In Pursuit of Equality in South Africa

Homosexuality as a Grounds for Asylum: The Deplorable Experiences of Lesbian, Gay and Transgender Refugees Seeking Asylum in South Africa

MANDIVAVARIRA MUDARIKWA

 

INTRODUCTION

Homosexuality, or any associated act, is a criminal offence in approximately 781countries, 35 of which are in Africa2. As a result of its constitutional democracy, South Africa is one of only 19 countries in Africa that does not criminalise homosexuality and any associated behaviour and activities. For this reason, South Africa receives a significant number of asylum seekers who have fled their country of origin because of persecution suffered as a result of their sexual orientation.

This chapter3 argues that, while South Africa’s refugee law framework is progressive on paper, in practice there are systemic problems and inefficiencies that result in the treatment of lesbian, gay and transgender (LGT) asylum seekers in a way that is inconsistent with both the UN Convention, as well as the constitutional values of dignity, equality and freedom as enshrined in South Africa’s Bill of Rights4. The chapter aims to provide a snapshot of the experiences of LGT asylum seekers, hoping that the issues raised here are brought to the attention of various stakeholders who could provide assistance to LGT asylum seekers in South Africa.

GENERAL OBJECTIVE ANALYSIS OF A FEW AFRICAN COUNTRIES THAT CRIMINALISE HOMOSEXUALITY

Perhaps before providing an analysis of a few African countries, it is important to note that anti-homosexuality laws and attitudes are not limited to the African continent. This chapter’s focus on the continent is only because of the countries of origin of asylum seekers who have approached the Legal Resources Centre (LRC) for assistance. It is also equally important to state that there have been some positive developments in Africa regarding the decriminalisation of sodomy/homosexuality and associated acts; notably in Mozambique, which decriminalised sodomy in July 20155.

LGT asylum seekers are individuals who flee their country of origin because of a well-founded fear of persecution due to their sexual orientation and/or gender identity. The persecution (or threat of persecution) to which they are subjected can manifest in different forms. These range from general societal attitudes – influenced by religion and traditional values – to rejection by friends and family. These attitudes often culminate in threats of physical violence, discrimination and, for some, even death.

Prominent African leaders have publicly denounced homosexuality and any association with lesbian, gay, bisexual, transgender and intersex (LGBTI) persons. The current prejudicial views toward homosexuality cannot be divorced from the impact of colonialism and Judeo-Christianity on the development of law in Africa. Early colonial attitudes pathologising homosexuality are evident in the harsh laws promulgated at the time6. These laws are often couched in religious language against sodomy or unnatural lust7. As a result of syncretism and this history, homophobic beliefs have gradually become internalised as indigenous cultural values8. It has been argued that the internalisation of homophobic values, to the extent that it is considered to be ‘common sense’, has resulted in sexual discipline being policed more by self-repression or peer pressure than church or state9. Realistically, it is likely a combination of self- and external policing. Significantly, the resistance to repealing anti-homosexuality laws is often justified as a stance against neo-colonialism and the import of ‘western’ values. Ironically, this fails to appreciate the colonial roots of anti-homosexuality values.

Beyond the hardships and brutal attacks that arise at a broader level, LGBTI persons also experience the unparalleled psychological pain of rejection and alienation by family and friends. The attitudes displayed by these close relations are often reflective of the broader societal stance. Enormous emotional stress is caused by trying to reconcile one’s identity as a LGBTI person with other possibly conflicting aspects of their identity, such as religion. This personal conflict is likely to spill over into interpersonal relationships. For instance, cultural expectations – such as marriage – are difficult to fulfil because they present a difficult choice: conform to the cultural traditions and conceal a significant aspect of one’s identity, or refuse the cultural tradition and risk ostracism. Choosing the latter is often met with violence.

With regards to homophobia, there is a complex relationship between the pervasive attitudes of the public and the official institutional stance in the same country. The very fact that anti-homosexuality laws exist in countries, frequently leads to abusive behaviour by the public and/or police10. This makes acknowledging one’s sexual orientation and/or gender identity a terrifying consideration. Even in countries where there is no formal law prohibiting homosexuality, the attitudes of the community and religious groups have been sufficient to lead to arrests of LGBTI people. Some of those interviewed by the Legal Resources Centre were harassed and others arrested in their home countries because of their sexual orientation and/or gender identity. Not only do LGBTI Africans experience resistance from police in acknowledging their plight, but, more importantly, there is a dearth of non-governmental organisations (NGOs) addressing these issues – often because of societal attitudes and State laws.

