V. THE TREATMENT OF REFUGEES AND ASYLUM-SEEKERS
IN SOUTH AFRICA
During the apartheid era, South Africa did not accede to the various international refugee conventions and administered its refugee policy on an ad-hoc basis. For instance, South Africa accepted and granted full citizenship status to a large number of mostly white persons fleeing from Rhodesia and Mozambique as the settler colonial systems in these countries crumbled, but refused to offer a similar welcome to black Mozambicans fleeing the South African-sponsored civil war in Mozambique. To this day, South Africa remains without specific refugee legislation, administering its refugee policy according to improvised procedures under the Aliens Control Act. The improvised nature of these procedures and the lack of clear guidelines have allowed for an unacceptable degree of bureaucratic discretion which can be easily abused, as our findings indicate.
Since an agreement with UNHCR in 1993 to abide by international norms in deciding refugee status, and its ratifications of the OAU and U.N. refugee conventions in 1995 and 1996, South Africa has received a significant number of asylum-seekers. Most are young males who have fled instability in such African countries as Angola, Somalia, the Democratic Republic of Congo, Liberia, Senegal, and Ethiopia, but South Africa is also experiencing increasing refugee flows from India, Pakistan, and Bangladesh. By January 1998, the Department of Home Affairs had received 38,143 applications for refugee status since 1993, and had taken a decision on 16,282 of these, while another 21,861 remained outstanding.(1) The Department of Home Affairs currently lacks the capacity to process asylum applications on a timely basis, and it routinely takes the department more than two years to decide on an application.
Unless their applications are suspected of being "manifestly unfounded," asylum-seekers are generally not kept in detention during the asylum determination process, which can take up to two years because of a staff shortage and a severe backlog of applications. Asylum-seekers normally receive a section 41 permit, which is a temporary (normally three-month) permit to remain in the country. "Manifestly unfounded" asylum applicants are kept in custody, because the Department of Home Affairs feels that "it would destroy all elements of Aliens Control if everyone who was arrested and detained and then applied for asylum was released."(2)
Human Rights Watch found only a few asylum-seekers in detention, mostly at relatively remote police stations. At the Komatipoort police station, we interviewed two asylum-seekers who had been in detention for a relatively long period. Jean-Pierre had fled his native Democratic Republic of Congo after his father, a former colonel in Mobutu's Forces Armées Zairoises (FAZ), was allegedly executed by members of the now ruling Allied Democratic Forces for the Liberation of Congo-Zaire (ADFL) in Lubumbashi on November 3, 1997.(3) He was arrested by the SANDF and brought to the Komatipoort police station on November 10, 1997, and had been in detention for more than three weeks when we visited him. He described to us how Home Affairs officials had attempted to come and interview him once, but he was out on a work site away from the police station:
Home Affairs came last Wednesday, the 26th of November, but they had taken us to work constructing tents, so I was not here. Thursday, they told me that Home Affairs would come back on Tuesday. Today is Tuesday, but nobody has come. They still have not done the interview. So I am waiting for more than three weeks. I cannot return to Zaire because they will kill me.(4)
A second asylum-seeker in detention at Komatipoort police station, Ofili Chucks from Nigeria, was arrested at the border between South Africa and Mozambique on November 19, 1997, and had been in detention since that date:
I came to South Africa on the 19th of November, I told them at the border that I wanted refugee status. So the police brought me here. Home Affairs never came to talk to me. The police tell me to go back, but I can't go back to Nigeria.... Since three weeks, we have been waiting for Home Affairs. So we are just working, working. Everyday we are working, we do construction, we wash the police men's cars, we clean the toilet. They just call us to work....They just tell me "there is no war in Nigeria, no war in Nigeria, just go home," but they don't let me tell my story.(5)
Corruption in the Asylum Process
Interviews and research conducted by Human Rights Watch suggest high levels of corruption in the refugee determination process, especially in the Johannesburg/Pretoria area.(6) Almost without fail, asylum-seekers and refugees interviewed in the Johannesburg/Pretoria region mentioned to us that they were asked for a bribe or a "fee" when they approached Home Affairs officials for documents. The alleged bribery incidents took a few familiar forms: persons were often asked for a "cool drink" after approaching officials, or they were promised an earlier interview date for a "fee," or they were approached by one of the translators who offered a speedy resolution of their application for a "fee." The process of applying for refugee status was explained by one asylum-seeker interviewed by Human Rights Watch:
