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Note: This document is from the archive of the Africa Policy E-Journal, published by the Africa Policy Information Center (APIC) from 1995 to 2001 and by Africa Action from 2001 to 2003. APIC was merged into Africa Action in 2001. Please note that many outdated links in this archived document may not work.

Southern Africa: HRW Migration Report
Date distributed (ymd): 980603
Document reposted by APIC

+++++++++++++++++++++Document Profile+++++++++++++++++++++

Region: Southern Africa
Issue Areas: +political/rights+ +security/peace+
Summary Contents:
This posting contains the table of contents and the summary from the March 1998 publication by Human Rights Watch concerning undocumented migrants, asylum-seekers, and refugees in South Africa. The full 236-page book is available for purchase from Human Rights Watch, and is available on the HRW web site (http://www.hrw.org/reports98/sareport). Additional background and links are available in documents from Southern African Migration Project (http://www.queensu.ca/samp) and the South African government green paper (http://www.polity.org.za/govdocs/green_papers/migration/migrate.html ).

+++++++++++++++++end profile++++++++++++++++++++++++++++++

"PROHIBITED PERSONS"

Abuse of Undocumented Migrants, Asylum-Seekers, and Refugees in South Africa

Human Rights Watch
350 Fifth Ave, 34th Fl.
New York, NY 10118-3299
Tel: (212) 290-4700
Fax: (212) 736-1300
E-mail: [email protected]
Web: http://www.hrw.org

CONTENTS

• I. SUMMARY

• II. RECOMMENDATIONS

  o Recommendations to the Government of South Africa

  o Recommendations to the State Institutions Supporting Constitutional Democracy

  o Recommendations to the Office of the United Nations High Commissioner for Refugees (UNHCR)

  o Recommendations to the Southern African Development Community (SADC)

• III. INTRODUCTION

  o Migration to South Africa Today

  o Brief History of Migration to South Africa

  + Labor Migration to South Africa

  + The Destabilization of the Frontline States by the Apartheid Regime

  + The Repatriation of Mozambican Refugees

  + The SADC Amnesty

• IV. THE TREATMENT OF UNDOCUMENTED MIGRANTS IN SOUTH AFRICA

  o Labor Exploitation

  o Abuses During the Arrest Process o Conditions of Detention

  o Unlawful Long-term Detention of Undocumented Migrants

  o The Deportation Process: The Train to Mozambique

• V. THE TREATMENT OF REFUGEES AND ASYLUM-SEEKERS IN SOUTH AFRICA

  o Asylum-Seekers in Detention

  o Corruption in the Asylum Process

  o Arbitrary, Uninformed Decisions

  o Rubber-Stamp Appeals Process

  o Police Abuse of Refugees and Asylum-Seekers

• VI. XENOPHOBIA AND ATTACKS AGAINST MIGRANTS

  o Xenophobic Statements by Officials

  o Attacks Against Foreign Hawkers

  o The Alexandra Riots against Foreigners

• VII. THE STALLED POLICY DEBATE
• Acknowledgments
• Appendix A: South Africa's Obligations under International and Domestic Law
• Appendix B: Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa
• Appendix C: Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live
• Appendix D: International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

I. SUMMARY

Although South Africa, since the first democratic elections in 1994, has made remarkable progress towards establishing a free and democratic society based on respect for the human rights of its own citizens, foreigners have largely failed to benefit from these developments and remain subject to serious abuse. Anti-foreigner feelings have also increased alarmingly. Politicians, the press, and the South African public commonly blame foreigners for exacerbating social problems such as rising crime, unemployment, or even the spread of diseases, and undocumented migrants have been subject to abuse by officials from the Department of Home Affairs, the police, and the army, as well as by the general public. In general, public attention has been focused on the allegedly socio-economic impact of migrants within South Africa, despite the absence of evidence to confirm these. In the process, attention has been diverted from the suffering and exploitation experienced by aliens as a result of official policies and xenophobic attitudes. This report seeks to document the experiences of foreigners in South Africa, including undocumented migrants, legal residents, asylum-seekers, and refugees, in order to add their voices to the debate on migration in South Africa. Human suffering should not be ignored in a country that only recently emerged from a system that degraded basic human rights and human dignity.(1)

[(1) 1. In this report, we use the term "undocumented migrants" to refer to all persons who entered South Africa without passing through formal border control procedures. The South African authorities normally refer to such people as "illegal aliens," a term Human Rights Watch considers objectionable because of the way it dehumanizes those with irregular immigration status.]

Human Rights Watch conducted an investigation of the treatment of undocumented migrants, asylum-seekers, and refugees in South Africa in 1996 and 1997. During the course of our missions, we visited several areas of the country, including Johannesburg and Pretoria, the Northern Province and Mpumalanga border regions with Mozambique, and Cape Town. We interviewed foreign farm workers, migrants in detention, asylum-seekers, refugees, hawkers, repatriated Mozambicans, and representatives of nongovernmental organizations (NGOs), as well as officials from the Department of Home Affairs, the South African Police Service, the Department of Correctional Services, the South African National Defence Force, and the Mozambican Department of Labor. We visited a number of detention facilities, including the private Lindela detention facility in Krugersdorp; Pollsmoor, Pretoria Central, Johannesburg Central (Diepkloof), and Modderbee prisons; and a number of police stations. Our findings indicate pervasive and widespread abuse of migrants in South Africa.

