Leveraging the SADC Protocol on Gender and Development - From a Migration Perspective
Written by Muluti Phiri
Background: According to available research, South Africa is one of the most economically stable countries in the world, attracting migrants seeking new opportunities.
The International Organisation for Migration (IOM) defines a migrant as "any person who is moving or has moved across an international border or within a State away from his/her habitual place of residence, regardless of the person's legal status, whether the movement is voluntary or involuntary".
Note: It is important to note that migrants are not a homogenous group. Research shows that the total number of non-nationals living in South Africa is a mix of documented and undocumented migrants, refugees, asylum seekers, displaced persons, economic migrants, and persons moving for other purposes, including family reunification.
Despite a progressive legal framework guaranteeing international migrants' rights, migrants remain remarkably vulnerable to harassment and human rights violations. This is an indicator that more needs to be done.
Rates of victimisation are higher for migrants than local populations and significantly higher for vulnerable groups of migrants.
Gender-Based Violence:
According to the SADC Protocol on Gender and Development, “GBV means all acts perpetrated against women, men, girls, and boys based on their sex which cause or could cause them physical, sexual, psychological, emotional or economic harm, including the threat to take such acts, or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peacetime and during situations of armed or other forms of conflict.”[1]
Regarding migrant women, GBV is almost not discussed because women usually come as dependents on men. (Factors such as norms and culture, post-traumatic stress can perpetuate violence in intimate partner relationships).
They are unfortunately exposed to gender-based violence that has been normalised in ways in which the public interacts with minority and vulnerable groups. Migrants commonly experience crimes such as sexual assault, harassment, and xenophobia.
For example, in the past decade, we have witnessed xenophobic attacks against foreign nationals associated with mistrust and fear. Xenophobic victims, particularly women and children, have experienced significant physical, social, and mental stress. Evidently, due to their status as migrants living in low-income areas of South Africa, these women are at a triple risk of being exploited and violently harmed because they are at the bottom of the social hierarchy and the intersection of social and economic exclusion.
Economic hardship is also a source of violence. Article 17 of the SADC Protocol fosters the importance of economic empowerment, which should include “migrant women who, in most cases, have no access to economic opportunities.” Economic hardship demonstrates an unequal relationship between victims and perpetrators in control of access to resources (this could be between employer and employee – like domestic workers or with intimate partners). This can also be aligned with differential power dynamics regarding economic opportunities. The lack of financial means to travel in the desired manner perpetuates potential perpetrators' power over migrants. It is critical, therefore, to ensure that we tap into the Protocol so that economic empowerment is accessed equitably. The lack of income-generating activities or the right to work creates vulnerabilities when migrants of both sexes must resort to transactional sex as a survival strategy. This exposes migrants to violence and inhuman treatment.
A report by IOM indicates that female migrants who sell sex face several risks due to the criminal nature of their work. Factors such as irregular documentation status, fear of deportation, and fear of potential xenophobic attacks do contribute to sex workers' exposure to violence.
Access to Justice and Health:
Migrants experience barriers in accessing justice. Often, fear of arrest and deportation is a barrier that limits access to justice and protection, despite protections called for in Article 7 of the SADC Protocol on equality to accessing justice. For example, in some focus groups conducted with migrant women, some migrants reported fear of reporting incidences of rape due to fear of victimisation, arrest, and deportation. When reporting rape or domestic abuse cases, victims who have received poor treatment from the police have claimed to have experienced secondary victimisation.
Migrant women should be covered by Articles 20 & 26 of the SADC Protocol on Gender and Development – affordable quality health care, emergency contraceptives, justice, and fairness to survivors of GBV. While the right to access health services, including sexual reproductive health, is enshrined in the South African Constitution and equally promoted in the SADC Protocol, access is not always a reality for vulnerable groups of women, including undocumented migrants. Factors such as the lack of enabling documentation, language barrier, and negative attitude by service providers who, at times, are not aware of the rights of migrants have acted as deterrents to accessing health and protection services. It is critical, therefore, that, as stated in Article 24 of the SADC Protocol, there is a need to train service providers for inclusive healthcare services.
Similarly, the fear of authorities hinders seeking health services, which also hinders reporting cases of human rights violations, such as refusal or being turned away at a health care facility. Victims who have been improperly treated by police have reported experiencing secondary victimisation, especially when reporting rape or domestic violence cases. Law enforcement officers need to be, amongst other things, responsive, empathetic, and sensitive when dealing with cases of such a nature.
At the societal level, stigma and discrimination remain a considerable challenge for marginalised populations to exercise their sexual and reproductive rights. The fluidity of communities in which migrants settle makes it even more challenging for them to integrate into these new communities due to social stigma. Violence is a common phenomenon when migrants, men, women, and children live at the mercy of communities without guaranteed protection. This drives undocumented migrants, especially women/sex workers, underground and away from health, legal, and other supportive services.
As per Pillar Two (Prevention and Rebuilding of Social Cohesion) of the six pillars of response to GBV in South Africa and Article 8, peacebuilding and conflict resolution, there is a need to respond to the GBV crisis in a coherent, comprehensive, and multisectoral way that transforms harmful social and structural norms that feed GBV, as well as reshaping the values and norms to build positive social cohesion and restore human dignity for all who live in South Africa.
Bibliography
SADC Protocol on Gender and Development, Art. 1.2.
Written by Muluti Phiri (Project Officer at the Prevention of Sexual Exploitation and Abuse (PSEA))
Published by Africa Legal Aid
The views expressed on this blog are those of the contributors. They are not necessarily the views of AFLA, its editors, or its board.