During the apartheid era, the regime tried to implement its vision of an all-white South Africa by stripping "African"(1) South Africans of their South African citizenship and attempting to remove them to remote and desolate "homelands."(2) To control the movement of non-white South Africans to its "white" cities, the apartheid state imposed a system called influx control, with a vast supporting bureaucracy. All Africans who traveled beyond the confines of their "homeland" were required to be in the possession of a pass, and inability to produce the pass on demand would lead to immediate arrest and deportation. Kader Asmal, a long-term human rights activist and the present Minister for Water Affairs and Forestry, described the impact of the pass law system in a recent book:
The laws restricting the right of Africans to free movement in their own country caused terrible suffering to many more than did the laws prohibiting interracial marriage and sex. The pass laws, restricting the physical movement of Africans to those areas endorsed in the pass books that they were required to carry, resulted in over 381,000 Africans being arrested in the year 1975-76, at the height of their use; and in over 12 million arrests over the period from 1948 to 1985.(3)
These laws exposed blacks to lives of humiliation and insecurity. Passes had to be produced upon the demand of any authorised official, a term that was defined to include any police officer and that, in practice, included any white who felt like harassing a black.(4)
Dr. A.B. Xuma, then president of the African National Congress (ANC), complained that "flying squads, pick-up vans, troop-carriers, and mounted police are all abroad irritating and exasperating Africans by indiscriminately demanding passes [and] handling them in an insulting and humiliating way."(5) The movements and migrations between urban and rural areas, which were largely a response to the policy of creating homelands, defied the heavy-handed tactics of influx control and pass laws. They were finally abandoned in 1986.
South Africa has made great strides in its efforts to establish a democratic, human rights centered society since the historic all-race elections of 1994. Yet for foreigners living in South Africa today, life continues to be fraught with difficulties disturbingly similar to those faced by black South Africans under the influx control system. South Africa has become increasingly xenophobic in recent years, with a large percentage of South Africans perceiving foreigners--especially, almost exclusively, black foreigners--as a direct threat to their future economic well-being and as responsible for the troubling rise in violent crime in South Africa. Foreign hawkers are routinely attacked on the street, and criminals seem to believe that they have the right to steal from foreigners. In certain townships such as Alexandra, near Johannesburg, the homes of migrants have been burned to the ground, and they have been told to leave the area or be targeted by violence.
Although Human Rights Watch recognizes the right of the South African state to regulate the entry and movement of foreign nationals within its borders in line with international law, we are concerned about the methods used to achieve this end. During our investigation, we interviewed numerous people who alleged that they had been beaten by police, army, or detention facility officials, and who often showed clear signs of recent violence. At least one asylum-seeker has died apparently after being beaten by police officers while in custody. Detainees also often complained about having money or other possessions stolen by officials when they were taken into custody. We received many allegations of bribery and corruption of police officers and home affairs officials.
In many detention facilities for undocumented migrants, Human Rights Watch found the conditions deplorable. Most were severely overcrowded. Some were lice-infested, unhygienic, smelly, and very dark and dank. At Pollsmoor, detainees received only two meals per day and had to wait for seventeen hours after their dinner at 3 p.m. until their morning meal at 8 a.m. Migrants were often arrested and brought to the detention facility with only the clothes on their back and were thus forced to remain in detention for long periods of time with only one set of clothes. Some of the persons interviewed by Human Rights Watch had been in detention for more than three months without money or a change of clothes. At Lindela, several inmates claimed they had been assaulted by security personnel and bore the marks of recent beatings. At Pollsmoor prison, detainees alleged that they had many of their possessions stolen by the criminal suspects with whom they were forced to share cells when they first arrived at the prison.
Many of the migrants interviewed by Human Rights Watch expressed a deep disappointment with the way they had been treated by the South African authorities, and by the South African public in general. One Nigerian refugee contrasted his own treatment at the hands of the South African police and the South African public with the way South African exiles where received in African countries during the apartheid struggle:
When I was young, we always talked about our brothers in South Africa and that we wanted them to be free. If a South African came to Nigeria, we welcomed him as a brother. The local people must learn about us.(6)
Benneth Mabaso, who claimed to be South African and alleged that his ID book had been destroyed by the South African police the week before our visit because he had a Mozambican inoculation mark, complained that,
We are still treated like under the apartheid system, always asking for our pass even though we are South Africans. Pass, pass, pass. It is still the same. It is very sad.(7)
Indeed, troubling similarities exist between the old apartheid pass law enforcement system and the current migrants control system. Pass law violations were the most common criminal charge during the operation of the influx control system. Today, arrests for violations of the Aliens Control Act clearly outstrip all other arrests. In 1997, the Department of Home Affairs "repatriated" 176,351 "illegal aliens," a startling average of 485 per day. The same institutional structures once responsible for enforcing influx control laws--including the Department of Home Affairs, the police, and the army--now enforce the system of migrants control. Most disturbingly, the heavy-handed tactics associated with influx control continue to be used to control migrants. Finally, despite the heavy-handedness and systematic abuses, the system of migrants control is as ineffective in controlling migration as influx control was in controlling the movement of black South Africans.
