VII. International Refugee Law163

Persecution of Zimbabweans Targeted by the Evictions

To successfully claim refugee status under the 1951 Refugee Convention, or the OAU Convention 1969, asylum seekers need to show that they cannot be sent back to their country because they have a well-founded fear of being persecuted on account of their “race, religion, nationality, membership of a particular social group or political opinion.”164 The OAU Convention also considers a refugee to be “every person who, owing to… events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge.” Neither Refugee Convention defines the term “being persecuted,” but persecution is generally regarded as a “serious harm” that the government is responsible for causing or for being unwilling or unable to prevent. This definition can be summarized as “Persecution = Serious Harm + The Failure of State Protection.”165

Zimbabweans who were targeted by the evictions have a strong claim of a well-founded fear of being persecuted. This is because their rights to shelter, work, food, and in many cases education and health care were, and continue to be violated to such an extent that they would suffer serious harm if returned to Zimbabwe, and because the Zimbabwean government, responsible for the original rights violations, continues to fail to protect them against the effects of those rights violations. Zimbabweans targeted by the evictions can argue that they will be persecuted because of the political threat they are perceived to pose and the “political opinion” which the Zimbabwean government thinks they had and still have.

To establish a refugee claim under the 1951 Refugee Convention, Zimbabweans affected by the evictions have to show three things:166 (i) that they have good reason167 for fearing serious harm if returned to Zimbabwe because the Zimbabwean government will fail to protect them against certain rights violations; (ii) that the Zimbabwean government regards them as having a “political opinion” and/or as members of a “particular social group”; and (iii) that their fear of being persecuted is because of their perceived “political opinion” and/or membership of a “particular social group.”

Zimbabweans Targeted by the Evictions Suffered Serious Harm

Zimbabweans targeted by the evictions suffered specific rights violations that caused “serious harm.” This harm continues to this day and into the foreseeable future because of a continued failure by the Zimbabwean government to end it.

Serious harm is caused by certain types of serious violations of internationally protected human rights, as set out in particular in the International Covenant on Civil and Political Rights (ICCPR),168 the International Covenant on Economic, Social and Cultural Rights (ICESCR),169 and the African Charter on Human and Peoples’ Rights (African Charter).170 Serious harm occurs either when the core of a right has been violated or when a number of non-core violations have the cumulative effect that leads to serious harm.171

In the case of Zimbabweans claiming asylum in many countries worldwide over the past few years, examples of “core” civil and political rights violations have involved (fear of) killings, torture, rape, arbitrary detention, and inhuman and degrading treatment.172 However the evictions violated many core economic and social rights including the rights to shelter, work, food, and, in many cases, education, and health care. According to the United Nations Committee on Economic, Social and Cultural Rights (ESCR Committee), which reviews states’ compliance with the ICESCR,  states have a number of immediate binding legal obligations with regards to economic and social rights: (i) a state can never discriminate nor justify discrimination, for example with reference to resources; (ii) states have a duty not to interfere directly or indirectly with the enjoyment of a right, including  the obligation not to take “retrogressive steps” that destroy access to or enjoyment of a right; and (iii) states have a core obligation to ensure the satisfaction of minimum essential levels of each right.

The right to adequate housing

Forced evictions are the most obvious violation of a government’s obligations to ensure people’s right to shelter. The ESCR Committee defines forced evictions as, “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”173 It says that forced evictions constitute “a gross violation of human rights,” and are “incompatible with the requirements of the Covenant [ICESCR].”174 The African Commission on Human and People’s Rights has also affirmed that forced evictions are serious violations of the African Charter and draws on the ESCR Committee’s characterization of forced evictions.175

The destruction of people’s homes during the evictions constituted “forced evictions” and, therefore, violated the core of the right to housing of people targeted by the evictions. The Zimbabwean government failed to provide appropriate forms of legal or other protection to those targeted by the evictions, putting it in clear violation of the right to adequate housing and the obligation not to carry out forced evictions. The testimonies of Zimbabweans targeted by the evictions show how government authorities destroyed their homes and provided no protection to the people displaced by the evictions, and how this continues to be the case two-and-a-half years after they took place.

