The constitutionally guaranteed right to equality and the equal protection and benefit of the law apply with equal force to foreign nationals within South Africa.
The xenophobic attacks against foreign nationals in 2008, which resulted in the deaths of approximately 56 people, the displacement of scores ofcforeign nationals; and the outbreak of further xenophobic attacks in 2015, exposed the continued vulnerability of foreign-nationals, particularly from other African countries in South Africa. These incidences of xenophobic violence and the increasing unfair discrimination against foreign-nationals have necessitated that the Commission maintain its focus on immigration issues and the rights of foreign nationals.
In May 2008, South Africa witnessed an outbreak of xenophobic violence, which resulted in the deaths of approximately 56 people and the displacement of scores of foreign nationals. Following this outbreak of violence, a number of interventions were made by both government and other non-government organisations, including the Commission, with the view to ensuring that the violence witnessed in 2008 is never again repeated in South Africa. Notwithstanding these interventions however, in April 2015, South Africa witnessed another outbreak of xenophobic violence. This outbreak, once again, emphasized the fragile state of human relations between nationals and foreign nationals in South Africa and further exposed the continued vulnerability of foreign nationals, particularly from other African countries. These incidences of xenophobic violence and the increasing unfair discrimination against foreign nationals have necessitated that the Commission maintain its focus on immigration issues and the rights of foreign nationals.
The Human Rights Commission’s work on Immigration
The complaints received by the Commission and the intermittent outbreaks of attacks on foreign nationals highlight systemic challenges relating to the achievement of equality, particularly in relation to race, social origin, and nationality.
The work of the Immigration portfolio is informed by the constitutional mandate of the Commission, relevant national legislation, and applicable international and regional instruments.
The Commission, through the Office of the Chairperson of the Commission undertakes various activities and initiatives to address the issue of human rights abuses related to immigration. The Commission also investigates complaints in relation to such matters and issues findings and recommendations to address these issues. In addition, the Commission monitors and makes recommendations for law reform nationally, and makes submissions to supra national bodies on progress by government in protecting the rights of foreign nationals. The Commission has recently submitted such recommendations in the UPR report. National reports, which address the rights of foreign nationals, are in included in the Commission’s annual Equality Report.
Section 11 Committees
In conducting its work on Immigration, the Commission relies on the advice and recommendations from the Equality Advisory Committee, a committee that has been established in terms of section 11 of the SAHRC Act, to advise the Commission on all equality and migration related matters. Section 11 Committees are advisory structures comprised of experts from different disciplines and institutions.
Given the complexity of concerns around immigration and the rights of foreign nationals, a number of Section 11 Committee Meetings have been convened over a period of time, with the most recent constituting a specific Section 11 Committee Meeting on Migration in 2016.
In 2012, the Commission, alongside People Against Suffering, Suppression, Oppression and Poverty (“PASSOP”) and 39 detained foreign nationals, launched an urgent court application against the Department of Home Affairs for continuing to violate the rights of immigrants at the Lindela Repatriation Centre by detaining them for longer than the prescribed 120 day period allowed in terms of the Immigration Act. The court order, declaring the extended period unlawful, also requires the Commission to monitor places of detention. In accordance with this judgment and the Commission’s constitutional mandate, since January 2016, the Commission, in collaboration with other civil society organisations, has been conducting regular monitoring visits at the Centre, with the view to ensuring that DHA complies with the Judgment and its general human rights obligations in relation to the detainees. Work at the Centre is ongoing and the Commission is in regular discussions with DHA in relation to its monitoring activities in this regard.
In addition to investigating complaints lodged with provincial offices, the Commission also initiates its own investigations into immigration-related human rights abuses.
In 2014, the Commission initiated an investigation into the state of human rights, particularly the right to health care services, at the Lindela Repatriation Centre (Centre). The Commission’s report in this regard revealed a wide range of human rights violations at the Centre.
Following the xenophobic violence of 2008, the Commission received a request from the Consortium for Refugees and Migrants in South Africa (CoRMSA), to investigate the causes and the contributing factors of that violence. The Commission’s findings in this regard revealed numerous challenges and obstacles to access to justice, which impeded the realisation of the human rights of foreign nationals in South Africa. The Commission’s recommendations have only been partially complied with by government and continues to attract attention whenever the needs for reforms to rights protection of foreign nationals come under scrutiny.
The Commission undertakes planned and unannounced site visits to monitor the upholding of immigration-related rights, and to engage stakeholders on matters affecting human rights. Recent site visits include regular monitoring visits to Lindela Repatriation Centre and a visit to Komatipoort to engage community members whose ID documents had been blocked by the Department of Home Affairs.
The Commission conducts Hearings on a range of issues relating to equality and the rights of foreign nationals and on xenophobia.
International & Regional Interventions
The Commission attends regional and international conferences and other domestic platforms to ensure that it keeps up with national and international developments with respect to Immigration. The Commission’s attendance is also intended to foster information sharing and collaboration with other institutions and the development of regional legislation on equality and immigration.
Advocacy and public education
The Commission regularly conducts advocacy initiatives and public education on issues pertaining to immigration. These include, awareness raising through education, training, public information campaigns and community outreach clinics, seminars, conferences, dialogues, roundtables, web publishing, and use of social media platforms.
In its work on Immigration, the Commission has had engagements with the following stakeholders, Ugandan Ministry of Relief, Disaster Preparedness and Refugees.
The Commission also raises awareness and promotes equality and the rights of foreign nationals with media releases and public engagements on international human rights days such as World Refugee Day and World Day for International Justice, amongst others.
Domestic Legislation, International And Regional Frameworks on Immigration
The Commission’s work on the strategic focus area of immigration is underpinned by the constitutional imperative of achieving equality.
Section 1 of the Constitution of the Republic of South Africa, 1996 identifies the achievement of equality and the creation of a non-racial and non-sexist society as one of the founding values of our constitutional democracy.
Section 9 of the Constitution guarantees the right of every person not to be unfairly discriminated against, directly or indirectly, on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origins, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth.
The Equality Act 2000, which further prohibits unfair discrimination (on the grounds listed above), as well as hate speech and harassment in accordance with this Constitutional injunction.
In addition to these provisions, South Africa is a party to a number of international human rights instruments, which promote the right to equality and non-discrimination. Some of these instruments include:
- the Universal Declaration of Human Rights (specifically Articles 1 and 7)
- the International Covenant on Economic, Social and Cultural Rights (specifically Article 3)
- the International Covenant on Civil and Political Rights (specifically Article 3)
- the International Convention on the Elimination of All Forms of Racial Discrimination (specifically Articles 2 and 3)
- the International Convention on the Elimination of All Forms of Discrimination Against Women (specifically Articles 2, 5 and 10)
- the African Charter on Human and Peoples’ Rights (specifically Articles 2 and 3)
South Africa is party to the following international treaties:
Covenant on Civil and Political Rights – article 13 provides for the rights of aliens.
UN Convention Relating to the Status of Refugees (1951)
African Charter on Human and Peoples’ Rights – article 12 guarantees the right to seek asylum and protection from expulsion.
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa – article 11 places an obligation on states to protect asylum seeking women, refugees, returnees and internally displaced persons, against all forms of violence, rape, and other forms of sexual exploitation.
Recent engagements include:
- Department of International Relations and Co-operation and the Ugandan Ministry of Relief, Disaster Preparedness and Refugees, who conducted a study tour to South Africa to learn about the rights of asylum seekers in South Africa. 25 May to 3 June 2016.