JOHANNESBURG – The South African Constitutional Court ruled today in Mail and Guardian Media Limited and others v Chipu NO and others that provisions contained in the Refugee Act providing for absolute confidentiality in the context of refugee applications are unconstitutional and invalid being an unreasonable limitation on the right to freedom of expression.
In reaching this finding, the court placed reliance on arguments made by the Southern Africa Litigation Centre (SALC), acting as friend of the court, that absolute confidentiality could serve to shield war criminals from accountability.
This case involved a constitutional challenge by a number of media houses to section 21(5) of the Refugees Act 130 of 1998, which provides for blanket confidentiality of refugee applications. The media challenged the provision in the Refugees 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.
In a unanimous judgment written by Justice Zondo, the Constitutional Court recognised that the absolute confidentiality provisions contained in the Refugees Act are so wide that even those persons who have committed crimes against humanity or war crimes and so are disqualified from getting refugee status would be shielded in that no public access would be granted to their refugee applications. This, the court held, was illogical.
SALC’s submissions before the Court centred on the import of South Africa’s international obligations to ensure accountability of perpetrators of international crimes.
“Our arguments recognised that 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 the Court’s judgement today recognises these. 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 grant of refugee status to persons 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,” Fritz continued. “By preventing scrutiny of all aspects of the process, absolute confidentiality risked damaging its integrity and made the refugee process aberrational in South Africa in that it was immune from the constitutional imperatives of accountable and transparent governance. The Court’s judgment today puts an end to that.”
The Constitutional Court suspended its declaration that S 21(5) was invalid for a period of two years, allowing Parliament to amend the provision and cure the unconstitutionality. It ruled that in the interim, the Refugee Appeals Board would have discretion to allow access by the media or other members of the public to its hearings subject to certain conditions, including that it be in the public interest to grant such access.
SALC was represented by Wits Law Clinic and by advocate Susannah