To HE Dr. Nkosazana Dlamini Zuma
Chairperson of the African Union
Dear Madam,
Open letter to
the African Union on the resurgence of xenophobic violence in South Africa
presented on
the occasion of the AU Summit in Sandton, Johannesburg, June 2015
We, the undersigned organisations, write to you as
concerned organisations and citizens of the African continent to raise concern
about the xenophobic attacks in the Republic of South Africa which have
recently taken place against migrants and refugees predominantly from other
African countries. We approach you as the body responsible for promoting unity
and solidarity among African states. We also call on you as the body responsible
for the promotion of peace, security and stability in Africa.
The objectives of the AU are inter alia:-
·
To
achieve greater unity and solidarity between the African countries and the
peoples of Africa;
·
To
encourage international cooperation, taking due account of the Charter of the
United Nations and the Universal Declaration of Human Rights;
·
To
promote peace, security, and stability on the continent;
·
To
promote democratic principles and institutions, popular participation and good
governance;
·
To
promote and protect human and peoples' rights in accordance with the African
Charter on Human and Peoples' Rights and other relevant human rights
instruments.
Between 2000 and March 2008, at least 67 people died in what were
identified as xenophobic attacks in South Africa. In May 2008, a series of rapid
large-scale attacks left 62 people dead and over 600 injured. Twenty-one of
those killed were South African citizens, apparently because they were
perceived as foreigners. The attacks were apparently motivated by xenophobia, [i] and have
continued to occur every year since 2009.
And more recently in 2015, another nationwide spike in xenophobic
attacks against migrants and refugees occurred in January and again in April.
The latter attacks which began in KwaZulu-Natal Province prompted a number of
foreign governments to repatriate their citizens. The April 2015 attacks
resulted in at least seven verified deaths, but the number is understood to be
higher, and at least 5,000 migrants and refugees displaced.
We urge the AU to call upon the South African
government to take concrete steps to end these attacks, prosecute perpetrators
and protect migrants and refugees living in their territory from violations of
their human rights, including the right to life. As organisations operating on
the African continent, we are particularly concerned about the loss of lives,
injuries to persons, damage to private property and the infringement of dignity
of migrants and refugees living in South Africa, which are a grave violation of
their rights protected under the African Charter on Human and Peoples’ Rights
(the African Charter). The right to life, not to be subjected to torture,
cruel, inhuman and degrading treatment, and the right to strict equality before
the law are non-derogable rights – not dependent on a person’s status in a
country.
South African President Jacob Zuma during a Freedom
Day event in April made a statement that Mozambican national Emmanuel Sithole
(aka Emmanuel Josias) who was brutally killed during these attacks was an
illegal immigrant using a false name.[ii] The immigration status of foreign nationals
who are victims of the attacks in South Africa is irrelevant. South Africa has
an obligation to protect all persons within its borders.
We are concerned in particular about the situation of
asylum seekers and refugees who should receive special protection but who are
in a vulnerable and desperate situation following these tensions.
We are further concerned by comments made by persons
in positions of authority and influence which may amount to incitement to
violence and the role that these persons play in perpetuating xenophobia and
intolerance. While some official statements have been made to condemn the
violence, we are concerned that not enough concrete steps are being taken to
prevent such attacks, prosecute perpetrators, protect migrants and refugees and
prevent the mass coerced exodus of foreign nationals from the country. We call
on the AU to ensure that South Africa holds leaders and persons in authority
accountable for their role in inciting violence and intolerance, or for the
systematic failure since 2008 to implement effective prevention and protection
plans for migrants and refugees at risk of attack, property destruction and
displacement.
We note statements of several governments, including
the South African government, to provide assistance for individuals leaving the
country. While those who wish to leave should be assisted to do so, the
solution to the violence should not be to repatriate all foreign nationals, but
to ensure an environment in the country in which their rights are protected.
Furthermore, the acts of those carrying out attacks against foreign nationals should
not be rewarded by assisting them to achieve their objective of ridding South
Africa of foreign nationals.
