Policing with prejudice: how policing exacerbates poverty among urban refugees

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Policing with prejudice: how policing exacerbatespoverty among urban refugeesDulo Nyaoro aa Moi University , Nairobi, KenyaPublished online: 26 Jan 2010.

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Policing with prejudice: how policing exacerbates poverty among urban

refugees

Dulo Nyaoro�

Moi University, Nairobi, Kenya

This paper examines how policing of vulnerable social groups such as refugees impactson their livelihood strategies in their host countries. It is argued that inadequate legalframeworks, hostile host communities and unfriendly policing exacerbate the plightof poor urban refugees in a number of ways. First, poor urban refugees’ rights ofmovement and association can be highly circumscribed by police thereby preventingthem from accessing basic needs. Secondly, refugees are an easy target of extortionfrom corrupt police officers who either collect money themselves or fail to stopindividuals who run such rackets. Thirdly, use of excessive violence during policeraids not only causes physical harm necessitating medical attention, but alsoreinforces the fear urban refugees have in venturing into the streets of theirlivelihoods. Finally, the destruction or confiscation of identity documents causes greatinconvenience to poor urban migrants and their families by preventing them fromaccessing remittances and services that require identification.

Keywords: Human rights; refugees; asylum seekers; poverty; forced migration;policing

The police officer is a microcosmic mediator of the relations of power in society. . .he is astreet-corner politician.1

Introduction

While there is a large library addressing the intersection of human rights abuses and forced

migration, it is often difficult to determine which comes first as each can be the cause of the

other.2 Although gross and systematic violations of human rights such as persecution,

torture, rape and killings lead people to flee their home areas, the poverty affecting them

in their new areas of residence is rarely viewed from a human rights perspective.

Amartya Sen has commented on the link of entitlements and poverty, but his position is

largely confined to citizens who are under the political protection (or persecution) of

their own government.3 Almost universally the police organisations are critical elements

in the protection/persecution of individuals.

Most of the literature that discuss refugees’ plight attributes their poverty to the situation

and factors that forced them to migrate.4 This literature rightly asserts that forced migrants

do not have the opportunity and time to plan their journeys in a manner that makes it

ISSN 1364-2987 print/ISSN 1744-053X online

# 2010 Taylor & Francis

DOI: 10.1080/13642980902933753

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�Email: [email protected]

The International Journal of Human Rights

Vol. 14, No. 1, February 2010, 126–145

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possible to bring utilities and goods that may secure their basic human needs. In fact, refu-

gees often have to flee several times when they leave their homestead or country as they

search for security and asylum. While this argument is true, it does not go far enough to

consider and explain the continued economic deprivation of forced migrants even when

they have officially been recognised as refugees and asylum seekers in their countries of

exile. Since most forced migrants hardly carry anything with them during their flight,

they need favourable social and legal frameworks in which they can reconstruct their

lives once they have been granted asylum. While the right to seek and enjoy asylum is a

fundamental human right, states tend to view the right to asylum as separate from other

human rights.5 For these reasons migrants, especially forced migrants face many obstacles

which undermine their efforts to reconstruct their lives even in their host countries. Through

literature review and analysis of new data on urban refugees in the poor settlements of

Johannesburg in South Africa and Nairobi in Kenya, this paper suggests that police, a criti-

cal institution in the protection of human rights, can contribute directly or indirectly to the

deprivation of urban refugees. Policing that does not take cognizance of and respect human

rights of migrants will undermine their livelihood strategies and exacerbate poverty. While

this work does not repudiate the existing literature on forced migration and humanitarian

assistance, it seeks to contribute to such discourse by analysing the intersection of

human rights and forced migration in asylum countries.

Inadequate or discriminatory legal frameworks, hostile host communities and preju-

diced policing exacerbate the plight of poor urban refugees in various ways. Poor protection

of rights of movement and association can prevent refugees from seeking strategies and

measure to fulfill their basic needs. Further, refugees are an easy target of extortion from

corrupt police officers who ‘collect’ money or fail to stop other criminal elements from

running such rackets. In other cases, use of violence during police raids causes physical

harm and reinforces the fear of urban refugees in searching for livelihoods in nearby

areas. Finally the destruction or confiscation of identity documents causes great inconveni-

ence to poor urban migrants and their families by preventing them from accessing remit-

tances and services that require proper and formal identification.

The argument

Field research for this article was conducted in Johannesburg from September to December

2005 and in January 2007 in Nairobi Kenya. Eighteen refugees and asylum seekers of

Somali origin were interviewed in Johannesburg and 15 respondents of mixed nationalities

were interviewed in Nairobi. The research examined their experiences at the hands of South

African and Kenyan police and how this had impacted on their livelihood strategies. Most

interviews were conducted in English and Kiswahili. In accordance with standard ethical

codes, pseudonyms have been used when individual narratives are reported. The article

contends that, although law enforcement officials are generally legally required to protect

every person in society, citizens and non-citizens alike, the experiences of refugees and

asylum seekers at the hands of South African police and Kenyan police shows a consider-

able distance between the law in the books and practice.

Section one of the article gives the background to the refugee problem in eastern and

southern Africa with specific references to Kenya and South Africa. The thrust of the argu-

ment here is that there is a clear pattern on how gross violations of human rights often lead

to conflict and then to mass displacement. Section two sketches the different legal and pol-

itical regimes of refugee hosting in both Kenya and South Africa. The assertion here is that

although the two countries have different legal regimes for refugees – the South African

The International Journal of Human Rights 127

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Constitution is perceived as particularly robust in human rights protection – there is a con-

vergence on how refugees are treated by state officials and the public at large. Section three

assesses the role of identity and travel documents issued to asylum seekers and refugees in

Kenya and South Africa, and it is argued that issuing travel or identity documents to asylum

seekers and refugees is not sufficient for securing some of the basic rights refugees need to

uplift themselves from economic deprivation. While respect of such documents by state

officials can confer a sense of security and protection, the manner in which police in

both countries treat such documents amounts to abuse of human rights and undermines

the livelihood strategies of migrants.

Sections four and five examine the constitutional rights to security, due process, and

freedom from arbitrary arrests, which are promised to all inhabitants and not only citizens

in the two countries addressed.6 It is asserted that harassment and intimidation perpetrated

by state officials and the public have widely compromised the economic activities of refu-

gees and asylum seekers who usually operate from the informal economy. Hence, protec-

tion of refugees and asylum seekers requires more resources and protective measures than

passing domestic legislation.

Conceptual framework

The conceptual framework for analysing refugee rights and their protection draws broadly

from two areas. The first is the doctrine of humanitarianism. This doctrine argues that

human beings have the obligation of ensuring the welfare of other humans because of

their shared humanity. Due regard should be given to the unity and universality of human-

ity. This represents a normative approach to the suffering of humanity. All human beings

deserve equal respect, dignity and treatment. Humanitarianism can be broadly conceptual-

ised as a doctrine of inclusion. It is therefore a partial critique of practices of exclusion and

discrimination. According to the doctrine, exclusion and discrimination are not just morally

wrong, but also increase human suffering. In the refugee and forced displacement discourse

humanitarianism faces a major challenge as nationals tend to opine that migrants are not

entitled to certain rights. Politicians, keen to appease their constituents, often utilise and

reaffirm such sentiments, sometimes based on nationalism and chauvinism, as a way of lim-

iting the legal status and rights protection of migrants. Kenya for example has consistently

upheld the encampment policy on the grounds of national security contrary to the provision

that the right of movement is a human right. The strength of humanitarianism as a doctrine

is that it makes no distinction of the source of suffering and those who adhere to it argue that

the objective of humanitarianism is to save lives, alleviate suffering and maintain human

dignity.

