Adapting to changing legal frameworks: Mozambican Refugees in South Africa

International Journal of Refugee Law

Volumn 19, Issue 1, 2007, Pages 22-50

  Polzer, Tara ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; IMMIGRATION POLICY; INTERNATIONAL MIGRATION; LEGISLATION; REFUGEE;

AFRICA; MOZAMBIQUE; SOUTHERN AFRICA; SUB-SAHARAN AFRICA;

EID: 34548335369     PISSN: 09538186     EISSN: 14643715     Source Type: Journal    
DOI: 10.1093/ijrl/eem001     Document Type: Article

References (95)

1. As the discussion below illustrates, labeling Mozambicans in South Africa is difficult. Even though Mozambicans fleeing the war were only formally recognized as refugees for three years after the end of the civil war (1993-1996), and their progressive integration means the label may lead to misleading assumptions, I will use the terms 'refugees' and 'former refugees' to distinguish them from Mozambicans who came to South Africa as labour migrants before the mid 1980s or after 1992.
2. This stands in contrast to 'legalizing' by purchasing fraudulent documents from private suppliers, which is a difficult issue in South Africa, as elsewhere, but is not part of this discussion on the interaction of refugees and the state.
3. This is by no means particular to rural areas, however, as studies of the Refugee Reception Offices in Johannesburg and Pretoria have shown. See L.A. de la Hunt, Tracking Progress: Initial Experience with the Refugees Act, 130 of 1998 Johannesburg: National Consortium of Refugee Affairs, 2002).
4. There is some debate about the appropriate name for people who speak the Shangaan or Tsonga languages in South Africa. I use the term and spelling 'Shangaan' to refer to people in Bushbuckridge District because this is closest to the name used by South African and Mozambican XiShangaane-speakers in Bushbuckridge District when they speak about themselves in English.
5. See J. Crush, D. McDonald, 'Introduction to Special Issue: Evaluating South African Immigration Policy After Apartheid' (2002) 48 Africa Today 1-13;
6. S. Peberdy, 'Imagining Immigration: Inclusive Identities and Exclusive Policies in Post- 1994 South Africa' (2002) 48 Africa Today 14-32, for discussions on the historical continuity of restrictive immigration policy in the old and new South Africa.
7. J. Crush, V. Williams (eds.), The New South Africans? The Immigration Amnesties and their After math (Cape Town: Idasa, 1999).
8. S. E. Katzenellenbogen, South African and Southern Mozambique; Labour, Railways and Trade in the Making of a Relationship (Manchester: Manchester University Press, 1982);
9. P. Harries, Work, Culture and Identity: Migrant Labourers in Mozambique and South Africa, c. 1860-1910 (Portsmouth, London and Johannesburg: Heinemann, James Currey and Witwatersrand University Press, 1994).
10. M. Newitt, A History of Mozambique (London: Hurst and Company, 1995).
11. This number is extrapolated from church food distribution records in rural areas, and includes an estimate of urban-based refugees, as calculated by Chris Dolan.
12. Crush and McDonald, n. 5 above.
13. Crush and Williams, n. 6 above, 2
14. South African Shangaans today also readily acknowledge that all South African Shangaan and Tsonga-speakers migrated from Mozambique into the Transvaal region in the mid to late 1800s, linking all Shangaan-speakers to a relatively recent Mozambican past. This connection was further kept alive through extensive labour migration across the border from the early 1900s onward.
15. C. Dolan, The Changing Status of Mozambicans in South Africa and the impact of this on repatriation to and re-integration in Mozambique (Maputo: Norwegian Refugee Council, 1997) endnote 120.
16. G. Rodgers, When Refugees Don't Go Home: Post-War Mozambican Settlement Across the Border with South Africa, PhD Thesis, Anthropology (Johannesburg: University of the Witwatersrand, 2002), 15.
17. M. Smith 'Warehousing Refugees: A Denial of Rights, a Waste of Humanity', in M. Smith World Refugee Survey (Washington D.C., 2004).
18. Personal communication, Vusi Nkuna, son of a Chief in Gazankulu.
