The Right of Public Participation in the Law-Making Process and the Role of the Legislature in the Promotion of this Right

In 2006, the South African Constitutional Court found a constitutional right to participate in the legislative process in the case of Doctors for Life, Case CCT 12/05 (decided 17 August 2006). In this article, we argue that, first, legislation is better when legislators are required to invite and attend to public input, and, second, citizenship is better when legislators are required to invite and attend to public input. Doctors for Life puts South Africa on the road to improving both legislation and citizenship. In the United States, this road is largely untraveled. While rejecting traditional representative democracy as an adequate expression of political participation, Doctors for Life does not go as far as it could in terms of entrenching public participation in the South African legislative process. Nonetheless, it offers a model of an interim place that the United States can consider. The case also offers a model for international human rights exploration in an area of underdeveloped theory, especially in regard to enhancing respect and dignity as aspects of citizenship in a democratic state

No. 14: Policing Migration: Immigration Enforcement and Human Rights in South Africa

This paper examines reported incidents of human rights abuses and violence directed towards foreigners where government employees have been the perpetrators. We discuss both direct human rights abuses and incidents of violence (with examples drawn from policing exercises such as “Operation Crackdown” and from the detention of undocumented migrants) and institutional violence (such as migration policy development and other executive actions promoting or at least failing to prevent victimisation of foreigners). In many of the reported incidents, law enforcement officials have been the direct perpetrators of the human rights violations. The South African government is legally responsible for ensuring adherence to national and international human rights standards and the Constitution. We argue that the South African government needs to ensure that laws are adhered to but also to create a clear framework to guide and legally underpin police and immigration conduct to prevent human rights abuses. We also scrutinise the involvement of non-Governmental organisations and the South African Human Rights Commission in their attempts to prevent unlawful arrests and to improve the conditions of detention. In exploring the treatment of foreigners in South Africa, it is important to define some of the concepts to be used. This is particularly important because our definition of these terms differs from that in common usage. In much of South Africa, the term “foreigner” is regularly used to portray a coherent and uniform group of people without South African citizenship. However, this definition not only disregards the internal diversity and complexity among foreign citizens in South Africa, but also risks ignoring the significant difference between documented and undocumented migrants. There are various categories of documented non-nationals in South Africa, including refugees, asylum seekers and people with temporary and permanent residence who are legally in the country. These persons have applied for and been granted permission to reside in South Africa for a specific period. A significant group of non-South African citizens also present in the country are undocumented migrants or “illegal foreigners.” Undocumented migrants have not been granted permission to reside in South Africa. By law, they are therefore under some degree of command to leave the country, either by force or voluntarily. Although the difference between documented and undocumented migrants is relatively clearly defined in terms of legality, the two categories are persistently tangled and often ignored in practice by law enforcers. Documented migrants, especially black foreigners, are often incorrectly perceived a priori as being illegally in the country and treated as such. Direct human rights abuses and violations directed towards foreigners are often the combined result of xenophobia and other overlapping attitudes of hostility towards foreigners (Crush 2000). We argue that such actions towards foreigners stem from a social status of being black and foreign, a status that does not necessarily equate to a status of being illegally in the country. The forms of human rights abuse and violence are not exclusively about physical harm but also incorporate instances of psychological and emotional harm inflicted upon victims. Bringing in the concept of victim integrity broadens this category further. For example, extreme force used by police that clearly exceeds the amount of necessary force violates that integrity of the victim and is therefore unjustifiable. When the state, or any agent of the state, initiates this action, state-supported violence is at issue. When violence is persistent and patterned it may be termed institutionalised. To term such negative aspects of South African policy “institutionalised” requires a sensitive understanding of South Africa’s migration policy development and the policy context in which it operates. It has become international practice for governments—and South Africa is no exception—to control migration through restrictive immigration policies. Some of these policies include excessive visa requirements and other deterrent measures such as punitive and arbitrary detention, carrier sanctions, rejection at borders and large repatriation programmes. Some of these measures may be lawful; others are not. In any event, the enforcement of such policies generates a range of institutional points at which violence might occur. The potential for human rights abuse and violation directed towards foreigners spans the entire criminal justice and immigration regime, ranging from the first contact with the arresting police officer to the final physical departure from the country in the deportation process. While the police serve various functions regarding the enforcement of immigration law, such as arrest and initial detention, the Department of Home Affairs retains ultimate responsibility for the granting of legal status to foreigners, the renewing of permits and the deportation of undocumented migrants. This paper examines the roles that the police and the Department of Home Affairs have played in the treatment of foreigners since 1994 (between 1994 and 2002)

