Xenophobia Investigation: Rule of Law, Justice, and Impunity

1. Xenophobia Investigation South African Human Rights Commission Issues of Rule of Law, Justice andImpunity arising out of the 2008 PublicViolence against Non-Nationals

2. Impunity undermines rule of law. Rule of law is a precondition for the realisation of rights. Human rights cannot be protected nor redress achieved without access to justice. Rationale for FOCUS ON RULE OF LAW, JUSTICE & IMPUNITY

3. INTERNATIONAL LAW UN Convention Relating to the Status of Refugees 1951 UN Convention on the Elimination of All Forms of Racial Discrimination 1965 African Charter on Human and Peoples’ Rights 1981 African Commission Resolution on Ending Impunity in Africa 2005 LEGAL AND POLICY FRAMEWORK (1)

4. DOMESTIC LAW The Constitution – right to life, freedom and security of person, freedom of movement; freedom from discrimination and arbitrary deprivation of property. Immigration Act 2002 – duty to deter xenophobia Refugees Act 1998 – protection against refoulement Disaster Management Act 2002 and National Disaster Management Framework 2005 – duty to assess, monitor and manage risk LEGAL AND POLICY FRAMEWORK (2)

5. Background information requested from civil society through Consortium for Refugees and Migrants in SA (CoRMSA) Submissions requested from nine national government ministries and two Chapter 9 institutions in addition to SAHRC Submissions requested from three provincial governments most affected in 2008 (Gauteng, KwaZulu-Natal, Western Cape) Submissions requested from five most affected municipalities (Ekurhuleni, Johannesburg, Tshwane, eThekwini, Cape Town) Interviews with local police and focus groups with community members in three affected communities (Ramaphosa, Cato Manor, Masiphumelele) INVESTIGATION STRUCTURE

6. Little institutional memory of similar social conflicts prior to 2008 (eg Masiphumelele) Almost no evidence provided of the resolution and management of pre-2008 conflicts – lost opportunity to learn Key state institutions have not recorded institutional memory of the 2008 attacks either – eg Ministries of Police, Defence and Military Veterans, Home Affairs, Cooperative Governance and Traditional Affairs (responsible for implementation of Disaster Management Act) Little evidence provided of state-led conflict resolution initiatives in affected communities post-2008 violence FINDING 1: INSTITUTIONAL MEMORY OF PRIOR CONFLICTS Recommendations concern: The need to record institutional learning and channel this learning into specific plans and actions.

7. Prior to 2008, no mechanism existed to monitor ‘xenophobic’ climate. National Police have since initiated a desk on crimes against non-nationals to attempt to track patterns of crime that might indicate heightened risk. Information obtained by the desk informs additional deployment of police to at-risk areas National Police have initiated regular security assessments with regard to xenophobia, and provincial police are notified where appropriate A representative of National Police participates in the Protection Working Group – a forum for the protection of non-nationals led by UN agencies Role of NIA remains obscure as it did not make a submission FINDING 2: EARLY WARNING Recommendations concern: The need to publicise, monitor, evaluate and consistently improve early warning mechanisms, and form partnerships in government to facilitate and coordinate responses.

8. Security forces were not able to prevent the spread of or halt attacks before substantial displacement and losses of life and property occurred Media coverage of apparent chaos seen to inspire opportunistic attacks Affected police stations were not equipped to protect both life and property and thus focused on preserving life by helping non-nationals Community members felt conflict ended because the source of conflict had been removed through displacement or evacuation Backup units became more thinly spread as new attacks emerged Earlier SANDF deployment could have made the security response more visible, thus restoring the rule of law more quickly and effectively Delay in declaration of provincial disasters impacted the work of police stations sheltering non-nationals. FINDING 3: MITIGATION Recommendations concern: The need for SAPS and SANDF to develop guide- lines for future cooperative service, and the need for SAPS to boost deployment of backup units in social conflict situations.

9. More marginal, less visible groups of non-nationals more vulnerable during attacks – eg Masiphumelele Some groups of non-nationals feel excluded from community structures or choose not to participate as they feel threatened/unwelcome Yet organised /participating non-national groups more likely to receive assistance Together with CoRMSA, Gauteng Department of Community Safety has begun an initiative to include non-nationals in Community Policing Forums (CPFs) FINDING 4: PARTICIPATION IN COMMUNITY STRUCTURES Recommendations concern: The need for targeted interventions led by municipalities in at-risk communities; incorporation of non-nationals into community structures; and attention to issues of social cohesion as proposed by the Department of Social Development.