The new South Africa has seen a marked increase in the profile of migration related issues in the mass media. Much of this coverage is uninformed and perpetuates untested assumptions about the negative impact of migrants on the economy and on crime and drug abuse levels. There is little coverage of the systematic abuse of human rights in the implementation of the aliens control system, nor is there informed coverage of the underlying issues of labor exploitation which the current system clearly perpetuates. This report aims to redress one of these imbalances, and focuses on the systematic abuse of migrants at all stages of the aliens control system. South Africa has pledged itself to the creation and nurturing of a vibrant democratic society committed to a culture of human rights. In his inauguration speech, President Nelson Mandela pledged that "never, never and never again shall it be that this beautiful land will again experience the oppression of one by another ."(8) In the treatment of migrants within its borders, South Africa has a long way to go to make this promise a reality.
Migration to South Africa Today
Estimating the total number of migrants currently residing in South Africa is a difficult task. Recent estimates have shown a distinct upwards trend, as Professor Jonathan Crush explains in a recent study:
The numbers involved are a source of considerable controversy within South Africa, with wildly variable estimates being thrown around. Before 1994, most estimates of the total number of undocumented aliens were below two million (although even the basis of that figure is unclear). By late 1994, police were citing figures of eight million in total and 700,000 Mozambicans. This was hardly surprising; since those seeking more resources for policing were always likely to exaggerate the figures. More alarming was the pseudo-scientific justification for these kind of numbers. The Human Sciences Research Council (HSRC) conducted a methodologically suspect survey in 1994-95 and concluded that there were 9.5 million non-South Africans (not necessarily all undocumented) in the country.... In their latest unpublished report, the HSRC raises their estimate to as many as twelve million. These kinds of figures are waved around by the press, certain politicians and some commentators. Mathias Brunk has critically reviewed the figures and rightly concludes that "we have too little knowledge to justify any precise estimates or assumptions."(9)
Despite the unreliability of the popular estimates of the number of undocumented migrants in South Africa, certain public officials continue to invoke the highest estimates in order to suggest a state of crisis with regard to the presence of migrants into South Africa. For example, in his first introductory speech to Parliament, Minister of Home Affairs Mangosutho Buthelezi stated that "if we as South Africans are going to compete for scarce resources with millions of aliens who are pouring into South Africa, then we can bid goodbye to our Reconstruction and Development Programme."(10)
Most likely, the total number of undocumented or "illegal" migrants is significantly smaller than the alarmist numbers being tossed around by politicians and the media in South Africa. The lack of reliable data makes it impossible to put a precise figure on the number of undocumented migrants in South Africa, since by definition they are not officially recorded, but an educated guess would place the number somewhere between 500,000 and 1.5 million, significantly lower than the figures commonly quoted by the media and politicians.(11) Refugees and asylum-seekers are more easy to count, as most of them have approached the Department of Home Affairs for documentation. In January 1998, South Africa had received 38,143 asylum applications.(12)
It is clear, however, that South Africa is deporting a much larger number of undocumented migrants today than ever before. The number of deportations has steadily grown from 44,225 in 1988, to 96,600 in 1993, to 180,713 in 1996.(13) The vast majority of these repatriations, 99.5 percent in 1995, were of citizens of the neighboring Southern African Development Community countries. In 1995, Mozambicans alone accounted for 131,689 of the 157,084 persons repatriated, and Zimbabweans were the second largest group, with 17,548 deportations. Other countries with a significant number of repatriations in 1995 were Lesotho (4,073), Malawi (1,154), Swaziland (837), and Tanzania (836). Although figures for 1997 show a slight decline in numbers deported, they remain high: South Africa deported 176,351 persons in 1997, including 146,285 Mozambicans and 21,673 Zimbabweans.(14)
It is unclear whether this quadrupling of deportations in less than a decade is a result of a stepped-up campaign to identify, arrest, and deport migrants, or instead reflects a similar absolute rise in the total number of undocumented migrants in South Africa. Some of the deportees interviewed by Human Rights Watch felt that there had been a definite increase in the efforts to trace, arrest, and deport undocumented migrants from South Africa. When asked if Mozambicans were also deported by the previous government, one recent Mozambican deportee responded:
They were, but not the way it is happening now. Before, you could work for a year without having these problems. Now things are difficult. They arrest many people. You can't work for three weeks without getting arrested. If you have bad luck, you won't complete two days. Sometimes, they come and arrest you the day before pay-day, and you lose your money.(15)
Many migrants who are deported, especially those deported to neighboring countries, return almost immediately to South Africa. For some undocumented workers from these countries, arrest and deportation is a relatively routine, albeit unpleasant, part of working and residing in South Africa. Police and army officials repeatedly told Human Rights Watch about migrants whom they had arrested and deported dozens of times, and many of the persons interviewed by us had been previously deported--and frequently told us that they would return again to South Africa. Thus, deportation statistics are not a reliable method to estimate the total population of undocumented migrants in South Africa, since the same person is often counted multiple times. The creation of fourteen Internal Tracing Units within the South African Police Service since 1994, and the increasingly visible role of the South African Defence National Force in migrants control suggests that the rise in repatriations is at least partly related to a rise in aggressive enforcement of immigration control laws.
