14 May 2013

South Africa: Confidentiality Vs Transparency in Refugee Act

The Southern Africa Litigation Centre (SALC) will make submissions today to the Constitutional Court in a landmark case related to the unsuccessful application for refugee status by the controversial Czech fugitive, Radovan Krejcir - arguing that the current system of absolute confidentiality undermines transparency, accountability and the integrity of the refugee determination process.

The case - Mail and Guardian Media Limited and others v Chipu NO and others - involves the application by various media houses for access to Krejcir's Refugee Appeal Board hearing and has developed into a constitutional challenge to section 21(5) of the South African Refugees Act 130 of 1998, which provides blanket confidentiality for refugee applications.

The media is challenging the provision in the Act requiring confidentiality to be respected at all times and barring the general public - including the media - from Refugee Appeal Board hearings, infringing the right of media freedom and the principle of open justice.

"Confidentiality plays a vital role in the protection of asylum seekers, refugees and their families, and must be maintained," said Nicole Fritz, SALC's executive director.

"However, there are risks associated with a system of absolute confidentiality and these must be guarded against. The long-term security of refugees depends upon the integrity of the status determination process, which can only be ensured with some degree of transparency."

While the refugee system is predominantly designed to protect those seeking asylum, the legislation also plays an alternative role: an exclusion clause prohibits the granting of refugee status to people suspected of committing the international crimes of genocide, war crimes and crimes against humanity.

It is through this provision that refugee law intersects with international criminal law and assists states in identifying suspects who trigger state obligations to prosecute or extradite international criminals.

"The impact of the confidentiality clause in the legislation extends beyond access of the media to appeal hearings," added Fritz.

"By preventing scrutiny of all aspects of the process, absolute confidentiality risks damaging its integrity and makes the refugee process aberrational in South Africa in that it is immune from the constitutional imperatives of accountable and transparent governance."

As part of its international criminal justice programme, SALC monitors adherence to international criminal law obligations, and this is potentially hindered by the blanket confidentiality shrouding the application of the exclusion clause.

In its submissions SALC does not advocate for a removal of all confidentiality, but submits that there must be some form of discretion given to the adjudicator to lift confidentiality in very limited circumstances.

It is through the application of such discretion that the balance between the protection of refugees' rights and accountable and transparent governance can be achieved.

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