The South Africa government made a conscious effort to bring its law concerning refugees into sync with International standard. South Africa is a signatory to the 1951 United Nations Convention on the status of a refugee and the 1969 OAU Convention governing the aspects of refugee problems in Africa. South Africa Refugee Act 130 of 1998 was implemented in 2000 and its legal framework addressed issues of refugee status. UNHCR’s main objectives for South Africa were to build the capacity of government and civil partners to provide protection and assistance to refugees, promote access to locally available services for refugees to facilitate self-reliance and address the basic needs of vulnerable groups, facilitate durable solution for refugees and increase public awareness of the circumstances of refugees. Looking at the policy on paper and in theory gives great hope because of its comprehensiveness. It is however a paradox to note that there are always differences in and theory and practice or reality on the ground and that is the impetus to the compilation of this paper.
Refugee policy in South Africa.
Farag (2003) says policy refers to those plans, positions and guidelines of government which influence decisions by government for example policies in support of sustainable economic development. There are various types and forms of policies such as broad policy which enunciates government-wide direction; more specific policy which may be developed for a particular sector for example the economic sector or issue-area such as child welfare, operational policy which may guide decisions on programs, and project selection. With respect to the forms that government policy can take, it is reflected most typically in legislation, regulations, and programs. These are often referred to as policy instruments. A refugee according to the United Nations Convention is someone who is unable or unwilling to return to his or her country of origin owing to a well-founded fear of being persecuted for a reason of race, religion, nationality, membership of a particular social group or political opinion.
According to Chapter five of the Refugee Act of 1998 of South Africa, a refugee is entitled to a formal written recognition of refugee status in the prescribed form, to enjoy full legal protection and the right to remain in the Republic in accordance with the provision of the Act. A refugee is entitled to apply for an immigration permit which is in accordance of the Aliens Control Act of 1991, after five years continuous residence in the Republic from the date on which he or she will remain a refugee indefinitely. The act also stipulates that a refugee is entitled to an identity document which they refer to in section 30 (identity document to refugee), a South African travel document on application as contemplated in section 31(travel document to refugee). Refugees are also entitled to socio political and economic rights such as basic health service, basic primary education, shelter and security just like South African citizens.
The South Africa’s Refugee Act of 1998 offer refugees the rights which can be said to be as equal as those of the South African citizens , but however this has not been the situation on the ground. It has become so hard for refugees to apply for their permits. According to Wellman and Landau (2015) the situation of refugees in South Africa has become so radical to the extent that even if you are a holder of an asylum seeker permit which allows you to enjoy citizen’s rights while the state is still deciding if you qualify to be a refugee, which can take so many years. The asylum entry way has become so clogged with hundreds thousands of people for whom it was not intended, side-lining those who desperately need protection. In addition to that, the money budgeted for refugee status and the resulting backlogs have bred corruption within outside government offices, produced a market for fake documents and de legitimized the asylum system.
The reality on the ground.
The problems facing refugees in South Africa, has posed major challenges to South African government, civil society and the International community. These problems include policy implementation, xenophobia, and security, access to services, corruption and lack of awareness of human rights for refugees. The efficient implementation of the government policy regarding refugees is an integral part of protecting the rights of refugees and asylum seekers in South Africa. The Department of Home Affairs (DHA) is responsible for implementing refugee policies as well as issuing of appropriate permits and documentations to refugees and asylum seekers. The South African Refugee Act 130 of 1998 mandated the Department of Home Affairs to issue in a right manner appropriate permit to refugees and asylum seekers in order to protect their rights and legalize their stay in the country. According to Refugee Act, when an asylum seeker filled an application form for a refugee status, such application must be processed by the DHA not later than six months of such application. This is to enable the applicant enjoy adequate Legal protection and have access to some of the basic rights entitled to refugees in the country since they are vulnerable and depended on government and International community for protection. According to Garderen and Jaichouth lawyers for human rights (2001) argue that refugees spend a lot of time or days on long queues to be ableto renew their permits and they also complained about the process as being slow andfrustrating.
Issues to do with institutional failures is determining refugee status and issuing recognizable identity documents, denial of essential social services and abuse at the hands of law enforcement agents according to Landau (2006). The reality on the ground on the policy for refugees status in south Africa is something which is generalized due to the fact that government have taken the position that the post-apartheid refugee policy is too generous and needs to be revised with greater restrictions and fewer rights which resulted in the changes of the 1998 refugees act in 2016 refugee amendment Act and the new restrictive approach to refugee protection in 2017, White Paper on international migration in South Africa stipulated Johnson (2015).South Africa now wants to move from integrationist to detention model according to Landau and Duponchel (2011), ”plans are drawn for the location and physical infrastructure of detention close to South African borders with Zimbabwe and Mozambique ” which proves that freedom of movement into local communities will be stopped. The act according to Landau (2006), ”the act embraced local integration over encampment which was a progressive choice in Africa at the time”.
