The Shadow People: How the Xenophobic Attacks in South Africa Demonstrate the Nightmare of Internally Displaced People

Birdsong’s refugee law student,  Mark Hopson, had the chance to work and travel in South Africa last summer.  During that summer there were many attacks by South Africans on refugee peoples who had  sought  a safe haven in South Africa.  Many were killed.  Based on his travels and his research Mr. Hopson has written an outstanding paper concerning South African problems and the xenophobic attacks that occured in South Africa.  Read and learn!

The Shadow People: How the Xenophobic Attacks in South Africa Demonstrate the Nightmare of Internally Displaced People and What Can Be Done

Mark Christopher Hopson*

“The world is not thy friend nor the world’s law.”

William Shakespeare, Romeo & Juliet, Act V, Scene 1

 I.                   The Heart of the Matter

A.     Introduction

“They are burning people down there.”[1]  Police officers rushed to the scene and soon found two men burning alive.[2]  One of the men was on his knees covered in a burning mattress.[3]  His scorched body was lying next to a concrete pillar covered in blood, making the rescuers “imagine what was done to him before he was set alight.”[4]  Imagination would not be necessary, as the country would see this kind of violence continue for weeks.  This scene was only one of many gruesome moments in what the media dubbed the “xenophobic attacks” of May 2008.[5] 

The attacks began in Alexandra, a township just north of the country’s most populous city of Johannesburg, and quickly spread from there.[6]  Organized mobs targeted black Africans from other countries such as Mozambique, Malawi, Somalia, and Zimbabwe (especially Zimbabwe).[7]  Attackers said their actions were justified because they believed that foreigners were “taking local jobs and contributing to crime” in the country.[8]  By the time the attackers were done, over sixty people had been brutally murdered, including twenty-one South Africans who were mistaken as foreigners.[9]  Hundreds were injured, and tens of thousands were displaced as the country saw the worst “bloodshed…since the end of apartheid.”[10] 

B.      Thesis   

In William Shakespeare’s The Tempest, the playwright wrote, “What’s past is prologue.”[11]  If anything, these recent attacks show that “those who cannot learn from history are doomed to repeat it.”[12]  These attacks did not spring up out of nowhere.  Instead, they were “a decade or more in the making and many forecasters were predicting just such an outcome.”[13] 

When such events occur, the question inevitably arises as to the duties and responsibilities of international actors.  The legal status of those affected was mixed, some were South African citizens, some were refugees or asylum seekers, some were permanent residents, and some were in the country illegally, but they all shared the common link of being seen as different.[14]  What happened in South Africa falls directly within the definition contained in the United Nations Guiding Principles on Internal Displacement:

persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.[15]

 

It has been ten years since the Guiding Principles on Internal Displacement were completed, but “there is [still] no international legal instrument” for defining, protecting and assisting the internally displaced.[16]  Despite the fact that the Guiding Principles simply “restate the existing norms of human rights and humanitarian law,” many have focused on solving the problem by filling this legal gap.[17]  Richard C. Holbrooke, a former U.S. Representative to the United Nations, stated, “[we have] to deal honestly with the fact that over two-thirds of the people in the world who are homeless…are classified as something called – IDPs, a terrible acronym.”[18]  The former ambassador went on to say, “We cannot let this entire category of innocent victims fall through our bureaucratic cracks.”[19]

As of 2007, the International Displacement Monitoring Centre estimates that at least 26 million have fallen through the cracks.[20]  Africa is the most affected continent of the world with over twelve million people internally displaced in nineteen countries.[21]  The UNHCR’s own figures are derived from the IDMC’s numbers, but more importantly, show that the number of refugees in the same year was only sixteen million.[22]  This shows that the world is dramatically different from when the controlling institutions and legal instruments were created by international bodies at the end of World War II.[23]

South Africa now faces two distinct challenges that it must solve on its own.  The first challenge is to effect a positive change in the attitudes and perceptions of native South Africans towards those perceived as “invaders.”  So far, leaders have exacerbated the problem by their own words and action rather than champion such change.  The second challenge is bringing current domestic laws and policies into accordance with the requirements of South Africa’s constitution and existing international law.

It is axiomatic that “conflict and displacement in one country could disrupt national stability and also create political and economic turmoil throughout geographic regions.”[24]  Therefore, it is in the best interests of the global community that such situations are prevented or that their effects are mitigated to the greatest extent possible should they occur.  However, international efforts to create a binding law for the internally displaced are counterproductive, resulting in a waste of both time and resources, and without the political will to implement and enforce such a law.

C.     Roadmap          

Jeremy Levitt has proposed a three pronged approach of conflict prevention, management, and resolution “as separate but interdependent components and processes of a comprehensive…system…[that] African states and regional actors must institute to provide ample protection to displaced persons.”[25]  Levitt’s model shifts the focus from the international theater to a regional one, emphasizing that “peace must be internally driven.”[26]  Levitt identifies the current legal protections for vulnerable populations as focusing around “three internationally recognized regimes” consisting of numerous “human rights law…humanitarian law…[and] refugee law.”[27]  However, the “events of the last decade” make it clear that “the rest of the world is not proactively concerned” with the problems of the continent.[28]  Therefore, “Africans must…take it upon themselves to proffer African solutions for African problems.”[29]

South Africa is the “regional powerhouse,” and so it is highly doubtful that Levitt’s exact model could prove effective.[30]  Additionally, Levitt notes that “every conflict is unique,” and so conflict resolution strategies must be tailor crafted to each situation as it arises.[31]  The major source of the attacks was xenophobia, which is a “fear and hatred of strangers or foreigners or of anything that is strange or foreign.”[32]  Xenophobia and the discrimination that is caused by it are best understood as a type of structural violence.[33]  Structural violence is “gradual, imperceptible, and diffused in society as the way things are done, as a matter of whose voice is systemically heard or ignored, and who gets particular resources.”[34]

This kind of conflict “is often hidden, chronic, and institutionalized” making it extremely difficult to change.[35]  Effective conflict resolution must be based on “systemic change” that, in this case, will have to correct the two aforementioned challenges facing the country, namely negative perceptions and discriminatory policy.[36]  The first section of this argument will survey the history of South Africa from the arrival of the first colonizers, the Dutch and the English, to the end of the apartheid regime.  The second section covers the current psychology of South Africans regarding foreigners, both in the general population as well as the political leadership, and the justifications provided for it.  The third section explores how this widespread negative perception of foreigners has resulted in outright discrimination in both law and practice.  The fourth section explores domestic and international avenues for change, and the final section concludes with policy recommendations going forward.

II.                Country of My Skull

A.     The Empire’s Arrival

What is past is prologue, and it is there that any informed discussion on

xenophobia in South Africa must begin.  The earliest known inhabitants of southern tip of the continent were the Khoisan people.[37]  They are a traditional pastoralist society that archaeological evidence places in South Africa back to the first century anno domini.[38]  However, like so many other tribes in Africa, the Khoisan would soon become another people conquered by its continental neighbor’s imperial ambitions.[39]

The first Western Europeans to sail past the Cape of Good Hope were the great Portuguese explorers Bartholomeu Dias and Vasco da Gama in the late 15th century.[40]  However, Portugal’s colonial ambitions focused more on the eastern coast of Africa in places such as modern day Zimbabwe and Mozambique.[41]  The pivotal moment in South Africa’s history came in 1649, when Jan van Riebeeck landed on the coast with eighty employees of the Dutch East India Company.[42]  The Dutch had decided to establish a fort in the Cape, an area in the southwestern region of the country, to supply the Dutch East India Company’s fleet on its way to the riches further east.[43]

            The Company funded and managed the entire Dutch empire whose center was in Java, far from Africa.[44]  Nevertheless, the Dutch found that the limited role they envisioned for Table Bay quickly expanded through the typical imperial enterprises of slavery and land grabbing.[45]  Modern South Africa’s remarkably complex racial and social structure began to take shape from the Dutch importing populations from the empire’s holdings around the globe.[46]  However, diversity within a society, in and of itself, does not always equate to conflict.  Instead, social conflict was engendered by the main vector of structural violence in South Africa, unequal treatment under the law. 

Unequal treatment under law is generally achieved in a two step process.  First the law differentiates people, creating a vertical hierarchy where privileges and deprivation become entrenched.  Second, this split forces people into positions where competition, rather than cooperation, becomes endemic.  Establishing competitive approaches within a society regularly result in “a destructive course” for everyone involved.[47]  One of the clearest examples of this cycle playing out is the practice of slavery. 

Dutch law in South Africa was a hybrid of the statutes of Batavia and Roman-Dutch law from Holland.[48]  The Dutch laws divested slaves to the position where they “were unable to marry…unable to make legal contracts, acquire property or leave wills…and could be sold or bequeathed at will.”[49]  African societies had practiced slavery long before the arrival of the Europeans, but it was completely different because the slave did not lose these major rights.[50]  African slaves “were seldom or never mere chattels, persons without rights or hope of emancipation.”[51]  Instead, “household slaves lived with their masters, often as members of the family…they could work themselves free of their obligations…[and even] marry their masters’ daughters.”[52]  Before the arrival of the Europeans, slaves across Africa could often “become traders, leading men in peace and war, governors…even kings.”[53]  Such destinies were entirely closed by European laws, which divided people and forced them into conflict.[54]

The British Empire took possession of the Cape Colony in 1806, but it did nothing to improve the situation.[55]  For example, in order to quell years of violence between the trekboers and the Xhosa people in the eastern frontier, the British decided on a policy of separating the groups and importing more Europeans.[56]  The British continually gave twisted rationalizations for their policies, insisting that they were “civilized.”[57]  One of the colony’s governors wrote in a report to London, “I am happy to add that in the course of this service there has not been shed more Kaffir blood than would seem necessary to impress on the minds of these savages a proper degree of terror and respect.”[58]  The “service” employed by the British consisted of military campaigns to push black tribes, such as the Xhosa, from their lands to make more room for white settlers.[59]

Following the discovery of diamonds and gold in the middle of the 19th century, the British created a new “regime for labour contracts, linking it to a system of pass laws that became the main device for controlling black labour throughout southern Africa” (after being pressured by white miners who were threatened by an abundant supply of cheap labor).[60]  These pass laws labeled black workers as “servants” who were required to register and carry a pass at all times signed by their employer, called the “master,” under penalty of fines, imprisonment, or flogging.[61] 

In a startling case of foreshadowing, the British “saw fit to distinguish between civilized and uncivilized blacks,” the former being “natives, half-castes, and others…who are honest, intelligent and respectable men…[who] must be treated in every way similar to the whites.”  The latter, “uncivilized blacks” were seen as “the great mass of the labouring coloured population” that consisted of “raw Kaffirs, who come from the interior with every element of barbarism…[and] must be treated as children incapable of governing themselves.”[62]  The racial animosity of colonial rule was nothing compared to what was yet to come.

