Archbishop S. Brislin – SACBC President
The Southern African Catholic Bishops’ Conference has noted with deep concern reports that President Zuma has called back Minister Gordhan and Deputy-Minister Jonas from their investment visit to the UK and the USA.
20 Years of Participating in Public Policy
Briefing Paper 426
The Morality of Land Reform
The question of land reform in South Africa is articulated in the Constitution in very clear terms. The Preamble talks of South Africa as “our land”. This simple assertion opens a sense of relationship with this land as one that includes all. Thus, all the sections that follow seek to express different ways of reforming the past’s divided, unequal, and unjust relationships with something new and equitable. Legislation that has since followed, and most of the policy discourse around land, has been mainly about articulating the constitutional mandates that point, first of all, to the need to foster equitable access to land in the public interest (section 25(4)(a)) and, secondly, to the realisation of tenure security (section 25(6)).
But what seems glaringly missing is the question of the moral demand or rightness of not only changing land access and relationships, but of repairing the hurt, misery, brokenness, and trauma of a people often violently ripped from their land for generations. In a country trying to repair a most odious crime against humanity – which was based largely on land dispossession – why is the question of land seemingly a pragmatic discourse and not a moral discourse?
2. The Moral Question
It has often been said that the question of morality and land is a question of churches, and other faith communities, and their historical complicity in the land question. However, the role of the churches and other faith communities in the land question is an important but very different discourse to the one about the moral questions surrounding land and reform. Over the years, various statements and policy positions have been put forward by faith communities that address the moral questions around land. In 1990, 85 churches met for the National Conference of Church Leaders in South Africa, and produced what became known as the Rustenburg Declaration.1 The main purpose was to express not just contrition for the wrongs and sins of the past, but to call for action to repair those wrongs.
“We know that without genuine repentance and practical restitution we cannot appropriate God’s forgiveness and that without justice true reconciliation is impossible.” (para 2.4. of the Declaration)
The gathering articulated its declaration in the language of faith, but the underlying acceptance was that the demand for restitution was not simply based on a legal demand for justice, but also an underlying moral demand to right a wrong.
“Those of us who have perpetuated and benefited from apartheid…….We have allowed the state institutions to do our sinning for us.” (para 2.6.)
The churches went on to state, in part 5 of the declaration, that:
“Confession and forgiveness necessarily require restitution. Without it, a confession of guilt is incomplete. As a first step towards restitution, we call on the Government to return all land expropriated from relocated communities to its original owners.”
“We ask the interim liaison committee to set up a task force on land issues with a view to making church property available for those without land and identifying land expropriated by the Government to be restored to its original owners.” 2
Whether one agrees with the declaration or not, it is clear that at this point in history, there was a
clear recognition of the moral imperative not just to acknowledge what had happened, but also that repair and restitution would be an integral part of that acceptance of guilt.
In 2012, in a document entitled Catholic Church Vision for Land Reform in South Africa, the Catholic Church pointed out that the question of land had become a “bitter terrain of struggle” worldwide and in South Africa.
If a way to just land distribution and efficient land productivity is not found, not only is there a great danger of violent conflict erupting in our midst, but the food security of our nation and our region is threatened.3
What is striking about this and many other positions taken by both the faith communities and the government in the early 1990s, is how the response to the question of land has become much more pragmatic since then, and how much less is said nowadays about the clear demand for justice.4 The churches then were prophetic in calling for the need for land reform, but no one seems to be dealing with the moral question anymore.
The choice by government to be pragmatic in dealing with the South African context is not in itself surprising since the whole project of the ‘New South Africa’ is based on the idea of trying to incorporate the excluded majority into the existing social, economic, and political framework. The project has never adopted a revolutionary approach where the previous social and economic structures would be overthrown and replaced by totally new ones; nor has it been about a Nuremberg approach, which would demand that all those who had been party to this crime would be punished and that what had been taken would be returned to the victims. In fact, the values of the Truth Commission seem to have been a major influence, not only about how the country would deal with (some) crimes committed under Apartheid, but also about how to direct the pragmatic approach to land that encourages co-operation between the state, claimants, and land occupiers. 5
4. Justice Denied?
The principle of justice, be it moral or legal, always demands that where something was unjustly acquired or taken away, it be returned or given back. In simple terms, if you steal my car while I am sleeping, or you hijack it, or you simply take it because it was parked on the side of a motorway with no one in sight, when I come and lay claim to it, I deserve it back. I am not required to buy it back, nor am I required to share it with the one who took it in the first place. Is this basic principle being denied in the question of land in South Africa?
