SA Human Rights Commission Report on 2008 violence against non-nationals: Briefing

Meeting report

South African Human Rights Commission (SAHRC) Report on Investigation into issues of Rule of Law, Justice and Impunity arising out of the 2008 public violence against non-nationals
Ms Judith Cohen, Head of Programmes, Parliamentary and International Affairs, South African Human Rights Commission, briefed the Committee on the Report drawn by the South African Human Rights Commission (SAHRC or the Commission) following its investigation into the 2008 public violence against non-nationals. She noted that nobody had been prepared for the scale and rapid spread of the violence, and the SAHRC itself had difficulties because this was the first time it had ever been confronted with a human rights crisis of such proportions. Although the SAHRC was a small body with limited resources, it had played a role in bringing parties together. There was initially deep distrust between non-nationals and government, and the non-nationals looked to the SAHRC for assistance, instead of to government. Meetings were held in Western Cape, between national and provincial government, City of Cape Town, non-national representatives, civil society, and church organisations. Critical issues were identified as the need to build trust, to get people to focus on human lives and dignity, to strengthen safety and training of safety monitors, and to ensure that responses consistent with the Constitution were implemented. The SAHRC was also tasked with presenting a written report and make recommendations should such situations arise again in the future. A policy paper was prepared and it was hoped to share this with other Human Rights Commissions around the world to prepare them to avert or deal with similar complex disasters.

Once the violence had subsided, there was time to take far greater stock of what the Commission could be doing. There had been much follow up from many stakeholders dealing with non-national refugees. In the Western Cape, litigation arising out of the violence led to further research. The SAHRC and United Nations High Commissioner for Refugees set up a Protection Working Group.

One lesson learned from 2008 was the need for organisations and institutions to put their differences aside and work in harmony, and there was now a better network of organisations that could be immediately contacted if a crisis arose again. In the lead up to the 2010 Soccer World Cup, following rumours of potential violence, many non-nationals were moving out of townships. The SAHRC and the Protection Working Group had contacted those organisations with whom it worked in 2008, and ensured that the SAHRC received information, that it then fed through to the South African Police Service (SAPS) and it met with the SAPS Visible Policing Unit, briefed the Portfolio Committee on Justice and Constitutional Development, the Justice and Security Cluster and Cabinet, and brought political parties together to make a statement. These efforts all sent out a clear message of zero tolerance for xenophobia-related violence, and averted the very real threat of further xenophobic outbreaks. She stressed that the impetus must be maintained, because there was real potential all the time for the violence to recur.

Ms Cohen noted that the SAHRC report (the report) had focused on “the Rule of Law, Justice and Impunity”. A deliberate decision was taken not to focus on the root causes of the violence, which had been researched in full, and which were very complex. The SAHRC believed that a serious discussion was needed on what had happened to the rule of law, why police were unable to control the violence, and how the Rule of Law could be maintained. That was the reason for directing the report to the Security and Justice Cluster and the police services, with consideration of how the Department of Home Affairs (DHA) fitted into the picture. The question of impunity considered how people’s lives had been affected. It was estimated that 62 people died during the xenophobic violence, of whom 21 were South Africans. Between 180 000 and 200 000 people were estimated to have been displaced. It was not known how many non-nationals fled to neighbouring countries. It was impossible to identify and hold the perpetrators accountable. One year after the violence there was a total of only 137 convictions, and this low rate was of real concern to the SAHRC.

South Africa had a number of international obligations committing itself to protect and promote the rights of foreigners who came to South Africa, particularly as refugees. South Africa was also a signatory to the UN Convention on the Elimination of all forms of Racial Discrimination. This had been formalised largely as a result of the rest of the world witnessing the effects of apartheid, so South Africa bore a huge responsibility to transform society from its racist and apartheid past to one where racism and related intolerances, including xenophobia, did not exist. The Immigration Act 2002 spoke specifically to the duty to deter xenophobia, and the Refugees Act spoke to the protection of refugees generally.

Ms Cohen stressed that the UN Convention on the Elimination of all forms of Racial Discrimination recommended that it signatories should criminalise hate crimes, yet to date there was no legislation in South Africa that did so. She reminded members of the ghastly picture of the burning man that was splashed across the Sunday newspapers, and papers throughout the world. The inquest into his death concluded that nobody could be held accountable for his death, but that he was murdered by a rampaging mob. It was precisely to try to avoid that happening again that the report had focused on the Rule of Law, justice and impunity.

