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By 19 June 2017December 13th, 2022Criminal Justice Criminal Law Reform, SADC6 min read

On World Refugee Day, held every year on June 20th, the UNHCR together with refugee advocates worldwide commemorate the strength, courage and perseverance of millions of refugees. We reflect here on refugee and mixed migration movements in the Southern African region calling on governments to respect the rights of asylum seekers, refugees and migrants and in particular to promote the use of alternatives to detention for these groups.

Country Asylum Seekers Refugees 
Angola 30,143 15,555
Botswana 135 2,130
DRC 983 383,095
Namibia 1,112 1,737
South Africa 1,096,063 121,646
Swaziland 268 696
Lesotho 4 31
Malawi 14,470 9,019
Mozambique 14,825 5,622
Zambia 2,411 26,447
Zimbabwe 259 6,950

UNHCR Statistics for Southern Africa as of the end of 2015

Angola/Democratic Republic of Congo 
Earlier in the year it was reported that more than 20 000 refugees fled violence in the Kasai Province of the Democratic Republic of the Congo into Angola following militia attacks. According to the UNHCR, 70% of arrivals were women and children. This group are a fraction of the numbers of people who have been displaced by the conflict in Kasai. Angola has not always been hospitable to the Congolese people, however with Angola adopting a mediation role in the situation in which DRC President Joseph Kabila refused to step down at the end of his term in December 2016, Angola’s position appears to have softened. Kabila who has been in power since 2001, struck a deal in December with Congo’s main opposition parties to remain in power after his mandate expired provided he held elections by the end of 2017. However talks to implement the deal broke down in March when Kabila refused to commit to the opposition’s choice of prime minister. Despite repeated denials by Kabila, there are suspicions that he intends to delay elections until he can organise a referendum which will allow him to remain in office for a third term. The ongoing political instability together with the operation of militias in the eastern part of the DRC is contributing to this outpouring of refugees from the DRC.

Malawi/Ethiopia/South Africa
Malawi has been detaining migrants transiting the country in increasing numbers over the last 3 years. These migrants are mostly Ethiopian nationals travelling to South Africa. Despite Malawi immigration laws allowing for the provision of transit permits for asylum seekers en route to a third country, Malawi refuses to issue these permits and continues to arrest, detain and deport migrants. The cost of these detentions and deportations cannot be borne by the cash strapped country. This has caused adverse results in the situation of migrants in Malawi including prolonged detentions, refusal of access to basic services and sometimes deaths in places of detention. It is encouraging that the Malawi government in 2017 endorsed the principle that there are alternatives to immigration detention and committed itself to increasing the use of such alternative options in managing migration. Malawi also attempted to control irregular migration internally, however, it is failing to address the irregular flow of Malawians travelling to South Africa in search of better economic opportunities. South Africa in turn acknowledging the substantial numbers of Malawians in the country have not attempted to implement any large scale regularisation programmes similar to those implemented for undocumented Zimbabweans and Basotho nationals in South Africa. These ad hoc programmes were beneficial for both Zimbabwe and Lesotho, whose citizens benefited from the short term regularisation of their immigration status.

In 2016 skirmishes between Mozambique’s ruling FRELIMO party and the opposition RENAMO, in parts of the country, led to a mass exodus of Mozambicans into Malawi. Mozambique denied its citizens were fleeing into Malawi and stated instead that this was normal migration movements in an attempt to cover up this internal fighting. At that time, political tension had risen between the ruling and the major opposition parties. There are reports of improvements after talks between the Mozambican President and the leader of the opposition party. Nevertheless, a recent report by Freedom House indicates that Mozambicans are feeling the country due to the perception that government and opposition forces are targeting them. This includes killings, assaults and the burning of homes, intended to create fear and punish sympathizers. Mozambique is also a destination for other African refugees and currently hosts some 15,000 refugees originating from the Democratic Republic of the Congo, Burundi, Rwanda and Somalia.

South Africa 
South Africa is currently reviewing its asylum and immigration policies part of which include the creation of asylum processing centres along South Africa’s border regions. The new policy is an attempt to control and criminalise irregular migration. The policy does not speak specifically to how it intends to deal with the endemic corruption within the asylum process nor with the sluggish asylum determination process which has had the effect of creating a substantial backlog of rejected asylum cases waiting to go on appeal. Despite South Africa’s long time commitment to an urban refugee policy which does not detain asylum seekers, the proposed plans seek to move away from this free movement situation. We are deeply concerned by proposed plans to remove the right to work and study for asylum seekers and to criminalise immigration offences. . The slow pace of South Africa’s refugee status determination process is plainly visible from the statistics in the table above where the numbers of asylum seekers (current cases) far outnumber those of refugees (finalised cases), unlike all the other listed countries where the opposite is true.

SALC’s Calls on Southern African governments increase protections for asylum seekers, refugees and migrants
Domestic laws and international standards place clear obligations upon all State parties to promote respect and to fulfil the human rights of every individual. The protection of the rights of asylum seekers, refugees and migrants is also envisaged. Given the challenges listed here which affect adversely the enjoyment of human rights by asylum seekers, refugees and migrants we call on states in the Southern African region to take the necessary steps to improve the situation of these groups in their jurisdiction.
As part of this initiative the affected State are encouraged to:
1. Adopt and establish alternatives to immigration detention of asylum seekers, refugees and migrants;
2. Adhere to and respect and relevant international standards on the protection of the rights of asylum seekers, refugees and migrants and to establish institutions and adopt domestic laws and practices giving effect to such international law norms; and
3. Create conducive environments for members of migrant groups (including asylum seekers and refugees) by addressing the (economic and political) root causes of migration in the region.

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