This article examines the attempts made by both the Executive and Parliament to curb marriages of... more This article examines the attempts made by both the Executive and Parliament to curb marriages of convenience through the revision of refugee and immigration laws. Asylum seekers or economic migrants use marriages of convenience largely to legitimise their stay in South Africa. South African authorities regard these marriages of convenience as a threat both to South African society as they violate pro-marriage policies and anti-irregular migrant policies, and to national security as they defeat the object of the institution of marriage. In this context, the article explores the complexities of combating marriages of convenience on the basis of the principle of consent on which a valid marriage is fundamentally constructed, and also on the basis of an analysis of judicial opinions holding that a marriage of convenience must be terminated by a decree of divorce.
There is no governmental support designed to promote refugee education at tertiary level due to t... more There is no governmental support designed to promote refugee education at tertiary level due to treating refugee tertiary students as if they are international students. The same treatment also has the potential to exclude them from existing financial aid and assistance schemes designed to assist needy and deserving students for the promotion of representivity and equal access to tertiary education.This book, therefore, argues that exclusion of refugees from such positive measures flies in the face of refugee law principles and that there is a need to accord to refugees “treatment as favourable as possible” with respect to scholarships and bursaries. It justifies their inclusion on the moral grounds of entrenching socio-economic rights in international refugee law as inalienable to refugee’s humanity. The analysis of the right to education within the inherent human dignity framework would help us to shed some light on the question whether and to what extent refugees are entitled to ...
As we celebrate the World Refugee Day at 62nd anniversary of the 1951 Refugee Convention relating... more As we celebrate the World Refugee Day at 62nd anniversary of the 1951 Refugee Convention relating to the Status of Refugee, there is 13 years when South Africa has committed itself to providing international protection and assistance to refugees and asylum-seekers and to promote durable solutions for their problems. This article is a reflection on how is the refugee and asylum-seekers protection is provided in terms of tertiary education, and reference to the UN Refugee Convention, Refugee Act and South African Constitution. This article will illustrate political attitudes of the government of South Africa towards refugees and asylum-seekers that influences adoption of national policies, which do not promote favourable access to tertiary education. The current political attitude is concerned with closing the borders and to reduce the number of refugees and asylum-seekers within South Africa. It regards the provision of socioeconomic assistance as an incentive of making South Africa ...
The article seeks to illuminate South Africa’s exclusionary approach towards housing refugees and... more The article seeks to illuminate South Africa’s exclusionary approach towards housing refugees and asylum seekers, and to integrating them into the economy. To this end, this article argues that the exclusionary approach conflicts with and is in violation of the constitutional values of human dignity, equality and freedom on which South Africa’s refugee law is based. The article employs a qualitative research methodology to illustrate that policy issues are acting as barriers to accessing housing programmes. It makes recommendations on how to close the gaps in housing law to ensure that future planning and implementation of housing policies are in harmony with refugee policies. Finally, innovative and creative solutions to the challenges that refugees and asylum seekers face in the housing sector are drawn from the learning processes acquired from past experience.
This article critically examines the nature and scope of the type of refugee protection offered b... more This article critically examines the nature and scope of the type of refugee protection offered by South Africa to people fleeing their home countries. It offers an analytical demonstration of how South Africa has gradually developed conflicted and ambivalent attitudes towards the protection of refugees and asylum seekers. South Africa’s conflicted and ambivalent attitudes towards refugee protection are evident in several amendments made to the refugee regime, to restrict the enjoyment of refugees’ socio-economic protection. The purpose of this article is therefore to demonstrate that the ongoing amendments to the refugee legal framework – without harmonisation with socio-economic laws – increasingly result in the disappearance of refugee rights. This, in turn, results in the creation of disgruntled refugees; through protests, they express their dissatisfaction with ineffective protection, and consequently demand to be resettled or relocated to other countries for better and effecti...
This article seeks to explore the limitation of the theory of full legal protection by illustrati... more This article seeks to explore the limitation of the theory of full legal protection by illustrating with facts that the theory does not lack legal force, but rather that various concepts such as citizenship, national security, sovereignty, affirmative action, legal positivism, and democratic governance severely limit the application of theory. In particular, the limitation of full legal protection is analysed through the lens of legal positivism and the natural law doctrines whereby it is argued that the laws of South Africa are framed in the context of legal positivism which does not take cognisance of the moral values on which the natural law doctrine is based. As a result, the full legal protection of constitutional rights of refugees remains in theory. In order to convert this theory into an effective protection, it is argued that although the state has the power inherent in its sovereignty to design and frame laws as it deems best, South Africa should, with the natural law in m...
