Migrants are a challenge across the world and South Africa is no exception. Bearing the bouts of xenophobic attacks, many South Africans remain unaware of the movements of migrants and refugees around our own cities, unaware of a society breeding in silence. Hundreds of human lives: children, some of whom have travelled by foot across borders, often starved and emaciated, parents who have carried their children on their backs to get them to a place where they can be human again, where an idyllic framework of human rights is in place.
How could they know that despite the South African Constitution’s focus on equality and fairness to all children, these permissive laws remain largely unimplemented among the institutions tasked with service provision. The shocking truth is that in many instances, migrant children have fewer rights and a lesser status in their place of refuge than they had in the country that they left in search of a better life.
The Convention on the Rights of the Child, a human rights treaty set out by the UN on the rights of children, is the most extensively endorsed international human rights treaty in history. Countries which sign the treaty are monitored in relation to their compliance and are expected to submit reports reflecting their progress and implementation within the framework of their own legal and child protection system. South Africa endorsed the Convention on the Rights of the Child on 16 June 1995, and then went on to develop its Constitution and pass the Children’s Act, both of which are aimed at integrating the convention into South African law.
The focus of this legislation is on the equality and fairness that all children have the right to enjoy, no matter where they come from. However, the provisions that are set to guide our behaviour often appear only as good intentions. South Africa is failing in the implementation of these values for all of our children, but this is especially true for migrant children – both those that are documented and those that aren’t.
In August 2015, a forum held by Save the Children South Africa highlighted these problems, focusing on the movements of migrant families and their children in and around Africa, and the hardships that migrants face in their journey to a better life. It is a journey which often subjects them to further neglect, exploitation and abuse. Migrants regularly have to pay bribes at border posts or refugee offices, are sold fake documentation, and have to pay fines to have their documents renewed. Even when they arrive at their destination country they are frequently scattered, living under the radar among often hostile communities, facing a life without belonging. Tragically, children in these families are often unknowingly forced to grow up in an underground world.
The Refugee Act and legislation in South Africa prohibits the implementation of refugee camps because they are said to separate people from society and restrict freedom of movement. However, this fails to account for migrants’ lack of a central place of safety, which leaves them in desperate need of an environment where they are safe, where they can be legitimately assisted and guided in their integration into society, where their skills can be put to use, and where they can find jobs. Refugee camps do not need to be a means to an end, but they may be imperative as grounding centres for assisting migrants to adjust and develop a belonging in a country that otherwise leaves them to survive on the outskirts of its communities.
Despite this, makeshift camps are only set up when episodes of violence are captured by the media. They become an act of desperation to protect migrants from violence and abuse, only to be taken down when the hype dies down. After these camps are disassembled, children can be left vulnerable, forgotten and dispersed.
A concern about restricting the freedom of movement of migrants has to be weighed against the inhumane futures that migrants are forced to face as a result of having no support and structure when trying to build a life in a new country, and acquire all of the necessary documentation. In the end, we may be overvaluing one constitutional right at the expense of many others.
It isn’t just communities that are hostile to arriving migrants. In spite of South African law making provision for all children to have access to these basic rights and services including education and adequate healthcare, it seems as if government sectors, schools and healthcare facilities share a breakdown of communication and co-operation in implementing South Africa’s laws and legislation in the rights of migrant children and refugees. Many children are turned away from schools and clinics daily – some due to a lack of documentation, and others for no apparent reason at all.
The future is particularly bleak for migrant children. A vast number of these refugee and migrant children end up at the door of our social services department and are placed in children’s homes and foster care. Some of them travelled unaccompanied or have been orphaned, but many simply have families who are not able to care for them due to the lack of support.
A large percentage of these children are also undocumented owing to their circumstance. In theory, South African law makes provision for all children to be cared for, regardless of their origin. But this is not always true in practice, and little thought is given to what will happen to migrant children who grow up in South Africa and reach the age of majority. While it is critical for children under the age of 18 to be cared for under the law, it is equally important to have policies that make provisions for children as they become adults. However, no such provisions exist, and undocumented children who are protected as children are effectively discarded as they become adults. They are not citizens of the country, and are therefore illegal –the cycle of an undocumented society is propagated.
Critically, South African law not does grant citizenship to individuals of foreign descent, even if they are born in the country. The result is a generation of stateless children who are illegal in South Africa, but also have no ties to their country of family origin because many have lived most (or all) of their lives outside of its borders. In these instances, no country, even their birth nation, will take responsibility for their statehood.
It seems that the list of problems that migrants face is endless, and perhaps in a country that struggles to care for their own, a lack of empathy for those outside of our walls becomes understandable. The South African Constitution, for example, is arguably one of the most well compiled and humane legal codes in the world but countless numbers of South Africans experience barely a handful of these rights. How can we care for others when we can’t even care for our own?
So, the question is: What next? Where do we begin to make the changes necessary so that the law, and people’s experience of the law, are met somewhere in between? Given our country’s capabilities, maybe it is time for policies to become more realistic. But equally, perhaps it is time for our social service providers to step up their game, and fulfill the expectations that we ourselves have set. DM
A registered social worker, Talia-Jade Magnes has immersed herself among the migrant communities in Johannesburg. She is committed to the advocacy of human rights and to the protection of children.
Are You A South AfriCAN or a South AfriCAN'T?
Maverick Insider is more than a reader revenue scheme. While not quite a "state of mind", it is a mindset: it's about believing that independent journalism makes a genuine difference to our country and it's about having the will to support that endeavour.
From the #GuptaLeaks into State Capture to the Scorpio exposés into SARS, Daily Maverick investigations have made an enormous impact on South Africa and it's political landscape. As we enter an election year, our mission to Defend Truth has never been more important. A free press is one of the essential lines of defence against election fraud; without it, national polls can turn very nasty, very quickly as we have seen recently in the Congo.
If you would like a practical, tangible way to make a difference in South Africa consider signing up to become a Maverick Insider. You choose how much to contribute and how often (monthly or annually) and in exchange, you will receive a host of awesome benefits. The greatest benefit of all (besides inner peace)? Making a real difference to a country that needs your support.
Excalibur and the Sword in the Stone are two separate swords.