Brief History of Migration to South Africa
Labor Migration to South Africa
South Africa has for well over a century been the center of an extensive system of labor migration in the southern African region. Foreign mine workers have traditionally made up at least forty percent of the South African mine labor force, and in the 1960s foreigners represented eighty percent of mine workers.(16) Mozambique, Botswana, Lesotho, and Swaziland have historically provided the bulk of the mine labor, with Zimbabwe and Malawi providing smaller numbers. Work on the mines is one of the most important employment opportunities available to citizens of the main source countries, and these countries depend heavily on the income produced which returns to the home country through a system of mandatory remittances. For example, a 1995 World Bank study commented on the importance of mine work to Lesotho's economy:
Most important is Lesotho's export of human capital to South Africa, hence, its reputation as a labor pool for South Africa's mines. The 1986 census found that nearly half of Lesotho's adult male workers were employed in South Africa. In the 1980s, remittances from Basotho laborers working in South Africa accounted for about half of country's gross national product (GNP), and equaled 100% of its gross domestic product (GDP). Today, about 40 % of the Basotho male labor force is employed in South Africa, and remittances account for a third of GNP.(17)
Historically, this migration system was regulated through a highly formalized system of bilateral contracts with neighboring countries for the purpose of supplying labor to the mines and for the large farms. These bilateral intergovernmental treaties regulated the terms of employment and conditions of access to the South African labor market, including recruitment procedures, wages, mandatory remittance procedures, and the appointment of labor officials to oversee and protect the interests of the foreign workers.(18) The entire process was implemented by the privately run Employment Bureau of Africa (TEBA) which has historically monopolized mine recruitment in Southern Africa.
The post-apartheid government inherited a series of bilateral labor agreements with the governments of Mozambique, Lesotho, Botswana, Swaziland, and Malawi.(19) Foreign mine workers continue to be a large component of mine labor--currently estimated at about 200,000 persons or 50 percent of all mine workers--but the South African transition is having a major impact on the bilateral treaty system. The South African Department of Labor has proposed abolishing the bilateral labor agreement system, arguing that the treaties "do not conform in many respects to ILO norms and standards, that they are not uniform and that they are outmoded."(20) The South African government announced an amnesty in 1995 aimed at offering permanent residence status to foreign mine workers who had been in the country since 1986 and a significant number of foreign mine workers accepted this offer. An increasing number of foreign miners are being recruited through a sub-contracting system, a process that classifies them as temporary workers and exempts them from union wage agreements, death and benefit schemes, and retirement saving schemes.(21) Sub-contracting takes place both through the TEBA-administered system and through the direct recruitment of undocumented workers within South Africa. Improved working conditions on the mines have attracted an increasing number of South Africans to the industry, while at the same time the overall number of jobs available on the mines has declined, leading to heightened tensions between local and foreign miners and contributing to the outbreak of violence on some mines.
South Africa has had similar arrangements in place to regulate the employment of undocumented workers on South African farms. In the case of Mozambique, a labor office in Nelspruit and a recruitment office in Ressano Garcia aid South African farmers to obtain the required documents from the Department of Home Affairs for the recruitment of Mozambican labor. However, the ready availability of undocumented migrant farm workers prompts many farmers to flout the official recruitment procedures. Officially, a farmer is supposed to apply for a permit from the Department of Home Affairs which allows him legally to recruit a number of foreign farm workers, after a determination by the Department of Home Affairs that he cannot find adequate local labor. The undocumented migrants--most often, the farmer just recruits among the undocumented migrants already present in the region--then receive temporary work permits that legalize their status. In reality, many farmers never apply for the permit, partly because of the complex and time-consuming process and partly because an illegal worker is unlikely to approach the authorities about abuse because of fear of deportation. Even where a farmer has legalized his workers, the employee rarely benefits. In many cases, the farmer will keep the documents conferring legal status from the employee, thereby effectively forcing the employee to stay on the grounds of the farm because he could otherwise be apprehended and deported.
The Destabilization of the Frontline States(22) by the Apartheid Regime
One of the main causes of migration between the Southern African Development Community (SADC) states and South Africa is the high level of economic disparity in the region. For example, South Africa's per capita GNP is thirty-five times greater than that of neighboring Mozambique.(23) For some citizens of poor neighboring states, labor migration to South Africa is the most promising means of overcoming economic deprivation and ensuring the continued survival of the household in Mozambique. Army officials told us how Mozambican children would sometimes cross the border solely to beg for food from the soldiers. The importance of this economic disparity in fueling migration is demonstrated by the comparatively low level of migration to South Africa from its neighbor Botswana, a country which has per capita income levels comparable to those of South Africa.
The causes of Southern Africa's economic stagnation are complex, and are at least partly caused by economic mismanagement and the pursuit of misguided economic policies in the region. The apartheid state's campaign to destabilize its neighbors is also an important contributing factor. As neighboring states became independent in the 1960s and 1970s, they became increasingly vocal in their opposition to apartheid policies in South Africa and assisted anti-apartheid organizations within their borders. In response, the increasingly militaristic government in South Africa, led by then-State President P. W. Botha, announced in 1978 that it would pursue a "total strategy" against the "total onslaught" of its opponents.(24) Over the next decade, South Africa launched a major campaign aimed at destabilizing its critics in the region.
