IV. Zimbabweans in South Africa
Increased Numbers of Zimbabweans in South Africa
Since the sharp deterioration of the political and economic situation in Zimbabwe began in 2000, Zimbabweans have been forced to leave their country in increasing numbers. Those with enough money to pay for airfare, usually middle class professionals, have left for industrialized countries, above all the United Kingdom.1 However, most have gone to Zimbabwes immediate neighbors: Botswana,2 Mozambique, Zambia,3 and above all to South Africa.
Because the vast majority enter these four countries through informal border crossings and remain undocumented throughout their stay, there are no reliable statistics on the number of people leaving Zimbabwe.
In South Africa there is broad agreement that the rate of undocumented emigration from Zimbabwe to South Africa increased after 2005, the year in which Zimbabwean authorities destroyed 700,000 peoples homes and businesses, and when a sharp deterioration in the Zimbabwean economy left an increasing number in desperate economic need. Deportation statistics also suggest that there has been an increase in the past two years: in 2006 South Africa deported over 80,000 Zimbabweans and the rate in 2007 appears to have increased dramatically.4 In 2007 government and civil society have documented and commented on apparent increased entry into South Africa through informal border crossing points.5
By the beginning of 2008 there were probably between one and 1.5 million Zimbabweans in South Africa.6 Almost all entered and have remained in South Africa without visas or documentation of any kind.
Zimbabweans have been coming to work in South Africa for decades with a significant increase since 1990.7 Although there have always been a significant number of undocumented Zimbabwean workers in South Africa, much of the migration in the past has been legal (through work or trading permits), from the southern part of Zimbabwe, and circular, with Zimbabweans regularly moving back and forth across the border.8
In contrast, the current situation is unprecedented. Hundreds of thousands of Zimbabweans from all parts of their country9 have come to South Africa without permits to enter and remain because the situation in Zimbabwe has left them little other choice. Without fail, Zimbabweans interviewed by Human Rights Watch in October and November 2007 said that they had no intention of returning to live in their country until the crisis was over and they could once again find work and food for their families.10
Despite the unprecedented numbers of Zimbabweans crossing its borders and apart from its unsuccessful policy of deporting tens of thousands of Zimbabweans each year,11 the South African government has effectively turned a blind eye to their presence.
Instead of setting out a clear public policy with the governments assessment of the reasons for the influx as well as a frank admission of the challenges it faces in responding, the South African government has adopted a business-as-usual approach. It treats Zimbabweans like any other foreign nationals by requiring them either to obtain visitors permits or work permits, or to make an asylum application. The police or immigration services deport those who breach these requirements. No special arrangements have been put in place to respond to the significant humanitarian needs of particularly vulnerable Zimbabweans in South Africa, such as unaccompanied children and the sick (including PLWHA).12
In more political terms, the governments response is also questionable, using the medias language to generalize about Zimbabweans in a negative way. Most South African and international media refer to recent Zimbabwean arrivals in South Africa as if they were a single group of people all coming for the same reason. The media usually chooses emotive phrases such as a human tsunami, illegal immigrants, economic migrants, or border jumpers to describe, without distinction, the hundreds of thousands of Zimbabweans currently living in South Africa.
The government, like the media, tends to group all Zimbabweans together and uses legally imprecise and emotive language to paint a picture that suggests that Zimbabweans have all voluntarily left their country and that their motives are purely economic.
President Thabo Mbkei has referred to Zimbabweans in South Africa as this inflow of illegal people.13 South African police officers involved in arresting Zimbabweans before deportation are reported to have made comments such as, there is no war in Zimbabwe, implying that Zimbabweans cannot possibly have valid asylum claims.14 Officials from South African National Defense Forces (SANDF) and municipal councils working on the border have said that all Zimbabweans are economic migrants or not real refugees.15
The business-as-usual approach helps the government avoid publicly addressing two key awkward questions: why exactly are Zimbabweans coming to South Africa in increasing numbers, and what, in light of their reasons for coming, are South Africas legal obligations?
Over the past two years, however, the deteriorating situation in Zimbabwe has brought regional concern to a sharper focus. After brutal violence by Zimbabwean police on opposition members and civil society activists on March 11, 2007, leaders of the Southern Africa Development Community (SADC) convened an extraordinary summit. SADC mandated President Thabo Mbeki to mediate talks between the opposition party, the Movement for Democratic Change (MDC), and Robert Mugabes ruling Zimbabwe African National Union-Patriotic Front (ZANU-PF), with the objectives of securing agreement on constitutional reform ahead of March 2008 elections and ending the economic crisis.16
During its one year as mediator, the South African government repeatedly championed a quiet diplomacy approach. It avoided making statements that could have been interpreted as critical of President Mugabe, leading to widespread criticism that it was not sufficiently assertive. The government failed, for example, to hold President Mugabe accountable to undertakings made during the talks.17 In line with SADCs deafening silence on human rights abuses committed in Zimbabwe for the past eight years,18 the South African government also repeatedly failed to condemn the serious rights violations carried out by the Zimbabwean security forces.19
While quiet diplomacy may not have been an inappropriate starting point, the mediation initiative appears to have singularly failed to leverage change in President Mugabe and ZANU-PFs repressive practices. The fact of the violent crackdown that followed the parliamentary and presidential elections in March 2008 demonstrates the failure to send a clear message to President Mugabe that there would be consequences for failing to reach agreement with the MDC on how best to ensure free and fair elections.
