No return to persecution or danger : judicial application of the principle of non-refoulement in refugee law in South Africa and Malawi

Abstract

Refugeehood is premised on the ethical principle of surrogate protection. Where there is failure by a state to ensure the minimal levels of human rights protection for its citizens, either through inability or unwillingness, the social compact between the state and its citizen gets ruptured. Such rupture triggers the international duty of surrogate protection. The principle of non-refoulement is a core principle of international law that is premised on the principle of surrogate protection. An exploration of South African refugee law jurisprudence, exemplified most recently by the decisions in Ruta and Saidi, shows that the courts, including the Constitutional Court, are giving the principle of non-refoulement due recognition. Significant challenges, however, remain in practice. There has been some executive resistance against progressive rights-based refugee law jurisprudence. Corrupt practices also create an impediment to the realisation of refugee rights. In Malawi, by comparison, refugee law jurisprudence is sparse, and whilst there has been evidence of judicial progressiveness, such as in the Abdihaji case, there have also been other decisions, such as Kambiningi, where courts have shown lack of familiarity with or appreciation of the principle of non-refoulement. The legislative framework in Malawi also fails to sufficiently guarantee non-refoulement. The position in Malawi is mirrored in most Southern African states. The article critically examines the decisions in Ruta, Saidi and Abdihaji. Importantly, it makes recommendations for reform in the refugee law regimes in Malawi and other Southern African states drawing on the experiences from Ruta and Saidi.