A complete reckoning of the impact of the destabilization campaign launched by the apartheid state is beyond the subject area of the current report. South Africa occupied Namibia until 1990, in the face of international condemnation by the U.N. General Assembly, the U.N. Security Council, and the International Court of Justice. South Africa backed the rebel groups National Union for the Total Liberation of Angola (União Nacional para a Independência Total de Angola, UNITA) in Angola and Mozambique National Resistance (Resistência Nacional Moçambicana, RENAMO) in Mozambique. When UNITA came close to defeat, the South African Defence Force (SADF, now renamed the South African National Defence Force, SANDF) repeatedly intervened directly in Angola, as for example in 1981 when an estimated 10,000 SADF troops invaded Cunene Province of Angola. Decades of South African-sponsored conflict in Angola and Mozambique led to an almost complete destruction of transportation systems, educational institutions, agricultural production, safe water facilities, and the entire economic base of these countries. In 1982, South African forces invaded the Lesotho capital of Maseru in search of anti-apartheid guerrillas, killing twelve Basotho and thirty South Africans in the process. A similar attack in Gaborone, Botswana, in June 1985 left twelve people dead.(25)
South Africa played an extensive role in supporting the rebel group RENAMO, thereby fueling armed conflict in Mozambique, source of the majority of undocumented migrants currently in South Africa. RENAMO received extensive support from the apartheid state. As Zimbabwe gained independence on April 18, 1980, the rear bases of RENAMO were transferred from Zimbabwe to new bases in the South African lowveld, especially Phalaborwa in the Northern Transvaal.(26) As discussed in an earlier report by Human Rights Watch on human rights abuses in Mozambique:
The transfer marked a turning point in the war, which, instead of dying down, soon began to escalate. The South African government used RENAMO as a tool for destabilizing Mozambique and as a bargaining counter against [President] Machel's support for the African National Congress (ANC); its aims were disabling Mozambique's infrastructure, bringing FRELIMO [Frente de Libertação de Moçambique, Front for the Liberation of Mozambique, the ruling party] to the bargaining table, and ultimately overthrowing FRELIMO and replacing it with a more amenable government.(27)
RENAMO's tactics soon earned the rebel movement a well-deserved reputation for savagery. RENAMO rebels often targeted civilian populations and were feared for their policy of mutilating civilians, including children, by "cutting off ears, noses, lips, and sexual organs."(28) In addition, RENAMO destroyed almost the entire infrastructure of Mozambique, in a calculated campaign targeting transport links, health clinics, and schools. Between 1980 and 1988, RENAMO destroyed an estimated 1,800 schools, 720 health clinics, and 1,300 buses and trucks.(29) Roy A. Stacey, a U.S. Deputy Assistant of State for African Affairs, responded to reports of RENAMO abuses in unequivocal tones which are worth repeating when assessing South Africa's responsibility for RENAMO abuses:
What has emerged in Mozambique is one of the most brutal holocausts against ordinary human beings since World War II.... The supporters of RENAMO, wherever they may be, cannot wash the blood from their hands unless all support for the unconscionable violence is halted immediately.... RENAMO is waging a war of terror against innocent Mozambican civilians through forced labor, starvation, physical abuse and wanton killings.(30)
The destruction of Angola's infrastructure followed similar lines. However, instead of relying solely on support for the rebel group UNITA, South Africa also conducted an extensive direct military campaign in Angola, involving thousands of troops. As described in an earlier Human Rights Watch report, "Through this war and extensive economic sabotage and widespread guerrilla warfare, UNITA and South Africa continue to devastate the country even further. Physical damages were estimated by the United Nations Security Council Commission as U.S. $ 17.6 billion between 1975 and 1985, the first ten years of independence."(31)
As post-apartheid revelations are making increasingly clear, the apartheid state carried out many more such destructive acts, overtly and covertly, in the region in order to bring its opponents into submission. One of its strongest tools was the economic embargo, especially against the landlocked states of Swaziland, Lesotho, and Botswana, which were heavily dependent on South African transport routes. One of the favorite targets of the destabilization campaign were the transport routes and oil supply lines in the region, which effectively disrupted any economic activity in the SADC states. A 1989 United Nations Children's Fund (UNICEF) report estimated that the South African destabilization campaign claimed 1.3 million lives and resulted in an economic loss to the SADC states estimated at U.S. $60 billion,(32) an estimate echoed by President Nelson Mandela who has put the loss of life at 2 million and the economic cost to the region at U.S. $62 billion.(33)
Although the past destabilization campaign features little in the public debate on migration today, some politicians have referred to this history and the questions of equity it raises, arguing that South Africa has a duty to redress the suffering it caused in the region with its past policies. Minister of Water Affairs Kader Asmal expressed such sentiments in a recent book:
The front line states, which became the flashpoint of the civilised world's revulsion against apartheid, bore an involuntarily large share of the costs of the global resistance. It is something we must not forget in current debates over regional cooperation--and when faced with xenophobic calls for the expulsion or demonisation of "illegal aliens" from next door. The culpability of the old South Africa, its continuing responsibility for ongoing suffering on our cross-border door step, cannot be so easily evaded.(34)
Mpumalanga premier Matthews Phosa has expressed similar sentiments, urging a regional approach to the migration issue which takes into account the negative impact of apartheid on the region.(35)
The Repatriation of Mozambican Refugees
As the South-African sponsored RENAMO-FRELIMO conflict in Mozambique began to escalate in 1984, significant numbers of Mozambicans fled the fierce fighting and sought refuge in the Gazankulu and KaNgwane homelands of South Africa. To make it to relative safety in South Africa, Mozambican refugees had to pass through an electric fence capable of carrying lethal voltages, and often spent four or five days walking across the Kruger Park, a huge game reserve along the Mozambican border, avoiding dangerous animals as well as border patrols. Many people died while attempting to cross the fence between 1986 and 1990, when the border fence carried a lethal current of 3,300 volts and 1,000 amps.(36) The refugees were never formally recognized by South Africa. Although the government did reach an agreement with the Gazankulu and KaNgwane homelands to house the refugees, this agreement restricted the refugees to the homelands.(37) By 1990, it was estimated that as many as 350,000 Mozambican refugees were living in the nominally independent homelands.(38)
The refusal of the South African government to recognize the Mozambicans as refugees prevented international agencies such as UNHCR from providing urgently needed services to them and exacerbated bad living conditions and lack of employment opportunities.(39) The refugees were not issued any identification documents by the South African government and were frequently arrested if they moved outside designated areas. Their uncertain status, the lack of government protection, and the lack of relief efforts made the desperate refugees easy targets for economic exploitation by farmers in the region.(40) The lack of documentation, in particular, still causes problems today.
