In Pursuit of Equality in South Africa

The Treatment of Victims of Sexual Violence in South Africa’s Refugee Status Determination System

LARA WALLIS

 

According to United Nations High Commissioner for Refugees (UNHCR), at the end of 2013 there were approximately 65,668 recognised refugees and 243,948 asylum seekers with pending cases in South Africa1. South Africa receives the largest volume of its asylum seekers from the Democratic Republic of Congo (DRC) and Somalia. Both of these nations have been shaken by conflict in the last decade and, significantly, both are notorious for the employment of rape and other forms of sexual violence as weapons of war.

For this reason, it is essential that Refugee Status Determination Officers (RSDOs) in South Africa are sensitive and aware of the contextual background of claimants’ countries of origin when assessing female claims. These claims need to be handled with care to ensure that women displaced by sexual violence in the context of conflict are protected and their fundamental human rights are respected. Sadly, the Legal Resources Centre’s (LRC) first-hand experience in assisting such claimants demonstrates that, in practice, this is most often not the case.

This chapter will proceed as follows:

  1. A brief background on rape in the context of the legal framework for refugee protection will be provided.
  2. Key flaws in the refugee status determination system in the handling of sexual violence claims from conflict areas will be identified and explored.
  3. Recommendations as to how these issues may be remedied will be provided.

RAPE AND SEXUAL VIOLENCE IN THE CONTEXT OF THE LEGAL FRAMEWORK FOR REFUGEE PROTECTION IN SOUTH AFRICA

The first challenge that is faced by women who have fled conflict areas is that of actually being recognised as refugees in South Africa. In order to qualify as a refugee in South Africa, a claimant has to fall within the following definition enunciated in section 3 of the Refugees Act 130 of 1998:

‘Subject to Chapter 3, a person qualifies for refugee status for the purposes of this Act if that person-

  1. owing to a well-founded fear of being persecuted by reasons 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 a fear, unwilling to return to it; or
  2. owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere; or
  3. is a dependant of a person contemplated in paragraph (a) or (b)’ [Emphasis added]

Section 3(a) above is the definition of a refugee adopted by the 1951 UN Refugee Convention while section 3(b) is taken from the extended definition of a refugee in the 1969 AU Convention.

As a starting point, it is helpful to examine how women who have fled conflict zones where they have been subjected to sexual violence fit into the definition of a refugee as found in section 3 of the Refugees Act.

Section 3(a) requires a claimant to have a well-founded fear of persecution on the basis of a so-called ‘Convention ground’ or by virtue of their being part of a particular social group. RSDO decisions in South Africa have frequently declined to recognise rape and sexual violence in the context of conflict situations as ‘persecution’ for the purposes of section 3(a) of the Refugees Act. It is submitted that this is patently incorrect and constitutes a failure to recognise a particularly serious form of persecution.

With regard to the meaning of ‘persecution’ in itself, 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.’2

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 seeker.3 Rape and sexual violence clearly constitute serious violations of the right to dignity, as well as bodily and psychological integrity. In cases of rape in the context of conflict situations, government soldiers are frequently the agents of rape themselves and little or no protection is offered to asylum seekers. Rape, therefore, clearly constitutes persecution for the purposes of the Refugees Act, although this is frequently not accepted by RSDOs.

UNHCR has also expressly stated that rape can fall under the umbrella of persecution:

‘There can be no doubt that when rape or other forms of sexual violence committed for reasons of race, religion, nationality, political opinion or membership of a particular social group is condoned by the authorities, it may be considered persecution under the definition of the term ‘refugee’ in the 1951 Convention relating to the Status of Refugees (Article 1(a)(2)). A well-founded fear of rape in such circumstances can thus provide the basis for a claim to refugee status.’