SEEKING ASYLUM WITHIN THE SOUTH AFRICAN LAW CONTEXT

The 1951 Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees (‘the Convention’ and ‘the Protocol’ respectively) are the key international legislative instruments intended to promote and protect the rights of refugees and asylum seekers. Regionally, South Africa has ratified the 1969 Organisation of African Unity11 Convention Governing Specific Aspects of Refugee Problems in Africa (OAU Refugee Convention) that governs the rights of refugees and asylum seekers in Africa. The Refugee Act 130 of 1998 (Refugees Act) is the key national legislation domesticating the 1951 Convention, 1967 Protocol and the OAU Convention. The Refugees Act is the statement of commitment by the government of South Africa to honour both their regional and international obligations.

Section 3 of the Refugees Act states that a person qualifies for refugee status if that person:

(a) ‘owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it.’12  [Emphasis added]

The United Nations High Commissioner for Refugees (UNHCR) has recognised that LGBTI persons each constitute a ‘particular social group’13. A ‘social group’ refers to a group of people who share a definitive characteristic other than persecution, or a collective that is considered to be a group by society14. LGBTI persons constitute a ‘social group’ because one’s sexual orientation and/or gender identity is a fundamental and essential component of one’s identity15. Individuals who have fled their country due to a well-founded fear of persecution on the basis of their sexual orientation, therefore, qualify for refugee status in accordance with the UN Convention definition of a refugee.

The term ‘particular social group’ is defined in section 1(xxi) of the Refugees Act 130 of 1998 as follows:

(b) [S]ocial group’ includes, among others, a group of persons of particular gender, sexual orientation, class or caste. [Emphasis added]

The term, ‘particular social group’ has also been interpreted in foreign jurisprudence. It is widely accepted that, in order to qualify as being part of a ‘particular social group’, one must be part of a group of individuals ‘who share a common, immutable characteristic’16. In other words, a ‘particular social group’ shares characteristics that cannot be altered by choice. Sexual orientation and gender identity are fundamental components of an individual’s identity. They cannot be altered by choice.

Further, in 2012, the UN issued guidelines in order to provide Refugee Status Determination Officers (RSDOs) with clear directives about asylum claims made on the basis of sexual orientation and/or gender identity: ‘The Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees’ (the UNHCR Guidelines)17. The UNHCR Guidelines unequivocally provide for LGBTI persons within the definition of, ‘membership of a particular social group’18.

The UNHCR Guidelines adopts the definition of ‘sexual orientation’ and ‘gender identity’ as established in the Yogyakarta Principles. The Yogyakarta Principles were developed in order to provide an international standard for the application of international human rights law to sexual orientation and/or gender identity matters19. ‘Sexual orientation’ has been defined as: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender.’20 ‘Gender identity’ has been defined as: ‘each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body and other expressions of gender, including dress, speech and mannerisms.’21

(a) Well-founded fear

The UNHCR Handbook describes the definition of a ‘well-founded fear’ as the key component of the definition of a ‘refugee’22. The Handbook notes that ‘fear’ is subjective. It therefore suggests that the individual circumstances of the applicant be considered when determining the applicant’s refugee status23. It also notes that the applicant’s statements take precedent above the country situation when making a status decision24. The assessment of the applicant’s statements must be made with due regard for the particular applicant’s personality, ‘…since psychological reactions of different individuals may not be the same in identical conditions. One person may have strong political or religious convictions, the disregard of which would make his life intolerable; another may have no such strong convictions.’25

The ‘well-founded’ component has an objective element requiring the applicant’s frame of mind to be supported by extraneous evidence26. The additional information required by paragraph 41 of the UNHCR Handbook – such as family background, social identity group, and so on – serve as an ‘objective’ means for assessing if the claim of fear presented by the applicant appears to be reasonable. Further international and regional jurisprudence and legal doctrine affirm that when discrimination on account of a person’s sexual orientation is prohibited, such discrimination, individually or cumulatively, lead to consequences that are substantially prejudicial to the nature of the person involved27.

