XENOPHOBIA IN SOUTH AFRICA

Xenophobia encompasses “attitudes, prejudices and behaviour that reject, exclude and often vilify persons, based on the perception that they are outsiders or foreigners to the community, society or national identity”.Footnote ¹ In South Africa, there is a consensus that the phenomenon is usually manifest in passive fear, negative attitudes and hostile perceptions among the populace, coupled with accompanying outward acts of overt individual or mob violence, hostility or discrimination against foreigners, inevitably resulting in loss of property and human life.Footnote ² These manifestations constitute an affront to the rule of law in South Africa, a country that not only boasts a highly progressive human rights and legal regime but whose government has in fact demonstrated a high level of generosity towards welcoming and hosting hundreds of thousands of refugees displaced by war and conflict from various countries in Africa.

In post-apartheid South Africa, xenophobia has proven to be a constant, shameful affront to the nation's social fabric that, like “a nagging sore tooth”, refuses to go away.Footnote ³ It is incontestable that the phenomenon is a deeply rooted, widespread, on-going and evolving socio-legal problem in South Africa:Footnote ⁴ one that is difficult to eradicate.Footnote ⁵ In 2008, thousands of foreign nationals living in various parts of South Africa were targeted and attacked in xenophobic violence, resulting in dozens of deaths and losses amounting to millions of Rand in lost businesses and livelihoods.Footnote ⁶ The existing literature overly focuses on causes and the political dimensions, without addressing important socially and morally acceptable responses to the phenomenon.Footnote ⁷

The available statistics portray a poignant story about xenophobia in South Africa. The International Organization for Migration records that, between 2008 and 2013, an average of three serious xenophobic attacks were documented across South Africa every week, cumulatively resulting in an average of 150 deaths annually.Footnote ⁸ Data from the Consortium for Refugees and Migrants in South Africa (CoRMSA) shows that, between 2008 and 2011, at least 4,000 foreign nationals throughout South Africa were displaced from their homes or businesses by xenophobic violence.Footnote ⁹ These attacks have persisted, with the University of the Witwatersrand in Johannesburg recording approximately 150,000 incidents in the past decade, most leading to deaths, injuries and destruction of property or displacement.Footnote ¹⁰

To appreciate further how pervasive xenophobic sentiments are in South Africa, reference can be made to empirical data released by the Southern Africa Migration Project (SAMP) in 2013. These data reveal that one in four South Africans is willing to take communal action physically to prevent foreigners from operating businesses in their communities or to stop foreigners’ children from enrolling in the same schools as their own.Footnote ¹¹ Furthermore, South African respondents to the SAMP survey were found to be more opposed to immigration into their country than citizens of other nations reviewed. In fact, about 80 per cent of South African citizens voiced support for a total prohibition on the entry of migrants into their country or, alternatively, stricter limits on migration.Footnote ¹²

Recent surveys show that hostility towards foreign nationals living in the country could be increasing. Empirical data collected in surveys by the Gauteng City-Region Observatory (GCRO), and released in August 2014, reveal extreme xenophobic attitudes in townships like Mamelodi in Tshwane, where between 50 and 75 per cent of residents surveyed wanted all foreigners living in the country to be deported to their countries of origin.Footnote ¹³

Predictably, and as a result of the protracted and widespread nature of xenophobic sentiment and actual incidents of violent attacks in South Africa between 1994 and 2018, many scholars have sadly concluded that South Africa is a hotspot of xenophobia.Footnote ¹⁴ They portray the phenomenon as a deeply entrenched, on-going and evolving socio-legal problem in the country: one that will continue to feature as an important human rights issue for the foreseeable future.Footnote ¹⁵

XENOPHOBIA OR AFRO-PHOBIA?

