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Asylum and refugee policies in Southern Africa: A historical perspective

5. Policy Implications and The Tasks Ahead

The enshrinement of common principles of refugee protection in national legislation is a positive development. However, it is not enough to deal with the challenges created by the refugee phenomenon outlined above including the uneven distribution of the refugee burden and the impact of refugees on individual countries as well as the region as a whole. If it is to make any difference, it must be followed by at least three concrete measures: The promulgation of Regulations to implement specific provisions of the legislation; the harmonisation of procedures and standards of protection and the institution of mechanism for burden sharing.

5.1 Promulgation of Regulations

Like other Acts of Parliament, the refugee Acts noted above, enact mainly principles which require detailed rules and regulations to be operationalised. Often times, the specific actions and results to be achieved are left to detailed regulations and rules to be made later, by the authority identified by the Acts, usually by the Minister responsible for refugee matters. And, as the saying goes, the devil is always in the detail. Depending on how these regulations are made, they could actually restrict the enjoyment of rights seemingly provided for under the principal legislation. Indeed, in South Africa, it is the Regulations made under the Refugee Act, and not the substantive provisions of the Act itself, which have generated litigation in court and in many cases their legality has been successfully challenged.61

Accordingly, it is imperative that countries in the Southern African region should enact Regulations for the implementation of the principal legislation and these regulations should facilitate and not restrict the enjoyment of the substantive rights provided under the legislation.

Further, such regulations must take into account the need to harmonise the practice in each country with the rest of the countries in the region.

5.2 Harmonisation of Admission Procedures and Standards of Treatment

Unlike the first and second generation refugee legislation, the third generation refugee polices and laws are being promulgated in a particular context of post-apartheid Southern Africa which, among other things seeks to achieve regional integration through the Southern African Development Community (SADC).62 The main objectives of SADC are to achieve development and economic growth, alleviate poverty, enhance the standard and quality of life of the peoples of Southern Africa, and support the socially disadvantaged through regional integration. In order to achieve these objectives, SADC aims at harmonising the political and socio-economic policies and development plans of member states.

As has been rightly pointed out, the refugee problem has immense political, economic and diplomatic implications for the on-going initiatives and projects in regional cooperation and integration.63 Accordingly, the refugee problem requires a concerted regional approach of all States in the region. This may be achieved through harmonisation of key aspects of the refugee regime.

The first main area where harmonisation is imperative is procedures for admission of asylum seekers. This is particularly important in order to deal with the problem of irregular movement of asylum seekers. Southern African countries experience the problem of refugees who move in an irregular manner from countries in which they have already, or could have, found protection. It is also alleged that some countries within the region encourage and assist asylum seekers to move on to territories of other countries in the region. As the Executive Committee of the UNHCR has observed, such movements have a destabilising effect on structured international efforts to provide appropriate solutions for refugees.64 The practice of conducting refugees to territories of other states also amounts to burden-shifting.

To deal with this situation, some countries, including Tanzania65 and South Africa66, have sought to apply the concept of “third safe country” whereby they would reject asylum seeker who have transited though countries considered to be safe. However, the application of the concept of safe third country has its own legal and policy implications. From a legal point of view, the refusal to admit to asylum procedures persons who have transited through a third state effectively denies them the right to seek asylum and makes them automatic “illegal immigrants.”67 Moreover, such refusal could result in refoulement of such asylum seekers. In the case of South Africa, the unilateral practice of the safe third country could result in the violation of Section 2 of the Refugees Act which prohibits refoulement of asylum seekers and refugees.

At the level of policy, the refusal by one Southern African country to admit refugees who have transited through another Southern African country regarded to be safe means that some countries in the region which border troubled countries will bear the blunt of the refugee burden, while those fortunate enough not to share borders with such countries can maintain a “refugee free zone” status. This would run contrary to the principle of burden sharing. This is particularly so in Southern Africa where, as was noted earlier, over 80% of refugees are found in just three countries bordering the countries in Conflict within and outside the region.