The office of the United Nations High Commissioner for Refugees (UNHCR) had attempted to reach an agreement with the South African government about the status of the Mozambican refugees since as early as 1985, but was repeatedly rebuffed by the apartheid government.(41) Following the peace accord between RENAMO and FRELIMO in Rome in 1992, the South African government signed a Basic Agreement with UNHCR on September 6, 1993, followed by a Tripartite Agreement between South Africa, Mozambique, and UNHCR on September 15, 1993, under which the South African government belatedly granted "group refugee status" to the Mozambican population. Even then, identity documents were never issued to the refugees, so that their freedom of movement and to seek employment continued to be restricted to the homeland areas, even after they were formally abolished in 1994.(42)
Following the Tripartite Agreement, UNHCR began the implementation of a voluntary repatriation program for Mozambican refugees, aiming to resettle 240,000 Mozambican refugees over the following two years.(43) Judged by its initial goals, the voluntary repatriation program was a failure:
By the end of the repatriation in April 1995 the total number of people returned under the organised repatriation was 31,589, while the total returns to Mozambique from South Africa stood at 67,060 in December 1995, suggesting that UNHCR/IOM [International Organization for Migration] assisted less than half of those who wished to repatriate from South Africa. By contrast, an astonishing 80,926 Mozambicans were forcibly deported by the South African National Defence Forces and South African Police in 1993 alone, followed by 71,279 in 1994, despite the fact that the Government's official position was that "The voluntary character of the repatriation operation would be adhered to until the Cessation clause was invoked, after which the residual caseload would be dealt with in terms of the Aliens Control Act."(44)
In May 1996, a meeting of the Tripartite commission between the governments of Mozambique and South Africa and the UNHCR resolved that: "In view of the peace and stability which have returned to Mozambique and the fundamental and sustained change that has taken place, Mozambican refugees will not have refugee status after 31 December 1996. ... The status of Mozambicans who elect to remain in South Africa after 31 December 1996 will be determined according to accepted international principles and the applicable South African laws."(45)
In early 1996, the South African cabinet agreed to grant a limited amnesty to nationals of Southern African Development Community (SADC) countries. According to the conditions announced by Minister of Home Affairs Mangosuthu Buthelezi on June 4, 1996 and additional conditions contained in internal Department of Home Affairs guidelines, citizens of the SADC countries would be granted permanent residence if they could prove they had continuously lived in South Africa since at least July 1, 1991, had no criminal record, and were either economically active or married to a South African, or had dependent children who were born or were residing lawfully in South Africa.
The Department of Home Affairs had originally stated that out of an estimated two to four million undocumented migrants, they expected "about one million of them to qualify for permanent residence in terms of the recent cabinet decision in this regard."(46) Minister Buthelezi stressed later that the amnesty should not be seen as a relaxing of immigration controls:
South Africa has extended a gesture of goodwill to its neighbouring countries by granting these exemptions. This gesture should not be construed as a softening of our approach to illegal immigrants. To the contrary, it provides the moral high ground, after a period of discrimination, to deal with the problem stricter according to the Aliens Control Act.(47)
In light of the expectations of the cabinet and the Department of Home Affairs, the SADC amnesty proved a failure. Only 124,073 persons were granted permanent residence, out of a total of 201,602 applications, while 77,108 persons were rejected.(48) Another 50,692 migrant workers were granted permanent residence under a separate amnesty previously announced by the Department of Home Affairs after discussions with the National Union of Mineworkers, bringing the total to about 175,000, still far short of the expected one million.(49)
The reasons for the low take-up of the SADC amnesty are complex, but include a general lack of access to information among the target population due to poverty and illiteracy, costs associated with applications, fear of detection, as well as corruption within the application process. Many Mozambicans live in rural areas and illiteracy rates are high, so news of the amnesty only reached many eligible persons during its final weeks. Others were afraid that the information obtained by the Department of Home Affairs would be used to deport them if their application was turned down, a fear which seems to have been justified. Human Rights Watch interviewed three rejected applicants who received instead seven-day permits and were told they had to leave the country within this period.(50) Repeated visits--first to apply, then to check criminal records, again to bring supporting documents and to check on the progress of the application--to often far-away Home Affairs offices also placed the process beyond the reach of many families, who found the cost of taxi fare and loss of work hours too expensive.