Zimbabweans in South Africa, including this 35-year-old married woman with three children, told Human Rights Watch how the destruction of their property had left them homeless and destitute:

The five of us were living in a cottage in Glenora, Harare. My husband had a carpentry shop in the cottage. They destroyed everything, all the tools. We had nowhere to go. We slept outside for one week and then went to the rural areas to live with my parents. There was no work. With no house and no workshop for my husband I came to South Africa to find work.176

Two-and-a-half years on the government has continued to fail to put an end to the effect of this violation, leading to continued serious harm. Even the most vulnerable people interviewed by Human Rights Watch in Zimbabwe have received no social assistance from the authorities and still live in precarious housing situations. A 62-year-old widow told of her continuing predicament two years after being evicted:

I lived for six weeks with other people in Mbare, under the tree of Stoddard hall where heroes are buried. They arrested people for staying outside so I asked a widow if I could stay in her courtyard, just inside the wall. I have some plastic sheets to cover myself if it rains. Now it’s been over two years. I’m trying to find somewhere else to live. The landlord tells me that she only lets me live in her courtyard because she doesn’t want to see me in the street. I am afraid she’ll become tired of me. I go from house to house and ask if there is a room to rent but there is no space. I try to sell vegetables but the police stop me so I struggle to find food. If I have it I eat sadza and porridge in the morning. I have not had meat for two-and-a-half years.177

Many people interviewed by Human Rights Watch spoke of the precariousness of their housing situation two-and-a-half years after the evictions. A 34-year-old man in one of Harare’s suburbs took Human Rights Watch to see a location where 40 families had found temporary shelter in 2006 but who were now all being told to leave the area. He was living with his wife and 14-year-old daughter in an upside-down steel water tank:

After the tsunami I had to stop my work as a qualified mechanic. The cooperative’s workshop was destroyed and the government said everyone had to register. I could not afford the registration fee. I had no money and could not pay rent anywhere. So we came to live in this water tank. If we are lucky we eat sadza two times a day and we are hungry. We have no money for anything else. In Congo where there is war people need food and shelter. Here in Zimbabwe we also need food and shelter.178

The right to work

The ESCR Committee has said that the core of the right to work includes “the right of access to employment, especially for disadvantaged and marginalized individuals and groups, permitting them to live a life of dignity.”179 Furthermore, a government violates its obligations when it “deni[es]… access to work to particular individuals or groups, whether such discrimination is based on legislation or practice.180 The committee notes that, “retrogressive measures taken in relation to the right to work are not permissible,” and that such measures include “denial of access to employment to particular individuals or groups, whether such discrimination is based on legislation or practice or the adoption of policies that are manifestly incompatible with international legal obligations relating to the right to work.”181

Therefore, a complete denial of the right to work, including denial based on policy or practice, involves a core violation. This can happen either as a result of the government specifically targeting a particular profession (discrimination), or through targeting the way of working if under the circumstances that way of working is the only option available to the person affected and, therefore, makes finding work virtually impossible.182

Some courts have linked the denial of an opportunity to earn a livelihood with the right to life, saying that depending on the context such a denial “is the equivalent of a sentence to death by means of slow starvation.”183 Others have referred both to the right to life and the right to health: “[a]n inability to earn a living or to find anywhere to live can result in destitution and at least potential damage to health and even life.”184

Before carrying out the evictions, the Zimbabwean government was fully aware of the generally depressed economic conditions country-wide with which the victims of the evictions would have to cope. Given the dependency of the Zimbabwean economy on the informal sector, it is inevitable that the Zimbabwean authorities were aware that informal jobs in and around the urban areas were the only viable work opportunities for the people they targeted for eviction, and that after the evictions it would be impossible for them to find alternative work (and thereby access to adequate housing, food, health care, and education).

The testimony of those targeted by the evictions show how the evictions and the ban on informal trading combined to make finding work impossible. A 30-year-old woman from Glenore, Harare, explained how the ban on trading and the impossibility of obtaining a trading permit forced her to leave the city and to try, in vain, to survive in the rural areas:

Before the tsunami I was selling sweets, ice drinks and vegetables. I sold them at the corner of our house and at a market near the taxi stand in Glenore. My two sisters, my mother and my parents all depended on me. Afterwards I tried to continue but the police stopped me. They made me pay a fine each time and confiscated my goods. The nearest official trading post was 15 kilometers from Glenore and I couldn’t afford the bus fare. I was told that I would have to pay every month for a permit. The cost was too high. Friends also told me that even if I had the money only people with ZANU-PF cars would get a permit. I went to stay with my mother’s family in the rural areas but the village had run out of seeds and fertilizer because they used to buy it with money sent back from their children in the cities. After the tsunami their children stopped sending money so there was no food and no work. Life was impossible there so I came to South Africa in January 2006.185

A 41-year-old builder from Mutare described the effect of losing his home and his work and how, as a perceived supporter of the opposition, he was then unwelcome in the rural areas even as an internally displaced person (IDP) and was, therefore, unable to feed his family:

I was living in Mutare with my wife and two daughters who were going to school. I was a builder, working in the poor areas which were all destroyed. They destroyed my house and then there was no more work because all building work in those areas was then illegal. There was nowhere to live and nowhere to work so we went to the rural areas in Bikita District. There was no work there. No one had any money for seeds or fertilizer because no one was sending back money anymore from the city because of the tsunami. Even if we had had seeds and fertilizer I wouldn’t have been able to plough the land. The village elders said that we were opposition supporters who had come from the cities to cause problems and they wanted us to leave. My daughters stopped going to secondary school because I could not pay the fees. My family was very hungry. They hardly ate anything. Since I have been working in South Africa in February 2006 I have sent them SAR700 (US$110) and groceries every month. My daughters started going to school again in June 2006.186