These problems could be avoided through the harmonisation of refugee admission procedures which would take into account the need for sharing the refugee burden within the region.

The other area that requires harmonisation is the standards of treatment for asylum seekers and refugees. As noted above, most legislation in the third generation make provisions for the rights of refugees. However, the typical way these rights are provided for is as follows:

“Subject to the provisions of this Act, every recognised refugee and every protected person...

  1. shall be entitled to the rights conferred, and subject to the duties imposed, by
  1. the provisions of the UN Convention on Refugees, 1951, which are set out in Part I of the Schedule to this Act;


  2. the provisions of the OAU Convention on Refugees, 1969, which are set out in Part II of the Schedule to this Act. as if the references therein to refugees were references to recognised refugees and protected persons (under this Act)68
There are at least two problem with this approach to providing for rights of refugees. First, the above formulation assumes that the instruments referred to above provide a an exhaustive list of rights and needs of refugees when they actually do not. For example, none of the above instruments provides for the right to life or protection from acts like sexual attacks. Second, the rights related provisions under the international instruments are couched in such broad terms which allow a wide margin of discretion as to the extent which certain rights are to be provided. For example, when it comes to self-employment and practice of liberal professions by refugees, the 1951 UN Convention requires refugees to be accorded “treatment as favourable as possible..”69 But what does that phrase exactly mean.? Who is possible and what is not ?

The end result is that different countries may apply the above provisions in their acts and still offer different sets of rights to refugees or same sets of entitlements but with different degrees of treatment. This situation could contribute to refugee forum shopping and the related phenomenon of irregular movement of refugees and asylum seekers.70 This has been already witnessed in the Great Lakes region of Africa, where refugees have been moving from first countries of asylum to other countries such as Uganda and Zambia where much larger portions of land are alleged to be allocated to refugees for agricultural purposes.

For a region like Southern Africa that is seeking to integrate this is an unwelcome situation which must not be allowed to develop. This should be achieved through joint standard setting with regard to core rights of refugees such as food, shelter, education, and employment and harmonisation of related practices. It is not suggested here that the treatment of refugees in these matters must be exactly the same in all countries. Rather, minimum standards must be set which should be enjoyed by all refugees irrespective of where in the region they happen to be. A country that is unable to meet those standards should be assisted by others through the mechanisms of burden sharing.

Footnotes:
 
  1. See van. Garderen & Jaichand, V., ‘Perspectives on Refugee Protection in South Africa’ Preface to Handmaker et al, Perspectives on Refugee Protection in South Africa (LHR, 2001), pp. 1-8, at 6-7.
  2. Treaty of Southern African Development Community, Windhoek, August, 1992.
  3. Maluwa, T., International Law in Post-Colonial Africa, Op. Cit p. 195.
  4. UNHCR Executive Committee, Conclusion No 58(XL) on the Problem of Refugees and Asylum-Seekers who move in an Irregular Manner from a Country in which they had Already Found Protection, para (a).
  5. Section 4(4)(e) of the Refugees Act, 1998 excludes from refugee status a person who “prior to his entry into Tanzania ha has transited through one or more countries and is unable to show reasonable cause for failure to seek asylum in those countries....”
  6. See van. Beek, I., ‘Prima Facie Asylum Determination in South Africa: A description of Policy and Practice’ in LHR, Op. Cit., pp. 14-40, at 20-21.
  7. Id. p. 21.
  8. Article 18 of the Namibian Act, which is very identical to Article 12 of the Zimbabwe Act and similar to Articles 13 and 5 of the current Lesotho and Mozambican refugee legislation.
  9. Articles 18 and 19 of the 1951 UN Convention on refugees.
  10. This is acknowledged by para (b) EXCOM Conclusion No 58 (XL) on the problem of irregular movement of refugees which states that “Irregular movements of refugees and asylum-seekers who have already found protection in a country are, to a large extent, composed of persons who feel impelled to leave, due to the absence of educational and employment possibilities and the non-availability of long-term durable solutions by way of voluntary repartition, local integration and resettlement.”

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