In post-conflict societies, the politics of apology is increasingly and heavily relied on for jus... more In post-conflict societies, the politics of apology is increasingly and heavily relied on for justice, accountability and reconciliation to be realised. The reason for this approach is to demand a public apology from perpetrators for their mass atrocities as a sign of acceptance of responsibility. There are a number of features of this form of politics of apology applied by Gacaca courts that will be explored in light of retributive and restorative justice. Given that confession, guilty plea, repentance and apology were applied as a threshold requirement in genocide trials, this paper will critically analyse their legal consequences in light of the question whether fair trial principles should have been applied with respect to those accused who were unwilling to come forward, confess and apologise. After contextualisation and assessment of the purpose of the politics of apology in post-genocide Rwanda, the paper concludes that the politics of apology was particularly applied as a disguised attempt to allocate collective guilt to the Hutu as a group and that collective guilt has the potential to place the Hutu population in a vulnerable position within post-genocide politics. With retributive justice, the Gacaca courts served to ensure that Hutus did not escape revenge but did little to foster reconciliation.
This article seeks to illuminate changes that were brought about by the Refugees Amendment Bill [... more This article seeks to illuminate changes that were brought about by the Refugees Amendment Bill [B12-2016] (the Bill) which was, according to the Department of Home Affairs (DHA), aimed at harmonising the two previous amendments, inter alia, the Refugees Amendment Act 33 of 2008 and the Refugees Amendment Act 12 of 2011 with the Refugees Act 130 of 1998. The article further discusses restrictive measures as well as crucial changes introduced by the Bill. Finally, the article concludes by noting that introduced measures were all about exclusion of certain refugees and asylum-seekers from refugee protection as well as depriving asylum-seekers of access to socio-economic rights, instead of improving the management refugee system so as to be accessible, efficient, easy and credible.
This paper seeks to critique the International Criminal Tribunal of Rwanda’s (ICTR) application o... more This paper seeks to critique the International Criminal Tribunal of Rwanda’s (ICTR) application of sentencing theory that justifies retribution and general deterrence as a means of contributing to the Rwandan reconciliation processes. Moral justification based on desert is founded on the notion of inflicting pain on the perpetrators so as to condemn and express social disapproval for heinous crimes in the strongest terms while deterrent moral justification is about deterring others from committing similar crimes. The purpose of this article is to illustrate that the application of these theories results in the violation of the right to rehabilitation and pardon, on one hand, and has a negative impact on reconciliation, on the other, and that, in order to avoid this, punishments should comprise of rehabilitative theories so as to transform detainees thereby making them conform. This includes pardoning certain detainees.
The political debate on exclusion of refugees and asylum-seekers from socio-economic benefits and... more The political debate on exclusion of refugees and asylum-seekers from socio-economic benefits and opportunities is arguably underpinned by assumptions, fallacies and misconceptions that a higher number of refugees are not “genuine.” Rather they are bogus refugees who are in South Africa to seek a better life. That belief has a dire consequence of treating refugee students as ‘international students” at higher learning institutions, resulting in depriving refugees and asylum-seekers of the right to education and training and of other social opportunities. These assumptions fly in the face of international refugee law principles that refugees and asylum-seekers are to be accorded ‘treatment as favourable as possible’ with respect to tertiary education. Thus, the main objective of the paper is to argue for favourable extension of student financial aid and assistance to refugees and asylum-seekers in South Africa for educational purpose in line with the principles of fair and equitable treatment under international law.
The paper depends largely on the concept of social justice and the philosophy of Ubuntu (which means to be humane toward others). It argues that practicalizing Ubuntu demands a distributive justice system to ensure that the most vulnerable people have access to certain primary goods and they are afforded social opportunities to realise the most fulsome life. In so doing, the paper draws legal distinctions between two often-confused concepts vis a refugee student and an international student though the discussion of the two distinct regimes that regulate their sojourn in South Africa, namely the Refugees Act 130 of 1998, as amended and the Immigration Act 13 of 2002, as amended.
This article examines the attempts made by both the Executive and Parliament to curb marriages of... more This article examines the attempts made by both the Executive and Parliament to curb marriages of convenience through the revision of refugee and immigration laws. Asylum seekers or economic migrants use marriages of convenience largely to legitimise their stay in South Africa. South African authorities regard these marriages of convenience as a threat both to South African society as they violate pro-marriage policies and anti-irregular migrant policies, and to national security as they defeat the object of the institution of marriage. In this context, the article explores the complexities of combating marriages of convenience on the basis of the principle of consent on which a valid marriage is fundamentally constructed, and also on the basis of an analysis of judicial opinions holding that a marriage of convenience must be terminated by a decree of divorce.