I applied at Home Affairs in Braamfontein, and my middleman was a Congolese translator. They gave me a very long period to process the application, three weeks. If you are not there when they call your name, they eliminate your papers. So you have to go every day from morning to evening, they told me. When I went out, the Congolese told me that if I could provide a "cold drink" he could help me out. He was asking 300 rands [U.S. $ 60]. Given the long wait, I bargained with him. He extorted 100 rands [U.S. $ 20] from me, and then he said we were brothers. I saw a lot of Chinese, Indians, Pakistanis, and Nigerians, they just walk in and pay the cash. Everything is negotiable. They are not short of customers so they don't want to waste their time: Either you pay the money or you walk....They keep reminding you that the police will pick you up, the Congolese even told me that the police would flog me, and when you are from Africa, that makes you fearful.(7)
Many other similar accounts about bribery and extortion by Home Affairs officials were told to Human Rights Watch by refugees and asylum-seekers, including the following:
Corruption in the refugee determination process seems especially widespread and systemic in the Johannesburg-Pretoria area. None of the refugees we interviewed who had been processed in Cape Town claimed to have been forced to pay bribes. When we discussed our Johannesburg findings with an immigration officer in Cape Town, he told us on condition of anonymity about his own experiences with asylum-seekers who had come from Johannesburg:
When we have people coming through from Johannesburg, they often try to pay a bribe, by leaving money on the chair or something like that. Or they give you the papers with a few bills in it. They are just used to having to pay, they don't know any other way.(15)
Arbitrary, Uninformed Decisions
Because no refugee legislation currently exists in South Africa, asylum applications are being determined under a rather arbitrary ad-hoc set of procedures which are explained in Appendix A to this report. Most of the refugee advocates interviewed by Human Rights Watch complained about the often uninformed nature of decisions made by the Standing Committee on Refugee Affairs which makes the initial decision on refugee applications. The Standing Committee often seemed to rely on outdated information, and at times dismissed information about human rights abuses in certain countries by referring to the personal experiences of members of the Standing Committee in those countries.
Our own interviews and observations suggest that the refugee officers who are responsible for offering an initial evaluation of an asylum application but do not make the decision are not provided with the necessary resources to form an informed opinion about the veracity of asylum claims, or about the actual human rights situation in a particular country. Refugee officers told us that their information about various countries is obtained from the newspapers they read and from listening to BBC and CNN news. Although it is admirable that refugee officers attempt to stay informed on the situation of the numerous countries that generate asylum-seekers to South Africa, this ad-hoc method does not provide the refugee officer with the specialized information necessary to make an informed decision.
It appears that a number of asylum applications are turned down because Standing Committee members feel that the countries in question are stable and do not generate refugees. This includes asylum-seekers from Angola, which continues to be plagued by unrest and widespread human rights abuses. A refugee officer interviewed by Human Rights Watch explained how he got an angry phone call from his supervisor when he recommended a Tanzanian for refugee status:
I told my boss that according to the U.N. principles, they had a right to be heard. But my boss said there was nothing going on in Tanzania, we are not going to accept Tanzanians here. "I've made my decision," he said, "these people are not going to fuck us around." Now the problem is with Mozambicans, Zimbabweans, Malawians, and Botswanans. We never accept any of these.(16)
Liesl Gerntholtz, senior legal officer for the South African Human Rights Commission, has expressed similar concerns about blanket denials of refugee status: "People have been deported to Mozambique without having had a chance to put their case, and in instances when they are not necessarily Mozambican."(17) Refusing to accept asylum-seekers from certain countries because they are believed to be stable is inconsistent with international law and the UNHCR Basic Agreement, which requires an individual determination of refugee status. It is entirely possible that an individual from, for example, Angola or Zimbabwe, can meet the requirements of either the U.N. or OAU definition of a refugee, even if there is no open warfare in the country at present.