Another value of this doctrine is that it appeals both to our moral values and the idea of a

shared humanity. As Jean Pictet puts it:

‘. . .whatsoever ye would that men do to you, do ye even so to them.’ This fundamental conceptcan be found in all the great religions Brahmanism, Buddhism, Christianity, Confucianism,Islam, Judaism, Sikhism and Taoism. It is also the golden rule of the positivists, who do notcommit themselves to any religion but only to the data of experience, in the name of reasonalone.7

Although religion remains an enduring influence on our morality and world view, experi-

ence has shown that a great many human rights abuses have been committed in the name of

religion. While religious leaders can impose sanctions and benefits, much of the time they

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lack legal power to enforce their dogmas the way states can. This can be pointed out as one

major weakness with the doctrine of humanitarianism.

This leads to the second conceptual framework which draws on human rights and huma-

nitarian law literature. Although human rights and humanitarian laws are not identical, their

objectives converge to some extent. Human rights law spells out the fundamental rights of

people in both times of peace and conflict8 and sees these rights as indivisible, interdepen-

dent and interrelated. Humanitarian law determines the rights and duties of combatants in the

conduct of warfare and the limits and choices open to them, and protects victims of armed

conflict. Significantly, humanitarian law separates unarmed civilians or non combatants

from the combatants for special protection. Indeed, according to humanitarian law, refugees

enjoy certain rights emanating from their special status and circumstances.9

The refugee problem in Eastern Africa

The United Nations High Commissioner for Refugees (UNHCR) estimates that by the end

of 2007, 67 million people were forcefully displaced. Of these, only 25.1 million were

under the direct mandate of the agency, while the remaining 41.9 million were internally

displaced and hence, not directly under the mandate of the UNHCR. While the reasons

for displacement vary, the majority of the displaced are victims of armed conflicts.10 The

East African region, together with the Great Lakes region is one of the most significant

areas in both refugee production and hosting. East Africa, including the Horn of Africa,

hosts approximately 812,200 refugees while the Great Lakes region and central Africa

hosts about 1.1 million refugees. The Republic of Tanzania alone hosts about 435,000 refu-

gees mainly from Burundi and the Democratic Republic of Congo. These figures, however,

do not include internally displaced persons. The gross violations of human rights especially

in northern Uganda and the eastern parts of the Democratic Republic of Congo, and the con-

tinuing conflict in Somalia means that forced displacement continues unabated in the

region.

Although the world has witnessed a significant increase in the number of forced

migrants in this region, refugees have for a long time been part of the socio-political land-

scape of East Africa. The first period of refugee production was during the wars of indepen-

dence when many colonies in Africa sought to free themselves from colonial

administrations. While there are no exact figures of those forced to flee, the politics of soli-

darity prevailing in the 1960s and 1970s allowed asylum seekers to be accepted and even

integrated in the host community. The treatment of asylum seekers from a human rights per-

spective was fairly generous. Kenya for example issued identity cards and travel documents

to refugees from Uganda and Ethiopia, which allowed them to be absorbed in the main-

stream civil service and even in state co-operations. There was little discrimination, limit-

ations of rights or abuse of human rights on the basis of nationality. This encouraged local

integration with minimal friction between migrants and nationals.11

The link between human rights violations and displacement in Africa became an issue

when political disagreements emerged in the region. Conflicts in East Africa often started

from widespread violation of human rights as in Uganda during Amin’s rule and Rwanda

which eventually led to the 1994 genocide. Conflicts also were related to authoritarian poli-

tics by political elites or army generals, or consistent discrimination of minority groups,

which in effect lead to civil unrest, low scale violence and finally to open conflict. The

regimes of Amin in Uganda, Mengistu in Ethiopia, and Mobutu in the former Zaire

(now Democratic Republic of Congo) were some of the most notorious abusers of

human rights which eventually led to internal wars. Significantly most of the wars


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fought in these countries pitted civilians against each other. As a consequence hundreds of

thousands were forcibly displaced.

The Republic of Tanzania under the late Julius Nyerere pursued an open door policy. Of

all the East African countries, Tanzania pursued a vigorous local integration policy. Refu-

gees from both Burundi and Rwanda were settled and given farms to cultivate. However

this policy has changed and Tanzania has become fairly restrictive in refugee hosting,

and Tanzanians have become correspondingly hostile to migrants although it still hosts a

high number of refugees.12

Refugee problem in South Africa

Migration is not a new phenomenon in the Southern African region. The long history of

immigration can be attested by the fact that as early as 1924, more than one million immi-

grants were settled in South Africa alone as a consequence of the discovery of minerals.13

Angola and Namibia also attracted a significant number of migrants. Although the apartheid

regime structured migration according to its racial ideology, both voluntary and forced

migration took place. The regime however refused to grant refugee status to those forcibly

displaced from Mozambique and Angola14 on account of not being a signatory to the 1951

Geneva Convention relating to the Status of Refugees. South Africa itself produced many

asylum seekers who were escaping the apartheid brutality. Most black migrants prior to

1994 were however from neighbouring Mozambique, Lesotho, Swaziland, and Botswana

and were mainly migrant workers who would return to their homes periodically.15

Owing to historical and cultural linkages migrants from these countries could easily

communicate and interact with South Africans and were not perceived as threats. Many

post-apartheid migrants would lack this quality since they would come from countries

much further away, and culturally differences would be more significant.16 The diversity

of the migrant population in post-apartheid South Africa can partly be attributed to the lib-

eralisation of the economy. Considering that the South African economy is much more

robust than in most sub-Saharan African countries, skilled workers became part of this

migrant labour. The skilled worker is most likely to be employed in towns and cities

where they are relatively visible to nationals. Previously, migrant workers in the farms

and mines would come and assimilate.17 This visibility gave the impression that there

were too many foreigners who would take jobs from South Africans. Foreigners would

also put additional strain on social services.

The ‘return’ of South Africa to the international community after apartheid had been

formally abolished also played a critical role in diversifying the national, racial and

ethnic background of the migrant population.18 The country has attracted a large number

of migrants, although the causes of migration vary. While some flee from conflicts and per-

secution in their own countries others arrive with temporary visas from other African

countries and elsewhere.19 The release of the much discredited migrant statistics by

Human Science Research Council (HSRC) in 1996 (estimated to be 2.5–5.8 million)

appeared to confirm the fear of many South African nationals of being ‘swamped’ by

foreigners and caused considerable panic.20 However these figures are constantly being

reviewed downwards.21 Figures from the Department of Home Affairs (DHA) of migrants

show that out of the 142,000 who had formally applied for asylum by 2005, 67,000 had

been granted refugee status.22 Given the growing hostilities towards immigrants the

immediate assumption by those who saw these figures was that the remaining majority

were ‘illegal’ immigrants although the true position is that processing asylum claims in

South Africa takes a long time. The inaccuracy of figures has been attributed to faulty

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research methods and problems connected with processing asylum applications at the DHA,

which is very slow. For instance, the UNHCR reports that only 1600 cases were success-

fully processed by DHA out of many applications due to constraints in capacity.23 This

means a large number of migrants may remain without proper documentation exposing

them to possible arrest and deportation. The inflated figures may have the unintended

effect of increasing hostilities towards undocumented migrants.

More reliable figures hold that, by 2004 South Africa hosted 27,683 recognised refu-

gees and 115,200 asylum seekers whose cases are awaiting decision.24 In addition, there

are a significant but contested number of undocumented migrants varying between

500,000 to 800,000.25 Migrant labour in the mines and the agricultural sector remains a sig-

nificant part of the South African economy. Contract mine workers who come under bilat-

eral agreements are estimated at 190,000 with numbers likely to go down owing to

retrenchment in this sector.26 The number of skilled workers is estimated at 60,000.

Migrant labour in the agricultural sector fluctuates according to seasons and may vary

from 10,000 to 80,000.27 South Africa is also hosting thousands of migrants with

student permits, tourists’ visas, visitors’ passes, and business visas at any given time. All

these migrants have different rights and obligations within the country. For instance, undo-

cumented migrants are under obligation to apply for legal status or leave the country.28

Administratively it is the immigration officials and police officers who should identify

those who do not have documents. However, the verification of identity documents has

become a flash point between migrants and the police.