B.      The Scourge of Apartheid

The word apartheid is Afrikaans for “apartness.”[63]  Apartheid laws were a radical expansion of the inherently unequal laws imposed by the former colonial powers.    In 1910, South Africa gained limited independence from British rule, the first country in Africa to do so, and the first apartheid laws were enacted in the 1940s.[64]  Credit for the creation of apartheid goes to Hendrick Verwoed, an Afrikaaner who is known to this day as the “architect of apartheid.”[65]  Under the new republic, the population was divided into one of four racial groups “White, Coloured, Indian, and African.”[66]  Whites, considered the “civilized race,” were “entitled to have absolute control over the state,” and their “interests should prevail over [all] black interests.”[67]

The history of the apartheid regime is well documented, and to discuss it fully is beyond the scope of this article.  However, a few of the developments under apartheid are pertinent to the issue of xenophobia.  The first laws emphasized difference as fundamental and inherently corrosive.  The Prohibition of the Mixed Marriages Act, the Immorality Act, and the Population Registration Act mandated that every person be classified into a racial category and contact between them was outlawed (resulting in countless acts of inhumanity).[68]  This was followed by the elimination of voting rights for the Coloured and African categories.[69]  The government’s divide and conquer strategy allowed the white minority to hold complete power for almost a half century.[70]

            Over the next several decades, the apartheid government created “homelands” to further disenfranchise black Africans by forcing them into ten different territories based on completely artificial boundaries.[71]  In addition, the homelands program created “economic incentives,” in reality an economic necessity, for non-white South Africans to become migrant laborers.[72]  This system was governed by the most restrictive pass laws the country had ever seen.[73]  Under the apartheid pass laws, people lost every conceivable element of freedom and dignity.[74] 

The Group Areas Act “divided urban areas into zones where members of one specified race alone could live and work.”[75]  The domestic situation had become so bad in South Africa that it spurred the General Assembly of the United Nations to pass “annual resolutions condemning apartheid,” eventually declaring it a “crime against humanity” in 1973.[76]  While it was certainly a step forward, these new resolutions did little to actually end the system, and the arms embargo following Steven Biko’s death had a much greater effect than such pronouncements.[77]

Between 1960 and 1983, a study estimated that 3,548,900 people were forcibly removed through the Group Areas Home Act.[78]  These removals resulted in massive “townships” springing up around major cities where people lived in soul crushing conditions.[79]  By 1977, apartheid had resulted in a twenty-six percent unemployment rate amongst those in the African racial category.[80]  By 1980, a World Bank survey of ninety countries showed South Africa had the most “inequitable distribution of income.”[81]  The “top [ten] percent of the population” received “[fifty-eight] percent of the national income,” while the “lowest [forty] percent received [six] percent.”[82]  When the “euphoria that marked the election and inauguration [of Nelson Mandela] died down,” it became overwhelmingly apparent that the “cumulative effects of colonialism, apartheid, and urbanization” created an enormous set of challenges to overcome.[83]

C.     The Rainbow Nation is Born

No discussion of the xenophobic attacks can begin without acknowledging the historical context.  After apartheid’s demise, some South Africans incorrectly assumed that “non-racial” policies “cannot be…oppressive and undemocratic at the same time.”[84]  Believing this to be true, many in the current “ruling party” have used any excuse possible, including history, to argue that xenophobia is not their responsibility and “quite impossible to control.”[85]  Although “the rise of xenophobia…cannot be isolated from the country’s apartheid past of racial class division and animosity,” it exists today because of a fatal trifecta consisting of “racist immigration policies, a siege mentality and attitudes of uniqueness and superiority towards the rest of Africa.”[86]  The result being that “the extreme power of state officials over the weak, whether actually foreign or not, has been…a mere continuation of a pass-like system” from the country’s history.[87] 

Ironically, “white immigrants” do not seem to instill the same kind of “panic and hostility” from South Africans as black immigrants from neighboring countries.[88]  Research shows that white foreigners from “Europe and North America” receive the “most favourable ratings” from South Africans, but it also shows how xenophobia is really racism in another name.[89]  This preference becomes unfair discrimination when the government deports only forty-nine out of the “26,000 [mostly white foreigners]…from Germany, Britain and the United States [who had] overstayed their visit.”[90]  These kinds of incidents led one researcher to conclude that “racism is a key feature of South Africa’s immigration legislation and practice…despite the country’s transition to democracy and equality.”[91]  Besides raising several potential violations of South Africa’s constitution, it also raises serious questions about the motivation and goals of the government.

III.             The Fearful Void

A.     The Popular Opinion

Since 1996, the Southern African Migration Project, SAMP, has been conducting

research on migration issues in South Africa.[92]  Beginning in 1994, SAMP’s research has shown a “hardening of [negative] attitudes” amongst South Africans towards other black Africans.[93]  Between 1995 and 1999, there was an increase of people wanting “strict limits or a total prohibition on immigration” from sixty-five percent to seventy-eight percent.[94]  By 2006, seventy-four percent of South Africans supported “a policy of deporting anyone who is not contributing economically to South Africa.”[95]  Around sixty percent would support deportation solely because a foreigner “test[s] positive for HIV” or has AIDS.[96]  In 1999, sixty-six percent of South Africans wanted their borders to be electrified, but by 2006 that number had risen to seventy-six percent.[97]  This survey research shows that “xenophobic attitudes are deeply-rooted, wide-spread and as entrenched as ever.”[98]

Although this data paints a terrible picture of the average South African, the same study also shows some positive indicators.  First, between the years of 1997 and 2006, the number of respondents who rated the “likelihood of [taking] action against migrants from other…countries” has actually decreased despite the recent attacks.[99]  South African respondents were given a number of different situations and asked if they would actively try to prevent them from occurring.[100]  Out of those who would take action, only sixteen percent were prepared to “combine with others to force foreign nationals to leave their area.”[101] 

Second, the “economic threat posed by immigrants does not appear to be based on personal experience.”[102]  Instead, negative attitudes are formed “in a vacuum, relying mainly on hearsay and media,” meaning that the xenophobia that does exist is the result of “second-hand misinformation.”[103]  This also shows why statements from political leaders are so important, and why they must change in order to eliminate a major source of this structural violence.[104] 

Third, and perhaps most importantly, even though the attacks were widespread, not every “poor [area]…erupted with similar ferocity.”[105]  While some South Africans were attacking people in the streets, others were helping the displaced in any way they could.[106]  There was also strong and widespread condemnation of the attacks by many South Africans, culminating in a “Day of Remembrance” on the third of July.[107]

B.      View from the Top

Politicians and government officials from almost every department and every level have a long record of making disparaging remarks and negative characterizations of black Africans from neighboring countries.[108]  In 1994, the Home Affairs Minister Buthelezi, the department now responsible for helping survivors of the attacks, “drew direct links between migrants and crime” claming that “Mafia-style” foreigners were to blame for “‘drug-trafficking, prostitution and money-laundering.’”[109]  In 1997, the Defence Minister Moise said, “The army is helping the police get rid of crime and violence in the country…However, what can we do?  We have one million illegal immigrants…who commit crimes.”[110]  Even Nelson Mandela hopped on the band wagon, at one speech referring to “threats posed by illegal immigrants, [such as] gun running and drug smuggling.”[111]  All of these examples point towards, what can generously be described as, a “larger political climate in South Africa, which placed high value on restricting access…and limiting immigration.”[112]

Frantz Fanon explained that this shift of perception in both the general populace and government officials towards other Africans was commonplace across the continent.[113] During the “liberation struggle” against colonial powers, “every individual living in Algeria is an Algerian” meaning that Africans shared an inclusive conceptualization of citizenship.[114]  Upon gaining independence, the idea of Pan-Africanism died, and citizenship became exclusionary in nature.[115]  This shift was the most severe in South Africa where citizenship, as well as the rights and privileges that accompany it, changed to a “notion of indigeneity [sic]” rather than common purpose.[116]  This “South African superiority complex in relation to other Africans” was cited by the Human Sciences Research Council as one of the major factors behind the xenophobic attacks.[117]

 

  

C.     The Fortress View

When membership in a society is based on a standard of nativism, it leads to a destruction of the “collective freedom [that] honours the human person and gives each of society’s members maximal respect.”[118]  It results in a “fortress” approach to immigration that can be made using just refugee statistics.[119]  The fortress argument states that “poverty is high in South Africa and unemployment has been growing,” so the government “must look after our own first,” and besides, it would be disastrous to ‘open the flood gates’ allowing the poverty of Africa to overwhelm the economy.”[120]  

According to the USCRI, South Africa had 28,000 refugees in 1998.[121]  By 2008, that number had grown to over 144,000 refugees and asylum seekers within the country.[122]  The majority came from Zimbabwe, and on average the government deported “about 10,000 Zimbabweans per month for illegal entry.”[123]  South Africa’s total population is roughly 48.7 million people.[124]  The USCRI estimates that there are about 147,000 refugees in the United States, roughly the same as South Africa, but the total population of the United States is well over 300 million people.[125]  Proportionately, the number of just refugees in South Africa compared to the total population would be the equivalent of over nine and a half million refugees being in the United States.

            In 2007, South Africa’s gross domestic product, GDP, was roughly 282 billion dollars US with a per capita of 9,700 dollars US.[126]  South Africa’s unemployment rate is 24.6 percent.[127]  Compare this with the United States, whose GDP in 2007 was almost 14 billion dollars US, a per capita of almost 46,000 dollars US, and an unemployment rate of 4.6 percent.[128]  At first glance, these figures seem to provide some justification for a fortress policy.  However, it is relatively simple to refute the policy both legally and substantively.

IV.              Things Fall Apart

A.     In the Law

Rather than live up to the promise of its constitution, which states that “everyone has inherent dignity and the right to have their dignity respected and protected,” South African immigration law has continued to scapegoat foreigners as both the cause of social problems and an economic threat.[129]  First, there was the Aliens Control Act of 1991, described as “apartheid’s last act.”[130]  The 1991 Act was the consolidation of previous laws that explicitly “distinguished between white immigrants and black migrants.”[131]  It also “entrenched the existence of a secretive and non-accountable Immigrants Selection Board and removed the right to appeal to a board.”[132]

This law created, the Orwellian named, “Aliens Control Units” who were “let loose on the street and workplaces.”[133]  These Aliens Control Units “swept through townships; arresting people at random” using “racial stereotypes” to determine their targets.[134]  The government units rounded “them up like convicts” and sent foreigners to “holding centres like the notorious Lindela” to the extent that over “1 million people were rounded up…and deported with no due process.”[135]  However, this law remained the primary instrument for years, and no serious reform movement has been undertaken by the government to create a system that comports with the ideals and requirements of the Constitution.[136]

In 1999, the Minister of Home Affairs offered a new immigration bill that not only failed to make any “fundamental change to the current policing system,” but radically expanded enforcement powers.[137]  In the 2002 Immigration Act, provisions were included stating that xenophobia must be “prevented and countered both within Government and civil society.”[138]  However, policy experts in South Africa argue that the framework of the new act is still “incoherent” and “in many respects, unimplemented.”[139]

B.      In the Streets

Regardless of what the controlling law was at the time, the overall experience of “contact…with state authorities” has been “systematic xenophobia, particularly from the police and Home Affairs officials.”[140]  This systematic xenophobia manifests in the “arbitrary exercise of power, corruption, extortion, and gratuitous violence and torture.”[141]  In a terrible irony, police rely on “apartheid-type” practices such as “the colour of the skin and darker features” or “language checks and inoculation marks.”[142]  Also typical of the apartheid era, the police regularly engage in “the practice of tearing up or otherwise removing official documents” after having demanded their production from suspected foreigners (there is no law in South Africa requiring identification documents be carried).[143]

