Submission to the 48th Ordinary Session of the African Commission on Human and People’s Rights

Date: 30/11/2010

Intro paragraph:

Submission by Lawyers for Human Rights to the 48th Ordinary Session of the African Commission on Human and People’s Rights, November 2010

Two Somali refugees face the risk of being deported back to Somalia, despite the unstable human rights situation in that country as well as South Africa and Namibia’s obligations under international law not to return refugees to Somalia – the country from which they escaped persecution to seek protection as refugees.

The names of the refugees have been withheld for their protection

 The risk comes after the Namibian Immigration Court ordered the deportation of the two Somali refugees from Namibia to Somalia, apparently due to their informal entry into Namibia. In September 2010 the two Somali refugees transited through OR Tambo International Airport in South Africa en route from Namibia to Somalia after Namibia ordered that they be deported to Somalia.  UNHCR had contacted the Namibian government in an attempt to halt the deportation, and had also requested that South Africa readmit the Somalis, who previously had protection in South Africa, which it refused to do. They were amongst a group of 5 Somali nationals; the other three have already been deported.

LHR launched an urgent court application before the South African High Court to halt their deportation. The Pretoria High Court dismissed the application to halt their deportation and for their release in South Africa, heard on 1 October 2010. Their case will now be heard on appeal before the Supreme Court of Appeal in Bloemfontein on 24 November 2010.

The South African Government, through the Department of Home Affairs, opposed the Somali refugees’ requests for relief on the basis that the Department had no authority over them and was incorrectly joined as a party to the proceedings. The Department made this statement despite UNHCR’s confirmation that one of the Somalis is a recognised refugee in South Africa and the other is an asylum seeker whose asylum application it located on the Department’s system.

This status affords them certain protections under South African and international law – specifically the protection not to be returned to a country where they would face the risk of persecution.  This protection applies to all asylum seekers and refugees, including those transiting through South Africa, as does South Africa’s non-refoulement obligation. By allowing these deportations to take place, South Africa is violating these protections, and its concordant legal obligations.

The South African Constitution should protect all persons within the territory of South Africa, notwithstanding their legal status, or formal admission into the country. This protection also applies regardless of which country or authority is conducting the deportation. This constitutional protection includes the right to access the courts.

This is not an isolated incident, as it appears the Government of Namibia is routinely deporting Somali nationals to Somalia, including through South Africa, despite the well documented break down of all law and order, and state of unrest in Somalia.

The Somalis are being detained at a private detention facility in the airport, where they are routinely being denied access to their legal representatives and medical assistance. In addition, the conditions of their ongoing detention also fall short of internationally recognised minimum standards of detention in that they have no access to family visits, reading material, or exercise.Lawyers for Human rights calls on the Governments of South Africa and Namibia to uphold their legal obligations under the UN Convention on the Protection of Refugees, and their domestic legislation, not to forcibly return people in need of protection to countries where they face persecution in contravention of the principle of non-refoulement.

  •  Lawyers for Human Rights further calls on the Government of South Africa to ensure that all detention facilities operating within its borders, including private facilities, operate within the law, and in compliance with internationally recognised minimum standards of detention.

A Botswana national faces the risk of being deported back to Botswana from South Africa to stand trial for murder, without an assurance from the Government of the Republic of Botswana that he will not face the death penalty there – notwithstanding an order of ‘no surrender’ by the South African Minister of Justice and Constitutional Development and South Africa’s Constitutional obligations.

Emmanuel Tsebe was arrested in South Africa in November 2008. Botswana made a request for his extradition, and an extradition enquiry was heard at Mokopane Magistrate Court. It was concluded on 26 August 2009, when South Africa’s Minister of Justice made an order of no surrender under the Extradition Act, following requests to the Government of Botswana to provide an assurance against the death penalty, which they refused. Tsebe was detained in an immigration detention facility from 26 August 2009 to 13 October 2010 when he was charged for the first time with being an illegal foreigner in South Africa.Prior to being criminally charged, the Department of Home Affairs attempted to deport Tsebe to Botswana during August 2010, without an assurance from the Government of Botswana against the death penalty, and notwithstanding the order from the Minister of Justice.