5. To the Victor the Spoils!
Some have argued that, since some of the land was acquired fairly in war during colonial times, and that most of the land was empty anyway, then not only to the victor the spoils, and so “finders-keepers”, then those who won have right of ownership and those who lost the war lost the right to claim that land.6 This is the basic principle that has determined the borders of countries and communities for millennia.
This raises two problems. The first is that this principle has also been the cause of many international conflicts that have lasted for centuries, with perpetual wars and conflict going on unendingly. The 1899 intergovernmental treaty saw the formation of the Permanent Court of Arbitration (PCA) at The Hague, created to resolve these conflicts through mediation and arbitration, and by seeking to determine who the actual legal, moral and historical owners should be. Thus the idea that ‘to the victor – the spoils’ is being challenged by a new sense of ‘to the victim – justice’.
Secondly, if one were to insist that ‘to the victor – the spoils’, then those that lost the war have every incentive to go back to war and win back, violently, what was lost to them in war. Here again is a recipe for perpetual war and killings.
What has been clear in 20th century thinking, due to the immense destruction that followed the two great wars and many other conflicts, is that questions of justice, socio-economic conflicts, and moral disputes between peoples, should be resolved by other means besides war. Finally, what has also become the norm is that all peoples are deserving of justice, even if they themselves are too weak, socially, economically or militarily,
to demand justice, with the UN and other multilateral institutions taking what essentially is a moral position to protect the rights of all. 7
6. Truth and Reconciliation
“… a commission is a necessary exercise to enable South Africans to come to terms with their past on a morally accepted basis and to advance the cause of reconciliation.” 8
The late minister Dullah Omar made this statement reflecting the basic idea that the South African situation was not simply a legal or pragmatic one, but a moral question. The need was more than simply to change discriminatory laws; it was to respond morally to a crime.
However, some vital points were glaringly missing in the work of what subsequently became known as the Truth Commission, articulated by the Promotion of National Unity and Reconciliation Act 34 of 1995. Firstly, no attention seems to have been given to the need to repair the fracture that exists between the dispossessed African majority and the land and its history, its heritage, and its soul. Secondly, there was no reference to reconciling those who were dispossessed with their land. The Truth Commission seems to have focused mainly on the question of gross violations of human rights, especially as expressed through direct violence against the victims who appeared before the Commission.
While the Act provided for
the taking of measures aimed at the granting of reparation to, and the rehabilitation and the restoration of the human and civil dignity of, victims of violations of human rights;9
it failed to look at land dispossession as an urgent and gross violation that needed the same kind of attention crimes such as death-squad murders, torture, and detention without trial. Thus, because the land question was not directly articulated as a gross violation, it has come to be treated as a historical event of moral neutrality that will eventually be reformed sometime in the distant future. But is this morally justifiable? Does the country’s approach to the land question fulfil the demands of justice and, most crucially, the need for the restoration of the human and civil dignity of black South Africans?
7. The United Nations
The UN has taken the position that “land is not a mere commodity, but an essential element for the realization of many human rights.”10 According to the UN High Commissioner for Human Rights’ report, Land and Human Rights: Standards and Applications,
While there is currently no explicit reference to a general human right to land under international human rights law, several international human rights instruments link land issues to the enjoyment of specific substantive human rights. References to land are made in relation to the right to food, equality between women and men, and the protection and assistance of internally displaced persons, as well as the rights of indigenous peoples and their relationship with their ancestral lands or territories. 11
In other words, to deny people their land is to deny them their human rights. Though this discourse is articulated in the language of international law and human rights, it can be said to mean that the ability of a people to maintain their identity, their dignity, and their humanity, is closely tied to their land, and to deprive them of that land is to deprive them of that dignity, that identity, and that humanity.