The authorities prevented people who stayed in the urban areas from surviving through even the most minimal or informal trading. A 32-year-old woman, the breadwinner for her mother, brother, and three children, said:

Sometimes I try to sell vegetables at Glenview shopping center. It’s hard to make money because everyone is doing the same and the police always chase us away. They take our vegetables and they arrest people. The last time I was arrested was a month ago. They fined me and took everything. My brother used to sell firewood but he was arrested so many times it was not worth it. After the tsunami most women cannot find money. Some, if they can’t sell their vegetables, have no choice but to sell themselves. Or they try to leave the country.187

Those who went to the rural areas say that there was no work to be found in those areas, a fact of which the Zimbabwean government would have been well aware before it carried out the evictions. A 24-year-old man from Harare told Human Rights Watch how the authorities forced him to the rural areas, where he could find no way to support his family:

Before the tsunami I was working as a trader at the Copacabana market in Harare. I supported many people including my brother who was diagnosed as HIV+ in September 2004. I paid for his drugs [ARVs]. When they destroyed all our stalls and stole my goods I had nothing left. I was one of the people taken to Caledonian Farm [a holding center] and I was not working. After two months they forced me to go back to the rural areas and there was no work there. I had no money and so my brother could not buy any more drugs. He was eating less and less because I had no money to buy him food. He got very weak and he died in March 2006.188

The right to adequate food

The ESCR Committee has stated that the core of the right to adequate food includes “[t]he availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals… in ways that are sustainable and that do not interfere with the enjoyment of other human rights.”189 It also notes that, “States have a core obligation to take the necessary action to mitigate and alleviate hunger….”190 Therefore, any deliberate government action that hinders or denies access to food “sufficient to satisfy the dietary needs” of an individual constitutes a core violation.

The right to food is also implicitly recognized in the African Charter, in such provisions as the right to life (Article 4), the right to health (Article 16), and the right to economic, social and cultural development (Article 22). The African Commission has ruled that “[t]he right to food is inseparably linked to the dignity of human beings and is, therefore, essential for the enjoyment and fulfillment of such other rights as health, education, work and political participation.” The commission went on to state that both the African Charter and international law require and bind parties to the Charter to protect and improve existing food sources and to ensure access to adequate food for all citizens. It identifies the minimum core of the right to food as including an obligation not to destroy or contaminate food sources and not to prevent peoples’ efforts to feed themselves.191

The right to food is intimately connected to the right to work, as set out above. When the government acts in a way that violates the core of the right to work without putting in place alternative mechanisms (such as welfare support) to ensure that those affected can access food, the core of the right to food has also been violated.

The testimony of those targeted by the evictions show how the evictions and the ban on informal trading combined to make finding work, and, therefore, “sufficient” food, impossible. A 50-year-old woman in Harare told Human Rights Watch of the chronic hunger she and her family have experienced since being evicted:

I was living in a one-room cottage with my granddaughter. I worked in a clothes factory but it closed in 2004. Then I sold vegetables to survive. I paid for the rent and my granddaughter’s school fees and a little bit to eat. We were often hungry. Then they came and destroyed our room. I went with my granddaughter to live in the Roman Catholic Church in Mbare. They gave us a garage to share with one woman for three months and they gave us a little food. But then we had to leave. We lived on empty land near the church for one week and then we found an open space near a road where I sold firewood. We slept under blankets in the open. We worked in a maize field and made a little money. I bought plastic sheets and made a small tent. I still live there now. The sun has broken the plastic and the rain comes through. My granddaughter stopped going to school in January 2006. We had almost no food. For some months a charity called ZIMPRO gave me some food which helped us to survive. We are always hungry. Three months ago my granddaughter found a place to stay with a family. She comes to see me every morning and says “Gogo [grandmother], why don’t you leave here” and I say “where can I go?”192

The right to health

The ESCR Committee has said that the core of the right to health includes ensuring non-discriminatory access to health facilities, especially for vulnerable or marginalized groups, the equitable distribution of all health facilities, goods and services, providing essential drugs, access to the minimum essential food which is nutritionally adequate and safe, access to basic shelter, housing andsanitation, an adequate supply of safe and potable water, prevention, treatment and control of epidemic and endemic diseases, and provision of education and access to information for important health problems.193

In drawing attention to the combined role played by food, water, and housing in ensuring adequate health, the ESCR Committee is stressing the interdependence of economic and social rights. In other words, when a government violates the right to housing or food, it is also contributing toward a possible violation of the right to health.