As the ZANU-PF organized violence has intensified building up to the June 27, 2008 presidential runoff elections, South Africas response has remained deeply inadequate. Some regional leaders, for example President Levy Mwanawasa of Zambia, have been forthright in condemning the violence and criticizing the political situation in Zimbabwe. In contrast, President Mbeki has refused to acknowledge the serious nature of the situation, for example, failing during a visit to Harare on May 9 to condemn or call for an end to the violence even after he received a preliminary report on the violence from a group of South African former army generals he had appointed to investigate the situation.20
As Human Rights Watch has recently argued,21 these different positions have prevented SADC and the AU from taking concerted and decisive action to intervene in the crisis which has, in turn, emboldened the government of Zimbabwe to turn state institutions even more aggressively against Zimbabweans seeking democratic change and an end to the destruction of their countries economy.
The South African government must abandon its discredited quiet diplomacy approach towards Zimbabwe, and must urgently play a central role within the African Union (AU) and SADC to pressure the Zimbabwean authorities to end the current violence and their destruction of the democratic process.
Why Zimbabweans are Coming to South Africa: an Overview of a Mixed Flow of People
The governments approach fails to recognize that Zimbabweans are leaving their country for various reasons and that the vast majority are not voluntary economic migrants.
In October and November 2007 Human Rights Watch interviewed 99 Zimbabweans in or near Cape Town, Johannesburg, and Pretoria. Almost all interviewees came to South Africa in 2005, 2006, or 2007, and many had been in South Africa for more than two years.
Many Zimbabweans, probably in the thousands, have fled over the past eight years to South Africa to escape persecution in the form of arbitrary arrest and detention, torture, and beatings.22
Such persecution has once again reached alarming levels in the aftermath of the March 29, 2008 elections.23 Officials from ZANU-PF, often working through proxy forces of so-called war veterans and youth militia, backed by members of the armed forces and police, have used hundreds of base camps to beat and torture at least 2,000 suspected MDC activists and supporters. At least 36 people have been killed, including abducted MDC activists.
Abusive re-education meetings have been held to compel MDC supporters to vote for Mugabe. In one of these meetings, on May 5 in Chiweshe, ZANU-PF officials and war veterans beat six men to death and tortured another 70 men and women. ZANU-PF and its allies have engaged in a campaign of looting and destruction, slaughtering animals, stealing food and property, and burning down homesteads. More than 3,000 people are known to have fled the violence and are now internally displaced in cities and towns throughout the country, with inadequate access to food and water.
Although there are no statistics available, the political crackdown carried out by the government after the March 2008 elections has undoubtedly led to hundreds if not thousands of Zimbabweans fleeing their country to seek protection in South Africa and elsewhere.
Since 2000 such cases of persecution have been well-documented. However, because the number of such people is relatively small compared to the total number of Zimbabweans in South Africa, Human Rights Watch interviews for this report focused on two other groups of Zimbabweans who represent hundreds of thousands of people.
The first group is made up of those who were targeted by the Zimbabwean governments campaign of forced evictions in 2005. They told Human Rights Watch how they had lost their homes and businesses and how they had unsuccessfully tried to find a place to live in order to rebuild their lives in Zimbabwe. For months and years they continued to suffer serious violations of their rights to housing, work, and other rights in Zimbabwe. They have strong claims for refugee status.
The second group was made up of those who left Zimbabwe because they had found it increasingly hard to find work or had a salary that had no value because of inflation. Desperate to find work to help their families survive, they have come to South Africa because they have found no other way of coping with their economic destitution in Zimbabwe.
Many people interviewed (falling in one of the two groups) are HIV infected. Many told Human Rights Watch how they had been unable to afford even basic health care services or to access desperately needed ART in Zimbabwe.
When combined with testimony of political violence and intimidation,24 these different stories combine to create a picture of a mixed flowof people who are leaving their country for a mixture of reasons. 25 The final picture is a far cry from the simplistic illegal economic migrant image that is presented by the media and the South African government.
South Africa has specific legal obligations toward Zimbabweans who are lawfully present in South Africa. These fall into two groups.
The first group are people who have been granted one of the temporary residence permits provided for under South African immigration law.
The four types of permit most likely to be used by Zimbabweans coming legally to South Africa in recent years are visitors permits, cross-border trading permits, work permits, and special permits issued under the corporate permit system (used to employ large groups of people mostly on farms).26 When a Zimbabwean arrives at the border with one of these permits and a passport, the border authorities normally allow the person to enter.
There are no official government statistics on how many of each permit are granted to foreign nationals each year. Official statistics, which only cover certain types of permits, show that the total number of permits granted per year is around 60,000, and that the vast majority of these are visitors permits which do not grant the permit holder the right to work.27 It is, therefore, impossible to say how many Zimbabweans enter South Africa each year on the basis of a temporary residence permit.
The South African authorities obligation toward Zimbabweans with valid permits is not to return them to Zimbabwe unless they become prohibited persons or undesirable persons.28
The second group of Zimbabweans whose rights to enter and remain in South Africa are clearly set out in South Africa and international law are asylum seekers and recognized refugees. Between 2005 and 2007 some 44,423 Zimbabweans claimed asylum in South Africa, roughly one-third of all asylum claims in each of those three years.29
Once an asylum claim has been lodged the asylum seeker has a right to remain until the claim has been processed.30 As later sections of the report explain, the South African asylum system continues to fall short of what is required by law. Because its procedures are dysfunctional and have not, to date, considered Zimbabweans who were targeted by the 2005 forced evictions as being people with valid asylum claims, there is a high risk of Zimbabwean asylum seekers being unlawfully returned to Zimbabwe. Instead South Africa considers these people to be in the same position as any other Zimbabwean coming to South Africa to escape the current economic conditions there.