In this country, when land dispossession took place, the relationship between the people and their ancestors, their sacred sites, and the spaces that defined who and what they are, was often brutally ripped apart. Thus, that dispossession was, and remains, an extreme violation of those rights that has lasted for decades, if not centuries. But, for some strange reason, South African legislation and policy articulation fails to speak of the land question in terms of the gross violation of people’s rights.
During the 2013 centenary remembrance of the 1913 Natives Land Act, which heralded an extraordinary scale of land dispossession, many, including Parliament debating the matter, spoke in very moving ways about the viciousness of that Act and its subsequent impact on land ownership in South Africa. However, that talk has still not translated into a legislative and policy landscape that recognises the question of land reform as a matter of moral concern, moral and legal justice,
4 Pg. 490-493 http://wiredspace.wits.ac.za/bitstream/handle/10539/275/11_appendix6.pdf
5 The Truth and reconciliation Commission has been criticised by some for what they see as a very narrow approach to the truth, and thus what came out was a “compromised truth”.
7 Note that this does not always happen and is an ongoing challenge; as the Palestinian conflict clearly shows, in some contexts ‘might is right’.
11 Ibid. pg. 7
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and which seeks to repair a situation of gross violation not just of the rights of a people, but of the people themselves. After the experience of the Truth and Reconciliation Commission and the recognition of the importance of truth in addressing the crimes of the past, why is that experience not being used to deal with the truth regarding issues around land?
Matsepane Morare SJ
20 Years of Participating in Public Policy
Briefing Paper 424
World Day of Migrants and Refugees
‘If there ever was a vulnerable person, a migrant child who is traveling alone would certainly seem to fit that definition. To turn our back on these populations, to demonize them, and to treat them as outcasts and unwelcome directly contravenes our obligation to approach vulnerable populations with particular care.’ US Conference of Catholic Bishops, June 2016
Each year on 15th January the Church draws attention to issues pertaining to various categories of displaced persons. On the secular calendar, 20th June is marked as World Refugee Day. Both days speak to the same realities of eliminating the vulnerabilities of displaced persons and ensuring justice for those who bear this burden.
This year Pope Francis drew special attention to the plight of child refugees.1 More than half of the world’s 65 million refugees are children, and this number is rising. In September 2016, UNICEF estimated that one in 200 children is a refugee. It was also estimated that nine out of ten refugee and migrant children reaching Europe are unaccompanied. In the first five months of 2016, 7000 unaccompanied children reached Europe from Africa.
The USA has calculated that “an average of 6 800 children [were] apprehended in each year from 2004 – 2011. The number jumped to over 13 000 children in Fiscal Year 2012 and over 24 000 in 2013. Over 50 000 were detained in FY 2014 and, although a decrease was evident the following year (28 387), the numbers again increased in the first quarter of FY2016 (18 558).”2
At present the vast majority of child refugees come from a total of ten countries, with Syria and Afghanistan producing the most. Recent surveys suggest that 30% of all migrants in Africa are children. In addition, roughly 250 million children live in countries or areas ravaged by war and conflict.
In the light of this tragic situation, Pope Francis has called for an emphasis on protection, integration and the search for long term solutions to be a major part of all advocacy and activism with regard to child refugees. Earlier, Pope Francis referred to the influx of child refugees as a “humanitarian emergency,” and stressed that “as a first urgent measure, these children are to be welcomed and protected.”3
2. Principles and Policies
The Australian Catholic Social Justice Council (ACSJC) states the following as a guiding principle:
“The best interests of the child, and the right of the child to health and education services and to protection, must always be a priority. Access by independent professionals for monitoring the extent to which such rights are in fact enjoyed is necessary. The standards applied should be no less rigorous than those that apply to other children resident in Australia. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status, or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.”
In South Africa we need to consider the challenge BP 424: World Day of Migrants and Refugees 2
of Pope Francis against the backdrop of the proposals contained in the government’s Green Paper on International Migration issued on 24th June, 2016. The Green Paper acknowledges the rise in the migration of children but does not focus on child migration as such, nor does it try to understand the impact of its proposals on children. It does, however, include children together with women as a particularly vulnerable group when it speaks of those negatively affected by an overloaded asylum system.
