Gauteng update
Good news- the Con Court today postponed the case to 20 Nov and will issue interim directions re the camps- this means the Gauteng deadline of 30 Sept for closure falls away. Will send more details as we get it. In the meantime here is a piece on the Gauteng situation from yesterday.
NOWHERE TO GO – DISPLACED PEOPLE IN GAUTENG CAMPS
FATIMA HASSAN
From May 2008 several thousand people were displaced in Gauteng by xenophobic violence. They were subsequently sheltered in several ‘refugee camps’ around Johannesburg under conditions that have been condemned by international agencies and civil society organisations. Eventually, without consultation and due process, or any regard for human dignity, the Gauteng government forcibly consolidated these camps. A handful now remains open.
Nevertheless, because people in the camps continue to fear for their lives, and have lost all or most of their possessions and livelihoods, they are unable to return to their communities. They stay in intolerable camps because they have no choice and no where else to go.
Some camps do not have electricity, insufficient food, are unsafe for women and girls or have inadequate sanitation facilities. Despite the best efforts of relief agencies on the ground, these camps are not 5 star guest houses. Such conditions I believe are deliberate – an attempt by authorities to make it dire so that people are forced to leave the camps – but without the protection and offer of safety and / or financial assistance.
While some people have returned to their home country (mainly Mozambique, Tanzania) and a handful to their original communities through fairly uncreative and sporadic reintegration assistance programmes (some people have been given R 500 to reintegrate), about 3500 people remain in the camps. It is these people that have turned to the Constitutional Court for protection. They have done so because they have had little or no meaningful assistance from the UNHCR and the Gauteng authorities to reintegrate, repatriate or resettle. They are stuck.
- They cannot reintegrate if they fear for their lives in the absence of proper security measures.
- Repatriation is a voluntary process, so no person who has or applied for status in SA can be forced to go back home as that would be tantamount to an illegal deportation. Also, in a dilemma for the authorities, Somalis and Congolese who may voluntarily choose to go back home, cannot do so because their countries are considered ‘unsafe’ and they will be refused assistance from the UNHCR and SA government with such repatriation. But, because they do have asylum status, they cannot be deported either. They are stuck in SA until other options are sought.
- Those who cannot return to their communities and who wish to leave SA but cannot do so because of the above considerations have no option but to ask to be resettled – a process that can take years mainly because of the refusal and reluctance, to date, of the UNHCR SA office to seek resettlement options (how will this fare for the image of SA?)
- Finally, there is deportation- an all too easy process for the authorities - but a process that cannot be easily invoked if our law is to be followed properly. After all, all government conduct and actions must be based on law, not political or other expediency. This is because our Immigration Act and Constitution provide safeguards where government wishes to deport someone. First, a person who has regularised their stay in SA cannot be deported. A person who has applied for their stay to be regularised and is awaiting a decision cannot be deported. A person who is appealing a decision not to grant them regular stay in SA cannot be deported. A person who has no documentation through a dysfunctional DHA permit system cannot be deported. Finally, a person who wishes to appeal a decision to deport him/her cannot be deported until that appeal process is exhausted. Significantly, a deportation order has to be issued by a judicial officer, not the MEC for Housing or an official at Lindela.
This is why the hearing tomorrow by the Constitutional Court is important. It is an opportunity to set the record straight and keep the camps open until proper, legal and lawful solutions are found to this crisis. No one who has no where to go due to no fault of their own can be forced out onto the streets.
A few weeks ago when the Constitutional Court was first presented with the concerns of displaced people they issued an Order to deal with the interim process of consolidating the camps (not closure). Unfortunately, the Order has been misinterpreted by the Gauteng authorities to mean permission to close the camps – in the weeks since the order the Gauteng authorities consolidated camps in a manner reminiscent of forced removals into three camps then topped it off with a ‘letter’ informing people that the camps will be closed by the end of September 2008 as sanctioned “by the Constitutional Court”. However, this is not what the Court ordered. It agreed that the authorities could for practical reasons consolidate the camps but did not authorise the closure. That will only be decided after it hears argument and evidence as to whether it will grant the applicants leave to appeal the decision of the Pretoria High Court.
Deliberate confusion and misapplication of the Order is something that the Gauteng authorities are using to justify their historical and original plan of closure- they are blatantly ignoring the instructions of the Court.
Let us hope that when the court does hear the matter they accept that there is a huge difference between repatriation and deportation – the former is voluntary, the latter is not. It is worrying that there appears to be a conflation of the two both by the Gauteng authorities and the Order of the Court. Each process requires different levels of scrutiny and the Court should not be used as the means to justify the blurring of two very separate processes with separate sets of rules and vastly different purposes.
What this means is that the Court must look closely at the sinister motives of the Gauteng authorities when it recently (after the initial Order) conducted accelerated status determinations of all people in the Gauteng camps BUT rejected 98% of them! It is these people that the Court must protect from deportation and removal from the camps because their appeal processes have not been exhausted or even initiated as yet. The failures of a dysfunctional DHA should not be the reason why people are wrongly and illegally deported. In an election year, after all, what better way is there to justify closing the camps than by arguing that people are there ‘illegally’ -anyway.