Following the xenophobic attacks in April there have
been nationwide police raids, with military presence on the streets, apparently
intended to combat crime, but predominately involve arresting and deporting
migrants alleged to be illegally present in the country. We call on the AU to
alert South Africa to the unlawfulness of these actions. According to the
Department of Home Affairs, 2767 foreign nationals have been repatriated since
the April attacks began.[iii]
This includes some 913 Malawians, 637 Mozambicans, 17 Tanzanians and 1098
Zimbabweans. There were also reports that an estimated 400 men and women from
Lesotho were deported. These repatriations and deportations are ongoing. We are
concerned about the mass raids, rounding up of foreigners and ongoing
deportations which do not appear to adhere to any procedural safeguards[iv] such
as investigations into immigration status; access to legal representation;
ability to make representations to a court and steps taken to ensure that no
refugees and asylum-seekers, to whom a duty of international protection
applies, are not subjected to forcible returns. In this regard, we remind all
States of the provisions of Article 12 of the African Charter which prohibits
the mass expulsion of foreign nationals.
We are also concerned by the heavy handed approach adopted by the South
African authorities in carrying out raids and mass arrests with a view to
deporting foreign nationals as a response to xenophobia. This was most recently
highlighted in “Operation Fiela”
which took place in Johannesburg during May. Despite Cabinet’s statements to
the contrary this operation has targeted foreigners at a higher rate than
citizens.
We refer the AU to the African Commission’s statement
in its decision on mass expulsions from Angola[v] which
continue to be highly relevant to the current situation in South Africa:
“The Commission concedes that African States
in general … are faced with many challenges, mainly economic. In the face of
such difficulties, States often resort to radical measures aimed at protecting
their nationals and their economies from non‑nationals. Whatever the
circumstances may be, however, such measures should not be taken at the
detriment of the enjoyment of human rights. Mass expulsions of any category of
persons, whether on the basis of nationality, religion, ethnic, racial or other
considerations "constitute a special violation of human rights". This
type of deportations calls into question a whole series of rights recognised
and guaranteed in the Charter; such as the right to property (article 14), the
right to work (article 15), the right to education (article 17 paragraph 1) and
results in the violation by the State of its obligations under article 18
paragraph 1 which stipulates that "the family shall be the natural unit
and basis of society. It shall be protected by the State which shall take care
of its physical and moral health". By deporting the victims, thus
separating some of them from their families, the Defendant State has violated
and violates the letter of this text…
The Commission does not wish to call into
question nor is it calling into question the right of any State to take legal
action against illegal immigrants and deport them to their countries of origin,
if the competent courts so decide. It is however of the view that it is
unacceptable to deport individuals without giving them the possibility to plead
their case before the competent national courts as this is contrary to the
spirit and letter of the Charter and international law.[vi]
In a
later case, the African Commission stressed the importance of due process and
access to legal representation which are, in the current scenario, also of
significant importance:
“Time and again, in communication 71/1992, Recontre Africaine pour la Défense des Droits de
l’Homme v Zambia [(2000)
AHRLR 321 (ACHPR 1996)], the African Commission held that the mass expulsions,
particularly following arrest and subsequent detentions, deny victims the
opportunity to establish the legality of these actions in the courts. In the
present case, there is no indication as to whether the deportees were accorded
the opportunity to contact their families, much less attorneys, thereby making
the requirement of exhausting local remedies impracticable.”[vii]
It further stated:
“The African Commission is
of the view that the actions of the respondent state as shown in the preceding
paragraphs not only denied fair treatment of the victims with opportunity to
challenge their deportation but also failed to allow them opportunity to deal
with their belongings. The complainant argues and the African Commission
concurs that the type of deportations involved in the present case (ie mass
expulsions without due process) challenge a series of rights and protections
afforded by the Charter, including the right to property, and, as such, the
measures taken by the respondent state in its arrest, detention and subsequent
deportation of the victims ‘called into question a whole series of rights
recognized and guaranteed in the Charter’, including the right to property.
While the right to property under the African Charter is not absolute, the
respondent state has not provided evidence to prove that its actions were
necessitated either by public need or community interest. Without such a
justification and the provision of adequate compensation determined by an
impartial tribunal of competent jurisdiction, the African Commission finds the
respondent state’s actions in violation of the right to property under article
14 of the African Charter.”[viii]
We further draw the AU’s attention to the resolution of
the African Commission in April 2015 condemning the xenophobic attacks in South
Africa[ix] and
request the African Union to call upon the government of South Africa to:
i.
