Advocating Accountability: The (Re)forming of a Refugee Rights Discourse in South Africa
| Author | Jeff Handmaker |
| DOI | 10.1177/016934410702500104 |
| Date | 01 March 2007 |
| Published date | 01 March 2007 |
| Subject Matter | Article |
Netherlands Q uarterly of Human R ights, Vol. 25/1, 53–71, 2007.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 53
ADVOCATING ACCOUNTABILITY:
THE REFORMING OF A REFUGEE
RIGHTS DISCOURSE IN SOUTH AFRICA
J H*
Abstract
is pape r examines the roles and impact of civ ic initiatives in forming a refugee
rights discourse and ushering in refugee policy in South Africa in compliance with its
international obligations. Some inputs to this process have sought to ‘reformulate’ the
law to t political realities, while recent commentaries of the process have bee n limited
to moralistic arguments supported by lit tle more than legal rhetoric. Both miss the
broader picture and fail to acknowledge the ex plicit role of civic society both in helping
to frame policy and urging its proper implementation . Civic initiatives representing
various constituenci es in South Africa and abroad have played a central role in forming
obligations, claiming rights and even determining state practice. South Af rica presents
an intriguing case study in testing the validity and practicability of civic society (non-
State) e orts in advocating government’s accountability in the protection of refugees,
particularly in the making of the Refugee s Act 1998.
1. INTRODUCTION
Democratic elections in South Africa in 1994 not only hera lded the end of state-
sanctioned, inst itutionalised discrimination on the basis of race, but marked a
* LLB (Newcast le), LLM (School of Orienta l and Africa n Studies, L ondon) and Ph.D candidat e,
Netherlands I nstitute of Human Right s (SIM), Utrecht University. From 2007 Lec turer in Human
Rights, Deve lopment and Governanc e at the Institut e of Social Stud ies, e Hagu e and in 2006
Visiting resea rch fellow, Forced Migration Studies Prog ramme, University of the Witwate rsrand,
South Afric a. is paper bui lds on previous work, n amely: Handm aker, Je , ‘Who Deter mines
Policy: Promoti ng the Right of Asylum i n South Africa’, Internat ional Journal of Refuge e Law, Vol.
11, No. 2, 1999, pp. 290–309 and Hand maker, Je , ‘No Easy Walk : Advancing Refugee Protec tion
in South Afr ica’, Africa Today, Vol. 48, No. 3, 2001, pp. 91–113, both of which draw on t he author’s
close observat ions of, and part ial involvement in, t he refugee pol icy-making proc ess in South
Africa fr om 1996 until 2000. is paper was pres ented at the Law and Societ y Association Annua l
Meeting, L as Vegas, June 2005 and as par t of the lunchtime semi nar series of the Force d Migration
Studies Progr amme, University of the Wit watersrand, Johan nesburg, May 2006.
Je Handmaker
54 Intersentia
principled commitment on the pa rt of the new government to human rights, i ncluding
the right of persons to seek polit ical asylum. Cla iming these r ights, however, has proven
to be a highly contested process , with both government and civ ic actors, including
academics, playing prominent, thoug h o en con icting roles. It has been a process
in which civic actors have gone beyond their trad itional role of simply advocating. As
the numbers of persons seeking a sylum have grown, and the government has faced
ever-increasing challenges, civic organisations, a nd particula rly non-governmental
organisations (NGOs) conducting advocacy on ref ugee rights matters have gained
increasing recognit ion as key participants in the development of refugee pol icy and in
monitoring its implementation.
is paper presents an overview of these developments as part of an emerging
refugee rights di scourse, assessing both the role(s) and impact of civic society1 in
advocating for refugee rights protec tion in South Africa and highlig hting certain
challenges that were faced by bot h government and civic society, particularly in
producing the Refugees Act of 1998.
2. FORCED DISPLACEMENT AT A TIME OF POLITICAL
TRANSITION
While South Africa only developed a policy on refugees and asylum in 1998, it had
been no stranger to forced displacement, generat ing and receiving substa ntial numbers
of refugees and other forcibly di splaced persons throug hout its troubled history.
One group of refugees consisted of those who ed South Africa as a consequence of
persecution by the apart heid government, seeking protection mainly in neig hbouring
countries, but al so further a eld. A second group consisted of Mozambican refugees,
victims of a civ il war in which South A frica played a central role. A more recent group
consists of asylum seekers ar riving in South Af rica at the time of its politica l transition
to democracy, when individualised ref ugee status determination procedures were rst
introduced in 1993, responding to applicants from countries as far away as Somalia,
Sudan and Iraq.
is paper wi ll rst brie y touch upon the second group, yet deal mainly wit h
the third group, since both t hese historical e vents coincided with the emergence of
formalised refugee st atus-determination procedures in South Af rica.
1 e term ‘civic’ so ciety is chosen i n preference to the more com mon term ‘civil ’ society, both
re ecting the broad d iversity in non-state per spectives and mai ntaining the p osition that non-state
actors need not always b e civil.
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