Role of United Nations Commissioner for Refugees (UNHCR) in South Africa on refugees: by UNHCR Regional Representative

Meeting report

Role of United Nations Commissioner for Refugees (UNHCR) in South Africa on refugees
Mr Sanda Kimbimbi, Regional Representative for the United Nations High Commission for Refugees (UNHCR) was invited to brief the Committee to obtain an international perspective on the UNHCR mandate. There were six core issues 1) the UNHCR and international protection 2) persons of concern to UNHCR 3) 2010 global trends 4) the legal framework 5) statistics and 6) UNHCR activities in South Africa.

The UNHCR was created in 1950 under its own statute and the charter adopted by General Assembly to work under the policy directives of the Economic and Social Council (ECOSOC). UNHCR has over 6 000 people working in 120 countries. The UNHCR mandate was of an apolitical nature, but the issues had roots in political issues. UNHCR guarded from adopting a political line, as the work was social and humanitarian nature. UNHCR did not adopt politics or take a political stand. The organisation was headed by the High Commissioner, who was elected by the General Assembly of the United Nations. The high commissioner was the only head of an UN organisation that was elected. The executive committee comprised of 85 countries that met once a year and supervised the work of UNHCR. There was a standing committee that met multiple times during the year to tackle the issues of large-scale movement of people.

The UNHCR charter document was very helpful, clear and up to date. The protection mandate was the most important mandate to protect uprooted peoples and find solutions. The UNHCR mandate extended to a broad range of people including refugees, asylum seekers, stateless persons, internally displaced persons and returnees. UNHCR worked together with other UN agencies and governments to coordinate these activities. States were primarily charged with the responsibility to protect, which was a provision of the international convention protecting refugees. States had the means to exercise this responsibility. UNHCR worked with governments, but UNHCR was not a substitute for government. At the end of the day it was the state that had the instruments for the protection of individuals. Mr Kimbimbi raised the example of the xenophobic attacks of 2008, in South Africa. UNHCR was called to intervene, but it was the role of the state to act. UNHCR’s role was to support the state rather than substitute the role of the state.

The issue of internally displaced persons was a complex one because national sovereignty came to the fore. The sovereign character of the state remained, but there was room for intervention from others. To date, seven countries had ratified the Convention for Internally Displaced Persons. Seven other countries had agreed to the convention, but not yet signed. To be ratified, the convention needed 15 members to sign the document; South Africa could be the 15^th. On the issue of returnees and peoples who felt persecuted, the Organisation for African Unity (OAU) convention was applied to the continent.

The 2010 global trends revealed that there were:
▪ 9.9 million refugees worldwide and 2.3 million in Africa,
▪ 837, 478 asylum seekers worldwide and 329, 608 in Africa,
▪ 3.4 million stateless people worldwide and 21 119 in Africa,
▪ 14.6 million internally displaced person worldwide and 6.2 million in Africa
▪ 197 626 returnees worldwide and 43 466 in Africa.

The figures for stateless people were low because of ignorance on the issue, difficulty to collect reliable data and states were uncooperative. The internally displaced persons issue revealed that there was a crisis, where more people were displaced within their own territories, than across international borders. The numbers for returnees were also low. The region with the highest number of refugees worldwide was Asia, partly due to the Afghanistan conflict. Africa was the second highest. Latin America had done quite well; during the1970s it had lots of problems with refugees, but had significantly improved in terms of rule of law. European figures needed more investigation, due to resettled peoples as a result of the Balkans crisis. South Africa was fortunate have only 7% of refugees, the bulk of whom arrived from the problem areas in the Great Lakes region, DR Congo and the Horn of Africa.

