STRANGERS IN OUR MIDST: Do we care?
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.