Refugee Legislation in South Africa: A Feminist Foreign Policy Analysis - Part 1

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This series applies a feminist foreign policy (ffp) framing in a case study analysis of refugee policy in South Africa. It was undertaken as part of the completion of an MSc in African Development. The study utilises feminist foreign policy as an analytical framework for a policy and discourse analysis of gender inclusivity in South Africa’s refugee and asylum-seeking legislation. Part 1 of this series outlines the feminist foreign policy principles, migration legislation and discourse analysis that I engage with in my analysis to determine the extent of gender inclusivity in refugee law. Part 2 reveals a strong nationalist discourse which permeates discussions about refugee policy in South Africa, and provides contextual understanding of the challenges that need to be addressed for a gender sensitive refugee policy.

There is a growing literature detailing the ways in which refugees’ experience is influenced by gender, amongst other socio-economic identities (Turner, Rosenburg and Bakomenza, Dolan). These studies detail the diverse and complex ways in which gender influences the experience and perception of displaced populations on various economic, political, and social levels. Building upon this literature, this study draws on particular aspects feminist foreign policy (ffp) as an emerging field of academic analysis to determine the degree of gender inclusivity in South African refugee and asylum legislation. This section first assesses the gendered terminology of refugee policy and then highlights the implications of the lack of gender-sensitive focus in the South Africa’s refugee legislation.

Transformative Legislation?

A feminist foreign policy approach has, at its core, a gendered approach to policy. This means advocating for the inclusion of gender as a subject focus or the mainstreaming of gender in the policy making process (Lee, 2018). It can also mean using gender as a category for analysis through which to understand policy implications amongst different segments of society (Lee, 2018).

The policy documents examined were approached with the above in mind and were analysed for both gendered content and the use of gendered terminology, which produced mixed results. It seems appropriate to begin with the promising inclusion of ‘gender’ as a foundation for asylum claims for those fleeing persecution as a result of their gender identity or sexual orientation (Okisai, 2015). South Africa is the only African country to include ‘gender’ as a social category upon which people can seek asylum, and thus extending the constitutional protection of transgender rights to transgender refugees (Camminga, 2018). This clause was introduced in the Refugees Amendment Act 33 of 2008 (Refugees Amendment Act, 2008). This protection follows a growing consensus in human rights law that asylum claims based upon gender persecution should be protected and granted (Okisai, 2015).  The consideration of gender persecution asylum claims is on the surface a positive indication of  gender-sensitive refugee legislation.

However, studies indicate deep flaws in the implementation of the gender clause, detailing inconsistent implementation and the abusive treatment of ‘gender refugees’ in South Africa’s asylum-seeking regime (Camminga, Okisai). Focusing on the policy itself, this flaw stems from two main issues. Firstly, that the Act lacks an explicit definition for the term ‘gender’, which restricts the transformative potential of the policy. Hegemonic essentialist definitions of gender consider gender to be linked to biological characteristics and excludes vast numbers of non-binary conforming groups from eligibility to seek refuge (Dolan, 2015). The prevalence of these assumptions links to the second factor; that these essentialist views of gender reinforce existing stereotypes and assumptions that undermine the effective implementation of the clause (Mudarikwa, 2017). Camminga’s research “‘Gender Refugees’ in South Africa: The ‘Common-Sense’ Paradox” reveals this exact problem within the asylum-seeking system. Many transgender and non-conforming refugees face additional discrimination for their challenge to normative gender identities and find similar dominant cultural and social stigma to that of their country of origin  (Camminga, 2018). A more critical engagement with these concerns and the sensitisation of civil servants working within the asylum system is crucial for the protection of refugees who claim asylum on the basis of gender.

Gendered Terminology

Beyond the inclusion of gender as a basis for asylum claims, there has been a noticeable shift in terminology in both refugee and migration policy since 1995. This follows the first amendment to the Aliens Control Act 76 of 1995 (Aliens Control Act, 1995). The Aliens Control Act changed the exclusive use of ‘he/his’ and the adoption of ‘he/she’ in all new documentation referring to refugees. This suggests a small change in perception as an exclusively male phenomenon (Mbiyozo, 2018). This moves with the general administrative direction following the introduction of democracy in 1994 and the gender progressive nature of African National Congress’ (ANC) national policy. Yet, the progressive inclusion of terminology in policy is weakened by the outdated definitions and criteria for refugee status outlined on South Africa’s main website for the Department of Home Affairs, in which ‘she/her’ is entirely neglected in preference of ‘he/him’ and gender is altogether absent as a category upon which one can seek asylum (Department of Home Affairs Website, 2018).

The consideration of gender persecution asylum claims is on the surface a positive indication of  gender-sensitive refugee legislation.

More important than gendered language is a general lack of gender-sensitive considerations in South Africa’s refugee policy, in relation to gender specific vulnerabilities and protections. There is a growing evidence base detailing the different ways in which men and women experience migration (Rosenburg and Bakomenza, Turner, Waiganjo). This literature provides an overarching sense that refugees experiences vary according to their social hierarchical standing, as influenced by their socio-economic identities (Cronin-Furman et al, 2017). Gender - as one of these identities - exposes different genders to different risks (Rosenburg and Bakomenza, 2017). A feminist foreign policy approach examines the role of gender within policy making, and, more importantly, asks questions on how an individual’s identity might influence their relationship to broader political and economic power structures (Alwan, 2017). Rooted in a long history of feminist advocacy, ffp prioritises those excluded from power structures and tends to focus on the marginalised (Centre for Feminist Foreign, 2019). This analysis suggests that refugees are exposed to varied risks and challenges according to their gender.  

