The divergence between refugee law and policy in South Africa: a critical analysis of compliance with international obligations
Date
2020
Authors
Stone, Lee
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Abstract
Colonialism’s raison d’être – underpinned by Social Darwinism – was to create a hierarchy between the “different” racial categories to privilege and secure access to status and resources by the colonists. It is argued that this was achieved through the transplant of legal principles, electoral systems and judicial institutions from the developed world despite these concepts and institutions not being suitable to the context within the colony. Empirical studies document that this is unsustainable, revealing that the inevitable consequence is a vicious cycle of violence, expropriation of assets and policies altered overnight. More succinctly, this is described as resistance to the rule of law. Although the democracy created to transform South Africa in the 1990s was designed to assist people in authentically exercising and enjoying their constitutional rights, facilitate individual self-realisation and advance social cohesion, what has emerged is “a politics of citizenship”, perpetuating colonial race classification and reifying contempt for the other. It is doubtful whether a more appropriate explanation for South Africa’s challenges exists, specifically when viewed from the perspective of compliance with international refugee law obligations; the subject of the present study and one of the clearest indications that what South Africa requires is systematic decolonisation. What should have immediately preceded the transition to democracy is what is termed “creative destruction” by economists such as Joseph Schumpeter. A process such as this would have introduced inclusive economic and political institutions. Instead, the decision was taken to continue utilising the transplanted exclusive institutions that had operated since colonisation on account of their “strength”. The most serious error in this regard was the failure to adequately capacitate and empower these institutions, hence South Africa followed the “path-dependent” route with fragmentation and exclusion being the enduring characteristic of South African society. The binary/dichotomous labels “friends, citizens, thieves and enemies” employed during colonisation and apartheid are a continuing feature of South Africa. Refugees suffer the worst, with 96% of refugee status applications being rejected, in defiance of the rule of law. Detailed knowledge and understanding of South Africa’s history is fundamental to the determination of South Africa’s future; a future that is at present rather precarious and which requires strategic intervention in order to secure its stability. In The Psychology of Social Change de la Sablonnière et al argue that for society to “get along and get ahead” one mechanism is to construct a historical narrative. The purpose is to re-create a precise cultural identity because this is pivotal for higher levels of self-esteem and psychological well-being. The rationale is that long term goals can be prioritised based on this cultural identity; and they can be effectively implemented. Alongise cultural identity, a culture of respect for the rule of law is imperative to avoid the continuing cycle of violence, poverty and deprivation. Developing this position, Levi and Epperly emphasise that “wide-scale compliance with the law then enhances the ability of government to provide law and other public goods that the rule of law facilitates”. The argument permeating this study of South Africa’s compliance with international refugee law and policy is that values inherent in our humanity – particularly ubuntu – hold the key to the termination of oppression that persists despite the transition to democracy
Description
A thesis submitted in fulfilment of the requirements for the degree of the Doctor of Philosophy, University of the Witwatersrand, Johannesburg, Faculty of Commerce, Law and Management , 2020