(b) Persecution

International and regional jurisprudence and legal doctrine affirm that discrimination on account of a person’s sexual orientation is prohibited. Discriminatory measures may be enforced through law and/or through societal practice, and could have a range of harmful outcomes. Discrimination may amount to persecution where such measures, individually or cumulatively, lead to consequences that are substantially prejudicial to the nature of the person involved28.

With respect to persecution, it is essential to note that past persecution is not a necessary requirement for recognition as a refugee; a fear of persecution is sufficient. With regard to the meaning of ‘persecution’, no single definition has been established under refugee law. A prominent academic in the field of refugee law, Grahl Madsen, takes the view that the term ‘persecution’, which is critical to refugee status determination, was deliberately left undefined in order to leave room for interpretation. He states:

‘The term ‘persecution’ has nowhere been defined and this is probably deliberate… It seems as if the drafters wanted to introduce a flexible concept which might be applied to circumstances as they arise; in other words they capitulated before the inventiveness of humanity to think up ways of persecuting fellow men.’29

Academics are widely in agreement that for persecution to have occurred, there must be a violation of basic human rights and that it must be evident that the State has failed to protect the asylum seeker30. An applicant claiming a fear of being persecuted on account of their sexual orientation need not show that the authorities knew about their sexual orientation before they left their country of origin31. Moreover, lack of persecution does not prevent him or her from having a well-founded fear of being persecuted32.

(c) Grounds of persecution

As with claims based on political opinion, an applicant claiming a fear of being persecuted on account of his or her sexual orientation need not show that the authorities knew about his or her sexual orientation before he or she left the country of origin. The well-foundedness of the fear will, in such cases, be based on the assessment of the consequences that an applicant with a certain sexual orientation would have to face if he or she returned. Moreover, the fact that a LGBTI applicant has never actually been prosecuted for his or her homosexual conduct does not prevent him or her from having a well-founded fear of being persecuted33.

The UNHCR Guidelines explicitly provide that an LGBTI applicant cannot be denied refugee status on the basis that they could avoid persecution if they conceal their sexual orientation or gender identity, as this infringes on their freedom of expression and association34. It would be unreasonable and unjust to expect that someone has to hide an aspect of their identity for fear of being punished, hurt or killed.

(d) Unwilling/Unable

A further requirement to be recognised as a refugee is that the applicant must be unable or unwilling to approach their government for protection. The UNHCR Guidelines provide that persecution may come from State-, as well as non-State actors35. It is explained that State persecution is apparent from laws that prohibit any form of LGBTI-related activities36 – echoing the principle that discrimination amounts to persecution. Additionally, any harm carried out by individual State agents, even if it is considered to be ‘rogue’ behaviour, is considered to be State persecution37. ‘Non-State actors’ is broadly defined, and includes family members and communities. Persecution may constitute many forms, varying from verbal intimidation to physical assault, to vigilante groups targeting LGBTI persons38.

The availability of State protection must be assessed on the basis of country-specific information. The existence of anti-LGBTI laws is de facto evidence that the State is unwilling to protect LGBTI asylum applicants39. The provision of protection has to be both available and effective. Thus State protection cannot be considered to be effective if State agents, such as the police, are unresponsive to requests for protection40. Furthermore, the UNHCR Guidelines provides that the very existence of anti-homosexuality laws, even if irregularly or not at all enforced, constitutes as legitimate cause to feel persecuted on the grounds of sexual orientation41.

Additionally, even if a State has recently begun to repeal its anti-homosexuality laws, the claim for asylum remains legitimate because the fear of persecution remains valid42. The revision of a law does not alter prevailing homophobic and other discriminatory attitudes. This means that the existence of discriminatory law alone is not the only threshold requirement when considering the legitimacy of a persecution claim. Country-specific context analysis is important. When the Department of Home Affairs (DHA) or RSDO considers LGBTI applications for refugee status, they must consider laws and attitudes against homosexuality as a type of persecution, leading to a well-founded fear of being persecuted, even if the individual has not been personally attacked43.

