Insiders but Outsiders: The Struggle for the Inclusion of Asylum Seekers and Refugees in South Africa

Article excerpt

Abstract

This article examines the politics of urban refugees in South Africa. It shows that despite South Africa's adoption of an encompassing rights-regarding legal framework that has the potential to be inclusive towards asylum seekers and refugees in the country and afford them basic human rights and protection, asylum seekers and refugees nonetheless remain "internally excluded," predominantly as a result of practices adopted by a nationalist Department of Home Affairs to implement refugee legislation and by the UNHCR in its quest to prioritize the safeguarding of the institution of asylum. The article also shows how the adoption of these practices has been facilitated by a construction of asylum seekers and refugees as "bogus" claimants who have no place in post-apartheid South Africa.

Resume

Cet article examine la politique sur les refugies urbains en Afrique du Sud. Il demontre que malgre l'adoption par l'Afrique du Sud d'un cadre juridique englobant le respect des droits, qui ale potentiel d'etre inclusif envers les demandeurs d'asile et les refugies clans le pays et de leur assurer les droits fondamentaux et la protection, les demandeurs d'asile et les refugies restent neanmoins des << exclus internes >>, principalement en raison des pratiques adoptees dam l'implementation de la legislation concernant les refugies par un Departement des affaires inteieures nationaliste, et par le HCR, clans sa quete de privilegier la sauvegarde de l'institution du droit d'asile. L 'article demontre aussi comment l'adoption de ces pratiques a ete facilitee par le fait de depeindre les deman deurs d'asile et les refugies comme de << faux >> demandeurs n 'ayant pas leurs places dans une Afrique du Sud post apartheid.

Introduction

In a society like ours which prides itself on its noble sentiments, [the treatment of refugees] is shameful. As South Africans we are justifiably proud of our country and of our democracy which has just celebrated its tenth birthday. We are proud of those policies which are enshrined in the Constitution, a constitution which is unparalleled in Africa, and indeed equals those of the most advanced countries in the world in terms of liberality and compassion...We subscribe to the principles contained in international treaties...We claim to enforce the laws put in place to protect the rights of [refugees], and especially those pertaining to children. Yet all these lofty ideals become hypocritical nonsense if those policies and sentiments are not translated into action by those who are put in positions of power by the state to do exactly that; who are paid to execute these admirable laws and yet, because of apathy and lack of compassion, fail to do so.

--Judge Anne Marie De Vos, 2004 (1)

Jude De Vos's harsh words, directed at representatives from the South African Departments of Home Affairs and Social Development and the South African Police Services for their failure to desist from continuing to detain approximately one hundred unaccompanied foreign minors, both undocumented foreign children and asylum seeker/refugee children, at the Lindela Repatriation Centre, encapsulate the challenges that asylum seekers and refugees continue to face in their battle for inclusion in the post-apartheid South African state despite the fact that South Africa boasts a progressive legal framework within which the rights of these urban-based asylum seekers and refugees can be respected. However, as much as apathy and lack of compassion have come to characterize the treatment of asylum seekers and refugees in South Africa, I will argue that this sense of apathy and lack of compassion are in themselves the effect of a number of practices adopted by sectors of a nationalist post-apartheid South African state that, despite its commitment to the respect of human rights, evidenced through its adoption of an encompassing Constitution, its accession to international refugee conventions, and its adoption of a rights-regarding Refugees Act, nonetheless is bent on prioritizing the needs of South Africans first and deferring those of non-citizens such as asylum seekers and refugees. …