Human dignity has no nationality – South African Supreme Court of Appeal

Introduction

In the case of Minister of Home Affairs and Others v. Watchenuka and Others (010/2003) [2003] ZASCA 142; [2004] 1 All SA 21 (SCA), the South African Supreme Court of Appeal, per Nugent JA, had this to say:

Human dignity has no nationality. It is inherent in all people – citizens and non-citizens alike – simply because they are human. And while that person happens to be in this country – for whatever reason – it must be respected, and is protected, by s 10 of the Bill of Rights.”

Watchenuka’s case* was a case concerning the rights of asylum seekers in South Africa. The important take away is that South African Law including its Constitution recognises the rights of foreigners in the country. The reason for the presence of such foreigner is absolutely immaterial. However, will xenophobic disposition of South African citizens allow the country and the African continent to be great?

It is said that the word, “xenophobia”, comes from the ancient Greek words ξένος (xenos), meaning “strange” or “foreigner”, and φόβος (phobos), meaning “fear”.*

According to Andreas Wimmer,** xenophobia is “an element of a political struggle about who has the right to be cared for by the state and society: a fight for the collective goods of the modern state.” The word has been simply defined as a ”deep-rooted fear towards foreigners”.*** This fear also manifests as grave hatred. When one considers how this fear/hatred is being demonstrated, it is beyond doubt that same must be really sitting deep in the hearts of its carriers in South Africa and is being transferred from one generation to another almost by DNA.

Tracing the historic trappings of xenophobia, it has been recounted by Standard Group as follows:

“Discrimination and violence against foreigners started way back before independence in 1994. Between 1984 and the end of Apartheid, immigrants from Congo and Mozambique fled to South Africa due to unrest and civil wars. They were technically allowed to reside in the black reserves (Bantustans) created during the Apartheid so that Africans did not mix with whites. Studies indicate that the immigrants were denied access to economic resources and healthcare by their hosts which they were technically entitled to. Contrary to expectations, cases of xenophobia increased. Sixty seven people died between 2000 and 2008 with their deaths identified as xenophobic attacks…”

Even till date, reports of xenophobia still make the headlines and countries like Nigeria, Ethiopia, Zambia, and Kenya, etc, are all at the receiving end. The recent occurrence of a couple of days ago has proved that the end of this dark practice is still far.

Reasons for Xenophobia

Political, economic and social factors have been underlined as causing the rise of Xenophobia. Some researchers have made some findings as to the reason for the unwholesome trait. According to summarised reports by a Kenyan media outfit, Standard Group and South African Independent Online (IOL),***** the following, amongst others, fuel xenophobia:

– Foreigners are fingered for being the causes of social problems such as unemployment.

South African citizens see foreigners, especially other Africans, as competitors for job opportunities, services and other social benefits. It is alleged that when employers of labour make unattractive job offers, foreigners jump at these offers thereby not only denying them the opportunities, but also, significantly reducing the value of labour. This can be understood from the background that many foreigners, mostly from Zimbabwe, Malawi and Mozambique, run into the country due to the terrible economic situation in those countries.

– Foreigners are accused of crimes.

It is the belief of South Africans that foreigners involve in top level crimes such as drugs peddling and fraud.

– Heavy burden on the health system

South Africans believe that foreigners constitute huge burden to their health system, thereby jeopardising their access to good and quality healthcare.

– Resource control

South Africans believe that non-nationals are straining the country’s resources in virtually all sectors. For instance, it has been alleged that foreigners own small and medium scale businesses that South Africans believe should be under their control.

– Unhealthy feeling of superiority over other Africans

There is the feeling by South Africans that many of their other African brothers and sisters are from less developed and less privileged countries compared to their country which undoubtedly is one of the most developed countries in Africa.

– Apartheid spell

It is believed that xenophobia is a possible fallout of one of the huge and incredible effects of apartheid suffered by black South Africans. Negativities often manifest itself in various forms in future. 

– Threat to personal developments.

Viewing foreigners as rivals, South Africans tend to see themselves as being under serious threat. 