South Africa has now become undesirable destination for refugees due to the constricting of refugee rights and status. Refugee policy is now characterized with ever growing waiting times for status decision, ever growing barriers for application and renewal of permits and growing disregard for refugee law and court orders states Landau (2006). Logistical and administrative procedures has become tenuous due to the fact that Department of Home Affairs has now reduced the number of Refugee Reception Offices by closing busy offices in Johannesburg (Crown Mines), Cape Town and Port Elizabeth only refugees offices in Musina, Durban and Pretoria are left open. According to Johnson (2015), the department of home affairs stripped all refugees’ status from Angola of their refugee status irrespective of length of residence and then under protest issued them with two year non-renewable temporary residence permits called Angolan Cessation Permits. In 2010 financial intelligence center act prohibited refugees from opening bank accounts in South Africa, assets frozen when identity documents have not been renewed on time which makes them to carry money around which makes them ready targets for theft according to Rogerson (2004). There is now an erosion of the protective and progressing refugee policy approach that characterized the immediate post-apartheid era.
Xenophobia has become a serious problem in South Africa and has influenced government policies regarding refugee protection. Before delving into the tragedy that surrounds and clouds this phenomenon it is worth taking into account the fact that these attacks are not happening everywhere in SouthAfrica hence some of the refugees are safe and sound and living fair lives in South Africa. It is mostly in the economically disadvantaged and overpopulated areas that this phenomenon is rampant. Xenophobia poses a serious threat to refugee protection and democracy in South Africa by negating the principles of human rights. Xenophobia has led to intolerance, violence, human rights abuses and death towards foreigners in extreme cases. Xenophobia encourages corruption, violence and barring access to public health, education and other social services which refugees and asylum seekers are entitled. Often, xenophobic attitudes by host communities create obstacles for participation in public life, which often results in psychological and practical barriers to full integration. According to Rutinwa(2002), argues that one of the causes of xenophobia is the failure of the public to appreciate the special situation of refugees. Hence xenophobia has affected the rights of refugees and asylum seekers in South Africa in various forms and has negative impacts on their ability to have access to services in both private and public fore. Sisulu (2017) opined that the attributes of xenophobiastem from the inability of the SouthAfrican nationals to host foreign nationals as they view them as threats to their economic and social status quo.
The issue of xenophobia creates a spillover into the security of the refugees in South Africa. A study by the Wits university in 2005 revealed that 49 percent of the refugees in southAfrica who are well documented do not trust the police or rely on their cooperation and aid if they are to find themselves as victims in any scenario.Enwere (2005) brings this way into the fore when he saysxenophobia is also a psychological state of the mind and being uncomfortable with anything different and has been used to engage in politics of exclusion and discrimination. This is because of the stereotypical notions that portray refugees and foreigners as the major perpetrators of crimes and deviant behavior. It is therefore worth scrutinizing that there have been sporadic xenophobic eruptions in South Africa time and again. This reveals a major gap in the participation of societies in the protection and integration of refugees. The utterances by King LizweLithini which sparked sporadic attacks of foreign nationals show that there is great gulf that indeed needs to be filled in improving the lives of the refugees better in SouthAfrica. Some of the refugees have however been able to integratethemselves into the SouthAfrican communities and society by adopting their language and way of life. Some have successfully done adopted but for others there are still struggling to fully assimilate themselves into South African values norms and culture thereby making them vulnerable to name calling and even xenophobic attacks.
Obtaining necessary documentation and permits from Department of Home Affairs is a primary step in accessing government services such as housing, education, medical services and employment by refugees. Generally as stipulated by the refugee policy of 1999 the refugee status application should be responded to not later than six months. The time it takes for one to be given refugee status varies from person to person. In the interviews conducted by Enwere (2005) it was discovered that for some it just took a few weeks and for others not less than 2 months and for the bulk of the unfortunate refugees the proves may drag on for years. Disparity in the provision of documents for the refugees is a cause for concern as the livelihoods of the refugees are greatly dependent on their possession of the right documents. One may support that facing difficulties and inconveniences of getting refugee permits from Department of Home Affairs may worsen the situation leading to emotional disturbances. This predicament is aggravated by the fact that the refugee offices are very thereby forcing the refugees to be concentrated in the few cities where there are easily accessible and most likely to be open for their convenience. The process of getting to acquire the refugee status and the documents that come with the accordance of such a status is bureaucratic in nature hence making it a very monotonous, long and mostly frustrating process. In order to bypass this process many have opted to engage so called agents and also paying out lump sum of monies to the officials in the department of home affairs. This corrupt but rife practice has proved to a very detrimental practice in the acquiring of documents for the refugees and asylum seekers.
Silove and Steel (1998) reveal that, “refugees who flee from conflict areas may develop mental health disorder and maybe traumatized by the consequences of war”. In terms of access to healthcare the nation has mostly been accommodative. The nation of South Africa has been in most cases very competent in the provision of healthcare for both the refugees and asylum seekers. There are however instances that can be singled out in the provision of this vital component of human existencewhere there seemed to be reluctance by the healthcare centers and the public hospitals to provide health care owing to different reasons some of them just racial or ethnic prejudices. There is a case scenario that was mentioned by Enwere (2005) where a Somalian woman who was a refugee gave birth at a hospital reception because the husband was not able to pay for the wife’s maternity fee. these scenarios though rare paint a rather gleam picture and makes it clear that more still needs to be done inorder to make sure that refugees are given access to healthcare and help where it is it needed.
Conclusively, the South African refugee policy on paper is a hallmark of great consideration to the plight of refugees and how they might be assisted within the state. It is however regrettable to find out that theory and practice do not really tally as a myriad of factors weigh down on the overall performance of the department of home affairs in handling refugees. It is however worth taking into note that despite the great and various challenges that plague the refugee policy implementation reality on the ground is not completely gloomy as some of the refugees have been enjoying the rights and privileges that come with being granted refugee status within the nation.