16 Days: Family burnt to death in the DRC

During 16 Days of Activism for No Violence against Women and Children, the Legal Resources Centre will be sharing the stories of survivors of gender based violence who fled their countries to seek asylum in South Africa. Many women, children and sexual and gender non-conforming persons endure horrific hardship, sexual persecution, assault, rape and discrimination in their countries. When they arrive in South Africa their hardship does not end. Some women experience sexual persecution while crossing the border, while others may experience oppression, intolerance and discrimination while trying to create a life in South Africa. When they enter the asylum seeker process, they often endure further persecution. These are their stories.

Family burnt to death in the DRC

A was born in the Democratic Republic of Congo in a village in South Kivu. When she was 16 years old, soldiers came to her village and started to terrorise and kill people living in the village. Soldiers entered her home where they raped her in front of her parents. After she was raped, she was taken out of the house, leaving her parents inside. The soldiers then set fire to the house and both of her parents were burnt to death.

The reign of terror affected many households in the village and A escaped with some other children. As a group, they fled to Zimbabwe. A lived in a refugee camp in Zimbabwe for two months. At that time, cholera broke out in Zimbabwe and A fell very ill. She left the camp and travelled to South Africa where she has been living ever since. She met her husband when she arrived and they married a year later. She now has two children.

A applied for asylum in 2009. She received an asylum seeker permit, also known as a section 22 permit, which allows you to stay in the country legally until a decision is made about on your asylum seeker application. The permit will expire after 6 months but can be renewed. The process should not take longer than 6 months, but in the majority of cases, it takes far longer. A’s section 22 permit was renewed again and again until her second interview in March 2014. During her interview, the Refugee Status Determination Officer (RSDO) told her that, “foreigners just want to come to South Africa to steal the jobs and [she] should go back to [her] country.” Her asylum claim was rejected.

The Refugee Act 130 of 1998 of South Africa takes into account gender-related persecution in asylum claims. A has a well-founded fear of persecution and the RSDO failed to take the full circumstances of her home country into account, as mandated by the Refugees Act. The DRC has been labelled “the rape capital of the world” by the UN Special Representative on Sexual Violence in Conflict, Margot Wallstrom, owing to rape statistics in the country. Women are targeted for rape, which is used as a “weapon of war”. Research shows that even today it is not safe for refugees to return to the DRC and women are unable to ask the government for protection.

The Legal Resources Centre assisted her to apply for a review of her application on this basis and recommends that asylum seekers approach civil society organisations, such as the Legal Resources Centre, to ask for legal assistance in instances when the RSDO fails to consider all of the grounds for asylum, which include race, tribe, religion, nationality, political opinion, or membership in a particular social group.

16 Days: Facing imprisonment in Malawi

During 16 Days of Activism for No Violence against Women and Children, the Legal Resources Centre will be sharing the stories of survivors of gender based violence who fled their countries to seek asylum in South Africa. Many women, children and sexual and gender non-conforming persons endure horrific hardship, sexual persecution, assault, rape and discrimination in their countries. When they arrive in South Africa their hardship does not end. Some women experience sexual persecution while crossing the border, while others may experience oppression, intolerance and discrimination while trying to create a life in South Africa. When they enter the asylum seeker process, they often endure further persecution. These are their stories.

Facing imprisonment in Malawi

M is from Malawi and from an early age she knew that she did not conform to the sexual and gender norms of her community. In 2006, she started a romantic relationship with a woman but they had to keep their relationship secret. In Malawi, homosexuality is criminalised by the law and, in her community, being homosexual can lead to harassment and arrest. Although she was able to keep her relationship secret for 5 years, intimate photos were revealed on social media in her community.

She was harassed and forced to leave her job and home. The harassment continued and her family rejected her. M was unable to report these crimes because she feared being arrested because of her sexual orientation.

M was attacked one late afternoon by a group of men who tried to rape her. They justified their behaviour by saying that they would show her what it was like to be a real woman. She moved to a nearby village and stayed with other family members, but was unable to tell them why she had fled her parents’ house. Together with her partner, she fled to South Africa, even though she wasn’t sure if they would be accepted here. They travelled through Mozambique and arrived in South Africa in January 2012.

M applied for asylum shortly after her arrival. At the time, she was unaware that she could claim refugee status on the basis that she had been persecuted in Malawi because of her sexual orientation. She was also afraid of how the officials at the Refugee Reception Office would react. When she attended her first interview, she was accompanied by a friend of a friend, who was also from Malawi. Given the attitudes to homosexuality, she feared that by revealing her status to her friends, they may refuse to help her.

She did not state the true reason for her flight from Malawi.  Instead, she told the Department that she had fled for economic reasons; that she had lost her job and hoped to make money in South Africa. When she went for a second interview, she still did not tell the official the real story. She also did not want the Refugee Status Determination Officer (RSDO) “to think that I was lying or changing my story”.  She was trying to protect herself from further homophobic persecution.

Her asylum application was rejected. However, it was found that her right to approach the Standing Committee for Refugee Affairs (SCRA), who would be reviewing the decision of the RSDO, was never explained to her and the SCRA upheld the rejection of her asylum claim. She was advised to approach the Legal Resources Centre.

The UNHCR has recognised that merely being compelled to hide one’s sexual orientation amounts to persecution. The LRC argued on her behalf that sending her back to Malawi would constitute refoulement, because she faces physical and mental trauma (further persecution). South Africa is the only African country where sexual minority rights are protected by the Constitution. The South African government clearly has a legal obligation to give asylum to M. This obligation rests in section 7(2) of the Constitution; that is, to respect, protect, promote and fulfil the rights in the Bill of Rights. Section 2 of the Refugees Act contains a clear prohibition on returning anybody to a country where they will face persecution on the basis of their sexual orientation.