Although the South African constitution accords basic human rights to all, including Zimbabweans living in South Africa, regardless of their legal status,31 those Zimbabweans who do not have a temporary residence permit or who have not made an asylum claim or have not been recognized as refugees do not have the right under national or international law to enter or remain in South Africa.
Zimbabweans Assistance Rights and Needs in South Africa
The South African government not only faces the presence of large numbers of Zimbabweans on its territory, but also a Zimbabwean population with serious assistance needs.
As a matter of broadly stated law, everyone residing in South Africa, regardless of status, has the rights set out in South Africas Bill of Rights.32 But when it comes to the detail, the situation is less clear. In relation to the bills civil and political rights, such as the right to be free from all forms of violence and not to be arbitrarily detained, these unequivocally apply to everyone.33 In relation to the bills economic and social rights, the law spells out that certain of these rights belong to everyone, regardless of their legal status in South Africa: access to emergency and basic health care34 and access to a basic education.35 In the cases of other such rights in the Bill of Rights, including access to adequate housing, food, water, and social security, South African courts have not yet unequivocally recognized that these rights belong to everyone. In 2004 the South African Constitutional Court decided that such rights are enjoyed by permanent residents (as well as South African citizens).36
Foreigners, including Zimbabweans, with temporary residence permits (visitors or people with work-related visas) are not entitled to receive social welfare assistance, such as to housing and food.37
The 1998 Refugees Act provides that recognized refugees, including the small number of Zimbabweans recognized as refugees,38 have all the rights set out in the Bill of Rights. 39 However, in practice, recognized refugees have not been able to secure rights to social assistance. Two leading South African groups working on public interest cases, the Legal Resources Centre and Lawyers for Human Rights, have been at the forefront of using litigation and negotiation strategies to ensure that particularly vulnerable recognized refugees receive social assistance grants in the same way as people with permanent residency status in South Africa.40
It is arguable that like refugees, asylum seekers have all the rights in South Africas Bill of Rights, but this has yet to be tested in court. To date the government has not explicitly recognized asylum seekers rights to social security assistance.41 The 1998 Refugees Act is silent on asylum seekers right to housing assistance42 and non-health related social services such as food and social security. Thanks to civil society groups intense lobbying and threats of litigation, asylum seekers, including the 44,423 Zimbabweans who made asylum claims between 2005 and 2007, are legally entitled to work and study,43 and, if HIV infected, do not have to pay for ART.44
Despite these pockets of improvement, both refugees and asylum seekers continue to face serious obstacles in gaining access to many types of assistance to which they are legally entitled.45
Refugees continue to struggle to gain access to emergency and non-emergency health care, housing, and other forms of social security assistance. Despite these theoretical rights, there has been slow progress in giving them practical effect: there is no national or local government policy explicitly reiterating these rights or establishing procedures to help refugees claim them with service providers.46
Asylum seekers also face difficulties in gaining access to fee-based health care, and despite some improvements, continue to face significant difficulties in gaining access to ART.47 With respect to access to housing, little has changed for asylum seekers since Human Rights Watch reported on their housing situation in November 2005.48 Finally, ensuring asylum seekers are able to claim their right to work is an essential means of reducing their dependence on state assistance. However, Zimbabweans interviewed by Human Rights Watch repeatedly spoke of employers unwillingness to recognize asylum seekers permits as valid documents, a practice that has been documented for years and which could easily be changed through a concerted government information campaign.49
The needs of undocumented Zimbabweans in South Africa
The vast majority of Zimbabweans in South Africa, in the hundreds of thousands, are undocumented; they have neither temporary-residence nor asylum-seeker permits. They are, therefore, not entitled to access social services, with the exception of primary education and free emergency health care.50 They are also not entitled to work. The majority of Zimbabweans are, therefore, extremely vulnerable once they come to South Africa, a fact underlined by the recent violence against mainly undocumented foreign nationals that swept South Africa in May 2008.