On July 29, 1996, about 300 refugees and asylum-seekers from twelve African states gathered outside the offices of the UNHCR in Pretoria to protest against the unfairness of their refugee determinations, and requesting that the UNHCR assist them to resettle elsewhere.(18) After spending a night sleeping outside on the sidewalk, the police threatened to arrest the protesters, and they then moved their protest to the Union Buildings to present a memorandum to a representative of President Mandela.
At the Union Buildings, the police and Department of Home Affairs officials arrested 106 of the protesters, releasing twenty-four the next day because their papers were in order. According to press reports, at least twenty of the arrested protesters were ultimately repatriated to the Democratic Republic of Congo in late August, a time when serious allegations of human rights abuses and massacres where being raised against the Kabila government.(19) The arrests raise serious concerns about violations of the asylum-seekers' rights to peaceful assembly, free speech, and peaceful protest, which are protected under the South African constitution and international law.(20)
Originally, the detained protesters had been kept at police stations, including the Kameelsdrift police station, but they were transferred to Pretoria Central Prison after Lawyers for Human Rights, a leading South African NGO, lodged a complaint with the South African Human Rights Commission about the conditions of detention at the police stations. At Kameelsdrift, police officials used CS tear gas on the detainees at least once. Police officials claimed this was done when the detainees were "out of control," but the detainees claimed that the tear gas was used to break a short-lived hunger strike they had organized to protest their detention and conditions in the police cells.
Jackson Mafwala was one of the persons arrested during the Union Buildings protest, and he remained in detention at Pretoria Central Prison seventy-two days later, together with twenty-four other Zairians detained at the same time.(21) He claimed that about twenty-five of the protesters had been deported by the time of our visit. The Department of Home Affairs had originally promised the detainees that their cases would be decided within thirty days, but this period had long since expired. Goma Nsika Massala from the People's Republic of Congo, was also arrested at the Union Buildings protest. He claimed that officials from the Department of Home Affairs had forced them to sign deportation papers without giving any explanations, "you are not given the chance to read the paper."(22) The officials allegedly used profanity when coercing the detainees into signing the deportation papers, saying, "You have two choices, you choose to stay in prison or you sign here and fuck off."(23)
Until quite recently, the Department of Home Affairs was unwilling to furnish reasons for denials of asylum claims. This made appeals very difficult, as denied asylum-seekers had "absolutely no idea what they were appealing against."(24) Only in December 1996, the Department of Home Affairs agreed, as part of a consent order which settled a court case brought by an asylum-seeker, to furnish applicants with reasons. However, the refugee lawyers interviewed by Human Rights Watch found that the reasons given for denials remain "flimsy" and of little help in preparing an appeal.
The Appeals Board consists of a single person, retired advocate Leach of Pretoria.(25) Human Rights Watch asked several refugee lawyers and a refugee officer about the performance of the appeals board, and none could remember a single case in which Advocate Leach had overturned a negative decision of the Standing Committee. Statistics from the Department of Home Affairs indicate that out of a total of 519 appeals considered by Advocate Leach, only two appeals (one from a Bosnian applicant and another from a Burundian applicant) were granted.(26) One lawyer, speaking on condition of anonymity, questioned the qualifications of Advocate Leach in the area of refugee law and the sources used by Advocate Leach to reach his conclusions:
What worried us from the outset is the composition of the appeals board, which is a retired advocate from Pretoria who seems to be little more than a rubber stamp. He would often rely on atrocious hearsay. They wouldn't give us access to the information they used, which made it difficult to discredit the information. During the height of the fighting, they would say that the situation in Zaire was fine.(27)
Human Rights Watch believes that a panel consisting of several persons with experience in the area of refugee law would be a more appropriate body for the determination of asylum appeals.
