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    (Speaking Notes)

OHCHR panel discussion on vulnerability of migrants to racism, xenophobia and discrimination, New York, 4 May 2011

Joyce Tlou, South African Human Rights Commission

Excellencies, distinguished participants and colleagues

Most migrants, in particular the undocumented, unauthorised, irregular migrants, refugees and asylum seekers are already in a vulnerable position due to an intricate linkage in root causes such as poverty, economic under-development, poor governance and human rights violations that compel their movement from their countries of origin. Women and children in turn represent the most vulnerable among an already vulnerable population. Thus it is imperative to mainstream gender and age into the various aspects of the migration debate.

The various stages of movement such as transit-which can be multiple-, are fraught with precarious ordeals. Particular reference is made to the difficulties in policing Africa’s mostly porous borders where women are sometimes subjected to sexual and gender based violence. Examples of these are the touts and people smugglers who “assist” in clandestine entry. Not content with robbing migrants of their meagre possessions, some resort to sexually assaulting the females among the migrants. Even for regular migrants such as cross border traders, some women may engage in transactional sex in order to ease the port of entry/ border formalities.

In the main, destination countries represent hopes, dreams and aspirations of a better life. However this does not necessarily translate into reality as upon arrival the future is often uncertain and various challenges are encountered as they attempt to adapt to the demands of a new environment.

This new environment can be a rude awakening in its hostility and at the very least unwelcoming. Local residents are in the main uninformed as to the new arrivals among them. What starts off as simple negative myths and stereotypes gains credence and is gradually taken as fact. Examples range from complaints of depriving citizens of access to economic opportunities/ taking away jobs, harbingers of deadly diseases such as HIV/Aids, leeches who unfairly benefit from socio-economic services meant for citizens, being the main perpetrators of crime and that the numbers of migrants is overwhelming the local population etc. Rarely are any positives acknowledged, and if they are, they are done grudgingly, as an afterthought and mainly relate to migrants with scarce professional skills.

Bringing it closer to home, allow me to highlight the highly publicised xenophobic violence that engulfed South Africa in May 2008 as an illustration of how migrants can be on the receiving end when prejudices are acted upon. To date, there is no consensus as to what were the root causes of the brutal and widespread nature of the violence. Approximately 62 migrants were killed, over 100 000 were displaced and material losses were estimated as running into millions of Rands (the local currency).

Let me hasten to add that although some of the local minority ethnic groups were also victims, the violence was mainly directed against people of foreign origin. It is worthy to note that the violence did not discriminate or take into account a migrant’s immigration status.  Naturalised citizens, permanent residents, refugees and asylum seekers with legal right of residence and papers to prove so were all prone to attack. The violence mainly occurred in the predominantly poorer peri-urban informal settlements.

Reports of gender based violence of the rape of women were received. In its belated attempt to deal with the crisis, the state set up open temporary displacement sites where the quality of services left a lot to be desired in meeting minimum international standards. The schooling of children came to a standstill and any unaccompanied minors had to fend for themselves as if they were capable adults. The untenable living conditions in the sites contributed to the disintegration of the social and moral values among the displaced and also saw an increase in reports of domestic violence against female partners and wives.

In its March 2010 report entitled “Investigation into issues of Rule of Law, Justice and Impunity arising out of the violence against non-nationals”, the South African Human Rights Commission made certain findings and recommendations. Despite the country having ratified key international human rights instruments, having what has been termed one of the Constitutions that is the envy of other democratic countries the world over and an array of domestic legislation to promote equality; the country dismally failed to adequately protect the rights of migrants. The ambivalent attitude and baffling lack of political will in authoritatively and speedily acknowledging the violence as xenophobic; the slow security response; the slow pace of investigations into complains of human rights violations; the low level of prosecutions and convictions; the lack of witness protection, the poor coordination in providing humanitarian assistance as well as the quality thereof and the lack of compensation for material losses all led to unprecedented criticism of the overall state response to the crisis.  

As a result of concerted advocacy and lobbying by a broad cross section of concerned entities, organizations and individuals, it is gratifying to note and acknowledge the positive overall state response when the country again faced similar threats of xenophobic violence in the aftermath of the historic FIFA Soccer World Cup tournament that South Africa hosted in June-July 2010.  The fact that the minimal number of perpetrators from the 2008 violence were criminally charged with common law offences such as common assault galvanised activists to call for the state to draw up a hate crimes and prejudice related legislation to deal with- among others- acts of xenophobia. This piece of legislation is now in draft form and will hopefully be tabled before Parliament within a reasonable time period.
The International Convention on the Protection of the Rights of Migrant Workers and members of their Families is one instrument at the forefront in the protection of the rights of migrants. State parties thus need to ratify this important Convention and domesticate it into national legislation. Advocacy efforts have to be stepped up to encourage those states- such as SA- that have not yet done so to take this next step. There is also a need for the state to open up debate at local level with a view to informing the citizenry of its overall intentions to the Convention and (presumably) the challenges in the ratification process. The same applies to bilateral and regional agreements. This will encourage civic participation and heighten awareness to some of the challenges that the state faces in dealing with migration. Cooperation between the destination countries and countries of origin is also vital as they collectively assist each other in attempts to manage those challenges that migration presents. 
Awareness and outreach to the various sectors of society such as the training of immigration, law enforcement and judicial officers has to be on-going. The outreach has to include not only the general public but the migrant population as well to balance out the demand for rights against taking responsibilities as rights and responsibilities go in tandem. Whilst the state has the primary responsibility as the rights-giver, entities such as national human rights institutions-that I represent here today – have to assist and partner with other stakeholders in this regard and not simply confine themselves to monitor state compliance of human rights norms and standards.
The Durban Declaration and Program of Action is a fundamental foundational basis upon which states can build and implement their respective National Action Plans on racism, racial discrimination, xenophobia and related intolerance. The momentum must be maintained for states to draw up and implement these national action plans.
In conclusion, there is no easy solution to dealing with xenophobia. Rather, a multi-faceted, multi-dimensional and collective effort that is firmly grounded on basic human rights is imperative if we are to make inroads into this scourge of xenophobic violence that undermines the social fabric of society so as to promote equality for all, including migrants.
Thank you


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