There is no governmental support designed to promote refugee education at tertiary level due to t... more There is no governmental support designed to promote refugee education at tertiary level due to treating refugee tertiary students as if they are international students. The same treatment also has the potential to exclude them from existing financial aid and assistance schemes designed to assist needy and deserving students for the promotion of representivity and equal access to tertiary education.This book, therefore, argues that exclusion of refugees from such positive measures flies in the face of refugee law principles and that there is a need to accord to refugees “treatment as favourable as possible” with respect to scholarships and bursaries. It justifies their inclusion on the moral grounds of entrenching socio-economic rights in international refugee law as inalienable to refugee’s humanity. The analysis of the right to education within the inherent human dignity framework would help us to shed some light on the question whether and to what extent refugees are entitled to ...
As we celebrate the World Refugee Day at 62nd anniversary of the 1951 Refugee Convention relating... more As we celebrate the World Refugee Day at 62nd anniversary of the 1951 Refugee Convention relating to the Status of Refugee, there is 13 years when South Africa has committed itself to providing international protection and assistance to refugees and asylum-seekers and to promote durable solutions for their problems. This article is a reflection on how is the refugee and asylum-seekers protection is provided in terms of tertiary education, and reference to the UN Refugee Convention, Refugee Act and South African Constitution. This article will illustrate political attitudes of the government of South Africa towards refugees and asylum-seekers that influences adoption of national policies, which do not promote favourable access to tertiary education. The current political attitude is concerned with closing the borders and to reduce the number of refugees and asylum-seekers within South Africa. It regards the provision of socioeconomic assistance as an incentive of making South Africa ...
The article seeks to illuminate South Africa’s exclusionary approach towards housing refugees and... more The article seeks to illuminate South Africa’s exclusionary approach towards housing refugees and asylum seekers, and to integrating them into the economy. To this end, this article argues that the exclusionary approach conflicts with and is in violation of the constitutional values of human dignity, equality and freedom on which South Africa’s refugee law is based. The article employs a qualitative research methodology to illustrate that policy issues are acting as barriers to accessing housing programmes. It makes recommendations on how to close the gaps in housing law to ensure that future planning and implementation of housing policies are in harmony with refugee policies. Finally, innovative and creative solutions to the challenges that refugees and asylum seekers face in the housing sector are drawn from the learning processes acquired from past experience.
This article critically examines the nature and scope of the type of refugee protection offered b... more This article critically examines the nature and scope of the type of refugee protection offered by South Africa to people fleeing their home countries. It offers an analytical demonstration of how South Africa has gradually developed conflicted and ambivalent attitudes towards the protection of refugees and asylum seekers. South Africa’s conflicted and ambivalent attitudes towards refugee protection are evident in several amendments made to the refugee regime, to restrict the enjoyment of refugees’ socio-economic protection. The purpose of this article is therefore to demonstrate that the ongoing amendments to the refugee legal framework – without harmonisation with socio-economic laws – increasingly result in the disappearance of refugee rights. This, in turn, results in the creation of disgruntled refugees; through protests, they express their dissatisfaction with ineffective protection, and consequently demand to be resettled or relocated to other countries for better and effecti...
This article seeks to explore the limitation of the theory of full legal protection by illustrati... more This article seeks to explore the limitation of the theory of full legal protection by illustrating with facts that the theory does not lack legal force, but rather that various concepts such as citizenship, national security, sovereignty, affirmative action, legal positivism, and democratic governance severely limit the application of theory. In particular, the limitation of full legal protection is analysed through the lens of legal positivism and the natural law doctrines whereby it is argued that the laws of South Africa are framed in the context of legal positivism which does not take cognisance of the moral values on which the natural law doctrine is based. As a result, the full legal protection of constitutional rights of refugees remains in theory. In order to convert this theory into an effective protection, it is argued that although the state has the power inherent in its sovereignty to design and frame laws as it deems best, South Africa should, with the natural law in m...
In post-conflict societies, the politics of apology is increasingly and heavily relied on for jus... more In post-conflict societies, the politics of apology is increasingly and heavily relied on for justice, accountability and reconciliation to be realised. The reason for this approach is to demand a public apology from perpetrators for their mass atrocities as a sign of acceptance of responsibility. There are a number of features of this form of politics of apology applied by Gacaca courts that will be explored in light of retributive and restorative justice. Given that confession, guilty plea, repentance and apology were applied as a threshold requirement in genocide trials, this paper will critically analyse their legal consequences in light of the question whether fair trial principles should have been applied with respect to those accused who were unwilling to come forward, confess and apologise. After contextualisation and assessment of the purpose of the politics of apology in post-genocide Rwanda, the paper concludes that the politics of apology was particularly applied as a disguised attempt to allocate collective guilt to the Hutu as a group and that collective guilt has the potential to place the Hutu population in a vulnerable position within post-genocide politics. With retributive justice, the Gacaca courts served to ensure that Hutus did not escape revenge but did little to foster reconciliation.