This refers to rape as persecution for the reason of one of the enumerated Convention grounds, namely race, religion, political opinion, nationality or a particular social group. The term ‘particular social group’ (PSG) is defined in section 1(xxi) of the Refugees Act and expressly includes gender. Thus, rape and sexual assault in a time of conflict can give rise to a valid claim for persecution within section 3(a) of the Refugees Act, based on gender or another listed ground (for example, if a person were to be persecuted in the form of rape on the basis of their religion or political opinion). It must be noted that the definition of a ‘social group’ in the Act is phrased using the words ‘… includes, among others, a group of persons of a particular gender, sexual orientation, disability…’. This demonstrates that the groups expressly stated do not constitute a closed list.4

The term ‘particular social group’ has been interpreted in foreign jurisprudence. It is widely accepted that in order to qualify as being part of a PSG, one must be part of a group of individuals who share a ‘common, immutable characteristic’.5 In other words, a PSG shares characteristics that cannot be altered by choice. We submit that, as a subcategory of gender, for the purpose of a claim under section 3(a), the PSG in cases of claimants from conflict zones could in fact be ‘women in a period of conflict’. Women are frequently raped and abducted by soldiers during such times, as will be demonstrated upon examining country information below. The characteristics of being a woman during a period of conflict certainly cannot be altered by choice.

In situations in which rape is utilised as a weapon of war, a claimant can also qualify for status under section 3(b) of the Refugees Act. Both the conflict itself and the systematic use of rape in warfare can be interpreted to constitute ‘an event seriously disrupting the public order’, therefore compelling an individual to leave their country of origin. In spite of this, as will be demonstrated below, RSDOs regularly reject claims for refugee status for asylum seekers who have fled conflict regions and who have experienced sexual violence in this context.

FLAWS IN THE REFUGEE STATUS DETERMINATION SYSTEM IN THE HANDLING OF SEXUAL VIOLENCE CLAIMS FROM CONFLICT AREAS

In 2012, Roni Amit of the University of the Witwatersrand’s African Centre for Migration and Society (ACMS) published a highly comprehensive report on the quality of refugee status determinations in accordance with international and domestic law entitled, All Roads Lead to Rejection. In a chapter entitled, ‘All Roads Lead to Rejection: The Case of Gender-Based Persecution’, Amit states that in addition to a ‘widespread failure to recognise gender-based persecution as a ground for refugee status’, key deficiencies can be identified, such as:

i. A lack of knowledge essential for decision-making, both in terms of a knowledge of refugee law as well as an awareness of country conditions.

ii. An ‘absence of analytical ability such that even the clearest patterns of persecution went unnoticed.”

iii. An ‘unacceptable lack of literacy or care, leading to decision letters with little care or no bearing on the actual content of the claims.’6

Based on LRC’s experience in assisting asylum seekers in preparing their appeal papers following being rejected for refugee status, LRC has identified the same deficiencies and align ourselves with Amit’s analysis. Amit provides examples of RSDO rejections that clearly demonstrate these trends. This subsection will, therefore, examine and expand on the deficiency areas as identified by Amit, issues based on our experience in assisting clients, utilising examples of RSDO letters that we have encountered.

In line with Amit’s findings in All Roads Lead to Rejection, LRC has identified the following trends in RSDO decision letters:

a. RSDOs have a tendency apply the burden of proof incorrectly, placing the burden of proof squarely on the applicant.

b. In many decisions, RSDOs ignore the issue of rape completely, demonstrating a lack of sensitivity towards claimants, as well as a lack of understanding of the application of section 3 of the Refugees Act.

c. RSDOs generally fail to ascertain country information and fail to consider section 3(a) claims in context, or fail to acquire the necessary facts to make a determination of whether a claim falls within section 3(b) of the Refugees Act.

d. RSDOs frequently inappropriately reject such claims due to the erroneous reliance on the Internal Flight Alternative.

e. RSDOs fail to consider the application of section 5(e) of the Refugees Act in assessing sexual violence claims.

These issues will each be dealt with in turn, and extracts of RSDO decisions which clearly demonstrate them will be provided.

1. The application of the incorrect burden of proof

In the vast majority of RSDO decisions, RSDOs tend to misstate the burden of proof requirement in refugee status claims. The majority of decisions contain the same copy-pasted sentence under the heading of ‘Burden of Proof’, namely:

‘It is a general legal principle that the burden of proof lies on the person submitting the claim.’

