{"id":53104,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/south-africas-grant-of-asylum-to-aristide.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"south-africas-grant-of-asylum-to-aristide","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/south-africas-grant-of-asylum-to-aristide.html","title":{"rendered":"South Africa’s Grant of Asylum to Aristide"},"content":{"rendered":"\n
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South Africa’s Grant of Asylum to Aristide:
A Mistake that A Haitian Truth and Reconciliation Commission Might Partially Remedy<\/span><\/h1><\/td>\n <\/tr>\n

By NOAH LEAVITT<\/h2><\/a><\/td>\n <\/tr>\n

Monday, Mar. 29, 2004<\/td>\n\n <\/tr>\n <\/table>\n

\tOn February 29, Jean-Bertrand Aristide, Haiti’s first freely elected president, fled his country as rebels threatened to attack the capital of Port-au-Prince, in a brutal coup. <\/p>

Aristide is accused of corruption, and of having used violence against his opponents. And since his departure, Haiti has plunged into an even more dire human rights crisis. <\/p>

\tAristide unsuccessfully sought refuge in several countries, including the Central African Republic, Jamaica, Nigeria, Venezuela and Morocco. Recently, South Africa offered him permanent asylum. And it appears that he is going to accept this offer.<\/p>

South African constitutional jurisprudence prohibits granting refugee status to a person guilty of crimes against peace, war crimes or human rights abuses. Yet South Africa opted to welcome Aristide nonetheless. (Aristide apparently will not arrive, however, until after South Africa’s April 14 elections.) This shocking decision casts doubt on the commitment to the human rights principles that have defined South Africa’s past ten years.<\/p>

The Aristide situation presents a special problem – that of a deposed head of state with a cloudy human rights record who is seeking favor from a human rights-friendly nation. Moreover, Aristide’s departure accelerated the human rights crisis that began under his regime and may be linked to policies and practices that began under his leadership.<\/p>

It would be sadly ironic if South Africa were, indeed, to grant asylum to someone accused of human rights violations in his own country when there are still people in South African jails serving sentences for apartheid-era human rights violations. <\/p>

But there is, at least, a partial solution for this situation, as I will argue in this column: A way that South Africa can grant Aristide asylum while at the same time emphasizing this commitment.<\/p> <\/b>

Aristide’s Poor Human Rights Record<\/p>

To begin, some comment on Aristide’s poor human rights record is merited. <\/p>

\n\nA Human Rights Watch report found that following Aristide’s dismantling of the military in 1995, Haiti’s transition to a civilian-controlled police was marred by serious human rights violations. In the years following its deployment, members of the U.S.-trained force committed serious abuses, including torture and summary executions. <\/p>

According to Transparency International, Aristide’s government was one of the most corrupt in the world. And its corruption impeded development — creating a large impediment to effective international assistance. <\/p>

Under Aristide, the police and the judiciary were — and still are — deeply politicized, and reliant on a network of loosely organized but heavily armed gangs that suppressed dissent and intimidated the population. Despite repeated promises, many political killings still remain unsolved. <\/p>

And now that Aristide has fled, he has left his country in the throes of another human rights tragedy — one that, as noted above, might well have been prevented had he governed well, or even decently.<\/p> <\/b>

The Battle for the Soul of the New South Africa<\/p>

\tSome background on the situation in South Africa, too, will help to put the country’s asylum grant to Aristide in context. <\/p>

After apartheid, the new government decided to address the horrific past human rights abuses that had occurred by creating the Truth and Reconciliation Commission. Nobel Laureate Archbishop Desmond Tutu presided over this cathartic step in the country’s history. <\/p>

At the Commission, South Africans who had suffered under apartheid could publicly tell their stories. In addition, abusers who admitted to what they had done, could seek amnesty. The Commission’s process helped to establish an extensive record of the human rights abuses that had taken place under the apartheid government. <\/p>

Similarly, South Africa’s asylum system was created based in a vision of human rights and individual dignity. During the apartheid era, the country’s prior commitment to protecting refugees was limited. <\/p>

However, as South Africa left its international isolation in 1990, it began to address the large flows of refugees coming from the civil war in Mozambique. Tellingly, the United Nations High Commissioner for Refugees was the first UN body to operate in South Africa. <\/p>

\tIn developing its refugee policy, South Africa looked to international law for guidance on applicable refugee and human rights norms. The primary result has been the growth and maturation of a refugee system that is based in the belief in justice and dignity. <\/p>