10. Affected areas tend to share: 1) poor relationships between local residents and key officials; and 2) indifferent, corrupt or authoritarian leaders Trust in police poor across all areas visited – encourages withdrawal from the official justice system ‘Absentee councillors’ in two out of three areas visited One councillor tried to dissolve CPF Prevalent feeling that communities must rely on their own devices to care for and protect themselves FINDING 5: GRASSROOTS DEMOCRATIC GOVERNANCE Recommendations concern: The need for councillors to be held accountable; for better oversight of local institutions; for recognition that leaders do not necessarily serve community interests.

11. Informal living conditions make urban communities more vulnerable to public violence Lack of road infrastructure, street names, street lights, and shack numbers, among other things, hindered policing of the 2008 violence Lack of tenure records poses a dilemma in resolving cases of shacks appropriated during public violence or displacement Need for satellite police stations FINDING 6: MANAGEMENT OF URBAN PERIPHERIES Recommendations concern: The need for policy on the partial formalisation of informal settlements and a management approach to informal settlements as an interim measure to preserve human security until formal housing is achieved for all.

12. Prior campaigns failed to prevent violence against non-nationals Roll-Back Xenophobia campaign, 2004 Open Hearings, DHA Counter-Xenophobia Unit (CXU) – lack of systematic monitoring or evaluation National Action Plan (NAP) to combat Racism makes recommendations, but has no implementing mechanism We remain uncertain what works in countering xenophobic attitudes, and whether awareness-raising campaigns work at all Dangerous myth that links non-nationals to crime: Many community members believe that when police cannot trace a criminal, it means that the perpetrator is not South African, as South Africans are fingerprinted when they apply for an ID book. This is false – SAPS cannot access DHA records. FINDING 7: ANTI-XENOPHOBIA CAMPAIGNS Recommendations concern: The need to monitor and evaluate counter- xenophobia activities; incorporate them into the national syllabus and social cohesion activities within municipal integrated development programming; ensure they reach all at-risk communities; promote the role of the NAP and NFAR in addressing xenophobia.

13. Weaknesses in intergovernmental coordination and institutional processes hindered the response to the 2008 crisis. Lack of experience, planning and systems to deal with 2008 crisis both logistically and financially (Western Cape has since drafted Proposed Social Conflict Emergency Plan based on the 2008 experience) Confusion over leadership and responsibility for various roles Communication bottlenecks caused delays and conflict DHA did not have capacity to implement its strategic decisions Chapter 9 institutions lacked effective coordination, capacity and direction Need for existing provincial and local reviews of the disaster response to be consolidated into a national level evaluation and action plan FINDING 8: INSTITUTIONAL PREPAREDNESS Recommendations concern: The need for greater authority to be given to the NDMC; for evaluations and action plans by all provinces and municipalities, contributing to a national disaster management evaluation, action plan and guidelines to promote consistency; and for a DHA evaluation and action plan.

14. Police were unable to protect displaced persons’ property during the May 2008 attacks, leaving them destitute Homes looted during displacement – in some cases had to be bought back from those who appropriated them Limited police resources and challenges of informal environment affected policing (capacity and human resources have since been increased – more public order police and tactical training to station-level police) Property evacuation took place but diverted police resources and presented challenges in terms of storage and reclamation Difficult to protect home without records of tenure Red Ants rebuilt and guarded shacks in 6 Gauteng settlements FINDING 9: PROTECTION OF PERSONS AND PROPERTY Recommendations concern: The need for police contingency plans; review of standing orders and operational protocols; formalisation of informal settlements; promotion of links between police and non-nationals; use of community-based approaches to protection of deserted property.

