Wednesday, March 21, 2012.
Every state has a right to defend its sovereignty and national integrity-yes. Every state also has a right to protect its borders from infiltrators who are a threat to its national security-yes. In so doing, it is hence not only necessary but also prudent for any state to have immigration laws that regulate the ability of citizens and non-citizens alike to leave and enter its territory. Indeed it is an international norm for states to have specific requirements about who can enter their territory and under what circumstances, hence the need for identity documents and the imposition of visas to allow legal entry to non-nationals. This scenario is the picture perfect setting, where migration is voluntary and initiated by design- properly planned by the individuals concerned. Indeed when the movement of persons from their nation of origin into another is voluntary, then the receiving state has a legitimate and justified expectation that the documentation of the traveler be up to date and in order. However, that expectation by the receiving state ceases to be legitimate, reasonable and justifiable when it comes to refugees -but not for the government of Zimbabwe.
Refugees are prisoners of their ill-fate, victims of their own statehood, targeted by their own people.
Immigration, including the presence of refugees in Zimbabwe is governed by the Immigration Act [Chapter 4:02], the Citizenship Act [Chapter 4:01:], the Immigration Regulations Statutory Instrument 195 of 1998 and other ad-hoc pieces of legislation. Section 8(1) of the Immigration Act permits the arrest of any person falling in the category of prohibited persons suspected to have illegally entered into Zimbabwe to be detained for not more than 14 days while enquiries into their identity are underway. Section 9 of that Act allows such persons to be detained in a prison or a police cell.
However, the Immigration Act makes a clear distinction between such prohibited persons and refugees. Refugees or individuals claiming to be refugees upon their arrival on Zimbabwean territory are not prohibited persons. They should therefore not be detained in prison. Instead they must be taken to holding facilities for refugees while their status is being determined. This has not been the case in practice as this provision has been either ignored or disregarded.
The first time I heard of the conduct of the Zimbabwean government towards refugees was in May 2011, when “The Zimbabwean”, an online newspaper reported the inhumane conditions under which close to 100 Somali refugees, driven from their homes by the protracted war in their country, were being detained by the Zimbabwean government at the Beitbridge border post near South Africa. Some of the refugees had contracted malaria, and at least one was confirmed dead by the Chief Police in Charge of Beitbridge border town, Hosiah Mukombero. The Refugees ended up receiving assistance from the International Organisation for Migration (IOM) which has temporary holding facilities at Beitbridge border post. The refugees were clearly trying to cross the border to South Africa, which has better economic circumstances than Zimbabwe. Most refugees are reluctant to remain in Zimbabwe because they are restricted to Tongogara refugee camp, in Chipinge, Manicaland Province of Zimbabwe. This camp is far from many facilities, it marginalises the refugees and renders them wholly dependant on donor aid, denied a chance of restoring their dignity, the ability to work for themselves and become self sustaining.
In further reports in October 2011, IOM deplored the detention of 26 Somali and 74 Ethiopian asylum seekers at Harare remand prison while awaiting transfer to Tongogara refugee camp. “The Zimbabwean” reported that a senior refugee official in the Department of Social Welfare, Moira Gombingo had admitted to the torture of migrants including refugees by the Central Intelligence Organisation (CIO) but justified it as routine security checks. She also mentioned that after being grilled by the CIO, they were then handed over to the security services of their countries of origin without being allowed access to the United Nations High Commission for Refugees (UNHCR). This is a violation of UN rules on treatment of asylum seekers. Ordinarily, Ethiopians would not pose a security threat to Zimbabwe because of the geo-political divides between the two countries. Hence, the only plausible reason for such arduous security checks would be for the protection of the former Prime Minister Mengistu Haille Mariame who lives in Zimbabwe and is accorded protection by the Zimbabwean government.
Another report in January 2012 by “The Standard” revealed that immigration officials raided the premises of the African Methodist Episcopal Church (AMECZ) in Bulawayo, Zimbabwe in order to detain and eventually deport the 26 Congolese (DRC) refugees sheltered in that church, half of whom were minors. Charity organisations were taking care of the refugees who had arrived in Zimbabwe from their war torn country. The officials wanted to send the minors to Mlondolozi prison and the adults to Khami maximum prison saying they were a threat to national security. The Methodist church eventually arranged with the UNHCR to have the refugees taken to Tongogara Refugee Camp.
These refugees were believed to be supporters of an opposition party to the incumbent head of state of the DRC, Joseph Kabila. Again one wonders whether their treatment could be linked to their opposition to Kabila, whose regime the government of Zimbabwe supports. Such support has included Zimbabwe’s involvement in the Great War of Africa which Zimbabwe joined in September 1998.