Extortion is also “extremely widespread among apprehending officers.”[144]  Bribes are used “to secure…release from the custody of apprehending officers,” but authorities will also use the threat of transfers to detention centers in order to extort money.[145]  In September of 2005, “policemen were caught on video extorting funds from friends and relatives for the release of foreigners who had not been convicted of any crime…and some of whom had been unlawfully arrested.”[146]  It seems that such behavior can manifest in any civil institution, even hospitals.  A few months after the videotaped extortion from police, an “asylum seeker” from the DRC “was turned away at the Johannesburg General Hospital as she was about to give birth” because she did not have any money.[147]

V.                 Long Walk to Freedom

A.     Fallacy of the Fortress

No matter what argument is made in favor of “fortress” policies, they all share the same “speculative nature” and flawed “assumptions.”[148]  This prevalent xenophobic attitude is fueled by fundamental attribution error, whereby the behavior of some foreigners has been misattributed to all because of the mere fact that they are foreigners.[149]  Fundamental attribution theory shows “we tend to err toward attributing other people’s behavior to disposition,” whereas we ascribe our own behavior to external “circumstances” beyond our control (negating any person responsibility for ourselves but setting a high standard for others).[150]  Dr. Mamphela Ramphele provided one of the clearest counter arguments to such policies right after the attacks first began.[151]  As a former managing director of the World Bank, she argued that “successful countries everywhere recruit skills globally.”[152]  This is especially true “given the time taken to train South Africans and high rates of migration out of South Africa” making “international migration…the only viable mechanism to provide much needed skills to business.”[153]

According to a study conducted in 2006, 14% of the Johannesburg’s population, or around half a million people, were foreigners; sixty percent of whom “make a positive contribution” to the South African economy, but report “experience[s] of negative treatment” from their fellow city dwellers.[154]  The idea that outsiders “take jobs” from South Africans is a myth, as research has shown that foreigners were “more than twice as likely to be self-employed,” and those who start their own businesses actually created more jobs by hiring others.[155]  The majority of foreign business owners “are operating the only shops in Township areas” which lowers “the costs of acquiring food and other necessities for people living in those areas.”[156]  Research shows that “families spend more for food” after “migrants have been displaced by threats or actual violence,” and “the distance traveled to secure commodities also puts people, often women, at risk of robbery or assault.”[157]  By attacking black Africans, the angry mobs have ultimately hurt themselves and been a cause of the problems they used to justify their actions.

South Africa vigorously lobbied to host the 2010 World Cup, which would bring in a huge number of foreign tourists, mostly from African nations, in order to reap the benefits of a huge “economic boom…[for] the region in terms of direct revenue and spin-off tourism.”[158]  This was all thrown into jeopardy because of the attacks, and an official warned that “if the scenes did repeat themselves, FIFA, [the world’s governing body for football] would rethink its decision in favour of South Africa and, if necessary, pull the plug.”[159]  A month after the attacks, “FIFA president Sepp Blatter” gave the government a warning by announcing that he had “spoken to three countries about hosting the 2010 World Cup” should the organization decide that South Africa was unable to host.[160]

The only saving grace for South Africa is that the attacks “had very little impact on…preparations…in terms of infrastructure, transport systems, planning and organization.”[161]  Also, because the attackers were targeting black Africans who lived in townships, the “central business and tourism areas where visitors would be staying” remained relatively safe.[162]  However, there is no doubt that the attacks were a major blow to the “enthusiasm of fans to travel to the World Cup” and could still affect the outcome.[163]  The World Cup could trigger new attacks if foreigners are seen as “flooding into South Africa expecting to share in the economic benefits.”[164]  Regardless of the contribution that foreigners make to the economy, Ramphele declared that the “government has failed to establish a policy framework that translates…[South Africa’s] human rights obligations under…[the]…national constitution to protect and promote the rights of all people.”[165]

B.      The Role of the Constitution

            Even though “debates on citizenship in South Africa…were overwhelmingly taking place within the confines of state institutions,” those bodies are controlled by the constitution.[166]  It is the supreme law of the land and represents the culmination of decades of struggle, and to not live up to its tenets is a betrayal of the sacrifices and misery that was suffered to see it created.  Because it has, “perhaps the most liberal and human-rights based Constitution in the world,” it is surprising that such conduct by some spheres of government has continued for so long.[167]

There has been concern over what the courts can actually do because of a distinction “in law between citizens and foreigners.”[168]  It is true that numerous sections of the constitution reserve certain rights and privileges solely for “South African citizens.”[169]  Additionally, there is a “strong tendency for the Constitutional Court” to defer to the legislature on any policy matters “based on social and economic conditions.”[170]  However, a non-citizen can still effectuate change using the judiciary. 

Section 167 of the Constitution grants the power to any “person,” rather than only citizens, to “bring a matter directly to the Constitutional Court; or…appeal directly” to it when constitutional issues are raised.[171]  Generally, the Constitutional Court is reluctant to adopt an interpretation of constitutional clauses that would cause “courts to sit in judgment on what are essentially political decisions.”[172]  To do otherwise would mean that “all legislative policy judgments would be subject to the strictest scrutiny.”[173]

However, the Constitutional Court has repeatedly struck down laws that it finds unconstitutional, even on matters based on nationality.[174]  In Khosa v. Minister of Social Development, the court struck down provisions of the Social Assistance Act 59 of 1992 that excluded non-citizens after being challenged by Mozambicans who had acquired permanent residence status.[175]  The result of this holding was “profound,” and it affirmed that “the rights in the Bill of Rights…cannot be construed as referring only to ‘citizens.’”[176]  Predictably, given the research data on xenophobic attitudes, the court’s ruling in this case “gave rise to statements of fear [and criticism] in the press.”[177]

The judiciary is tasked “with defending people’s rights against other state institutions,” but contrary to some social researchers, it does not remove that parallel responsibility from “the people” themselves.[178]  Political mobilization can certainly have positive effects.[179]  For example, in the early 1990s, the National Union of Mineworkers, whose leader at the time was from Lesotho, was instrumental in putting pressure on the government to grant “amnesty” for foreign miners.[180]  As a result of this political mobilization, 124,000 foreign workers from the other countries who were living in South Africa were granted permanent residency status.[181]

Within a month of the first attacks, “refugees living in the [Germiston] city hall…started their own school so that their children can continue to be taught despite being displaced.”[182]  In June, hundreds of those affected marched “to the South African parliament in a demonstration against xenophobia.”[183]  Those who did have jobs “returned to work,” even though most were still fearful, with the tacit understanding that their lives have “to go on.”[184]  If this kind of determination exists, then empowerment could be achieved by bringing suits, with the help of certain advocacy groups, to change national laws before the Constitutional Court.[185]  In fact, such a challenge may be coming in the near future as the Consortium for Refugees and Migrants in South Africa and the Wits Law Clinic will file a petition with “the Constitutional Court to keep refugee shelters open” in Gauteng.[186]

C.     The Role of International Law

Shortly after the first attacks in the Western Cape, representatives from temporary camps set up for the displaced demanded “intervention by the United Nations because the South African government has failed them.”[187]  Two months after the attacks, South Africa sent 17,000 people back to Zimbabwe even after the U.N. called for deportations to be suspended.[188]  Lawyers for Human Rights opposed the government as well, stating that deporting the Zimbabweans back to their home country was a clear violation of both international laws and the basic concept of “non-refoulement.”[189]  South Africa is a signatory of numerous international treaties, including the landmark 1951 United Nations Convention on Refugees that prohibits the forcible returning of a refugee to their country of origin if there is a well-founded fear of persecution or threat to their life (commonly called the obligation of non-refoulement).[190]  However, South Africa did not ratify either the Draft Protocol on the Free Movement of Persons in 1995 or the United Nations Convention on the Rights of All Migrant Workers and Members of Their Families, delivering a blow to expanding the rights of foreign nationals.[191]  If the South African government is willing to violate international law, while at the same time making no effort to expand them, then what hope is there for the Guiding Principles?

By its very nature, internal displacement connotes a violation of existing rights.[192]   For example, Article 1 of the African Charter on Human and Peoples’ Rights states that every member of the African Union shall recognize the rights duties and freedom enshrined in this Charter and shall undertake to adopt legislative and other measures to give effect to them.”[193]  Physical safety is supposed to be ensured by Article 3 of the Universal Declaration of Human Rights which mandates that “every person has the right to life, liberty and security of person,” and article 6 of the Geneva Convention outlaws acts of violence, murder, torture, mutilation and rape against civilians.[194]  However, it is “geo-political interests, more than anything else,” that has “undermined the ability of the existing international human rights regime to protect [both] refugees and internally displaced persons” regardless of the treaty.[195]  The global community can ratify as many treaties or develop as many new rights documents as it wants, but without the political will to act on them, it is sound and fury signifying nothing.

D.     An Example Next Door

When the U.N.’s leadership had a chance to “advance the GPID” and generate “a norm shift” in South Africa’s neighboring country Zimbabwe, they failed miserably.[196]  In 2005, Robert Mugabe began “Operation Murambatsvina,” which translates as “clean out the trash,” and sent “bulldozers and police [to destroy]….shantytowns in Harare’s high-density suburbs.”[197]  The result was that up to “700,000 people lost [their] homes and livelihoods” leaving them “exposed to the elements” at the start of winter.[198]

Former U.N. Secretary-General Kofi Annan, born in Ghana, has sometimes lamented that he is “ashamed to be an African” because of the never ending problems on the continent stemming from poor leadership and petty tyrants.[199]  Annan responded to Mugabe’s new program by appointing Anna Kajumulo Tibaijuka as a “Special Envoy on Human Settlement Issues” with a “mandate…to report on the effects of Operation Murambatsvina and present recommendations.”[200]  The first problem with this course of action is that “Special Envoys have no true authority…[and so] her report had no binding effect.”[201]  Further, Tibaijuka’s report “did not apply the Guiding Principles…[and] hesitated to say that the Responsibility to Protect was triggered by the situation.”[202]  This raises another problem.

Even if the report had recommended intervention, “Zimbabwe is not party to the Rome Statute,” and so “any determination that Zimbabwe was in violation” of international law would “require referral to the U.N. Security Council for a determination of action.”[203]  As one of the five permanent members of the Security Council, “China made clear” that it would use its “veto power” on “any resolutions targeting Zimbabwe.”[204]  Thus, political deadlock once again ruled the day at the UN.