2.1. Processing asylum seekers
One area where there is concern with regard to children is the proposal to establish ‘Asylum Seeker Processing Centres’ near the borders, where asylum seekers would be accommodated while their status is determined. It is proposed that vulnerable groups (which as we saw above, include children) and high-risk asylum seekers could be accommodated in secure detention centres while their claims are being processed.4 Given that children are already referred to as a vulnerable group, this would imply that refugee children would be held in such centres while their claims are processed. However, as a signatory to the UN Convention on the Rights of the Child, South Africa should only detain children ‘as a matter of last resort.’5 In our own law, in the important case of Centre for Child Law and Another v Minister of Home Affairs and Others 2005(6) SA 50 (T), the High Court held that unaccompanied asylum-seeking children cannot be detained at the Lindela Repatriation Camp and must be accommodated in a place of safety.
The government’s new policy proposals have found very little, if any, support amongst those working in the sector, and resistance to it will probably spiral upward in the months ahead. It is also to be noted that the Green Paper makes no mention of any conditions or arrangements with regard to the proposed processing centres. If they come into being, arrangements will have to be monitored meticulously for they could easily give rise to an unhealthy environment where vulnerabilities could be exploited and a human rights culture compromised.
2.3. Human rights concerns
The ACSJC, in a submission to the Australian Human Rights Commission as part of the National Inquiry into Children in Immigration Detention, wrote with regard to this issue:
“The core of any policy dealing with people must be a determination to protect human dignity. Essential to the policy dealing with children in immigration detention must also be a determination to ensure that the rights of the child and the child’s family are protected. The policy of locking up men, women and children, or diverting them to neighbouring countries, fails this fundamental test. It treats people who have committed no offence as if they are criminals. The isolation of detention centres and the difficulty of access to them means a scarcity of services, in particular those needed by children and families with children. Processing needs to be done within a reasonable and limited time, and asylum seekers need to know the amount of time their case should take.”6
With regard to the aspect of ensuring a thorough human rights environment, the Australian Church points out that
“Child and adult refugees and asylum seekers are persons, and should enjoy the whole range of human rights. Obviously food, clothing, housing and protection from violence are required, but so too are access to education and medical assistance, the reunification of families, the possibility of assuming responsibility for their own lives, cultivating their own cultures and traditions, and the free expression of their faith.”7
2.3. The integrity of families
A second area of concern with regard to children, and to the integrity of family life, revolves around the possibility of dependents (very often but not only children) who arrive in the receiving country after the main applicant and then, at a later date, seek to be joined to the main applicant’s refugee file. The Green Paper points to examples of other countries where only those dependents who arrive simultaneously with the main applicant are documented; those dependents who arrive later are not allowed to be joined to the file. It is possible that another model could be to allow refugees a certain time period in which they can add dependents’ names to the file. Allied to this is the fact that the Green Paper offers no particular process for dealing with the applications of unaccompanied minors or separated refugee children who lodge their own asylum claims.
The Australian Church holds that “family groups should be dealt with as a unit so that all family members get their visas at the same time.”8 The principle of being dealt with as a unit is key in this BP 424: World Day of Migrants and Refugees 3
regard. The Bishops of the USA provide some of the theological underpinnings for this principled position. In their pastoral letter, Strangers No Longer: Together on a Journey of Hope, they say, “The first point of reference for action on behalf of refugees must always be the human person rather than the interests of States or of national security, because the person comes before and above the State. Human persons live in families.”