Legal refugee regime in South Africa and Kenya

South Africa

South Africa became a signatory to the 1951 UN Geneva Convention relating to the status

of refugees in 1996, two years after the first democratic elections, although it had assented

to the1969 OAU Convention on the Specific Aspects of Refugee Problems in Africa and

generally the main international human rights treaties in 1995. While this signified the

country’s willingness to offer asylum to those fleeing persecution in their home countries

or those escaping violence in their places of origin, the country was not really ready to

host refugees. Commentators argue that while South Africa not only has the most inclusive

constitution and a clear and strong refugee legal framework which promises respect for

human rights in the region, these promises have not been upheld.29 Indeed as Goodwin-

Gill says ‘refugee protection is not about entry or removal, but about status and the stan-

dards of treatment to which the status gives rise’.30 Due to the social and political

context in South Africa which makes migrants an unwelcome minority, legal documents

and recognition fails to secure migrants protection by the police primarily because police

are allowed to operate outside the law when dealing with migrants.31

Unlike most refugee hosting countries in sub-Sahara Africa, South Africa does not have

refugee camps nor does it offer direct humanitarian assistance to refugees. Out of the

142,000 refugees and asylum seekers in South Africa, the majority reside in cities and

urban areas such as Johannesburg, Pretoria, Cape Town and Durban. However, refugees

and asylum seekers do not benefit from ‘public relief’ as stipulated in the 1951 Convention.

The upshot is that forced migrants, regardless of their economic status, have to share social

and economic space and services with nationals as well as other categories of migrants in

the cities. They also have to compete for accommodation and jobs with the national South

Africans. This has generated social tension between migrants and nationals, and has


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triggered strong anti-migration sentiments not least among poor South Africans.32 The anti-

migration sentiment is manifested through widespread xenophobic utterances by public

officials and the discrimination of migrants in accessing social facilities provided by the

government.33 Indeed, xenophobia has led to the physical injury and killings of many

migrants in South Africa through public and police assaults.34

In South Africa, a widespread conception is to consider urban refugees as people who

are essentially looking for better economic prospects and not fleeing danger.35 Rightly, it

may be difficult to make a clear distinction between those fleeing persecution and those

fleeing economic hardships because persecution can be carried out through the undermining

of people’s livelihood strategies. Although states may be justified in observing this dichot-

omy, and may find support for it in refugee law, the effects of the distinction may still be

questioned on normative grounds. Since forced migrants from other African countries

travel through several countries in which they could presumably get protection, nationals

assume, rightly or wrongly that it is the better economic prospects and opportunities that

exist in South African cities that attract them.36 Urban refugees are therefore sometimes

referred to in unsympathetic terms such as economic migrants, ‘irregular movers’ or

‘bogus’ asylum seekers who are undeserving of asylum.37 This perception of urban

migrants as people undeserving of asylum, is projected by nationals both at the official

and interpersonal level in their relationships with migrants, as well as in the lack of material

public support. Urban migrants in South Africa, Kenya and other African countries have to

fend for themselves in terms of accommodation, food, health services and meeting other

basic requirements.38 This compounds and reinforces the problem of perception in a

context where access to resources and services relies on the ability to verify one’s personal

legal identity. Clearly, competition for these resources and services between refugees and

other migrants with members of the host community generates social friction and

tension. Urban migrants are therefore seen as an economic burden and a threat to the exist-

ing social fabric. Most humanitarian organisations including UNHCR, offer very little

assistance to forced migrants in urban settings either. In case of assistance it is usually

on a very short term basis. The assumption and the explanation given by UNHCR is that

by opting to settle in urban areas, migrants are confident in their own abilities to survive.39

Refugee hosting in Kenya

Kenya is a party to both the 1951 Convention relating to the Status of Refugees and the

1969 OAU Convention on the Specific Aspects of Refugee Problems in Africa and also

the main international human rights treaties.40 Although Kenya has hosted refugees since

the 1970s, the present refugee regime was established by the entry of the ‘lost boys’

from Southern Sudan in 1990 who were ‘temporarily’ placed in Kakuma refugee camp

to the North West of the country.41 They were followed by large influx of other Sudanese

refugees and Somalis displaced by violence following the ousting of Said Barre in 1992.

Faced with a large number of migrants at a time of economic depression and political

instability, Kenya abandoned the open door policy that it had previously pursued with

regard to Ethiopian and Ugandan refugees and opted for encampment. This change of

policy was not accompanied by any domestic legislation to safeguard the interest of refu-

gees. Hence, refugee protection became by and large left to UNHCR with little assistance

from the Kenyan government. Because all refugees and asylum seekers are supposed to be

in the camps, being outside is grounds enough to be arrested and detained. The absence of

clear laws with which to charge such migrants made them vulnerable to long detentions

(sometimes incognito) and continuous police harassment.42

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The official practices in Kenyan refugee camps severely compromise the fundamental

freedom of movement without which other freedoms and rights cannot be accessed.43 First,

refugee camps in Kenya are located in desolate and remote parts of the country where security

and safety is precarious. Due to security considerations in such areas of the country, refugees

cannot move in out of the camps as they wish. One of the only responsibilities that the Kenyan

government undertook for a long time was to provide security officers to guard the camps.

Camps are often located in areas which have fragile ecosystems that can hardly support the

refugees economically. Secondly, the humanitarian assistance that is provided for survival is

hardly sufficient. This forces refugees to forage out of camps in search of supplements like

wild fruits, vegetables and firewood. Unhappy with such confinement some refugees and

asylum seekers sneak out of the camps in search of better prospects at great personal risk.

This means that such refugees suffer double displacement.44

Unauthorised movements from the camps implies that although most of the 269,300

documented refugees in Kenya (as of 2007) are in the camps there is a significant

number of refugees and asylum seekers outside the camps and especially in urban areas.

Besides those who move out, there are other asylum seekers and refugees who avoid the

camps altogether and make their way into urban centres. In Nairobi alone it is estimated

that there are between 50,000 and 60,000 forced migrants.45 These migrants were residing

in Nairobi and other towns illegally because the Kenyan government did not recognise

their presence.46 The lack of separate legislation for refugees and asylum seekers and the

government encampment policy meant that migrants in towns forfeited their right to

legal protection.47 In the streets of Nairobi they are like any undocumented migrants and

they are dealt with according to migration laws. These migrants are bereft of any form

of humanitarian assistance and have to rely on their own resources to survive. Most

organisations give assistance to newly arrived asylum seekers who are then required to

register with UNCHR and then taken to either Kakuma or Dadaab refugee camps.

Although migrants opt to go to Nairobi for various reasons, the city itself may not be

welcoming. With 56% of its 3.3 million inhabitants living below poverty (less than

US$1 per day) and in informal settlements, Nairobi is characterised by a very high unem-

ployment rate, rampant crime and harsh competition for social services. Being in the city

without resources is most challenging even for nationals but more so for vulnerable

groups like migrants without any form of protection. Such vulnerability exposes migrants

to human rights abuses both by the police and nationals.

On the positive side, Nairobi hosts many international agencies dealing with migration

issues, including UNHCR which has a regional office, the International Organization for

Migration (IOM), the United Nations Development Programme (UNDP) and several

faith based organisations. Although these organisations may not give humanitarian assist-

ance, they play advocacy roles and may assist migrants in the short term. The city is also

attractive because it is possible to access social services such as schools, relatively good

hospitals and medical care, and other services. Being the hub for international transport

and communication in the region, migrants who hope to move elsewhere would rather

be in Nairobi. The vibrant informal sector provides opportunities for those with skills

and a small capital to make a living even if their legal status is not clear.

