Submission to the Portfolio Committee on Home Affairs on the Refugees Bill (B135 - 98)
October 1998
1. The Catholic Church has a long-standing involvement in refugee matters, promoting their interests, providing relief and welfare assistance, and lobbying nationally and internationally for improvements in their treatment. We are delighted, therefore, to be able to welcome this Bill as a constructive attempt to address the needs of refugees in South Africa.
2. The Christian Bible, and the sacred writings of other major religions, contain numerous references to the duty of the community to care for the 'stranger' in its midst. We recall also that Christ himself was a refugee while still a child (cf. Mt 2:13 -15), and that he and his family fled to Africa, the continent which now, more than any other, gives rise to large numbers of refugees, many of whom look to our own country for help. By happy coincidence, this enlightened piece of legislation is being discussed virtually within the shadow of the Cathedral church of Our Lady of the Flight into Egypt, which memorialises the exile of the Holy Family.
3. Within the context of our overall support for this Bill there remain a few points which still require attention:
Exclusion from Refugee Status
Clause 4(1)(b) provides for the exclusion from refugee status of any person who has committed a serious non-political crime which, in the Republic, would be punishable by imprisonment. This wording does not take into account 'show trials'. These are commonly used by governments as a way of persecuting their political opponents while not appearing to be acting from political motivation. This was common practice in Nigeria and appears to be happening at the moment in Malaysia. In order to ensure that legitimate refugees do not fall foul of this clause, we suggest that the word 'committed' be replaced with the words 'been found guilty in a fair trial of' in the first line of Clause 4(1)(b).
Independence of Administrative Bodies
Clause 9(2) provides that the Standing Committee for Refugee Affairs "must function without any bias and must be independent." It is not clear from whom, and to what extent, it must be independent; for one thing, its members will be appointed and may be removed by the Minister, and for another, their remuneration will be determined by the Minister. A clearer expression of the Standing Committee's independence is called for.
It is also curious that no reference is made to the need for the Refugee Appeal Board to function without bias and to be 'independent' (clause 12). The Appeal Board should be subject to the same requirements of probity and integrity as the Standing Committee.
Application for Asylum
Clause 21(3) requires an applicant to furnish two photographs of him/herself. We trust that provision will be made - by regulation? - for the cost of these to be borne by the state in the case of indigent applicants?
Asylum Seeker Permits
Clause 22(1) makes no mention of the issuing of these permits to dependants of refugees. Such provision was made in clause 17(1) of the Draft Bill. We suggest that the words 'and to any dependant of the applicant who has accompanied him or her, if any,' be inserted after the word 'applicant' in line two of clause 22 (1).
The maximum penalty of five years' imprisonment mentioned in clause 22(7) is, in our opinion, too harsh. In an atmosphere of growing xenophobia it is not impossible that a court would decide to impose such maximum sentence for what might be a trivial offence. We suggest that the maximum penalty be reduced to two years' imprisonment.
Rights of Refugees
The provision, in clause 27(c), that a refugee may apply for an immigration permit after five year's continuous residence in the Republic is welcome. However, the condition that, in order so to apply, the Standing Committee must certify that the refugee "will remain stateless indefinitely" is too onerous. Firstly, many refugees who have spent five years here will have built up social and occupational networks, friendships and economic ties; their children may well not know their 'home country' and be well-settled in schools. Such people have an interest in permanently securing their situation and thereby being able to plan adequately for the future. Secondly, it is questionable what content can be given to the word 'indefinitely'. We may surmise that it will be interpreted to mean that only those about whom it can said with some certainty that they will not be able to return for some years will be entitled to apply. We believe that this would exclude too many refugees, and place them in a situation of continuing uncertainty and insecurity. Therefore, we suggest that the words after 'asylum' in clause 27(c) be omitted. This omission would bring the Bill into line with para 4.8.3 of the Draft Refugee White Paper.
· Removal from the Republic
In our opinion too much power is placed in the hands of the Minister by clause 28(1). This clause empowers the Minister to declare a refugee an 'undesirable inhabitant' of the Republic without reference to anyone or to any other body. We suggest that the Minister be required to consult with either the Standing Committee or with the Refugee Appeal Board before issuing such declaration.
Detention
Clause 29(1) stipulates that a judge must review a detention of a refugee that exceeds 30 days. Apart from the question of whether or not the provision for detention offends Section 12 of the Constitution, we believe that the 30-day timeframe is unduly long. At the very least it should be brought into line with Section 37(6)(e) of the Constitution, which provides for court review of State of Emergency detentions no later than 10 days after the detention has taken place.
Mentally Disabled Applicants
Whereas clause 32 of the Bill provides for the intervention and assistance of the Children's Court in appropriate cases, there is no clear designation of who should assist mentally disabled applicants. We suggest that clause 32(3) be amended to make it clear that the Refugee Reception Officer should bear this responsibility, in accordance with clause 21(2)(b).
Dependants of Refugees
Clause 28 of the Draft Refugee Bill provided very thoroughly for the interests of dependants of refugees. Clause 33 of the Bill itself, and the other clauses which refer to dependants, fail to deal adequately with situations in which a dependant ceases to be such due to marriage, attainment of majority, death or divorce. We suggest that clause 28 of the Draft Bill be included in clause 33 of the Bill.
Family Reunification
While some provision is made for dependants who accompany an applicant to the Republic, nothing is said about situations in which the dependants are left in the country of origin, or en route to the Republic, in the hope of joining the successful applicant at a later stage. As a result, families stand to be split. This omission is in urgent need of a remedy. While it is accepted that a satisfactory definition of 'family' or 'immediate family' is difficult, due to varying cultural, social and religious practices, some effort must be made to ensure that, as far as reasonably possible, our refugee legislation does not result in families being split up. One approach would be to allow refugees to bring to the Republic those members of their families who would be regarded under South African law as dependants. Clause 33 of the Bill should be amended to reflect this.
4. Having stated our reservations and pointed out what we perceive to be weaknesses in the Bill, we reiterate our support for the Bill as a whole, and we congratulate those responsible for its drafting.
5. Lastly, it is a matter for regret that the Portfolio Committee on Home Affairs has decided not to entertain oral submissions, or at least, to limit the number it is willing to hear. The 'refugee question' is one on which strong feelings are held, and regarding which controversial and provocative statements are made. Parliament's deliberations on such a question should be characterised by maximum public participation. The fact that there is a busy legislative schedule should not be allowed to subtract from the importance of such participation.