Gendered Vulnerabilities

Refugees face substantial risk and hardship in South Africa. South Africa, in the last 20 years, has held an atypical stance in relation to refugee policy. South Africa, on paper, has had a mostly progressive, although incoherent, approach to refugees and asylum seekers since the end of the Apartheid regime in 1994 (Hiropoulos, 2018). The approach has rejected traditional encampment and detention models, favouring refugees and asylum- seeker self-sufficiency through freedom of movement, employment and education (Crush, 2017).

However, the economic pressures of self-reliance outlined both during and following status determination create substantial economic burdens which affect refugees differently according to their gender. Firstly, women who migrate to South Africa are more likely to be unemployed than male migrants (Mbiyozo, 2018). Those who do gain employment often do so in the informal economy, engaging in hawking, hairdressing, dressmaking and prostitution, or in the domestic and agricultural sector (Harris, 2009). These trades are typically different to those in which men engage given South Africa’s history of labour migration (Harris, 2009). Women often need to provide for dependents and this priority might affect women’s willingness to work in dangerous and low paid settings (Harris, 2009). This might be compounded by evidence that women are increasingly migrating to South Africa independently of partners and spouses, thus increasing both risk in employment opportunities due to the necessity of income (Crush, 2017).

Secondly, different genders face different security threats. In relation to persecution, men and women might seek asylum to escape different types of harm. As suggested, some refugees seek to flee from gender identity and sexual orientation persecution (Okisai, 2015). Women often cite gender specific harms such as forced marriage, sexual abuse and FGM in asylum-seeking claims (Mbiyozo, 2018). Women are also more vulnerable to abuse, trafficking, and violence during and following their journey to South Africa (Mbiyozo, 2018). Research from the Overseas Development Institute suggests that 80% of trafficking victims are women (O’Neil et al, 2016). This suggests that women experience heightened risk on route to South Africa. Operating in the informal economy and low-skilled sectors, women face higher risks of violence and exploitation, given the challenges of enforcing labour laws (Mbiyozo, 2018). Both during and following status determination, refugees are often forced to living in shared, insecure and temporary accommodation out of economic necessity (Kenge, 2017). In these environments female refugees have often reported being exposed to heightened risk of sexual assault, abuse and extortion by landlords, neighbours and fellow tenants (Kenge, 2017; Harris, 2009)  The explicit lack of recognition of these vulnerabilities in South African migration policy suggests that there is inadequate provision for vulnerable groups.

Border Processing Centres

Radical changes have been proposed for South Africa’s asylum regime which will have important repercussions on existing gender vulnerabilities. The White Paper on International Migration 2017 proposes substantial changes to South Africa’s asylum regime, and migration framework more generally (Crush, 2017). The White Paper outlines the need to reduce the ‘pull factors’, such as freedom to work and education, that are seen to encourage migrants to regularise their stay in South Africa through the asylum regime due to limited regularisation avenues (White Paper on International Migration, 2017). The recent policy shift moves away from city-based processing centres and will introduce border processing centres, thereby altering the nature of this challenge refugees face (Landau, 2017).

More important than gendered language is a general lack of gender-sensitive considerations in South Africa’s refugee policy, in relation to gender specific vulnerabilities and protections.

Under the new legislative amendments, asylum-seekers will no longer have the right to freedom of work during the processing period except for exceptional cases. The state has committed itself to meeting these basic living and service needs during status determined in border processing centres, with warranted concern from critics of the new policy, given the long list of accusations of poor treatment of asylum seekers brought against South Africa (Hiropoulos, 2017). The same economic challenges, however, for those granted refugee status will remain due to the absence of state support which remains unchanged by the recent legislative amendments (Segatti et al, 2011). The closure of centres will, furthermore, increase barriers to status renewal for those already residing in the country, thus exacerbating the aforementioned challenges for both men and women (Segatti et al, 2011).

Following the closure of many refugee centres in the last few years, the need to present oneself for permit renewal every six months also created additional economic and familial challenges. The closure of processing centres nearby has forced women to travel long distances either with or leaving behind dependents (Crush, 2017). The latter poses considerable challenges to refugees without sufficient support structures and isolated from their host communities. There is warranted concern from critics that the introduction of border processing centres will not reduce South Africa’s mixed migration flows, but rather increase the use of dangerous illegal crossings (Crush, 2017). This will exacerbate the aforementioned heightened security threats women face during border crossing, particularly if unaccompanied by male companions (Harris, 2009).

This feminist foreign policy analysis indicates that South Africa has a long way to go to mainstreaming gender in its refugee and asylum policy. The constitutional protection of gender as a basis on which to seek asylum is a start in addressing gender-based persecution as grounds for displacement. However, poor implementation and a lack of critical engagement with gender sensitive language and vulnerabilities have hindered progress. These vulnerabilities need to include an improved understanding of the economic and security risks asylum seekers experience according to their gender within the refugee regime, alongside an enhanced understanding of migration drivers according to gender. A feminist foreign policy approach holds the potential to highlight the vulnerabilities most urgently in need of redress in order to create a gender-sensitive migration policy.

Alex Farley holds an MSc in African Development from the London School of Economics. Her research focuses on the intersection between gender and migration. Follow her on Linked In.

List of references:

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