Gender Based Persecution in the South African Asylum System

Women asylum seekers from around Africa not only flee sexual violence brought on by conflict, but also encounter it during their escape, at border crossings and while in camps (Oloka-Onyango, 1995). Harmful traditional practices, such as female genital mutilation (FGM) are also widely practiced throughout Africa with FGM currently practised in at least 28 countries stretching across the centre of Africa north of the equator (Althaus, 1997). Zimbabwean women have also fled to South Africa with stories of political violence, including the use of rape and assault against activists and military recruits (ZTVP, 2006). Even during peace time, women experience abuse within their own homes and communities – domestic violence, forced marriage and rape – often without adequate protection by police or other authorities. While 32% of asylum seekers in South Africa are women, there are no accurate statistics on how many may have fled due to genderrelated persecution (CoRMSA, 2007).1 Given the insecurity for women on the continent, however, it is likely that many fear, or have experienced, such harm. South Africa introduced the Refugees Act, No 130 of1998, following the coming into force of one of the most progressive constitutions in the world. The Refugees Act was no less groundbreaking.

South Africa became the first country to explicitly state within its refugee law that gender-related persecution is grounds for asylum. Most other countries, including Canada, Australia, the US, the UK, New Zealand and a handful of other European states, which recognise gender-based persecution as a basis for asylum have chosen not to amend their legislation, but have instead created non-binding guidelines of how gender can be incorporated within the existing law. In South Africa, however, gender is legally recognised and binding as a legitimate reason for asylum Now in 2008, new amendments to the Refugees Act are pending that seek to give gender an even more prominent position within the law. While the current Refugees Act incorporates gender under ‘social group,’ one of the five grounds on which refugee status can be granted2, the amendments suggest that gender be extracted from its position under ‘social group,’ and actually added as a sixth category. Officials claim this change will reduce ambiguity and raise the status of gender within the Act, generating greater recognition of gender-related persecution cases.

Legally, it appears that South Africa has distinguished itself as a state with a real commitment to gender equality and women’s rights. In reality, however, how this law is implemented and how it practically affects women applying for asylum determines its real worth and effectiveness. In many countries which have implemented gender guidelines, limited application and limited awareness have made any real redress for women difficult.

While there are many assumptions about the barriers facing women who flee gender-related persecution and apply for asylum in South Africa, no such studies have been carried out as of yet. This study is the first in South Africa that addresses how asylum laws and policies concerned with gender-related persecution are applied and interpreted. Considering this context, the Forced Migration Studies Programme at the University of the Witwatersrand embarked upon this study to:

• Develop an understanding of the nature of women’s claims, as well as claims by both men and women made on the basis of gender-related persecution.
• Evaluate the practice of the South African asylum system in dealing with gender-related persecution cases in comparison with the recommendations provided by the UNHCR Guidelines on International Protection: Gender-Related Persecution (UNHCR, 2002)
• Examine procedural issues asylum seekers who have experienced gender-related persecution encounter in the process of submitting, receiving a decision and appealing their cases.
• Determine the knowledge and understanding of asylum officials in relation to the evaluation of gender-related persecution claims
• Develop suggestions to the Department of Home Affairs on possible issues that should be addressed to ensure further adherence to the UNHCR Gender Guidelines.

Throughout the next few chapters, this study will show that despite progressive asylum law and some efforts to train asylum determination officials on gender-related persecution, procedural difficulties, a lack of knowledge and a narrow understanding of gender within the South African asylum system have created barriers for asylum seekers. These issues often work to discourage asylum seekers from claiming asylum based on their experience of gender-related harm, or if they have the courage to share these painful stories, they are rejected for failing to prove their harm is actually persecution.

The first section of this study describes and evaluates the understanding of gender by asylum determination officials. Following that, the research discusses the relatively narrow interpretation of gender by asylum determination officials, particularly pointing out the tendency of officials to classify countries as safe or not-safe, therefore excluding the possibility that gender-related persecution may occur even in so-called safe countries. There is also a discussion on the division between public and private types of gender-related persecution, and the tendency of officials to reject claims where the perpetrator of harm is a non-state actor, such as a family or community member, unless the harm can be seen as related to “culture”. Reflecting on the interpretation of gender, the study will also show how the lack of gender sensitivity within the asylum process and procedures discourages women (and occasionally men) from claiming asylum based on gender-related persecution.

Although efforts to ensure the visibility of gender within the Refugees Act should be applauded, in practice without an improvement in both knowledge and procedures, any enhancement in the legal protection of women in South Africa’s refugee law may sadly go unnoticed by those responsible for its implementation.