People targeted by the evictions saw their right to health care seriously affected, both because of the resultant loss of income and because of the government’s failure to put in place additional social welfare support and to implement an effective user fee exemption program. This must be understood within the broader context of the Zimbabwean government’s more generalized failure to ensure the progressive realization of the right to health.194

A 55-year-old woman in Harare showed Human Rights Watch the death certificates of her husband and five siblings who had all died from HIV. She said she had two cottages destroyed by the evictions, reducing her income and ability to care for her extended family:

I take care of my mother, seven nieces and seven grandchildren. I went to the office of social welfare last year and they said they would only waive health fees if you were older than 60. They told me to go and find work. I have high blood pressure. My whole body aches. I can’t go to the doctor—I don’t have the money.195

In 2006 Human Rights Watch reported on how the evictions had made PLWHA even more vulnerable, leading to a loss of income and, therefore, lack of access to fee-based health care.196 As set out above, in February 2008 PLWHA told Human Rights Watch how the evictions and the ongoing ban on informal trading had continued to make their access to care precarious and at times impossible.197

The evictions, and the lack of subsequent steps to mitigate their impact, have constituted a clear retrogressive step in the realization of the right to health and, therefore, a clear violation of the right to health.

The right to education

The right to free and compulsory primary education is an immediately binding obligation on all states party to the ICESCR. The ESCR Committee has stated that the core of the right to education includes an “obligation to ensure the right of access to public educational institutions and programmes on a non-discriminatory basis….”198

Some courts have ruled that denial of the fundamental right to primary school education amounts to persecution.199 Under the principle set out above that a number of non-core violations of rights may have a cumulative effect that leads to serious harm, asylum adjudicators may also consider that deprivation of education in conjunction with a number of other violations of economic and social rights cumulatively constitutes persecution.

The testimony of those targeted by the evictions show how the evictions and the ban on informal trading led to a loss of work and income which meant that many parents were no longer able to pay for their children’s school fees. A 47-year-old man told Human Rights Watch:

I was living with my wife and four children, age 15, seven, four, and two, in a cottage in Porta Farm near Harare. I was a basket weaver and I was paying the school fees for my eldest two. They destroyed my cottage and my business, everything. I had no more money and my two daughters stopped going to school immediately. The police took us to the Caledonia Farm transit camp. There was no work there and there was no work in the rural areas and so I came to South Africa. My wife and children still live in the camp now. I send enough money back to help them with food but my daughters still aren’t going to school.200

Summary of ongoing serious harm

In carrying out the evictions, the Zimbabwean government violated the core of a number of economic and social rights.201 Both individually and cumulatively these violations led to serious harm. To this day, the Zimbabwean government has failed to address these violations.

The act of evicting the urban poor living in high-density suburbs, therefore, involved a violation of rights leading to serious harm and amounts to a failure of state protection. Equally, the failure by the Zimbabwean government to address the effects of these violations is an ongoing violation of these rights.

Showing that Zimbabweans Targeted by the Evictions were Viewed as Having a “Political Opinion”

The serious harm suffered by Zimbabweans targeted by the evictions was caused and continues to this day because they fall within one or two of the five protected grounds mentioned in the 1951 Refugee Convention: race, religion, nationality, membership of a particular social group, or political opinion. Zimbabweans evictees were targeted because of their “political opinion.” They, therefore, fear persecution on the grounds of a “political opinion.”

Refugee law does not require that a refugee actually has a political opinion. It is enough if the agent of persecution attributes (or imputes) an opinion to the refugee, even if incorrectly. Because it may be difficult for a refugee to provide direct evidence of what the agent of persecution thinks or believes, a decision-maker must look at all the circumstances.202 Because the political opinion at issue can be imputed to the refugee, it is enough for the agent of persecution to believe that the person is an actual or potential threat to its power.203

While there is no evidence of how many of the 700,000 people directly targeted by the evictions supported the opposition, or how many had a political opinion about Zimbabwe’s ruling party or government, to establish a fear of persecution on account of a “political opinion” under refugee law it is enough to show that the persecutor, in this case the government, imputed to the urban poor living in high-density suburbs either an opinion that was generally opposed to ZANU-PF and/or active support for the Zimbabwean opposition.

As noted in Chapter V of this report, which examined the political context of the forced evictions beyond the reasons nominally provided by the government for them, the circumstances of the evictions suggest that at least one of the reasons why they took place was because ZANU-PF was concerned about a potential uprising in urban areas against the government which would have challenged the government’s power.

Showing that Zimbabweans Targeted by the Evictions Fear Persecution Because of their Perceived “Political Opinion”

Finally, Zimbabwean asylum seekers targeted by the evictions fear persecution “for reasons of” their political opinion. Their fear of suffering serious harm is connected to the Zimbabwean government’s belief that they hold opinions that threaten the government’s power.

