consist of the refugee protection in South Africa.
The uniqueness of South Africa to chart a humane policy for the protection of refugees does not only flow from acceding to international refugee treaties but also from the spirit and objects of the post-apartheid constitutional order.
If the new White Paper claims that acceding to international refugee treaties without reservation was a big mistake, then it could be argued that a similar mistake might have been made by the drafters of the Constitution, who wanted certain rights in the Bill of Rights to apply to everyone. Those rights include socio-economic rights.
But a similar mistake might have been committed when South Africa adopted a non-encampment policy. This policy implies that refugees will have access to socio-economic and public services for their survival and development unless the government offers them humanitarian relief and assistance that will help them meet their basic needs.
The non-encampment policy was discussed extensively in the 2017 White Paper. It was concluded that “South Africa has adopted the policy for sound reasons because refugee camps attract major risks in terms of humanitarian, cost and security considerations”.
It should be noted that South Africa will still be bound by international refugee treaties even if it reneges on its commitment to protect refugees as envisaged by those treaties. The constitutional court in S v Makwanyane stressed that South Africa is bound by the rules of international law, which include those arising out of binding and non-binding treaties.
It is a constitutional imperative that any proposed migration regime be re-engineered in a manner that is consistent with international refugee treaties and informed by the Bill of Rights. It must promote the constitutional values that underlie an open and democratic South Africa.
The drafters of the proposed single migration regime must be mindful that refugees and asylum seekers are also protected in the Republic as minority groups. Prioritising the needs and considerations of citizens does not mean marginalising and discriminating against the powerless and voiceless. As vulnerable people, refugees and asylum seekers will still be protected by the courts.
The constitutional court in Makwanyane stressed that “the very reason of establishing a [constitutional order], and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process”.
South Africa should enforce existing laws and not introduce policies that will be hard to implement. Running away from its promises to protect refugees and depriving those present in the country of access to documentation is not a solution to illegal migration.
Dr Callixte Kavuro is a postdoctoral research fellow in the Department of Public Law at Stellenbosch University.