South Africa had the highest number of applications submitted to a receiving country with 180 000, but not the highest number of refugees and asylums seekers. Unlike other African countries, South Africa reviewed each application on a case-by-case basis. The application figure was artificially high because 140 000 of those applications were from Zimbabweans who may not necessarily meet the qualification for refugee status. Many Zimbabweans did not have the intention to apply for refugee status, but had no other documentation and chose the refugee route. In 2008 the Home Affairs Minister decided to issue a stay of deportation for the many Zimbabweans living in South Africa. This comprised of a three-month visa, with the right to work and the granting of a special permit under the Immigration Act. The Department explored granting rights of permanent residency to persons or groups of person who warranted the special permit under the Immigration Act. However, this action did not happen and the Department of Home Affairs started giving asylum seeker permits instead. This made the overall figure extremely high. South Africa needed to revisit the issue of large numbers of asylum applications, this could mean issuing temporary permits rather than pushing people into the asylum system.

The main legal framework instruments concerning refugees were the 1951 Geneva Convention relating to the Status of Refugees, the 1967 Protocol relating to the Status of Refugees, the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. The main legal framework instruments concerning stateless people were the 1954 Convention on the Status of Stateless Persons and the 1961 convention on the Reduction of Statelessness. The main legal framework instrument concerning IDPs was the 2009 AU Convention for the Protection and Assistance of Internally Displaced Persons. The main legal framework instruments concerning returnees were the 1969 OAU Convention (Article V), domestic legislation and tri-partite agreements. In South Africa, the Constitution, the Refugee Act and its two amendments, legal cases and civil society played an important role to test where the rule of law was respected. There were two court cases in 2004 where the Supreme Court of Appeal recognised the right of asylum seekers to work and study. Refugees were already covered by the Act. The role of the court system was important and useful.

UNHCR viewed that Southern Africa was a progressive regime that adhered to international safeguards. However there were challenges with implementation. The huge numbers in the asylum system revealed that the system was defective and did not meet the needs of all refugees. There was acknowledgement that reform of the asylum system was necessary. The challenge was the mixed migration phenomenon – to identfy who was a refugee and who was a migrant. There was a need for proper data, a need to establish reception centres and refugees determination systems. There was acknowledgement that not everyone deserved refugee status - these people were considered migrants. The responsibility falls on the state to make a determination on classification. The challenges were access to territory. Should South Africa screen at the border? Also there were issues of return to safe third country or to a first country of asylum. Reception arrangements and reception centres at the borders presented a challenge. It was important not to violate the rights of peoples and to respect the dignity of people. The right of asylum seekers to work and study was an important right that needed to be respected.

The estimated numbers of refugees in South Africa was 57 899 and171 702 asylum seekers. Mr Kimbimbi appealed to the Committee to pressure the Department to provide more statistics in a timely matter. UNHCR in South Africa worked with civil society, advocacy. Having a receptive government was important. UNHCR provided lots of training to government officials in 2009, provided less in 2010 and 2011 because the Department of Home Affairs was establishing its own training academy. 2008 taught South Africa lessons on how to work with disaster management at national and provincial levels. UNHCR provided emergency assistance and legal advice to vulnerable people and refugees. UNHCR had contributed R6.1 million to the Cape Town Refugee Centre.

The durable solutions to challenges with refugees included voluntary repatriation. South Africa was not successful in returning people. Very few refugees returned home, but rather wanted to change status to permanent residents. UNHCR encouraged repatriation in South Africa. By in large, refugees in South Africa managed local integration, and benefited from child grants and social relief grants. Regarding resettlement to a third country, UNHCR would pursue this when it felt that the person’s safety was in question. UNHCR had resettled 516 people in two years. The majority of these cases involved Somalis. The resettled persons needed to be accepted by the third country. This was not a solution for the majority of people.

Mr Kimbimbi closed the presentation by addressing xenophobia, which was a serious problem. Xenophobia in South Africa was not as dramatic as 2008, however there were many incidents of xenophobic attacks. Police had been more active in addressing these issues, but it required greater involvement in terms of coordination. There needed to be a central body that derived the effort to address the issue. Xenophobia was not just a South African issue, but also a worldwide one.