One of the major impediments to an effective amnesty process was the petty corruption that accompanied it. According to Refugee Research Project coordinator Nicola Johnston,
It was too expensive for many to travel to the local Home Affairs office to make the applications. There were also hidden costs of corruption, which made it difficult for them. Headmen, for example, were charging about nineteen rands [U.S. $ 3.80] for a referral letter stating how long the person had been in the country, clerks were demanding six rands [U.S. $ 1.20] to take fingerprints, and people were having to pay twenty rands [U.S. $ 4.00] to clerks to speed up their applications.(51)
Tribal authorities were often called upon to write a referral letter to prove the applicant's length of stay in the area, and used this opportunity to ask for a "fee," sometimes referred to as "chief's money," ranging between ten and ninety rands [U.S. $ 2-18]. One applicant stated that "the Tribal Authority refers us to the chief to fetch a referral letter, and the referral letter costs ninety rand [U.S. $ 18]."(52) Another applicant told of a similar experience, stating that,
we knew about the amnesty, it has been broadcast over the radio. The problem is that the Tribal Office wants a sum of twenty rands [U.S. $ 4], to give you a referral letter, proving that you are a resident of New Forest. So you are supposed to take that letter to Thulamahashe to apply for amnesty. So the money we are spending for amnesty is thirty-five rands [U.S. $ 7], because at Thulamahashe we are supposed to pay fifteen rands [U.S. $ 3] for photos.(53)
Women in particular had a difficult time applying for the amnesty, especially in rural areas. The application model envisioned a principal applicant filling out the form for an entire family, but this was complicated by the fact that many eligible women live in remote rural areas while their husbands work in urban areas. In the traditional culture, men are regarded as the head of the household and wives have to seek permission from their husbands before taking a significant step such as applying for amnesty. In the words of one Mozambican woman, "I am married and could not do anything without the permission of my husband."(54) This strong male bias was reinforced by Home Affairs officials, who often told unaccompanied women applicants to return and apply with their husbands if married:
On my first day, they told me to come with a letter from the tribal office, and I did as I was told. Then the following day I came with that letter, and they said to me that I must come with my husband. I don't know where to find him, because he is not here. He is at his work place. He left here a long time ago. He has been away for more than a year now, and I have not heard from him. So how am I supposed to go there with him, when I don't know where he is? This is really frustrating. When we heard that we must go and apply for ID books, we thought that everybody was encouraged to do so, only to find that it is really difficult for women.... I have already lost courage of getting there again. I will not go there anymore. Maybe if my husband was here, I would have applied already.(55)
Amnesty applicants who were denied were told they could appeal these decisions within thirty days but were often not furnished with reasons for their denial, making it very difficult to offer an effective appeal against a negative decision. Because of these and other problems, many eligible candidates for permanent residence status did not apply for the SADC amnesty and continue to live in South Africa while classified as "illegal." This is particularly unfortunate as the SADC amnesty was seen as a rectification of the injustices of the apartheid period, when black immigrants simply were ineligible for permanent residence status due to racist legislation.
According to the Department of Home Affairs and the Chair of the Parliamentary Portfolio Committee on Home Affairs, Desmond Lockey M.P., the cabinet has approved an additional amnesty which will focus exclusively on former Mozambican refugees still living in South Africa.(56) This additional amnesty grows out of the Tripartite Agreement between South Africa, Mozambique, and UNHCR on the repatriation of the Mozambican refugees, which resolved that "The Status of Mozambicans who elect to remain in South Africa after 31 December 1996, will be determined according to accepted international principles and applicable South African laws."(57) It presumably represents a recognition that many "Mozambicans" who fled their country during its civil war have in fact been in South Africa for a decade or more, or have grown up in South Africa, and have never had their status satisfactorily regularized, despite the Tripartite Agreement between the South African and Mozambican governments and UNHCR. Although this decision was taken by the cabinet in the middle of 1997, the Department of Home Affairs is continuing to work out the actual procedure that will be followed to determine the status of applicants. According to Mr. Schravesande of the Department of Home Affairs, the procedure is complicated by the fact that South Africa never recognized the status of the refugees, and the refugees were thus never registered or issued with documents which could now be used to prove their past status. Human Rights Watch hopes that some of the deficiencies of the previous amnesty process will be addressed and remedied by the Mozambican refugee amnesty process.
1. South Africa's complex racial classification system divided the population into different racial groups, which included "African" (of solely African ancestry), "Asian" or "Indian" (largely descended from indentured servants brought from the Indian subcontinent, but also including more recent Asian immigrants), "coloured" (of mixed ancestry), and "white" (of European ancestry). Persons were provided with different civil and political privileges depending on the racial category they found themselves in, with whites enjoying the most extensive civil and political privileges.
2. During the apartheid era, South Africa had sought to create a series of nominally independent homelands in order to implement its policies of apartheid, or "separate development." Each homeland was envisioned to belong to a distinct ethnic group; for example KwaZulu was seen as the homeland of the Zulus. In the implementation of this design, many South Africans were stripped of their South African citizenship, and forcefully removed to their homeland, often a place they had never before seen. The independence and legality of the homelands was universally rejected by the international community. As South Africa reached its historic negotiated settlement for a transition to a democratic government, it was decided to re-integrate the territories of the homelands into the territory of South Africa. As many homeland residents had been stripped of their South African identity documents, it became necessary to issue them with new South African identity documents. As discussed in this report, in the chaotic and rushed re-registration process, many non-South African homeland residents were able to obtain South African identity documents.
