Tutumike Submission to the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions

Tutumike, a network of refugee service providers in the Western Cape, thanks the Committee for the opportunity to make a submission in respect of the review of the South African Human Rights Commission (SAHRC). Referring to the terms of reference for the Committee (dated 21 September 2006), we submit the following:

1:Suitability of Constitutional and legal mandates for the South African environment:
Noting the mandate of the SAHRC, as detailed in Human Rights Commission Act 54 of 1994, we submit that the contemporary South African environment demands robust engagement of an institution such as the SAHRC to assist with the protection of the rights of our client groups, namely refugees and asylum seekers.

More specifically, those functions, powers and duties vested in the SAHRC that have to do with the observation, respect, protection and promotion of fundamental rights are crucial resources in the furtherance of the rights of refugees and asylum seekers in South Africa. These include:

- the conduct of information programs and development of public awareness

- recommendations to organs of state

- the study of contemporary conditions and the publication of reports thereon

- the investigation of violations and assistance of persons thereby adversely affected, whether through mediation, conciliation and negotiation or through the instigation of legal proceedings
- liaison with similar institutions, bodies and authorities to encourage common policies and practices and to enhance co-operation

We note in particular the enormous value of the following reports:

- Xenophobia Hearings Report (2004)

- Undocumented Migrants - 2nd Lindela Report (2000)

- Undocumented Migrants Report - ISI Lindela Report (1999)

As the SAHRC itself has pointed out, it is in the national interest to ensure the maintenance of the integrity of the South African asylum system and, indeed, the integrity of the South African regime of refugee and asylum seeker rights.

However, we do not limit the value of the SAHRC's contribution to refugees' and asylum seekers' rights to those enquiries and reports that deal directly with their rights

and the abuses thereof. Refugees and asylum seekers, as non-citizens and frequent targets of

xenophobia, are often the recipients of the most extreme abuses in institutional contexts where the abuse of individual rights also affects South African nationals. Thus, the SAHRC's enquiries into the operation of a range of institutions, such as prisons, education, and the media; and into the practices of racism, hate crimes and hate speech are important contributions to improvements in the well-being of refugees and asylum seekers.

2:Outputs and contribution to democracy:
We further submit that the contributions and outputs mentioned above, amongst others, make a vital contribution to democracy. It is essential for our Constitutional democracy that the rights and obligations of refugees and asylum seekers, as underwritten in the Bill of Rights and the Refugees Act 131 of 1998, are ac1mowledged, respected and implemented. On the one hand, this is important for the well-being of refugees and asylum seekers themselves. But it is equally important for the well-being of South African citizens. The socio-economic integration of refugees and asylum seekers, promoted by the recognition of their rights, is important for peaceful and co-operative communities who stand to benefit from mutual recognition and skills-sharing.

In addition, we applaud submissions made by the SAHRC to Parliament as a valuable contribution to democracy. Recent submissions that are of relevance to our clients are those in respect of:

- Trafficking in Persons (July 2006)

- Violence (2006)
- Regulation on School Fees (2005)

- Children's Bill (2004)
- Social Development (2004)

3:Rationalisation of function, role or organisation
We further wish to submit, in the strongest terms possible, that it would be detrimental to the nascent South African human rights culture if the SAHRC were to be rationalised in such a manner as to reduce its focus on refugee and asylum seeker rights. In this regard, it is relevant to note that the refugee rights and advocacy sector is very thinly served in South Africa at this time.

We are dealing, particularly in the Western Cape, with a series of community conflicts where socio-economic frustration is channeled into xenophobic attacks against foreigners. In many instances we have found that alarming ignorance of refugee rights has allowed exclusionary and abusive practices to persist. There is much work to be done so that members of the public and, more importantly in this instance, government officials (at all levels) understand their obligations in respect of refugees and asylum seekers.

4:Co-ordination and co-operation of the SAHRC with government and civil society
We submit that our experience of the SAHRC's co-operation and co-ordination with government and civil society has made a positive contribution to the advance of the human rights of refugees and asylum seekers. We note, for example, the SAHRC's interaction with the Department of Education with regard to the exclusion of asylum seeker children from schools. We note also a fruitful co-operation between the SAHRC and other organisations such as Lawyers for Human Rights and The National Consortium for Refugee Affairs. We further note the active participation of the SAHRC in attempting to find a solution to the recent crisis affecting the Western Cape's Somali refugee community.

5:Imposition of more structured oversight role by Parliament:
Finally, we submit that the mandate of the SAHRC to serve impartially and independently would not be enhanced by a more structured oversight role by Parliament. As noted, there is widespread ignorance at the institutional level of the scope of refugee and asylum seeker rights. Unfortunately, in some instances, there is a marked lack of political will to ensure that we in South Africa uphold the rights of refugees and asylum seekers. Refugees and asylum seekers are not enfranchised and, in this respect, represent perhaps the most marginalised and vulnerable group in the country. They have an extremely weak relationship with Parliament. It is thus, in our view, of vital importance that an institution such as the SAHRC, one of the principal institutions for the protection of their rights, remains as independent from direct parliamentary oversight as reasonably possible.