Observing refugee and asylum processing centres through a constitutional lens

June 1st, 2020
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The process for the regulation of refugee and asylum seekers must adhere to several international and constitutional rights and obligations. Consequently, the detention and processing centres for refugees and asylum seekers, as per the White Paper on International Migration for South Africa adopted by the Department of Home Affairs in 2017 and proposed to be implemented by 2030, must be a matter of last resort. Any mechanisms, which utilise detention centres must be determinable by law and offer legal certainty that is challengeable through law, as stated by guidelines 2 and 3 of the United Nations High Commissioner for Refugees Detention Guidelines (UN Guidelines).

The underlying provision of concern is s 10 of the Constitution, which deals with human dignity. Nugent J in Minister of Home Affairs and Others v Watchenuka and Another [2004] 1 All SA 21 (SCA) at para 25 stated that ‘[h]uman dignity has no nationality. It is inherent in all people – citizens and non-citizens alike – simply because they are human’. Such dignity entitled people within the country to work, be respected and protected by the Bill of Rights.

South Africa’s (SA’s) state obligations relating to refugees and asylum seekers

The majority judgment written by Madlanga J in Saidi and Others v Minister of Home Affairs and Others 2018 (4) SA 333 (CC) at para 28 held that the state’s obligations relating to refugees and asylum seekers are mediated by the Bill of Rights, and the Refugees Act 130 of 1998, interpreted in line with international obligations. Section 39 of the Constitution prescribes that in order to give content to refugees’ rights, states obligations to international law and foreign law may be used. This is further supported by the s 7 constitutional obligation for the state to protect, promote, respect and fulfil the rights in the Bill of Rights.

Mechanisms for the regulation of refugees and asylum seekers are regulated by several fundamental rights. According to guideline 1 of the UN Guidelines refugees enjoy the right to, ‘seek and enjoy in other countries asylum from persecution, serious human rights violations and other serious harm’. Additionally, the fundamental rights to liberty and security of the person are central animating rights in the consideration of processing mechanisms. Guideline 2 of the UN Guidelines has determined that these rights taken together ‘mean that the detention of asylum-seekers should be a measure of last resort.’

Further, the detention of refugees and asylum seekers must be in accordance with the law with clear legal processes characterised by defined and determinable periods of detention (UN Guidelines 3). Thus the legal provisions must meet the requirements of legal certainty by including explicit grounds of detention (UN Guidelines 4), clear limits on maximum periods of detention (UN Guidelines 6) and include access to effective remedies to contest detention and the ability to call into question the legal validity of any detention (UN Guidelines 7).

Taken together these rights provide that the detention of refugees and asylum seekers must be a matter of last resort. Thus the proposed system of detention centres has the potential of violating the international constitutional rights to liberty and security of the person, as well as equal access to the law and the right to dignity.

The Belgium experience of detention centres

Author Giusto Catania in his article entitled ‘The living conditions in detention centres’ (www.gettingthevoiceout.org, accessed 19-5-2020) writes that in Belgium, centres are akin to prisons. Former ‘detainees’ note that the doors are metal and you have to talk to the guards through a metal door.

Communication with the outside world is only possible by doing chores to buy telephone cards, cigarettes, etcetera. Detainees may only get personal phone calls from their legal practitioner. The detainees may have a cell phone provided that it does not have a camera.

Detainees do not have freedom of movement. In several facilities all rooms require a key for opening, detainees are forced to live in groups with a strict timetable from wake-up time to bed-time. Their freedom of movement is severally restricted including their access to fresh air.

The Australian experience

The Australian experience shows similar infringements, including indignity and physical violations of the person. Author Victoria Craw in her article titled ‘Immigration detention centres: What life is really like inside and how it impacts mental health’ published in 2014  (www.news.com.au, accessed 19-5-2020) makes reference to Iran refugee, Mohsen Soltany Zand, who spent four years in the immigration detention before getting refugee status. Mr Soltany Zand stated ‘people have more respect for criminals in this country than those seeking asylum’. Mr Soltany Zand further stated that the detention centre left him like a ‘dead zombie’ plagued with anxiety and nightmares. He recalled being woken up at midnight and being forced to recite his identity number.

University of New South Wales School of Psychiatry, St John of God Professorial Chair of Trauma and Mental Health, Professor Zachary Steel, works with asylum seekers and believes detention centres induce a progressive terror in people’s mental state.

Children are in no better position. Everyone lives side by side and children have nowhere to learn how to crawl or walk. Mothers experience post-partum depression (with no medical or psychological treatment) and suffer from health problems related to childbirth and the unhygienic conditions in the camps. The mother-child bond is then disrupted and has grave consequences for the child’s mental health.

In Nauru, Australia, detainees allege that female asylum seekers are forced to strip naked in exchange for showers. Access to justice is not a reality for these detainees, there is no redress for injustices.

Conclusion

From the above, it is clear that immigration detention centres are inappropriate as mechanisms for regulating the refugee and asylum seeker process as they violate several rights both at the international and national levels.

Further, foreign law comparisons indicate that the centres are a forcibly militarised way of living where trauma, cruel and inhuman treatment is rife. Human dignity is both a right and a core value animating from our constitutional dispensation. Thus all measures in relation to refugees and asylum seekers must be cognisant of not only the international obligations, which SA has undertaken, but also the constitutional obligation to protect, promote and respect the rights in the Bill of Rights.

Anda Jojo LLB (UFH) is a candidate legal practitioner at Bate Chubb & Dickson Inc in East London.

This article was first published in De Rebus in 2020 (June) DR 35.

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