There are three ways in which they may successfully argue that they fear serious harm on return to their country because of their political opinion: (i) they could provide direct evidence of the government’s deliberate failure to protect them against serious harm for that reason; (ii) they could provide circumstantial evidence that the government’s failure to protect them for that reason was intentional; or (iii) without having to prove the government’s reason for the evictions, they could argue that the government in fact seriously harmed them or failed to protect them against being persecuted, simply by virtue of the fact that they were viewed as having a political opinion.204

One element of direct evidencethat the Zimbabwean government intended to persecute the people whom it forcefully evicted for reasons of their political opinion and/or social group membership is suggested by the name of the campaign itself: “Operation Murambatsvina” (“Operation Clear the Filth”). This was a dehumanizing and prejudicial characterization of those being evicted that indicates the government’s perception of them as sharing a common negative characteristic. Indirect evidencewould suggest that the urban poor living in high-density suburbs were at particular risk of being targeted by the government and that the severity of the harm suffered, which completely destroyed the evictees’ ability to survive in the urban centers, was in the government’s political interest. This is because the circumstantial evidence, as set out in Chapter V of this report, suggests that the government undertook these actions to strengthen itself and to weaken its actual, perceived, or potential opponents.

In relation to both the direct and indirect evidence approaches, refugee law recognizes that if a government has a number of reasons for acting in a way that causes serious harm, it is enough if one of those reasons relates to the person’s political opinion (or any of the other three categories listed in the Convention). In addition, that reason does not have to be the main reason why the government acted in the way it did. It simply has to be one of the reasons.205 In the case of the Zimbabwean government this means, for example, that if one reason for the evictions really was to “clean the cities,” and a second reason was that it would get rid of potential political opposition, then this second reason is enough for a person affected by the evictions to argue that she was persecuted because of her political opinion.

Finally, the third way in which Zimbabweans targeted by Operation Murambatsvina can make their case is to ask an adjudicator to look at the situation from the victim’s point of view. Under this approach, the key issue in determining whether a person is “being persecuted” is the predicament of the victim and the need for a remedy, not the intent of the persecutor.

If, for example, the Zimbabwean government stated that its reason for forcibly evicting the urban poor living in high-density suburbs was to provide for the greater good of orderly and clean cities and not to harm anyone, but its actions nevertheless did, in fact, disproportionately harm those who were members of this particular social group and/or who were imputed to be opponents of the government, then they could argue that they qualify as having “been persecuted.”206

Other Considerations under Refugee Law Affecting Claims of Zimbabweans Targeted by the Evictions

Adjudicators considering claims by Zimbabweans targeted by the evictions will need to consider three further points under refugee law.

Mixed motives

A person claiming asylum may have many reasons for leaving her country. Having economic or personal reasons for leaving does not prevent her from making a successful refugee claim. The only requirement in refugee law is that the person fears return on at least one of the five protected grounds. This fear need not be the central reason for the unwillingness or inability to return.

In virtually all cases, people targeted by the evictions have “mixed motives” for leaving and for not wanting to return to Zimbabwe. The poor economic conditions in Zimbabwe and the desire to find work in South Africa are obvious and central motives for many of the evictees, as they are for hundreds of thousands of other Zimbabweans in South Africa. The existence of other motives, including closely related economic ones, should not, however, have any bearing on the validity of a refugee claim.

Although a decision-maker or a court in South Africa may find it “difficult to separate the [serious harm] effects of persecutory behavior from the impact of a generally depressed or poor economy,”207 the adjudicator should focus on the connection (or nexus) between the serious harm suffered and the real or imputed political opinion and/or membership in the particular social group of the asylum seeker in question. If this connection is present, then that distinguishes the asylum seeker’s particular circumstances from the generalized suffering faced by the Zimbabwean population.

Once this harm has been identified and connected to the individual’s identity or beliefs, her asylum claim can be successful regardless of her other motivations.

Voluntary re-establishment in country where persecution was feared

As shown by the testimonies, many documented and undocumented Zimbabweans in South Africa regularly move back and forth between Zimbabwe and South Africa to take essential foodstuffs and money to their families. Refugee law allows Zimbabwean refugees and asylum seekers to briefly return to Zimbabwe and then come back to South Africa without losing their refugee or asylum-seeker status.

The 1951 Convention states that the Convention “shall cease to apply to [a] person… if… he has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution.”208 Refugee law states that voluntary establishment is not the same thing as simply returning. This means that recognized refugees can return to their home country for brief periods of time and should not have their refugee status revoked simply because they have stepped across the border.

UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status states that, “[v]oluntary re-establishment… is to be understood as return to the country of nationality…. with a view to permanently residing there. A temporary visit by a refugee to his former home country… does not constitute “re-establishment” and will not involve loss of refugee status” (emphasis added).209

UNHCR explicitly recognizes that in some cases governments do not agree and that they consider that such people lose their refugee status. UNHCR states that, “[c]ases of this kind should be judged on their individual merits. Visiting an old or sick parent will have a different bearing on the refugee’s relation to his… country than regular visits to that country spent on holidays or for the purpose of establishing business relations.”210

As UNHCR suggests, to understand whether a refugee remains at risk of persecution in his country of origin despite briefly returning home, courts should look at each case individually. They should look at the nature of the risk that was part of the original asylum claim and at what the person does when he is back in his country of origin. They should also look at the broad situation in the country of origin.

Nature of risk: the nature of the risk in the original asylum claim affects how a decision-maker looks at the fact that a refugee returned briefly to her country. For example, if a refugee claimed that she was afraid of being detained and tortured by police because of her high political profile, then returning to the country, even if only for a few days, will be extremely risky. In such a case returning suggests that she no longer fears persecution. On the other hand, if a refugee claims that the risk of persecution relates to a denial, on political grounds, of access to food aid then a return to the country for even a few weeks is clearly far less risky than in the first example.

Activity upon return: what the person does when he goes back is equally important. For example, if a person who says he is well known and fears arrest by the police goes to the capital city and meets with fellow political activists and shows his face in public, this suggests that he no longer fears persecution. Similarly, if that same person goes back for two days in order to visit a dying relative and keeps a low profile, this suggests that he continues to fear persecution.

For people targeted by the evictions, the nature of the risk is the ongoing violation of their economic and social rights to shelter, livelihood, and food. Brief returns to Zimbabwe are, therefore, not risky and are not evidence that they no longer fear persecution. As noted in the testimony, the reason they return is usually to make sure that their family can receive the food or money that they have earned in South Africa. This coping mechanism reinforces their very argument for refugee status, namely that the serious harm that they and their families have suffered involves violations of their core economic and social rights.

Split families

In most of the interviews Human Rights Watch conducted with people targeted by the evictions only one or two of the family members—the breadwinners—had come to South Africa while the rest of the family often remained in Zimbabwe. For two reasons this should not affect the asylum claim of the breadwinners who left.

First, through finding work and returning to Zimbabwe for short periods of time these breadwinners are trying to help themselves and their families cope with the effects of the persecution (ongoing violations of a series of economic and social rights). In other words, their role as breadwinners and their activity in South Africa helps to reinforce their claim of suffering serious harm (related to their right to shelter, work, and food) as a result of being targeted by the evictions.

Second, the border area between Zimbabwe and South Africa is dangerous with many reports of rape, extortion, and theft.211 Many people targeted by the evictions take the risk of entering South Africa through an informal border crossing.212 Women, children, the sick, and the elderly will understandably only take this dangerous journey as a last option, while able-bodied men, better able to defend themselves against criminals operating on the border, are more likely to cross into South Africa.

Finally, Zimbabweans know very well that there is little protection for them in South Africa: people sleep in the open, in crowded rooms, and with no guarantee of work or education. The May 2008 violence against foreigners in South Africa underlines the precariousness and vulnerability of Zimbabweans’ position in South Africa. As a result, the best way for the more vulnerable family members to cope with the effects of the evictions is to remain in Zimbabwe. Moving to South Africa is a last resort.

Dealing with Potentially High Numbers of Asylum Claims by People Targeted by the Evictions

Almost 40 per cent of the 99 Zimbabweans interviewed by Human Rights Watch in Cape Town, Johannesburg, and Pretoria in October and November 2007 were directly targeted by the evictions. Given that up to 700,000 people are estimated to have been directly targeted by the evictions, it is possible that tens of thousands of such people are in South Africa. Most will have strong claims for asylum.

On the one hand, South Africa has clear obligations under refugee law to ensure that these claims are fairly adjudicated on a case-by-case basis that looks closely at the evidence of each claim. On the other hand, the potentially high number of claims means that the asylum system, already under pressure, will have difficulties in responding to this challenge.

One way of addressing this challenge will be to adopt this report’s recommendation for a “temporary immigration exemption status for Zimbabweans.” However, if this recommendation is not implemented, special procedures may have to be implemented to deal with such claims. Although all Refugee Status Determination Officers should be trained in the applicable law, such procedures could take the form of a specially created team of Refugee Status Determination Officers in all of South Africa’s five Refugee Reception Offices, who will have the specific task (and expertise required) to review such claims.

163 South Africa has ratified the 1951 UN Convention relating to the Status of Refugees (1951 Refugee Convention), 189 U.N.T.S. 150, entered into force April 22, 1954, and its 1967 Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force October 4, 1967, (accessed March 13, 2008), and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Refugee Convention), 1001 U.N.T.S. 45, entered into force June 20, 1974, (accessed March 13, 2008). These treaties were formally acceded to in January 1996. S. 6 of South Africa’s 1998 Refugees Act states that that Act must be ”interpreted and applied with due regard to” these treaties.

