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An
image of the xenophobic attacks taken in 2008 being wrongly attributed to the
2015 attacks
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Written by
SALC/MARAVIPOST
We, the undersigned organizations, write to you as concerned organizations
and citizens of the African continent to raise concern about the xenophobic
attacks in the Republic of South Africa which have recently taken place against
migrants and refugees predominantly from other African countries. We approach
you as the body responsible for promoting unity and solidarity among African
states. We also call on you as the body responsible for the promotion of peace,
security and stability in Africa.
The objectives of the AU are inter alia:-
- To achieve greater unity and solidarity between the African countries and the peoples of Africa;
- To encourage international cooperation, taking due account of the Charter of the United Nations and the Universal Declaration of Human Rights;
- To promote peace, security, and stability on the continent;
- To promote democratic principles and institutions, popular participation and good governance;
- To promote and protect human and peoples' rights in accordance with the African Charter on Human and Peoples' Rights and other relevant human rights instruments.
Between 2000 and March 2008, at least 67 people died in what
were identified as xenophobic attacks in South Africa. In May 2008, a series of
rapid large-scale attacks left 62 people dead and over 600 injured. Twenty-one
of those killed were South African citizens, apparently because they were
perceived as foreigners. The attacks were apparently motivated by xenophobia,
[i] and have continued to occur every year since 2009. And more recently in
2015, another nationwide spike in xenophobic attacks against migrants and
refugees occurred in January and again in April. The latter attacks which began
in KwaZulu-Natal Province prompted a number of foreign governments to
repatriate their citizens. The April 2015 attacks resulted in at least seven
verified deaths, but the number is understood to be higher, and at least 5,000
migrants and refugees displaced.
We urge the AU to call upon the South African government to
take concrete steps to end these attacks, prosecute perpetrators and protect
migrants and refugees living in their territory from violations of their human
rights, including the right to life. As organizations operating on the African
continent, we are particularly concerned about the loss of lives, injuries to
persons, damage to private property and the infringement of dignity of migrants
and refugees living in South Africa, which are a grave violation of their
rights protected under the African Charter on Human and Peoples’ Rights (the
African Charter). The right to life, not to be subjected to torture, cruel,
inhuman and degrading treatment, and the right to strict equality before the
law are non-derogable rights – not dependent on a person’s status in a country.
South African President Jacob Zuma during a Freedom Day event
in April made a statement that Mozambican national Emmanuel Sithole (aka
Emmanuel Josias) who was brutally killed during these attacks was an illegal
immigrant using a false name.[ii] The immigration status of foreign nationals
who are victims of the attacks in South Africa is irrelevant. South Africa has
an obligation to protect all persons within its borders.
We are concerned in particular about the situation of asylum seekers
and refugees who should receive special protection but who are in a vulnerable
and desperate situation following these tensions.
We are further concerned by comments made by persons in
positions of authority and influence which may amount to incitement to violence
and the role that these persons play in perpetuating xenophobia and intolerance.
While some official statements have been made to condemn the violence, we are
concerned that not enough concrete steps are being taken to prevent such
attacks, prosecute perpetrators, protect migrants and refugees and prevent the
mass coerced exodus of foreign nationals from the country. We call on the AU to
ensure that South Africa holds leaders and persons in authority accountable for
their role in inciting violence and intolerance, or for the systematic failure
since 2008 to implement effective prevention and protection plans for migrants
and refugees at risk of attack, property destruction and displacement.
We note statements of several governments, including the
South African government, to provide assistance for individuals leaving the country.
While those who wish to leave should be assisted to do so, the solution to the
violence should not be to repatriate all foreign nationals, but to ensure an
environment in the country in which their rights are protected. Furthermore,
the acts of those carrying out attacks against foreign nationals should not be
rewarded by assisting them to achieve their objective of ridding South Africa
of foreign nationals.
Following the xenophobic attacks in April there have been
nationwide police raids, with military presence on the streets, apparently
intended to combat crime, but predominately involve arresting and deporting
migrants alleged to be illegally present in the country. We call on the AU to
alert South Africa to the unlawfulness of these actions. According to the
Department of Home Affairs, 2767 foreign nationals have been repatriated since
the April attacks began.[iii] This includes some 913 Malawians, 637
Mozambicans, 17 Tanzanians and 1098 Zimbabweans. There were also reports that
an estimated 400 men and women from Lesotho were deported. These repatriations
and deportations are ongoing. We are concerned about the mass raids, rounding
up of foreigners and ongoing deportations which do not appear to adhere to any
procedural safeguards[iv] such as investigations into immigration status;
access to legal representation; ability to make representations to a court and
steps taken to ensure that no refugees and asylum-seekers, to whom a duty of
international protection applies, are not subjected to forcible returns. In
this regard, we remind all States of the provisions of Article 12 of the
African Charter which prohibits the mass expulsion of foreign nationals. We are
also concerned by the heavy handed approach adopted by the South African
authorities in carrying out raids and mass arrests with a view to deporting
foreign nationals as a response to xenophobia. This was most recently
highlighted in “Operation Fiela” which took place in Johannesburg during May.
