South Africa 0608 insert - Human Rights Watch · in Zimbabwe has a direct impact on South Africa....

Summary and Recommendations

Human Rights Watch | June 2008

Photographs by Dirk-Jan Visser

NEIGHBORS IN NEED

Women queue for water at a natural water spring in theoverpopulated area of Tafara Mabvuku outside Harare.Zimbabwe’s water and sanitation infrastructure has collapsedas a result of the economic crisis.

4 Neighbors In Need

In South Africa they face a vulnerable and uncertain situation.Without documents, they have no right to work and havelimited rights and access to social assistance such as healthcare and housing. Liable to arrest and deportation at any time,they live in permanent insecurity. Due to South Africa’sdysfunctional asylum system and unlawful deportationpractices, many of the tens of thousands that have applied forasylum are at constant risk of being refouled—unlawfullyreturned.

These are not voluntary economic migrants, even if for manyeconomic destitution is one of multiple reasons for crossinginto South Africa. Their presence in South Africa underlines a

failure of foreign policy—the failure to use South Africa’sleverage effectively to address the brutal human rightsviolations and failed economic policies in Zimbabwe causingtheir flight. Their undocumented status and vulnerability inSouth Africa, and the increasing public resentment againstthem, represents a failure of domestic policy—the failure todevelop and implement a legal, comprehensive, andworkable policy to address the reality of the existence ofZimbabweans in South Africa.

The choice the South African government faces is difficult andstark. Either it continues to breach its fundamentalobligations under international law and ignores the reality of

Since 2005 an estimated one to 1.5 million Zimbabweanshave fled across the border into South Africa, theregion’s economic power. They have run frompersecution, for the majority in the form of targeted,mass, forced evictions destroying homes and livelihoods,and from economic destitution as the Zimbabweaneconomy collapses. Recent refugees fleeing the brutalcrackdown on political opponents of President RobertMugabe in the aftermath of the March 2008 Zimbabweanelections are the latest wave.

Human Rights Watch | June 2008 5

the hundreds of thousands of undocumented Zimbabweanson its territory. To do this means allowing many to bemistreated by police, abused and exploited by employers,while many others are removed haphazardly, arbitrarily,expensively, and ineffectively to Zimbabwe (most returningback over the border within days or weeks).

Or the government can choose to regularize their stay.

This report calls on the South African authorities to adopt abroad-based policy aimed at regularizing the presence ofZimbabweans in South Africa. This should allowZimbabweans to enter South Africa legally, should regularizetheir status once in country, should end their deportation, and

should give them the right to work in South Africa on atemporary and reviewable basis. Under the 2002 ImmigrationAct, the minister of home affairs could establish a newtemporary permit scheme called “temporary immigrationexemption status for Zimbabweans” (TIES).

In the South African border town Musina, a group that describes itself asan “underground pro-democracy movement” has put up a roadsidebillboard with a message for arriving immigrants.

6 Neighbors In Need

The fact of public resentment against foreigners should notdeter the South African government from fulfilling its legalobligations and doing what is right. This report outlines eightarguments why regularizing the status of Zimbabweansmakesboth legal and practical sense:

• Regularization would allow South Africa to meet itsfundamental international legal obligation not tounlawfully deport Zimbabwean asylum seekers.

• Regularization would unburden the asylum system ofunnecessary claims.


• Regularization would protect Zimbabweans during entryand stay in South Africa, including against xenophobicviolence at the hands of South African citizens.

• Regularization would offset the cost to the South Africantaxpayer of ineffective deportation and wasteful use ofpolice resources.

• Regularization would provide data on hundreds ofthousands of currently undocumented Zimbabweans.

• Regularization would help the authorities to enforceemployers’ minimum-wage obligations and create alevel playing field on which South African nationalscould compete fairly for jobs.

• Regularization leading to the right to work wouldaddress Zimbabweans’ humanitarian needs in SouthAfrica, which would reduce the pressure on SouthAfrican social assistance programs.

• Regularization leading to the right to work would helpZimbabweans support desperate families remaining inZimbabwe, thereby possibly reducing the number ofZimbabweans fleeing their country for South Africa.

The fact of the matter, as this report shows, is that repressionin Zimbabwe has a direct impact on South Africa. Asresentment among the urban poor against foreigners hasgrown—with Zimbabweans becoming a prime target ofxenophobic violence which has killed dozens, injuredhundreds and displaced tens of thousands of foreigners—thisincludes impact on South African social harmony, publicsafety, and the rule of law.

Accordingly, the South African government, working closelywith the Southern African Development Community (SADC),the African Union (AU), and the United Nations (UN), also hasevery reason to urgently identify a fundamentally moreeffective political strategy than has been seen over recentmonths to address respect for human rights and the rule oflaw in Zimbabwe itself. This is not an alternative toregularizing the status of Zimbabweans in South Africa—thelegacy of repression in Zimbabwe, including Zimbabweansfleeing to South Africa, will take time to overcome, even ifmeasures to address it are implemented immediately andeffectively.