Identity documents and the right to work and earn a living

The 1951 Geneva Convention stipulates the rights of refugees and asylum seekers. These

rights are generally also secured in other international instruments such as the International

Covenant on Civil and Political Rights (ICCPR),48 the International Convention on


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Protection of the Rights of Migrant Workers and their Families (ICPRMWF), the Inter-

national Covenant on Economic, Social and Cultural Rights (ICESCR).49 The state

parties to these human rights instruments are obliged to comply with the duty to issue iden-

tity and travel documents to lawful asylum seekers and refugees in their territory as pro-

vided for in Articles 27–28 of the 1951 Geneva Convention. These documents commit

states to recognise the legal status of asylum seekers. However, being an asylum seeker

or refugee does not imply that such people have fewer human rights, although there are

some limitations on political activities. Indeed the right to seek and enjoy asylum is an inte-

gral part of the Universal Declaration of Human Rights.50

In Kenya, the government has not been issuing IDs or travel documents to refugees or

asylum seekers primarily because the government had neither domesticated the 1951

Geneva Convention relating to the status of refugees nor regional instruments such the

1969 OAU Convention. In Kenya, the determination of refugee status and the processing

and registration of applications has generally been left to the local UNHCR office.51

However, paradoxically the Kenyan police hardly respect the identity and travel documents

issued by UNHCR. Abdi, a Somali refugee complained thus: ‘Those UN papers do not

work so there is no need for carrying them. It is just better to bribe the police. Two or

three hundred shillings is what you need to avoid arrest.’52

Arrest of refugees or asylum seekers without justifiable reason is not a government

policy, especially if such a person has proof of identification. As indicated by the above

respondent the police do this just to solicit for bribes.

A refugee from Rwanda residing in one of the poor neighbourhoods in Nairobi who was

arrested had to give away his shoes to the police because he had no money for bribing the

police officers.

Although most refugees reside in the camps, they often need to travel to urban centres

where they can access better medical treatment, education or simply to collect remittances

sent by relatives abroad. Indeed, the unsatisfactory situations in the Kenyan camps make

many refugees wish to seek third country resettlement.53 In Kenya, an ID or passport is

required for accessing employment. Since most asylum seekers and refugees have no

IDs they cannot access jobs or transact business where IDs are needed.

Travelling from Kakuma and Dadaab refugee camps to the nearest town is generally

hazardous, but even more dangerous for refugees. Most of the buses that offer service in

these areas have to be accompanied by armed police officers. To reduce the frequent crim-

inal attacks, the Kenyan police have erected road blocks. However, rather than focusing on

security and protection, road blocks serve as spots for soliciting for bribes from road users.

Police officers routinely stop buses and inspect them for refugees on the pretext that they are

searching for illegal weapons. In the process refugees are either detained in police cells or

returned back to the camps even if they had been officially allowed to travel outside the

camps.54 Money and valuables are unscrupulously collected by police officers. Because

of the security situations in such parts of the country the police have considerable

‘leeway’ in dealing with refugees and asylum seekers. Such cases are repeatedly reported

in the Kenyan media but they go unattended.55 The case of those travelling from the Dadaab

refugee camps is causing great risk. Indeed, travelling from any part of the North Eastern

Province in Kenya, bordering Somalia and Ethiopia, is dangerous even for nationals.

In South Africa asylum seekers are given a Section 22 permit while refugees are given

Section 30 permits.56 Those without proper documents are either required to register or to

leave the country.57 It is only with the possession of proper documentation that refugees and

asylum seekers can make claim to government services such as health, education, work and

protection.58 Although refugees are allowed to work, the Department of Home Affairs

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continued to issue documents which clearly indicated that refugees were prohibited from

working. Migrants and nationals are in agreement that it is important to carry the docu-

ments. Asked how the lack of identity documents would affect them, the majority of respon-

dents ranked inability to get employed first and the fear of being arrested as second.

However the relationship between the police and migrants seems to belie the importance

of these documents in matters pertaining to police protection. Although the legal documents

are supposed to secure police protection for those who have them, this is hardly the case.

The high premium migrants place in acquiring the legal documents and the artificial short-

age created by the slow determination process at the Department of Home Affairs exacer-

bates irregularities. To go around these barriers, migrants resort to other means such as

paying bribes or giving incorrect information. Documented evidence shows that some

people obtain legal status fraudulently. A case in point is where over 1000 South African

women found themselves to be registered as married, yet they had never tied the knot.59

In November 2005, the South African Broadcasting Cooperation (SABC) in its ‘special

assignment’ series graphically aired illegal activities and corruption surrounding the acqui-

sition of legal documents. Since such information is in the public domain, police have some

reason to doubt legal documents held by both migrants and nationals. Asked if he has ever

paid for ID, a migrant had this to say, ‘. . .there is a middleman who we used to pay so that

he can get for us the extension period we want. Whereas if you go by yourself to Home

Affairs, they (officials) deal with you inhumanly’.60

A newly arrived asylum seeker could not register immediately for documentation

because of the perception of corruption practiced in the Department of Home Affairs,

and commented that: ‘I came by bus so I am still tired. I hear they need money (to give

me papers). . .and people stand in the queue for days. I will go when I get money and

camp there.’

The process of registration, determination and issuance of ID cards in South Africa

takes between 6 months and five years.61 Staying without documents exposes migrants

to several difficulties. Most significant is that asylum seekers or migrants without docu-

ments stand a real chance of being arrested, detained and deported before their cases are

concluded62 contrary to the provision by Southern Refugee Act 1998 of being subjected

to due process. The South African Human Rights Commission has pointed out that this

not only denies migrants the right to fair trial but also endangers South African nationals

who may not have IDs with them at the time of meeting the police. The delays in the pro-

cessing of legal documents and the inconvenience caused to migrants has compelled human

rights organisations to seek the courts’ intervention. In 2006, Lawyers for Human Rights

acting on behalf of Somali refugees secured an important judicial intervention. Sitting in

Pretoria, the high court ruled that the Department of Home Affairs should reopen the Johan-

nesburg reception office by January 2006, hire more personnel to speed up the process of

registration and give a written commitment on how the process was going to be improved.63

The irregularities in the acquisition and renewal of legally-sanctioned identity documents

impacts negatively on how police verify legal documents and how they treat migrants

and nationals as will be shown in the next section.

Verification of identity documents is routinely used by xenophobic police officers to

harass and intimidate migrants both in Kenya and South Africa. A respondent narrated

his experience this way:

. . ..I was just around the corner near the house. Then police officers in a van stopped me. I knewone of them but he did not talk to me. His mate asked me for my ID card and I told him it was inthe house and I could get it. He told me threateningly to get into the van. They drove around


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with me for two hours before taking me to the (Johannesburg) central police station. From thereI managed to call somebody who brought my papers. That was when I was released.64

However such incidences rarely end as amicably as in the above case. Most of the times,

migrants are asked for bribes, which they can hardly afford. To get out of police custody

a bribe of between South African Rand 20–100 has to be paid. For people who are not

certain about where their next meal will come from this is an additional burden they can

hardly afford. This sort of practice amounts to corruption and is against South African

laws but also infringes on refugees’ rights to be treated with dignity and integrity.

Besides enforcing the law that requires migrants to have documentation as proof of legal

residence, it also gives the police the informal role of ‘gate keepers’. Most migrants feel

that the request for ID cards is carried out with other intentions, owing to the frequency

and usual verbal insults and demands for bribes that follow. Several persons stated that

they believed that the possession of ID documents was regularly ignored by police officers.

For example, one respondent said:

The police don’t care even if you have an ID with you, if they suspect you. . .they just detainyou. . .the way police arrest immigrants is unsatisfactory, because even if you have ID they justtear it up, they don’t want to listen to the explanation.65

The destruction of documents by police officersmeans thatmigrants have to reapply for them

which entails the additional costs of going to the DHAwhich invariably is accompanied by

bribes. Asking for bribes from the poor exacerbates their poverty. For those who cannot

afford this they stand a real chance of being arrested and taken to Lindela detention camp.

