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Asylum and refugee policies in Southern Africa: A historical perspective

3. The Evolution of Refugee Policies in the Southern African Region

The development of refugee policies in the Southern African region, as reflected in the legislation of its member States, may conveniently be categories into three generations. The first generation policies, which characterised most of the colonial period was to treat matters relating to refugees as an integral part of immigration policy and law without need for a separate refugee specific laws. Under this generation of policies and laws refugee provisions tended to concern themselves mainly with entry and residence by refugees while remaining silent on other aspects of refugee protection. The second generation of refugee laws constituted of refugee control laws which operated alongside immigration laws to regulate selected aspects of refugee protection. The third generation refugee laws was characterised by comprehensive refugee legislation governing all aspects of refugee protection in accordance with the relevant international legal instruments.

3.1 Addressing Refugee Matters Under General Immigration Laws

Up to the early 1960s, the approach taken by many jurisdictions in Southern Africa with respect to refugee matters was what I have elsewhere called the “traditional Common Law approach”.7 whereby refugee matters are addressed under general immigration laws. A good example of this approach is South Africa which actually continued with this approach until early 1990s. Until 1998, refugee matters in South Africa were governed by the Aliens Control Act8, the same statute which governed immigration generally. As the name suggests, the Aliens Control was mostly concern with control of immigration into South Africa. The central element of this system of control was the concept of “a Prohibited person”. Prohibited persons included, among others, persons who are not South African citizens who enter South Africa without a valid passport and visa9 as well as those who left in South Africa without a valid residence permit. Asylum applicants and refugees were either granted temporary permits to enter the country under section 41, or granted exemption from the entry and residence requirements of the Act on grounds of “special circumstances” under section 29.

This approach had at least two main shortcomings. First, addressing refugee matters under immigration laws meant that the regimes were silent on crucial maters in refugee protection such as how refugees were to be defined , whether asylum seekers and refugees were protected from refoulement, by what standards refugees were to be treated and how their plight was to be resolved. Second, the reliance on ordinary immigration law in dealing with the refugee problem was problematic particularly in situations of mass influx. As Faris pointed out “The problem of the refugee is totally unrelated to immigration law and to the law relating to ordinary aliens. [To] classify the refugee as an ordinary alien evades the problem. Immigration law is intended to cope with the admission of individuals and not a mass influx [of people]”.10 One of the consequences applying ordinary immigration laws to refugees was the tendency to label all potential refugees as illegal immigrants with the attendant consequences.11

It was partly due to the inadequacies of the above approach that when the UNHCR came into South Africa to facilitate the repatriation of Mozambican refugees, the Basic Agreement between South Africa and UNHCR of 1993 had to signed which, among other things, addressed the question of how to identify refugees.

3.2 The Refugee Control-Oriented Approach

From the mid-sixties, countries in Southern Africa enacted laws, over and above the immigration laws, which were mainly aimed controlling refugees. The oldest progeny of this generation was Tanzania’s Refugee Control Act of 1966 whose purpose was stated in its title as “... to make provisions for the control of refugees and connected matters”12. In 1968, Botswana followed suit with the enactment of the Refugee (Control and Recognition) Act13. Two years later, Zambia introduced The Refugee (Control) Act in order “... to make provisions for the control of refugees; and for matters connected thereto”14. Next was Swaziland which, in 1978, promulgated The Refugee Control Order (1978), “[a] Kings’s Order-in Council to establish better control of refugees entering Swaziland.”15

The first notable aspect of the above laws is that they were not comprehensive refugee legislation. Rather, they addressed selected aspects of the refugee problem. Second, the selected aspects did not so much relate to protection of refugees. Rather, as the long titles connote, they were mainly aimed at controlling refugees. These laws vest wide and discretionary powers to determine who is a refugee in the relevant Minister.16 The Acts of Swaziland , Tanzania, and Zambia permitted expulsion of refugees back to counties of origin in a manner that could amount to refoulement.17 The laws of these countries also permitted, in slight variations, the confiscation and slaughter of animals belonging to refugees18 and the detention and use of vehicles belonging to refugees for refugee work,19 without a guarantee for compensation. The laws of all four countries in this category also permitted restriction of movement of refugees.20 These laws did not address themselves to the solution of the plight of refugees.

Although the laws of this era can be legitimately be described as draconian, the actual practice on the ground in most countries was different. As a matter of fact, the practice in most countries was exemplary. Despite the absence of proper definition of a refugee under these instruments, countries of the region admitted virtually all persons in flight, even liberation fighters who a significant segment of the international community was reluctant to regard ,and assist, as refugees. Equally, even though the statutes made no provisions for non-refoulement, refugees were hardly even rejected at the frontier or returned to countries where they might face persecution except when compelled to do so by military and economic pressure from Apartheid South Africa.21 With the assistance of the international community, the standards of treatment for refugees were very reasonable.22

Countries in the sub region also practised some degree of intra-regional burden sharing. For example, in the 1970s and early 1980s, when Botswana, Lesotho and Swaziland came under intense pressure from South Africa for hosting South African refugees, they sought and obtained resettlement for these refugees in Tanzania, Zambia and Zimbabwe.23 Refugees were also offered limited opportunities for naturalisation.24

Footnotes:
 
  1. See Rutinwa, B. Review the Law and Policies Relating to Refugees and Internally Displaced Persons in Commonwealth Countries, Consultancy Report Commissioned by the Constitutional and Legal Division, Commonwealth Secretariat, London for the Summit of the Commonwealth Heads of States and Governments, Edinburgh, June 1997.
  2. Act No. 96 of 1991.
  3. Section 11(1) of the Aliens Control Act.
  4. Faris, J.A., ‘The Angolan Refugees and South Africa’ 2 South African Yearbook of International Law 176 (1976) at 185. Quoted in Maluwa, T. International Law in Post-Colonial Africa, (Kluwer Law International, 1999, p. 200.
  5. Maluwa, T., Id., at 183-184.
  6. Refugee control Act (1966), Long Title.
  7. Refugee (Recognition and Control) Act, (1968).
  8. Refugee (Control) Act 1970., Long Title
  9. The Refugee Control Order (1978), Long Title.
  10. Sections 8 of the Botswana Act and identical section 3 of the Swazi, Tanzanian and Zambian Acts .
  11. See section 10 in the Zambian Act and identical section 5 in the Swazi and Tanzanian Acts.
  12. See section 7 of the Tanzanian Act and identical section 8 in the Swazi and Zambian Acts.
  13. See section 8 of the Tanzanian Act and identical section 9 in the Swazi and Zambian Acts.
  14. Sections 9 of the Botswana Act and identical section 12 in the Swazi, Tanzanian and Zambian Acts.
  15. Maluwa, T., ‘The Concept of Asylum and the Protection of Refugees in Botswana: Some Legal and Political Aspects.’ Paper Presented at the 2nd International Refugee Advisory Panel (IRAP) Conference, Oxford, 1991, p. 30.
  16. See B. Rutinwa, The End of Asylum in Africa? The Changing Policies of Refugee Protection in Africa. In New Issues in Refugee Research, Working Paper No 5., UNHCR, Geneva, 1999., pp. 4-8.
  17. Rwelamira, M & Buberwa, L.G., ‘Refugees in Botswana, Lesotho and Swaziland: Some Preliminary Notes on their Magnitude, Characteristics and Social Support Systems’ Paper presented at the Africa Refugees Seminar, Organised by the African Refugee Centre, University of Dar es Salaam, Arusha, Tanzania. 30 July - 3rd August 1990, pp 67-68.
  18. Id, pp. 65-70.

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