(e) Burden of proof

The correct application of the burden of proof is essential to a correct outcome in any decision. In the context of refugee status decisions, placing the burden of proof incorrectly can lead to unfortunate outcomes. It is a factual reality that when an individual is fleeing his/her country, he/she will not have left in ideal circumstances, without opportunity to carry documentary (or other) evidence with him/her to prove the situation. This is explicitly recognised in the UNHCR Guidelines44. RSDOs often quote an extract of a paragraph provided in the UNHCR Handbook. The extract is problematically applied, and should be read in its full context45. Consequently, the misrepresentation of the UNHCR Handbook means that the RSDO incorrectly understands the burden of proof on the asylum seeker, as well as their own. While the asylum seeker should try his/her best to place as much evidence before the RSDO in order to support his/her claim, it is, more than often, not possible in the circumstances to do so. One can only assume that the RSDO decides the case in question without discharging their burden if the RSDO’s decision employs this inaccurate rigorous standard of proof. This is suggested by this isolated quotation in the RSDO letters. This is prejudicial to the asylum seekers.

THE SHORTFALLS IN ADJUDICATING LGBTI ASYLUM APPLICATIONS

The purpose of this section is to highlight the challenges that have arisen with the determination of refugee status for LGBTI applicants in South Africa. There have been reports that LGBTI asylum seekers have not submitted that the reason that they fled their home country was due to discrimination based on their sexual orientation and/or gender identity persecution46. This omission is said to be as a result of perceptions of prejudices held by the DHA officials47. These factors may include genuine experiences of homophobic remarks made by DHA officials – as seen by the extracts taken from a sample RSDO letter.

One example of poor treatment of LGBTI claims within the RSD system is the handling of the claim of an asylum applicant from the Democratic Republic of Congo (DRC) who was represented by the LRC before the Refugee Appeal Board (RAB). The applicant, henceforth referred to as ‘M’, fled the DRC because he had a secret same-sex relationship with a man for seven years. He was caught having sex with his partner and he started receiving threats of violence from the persons who caught them. One of the persons who caught them, tried to kill both M and his partner with a knife, but M managed to escape and he went to the police station in order to report the incident. The police dismissed his case once M disclosed his sexual orientation to them, and stated that he ‘deserved death’ for his actions. M subsequently went into hiding at a friend’s house.

The RSDO’s rejection letter, however, noted the facts set out above and concluded under ‘Reason for Decision’:

‘…Looking at all that was communicated, there was no persecution by your government, so no external protection is required. You also revealed that you you [sic] went back to your country in 2009 when you[r] father was sick and you stayed there for [a] couple of months. You said things got bad with the family and that is when you decided to leave your country again and come to RSA. Lastely [sic], you said you don’t want to go back to your country because your relatives and the community will kill you. There are organizations that defends [sic] the rights of lesbian, gay, bisexual, transgender and intersex [persons] in your country, and you failed to approach them. Homosexual activity is not prohibited by law in the Democratic Republic of the Congo (DRC)…’

In his submission to the Standing Committee for Refugee Affairs (SCRA), M provided clarity about why he had a well-founded fear of persecution on the grounds of his sexual orientation in the DRC. As noted earlier, M went into hiding following the aforementioned incident when he was caught having sexual intercourse with his partner. While in hiding, M’s salon was vandalised and he was physically attacked at a bar outside of Lubumbashi. News began to spread across the university campus about M’s sexual orientation. His family members also physically and verbally attacked him for his sexual orientation, stating that it brought ‘shame’ to the family, and that he was a ‘devil’. His uncle physically and verbally assaulted M. It became apparent that it would not be possible to remain in the DRC due these assaults, and consequently M sought asylum in South Africa. The SCRA also rejected M’s claim as they confirmed it to be manifestly unfounded. This case had to be brought to the High Court for judicial review before the DHA could give any credence to M’s claims.

The LRC also represented a client in a case that demonstrates another challenge that arises for LGBTI claimants, namely that a claimant may be afraid to disclose their sexual identity to the RSDO, or to the interpreter present during their interview, for fear of discrimination. In the case of Makumba v The Minister of Home Affairs and Others Salie-Samuels AJ set aside the RSDO’s decision to find an asylum application as ‘manifestly unfounded’, and SCRA’s confirmation48.

The Makumba case is demonstrative of how judicial review can be used to challenge decisions made by the DHA with regards to asylum applications. The applicant in the matter, represented by the LRC, submitted that she had not been advised that she had 14 days in which to make written submissions to SCRA and therefore did not. The SCRA made its decision despite this fact, and the RSDO did not inform her of the possible grounds upon which she could claim asylum, which include discrimination on the basis of sexual orientation49.

