10 June 2015
To HE Dr. Nkosazana Dlamini Zuma
Chairperson of the African Union

RE: Open letter to the African Union on the resurgence of xenophobic violence in South Africa presented on the occasion of the AU Summit in Sandton, Johannesburg, June 2015

Dear Madam,

We, the undersigned organisations, write to you as concerned organisations and citizens of the African continent to raise concern about the xenophobic attacks in the Republic of South Africa which have recently taken place against migrants and refugees predominantly from other African countries. We approach you as the body responsible for promoting unity and solidarity among African states. We also call on you as the body responsible for the promotion of peace, security and stability in Africa.

The objectives of the AU are inter alia:-
• To achieve greater unity and solidarity between the African countries and the peoples of Africa;
• To encourage international cooperation, taking due account of the Charter of the United Nations and the Universal Declaration of Human Rights;
• To promote peace, security, and stability on the continent;
• To promote democratic principles and institutions, popular participation and good governance;
• To promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments.

Between 2000 and March 2008, at least 67 people died in what were identified as xenophobic attacks in South Africa. In May 2008, a series of rapid large-scale attacks left 62 people dead and over 600 injured. Twenty-one of those killed were South African citizens, apparently because they were perceived as foreigners. The attacks were apparently motivated by xenophobia, and have continued to occur every year since 2009. And more recently in 2015, another nationwide spike in xenophobic attacks against migrants and refugees occurred in January and again in April. The latter attacks which began in KwaZulu-Natal Province prompted a number of foreign governments to repatriate their citizens. The April 2015 attacks resulted in at least seven verified deaths, but the number is understood to be higher, and at least 5,000 migrants and refugees displaced.

We urge the AU to call upon the South African government to take concrete steps to end these attacks, prosecute perpetrators and protect migrants and refugees living in their territory from violations of their human rights, including the right to life. As organisations operating on the African continent, we are particularly concerned about the loss of lives, injuries to persons, damage to private property and the infringement of dignity of migrants and refugees living in South Africa, which are a grave violation of their rights protected under the African Charter on Human and Peoples’ Rights (the African Charter). The right to life, not to be subjected to torture, cruel, inhuman and degrading treatment, and the right to strict equality before the law are non-derogable rights – not dependent on a person’s status in a country.

 

South African President Jacob Zuma during a Freedom Day event in April made a statement that Mozambican national Emmanuel Sithole (aka Emmanuel Josias) who was brutally killed during these attacks was an illegal immigrant using a false name. The immigration status of foreign nationals who are victims of the attacks in South Africa is irrelevant. South Africa has an obligation to protect all persons within its borders.

We are concerned in particular about the situation of asylum seekers and refugees who should receive special protection but who are in a vulnerable and desperate situation following these tensions.

We are further concerned by comments made by persons in positions of authority and influence which may amount to incitement to violence and the role that these persons play in perpetuating xenophobia and intolerance. While some official statements have been made to condemn the violence, we are concerned that not enough concrete steps are being taken to prevent such attacks, prosecute perpetrators, protect migrants and refugees and prevent the mass coerced exodus of foreign nationals from the country. We call on the AU to ensure that South Africa holds leaders and persons in authority accountable for their role in inciting violence and intolerance, or for the systematic failure since 2008 to implement effective prevention and protection plans for migrants and refugees at risk of attack, property destruction and displacement.

We note statements of several governments, including the South African government, to provide assistance for individuals leaving the country. While those who wish to leave should be assisted to do so, the solution to the violence should not be to repatriate all foreign nationals, but to ensure an environment in the country in which their rights are protected. Furthermore, the acts of those carrying out attacks against foreign nationals should not be rewarded by assisting them to achieve their objective of ridding South Africa of foreign nationals.

Following the xenophobic attacks in April there have been nationwide police raids, with military presence on the streets, apparently intended to combat crime, but predominately involve arresting and deporting migrants alleged to be illegally present in the country. We call on the AU to alert South Africa to the unlawfulness of these actions. According to the Department of Home Affairs, 2767 foreign nationals have been repatriated since the April attacks began. This includes some 913 Malawians, 637 Mozambicans, 17 Tanzanians and 1098 Zimbabweans. There were also reports that an estimated 400 men and women from Lesotho were deported. These repatriations and deportations are ongoing. We are concerned about the mass raids, rounding up of foreigners and ongoing deportations which do not appear to adhere to any procedural safeguards such as investigations into immigration status; access to legal representation; ability to make representations to a court and steps taken to ensure that no refugees and asylum-seekers, to whom a duty of international protection applies, are not subjected to forcible returns. In this regard, we remind all States of the provisions of Article 12 of the African Charter which prohibits the mass expulsion of foreign nationals. We are also concerned by the heavy handed approach adopted by the South African authorities in carrying out raids and mass arrests with a view to deporting foreign nationals as a response to xenophobia. This was most recently highlighted in “Operation Fiela” which took place in Johannesburg during May. Despite Cabinet’s statements to the contrary this operation has targeted foreigners at a higher rate than citizens.

…..

We further draw the AU’s attention to the resolution of the African Commission in April 2015 condemning the xenophobic attacks in South Africa[i] and request the African Union to call upon the government of South Africa to:

i.            Protect migrants, refugees and other vulnerable foreign nationals from further attacks, including by increasing impartial and effective police presence in high-risk areas and immediately implementing conflict resolution initiatives in these areas involving the Department of Home Affairs;

ii.            Provide humanitarian and other social assistance to those affected by the xenophobic attacks in the country, including counselling for trauma and access to information on services and  on durable solutions for refugees and asylum-seekers;

iii.            Bring perpetrators of violence against foreign nationals to justice. To facilitate such prosecutions the Department of Justice should set up special courts, as was done during the 2010 World Cup in South Africa, to deal with all cases of violence against foreign nationals in a bid to ease the burden on the courts. Information on accessing these courts should be widely disseminated;

iv.            Investigate and bring to justice the instigators behind the perpetration of the violence;

v.            Condemn unequivocally comments by persons in positions of authority and influence which may amount to incitement to violence;

vi.            Effectively engage the broadest possible South African public, in order to curb and eradicate xenophobia and xenophobic violence. These messages should be repeated, constantly re-iterated and not only heard after crises moments. They should be accessible, in local languages, should be expressed directly to communities, and should involve local leaders;

vii.            Advise and assist all those who have been victims of violence to seek redress;

viii.            Assist refugees and asylum seekers who have lost their permits to have these re-issued and put in place concrete plans for their reintegration into communities.

As stated above, in 2008, the xenophobic attacks left at least 62 dead, hundreds wounded, and contributed to the displacement of 100,000 people or more. Following those attacks the South African Human Rights Commission (SAHRC) prepared a report with their findings and recommendations[ii]. We call on the AU to remind the South African government of this report and call upon the government and the SAHRC to immediately take steps to implement the recommendations found therein.

In addition, we request you to call upon governments of other countries to ensure steps are taken to prevent reprisals against South African nationals in their territories.

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