These stories form part of a systemic anti-refugee campaign by the government of Zimbabwe. Sources from the Zimbabwe Prison Services (ZPS), whose identity remains anonymous for security reasons, explained that three kinds of migrants are usually brought to the prisons for detention. The first group consists of illegal migrants who enter into the Zimbabwean borders without proper documentation and are therefore classified as prohibited persons in terms of the Immigration Act. The second category are refugees who would have escaped from Tongogara Refugee camp, are apprehended by the police and sent to prison to verify their identity and status before being returned to the camp. The third category, are mere refugees who would have crossed the border illegally-for obvious reasons and upon apprehension by the police are immediately sent to prison.
The sources explained that these migrants are sent to what they call ‘holding cells’ under similar conditions as prisoners awaiting trial. Thankfully, these migrants are rarely mixed with common prisoners. In Harare, men are sent to Harare Remand prison while women are sent to Chikurubi Maximum Security Prison. Children are sent with their mothers and the women are identified as ‘mothers accompanying children.’ The sources indicated that children are rarely sent to homes or care of the social welfare services because government perceives that the period of their detention is too short to bother going through the process of separating them from their mothers and then reuniting them once the mothers’ statuses are determined.
While in detention, the refugees have no access to legal assistance. The government structure responsible for legal aid, the Legal Aid Directorate is overburdened and inadequately resourced and they prioritise prisoners awaiting trial hence these refugees remain in prison until the government decides to release them. Although the provision of food in the prisons has significantly improved in terms of availability where three meals are provided in a day, for refugees, the food offered is unacceptable in terms of quality and content as the food, usually Zimbabwe’s staple food sadza accompanied with green vegetables, is unfamiliar and comes in small quantities.
In terms of sanitation, the refugees are expected to clean their own cells. Each day, they are allowed to go outside for a few hours to get a bit of fresh air and then sent back into their holding cells. They may be given bath soap and washing soap to clean their blankets but because of the inadequacy of resources allocated to the ZPS itself, this may not be available to them.
Ordinarily, the detention of offenders under the Immigration Act should be for a maximum of 14 days. In addition to their being innocent prisoners, refugees often become forgotten in prison until the prison services reminds immigration to facilitate their release.
One wonders why refugees are detained in prison in the first place. The government of Zimbabwe does not have facilities to hold migrants while their status as refugees, economic migrants or such other status is being considered. In fact, ZPS has had to bear the extra burden of detaining migrants including refugees indefinitely, significantly stretching their detention capacity.
Zimbabwe should be guided by a comprehensive international legal framework for the detention of asylum seekers and refugees consisting of Article 31 of the 1951 Convention Relating to the Status of Refugees on Non-Penalization, Detention, and Protection; the UNHCR’s 1999 Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers; the 2009 UNHCR Selected Documents Relating to Detention; as well as the 2011 UNHCR Guidelines on the Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants. Amnesty International in 2007 also produced a Guide on Migration-Related Detention setting out Human Rights Standards Relevant to the Detention of Migrants, Asylum-Seekers and Refugees which could guide the state on the minimum requirements for the conditions under which refugees and other migrants may be lawfully detained.
Some of the principles which Zimbabwe should follow include the humane treatment of refugees-refugees are vulnerable by the mere fact of their being homeless, forced to abandon their familiar territory and homes, further victimization through detention worsens their situation. They need protection and must not be victimised with arbitrary detention. Women, who may be nursing mothers, pregnant, victims of rape or such other torture, must be given medical and psychological health attention, which they will not be able to get in prison.
Refugees are forced to migrate and may not be in possession of identity documents hence it is critical for immigration officials to work from this perspective when dealing with refugees. An expectation by such officials for refugees to have proper identification would be as absurd as it is unreasonable and unjustified.
The status of refugees should be expedited and detention must be a last resort. Such detention must not be in prison but in temporary holding facilities with basic amenities. The detention period must be only long enough to conduct the security checks. During their period of detention, the refugees must have access to legal representation.
Admittedly, the mixed migratory patterns of individuals from the Horn and East of Africa to Southern Africa, where Zimbabwe is usually used as a temporary stop-over for economic migrants on their way to South Africa where they anticipate a better life, has made government wary and resentful of individuals claiming to be refugees. This has necessitated the restrictions the government places on access by refugees into Zimbabwean border entry points and when they enter illegally, strict detention to prevent them from fleeing to South Africa.
However there is need to stress that the strategy of the government of Zimbabwe of encampment of refugees also contributes to the challenges. Encampment significantly restricts refugees’ freedom of movement. They are like prisoners in a foreign land. Once these refugees are detained in the camps, they lose all opportunity at creating a better future for themselves. They can not work even if they were professionals in their country of origin and they lack real economic and educational prospects which would be available to them across the border in South Africa if they managed to get access. It is no wonder then that they escape the camp, or avoid being sent to the camp.
If only, they would be given a chance to integrate into society, create their own opportunities for livelihood, governed by the same laws as citizens then more of them would be eager to stay on in Zimbabwe and hopefully restore some sanity to their shattered lives.
*Attempts to get comments from UNHCR and the Department of Immigration were futile*
Rumbidzai Dube is a writer and researcher.