A grave in the extension of the Warrenpark Hillscemetery in Harare; the old cemetery is full.Zimbabwe’s economic collapse, AIDS crisis and thelack of access to health care has pushed lifeexpectancy below 37 years.

8 Neighbors In Need

Young Zimbabwean men enter South Africa near the Limpopo river, onthe Zimbabwe-South Africa border. They join hundreds of thousands ofZimbabweans who have entered South Africa in a similar way.


WHY ARE HUNDREDS OFTHOUSANDS OF ZIMBABWEANSCROSSING TO SOUTH AFRICA?

Testimonies from Zimbabweans in South Africa presented inthis report explain in personal and individual terms how theZimbabwean government’s political actions and thecountry’s decline have led to their economic destitution anddesperation, and have ultimately forced them to leave thecountry to survive the political and economic crisis.

Political repression has included the direct, violent targetingof opposition supporters, policies resulting in thedislocation of hundreds of thousands of citizens, and anassault on the informal trading sector. These policies haveresulted in severe social and economic disruption formassive numbers of people.

Until the 1990s, Zimbabwe was one of the wealthiestcountries in sub-Saharan Africa. With the collapse of much ofthe formal economy after 2000, the informal sectorexpanded and by 2005 employed three-to-four times thenumber of people employed in the formal sector. Meanwhile,in the late 1990s, the Movement for Democratic Change(MDC) began to emerge as a nascent political alternative tothe dictatorial Zimbabwe African National Union-PatrioticFront (ZANU-PF) regime led by Robert Mugabe, claimingsupport in various parts of the country, including many high-density suburbs.

Always authoritarian when facing political opposition, theZimbabwean government became even more repressivefollowing the emergence of the MDC. During election periods(2000, 2002, 2005, and 2008), large numbers of politicalactivists have been assaulted and displaced.

In 2005, in a forcible eviction action called OperationMurambatsvina (which translates as “Operation Clear theFilth”), the Zimbabwean government destroyed the homesand livelihoods of about 700,000 people (or 6 percent of theZimbabwean population) living in the high-density suburbsof Zimbabwe’s cities. Because the evictions caused massiveeconomic destitution and had a huge impact on the broaderZimbabwean economy, the evictions triggered the escalationof the contemporary influx of Zimbabweans to South Africa.

Zimbabwe’s high-density suburbs were areas of significantsupport for the MDC. As this and other reports describe, theevictions were almost certainly carried out for politicalreasons.

The eviction campaign destroyed tens of thousands of housesand thousands of informal business structures. A further 1.7million people were indirectly affected. A strictly-enforcedgovernment ban on informal trading after the evictions

resulted in a severe crisis for individuals engaged in smallenterprises and vending.

Though it is not known how many victims of OperationMurambatsvina have crossed the border, it is possible thattens of thousands of breadwinners from targeted familiesrendered destitute by the government’s action have come toSouth Africa to help their families survive. Interviews

10 Neighbors In Need


The Methodist Church in downtown Johannesburg,South Africa, run by Bishop Paul Verryn, offers shelterevery night to approximately 1300 asylum seekers andundocumented foreign nationals, most of whom arefrom Zimbabwe.

conducted by Human Rights Watch for this report identifieddozens of such people.

The brutal crackdown that followed the March 2008 parlia-mentary and disputed presidential elections to preventopposition supporters from voting the same way in thepresidential runoffs has caused further displacement, withthousands of MDC activists and supporters fleeing from ruralareas, some of them across the border to South Africa. Thesemost recent asylum seekers arriving in South Africa are fleeingpersecution in the form of torture, beatings, arbitrary arrest,and detention.

Like those targeted for their political activities, peopletargeted during the 2005 evictions have a strong claim forrefugee status under international refugee law. AndZimbabweans fleeing generalized destitution caused byMugabe’s ruinous policies cannot be regarded as voluntarymigrants merely seeking financial advantage; the gravity ofthe current economic crisis suggests that almost all areleaving involuntarily.

This report presents the testimony of those evicted and thosefleeing generalised economic deprivation. Without fail thesepeople told Human Rights Watch that they were compelled toleave Zimbabwe and looked to South Africa as their lastoption for survival.

In 2008 Zimbabwe has one of the world’s “fastest shrinkingeconomies” and, by far, the world’s highest rate of inflation,estimated by the Zimbabwean state statistical office at100,000 percent. The real gross domestic product has shrunkfor nine consecutive years, and the engine of Zimbabwe’seconomy, agriculture, has contracted sharply. The proportionof the population living below the poverty line increased from25 percent in 1990 to 83 percent in 2007. Throughout 2007and in 2008 unemployment has been estimated at 80percent.