Sarah Hager argues that Annan should have sent Walter Kalin to issue a report because he was the “Representative of the Secretary-General on the Human Rights of Internally Displaced Persons” mandated “to engage in coordinated advocacy in favor of the protection and respect of the human rights of IDPs.”[205]  Following Tibaijuka’s report, the only avenue left to Kalin was to “delicately convey his irritation in a publish press release.”[206]  In his statement, Kalin emphasized “the legitimacy of the GDIP” and its foundation in “binding documents Zimbabwe has ratified,” meaning that the government’s actions equated to numerous “violations of [both] the GPID” and international law.[207]  However, Tibaijuka’s report was the first, strong statement from the U.N. and “concluded that the actions were only violations of national law” providing an excuse for nations to sit on their hands.[208]

Hager posits that Tibaijuka was sent to report on the situation in Zimbabwe so it appeared “less politically-charged” to Mugabe, and “the issue of state sovereignty raised by the GPID” could be avoided.”[209]  Ultimately, the whole incident represents “a glaring failure of opportunity on the part of the United Nations to advance the rights of IDPs.”[210]  Regardless of the actions taken by its bureaucracy, the U.N. is also hampered by political wrangling between its member states.  For example, “Britain, Greece, Australia and New Zealand” tried to have Tibaijuka’s report “placed on the Security Council agenda,” but were simply blocked by “China, Russia, and Tanzania” for their own interests.[211]  Ultimately the whole process is at odds with itself as the “U.N. Charter explicitly directs that the sovereignty of states be protected,” and yet, “responsibility to provide protection and services…rests with…the state.”[212]  Until the member states of the United Nations can reconcile these opposite commitments, it is pointless to discuss their potential for helping the internally displaced through new law.

E.     Wait and See

Waiting for an international solution could take an indeterminable amount of time, so it is up to South Africa to deal with the structural violence of xenophobia within its borders.  However, as the attacks unfolded, the leadership was scrambling to respond.  President Mbeki did not approve the deployment of the SANDF, South African National Defence Force, until May 21st, ten days after the first mobs took to the streets (at which point forty-two people had been killed).[213]  He was also criticized by the press for not visiting “the worst affected areas of Johannesburg after two weeks of violence.”[214]  Trying to avoid any responsibility, Mbeki issued several press releases characterizing the violence as being perpetrated by just a “few criminals in our midst.”[215]  Hoping it would prove more effective than his earlier pleas for the violence to end, President Mbeki made a televised address on May 25th calling the attacks a “disgrace.”[216]

Mbeki’s handling of the attacks, as well as his delay in invoking the emergency powers clause of the constitution allowing the deployment of the SANDF, was widely criticized across the country.[217]  By June, the South African Communist Party was calling for Mbeki’s recall as president stating that “the events of the past weeks have exposed the dangers of a leadership vacuum in our country.”[218]  In the same statement, the SACP emphasized that “our region cannot afford to persist with the current blend of directionless absenteeism, and meddling factionalism and general irresoluteness.”[219] 

In late September, the pressure finally overcame Mbeki, and he resigned from office.[220]  He had already been weakened by his handling of mediations in Zimbabwe as well as the revelation by a “High Court judge [who] suggested there had been political interference in a case against his party rival, Jacob Zuma.”[221]  When the SACP first made their call for Mbeki’s resignation, their main concern was how it “should be done without creating more instability.”[222]  So far, it seems as if instability has been the only thing to come from Mbeki’s resignation.

Jacob Zuma is “expected to become…president after next year’s elections.”[223]  He is immensely popular with the average South African, exhibiting a common “touch” compared to Mbeki, who was seen by most as “rather aloof.”[224]  After being fired as the deputy president in 2005, he went on to defeat Thabo Mbeki to become the president of the African National Congress as part of a “titanic power struggle” within the party.[225] 

Zuma is also no stranger to controversy, but it has had little effect on his popularity.[226]  He is so popular that the ANC Youth League President and Zuma supporter Julius Malema said that he was ready to “kill” for him.[227]  During the attacks, some rioters were singing Zuma’s signature song “Awuleth’ umshini wami” while they looted and killed in the streets.[228]  Zuma did not condemn the use of the song but merely said it was an “abuse,” given its context during the struggle against apartheid.[229]  However, he did make a statement that “we can’t be a xenophobic country. It’s not good for our country. We need to find the culprits responsible for the attacks.”[230]

  Mbeki’s resignation was followed by a “wave of ministerial resignations” from loyalists and Mosiuoa Lekota announced the formation of “a new, breakaway party” from the ANC.[231]  Tentatively called the South African Democratic Congress, its candidates will run against the ANC in the upcoming elections.[232]  This split in the ANC has corresponded with a dramatic increase of political violence, including an “attack with axes on three DA [Democratic Alliance] members in Ekurhuleni and chants calling for ANC rebels to be killed” at a number of rallies.[233]  Another dangerous element of the split is that “people have organised and used ethnic arguments or tribal arguments to garner support in the different regions of the country for these two factions.”[234]  As the fight for political power becomes more intense, the risk that this instability will “spiral out of control” grows greater, and the likelihood that anything will be done to combat xenophobia decreases.[235]  These developments are part of a larger trend whereby “institutions once dedicated to intellectual freedom have become politicized,” and that is where “violence begins.”[236]

VI.              Cry the Beloved Country

A.     Political Will

Dr. Ramphele hopes that the xenophobic attacks will be “a major shock” that forces “society to confront challenges it has been either denying or underestimating.”[237]  Unfortunately, there are several developments since the “end” of the attacks that show that nothing has changed.  First, attacks and threats have continued, only on a less visible scale, while the government pushes forward with its policy of reintegration.[238]  The mayor of Cape Town said reintegration of the displaced was “crucial” and wants the SANDF as part of a “peacekeeping force” that will “reassure people that their rights will be protected”.[239]  Thus far, this policy seems to be an utter failure.

Once the attacks “subsided,” a Mozambican man returned home to be stoned and burned to death in Brazzaville.[240]  Meanwhile, a government spokesperson said “reintegration was going well, with communities like Masiphumelele welcoming residents back and apologising to them.”[241]  This may be true on some level, but it comes across as either cynical or naïve in the face of an Ethiopian man being shot to death in Masiphumelele just two days after returning home.[242] 

In July, a DRC refugee returned home after spending a month in a temporary camp for the displaced only to be greeted by gunshots in the night.[243]  When it was reported to the police, they declined to investigate saying, “Oh, it’s makwerikweri [a derogatory name for foreigners]…If I make an investigation” then it will give them an excuse not to return to their homes.[244]  Fearing for their lives, many refugees returned to the temporary camps with their children where there was at least safety in numbers.[245]  The same month, also saw Somali traders being beaten and robbed by a small mob, while provincial authorities were claiming reintegration was a “success.”[246]

Second, the political leadership and institutions have failed to be champions for the targets.  Many government officials are not interested in accountability, which is why they disbanded a special investigations unit called the “Scorpions.”[247]  The Scorpions were “set up to tackle high-profile crime,” and during their operation finalized “1,500 investigations,” “made close to 2,000 arrests,” and seized “more than $500 million-worth of contraband.”[248]  However, from the start they suffered “interference from the highest echelons” for rooting out corruption and fraud within the government itself.[249]  One of the strongest supporters for disbanding the Scorpions was Jacob Zuma.[250]

 

At a meeting with refugees and asylum seekers, the current Minister of Home Affairs, Nosiviwe Mapisa-Nqakula, correctly identified the root of police misconduct as a “lack of leadership.”[251]  At that meeting in March 2007, the Minister “branded xenophobia as a cruel form of racism which should not be tolerated.”[252]  And yet a year later, she was threatening to deport any asylum seekers who did not register with her department (even though it was illegal).[253]

 

This behavior has also continued in non-governmental institutions.  A local branch of the National African Federated Chamber of Commerce and Industry, NAFCOC, sent out more than 200 letters to Somali traders warning them “to close their shops by September 21 or they will ‘resolve to much higher actions that will include physically fighting’ for their rights.”[254]  When asked about the incident, NAFCOC disavowed the letters saying it was not a national effort, but never offered any statements or gestures of support for the Somali traders who received them.[255] 

 

Some leaders like Ramphele and Archbishop Desmond Tutu have been vigilant, with Tutu saying that such behavior from his fellow South Africans “is how the Holocaust happened.”[256]  However, the majority have been making empty statements without corresponding action.  The absence of political will on the part of government officials tells the country, the displaced, and the world that they do not take the problem seriously.  It also means that it falls to the judicial system to be the sole force of driving change.

 

B.      Policy Recommendations

First, and most urgently, government officials need to make strong statements

followed with decisive action to ensure the safety of black foreigners.  Reintegration can only be successful if the fears of those returning are not confirmed by more threats and open violence.  Realizing this, the Constitutional Court already issued an order following lawsuits that “nobody is allowed to be forcefully moved from their shelter, unless for the consolidation of a camp or to be taken to a repatriation facility.”[257]

            Secondly, domestic immigration law must be brought into line with the constitution in order “to establish a policy framework that translates…human rights obligations.”[258]  Section 9 of the Constitution states “everyone is equal before the law and has the right to equal protection and benefit of the law.”[259]  Further, both the state and any person are prohibited from unfairly discriminating against “anyone.”[260]  There is a strong case to be made that the current immigration laws and policies are in violation of Section 9 given the jurisprudence of the Constitutional Court.[261]

Although the Constitutional Court is set to begin hearing arguments from advocates at the end of November, the ultimate responsibility lies with the legislature.[262]  Additionally, the lower courts have been issuing rulings on over “1,446 charges…related to the May violence” resulting in numerous convictions.[263]  Obviously, not all of those who were guilty for the attacks will be brought to justice.  However, the convictions that are made can show the populace that “taking the law into its own hands will not be tolerated.”[264]  This can deter “similar actions in the future” and show foreigners that the government, or at the least one branch of it, is committed to changing the situation.[265]  It also helps build trust with the much abused community that is essential to “short-term conflict containment.”[266]

            Third, there needs to be a renewal of education campaigns to combat negative perceptions of black Africans with the “same commitment that state and civil society has shown towards the scourge of racism.”[267]  As the SAMP points out, this is best achieved through “a broad, high-profile, multi-media, government-initiated and sponsored anti-xenophobia education program that reaches into schools, workplaces, communities, and the corridors of the public service.”[268]  To be effective, it must be “systematic and ongoing” unlike the “Roll Back Xenophobia” campaign previously undertaken by the Human Rights Commission that ended in 2002.[269]

            Fourth, it is essential to increase the transparency and accountability within government institutions.  This means an increased role for bodies like the Scorpions, not a disbanding of them, that are tasked with ending “corruption in all aspects of the immigration system.”[270]  The police have the will to warn “all political parties that violence…or incitement to violence…will not be tolerated,” and such behavior will be pursued as a “criminal offence,” but so far they have not displayed the same tenacity with combating xenophobia.[271]

Fifth, organizations and constitutionally mandated bodies like the Human Rights Commission, because of its “vital role in the promotion of social welfare rights,” must step up and act.[272]  The HRC’s powers include and go “beyond the judicial processes,” meaning that they are in an invaluable position to vigorously combat xenophobia.[273]  Unlike the judiciary, the HRC can act on its own initiative to “make the legislature account for the amount it spends or fails to spend” and to “expose situations which it considers a dereliction of the states’ duties.”[274]

“Structural violence maims and kills,” but can be ignored for generations.[275]  These recommendations are all based on developing systematic changes utilizing “legal safeguards” to overcome the “societal biases” that plague more “informal dispute resolution venues.”[276]  However, these changes cannot succeed without political will and a realization on the part of government leaders that the problem is “about society, not [just] the state.”[277]  Leaders must ascribe to a “politics of responsibility” created by “an act of commitment,” whereby they pledge to “pursue a moral vision and create a society built on justice, compassion and respect for human dignity.”[278]  It is not a lofty ideal enshrined only in South Africa’s constitution, but a necessity for survival.

