Opinion / Columnist
Civil, political rights of refugees in South Africa
14 Nov 2022 at 23:51hrs | Views
IN January 2020, South Africa's Home Affairs minister Aaron Motsoaledi announced the introduction of new regulations which could have significant implications for engagement in any political activity by refugees or asylum seekers in the country.
The new regulations, titled The Refugees Act 1998 (Refugee Regulations) 2019 (the "Regulations"), rescind the rights of refugees in South Africa to engage in any political activity, even activities concerning their country of origin while in South Africa. Regulation 4(1) is of particular concern and the focus of the following discussion.
It provides that a refugee or asylum seeker shall not participate "in any political campaign or activity related to his or her country of origin or nationality whilst in the Republic without the permission of the Minister". Additionally, Regulation 4(2) states that "no refugee or asylum seeker may participate in any political activity or campaign in furtherance of any political party or political interests in the Republic".
During the public hearings on these amendments, it was announced that the regulations were introduced because of the "…need to ensure national security through admission of genuine refugees and not bogus asylum-seekers and through protection against those who abuse the asylum-system, including the possibility of using the asylum system as a route for human trafficking."
Contrary to the justifications provided by the South African government, the regulations present two main issues which will be discussed in this article. First, the phrase "political campaign or activity" is not defined and remains too vague. Second, a total ban on political activities of refugees is in violation of international human rights law.
Regulation provisions too vague
The first issue with the regulations is that the phrase "political campaign or activity" is not defined. The lack of any definition in such circumstances necessarily renders the statute vague, which is more often than not prohibited by procedural and constitutional norms in democratic jurisdictions, including South Africa.
The vagueness of this provision casts a wide net, having the result that refugees or asylum seekers (or indeed any advocates assisting them) cannot gauge in any way the type of activities they can or cannot engage in.
Sally Gandar, head of advocacy at the Scalabrini Centre of Cape Town, has expressed concern about the lack of a definition for the term "political activity," commenting that: "We believe that it is far too broad and vague to be enforceable. Laws should ensure certainty; this one does not. The minister has said that what they meant by the term is the same as what is stated in Article 23(2)(i) of the African Charter on Human and Peoples' Rights."
However, measures aimed at preventing "subversive activities" do not usually include a full prohibition which applies only to an entire minority section of a whole country based on nationality (refugees and asylum seekers in this instance). Furthermore, to consider "political activity" to mean, or even be similar to "subversive activities" suggests that "subversive" is synonymous with "political," which would be an absurd (and a very problematic) interpretation.
New amendments vs international law
Second, it is not likely that the regulations' total ban on political activities of refugees, supposedly to prevent the admission of bogus asylum speakers, can be justified under international law. The United Nations Human Rights Committee (HRC) has previously rejected State arguments that restrictions are necessary to prevent "subversive activities" where such information is unsubstantiated.
In Pietraroia vs Uruguay, the HRC stated that: "Bare information from the State party that X was charged with subversive association… is not in itself sufficient, without details of the alleged charges and copies of the court proceedings".
The political restrictions are also contrary to the rights guaranteed by the International Covenant on Civil and Political Rights ("ICCPR"), specifically, Art. 19 (right to hold opinions without interference), Art. 21 (right of peaceful assembly), and Art. 26 (prohibition on discrimination).
The HRC further stated that "(aliens) have the right to freedom of thought, conscience and religion, and the right to hold opinions and to express them. Aliens receive the benefit of the right of peaceful assembly and of freedom of association."
Express recognition was afforded to refugees and asylum seekers (as opposed to aliens generally) by the HRC when it stated that the rights in the ICCPR "must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers and refugees".
So, while the ICCPR does not explicitly state that it applies to categories of non-citizens, a body of the United Nations has expressly said that nationality or country of birth is irrelevant save for the few rights which are reserved for citizens (Nermeen S Arastu, 2022).
Additionally, the wording used throughout the ICCPR aids in showing that the provisions of the ICCPR apply to all persons irrespective of their nationality or immigration status.
Article 2 of the ICCPR, for example, states that any State party to the ICCPR must respect and ensure to "all individuals within its territory" that the rights recognised in the ICCPR can be availed of without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, or "birth or other status".
In conclusion, the general prohibition on discrimination outlined in Article 26 of the ICCPR is equally applicable due to its wording, referring to "all persons" being equal before the law and entitled to equal protection of the law without discrimination "on any ground such as race, colour, gender, language religion, political or other opinion, national or social origin, property, birth or other status."
