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Corruption at asylum and refugee centres is a shocking indictment of our human rights record

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

Instead of serving as a safe gateway for asylum seekers and refugees, the Department of Home Affairs and the Refugee Reception Office are the bedrock of corruption and abuse of the rights and freedoms of the most vulnerable on the African continent.

According to the 2019 report of the United Nations High Commissioner for Refugees (South African Regional Office), South Africa receives the highest number of asylum applications in the subregion and struggles to protect asylum seekers. 

The  2020 report of Lawyers for Human Rights (LHR), in collaboration with the Scalabrini Centre of Cape Town and Corruption Watch, titled Costly Protection: Corruption in South Africa’s Asylum System, was launched on 15 September 2020. It paints a bleak and sordid picture of the plight of refugees and asylum seekers at refugee reception offices (RROs) in South Africa.

The report is the result of a survey of 263 asylum seekers and refugees across the country. The survey was administered at rights education workshops, law clinics and through the work of civil society organisations. It portrays a damning picture of human rights abuses of refugees and asylum seekers in South Africa.  

Instead of serving as the gateway for asylum seekers and refugees receiving protection and regularising their stay in South Africa, the Department of Home Affairs (DHA) and the RROs are the bedrock of corruption and abuse of the rights and freedoms of the most vulnerable on the African continent. For example, the report states: “One respondent to the Johannesburg office’s corruption survey reported being held in detention for two days because he did not have any money. Eight of the 10 who were arrested before they reached an RRO were physically, emotionally, verbally or mentally abused while in police custody. One stated: ‘I had been raped, but when I reported it [to the SAPS] I was told to go back where I came from.’ Five of the 10 had to pay to get out of jail.”

It is not only a national shame but an international concern that the officials at the DHA and RROs are not respecting and promoting the country’s Constitution and law prohibiting arbitrary arrest and detention. It is the government that should be at the forefront in providing protection and assistance to refugees, asylum seekers and other vulnerable people.

Reading the report leads me to conclude that the DHA is in effect the Department of Corruption Affairs. However, this is not surprising as several previous reports on the state of asylum seekers and refugees in South Africa flagged corruption and corrupt activities at the DHA and RROs. 

Interestingly, the titles of these previous reports tell the reader immediately that corruption is endemic in South Africa. Titles range from Queue Here for Corruption by the LHR and the African Centre for Migration & Society, to Asylum at a Price by Corruption Watch.

In a nutshell, all I can say is that if you think corruption in South Africa is bad, think again. Rather, it is a human rights concern beyond imagination.

Worth noting are the recommendations by the LHR on how to deal with corruption in the refugee and asylum-seeking environment. Some of the recommendations should have long been implemented by the relevant authorities. Notable is the recommendation to “ensure clear anti-corruption messaging, as well as notices at all RROs indicating the procedure that can be used to report corruption”; a system that ensures that whistle-blowers disclose the corrupt activities at the DHA and RROs without fear and under protection from reprisals.

One recommendation that I take issue with is the “further amendment of the new provision in the Refugees Amendment Act that currently provides for the exclusion from refugee status for any person who is found in possession of fraudulent documentation”. In effect, this makes provision for the cancellation of refugee status.

The United Nations High Commissioner for Refugees notes that cancellation of refugee status may arise where a person recognised as a refugee by a state under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol is subsequently found not to have been entitled to the benefit of international protection under these instruments. Through cancellation, the positive refugee status is invalidated because such determination should not have been made in the first place.

By law, the refugee status is said to have been null and void from the time of the original decision. In essence, the LHR report recommends in part for no cancellation of refugee status and for no prosecution or other consequences for being in the country as an undocumented person. If South Africa wants to combat corruption and corrupt activities successfully, it would be foolish to adopt an approach that readily excuses illegal activities.

Rather, the relevant legislation must be amended to have exceptional considerations on a case-by-case basis, with general principles of law, including, for example, procedural fairness being key to any decision of exclusion or cancellation.   

Under international law and practice, cancellations and exclusions have been considered based on evidence of fraud by the applicant relating to core issues concerning his or her eligibility for protection, and for corrupt practices such as bribery. To this end, I am of the view that the recommendation for “non-penalisation or amnesty for persons with fraudulent documents” is ill-advised and should be carefully considered.

As already noted, South Africa is one of the top global recipients of asylum seekers. Families and children from across Africa, particularly human rights pariah states like Zimbabwe, are constantly on the move to flee from hunger, economic deprivation, violence at the hands of the state, political displacement and other human rights abuses. 

Yet South Africa — an internationally acclaimed democratic and human rights-based country — is experiencing corruption at the DHA and RROs, and the escalating human rights abuses of refugees and asylum seekers. For instance, different human rights reports nationally and globally represent the country as averse to the protection of human rights of everyone — including protecting refugees and asylum seekers from corruption and abuse.

The LHR reports aside, we keep on hearing the same story from different people regularly about the fact that the DHA and/or RROs do not protect refugees and asylum seekers. Our policy, regulatory and legislative regime must be able to deal with the influx of refugees and asylum seekers in a proper, legal and humane way.

Further, as we move towards the reopening of South African borders, which have been closed due to Covid-19 lockdown restrictions, there is a need for the country to immediately address the reported dysfunction at the borders.

Our detention centres must safeguard families, refugees and asylum seekers from arbitrary, unjust and inhumane incarceration. We may not all agree, but these are also at-risk populations, like citizens who are or have been deprived of state protection from corruption and other human rights abuses.

My message to the DHA and the government of President Cyril Ramaphosa is simple: states perceived to be highly corrupt are, at the same time, those with a poor human rights record. As argued previously in Daily Maverick:It is important for us to note the hugely negative impact corruption has on the protection and promotion of human rights in South Africa.”

Can somebody please save South Africa from going down the path of infamous, anti-human rights states? DM

 

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