South Africa hosts migrants of various races and from different countries all over the world. These include black Africans, Asians and whites from places like America, Europe and Australia. Incidents of xenophobic violence have been recorded in all parts of South Africa and from as early as 1994.Footnote ¹⁶

New elements of xenophobia in South Africa are becoming clearer by the day. Bronwyn Harris, a South African pathologist, first presented the “bio-cultural hypotheses” of xenophobia in 2001. She conceptualized xenophobia in terms of racism by black South Africans against black Africans, and even South Africans with a darker skin complexion and other biological, cultural or physical biological features.Footnote ¹⁷

It does not escape notice that the overwhelming majority of the victims of xenophobic attacks in South Africa are predominantly black Africans from neighbouring countries like Zimbabwe and Somalia, or even darker skinned South African citizens.Footnote ¹⁸ Empirical studies have highlighted a paradox that the perpetrators of these attacks on black African foreigners are mostly black South Africans.Footnote ¹⁹

A 2014 GCRO survey found that white migrants from Europe and North America are favourably perceived in South Africa and are therefore less likely to experience xenophobia than black migrants, regardless of the nature of the socio-economic well-being of the foreigner.Footnote ²⁰ Another surprising aspect of this study is that black South Africans appear more hostile to black foreigners. In this study, a modest 23 to 35 per cent of white respondents in Gauteng expressed the sentiment that all foreigners should be expelled from SA.Footnote ²¹ That figure, when contrasted with the 50 to 75 per cent of black respondents from the same region who want all foreigners expelled from the country,Footnote ²² seems to suggest that xenophobia is taking a racial twist and that the attacks are biased towards black African foreigners.

For these reasons, experts have made a shocking prognosis that the nature of the phenomenon in South Africa is actually black on black xenophobia, or afro-phobia: the “hatred or fear of black Africans”.Footnote ²³ To Jonathan Crush, black Africans, who are often referred to in a derogatory term as makwerekwere, are seen as alien, different, inferior and despicable others who should “go home”.Footnote ²⁴

In that respect, many have questioned how black South Africans could attack black Africans, especially those from countries that were accommodating to South African exiles during the anti-apartheid struggle.Footnote ²⁵ Furthermore, why does engagement between black Africans result in increased black on black xenophobia as opposed to brotherhood and social harmony? It is also worthwhile considering if South Africa really needs laws to govern social relations among its black inhabitants.

There have been some logical explanations for the increasing afro-phobia in South Africa. Primary among these is the rationalization that the country's black population is more likely than the white population to interact or engage with black foreign nationals. They are more likely to meet in predominantly black townships, on the streets, in the cities, in the work place, in public places like restaurants and in the country's public administration, such as in government offices, schools and hospitals.Footnote ²⁶ As there are no refugee camps in South Africa, the majority of refugees and other African migrants live in townships with the majority of South Africa's black population. Most of South Africa's townships are overcrowded, resulting in increased incidence of unemployment, crime, poverty and disease. Malaika wa Azania, a young South African writer, blames afro-phobia on black people's frustrations with the socio-economic conditions in the townships. She posits:

Given the constitutional obligation of the state to provide security to all inhabitants of the country, it is important to assess what the South African state has done, if anything, to alleviate afro-phobia in the past decade.

DENIAL OF XENOPHOBIA

With xenophobic attacks occurring year after year since 2008, there is little evidence that South Africa is making any major progress in addressing xenophobia or afro-phobia in the country. In multiple instances when xenophobic attacks occur, the notable reaction by influential politicians and even senior state officials is to deny that xenophobia is the motivation for the attacks on foreigners and to blame them on crime. The following examples demonstrate this contention.

In 2008, when xenophobic violence broke out in the country, former President Mbeki made a public statement denying xenophobia was the motivation and instead blaming it on criminality. He declared that the masses were neither antipathetic towards, nor did they hate, foreigners.Footnote ²⁸ More recent statements support the argument that denialism continues, and that xenophobia is downplayed as a major human rights issue in the country. For instance, in 2013 the South African Cabinet issued a statement to the effect that: “[c]ommunities must be vigilant against the possible resurgence of criminal violence targeting foreign nationals. Cabinet is cautious not to label this violence as xenophobia because … these acts may be driven primarily by criminality”.Footnote ²⁹ The then Minister of International Relations and Cooperation, Maite Nkoana-Mashabane also issued a statement proclaiming: “[t]he looting, displacement and killing of foreign nationals in South Africa should not be viewed as xenophobic attacks, but opportunistic criminal acts that have the potential to undermine the unity and cohesiveness of our communities”.Footnote ³⁰

