Human rights while it describes the basic rights to all, often there are groups marginalized. The Universal Declaration on Human Rights (UDHR) together with the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) constitutes the international bill of rights. The Bill of Rights enshrines and confers a great majority of rights and affirms the democratic values of freedom, human dignity, and equality for all. The bill ascribes the state to respect, protect, promote, and fulfill the rights enumerated in the Bill of Rights to everyone. The South African Bill of Rights was born out of struggles against apartheid. Since its independence, South Africa (SA) has ratified several international human rights instruments with bearing on the treatment of aliens. These include; The Convention on the Rights of the Child (CRC) (1989), ratified on 16th June 1995; The Convention on the Elimination of All Forms of Discrimination Against Women (1979), ratified on 15th December 1995; and The African Charter on Human and Peoples’ Rights (1981) acceded to in January 1996.
However, SA is not a party to the specific conventions on statelessness; the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families which recognizes migrant workers and members of their families, are often unprotected. Nonetheless, the Convention is based on principles contained in the UDHR and is a party to the CRC. UDHR is not a treaty, but a statement by the international community on the minimum standards of state practices. It is an articulation of states’ human rights obligations as parties to the United Nations Charter. While SA has not ratified ICCPR or ICESCR but signed both in 1994, the nation is obliged not to act contrary to the spirit and purpose of the covenants. Additionally, the rights contained in these treaties and set out in the UDHR form part of customary international law. SA is bound by its constitution which explicitly abides by the customary law unless where it is inconsistent with the constitution or the Act of Parliament.
The 1985 Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live, a declaration by the U.N. General Assembly, similar to UDHR, offers a universal statement on state practice against aliens. The Declaration reinforces the universal rights and explicitly confers basic rights to both documented and undocumented aliens, such as the right to life and security; freedom of expression and assembly; to be equal before the courts; and freedom from torture or cruelty, inhuman and degrading treatments. All persons in SA share these basic human rights under international law, regardless of their immigration status.
SA’s constitution vows to protect the rights of all people, including non-nationals. By virtue of being human everyone is entitled to human rights. Like the international instruments, the SA’s constitution draws no distinction between citizens and non-citizens for most of the rights guaranteed in the Bill of Rights. However, certain rights that relate directly to citizenship – such as the right to enter the country, vote, take part in the conduct of public affairs, stand in office, obtain a passport, form a political party, and other political rights have restricted applications. Consequently, although international human rights law recognizes the right of states in controlling borders and restrict entry, illegal immigration status does not weaver their rights to life, security, equality before the law, or other basic civil and political rights. The Constitution of SA guarantees and protects most internationally recognized human rights, placing an obligation on the state to enforce and fulfill these rights.
In enforcing, while it remains an obligation to all, law enforcement agents, Police, Army, and the Immigration office champion the practice. Law enforcement describes the agencies and employees responsible for enforcing laws, maintaining public order, and managing public safety. They are discharged with the constitutional duty of respecting, protecting, promoting, and fulfilling the rights in the Bill of Rights. Law enforcement while it entails discovering, deterring, rehabilitating, or punishing people in violation of rules and norms, at its core is to ensure public safety and the safety of individuals and their properties. However, enforcement of the human rights, to which SA subscribes to are observed to be skewed towards the victimization of undocumented migrants rather than ensuring they are afforded the basic rights as other human beings. Numerous incidences happening in SA against immigrants, particularly the undocumented calls to question the enforcement of these Rights.
Abuses against Undocumented Migrants in South Africa
SA’s economy, especially in mining, security, farming, and construction sectors, relies heavily on cheap and easily exploitable labor of undocumented migrants from neighboring countries like Mozambique, Lesotho, Zimbabwe, and Swaziland. Undocumented laborers work for a pittance, with their illegal immigration status weighing heavily on their shoulders giving tremendous power to their employers. Physical abuse of workers and child labor are common. Police rarely investigate or prosecute such cases, and in some instances contribute to the exploitation by deportation without pay upon request from employers. Some workers get detained from work, using their undocumented status as a flag of fear of being reported and deported.
SA has been deporting an increasing number of migrants each year since 1994, with the suspects being identified through unreliable means such as complexion, accent, or inoculation marks. Some arrests turn out to be legal migrants, however, this often gets proven after spending days in detention. Theft and assault by law enforcers during the arrest process are disturbingly common. Several claims of incidences of beating, robbing of valuables, and suggestions of a ‘fine’ or bribe as an alternative to arrest and deportation are noted by the South African Human Rights watch.
After arrest, suspects have to wait for months in detention before being processed for deportation or release. Human Rights Watch report notes suspects can get unlawfully detained for more than four months before being released and up to a year before being deported. Conditions of detention facilities, for example, Lindela, are usually far below internationally accepted standards, mostly marked with severe overcrowding, insufficient meals, dirty bedding, and limited access to regular washing facilities. Likewise, instances of corruption, rudeness, and violence involving law enforcers are typical conditions. The Human Rights Watch reports, despite management awareness of some unlawful incidences internal investigations are rare. Even when finally deported, most deportees are not afforded the opportunity to collect their often valuable belongings which only creates a vicious cycle guaranteeing a return for their valuable belongings.
The increasing xenophobic culture of SA’s public and politicians often making unsubstantiated and inflammatory accusations regarding migrants further heightens the vulnerability of undocumented migrants. The unfounded perceptions that undocumented migrants are responsible for various social vices and the unemployment crisis make them targets for violation and abuse not only by SA citizens but even by law enforcers meant to protect them. An account of the death of Jean-Perre Kanyangwa of Burundi in the hands of law enforcers provides a climax of the cruelty and brutality experienced by undocumented.
Against such an increasing number of violations of human rights against undocumented migrants, it is critical to create awareness of the importance of basic human rights and sensitize embracing the “law enforcement’ concept to its completeness. While the status of undocumented migrants remains inconclusive, they deserve to be treated with dignity and assured of the safety of themselves and their belongings. There following can be in creating awareness of the importance of Human Rights to law enforcement agencies:-
First it is critical for law enforcers to be reminded of their roles as defenders of human rights. Law enforcers must not only respect human rights but must also understand their actions in protecting these rights. Instead of considering human rights obstacles and deterrence, law enforcers should consider it as a foundation for their work. This law-enforcing duty to protect is what makes human rights the foundation of law enforcement work.
The SA government and its stakeholders such as Non-Governmental Organisations, Faith Based Organisations, and Community-Based Organisations need to engage in dialogues with the law enforcers to create an understanding in the broader sense of the concept of law enforcement and its impact on the safety and livelihood of undocumented immigrants.
Capacity-strengthening interventions are critical enablers that should aim to sensitize not only law enforcers but also law-makers on the importance of the protection of human rights. Upon such sensitization, the expectation is right-based laws and policies, support for strategic litigation processes, evidence-informed decision-making, and improved law enforcement practices.
Arguably, as the nation keeps on implement strict control to enter the country and also giving increased discretion to agencies of the government implementing international migration legislation it’s paramount to address the importance of the human rights of undocumented migrants. Sensitization and rights-based training with law enforcement officials are critical in ensuring all human beings in SA are protected and treated with the dignity and respect that any human being deserves. Law enforcement agencies with increased discretion are critical in curbing these increasing incidences of human rights violations against foreign nationals in South Africa.
Maria Lauda Goyayi is an academician and a researcher. She writes in her personal capacity.