19. C. Dolan, S. M. Tollman, et al., 'The Links Between Legal Status and Environmental Health: A Case Study of Mozambican Refugees and their Hosts in the Mpumalanga (Eastern Transvaal) Lowveld, South Africa' (1997) 2 Health and Human Rights, 62-84.
20. Refugee working in Johannesburg, interviewed in Protea North, 27 Mar. 1995, quoted in C. Dolan, n. 16 above.
21. Crush and McDonald, n. 5 above, 2.
22. S. Tollman, K. Herbst, et al., The Agincourt Demographic and Health Study: Phase 1. (Johannesburg: Department of Community Health, University of the Witwatersrand, 1993).
23. UNHCR, Dec. 1993, 'Guidelines for Refugee Status Determination of Mozambicans in South Africa, Point 5'.
24. Tri-partite Agreement between the Government of the Republic of South Africa, the Government of the Republic of Mozambique and UNHCR for the voluntary repatriation of Mozambican Refugees from RSA, Maputo, 15 Sept. 1993.
25. C. Dolan, 'Repatriation from South Africa to Mozambique - Undermining Durable Solutions?' in Black and Koser (eds.) The End of the Refugee Cycle? Refugee Repatriation and Reconstruction (New York, Oxford: Berghahn Books, 1999).
26. M. Reitzes, and N. Crawhall, 'Accessing the SADC Amnesty: The Urban Experience' in J. Crush and V. Williams (eds.), n. 6 above, 37.
27. United Nations Convention relating to the Status of Refugees, 1951, Arts. 17 and 18.
28. C. Dolan, n. 13 above, 37.
29. C. Dolan, n. 23 above, 98f.
30. UNHCR, Mozambique, repatriation and reintegration of Mozambican refugees (Maputo: UNHCR Mozambique, 1996).
31. A. Wa Kabwe-Segatti, A. (2002). 'Du Rapatriement Volontaire au Refoulment Dissimule; Les Refugies Mozambicains en Afrique du Sud', 85 Politique Africaine 75-92, at 76.
32. C. Murray, 'Mozambican Refugees: South Africa's Responsibility' (1986) 2 South, African Journal on Human Rights 154-163.
33. Art. 33 of the 1951 UN Convention states that 'no contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened'. South Africa deported 222,840 Mozambicans from 1988-1992, during the height of the civil war. Dolan, n. 13 above, 31.
34. Rodgers, n. 14 above, 12.
35. I mean here that Mozambican refugees did not think of themselves as refugees in the international legal sense, with expectations of international aid or specific legal rights. Their identity as people fleeing war was indeed strong, and limited food aid from local churches did construct them as a specific category of people needing assistance more than poor locals, although it was never enough to create dependence.
36. G. Rodgers, 'Structuring the Demise of a Refugee Identity: The UNHCR's "Voluntary Repatriation Programme" for Mozambican Refugees in South Africa', in de Wet and Fox (eds.) Transforming Settlements in Southern Africa. (Edinburgh: Edinburgh University Press, 2001).
37. Dolan, n. 23 above.
38. Dolan, n. 13 above, ii.
39. Dolan, n. 23 above, 99.
40. B. S. Chimni, 'From Resettlement to Involuntary Repatriation: Towards a Critical History of Durable Solutions to Refugee Problems'. New Issues in Refugee Research 2 (1999), 10.
41. N. Johnston and C. Simbine 'The Usual Victims: The Aliens Control Act and the Voices of Mozambicans' in Crush (ed.) Beyond Control: Immigration and Human Rights in a Democratic South Africa (Kingston/ Cape Town: Southern African Migration Project/Institute for Democracy in South Africa, 1998).
42. Dolan, n. 13 above, 15.
43. Dolan, n. 13 above.
44. This was the comment of a middle-aged Mozambican woman when approached for permission to hold an interview, Aug. 2004, Bushbuckridge, SA.
45. Dolan, n. 23 above, Rodgers, n. 14 above.
46. Crush and Williams, n. 6 above, 2.
47. Interview in Matongomane, Mozambique, 25 Apr. 1996. All interviews quoted from Mozambique were carried out by Caetano Simbine under the direction of Chris Dolan, for the Wits Refugee Research Programme.
48. Peberdy, n. 5 above.
49. Dolan, n. 13 above, 40.
50. The Wits RRP was centrally involved in both processes, along with other research institutions, NGOs and legal organisations.
51. Dolan, n. 13 above, 97.
52. Interview in Simbe, Mozambique, 17 Apr. 1996.
53. Interview in Block 7, Mozambique, 25 Apr. 1996.
54. Interview in Matongomane, Mozambique, 25 Apr. 1996.