The discrimination and outright failure of RSDOs to give effect to both international and domestic legal obligations in respect of LGBTI persons is glaring. Ironically, LGBTI asylum seekers from other African countries come to South Africa for protection, but a large number of their applications are rejected as ‘unfounded’.

The analysis of the shortfalls with the RSDO decisions also includes:

(a) Capturing the claim

The discrimination against LGBTI asylum seekers begins with the way in which the RSDOs capture the claims of the asylum seekers. In five different letters50 the RSDO uses an article before the word ‘gay’: ‘you are a gay’. This implies a categorisation of the person as if his/her nature was different. As a professional, the interviewer should be very conscious of the sensitivity of this subject. The use of the article and of ‘gay’ as a noun rather than as an adjective is discriminatory and offensive. It has the imminent risk of falling into discriminatory and prejudiced behaviour. It is obviously showing a lack of familiarity with the topic of sexual orientation and/or gender identity. An optimistic view of the situation may suggest that the insensitive language use is a result of writing in one’s second or third language. Even if this is the case, the concern remains that these officials should have been trained about how to behave professionally. Training ought to continue on an ongoing basis – especially when documents, such as the UNHCR Guidelines, are released.

The personal and intimate aspect of sexual identity should be especially considered by the interviewers. The focus of the RSDO ought to be on whether or not there is legitimate cause to fear persecution on the grounds of sexual orientation and gender identity (SOGI). It should not be based only on experienced persecution, or a lack thereof51. The assessment of the claim must consider the subjective claims, together with context information. It seems that the RSDOs do not necessarily treat each case and letter individually, and rely on a ‘copy-paste’ approach. This suggests that RSDOs are not properly applying their mind to the case at hand.

(b) Failure to ascertain country information at all and failure to consider section 3(a) claims in context

The UNHCR Guidelines expressly emphasise the importance of considering claims in context. Paragraph 42 of the UNHRC Handbook provides that ‘the Applicant’s statements cannot… be considered in the abstract and must be viewed in the context of the relevant background situation. Knowledge of the conditions in the Applicant’s country of origin – while not a primary objective – is an important element is assessing the Applicant’s credibility.’ This clearly demonstrates that claims for refugee status under section 3(a) must be considered in context. In practice, however, objective country information is either omitted entirely or selectively, and even erroneously, cited in rejection letters.
The failure to take accurate country information into account may result in unfair refusal decisions. For example, RSDOs often stated that sexual orientation and gender identity was not criminalised, or that the law in the country seemed not to be enforced. The countries under consideration were Uganda, Zimbabwe and Cameroon. The governments of these countries openly run ‘anti-homosexuality’ politics. Laws criminalising same-sex relations are normally a sign that protection of LGBTI individuals is not available. It is unreasonable to expect that the applicant will first seek the State’s protection against harm based on what is, in the view of the law, a criminal act. It should be assumed, in the absence of evidence to the contrary, that the country concerned is unable or unwilling to protect the applicant.

(c) Application of the incorrect burden of proof

It was noted earlier that the UNHCR recognises the practical difficulties of meeting the burden of proof when an individual is genuinely fleeing his/her country of origin. Thus, it provides for a more liberal and understanding approach to the burden of proof, and also imposes a ‘benefit of the doubt’ approach. However, it is apparent from the RSDO decisions, that the DHA has completely overlooked this practical approach to the burden of proof.
It is very common in rejection letters analysed to note an identical ‘cut and paste’ section under the burden of proof section. Each letter quotes a sentence from paragraph 196 of the UNHCR Handbook: ‘it is a general legal principle that the burden of proof lies on the person submitting a claim’. While this sentence is quoted accurately, it misrepresents the intention of that exact passage when read in full. The intention of paragraph 196 is to demonstrate that in asylum claims there is a shared duty on the applicant and the examiner to ascertain and evaluate all the relevant facts. Furthermore, in some circumstances, it may be the examiner alone who has to produce all the necessary evidence in support of the application. The misrepresentation of the UNHCR Handbook means that the RSDO incorrectly understands the burden of proof. The misrepresentation means that an inappropriately strict standard of proof is applied on LGT applicants. This approach will undoubtedly have prejudicial consequences for LGT applicants who could find their asylum applications rejected, with possibility of deportation.

