Government Should Protect Victims to Ensure Justice
May 23, 2008
For justice to prevail, South Africa should protect these victims whose testimony is crucial in bringing their attackers to justice.
Georgette Gagnon, Africa director at Human Rights Watch

The government should ensure that victims of xenophobic violence remain in South Africa to participate in bringing their attackers to justice, Human Rights Watch said today.

Since May 11, 2008, the xenophobic violence spreading across South Africa has claimed 44 lives, displaced 20,000 people, and left countless victims injured and robbed of their property. Police have arrested more than 500 people on charges of public violence, malicious damage to property, and grievous bodily harm. The courts are currently processing their cases.

Human Rights Watch has learned that the courts have already dropped several cases owing to lack of evidence. Urgent government intervention is needed to encourage witnesses to provide evidence and to advance an effective justice process. Many of the victims of xenophobic attacks are undocumented foreign nationals who fled unrest in their countries, such as Zimbabwe, and are hesitant to participate in the justice process, fearing arrest and deportation because of their status.

“For justice to prevail, South Africa should protect these victims, whose testimony is crucial in bringing their attackers to justice,” said Georgette Gagnon, Africa director at Human Rights Watch. “Deporting the victims will send a clear message that xenophobic violence is above the rule of law.”

In South Africa’s current emergency situation, the government should guarantee undocumented migrants who have been victims of xenophobic attacks the legal right to temporarily remain in South Africa to participate in the justice process. Without such protection, the victims will likely abstain from providing evidence for fear of arrest and deportation, and justice will be denied. Should they be deported, they will not have an opportunity to participate in later criminal trials, compromising effective prosecutions. Accordingly, the minister of home affairs should use her discretionary powers under Section 31(2)(b) of the 2002 Immigration Act to guarantee immediate protection from deportation to these victims for the duration of the justice process.

“I came here because I am afraid of the police,” Joseph Nlovu, one of 700 foreign nationals currently sheltering in Johannesburg’s Central Methodist Church, told Human Rights Watch. “These attackers, they know that we are afraid to report crimes to the police because instead of investigating the police will just arrest us. So they think they can attack us and they won’t be punished because we will not go to the police. But they must be punished. They are murderers and criminals. I know some people who attacked my neighbor. I will report them to the police if they promise not to arrest me and send me back to Zimbabwe. It is even worse there.”

Mobs began attacking foreign nationals in South Africa on Sunday, May 11. Several thousand South African residents of Alexandra, a township north of Johannesburg, looted shacks of mainly Zimbabwean, Malawian and Mozambican nationals and demanded they leave the township immediately.

The attacks followed a May 11 meeting headed by Jacob Ntuli, leader of Umphakathi, a local community group, to discuss crime in Alexandra. During the meeting, local residents began blaming foreign nationals for the high crime rate and for “stealing” jobs and houses from South Africans. Residents at the meeting decided to forcefully evict foreigners from their neighborhoods and converged at 10 p.m. with guns, whips and knob-kierries (traditional weapons). With cries of “Khipha ikwerekwere” (kick out the foreigners), mobs attacked certain enclaves of shacks known to be inhabited by foreign nationals. The South African police intervened to stop the attacks and arrested 50 people that night on charges of criminal activities relating to public violence. They are among those currently in detention, awaiting trial.

Victims of xenophobic violence told Human Rights Watch the attacks continued in Alexandra for four days.

“The mobs started in Beirut informal settlement and then went on a rampage across Alex,” Frank Rasodi, an Alexandra resident, told Human Rights Watch. “They were attacking the foreigners day and night – they wanted to get them all out.”

By May 15, violence had spread to Diepsloot Township. On May 16, groups of South African residents of Olifantsfontein, Thokozo, Tembisa and Cleveland townships began attacking foreign nationals in their areas. By May 19, violent mobs had targeted foreigners in central Johannesburg, Hillbrow, Boksburg and Germiston. Violence spread to Mpumalanga and Kwazulu Natal provinces on May 20 and North-West and Western Cape provinces on May 22.

During the first night of attacks in Alexandra on May 11, 3,000 residents fled for safety to the Alexandra police station. More than 500 remain at Alexandra station under police protection.

“I cannot return to my shack,” Patricia Dlamini, a Zimbabwean, resident in South Africa since 1998, told Human Rights Watch. “The mob threw stones at me and my four-year old son when they broke into my house on Sunday night. They told me to get out and go back to my own country. My child was crying. We were terrified. They had guns – I heard them shooting. I ran with my child to the police station.”

After being threatened with rape and losing her home on May 19, Ntokozo Msebele, a Zimbabwean national, told Human Rights Watch that she now fears local residents, but is equally fearful of returning to Zimbabwe:

“It is hell there. There is no food, no work. At least in South Africa I had work. But what our future is here now, I do not know. The mobs took everything I have. We know now that we are hated in Alex.”

Police spokespersons have reported that the Cleveland police station is currently sheltering more than 300 people. Some 60 people are camping in Thokoza police station and 70 at Tembisa police station. Two thousand people have sought shelter in Germiston civic center, which is under police protection. All are foreign nationals who are fleeing or fearing violence. The root causes of this violence point to local residents’ anger over government failure to address the ongoing high crime, unemployment, lack of housing, and poor service delivery in impoverished areas.

“No amount of economic hardship and discontent can ever justify the criminal activities that characterize these attacks,” said Gagnon. “Justice must be done.”

Human Rights Watch calls on the Departments of Justice and Home Affairs to provide special protection to undocumented foreign victims of xenophobic violence while their cases are pending. The government should announce this policy to the South African Police Service and ensure its officials comply with this procedure in full accordance with the law.

“The victims of these attacks must have adequate protection against threats of deportation to facilitate a credible justice process and to encourage their full participation in legal proceedings,” said Gagnon. “Such protection would enable undocumented foreign victims to testify in court, and would serve as a deterrent to their attackers, who believe their victims are legally defenseless.”

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