Regardless of their legal status in South Africa, Zimbabweans generally live where they hope to find income and shelter: large numbers stay in the border areas where they work mainly on farms; 51 some work in industrial and mining areas; some go to townships on the outskirts of medium-sized towns;52 others, almost certainly the vast majority, go to the major urban centers of Johannesburg, Pretoria, Cape Town, Durban, and Port Elizabeth, where they are most likely to find informal work as domestic workers, street vendors, car watchers, and laborers on construction sites. These jobs are commonly referred to in South Africa as piece work, and are both hard to find and difficult to keep.53
Although there are no recent exhaustive, country-wide studies on the extent and nature of Zimbabweans humanitarian needs in South Africa,54 it is widely reported that they face difficulties in finding work, and that those who do find work are often underpaid and exploited.55
Zimbabweans in desperate need of accommodation, food, and health care often overwhelm South African charities and churches. Local service providers consistently cite accommodation as the Zimbabweans priority humanitarian need.56 In order to cope with their often desperate housing situation, most Zimbabweans seek support within their own communities, often living in very high numbers, in small shacks or rooms in rural areas, and in tightly packed flats in high-density parts of South Africas urban centers where dozens of Zimbabweans sleep in four-hour shifts.57 A more limited yet significant number find shelter with churches.58
South African charities have also noticed an increase in the number of highly vulnerable Zimbabweans in very poor health and often hungry coming to their doors.59 A number of interviewees working with these groups told Human Rights Watch that they feared that the continuing deterioration of the already dire circumstances in Zimbabwe will lead to ever greater increases in children, women, and elderly people coming to South Africa to survive.60
Until May 2008 the most striking evidence of Zimbabweans needs and vulnerability in South Africas urban centers was the Central Methodist Church in Johannesburg, which for a number of years has provided night-time shelter to 1,300 homeless Zimbabweans who sleep in highly cramped conditions side by side in the corridors, rooms, and on the stairs surrounding the churchs crypt.61 On the night of January 30, 2008, the South African police forcibly raided the church. They detained 800 people for a number of hours, a further 300 people for five days, and 68 for two weeks before the Johannesburg High Court ordered all of them to be released, describing the police raid as a brutal, indifferent, and cruel treatment of human beings.62 The raid is a high-profile example of the insecurity faced by Zimbabweans in South Africa.
In May 2008 this vulnerability was brought into sharp focus by the violence against them by South African citizens in many parts of the country. The violence killed at least 62 people, injured 670, and displaced over 100,000,63 and follows many similar isolated incidents that have taken place throughout 2007 and early 2008.64 To assist the 29,000 people who have been displaced by the recent violence and who have remained, homeless, in South Africa, the South African authorities have set up 99 temporary shelters in Gauteng, Western Cape, and KwaZulu Natal Provinces, in which UN agencies and nongovernmental organizations are to provide emergency assistance to the displaced. As of June 5, many of the sites did not comply with international standards governing the rights of displaced persons.65
1 Based on a compilation of official statistics, a December 2006 report prepared for the International Organization for Migration (IOM) concludes that 395,000 Zimbabweans are likely to be in the United Kingdom. IOM, Mapping Exercise, Zimbabwe, December 2006,
www.iomlondon.org/doc/mapping/Zimbabwepercent20Mappingpercent20Exercisepercent20Finalpercent20Report.pdf (accessed March 15, 2008).
2 Estimates for Botswana, Zimbabwes second richest neighbour after South Africa, are between 200,000 and 300,000. Stephanie Hanson, Botswana: An African Success Story shows Strains, US Council of Foreign Relations, January 10, 2008, http://www.cfr.org/publication/15108/(accessed March 2, 2008).
3 Mozambique and Zambia have both reportedly seen an increase in Zimbabweans crossing their borders but there are very few estimates available.
4 South Africas Department of Home Affairs (DHA) does not break down its annual deportation statistics by nationality. Between April 1, 2006, and March 31, 2007, South Africa deported 266,067 people. DHA, Annual Report, 2006-2007, http://home-affairs.pwv.gov.za/documents/Annual_Report_2006-2007.pdf (accessed March 4, 2008). Human Rights Watch has obtained unpublished DHA deportation statistics for the 2006 calendar year which state that Zimbabweans made up a little less than half (81,289) of the 165,270 deportations for that year. On file with Human Rights Watch. Other statistics in later sections of this report suggest that by March 2007 Zimbabweans were being deported at a rate of 18,000 per month (an annual rate of 212,000). Deportation statistics only have limited value in estimating the number of Zimbabweans in South Africa because they do not say anything about how many undocumented Zimbabweans are not identified and deported by the police and they include people who are deported more than once, counting each deportation as a new deportation.
5 The DHA has acknowledged that recently there have been record increases in the number of people entering South Africa illegally. DHA, Statement On Zimbabwean Nationals Entering SA, August 2007, http://www.dha.gov.za/media_releases.asp?id=419 (accessed March 3, 2008). See also, Forced Migration Studies Programme (FMSP) at Witwatersrand (Wits) University, Johannesburg, Facts or Fiction?: Examining Zimbabwean Cross-Border Migration into South Africa, September 4, 2007, www.migration.org.za/wordpress/wp-content/uploads/2007/10/fmsp-2007-b-zimbabwe-border-1.pdf (accessed March 2, 2008).
6 There are no reliable statistics on the number of Zimbabweans in South Africa. The South African government has made no statement. Studies by research institutions are geographically limited or target only specific groups. The most systematic study has calculated 800,000 one million. Daniel Makina, Survey of Profile of Migrant Zimbabweans in South Africa: a Pilot Study, University of South Africa, September 2007, www.idasa.org.za/gbOutputFiles.asp?WriteContent=Y&RID=1994 (accessed March 4, 2008). Some media reports have placed the figure as high as 3.5 million. The 2002 Zimbabwe census recorded 11.6 million people of whom 6 million were children. Unpublished information obtained by Human Rights Watch from the private think tank Robertson Economic Information Services (http://www.economic.co.zw/) concluding that around 2.7 million Zimbabweans from the 2002 census were economically active in 2002 (900,000 in regular employment, 700,000 in the informal sector, and 1,100,000 small-scale farmers) with a further 1,950,000 unemployed but potentially economically active, making a total pool of 4,650,000 working-age adults. (The remaining 1,450,000 were split between 450,000 adults too old to work and one million women bringing up children). Given that at least 500,000 mostly economically active Zimbabweans are in the UK and Botswana, that tens of thousands more are in other countries, and that at the very least 1.5 million actually or potentially economically active adults remain in Zimbabwe, the total number of Zimbabweans in South Africa is likely to be far less than 3.5 million. On the basis of this consideration and lower civil society figures, Human Rights Watch adopts the figure of one - 1.5 million.