The collapse in food production has caused a serious fooddeficit, affecting 4.1 million Zimbabweans (more than one-third of the population) in early 2008. Until June 4, 2008, foodassistance programs by international agencies such as theWorld Food Program were expected to meet all of theassessed needs in rural areas, though only one-third of theone million urban Zimbabweans estimated to be foodinsecure were receiving formal food assistance. On June 4,2008, the Zimbabwean authorities announced a completehalt to the work of all aid agencies in Zimbabwe, includingthose distributing emergency food rations, alleging thatagencies had been using their programs to campaign for theopposition party. This followed President Mugabe’sannouncement on May 29, 2008, that Zimbabwe had had toimport 600,000 tons of maize to ease food shortages, andwarnings that in the coming 12 months Zimbabwe’s cerealproduction will cover only 28 per cent of the populations’needs.

The health sector in general has been plagued with difficultiesproviding basic services. Shortages of key drugs are frequentand massive emigration of medical personnel has occurred.Currently, 50 percent of health care positions, including 88



A boy shops at a supermarket in Bulawayo, Zimbabwe’ssecond largest city. Because of Zimbabwe’s economiccollapse, shops are empty.

percent of primary health care nurse positions, are vacant.Due to regular increases in fees, the cost of health care hasincreased. A dramatic drop in a broad range of healthindicators reflects reduced access to health care. Maternalmortality rose from 283 per 100,000 live births in 1994, to1,100 per 100,000 live births in 2005. Women’s life

expectancy has fallen from 56 years in 1978, to 34 years in2006.

As of December 2007 an estimated 1.7 million out of 13 millionZimbabweans were living with HIV, sharply increasing theburden on the health care system. Over 70 percent of


admissions to medical wards in Zimbabwe’s major hospitalsare patients with AIDS-related diseases. About 350,000 of the1.7 million people living with HIV need anti-retroviraltreatment (ART), and 600,000 need care and support. Whilemedical care provided to People Living with HIV/AIDS (PLWHA)has increased in the past few years, it still falls far short of the

needs. Only about 90,000 Zimbabweans needing ART arecurrently being treated with anti-retroviral medicines andreports have indicated that some Zimbabweans are fleeing toneighboring countries because of their inability to access ART.

The 2007 Global Tuberculosis Control Report from the WorldHealth Organization ranks Zimbabwe among 22 countrieswith the highest tuberculosis (TB) burden in the world.Zimbabwe has six times more TB cases than it did 20 yearsago, and an estimated two-thirds of Zimbabweans with TB arealso infected with HIV. Cholera outbreaks have repeatedlyoccurred in recent years, as the country’s water andsanitation systems have broken down. In December 2007 459cases of cholera were reported in two high-density suburbs ofHarare. In Bulawayo, 11 people died from cholera and morethan 300 were hospitalized in 2007. Electric power outagesand shortages of chemicals to treat water have interruptedwater supplies and compelled individuals to drink untreatedwater contaminated with fecal matter. At least 6 millionpeople in Zimbabwe—about half the population—do not haveaccess to clean water or sanitation.

The South African government and international actors’recognition of the involuntary nature of Zimbabweans’displacement is a necessary step to identifying the mosteffective response to their presence in South Africa.


The Methodist Church in downtown Johannesburg,South Africa, run by Bishop Paul Verryn, offersshelter every night to approximately 1300 asylumseekers and undocumented foreign nationals, mostof whom are from Zimbabwe.

SOUTH AFRICA’S RESPONSE

The influx of more than a million destitute and hungryZimbabweans has placed an enormous burden on SouthAfrica. This has resulted in some excessive reactions by theauthorities, such as the police raid in January 2008 on theCentral Methodist Church in Johannesburg, which sheltersover 1,000 homeless Zimbabweans. It has also lead tounlawful practices such as rapid deportations by the SouthAfrican Police Services in the border region.

However, generally the response of the South Africanauthorities has been to turn a blind eye to the presence ofZimbabweans, remaining silent on why they have come toSouth Africa in such high numbers and on the scale of thehuman rights violations in Zimbabwe that has driven them.Even during the mass evictions of 2005 affecting 2.4 millionpeople, and the post-March 2008 election violence, the SouthAfrican government has not set out a clear public policy withits assessment of the reasons for the influx or with a frankadmission of the challenges it faces in responding.

Nor has the government responded in a concerted way to thesignificant and almost certainly increasing humanitarianneeds of particularly vulnerable Zimbabweans in South Africa,such as unaccompanied children and the very sick (includingPLWHA).