Ms Cohen noted that part of the follow-up to the report was that the SAHRC had sent tables of recommendations to various ministries. The Department of Social Development (DSD or the Department) had been sent a letter on 6 July 2010, but the SAHRC was still awaiting feedback. This Department played a very strong role in creating social cohesion and non-tolerance of xenophobia in society.

Ms Cohen then outlined the recommendations of the Commission. She noted that in the past there had been little recording done of prior conflicts. Although many instances of violence had been tracked since the 1990s, there were no systems for collecting information. Xenophobia was a real and present issue in South Africa, and must be addressed, and it was necessary to have systems that created and held documentary records. Whilst she commended the Department for having an awareness of xenophobia, its documentation had not been sufficiently formalised.

She noted the lack of early warning systems. The SAHRC recommended that all relevant government departments should keep early warning records and be clear about the purpose of this activity, so that efforts were not duplicated or redundant, that all levels of government were aware of it, and so that this mechanism was used as a tool to prevent civic violence.

It was recommended that the DSD should get non-nationals more involved in community structures, to increase their visibility and thus reduced their vulnerability to attack. It was important that non-nationals were included in Community Policing Forums (CPFs) and were made welcome to participate in such community structures. DSD should look at migration and urbanisation in South Africa, and should consider how the influx of non-nationals into South Africa impacted on communities and how it led to increased social tensions that could manifest themselves in xenophobic violence. It was also the role of DSD to compile community profiles that could assist other government departments in their important work to counteract xenophobic violence.

She noted that DSD could play an important social cohesion role, at grass roots structure. There seemed often to be poor relationships between local residents and key officials, and instances were reported of local councillors being indifferent to residents’ needs, or being corrupt, or having an authoritarian leadership style that failed to engage with people or allow participation. DSD, as policymaker, should realise the potential role of local institutions, and consider how it could provide guidance to mitigate tension and ensure that violence was not incited in communities. Its role in service delivery could also ensure better social cohesion within communities. Ms Cohen noted that prior to 2008, there were anti-xenophobia campaigns, but these were largely unsuccessful. DSD had done research and work around nation building, including the Population and Development Programme, and much of this could be fed into the future actions. DSD could play a powerful role in getting anti-xenophobia campaigns to work correctly.

Ms Cohen noted that there was a “community myth” in many communities that if nobody was arrested for a crime, then this meant a non-national was the perpetrator and this led to the perception that non-nationals were perpetrators of crime. There was a need to deal firmly with such myths, which encouraged some people to marginalise others, and make them vulnerable to xenophobic acts of violence. In fact, very few crimes were perpetrated by non-nationals.

It was also recommended that DSD should engage with other departments around services for non-nationals. Many refugees were unaware of those services and did not access them, which often left them in dire straits, which made them even more vulnerable.

Ms Cohen added that this Committee should engage with the Justice and Constitutional Development Portfolio Committee around the need for hate crimes legislation, to send out a strong message of non-tolerance for such actions.

Department of Social Development’s role
The Chairperson thanked Ms Cohen for the presentation and asked DSD to explain its role.

Ms Sadi Luka, Chief Director: Youth, DSD, said the Department had noted the positive recommendations in the SAHRC’s report, and that a written response would be submitted by the Director General and the Minister of Social Development.

She added that the Department was already working hard on the issues of social cohesion and xenophobia, and had developed a concept document, with the aim of ensuring that social cohesion was mainstreamed into the processes of the Integrated Development Plans. This concept document was disseminated to all municipalities. The DSD had also given a presentation to the National Development Planning Forum convened by the National Department of Cooperative Governance and Traditional Affairs (COGTA), and also held a social cohesion and xenophobia workshop to present the SAHRC recommendations. The National Development Planning Forum also attended this workshop. The concept document, which had several cross-cutting issues, would be presented to the Cluster on 15 December.

The SAHRC report also raised the issue of a social cohesion working group involving the DSD, but she indicated that the Department of Arts and Culture (DAC) was the lead department in terms of social cohesion. There was a Social Cohesion Task Team, in which the DSD’s Community Development Programme and Population Unit were involved. The DSD would, however, take responsibility for ensuring that the issues were raised and discussed, and that positive campaigns were held and organised nationally.

