UNHCR's interest in the issue of xenophobia is based on the global mandate it has been given by the United Nations to provide international protection to refugees and to seek durable solutions to their problems. Refugees are recognized under international law as persons who are forced to flee from the threat of persecution, or from armed conflict, generalized violence, serious disruptions of public order or widespread abuses of human rights in their countries of origin and to seek safety in other countries. They are in need of international protection and should not be forced to return to countries where their lives or freedom would be at risk and where they would be deprived of effective protection against such dangers. Despite being foreign nationals, refugees must be deemed by their host country to be exempted from forcible return and discriminatory treatment and should be provided with the assistance necessary to meet their basic needs and to enjoy fundamental human rights. UNHCR appreciates that xenophobia or racism, represented by displays of intolerance and discrimination, pose serious impediments to the ability of refugees to fulfill their needs for protection and assistance, and to successfully integrate into their host communities.

It is important to underscore that the phenomenon of forced displacement of people, involving, at times entire communities, remains one of the most complex and urgent challenges facing the world today. Although, when established by the United Nations in 1951, the Office of the United Nations High Commissioner for Refugees was expected to resolve the then-prevailing problem of forced displacement resulting from World War II, and then to fold up its operations, the world's supply of refugees has been unceasing, since then. Accordingly, UNHCR is now responsible for more than 17 million people around the world. Of the global population of refugees, Africa hosts about 4.2 million refugees and asylum seekers, who moved across borders into other countries. In addition to this category of "people on the move", it is estimated that, within the African continent, there to are also several million other persons, who are forcibly displaced from their homes, but remain within the borders of their own countries.

In 1996, South Africa bound itself to respect the universally-accepted principles contained in the 1951 United Nations Convention Relating to the Status of Refugees and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. In so doing, South Africa recognised the specific situation and needs of refugees who are forced to leave their countries to avoid persecution. Article 35 of the 1951 Refugee Convention requires UNHCR to discharge supervisory responsibilities regarding how the international legal rights contained in that Convention are given effect by the Contracting States, and accordingly, UNHCR supported and participated in the process that led to the passage, in 1998, of the Refugees Act, No.130 of 1998.

Refugees in South Africa

The 1998 Refugees Act defines the conditions under which the Republic of South Africa will recognise an individual as a refugee entitled to the grant of asylum in the country. The Act, which came into effect in April, 2000, gives effect to South Africa's accession to the 1951 Refugee Convention and its 1967 Protocol, as well as the 1969 OAU Refugee Convention by defining a refugee" on the basis of those international treaties

The Minister for Home Affairs (hence, the Department of Home Affairs) is charged with the administration of the Refugees Act, Act 130 of 1998, including the responsibility of granting asylum in terms of the Act.

It should be noted that Section 27 of the Refugees Act guarantees to refugees specific forms of protection of their fundamental human rights, including socio-economic rights. Among these are the rights: to be provided with a formal written recognition of refugee status, identity and travel documents; to seek employment, as well entitlement to basic health services arid basic primary education on the same level as South African citizens. International standards for the protection and care of refugees are fully reflected in the Refugee Act and its Regulations as well as in the Pill of Rights. In particular, the Act accords to refugees full legal protection, including the rights set out in the Pill of Rights (Chapter 2) under the South African Constitution. Specifically, the Constitution provides that everyone in the territory of South Africa has certain rights. This includes refugees and asylum seekers.

Statistical data provided by the South Africa Department of Home Affairs indicates that as of June 2004, there were about 26,900 recognized refugees in South Africa and some 90,600 persons were awaiting determination of their asylum applications. Although the applications have diverse backgrounds, representing as many as 127 countries around the world, the majority of those granted refugee status originate from other African countries, particularly the conflict-affected countries of the Great Lakes Region [including the Democratic Republic of Congo (8,795), Burundi (1,976), Rwanda (1,220) and the Republic of Congo (1,065)], as well as Somalia (6,881), Angola (5,760), Sudan and Ethiopia. Over 80 % of the refugee population is, characteristically, single and male. Refugees and asylum seekers are dispersed around the country, but tend to settle in and around the main urban and commercial centres in the Provinces of Gauteng, Western Cape, Kwa-Zulu Natal and Eastern Cape.

Among other rights conferred on "everyone" by the Bill of Rights, we can mention the rights to human dignity, the right to life, freedom and security of the person, and the right not to be subject to slavery, servitude or forced labour. No ~e cm be deprived of his or her basic or fundamental rights.

UNHCR is of the view that the formulation "everyone" in the different provisions of the Bill of Rights and other chapters of the Constitution must include "refugees" for whom the Republic has undertaken legally-binding international, as well as constitutional, obligations. To argue otherwise would unreasonably limit the rights of refugees under the Constitution and thus undermine the rights and benefits to which they are entitled under international and national law.