15. Disaster Management Act (DMA) was not fully implemented Delays/lack of provincial declarations of disaster led to conflicts and evasion of responsibility for service provision and protection of displaced persons Abuses of process in handling of non-registering displaced persons at Glenanda displacement site in Gauteng Legal action taken against DHA for irregularities in the handling of refugees and asylum seekers arrested after refusing to register for temporary permits Inadequacies in DHA processes with respect to displaced persons Lack of capacity led to breaches of due process – such as lack of interpreters, irregularities in the accelerated refugee status determination process, lack of refugee relief funding Possible refoulement Voluntary repatriation/intolerable living conditions may have led to refoulement FINDING 10: ADMINISTRATIVE JUSTICE Recommendations concern: The need to ensure that the DMA is adhered to; the need for appropriate conduct by DHA in accordance with the law; the need for monitoring and evaluation of DHA response and practices; the need for proactive efforts by DHA to deter constructive or ‘voluntary’ refoulement during a crisis.

16. ‘Reintegration’ of displaced persons did not take place consistently or sustainably and is not being adequately monitored ‘Reintegration’ a misleading term – were non-nationals previously integrated? Poor conditions and deliberate service withdrawal caused unmanaged ‘self-reintegration’ Lack of communication from Gauteng province prevented effective functioning of other organs Closure of sites in Gauteng in contravention of interim ruling of Con court Reintegration may have led to withdrawal of charges by some victims Inadequate monitoring of safety after reintegration FINDING 13: Reintegration Recommendations concern: The need for clarity on the closure of the Gauteng displacement sites; the need for provincial Social Conflict Emergency Plans and reintegration planning; the need to ensure reintegration does not compromise safety and the ends of justice.

17. No consistency on issue of reparations Amounts different in Gauteng and Western Cape Idea that ‘illegal’ non-nationals were not entitled to reparation – universal guarantee of security of person and equality before the law in Constitution contradicts this approach FINDING 14: RePARATIONS Recommendations concern: The need for social conflict disaster planning to incorporate a clear policy on reparations, providing for consistency across geographic locations and between claimants.

18. Poor relationship between affected communities and the police and wider judicial system Police seen as unresponsive and some members corrupt and cooperating with local criminal – undermines confidence in system Residents afraid to report crimes due to risk of being targeted by the accused Unwillingness to participate in the court process – eg testify Residents complain that justice system is failing to remove criminals from their communities – vicious cycle of withdrawal from system Reintegration – community demands and local practices sometimes further undermine the rule of law Those who speak for ‘the community’ do not necessarily represent it FINDING 15: COMMUNITY PERSPECTIVES ON JUSTICE AND THE RULE OF LAW Recommendations concern: The need for best practice guidelines on community mediation; to present the risk of intimidation when opposing bail for suspects; to avoid supporting the dropping of charges during reintegration initiatives; to consider formal restorative justice solutions.

19. Poor judicial outcomes limited attainment of justice for victims and have resulted in a high degree of impunity Great effort by NPA and SAPS to promote judicial outcomes, but to limited effect (NPA now monitoring ‘xenophobia-related’ cases going forward) Delays due to case flow management, shortage of investigators, forensic capacity and court capacity, availability of interpreters Lack of consistency in requesting special courts – but these did add efficiency in WC Limited number of cases opened and arrests made in relation to scale of violence High levels of case withdrawal due to various factors including difficulty tracing complainants and witnesses who left the country under the time pressure of case prioritisation. Measures could be taken to address these factors. Still no clarity on who instigated attacks in certain areas FINDING 16: JUDICIAL OUTCOMES Recommendations concern: The need for evaluation of the SAPS/NPA joint response, with recommendations and best practice guidelines; the need to cite risk of intimidation when opposing bail; the need for community-based campaigns to promote participation in the justice system; the prospect of using media footage to assist investigations.

20. Instances of misconduct raised in research and media, but seemingly not reported to the Independent Complaints Directorate (ICD) or Public Protector. Claims of misconduct by officials staffing displacement sites Claims of police corruptions, excessive force, incitement of violence, negligence and criminal conduct by police during attacks SAHRC did not find evidence of such claims being reported through the appropriate channels, resulting in impunity FINDING 17: MISCONDUCT BY POLICE AND PUBLIC OFFICIALS Recommendations concern: The need for awareness raising by ICD, SAHRC and Public Protector; referral to these bodies by researchers or civil society organisations whose clients raise complaints with them; use of appropriate channels by civil society bodies encountering misconduct.