This is the first sentence of paragraph 196 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook). However, if one goes on to read the remainder of paragraph 196, page 47, it significantly goes on to state:

‘Often however, an applicant may not be able to support his statements by documentary or other proof and cases in which applicant can provide evidence of all his statements will be the exception rather than the rule… … Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all relevant facts is shared between applicant and examiner. In some cases, it may be for the examiner to use all means at his disposal to produce necessary evidence in support of the application. Even such independent research may not always be successful and there may also be statements not susceptible of proof. In such cases, if applicant’s account appears credible, he should unless there are good reasons to the contrary, be given the benefit of the doubt.’ [Emphasis added]

Thus, in accordance with the UNHCR Handbook, the RSDO shares the duty to ascertain and evaluate all relevant facts in a given case and the applicant should also be given the benefit of the doubt unless there are good reasons to the contrary. RSDOs refrain from accepting this and frequently fail to adequately discharge this duty in cases involving women who have fled from incidences of sexual violence in the context of conflict. As will be demonstrated in subsection (c) below, RSDO decisions, more often than not, do not reflect any meaningful engagement with relevant country information at all.

In failing to play a part in the shared duty to ascertain and evaluate all relevant facts, RSDOs also place an unnecessarily onerous burden on the applicant to prove every element of her claim. This is especially problematic in a case involving sexual violence, as the claimants are often traumatised and embarrassed to fully disclose what has happened to them. The failure to come to decisions in line with the approach stated in the complete paragraph 196 also demonstrates a lack of sensitivity towards these claimants. This will be explored in more detail in subsection (ii) below.

2. Ignoring the matter of rape entirely: A lack of sensitivity in the interview process coupled with a lack of knowledge of the law and country information

In the LRC’s experience in assisting female asylum seekers, in addition to a lack of knowledge of the law and country information, the issues of rape and other sexual and gender-based violence are not treated with sufficient sensitivity by RSDOs at the Department of Home Affairs.

Very often, in spite of the fact that it is acknowledged in the ‘Claim’ section of a decision that the claimant has stated that she has been raped, either no mention is made of the rape or the issue is treated in a callous manner.

An example of a decision in which rape was ignored entirely concerns a claim in which a woman from the DRC had a brother who was a policeman who had accidentally killed someone. The family of the deceased then came to search for her brother and she was raped by them. Under the heading of ‘Reasons for Decision’ in this claim, the decision simply stated:

‘Your application for asylum is made on grounds other than those on which an application may be made under the Act.’

No effort was made to examine the possibility of rape as a form of persecution on the basis of an imputed section 3(a) ground.

In another decision regarding a woman from the DRC, the woman’s claim was that she worked as a correspondence journalist in the DRC and was arrested and tortured. She had been charged with giving information about Bosco Ntaganda’s activities to her employers. After she was released, soldiers came to her home and abused and raped her in front of her husband and family, and also raped her mother. The RSDO’s ‘Reason for Decision’ reads as follows:

‘There is no well-founded fear… You claim that you were arrested and released after two days. To me this is an indication that the authorities were not interested in harming/killing you, if they were interested in killing they were supposed to do so in prison because there was noone [sic] to stop them and the charges against you are not clear. You failed to state the dirt things [sic] that were done by officers. You failed to demonstrate that you were subjected to persecution and there is nothing to suggest that you were targeted [there are no series of events directed to you]. Although you claim you were a journalist and you seem not having a clue of journalism. There is reasonable threat in your life [sic] and you are not in need of protection and DRC’s government can grant you [sic]’

The claimant’s reference to the fact that she was raped in front of her husband and family is ignored completely by the RSDO. The RSDO, in stating that the claimant ‘failed to demonstrate that you were subjected to persecution’, is effectively negating the fact that rape constitutes persecution, which is patently incorrect in law.