A migrant who was forced to part with a bribe to avoid arrest explained his situation thus:

I was walking towards 10th Street (Mayfair). . .I was stopped by two police officers. Theyasked for my ID and I gave them the photocopy I had. They said it is forged and if Iwanted it back I have to buy them a soda. I gave them R20. . ..66

Giving bribes seems to characterise much of the relationship between migrants and police.

Given the poor economic status of migrants, corruption from the police is a big drain on

their meager resources. Since migrants can only engage in informal employment such as

street hawking, petty trading or car washing they cannot completely avoid the police.

This makes them an easy target. Because of the hostility most migrants experience, they

fear reporting such activities to relevant authorities or even human rights organisations.

Sometimes the police actually destroy migrant ID cards and travel documents making

them suffer a great deal of loss and anxiety. A Nigerian described the brutal treatment he

suffered at the hands of policemen:

Just because I am a Nigerian, policemen have beaten me up. They have broken into andsearched my house without a warrant. They have taken my money and planted mandrax,cocaine and all kinds of drugs so that I wouldn’t speak. But the worst experience was whenone white officer confiscated my passport and, not knowing where to find him, I ran all overto police stations in Johannesburg. When I failed to find him, I had to make an applicationfor a new passport at the Nigerian embassy, something that cost me R2500.67

This means that before such a migrant acquires any other documents; he is vulnerable

to further arrests and cannot conduct any official transactions. The tragedy is that the

migrant will be forced to report the incident to another police officer who may choose to

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believe him or not since the application for another document depends on one producing a

police abstract.

When the South African Human Rights Commission criticised the police for such

abuses, government officials vigorously defended the police. The government criticised

the Commission for ‘undermining the government’s efforts to control crime’ and ‘creating

the impression of being sympathetic’.68 Such government support for actions that are

essentially illegal contravenes the objectives of the police but also shields the police

from accountability.

In South Africa it has been the practice that only one identity document is issued to the

entire refugee family which means that only one member of the family can walk freely or

engage in a legitimate economic activity.69 If the man is there he will most likely have the

ID card leaving the rest of the family vulnerable to arrest and harassment. This inconve-

niences other members of the family and it implies that not all of them can use the ID

card at the same time. In such instances migrants are unable to access services such as

banking or even to withdraw money sent by relatives to their accounts. While refugee

children are legally entitled to foster grants and social development often they are unable

to access such assistance because of lack of IDs.

Given the legal and economically precarious situations in which migrants operate, their

vulnerability is increased by such police activities. Although the issues may not immedi-

ately strike casual observers as human rights issues, they in fact are. As the previous

section demonstrated several human rights issues are at stake. First and foremost the

right to enjoy asylum is clearly undermined by the destruction and confiscation of ID

cards which means that refugees and other migrants will not be able to enjoy other

rights. The frequent arbitrary arrests and detentions not only reduce the time migrants

dedicate to economic activities but also eat into their meager resources with which they

have to bribe officials.

Safety and security of migrants and their businesses

Article 3 of the Universal Declaration of HumanRights states ‘that everyone has to live, have

liberty and security of person’. Granting asylum implicitly means that the host countries

undertake to provide liberty and security of the person. An examination of police practices

in South Africa and Kenya however indicates that this requirement is not fully met. In both

Nairobi and Johannesburg, most refugees and asylum seekers live in the inner city which is

characterised by squalid conditions, poverty, overcrowding, crime and lack of social ame-

nities. In Nairobi, most refugees, especially the Somali refugees live in Eastleigh (nicknamed

‘little Mogadishu’). Despite the difficult and hostile conditions that pervade such dwellings,

refugees and asylum seekers have established thriving businesses in Nairobi where they sell

cloths, electronics and household items.70 In Johannesburg, refugees live in Hillbrow, Yeo-

ville, Berea and Mayfair which are notorious for high crime rates within the city. As the

migrants move in to occupy some of the dilapidated houses in the inner city, nationals

who can afford to move out of the inner city to the suburbs.

The right to own property is an internationally recognised human right.71 However the

safety and security of migrants and their hard earned property is not assured either in Kenya

or South Africa. This is because policing of migrants in South Africa and Kenya is charac-

terised by the perception that most migrants are illegally in the country. It is also due to the

lack of distinction between the different groups of migrants, the assumption of migrants’

guilt in crime and other social ills and widespread xenophobia.72 For these reasons

police tend to treat migrants with undue suspicion and highhandedness.


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The widespread assumption of migrant culpability in the high crime rates especially in

South Africa has made them a target of police crackdowns.73 Police routinely equate arrest-

ing migrants with fighting crime.74 Algotsson and Klaaren document how police swoops

meant to flush out criminals frequently target migrant neighbourhoods in South Africa.75

In Kenya, the proliferation of small arms and light weapons is strongly associated with refu-

gees from Somalia and Southern Sudan.76 The police therefore regard policing of migrants

as part of dealing with the problems of insecurity.

In Johannesburg crime blitz operations target the inner city, which is populated with

newly arrived and poor migrants. Although such operations are standard policing

methods in many parts of the world, the manner in which the police conduct them has

raised concern in human rights organisations.77 Human rights lawyers claim that immigra-

tion policing is conflated with crime prevention to raise the arrest statistics.78 A migrant

who runs a small restaurant complained that, ‘Last month (October 2005) the police

stormed this place while my clients were eating. . .they said that they are looking for

illegal migrants. . .as if I am a smuggler of people!’79

Such operations are routinely accompanied by confiscation of money, cell phones and

other valuables. These police practices help to chase away precious clientele from establish-

ments. It has been documented that migrants in Johannesburg and Nairobi not only provide

much needed services but they create employment for both themselves and nationals.80

Besides failing to provide security to migrants, police themselves also take advantage of

their vulnerability and collude with criminals to rob immigrants. The following statement

illustrates police culpability in some of the activities. Many respondents stated that they

think that the police themselves are accomplices in such acts. A refugee student narrated

his experience as follows:

I had bought a fax machine which I wanted to use to make money. The following day a policeofficer came with somebody who claimed that his fax machine has been stolen. I explained thatI bought the fax from a shop and not individual and I showed them the receipt. The officerinsisted that they had to go with the machine to the police station. I asked if I could accompanythem but he refused and told me if the machine was mine he would bring it back. I never sawhim again and I never got my machine back.81

This kind of police behaviour is prevalent in both Johannesburg and Nairobi. It not only

undermines the relationship between the police and migrants but also effects migrants’

economic activities negatively. Many of our respondents indicated that they simply

avoided reporting any criminal activities due to the way police treat them.

The failure of police to provide security affects migrants’ ability to run businesses. Due

to xenophobia, migrant businesses are frequent targets of violent robberies and theft.

Although both Nairobi and Johannesburg are notorious for crime, the way police

respond to distress calls by migrants indicate that security agents are reluctant to come to

the rescue of migrants. One respondent confirmed that police help is unusually slow in

coming especially to migrants:

It was around midnight, somebody knocked the door claiming that he was a policeman but werefused to open and we called the police for help instead. However the police took so long therobbers broke the door and took everything.82

The inability of the police to resolve crime cases may be partially due to organisational

limitations but also due to salient police hostility to migrants. The police in Kenya and

South Africa are overstretched with the high crime rates and the expectation from the

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public. One migrant told us that, ‘When police arrested me, they kicked me. . .telling me,

you f�cked up your country and you come here to f�ck this country as well.’83

Most of the respondents stated that none of the crime cases they reported to the police

were ever resolved. This way many crimes go unresolved. In the end the prejudices that

police subject migrants to also ends up undermining the efforts to manage crimes in both

the countries. Narrating his experience with the police, a respondent stated that:

I used to run a shop in Pretoria in a place called Garangwa. I was attacked by thugs in broad daylight and robbed of Rand 4000. They were speaking local South African languages. I reportedthe matter to the police immediately. When I went at the station, the police asked me if some-body was hurt i.e. if somebody has been shot or bleeding. I said no and they told me there isnothing they could do since nobody was hurt.84

For petty traders and vulnerable migrants whose businesses are not insured, Rand 4000

(approximately $667) is a lot of money. That criminals can get away from such activities

because of lack of police protection indicates the inability of the state to let refugees and

asylum seekers enjoy security. Given that most migrants are involved in informal business

and self employment, they are vulnerable to extortion from police even those who are

off-duty. Several of them stated that police regularly search their premises to establish if

they are selling contraband items. However these searches are accompanied by confiscation

of goods or items that are not branded. All the respondents who are running businesses

have documentation yet this does not seem to protect them from such predatory policing.

