Finweek English Edition - - Column -

IT’S MORE THAN FOUR DECADES since one of my lec­tur­ers at the Lon­don School of Eco­nomics wrote an ar­ti­cle that had a pro­found ef­fect on me, first as a stu­dent and then through­out my adult and po­lit­i­cal life. His anal­y­sis of Bri­tish im­mi­gra­tion law was en­ti­tled Strangers at the Gate – an en­tirely apt ti­tle for an is­land coun­try, where there are lim­ited and care­fully su­per­vised points of en­try.

We, of course, can’t talk of “gates of en­try” as South Africa has amor­phous fron­tiers with thou­sands of kilo­me­tres of bor­ders with six coun­tries.

What re­ally made a per­ma­nent im­pact on me was my tu­tor’s con­clu­sion. He said all coun­tries have obli­ga­tions to for­eign­ers: there must be recog­ni­tion of refugee sta­tus and no ill-treat­ment of non-cit­i­zens; min­i­mum stan­dards of in­ter­na­tional law must be ob­served. For law stu­dents, that was a given. He said mass ex­pul­sions – such as have just occurred in An­gola and the Congo – are wrong and il­le­gal. What was strik­ing was his con­clu­sion that the test of a civilised state was the way it re­ceived and treated for­eign­ers.

That all came to mind when I at­tended a care­fully crafted pub­lic lec­ture by a for­mer judge of the Con­sti­tu­tional Court a day af­ter her re­tire­ment from the court. Jus­tice Yvonne Mok­goro rightly re­jected the use of the words “for­eigner” or “alien” with their un­der­tones of mak­w­erek­were, or out­sider. She re­lied rather on iden­ti­fy­ing the place of the non-ci­ti­zen in the con­text of SA’s Con­sti­tu­tion and the elu­sive no­tion of ubuntu.

Con­trary to pop­u­lar opin­ion, non-cit­i­zens are not un­pro­tected by our Con­sti­tu­tion. That’s so whether or not the in­di­vid­ual is seek­ing po­lit­i­cal asy­lum or whether he be an eco­nomic mi­grant.

SA’s Bill of Rights recog­nised that cer­tain po­lit­i­cal rights – vot­ing, stand­ing for pub­lic of­fice or form­ing a po­lit­i­cal party – and some eco­nomic rights are in­deed lim­ited to cit­i­zens un­der our Con­sti­tu­tion. Some eco­nomic rights – such as choice of trade, oc­cu­pa­tion or pro­fes­sion – may be sub­ject to qual­i­fi­ca­tions or re­stric­tions for non-cit­i­zens.

How­ever, the greater part of the Bill of Rights – in­clud­ing all its civil rights pro­vi­sions – ap­plies to cit­i­zens and non-cit­i­zens alike.

The odd as­pect of hu­man na­ture, which I’ve en­coun­tered in the three coun­tries I’ve lived in, is that, oc­ca­sion­ally, thor­oughly de­cent peo­ple be­come rabidly anti-for­eigner, with ac­cu­mu­lated prej­u­dices not based on fact or rea­son.

Steven Fried­man, one of our most as­tute com­men­ta­tors, was cor­rect when he said we don’t know what the causes of the tragic out­burst of xeno­pho­bia last year were. He pointed out that the pres­ence of num­bers of non-cit­i­zens wasn’t a suf­fi­cient rea­son for the killings and ex­pul­sions, as in many parts of the coun­try there were no out­breaks of vi­o­lence, even where there were con­cen­tra­tions of non-cit­i­zens. Anec­do­tal and prej­u­di­cial so-called ex­pert opin­ion does a se­ri­ous in­jus­tice to the cause of in­te­gra­tion and peace in our com­mu­ni­ties.

Jus­tice Mok­goro con­cluded her sys­tem­atic study by re­fer­ring to the statu­tory obli­ga­tion placed on the Depart­ment of Home Af­fairs un­der the Im­mi­gra­tion Act to com­bat xeno­pho­bia and to ed­u­cate our pop­u­lace about its evils.

That ap­pears to me to be a very sick joke played by the leg­is­la­ture. The very peo­ple who should com­bat xeno­pho­bia are of­ten the great­est per­pe­tra­tors. Many Home Af­fairs of­fi­cials treat non-cit­i­zens with con­tempt, if not worse.

At the end of the Mok­goro lec­ture, the dis­tin­guished Dean of Law at Stel­len­bosch Uni­ver­sity re­ferred to the shame all of us felt at the ha­rass­ment by lo­cal po­lice of black non-cit­i­zens who were bona fide stu­dents at the uni­ver­sity.

Un­less the ju­rispru­dence of the Con­sti­tu­tional Court fil­ters through to all the State bodies – es­pe­cially the po­lice – the scan­dal of ill-treat­ment, the fail­ure of the le­gal sys­tem to ap­pre­hend the killers of So­ma­lis in the West­ern Cape, the cor­rup­tion at the Home Af­fairs of­fice deal­ing with refugees and the per­sis­tent ha­rass­ment and il­le­gal searches of non-cit­i­zens will con­tinue.

All of us must share in the shame of SA’s treat­ment of non-cit­i­zens.

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