Police Abuse of Refugees and Asylum-Seekers
Like undocumented migrants in South Africa, refugees and asylum-seekers often suffer abuse at the hands of an increasingly xenophobic public and police force. In some cases, asylum-seekers are the target of even more intense abuse than undocumented migrants, as they tend to come from regions farther away from South Africa (such as the Horn of Africa or the Indian subcontinent) and may sometimes be more easily identifiable because of physical appearance, mode of dress, and language. After the death of a Burundian refugee in police custody, UNHCR issued a statement addressing the rise in xenophobia in South Africa:
UNHCR notes with alarm the increasing incidents of harassment, beatings, arbitrary arrests, assaults, and murder of asylum-seekers and refugees, and the growing problem of xenophobia in South Africa. Since December 1996, at least six asylum-seekers from Angola, Burundi, and Somalia have been murdered in the Western Cape province alone.(28)
In both Cape Town and Johannesburg, Human Rights Watch interviewed a number of refugees and asylum-seekers who claimed to have been assaulted and harassed by police officials. In one case, Immaculate Stuurman, a Ugandan woman refugee who was the manager of Phillipi House, a shelter for refugee women, was repeatedly insulted and maltreated after being arrested at a nightclub in Sea Point, Cape Town. The refugees were violently thrown into a police van--Ms. Stuurman had her arm twisted painfully behind her back and her neck squeezed tightly--and then driven to an unmarked building in Cape Town.(29) "The way we were driven was very bad," Ms. Stuurman told us, "They would slam on the brakes, twist and turn on the road, and it was very scary."(30) Once in the van, Ms. Stuurman noticed that her wallet was missing.
Once inside the unmarked building, the refugees were allegedly verbally abused in a racist manner by the police officers, who called them kaffirs, baboons, makwerekwere (a derogatory name for foreigners) and other insulting names. One of the men, an Angolan refugee, was handled roughly as the police kicked his legs apart so they could search him. After dropping the male refugees off at Woodstock police station, Ms. Stuurman and another woman were driven around for several hours and were insulted again whenever they asked what was happening. Finally, at 3 a.m., they were dropped at the Kuilsrivier police station. The next day, the same policemen came to pick the two women up and threatened to bring Ms. Stuurman to Pollsmoor prison after she refused to respond to their personal advances.(31) When they were finally brought to Home Affairs, the police officer handed Ms. Stuurman her documents, and left almost immediately. Ms. Stuurman told us how her ordeal ended:
I was shocked and did not know how he had gotten my documents. In fact, my friends had brought him my documents the evening before. Yet they had kept me in jail and treated me like a criminal the whole night. The Home Affairs man looked at my documents and asked me why I was there. I told him he should have asked the officer who brought me, not me.(32)
Ms. Stuurman reported the case to the South African Human Rights Commission, which referred the case to the Independent Complaints Directorate of the South African Police Service.
Refugees and asylum-seekers complained about the rude and aggressive manner in which they were treated by the police and the unwillingness of police officers to identify themselves. Akinjole, a Nigerian trader, told Human Rights Watch what had happened to him after he refused to show a group of police officers his documents until they identified themselves:
I asked him [the police officer] to introduce himself before I showed him my paper and this made him angry. One said in Afrikaans that they should throw me in the truck. Six of them held me and started pushing me. I said we would not solve this with force and again asked them to identify themselves to me before I showed them my paper. They started pushing me and kicking me into the truck. When we got to the truck, I told them I was going nowhere with them. If they want to see my papers, they must call immigration or identify themselves to me as immigration. And then one of them took out handcuffs and forced them unto one of my hands. Two of them were in the truck pulling on the handcuffs and the others were kicking me.(33)
Akinjole showed us his injuries, which included bruises on his legs and a deep cut on the wrist of his right hand, allegedly from being kicked on the back of his legs and having the handcuffs pulled. The police ultimately relented and identified themselves, and Akinjole showed them his documentation proving his legal status. It appears that the cause of the incident was the police's refusal to identify themselves, despite a duty to do so under the circumstances.