3. Kader Asmal, Louise Asmal, and Ronald Suresh Roberts, Reconciliation Through Truth: A Reckoning of Apartheid's Criminal Governance (Cape Town: David Philip Publishers, 1996), p. 80.
5. William Beinart, Twentieth-Century South Africa (Oxford: Oxford University Press, 1994), p. 152. Nelson Mandela similarly condemned the pass law system in his statement during the 1964 Rivonia Trial: "Pass Laws, which to the Africans are among the most hated bits of legislation in South Africa, render any African liable to police surveillance at any time. I doubt whether there is a single African male in South Africa who has not at some stage had a brush with the police over his pass. Hundreds and thousands of Africans are thrown in gaol each year under pass laws." Nelson Mandela, "Statement during the Rivonia Trial, April 20, 1964," in Thomas Karis, Gail M. Gerhart, and Gwendolen M. Carter, From Protest to Challenge: A Documentary History of African Politics in South Africa 1882-1964, Volume 3: Challenge and Violence 1953-1964 (Stanford, CA: Hoover Institute Press, 1977), p. 795.
6. Human Rights Watch interview with Akinjole A.J. "Giant," Nigerian hawker, Cape Town, December 11, 1997.
7. Human Rights Watch interview with Benneth Mabaso, Komatiepoort Police Station, December 2, 1997.
8. Nelson Mandela, "Inauguration Speech," Pretoria Union Buildings, May 10, 1994.
9. Jonathan Crush, "Covert Operations: Clandestine Migration, Temporary Work and Immigration Policy in South Africa," South African Migration Project, Migration Policy Series, No. 1 (Cape Town: South African Migration Project, 1997), p. 18.
10. National Assembly, "Minister of Home Affairs: Introductory Speech, Budgetary Appropriation," August 9, 1994.
11. Jonathan Crush, "Exaggerated Figures Are Creating a Xenophobic Atmosphere," Business Day, June 30, 1997.
12. Department of Home Affairs fax to Human Rights Watch, dated January 27, 1998.
13. Crush, "Covert Operations," p.21.
14. Department of Home Affairs, "Repatriation of Illegal Aliens," statistics supplied to Human Rights Watch via fax dated January 27, 1998.
15. Nicola Johnston and Caetano Simbine, "The Usual Victims: The Aliens Control Act and the Voices of Mozambicans," in Jonathan Crush (ed.), Beyond Control: Immigration Policy in a Democratic South Africa (Cape Town, South African Migration Project, 1998).
16. Jonathan Crush, "Contract Migration to South Africa: Past, Present and Future," Research Paper prepared for the Green Paper on International Migration, 1997. Available on the world-wide web at http://www.polity.org.za:80/govdocs/green_papers/migration/
crush.html (last visited February 10, 1998).
17. Sechaba Consultants, "Riding the Tiger: Lesotho Miners and Permanent Residence in South Africa," South Africa Migration Project Migration Policy Series No. 2 (Cape Town: South African Migration Project, 1997), p. 1.
18. Crush, "Covert Operations," p. 12.
20. Ibid, footnote 34, citing Guy Standing, John Sender and John Weeks, Restructuring the Labour Market: The South African Challenge (Geneva: International Labor Office, 1996), p. 177.
21. Crush, "Contract Migration," p. 6. The National Union of Mineworkers (NUM) has described the subcontracting scheme as representing a "new path to poverty and oppression."
22. The term "frontline states" refers to the southern African countries who suffered the brunt of South Africa's destabilization efforts in the region. These states later came together to form the Southern African Development and Co-ordination Conference (SADCC, now SADC), and included Angola, Botswana, Malawi, Mozambique, Namibia, Swaziland, Tanzania, Zambia, and Zimbabwe.
23. "Southern Africa Dreams of Unity," The Economist, September 2, 1995, p. 35.
24. Joseph Hanlon, Beggar Your Neighbours: Apartheid Power in Southern Africa (Bloomington, Ind.: Indiana University Press, 1986); Phyllis Johnson and David Martin, Apartheid Terrorism: The Destabilization Report (London: Commonwealth Secretariat and James Currey, 1989).
25. Asmal et al., Reconciliation through Truth, pp.175-76.
26. Alex Vines, RENAMO: From Terrorism to Democracy in Mozambique? (London: James Currey, 1991), pp. 18-19.
27. Africa Watch (now the Africa Division of Human Rights Watch), Conspicuous Destruction: War, Famine & The Reform Process in Mozambique (New York: Human Rights Watch, 1992), pp. 26-27.
29. Ibid. RENAMO's campaign against civilians was documented by a U.S. Department of State commissioned report which led to a significant decrease in U.S. support for the RENAMO movement, which had received some U.S. support by portraying itself as an anti-Marxist movement. See Robert Gersony, Summary of Mozambican Refugee Accounts of Principally Conflict-Related Experience in Mozambique: Report Submitted to Ambassador Moore and Dr. Chester A. Crocker (Washington: Department of State Bureau for Refugee Programs, 1988). While the Gersony report focused exclusively on RENAMO abuses, all parties to the conflict in Mozambique committed serious human rights abuses, as documented in the reports of Human Rights Watch and other human rights organizations.