Looking at the above, one might be tempted to think that it is the poorer or low income South Africans that are xenophobic or that it is more of a case of the poorer citizens pouncing on poor non-nationals. Far from this. According to Fola Adeleke and Thandi Matthews (of the South African Human Rights Commission):

“However, to assume that feelings of prejudice toward non-nationals is a “poor-on-poor” phenomenon is a mistaken belief; for example, as noted by Lawyers for Human Rights research conducted by the Southern African Migration Project in 2010 demonstrated that higher-income South Africans were the most xenophobic and unwelcoming of non-nationals in South Africa. In many instances where non-nationals are victims of violence, South Africans with little means offer the most support to their neighbours as they, too, bear the brunt of the outcomes that ensue.”

Way Forward

The South African Government lead by President Matamela Cyril Ramaphosa must rise up and lead the crusade against xenophobia in South Africa. It is sad that top government functionaries including the South African Police appear to be aiding the attacks either by their actions or inactions. The Government must be able to guarantee the safety of not only its citizens but the citizens of other countries within its jurisdiction. This is in line with both its local laws and International Law. It should not be heard that citizens of other countries, most especially Nigeria, should suffer xenophobic attacks. The remarkable role played by Nigeria towards ending apartheid in South Africa and also the country’s independence must not be rewarded with such condemnable act.

The Government of South Africa must take urgent steps to apprehend and prosecute every person responsible for xenophobia. This crime against humanity must not be treated as common crimes of mere assault and theft. At the other end, foreigners residing within the country are subject to its local laws such that any person suspected of crime commission should be dealt with in accordance with the law. South African citizens cannot take the law into their hands by condemning and punishing foreigners without trial before competent courts or tribunals established by law. The Government must rise to the occasion and create jobs for its citizens and organise an orientation programme across the nation, towards healing her citizens from the spell of apartheid and xenophobia.

We make this call not unmindful of the recent observations by Fola Adeleke and Thandi Matthews thus:

“Much has been written about the structural failures by the state (South Africa) to adequately address the political, economic and social factors that lead to xenophobic violence, discrimination and exclusion experienced by non-nationals in South Africa. This is despite the numerous interventions and committees established to address the issue. Following the outbreak of violence against non-nationals in 2008, which left more than 60 people dead, the South African Human Rights Commission (SAHRC) noted that, despite the country’s transition to democracy, violence continues to be viewed as a legitimate means of resolving issues.”******

The possible consequences of xenophobia are so huge that one cannot possibly rule out completely the likelihood of war. The reported reprisal incidents in Nigeria are only a joking signal, so too is the rising diplomatic tension. Xenophobia, if not urgently contained, can drastically affect the economic progress of both nations, currently ranking as the top economies in Africa and its effects can extend across the continent.

It is pertinent that the media should also lead the way to avoid rumours, misinformation and harmful exaggeration of facts capable of causing chaos and unrest. The recent incident of few days ago which was trailed by spreading and sharing of fake (old) videos across the Internet is rather unfortunate. Recent report by Time (and BBC) has it that:

“Matters were compounded by the spread of fake news and images claiming that Nigerians were targeted in the attacks, inciting mobs in Nigeria to attack South African-owned businesses in reprisal. While the death toll in South Africa has reached double-digits, it does not appear that any Nigerians were among the casualties.”******* 

It remains a universal truth which have been re-echoed even by the South African Supreme Court of Appeal that indeed, human dignity has no nationality. It must be respected, and protected always.

 

STOP XENOPHOBIA! SAY NO TO XENOPHOBIA!!

 

References

*Watchenuka’s case.

**Wikipedia

***Andreas Wimmer (1997) Explaining xenophobia and racism: A critical review of current research approaches, Ethnic and Racial Studies, 20:1, 17-41, DOI: 10.1080/01419870.1997.9993946

****Oxford English Dictionary 

*****Standard Group and IOL

******Rights of All must be Respected

*******Time and BBC

 

 

Featured image credit: Al Jazeera



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a Legal Practitioner, Consultant, Mediator and Social Entrepreneur. He is the Managing Attorney at Splendour Legal Consultants. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts. Desirous of implementing new legal solutions, he founded Stephen Legal, a firm in the business of providing innovative legal insights and easy solution in this information age. Stephen serves as a volunteer at Prof. Pat. Utomi’s Centre for Values in Leadership in Lagos, given his passion for capacity building and leadership development. He is also a member of the Continuing Professional Development (CPD) Committee of the Nigerian Bar Association (Lagos Branch).

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