C.     The Future

In 2001, South Africa hosted the United Nations’ landmark World Conference on Racism, where many rallied for apologizes and reparations for every manifestation of racism over the past several centuries, including the “slave trade and colonialism.”[279]  The political fight was intense, and the declaration finally agreed upon represented a “bit of everything to everyone…every lobby was able to get its own pet aversions included.”[280]  The event was scorned by many, but hailed by even more as “a triumph in terms of visibility and impact.”[281]  In one of the greatest ironies in the discussion of xenophobia in South Africa, the township of Zandspruit, near Johannesburg, erupted in brutal violence just a month after the conference.[282] 

The angry mobs, because they were “sick” of Zimbabweans, burned and looted homes promising they would kill any “foreigners” if they saw them again in Zandspruit.[283]  The victims included people like Dennis Dube who had been living and working in the country since 1976 (Dennis was originally from Zimbabwe, but had obtained legal resident status five years before the attacks).[284]  Dennis was married to a “native” South African and lived in a small house that he had built for the two of them before it was destroyed by a “petrol bomb” (he also had eight children still in Zimbabwe whom he was supporting with his job in South Africa).[285]  Miraculously, no one was killed, but people like Dennis lost everything short of life itself.[286]  After decades in the country, Dennis said, “I’m just so sad that they [South Africans] can treat me like this, I’ve never known anything like this.”[287]

Following these attacks seven years ago, the HRC issued a statement that condemned the attacks as racial cleansing.[288]  The HRC went on to say that “whilst we acknowledge the dire economic situation faced by many South Africans, actions such as those in Zandspruit merely fuel xenophobic hatred rather than address the core issues of economic underdevelopment.”[289]  The core issues, economic and otherwise, have not been addressed.  The only way that this can change is for future leaders, like Jacob Zuma, to live up to their duties as government officials and implement the kind of measures outlined in this note.  If leaders fail to demonstrate the political will needed to see these changes through, as they have in the past, then many more lives will likely be destroyed in the interim.  The result would be disastrous for both South Africans and the country they hold dear.  As Queen Elizabeth said in Shakespeare’s Richard III, “I see the downfall of our house! The tiger now hath seized the gentle hind; Insulting tyranny begins to jet Upon the innocent and aweless throne: Welcome, destruction, death, and massacre! I see, as in a map, the end of all.”[290]

At a Youth Day rally in Cape Town, Nelson Mandela told the crowds, “As future leaders of this country, your challenge is to foster a nation in which all people, irrespective of race, colour, sex, religion or creed, can ascertain a social cohesion fully.”[291]  He told those in attendance that “you must continue to promote the principle of relentless freedom and democracy as it is the foundation upon which issues of human rights are ingrained.”[292]  South Africa is “a nation that has been able to rise to greatness under extreme pressure” in the past.[293]  It can do so again.

 

 

 

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* Mark Christopher Hopson is a third year law student at Barry University School of Law. He received his B.A. with highest honors in both History and Conflict Analysis and Dispute Resolution from Salisbury University. He recently returned from a summer abroad studying law at the University of the Western Cape in South Africa through Howard University School of Law. The author would like to thank all of his friends and colleagues in South Africa for teaching him about a remarkable place first hand. Nkosi sikelel’ iAfrika.

[1] Halden Krog, Flames of Hate, https://www.thetimes.co.za/News/Article.aspx?id=768842 (last visited Nov. 26, 2008).

[2] Id.  The man was 35 years old from Mozambique named Ernesto Alfabeto Nhamuave, who had come to South Africa hoping to earn enough money to pay for the education of his three children. He died of his wounds soon after being rescued. The images of this horrific scene were broadcast and published in media outlets across the country. A reporter’s reaction and photographs, which are very graphic, can be located at https://multimedia.thetimes.co.za/photos/2008/05/flames-of-hate/ (last visited Nov. 26, 2008).

[3] Id.

[4] Id.

[5] Ernest Mabuza, South Africa: Xenophobic Rage Leaves Trail of Havoc in Gauteng, https://allafrica.com/stories/200805190001.html (last visited Nov. 26, 2008).

[6] South African Press Association, Xenophobic Death Toll Hits 62, https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=776700 (last visited Nov. 26, 2008).

[7] South African Mob Kills Migrants, https://news.bbc.co.uk/2/hi/africa/7396868.stm (last visited Nov. 26, 2008).

[8] Id.

[9] SA Mourns Victims of Xenophobia, https://news.bbc.co.uk/2/hi/africa/7486969.stm (last visited Nov. 26, 2008).

[10] Id.

[11] William Shakespeare, The Complete Works 9 (Random House 1975).

[12] Everett C. Dolman, Pure Strategy: Power and Policy in the Space and Information Age 74 (Routledge 2005).

[13] The Perfect Storm: The Realities of Xenophobia in Contemporary South Africa 21 (Jonathan Crush ed., Idasa Press 2008).

[14] Id. at 1.

[15] United Nations Guiding Principles on Internal Displacement, available at https://www.reliefweb.int/ocha_ol/pub/idp_gp/idp.html (last visited Nov. 26, 2008). 

[16] Francis Deng, The UN and the Protection of Human Rights: The Global Challenge of Internal Displacement, 5 Wash. U. J.L. & Pol’y 141, 146 (2001).

[17] Id.

[18]  Richard Holbrooke, Promoting Peace and Security: Humanitarian Assistance to Refugees in Africa, available at https://www.reliefweb.int/idp/docs/references/AddressHolbrookejan2000.pdf.

[19] Id. 

[20] Internal Displacement Monitoring Centre, Internal Displacement: Global Overview of Trends and Development, 6, available at https://www.internal-displacement.org/8025708F004BE3B1/(httpInfoFiles)/BD8316FAB5984142C125742E0033180B/$file/IDMC_Internal_Displacement_Global_Overview_2007.pdf.  These figures are compiled from just fifty-two countries around the world.

[21] Id. 

[22] United Nations High Commissioner for Refugees, 2007 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons, 2, available at https://www.unhcr.org/statistics/STATISTICS/4852366f2.pdf.

[23] Alex J. Bellamy, Paul Williams & Stuart Griffin, Understanding Peacekeeping 16 (Polity Press 2004).

[24] Roberta Cohen, The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting, 461, available at https://www.brookings.edu/fp/projects/idp/articles/cohenr_20041001.pdf.

[25] Jeremy Levitt, Conflict Prevention, Management, and Resolution: Africa—Regional Strategies for the Prevention of Displacement and Protection of Displaced Persons: Cases of the OAU, ECOWAS, SADC, and IGAD, Duke J. Comp. & Int’l L. 39, 46 (2001).

[26] Id. at 69.

[27] Id. at 49.

[28] Id. at 79.

[29] Id.

[30] Michael Georgy, Analysis: Regional Leaders Toothless in Zimbabwe Crisis, https://africa.reuters.com/wire/news/usnLA387650.html (last visited Nov. 26, 2008). Add impact of south Africa on Zimbabwe negotiations

[31] Levitt, supra note 25, at 68.

[32] Merriam-Webster Online, Xenophobia, available at https://www.merriam-webster.com/dictionary/xenophobia (last visited Nov. 26, 2008).

[33] The Handbook of Conflict Resolution: Theory and Practice 404 (Morton Deutsch & Peter T. Coleman eds., Jossey-Bass Publishers 2000).

[34] Id.

[35] Id.

[36] Id. at 418.

[37] John Reader, Africa: A Biography of the Continent 449 (Vintage Books 1999).  Upon arrival of the first European settlers, the population of the Khoisan is estimated to have been approximately 50,000 with a very low density.

[38] Id. at 450.

[39] Id. at 456.

[40] Leonard Thompson, A History of South Africa 31 (Yale University Press 2000).

[41] Id. at 32.

[42] Id.

[43] Id.  The Dutch East India Company was the first corporation in modern history.  In the 1600s, the Dutch were the dominant power of the world and the Company’s fleet totaled over six thousand ships with over forty-thousand sailors just to operate them.  Its mark on South Africa is indelible and its memory lingers on both the land and the people of South Africa as the start of white exploitation of the land.

[44] Simon Winchester, Krakatoa, 34 (Harper Perennial 2003).

[45] Thompson, supra note 40, at 33. The first major arrival of slaves came in 1658 with 170 men, women and children.  By 1793, the Company’s records showed that the slave population had risen to 14,747.  Slaves were necessary for van Riebeeck mainly because of the labor needed to establish a presence as the Khoisan had become extremely unwilling to aid the Dutch in any way.  The first wars between the Khoisan and the Dutch broke out soon after the European’s arrival, but the Dutch were heavily advantaged by firearms, smallpox and the well constructed Castle of Good Hope which remains in to this day in downtown Cape Town.

[46] Id. at 35.

[47] Deutsch, supra note 33, at 21.

[48] Reader, supra note 37, at 42.  Batavia was the word for the Dutch East Indies, which is modern day Indonesia.

[49] Id. at 42-3.  The same is true of other European colonizers whose laws were substantially different from the African laws they replaced by force.

[50] Basil Davidson, Africa In History: Themes and Outlines 209 (Simon & Schuster Paperbacks 2005).

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55]Martin Meredith, Diamonds, Gold, and War: The British, The Boers, and the Making of South Africa 1 (Public Affairs 2007).  The British first took the Cape Colony by force in 1795, but the Dutch regained possession under the 1803 Treaty of Amiens only to lose it again in 1806.  Formal British rule was established by negotiations in 1814.  However, the struggle continued for a century eventually leading to the Boer Wars of the late 19th century, fueled in part by the immense mineral resources discovered in the country in the 1870s.  For a more detailed discussion on the political history of these developments see Martin Meredith’s Diamonds, Gold, and War: The British, The Boers, and The Making of South Africa.

[56] Reader, supra note 37, at 461.  Trekboer is the combination of two Afrikaans words, “trek” meaning pull and “boer” meaning farmer.  This is a description for the lifestyle chosen by white pastoralists in the country originating from the “free burghers” who were employees of the Company imported to settle the land.  As part of a cultural movement, the Boers redefined themselves as Afrikaners who were whites of Dutch descent whose native language was Afrikaans.  Afrikaans is a Hottentot language derived from Dutch but was forced upon many others in South Africa through the education system during apartheid.

[57] Meredith, supra note 55, at 2.

[58] Id.

[59] Reader, supra note 37, at 462. At the time the British took control, there was enormous political pressure to solve widespread social unrest due in part to overpopulation and unemployment.  The British decided to expand by measures such as sending convicts to Australia and ultimately thousands of British subjects to the Cape with guarantees of land grants in 100 acre plots.

[60] Meredith, supra note 55, at 45.

[61] Id.

[62] Id. at 45-6.

[63] Reader, supra note 37, at 644.

[64] Id. at 643.

[65] Id. at 490.

[66] Thompson, supra note 40, at 190.

[67] Id.

[68] Id.  These laws destroyed social relationships in the country by banning marriage and sexual relations between racial categories.  When members of the same family were classified into different racial categories it resulted in a destruction of the family.  It also eroded the integrity of the judiciary.  For example, after a court ruled that segregation of public facilities was unlawful if they were not equal, the government just passed a law to overturn the court’s decision.