A Somali shopkeeper narrated the incident as follows:

. . ..One weekend, two people claiming to be police officers came to the shop and demandedmoney from the shopkeeper on the pretext that he was running an illegal business. The shop-keeper refused and started arguing with the officers who did not even identify themselves. Thisattracted a large crowd of Somalis who started shouting at the police. The officers threatened toshoot people. They left without arresting the shopkeeper. However the shopkeeper feared theywould come back so he decided to close the shop and leave Johannesburg.85

Because of police practices migrant businesses which not only provided a livelihood to the

migrants and their families but also employment to South Africans were adversely affected.

The cost of arbitrary arrests

The anti-migration sentiment and the political context in which the policing of migrants is

carried out in Kenya and South Africa essentially make migrants ‘police property’ where

the police can abuse their authority with little fear of repercussions. Lee explains that ‘A cat-

egory becomes police property when the dominant powers of society (in the economy, polity,

etc) leave the problems of social control to the police’.86 This social group is powerless, has

low status and the dominant majority view them as problematic. The dominant majority are

prepared to let the police deal with ‘their property’ and not to pay particular attention to how

it is done. This group includes ethnic minority and poor migrant communities. Reiner argues

that the problem is not so much to enforce the law but to maintain the order and only refer to

the law when it is appropriate, which police in both countries have been accused of doing.

The only qualification though is that the police should develop enough skills not to mistake a

member of the dominant group for their property.87

Human rights instruments hold that no one shall be subject to arbitrary arrest, detention

or exile without being subjected to the due process of the law. Article 9 (1) of ICCPR rights


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says in part ‘. . .no one shall be subjected to arbitrary arrest or detention’. Both the South

African police service and the Kenyan police subject migrants to arbitrary arrests

without regard to due process.88 In Nairobi, undocumented asylum seekers or even refugees

who get arrested by the police are held together with other criminals in the most pathetic and

overcrowded police cells. Due to the widespread corruption in the Kenyan police service,

relatives are forced to pay bribes to the police to have their relatives released.

Such arrests also infringe on people’s right to privacy as provided for by ICCPR in

Article 17 (1) which states ‘No one shall be subjected to arbitrary or unlawful interference

with his privacy, family, or correspondence nor to unlawful attacks on his honor and

reputation’.

As is shown in Table 1, in South Africa verification of legal documents provides the

fault line at which the police and migrants interact. Of 343 non-South African respondents

interviewed by the Forced Migration Studies Programme, 67% stated that they have been

stopped by police to verify IDs as compared to only 12% of the South Africa respondents.

Other researchers have pointed out that police frequently use physiological differences like

skin colour and height to identify migrants which marks them out for special attention.89

However the police frequently overstep the bounds of the law when handling migrants.

By involving vigilantes and the public when dealing with migrants as Landau writes,

police contravene provisions of the law and deny migrants the right to be subjected to

the due process of the law.90 The experiences of refugees and indeed other migrants

confirm the fear expressed by the human rights organisations.

Because it is not stipulated when the immigration or police officer should request for

identification, the verification is done randomly by stopping pedestrians on the streets or

stopping taxis and asking passengers for their identity documents. Some migrants claim

to have been arrested near their doors and driven around until they produced a bribe.

The case of the Somali refugee quoted in interview number eleven is illustrative of this

practice.91

In South Africa the police are required to give sufficient time to those who do not have

ID cards to produce them. However the police never allow migrants the time to collect their

documentation. In response to her request to be given the opportunity to get her passport,

the police officers ‘. . .told me that they do not work for me that they will have to take me

home for me to retrieve my passport’.92

Arbitrary arrests and detention are not only human rights issues but also assume economic

significance for a vulnerable segment of the population like refugees. The fear of arrest

keeps refugees and asylum seekers away from those places that they access petty jobs and

even small business. This is compounded by demands of bribes or destruction of IDs.

Table 1. Reason for being stopped by the police.

Non-South Africans South Africans Total

Traffic violation 3.8 3.6 3.7Working without permit 2.9 0.8 1.6

To check migration status/identity documents 67.1 12.1 37.9Part of criminal investigation 2.6 4.9 3.8Road block 10.2 7.2 8.6Other reasons 8.7 1.8 1.4Do not know/refused to answer 0.3 0.3 0.3

Questions not asked 28.9 74.2 52.9N 343 388 731

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Conclusion

Although Kenya and South Africa meet their international obligation of granting the right to

asylum to deserving asylum seekers, this paper has argued that the enjoyment of that right

which is contingent on the observation of other fundamental human rights has been adversely

compromised. The policing of migrants in Kenya and South Africa is characterised by tactics

that do not fully observe and respect human rights. Rather, policing is largely based on

unlawful and sometimes extra-judicial activities like destruction of IDs, unwarranted arrest

and detention that undermine socio-economic activities of refugees and reinforces their

poverty, communal and social exclusion. This exclusion forces migrants to live on the

margins of society where ensuring their physical security and safety is even more difficult.

Conversely if policing in both countries was to be carried out according to the laws of the

country and international refugee and human rights laws, refugees and asylum seekers

would have a better chance to reconstruct their lives in order to avoid extreme poverty.

I have argued that policing that does not respect human rights reproduces inequalities

where some social groups can access education, jobs and health services while others

remain poor and underprivileged. Having come from a legacy of racism and inequality,

it is doubtful whether South Africa would want to travel this path once more. As the

recent examples in European cities demonstrate, isolated migrant communities who live

in poor neighbourhoods where social and economic exclusion is the norm eventually

develop resentment and may cause great public disorder. Since neither the police nor the

government knows how long some of the migrants will be there, policing bereft of prejudice

and abuse of their rights may help poor refugees gain some degree of economic autonomy

and acceptance.

Migrants generally offer a critical link between host countries and the rest of the world

and the treatment of refugees and asylum seekers as people, who deserve our help, will have

a bearing on how a country is perceived internationally. As Gotz argues, today’s refugees

may be tomorrow’s leaders of their own country and by according them appropriate treat-

ment the government will be building bridges to other parts of the world.93 By mistreating

and marginalising migrants especially uprooted victims of violence and persecution, the

two countries are not taking advantage of the skills that migrants, including refugees,

come with. Furthermore the suppression of exploitation of such skills only worsens the

economic deprivation of such vulnerable social groups. As Landau and Jacobsen found

in Johannesburg and Campbell found in Nairobi, migrants including refugees create

employment opportunities even for South African and Kenyan nationals.94

Because of prejudiced policing and the hostile public attitude which prevent the enjoy-

ment of asylum, refugees are forced to live in the social and economic shadows of their host

communities where they have little or no interaction with formal institutions. This implies

that they cannot access social services, education, jobs and decent accommodation which in

turn exacerbates their poverty. But it also means that the government may be forfeiting

skills and the potential provided by these refugees. Having been forced to live like that

for a long time (since nobody can predict when persecution or violence will end) some

refugees may out of desperation get co-opted into unlawful activities, thus satisfying the

self fulfilling prophecy that migrants are criminals. For government officers and service

providers it is critical not only to know the number of people under their jurisdiction but

their internal diversity as well. Cultural preferences, religion and variables that frame

social relations matter especially in areas as visible and important as policing.