Ms Luka then reported that the DSD had done a case study in a small informal settlement in Bokfontein, near Brits, where several lessons could be learned about real integration. The mere fact that citizens and foreigners lived next to each other could not be construed as successful integration; this would, instead, require that a range of factors must be considered, and that foreigners must be allowed to participate actively in their society whilst not neglecting or ignoring the needs of citizens. Ms Luka agreed that there were “myths” around foreign nationals, including the myth that foreign nationals took employment opportunities away from nationals. In the Bokfontein community, there had been no unrest, even when xenophobic attacks were rife elsewhere. The environment was crucial to the support of migrants, and they must be made to feel welcome and safe, and be provided with the opportunity to contribute to economic, social, cultural and political development of the community. It was also important that they were allowed participation in community activities and decision-making processes, as well as equitable access to opportunities. They must also enjoy full human rights, including lack of discrimination and a high sense of belonging. It was crucial that this message was spread into other areas.

Ms Luka said that recommendations were made by the Population Policy Plus Ten on migration research. The Population Unit of DSD should ultimately take responsibility for research and recommendations. However, at present, there were very limited resources to undertake the task. There was a need for engagement between DSD, COGTA and other departments, and local government, to establish how the research should be undertaken. The National Community Development Policy Framework, which would also review the definition of community, was being finalised, and this too would address issues raised in the SAHRC report.

She added that issues of access to social assistance and social relief of distress, and disaster management, would be tabled in the written response to the SAHRC. The DSD had noted the recommendations about documenting, and ensuring a system with early warning to prevent civic violence.

Ms Luka said the DSD had already, within the context of the War on Poverty Programme, developed systems or tools to do community profiling. There was a need to ensure that the issues of social cohesion and xenophobia were also embraced in those community profiles.

In response to the need for participation in community structures, the DSD had realised that there was a gap between ward committees and communities, so it was developing guidelines for the establishment of Community Development Forums, to ensure that all communities were well-represented, and that community issues were well captured in the IDPs. She noted that communities should not merely be consulted, but should be meaningfully involved in decision-making on development issues. In addition to developing the guidelines, the DSD was also identifying whether forums existed, and was also developing a capacity building programme, throughout the country. These would be informed by the structures already in existence, noting the types of skills or programmes that needed to be developed.

Ms Luka said that in response to the recommendations, the DSD would draw a five-year action plan to highlight its own role, and to enable Parliament to do oversight, and this would be made available to the Committee.

Discussion
The Chairperson asked for a copy of the concept document, which the SAHRC confirmed it would send.

The Chairperson noted that the Refugees Amendment Bill contained a new definition for refugees and made changes to applications for refugee status. She asked for the difference between a person who had applied for refugee status and an illegal immigrant, and asked what legal protection was granted to an illegal immigrant.

Ms Cohen explained that the term “non-national” could refer to any foreigner, but that had become almost a derogatory term in the aftermath of the 2008 xenophobic violence. A “non national” could be an asylum seeker, or migrant. A refugee was considered to be a person who had followed all the processes set out in the Refugees Act, through the Department of Home Affairs, to be granted refugee status that was recognised both by the South African government and the UN High Commissioner for Refugees. There were not many refugees in South Africa. However, South Africa did have many asylum seekers who had arrived in South Africa and reported to the Department of Home Affairs, whilst their refugee status was being processed. The DHA was unable to process all these applications timeously. Some asylum seekers complained that they had visited the DHA offices numerous times. Owing to the systemic problems at DHA, the SAHRC was unable to confirm exactly who was in South Africa, and she recommended that DHA should be pressurised to correct this situation.

Ms H Lamoela (DA) asked whether the DSD had given any reason for not responding formally to the requests o of the SAHRC.

Ms Luka responded that the submissions made to the SAHRC were not given in response to that request. It was necessary to contact the Minister’s office again.

Ms Lamoela also noted that the SAHRC had produced a policy paper to guide its response to future conflict disasters, and asked that the Members be provided with a copy.

Ms J Masilo (ANC) was concerned about the recommendations about the role of local municipalities, ward committees, and the references to the IDPs, and wondered if these recommendations were not impinging on the roles of COTGA and local government.

The Chairperson responded that government departments could make requests to local government, especially in terms of the IDPs. Every IDP had subsections dealing with programmes, including a subsection dealing with Social Development. DSD worked very closely with municipalities, offering IDP training, so that population development issues would be incorporated into the IDPs. This made sense, because of the mandate of local government, and its interventions would reflect positively on future planning and service delivery.