7 Human Rights Watch, Unprotected Migrants: Zimbabweans in South Africas Limpopo Province, August 2006, vol. 18, no. 6(A), July 2006, http://hrw.org/reports/2006/southafrica0806/, pp.10-11; and Keep Your Head Down: Unprotected Migrants in South Africa, vol. 19, no. 3(A), February 2007, http://hrw.org/reports/2007/southafrica0207/(accesed March 5, 2008). For numerous reports and policy documents on migration into South Africa, see the Southern African Migration Project, www.queensu.ca/samp/.
8 There is no data on Zimbabweans average length of stay in South Africa. Some come for hours (cross-border shopping), some come for days (short-term jobs in the border areas), some stay for several months (to earn income on farms or in urban areas), and others stay for years (work and asylum). Human Rights Watch interviews with Zimbabweans in Cape Town, Johannesburg, and Pretoria, October-November 2007. As the situation in Zimbabwe deteriorates the length of period Zimbabweans stay in South Africa to work will inevitably increase.
9 Human Rights Watch interviewed almost 100 Zimbabweans in and around Cape Town, Johannesburg, and Pretoria in October and November 2007 who came from all parts of Zimbabwe with the majority coming from or near Harare.
10 Human Rights Watch interviews, Cape Town, Johannesburg and Pretoria, October -November 2007. The violence against foreigners in South Africa in May 2008 reportedly led to thousands of foreign nationals, including Zimbabweans, returning to their home countries. Available statistics at the end of May 2008 suggested that the vast majority (around 30,000) were Mozambicans, whilst according to the IOM working on the South African-Zimbabwe border, only a small number of Zimbabweans 123 returned to Zimbabwe after the violence. International Federation of Red Cross And Red Crescent Societies, South Africa: Urban disturbance DREF Operation No. MDRZA002 Update No. 1, 30 May 2008, http://www.reliefweb.int/rw/rwb.nsf/db900sid/EDIS-7F5QKC?OpenDocument&rc=1&cc=zaf (accessed June 1, 2008).
11 The ineffectiveness of South Africas deportation practice is looked at in detail in Chapter VII.
12 On the assistance needs of Zimbabweans in South Africa, see below pp. 34-37.
13 Speech to South African National Assembly May 17, 2007. Mbeki: Zimbabweans here to stay, News 24, May 17, 2007, http://www.news24.com/News24/South_Africa/News/0,,2-7-1442_2114967,00.html (accessed March 6, 2008).
14 Written submission by civil society organizations working on the refugee and asylum seekers human rights issue in South Africa for presentation to the minister of Home Affairs, The Documented Experiences of Refugees, Deportees and Asylum Seekers in South Africa: A Zimbabwean Case Study, April 2006, p. 7. Not available online. On file with Human Rights Watch.
15 FMSP, Facts or Fiction, p. 8.
16 SADC, Communiqué from the 2007 Extra-Ordinary Summit of Heads of State and Government held in Dar es Salaam, United Republic of Tanzania 28th to 29th March 2007, http://www.dfa.gov.za/docs/2007/sadc0330.htm (accessed June 6, 2008). For recommendations made by Human Rights Watch to SADCs annual summit in August 2007, see A Call to Action: The Crisis in Zimbabwe, SADCs Human Rights Credibility on the Line, August 2007, http://hrw.org/backgrounder/africa/zimbabwe0807/.
17 In a joint press conference in Johannesburg, South Africa, on February 21, 2008, the secretaries general of the MDCs two factions, Tendai Biti and Welshman Ncube, announced that the Zimbabwe government had reneged on agreements to implement a new constitution and make legislative reforms before elections were held. Mbekis Zimbabwe mediation has failed, IOL (South Africa), February 22, 2008, http://www.iol.co.za/index.php?from=rss_South%20Africa&set_id=1&click_id=13&art_id=vn20080222112349801C434308, (accessed June 6, 2008).
18 After the April 2007 annual meeting of SADC, President Mugabe said we got full backing: not even one [SADC leader] criticized our actions. Arnold Tsunga, Mugabes Enables, Washington Post, April 5, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/04/04/AR2007040402253.html (accessed June 6, 2008).
19 Tiseke Kasambala, Silence of the Lambs, Sowetan, April 4, 2007, http://hrw.org/english/docs/2007/04/05/zimbab15658.htm (accessed June 6, 2008).
20 Tererai Karimakwenda, Mbekis Generals Investigating Violence, SWRadio Africa, May 13, 2008, http://allafrica.com/stories/200805130957.html (accessed June 7, 2008); Mbeki sends generals to Zim, News 24, May 12, 2008, http://www.news24.com/News24/South_Africa/Politics/0,,2-7-12_2321153,00.html (accessed June 7, 2008).
21 Human Rights Watch, Bullets for Each of You: State-Sponsored Violence since Zimbabwes March 29 Elections, June 9, 2008, http://hrw.org/reports/2008/zimbabwe0608/.
