A potentially devastating refugee crisis is emerging on the border between South Africa and Zimbabwe. Britain’s Sky News has broadcasted a disturbing exposé revealing that South African vigilantes have launched their own campaign to stop thousands of impoverished Zimbabweans crossing the border illegally into South Africa.

According to the report, the South African Government’s apparent failure to exercise and enforce strict border control has prompted a group of white farmers to patrol the borders. The men, who are using vehicles designed for game hunting to track down illegal immigrants from Zimbabwe, are being described as “the self declared enforcers of South Africa's immigration laws.”
This includes the tracking, cornering and ‘arrest’ of illegal immigrants, who are detained in make-shift plastic hand-cuffs by the farmers. The South African Police Service, accused by the farmers of doing little to stem the flood of illegal Zimbabweans, seem to have little choice but to co-operate with the operation. They collect the captives and take them to holding centres ready for deportation.

The South African Government, which has faced severe criticism for its failure to speak out against the gross human rights violations in Zimbabwe appears to have failed yet again in its obligations in terms of adopted international legislation governing the protection and treatment of refugees - all who have legitimate grounds for fleeing Zimbabwe, given the total collapse of virtually all essential services in the country and the clampdown against opponents of President Robert Mugabe’s regime.

South Africa is also clearly flouting agreed upon international conventions and laws governing the protection of refugees. In this respect a report by Human Rights Watch in February 2007 has indicated that South Africa’s Immigration Act of 2002 is frequently being violated. Failures by the South African Government to ensure respect for international human rights law and South African immigration and employment laws, as well as certain deficiencies in those South African laws, result in the infringement of rights that migrants, documented and undocumented, should enjoy under international law and that are also protected by the Constitution of South Africa. To this effect the Human Rights Watch report entitled ‘Keep Your Head Down: Unprotected Migrants in South Africa’ released in February 2007 stresses that the South African Government should ensure that state officials abide by the procedures for arrest, detention, and deportation in its immigration law.

South Africa has ratified the International Covenant on Civil and Political Rights (ICCPR), acceded to the African Charter for Human and People’s Rights (ACHPR) and ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The ICCPR provides for the right of everyone to liberty and security of person and prohibits arbitrary arrest or detention.

In 2004, the Committee on the Elimination of Racial Discrimination, established under the provisions of the ICERD, adopted General Recommendation No.30, which deals specifically with discrimination against non-citizens. General Recommendation No.30 states that differential treatment based on citizenship or immigration status “will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim (1)”. Other provisions address protection against hate speech and racial violence, access to citizenship, administration of justice, expulsion and deportation, and economic, social, and cultural rights.

With respect to ensuring that non-citizens enjoy equal protection and recognition before the law, General Recommendation No. 30 requires that States “combat ill-treatment of and discrimination against non-citizens by police and other law enforcement agencies and civil servants by strictly applying relevant legislation and regulations providing for sanctions and by ensuring that all officials dealing with non-citizens receive special training, including training in human rights” and “ensure that claims of racial discrimination brought by non-citizens are investigated thoroughly and that claims made against officials, notably those concerning discriminatory or racist behaviour, are subject to independent and effective scrutiny.”

In this respect a number of key international provisions and laws are not strictly being implemented by the South African Government. The events witnessed on Sky News and broadcast globally, furthermore reflect a gross failure of the South African Government to prevent the ill-treatment of individuals who can rightfully be considered as refugees, fleeing the impending collapse and meltdown of the Zimbabwean state. Nearly 2 million Zimbabweans are said to be based in South Africa and the South African Government does not appear equipped for the possibility of a massive influx of Zimbabweans, if the Zimbabwean state were to descend in chaos and anarchy in the event of a popular uprising.

Notes:

1) UN Committee on the Elimination of Racial Discrimination, General Recommendation No. 30: Discrimination Against Non-Citizens, CERD/C/64/Misc.11/rev.3 (2004), adopted in May 2005,
http://www.unhchr.ch/tbs/doc.nsf/0/b12db96f5c1e2491c1256ffd004914d8/$FILE/G0541496.pdf (accessed January 3, 2007)