Abuses Against Undocumented Migrants in South Africa

The South African economy, especially its farming, mining, security, and construction sectors, relies heavily on the cheap and easily exploitable labor of undocumented migrants, mostly from Mozambique, Lesotho, Zimbabwe, and Swaziland. Undocumented laborers on farms work for a pittance, on average about 5 rands [U.S. $1 at an exchange rate of five rands for one U.S. dollar] per day. Because of the illegal immigration status of their workers, farmers can exercise tremendous power over them. Human Rights Watch interviewed a number of child laborers, some as young as fourteen, and our research indicates that physical abuse of farm workers is common. Police rarely investigate or prosecute farmers for abuses, and in some instances contribute to the exploitation of farm workers by deporting them without pay on the request of farmers who have employed them. In one instance, Human Rights Watch interviewed three young farm laborers who described how they had been kept on a white-owned farm against their will, without any accommodation, and were regularly beaten to make them work harder. After two weeks, they were finally paid at the rate of 5 rand [U.S. $1] per day, only to have their money stolen by the foreman who then called the police to have the young laborers deported.

South Africa has been deporting an increasing number of migrants each year since 1994, and reaching close to 200,000 people in 1997. Suspected undocumented migrants are identified by the authorities through unreliable means such as complexion, accent, or inoculation marks. We documented cases of persons who claimed they were arrested for being "too black," having a foreign name, or in one case, walking "like a Mozambican." Many of those arrested--up to twenty percent of the total in some areas by our calculation--are actually South African citizens or lawful residents, who often have to spend several days in detention while attempting to convince officials of their legitimate status.

Assault and theft by officials during the arrest process seems disturbingly common. We interviewed several persons who claimed to have been beaten and robbed of valuables by members of the army or police and obtained evidence of several other such cases. In some urban areas, especially Johannesburg, police often suggested a "fine" or a bribe as an alternative to arrest and deportation. One person told Human Rights Watch how the police had volunteered to drive him to a bank automated teller machine (ATM) to withdraw the money for a bribe, while two others told us how they were forced to pay for a beer drinking party and to give the arresting officers additional "beer money" before being released.

After arrest, suspected undocumented migrants are brought to a place of detention where they often wait for long periods before being deported. Human Rights Watch interviewed some people who had been unlawfully in detention for more than four months and documented a case in which a suspected undocumented migrant had been detained for more than a year. Migrants awaiting deportation are held at a private detention facility called Lindela, as well as at prisons, police stations, and army bases. Conditions of detention are usually far below internationally accepted minimum standards. Places of detention are often severely overcrowded, meals are insufficient, bedding was dirty and vermin-ridden, and detainees did not always have regular access to washing facilities. At Pollsmoor prison, migrants in detention often share cells with criminal suspects and are frequently robbed of their possessions and clothes by these criminal suspects.

At the private Lindela facility near Johannesburg, operated on behalf of the Department of Home Affairs by the Dyambu Trust, Human Rights Watch found numerous serious human rights abuses. Most troubling, we interviewed and photographed more than ten people who claimed to have been beaten by security personnel in three separate incidents in the week prior to our visit, and we obtained medical reports documenting their injuries. A young man from Lesotho had been brutally beaten over a period of several hours after complaining to security guards about the theft of his music tapes by security personnel. Although the Lindela management was aware of some of these incidents, no internal investigation appeared to have been instituted prior to our request for an investigation. The number of beds at Lindela was significantly lower than the average number of persons detained at the facility. Detainees also described many instances of corruption involving officials of the Department of Home Affairs at the facility and complained to Human Rights Watch about the quality of the food, the lack of phone access, and rude and violent behavior by the guards.

Repatriation to their home country is the final chapter in the journey of most arrested undocumented migrants. In some areas, deportees were not allowed to gather their often substantial belongings before being deported, thus virtually guaranteeing that they would return again to South Africa. Several people told Human Rights Watch about their experiences on the twelve-hour train ride to Mozambique, where they were verbally and physically abused by police guards, and where a substantial bribe often provided a final opportunity to escape deportation by being allowed to jump from the moving train.

Abuses Against Asylum-Seekers and Refugees

South Africa only began to abide formally by international refugee law after signing a Basic Agreement with United Nations High Commissioner for Refugees (UNHCR) in 1993. South Africa became a party to the Organization of African Unity (OAU) and United Nations (U.N.) refugee conventions in 1995 and 1996, respectively. The treatment of refugees and asylum-seekers in South Africa does not fully comply with international refugee law. There is no legislation implementing the South African government's obligations under these documents, so all refugee-handling procedures are governed by internal regulations of the Department of Home Affairs, leaving ample room for confusion and abuse of process. Human Rights Watch interviewed several asylum-seekers who had been in detention for up to three weeks at police stations, waiting for officials from the Department of Home Affairs to interview them. We discovered extensive corruption in the refugee determination process, with Home Affairs officials demanding bribes for the scheduling of interviews and for the granting of permits.

