Stellenbosch University: SA should rethink its definition of what constitutes a humanitarian refugee

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On 19 August, nations and societies celebrated World Humanitarian Day under the slogan “it takes a village to support people in crisis.” This slogan corresponds with the spirit of the African philosophy of solidarity on which the 1969 African Union Convention Governing the Specific of Refugee Problems in Africa (AU Convention) was based.

In adopting this Convention, African states and governments understood that humanitarian protection of refugees and asylum seekers – who are compelled to leave their home owing to crises beyond their control – should not be the burden of one nation. In this regard, Art 2(4) of the AU Convention states that “Where a Member State [of AU] finds difficulty in continuing to grant asylum to refugees, such Member State may appeal directly to other Member States and through the [AU], and such other Member States shall in the spirit of African solidarity and international cooperation take appropriate measures to lighten the burden of the Member State granting asylum.” Generously interpreted, this provision indicates that countries hosting and protecting the largest number of refugees and asylum seekers can appeal to other African countries to lighten their load. However, in practice, this approach is hardly applied.

Recent data from Statista shows that in 2021 Uganda hosted the most refugees (over 1.5 million) in the continent, followed by Sudan (1.1 million), Ethiopia (821 300), Chad (555 782), Kenya (481 048), Cameroun (457 269), Egypt (280 686), Niger (249 945), and Rwanda (121 896).

In 2020, South Africa hosted 255,200 forcibly displaced persons, of whom 76 800 were formally recognised refugees and 173 500 were individuals whose application for asylum were still pending. Because of the closure of the Refugee Reception Offices, there is also an unknown number of undocumented asylum seekers and illegal migrants. Unlike other host countries where refugees and asylum seekers live in refugee camps, South Africa allows them to integrate themselves into local communities.

The non-encampment approach has been an issue of concern because of serious risks and challenges it presents. One of these risks and challenges is the inability to trace undocumented migrants or asylum seekers in communities across South Africa. This makes it difficult to have reliable statistics of individuals who left their home countries due to crises such as political persecutions, war, human rights violations, climate change or other events disrupting public order.

For the last decade, the government has been complaining that the country has become a destination of bogus asylum seekers who left their homes in search of economic opportunities. The ANC’s 2012 Document on Peace and Stability noted with concern that the main challenge to offering political asylum to individuals in crisis was that over 95% of those claiming such protection were not genuine asylum seekers.

In response to this problem, South Africa has deployed security forces under the Border Management Authority to secure its porous borders or vulnerable segments along the borderline and to ensure that undocumented migrants do not have access to the country. Because South Africa has a Eurocentric view of political asylum, it does not appeal to other African states to lighten its burden of refugee protection as per the provisions of Art 2(4) of the AU Convention.

The Eurocentric approach to the protection of refugees is evident in its non-encampment strategy and the disqualifying of about 95% of asylum applications based on the ground that they do not meet the conditions of political asylum. In practice, South Africa takes its cue from the 1951 United Nations Convention (UN Convention) and the 1967 Protocol Relating to the Status of Refugees for its own political definition of the term refugee. Little or no attention is given to the AU Convention to protect other individuals in a humanitarian crisis.

In my doctoral thesis, I have indicated that the AU Convention takes a broader humanitarian approach to ensure everyone is protected against misery and human suffering. Within this understanding, the AU Convention sets forth standards that are based on African moral and cultural notions of humanitarianism and solidarity. These notions are intertwined with the African moral philosophy of ubuntu, and the emphasis it places on the protection of an individual’s life and dignity within a given community. For instance, in 1995 the Constitutional Court, in S v Makwanyane (the judgment that abolished the death penalty), stressed that respect for the dignity and humanism of every person is integral to Ubuntu.

From dignity and humanism perspectives, African nations understood that the humanitarian approach should be invoked in situations where the standards set forth under the UN Convention do not recognise certain categories of asylum seekers as refugees. Of great concern is that South Africa officially recognises political refugees but ignores humanitarian refugees falling under the AU Convention.

The time has come for the government to distinguish between refugees falling under the UN Convention and those falling under the AU Convention. In his 2014 doctoral thesis entitled Towards a more effective guarantee of socio-economic rights for refugees in Southern Africa, Redson Kapindu defines political refugees as those individuals who “are forced to flee from their own countries by reason of wrongful rights-violating conduct by the state; or similar conduct by non-state actors but the acquiescence of the state authorities; and they seek substitute state protection and political community membership in other countries.” This definition falls squarely with the one contained in the UN Convention. It defines the term refugee to refer to an individual who fled his or her home country because of a legitimate fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

On the other hand, the AU Convention widens the definition of the term refugee to include not only persons fleeing from political persecution, but also those who seek refuge owing to safety and security problems caused by external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of the country of an individual seeking asylum. Based on this premise, Kapingu contends that events seriously disturbing public order may include economic and humanitarian crises such as famine, drought, and financial collapse. In this regard, Kapindu defines humanitarian refugees as those individuals who “are compelled to flee their country of origin due to various factors that threaten to seriously harm their lives; but which are neither directly or indirectly attributable to wrongful state conduct.” If this definition were to be applied, individuals fleeing a humanitarian crisis would not be classified as “economic migrants” or “bogus asylum seekers.”

This definition would, for example, resolve the issue of many Zimbabweans who suddenly became illegal migrants after their Zimbabwean Exemption Permits were withdrawn. They are in South Africa because of the economic and political crisis in their country. Other African countries are dealing with, among others, poverty, the impact of economic globalisation conflicts, coup d’états, and an inability to control their territorial integrity. Some fellow Africans live in failed states, which cannot protect their own people.

South Africa adopted and ratified the AU Convention, and made it part of its legal system through the Refugees Act 130 of 1998. Since section 3(b) of this Act gives effect to the definition of a humanitarian refugee, South Africa should rethink how this definition should be applied in actual situations and how to distinguish between political refugees and humanitarian refugees in order to understand the nature and scope of their asylum protection. It takes the government and all its citizens to support people fleeing humanitarian crises and to engage with other nations and societies on how to respond to those crises so that when refugees and asylum seekers decide to return to their home countries, they know it is safe to do so.

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