At least one asylum-seeker, Jean-Pierre Kanyangwa of Burundi, died under suspicious circumstances while in the custody of the South African police service. Mr. Kanyangwa was arrested in Cape Town at about 11 a.m., on June 2, 1997, and according to witnesses appeared in good health at the time.(34) Burundian refugees told the press that Mr. Kanyangwa was thrown in the police van "like an animal," and alleged that Mr. Kanyangwa told them before he died that he had been beaten by the police.(35) Mr. Kanyangwa was brought by police officers to the refugee office of the Department of Home Affairs in Cape Town at about 2 p.m. the same day, and was in a bad condition:
When they arrived at the refugee office, the Burundian was suffering from stomach pains and lying on the floor....There was a foul odour coming from his body, and he had urinated in his pants.(36)
The immigration officer on duty asked Police Sergeant Kolashi, who had brought Mr. Kanyangwa to the refugee office, to take him to the hospital. Sergeant Kolashi refused, saying it was now a refugee problem, and left. Mr. Kanyangwa died on his way to the hospital. A post-mortem autopsy concluded that Mr. Kanyangwa had died from a ruptured spleen, "possibly brought on by trauma."(37) Although there was no significant external evidence of a beating, it appears that Mr. Kanyangwa was suffering from malaria which had swollen his spleen, and that his spleen could have been injured during a beating. A murder docket into the case has been opened.
While most refugees and asylum-seekers in South Africa live in private housing, there are a few church-sponsored "refugee camps" where refugees and asylum-seekers without housing can live. One such camp, the Ga'Rankuwa refugee camp outside Pretoria, was visited by Human Rights Watch. The camp houses about forty refugees from several West, North, and Central African countries in dilapidated dome tents. Residents told us how their camp had been raided on three different occasions by the Department of Home Affairs, the police, and the army. On the first occasion, residents claimed that the Department of Home Affairs had removed four Zairians from the camp who were repatriated to Zaire, including one woman named Marie Noel whom they claimed later died in the fighting in Zaire.(38) Home Affairs and the police came at about 5 a.m., and used expletives when talking to the refugees and asylum-seekers.(39) During the second visit, the camp was surrounded by military trucks at about 10 p.m., and the residents were told to stand in the rain while Department of Home Affairs officials went around writing down the names and document information for each resident.
At about 2 a.m. on November 10, 1997, a group of about fifty police officers, army personnel, and Home Affairs officials again raided the camp. "Doors were kicked in, and we were ordered at gun-point to come out of our tents with our hands on our heads like prisoners of war," Romario, an Ivorian resident of the camp, recalled, "We were then forced to sit on the bare ground at the central courtyard of our camp where the headlights of some military trucks were trained."(40) Apparently without a search warrant, the officials methodically searched the camp, going from tent to tent and even searching the toilet, ostensibly for weapons. The officials finally left after finding nothing, leaving behind torn tents and a destroyed latrine. "It was as though a hurricane had hit the camp," one resident commented.(41)
1. Department of Home Affairs fax to Human Rights Watch, dated January 27, 1998. A statistical analysis contained in the same fax shows that out of the 16, 385 applications considered by the department, 6,585 were rejected after consideration, 1,588 were rejected as "manifestly unfounded," 1,155 were canceled, 44 were granted immigration permits in terms of section 25 of the ACA (read with sections 28(2) and 23(a) of the ACA), 3,823 were granted temporary residence permits in terms of section 26 of the ACA (read with sections 28(2) and 23(b) of the ACA), and 1,067 were "referred." There is a slight discrepancy between these two sources, as one lists the total number of applications "finalized" at 16,282, while the other lists the number of applications "considered" at 16,385.
2. Claude Schravesande, "Government Policies and Procedures," at Asylum and Naturalisation: Policies and Practices, Refugee Rights Consortium Workshop, November 14, 1996.
3. Human Rights Watch interview with Jean-Pierre, Komatipoort Police Station, December 2, 1997.
5. Interview with Ofili Chucks, Komatipoort police station, December 2, 1997.
6. Information about the identities of the persons interviewed in this section has been withheld because Human Rights Watch believes that our informants' refugee status could be affected if their identities are revealed.
