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New human rights agreement on migrants and refugees is a breakthrough, but SAPS must firmly be on board

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Themba Masuku is a Programme Manager at the African Policing Civilian Oversight Forum. He was a member of the Panel of Experts on Public Order Policing in 2017-2018 which was chaired by the late Judge Ntshangase. He holds a Master’s Degree in Social Science from KwaZulu-Natal and a Master’s Degree in Law with specialisation in Human Rights. He has several publications on policing, which can be accessed online.

A memorandum of understanding signed by the SA Human Rights Commission and the UN High Commissioner for Refugees could be the much-needed game-changer in advancing the human rights of migrants and refugees and helping end xenophobic violence.

Xenophobic incidents and related hate crimes have become a regular feature in post-apartheid South Africa. Despite significant progress having been made towards the promotion of the principle of non-discrimination, equality and dignity for all persons, the country has been experiencing recurring xenophobic violence and anti-immigrant sentiment against migrants and refugees and others based on their national origin. These have a serious impact on the lives and livelihoods of groups that are especially vulnerable to human rights violations.

On 6 October 2021, the South African Human Rights Commission (SAHRC) and the United Nations High Commissioner for Refugees (UNHCR) signed a memorandum of understanding to formalise the relationship between the two human rights-based entities in advancing and protecting the human rights of migrants and refugees.

According to the SAHRC, among the joint engagements, the SAHRC and UNHCR will advocate progressive policies, legislation, processes and practices for the protection and promotion of human rights.

This is a welcome and significant development in a partnership that has the potential to bolster government efforts in strengthening human rights culture and the commitment to protect vulnerable groups from human rights violations. Asylum seekers, migrants and refugees living in South Africa face several hardships which include structural discrimination, xenophobic violence, and related crimes. There is evidence of escalating violence, intolerance, discrimination, and violation of human rights of migrants and refugees. African migrants and refugees disproportionately feel the brunt of these violations as most of them live in poor communities already facing high levels of unemployment, poverty, and crime and violence.

A research report by the African Policing Civilian Oversight Forum (Apcof) argues that among the key policy deficits this partnership needs to consider is the absence of an over-arching policy framework to guide SAPS’ approach to the prevention, detection and response to xenophobic violence and related hate crimes, and its service provision to migrants and refugees more generally.

This is potentially a key gap. The constitutional and legislative framework lays a solid foundation for the promotion of responsive, equitable and non-discriminatory policing services, but lacks detail in terms of how SAPS intends to implement these obligations at the institutional and operational level. A cohesive policy framework would identify the approach and priorities required by SAPS, and if aligned with the broader objectives of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and related intolerances (NAP) and its 2019–2024 implementation plan, provide coherence in approach across the justice sector.

There are a number of broad issues identified in the research report which require a policy response by SAPS to improve its policing of xenophobia and related hate crimes. These include:  

  • Acknowledging xenophobia and related hate crimes as an issue: an overarching strategy provides an opportunity for SAPS to provide an evidence-based acknowledgement of and response to this issue, reflecting on past challenges, and framed within its broader obligations with respect to the delivery of equal and non-discriminatory services to all who reside in the Republic;
  • Recruitment: to articulate a position on the representation of eligible migrants and refugees within the SAPS in line with South Africa’s labour legislation;
  • Training: to provide SAPS members, either as part of basic or ongoing training, that deals with issues of diversity on the basis of ethnic or national origin; and the legislative regimes governing migration and asylum;
  • Operational Tactics: in legitimate law enforcement operations, sweeps and raids may be tactically justified, however, clarity and direction is required in terms of when they should be used in the context of policing operations that are targeted or likely to affect migrants and refugees, and how the planning, conduct and review of these operations accounts for the constitutional requirement of equal and non-discriminatory policing services;
  • Profiling: the efficacy and rights impact of profiling practices, more generally;
  • Social crime prevention strategies: to  ensure that operations targeting social crime prevention are planned and implemented in terms of not only the constitutional requirement of equitable and non-discriminatory policing services, but are consistent with the procedural safeguards guaranteed by law, particularly in terms of immigration and refugee law; and
  • Zero tolerance for xenophobia: finally, the policy should be unequivocal about the prohibition on actions or omissions by members that amount to xenophobia, or tolerance thereof through a variety of measures including prevention (training, recruitment screening) and combating (enforcement of the Code of Conduct and effective internal and external accountability).

These challenges are recognised by both the SAHRC and UNHCR, who are key stakeholders in broader efforts across government, and civil society to address the causes and drivers of xenophobia.

These efforts are reflected more broadly in the NAP whose objective is to prevent and combat racist, sexist, homophobic, xenophobic, and other discriminatory conduct and forms of prejudice that we have been experiencing in our country. The MoU provides an opportunity for SAHRC and UNHCR to monitor government response to these challenges and the implementation of Nap.

The MoU between SAHRC and UNHCR has clearly raised expectations in the migrant communities that their human rights will be finally protected. Time will tell whether anything will change. DM

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