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On 18 September 2014, the South African Human Rights Commission (SAHRC) released a report detailing severe, ongoing human rights abuses at the Lindela Repatriation Centre in Krugersdorp.  The investigation was initiated as a result of a joint complaint lodged in 2012 by Doctors Without Borders (MSF); SECTION27; Lawyers for Human Rights (LHR); and People Against Suffering Oppression and Poverty (PASSOP).  All these organisations welcome the report and its findings and call on the Government to implement the recommendations made by the SAHRC.

The Lindela Repatriation Centre is South Africa’s only facility dedicated for the detention of allegedly undocumented foreign nationals for the purposes of deportation.  It has capacity to detain 4000 people.

The report follows the Commission’s two-year investigation into a complaint laid by the above organisations.  It makes damning findings against the Department of Home Affairs, the Department of Health, Bosasa Operations (the service provider), the South African Police Service and the Department of International Relations and Cooperation. It condemns procedural violations in the arrest and detention of people, inhumane and unsafe conditions of detention in the facility, the use of violence against detained people and the unlawful detention of high numbers of people.

The investigation by the SAHRC found that rights of individuals were abused, ignored or infringed on a wide-scale basis in violation of the South African Constitution as well as a number of other domestic, regional and international laws.

A part of the Commission’s investigation was a survey of 109 detained people. The survey was conducted in conjunction with the African Centre for Migration and Society, a research institution based at Wits University.

The results of this survey included:

• Almost three quarters of respondents reported not being notified of their rights upon being detained;
• The majority of respondents were not aware of their right to appeal their deportation;
• Forty three respondents had been in Lindela for over 30 days;
• Nine respondents had been in Lindela for over 120 days even though there is no legal basis for holding any person in Lindela for over 120 days;
• 26 respondents reported being released from Lindela and being immediately rearrested, a tactic employed by the Department to reset the clock for periods of lawful detention;
• Police injured 17 respondents when arresting them, in many cases with pepper spray;
• Nineteen respondents reported experiencing violence at Lindela, in the majority of cases security guards at the facility were the perpetrators;
• Whereas the lawful length of time between the lunch and dinner meals is four and a half hours, respondents reported the length of time being from 15 to 21 hours;
• High numbers of respondents did not have access to or had to purchase basic personal hygiene items such as soap, wash basins and clean clothing;
• Of the 13 respondents who reported being on chronic medication when detained, 10 reported being unable to access their medication in Lindela;
• 50 respondents were unaware of their HIV status; and
• Only 5 respondents had been tested for TB.

Findings

On the basis of these survey results and several other components of its investigation, the Commission made the following findings (amongst others):

• There does not appear to be, and the Department of Home Affairs failed to provide, a written policy with criteria for access to Lindela, for example by civil society or legal representatives. Access by legal representatives is subject to a 48 hour prior notice period, which Justice Moseneke of the Constitutional Court recently described as “completely unnecessary”;
• “The right of access to information and right to just administrative action as well as the specific rights of detainees, as contained in sections 35(2) of the Constitution are potentially being adversely impacted” as indicated by the apparent failure by the Department of Home Affairs to notify people of their rights;
• The Department of Home Affair’s practice of holding people for over 120 days is “extra-legal and amounts to a violation of the right to freedom and security.” The Commission cited with approval the view of Justice Moseneke that "a situation where only detainees who can afford their own transport to their home countries are deported without delay is unacceptable. Government budgeting processes must seriously be reviewed in order to eliminate the undue deprivation of liberty.”;
• That the right of access to health care services is being infringed in Lindela insofar as the survey results indicated:

o   a lack of measures to ensure continuity of treatment with respect to chronic medication, particularly with regard to TB and HIV treatment; and

o   That the time-interval between the serving of the evening meal and breakfast does not comply with the time-periods prescribed in the Regulations to the IA.

and insofar as the investigations revealed that there is:

o   a lack of condom dispensers at Lindela;

o   a lack of psychological care;

o   a lack of proactive voluntary counselling and testing for HIV;

o   a lack of ventilation and natural light in the clinic's isolation unit;

o   no tetanus vaccine in the clinic's fridge;

o   prolonged period of detention;

Recommendations

The Commission made a number of rigorous recommendations, including:

• That within two months the Department of Home Affairs, in consultation with civil society, develop protocols for access to Lindela by civil society and provide these protocols to the Commission within three weeks of finalisation;
• That within three months, the Department of Home Affairs submit to the Commission a proposal for independent monitoring of Lindela;
• That within one month, the Department of Home Affairs provide written information on rights in languages commonly used in the facility to all detainees;
• That within three months, the Department of Home Affairs and the South African Police Services provide the Commission a joint report on the implementation of a system to ensure that detained people are made aware of their rights;
• That within 48 hours, the Department of Home Affairs provide the Commission a special report tabling details of people in detention over 120 days and the date of their expected release;
• The Department of International Relations and Cooperation ratify the Optional Protocol to the Convention Against Torture and consider ratifying the International Convention on the Protection of the Rights of All Migrant Workers and their Families; and
• That within three months, the Department of Home Affairs undertake a full, independent audit of existing conditions and practices related to health care in the facility and submit a comprehensive report to the Commission outlining, inter alia, the challenges it has identified and the steps it will take to overcome them. This report must specifically address a number of issues and should be developed in consultation with civil society and with the guidelines of the Southern African HIV Clinician’s Society on TB and HIV services for detained people.

Conclusion

We note that the Commission’s report is only the most recent of a long series of reports and investigations producing similar results and recommendations. These include:

• A 2000 report of the South African Human Rights Commission;
• A 2010 report by the Forced Migration Studies Programme ;
• A 2012 report by Justice Cameron of the Constitutional Court;
• A 2012 report of the Solidarity Peace Trust;
• A 2012 submission on common complaints from people detained in Lindela compiled by Lawyers for Human Rights for the United Nations Special Rapporteur on the Human Rights of Migrants; and
• A 2014 report by Justice Moseneke of the Constitutional Court

Each of these reports are from reputable sources with considerable experience and expertise on human rights and express serious concerns with the conditions at Lindela and the conduct of the respondents. Despite this, the Department of Home Affairs and other respondents have failed to address the issues these reports have raised.

The only reasonable conclusion is that for over a decade, the Department of Home Affairs and other respondents have been repeatedly and severely violating the rights of thousands of people in Lindela with disregard for the reports and recommendations of oversight bodies.

• We call on the Department of Home Affairs and other respondents to:

o   respect the Human Rights Commission’s monitoring and oversight powers; and

o   implement the Commission’s recommendations urgently and completely.

• We call on the Human Rights Commission to be diligent in ensuring that its recommendations are implemented through rigorous follow up and, if necessary, the pursuit of further interventions, including litigation if needed, to ensure the protection of the  rights of people detained in Lindela.
• We demand that the Government holds each respective Department to account and ensure that all recommendations are implemented with immediate effect.We undertake to continue to advocate for implementation of the Commission’s recommendations and to take other measures as necessary to ensure their implementation.  Civil society commits to holding the Government to account and will continue to monitor the situation at Lindela until implementation of all the findings has been completed.
• We call upon other civil society organisations dedicated to the Constitution and human rights to join us in these efforts.

The fact that the report took two years to produce, meaning thousands of people suffered infringement of their rights throughout the investigation period, adds further urgency to the need for an effective response to this report.

The aforementioned civil society organizations eagerly await urgent action from the Department of Home Affairs and other respondents to implement the Commission’s recommendations.

Issued by Section27