IN January 2020, South Africa’s Home Affairs Minister Aaron Motsoaledi announced the introduction of new regulations which could have significant implications for the engagement in any political activity of refugees or asylum seekers in the country.
The new regulations, titled The Refugees Act 1998 (Refugee Regulations) 2019 (the “regulations”), nullify the right of refugees in South Africa to engage in any political activity, even activities relating to their country of origin during their stay in South Africa. Rule 4(1) is of particular concern and the subject of the following discussion.
It provides that a refugee or asylum seeker may not participate “in any political campaign or activity related to his country of origin or nationality while in the Republic without the permission of the Minister”. In addition, Rule 4(2) states that “no refugee or asylum seeker shall participate in any political activity or campaign in the service of any political party or political interests in the Republic”.
During the public hearings on these amendments, it was announced that the regulations were introduced because of the “…need to ensure national security by admitting genuine refugees and not bogus asylum seekers and by protection against those who abuse the asylum system, including the possibility of using the asylum system as a conduit for human trafficking.”
Contrary to the justifications provided by the South African government, the regulations present two main problems that will be discussed in this article. First, the term “political campaign or activity” is not defined and remains too vague. Second, a total ban on the political activities of refugees is a violation of international human rights law.
Regulatory provisions too vague
The first problem with the regulations is that the term “political campaign or activity” is not defined. The absence of any definition in such circumstances necessarily renders the statute vague, which is most often prohibited by procedural and constitutional standards in democratic jurisdictions, including South Africa.
The vagueness of this provision casts a wide net, with the result that refugees or asylum seekers (or for that matter any advocate assisting them) can in no way assess the type of activities they can or cannot cannot undertake.
Sally Gandar, Advocacy Officer at the Scalabrini Center in Cape Town, expressed concern about the lack of definition of the term ‘political activity’, commenting that: “We believe it is far too broad and vague to be applicable. Laws should provide certainty, this one does not. The Minister said what they meant by this term is the same as what is stated in Article 23(2)(i) of the African Charter of human and peoples’ rights.
However, measures to prevent “subversive activities” generally do not include a total ban which only applies to a whole minority part of an entire country on the basis of nationality (refugees and asylum seekers in this case). Moreover, to consider “political activity” as meaning or even akin to “subversive activities” suggests that “subversive” is synonymous with “politics”, which would be an absurd (and very problematic) interpretation.
New Amendments vs International Law
Second, the regulation’s outright ban on refugee political activity, which is supposed to prevent the admission of bogus asylum seekers, is unlikely to be justified under international law. The UN Human Rights Committee (HRC) has previously rejected states’ arguments that restrictions are needed to prevent “subversive activities” when such information is unfounded.
In Pietraroia v. Uruguay, the HRC stated that: “Mere information from the State party that X was charged with subversive association… is not in itself sufficient, without details of the alleged charges and copies of court proceedings.”
Political restrictions are also contrary to the rights guaranteed by the International Covenant on Civil and Political Rights (“ICCPR”), in particular art. 19 (right to hold opinions without interference), s. 21 (right to peaceful assembly) and art. 26 (prohibition of discrimination).
The HRC further stated that “(foreigners) have the right to freedom of thought, conscience and religion, as well as the right to hold opinions and to express them. Foreigners enjoy the right to peaceful assembly and freedom of association”.
Express recognition was given to refugees and asylum seekers (as opposed to foreigners in general) by the HRC when it stated that the rights set out in the ICCPR “must also be available to all individuals, regardless of their nationality or statelessness, such as asylum seekers and refugees”. .
Thus, while the ICCPR does not explicitly say that it applies to categories of non-citizens, a United Nations body has expressly said that nationality or country of birth is irrelevant, except for the few rights that are reserved for citizens (Nermeen S Arastu , 2022).
Additionally, the wording used throughout the ICCPR helps to show that the provisions of the ICCPR apply to all persons, regardless of their nationality or immigration status.
Article 2 of the ICCPR, for example, states that any state party to the ICCPR must respect and ensure to “all individuals within its territory” that the rights recognized in the ICCPR can be enjoyed without distinction of any kind, such as such as race, color, sex, language, religion, political or other opinion, national or social origin, property or “birth or other status”.
In conclusion, the general prohibition of discrimination set out in Article 26 of the ICCPR also applies because of its wording, referring to “all persons” being equal before the law and entitled to equal law without discrimination “on any ground whatsoever race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status.”
In this regard, the HRC stated as early as 1986 that, as a general rule, “each of the rights of the covenant must be guaranteed without discrimination between citizens and foreigners.
“Foreigners must benefit from the general requirement of non-discrimination in respect of the rights guaranteed by the pact” (Nermeen S. Arastu, 2022).
Mary-Anne Mutero is a student in international relations at the African University of Mutare. She writes here in a personal capacity.