[69] Id.  With each law came an attempt by the courts to hold them as invalid, but Parliament was determined to create this terrible new world and continually passed laws degrading the power and integrity of the judicial system.

[70] Id. at 243.

[71] Id. at 191.

[72] Thompson, supra note 40, at 192-193.

[73] Id.

[74] Id.

[75] Id. at 194.

[76] Id. at 214.

[77] Id.  The embargo only spurred the apartheid regime to spend more resources on its own domestic weapons industries negating the most severe impact that such an embargo would have normally had.  Also, it was the Organization of African Unity (OAU) and its member states that did far more to actively help South Africans in their struggle, at least compared to the UN, establishing camps for refugees as well as providing education and military training.  However, because they were relatively weak and faced numerous problems of their own, such efforts could only accomplish so much.

[78] Supra note 75.

[79] Thompson, supra note 40, at 194-95.  By 1970, the black population working in manufacturing and construction was earning six times less than their white counterparts.  The actual wages of African workers in mines were less than they had been in 1911 under British rule, earning twenty-one times less than white counterparts.  Townships were also experiencing incredibly high levels of poor nutrition, almost no education, and disease that further exacerbated the misery of lives under apartheid.

[80] Id. at 195.

[81] Id. at 202.

[82] Id.

[83] Id. at 265.

[84] Michael Neocosmos, From ‘Foreign Natives’ to ‘Native Foreigners’ Explaining Xenophobia in Post-apartheid South  Africa: Citizenship and Nationalism, Identity and Politics 91 (Council for the Development of Social Science Research in Africa 2006).

[85] Id. at 125.

[86] Crush, supra note 13, at 6.

[87] Neocosmos, supra note 84, at 125.

[88] Crush, supra note 13, at 20.

[89] Id. at 30.

[90] Neocosmos, supra note 84, at 95. It also raises potential violations of several constitutional provisions, not least of which is the equality clause which reads that “the state may not unfairly discriminate directly or indirectly against anyone” on grounds including “race…ethnic or social origin [or] colour.”

[91] Id. at 95.

[92] South African Migration Project, About SAMP: An Introduction, https://www.queensu.ca/samp/aboutsamp/index.htm (last visited Nov. 26, 2008).

[93] Crush, supra note 13, at 24.

[94] Id.

[95] Id. at 25.

[96] Id.

[97] Id. at 39.  Although this sounds draconian, the wildlife in South Africa often requires electrified fences and they are quite common in rural areas to keep certain animals, seen as pests, from harassing livestock or destroying property. 

[98] Id.

[99] Id. at 37.

[100] Id. at 37.  These scenarios included a foreigner moving into your area, operating a business in your area, sharing a classroom with your children, and becoming a co-worker.

[101] Id.

[102] Id. at 33.

[103] Id. at 31.

[104] Id. at 39.

[105] Id. at 13.

[106] Borrie la Grange , R20m Fund to Help Xenophobia Victims, https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=774257 (last visited Nov. 26, 2008); Tamlyn Stewart, Hall of Hope for the Desperate, https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=774255, (last visited Nov. 26, 2008).

[107] Crush, supra note 13, at 54.

[108] Id. at 17.

[109] Id. at 16.

[110] Id. at 17.  Minister Buthelezi was infamous for xenophobic remarks, for example, at one point suggesting that all Nigerian immigrants are criminals and drug traffickers.

[111] Id. at 17.

[112] Id.

[113] Frantz Fanon, The Wretched of the Earth 126 (Grove Press 2004).

[114] Neocosmos, supra note 84, at 11.

[115] Fanon, supra note 113, at 126-9.

[116] Neocosmos, supra note 84, at 12.

[117] Human Sciences Research Council, Violence and Xenophobia in South Africa: Developing Consensus, Moving to Action, 15, available at https://www.hsrc.ac.za/research/output/outputDocuments/5504_Hadland_ViolenceandxenophobiainSA.pdf.

[118] Jonathan Sacks, The Home We Build Together: Recreating Society 10 (Continuum Books 2007).

[119] Neocosmos, supra note 84, at 90.

[120] Id. at 95.

[121] United States Committee for Refugees and Immigrants (USCRI), World Survey: South Africa, available at https://www.refugees.org/countryreports.aspx?id=1001 (last visited Nov. 26, 2008).

[122] USCRI, World Survey: South Africa, available at https://www.refugees.org/countryreports.aspx?__VIEWSTATE=dDwtOTMxNDcwOTk7O2w8Q291bnRyeUREOkdvQnV0dG9uOz4%2BUwqzZxIYLI0SfZCZue2XtA0UFEQ%3D&cid=2170&subm=&ssm=&map=&searchtext=&CountryDD%3ALocationList= (last visited Nov. 26, 2008).

[123] Id.

[124] Central Intelligence Agency, The World Factbook: South Africa, available at https://www.cia.gov/library/publications/the-world-factbook/print/sf.html (last visited Nov. 26, 2008).

[125] USCRI, World  Survey: United States of America, available at https://www.refugees.org/countryreports.aspx?subm=&ssm=&cid=2177 (last visited Nov. 26, 2008).

[126] Supra note 124

[127] Supra note 124.

[128] Central Intelligence Agency, The World Factbook: United States of America, available at https://www.cia.gov/library/publications/the-world-factbook/print/us.html (last visited Nov. 26, 2008).

[129] S. Afr. Const. (Act 108 of 1996) Section 10. 

[130] Jonathan Crush & Raesibo Mojapelo, Introduction: Immigration Law, Human Rights and the Constitution, available at https://www.queensu.ca/samp/publications/book/intro.htm (last visited Nov. 26, 2008).

[131] Sally Perberdy, A Brief History of South African Immigration Policy, available at https://www.queensu.ca/samp/transform/Peberdy.htm (last visited Nov. 26, 2008).

[132] Id.

[133] Crush, supra note 13, at 18.

[134] Id.

[135] Id.  Section 10 of the Constitution states “everyone has inherent dignity and the right to have their dignity respected and protected” while numerous sections require procedural rights such as fair action in trial or administrative procedures, due process rights, a fair trial, notice of charges and adjudication by an independent tribunal.

[136] Crush, supra note 13, at 20.

[137] Immigration, Xenophobia and Human Rights in South Africa, 9 (Johnathan Crush ed., 2001) available at https://www.queensu.ca/samp/sampresources/samppublications/policyseries/policy22.htm (last visited Nov. 26, 2008).

[138] Crush, supra note 13, at 40.

[139] Id. at 43.

[140] Neocosmos, supra note 84, at 103.

[141] Id. at 103.

[142] Id. at 104.

[143] Id.

[144] Id.

[145] Id.

[146] Id. at 106.

[147] Id. at 107.  The woman was forced into the parking lot to give birth, but was helped by two paramedics.  After giving birth she went to the same hospital and forced to stay there for four days and release with a bill for 26,407 Rand (seven rand is equivalent to about one dollar US).  When the Department of Health’s spokesman was asked about the incident, he said “The general policy is that foreigners have to pay for services rendered because we are protecting resources meant for our citizens.”  

[148] Id. at 4.

[149] Deutsch, supra note 33, at 240.

[150] Id.

[151] Mamphela Ramphele, A Mirror Image of Our Society, available at https://www.opendemocracy.net/article/migrant_voices/mamphela_ramphele (last visited Nov. 26, 2008).

[152] Id.

[153] Loren B. Landau & Veronique Gindrey, Migration and Population Trends in Gauteng Province 1996-2055, 17, available at https://migration.org.za/wp-content/uploads/2008/03/42_LandauGindrey.pdf.

[154] Agence France-Presse, Experts Slam SA Over Immigration Policy, https://www.mg.co.za/article/2008-08-28-experts-slam-sa-over-migration-policy (last visited Nov. 26, 2008).

[155] Supra note 153.

[156] Id.

[157] Id.

[158] Romi Fuller, South Africa: Xenophobia, Crime and Security in SA, available at https://allafrica.com/stories/200809050763.html?page=5 (last visited Nov. 26, 2008).

[159] Top UN Official: S. Africa Risks Losing 2010 World Cup Over Xenophobic Attacks, https://www.mathaba.net/0_index.shtml?x=593882 (last visited Nov. 26, 2008).

[160] Associated Press Sports, FIFA Has 3 Alternate Sites for 2010 World Cup, available at https://nbcsports.msnbc.com/id/25612796/ (last visited Nov. 26, 2008).

[161] Fuller, supra note 158.

[162] Id.

[163] Id.

[164] Fuller, supra note 155, at 6.

[165] Ramphele, supra note 151.

[166] Neocosmos, supra note 84, at 83.

[167] Crush, supra note 13, at 15.

[168] Neocosmos, supra note 84, at 131.

[169] Id.

[170] Ziyad Motala & Cyril Ramaphosa, Constitutional Law: Analysis and Cases 281 (Oxford University Press 2002).

[171] S. Afr. Const. (Act 108 of 1996) Section 167.

[172] Motala, supra note 170.

[173] Id.

[174] Iain Currie & Johan de Waal, The Bill of Rights Handbook 472 (Juta & Company 2005).

[175] Id.

[176] Id. at 473.

[177] Neocosmos, supra note 84, at 131.

[178] Id. at 117.

[179] Id.

[180] Id. at 78-85.

[181] Crush, supra note 13, at 45.

[182] Tamlyn Stewart, Refugees Start Their Own School, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=774167 (last visited Nov. 26, 2008).

[183] Crush, supra note 13, at 53.  Additionally, Section 18 of the Constitution provides “everyone” has the right to peacefully assemble, but Section 19 outlining political rights protects activities like forming a political party, hold public office and voting for “citizens.”  However, such differentiation is typical in constitutions around the world.

[184] Karen Van Rooyen, Displaced People Return to Their Jobs, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=776786 (last visited Nov. 26, 2008).

[185] Borrie la Grange, Court’s Lifeline to Foreigners, https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=777756 (last visited Nov. 26, 2008).  Lawyers for Human Rights, Bishop Paul Verryn of the Johannesburg Central Methodist Church and Medecins Sans Frontieres successfully argued a case before the provincial High Court that stopped the government from forcibly moving 1700 displaced persons to shelters near areas where they feared further attacks.

[186] South African Press Association, Guateng Refugee Battle to Go to Top Court, available at https://www.mg.co.za/article/2008-08-12-gauteng-refugee-battle-to-go-top-court (last visited Nov. 26, 2008).

[187] Sashni Pather & Mazol Molefe, The Displaced Call for the UN’s Help, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=777754 (last visited Nov. 26, 2008).

[188] Justine Gerardy, SA Defies UN On Refugees, available at https://www.capeargus.co.za/index.php?fArticleId=4502639 (last visited Nov. 26, 2008).

[189] Khadija Bradlow, Rights Lawyers-Deportations Unlawful, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=807795 (last visited Nov. 26, 2008).

[190] Ramphele, supra note 151.

[191] Crush, supra note 13, at 43.

[192] Erin Mooney, The Concept of Internal Displacement and the Case for Internally Displaced Persons as a Category of Concern, 24 Refugee Surv. Q. 2005, 15 (2005).