22 Many reports from the past few years document Zimbabweans testimony about their fear of political violence and intimidation. For a leading report by a South African-based NGO dealing with Zimbabwean survivors of torture reporting on the testimony of Zimbabwean victims of civil and political rights violations who are now in South Africa, see Zimbabwe Torture Victims Project, Over Our Dead Bodies: A Story of Survival, June 2006, http://www.zimbabwesituation.com/ztvp_over_our_dead_bodies_0607.doc (accessed March 3, 2008). For recent Human Rights Watch reports on civil and political rights violations in Zimbabwe, see All Over Again, Human Rights Abuses and Flawed Electoral Conditions in Zimbabwes Coming General Elections, vol. 20, no. 2(A), March 2008, http://www.hrw.org/reports/2008/zimbabwe0308/; A Call to Action: the Crisis in Zimbabwe, August 2007, http://hrw.org/backgrounder/africa/zimbabwe0807/; Oral Submission to 41st Ordinary Session of the African Commission on Human and Peoples Rights on the Human Rights Situation in Zimbabwe, August 2007, http://hrw.org/english/docs/2007/05/18/zimbab15968.htm; Bashing Dissent : Escalating Violence and State Repression in Zimbabwe, vol. 19, no. 6(A), May 2007, http://hrw.org/reports/2007/zimbabwe0507/; You Will be Thoroughly Beaten, vol. 18, no. 10(A), November 2006, http://www.hrw.org/reports/2006/zimbabwe1106/.
23 Human Rights Watch, Bullets for Each of You.
25 The terms mixed flow or mixed migration are used by agencies such as UNHCR and IOM to describe a group of people who enter countries at the same time (or even by the same mode of transport such as boats or trucks) but who have different reasons for leaving their country. Because some are refugees and others are economic migrants (voluntary or involuntary), the debate surrounding how to deal with mixed flows is often referred to as the asylum-migration nexus debate. In his opening statement to UNHCRs Executive Committee (ExCom) on October 1, 2007, Antonio Guteress, the UN High Commissioner, said, If there is anywhere in the world that best exemplifies the challenges of the asylum-migration nexus it is South Africa. Notes taken by Human Rights Watch during ExComs Opening Session, October 1, 2007. The words are not reported in the official record of the speech. UNHCR, Opening Statement by Mr. António Guterres, United Nations High Commissioner for Refugees, at the Fifty-eighth Session of the Executive Committee of the High Commissioner's Programme, October 1, 2007, http://www.unhcr.org/admin/ADMIN/4700eff54.html (accessed May 1, 2008).
26 Chapter IX of the report briefly looks at how difficult it is to obtain such permits. The permits are provided for in ss. 10-24 of the Immigration Act, 2002, No. 13 of 2002, http://www.info.gov.za/gazette/acts/2002/a13-02.pdf (accessed March 9, 2008), as amended by the Immigration Amendment Act, 2004, No. 19 of 2004, http://www.dha.gov.za/legislation_admin.asp (accessed March 9, 2008), and the Immigration Regulations adopted under the 2002 Act, Immigration Regulations No. R616, June 2005, http://llnw.creamermedia.co.za/articles/attachments/02112_regulation616.pdf (accessed April 23, 2008). Together they set the conditions for entry and residence of all non-nationals who are not asylum seekers or refugees (who are covered by the 1998 Refugees Act). Immigration Regulation 21(1) establishes Cross Border Permits.
27 The DHA states that between April 1, 2006, and March 31, 2007, the authorities issued 19,601 work permits and 34,360 visitors permits, a slight increase from the year before. DHA, Annual Report 2006-2007. These statistics do not include corporate work permits, which tens of thousands of Zimbabweans working on farms in the border areas and elsewhere use. At the time of publication there were no statistics available for the post March 2007 period. Other statistics provide additional limited insight. In December 2007, one of the busiest months of the year, the Zimbabwe-South Africa border was crossed 95,033 times by Zimbabweans. 89,441 of these crossings were made by people on holiday. It is not clear on what legal basis they enter South Africa. 1,468 entered on unspecified types of work visa. The total number of crossings made overland was 83,596. The statistics do not record the number of different individuals crossing, only the total number of crossings. Many individuals regularly cross the border and are counted each time as a new crossing. Statistics South Africa, Tourism and Migration, December 2007, http://www.statssa.gov.za/publications/P0351/P0351December2007.pdf (accessed March 18, 2008).
28 Ss. 29 and 30 of the 2002 Immigration Act, respectively. Although there are a number of grounds for being deemed prohibited and undesirable, most relate to criminal activities.
29 In 2005 27 percent (7,783) of the total number of claims (28,522) were made by Zimbabweans. UNHCR, Statistical Yearbook 2005, Statistical Annex III, Country Data Sheet for South Africa, http://www.unhcr.org/cgi-bin/texis/vtx/statistics/ (accessed March 9, 2008). UNHCR has no figures for the number of Zimbabweans who contributed to the 32,565 claims in 2004. In 2006 it was 35.5 percent (18,973 out of 53,361). UNHCR, Statistical Yearbook 2006, Statistical Annex. In 2007 it was 38 percent (17,667 out of 45,673). UNHCR News Story, South Africa gets 45,673 asylum seekers in 2007, warns of rising numbers, February 26, 2008, http://www.unhcr.org/news/NEWS/47c41c164.html (accessed March 9, 2008).