7. Human Rights Watch interview with TJ, Pretoria, December 3, 1997.
8. Human Rights Watch interview with BR, Pretoria, December 3, 1997.
9. Human Rights Watch interview with GM, Johannesburg, November 27, 1997.
10. Human Rights Watch interview with SW, Johannesburg, November 27, 1997.
11. Human Rights Watch interview with IA, Johannesburg, November 27, 1997.
12. Human Rights Watch interview with AA, Johannesburg, November 27, 1997.
13. Human Rights Watch interview with AN, Johannesburg, November 28, 1997.
14. Lawyers for Human Rights, "Statements Taken from Zairian Asylum Seekers at Pretoria Central Station," dated October 4, 1996.
15. Human Rights Watch interview with immigration officer, Cape Town, December 9, 1997.
17. Marion Edmunds, "Refugees Score in Fight for Asylum," Mail & Guardian, December 13 to 19, 1996.
18. The demands of the refugees and asylum-seekers were the following: "(1) Assistance from the UNHCR to resettle elsewhere; (2) protection from (sic.) the South African Government of the right of rejected asylum-seekers (to remain in South Africa) until they find another country of asylum; (3) the right of rejected asylum-seekers who consider that their applications have been spoiled or given unfair decisions, to be heard by a neutral tribunal; (4) re-settlement of rejected asylum-seekers in other countries with the assistance of UNHCR; (5) asylum-seekers who have had their applications rejected because of their country of origin, like Ethiopians, to have a fair assessment of political conditions there and to be given refugee status in this country; (6) all those who are given asylum to benefit from that right like financial assistance and work opportunities." Department of Home Affairs (Subdirectorate Communications), "Asylum-Seekers, Refugees held a Demonstration," dated July 30, 1997.
19. "20 Illegal Aliens Arrested at Union Buildings to be Repatriated," SAPA, August 20, 1996. For details on the human rights abuse claims raised against the Kabila regime at the time, see Human Rights Watch, "Transition, War and Human Rights," A Human Rights Watch Short Report, vol. 9, no. 2(A), April 1997; Human Rights Watch & Fédération Internationale des Ligues des Droits de l'Homme, "What Kabila is Hiding: Civilian Killings and Impunity in Congo," A Human Rights Watch Short Report, vol. 9, No. 5(A), October 1997.
20. Constitution of the Republic of South Africa (1996) Article 16 ("Everyone has the right to freedom of expression"), Article 17 ("Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions."). UDHR Article 19 ("Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers"), Article 20 ("Everyone has the right to freedom of peaceful assembly and association").
21. Human Rights Watch interview with Jackson Mafwala, Democratic Republic of Congo citizen, Pretoria Central Prison, October 11, 1996.
22. Human Rights Watch interview with Goma Nsika Massala, People's Republic of Congo citizen, Pretoria Central Prison, October 11, 1996.
25. The Department of Home Affairs has advertised for a second post for the Appeal Board, but this post has not yet been filled.
26. Department of Home Affairs, "Appeal Application--Refugee Status (Adv. Leach)," fax to Human Rights Watch dated January 27, 1998.
27. Interview with refugee attorney, Cape Town.
28. United Nations High Commissioner for Refugees, "UNHCR Press Statement: Death in Police Custody of an Asylum Seeker," dated June 14, 1997.
29. Human Rights Watch interview with Immaculate Stuurman, Phillipi House, Cape Town, December 11, 1997.
33. Human Rights Watch interview with Akinjole A.J. "Giant," Nigerian refugee hawker, Cape Town, December 11, 1997.
34. Marion Edmunds, "Refugee dies at Home Affairs," Mail & Guardian, June 13 to 19, 1997.
36. Sworn affidavit of John Peter Solomon, Immigration Officer, Department of Home Affairs, dated June 6, 1997.
37. Marion Edmunds, "Refugee dies at Home Affairs," Mail & Guardian, June 13 to 19, 1997.
38. Human Rights Watch interview with Thomas Jing, Cameroonian refugee, Ga'Rankuwa refugee camp, Pretoria, December 3, 1997.
40. Lawyers for Human Rights, "Raid at Ga'Rankuwa Refugee Camp," undated.