[193] Zachary Lomo, The Struggle for Protection of the Rights of Refugees and IDPs in Africa: Making the Existing International Legal Regime Work, Berkeley J. Int’l L. 268, 276 (2000).

[194] Id. at 277.

[195] Id. at 282.

[196] Sarah Hager, Zimbabwe: Why the United Nations, State, and Non-State Actors Failed to Effectively Regulate Mugabe’s Policy of Internal Displacement, Cal. W. Int’l L.J. 221, 248 (2007).

[197] Id. at 238.

[198] Id.

[199] George B.N. Ayittey, Africa Unchained: The Blueprint for Africa’s Future 44 (Palgrave Macmillan 2005).

[200] Hager, supra note 196, at 242.

[201] Id. at 244.

[202] Id.

[203] Id.

[204] Id. at 259.  China has been looking all over Africa for investment opportunities as well as a source for natural resources to fuel their ever growing economy.  China has taking a position that the ends will justify the means, not caring what government they support in order to increase wealth or gain access to valuable minerals, oil, or other natural resources needed for development.

[205] Id. at 245. 

[206] Id. at 247.

[207] Id.

[208] Id. at 249.

[209] Id. at 247.

[210] Id. at 248.

[211] Id. at 249.

[212] Id. at 232.

[213] Crush, supra note 13, at 52.  This was the first time the army had been called out to deal with a domestic matter since the end of apartheid, and perhaps the images of white SADF members firing upon black mobs opened too many old wounds from the days of apartheid for an earlier decision.

[214] Florence Panoussian, Absent Mbeki Criticised Over Violence, available at https://www.mg.co.za/article/2008-05-25-absent-mbeki-criticised-over-violence (last visited Nov. 26, 2008).

[215] The Presidency: Republic of South Africa, Statement by President Thabo Mbeki Regarding Attacks on Foreign Nationals, available at https://www.thepresidency.gov.za/show.asp?type=pr&include=president/pr/2008/pr05192059.htm&ID=1275 (last visited Nov. 26, 2008).

[216] Crush, supra note 13, at 53.

[217] Kevin Kane, Bishop Answers Refugee Prayers, available at https://scotlandonsunday.scotsman.com/world/Bishop-answers-refugee-prayers.4118455.jp#Verryn (last visited Nov. 26, 2008).

[218] South African Press Association, ANC Must ‘Recall’ Mbeki: SACP, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=777007 (last visited Nov. 26, 2008).

[219] Id.

[220] South Africa President Steps Down, available at https://news.bbc.co.uk/2/hi/africa/7627957.stm (last visited Nov. 26, 2008).

[221] ANC In Talks Over Mbeki’s Future, available at https://news.bbc.co.uk/2/hi/africa/7626417.stm (last visited Nov. 26, 2008).

[222] Timeline: Zuma’s Legal Problems, available at https://news.bbc.co.uk/2/hi/africa/7153378.stm (last visited Nov. 26, 2008).  In 2005, his close associate Schabir Shaik was convicted of fraud over an arms deal costing several billion dollars.  In that case, the judge said that there was “a mutually beneficial symbiosis” and that Zuma received payments from Shaik.  This led President Mbeki to fire Zuma as the Deputy President of the country, and a few months later Zuma was charged with raping the HIV positive daughter of a family friend.  At the rape trial, Zuma denied the charges and was ultimately acquitted.  However, he came under intense criticism for his testimony at the trial for statements including: he knew that the accused wanted to have sex with him because of what she was wearing, that it was against his Zulu culture to refuse a woman sex and that he did not wear a condom, but took a hot shower afterwards to protect himself from getting an HIV infection.  During this trial, he was also the head of South Africa’s AIDS council, but he managed to be reinstated by the ANC and defeated Mbeki for the ANC presidency.  After prolonged legal battles, a court eventually ruled that the prosecution against Zuma was invalid but stressed it had “no bearing on Mr. Zuma’s guilt or otherwise.”  This brings us up to the current day.

[223] Country Profile: South Africa, available at https://news.bbc.co.uk/2/hi/africa/country_profiles/1071886.stm (last visited Nov. 26, 2008).

[224] Profile: Jacob Zuma, available at https://news.bbc.co.uk/2/hi/africa/4615019.stm (last visited Nov. 26, 2008).

[225] Supra note 220.  The ANC is the dominant political party in the country winning well over sixty percent of votes in every election since 1994.  Usually, the ANC picks the president of the country from its leadership.

[226] Supra note 222.

[227] Chris Makhaye, We’ll Kill Too – Vavi, Weekend Argus, June 22, 2008, at 1.  Zuma defended Malema’s statement saying that the youth wing of the party had a history of being militant.  A week later, another important political leader, Zwelinzima Vavi, stood up at a funeral and said the same thing which was cheered by the audience.  Malema refused to apologize saying “we remain unshaken and we will not retreat” going on to say that when the time comes that he will be prepared “to pay the highest price” to see Zuma in office and urged other youth to do the same.

[228] Xolani Mbanjwa, Politics: Umshini Isn’t A Song To Kill, available at https://www.int.iol.co.za/index.php?set_id=1&click_id=6&art_id=vn20080519055011398C263403 (last visited Nov. 26, 2008).  “Awuleth’ umsani wani” is an old ANC paramilitary struggle song that translates as “Bring me my machine gun,” and was used as a kind of anthem but was adopted by Zuma.  His supporters also sang it in front of the court house during his rape trial, but he did not similarly reprimand them for its use there.

[229] Id.

[230] Id.

[231] Nick Ericsson, Profile: Mosiuoa Lekota, available at https://news.bbc.co.uk/2/hi/africa/7706366.stm (last visited Nov. 26, 2008).

[232] Id.

[233] Deon de Lange, Police Lay Down Law On Political Violence, available at https://www.capeargus.co.za/index.php?fArticleId=4684004 (last visited Nov. 26, 2008).

[234] Martin Plaut, S Africa’s ANC on Bring of Split, available at https://news.bbc.co.uk/2/hi/africa/7695492.stm (last visited Nov. 26, 2008).

[235] Id.

[236] Sacks, supra note 118, at 47.

[237] Ramphele, supra note 151.

[238] Pearlie Joubert, Warren Foster & Thembelilhle Tshabalala, Finally, SA Govt Moves Into Action,  available at https://www.mg.co.za/article/2008-05-30-finally-the-sa-govt-moves-into-action (last visited Nov. 26, 2008).

[239] Id.

[240] Crush, supra note 13, at 54.

[241] South African Press Association, Cape Town Relocated Xenophobia Refugees, available at https://www.mg.co.za/article/2008-09-07-cape-town-relocates-xenophobia-refugees (last visited Nov. 26, 2008).

[242] Supra note 240.

[243] South Africa: Foreigners Still Beware, available at https://allafrica.com/stories/200811211065.html (last visited Nov. 26, 2008).

[244] Id.

[245] Id.

[246] Yazeed Kamaldien, Violent Reception for Refugees, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=810191 (last visited Nov. 26, 2008).

[247] Cape Argus, South Africa: 50 ANC MPs to Defect, available at https://allafrica.com/stories/200810190004.html (last visited Nov. 26, 2008).

[248] Nick Ericsson, Sting in the Tail for SA Scorpions?, available at https://news.bbc.co.uk/2/hi/africa/7220409.stm (last visited Nov. 26, 2008).

[249] Id.

[250] Supra note 248.  It was the Scorpions who investigated Zuma’s close associate Shaik which led to the some of the problems discussed supra note 222.

[251] Basildon Peta, South Africa: Minister Slams Treatment of Refugees By Cops, available at https://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20051006070819415C991259 (last visited Nov. 26, 2008).

[252] Id.

[253] Supra note 189.

[254] Pearlie Joubert, NAFCOC Calls for Somali Purge, available at https://www.mg.co.za/article/2008-09-05-nafcoc-calls-for-somali-purge (last visited Nov. 26, 2008).

[255] Id.

[256] South African Press Association, Beware Holocaust Mentality: Tutu, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=788135 (last visited Nov. 26, 2008).

[257] Jenni O’Grady, ‘Progress’ on Gauteng Refugee Shelters, available at https://www.mg.co.za/article/2008-08-22-progress-on-gauteng-refugee-shelters (last visited Nov. 26, 2008).

[258] Ramphele, supra note 151.

[259] S. Afr. Const. (Act 108 of 1996) Section 9.

[260] Id.

[261] Motala, supra note 170, at 252-76.  There is a lengthy, multiple step process developed by the Constitutional Court to determine “unfair discrimination” (which precludes full discussion in this context).  However, in cases of xenophobia, those targeted would fall under the category of discrimination based on a “non-listed ground” (which means that it is a human characteristic such as race that is not explicitly in Section 9).  The Court will hold an act or law as unfair discrimination for a non-listed ground after determining if the group has been disadvantaged, the effect of the power exercised and whether human dignity is impaired.

[262] Jenni O’Grady, Xenophobia Shelters Case Postponed in Court, available at https://www.mg.co.za/article/2008-09-16-xenophobia-shelters-case-postponed-in-court (last visited Nov. 26, 2008).

[263] South African Press Association, More than 420 Xenophobia Cases Pending, available at https://www.mg.co.za/article/2008-08-25-more-than-420-xenophobia-cases-pending (last visited Nov. 26, 2008).

[264] Crush, supra note 13, at 8.

[265] Id.

[266] Deutsch, supra note 33, at 86.

[267] Supra note 261.

[268] Id. at 9.

[269] Id. at 9, 19.

[270] Supra note 248.

[271] Supra note 233.

[272] Motala, supra note 170, at 411.

[273] Id. at 413.  These powers include investigations, reporting, researching, and educating the country’s institutions and population on any matters within its purview.

[274] Id.

[275] Deutsch, supra note 33, at 405.

[276] Deutsch, supra note 33, at 419.

[277] Sacks, supra note 118, at 94.

[278] Id. at 123.

[279] The Hindu, The Different Shades of Hate, available at https://hindu.com./thehindu/2001/09/09/stories/05091344.htm (last visited Nov. 26, 2008).

[280] Id.

[281] Id.

[282] Integrated Regional Information Networks, Zimbabweans Fear for Their Lives After Attacks, available at https://www.irinnews.org/report.aspx?reportid=27874 (last visited Nov. 26, 2008).

[283] Id.

[284] Id.

[285] Id.

[286] Id.

[287] Id.

[288] Id.

[289] Id.

[290] William Shakespeare, Richard III 69 (Forgotten Books 1965).

[291] South African Press Association, Mandela Calls for ‘Social Cohesion,’ available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=785548 (last visited Nov. 26, 2008).

[292] Id.

[293] Ramphele, supra note 151.

Birdsong’s refugee law student,  Mark Hopson, had the chance to work and travel in South Africa last summer.  During that summer there were many attacks by South Africans on refugee peoples who had  sought  a safe haven in South Africa.  Many were killed.  Based on his travels and his research Mr. Hopson has written an outstanding paper concerning South African problems and the xenophobic attacks that occured in South Africa.  Read and learn!

The Shadow People: How the Xenophobic Attacks in South Africa Demonstrate the Nightmare of Internally Displaced People and What Can Be Done

Mark Christopher Hopson*

“The world is not thy friend nor the world’s law.”