Protect migrants, refugees and other vulnerable foreign
nationals from further attacks, including by increasing impartial and effective
police presence in high-risk areas and immediately implementing conflict
resolution initiatives in these areas involving the Department of Home Affairs;
ii.
Provide humanitarian and other social assistance to those
affected by the xenophobic attacks in the country, including counselling for
trauma and access to information on services and on durable solutions for refugees and
asylum-seekers;
iii.
Bring perpetrators of violence against foreign
nationals to justice. To facilitate such prosecutions the Department of Justice
should set up special courts, as was done during the 2010 World Cup in South
Africa, to deal with all cases of violence against foreign nationals in a bid
to ease the burden on the courts. Information on accessing these courts should
be widely disseminated;
iv.
Investigate and bring to justice the instigators
behind the perpetration of the violence;
v.
Condemn unequivocally comments by persons in positions
of authority and influence which may amount to incitement to violence;
vi.
Effectively engage the broadest possible South African
public, in order to curb and eradicate xenophobia and xenophobic violence.
These messages should be repeated, constantly re-iterated and not only heard
after crises moments. They should be accessible, in local languages, should be
expressed directly to communities, and should involve local leaders;
vii.
Advise and assist all those who have been victims of
violence to seek redress;
viii.
Assist refugees and asylum seekers who have lost their
permits to have these re-issued and put in place concrete plans for their
reintegration into communities.
As stated above, in 2008, the xenophobic attacks left
at least 62 dead, hundreds wounded, and contributed to the displacement of
100,000 people or more. Following those attacks the South African Human Rights
Commission (SAHRC) prepared a report with their findings and recommendations[x].
We call on the AU to remind the South African government of this report and
call upon the government and the SAHRC to immediately take steps to implement
the recommendations found therein.
In addition, we request you to call upon governments
of other countries to ensure steps are taken to prevent reprisals against South
African nationals in their territories.
Signed by the following organisations:
1.
Southern Africa Litigation Centre
2.
Amnesty International
3.
Lawyers for Human Rights - South Africa
4.
Sonke Gender Justice – South Africa
5.
Centre for the Study of Violence and Reconciliation
(CSVR) – South Africa
6.
Human Rights Institute of South Africa (HURISA)
7. International Federation
for Human Rights (FIDH)
8. Open Society Initiative for Southern Africa (OSISA)
9. Open Society Foundation for South Africa ( OSF-SA)
10. Oxfam, South Africa
11. Youth Engage - Zimbabwe
12.
Centre for Youth and Children Affairs (CEYCA) - Malawi
13.
Panos Institute Southern Africa (Psaf)
14.
Aids Foundation of South Africa (AFSA)
15.
The Scalabrini Centre Of Cape Town – South Africa
16.
Positive-Generation - Cameroon
17.
Treatment
Access Watch Africa
18.
Coalition 15% -
Cameroon
19.
Cameroon
Movement For UHC - Cameroon
20.
Cameroun TB
Group - Cameroon
21.
MOCPAT -
Cameroon
22.
Centre for Youth Empowerment and Civic Education
(CYECE) – Malawi
23.
Khulumani Support Group – South Africa
24.
Women and Law in Southern Africa-WLSA MOZAMBIQUE
25.
Centre for Girls and Interaction (CEGI) – Malawi
26.
Gay and Lesbian Memory in Action (GALA) – South Africa
27.
Missão de Beneficência Agropecuária do Kubango,
Inclusão, Tecnologias e Ambiente (MBAKITA) – Angola
28.
Media Institute of Southern Africa (MISA)
29.
United Action for Democracy, Kano – Nigeria
30.
Zimbabwe Association for Crime Prevention and
Rehabilitation of the Offender (ZACRO)
31.
Media Rights Agenda (MRA) – Nigeria
32.
Association of Human Rights Organizations (AHURIO) -
Uganda
33.
Socio-Economic Rights and Accountability Project
(SERAP) – Nigeria
34.