21. Right to effective remedy is undermined by problems of capacity within the institutions that exist to provide access to such remedy. Even with increased prioritisation, judicial outcomes for the 2008 violence were poor. Under normal conditions, outcomes likely to be worse DoJCD now monitoring ‘xenophobia-related’ cases on an ongoing basis – but definition of ‘xenophobia-related’ remains unclear and not all such cases appear on the database Police and ICD information storage systems inflexible and thus inaccessible – likely to hinder attempts at monitoring ICD upgrading its information systems FINDING 18: EFFECTIVE REMEDY Recommendations concern: The need for DoJCD to use the SAPS desk on crimes against non-nationals to identify possible xenophobia-related crimes; for SAPS and DoJCD to ensure sporadic crimes against non-nationals receive adequate focus; for improvement of information systems in SAPS and ICD; greater attention to Class 3 and 4 ICD cases; greater publicity on ICD and Chapter 9 complaints procedures.

22. Some progress has been made in preparing for possible future attacks, though further effort is required to maintain this progress. Gauteng Province has developed a rapid-response plan for future incidents, though exit strategy and reintegration needs more attention Western Cape has compiled a Proposed Social Conflict Emergency Plan Desk on crimes against non-nationals has been established by SAPS, but evaluation of response still needed Various existing evaluations, but need for systematic and sustained knowledge sharing – NDMC evaluation and guidelines could be vehicle for this Definition of ‘xenophobic crime’ still uncertain – hate crimes legislation needed SANDF evaluation still needed No record of introspection by Presidency on executive decisions, or of monitoring of recommendations of the parliamentary task team. FINDING 19: PLANNING FOR THE FUTURE Recommendations concern: The need for consistent disaster and reintegration planning; development of provincial conflict resolution capacity; development of SAPS and SANDF evaluations of the 2008 response; SAHRC training on non-nationals and their rights to police in affected areas; hate crime legislation and related training for police.

23. SAHRC struggled to respond within the boundaries of its mandate and on the required scale during 2008. Commitment is needed to better respond in case of a recurrence. SAHRC was slow to respond to the 2008 violence Attempts at coordination of stakeholders not very effective Uncertainty about what standards to apply in evaluating conditions in sites Inconsistent monitoring across provinces Should have taken a stronger position on closure of Gauteng sites Lack of adherence by government stakeholders to SAHRC recommendations SAHRC has produced a policy paper to guide its response to future complex disasters, and a report describing and evaluating its response in 2008 FINDING 20: SAHRC ROLE AND CHALLENGES Recommendations concern: The need to develop a single, easily accessible document to guide future response to a complex disaster; implement recommendations of its evaluation and policy paper; engage with other Chapter 9s on leadership during a disaster and making best use of collective resources.

24. SAHRC recognises the need to go beyond investigation toward systematic monitoring and assessment of the implementation of its recommendations. This will require additional resources and the prioritisation of issues of rule of law, justice and impunity SAHRC MANDATE WITH RESPECT TO FINDINGS Recommendations concern: The need to develop mechanisms to monitor recommendations on an ongoing basis; mechanisms to monitor community- based conflict resolution, reintegration and social cohesion initiatives; making monitoring information accessible to the public; improve quality and speed of complaints investigations; intensify and systematise training on human rights, xenophobia and non-discrimination in affected or at-risk areas.

25. SAHRC currently monitoring the implementation of recommendations from its report as pro-active measures • Written follow up requests for written submissions with reporting template from all state departments • Finalizing localized investigation report for WC Equality Court • Participation in multi-stakeholder NGO forums eg SACC civil society forum, SAHRC provincial offices hosting similar forums (WC, Limpopo & KZN); continued participation in Protection Working Group and hosting Rule of Law legal service providers • Meetings with UNHCR; UN Protection Working Group and finalization of a funding agreement with UN OHCHR to carry forward its own recommendations in slide 24 • Presentations of report done to SAPS Visible Policing Unit; DOJ Development Committee and DG Excom as well as Ekurhuleni provincial Disaster Management Centre • High level engagements and presentation of critical recommendations to JCPS Ministerial cluster; Statement of Commitment from political parties and meeting with Ambassadors of African Countries SAHRC FOLLOW UP AND CURRENT ACTIVITIES

26. THANK YOU South African Human Rights Commission