An example of a situation in which the issue of rape was treated with a callous and dismissive attitude is as follows:

Claimant X lived in Goma of North Kivu Province, with her mother and father. One night, at around 1am, six attackers wearing military uniforms and hoods entered her home by force. She was in her bedroom at the time and heard the men then shoot at the doorin order to enter the house. She heard her mother cry out as she was dragged to the living room and heard the men instruct her to remove her clothes as they argued over who would have her first. A soldier came to her bedroom and pulled her to the living room, and he told me to lie down and watch “what father had enjoyed”. She was then taken outside by one of the soldiers who said that he was going to take her as his woman. He took her to a building where there were many other soldiers and women where the men marked their knees with a needles and a stone to show to whom they “belonged”. She was kept there for three years where she was repeatedly raped, at first by the man who brought her there and then the soldiers began changing them among them. She also became pregnant three times and miscarried all three times. Eventually, she managed to escape when one day when she was sent out to fetch firewood.

Under the heading of ‘Reason for Decision’, the RSDO stated as follows:

‘… from the information you presented to the RSDO, it is not possible that the rebels could rape your mother in front of you and allow you to watch and do nothing to you and also allow you to just leave, rebels are people with more violence [sic] using force with matters [sic] therefore, your claim is unfounded and you failed to come up with reasons that justify that you must be recognized as a refugee and therefore your application for refugee status has been unfounded in terms of section 24(3)(c) of the Refugees Act no 130 of 1998.’

This is a clear example of the callous handling of the topic of rape and a lack of knowledge of the law. This claimant clearly falls into the category of section 3(a) of the Refugees Act in light of the persecution in the form of rape that she experienced based on her membership of the particular social group of women during a period of unrest. The RSDO gave no objective qualification as to why it would not be possible for soldiers to rape her mother in front of her and ‘do nothing’ to her. This statement was simultaneously highly insensitive and purely speculative. Furthermore, the soldiers did not in fact ‘do nothing to her’, as the RSDO stated. To be abducted by soldiers and kept as a sex-slave can hardly be said to constitute ‘nothing’.

The lack of sensitivity on the part of RSDOs is a serious cause for concern. It puts claimants through undue stress and, most significantly, it results in incorrect rejections of claims for refugee status for women who have suffered enormously.

LRC has found that, since the introduction of the Refugees Act 130 of 1998, female asylum seekers seeking asylum on the grounds of having fallen victim to sexual violence were not automatically allocated the assistance of female RSDOs and interpreters. In addition, the decisions rejecting many female asylum seekers applying for asylum on these grounds demonstrated a lack of sensitivity on the part of RSDOs.

To the LRC’s knowledge, no special training had been provided to officers for the purpose of interviewing women regarding sensitive or painful experiences. As a result of LRC’s concern about the handling of decisions regarding female asylum seekers who have fled conflict-ridden countries, the organisation wrote to the Minister of Home Affairs to appeal to the Department to take measures to ensure that female interviewers and interpreters would be automatically provided for women applicants.

LRC emphasised that the failure to ensure that female interviewers are allocated to female applicants constitutes a denial of the fundamental rights of female asylum seekers, particularly in light of the fact that the claims of the majority of female asylum seekers in South Africa are based on rape as a weapon of war and other forms of gender-based persecution. Furthermore, UNHCR guidelines expressly require that women should be interviewed by female officials.

Guidelines on International Protection No. 1 consist of a set of Guidelines that pertain specifically to Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention/its 1967 Protocol Relating to the Status Of Refugees. These Guidelines complement the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Geneva, January 1992). Such Guidelines are intended to, ‘provide legal interpretive guidance for governments, legal practitioners, decision-makers and the judiciary’. Part III of the Guidelines on Gender-Related Persecution expressly states at Paragraph 35 that:

‘Persons raising gender-related refugee claims, and survivors of torture or trauma in particular, require a supportive environment where they can be reassured of the confidentiality of their claim. Some claimants, because of the shame they feel over what has happened to them, or due to trauma, may be reluctant to identify the true extent of the persecution suffered or feared. They may continue to fear persons in authority, or they may fear rejection and/or reprisals from their family and/or communities.’

There have been a number of cases encountered by the LRC in which asylum seekers have been too ashamed to recount their ordeal to male officials. This is why it is of vital importance that female asylum seekers are interviewed by female interviewers.