164 Article 1(A)(2).

165 This test was first set out by the Canadian Supreme Court in Canada v Ward, [1993] 2 S.C.R. 689 (S.C.C.) and was endorsed by the United Kingdom courts in Islam and Shah v. SSHD, [1999] 2 All ER 545, per Lord Hoffman (U.K. House of Lords, March 25, 1999).

166 There is no international court or body that produces refugee law-based judgments that bind the Contracting Parties to the 1951 Convention. “Refugee law” is made up of the decisions of national courts in states all around the world who have signed the 1951 Convention. UNHCR also produces various types of documents which aim to guide those involved in assessing asylum seeker’s claims (civil servants, lawyers, judges). While they are useful in reinforcing legal arguments, these documents are not binding in law.

167 A “well-founded fear” according to the 1951 Refugee Convention.

168 International Covenant on Civil and Political Rights, adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, (accessed March 19, 2008), ratified by Zimbabwe on August 13, 1991.

169 International Covenant on Economic, Social and Cultural Rights (IESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, (accessed March 19, 2008), ratified by Zimbabwe on August 13, 1991.

170 African (Banjul) Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986, (accessed March 19, 2008), ratified by Zimbabwe on May 30, 1986.

171 UNHCR recognizes the fact that an accumulation of rights violations can lead to persecution where individually those violations would not amount to persecution: “an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on ‘cumulative grounds.’” UNHCR, “Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees,” (UNHCR Handbook), 1992, (accessed April 7, 2008). In the case of people targeted by the evictions, a court could recognize that a non-core violation of the right to work (e.g. reduction of income to 50percent) and a non-core violation of the right to shelter (e.g. destroying one property which was used by the owner to gain income through renting it out and allowing the same owner’s second property to remain) together lead to serious harm. Also, such violations could lead to further core or non-core violations of other rights, such as the rights to adequate food, education, and/or health care.

172 See footnote 22 above.

173 ESCR, General Comment No. 7, The Right to Adequate Housing (Art.11.1): Forced Evictions,, para 3.

174 ESCR General Comment No. 4, The Right to Adequate Housing (Art.11 (1)),, para 4. They are also incompatible with art. 17(1) of the ICCPR, which recognizes, among other things, the right to be protected against “arbitrary or unlawful interference” with one's home.

175 African Commission on Human and Peoples’ Rights, Decision 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights – Nigeria (May 27, 2002), ACHPR/COMM/A044/1, paras. 60-63. The commission found that the combined effect of Articles 14 (right to property), 16 (right to health) and 18(1) (right to family) reads into the Charter a right to shelter or housing.

176 Human Rights Watch interview, Kailitchi (Cape Town), October 25, 2007.

177 Human Rights Watch interview, Harare, February 16, 2008.

178 Human Rights Watch interview, Harare, February 15, 2008.

179 ESCR, General Comment No. 18, The Right to Work, E/C.12/GC/18,, para 31.

180 ESCR, General Comment No. 18 para 32 (emphasis added). The South African Refugee Appeals Board (RAB) has recognized this in relation to Zimbabwean professionals prevented by the Zimbabwean authorities for political reasons from carrying out their work. The RAB held that due to his political affiliations with the opposition, the asylum applicant “would not easily, if at all, secure gainful employment as a chartered accountant.” RAB, Appeal Number 53/2005, 30 November 2004, cited in Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (Cambridge: Cambridge University Press, 2007), p. 102.

181 ESCR, General Comment No. 18 para 34 (emphasis added).

182 Two UNHCR documents support this: (i) “Discrimination lead[ing] to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood…” amounts to persecution. UNHCR Handbook, para 54. (ii) “…examples of discrimination amounting to persecution would include, … discrimination with consequences of a substantially prejudicial nature for the person concerned, such as serious restrictions on the right to earn a livelihood….” UNHCR, “Guidelines on International Protection: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees,” (accessed December 9, 2007), para 17. An example of the “virtually impossible” scenario is an Australian decision where the court decided that a person who is denied employment in the public sector and in practice finds it virtually impossible to find employment in the private sector faces “a denial of the right to earn a living and constitutes persecution.” Reference V94/02820, Refugee Review Tribunal (Australia), October 6, 1995, p. 6. Cited in M. Foster, International Refugee Law and Socio-Economic Rights, p. 98.

183 Dunat v Hurney, 297 F 2d 744 (3rd Cir. 1961).

184 Secretary of State for the Home Department v. Sijakovic, Unreported, Immigration Appeal Tribunal, Appeal No. HX-58113-2000, May 1, 2001, para 16. Quoted in M. Foster, International Refugee Law and Socio-Economic Rights, p. 92.