Instead it has adopted a business-as-usual approach, treatingZimbabweans like any other foreign nationals by requiringthem to go through standard immigration procedures, or toapply for asylum in a system incapable of dealing with thenumber of applications. As there are only limited possibilitiesfor obtaining work permits in South Africa, many of the almost20,000 Zimbabweans who make asylum claims every year doso because they have no other option for legally working andlegally remaining in S0uth Africa. Consequently, the asylumsystem is burdened with potentially thousands of claims thatcould be better processed under an alternative immigrationpolicy.

The government’s policy of deporting some of the hundreds ofthousands of undocumented Zimbabweans does not reducethe number of Zimbabweans in South Africa. It does not deterillegal entry and is highly costly to the South African taxpayer,a fact that has increasingly been recognized at the highestlevels of government. Despite this recognition, an estimated200,000 Zimbabweans were deported in 2007. Most returnedto South Africa within days or weeks.

Echoing the media’s often emotive language used to describeZimbabweans in South Africa— “a human tsunami,” “illegalimmigrants,” or “border jumpers”—the government hassuggested that Zimbabweans in South Africa are all voluntaryeconomic migrants. President Thabo Mbeki has referred tothem as an “inflow of illegal people.” Other South African

officials have made various statements including “there is nowar in Zimbabwe,” implying that Zimbabweans cannotpossibly have valid asylum claims, that they voluntarily leavetheir country, and that Zimbabweans “are economicmigrants” or “not real refugees.”

This business-as-usual approach, which has continueddespite the April 2008 campaign of violence, coupled with the


tendency to describe all Zimbabweans in identical terms (asvoluntary economic migrants), allows the government toignore three awkward interrelated questions. What are SouthAfrica’s legal obligations towards Zimbabweans in SouthAfrica? What should South Africa do to meaningfully respondto their presence? How can the South African governmentmore effectively address the human rights violations andrepression causing their flight?


A note on the front door of the Refugee Ministries Centre, anNGO in Johannesburg, South Africa, assisting asylum seekerswith problems on their legal status. Between April 2006 andMarch 2007 almost 20,000 Zimbabweans claimed asylum inSouth Africa, making up about one-third of all asylumapplications in the country.

SOUTH AFRICA’S LEGAL OBLIGATIONSTO RECOGNIZE AND NOT DEPORTZIMBABWEAN REFUGEES FROMSOUTH AFRICA

South Africa has specific legal obligations not to deportZimbabweans who are lawfully present: those with temporaryresidence permits (visitors and workers, including farmworkers, in the tens of thousands) and those who haveclaimed asylum and who await a determination of their statusor who have been recognized as refugees (44,423Zimbabweans claimed asylum in South Africa between 2005and 2007; within the approximately 5,000 new asylumapplications processed each year, the government recognised241 Zimbabweans as refugees between 2004 and 2006).

Under international refugee law, those targeted underOperation Murambatsvina have strong claims for refugeestatus, but until now the South African asylum system has notconsidered them to be protected under the 1951 RefugeeConvention.

To successfully claim refugee status under the 1951 RefugeeConvention asylum seekers need to show that they cannot besent back to their country because they have a well-foundedfear of being persecuted on account of their “race, religion,nationality, membership of a particular social group orpolitical opinion.” Persecution is generally regarded as a“serious harm” that the government is responsible for causingor for being unwilling or unable to prevent.

Human Rights Watch believes that Zimbabweans who weretargeted by the forced evictions are refugees. This is becausetheir rights to shelter, work, food, and in many caseseducation and health care were and continue to be violated tosuch an extent that they would suffer serious harm if returnedto Zimbabwe, and because the Zimbabwean government,responsible for the original rights violations, continues to failto protect them against the effects of those rights violations.

Zimbabweans targeted by the evictions fear being persecutedbecause the Zimbabwean government sees them as apolitical threat. This is because the government views poorZimbabweans living in high-density suburbs as holding“political opinions” in opposition to it and because it viewsthose suburbs as fertile political ground for fomenting generalpolitical dissent.

This report argues that the South African government shouldensure that the asylum system recognizes that peopletargeted by the mass forced evictions have valid asylumclaims and that its refugee status determination staff isadequately trained to consider such claims in an efficient andlegally coherent way.

Ten years after the 1998 Refugees Actwas enacted, South Africa’s asylumsystem and deportation practicecontinue to be dysfunctional. Asylumprocedures create significant obstaclesfor Zimbabweans at every stage of theapplication process, particularly interms of gaining initial access to thesystem.

These obstacles often violate the mostfundamental provisions of SouthAfrican refugee law. Deportationpractice, including deportationfocusing specifically on Zimbabweansin the border areas, is often unlawful.There have been documentedviolations of the most basic principle ofinternational refugee law, the principleof non-refoulement, to which SouthAfrica is bound as a party to the 1951Refugee Convention, and the 1969 OAUConvention Governing the SpecificAspects of Refugee Problems in Africa.A person’s right not to be refouled isthe right not to be forcibly returned to aplace where she would face a threat ofpersecution or a real risk of torture orcruel, inhuman or degrading treatmentor punishment.