Service For Peace - Sierra Leone
35.
MenEngage Network – Tanzania
36.
MenEngage -
Namibia
37.
Consortium for Refugees and Migrants in South Africa
(CoRMSA) – South Africa
38.
Development Dynamics – Nigeria
39.
Ndifuna Ukwazi – South Africa
40.
Women’s Legal Centre – South Africa
41.
Zimbabwe Lawyers for Human Rights
42.
Initiative for Rural Development – Uganda (IRD - U)
43.
Sisonke Sex Worker Movement – South Africa
44.
The Wentworth Arts and Culture Organisation – South
Africa
45.
Men’s Association for Gender Equality (MAGE SL) -
Sierra Leone.
46.
Congo Men's Network (COMEN) - DRC
47.
The khuphuka Project – South Africa
48.
International Refugee Rights Initiative (IRRI)
49.
Thohoyandou Victim Empowerment Programme (TVEP) –
South Africa
50.
Empowered at Dusk Women's Association (EADWA) – Uganda
51.
Positive Men's Union (POMU) – Uganda
52.
State of the Union Coalition
53.
Men and Boys for Gender Equality (MBGE) – Botswana
54.
Collectif Sénégalais des Africaines pour la Promotion
de L'Education relative à l'Environnement (COSAPERE) – Senegal
55.
Centre for Human Rights and Rehabilitation (CHRR) –
Malawi
56.
Malawi Network of Religious Leaders Living with or
Personally Affected by HIV and AIDS (MANERELA+) - Malawi
57.
Maphunziro Foundation (MAF) - Malawi
58.
Women Environmental Programme (WEP) - Nigeria
59.
Charles and Doosurgh Abaagu Foundation (C&DAF) -
Nigeria
60.
Community Emergency Response Initiative (CERI) –
Nigeria
61.
Lawyers for Human Rights (Swaziland)
62.
Transbantu Association Zambia (TBZ) – Zambia
63.
Zambia National Women's Lobby (ZNWL)
64.
Boys Empowerment International - Zambia
65.
Bus and Taxi Association of Zambia
66.
Community Support for the Needy - Zambia
67.
Office of the Grand Mufti - Zambia
68.
Olympic Youth Development Centre (OYDC) - Zambia
69.
Planned Parenthood Association of Zambia (PPAZ)
70.
Volunteers Welfare for Community Based Care of
Zambia (VOWAZA)
71.
Young Women Christian Association (YWCA) - Zambia
72.
Young Women in Action - Zambia
73.
Kenya MenEngage Alliance (KEMEA)
74.
Uganda MenEngage Network (UgaMen)
75.
FEMNET - African Women's Development and
Communications Network
76.
Omunga – Angola
77.
Treatment Action Campaign (TAC) – South Africa
78.
International Commission of Jurists, Kenya (ICJ-Kenya)
79.
Africa Legal Aid (AFLA)
80.
Trust for Indigenous Culture and Health (TICAH) –
Kenya
81.
Masimanyane Women’s Rights International
82.
People Opposing Women Abuse (POWA) – South Africa
83.
Africa International Development and The Environment
in XXI century (AIDE21)
84.
African Woman and Child Feature Service (AWC)
85.
Coalition for Action on 1325 – Uganda
86.
African Sky
87.
Malawi Human Rights Resource Centre (MHRRC)
88.
Forum for Women in Development, Democracy and Justice
(FODDAJ) - Kenya
89.
Corruption Watch – South Africa
90.
Centre for Human Rights, University of Pretoria (CHR)
- South Africa
91.
Women’s Coalition of Zimbabwe (WCoZ)
92.
Humanitarian Information Facilitation Centre (HIFC) -
Zimbabwe
93.
Echoes of Women in Africa Initiative (ECOWA) – Nigeria
94.
Young Women Christian Association (YWCA) - Nigeria
95.
Institute for Human Rights and Development in Africa
(IHRDA)
96.
Isis-Women’s International Cross Cultural Exchange
(Isis-WICCE) – Uganda
97.
Women and Youths Environmental Safety and Empowerment
Organisation (E-WAY for Development) - Nigeria
98.
