Migrants and Access to Human Rights in SA: Responding to the politics of Xenophobia

By: Maria Lauda Goyayi

Migration to South Africa (SA) is commonly depicted as a crisis by government officials, the media and members of the public. While the nation has a long-standing history of migration dating back during the colonial era, in recent years the number of threats, attacks and even killings of foreign nationals mostly of African and Asian descent have become of concern to SA and the world at large. Violent xenophobic threats, attacks and killings soared high in 2008, 2015 and again in 2019, with other years exhibiting some mild attacks. In 2008, a wave of attacks across the country, against refugees and migrants consumed the lives of more than 60 people while displacing thousands. The outbreak of violence, mostly in the cities of Durban and Johannesburg, against non-South Africans in 2015 led to the deployment of the army to deter further unrest. In 2020, while the nation as was the rest of the world battling with the COVID-19 pandemic, SA continued to experience incidents of xenophobic violence and discrimination against non-nationals. As a nation it is plagued by widespread incidents of xenophobic harassment and attacks against foreigners. Furthermore, SA has also subjected non-nationals to both verbal and physical harassment for just being foreigners and not being able to use local languages in daily communication. As such foreigners have been hurtfully labelled “Ama-kwerekwere”, a derogatory slang used by Black South Africans to mean “foreigners.”  These xenophobic attacks are mainly attributed to economic factors subscribing to the belief that alleges foreigners come into the country and take up all the limited unskilled work opportunities. Therefore, in retaliation and to protect their livelihoods, South Africans have resorted into discriminant behaviors and attacks against non-nationals, mostly from African and Asian descent.

Over the years these attacks have progressively become brutal thus threatening the nation’s regional and international relations. Unfortunately, government and law enforcement officials expected to protect, defend and maintain order and peace in the country are also among those committing these harassments and attacks against non-nationals. Law enforcement officials often responded with indifference or provided inadequate remedies to xenophobic attacks. These officials throughout the country not only that they have largely failed to ensure justice for xenophobic violence, but have also operated in discriminatory and abusive ways against non-nationals. Some officials aggravated xenophobia through inciteful and anti-immigrant rhetoric made by South African politicians. The 2015 attacks were fueled by comments made by Zulu King Goodwill Zwelithini that “Everybody just arrives in our townships and rural areas and set up businesses without licenses and permits. We are going to bring this to an end”. Likewise, the South African Police Service (SAPS) and Metro Police used counterfeit goods raids as a cover to target foreign-owned shops and businesses upon which foreign shop owners were beaten, tear gas and rubber bullets were also fired on them. Victims in the Johannesburg Central Business District and Diepsloot alleged that the police then resold confiscated goods back to them. Moreover, the police force together with the Department of Home Affairs (DHA), conducted abusive “documentation raids” where many non-nationals reside, that included administering beatings.

Despite various efforts to address the matter, SA continues to be plagued by wide spread xenophobic harassment and attacks against foreign nationals. In 2015, after the Zulu King’s inciteful comments, after two days, president Cyril Ramaphosa offered a re-dress of the comment condemning the attacks and reminding South Africans that they owe a debt of gratitude to their African neighbors for their support during the anti-apartheid struggles. However, this was after a multitude of attacks and harassments have been committed against foreign nationals. Such responses condemning these acts have been issued in delay, in most cases after a number of xenophobic crimes have been committed. Moreover, despite the launch of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance (NAP) in 2019, incidences of xenophobic violence and discrimination against non-nationals were evident in 2020. For instance, the government’s COVID-19 aid programs that including giving food parcels during the national lockdown, overlooked people refugees and asylum seekers. Additionally, refugees and asylum seekers continue to face barriers to protection against such atrocities, due to the newly enacted law restricting access to asylum and a huge government backlog in processing claims and appeals for asylum. Against this backdrop, it begs the question that is human rights universal to all residing in South Africa? Is it accessible to non-nationals in SA? Given the scenarios of xenophobic uprises over the years it can be sadly concluded that over the years there has been an infringement of human rights for non-nationals in SA. If this is the case, then it is necessary to examine the government has done to circumvent the challenges and respond to the politics of xenophobia?