The dysfunctional nature of the asylumsystem and of current deportationpractices in South Africa means thatthere is a generalized high risk ofZimbabwean asylum seekers beingdeported. Under the principle of non-refoulement it is unlawful to deport anasylum seeker because the claim is yet to be processed.

Key to improving the system and thereby to preventrefoulement is resolving the ongoing challenge of a largebacklog of asylum cases. In September 2007 the SouthAfrican Department of Home Affairs (DHA) confirmed anasylum backlog of 76,400 cases filed before August 1, 2005.Progress made in reducing this old backlog risks beingrendered meaningless by the number of new applications.With a total of 105,000 cases lodged on or after August 1,2005, still not dealt with by the end of 2007, a new backlog isin the making. Until the asylum system is able to find a way ofdealing more efficiently with its caseload, the obstacles facedby Zimbabwean asylum seekers and the related risk ofrefoulement will continue.



Over 1000 refugees from Zimbabwe queue every Thursday andFriday in South Africa at Pretoria’s Marabastad Refugee ReceptionOffice to apply for asylum. Due to the dysfunctional nature of SouthAfrica’s asylum system, many find it impossible to gain access tothe office and those who do face repeated problems in securingdocumentation proving their status as asylum seekers.Documentation is essential to protect asylum seekers from arrestand deportation and gives them the right to work and study inSouth Africa.

SOUTH AFRICA’S LEGAL OBLIGATIONSTO ADDRESS ASSISTANCE NEEDS OFZIMBABWEANS IN SOUTH AFRICA

The South African government not only faces the presence oflarge numbers of Zimbabweans on its territory, but also aZimbabwean population with serious assistance needs. Thisis not a problem of South Africa’s making. Meeting the needsof Zimbabweans in South Africa is a global responsibility anddonor countries should support South Africa to enable it tomeet in particular the humanitarian needs of the mostvulnerable—the sick, including PLWHA, children, and theelderly.

South African law clearly provides that everyone in SouthAfrica, regardless of nationality or immigration status, enjoysa number of rights which address such needs: access to freeemergency health care, including to ART for people infectedwith HIV, to other forms of fee-based health care, and to basiceducation.

Recognized refugees have a number of additional rightsclearly spelled out in South African law and developed by thecourts that ought to guarantee them access to certain types ofsocial assistance. South African courts have yet to unequiv-ocally establish the rights of asylum seekers to certain formsof assistance such as housing, food, water, and socialsecurity, but asylum seekers do have the right to study andwork. Undocumented Zimbabweans, however, do not havethe right to work or other rights to social assistance, exceptaccess to emergency and basic health care.

Refugees and asylum seekers continue to face seriousobstacles in gaining access to many types of assistance towhich they are legally entitled, including access to healthcare, such as ART. Asylum seekers are often rejected byprospective employers who appear not to be aware of theirright to work. Undocumented Zimbabweans are unable toaccess medical treatment and face various other assistanceneeds. Nearly all Zimbabweans, documented or undocu-mented, have desperate accommodation needs. In 2007many South African charities reported an increase in thenumber of highly vulnerable Zimbabweans coming to theirdoors.

The May 2008 violence against tens of thousands ofZimbabweans and other foreign nationals, which followsmany similar isolated incidents throughout 2007 and early2008, has drawn dramatic attention to their vulnerability andneeds.

THE NEED FOR A BROAD-BASEDPOLICY FOR ALL ZIMBABWEANSIN SOUTH AFRICA

The crisis in Zimbabwe, including the ongoing government-orchestrated violence in 2008, means that hundreds ofthousands of Zimbabweans will remain in South Africa for theforeseeable future. Many more will join them. With the vastmajority having no hope of regularizing their stay, they willcontinue to enter and remain in the country without documen-tation in the hope of finding work to help themselves and theirfamilies in Zimbabwe survive.

Human Rights Watch believes that a broad-based policyaimed at regularizing the presence of Zimbabweans in SouthAfrica is the most appropriate legal and practical way forward.The policy’s components should include: a) allowingZimbabweans to enter South Africa legally; b) regularizingtheir status once in country; c) ending the deportation ofZimbabweans; and, d) giving Zimbabweans the right to workin South Africa on a temporary and reviewable basis.

There are at least eight legal and practical arguments for suchan approach:

First, regularization would allow South Africa to meet itsfundamental international legal obligations. Despite recentinitial steps to reform the asylum system, there is no practicalprospect of South Africa’s asylum and deportation systemsimproving in the short term. Therefore, Zimbabwean asylumseekers face the risk of being subjected to refoulement—forced return to persecution. These include possiblythousands of Zimbabweans who wish to claim asylum in lightof the political violence in Zimbabwe in 2008 and peopletargeted by Operation Murambatsvina, if they claim asylum inthe future. Because the current asylum and deportationsystems currently fail to adequately identify and protect manyZimbabwean asylum seekers, the only way to end theirunlawful deportation and to ensure that South Africa respectsits obligations under international law is to end deportation ofall Zimbabweans in South Africa.