South Africa Case Study: The Double Crisis – Mass Migration From Zimbabwe And Xenophobic Violence in South Africa

The protracted economic and political crisis in Zimbabwe led directly to a major increase in mixed migration flows to South Africa. Migrants were drawn from every sector of society, all education and skill levels, equal numbers of both sexes, and all ages (including unaccompanied child migration). Many migrants claimed asylum in South Africa which gave them the right to work while they waited for a refugee hearing. Many others were arrested and deported back to Zimbabwe. Migrants who were unable to find employment in the formal economy turned to employment and self-employment in the informal economy. These migrant entrepreneurs used personal savings to establish small and micro enterprises in many urban areas. The businesses focused on retail trading, manufacturing and services and contributed to the South African economy in various ways, including providing employment for South Africans. Nationwide xenophobic violence in 2008 targeted all migrants, irrespective of origin and legal status. From 2008 onwards, violent attacks on migrant-owned informal businesses began to escalate. This culminated in a second round of nationwide xenophobic violence in early 2015 when migrant-owned businesses were targeted by mobs. Migrants send essential remittances to family in Zimbabwe and return migration is not a viable or long-term response until Zimbabwe’s economic crisis is resolved. As a result, informal migrant entrepreneurs have adapted to hostile business conditions by adopting a range of strategies to avoid and protect themselves and their businesses from xenophobia. Against this backdrop, this report first discusses the nature of the crisis in Zimbabwe and its connections with large-scale out-migration, particularly to South Africa. The South African response to crisis-driven migration is reviewed showing how the government shifted from a predominantly coercive and control-oriented policy towards a more realistic assessment of the need to accommodate migrants through an immigration amnesty and the right to work in the formal and informal sector. One of the major challenges facing migrants and all stakeholders in South Africa is xenophobic violence. Nationwide attacks on migrants and refugees in 2008 and 2015 have been interspersed with ongoing lower-level episodes of violence. These attacks have increasingly targeted migrants and refugees, including many Zimbabweans, seeking to make a living in the country’s urban informal economy. The research for this report focused on the business activities and responses to xenophobic violence of Zimbabweans in the informal economy. Amongst the key findings were the following: • Between 20-30% of Zimbabwean migrants in South African cities are involved in the informal economy and the importance of informal sector employment to Zimbabweans has increased over time. • Zimbabweans operating enterprises in the informal economy are predominantly young (50- 75% under the age of 35) and male (60-70%). • Nearly two-thirds of the migrant entrepreneurs arrived in South Africa in the peak years of the Zimbabwean crisis between 2000 and 2010 (42%). Another 32% migrated after 2010. Less than 2% migrated to South Africa before the end of apartheid. • Economic hardship, unemployment and political persecution are the main push drivers of migration to South Africa. Pull drivers include the assistance of relatives already in South Africa and the prospect of employment. • The majority of the Zimbabwean migrant enterprises are in the retail, trade and wholesale sector, followed by services and manufacturing. Around three-quarters of the migrants relied on their personal savings to start their businesses and many worked in the formal economy first. • Business expansion has occurred despite the prime obligation of the entrepreneurs to support family still in Zimbabwe. Instead of reinvesting all of the business profits into further expansion, a portion is therefore diverted into remittance channels. Over one-third remit funds at least once per month and only 12% never send remittances. • A significant number of the entrepreneurs had been victims of or knew other who had been victims of crime such as looting and robbery, xenophobic abuse and police misconduct abuse. The report then presents the results of in-depth interviews with Zimbabwean business-owners who had experienced xenophobic violence in 2008 and 2015 or at other times. The narratives of the migrants provide insights into the unpredictable nature of the violence, their vulnerability to attack, the loss of business goods and property during mob violence and the need to restart from scratch, and the various strategies that they adopt to reduce risk. These strategies include operating in safer areas (not feasible for all), avoiding areas where corrupt police tend to operate, paying for protection and flight when xenophobic violence erupts. Return to Zimbabwe is not considered a viable option because of the economic conditions there. The interviews also provide insights into the migrants’ perceptions of government and stakeholder responses to the xenophobic violence. Almost without exception, the migrants felt that neither government (the Zimbabwean or South African) had done anything to protect or assist them during and after the violence. This perception of inaction also extended to international and non-governmental organisations. The migrants were particularly harsh in their comments about the police who were widely seen as either conniving in the violence or uninterested in protecting migrants. The perceptions of the migrants that nothing is done may simply be a function of who was interviewed and does not necessarily reflect the actual reality. The report therefore evaluates the response of the South African government to the ongoing crisis of xenophobia and concludes that some actions – such as sending in the army – are taken during episodes of nationwide violence but that ongoing daily and weekly attacks are generally ignored. There is a strong official line that these attacks are not motivated by xenophobia and. Indeed, that xenophobia does not even exist. This is clearly contradicted by the migrants who view the attacks as motivated by xenophobia. A second element of the official response is that the migrants are partially to blame for what happens to them as their business success builds resentment amongst South Africans. Government has yet to acknowledge that migrant-owned informal enterprises make a valuable contribution to the economy of the country, including through job creation for South Africans. The primary response to the violence of 2015 was the launching of a military-style Operation Fiela which was justified as a crime-fighting initiative but appears to have targeted migrant enterprises. The final sections of the report examine the responses and programmes of various non-governmental and international organisations to the crisis of xenophobia. During large-scale xenophobic violence there is considerable mobilisation of anti-xenophobia civil society organisations to offer protection and protest. Their effectiveness and impact tends to dissipate when the violence is more scattered and random. The South African Human Rights Commission (SAHRC) has played a major role in the past in holding government to account and articulating extensive recommendations for remedial action, most of which have not been taken up and many of which are still highly relevant. International organisations have tended to target integration and education programming at the community level but there has only been one systematic evaluation (of the UNHCR’s response) which was highly critical of the organisation. These organisations and other governments are considerably hamstrung by xenophobia denialism at the highest level because it means that government will avoid the kinds of partnership that are urgently needed to address this endemic crisis