(d) Flawed interpretation of the requirement of a ‘well-founded fear of persecution’ in the LGBTI context

In order to make a proper assessment of whether there is a well-founded fear of persecution in a given case, the UNHCR Guidelines state that ‘[a]ssessing whether the cumulative effect of such discrimination rises to the level of persecution is to be made by reference to reliable, relevant and up-to-date country of origin information’52. However, as seen above, there seems to be an almost absolute absence of reference to reliable, relevant and up-to-date country of origin information. Firstly, when considering whether or not the precondition of ‘well-founded fear of persecution’ is present, one must consider discrimination as a form of persecution. Secondly, it was explained that the burden of proof principle includes a duty on those considering asylum applications to investigate, on a case-to-case basis, the country context from which the applicant has fled.

Furthermore, a lot of the rejections have been made on the basis that the individual has not experienced/proven past experiences of persecution. However, this is in direct contradiction to the UNHCR Guidelines, which states explicitly that ‘[p]ast persecution is not a prerequisite to refugee status and in fact, the well-foundedness of the fear of persecution is to be based on the assessment of the predicament that the applicant would have to face if returned to the country of origin’53. Despite this provision, in four of the sample cases, the reason of ‘not having suffered any harm in the past’ is clearly stated as an argument for rejecting the asylum seeker’s application54.

A particularly disturbing concern is the formulaic response that appears frequently in the RSDO decisions. In several different letters, the RSDOs have cited, word-for-word, the Refugee Law expert James Hathaway55. Hathaway describes persecution as the sustained and systematic violation of basic human rights resulting from failure of state protection56. This is an incorrect statement of the law, as well as an inaccurate application of the law, bearing in mind the aforementioned provision in the UNHCR Guidelines that persecution need not have been directly experienced by the applicant. RSDOs regularly required that threats actually be carried out before an applicant would qualify for refugee status57. Thereby, they excessively rely upon a single element of Hathaway’s discussion, and ‘[r]ather than assessing the prospects for future persecution, they mistakenly created a threshold of cumulative past harassment.’58

Another concern is the failure of RSDOs to recognise that non-State actors can engage in persecution. This is clear failure in the application of the definition of refugees as entrenched by both the Refugees Act, the 1951 UNHCR Convention and the OAU Convention. The interpretation of non-State actors is broad, and may include members of one’s family, as well as one’s broader community. This failure is evidenced in RSDO decisions where the RSDO states that because the person has not been threatened by the official authorities, there has been no persecution59. Many RSDOs automatically rejected applications where asylum seekers were persecuted by non-State actors. They did not account for whether or not these applicants could have sought the protection of their own State government when persecuted by non-State actors.

In many cases, RSDOs consider fear to be well-founded only in regards to direct and immediate violence. They do not take into account fear as an intangible state and the pervasive effects fear can take on one’s quality of life. In many instances, LGBTI refugees live in constant fear of physical, verbal, mental and emotional attack, both on an intimate and a structural level. As homosexual activity is illegal in most African countries, an atmosphere of potential violence persists, often engulfing LGBTI refugees in such anxiety that they cannot walk down the street, socialise with friends, open businesses, or have a relationship comfortably, freely or safely. This impinges on their ability to partake in basic human rights and contribute to society. Furthermore, this anxiety produces stress that itself often becomes life threatening. Therefore, the emphasis on violent persecution is not only unjustified, but also goes against the UNHCR Guidelines’ provisions for what constitutes as persecution and grounds of persecution.

(e) The tendency to state that LGBTI individuals should simply keep their sexual orientation a secret in their country of origin to avoid persecution

Another error of law that the LRC has encountered has been for LGBTI refugee claimants to be rejected on the basis that they should simply return to their home country and keep their sexual orientation a secret. In one case, a homosexual man fled from Kenya following being imprisoned for two weeks after being arrested while at a restaurant with his boyfriend. In rejecting the applicant’s claim for refugee status, the RSDOs, in some cases, will reject the claim because no-one knew of the applicant’s sexual orientation and/or that the applicant was only persecuted because they informed others of his/her sexual orientation.

(f) A failure to recognise LGBTI individuals as a particular social group within the UN Convention definition of a refugee

As already stated, it has been accepted domestically and internationally that LGBTI persons are a particular social group for the purposes of the definition of a refugee. In spite of this clear legal position, RSDOs frequently decline to recognise this and reject the claims of individuals who have fled their country due to persecution on the grounds of their sexual orientation as manifestly unfounded.