Bearing in mind the conditions of extreme insecurity that these refugees would have experienced in their countries of origin or en route to South Africa, it should not be difficult to understand why they would place such high importance on the need to regain, as speedily as possible, a sense of human dignity, safety and self-respect. The success of the efforts that they apply towards achieving this, however, hinges on the extent to which they themselves, their families and their communities are able to count on an enabling and supportive environment in their host country. In reality, refugees and asylum seekers are confronted with a number of obstacles in their bid to attain normality in their new surroundings. Among those challenges are lengthy bureaucratic delays encountered by genuine asylum seekers in having their asylum applications processed and obtaining effective documentation under the 1998 Refugees Act; the inability of the most vulnerable refugees to access government assistance despite being eligible, in principle, as well as other factors impeding their access to employment and educational opportunities. As a result, many refugees arc left with few options but to try to survive by engaging in activities in the informal sector, such as hawking, considered by equally desperate South Africans as unwelcome zones of competition.

Nonetheless, it appears that, given their proven resilience, most refugees are willing to persevere against the prevailing challenges in order to integrate into their local communities. The added

constraining factor of xenophobia, that is, the hatred or intolerance exhibited by certain South Africans towards foreigners, particularly, of African origin, undermines the valiant efforts of refugees to gain acceptance. The prevalence of xenophobia also renders refugees susceptible to both street crime and other forms of abuse and exploitation, thus contributing to a climate where refugees feel unsafe and unable to fully exercise their rights. Among the incidents recorded, since 1994, in which refugees and asylum seekers were targeted, attacked, maimed or even killed are the following examples:

· In September 1998: an attack was launched on a train to Pretoria, which targeted and killed three self-employed, non-South African passengers;

· Most recently, in September 2004, a young South African woman was arbitrarily arrested during a "spot inspection" of documents. She was dispatched to the Lindela Repatriation Centre in preparation for deportation - reportedly, due to the perception of the arresting officers that she was "too dark-skinned" to be a South African. At the time of the arrest, the victim was, by her own assertion, not in a position to bribe her way out of her predicament. This case illustrates a noted trend where figures ot authority, such as the police, are increasingly discredited and viewed with cynicism by refugees and migrants due to their known practices of bribery and corruption. UNHCR and its partners routinely receive complaints from duly-documented refugees and asylum seekers, who continue to be the victims of wrongful arrest by South African law enforcement officials. Complaints have been received by a number of refugees and asylum seekers regarding their prolonged detention and unfair treatment at the Lindela Repatriation Centre. In some instances, despite the

fact that the refugees have produced their refugee/asylum seeker permits, they are still kept for days or weeks in detention, under harsh conditions.

· Information provided to UNHCR through its refugee protection monitoring activities suggests that xenophobia related sentiment has, increasingly, taken on a more sinister and menacing, but subtle form, with public servants selectively victimizing refugees, asylum seekers and even those South Africans whom they mistake for foreigners. Cases reported to UNHCR and its partner agencies include (i) police deliberately tearing up refugee or asylum seeker permits handed over to them for inspection and then turning, cynically, on their victim to declare him /her illegally present in South Africa; (ii) similarly, refugee parents wishing to enroll their children at primary schools report being turned away by school officials under the pretext that there is no room for additional intakes or that those children do not fit the admissions profile and other requirements of the schools concerned. It is believed that, in fact, this is merely an excuse applied selectively by certain schools authorities to avoid having to admit refugee learners, particularly, since they anticipate refugees' need to be supported in applying for school-fee exemptions. Some school authorities seem to consider such discriminatory practices to be legitimate methods of ensuring bias in favour of South African children; (iii) indigent refugees have been denied access to emergency medical treatment in Government hospitals on the ground that being non-citizens, they were not entitled to such treatment. Those instances in which UNHCR and its partners have had to intervene depict the attitudes of frontline or medical staff as being keen to dismiss efforts by refugees to provide proof of their legal status in the country and, therefore, questioning their eligibility for such treatment by claiming or feigning ignorance as to the refugee rights in question. Others have demanded payment of exorbitant hospital fees as a condition to providing treatment.

In 1998, against the background of growing resentment against foreign migrants, UNHCR, together with the South African Human Rights Commission (SAHRC) and the National Consortium on Refugee Affairs (NCRA), launched the Roll Back Xenophobia Campaign. The anti-xenophobia campaign was, fittingly, launched on International Human Rights Day, 16 December 1998. With a budget significantly funded by UNHCR, the Campaign focused on implementing a strategy intended to counter the rising tide of anti-foreigner sentiment in South Africa.