Second, regularization would unburden the asylum system ofunnecessary claims. Because many Zimbabweans access theasylum system as the only way to regularize their legal statusand to obtain the right to work in South Africa, regularizingtheir status and giving them the right to work would helpreduce the number of claims in the asylum system.

Third, regularization would protect Zimbabweans during entryand stay in South Africa, including against xenophobicviolence at the hands of South African citizens. When crossinginformally into South Africa, large numbers of Zimbabweansbecome victims of serious criminal offences, including murder


and rape, committed by violent Zimbabwean peoplesmugglers. Once in South Africa, Zimbabweans’ undocu-mented status exposes them to violence at the hands ofSouth African citizens who almost certainly believe that theirvulnerable victims won’t report them to the police.Zimbabweans’ undocumented status also exposes them toexploitation by employers and to harassment by the SouthAfrican police. Helping Zimbabweans enter through formalborder crossings would attenuate predatory practices at theborder. Ensuring Zimbabweans are documented and can workwould significantly reduce their vulnerability to xenophobicviolence at the hands of criminals, to exploitation byemployers, and to corrupt police practices.

Fourth, regularization would offset the cost to the SouthAfrican taxpayer of ineffective deportation and wasteful use ofpolice resources. The vast majority of undocumentedZimbabweans are not identified or deported, and those whoare—up to 200,000 a year or more—return to South Africawithin days or weeks.

Fifth, regularization would provide data on hundreds ofthousands of currently undocumented Zimbabweans. TheSouth African government would know how many people arein the country, who they are, and where they live and work. Inthe event of problems that may arise whilst they are coveredby the status or when the status comes to an end, thegovernment would be able to identify people it registers underthe proposed scheme.

Sixth, regularization would help the authorities to enforceemployers’ minimum-wage obligations and create a levelplaying field, on which South African nationals could competefairly for jobs. This is all the more important given that muchof the xenophobic discourse reported in the South Africanpress focuses on allegations that Zimbabweans “steal” SouthAfrican citizens’ jobs.

Seventh, regularization leading to the right to work wouldaddress Zimbabweans’ humanitarian needs in South Africa,which would reduce the pressure on South African socialassistance programs. Because of their undocumented status,Zimbabweans in South Africa are often unable to find or keepjobs, which increases their humanitarian needs. GrantingZimbabweans the right to work in South Africa would helpthem fend for themselves, which would in turn reduce thenumber of desperate Zimbabweans seeking help from SouthAfrica’s social assistance programs.

Finally, regularization leading to the right to work would helpZimbabweans support desperate families remaining inZimbabwe, thereby possibly reducing the number ofZimbabweans fleeing their country for South Africa. The rightto work would enable Zimbabweans to send desperatelyneeded basic foodstuffs to their families in Zimbabwe. This, in

turn, might reduce the number of Zimbabweans, especiallythe most vulnerable—children, the elderly, PLWHA—coming toSouth Africa in search of work and food.

Given the large number of Zimbabweans believed to be inSouth Africa, the similar needs faced by all of them, and theoperational challenges involved in any response, HumanRights Watch believes that the government should adopt thesimplest, fairest, and most expedient approach. HumanRights Watch, therefore, urges the government to use itsdiscretionary powers under existing immigration law to grantZimbabweans in South Africa a limited number of the rightsfor a limited period of time and under specific terms andconditions. Under the 2002 Immigration Act, the minister ofhome affairs could establish a new temporary permit schemecalled “temporary immigration exemption status forZimbabweans” (TIES).

In practice the scheme would allow Zimbabweans to enterSouth Africa followed by regularization at registration centersfor all new arrivals and for all Zimbabweans already in SouthAfrica. On proving their nationality, Zimbabweans wouldreceive a permit which would clearly state that the holdercannot be deported and has the right to work for a limitedperiod of time. To ensure that South African citizensunderstand the need for such a temporary permit scheme, agovernment information campaign could make clear thathundreds of thousands of Zimbabweans are already workingwithout work permits in South Africa and that officiallygranting them the right to work would help to regulate theiraccess to the job market and help control wages.

SOUTH AFRICA’S ROLE IN ADDRESSINGTHE SITUATION, INCLUDING HUMANRIGHTS VIOLATIONS, IN ZIMBABWE

Over the past two years the deteriorating situation inZimbabwe has brought regional concern to a sharper focus. InMarch 2007 SADC mandated President Thabo Mbeki tomediate talks between the opposition MDC and RobertMugabe’s ZANU-PF, with the objectives of securing agreementon constitutional reform ahead of the March 2008 electionsand ending the economic crisis.