For example, the LRC was approached by a homosexual man from Cameroon who had fled after having been ostracised and threatened by community members because of this sexuality. This ultimately culminated in the murder of his partner. In his decision, the RSDO captured the details of the claim correctly, but issued a rejection in any case, stating that the reasons advanced for applying for asylum fall outside the ambit of the Refugees Act. Clearly this demonstrates the failure by RSDOs to understand and capture LGT asylum claims.

(g) Denouncing credibility of applicant

Credibility is often easily established between the two interviews at DHA. This assessment finds the RSDO’s question into credibility to be justified. Though justified, there are not enough grounds for a decision of rejection solely on credibility.

Often there are circumstances, such as not properly capturing a claim, that create space for credibility to be questioned. In the case of certain clients, such as those from Cameroon, language may have been an issue. If an interpreter was chosen for them, the client may not feel comfortable sharing such sensitive information with that person present. Additionally, it is important to investigate how issues are being handled procedurally. In the UNHCR Guidelines there is a full list of guidelines of how LGBTI asylum seekers should be handled60. Based on the rejections letters, as well as casework with clients, it is difficult to believe that DHA is following these guidelines.

These guidelines must be followed for additional reasons but, most respectfully, RSDOs must follow these guidelines to ensure safety. Every single person coming into South Africa for asylum because of their sexual orientation and/or gender identity is afraid. They are afraid they cannot go home. They are afraid of a new country. Most of all, they are afraid of further persecution by any person they come across in this unknown environment. When they first file for asylum, they may give a different reason for seeking asylum until they are interviewed. It is completely plausible that the two stories would not correlate. That is why it is necessary for the RSDO to take every step necessary to ensure an LGBTI refugee feels comfortable. The list identified in the UNHCR Guidelines ensures credibility issues are dealt with immediately.

Murphy J, in Tantoush v Refugee Appeal Board and Others61 , also discusses concerns related to how the RAB and RSDO each used the credibility consideration to reject the applicant’s claim for asylum. The applicant’s version of why he had fled to South Africa had not altered substantially in the accounts he put forward before the RSDO and RAB. The RAB argued that the credibility of the applicant had been marred because, by the applicant’s own account, he had lied, paid bribes and acted fraudulently at various times since he fled Libya, until he arrived in South Africa62. Murphy J asserted that it is unlawful to preclude the applicant from consideration for asylum on the basis that he had honestly (and consistently) testified that he had been deceitful in his past, and it is inappropriate to dismiss his testimony on the basis that he has been untruthful in the past63. Murphy J added that it seemed that the RAB had not considered country context information sufficiently in light of their overemphasis on the issue of credibility64. Murphy J argued that the RAB had failed to explain to the applicant that his past dishonesty would be prejudicial to his case65. He also dismissed the RAB’s argument that the applicant’s ‘failure’ to request refugee status in previous stages of his past outside of his home country meant that he was not a credible applicant66. Lastly, the assessment of credibility upon the applicant’s account alone was insufficient grounds for such an assessment, evidenced by the apparent failure to cross-examine the applicant in order to verify that this account was consistent67.

CONCLUSION

This observation is pertinent when confronting discrimination on the grounds of sexual orientation and/or gender identity. Many of these prejudices are deep-rooted and conveyed as cultural or traditional truisms – conventions that often fail to consider how these values were influenced by the spread of certain religious values under colonialism. It is essential that we move away from labelling sexual orientation and/or gender identity as ‘African’ or ‘un-African’. Such labels fail to recognise the innate and universal human elements of one’s sexual orientation and/or gender identity. It is our hope that this paper, and our work as a human rights law clinic, will help to bring light to the injustices that are being experienced by LGBTI asylum seekers and refugees in South Africa.