Despite Cabinet’s statements to the contrary this operation has targeted
foreigners at a higher rate than citizens.
We refer the AU to the African Commission’s statement in its
decision on mass expulsions from Angola[v] which continue to be highly relevant
to the current situation in South Africa:
“The Commission concedes that African States in general … are faced with many challenges, mainly economic. In the face of such difficulties, States often resort to radical measures aimed at protecting their nationals and their economies from non‑nationals. Whatever the circumstances may be, however, such measures should not be taken at the detriment of the enjoyment of human rights. Mass expulsions of any category of persons, whether on the basis of nationality, religion, ethnic, racial or other considerations "constitute a special violation of human rights". This type of deportations calls into question a whole series of rights recognized and guaranteed in the Charter; such as the right to property (article 14), the right to work (article 15), the right to education (article 17 paragraph 1) and results in the violation by the State of its obligations under article 18 paragraph 1 which stipulates that "the family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical and moral health". By deporting the victims, thus separating some of them from their families, the Defendant State has violated and violates the letter of this text…
The Commission does not wish to call into question nor is it
calling into question the right of any State to take legal action against
illegal immigrants and deport them to their countries of origin, if the
competent courts so decide. It is however of the view that it is unacceptable
to deport individuals without giving them the possibility to plead their case
before the competent national courts as this is contrary to the spirit and
letter of the Charter and international law.[vi]
In a later case, the African Commission stressed the
importance of due process and access to legal representation which are, in the
current scenario, also of significant importance:
“Time and again, in communication 71/1992, Recontre Africaine pour la Défense des Droits de l’Homme v Zambia [(2000) AHRLR 321 (ACHPR 1996)], the African Commission held that the mass expulsions, particularly following arrest and subsequent detentions, deny victims the opportunity to establish the legality of these actions in the courts. In the present case, there is no indication as to whether the deportees were accorded the opportunity to contact their families, much less attorneys, thereby making the requirement of exhausting local remedies impracticable.”[vii]
It further stated:
“The African Commission is of the view that the actions of the respondent state as shown in the preceding paragraphs not only denied fair treatment of the victims with opportunity to challenge their deportation but also failed to allow them opportunity to deal with their belongings. The complainant argues and the African Commission concurs that the type of deportations involved in the present case (ie mass expulsions without due process) challenge a series of rights and protections afforded by the Charter, including the right to property, and, as such, the measures taken by the respondent state in its arrest, detention and subsequent deportation of the victims ‘called into question a whole series of rights recognized and guaranteed in the Charter’, including the right to property. While the right to property under the African Charter is not absolute, the respondent state has not provided evidence to prove that its actions were necessitated either by public need or community interest. Without such a justification and the provision of adequate compensation determined by an impartial tribunal of competent jurisdiction, the African Commission finds the respondent state’s actions in violation of the right to property under article 14 of the African Charter.”[viii]
We further draw the AU’s attention to the resolution of the
African Commission in April 2015 condemning the xenophobic attacks in South
Africa[ix] and request the African Union to call upon the government of South
Africa to:
- i. Protect migrants, refugees and other vulnerable foreign nationals from further attacks, including by increasing impartial and effective police presence in high-risk areas and immediately implementing conflict resolution initiatives in these areas involving the Department of Home Affairs;
- ii. Provide humanitarian and other social assistance to those affected by the xenophobic attacks in the country, including counselling for trauma and access to information on services and on durable solutions for refugees and asylum-seekers;
- iii. Bring perpetrators of violence against foreign nationals to justice. To facilitate such prosecutions the Department of Justice should set up special courts, as was done during the 2010 World Cup in South Africa, to deal with all cases of violence against foreign nationals in a bid to ease the burden on the courts. Information on accessing these courts should be widely disseminated;
- iv. Investigate and bring to justice the instigators behind the perpetration of the violence;
- v. Condemn unequivocally comments by persons in positions of authority and influence which may amount to incitement to violence;
- vi. Effectively engage the broadest possible South African public, in order to curb and eradicate xenophobia and xenophobic violence. These messages should be repeated, constantly re-iterated and not only heard after crises moments. They should be accessible, in local languages, should be expressed directly to communities, and should involve local leaders;
- vii. Advise and assist all those who have been victims of violence to seek redress;
- viii. Assist refugees and asylum seekers who have lost their permits to have these re-issued and put in place concrete plans for their reintegration into communities.
As stated above, in 2008, the xenophobic attacks left at
least 62 dead, hundreds wounded, and contributed to the displacement of 100,000
people or more. Following those attacks the South African Human RightsCommission (SAHRC) prepared a report with their findings andrecommendations[x]. We call on the AU to remind the South African government of
this report and call upon the government and the SAHRC to immediately take
steps to implement the recommendations found therein.
In addition, we request you to call upon governments of other
countries to ensure steps are taken to prevent reprisals against South African
nationals in their territories.
Source: The Maravi Post