Discussion
Ms P Petersen-Maduna (ANC) asked how the executive committee monitored?  What contingency plan did UNHCR have for a mass influx of refugees?

Ms A Lovemore (DA) thanked Mr Kimbimbi for his presentation and asked whether the National action plan was good in terms of the politics? Ms Lovemore stated that there was a report that found South Africans to be the most xenophobic people in the world and stated that municipalities needed to have social cohesion. However municipalities did not keep all the records of refugees in their respective municipalities; was this something that concerned UNHCR or were they only working at a national level. The influx of 1 000 Somalis a week in the Western Cape was not sustainable. Ms Lovemore asked about events disturbing public order and whether victims of famine counted as refugees or were they economic migrants? Would the new legislation, the Refugee Amendment Bill, not reverse the gains being made? It was disturbing to hear that UNHCR provided less training to government officials than in the past. What training was UNHCR doing and what concerns where there?

Mr M Mnqasela (DA) stated that more needed to be done as far as interaction with the Convention. There was very little understanding of what South Africa had ratified. What was UNHCR doing to increase public awareness of xenophobia? What was the intention of resettling a refugee to a third country? What was impact of the North African situation on refugees to South Africa.

Mr G McIntosh (COPE) stated that it seemed that the UNHCR in South Africa was a ‘government within the government’ Was UNHCR equipped with modern technology to fingerprint refugees and keep records? If so would UNHCR make this information available? Did UNHCR survey refugees as refugees might trust UNHCR more than the government? South Africa carried huge financial costs in terms of health care, maternity care and education of refugees. There were huge numbers of Kenyans in South African schools. Did UNHCR feel that it was domestic interference to fund advocacy groups? Why was it necessary for you to fund them?

Mr Kimbimbi responded that the Executive Committee worked under the aegis of ECOSOC, which was made up of 85 member states. The Executive Committee was an independent body made up of states that adhered to the basic principles of international law. It was important that the functions were carried out.

In response to a mass influx contingency plan, UNHCR made a decision to establish a contingency plan on Zimbabwean refugees. South Africa and Mozambique were reluctant, but Zambia and Botswana were not. The South African Government made a political decision and there was not much cooperation. When the violence in 2008 increased, the Department began to mobilise its resources, however today there was no contingency plan in place. UNHCR had some ideas, but it could only go so far without Government cooperation. Arrangements, documents and mode of assistance given were discussions that could not take place without Government involvement. Regarding a mass influx of refugees, the Disaster Management Act would be the legal basis on which decisions would be taken. The UN system would kick in, but government would take the lead.

UNHCR was not a migration institution and not on the front lines of migration. UNHCR’s mandate dealt with forced displacement rather than voluntary migration. Nevertheless, UNHCR wanted more rights for migrants because increased migrant rights decreased the likelihood of those migrants entering the asylum system.

On the question of xenophobia, Mr Kimbimbi answered that he was not aware of the inter-ministerial plan. But the Minister had been very cooperative. UNHCR do not endorse the report that ‘South Africans were the most xenophobic in the world’, thus had no comment on that question.

In response to the question on social cohesion at the municipality level, there were huge campaigns in the late 1990s spearheaded by the South African Human Rights Commission, which used its limited means. There were standards, but not enough as strong action needed to be led by governments.
 
Regarding the 1 000 Somalis a week who enter the Western Cape, many reached South Africa in transit through Kenya and Tanzania. That said, given the current crisis in Somalia, their status as refugees could not be questioned. Kenya had an encampment policy, but did not have the capacity to deal with the demand of Somali refugees.

The question of mixed migration was one to be dealt with. The issues at hand were the rights of the refugees and migrants as well as the interests of the state and interests of the individual. It was often difficult to classify them. The African Union’s Kampala Convention did not make a distinction between natural disasters and man-made disasters. It was necessary to dig deeper.