Finally, many refugees in Africa are victims of widespread and gross human rights

violations in their country of origin. Both international and domestic laws provide the


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right to seek and enjoy asylum. Asylum should therefore not turn out to be a place of

discrimination, harassment and denial of basic rights. Seen from a humanitarian

perspective, human beings deserve to be treated with respect and dignity especially when

they are faced with crisis. Because of shared humanity the welfare of other human

beings is a fundamental responsibility. Conversely if refugees and asylum seekers were

accorded all the rights due to them not only as human beings but also because such

rights are secured in domestic and international law then nationals will also enjoy better

policing. When policing is examined from a human rights perspective, its intersection

with the poverty of vulnerable groups such as refugees and asylum seekers including

other poor categories of migrants becomes apparent.

Acknowledgement

This paper was first presented during the Human Rights and Extreme Poverty Conference in Kampala,Uganda, 4–6 July 2007.

Notes

1. Robert Reiner, The Politics of the Police (Sussex: Wheatsheaf Books Limited, 1985), 86.2. Human Rights Watch, ‘Hidden in Plain View: Refugees Living Without Protection in Nairobi

and Kampala’, 2002. http://www.hrw.org/reports/2002/kenyugan/ (accessed August 7,2007); Alex De Waal, ‘Political Contracts and Humanitarian Dilemmas’, in Famine Crimes:Politics and the Disaster Relief Industry in Africa (London: James Currey, 1997).

3. The entitlement approach of Amartya Sen is only meaningful if members of the communityand the political regime accept such entitlements as valid and legal. In cases of conflicts suchentitlements are taken away by coercion. See Amartya Sen, ‘Poverty and Entitlements’, ‘TheEntitlement Approach’ and ‘Entitlements and Deprivation’, in Poverty and Famines: AnEssay on Entitlement and Deprivation (Oxford: Clarendon Press, 1981).

4. Barbara, Harrell-Bond, ‘The experience of Refugees as Recipients of Aid’, in Refugees:Perspectives on the experience of Forced Migration, ed. A. Ager (New York: Cassell, 1999),136–168. W. Van Damme, ‘Do Refugees Belong in Camps? Experiences from Goma andGuinea’, The Lancet 346 (1995): 360–2; Refugee Policy Group,Hope Restored? HumanitarianAid in Somalia 1990–1994. Report on Somalia Humanitarian Aid Study (Washington, DC:Refugee Policy Group, 1994).

5. The right to seek asylum is protected by article 14 of the United Nations Universal Declarationof Human Rights.

6. Article 9 of the Universal Declaration of Human Rights.7. Jean Pictet, Fundamental Principles of the Red Cross: commentary (Geneva: International

Committee of the Red Cross, 1979) http://www.icrc.org/web/eng/siteeng0.nsf/html/EA08067453343B76C1256D2600383BC4?OpenDocument&Style¼Custo_Final.3&View=defaultBody3.

8. These can be found in the Universal Declaration of Human Rights and other treaties andincludes right to life, freedom from genocide and ethnic cleansing, right to a nationality, etc.

9. The 1951 Geneva Convention relating to the status of refugees and its 1967 Protocol stipulatesmost of these rights including the right to seek asylum and the right not to be forcibly returned.

10. UNHCR, Global Trends 2007.11. Peter Kagwanja, Edward Odiyo and Peter Ndege, ‘Refugees in Law and in Fact; A Review of

the Literature and Research Agenda’, Centre for Refugees Occasional Paper series 1, no.1(2002).

12. Human Rights Watch, ‘In the Name of Security; Forced Round Ups of Refugees in Tanzania’,11, no. 4 (1999); Loren Landau, ‘Immigration and the State of Exception: Nativism, Security,and Sovereignty in Refugee Affected Areas’. Paper presented at 47th Annual Meeting of theAfrican Studies Association, New Orleans, 11–14 November 2004.

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13. Ferenezi, 1929 cited in Douglas S Massey, ‘A Brief History of International Migration’.Paper presented during the Conference on African Migration in Comparative Perspective,Johannesburg, 4–7 June 2003, 1–41.

14. As a consequence of the civil wars between government forces and UNITA rebels in Angola andFRELIMO (The Liberation Front of Mozambique) and RENAMO (The Mozambican NationalResistance) in Mozambique.

15. Jonathan Crush and Vincent Williams, ‘Criminal Tendencies: Immigrants and Illegality inSouth Africa’, Migration Policy Brief No.10 (Cape Town: Southern Africa Migration Project,2003).

16. Ibid.17. Graeme Gotz, ‘The Role of Local Government towards Forced Migrants’, in Forced Migrants

in the New Johannesburg: Towards a Local Government Response, ed. Loren Landau(Johannesburg: University of Witwatersrand, 2004).

18. South African Human Rights Commission, Report into the Arrest and Detention of SuspectedUndocumented Migrants (Pretoria: South African Human Rights Commission, 1999).

19. Jonathan Crush and Vincent Williams, ‘Making Up the Numbers: Measuring “Illegal Immigra-tion” to South Africa’, Migration Policy Brief No 3 (Cape Town: South African MigrationProject, 2001); Gotz, ‘The Role of Local Government towards Forced Migrants’; andLandau, Forced Migrants in the New Johannesburg.

20. There is remarkable range in these figures. They were first released by HRSC and have beenquoted by DHA and other researchers.

21. Jonathan Crush and Vincent Williams, ‘Making up the Numbers: Measuring “Illegal Immigra-tion” to South Africa’, Migration Policy Brief No. 3 South African Migration Project (CapeTown: Idasa/Queen’s, 2001).

22. These are cumulative figures covering the period since South Africa started formally acceptingrefugees in 1994.

23. UNHCR, South Africa, Country Report, 2005, http://cfapp1-docs-public.undp.org/eo/evaldocs1/sfcle/eo_doc_827062515.DOC.

24. South Africa is only second to the USAwith regard to asylum seekers whose cases are awaitingdetermination: UNHCR, Global Trends: Refugees, Asylum Seekers, Returnees, InternallyDisplaced and Stateless Persons (UNHCR, 2004).

25. Given the unstable economic and political situation prevailing in Zimbabwe now, these figuresmay have substantially increased. See Crush and Williams, ‘Making Up the Numbers’; Landau,Forced Migrants in the New Johannesburg.

26. Crush and Williams, ‘Making Up the Numbers’.27. Ibid.28. Emma Algotsson and Jonathan Klaaren, ‘Policing Migration; Immigration Enforcement and

Human Rights in South Africa’, Migration Policy Brief No. 14 (Cape Town: Southern AfricaMigration Project, 2002).

29. The South African Constitution guarantees certain rights without discrimination on the basis ofnationality.

30. Guy Godwin-Gill, ‘International and National Responses to the Challenges of Forced Displace-ment’ in Advancing Refugee Protection in South Africa, ed. Jeff Handmaker, Lee Ann, de leHunt and Jonathan Klaaren (New York: Berghan Books, 2008).

31. Loren Landau, ‘Democracy and Discrimination: Black African Migrants in South Africa’,Global Migration Perspective No.5 (Geneva: Global Commission on International Migration,2004); Dulo Nyaoro. ‘The Short Arm of the Law’. Unpublished MA thesis submitted to theUniversity of Witwatersrand, Johannesburg, South Africa, 2006.

32. See Ingrid Palmary, ‘Refugees, Safety and Xenophobia in South African Cities: The Role ofLocal Government’. Research Report for the Centre for the Study of Violence and Reconcilia-tion, 2002. http://www.csvr.org.za/pubslist/pubsurb.htm (accessed October 5, 2005).

33. Ibid.34. David Bruce, ‘Police Brutality in Southern Africa’, in Police Brutality in Southern Africa –

A Human Rights Perspective, eds N. Mwanajiti, P. Mhlanga, M. Sifuniso, Y. Nachali-Kambikambi, M. Muuba and M. Mwananyanda (Inter-African Network for Human Rightsand Development (Afronet), 2002); Ingrid Palmary, ‘Refugees, Safety and Xenophobia inSouth African Cities: The Role of Local Government’, Research Report for the Centre for


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the Study of Violence and Reconciliation, Johannesburg, (2002), http://www.csvr.org.za/pubslist/pubsurb.htm (accessed 5 October 2005).

