Strengthening access to justice for women refugees and asylum seekers in South Africa

Introduction

In 2011, the International Migration Annual Review estimated there were a billion migrants in the world (International Organization for Migration, 2011). In 2019, the United Nations High Commissioner for Refugees (UNHCR) reported that the world was witnessing the highest levels of displacement on record and that an unprecedented 70.8 million people around the world had been forced from their homes, among them nearly 25.9.3 million refugees (UNHCR, 2019). South Africa has also experienced an increase in migration, and in 2009 the UNHCR noted that the country had received the highest number of asylum seekers individually processed by a government.¹ All of this places an added responsibility on receiving states to treat victims of forced migration with dignity, compassion and understanding. However, it is common knowledge that refugees and asylum seekers often experience discrimination and exclusion in host countries and that the law is not always protective of their needs. Therefore, access to justice is important, as it is often the only way that refugees and asylum seekers can enjoy the rights they are entitled to in host countries. In this chapter we attempt to analyse what the right to access to justice in South Africa means for refugee and asylum-seeking women. Here, we understand access to justice to mean access to not only the judicial system but also to the state institutions and services which allow an individual to live a dignified life. To this end, access to the asylum process is viewed as an important gateway to access to justice.

This chapter will briefly introduce the refugee situation in South Africa, arguing that although South Africa has a progressive Constitution, with a Bill of Rights which affords comprehensive rights to all who live in the country, access to those rights is subject to one’s social position, gender, nationality and sometimes one’s sexual orientation. The chapter thus seeks to analyse how refugee women’s multiple identities affect their ability to access justice in South Africa.

Conceptualising the notion of access to justice

Access to justice can be defined in numerous ways, both narrowly and more broadly. The narrow conception of access to justice originates from the 18th to 19th centuries: during this time access to justice was narrowly conceptualised as referring to an individual’s formal right to litigate and defend themselves. Accordingly, Cappelletti and Garth defined access to justice as the right to “have your day in court” (Cappelletti & Garth, 1978:8). During this period, access to justice was perceived as a natural right which accrued to all men. However, this conception of access to justice did not impose a positive duty on the State to protect this right. Consequently, the narrow conception of access to justice focuses on access to the legal or justice system. A broader definition of access to justice expands this notion to include social institutions and variables (Currie & De Waal, 2013:704). It takes cognisance of the fact that access to justice includes social justice, which is mitigated by many factors such as poverty, gender, nationality and age. The broader conception of access to justice also seeks to reform and streamline many areas of the legal system and social institutions. In the broader sense, access to justice is viewed in light of social variables that negatively impact the ability of certain groups to access the justice system. Given this broad and context-sensitive conception of access to justice, it is clear that the concept is highly nuanced and subjective, making a universal definition impossible (Good, 2009:47).

In South Africa, access to justice is often framed within the context of the legal system and administrative justice. This framing highlights two crucial objectives of the legal system: the legal system must be equally accessible to all, and it must lead to results that are individually and socially just. In 2000, the Constitutional Court stated that “... access to justice advocates for greater responsiveness in the administration of law”.

Access to justice therefore involves preventing the violation of one’s rights and attaining an effective remedy whenever those rights are breached. It can also be conceived as removing barriers to the attainment of justice. It is clear that the concept of access to justice has evolved over the years from a narrow definition referring to access to legal services and other state services (access to courts or tribunals), to a broader one that includes social justice, economic justice and environmental justice. Recently, the South African Commissioner for Human Rights noted,

[j]ustice is not the exclusive preserve of the courts. The Constitution ... is designed to achieve justice in the broader sense including social justice and various functionaries including government, independent institutions, the private sector and indeed civil society take on a special responsibility for the achievement of justice and thus access to justice is more, much more tha[n] simply access to courts

(Kollapen, 2003)

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In this chapter, we analyse the barriers to attaining the rights and the remedies that should be available to refugee women in South Africa. In doing so, we look at the obstacles present in the asylum-seeking process and in government institutions that refugee women interact with on a daily basis. These barriers substantially influence access to social, economic and legal rights for refugee women in South Africa. This is because for refugees, and particularly refugee women, access to justice in South Africa is highly dependent on the acquisition of legal documentation. We therefore take the approach that access to justice can be seen in an individual’s everyday experiences. The chapter will begin by tracing the origins of the access to justice concept from an international law and regional perspective, as well as examining how South Africa translates the international right into its domestic laws. It will then look at the barriers to access to justice faced by refugees and refugee women in South Africa.