The Guidelines go on to make recommendations of specific measures to be implemented to ensure that the gender-related claims of women are properly considered in the refugee status determination process. These include that women asylum seekers should be interviewed separately, without the presence of male family members, and that same-sex interviewers and interpreters should be provided automatically for women claimants.

However, it has been noted that some decisions by female RSDOs have also trivialised the issue of rape. Therefore, it is essential that proper training on the handling of clients who have suffered sexual violence is provided to female RSDOs to ensure that such claims are handled with the requisite sensitivity.

In addition to the highly insensitive approach to female asylum seekers, accurate contextual country information is not evident in RSDO decisions.

3. The failure to ascertain country information and consider claims in context

In addition to the highly insensitive approach to female asylum seekers who have experienced sexual violence, accurate contextual country information is not evident in RSDO decisions. 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.

The Guidelines on Gender-Based Persecution also state that:

‘Country of origin information should be collected that has relevance in women’s claims, such as the position of women before the law, the political rights of women, the social and economic rights of women, the cultural and social mores of the country and consequences for non-adherence, the prevalence of such harmful traditional practices, the incidence and forms of reported violence against women, the protection available to them, any penalties imposed on those who perpetrate the violence, and the risks that a woman might face on her return to her country of origin after making a claim for refugee status.’7

Based on the clients who have approached us for assistance, the RSDOs have not ascertained country information relevant to women’s claims. Frequently, the rejections are bare and contain no country information whatsoever.

In order to demonstrate the impact that a failure to examine country information can have on a decision, it is helpful to briefly examine the country information of the DRC and Somalia in so far as the incidences of rape and sexual violence during conflict periods are concerned. These are two countries from which South Africa receives the highest volume of asylum seekers.

LRC has gathered a considerable volume of information regarding the employment of rape as a weapon of war through its experience in compiling appeal affidavits for clients. News articles and reports demonstrate that sexual violence perpetrated against women by soldiers (both rebel and government forces) continue to be rife in DRC.

A UNHCR article, published in 2011, entitled, ‘48 women raped every hour in Congo, new study shows, far surpassing previous estimates’ refers to DRC as the, ‘worst place on earth to be a woman’ and states:

‘Congo, a nation of 70 million people that is equal in size to Western Europe, has been plagued by decades of war. Its vast forests are rife with militias that have systematically used rape to destroy communities… The highest frequency of rape was found in North Kivu, the province most affected by the conflict, where 67 women per 1,000 had been raped at least once.’

This supports the submission that women of conflict areas qualify as a particular social group subject to persecution. A number of asylum seekers in South Africa have fled North Kivu8 province which, as described, is the area with the highest frequency of rape.

Support for the submission that women are particularly vulnerable during times of conflict is also found in a news story from UNHCR entitled, ‘UNHCR statistics show alarming rise in rape and violence against women in North Kivu’ from 30 July 2013:

‘The UN refugee agency warned on Tuesday that recurrent conflict in the Democratic Republic of the Congo’s9 North Kivu province is uprooting more civilians and exposing an increasing number of women, girls and men to rape.

Statistics gathered by UNHCR in North Kivu point to an alarming rise this year in acts of violence against women and girls in the province, particularly rape.’

Further support for this submission is found in the 2014 10 Human Rights Watch Country Summary for the Democratic Republic of Congo which states the following:

‘Armed conflict continued in eastern Democratic Republic of Congo, with Congolese security forces and non-state armed groups responsible for serious abuses against civilians. The Rwandan-backed M23 armed group committed widespread war crimes, including summary executions, rapes, and forced recruitment of children.’

The Report states that women have been subject to rape and abuse at the hands of both Security Forces, as well as rebels.