Ms Luka added that local government operated at ward committee level, and DSD was involved with the Community Development Forums. There had been huge growth of community-based organisations, but they were not organised, with few specific focal areas. The DSD wished to build the capacity of the forums, to be able to undertake community based research and community based planning. That would feed into the ward committees and contribute to the IDPs, increasing the real contribution of communities to the IDPs. In the engagement that DSD had with local government, DSD had indicated that the ward councillor should be a member that would participate, and the community development practitioners would take responsibility for the Community Development Forum. The community development workers in local government also operated through the ward committees. Both DSD and COGTA had roles to play, and it was important that there be meaningful mechanisms for engagement and to bridge the gaps.

Ms Luka added that the DSD would train community development practitioners in assessing the necessary information, from community and household profiles, to enable a social sector plan on specific issues to be crafted, for mainstreaming by way of the IDPs. Each department had the responsibility to ensure that issues relevant to that department were addressed in the IDPs.

Ms Masilo asked whether community development workers fell under the DSD.

Ms Luka responded that community development workers were the responsibility of local government and the DSD.

Ms Lamoela asked whether the DSD had trained community development practitioners in all municipalities.

Ms Luka responded that historically the community development practitioners employed in the DSD were not really trained as such. The DSD had tried to ensure that its capacity was developed, and it had done a national skills audit to identify its current capacity, its training needs and skills needs. A skills development programme, supported by the Sector Education and Training Authority, was then developed, which provided funding for training, and a sustainable livelihood toolkit, for community development practitioners. One of these programmes, in partnership with the University of the Free State, was accredited and offering training on the sustainable livelihood approach, whilst another non-accredited programme was training on how to use the toolkit. The Occupation Specific Dispensation (OSD) processes had also now specified the requirements for appointment of future community development practitioners, whilst those already appointed were undergoing intensive training to build their capacity.

The Chairperson noted that the SAHRC had requested the Minister of Social Development for feedback on its recommendations in the report. She understood that the concept paper on xenophobia was not drafted in response to this request, and asked for clarity on that, to ascertain whether the Committee must request the Minister to respond specifically to the SAHRC and the Committee.

The Chairperson noted that the outbreaks of violence had to be addressed by local and provincial government. She asked what interaction the SAHRC had had with the Western Cape Provincial Government and local councils. She noted that when driving through De Doorns, there was huge disparity between green and prosperous vineyards on one side of the road, whilst the other side had shacks, litter, lack of sanitation and lack of site development. She asked whether there had been violence here, and whether there were programmes to build cohesion, as she thought it had the potential to flare up, given the deprivations and the stark economic disparities.

Ms Cohen confirmed that there had been violence in this area. She confirmed that there was great poverty in the area of Stofberg. Both the Western Cape Provincial office and the Provincial Manager were very involved during displacements in the previous year, and although there had not been eruptions of violence, the fear and intimidation had caused a whole community to be evacuated. She noted that there were still questions around who would have to pay for the evacuation, since the municipality had few resources, whereas disaster funding could possibly be released through provincial government. There was much work still to be done to address these issues. She added that the dire poverty in this area would not be resolved overnight, and this was the case in many other rural communities too. SAHRC provided training to civil society, and their reports indicated that over many years dissatisfaction over the extreme poverty and lack of delivery escalated into violence and displacement. There was a need to have a long-term strategy to determine what every roleplayer should be doing.

Ms Lamoela confirmed the issues in the De Doorns community, and noted that she was intending to address the Worcester Municipality about them. She indicated that many workers came into camps as seasonal workers during the grape and fruit-harvesting season of four to five months, but some would stay after the season ended. This affected the budget of the government, and the chances of employment for local people. It also resulted in shortage of facilities, including toilets and water tanks. However, she thought that people should be mentored into how to improve their own conditions, including clearing their litter.

Ms Cohen said that there was an excellent report, written by civil society, on De Doorns, which she would send to Ms Lamoela, and which would be most useful for her meeting with officials in Worcester. The research brought out some interesting issues on seasonal workers. The farmers were adamant that there was enough work for everyone, even with the influx of seasonal workers both from other provinces and from Zimbabwe, during the season, but the main issue was how the local municipalities would cope with the influx of people. The same issues were facing the large urban areas. This related back to the work of the DSD Population Unit, and the need to feed that information through to all relevant parties.