Commencing in 1999, the Campaign has supported a wide variety of public awareness and educational activities throughout the country and come to enjoy the support of sections of the civil society as well as some local government authorities. One particularly effective initiative was the production of radio programmes that told the stories of some of South Africa's former refugees, now prominent personalities in the public and private sectors and featured their round condemnations of the practice of xenophobia. This production has been given extensive airplay in community radio stations in rural, urban and peri-urban areas of the country. Prominent South Africans featured in this production, as well as on other radio and television talk-shows, current affairs programmes and youth shows as taking a stance against xenophobia include the renowned singer and human rights campaigner, Miriam Makeba and the former Minister of Education, Professor Kader Asmal.

Other activities carried out by the sponsors of the Campaign include the publication and dissemination of materials targeting adult and youth and a national road show, launched jointly, by the Department of Home Affairs and UNHCR to promote awareness among both South African township communities and refugee communities as to the rights and obligations of refugees. Another national initiative undertaken by the three co-sponsors of the Campaign with the support of and in co-operation with the South African Police Services (SAPS) comprised a series of workshops for members of the SAPS on the promotion of human rights, which tackled the issues of racism and xenophobia through a holistic approach - from the practical legal perspective to analysing their psychological impact on the victims of such abuses. Positive feedback from the workshop-facilitators indicated that they were able to perceive remarkable changes in the perceptions and attitudes of the workshop participants. Gratifyingly, the organisers were subsequently invited for a follow-up exercise by the Cape Town Commissioner of Police and a similar request was received from the Executive Council of Safety and Security of the Northern Cape Province.

"Xenophobia" - the fear or intolerance of foreigners has been described by the former United Nations High Commissioner, Mrs. Sadako Ogata, as "one of the most dangerous trends in modern society, and one that has to be countered by governments and civil society most vigorously" Though acknowledged as a world-wide phenomenon, it has previously flourished most visibly in the richer, industrialized countries of the Northern Hemisphere where, in the past couple of decades, it has been associated with the growth of resistance and resentment against the perceived "invasion" by impoverished and job-hungry economic migrants from the less-developed countries of the Southern Hemisphere.

However, it is now also acknowledged that the global landscape is changing for the worse in respect of the growth and expression of anti-foreigner resentment. A significant aspect of this development is its visibility in countries, such as South Africa, located in the developing regions of Africa and Asia, where the bulk of the world's population movement, both forced and voluntary, continues to take place.

In general, xenophobia appears to thrive best on the basis of a sense of insecurity created by fears as to the impact of uncontrolled migration on the distribution of resources, and socio-economic opportunities in a country. This phenomenon is being witnessed in the context of the mixed movement of people across borders, which include both refugees, who are genuinely motivated by their pursuit of the legal protection offered through the grant of asylum, and economic migrants. In this context, there is growing confusion between refugees, who flee persecution and violence, and economic migrants, who leave their country seeking better economic Opportunities.

Within the broader field of migratory movements, UNHCR's global mandate is to preserve and defend the rights of refugees, that is, persons who seek and deserve international protection. It needs to be stressed, however, that each category of "people on the move" has its needs and requires not only specific legal frameworks for their rights, but also humane treatment and specific solutions to their problems. Refugees need international protection. Economic migrants need their labour and fundamental human rights to be recognized and respected.

In the context of South Africa, UNHCR finds it necessary to issue the reminder that it is essential to maintain and reinforce the international refugee protection regime to which South Africa has committed itself Human solidarity - "Ubuntu" - in favour of people compelled to flee persecution and violence and to search for protection away from their own homes, whether in Africa or elsewhere, is indispensable. Human beings compelled to move by conflict and persecution are, particularly, vulnerable to the debilitating effects of xenophobia, as well as deserving of the welcome, empathy and respect of their host communities.

In the light of the foregoing observations, UNHCR wishes to submit the following specific recommendations for the consideration of the Joint Commission.

It is regrettable that, to date, only a few leaders have taken a public stance against xenophobia. In this respect, it was especially heartening to note the statement issued by President Thabo Mbeki, during the 2001 World Conference on Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in South Africa. On that occasion, President Mbeki observed, among other things, that all South Africans must be vigilant against any evidence of xenophobia against African immigrants. He noted that it was "fundamentally wrong and unacceptable" that South Africans should treat people, who come to South Africa as friends, as if they are enemies. However, only a handful of Ministers and Members of Parliament, for example, have lent their voices to that of the President or expressed solidarity with the objectives of initiatives; such as the. Roll Back Xenophobia Campaign.

Quote:

We, Speakers and Members of National Parliamentary Assemblies

8. Undertake to encourage a wide-ranging debate on the state of national legislation to implement international refugee, human rights and humanitarian law, and on relevant practices and situations which require our attention.