30. James Brooke, "Visiting State Department Official Condemns Mozambique's Rebels," New York Times, April 27, 1988.
31. Africa Watch (now the Africa Division of Human Rights Watch), Angola: Violations of the Laws of War by Both Sides (New York: Human Rights Watch, 1989), p. 8. See also, Africa Watch, Land Mines in Angola (New York: Human Rights Watch, 1993), pp. 4-11.
32. United Nations Children's Fund, "Children on the Frontline--1989 Update," (New York: United Nations, 1989), pp. 11, 38. See also Southern African Development Coordination Conference (SADCC), "The Cost of Destabilization: Memorandum Presented by SADCC to the 1985 Summit of the OAU" (1985); United Nations Economic Commission for Africa, "South African Destabilization: The Economic Cost of Frontline Resistance to Apartheid," (New York: United Nations, 1989).
33. Nelson Mandela, "South Africa's Future Foreign Policy," Foreign Affairs 72 (5) (1993), p. 93.
34. Asmal et al., Reconciliation Through Truth, p. 175.
35. "Apartheid Created Southern Africa Refugee Crisis--Phosa," South African Press Association (SAPA), June 12, 1997.
36. Anthony Minnaar and Mike Hough, Who Goes There?: Perspectives on Clandestine Migration and Illegal Aliens in Southern Africa (Pretoria: Human Sciences Research Council, 1996) (estimating that 94 persons were electrocuted at the fence between 1986 and 1989).
37. Chris Dolan and Vusi Nkuna, "'Refugees', 'Illegal Aliens', and the Labor Market--The Case for a Rights Based Approach to Labor Movement in South Africa" (Acornhoek: University of Witwatersrand Rural Facility, undated), p. 3. The apartheid government's refusal to recognize the Mozambican refugees stands in sharp contrast to its earlier welcome of white Mozambican and Rhodesian settlers who decided to leave their countries after the overthrow of colonial regimes in these states, again showing the racial bias in immigration practices of the apartheid government.
38. Chris Dolan, "Policy Choices for the New South Africa," in Richard De Villiers and Maxine Reitzes (eds.), Southern African Migration: Domestic and Regional Policy Implications (Johannesburg: Centre for Policy Studies, 1995), pp. 53-8.
39. Crush, "Covert Operations," p. 17.
41. Dolan and Nkuna, "'Refugees'," p. 3.
42. Ibid. This practice continues to some extent today, as Human Rights Watch learned: Mozambican communities in the Bushbuckridge area, a former homeland, are relatively free from police harassment unless they try to move to urban areas.
43. Chris Dolan, "The Changing Status of Mozambicans in South Africa and the Impact of This on Repatriation to and Re-integration in Mozambique," (Final Report to Norwegian Refugee Council, February 1997), p. 2.
45. Joint Communique by the Deputy Minister of Home Affairs, South Africa, the Vice Minister of Foreign Affairs and Cooperation of Mozambique, and the United Nations High Commissioner for Refugees, dated June 3, 1996.
46. "Millions could get residence in SA," The Citizen, June 25, 1996.
47. Minister of Home Affairs Mangosuthu Buthelezi, "Parliamentary Media Briefing," February 13, 1997. The Minister continued: "I would, therefore, appeal to the various service departments such as welfare, education, housing, etc, as well as Provincial Governments as well as private employers, to request the identity documents or passports of all foreigners requesting services subsidized by the government and in this way ensure that they do not gain access to services in short supply to our own people."
48. Department of Home Affairs, "SADC Exemption Statistics: Grand total for the whole of South Africa," fax from the Department of Home Affairs to Human Rights Watch, dated January 27, 1998; "More than 100,000 SADC immigrants given citizenship," Star, April 11, 1997; "174,000 aliens to stay," Pretoria News, September 11, 1997.
49. "174,000 aliens to stay," Pretoria News, September 11, 1997.
50. Human Rights Watch interviewed two such persons at the Department of Home Affairs offices on Harrison Street, Johannesburg, on July 1, 1996, and a third person at the same location on July 2, 1996.
51. Marion Edmunds, "Another Amnesty offer after poor results," Mail & Guardian, April 25, 1997.
52. Nicola Johnston, "Permanent Residency Exemption for SADC Citizens: South Africa Welcoming its Neighbours or Monitoring 'Outsiders'?, The Case of Mozambicans in the rural Eastern border region of South Africa (Cape Town: Southern Africa Migration Project, 1997).
54. Ibid.; see Human Rights Watch, Violence Against Women in South Africa: The State Response to Domestic Violence and Rape (New York: Human Rights Watch, 1995) for a discussion of the law relating to women in South Africa.
55. Johnston, "Permanent Residency Exemption for SADC Citizens."
56. Human Rights Watch interview with Mr. Desmond Lockey M.P., Chair, Parliamentary Portfolio Committee on Home Affairs, New Parliament Buildings, Cape Town, December 9, 1997; Human Rights Watch interview with Mr. Claude Schravesande, Director, Admissions and Aliens Control, Department of Home Affairs, Pretoria, December 3, 1997.
57. Joint Communique by the Deputy Minister of Home Affairs, South Africa, the Vice Minister of Foreign Affairs and Cooperation of Mozambique, and the United Nations High Commissioner for Refugees, dated June 3, 1996.