On the question of training, the reality was simply that there was less training. UNHCR could not impose itself on the State. Training was important and often a difficult and complex exercise. UNHCR was prepared to support.

Mr Kimbimbi agreed that there was a need for more awareness surrounding xenophobia, and he appealed to the Committee to help with this. UNHCR had initiatives, but these were not substantive because ideally action needed to come from a higher level and have more involvement at the national and provincial levels.

The reason why UNHCR would move a refugee to a third country, would be if UNHCR concluded that it was untenable to keep the refugee in a given country. There had been examples of Somalis who were attacked multiple times. Relocation to a third country would primarily be for humanitarian and security reasons. UNHCR would not be passing a judgement, but rather focusing on the individual. Sometimes people were resettled for medical reasons. Few people benefit from this targeted measure. The question arose during the 2008 xenophobic attacks of whether peoples who were attacked should be resettled. How would UNHCR and South Africa be perceived? An organization like UNHCR needed to maintain a balance and not open a door for criticism of government. At the end of the day UNHCR’s mandate was to support the individual.

UNHCR had been very active in North Africa as a humanitarian organization. He responded that South Africa would feel no impact from the situation in North Africa. Unless Mr Mnqasela was referring to ’prominent  peoples’. He asked Mr Mnqasela what he thought.

Mr Mnqasela responded that the issue was one of preparedness.

Mr Kimbimbi responded that there were many economic migrants in Libya from other countries, and it came down to a question of migrants versus refugees. So far South Africa had not seen any increase of peoples coming from Libya. Given the proximity to the region, the crisis had more of an impact on Sudan and the Gulf States.

Mr Kimbimbi disagreed with the assertion that UNHCR was a ‘little government within the government.’  Government played the driving role and UNHCR’s role was to support the Government. UNHCR did not have the means of the Government, especially for a country the size of South Africa.

UNHCR did not keep records and refugees did not come directly to UNHCR, but rather directly to the Department of Home Affairs. UNHCR did not maintain a database of refugees in South Africa.

UNHCR funded advocacy groups because they advocated the rights of refugees and displaced peoples. Nelson Mandela University was directly funded because UNHCR did not have a presence in Port Elizabeth and there were a number issues involving Somalis. This advocacy was not out of the blue, these groups advocated rights and at the end of the day, all the actors were working towards one goal.

The Chairperson stated that the broad definition of a refugee was troubling. People who committed crimes were disguising themselves as refugees and asking for asylum. On the issue of Zimbabwe, what did statelessness refer to?

Ms Lovemore stated that political parties were not voted in by refugees, but it was important for governments to speak on the rights of the refugee. What was the UNHCR message to government in terms of outreach? What was it that made South Africa attractive as an asylum destination? The 1951 Convention was drawn up after World War Two, was there any idea of debating and withdrawing this convention?

Mr Kimbimbi responded that criminals fleeing prosecution, not persecution, was a concern. Criminals were excluded from refugee status because the point was to protect victims.

A stateless person was an individual who was unable to provide proof of citizenship, for example when the Soviet Union broke up, many people could not prove citizenship and they were at risk of statelessness. In South Africa’s case, Zimbabwe posed a problem. After the 1981 Zimbabwean constitution provided that people born in Zimbabwe were Zimbabwe nationals, there were some legal changes in 1983, and the country lacked the capacity to issue birth certificates. This resulted in a problem with documentation.

UNHCR’s message was not for the government, but rather a message of tolerance for the people. It was not unheard of for government to support refugees, but this was not always a popular issue. This should not deter us from advocating for the human approach. People were misinformed and it was the role of government to highlight positive contributions of refugees. This took courage and integrity.

UNHCR resisted revisiting the 1951 convention because if it was revisited, it would lead to a lowering of the standards. UNHCR would not support that, as it would make the regime more restrictive.

The Chairperson thanked Mr Kimbimbi for his presentation.

The meeting was adjourned.