The repatriation process: does South Africa live up to its human rights obligations?

Abstract

"The Aliens Control Act (ACA) was racially biased towards immigrants who were easy to assimilate into the white population. It thus did not accord with the principles of the new regime based on equality and reflected an exclusionist apartheid ideology. Not only was the act itself repugnant, but the practice of the enforcement bodies in arrest, detention and deportation procedures was maligned as well. There were allegations of violence, arbitrary arrest, harassment, exploitation, unfit detention facilities and lack of procedural fairness. This precipitated the drafting of the Green and White Papers on International Migration, the much contested Immigration Bill and the Immigration Act (IA) itself. The well researched Green Paper's recommendations about the shift in focus from control to management of migration were not taken cognisance of. The government, in consultation with US immigration specialists, focused on control to prevent an influx from the rest of Africa into South Africa's newly 'opened' borders. The only concession granted was the amnesties for long-time residents (usually mineworkers and refugees) from SADC countries, but this was not well responeded to. The South African government seemed to be intent on keeping the exclusionist mindset, with a shift from race to nationality. The IA has to be examined to see whether the contents of the legislation which inform the repatriation process meet constitutional and international law muster. This should be done with the background and criticisms of the ACA in mind. The actual practice of the enforcement agencies that effect the arrest, detention and deportation must be measured against South Africa's accepted human rights norms. A consideration of the past harsh and unconstitutional immigration control mechanisms must take place as well to track South Africa's progress towards a human rights based repatriation program." -- Introduction.