9. Encourage our national parliaments to establish a standing committee, or sub- committee dealing with all matters related to refugees and international humanitarian law.

10. Undertake, as men and women elected by the people, to do all in our power to foster a positive attitude towards refugees and displaced persons, so as to improve their protection and ensure their contribution to the socio-economic development of their host communities.

11. Commit ourselves to refrain from perpetuating negative stereotypes about refugees and to ensure that they are not exploited politically, including during electoral campaigns.

Unquote

It is expected that once a critical mass of the political and business leadership of the country has taken a principled position on xenophobia, the process of reversing the rising tide of hostile attitudes towards refugees and migrants would be made easier. People will be led to realize that it is a genuine problem and will be encouraged to rethink their attitudes. The Roll Back Xenophobia Campaign has since its existence, already prepared some of the spadework for a well-structured Government initiative, as illustrated through some of the activities of the Campaign mentioned earlier.

Over the past two years, there has been much anticipation on the part of UNHCR and other agencies working on behalf of refugees and migrant communities regarding the role that has been envisaged for the Department of Home Affairs and other relevant institutions, within the context of a national action-programme for implementation of the follow-up to the 2001 Durban World Conference against Racism, Xenophobia and Other Related Intolerance. UNHCR was gratified to note that the Immigration Act, Act No. 13 of 2003, which was recently amended, contained references to the prevention of xenophobia as being among the Department's responsibilities. At the time of consideration of the Immigration Bill, UNHCR had made known its support for the idea of engaging the Department in this undertaking. Following recent consultations with the Director-General of the Department on the issue, UNHCR is currently preparing its proposals on how it can best assist the Department in accomplishing its plans to establish an "Anti-Xenophobia Unit", which is to be tasked with the implementation of training and promotional activities iii this area.

Civil society organisations, however, need to develop more "muscle" and to act in partnership with other like-minded organizations in addressing the problem head on. Efforts should be made to

enlist trade unions members as well as members of the business sector in the fight against xenophobia. The contribution of members of the refugee and migrant communities should be actively sought and they should be empowered to fulfill this role. Refugees' access to public and private services, alongside South Africans, is severely restricted because of' among other things, xenophobia. Therefore, it should be recognised that refugees struggle to maintain their sense of human dignity and resilience, against all odds, while striving to settle in the country. It is equally important that refugees and asylum seekers be able to demonstrate their appreciation for the hospitality and solidarity being extended to them by their host community.

In recent times, UNHCR has observed some improvement as to the knowledge and interest of the South African me.4ia in covering issues concerning refugees. Despite this positive development, media reporting on the presence of migrants in the country regularly falls back on the old, familiar approach of promoting negative stereotypes that are more likely to orientate the ordinary South African reader or TV viewer to link refugees and migrants with criminal fraud, drugs, or with a propensity for exploitation, including romantic dalliance. The media, should, therefore, be encouraged to apply greater objectivity to their reporting, for example, by highlighting the fact that South African Police Service (SAPS) statistics show that, in fact, foreigners are more often victims than perpetrators in South Africa.

It is always disheartening to realize that learners at all levels of South African institutions are educated to develop a greater awareness about other regions of the world and very little about the African Continent to which they belong and on which they reside. Issues relating to the root causes that create refugees, asylum seekers and forced migration across the continent, and to the pursuit of solutions to these problems are all intrinsically linked to the current challenges facing Africa and its leadership. Students and learners must be educated about Africa and its peoples, in support of the movement of Renaissance, so vigorously promoted by South Africa's President Mbeki. Educational institutions should factor this into their syllabi, focusing on the positive values, such as Ubuntu -respect for self and others, that will boost the self-esteem of learners and orientate them towards appreciating the human worth and needs of the foreigners, in particular, those of African descent, that they encounter and live with.

The Roll Back Xenophobia Campaign has succeeded in having the theme of "xenophobia" incorporated into Orientation Skills lessons in some schools around the country and this has yielded positive results. What is required is an official undertaking by the National Department of Education to include this issue and related subjects into the national school curricula.

By establishing a special initiative to eliminate the accrued backlog of long-pending asylum applications and by implementing changes to expedite and efficiently manage the ongoing process of registering and assessing the merits of applications, and issuing refugees with appropriate identification documents, the Department will also be eliminating the potential for abuse of the asylum system by economic migrants and criminal syndicates. Upholding the integrity of the asylum system should help in changing the perception as to who refugees really are, their distinction from other categories of foreigners and the fact that they deserve, and are entitled to, receive welcome and protection. Most importantly, the public will be convinced of the correctness and relevance of the commitments undertaken by the State to ensure full protection and enjoyment of rights by refugees and asylum seekers in the country.

UNHCR Regional Representation in South Africa,

Pretoria.

28 October, 2004