35. Landau, ‘Democracy and Discrimination’; Brett Story, ‘Politics as Usual: The Criminalizationof Asylum Seekers in the United States of America’, Refugee Studies Centre, Working PaperSeries No. 26, Oxford University, 2005.

36. Fedde Groot, ‘Challenges of the UNHCR’s Programme for Urban Refugees in South Africa’, inForced Migrants in the New Johannesburg: Towards a Local Government Response’, ed. LorenLandau (Johannesburg: University of Witwatersrand, 2004).

37. Mathew Gibney, ‘Liberal Democratic States and Responsibilities to Refugees’, AmericanPolitical Science Review March (1999).

38. Landau, ‘Democracy and Discrimination’; Sarah Bailey. ‘Is Legal Status Enough?; Legal Statusand Livelihood Obstacles for Urban Refugees’. MA thesis, Fletcher School, Tufts University,2004.

39. Groot, ‘Challenges of the UNHCR’s Programme for Urban Refugees in South Africa’.40. Including International Covenant on Civil and Political Rights, the International Covenant on

Economic, Social and Cultural Rights, and the African Charter on Human and Peoples Rights41. The camp is now 16 years old and hosts 90,000 refugees mainly Southern Sudanese.42. This is against the Kenya Law that stipulates that suspects must be produced in court within 24

hours or be released regardless of nationality.43. Van Damme, ‘Do Refugees Belong in Camps?’; Barbara Harrell-Bond and E. Voutira, ‘In

Search of the Locus of Trust’, in Mistrusting Refugees, eds E.V. Daniel and J.C. Knudsen(Berkeley: University of California press, 1995), 208–24.

44. Sarah Dix, ‘Kenya: Urbanization and the Social Protection of Refugees in Nairobi’, ODI-Humanitarian Practice Network, January 3, 2007, 1–4.

45. The Kenyan government maintained for a long time that there were no refugees in towns:Human Rights Watch, ‘Hidden in Plain View’. Human Rights Watch, 50 years on: WhatFuture for Refugee Protection? (2001); ‘Kenya: Urbanization and the Social Protection ofRefugees in Nairobi’.

46. Human Rights Watch, ‘Hidden in Plain View’.47. The Refugee Act 2006 of Kenya was assented to by the President in December 2006 but has not

been operationalised yet.48. Article 17 of the International Convention on civic and political rights prohibits arbitrary arrest.49. Guglielmo Verdirame, ‘Human Rights and Refugees: The Case of Kenya’, Journal of Refugee

Studies 12, no. 1 (1999): 54–77.50. See Articles 13–14 of the Universal Declaration of Human Rights.51. Verdirame, ‘Human Rights and Refugees’; Edwin Odhiambo Abuya, ‘Past Reflections, Future

Insights: African Asylum Law in Historical Perspective’, International Journal of Refugee Law.Oxford Journals. (2007): 51–95.

52. Interview in Nairobi January 15, 2007.53. Elizabeth H. Campbell. ‘Urban Refugees in Nairobi: Problems of Protection, Mechanism of

Survival and Possibilities for Integration’, Journal of Refugee Studies 19, no. 3 (2006): 396–413.54. Refugees who have been officially allowed to leave the camp are issued with letters from the

UNHCR office stating their reasons for travel.55. Human Rights Watch, ‘Hidden in Plain View’; Campbell. ‘Urban Refugees in Nairobi’.56. These are provided for in the South African Refugee Act No. 30, 1998. The temporary permits

given to asylum seekers are provided for in Section 22 while those of refugees are provided forin Section 30.

57. Algotsson and Klaaren, ‘Policing Migration’.58. Groot, ‘Challenges of the UNHCR’s Programme for Urban Refugees in South Africa’; Joyce

Tlou, ‘Challenges Facing Forced Migrants in Johannesburg and the Non-GovernmentResponse’, in Forced Migrants in the New Johannesburg: Towards a Local GovernmentResponse, ed. Loren Landau (Johannesburg: University of Witwatersrand, 2004).

59. Landau, ‘Immigration and the State of Exception’.60. Interview no. 5, November 2005.61. Edwin Odhiambo Abuya and George Makundi Wachira, ‘Assessing Asylum Claims in Africa:

Missing or Missing the Point?’, Netherlands International Law Review L111 (2006): 171–204.62. South African Human Rights Commission, Report into the Arrest and Detention of Suspected

Undocumented Migrants.

144 D. Nyaoro

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63. Lawyers for Human Rights, Press Release, November 14, 2005. The office in RosettenvilleJohannesburg has since been reopened.

64. Interview no. 11, November 2005.65. Interview no. 3, November 2005.66. Interview no. 4, November 2005.67. Mail and Guardian, ‘Migrants Suffer at the Hands of Police’, Johannesburg, South Africa, April

26, 2002, http://www.queensu.ca/samp/migrationnews/2002/apr.htm.68. Crush and Williams, ‘Criminal Tendencies’.69. Abida Bhamjee and Jonathan Klaaren, ‘Legal Problems Facing Refugees in Johannesburg’, in

Forced Migrants in the New Johannesburg: Towards a Local Government Response, ed. LorenLandau (Johannesburg: University of the Witwatersrand, 2004), 54–60.

70. Campbell. ‘Urban Refugees in Nairobi’.71. Universal Declaration of Human Rights; Article 17 and International Convention on Economic,

Social and Cultural Rights; Article 3.72. Jonathan Crush and Vincent Williams, ‘Criminal Tendencies: Immigrants and Illegality in South

Africa’,Migration Policy Brief No.10, Southern African Migration Project (Cape Town: Idasa/Queen’s, 2003); Ingrid Palmary, ‘City Policing and Forced Migrants in Johannesburg’, inForced Migrants in the New Johannesburg: Towards a Local Government Response, ed.Loren Landau (Johannesburg: University of the Witwatersrand, 2004), 61–9.

73. Algotsson and Klaaren, ‘Policing Migration’.74. Palmary, ‘City Policing and Forced Migrants in Johannesburg’.75. Algotsson and Klaaren, ‘Policing Migration’.76. Edward O Mogire, ‘Refugees and the Proliferation of Illegal Small Arms and Light Weapons in

Kenya’. Occasional Paper Series Vol. 1.4, Centre for Refugees Studies, Moi University, 2003;Francis Wairagu, Jan Kamenju and Mwachofi Singo, Private Security in Kenya (Nairobi:Security Research and Information Centre, Oakland Media services, 2004).

77. Crush and Williams, ‘Criminal Tendencies’.78. Lawyers for Human Rights, Press Release, November 14, 2005.79. Interview no. 15, November 2005.80. Loren Landau and Karen Jacobsen. ‘Refugees in the New Johannesburg’. Forced Migration

Review 19 (2004): 44–6.81. Interview no. 2, November 2005.82. Interview no. 12, November, 2005.83. Interview no. 13, November, 2005.84. Interview no. 2, November 2005.85. Interview no. 9, November 2005.86. Lee (1981) cited in Reiner, The Politics of the Police, 95.87. Reiner, The Politics of the Police.88. Human Rights Watch, ‘Hidden in Plain View’; Campbell. ‘Urban Refugees in Nairobi’; Dix,

‘Kenya: Urbanization and the Social Protection of Refugees in Nairobi’.89. Bhamjee and Klaaren, ‘Legal Problems Facing Refugees in Johannesburg’.90. Landau, ‘Immigration and the State of Exception’.91. Interview no. 11, November 2005.92. Interview by South African Human Rights Commission in Lindela, 1999.93. Gotz, ‘The Role of Local Government towards Forced Migrants’.94. Landau and Jacobsen. ‘Refugees in the New Johannesburg’; Campbell. ‘Urban Refugees in

Nairobi’.


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Policing with prejudice: how policing exacerbates poverty among urban refugees

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Transcript of Policing with prejudice: how policing exacerbates poverty among urban refugees