In this respect, the HRC has said as far back as 1986 that, as a general rule, "each one of the rights of the covenant must be guaranteed without discrimination between citizens and aliens.
"Aliens must receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed by the covenant" (Nermeen S. Arastu, 2022).
Mary-Anne Mutero is an international relations student at Africa University in Mutare. She writes here in her personal capacity.
The new regulations, titled The Refugees Act 1998 (Refugee Regulations) 2019 (the "Regulations"), rescind the rights of refugees in South Africa to engage in any political activity, even activities concerning their country of origin while in South Africa. Regulation 4(1) is of particular concern and the focus of the following discussion.
It provides that a refugee or asylum seeker shall not participate "in any political campaign or activity related to his or her country of origin or nationality whilst in the Republic without the permission of the Minister". Additionally, Regulation 4(2) states that "no refugee or asylum seeker may participate in any political activity or campaign in furtherance of any political party or political interests in the Republic".
During the public hearings on these amendments, it was announced that the regulations were introduced because of the "…need to ensure national security through admission of genuine refugees and not bogus asylum-seekers and through protection against those who abuse the asylum-system, including the possibility of using the asylum system as a route for human trafficking."
Contrary to the justifications provided by the South African government, the regulations present two main issues which will be discussed in this article. First, the phrase "political campaign or activity" is not defined and remains too vague. Second, a total ban on political activities of refugees is in violation of international human rights law.
Regulation provisions too vague
The first issue with the regulations is that the phrase "political campaign or activity" is not defined. The lack of any definition in such circumstances necessarily renders the statute vague, which is more often than not prohibited by procedural and constitutional norms in democratic jurisdictions, including South Africa.
The vagueness of this provision casts a wide net, having the result that refugees or asylum seekers (or indeed any advocates assisting them) cannot gauge in any way the type of activities they can or cannot engage in.
Sally Gandar, head of advocacy at the Scalabrini Centre of Cape Town, has expressed concern about the lack of a definition for the term "political activity," commenting that: "We believe that it is far too broad and vague to be enforceable. Laws should ensure certainty; this one does not. The minister has said that what they meant by the term is the same as what is stated in Article 23(2)(i) of the African Charter on Human and Peoples' Rights."
However, measures aimed at preventing "subversive activities" do not usually include a full prohibition which applies only to an entire minority section of a whole country based on nationality (refugees and asylum seekers in this instance). Furthermore, to consider "political activity" to mean, or even be similar to "subversive activities" suggests that "subversive" is synonymous with "political," which would be an absurd (and a very problematic) interpretation.
New amendments vs international law
In Pietraroia vs Uruguay, the HRC stated that: "Bare information from the State party that X was charged with subversive association… is not in itself sufficient, without details of the alleged charges and copies of the court proceedings".
The political restrictions are also contrary to the rights guaranteed by the International Covenant on Civil and Political Rights ("ICCPR"), specifically, Art. 19 (right to hold opinions without interference), Art. 21 (right of peaceful assembly), and Art. 26 (prohibition on discrimination).
The HRC further stated that "(aliens) have the right to freedom of thought, conscience and religion, and the right to hold opinions and to express them. Aliens receive the benefit of the right of peaceful assembly and of freedom of association."
Express recognition was afforded to refugees and asylum seekers (as opposed to aliens generally) by the HRC when it stated that the rights in the ICCPR "must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers and refugees".
So, while the ICCPR does not explicitly state that it applies to categories of non-citizens, a body of the United Nations has expressly said that nationality or country of birth is irrelevant save for the few rights which are reserved for citizens (Nermeen S Arastu, 2022).
Additionally, the wording used throughout the ICCPR aids in showing that the provisions of the ICCPR apply to all persons irrespective of their nationality or immigration status.
Article 2 of the ICCPR, for example, states that any State party to the ICCPR must respect and ensure to "all individuals within its territory" that the rights recognised in the ICCPR can be availed of without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, or "birth or other status".
In conclusion, the general prohibition on discrimination outlined in Article 26 of the ICCPR is equally applicable due to its wording, referring to "all persons" being equal before the law and entitled to equal protection of the law without discrimination "on any ground such as race, colour, gender, language religion, political or other opinion, national or social origin, property, birth or other status."
In this respect, the HRC has said as far back as 1986 that, as a general rule, "each one of the rights of the covenant must be guaranteed without discrimination between citizens and aliens.
"Aliens must receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed by the covenant" (Nermeen S. Arastu, 2022).
Mary-Anne Mutero is an international relations student at Africa University in Mutare. She writes here in her personal capacity.
Source - Newsday Zimbabwe
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