30 If they are granted refugee status they have the right to remain in South Africa until it is safe for them to return. If after five years it is still not safe they are entitled to apply for permanent residence status. Chapter VIII of this report explains that under South African law, people who have entered South Africa illegally and who express their wish to claim asylum once inside the country cannot be deported and must be allowed to lodge their claim at one of the countrys five Refugee Reception Offices.
31 People with no permission to stay in South Africa have a wide range of basic human rights under the South African Constitutions Bill of Rights, including the right to equality, dignity and the right not to be subjected to violence or to be arbitrarily arrested or detained. Constitution of the Republic of South Africa, No. 108 of 1996, http://www.info.gov.za/documents/constitution/index.htm (accessed March 9, 2008). S. 7(1) of the bill says it enshrines the rights of all people in our country (emphasis added).
32 Ibid. S. 7(1) provides that all people in South Africa have the rights in the Bill of Rights and the word everyone is repeatedly used throughout the bill.
33 Ss. 9-21 and 32-35. S. 19s political rights only apply to citizens.
34 S. 27. Basic health care in South Africa is fee-based for South Africans and foreigners alike. Emergency health care is free; s. 27.3 states that no one may be refused emergency medical treatment.
35 S. 29.
36 The South African Constitutional Court decided that permanent residents have the same rights as South African citizens to all forms of social grants (including child support grants, disability grants, old age pensions, foster care grants, and care dependency grants) as citizens. Khosa and Others v. Minister of Social Development and Others, Case CCT, 12/03; and
Mahlaule and Another v. Minister of Social Development and Others, CCT 13/03.
37 Unless the visa-holder is or has a child: under s. 28 of the Constitution all children, irrespective of legal status, are guaranteed a wide range of rights including basic nutrition, shelter, basic health care services and social services. With regards to housing, the National Housing Code explicitly states that access to housing subsidies is limited to South African citizens and permanent residents. Jennifer Greenberg and Tara Polzer, Migrant Access to Housing in South African Cities, February 2008, http://www.migration.org.za (accessed March 12, 2008), p. 4.
38 South Africa recognized 241 Zimbabweans as refugees between 2004 and 2006 at the initial status determination stage. UNHCR, Statistics Yearbooks 2004, 2005 and 2006. At the time of publication there were no statistics available for 2007.
39 S. 27 of the 1998 Refugees Act provides that recognized refugees have all the rights set out in the Bill of Rights.
40For the progress made by South African civil society in seeking to ensure that both refugees and asylum seekers are more effectively integrated into basic state-funded social services, see Consortium for Refugees and Migrants in South Africa (CRMSA), Protecting Refugees and Asylum Seekers in South Africa, June 2007, http://www.lhr.org.za/documents/CRMSA07Report.pdf (accessed March 2, 2008), p.42; and National Consortium for Refugee Affairs (NCRA), Refugee Protection in South Africa 2006, June 2006, http://migration.org.za/wordpress/wp-content/uploads/2007/10/ncra06.pdf (accessed March 2, 2008), pp. 47-61.
41 See Florencia Belvedere, Piers Pigou and Jeff Handmaker,Realizing Rights: the Development of Health and Welfare Policies for Asylum-Seekers and Refugees in South Africa, in Jeff Handmaker, Lee Anne de la Hunt and Jonathan Klaaren, eds., Advancing Refugee Protection in South Africa, (New York: Berghahn Books, 2008).
42 As noted above, under the national Housing Code only South African citizens and permanent residents have access to housing related programs. Jennifer Greenberg and Tara Polzer, Migrant Access to Housing in South African Cities, p. 4.
43The DHA granted asylum seekers the right to work and study in March 2003 after the Legal Resources Centre challenged the constitutionality of a government prohibition. For an overview of ongoing problems in securing work and study, related to the problematic nature of the asylum seekers permit that confirms these rights, see NCRA, Refugee Protection, p. 36.
44 Asylum seekers with or without a permit and recognized refugees have these rights: Revenue Directive by Department of Health to all Provincial Health Managers and HIV/AIDS Directorates, September 19, 2007. On file with Human Rights Watch. In practice this means that anyone, whether or not registered as an asylum seeker, has a right to access free ART. Whether or not intended, this accords with the right of everyone in South Africa to access emergency medical care under s. 27.3 of the Constitution. Both positive developments and continued obstacles relating to access to medical care are reported in CRMSA, Protecting Refugees, pp. 49-51. Further examples of obstacles to access are reported in Federation International des Droits de lHomme (FIDH), Surplus People? Undocumented and other vulnerable migrants in South Africa, February 1, 2008, http://www.fidh.org/spip.php?article5166 (accessed March 10, 2008), p. 31.
45 The submission by the UN High Commissioner on Human Rights to the UN Human Rights Council ahead of its 2008 review of South Africas human rights record notes these problems: In practice, immigrants and asylum seekers face serious difficulties in the areas of housing and health care. UN Compilation of Information on South Africa for Human Rights Councils Universal Periodic Review, http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/ZA/A_HRC_WG6_1_ZAF_2_SouthAfrica_compilation.pdf (accessed March 12, 2008), para 21.
46 See CRMSA, Protecting Refugees, pp. 35-39 and 42; NCRA, Refugee Protection, pp. 47 -61; and F. Belvedere et al., Realizing Rights.