In January 2015, when a wave of xenophobic attacks and targeted looting of foreign-owned shops affected Soweto Township in Johannesburg, the South African Police Service (SAPS) issued a televised statement, denying that the attacks were motivated by xenophobia.Footnote ³¹ The denial of xenophobia by the police flies in the face of the reality that only foreign-owned shops were singled out and attacked and looted by the mobs in the Soweto attacks. This denialism continued during the 2015 xenophobic violence when the then Minster of Home Affairs, Malusi Gigaba denied elements of xenophobia and attributed the attacks to criminal elements.Footnote ³² The African Diaspora Forum captured this stance of the denial of xenophobia by government officials in a protest letter to the South African government, published in the press in January 2015. The letter said:

In December 2016, Johannesburg Mayor Herman Mashaba made a highly publicized xenophobic statement, blaming “foreigners” living in Johannesburg for the high rates of crime the city was experiencing and calling on them to leave the country.Footnote ³⁴ As expected, Mayor Mashaba's anti-immigrant statement was followed by anti-foreign public demonstrations, the most notable one being organized by a group calling itself The Mamelodi Concerned Residents in Pretoria. The aftermath of the protest was a spike in xenophobic attacks in Mamelodi Township, in which several foreign-owned properties were destroyed.

There is a near-consensus among observers that some influential politicians in South Africa continue to deny that xenophobia is a problem in the country and attribute its manifestations to “criminal” conduct. It is therefore worth considering what has been done to counter this criminality using the law. Statements by top opinion shapers and decision makers in South Africa ultimately to categorize xenophobic attacks as “normal criminal activity” support the contention by Misago et al, that there is a “regrettable lack of political will by senior state officials to act on xenophobia”.Footnote ³⁵

PROGRESSIVE LEGAL REGIME

South Africa has a very progressive legal regime for welcoming and protecting refugees and migrants, which can also be utilized to combat xenophobia domestically. The state and its law enforcement institutions have, over the past decade, made commendable and demonstrable efforts to combat hate crimes. The UN Refugee Agency opines that, “South Africa has wonderful legislation. They also have some of the highest standards when it comes to domestic law, but it is the implementation of these laws that is the problem”.Footnote ³⁶

South Africa's domestic laws place an obligation on the state to protect foreign nationals living in the country against attacks by non-state actors, such as mobs and private citizens.Footnote ³⁷ The Bill of Rights in the Constitution of the Republic of South Africa of 1996 (the Constitution) protects an array of civil, political, cultural and socio-economic rights for “everyone” residing in the republic, including nationals and foreigners.Footnote ³⁸ The most pertinent of these rights, in the context of xenophobia, are: the right to life;Footnote ³⁹ equality before the law;Footnote ⁴⁰ the right to own property;Footnote ⁴¹ and the right to access the courts for the administration of justice.Footnote ⁴²

Indeed, under South African law, unless otherwise expressly stated, foreign nationals are afforded the same protection and suffer the same restrictions as citizens.Footnote ⁴³ The Promotion of Equality and Prevention of Unfair Discrimination Act even contains a specific provision on xenophobia. It provides that “practices associated with xenophobia and assumptions of a discriminatory nature” should be interpreted as discrimination on the basis of “nationality”, which “must be regarded as an aggravating circumstance for the purpose of the sentence” in criminal trials involving violations of the act.Footnote ⁴⁴

In a report, Human Rights Watch notes that, even with the existing progressive legal regime of which South Africa boasts, no-one has been convicted for xenophobic conduct, not even those who attack foreigners and destroy property.Footnote ⁴⁵ It is thus instructive that xenophobia does not occur in South Africa because of the absence of legal safeguards. Rather, it is attributable to the failure to implement available mechanisms, combined with complacency and inaction on the part of the state apparatus.