They go on, in their 2016 World Refugee Day message, to assert:
“The person is not only sacred but also social. At the foundation of the social character of the person is the family—it is where we first learn how to interact with and engage the wider community. The violence and corruption present in the countries where many unaccompanied migrant children originate cause a great deal of stress on families that often leads to division and separation. Steps need to be taken to create such conditions that families can remain in their homeland with one another, without having to constantly fear that violence will visit their doorstep and cause any one of them harm. Until that time, policies should be implemented to ensure that families are reunited here in the U.S. and provided with some degree of protection for as long as it is too dangerous for them to return home.”9
3. Catholic Social Teaching
The US Bishops have also noted that “the Church has an abiding concern for human life from conception until natural death; the lives of migrant children do not fall outside the Church’s commitment to protect and nurture life at all its stages. Children who are fleeing violence and seeking safety should be given due process under the law and provided with the necessary screenings to ensure that they will be given the help necessary to ensure their well-being.”
Catholic Social Teaching (CST) makes the point that refugees and migrants who flee poverty, hunger and diminished opportunities also have a right to support and to the help necessary to ensure their well-being. This is an important contribution to advocacy because it offers a moral base, stemming from the principle of the ‘universal destination of goods’, for a wider understanding of the obligation to provide protection to vulnerable groups (in this case, children) beyond the categories offered in the classic international instruments. Pope Pius XII had already pointed out that every individual and every family has the right to a decent life as befits their dignity.10 If people cannot affirm their dignity or live fulfilled lives they have right to move to places where this can be realised. Thus, economic refugees cannot be excluded out of hand. Here, CST poses a challenge to the prevailing wisdom.
In his message, Pope Francis emphasises protection, integration and the search for long term solutions. These are important buttresses for some of the arguments put forward in the current debate around displaced persons. We have clues in the CST tradition that the search for lasting solutions understands the root causes of migration – poverty, injustice, religious intolerance, armed conflicts – and insists that these must be addressed so that migrants can remain in their homelands and support their families.
The Pope says:
“A way has to be found to enable everyone to benefit from the fruits of the earth, and not simply to close the gap between the affluent and those who must be satisfied with the crumbs falling from the table, but above all to satisfy the demands of justice, fairness and respect for every human being.
“Essential to the attainment of these national goals is the moral imperative of ensuring social justice and respect for human dignity. The great biblical tradition enjoins on all peoples the duty to hear the voice of the poor. It bids us break the bonds of injustice and oppression which give rise to glaring, and indeed scandalous, social inequalities. Reforming the social structures which perpetuate poverty and the exclusion of the poor first requires a conversion of mind and heart.”11
It is in following this trajectory that we can begin to shape long-term solutions. Following the Pope’s logic, this more prophetic challenge needs to be part of the advocacy package we bring to policy discussions with regard to displaced persons. Protection requires, at a minimum, that migrants have a right to claim refugee status without incarceration and to have their claims fully considered by a competent authority in a transparent process and within a reasonable time frame. Implied in this is the right to have one’s BP 424: World Day of Migrants and Refugees 4
3 Angelus, St Peter’s, 16th January 2017
4 It should be noted that the Green Paper is at pains to point out that these proposals are not to be thought of as contrary to the policy of non-encampment which has always been part of South Africa’s refugee philosophy.
5 See para 37(b) of the Convention. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
6 See www.aph.gov.au/Parliamentary…/House_of_Representatives_committees?…/detention
10Exsul Familia Nazarathna, 1952
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dignity respected and to enjoy basic human rights irrespective of one’s legal status.
In South Africa the huge backlogs and – by its own acknowledgement – the rampant corruption in the Department of Home Affairs, which oversees matters pertaining to displaced persons, make compliance with this requirement a pipe dream. The Green Paper itself acknowledges this very lamentable situation. It is an area where the church has, over recent years, done monitoring and advocacy, but in light of the Popes recent message, it is obviously an area for more focussed attention.
The issue of integration in CST implies more than accommodation within the dominant culture. It also means developing agency so that displaced persons can participate in the creation of their own futures. The Pope recently reminded leaders in the corporate world that “our great challenge is to respond to global levels of injustice by promoting a local and even personal sense of responsibility so that no one is excluded from participating in society.”12
And again, “the renewal, purification and strengthening of solid economic models depends on our own personal conversion and generosity to those in need.”13
These reflections offer guidelines for taking principled positions and giving public shape to our personal theological convictions. And they offer some valuable insights to work from in our engagement with the Green Paper on International Migration, which will continue to be a key policy focus in 2017 and beyond.