The infringement of human rights for non-nationals in SA is recognized both at national and the international arena. Xenophobia in SA has strained international relations. In the 2019 xenophobic uprise, several African nations threatened to imposed several sanctions against SA urging the nation to take decisive preventive measures against further violence. Outrage and resentment are growing among African countries owing to an increase in attacks against immigrants in SA. The National Association of Nigerian Students spearheaded protests that involved the picketing of SA companies operating in Nigeria. Similar acts were orchestrated against SA businesses operating in Zimbabwe. On the African Commission on Human and Peoples’ Right’s letter to President Ramaphosa noted several concerns on the vulnerability of refugees and asylum seekers under SA’s Covid-19 regulations. The commission urged the government to adequately address human rights issues in its responses to Covid-19, including ensuring access to basic services for the undocumented refugees and asylum seekers in SA.

In responding to both the internal and external concerns and pressure on improving access to human rights for non-nationals the government embarked various initiatives. In 2019 the parliament adopted the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance (NAP) as a response to the atrocities of racism and discrimination in the nation. NAP calls on the commitment by all South Africans to value and behave is such a manner that will break the hurtful and damaging past and maintain a compass trained on a path of renewal and growth. The Plan is based on the collective conviction of South Africans that, given that the ills of unfair discrimination and inequality that are human-made; the people have the means to completely eradicate these ills from the nation. While the policy provides a framework, its implementation is still a challenge in ensuring access to human rights and end xenophobic attacks. The NAP remains a theoretical framework with yet statements and actions of xenophobic discrimination still enacting rage among South Africans against non-nationals. For instance, the COVID-19 regulations and aid programs that came after the launch of NAP. While the 2019 National Action Plan to combat xenophobia, racism, and discrimination marked an important step toward recognizing and addressing these abuses, it has not ensured accountability for xenophobic crimes. Moreover, Ms Makgale from the Centre for Human Rights, University of Pretoria, noted that the NAP only forces truth and reconciliation without building consensus among citizens on the matters. The Policy needs to address the root causes of the social malice.

Additionally, the Department of Arts and Culture in collaboration with the Presidency and other key stakeholders has also embarked on developing a Social Cohesion and Nation Building compact. The program envisions a collective agreement between all South Africans on addressing major issues in the country through a united effort. The social compact is aimed at promoting national unity, cohesion and nation building.  Therefore, reaffirms the importance of freedom, peace and security as well as the respect for all human rights by encouraging a social collaboration of business, government, labour and civil society to work together to bring about a cohesive society. The social cohesion and national building program boosts four strategic objectives of advancing constitution democracy and human rights and equality; promotion of non-racialism, non-sexism, equality and human solidarity; building unity among South Africans, as well as the region, continent and international community; and lastly encouraging healing of individuals and communities. However, these four objectives focus on addressing internal racial discrimination among a diverse South African community as opposed to directly addressing issues surrounding xenophobia. The program only vaguely addresses mending the relationship between South Africans and non-nationals. This leaves much to be desired with regard its implementation in forging a socially cohesive SA and a sense of national belonging for non-nationals.

With discrimination in South Africa having historic roots dating back in the apartheid era, that is the bitterness and pain resulting from racial discrimination, this keeps feeding life to the current xenophobic attacks and hate crimes in the nation. To address this phenomenon and others similar to it, emphasis needs to be made on creating nationwide awareness and sensitization on the history of the nation and the role played by other African nations in liberating South Africa. Youth needs to be sensitized on how important African nations still depend on each other as a continent to progress and obtain prosperity. While the policy frameworks are in place, the government through its departments and agencies need to formulate programs that focuses on a socially inclusive and cohesive Society rather than instilling any division. The social cohesion and national building programs need to creating holistic awareness on the history of the African Continent and the various roles that each African Country played in liberating the African continent from colonial and other abusive rules/regimes. Moreover, deliberate efforts need to be directed on processing the backlog of applications and appeals for refugees and asylum seekers status by the DHA. Non-nationals have a right to be notified their status as soonest as possible and this will minimize the presence or even the excuse of lack on documentation.

Maria Lauda Goyayi is a researcher at the School of Management, IT and Public Governance, UKZN. She writes in her personal capacity.