A National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance (NAP) is now in place. The NAP describes xenophobia as “attitudinal orientation of hostility against non-nationals in a given population”.Footnote ⁴⁶ When launching the NAP, President Cyril Ramaphosa (who has provided commendable leadership in the fight against afro-phobia and other hate crimes) acknowledged that “xenophobia cloaked in nationalism” manifests in society and that the state bears the primary responsibility to combat it.Footnote ⁴⁷ The NAP calls on all South Africans to exhibit values and behaviour that will help the nation to break with its hurtful past. The NAP takes a legalistic approach and proposes three key strategies (prosecution, protection and prevention) as the way forward to fight human rights abuses such as xenophobic attacks. Under the NAP, state and non-state actors are duty bearers, while everyone living within the jurisdiction of South Africa is a rights-holder. The NAP contains broad proposals to tackle xenophobia, including placing on the state ultimate responsibility for protecting the human rights of all South African residents.Footnote ⁴⁸ The NAP does not directly advocate Ubuntu as a value that should be promoted to address prejudice and xenophobia in the country.

An important question worth considering is whether the state should use the law or legal approaches to regulate xenophobia and other social forms of prejudice. Koenane argues that Ubuntu, the unwritten law of hospitality, is internalized among Africans and has a binding force.Footnote ⁴⁹ The author seeks to echo Koenane and propose that the state resort to pragmatic rather than legal measures and promote the use of social intervention mechanisms, such as the African humanist Ubuntu values, to curb xenophobia.

UBUNTU AS A SOCIAL ANTIDOTE TO CURB AFRO-PHOBIA

Black on black xenophobia, or afro-phobia, should be dealt with in a manner acceptable to the most affected: through the African cultural values manifest in Ubuntu. Ubuntu is the African humanist tradition that “addresses our interconnectedness, our shared and common humanity, and the responsibility to one another that flows from that connection”.Footnote ⁵⁰ Ubuntu is a common foundation of many African cultures in South Africa and is a common cultural attribute of the majority of South Africa-bound black African migrants. Nussbaum defines Ubuntu in the following words: “the capacity in African culture to express compassion, reciprocity, dignity, harmony and humanity in the interests of building and maintaining community with justice and mutual caring”.Footnote ⁵¹ She further argues that Ubuntu can play a key role in solving a myriad of social cohesion issues facing South Africa, the continent and the world.Footnote ⁵²

The underlying value of Ubuntu is that the dignity of each and every person is honoured and respected regardless of distinctions of culture or race. Ubuntu propagates humaneness, sharing, caring and living in harmony with one's neighbours and the entire community generally. The ideal of Ubuntu and the way of life it inspires have, for many centuries, sustained African communities in South Africa and in Africa generally. In South Africa for instance, Ubuntu is understood as a “set of institutionalized ideals or values which guide and direct the patterns of life of Africans”.Footnote ⁵³ Ideally, Ubuntu should foster social cohesion between individuals and cultures regardless of nationality, culture or other inert attributes used to distinguish people and make them targets of xenophobia.

Archbishop Desmond Tutu, one of democratic South Africa's founding fathers, coined the idea of a “rainbow nation” in which various races and ethnic groups live in peaceful coexistence and social cohesion.Footnote ⁵⁴ Tutu has been a key proponent for Ubuntu values in South Africa. He wrote in 1999: “[o]ne such [universal] law is that we are bound together in what the Bible calls ‘the bundle of life’. Our humanity is caught up in that of all others. We are humans because we belong. We are made for community, for togetherness, for family, to exist in a delicate network of interdependence”.Footnote ⁵⁵

Manifestations of xenophobia through violent attacks against foreign nationals not only constitute a violation of the victims’ human rights but also jeopardize efforts towards social cohesion in the rainbow nation. On this point, Tutu further urged South Africans to embrace Ubuntu in a bid to bring about social cohesion and foster respect for human rights in the country. Foreigners are not excluded from Tutu's vision of the rainbow nation. In 1999, Tutu wrote:

Africans from across the continent understand and identify with Ubuntu values. To demonstrate this point, Kamwangamalu wrote in 1999:

Nussbaum buttresses this view by arguing, “[e]ven though Ubuntu is unscientific, all Africans understand the connections of past and present, human beings and nature, our common humanity, and a shared spirituality … The new physics are, for South Africans, the golden threads of Ubuntu woven from the old traditional African fabric of interconnectedness”.Footnote ⁵⁸ Having established that South Africans and other Africans in the country identify with the concept of Ubuntu, it is important to establish whether or not South African nationals have embraced the values espoused by Ubuntu and, if not, why.