47 See CRMSA, Protecting Refugees, pp. 36-37; and Joint Submission to the South African National Aids Council (SANAC) Plenary,Vulnerable groups: refugees, asylum seekers, and undocumented persons the health situation of vulnerable groups in South Africa, March 4, 2008, http://www.pmg.org.za/files/docs/080326sanac.pdf (accessed April 25, 2008), pp. 7-8.
48 Human Rights Watch, Living on the Margins, pp. 55-58. See also, CRMSA, Protecting Refugees, pp. 43-45; NCRA, Refugee Protection, pp. 51-53.
49Human Rights Watch, Living on the Margins: Inadequate protection for refugees and asylum seekers in Johannesburg, vol. 17, no. 15(A), November 2005, http://hrw.org/reports/2005/southafrica1105/, pp.54-55; CRMSA, Protecting Refugees, p. 46; NCRA, Refugee Protection, p. 56.
50 These rights are guaranteed to everyone under the South African Bill of Rights.
51 Human Rights Watch, Keep Your Head Down; Human Rights Watch, Unprotected Migrants.
52 Human Rights Watch interviews in farming areas surrounding Johannesburg and Pretoria, October and November 2007.
53 Human Rights Watch interviews in Cape Town and Johannesburg, October-November 2007. See also, NCRA, Refugee Protection, pp. 56-60.
54 The broadest survey on foreign nationals assistance needs, from 2003, focuses on the needs of asylum seekers and refugees: Community Agency for Social Enquiry, National Refugee Baseline Study: Final Report, 2003, http://www.lhr.org.za (accessed March 12, 2008). The two other main reviews of refugees and asylum seekers needs are CRMSA, Protecting Refugees and NCRA, Refugee Protection. See also, Jennifer Greenberg and Tara Polzer, Migrant Access to Housing in South African Cities.
55 See Human Rights Watch, Unprotected Migrants and Keep Your Head Down.
56 The FMSP conducted a telephone survey in September 2007 among 29 NGOs assisting Zimbabweans. After documentation, Zimbabweans identified accommodation as their most pressing need, followed by work and food. Unpublished findings, available from Tara Polzer at the FMSP. The two other leading surveys of Zimbabweans needs are Daniel Makina, Survey of Profile of Migrant Zimbabweans, and Zimbabwe Torture Victims Project, Between a Rock and a Hard Place: a window on the situation of Zimbabweans living in Gauteng, Johannesburg, 2005, http://www.queensu.ca/samp/migrationresources/Documents/Zim_Gauteng_Sept2005.pdf (accessed March 12, 2008).
57 Human Rights Watch interviews in Pretoria, Cape Town, and Johannesburg, October and November 2007.
58 Jennifer Greenberg and Tara Polzer, Migrant Access to Housing in South African Cities, p. 8.
59 Human Rights Watch interviews with Cape Town charities, October 2007.
60 Human Rights Watch, confidential interviews in Cape Town October 2007. This is also the conclusion of research conducted by the FIDH. UN, UN summary of stakeholders' information, February 25, 2008, discussed at the 15 April 2008 Human Rights Councils review of South Africa under the Universal Periodic Review procedure, http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/ZA/A_HRC_WG6_1_ZAF_3_SouthAfrica_summary.pdf (accessed May 31, 2008), para 34. The IOM reports an increase of women and children passing through its Beitbridge office in 2007. See South African Red Cross, Rapid Assessment in Musina and Johannesburg on Zimbabwean Population Movement into South Africa, August 2007. On file with Human Rights Watch, p. 4.
61 Thanks to the hospitality of Methodist Churchs Bishop, Paul Verryn, Human Rights Watch conducted many of its interviews for this report at the Church in November 2007. On the shelter provided by the Methodist church, see also, Jennifer Greenberg and Tara Polzer, Migrant Access to Housing in South African Cities, p. 8-9.
62 Human Rights Watch, South Africa: Ensure Justice for Police Raid Victims, February 19, 2008, http://hrw.org/english/docs/2008/02/19/safric18104.htm.
63 On May 30, 2008, the South African police confirmed 62 people had died and 670 had been injured in the violence. Reuters Foundation, S. Africa violence toll rises to 62, May 31, 2008, http://www.reliefweb.int/rw/rwb.nsf/db900sid/RMOI-7F6KB4?OpenDocument&rc=1&cc=zaf (accessed Jun 1, 2008). UNHCR have confirmed that an estimated 100,000 people were displaced. UNHCR, South Africa: UNHCR aid provided to displaced, Briefing Notes, May 30, 2008, http://www.unhcr.org/news/NEWS/483fef5b2.html (accessed May 31, 2008).
64 For overviews of reports of violence against Zimbabweans by South African citizens that took place before May 2008, see CRMSA, Protecting Refugees, pp. 50-51 and FIDH, Surplus People? pp. 34-35. In April 2008, CoRMSA reported on a number of serious incidents involving killings of foreign nationals and burning of their property, summarizing the situation as follows: In the first three months of the year, community attacks characterized by mob violence have taken place on foreign nationals in Gauteng, North West, Free State, the Eastern Cape and the Western Cape resulting in the loss of many lives and destruction of many peoples property. CoRSMA , Newsletter No. 9, p.1.
65 Human Rights Watch, South Africa: Protect Victims of Xenophobic Violence, June 5, 2008, http://hrw.org/english/docs/2008/06/05/safric19026.htm.