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Southern Africa: interpreting the refugee convention, 60 years on
20 June 2011

Fleeing economic collapse and human rights violations, Zimbabweans are considered undocumented migrants rather than refugees. Yet many are in desperate need of international protection, Limpopo, South Africa (Peter Balleis SJ/ JRS)
Without the combined support of improved legislative frameworks and an international commitment to further assist poorer host countries, it will be increasingly difficult to ensure the rights of forcibly displaced persons are respected in southern Africa.
Johannesburg, 20 June 2011 – Over the last 60 years, the UN Geneva convention has offered millions of individuals fleeing persecution the opportunity to live in safety. The protection it provides is dependant on the person in question meeting a range of criteria as laid out in international law. Before protection can become a reality, these broad tenets must be translated into domestic legislation or policy and implemented. Unfortunately, this frequently fails to happen.

In addition, the world has changed and in southern Africa, increasingly, the definitions laid out in the convention are becoming out-dated and in some contexts, unable to assist those who are in dire need of international support.

Southern Africa hosts a large refugee population, with South Africa having the world's highest number of registered asylum seekers. Food-insecure countries like Zimbabwe and Malawi host thousands of refugees from across the continent in camps. These camp environments frequently restrict movement and employment opportunities and become not only stifling and unproductive, but also fail to respond to the needs of mobile populations.

Urban refugees

The protracted nature of many African conflicts giving rise to displacement has forced many refugees in the region to consider their exile permanent. Refugees are frequently seeking to build a new life and develop long-term livelihood strategies, as opposed to waiting in camps for the conflict that caused their displacement to end.

Accordingly, large numbers of asylum seekers and refugees choose to go to Africa's urban areas, such as Johannesburg, Nairobi, Luanda and Lilongwe to mention but a few. Urban areas, particularly in more developed countries like South Africa, offer potential opportunities to pursue business and study goals, as well as improved access to basic services. Increasingly, urban areas also offer the pull of already developed social networks which provide support and assistance.

The term 'urban refugees' refers to those who reside outside of designated camps for many reasons and does not imply legitimacy of urban dwelling. In some instances, refugees live in urban areas without the permission of their host governments, putting them at risk of arrest, harassment and deportation. This encourages urban refugees to keep a low profile as a safety mechanism, making them one of the hardest populations to support and assist.

The encampment policy is based on domestic law, varying from state to state, and is in direct contravention of the Geneva convention. Restriction of movement, and the consequent risks faced by urban refugees, is one of the most pressing issues facing forced migrants.

Associated with the above risks, one of the fundamental problems facing urban refugees is access to services. They face significant difficulties in availing of housing, health and education services, either because they are in urban areas illegally or because they face discrimination from local service providers. Reports from South Africa cite refugees being turned away from state clinics for treatment and suffering harassment from local police forces.

Indeed, assistance for urban refugees is one of the hurdles faced both by refugees themselves and by service providers. Many law enforcement officers and immigration police are either poorly trained in refugee rights, or poorly monitored for legal compliance. This can result in the deportation of refugees.

Recently, the UN refugee agency (UNHCR) has recognised the need to 'expand protection space' for refugees in urban areas through developing a policy that recognises the need for self-reliance and the harmonisation of domestic law with international humanitarian law.

However, this process is slow and faces much political resistance in some poorer host countries. Resentment in food insecure countries like Mozambique and Malawi is tangible – they feel the presence of refugees is both an unnecessary burden and an unfair strain on their own already limited resources.

Indeed, this concept of 'expanding the protection space' is crucial, as the southern African situation attests. The plight of Zimbabweans, known as 'survival migrants', crossing the border into South Africa and other neighbouring countries has posed a real challenge to the Geneva convention.

This term is used to refer to those vulnerable populations who do not fit into the conventional refugee definition, but are still in need of international assistance. This is most poignantly seen in the plight of destitute Zimbabweans, unable to access food, land and safety, but not seen as Geneva convention refugees. However, classing them as economic migrants overlooks the forced nature of their migration and their inability to take control of their precarious circumstances.

African refugee convention

These groups pose a serious challenge to service providers, particularly governmental ones, in southern Africa who have been mandated to serve refugees only. There is also the problem of people with pressing protection concerns whose cases are lost amidst the equally pressing issues of survival migrants.

In response to changing circumstances in host nations, many human rights advocates call for the refugee definition to be expanded to include internally displaced persons and those fleeing generalised conflict. However, in the present political environment states are unlikely to draft a refugee convention which meets the needs of these populations. On the contrary, re-negotiating the Geneva convention could be like opening Pandora's box.

Progress on protecting vulnerable populations should be focused on complementing the Geneva convention with the implementation of regional treaties. Specifically, this means putting pressure on southern African nations to implement the African Union refugee convention whose definition is far broader than that of the UN, including persons fleeing "events seriously disturbing public order". It also includes encouraging states to implement the African convention on internally displaced persons.

Yet, it is not just a question of political will. States in southern Africa receive a disproportionate number of forcibly displaced persons. While it is right that the international community and civil society push the region to protect these vulnerable populations, it is also just that they share some of this burden, with both increased and committed refugee resettlement and intensified aid to the poorest countries struggling to absorb the costs of hosting refugees and asylum seekers.

Without the combined support of improved legislative frameworks and an international commitment to further assist poorer host countries, it will be increasingly difficult to ensure the rights of forcibly displaced persons are respected in southern Africa.

Robyn Leslie, JRS Southern Africa Advocacy Officer

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