EXPLAINING THE CURRENT DISREGARD FOR UBUNTU BY MANY IN SOUTH AFRICA

Ubuntu is a social philosophy that is uniquely African. Nussbaum argues that Ubuntu values address Africa's interconnectedness, common humanity and the responsibility that Africans owe to each other as a people. There is evidence that some South Africans are compassionate about the plight of the victims of xenophobic attacks. In the wake of the 2005 xenophobic attacks in Soweto Township in Gauteng, Enoch Mobeletse, a resident of Soweto, was quoted in 2015 stating, “[o]ur ancestors are ashamed of us. It is like we are spitting on their legacy of Ubuntu. As Africans, we failed them … We failed to protect those vulnerable”.Footnote ⁵⁹

Conversely, there is evidence of disregard for Ubuntu values in South Africa. Kabwato is insightful when he argues that the omnipresent xenophobic attitude in South Africa and the recurrent xenophobic attacks only serve to expose a major disconnect between the Ubuntu African “rhetoric” and the reality in the country.Footnote ⁶⁰

Other studies have also highlighted a disturbing disregard for Ubuntu in South Africa. For example, it has been established that, while a majority of South African nationals from different races, including blacks, accept being “proudly South African”, only a small minority of blacks want to identify themselves as “Africans”.Footnote ⁶¹ This is because, as explained by some South African authors, for many black South Africans, “Africa spells failure and embarrassment”.Footnote ⁶² For them, Ubuntu extends only to apply among South African nationals, to the exclusion of foreign nationals living in the country, particularly those from elsewhere on the African continent.Footnote ⁶³

Other authors have controversially claimed that, to South Africans, Ubuntu is “considered an exclusive and peculiarly authentic trait of South Africans” and is a discourse of “national consciousness” to the exclusion of other Africans from outside the rainbow nation.Footnote ⁶⁴ Thus, these writers argue that, in South Africa, progressive and uniquely African social values like Ubuntu are construed narrowly, to benefit only South Africans to the exclusion of others. Fasselt, who writes on South Africans’ exclusionist practices, presents the following argument:

Nussbaum concludes that the disregard for Ubuntu has “darkened the spirit of modern-day Africa” and she affirms that the concept has a great potential to help shape a divided, fragmented world.Footnote ⁶⁶ Other authors contend that denying xenophobia or afro-phobia waters down the potential for African humanist values such as Ubuntu to be applied as potential solutions.Footnote ⁶⁷

UBUNTU'S UNEXPLOITED POTENTIAL AS AN ANTIDOTE TO AFRO-PHOBIA

The battle against afro-phobia will be won, not through legal instruments, but by winning the hearts of the people of the land. While Ubuntu should find a natural home in a multicultural and multiracial society like South Africa, this has not been the case. Xenophobic attitudes among sections of the South African public, manifest in violent actions, demonstrate the absence of hospitality or tolerance towards other Africans.Footnote ⁶⁸

Given Ubuntu, such targeted attacks on black Africans by black South Africans are unexpected. This is because Ubuntu places an obligation on South African nationals to be hospitable and welcoming towards their “African brothers and sisters through the fundamental issue of their shared and intertwined humanness”.Footnote ⁶⁹

The unexploited potential of Ubuntu as a social engineering tool to halt xenophobia in South Africa is captured in writings of various authors. Mnyaka, a South African theologist, argues that “an understanding and the implementation of the principles and values of Ubuntu can challenge and inspire South Africans to view and treat African immigrants differently”.Footnote ⁷⁰

The African Centre for Migration and Society argues that, while xenophobia is a clear weakness in South Africa's social cohesion, embracing Ubuntu could play a role in fostering social cohesion in South Africa. It argues that Ubuntu “brings with it values of mutuality and shared humanity … and is seen either as a means of achieving social cohesion or as the condition of social cohesion itself … where there is Ubuntu there is social cohesion”.Footnote ⁷¹