This article seeks to illuminate changes that were brought about by the Refugees Amendment Bill [... more This article seeks to illuminate changes that were brought about by the Refugees Amendment Bill [B12-2016] (the Bill) which was, according to the Department of Home Affairs (DHA), aimed at harmonising the two previous amendments, inter alia, the Refugees Amendment Act 33 of 2008 and the Refugees Amendment Act 12 of 2011 with the Refugees Act 130 of 1998. The article further discusses restrictive measures as well as crucial changes introduced by the Bill. Finally, the article concludes by noting that introduced measures were all about exclusion of certain refugees and asylum-seekers from refugee protection as well as depriving asylum-seekers of access to socio-economic rights, instead of improving the management refugee system so as to be accessible, efficient, easy and credible.
This paper seeks to critique the International Criminal Tribunal of Rwanda’s (ICTR) application o... more This paper seeks to critique the International Criminal Tribunal of Rwanda’s (ICTR) application of sentencing theory that justifies retribution and general deterrence as a means of contributing to the Rwandan reconciliation processes. Moral justification based on desert is founded on the notion of inflicting pain on the perpetrators so as to condemn and express social disapproval for heinous crimes in the strongest terms while deterrent moral justification is about deterring others from committing similar crimes. The purpose of this article is to illustrate that the application of these theories results in the violation of the right to rehabilitation and pardon, on one hand, and has a negative impact on reconciliation, on the other, and that, in order to avoid this, punishments should comprise of rehabilitative theories so as to transform detainees thereby making them conform. This includes pardoning certain detainees.
The political debate on exclusion of refugees and asylum-seekers from socio-economic benefits and... more The political debate on exclusion of refugees and asylum-seekers from socio-economic benefits and opportunities is arguably underpinned by assumptions, fallacies and misconceptions that a higher number of refugees are not “genuine.” Rather they are bogus refugees who are in South Africa to seek a better life. That belief has a dire consequence of treating refugee students as ‘international students” at higher learning institutions, resulting in depriving refugees and asylum-seekers of the right to education and training and of other social opportunities. These assumptions fly in the face of international refugee law principles that refugees and asylum-seekers are to be accorded ‘treatment as favourable as possible’ with respect to tertiary education. Thus, the main objective of the paper is to argue for favourable extension of student financial aid and assistance to refugees and asylum-seekers in South Africa for educational purpose in line with the principles of fair and equitable treatment under international law.
The paper depends largely on the concept of social justice and the philosophy of Ubuntu (which means to be humane toward others). It argues that practicalizing Ubuntu demands a distributive justice system to ensure that the most vulnerable people have access to certain primary goods and they are afforded social opportunities to realise the most fulsome life. In so doing, the paper draws legal distinctions between two often-confused concepts vis a refugee student and an international student though the discussion of the two distinct regimes that regulate their sojourn in South Africa, namely the Refugees Act 130 of 1998, as amended and the Immigration Act 13 of 2002, as amended.
Comments from five civil society organisations, namely, the Refugee Law (RL), Scalabrini Centre o... more Comments from five civil society organisations, namely, the Refugee Law (RL), Scalabrini Centre of Cape Town (SCCT), Somali Association of South Africa (SASA), International Network of Congolese Lawyers (INCL) and Legal Resource Centre (LRC) on the Refugees Amendment Bill (the Bill), initiated by the Department of Home Affairs (DHA) in 2015, and tabled by it before parliament in 2016.
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Papers by Callixte Kavuro
The paper depends largely on the concept of social justice and the philosophy of Ubuntu (which means to be humane toward others). It argues that practicalizing Ubuntu demands a distributive justice system to ensure that the most vulnerable people have access to certain primary goods and they are afforded social opportunities to realise the most fulsome life. In so doing, the paper draws legal distinctions between two often-confused concepts vis a refugee student and an international student though the discussion of the two distinct regimes that regulate their sojourn in South Africa, namely the Refugees Act 130 of 1998, as amended and the Immigration Act 13 of 2002, as amended.
The paper depends largely on the concept of social justice and the philosophy of Ubuntu (which means to be humane toward others). It argues that practicalizing Ubuntu demands a distributive justice system to ensure that the most vulnerable people have access to certain primary goods and they are afforded social opportunities to realise the most fulsome life. In so doing, the paper draws legal distinctions between two often-confused concepts vis a refugee student and an international student though the discussion of the two distinct regimes that regulate their sojourn in South Africa, namely the Refugees Act 130 of 1998, as amended and the Immigration Act 13 of 2002, as amended.