Akina Mama wa Afrika
99.
solidarité des femmes pour le développement intégrale
(SOFEDI) - DRC
100. Treatment Advocacy and Literacy Campaign (TALC) - Zambia
101. Uganda Network of Young people living with HIV/AIDS (UNYPA)
102. Zimbabwe Human Rights NGO Forum
103. Communities’ Initiative for Holistic Social Advancement (CHISA) – Malawi
104. Action Locale pour un Développement Participatif et Autogéré (ALDEPA) –
Cameroon
105. Voice for Change (VFC) – Nigeria
106. Centre for Youth and Children's Affairs (CEYCA) – Malawi
107. Community Health And Information Network (CHAIN) – Uganda
108. First Lady's Save Our Youths Campaign – Nigeria
109. Coalition Ivoirienne pour la Cour Pénale Internationale (CI CPI) - Cote
d'Ivoire
110. Réseau Equitas Côte d'Ivoire (REQCI) - Cote d'Ivoire
111. Groupe de Travail sur les Instruments Internationaux (GT2I)
112. Temba Community Development Services- South Africa
113. Swaziland Action Group Against Abuse (SWAGAA)
114. International Community of women living with HIV Eastern Africa (ICWEA)
115. International Federation of Women Lawyers (FIDA) – Nigeria
116. Media Institute of Southern Africa – Botswana (MISA Botswana)
117. Media Institute of Southern Africa – Lesotho (MISA Lesotho)
118. Media Institute of Southern Africa - Malawi (MISA Malawi)
119. Media Institute of Southern Africa – Namibia (MISA Namibia)
120. Media Institute of Southern Africa – Zambia (MISA Zambia)
121. Media Institute of Southern Africa – Zimbabwe (MISA Zimbabwe)
122. Media Institute of Southern Africa – South Africa (MISA South Africa)
123. Associação Justiça Paz e Democracia (AJPD) – Angola
124. Kenya Human Rights Commission (KHRC)
125. Liga Moçambicana dos Direitos Humanos (LDH) – Mozambique
126. Pan African Positive Women's Coalition-Southern Africa and Indian Ocean
Islands (PAPWC-SAIOI)
127. Katswe Sistahood – Zimbabwe
128. Economic and Social Rights Centre, Nairobi – Kenya
129. Zimbabwe Women Lawyers Association (ZWLA)
130. Gay & Lesbian Network, Pietermaritzburg - South Africa
131. Love Life – South Africa
[i] See L.B. Landau (ed), 2011. Exorcising the Demons
Within: Xenophobia, Violence and Statecraft in Contemporary South Africa.
Johannesburg: Wits University Press; Tokyo: United Nations University Press.
[ii] This is repeated in the official communication dated 28 April of
the Inter-ministerial committee issued by Minister Jeff Radebe.
[iii] http://citizen.co.za/371626/close-to-3000-foreign-nationals-repatriated-after-xeno-attacks/ According to Chief Director of Immigration
Inspectorate, Modiri Matthews
[v] Union Inter Africaine des Droits de l’Homme,
Federation Internationale des Ligues des Droits de l’Homme and Others v.
Angola, African Commission on Human and Peoples' Rights, Comm. No. 159/96
(1997). Communication
292/2004, Institute for
Human Rights and Development in Africa v Republic of Angola
[vi] Union Inter Africaine des Droits de l’Homme,
Federation Internationale des Ligues des Droits de l’Homme and Others v.
Angola, African Commission on Human and Peoples' Rights, Comm. No. 159/96
(1997), paragraphs 16, 17 and 20
[vii] Institute for Human Rights and Development
in Africa v Angola (2008) AHRLR 43 (ACHPR 2008), paragraph 40
[viii] Ibid, paragraph 73
[ix] Resolution Condemning The Xenophobic Attacks In The Republic Of
South Africa - ACHPR/Res.304 (LVI) 2015
[x] Report on the SAHRC Investigation into Issues of
Rule of Law, Justice and Impunity arising out of the 2008 Public Violence
against Non-Nationals, http://www.sahrc.org.za/home/21/files/Reports/Non%20Nationals%20Attacks%20Report_1-50_2008.pdf
Sem comentários:
Enviar um comentário