 

  1. The number varies depending on if one takes into account provinces within federal countries that have outlawed homophobia, and which laws have been used to determine that homosexuality has been outlawed.
  2. 76crimes ‘78 Countries where Homosexuality is Illegal’, available at http://76crimes.com/76-countries-where-homosexuality-is-illegal/, accessed on 16 April 2015
  3. This is a summary of research and a research report that is currently being drafted by the LRC Equality and Non-Discrimination project, which will be released in 2016
  4. Section 1 of the Constitution
  5. http://mg.co.za/article/2015-06-29-mozambique-scraps-colonial-era-homosexuality-and-abortion-bans
  6. Marc Epprecht Hungochani: The History Of A Dissident Sexuality In Southern Africa 1st ed, McGill-Queen’s Press, 2005: 254
  7. Epprecht 2004: 254
  8. Epprecht 2004: 254
  9. Epprecht 2004: 254
  10. Amnesty International ‘Rising levels of homophobia in sub-Saharan Africa are dangerous and must be tackled’ 24 June 2013, available at http://www.amnestyusa.org/news/news-item/rising-levels-of-homophobia-in-sub-saharan-africa-are-dangerous-and-must-be-tackled, accessed on 22 April 2015
  11. Now African Union
  12. The wording of section 3(a) is similar to the wording in Article 1(A)(2) of the 1951 Convention. The wording in section 3(b) is similar to the wording in the OAU Convention.
  13. See the UNHCR ‘Guidelines on International Protection No. 9’ HCR/GIP/12/09, 23 October 2012, available at http://www.unhcr.org/509136ca9.pdf, accessed on 15 April 2015.
  14. Ibid para 44
  15. Ibid para 47
  16. Khan and Schreier 72, Ward, Acosta
  17. The full text of the UNHCR Guidelines is available at http://www.unhcr.org/509136ca9.pdf, accessed on 25 May 2015
  18. Sections 44–49 of the UNHCR Guidelines
  19. Text available at http://www.yogyakartaprinciples.org/principles_en.htm, accessed on 4 May 2015
  20. Para 8 of the UNHCR Guidelines, and Preamble of the Yogykarta Principles
  21. Ibid
  22. Para 37 of UNHCR ‘Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status’ United Nations, available at http://www.unhcr.org/3d58e13b4.html, accessed on 4 May 2015
  23. Ibid
  24. Ibid
  25. Id. at Part 1 Chap II B (2)(a) par 40
  26. Id. at Part 1 Chap II B (2)(a) 38
  27. Para 19 of UN Guidelines
  28. Para 19 of UN Guidelines
  29. Grahl-Madsen The Status of Refugees in International Law 193
  30. F Khan and T Schreier (eds) Refugee Law in South Africa 51
  31. Para 18, UN Guidelines.
  32. UNHCR Guide relating to sexual orientation and gender identity page 12
  33. UNHCR Guide relating to sexual orientation and gender identity page 12
  34. UNHCR Guidelines para 31
  35. UNHCR Guidelines paras 34–37
  36. Ibid at para 34
  37. Ibid
  38. Ibid para 35
  39. Ibid para 36
  40. Ibid
  41. UNHCR Guidelines para 27.
  42. Ibid para 37
  43. See the case Nicholas Toonen v Australia, leading to universal decriminalisation of homosexuality, 1994.
  44. UNHCR Guidelines para 27
  45. ‘196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the “benefit of the doubt”.’ [Emphasis added]
  46. Organisation for Refuge, Asylum and Migration ‘Blind Alleys Part II Country Findings: South Africa’ February 2013, available at http://www.oraminternational.org/images/stories/PDFs/blindalleys/20130226%20oram_ba_southafrica.pdf, accessed on 22 December 2014.
  47. Ibid
  48. Makumba v Minister of Home Affairs and Others (6183/14) [2014] ZAWCHC 183 (3 December 2014), available at http://www.saflii.org/za/cases/ZAWCHC/2014/183.pdf, accessed on 17 June 2015
  49. Ibid para 2
  50. From Zimbabwe and Uganda
  51. UNHCR Guidelines para 28.
  52. UNHCR Guidelines para 17.
  53. UNHCR Guidelines para 18
  54. (U10, U12, CA18, Z14).
  55. Hathaway, James C. The Law of Refugee Status, Osgood Hall Law School York University Butterworths Canada Ltd. (1991) p. 101.
  56. (U5, U9, U10).
  57. FMSP Report April 2010, p. 26. This mistake affects six of the cases we study here (U7, U8, U10, U12, CA18, Z14).
  58. FMSP Report April 2010, p. 27.
  59. This was done for applicants who came from Uganda and Cameroon.
  60. UNHCR no. 9 paras 58–61.
  61. 2008 (1) SA 232 (T)
  62. Para 101, Tantoush v Refugee Appeal Board and Others
  63. Para 102, ibid
  64. Para 104, ibid
  65. Ibid.
  66. Ibid.
  67. Ibid.