During its one year as mediator, the South African governmentrepeatedly championed a “quiet diplomacy” approach,avoiding statements that could be construed as critical ofPresident Mugabe, and leading to widespread criticism that itwas not sufficiently assertive. The government failed, forexample, to hold President Mugabe accountable toundertakings made during the talks. In line with SADC’sdeafening silence on human rights abuses committed in


Zimbabwe for the past eight years, the South Africangovernment also repeatedly failed to condemn the seriousrights violations carried out by the Zimbabwean securityforces.

The mediation initiative appears to have singularly failed toleverage change in President Mugabe and ZANU-PF’srepressive practices. The fact of the violent crackdown thatfollowed the parliamentary and presidential elections inMarch 2008 demonstrates the failure to send a clear messageto President Mugabe that there would be consequences forfailing to reach agreement with the MDC on how best toensure free and fair elections.

As the ZANU-PF organized violence has intensified building upto the June 27, 2008 presidential runoff elections, SouthAfrica’s response has remained deeply inadequate. Incontrast to other regional leaders, President Mbeki hasrefused to acknowledge the serious nature of the situation, forexample, failing during a visit to Harare on May 9 to condemnor call for an end to the violence, even after he received apreliminary report on the violence from a group of SouthAfrican former army generals he had appointed to investigatethe situation.

These different positions have prevented SADC and the AUfrom taking concerted and decisive action to intervene in thecrisis which has, in turn, emboldened the government ofZimbabwe to turn state institutions even more aggressivelyagainst Zimbabweans seeking democratic change and an endto the destruction of their country’s economy.

The South African government must abandon its discredited“quiet diplomacy” approach towards Zimbabwe and musturgently play a central role within the AU and SADC to pressurethe Zimbabwean authorities to end the current violence andtheir destruction of the democratic process.


Homeless and jobless, hundreds of Zimbabweanslive and sleep near Pretoria’s Refugee Reception Office,in South Africa, on disused land without any facilities.


This report is based on research conducted in SouthAfrica between 13 October and 12 November 2007,and on research conducted in Zimbabwe between 11and 19 February 2008.

In South Africa, in-depth interviews with 99Zimbabweans (56 female and 43 male) wereconducted by a Human Rights Watch researcher andby an independent South African legal consultant,students from the University of Cape Town, and staffworking with a legal assistance NGO in Pretoria, all ofwhom worked closely with the researcher. Interviewswere conducted in Cape Town, Johannesburg, andPretoria, and in rural areas close to Cape Town andPretoria. The locations were chosen because mostZimbabweans in South Africa are believed to live in ornear to one of South Africa’s cities.

Some interviewees were identified one or two days inadvance by South African and Zimbabwean civilsociety groups providing assistance or legal servicesto Zimbabweans. Others were identified on the day ofthe interviews by Human Rights Watch. Intervieweeswere identified and selected by explaining to groupsof Zimbabweans that Human Rights Watch wanted tospeak with people who had faced difficulties inZimbabwe relating to food, shelter, employment,health care, and education, and to people who hadbeen affected by Operation Murambatsvina (the 2005evictions). Interviews were conducted with a widerange of profiles including single men and singlewomen (with and without extended families inZimbabwe), couples with or without children, marriedmen and women who had left their partners and/orchildren in Zimbabwe, and female-headedhouseholds with and without their children in SouthAfrica. Interviews were conducted individually inconfidential settings, in English, and lasted anaverage of 45 minutes.

Human Rights Watch conducted a further 28interviews with government officials, members of theRefugee Appeals Board, UNHCR, South Africanlawyers, local and international NGOs, andacademics.

In Zimbabwe, two Human Rights Watch researchersconducted 26 interviews (18 female and 8 male) withZimbabweans in Harare and Bulawayo. Intervieweeswere identified with the assistance of a number oflocal NGOs providing assistance to people displacedby Operation Murambatsvina and to others in need ofsocial assistance. Interviews were conductedindividually in confidential settings and lasted anaverage of 45 minutes. Almost all were conducted inEnglish, though a small number were conducted inEnglish and Shona using local Shona speakers asinterpreters.

In Harare and Bulawayo, Human Rights Watchconducted a further 20 interviews with UN staff andwith staff from local and international NGOs.

Human Rights Watch did not publish in the report thenames of Zimbabweans who were interviewedbecause of a fear that the disclosure of their identitymight expose them to adverse consequences.

METHODOLOGY


IN RELATION TO ALL ZIMBABWEANS IN SOUTH AFRICA

• Use section 31(2)(b) of the 2002 Immigration Actto introduce a new “temporary immigrationexemption status for Zimbabweans” (TIES) whichallows Zimbabweans to legally enter SouthAfrica, regularizes their status, endsdeportations of Zimbabweans, and grants themthe right to work in South Africa.

