South Africa must avoid formalising xenophobia in law and policy

Mukundi Budeli is a legal researcher at the Free Market Foundation. 

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This article was first published on BBrief on 2 February 2022

South Africa must avoid formalising xenophobia in law and policy

The Department of Home Affairs recently issued a directive terminating the Zimbabwean Exemption Permit. The permit was introduced in 2009, allowing holders to apply for an alternative visa or face deportation after a year. There are few other visas available. This termination of the permit threats to terminate over 200,000 Zimbabweans’ access to banking, schooling, and employment contracts.
The termination by the South African government speaks to the increased institutional impact of xenophobia and racism. The free flow of individuals is not just beneficial to economic systems, but it is beneficial to overall quality of life in the host country, as reported by the OECD. South Africa maintained an exclusionary immigration policy even after 1994, with its origins in the anti-Indian policy of colonial Natal in the late nineteen century. Democratisation has morphed naked racism into a xenophobia masked by appeals to legality, rechannelling discontent into a new economic nationalism. 
The definition and evolution of “immigrant” and “citizen” have evolved based on the individual’s usefulness to the state. The issue appears to be the same in debates regarding over-population. Indians were brought to Natal as indentured labour. Once their contracts ended, they opted to remain in South Africa. This resulted in the Natal government introducing a literacy test as a means of restricting migration. Under Apartheid, black South Africans were conveniently removed from South Africa; yet a pass system was introduced to aid in black usefulness to “white South Africa.” The oppressors within the current system may look different, yet continue to use the same tools of oppression against the next victim. 
South Africa is not a lone actor in expelling individuals when they are no longer useful. Xenophobic policy-making takes on two main policy formats: removing individuals’ existing citizenship, or policing the individuals that already possesses citizenship, oftentimes both. Migration policy is used to reconfigure a state to the needs of government and ruling class based on racial, linguistic, and other grounds. 
Migration policy is a useful tool for elites, as it shifts with the needs of those in power. The international body charged with migration is the UN’s Global Compact for Safe, Orderly, and Regular Migration (GCM). The GCM is non-binding, thus any recommendations that benefit migrants tend to fall on deaf ears. The absence of a definition of migrant status by die GCM allows states to dictate who may or may not be deemed a migrant. 
The Rohingya of Myanmar have lived in Myanmar for hundreds of years. Yet in a national census the government actively sought to undermine the position of the Rohingya formally and legally since 1962. This resulted in the Rohingya’s position becoming increasingly precarious. In 1982, a citizenship law excluded the Rohingya from Myanmar’s 135 ‘national races’. This law determined the Rohingya as having never belonged to Myanmar and originate from elsewhere. The Rohingya have fled to the Bangladesh border for protection. 
A group of people with a history in a region were simply displaced through legislation. Migration policy has been used to identify Rohingya people as outsiders that are targets for control and abuse. The same is true for the victims of the Department of Home Affairs directive. 
Another migration scandal is the Windrush scandal in the United Kingdom. A document was leaked stating that it intended to make the lives of ‘illegal immigrants’ difficult to ensure that they choose to leave. In the 1960s, the UK was experiencing an economic boom which necessitated new labourers. Individuals from British colonies, mainly Jamaica, were invited to work in the UK and those who arrived before the 1971 Immigration Act retained the right to live there permanently and acquire citizenship. The passenger lists of those arriving were destroyed, with the arriving individuals assimilating into British society. It then emerged that in 2017, the government was deporting some arrivals – the same people who helped build British society. 
Given the history of South Africa and its xenophobic violence against foreigners in recent years, the use of legislation against foreigners is as unsurprising as it is unacceptable. The directive against Zimbabweans might be a testament to a future trend in South African legislation. Given the current plight of South Africa’s economic decline, corruption, and unemployment, foreigners are becoming scapegoats for government. Redirecting the frustrations onto a group of people based on cultural, ethnic, and other factors is a means to sow division and distrust.

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