Working conditions in South Africa since the end of apartheid a comparison between the agricultural, forestry and mining sectors

International audienc

No. 19: Irregular Migration to South Africa During the First Ten Years of Democracy

Irregular migration poses a considerable problem for South Africa in migration management, population planning, infrastructure development, resource management, governance, social services, economic development and security. A government can only work with what it knows, with a reasonable margin of error. By its nature, irregular migration creates many unknowns. Where entry into South Africa is clandestine or fraudulent, no proper account can be kept of the migrant’s presence, movement, identity, nationality, health status or activities. Without the ability to measure the problem, the ability to address it remains elusive. For years, figures on the number of irregular migrants present in South Africa have been bandied about and strongly contested. In a 1996 report, commissioned by the government, the Human Sciences Research Council (HSRC) estimated the number at between 2.5 and 4 million, but suggested it could be as high as 12 million. The HSRC used a sample survey method to estimate the number of irregular migrants in South Africa. Going from door to door across the country, surveyors asked how many noncitizens lived on the property. The sample figure was then extrapolated and the number of legally resident non-citizens, as determined by Statistics South Africa through the census, was subtracted. This manner of survey was repeated every six months in an attempt to track movement patterns of irregular migrants. Critics of the HSRC figures include Maxine Reitzes and Jonathan Crush, who suggest that it could be as low as 500 000. In 2002 the HSRC withdrew its estimate. Nevertheless, the Department of Home Affairs quotes figures of between 2.5 and 5 million or up to 7 million. The media, not being in a position to conduct independent research, moves freely between these numbers. As the debate raged, the Minister of Home Affairs pleaded that less attention be given to how many irregular migrants were present, and more be focused on whether it is a problem and what it is costing South Africa7. As the Draft Green Paper on International Migration8 states: “Speculative assessments have also been made of the impact of unauthorised migration on our education, health-care and social welfare systems. We have looked carefully at all available figures and must declare that we have little faith in them. It would, of course, be very helpful if officials and planners had accurate statistics, but even under the best circumstances these are difficult to collect as people have an interest in not declaring their presence.