As noted above, pursuant to the South African Constitution, South Africa’s is a system that specifically excludes<\/u> the possibility of asylum for human rights abusers. Yet South Africa’s granting of asylum to Aristide throws all of this into question.<\/p>

Now, on April 14, South Africans will go to the polls for a major national election – the third since the end of the white-dominated apartheid government a decade ago. The governing African National Congress (ANC) is expected to win easily. And most political commentators predict that President Thabo Mbeki will be sworn in for a second five-year term.<\/p>

\tAnd on April 27, the country will celebrate the tenth anniversary of its first multiracial democratic election, in 1994, and the end of decades of apartheid rule, when a small group of whites controlled the vast majority of the black population.<\/p>

\tGiven this historic moment, it is ironic, to say the least, that South Africa has granted asylum to Aristide. The controversial decision goes to the core of what kind of country it wants to be – one based on a system of promoting human rights, and individual dignity and responsibility, or one based in cronyism and political advantage.<\/p>

<\/p> <\/b>

South Africa’s Debate About Accepting Aristide<\/p>

Disappointingly, the South African government seems to be siding with Aristide, rather than his victims. The South African Foreign Affairs Minister recently said that “the suggestion that President Aristide may have been forced out of office, if true, will have serious consequences and ramifications for the respect of the rule of law and democracy the world over.”<\/p>

The government’s stance, however, has triggered heated dissent. African Christian Democratic Party president Kenneth Meshoe bluntly stated, “We believe that it would not be in the best interests of South Africa as a democratic country to give such a person asylum.” And Meshoe went on to say that if Aristide violated human rights in Haiti, he should answer for that instead being given refuge in South Africa.

\tMeanwhile, another commentator said that South Africa would be again aligning itself with “the Ghadaffis and the Castros” by granting asylum to Aristide. And another said that South Africa should not become a safe haven for dictators, and that its fund of international goodwill was being dissipated by these “strange friendships.” <\/p> <\/b>

A Partial Solution: South Africa Should Help Create a Haitian Truth Commission<\/p>

Certainly, Aristide should be held accountable for human rights abuses in his country if he was responsible. Yet Aristide has not yet been found guilty of such abuses. <\/p>

\tSouth Africa now has an opportunity to underscore its constitutional commitment to promoting a vision of human rights and individual accountability. By accepting Aristide within its borders, South Africa assumes a degree of responsibility for him and, by extension, his past. <\/p>

\tTherefore, if South Africa grants asylum to Aristide, as it appears it will, it should look to its own ways of coping with its troubled history and share these lessons with Haiti.<\/p>

\tFirst, President Mbeki should offer diplomatic and economic assistance to Haiti in calming the simmering problems there. If he is re-elected, as most believe he will be, Mbeki will have strong political capital to spend in calling for a peaceful and transparent transfer of power in Haiti. <\/p>

Mbeki may also be able to dissuade the rebel leaders with histories of human rights violations from assuming political power. If Haiti is to overcome the waves of violence that have plagued the country, there must be rapid action to ensure that a climate of impunity does not take hold in the post-Aristide era.<\/p>

\tSecond, Mbeki should help Haiti establish a method for examining human rights abuses. He should urge Haiti to consider setting up a truth commission — much like the one that proved so successful in helping South Africa to come to grips with its apartheid history, and to begin to build a more open and just society based on human dignity and the rule of law. And he should require Aristide to either appear before the Truth Commission and testify truthfully, or else forfeit his asylum grant. (Indeed, candor from Aristide should be a condition of the asylum grant in the first place.)<\/p>

\tHaitians need to understand what has happened to them over the past decade — with perpetrators held accountable, and victims able to speak out publicly. The world, too, needs to understand, and hear these stories. <\/p>

A Truth Commission can help uncover Haiti’s secrets, and by doing so, can help to form the basis for a more stable society. A Truth Commission would also allow for a more open appraisal of Aristide’s role — and his responsibility. <\/p> \n\n\n<\/span>\n\n

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\n\n\n<\/a>\nNoah Leavitt, an attorney, writes frequently on international human rights topics. In 2001, he worked at the Refugee and Asylum Project of the University of Cape Town Law Faculty in South Africa. Leavitt can be reached at nsleavitt@hotmail.com.\n

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