The European Commission also produced a Fact-Sheet on the Democratic Republic of Congo published in February 2014 in which it states, inter alia, that:

‘The chronic and complex humanitarian crisis in the Democratic Republic of Congo (DRC) persists. At least 40 armed groups continue to commit human rights abuses in the eastern provinces of the country… Abuses of power and violence, including looting, rape, abductions and forced recruitment of children by armed groups and the Congolese army continue to be a major concern… The lack of protection for civilian populations is the overarching problem in all conflict-affected areas…’

The 2013 Amnesty International Country Report11 (Annexure 4 attached) states as follows, under the heading ‘Violence against women and girls’:

‘Women and girls bore the horrific cost of intensified hostilities and were widely subjected to rape and other forms of sexual violence committed by the FARDC [the Armed Forces of the Democratic Republic of the Congo] and armed groups… Sexual violence was more pervasive where the national army lived alongside the population… Elsewhere in the country, members of the national police and other security forces continued to commit acts of rape and sexual violence’

The fact that the police and national security forces are themselves frequently the perpetrators of rape and sexual violence demonstrates the reality that victims of rape and sexual violence are unable to find protection in the DRC.

Country information on Somalia gathered by the LRC demonstrates that women have been the main victims of violence in conflict-ridden areas for more than two decades.

According to the Human Rights Watch 2015 World Report12, sexual violence in Somalia continues to be a pervasive problem. The report states the following:

‘While the full scope of sexual violence in Somalia remains unknown due to underreporting and absence of data, it is clear that internally displaced women and girls are particularly vulnerable to rape by armed men, including Somali government soldiers and militia members. Government forces and allied militia have also taken advantage of insecurity in newly recovered towns to rape local women and girls.’

Due to a lack of measures for accountability, women also face sexual violence from individuals on purported peace-keeping missions in the country. The Human Rights Watch report goes on to state:

‘Some soldiers from Uganda and Burundi deployed as part of the African Union Mission in Somalia sexually exploited and assaulted women and girls on their bases in Mogadishu. In some cases, women and girls were offered humanitarian assistance, medicine, and food in exchange for sex. Few women filed complaints due to a fear of reprisals and an absence of effective and safe complaints mechanisms.’

A Human Rights Watch report entitled, The Power These Men Have Over Us – Sexual Exploitation by African Union Forces in Somalia13 provides further details on this issue.

The United Nations Office of the Special Representative of the Secretary-General for Sexual Violence in Conflict has stated as follows in a report issued on 23 March 2015:

‘Sexual violence remains widespread across Somalia, notably in the south central regions, with increases in frequency consistently observed during military offensives, particularly at checkpoints. According to the Gender-Based Violence Information Management System, 2,891 incidents of gender-based violence were reported between January and August 2014 in Mogadishu alone. Of these, 28 per cent were cases of rape and 9 per cent were sexual assaults. These numbers are regarded as a gross underestimation, as fear of stigma and reprisals inhibits reporting.’

The country information on both of these countries (current at the time of writing) lends support to the fact that the fear of future sexual abuse, on the part of victims who have fled sexual abuse in conflict areas, is well-founded and that there is an objective basis for the fact that a claimant’s physical freedom would be at risk should they be forced to return.

Another relevant issue is that, frequently, due to the practical realities of the refugee status determination system, women only have their ‘second interviews’ anywhere between one and five years after their initial application for asylum. RSDOs reject individuals on the basis that, while they recognise that such claimants have experienced ‘past persecution’, there is no future risk of persecution to justify the claimant’s well-founded fear. This is a further reason that it is problematic that RSDOs fail to ascertain country information that is specifically relevant to the situation of women in conflict zones.

The sources detailed above demonstrate that persecution of the same nature that claimants experienced when they fled from their country of origin, in many cases, continues to persist. This further emphasises the necessity of the ascertainment of current country information on the part of RSDOs.

4. RSDOs frequently inappropriately reject such claims by the erroneous reliance on the Internal Flight Alternative.

Although it is not referred to expressly, a ground for rejection often employed by RSDOs is that of the Internal Flight Alternative (IFA). RSDOs often suggest that sexual violence takes place primarily in eastern DRC and that women are free to simply relocate to other areas of the DRC and find safety there.