The Chairperson asked whether there had been any attempts to make the community aware of, and to de-bunk the myths about illegal immigrants and refugees. She pointed out that there were non-nationals, with resultant tensions, in every town. Government had a responsibility to address these challenges. She noted that although Zimbabwe was stabilising and showing economic growth, its problems would not disappear overnight, and she wondered if SAHRC was monitoring whether conditions were worsening or improving in migrants’ own countries.

Ms Cohen responded that that the politicians must take a political decision on South Africa’s relationship with Zimbabwe, including whether Zimbabweans would be regarded as real refugees or economic migrants, and whether they could be granted work visas. That would impact on the number of Zimbabweans in South Africa. The SAHRC must be aware of what was happening on the Continent, and how it impacted on human rights, and so it was connected, throughout Africa, with the Network of African Human Rights Institutions. South Africa would chair the Network from January 2011. SAHRC had recently briefed the Portfolio Committee on International Cooperation and Relations about the African Charter on Democracy, Elections and Good Governance, which addressed issues of conflict within Africa. This Charter was to be ratified, which paved the way for South Africa to be a leader on good governance and the protection of human rights and democracy on the Continent.

Ms S Kopane (DA) noted that xenophobia was a cross cutting issue affecting all government departments and civil society. She also noted the limited resources to deal with the massive challenge, and the fact that stakeholders were not always properly coordinated. She asked how the SAHRC would ensure that a coherent and integrated approach to deal with the challenges was taken, and how it would channel the limited resources and get the lead departments to proffer their expertise.

Ms Cohen responded that the SAHRC report did note that one of the major challenges in addressing the crisis, in May 2008, had been the lack of coordination between relevant organisations. Both the SAHRC and government had limited resources. She commended the DSD for taking the recommendations and trying to build on them within the existing structures and work programmes. She pointed out that it was mostly within government that there was lack of effective coordination. The SAHRC had facilitated the interactions of national and provincial government and civil society in the Western Cape, but it should not be up to the SAHRC to do this, as government should be working in concert with all stakeholders all the time. If the violence recurred, she hoped that systems within government would have developed to such an extent that there would not be a need for the SAHRC to problem-solve and try to resolve the issues to assist with the crisis.

The Chairperson noted the comment in the SAHRC report of a breakdown in communities, where non-nationals did not feel part of the community, and were not represented in structures such as the Community Policing Forums. She asked if there had been any progress on resolving this since the outbreaks.

Ms Cohen responded that the issue of xenophobic violence was taken extremely seriously, and the moment that there was any hint that xenophobic incidents could occur, the SAPS had systems to deal with it. Many lessons had been learned from the 2008 situation.

The Chairperson asked what local initiatives were being undertaken to build bridges and break myths. She also asked if there was now stronger leadership in the communities, whether non-nationals were being involved, and if communities were moving closer together.

Ms Cohen responded that the SAHRC would send a written response on this. The SAHRC had secured funding from the UN to do a lot more work around xenophobia. There had been increased attempts to address the issues. The South African Council of Churches had played a strong role, especially during the 2010 Soccer World Cup, when tensions were running high, to get anti-xenophobia messages out through every church in South Africa. However, the challenge remained in assessing the impact of the initiatives.

Ms Masilo noted that the report mentioned language barriers that prevented non-nationals from communicating in CPF meetings, but pointed out that there were eleven official languages and that surely people in communities must be aware of where others were living and from which countries they came.

Ms Cohen confirmed that language was mentioned as one of the challenges to creating social cohesion, and said that many non-nationals did not speak any of the eleven official languages in South Africa. She pointed out that both nationals moving from one province to another, and non-nationals, should be able to find a place to stay through networks, and agreed that it was important that people took responsibility for finding out who was living in their community.

Ms Kopane questioned the recommendation that a social working group should arrange a workshop to encourage mediation and integration initiatives, asking who comprised that group and what its mandate was.

Ms Cohen responded that this was a Social Cohesion Working Group, as described by Ms Luka, and it was coordinated through the DSD.

The Chairperson noted that the Committee would discuss the report further and report back to the Speaker.

Other Committee business
The Chairperson, on behalf of the committee, congratulated Ms Hope Malgas on her appointment as Chairperson of Basic Education, and noted that she would be missed at this Committee.

The Committee discussed arrangements for the SSWF conference taking place from 29 November to 3 December.

The meeting was adjourned.