55. Interview in Matongomane, Mozambique, 25 Apr. 1996.
56. Rodgers, n. 14 above.
57. Interview with Ward Councillor, Bushbuckridge, SA, 6 Apr. 2004.
58. A person ceases to be a refugee once 'the circumstances in connection with which he has been recognized as a refugee have ceased to exist' (Art. 1, c 5).
59. D. Lockey, 'The Objectives of Amnesty' in Crush and Williams, n.6 above, 25.
60. Peberdy, n. 5 above, 20.
61. J. Handmaker and J. Schneider, 'The Status "Regularisation" Programme for Former Mozambican Refugees in South Africa' RULA Working Paper (Johannesburg: School of Law, University of the Witwatersrand, 2002), 8.
62. Dolan, n. 13 above,
63. Johnston and Simbine, n. 38 above,
64. Reitzes and Crawhall, n.24 above,
65. Human Rights Watch, '"Prohibited Persons": Abuse of Undocumented Migrants, Asylum-Seekers, and Refugees in South Africa'. (New York, Washington, London and Brussels: Human Rights Watch, 1998).
66. This assertion is based on five years of community meetings and advice work by the Wits Acornhoek Advice Centre, which assists poor communities in Bushbuckridge with issues of documentation. Approximately 70% of the AAC's clients are former Mozambican refugees. During this period, the AAC was affiliated with the Wits Citizenship and Boundaries Initiative.
67. Interview, Bushbuckridge, SA, 6 Apr. 2004.
68. D. A. McDonald, L. Mashile, et al, 'The Lives and Times of African Migrants and Immigrants in Post-Apartheid South Africa'. 13 SAMP Migration Policy Series (1999), 60.
69. Although there are no reliable statistics, a calculation based on the original estimated refugee arrivals and subsequent amnesty figures, combined with the experience of organizations such as the Wits AAC, allows us to estimate that c. 40,000 former Mozambican refugees remain without documentation.
70. Crush and Williams, n.6 above, 5.
71. F. de Vletter, 'Labour Migration to South Africa: The lifeblood of southern Mozambique' in McDonald (ed.) On Borders; Perspectives on International Migration in Southern Africa (Kingston/New York, SAMP/ St. Martin's Press: 2000), 67.
72. Crush and Williams, n. 6 above, 3.
73. Ibid, 7.
74. Reitzes and Crawhall, n. 24 above, 37.
75. Johnston, N. 'Accessing the SADC Amnesty: The Rural Experience', in Crush and Williams, n. 6 above.
76. Ibid.
77. Ibid.
78. Personal communication, Chris Dolan and Vusi Nkuna, 2004. In fact, the population of the village concerned was 73 % Mozambican, according to a house to house survey done three years earlier by the Community Practice Project (now Wits Agincourt Health and Population Unit).
79. Handmaker and Schneider, n.59 above, 22.
80. Dolan, n. 13 above.
81. N. Johnston, 'The Point of No Return: Evaluating the Amnesty for Mozambican Refugees in South Africa'. 6 SAMP Migration Policy Brief (2001).
82. Handmaker and Schneider n. 59 above.
83. Handmaker and Schneider, n. 59 above, 8.
84. N. Johnston, 'Homeward-bound' Mail and Guardian. Johannesburg, Oct. 1 to 7, 1999, 42
85. Johnston, n. 76 above,
86. Handmaker and Schneider, n. 59 above.
87. Ibid.
88. Department of Home Affairs, Departmental Circular No. 34 of 1999. Draft Guidelines for the Exemption for the Mozambican Refugees in Terms of Section 28(2) of the Aliens Control Act, 1991 from the Provisions of Section 23(a) of that Act, 15 July 1999.
89. Johnston, n. 76 above.
90. Interview, Bushbuckridge, SA, 7 May 2004.
91. Statistics South Africa, Measuring Rural Poverty. (Pretoria: Statistics South Africa, 2002).
92. The case was brought by the Wits Acornhoek Advice Centre and argued through the courts by the Legal Resources Centre, Pretoria.
93. Khosa & Others v. Minister of Social Development and Others [2003] CCT 12/03 and Mahlaule & Another v. Minister of Social Development and Others [2003] CCT 13/03.
94. Constitution of the Republic of South Africa, Act 108 of 1996, Epilogue.
95. Judge Mokgoro's Judgement in the cases Khosa & Others v. Minister of Social Development and Others [2003] CCT 12/03 and Mahlaule & Another v. Minister of Social Development and Others [2003] CCT 13/03, 58, http://www.constitutionalcourt.org.za/Archimages/1344.PDF.