In addition to the impact of pervasive bribery and extortion, the refugee determination process is flawed in several respects. First, officials often make arbitrary, uninformed decisions that are inconsistent with the requirements of the U.N. and OAU conventions and guidelines for their implementation. Asylum-seekers from a number of African countries, including Angola, Mozambique, Tanzania, and Malawi, appear to have their asylum applications turned down as a matter of course. Refugee applications are determined by a panel which does not itself hear the applicants. Until recently, applicants denied asylum were not furnished with reasons for the denial, a practice which has now been rectified. Denied asylum-seekers can only appeal to a one-person appeal board which appears not to provide a genuine review of the case.

Xenophobia and Abuse of Foreigners

In general, South Africa's public culture has become increasingly xenophobic, and politicians often make unsubstantiated and inflammatory statements that the "deluge" of migrants is responsible for the current crime wave, rising unemployment, or even the spread of diseases. As the unfounded perception that migrants are responsible for a variety of social ills grows, migrants have increasingly become the target of abuse at the hands of South African citizens, as well as members of the police, the army, and the Department of Home Affairs. Refugees and asylum-seekers with distinctive features from far-away countries are especially targeted for abuse.

Human Rights Watch interviewed a number of refugees and asylum-seekers who claimed to have been assaulted by police. In one case, a Ugandan refugee told us how she had been arrested and violently thrown into a police van, then subjected to vile language and rough handling as she was transferred from one police station in Cape Town to the other. A Nigerian refugee hawker in Cape Town showed us his wounds from a recent scuffle with the police, in which he was manhandled and verbally abused for insisting that a police officer who had asked him for his papers identify himself first.

At least one asylum-seeker, Jean-Pierre Kanyangwa of Burundi, has died after apparently being beaten in police custody. Kanyangwa was arrested by police in Cape Town at about 11 a.m. on June 2, 1997, and was brought to the Department of Home Affairs at about 2 p.m. the same day in a bad condition. He was suffering from stomach pains, had urinated in his pants, and reportedly told a fellow Burundian that he had been beaten by the police. The police sergeant who brought Kanyangwa to the offices of the Department of Home Affairs refused to take him to the hospital, saying it was now a refugee problem, and left. Kanyangwa died from a ruptured spleen on his way to the hospital. A murder docket into the case has been opened.

Foreign hawkers, often asylum applicants with temporary residence permits, have repeatedly been the targets of violent protests and other forms of intimidation as local hawkers attempt to "clean the street of foreigners." During repeated violent protests in Johannesburg, South African traders and ordinary criminals have brutally beaten foreign hawkers, and stolen their goods. Hawkers interviewed by Human Rights Watch who were the targets of such abuse universally complained to us that the police had done little or nothing in response to their complaints. In many areas around Johannesburg, such as Kempton Park and Germiston, foreign hawkers have had to abandon their trade after repeated attacks and looting incidents in which the police failed in their duty under both international and domestic law to protect all persons. Human Rights Watch interviewed members of a large community of Somali asylum-seekers who had been forced to abandon their trade and who told Human Rights Watch that they now never left their overcrowded and impoverished compound unless they were in a large group, in order to protect themselves from attacks by hostile "locals."

A xenophobic climate in South Africa has resulted in increased harassment of migrants. Many people interviewed by Human Rights Watch described how they had been verbally abused by South Africans, and told to "go home." In some cases, verbal abuse led to physical attacks. In the township of Alexandra near Johannesburg, for example, Malawian, Zimbabwean and Mozambican immigrants were physically assaulted over a period of several weeks in January 1995, as armed gangs identified suspected undocumented migrants and marched them to the police station in an attempt to "clean" the township of foreigners. Similar but less extensive incidents continue to occur regularly in South Africa, and foreigners have received little protection from the police and other institutions.

The Stalled Policy Debate

The Aliens Control Act which currently governs all aspects of migrants control in South Africa is an archaic piece of apartheid legislation, at odds with internationally accepted human rights norms and the South African constitution. South Africa still remains without legislation specifically covering refugee determination procedures. In order to remedy these deficiencies, the government appointed a task group to draft a "Green Paper" policy document as a first step in drafting new legislation.

Many of the recommendations contained in the ensuing Green Paper on International Migration, finalized in May 1997, would help remedy the institutional and legislative deficiencies which are partly responsible for the human rights abuses discussed in this report. However, it appears that the reform process has stalled, and with the 1999 general elections appearing on the political horizon in South Africa, the window for migration and refugee legislative reform is rapidly closing. Without legislative reform, it will be difficult to address the problems and abuses existing under the current system, as many of these problems and abuses stem from fundamental deficiencies in the current legislation. In the meantime, without reform, Human Rights Watch fears that foreigners in South Africa will continue to suffer major and systematic human rights abuses.