MAVERICK CITIZEN: REFUGEE RIGHTS
South Africa belongs to all who live in it, and so does the right to be vaccinated against Covid-19
In an open letter to President Cyril Ramaphosa, Lawyers for Human Rights calls on him to denounce xenophobia to halt the cycle of exclusion of and discrimination against asylum seekers, migrants and undocumented persons.
Dear President Ramaphosa,
Lawyers for Human Rights (LHR) welcomes the commitment you made in your address on 1 February 2021 to make the Covid-19 vaccine available “to all adults living in South Africa, regardless of their citizenship or residence status”.
We take specific note of your pledge to put in place “measures to deal with the challenge of undocumented migrants so that, as with all other people, we can properly record and track their vaccination history”. With public health professionals the world over, you have acknowledged that “it is in the best interests of all that as many of us receive the vaccine as possible”.
We raise our fists and say “Amandla!”
LHR, as one of the largest public interest legal organisations in the country, is part of the movement for social justice. Increasingly this means struggling side by side with our clients for the eradication of xenophobia in South Africa. We ask you now to stand with us, and with our refugee and migrant clients and partners, against this ugly phenomenon that has only seemed to grow in the context of the Covid-19 pandemic. We ask you to denounce it through action: by ensuring widespread, equitable access to Covid-19 protection.
LHR is extremely concerned about the proposal led by the Department of Health to use documentation as a form of registration to get access to the vaccine. This will unjustly exclude some of the most vulnerable in our society, both citizens and non-citizens. As you know, inequality and discrimination have resulted in the working class being disproportionately affected by the Covid-19 pandemic.
As quoted in a recent article: “Rather than being ‘the great equaliser’ due to universal lack of immunity, data have shown that the burden of Covid-19 has been disproportionately felt by racial/ethnic minority and low-income communities.”
In the case of South Africa, this includes those suffering the disproportionate socioeconomic impact of the pandemic. Communities living in impoverished conditions have suffered more because their plight has been deeply exacerbated by this modern plague. They are the people who suffer the indignity of unemployment, inequality and poverty daily, who have limited access to healthcare and who continue to be overlooked.
We want to raise with you the plight of vulnerable and marginalised people in South Africa who have been largely excluded from the country’s Covid-19 response, including refugees and migrants.
We write to you to ensure that the “measures” contemplated in your address on the vaccine roll-out will materialise in equal access to Covid-19 testing and treatment, and protection for all in South Africa.
The issue of documentation is intrinsically linked to human dignity and belonging. To have a meaningful existence in South Africa, a birth certificate, an identity document, passport or a permit is crucial to access basic human rights like education, formal employment, social assistance and healthcare. The lack of valid documentation restricts one’s freedom of movement, given the risk of detention and deportation.
Lack of documentation affects both adults and children, South African citizens and non-citizens alike – it is not a “migrant issue”. We have undocumented people because of a deficient civil registration system, a collapsed refugee protection system, and maladministration and corruption in the Department of Home Affairs. As LHR, we documented these failings in a number of publications in 2020, as we have in prior years.
South Africa has one of the largest backlogs of asylum seekers awaiting outcomes of their refugee status applications. Migrants remain undocumented because they cannot afford, or will not pay bribes, to have their permits renewed. Stateless persons are not recognised as citizens in South Africa or anywhere else, and live a life of “invisibility” on the fringes of society.
Mr President, as of December 2020 the Department of Home Affairs had 813,343 cases of blocked identity documents. They were blocked without notice, without communicated reasons, without an opportunity to challenge these actions, and are nearly impossible to resolve. Without valid identity documents, parents cannot register the births of their children and the cycle of being undocumented continues, resulting in intergenerational statelessness and intergenerational deprivation of rights.
A 2019 court case concerning the rights of undocumented children to basic education revealed that there were more than 900,000 undocumented children enrolled in public schools in South Africa, of whom more than 800,000 were South African citizens. Our Constitution guarantees every child born in South Africa the right to a birth certificate, but thousands of children are being denied this right by arbitrary rules and circumstances that are beyond their control.
It must also be noted that the intermittent provision of civic services at the Department of Home Affairs and the closure of refugee reception offices under the Covid-19 lockdown since March 2020 continues to pose challenges to clients. It is unclear when blocked IDs can be queried or those with asylum seeker and refugee permits can have them renewed.
There also seems to be a disconnect between the Department of Home Affairs’ communiqué and the police, resulting in a number of clients detained due to expired permits. All this makes a significant difference to those whose ability to simply and safely exist depends on this recognition by the state.
We place on record that the World Health Organisation and the United Nations High Commissioner for Refugees (UNHCR) have strongly recommended that the Covid-19 vaccination be made available as a global public good and must be distributed to a substantial proportion of the population in order to be effective. The UNHCR has issued policy and good practices for an inclusive approach.
Mr President, we support this recommendation and urge you to ensure that your words are translated into practice on the ground.
South Africa has signed and ratified the International Covenant on Economic, Social and Cultural Rights, which states that state parties must recognise the right of everyone to the enjoyment of the highest attainable standard of health. The Committee on Economic, Social and Cultural Rights (in its general comment 14) has stressed that state parties should respect the rights of non-citizens to an adequate standard of health by, inter alia, refraining from denying or limiting their access to preventative, curative and palliative healthcare.
The UN Special Rapporteur on the right to physical and mental health has also emphasised that asylum seekers and undocumented persons, as some of the most vulnerable groups within a population, should not be denied their human right to medical care. The Covid-19 vaccine roll-out demands that these statements, studies and treaties be shown to have real value.
The opening clause of the Freedom Charter reads: “We, the people of South Africa, declare… that South Africa belongs to all who live in it, black and white.” This is reiterated in the preamble of our Constitution: “South Africa belongs to all who live in it.”
Exclusion, discrimination and xenophobia do not benefit anyone, least of all in a global pandemic.
We call on you, Mr President, to:
- Provide further transparency and detail on the contemplated measures that government will take to ensure that the vaccine roll-out strategy will include all citizens and non-citizens, irrespective of citizenship, immigration or documentation status; and
- Provide civil society with the opportunity for proper consultation and participation in the development and implementation of the vaccine roll-out strategy.
LHR is ready to support the government and stands by the motto: “No one is safe until everyone is safe.” DM/MC
Tshegofatso Mothapo is a legal researcher for the Refugee and Migrant Rights Programme in the Lawyers for Human Rights Statelessness Unit.
Information pertaining to Covid-19, vaccines, how to control the spread of the virus and potential treatments is ever-changing. Under the South African Disaster Management Act Regulation 11(5)(c), it is prohibited to publish information through any medium with the intention to deceive people on government measures to address Covid-19. We are, therefore, disabling the comment section on this article in order to protect both the commenting member and ourselves from potential liability. Should you have additional information we should know about, please email [email protected]
"Information pertaining to Covid-19, vaccines, how to control the spread of the virus and potential treatments is ever-changing. Under the South African Disaster Management Act Regulation 11(5)(c) it is prohibited to publish information through any medium with the intention to deceive people on government measures to address COVID-19. We are therefore disabling the comment section on this article in order to protect both the commenting member and ourselves from potential liability. Should you have additional information that you think we should know, please email [email protected]"
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