Researchers conclude that pervasive xenophobic attitudes and consequent attacks undermine the spirit of Ubuntu and negate the aspirations of South Africa's founding fathers, like Tutu, of building a multicultural and cohesive nation based on the rule of law and human rights for all.Footnote ⁷² Ndebele notes that South Africans have an “intriguing capacity to be disarmingly kind and hospitable to others at the same time as being capable of the most horrifying brutality and cruelty”.Footnote ⁷³

Koenane, a South African philosopher, supports the notion that Ubuntu values can be utilized to alleviate xenophobia in the country.Footnote ⁷⁴ He rightfully diagnoses the problem afflicting South Africa as afro-phobia and black on black hatred, rather than xenophobia.Footnote ⁷⁵ He attributes perpetual hostility towards black Africans in South Africa to disregard for the “Ubuntu spirit glue that holds African people together”.Footnote ⁷⁶

Koenane further contends that there have been no major violent attacks against other racial or migrant groups in South Africa, including Europeans, American, South Americans or Australians, and that afro-phobia should be addressed using Ubuntu and other accepted African values.Footnote ⁷⁷ He contends that, to address afro-phobia effectively, we should challenge violent acts morally and respond appropriately, through the Ubuntu world view. Koenane is of the opinion that, in embracing the spirit of Ubuntu, South Africans would be compassionate and empathetic towards black African migrants. This, he argues, would render black on black xenophobia obsolete because black Africans would not be seen as foreigners in South Africa but would be welcome guests.Footnote ⁷⁸

UBUNTU VALUES ARE SUPPORTED BY SOUTH AFRICAN LEGAL AND CONSTITUTIONAL JURISPRUDENCE

In an endorsement of its transformative nature, Bennet contends that the South African Constitution is anchored in the spirit of Ubuntu.Footnote ⁷⁹ This is because the constitution's preamble calls for the establishment of a society based on democratic values, social justice and fundamental human rights for all living in South Africa, regardless of their colour or origin. Likewise, the Promotion of National Unity and Reconciliation Act, the constitutive instrument of South Africa's Truth and Reconciliation Commission,Footnote ⁸⁰ explicitly indicates in its preamble that Ubuntu is one of its guiding values.

Bennet, on his part, contends that Ubuntu even played a crucial role in the crafting of the final political consensus that brought an end to apartheid in South Africa.Footnote ⁸¹ In supporting “talking issues through” and “listening”, Nussbaum agrees with Bennet regarding the role of Ubuntu in ending apartheid and fostering reconciliation in the country by stating:

The decisions of South Africa's Constitutional Court and High Court present ample jurisprudence to demonstrate how the country's legal discourse has been influenced by Ubuntu over the years. Two landmark cases aptly demonstrate this contention. In Albutt v Centre for the Study of Violence and Reconciliation Footnote ⁸³ the Constitutional Court stated that justice, fairness and civility are deeply rooted in traditional culture and therefore, inseparable from Ubuntu.Footnote ⁸⁴ This view was reiterated in S v Makwanyane, where Justice Mokgoro commented on Ubuntu's role in upholding respect, human dignity and compassion: “[Ubuntu] envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasizes respect for human dignity, marking a shift from confrontation to conciliation”.Footnote ⁸⁵

It is posited here that judicial application of Ubuntu should go hand in hand with restorative justice measures that, in the author's view, are appropriate to redress cases of xenophobic violence that result in the deprivation of foreign nationals’ property. In Port Elizabeth Municipality v Various Occupiers the Constitutional Court recognized the importance of legislation inspired by customary law to bring about restorative justice.Footnote ⁸⁶ In Mayelane v Ngwenyama the same court alluded to the flexibility of customary law, in that it provides room for consensus-seeking, prevention of recurrent disputes and dispute resolution through measures such as restorative justice.Footnote ⁸⁷ Justice Mokgoro, one of South Africa's leading post-apartheid jurists, posits that Ubuntu principles have, over the years, crystallized into an African philosophy of life.Footnote ⁸⁸