An example of the application of this reasoning can be found in a decision in which a claimant from Ruthshuru stated that she fled due to the fact that there was conflict in the area and many people were being killed and sexually abused. In relation to this, the RSDO’s decision was the following:

‘You again made mentined [sic] that there are women that are sexualy [sic] abused by the rebels and killed by the rebels however although you mentined that ebove [sic] however there is a newly paved road that is being constructed between Goma and Kisangeni and Katanga provided by the German Agro Aid group and in mid-2006 only 30 miles remained to be built. This means that the east of the country and the river Congo for the first time since the 1996-2002 civil conflict. moreover [sic] although there are practical difficulties in moving between areas under government control relocation [sic] by river or air is possible and is not unduly harsh. Those who are in fear of non-state agents in areas dominated by rebel forces are able to safely relocate to a different area to escape this threat.’

The substance of this decision is that anyone fearing death or sexual abuse at the hands of rebel forces can simply use the ‘newly paved’ road to move away from them and, therefore, their fear is unfounded This reasoning fails to take into account the expanded AU definition of a refugee, adopted under section 3(b) of South Africa’s Refugees Act:

‘… owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere’ [Emphasis added]

It also fails to take into account the issue of sexual violence in conflict-ridden nations such as the DRC and Somalia as a whole. An analysis of country information shows that persecution in the form of rape is not limited to conflict areas alone. An article published on allAfrica.com on 2 June 2014 entitled, ‘Congo-Kinshasa: Rape, Sexual Violence Targets Women Across the DRC’14:

‘Rape and other forms of sexual violence in the Democratic Republic of Congo (DRC) are not limited to the war zones in the eastern parts of the country – women detained miles away from conflict are suffering in similar ways to those in the east.’

The article states further:

‘Freedom from Torture’s report is based on evidence from doctors’ examinations of women raped and violated in the DRC who subsequently sought help from the charity, and asylum in the United Kingdom. Most of the women featured in the report were based in Kinshasa, far away from the conflict zones …’

This article serves to show that claimants in sexual violence refugee claims cannot simply be rejected on the basis that they can seek safety elsewhere in their country, without thorough research and analysis of current country information. The country information also needs to be focused on the precise issue of the frequency of rape in the DRC and other countries, both within and outside of conflict areas and periods.

The application of the IFA in these cases is, therefore, not appropriate.

5. The failure to consider the impact of trauma on an applicant’s willingness to return to their home country in line with section 5(e) of the Refugees Act

An additional provision in the Refugees Act that is relevant to status determinations in the case of women who have fled sexual violence in conflict areas, which is generally overlooked by RSDOs, is section 5(e) of the Refugees Act. Section 5(e) reads as follows:

‘(1) A person ceases to qualify for refugee status for the purposes of this Act if:

(a) […]

(b) […]

(c) […]

(d) […]

(e) he or she can no longer continue to refuse to avail himself or herself of the protection of the country of his nationality because the circumstances in connection with which he or she has been recognized as a refugee have ceased to exist and no other circumstances have arisen which justify his or her continued recognition as a refugee.

(2) Subsection 1(e) does not apply to a refugee who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of the country of nationality.’ [Emphasis added]

This provision was interpreted for the first time in South African jurisprudence in 2007 in the Transvaal Provincial Division of the High Court (as it was then called) in the matter of Mayongo v Refugee Appeal Board and Others.15 This case turned on the issue of whether post-traumatic stress constitutes a compelling reason for an individual to refuse to avail him/herself of the protection of the government in his or her country of origin for the purposes of section 5(2) of the Refugees Act.

Significantly, in that case, the court found that the fact that the Refugee Appeal Board had refused the applicant refugee status did not render section 5 inapplicable to him in spite of the fact that the section uses the term ‘refugee’. The court stated at paragraph 8:

‘According to the UNHCR handbook a person is a refugee as soon as he/she fulfils the criteria contained in the definition. That takes place before he/she applies for refugee status. Recognition of refugee status does not make the person a refugee but only declares that he/she is one. “He does not become a refugee because of recognition, but is recognized because he is a refugee.” I agree fully with that approach.’

Thus, the applicant in Mayongo was held to fall under section 5(e) despite the fact that he was still an asylum seeker in the technical sense. The case concerned a man from Angola who was forced to eat cooked parts of his father’s body after his father was killed. The court in that case found that the applicant’s post-traumatic stress caused by this experience in his home country constituted a compelling reason for him to be unwilling to avail himself of its protection. Based on this, the court substituted the decision of the Refugee Appeal Board with its own and ordered that the applicant be granted refugee status.

