Gender persecution as a ground for asylum in South Africa and Canada: Reconceptualising a theoretical framework for assessing refugee claims by women

Abstract

According to the United Nations High Commissioner for Refugees, women account for 48% of the refugees globally. "Persecution" is the central tenet in the refugee definition, but the ensuing jurisprudence was initially developed from the male experience. Therefore, the phallocentric nature of international and domestic refugee regimes mean that women's experiences of persecution are often marginalised, first, in their country of origin, and secondly, by the States from whom they seek refuge. Thus, the patriarchal conceptualisation of persecution exists in the content, interpretation and application of refugee law. The critical analysis of international refugee law, together with a comparative study between South Africa and Canada's refugee regimes, confirms that this conceptualisation impacts negatively on the manner in which gender-related asylum claims are assessed. This thesis argues for a reconceptualisation of refugee law through feminist scholarship, to investigate, question and expose the patriarchy residing in refugee laws and processes, and to theorise how gender-related persecution should be determined. Refugee jurisprudence has generally established that gender is socially constructed and based on sex which is biological and unchangeable The arrangement of sex and gender as immutable constructs enable the subordination of women, and within the refugee discourse, underpins gender related persecution specifically. Therefore, the reconceptualisation of sex and gender into malleable and dynamic concepts facilitates a paradigm for the protection of refugee women. The dominance theory and the deconstruction theory, together with feminist methods are used to conceptually explore the construction of sex and gender, recognising how the intersection with other identities, such as race and class, influence the understanding of sex and gender in refugee discourse. This thesis argues that the current construction of sex and gender together with the strategies that are increasingly used by governments to prevent refugees from crossing the borders, mean that asylum-seekers generally, and women, specifically are not receiving adequate protection. The xenophobic rhetoric of officials together with the enactment of restrictive refugee legislation, collectively result in South Africa and Canada creating and maintaining the illegal status of asylum-seekers.