Tsebe was detained in immigration detention as an illegal foreigner, in excess of one year, before Home Affairs attempted to deport him – LHR launched an interim urgent application to halt his deportation / removal / extradition, which order is still valid – pending the finalisation of a comprehensive challenge against various departments of the South African Government, including Home Affairs, the Minister of Justice, Foreign Affairs and the Presidency.

It was not until Home Affairs’ failed deportation attempt and the launching of a comprehensive challenge that Home Affairs charged Tsebe criminally, in an attempt to justify his indefinite detention outside of any legal framework.

South African Government is opposing the court application to bar Tsebe’s removal without an assurance against the death penalty, and the Minister of Justice has launched a counterclaim seeking a seeking a declaratory order that the Constitutional Court decision that a person cannot be deported to the death penalty without an assurance can be interpreted to allow extraditions without assurances against the death penalty.

The Minister of Justice has argued in his counter-claim that it is not necessary for South Africa officials to obtain an assurance from Botswana against the death penalty because Tsebe would have the option, if convicted in Botswana, to appeal to the [suspended] SADC Tribunal, and failing that, the African Commission – in complete disregard of the secret hanging of Marietta Bosch, a South African national, but Botswana, before her appeal to the African Commission had been heard.

  • Lawyers for Human rights calls on the Government of South Africa to uphold its legal obligations under the Constitution and UN Convention Against Torture and not forcibly return people to countries where they face cruel or inhuman punishment, including the death penalty, in contravention of the principle of non-refoulement.
  • Lawyers for Human Rights calls on the Government of South Africa to remember its struggle for the abolition of the death penalty in South Africa, and to recall that the rights in the Bill of Rights in the Constitution apply to all people within South Africa.
  • Lawyers for Human Rights further calls on the Government of South Africa to ensure that all detentions operate within strict compliance with procedural safeguards laid out in the law.

“Zimbabwe Documentation Project” and lifting of moratorium on deporting Zimbabweans raises concerns against renewed mass deportations of Zimbabweans, indefinite detention outside the law, refoulement and grave human rights abuses.

In September 2010 the Department of Home Affairs announced their plan to document certain categories of Zimbabweans as part of the “Zimbabwean Documentation Project”. According to the Home Affairs Deputy Director General, Jackie Mackay, there is a plan to document Zimbabweans who otherwise would not have qualified for permits in terms of the Immigration laws. This would include unskilled and semi-skilled Zimbabweans who until now were excluded from qualifying for these permits on account of their level of skills.

Currently there are 3 permits available and small numbers of Zimbabweans have already lodged applications for these permits which include work, study and business permits which could be issued for a maximum of four years and would be renewable. Home Affairs stressed that this was a voluntary process and that Zimbabweans who were currently in the asylum process could choose to migrate to this new regime. The current cut off date is the 31st December 2010, after which time deportations to Zimbabwe will commence again. There has been a moratorium on deportations in place since April 2009.

There are significant problems associated with both the regularisation process as well as with the deadline. These most pressing of these are:

  1. The difficulty of access to Zimbabwean passports which are required in order to apply for any of the available permits
  2. The absence of guidelines or uniform procedures in the Home Affairs offices which are rolling out these permits
  3. The corruption and ineptitude at the Home Affairs offices which are rolling out this process

In addition Home Affairs announced an Amnesty for any Zimbabweans who are in possession of fraudulent documents. These fraudulent documents may be handed in exchange for amnesty from prosecution. However, we have observed that Zimbabweans are being arrested and deported despite the moratorium on deportations and regardless of the amnesty which is still in place until the end of 2010.

There have been raids conducted jointly by police and home affairs seeking to arrest and deport Zimbabweans and other foreigners who are found to be residing illegally in the country.

The regularisation process is voluntary yet we have also been informed that Home Affairs will commence a process where they will start to review the refugee status of all Zimbabweans. This may leave refugees who are in need of international protection from persecution in a position where they would be vulnerable to refoulement.

  • Lawyers for Human rights calls on the Government of South Africa to extend the deadline for the “Zimbabwe Documentation Project” to 30 June 2011.
  • Lawyers for Human Rights calls on the South African Government to desist from arresting and prosecuting Zimbabwean nationals making use of the amnesty process, and to actively take steps to liaise with, and advise all arms of Government of this process.
  • Lawyers for Human Rights calls on the Government of South Africa to extend the moratorium on deportations to 30 June 2011.
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