The Australian Catholic Social Justice Council, in a submission to the Australian Human Rights Commission as part of the National Inquiry into Children in Immigration Detention.
United States Conference of Catholic Bishops. World Refugee Day 2016. June 2016 http://www.usccb.org/about/resettlement-services/world-refugee-day.cfm
www.justiceforimmigrants.org/OnStrangersNoLonger.htm (United States Conference of Catholic Bishops. January 2003.)
New Mite box
Over the years many different designs for the Mite boxes have come and gone. This year’s has been designed by Bafana Magagula here in the Bishops’ Lenten Appeal office. The box bears the Sacrificium logo, the face of Christ, and for the first time a picture of the first Blessed for our beloved country Bl. Benedict Daswa.
Please encourage children to make use of these boxes during the Lenten season. The collection envelope is also different and bears the logo for the golden jubilee.
Let this be a season of prayer, fasting, penance and alms giving. May God bless you all.
Br Ashley Tillek OFM
Archbishop Stephen Brislin
Dear Brothers and Sisters in Christ,
With great joy and gratitude we celebrate the golden jubilee of the Bishops’ Lenten Appeal. All anniversaries are worth commemorating and are opportunities to turn once more to the Lord, giving thanks for his strength and guidance which have allowed us to reach the particular milestone.
A golden anniversary is especially important as the endeavour has stood the test of time. Gold is purified by fire and the result is precious and valuable. It is true of human endeavours as well – after fifty years they have proved themselves and their value, despite hardships that may have been encountered.
It is with deep gratitude to God that we celebrate the 50 years of the Bishops’ Lenten Appeal. Undertaken so many years ago by the bishops, with vision and faith, the annual collections of the Lenten Appeal has made an enormous impact on the life of the Church and the lives of hundreds of thousands of people in Southern Africa. Inspired by Jesus’ parable of the separation of the goats and sheep (Matt 25:31ff ), recognizing the moral imperative to serve those in need, as well as the command “to go to all nations to proclaim the Good News” (Mk 16:15), the Lenten Appeal was set up to help those in need and the for the works of the Church in proclaiming the Good News.
We are also deeply grateful to all those who have contributed through the years using mite boxes and envelopes, as well as other means of supporting the Lenten Appeal. For many, it has been similar to the “widow’s mite” (Mk 12:41ff ) – not giving from excess but truly making a sacrifice by giving from that which they need. Their sacrifice has truly been a Lenten Offering and with all our hearts we say “thank you” for your kindness and love.
Few people, even within the Church, are aware of how many programmes are run by the Bishops’ Conference itself. Taken with the initiatives of dioceses and parishes, thousands of interventions are made which alleviate the suffering of people, bringing them consolation and hope. The Gospel is proclaimed through these good works as well as though specific programmes of evangelisation and catechesis. The
Church has provided support in the fields of education, health, development, skills, advocacy and crisis relief. Catechesis, media programmes, small Christian communities, the formation and training of priests and deacons – to name a few – have ensured that there is both the proclamation of the Word and the deepening of the faith.
All such enterprises have benefited from contributions by the Lenten Appeal. The many demands made on the funds mean that no particular project can be fully covered by a Lenten Appeal grant. Some only receive a small amount of their overall budget. Nonetheless, such small amounts are important beyond their monetary value, as they also indicate the support of the local Church, making it easier to approach foreign donors.
Such local support is essential. Although we are a young Church – in 2018 we will be celebrating only 200 years of the official establishment of the Church in Southern Africa – nonetheless we need to work much harder to become a self-reliant Church. No longer should we be dependent on other countries for Church personnel or finances. In the spirit of stewardship, knowing that we have been entrusted with the faith in this part of the world and are responsible for the life and work of the Church, we must strive to generously share our resources.
In particular, we appeal to all of you to ensure that this year of the Golden Anniversary of the Lenten Appeal be a year of generosity and a year to remember. There are many needs and countless opportunities for the Light of Christ to dispel the darkness of poverty, ignorance and suffering in our beautiful countries. Your generosity will make a difference.