If one follows the Court’s line of reasoning in this case, in relation to asylum seekers having fled their countries following brutal incidences of sexual violence, section 5(2) could be applicable and appropriate for such claimants. It can be argued that the trauma that impacts an individual after an incident of rape never truly leaves them. Rape Trauma Syndrome (RTS) is a recognised form of Post-Traumatic Stress Disorder and affects victims for many years. It is submitted that RSDOs should give due consideration to the application of section 5(e) of the Refugees Act when assessing the claims of victims of sexual abuse.

POSSIBLE RECOMMENDATIONS AS TO HOW THESE ISSUES CAN BE REMEDIED

It seems the best possible solution to the issues raised, with regard to the quality of RSDO decisions with respect to women who have fled conflict zones, lies in ensuring that the individuals charged with the responsibility of making these decisions are adequately trained. Training is required in the following areas:

  1. It needs to be ensured that RSDOs have a thorough and detailed understanding of the body of refugee law and of the nature of rape as persecution so that valid claimants are not erroneously rejected.
  2. RSDOs need to be given thorough sensitivity training on how to deal with claims relating to sexual violence. Female asylum seekers should automatically be allocated female RSDOs and interpreters.
  3. RSDOs must have good research skills and it must be ensured that current and relevant country information is ascertained in all claims, both those under section 3(a) and section 3(b) of the Act. In this regard, as South Africa’s refugee legislation has been in force for a shorter period than many other countries, it is beneficial to look to other jurisdictions. The Department of Home Affairs offices in Canada, the United Kingdom, the United States of America and Australia all have open access country information pages on their websites, which are regularly updated. The implementation of a similar system in South Africa would greatly assist RSDOs in producing more adequately substantiated decisions.

CONCLUSION

This chapter has demonstrated that the handling of the asylum claims of individuals who have fled areas of conflict and who are victims of sexual violence is alarming. Amit in All Roads Lead to Rejection states that the problems with refugee status determination in South Africa point to, ‘inherent weaknesses in the system’, but that, ‘it may also be the case that these apparent weaknesses are deliberate strategies that serve a fundamental anti-asylum seeker bias’ (should be referenced) within the Department of Home Affairs. LRC is of the view that these problems arise from a combination of capacity-related weaknesses, as well as the ‘deliberate strategies’ Amit alludes to above. Whatever the cause, it is essential that the Department of Home Affairs addresses these issues. At present, the system at fails to ensure that the rights of vulnerable women who have fled conflict zones are protected in line with South Africa’s Constitution and its obligations in terms of the United Nations Convention Relating to the Status of Refugees.


 

  1. Statistics for the end of 2014 had not yet been published on the UNHCR website or the South African Government website at the time of writing.
  2. Grahl Madsen The Status of Refugees in International Law (2005) 193.
  3. F Khan and T Schreier (eds) Refugee Law in South Africa 51.
  4. Khan and Schreier 72
  5. Khan and Schreier 72, Ward, Acosta.
  6. ACMS Report p. 64
  7. Para 36(x)
  8. This news article is available at http://www.unhcr.org/print/51f7ae846.html 
  9. This report is available at http://www.hrw.org/world-report/2014/country-chapters/democratic-republic-congo
  10. This report is available at http://ec.europa.eu/echo/files/aid/countries/factsheets/drc_en.pdf
  11. http://www.amnesty.org/en/region/democratic-republic-congo/report-2013
  12. This report is available at https://www.hrw.org/world-report/2015/country-chapters/somalia
  13. Available at: https://www.hrw.org/report/2014/09/08/power-these-men-have-over-us/sexual-exploitation-and-abuse-african-union-forces.
  14. Available at http://allafrica.com/stories/201406020410.html.
  15.  [2007] ZAGPHC 17, South Africa: High Court, 4 April 2007, available at: http://www.refworld.org/docid/46c5b8af2.html [accessed 9 July 2014]