185 Human Rights Watch interview, Kailitchi (Cape Town), October 27, 2007.

186 Human Rights Watch interview, Pretoria, October 30, 2007.

187 Human Rights Watch interview, Harare, February 16, 2008.

188 Human Rights Watch interview, Pretoria, October 31, 2007.

189 ESCR, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social  and Cultural Rights, General Comment No. 18, The Right to Adequate Food (Art.11), E/C.12/1999/5,, para 8.

190 ESCR, General Comment No. 12, para 6.

191 SERAC v Nigeria, para. 65.

192 Human Rights Watch interview, Harare, February 16, 2008.

193 ESCR, General Comment No. 14, para 43.

194 Human Rights Watch reported on this generalized failure in 2006. High user fees for health services and the collapse of the system of social welfare exemptions for health fees have resulted in thousands of individuals living with acute and chronic health care needs being turned away from the health care that they are entitled to, and that the government of Zimbabwe has committed itself to provide. Zimbabwe’s social welfare programs, designed to provide exemptions for people unable to pay for medical care and education, fail to protect vulnerable people, such as those living with HIV/AIDS. Obstacles to obtaining exemptions include extensive documentation requirements, inconsistent and arbitrary assessment of applicants, failure to provide information on exemption criteria to those who might qualify, and geographic variations in the availability of exemptions. The government’s failure to recognize and respond to the collapse of the water system has led to acute health crises (such as cholera) and imperiled the health of children, and individuals with chronic health conditions, including immune suppression. Human Rights Watch, No Bright Future.

195 Human Rights Watch interview, Harare, February 16, 2008.

196  Human Rights Watch, No Bright Future. The report noted now in Hatcliffe Extension, Harare, a clinic running a free ART and opportunistic infection treatment program under the St. Dominican Sisters was destroyed. The Sisters were forced out of the area, the program was disrupted and as a result a number of PLWHA on the treatment program were initially unable to access treatment. Others were unable to join the program because the Sisters scaled down their operations. p. 26.

197 See above, Chapter VI.

198 ESCR, Implementation of the International Covenant on Economic, Social and Cultural Rights, The Right to Education (Art.13), E/C.12/1999/10,, para 57.

199 A number of such cases are cited in M. Foster, International Refugee Law and Socio-Economic Rights, p. 216 at note 270.

200 Human Rights Watch interview, Pretoria, November 1, 2007.

201 Regarding the cumulative effect of economic and social rights violations, the ESCR Committee has said that “a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is… failing to discharge its obligations under the Covenant.” ESCR, General Comment No. 3, para 10.

202 Canada (Attorney General) v Ward [1993] 2 Supreme Court Reports (Canada) 689, 746-747 (SC:Can).

203 Ibid, p. 747.

204 This third approach is known in refugee law as “the predicament approach” because it looks at the predicament in which the asylum seeker finds herself and not at the intentions of the persecutor.

205 In addition to courts worldwide accepting this rule, UNHCR has also accepted that this is the correct application of refugee law. See UNHCR, “Guidelines on International Protection No. 1: Gender-Related Persecution within the Context of Article 1(A)(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees,” 2002, para 20; and UNHCR, “Guidelines on International Protection No. 7: The application of Article 1(A)(2) of the 1951 Convention and/or Protocol relating to the status of refugees to the victims of trafficking and persons at risk of being trafficked,” 2006, para 29. Both documents available at (accessed April 8, 2008). See also, James C Hathaway, “The Michigan Guidelines on Nexus to a Convention Ground,” 2001, (accessed April 8, 2008), paras 6 to 14.

206 A comparable “predicament analysis” would grant refugee status to a gay man whose government involuntarily commits him to a mental hospital to “cure” him of his homosexuality or to a woman whose family members subject their unwilling sister or daughter to genital mutilation without any intension of punishment, but rather thinking they are helping her by preparing her to be an obedient wife.

207 M. Foster, International Refugee Law and Socio-Economic Rights, p. 254.

208 Article 1(C)(4) (emphasis added). As a matter of law, Article 1(C), as one of the “cessation” Articles, applies to people who have already been recognized as refugees under Article 1(A)(2).

209 UNHCRHandbook, para 134.

210 UNHCR Handbook, para 125. An expert roundtable convened by UNHCR broadly endorsed a conclusion that if a refugee is involved in “brief but repeated visits… to the State of origin…, visits [that] may be for family, political or economic reasons or a combination” of those reasons then “so long as the visits are of short duration and the refugee’s primary residence remains the asylum State” there has been no re-establishment. Erika Feller, Volker Turk and Frances Nicholson, eds., Refugee Protection in International Law, p. 529. In summary, the experts concluded that “re-establishment denotes transfer of primary residence… rather than brief visits.” Ibid, p. 541.

211 See Chapter IX of this report.

212 Human Rights Watch interviews with Zimbabweans in Cape Town, Johannesburg, and Pretoria, October-November 2007.