No. 09: Transnationalism and African Immigration to South Africa

The demise of formal apartheid has created new and as yet only partially understood opportunities for migration to South Africa. Legal migration from other Southern African Development Community (SADC) countries, for example, has increased almost ten-fold since 1990 to over four million visitors per year. South Africa’s (re)insertion into the global economy has brought new streams of legal and undocumented migrants from outside the SADC region and new ethnic constellations within. The easing of legal and unauthorized entry to South Africa has made the country a new destination for African asylum-seekers, long-distance traders, entrepreneurs, students and professionals (Bouillon 1996; Saasa 1996; Rogerson 1997; de la Hunt 1998; Peberdy and Crush 1998; Ramphele 1999). SAMP aims to explore the migration phenomenon from a variety of disciplinary and methodological perspectives and at a number of different spatial scales. At one end of the research spectrum are the project’s statistically representative, quantitative, national surveys in source and host countries (Sechaba Consultants 1997; de Vletter 1998; Frayne and Pendleton 1998; McDonald et al 1998, 1999; Mattes et al 1999; McDonald 2000). These surveys have provided important baseline data on cross-border migration at a panregional scale. They have also helped to contest the crude misrepresentations of xenophobic discourse (Croucher 1998; McDonald et al 1998; Crush 1999a). But the large sample sizes and structured questionnaire instruments necessarily sacrifice the more nuanced information that can only be gleaned from local case studies of an ethnographic, participatory and place-based nature. What is the qualitative nature of the new South African migratory mosaic? Who are the new international migrants and immigrants in South Africa? What are the conditions shaping their migratory patterns? And what is the nature of their relations with South Africans and their home countries? We are also interested in some of the broader conceptual and theoretical questions prompted by these movements. While they may be relatively new to South Africa (and that itself is an issue for debate), they are not altogether new movements. The global “age of migration” has, by virtue of the sequestering effect of apartheid, come late to the country (Castles and Miller 1993; Cohen 1995; Sassen 1999). The conceptual and analytical debates that have swirled around the issue of migration and globalization elsewhere have largely by-passed South Africa. The question, therefore, is whether the tools for understanding the age of migration have any explanatory purchase on the South African empirical material. Whether South and Southern Africa can actually be a source of theorizing, as they have been in the past, is another question. Three major themes are addressed in this paper: (a) the changing character of cross-border migration to South Africa; (b) the value of the conceptual apparatus of transnationalism to describe and research changing forms of cross-border migration into South Africa; and (c) the spatial reconfiguration and emergence of new migrant spaces in the country. Each of these themes is discussed briefly below

Filling the gap : a learning network for health and human rights in the Western Cape, South Africa