• Cooperate closely with the United Nations HighCommissioner for Refugees (UNHCR) to put inplace a registration system for the new status.

• Ensure that all deportations of Zimbabweans arestopped pending implementation of this newstatus.

• In accordance with the South AfricanConstitution, ensure that all Zimbabweans inneed of emergency and basic medical care,including those in need of anti-retroviraltreatment (ART) and tuberculosis (TB) treatment,have access to such care.

• Ensure that the most vulnerable Zimbabweans,such as unaccompanied children, the elderly, andthe most sick (including the most vulnerablePLWHA) are provided with other forms ofemergency assistance such as food and socialwelfare assistance.

• Engage in a public information campaign todemonstrate to the South African people that:

- Zimbabweans’ decision to leave their countryand come to South Africa is fundamentallyinvoluntary;

- the deportation of Zimbabweans is ineffectiveand a waste of tax payers’ money;

- the simplest, fairest, and most effective wayto address the humanitarian needs ofZimbabweans in South Africa is to allowZimbabweans to fend for themselves throughgiving them the right to work; and that

- a regulated Zimbabwean work force will notundercut wages and opportunities for SouthAfrican workers.

• End its discredited “quiet diplomacy” approachpursued since March 2007 as SADC-sponsoredmediator between the MDC and ZANU-PF, andurgently play a central role within the AfricanUnion (AU) and SADC to pressure theZimbabwean authorities to end the currentviolence and their destruction of the democraticprocess.

RECOMMENDATIONS

TO THE GOVERNMENT OF SOUTH AFRICA

IN RELATION TO ZIMBABWEAN ASYLUM SEEKERS IN SOUTH AFRICA

• Take immediate steps to ensure that noZimbabwean asylum seekers, including thosefleeing the 2008 post-election repression andviolence, are deported from South Africa.

• Officially recognize that despite ongoing reforms,the current dysfunctional state of the asylumsystem and deportation practices combine tocreate a high risk of refoulement forZimbabweans.

• Ensure that Zimbabweans are given adequatedocumentation at all stages of the asylumprocess to protect them against arrest,detention, and deportation.

• Use the opportunity provided by the currentreforms to the asylum system to cooperate withUNHCR and South African nongovernmentalorganizations (NGOs) to ensure that RefugeeStatus Determination Officers receive regular andin-depth training on international refugee law,including ongoing on-the-job training.

• Ensure that directors of the five RefugeeReception Offices and all Refugee StatusDetermination Officers interviewingZimbabweans who have been targeted byOperation Murambatsvina are instructed toconsider such people as having, as a matter ofprinciple, strong asylum claims and to ensurethat they interview such applicants in-depth inorder to establish their potential claim.

• If the proposed “temporary immigrationexemption status for Zimbabweans” is notadopted, create a specific team of Refugee StatusDetermination Officers in each of South Africa’sfive Refugee Reception Offices with the specifictask and expertise required to review asylumclaims by people directly targeted by OperationMurambatsvina.



RECOMMENDATIONS

TO UNHCR IN SOUTH AFRICA

• Assist the Department of Home Affairs inestablishing a new “temporary immigrationexemption status for Zimbabweans,” inparticular through registration procedures.

• Recognize that people targeted by OperationMurambatsvina have strong prima facie claimsto refugee status under the 1951 RefugeeConvention.

• Work in close cooperation with the Departmentof Home Affairs and South African civil society toprovide regular and in-depth training to RefugeeStatus Determination Officers in internationalrefugee law, including to special teams focusingon asylum claims made by people targeted byOperation Murambatsvina.

TO INTERNATIONAL DONORS

• Encourage the Government of South Africa tointroduce a new “temporary immigrationexemption status for Zimbabweans” (TIES).

• Provide financial and technical assistance to thegovernment of South Africa to put in placesystems to help implement the new status.

• Provide financial assistance to UNHCR and SouthAfrican civil society to assist them to provideregular in-depth training to Refugee StatusDetermination Officers in refugee law.

• Provide the South African government withfinancial assistance to ensure that particularlyvulnerable Zimbabweans, such as unaccom-panied children and the very sick, have access tomedical care and food.

• Provide all necessary support to Southern AfricaDevelopment Community (SADC) governments toassure continuity of care for People Living withHIV/AIDS (PLWHA) and tuberculosis (TB) patientson anti-retroviral treatment (ART) and DirectlyObserved Therapy, Short-Course (DOTS)treatment who move between states, and toensure synchronization of standards(e.g. recognition of medical tests) and removeeligibility barriers for donor-supportedtreatment.


A street child sells bread in the evening on theblack market in the densely populated area ofWarrenpark in Zimbabwe’s capital, Harare.


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