We draw on the experience of a Learning Network for Health and Human Rights (LN) involving collaboration between academic institutions and civil society organizations in the Western Cape, South Africa, aimed at identifying and disseminating best practice related to the right to health. The LN’s work in materials development, participatory research, training and capacity-building for action, and advocacy for intervention illustrates important lessons for human rights practice. These include (i) the importance of active translation of knowledge and awareness into action for rights to be made real; (ii) the potential tension arising from civil society action, which might relieve the state of its obligations by delivering services that should be the state’s responsibility—and hence the importance of emphasizing civil society’s role in holding services accountable in terms of the right to health; (iii) the role of civil society organizations in filling a gap related to obligations to promote rights; (iv) the critical importance of networking and solidarity for building civil society capacity to act for health rights. Evidence from evaluation of the LN is presented to support the argument that civil society can play a key role in bridging a gap between formal state commitment to creating a human rights culture and realizing services and policies that enable the most vulnerable members of society to advance their health. Through access to information and the creation of spaces, both for participation and as a safe environment in which learning can be turned into practice, the agency of those most affected by rights violations can be redressed. We argue that civil society agency is critical to such action

The role played by the South African human rights commission's economic and social rights reports in good governance in South Africa

The preamble of the Constitution of South Africa, 1996 (the Constitution)contains the commitment to, amongst other things, establish a society based on democratic values, social justice and fundamental human rights, lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law and improve the quality of life of all citizens and free the potential of each person. One of the methods used to achieve these objectives is the inclusion of enforceable socio-economic rights in the Chapter 2 Bill of Rights. Despite numerous debates surrounding the issue of enforceability of socioeconomic rights, it has become evident that these rights are indeed enforceable. Not only does section 7(2) of the Constitution place the state under an obligation to respect, protect, promote and fulfil all rights in the Bill of Rights, including socio-economic rights, but the Constitutional Court has in various decisions passed judgment on issues relating to socio-economic rights, underpinning the fact that these rights are indeed enforceable. The fact that socio-economic rights have been included in the Bill of Rights and are enforceable is, however, not sufficient to achieve the aims set out in the preamble. In order for these rights to be of any value to the people they seek to protect, they need to be implemented. One of the ways in which the implementation of these rights is monitored is by means of the South African Human Rights Commission's annual Economic and Social Rights Reports. The aim of this contribution is to assess these reports and to establish the degree to which they contribute to good governance in South Africa with reference to,inter alia, the constitutional mandate of the South African Human RightsCommission, the reporting procedure and the evaluation of reports

Universities and the Promotion of Access to Information Act in South Africa: A Comparative Study of Public Universities in Gauteng Province

In the year 2000, the South African government passed the Promotion of Access to Information Act (PAIA) to give effect to the constitutional right to access information held by a public body. A year later, in 2001, PAIA was enforced. This Act enables people to access information in order to exercise or protect their rights, as enshrined in the Constitution of the Republic of South Africa. Subsequently, government established the South African Human Rights Commission (SAHRC) to promote, protect and monitor human rights. Access to information is a human right. Thus, the SAHRC is responsible for promoting and monitoring compliance with PAIA in public bodies. According to various SAHRC reports, many public universities in South Africa do not comply with PAIA. This failure to implement and comply with PAIA is disempowering for university stakeholders. Accordingly, this study sought to identify the factors affecting compliance/non-compliance with PAIA sections 14, 15, 17 and 32 in public universities of Gauteng province. The study adopted a qualitative methodology within a phenomenological genre. The Interpretive Phenomenological Analysis (IPA) guided the research design. The researcher purposively selected a single person from the SAHRC with whom to conduct a face-to-face interview. A voice recorder captured the interview. The researcher transcribed the recording into a text document. Subsequently, document reviews helped to corroborate the data emanating from the interview. The study identified three major factors affecting compliance in the six universities under study: firstly, a lack of political will – government is reneging on its commitment to make PAIA work; secondly, the poor implementation of PAIA by the SAHRC; and thirdly, the culture of secrecy that is endemic in public universities in South Africa. The three themes constitute the findings of this study. The researcher recommends that the SAHRC or the Regulator should adopt a compliance model that would ensure the effective implementation of, and compliance with, PAIA in public universities in South Africa.Information Scienc

An overview of South Africa’s institutional framework in promoting women’s right to development

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