William Shakespeare, Romeo & Juliet, Act V, Scene 1

 I.                   The Heart of the Matter

A.     Introduction

“They are burning people down there.”[1]  Police officers rushed to the scene and soon found two men burning alive.[2]  One of the men was on his knees covered in a burning mattress.[3]  His scorched body was lying next to a concrete pillar covered in blood, making the rescuers “imagine what was done to him before he was set alight.”[4]  Imagination would not be necessary, as the country would see this kind of violence continue for weeks.  This scene was only one of many gruesome moments in what the media dubbed the “xenophobic attacks” of May 2008.[5] 

The attacks began in Alexandra, a township just north of the country’s most populous city of Johannesburg, and quickly spread from there.[6]  Organized mobs targeted black Africans from other countries such as Mozambique, Malawi, Somalia, and Zimbabwe (especially Zimbabwe).[7]  Attackers said their actions were justified because they believed that foreigners were “taking local jobs and contributing to crime” in the country.[8]  By the time the attackers were done, over sixty people had been brutally murdered, including twenty-one South Africans who were mistaken as foreigners.[9]  Hundreds were injured, and tens of thousands were displaced as the country saw the worst “bloodshed…since the end of apartheid.”[10] 

B.      Thesis   

In William Shakespeare’s The Tempest, the playwright wrote, “What’s past is prologue.”[11]  If anything, these recent attacks show that “those who cannot learn from history are doomed to repeat it.”[12]  These attacks did not spring up out of nowhere.  Instead, they were “a decade or more in the making and many forecasters were predicting just such an outcome.”[13] 

When such events occur, the question inevitably arises as to the duties and responsibilities of international actors.  The legal status of those affected was mixed, some were South African citizens, some were refugees or asylum seekers, some were permanent residents, and some were in the country illegally, but they all shared the common link of being seen as different.[14]  What happened in South Africa falls directly within the definition contained in the United Nations Guiding Principles on Internal Displacement:

persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.[15]

 

It has been ten years since the Guiding Principles on Internal Displacement were completed, but “there is [still] no international legal instrument” for defining, protecting and assisting the internally displaced.[16]  Despite the fact that the Guiding Principles simply “restate the existing norms of human rights and humanitarian law,” many have focused on solving the problem by filling this legal gap.[17]  Richard C. Holbrooke, a former U.S. Representative to the United Nations, stated, “[we have] to deal honestly with the fact that over two-thirds of the people in the world who are homeless…are classified as something called – IDPs, a terrible acronym.”[18]  The former ambassador went on to say, “We cannot let this entire category of innocent victims fall through our bureaucratic cracks.”[19]

As of 2007, the International Displacement Monitoring Centre estimates that at least 26 million have fallen through the cracks.[20]  Africa is the most affected continent of the world with over twelve million people internally displaced in nineteen countries.[21]  The UNHCR’s own figures are derived from the IDMC’s numbers, but more importantly, show that the number of refugees in the same year was only sixteen million.[22]  This shows that the world is dramatically different from when the controlling institutions and legal instruments were created by international bodies at the end of World War II.[23]

South Africa now faces two distinct challenges that it must solve on its own.  The first challenge is to effect a positive change in the attitudes and perceptions of native South Africans towards those perceived as “invaders.”  So far, leaders have exacerbated the problem by their own words and action rather than champion such change.  The second challenge is bringing current domestic laws and policies into accordance with the requirements of South Africa’s constitution and existing international law.

It is axiomatic that “conflict and displacement in one country could disrupt national stability and also create political and economic turmoil throughout geographic regions.”[24]  Therefore, it is in the best interests of the global community that such situations are prevented or that their effects are mitigated to the greatest extent possible should they occur.  However, international efforts to create a binding law for the internally displaced are counterproductive, resulting in a waste of both time and resources, and without the political will to implement and enforce such a law.

C.     Roadmap          

Jeremy Levitt has proposed a three pronged approach of conflict prevention, management, and resolution “as separate but interdependent components and processes of a comprehensive…system…[that] African states and regional actors must institute to provide ample protection to displaced persons.”[25]  Levitt’s model shifts the focus from the international theater to a regional one, emphasizing that “peace must be internally driven.”[26]  Levitt identifies the current legal protections for vulnerable populations as focusing around “three internationally recognized regimes” consisting of numerous “human rights law…humanitarian law…[and] refugee law.”[27]  However, the “events of the last decade” make it clear that “the rest of the world is not proactively concerned” with the problems of the continent.[28]  Therefore, “Africans must…take it upon themselves to proffer African solutions for African problems.”[29]

South Africa is the “regional powerhouse,” and so it is highly doubtful that Levitt’s exact model could prove effective.[30]  Additionally, Levitt notes that “every conflict is unique,” and so conflict resolution strategies must be tailor crafted to each situation as it arises.[31]  The major source of the attacks was xenophobia, which is a “fear and hatred of strangers or foreigners or of anything that is strange or foreign.”[32]  Xenophobia and the discrimination that is caused by it are best understood as a type of structural violence.[33]  Structural violence is “gradual, imperceptible, and diffused in society as the way things are done, as a matter of whose voice is systemically heard or ignored, and who gets particular resources.”[34]

This kind of conflict “is often hidden, chronic, and institutionalized” making it extremely difficult to change.[35]  Effective conflict resolution must be based on “systemic change” that, in this case, will have to correct the two aforementioned challenges facing the country, namely negative perceptions and discriminatory policy.[36]  The first section of this argument will survey the history of South Africa from the arrival of the first colonizers, the Dutch and the English, to the end of the apartheid regime.  The second section covers the current psychology of South Africans regarding foreigners, both in the general population as well as the political leadership, and the justifications provided for it.  The third section explores how this widespread negative perception of foreigners has resulted in outright discrimination in both law and practice.  The fourth section explores domestic and international avenues for change, and the final section concludes with policy recommendations going forward.

II.                Country of My Skull

A.     The Empire’s Arrival

What is past is prologue, and it is there that any informed discussion on

xenophobia in South Africa must begin.  The earliest known inhabitants of southern tip of the continent were the Khoisan people.[37]  They are a traditional pastoralist society that archaeological evidence places in South Africa back to the first century anno domini.[38]  However, like so many other tribes in Africa, the Khoisan would soon become another people conquered by its continental neighbor’s imperial ambitions.[39]

The first Western Europeans to sail past the Cape of Good Hope were the great Portuguese explorers Bartholomeu Dias and Vasco da Gama in the late 15th century.[40]  However, Portugal’s colonial ambitions focused more on the eastern coast of Africa in places such as modern day Zimbabwe and Mozambique.[41]  The pivotal moment in South Africa’s history came in 1649, when Jan van Riebeeck landed on the coast with eighty employees of the Dutch East India Company.[42]  The Dutch had decided to establish a fort in the Cape, an area in the southwestern region of the country, to supply the Dutch East India Company’s fleet on its way to the riches further east.[43]

            The Company funded and managed the entire Dutch empire whose center was in Java, far from Africa.[44]  Nevertheless, the Dutch found that the limited role they envisioned for Table Bay quickly expanded through the typical imperial enterprises of slavery and land grabbing.[45]  Modern South Africa’s remarkably complex racial and social structure began to take shape from the Dutch importing populations from the empire’s holdings around the globe.[46]  However, diversity within a society, in and of itself, does not always equate to conflict.  Instead, social conflict was engendered by the main vector of structural violence in South Africa, unequal treatment under the law. 

Unequal treatment under law is generally achieved in a two step process.  First the law differentiates people, creating a vertical hierarchy where privileges and deprivation become entrenched.  Second, this split forces people into positions where competition, rather than cooperation, becomes endemic.  Establishing competitive approaches within a society regularly result in “a destructive course” for everyone involved.[47]  One of the clearest examples of this cycle playing out is the practice of slavery. 

Dutch law in South Africa was a hybrid of the statutes of Batavia and Roman-Dutch law from Holland.[48]  The Dutch laws divested slaves to the position where they “were unable to marry…unable to make legal contracts, acquire property or leave wills…and could be sold or bequeathed at will.”[49]  African societies had practiced slavery long before the arrival of the Europeans, but it was completely different because the slave did not lose these major rights.[50]  African slaves “were seldom or never mere chattels, persons without rights or hope of emancipation.”[51]  Instead, “household slaves lived with their masters, often as members of the family…they could work themselves free of their obligations…[and even] marry their masters’ daughters.”[52]  Before the arrival of the Europeans, slaves across Africa could often “become traders, leading men in peace and war, governors…even kings.”[53]  Such destinies were entirely closed by European laws, which divided people and forced them into conflict.[54]

The British Empire took possession of the Cape Colony in 1806, but it did nothing to improve the situation.[55]  For example, in order to quell years of violence between the trekboers and the Xhosa people in the eastern frontier, the British decided on a policy of separating the groups and importing more Europeans.[56]  The British continually gave twisted rationalizations for their policies, insisting that they were “civilized.”[57]  One of the colony’s governors wrote in a report to London, “I am happy to add that in the course of this service there has not been shed more Kaffir blood than would seem necessary to impress on the minds of these savages a proper degree of terror and respect.”[58]  The “service” employed by the British consisted of military campaigns to push black tribes, such as the Xhosa, from their lands to make more room for white settlers.[59]

Following the discovery of diamonds and gold in the middle of the 19th century, the British created a new “regime for labour contracts, linking it to a system of pass laws that became the main device for controlling black labour throughout southern Africa” (after being pressured by white miners who were threatened by an abundant supply of cheap labor).[60]  These pass laws labeled black workers as “servants” who were required to register and carry a pass at all times signed by their employer, called the “master,” under penalty of fines, imprisonment, or flogging.[61] 

In a startling case of foreshadowing, the British “saw fit to distinguish between civilized and uncivilized blacks,” the former being “natives, half-castes, and others…who are honest, intelligent and respectable men…[who] must be treated in every way similar to the whites.”  The latter, “uncivilized blacks” were seen as “the great mass of the labouring coloured population” that consisted of “raw Kaffirs, who come from the interior with every element of barbarism…[and] must be treated as children incapable of governing themselves.”[62]  The racial animosity of colonial rule was nothing compared to what was yet to come.

B.      The Scourge of Apartheid

The word apartheid is Afrikaans for “apartness.”[63]  Apartheid laws were a radical expansion of the inherently unequal laws imposed by the former colonial powers.    In 1910, South Africa gained limited independence from British rule, the first country in Africa to do so, and the first apartheid laws were enacted in the 1940s.[64]  Credit for the creation of apartheid goes to Hendrick Verwoed, an Afrikaaner who is known to this day as the “architect of apartheid.”[65]  Under the new republic, the population was divided into one of four racial groups “White, Coloured, Indian, and African.”[66]  Whites, considered the “civilized race,” were “entitled to have absolute control over the state,” and their “interests should prevail over [all] black interests.”[67]

The history of the apartheid regime is well documented, and to discuss it fully is beyond the scope of this article.  However, a few of the developments under apartheid are pertinent to the issue of xenophobia.  The first laws emphasized difference as fundamental and inherently corrosive.  The Prohibition of the Mixed Marriages Act, the Immorality Act, and the Population Registration Act mandated that every person be classified into a racial category and contact between them was outlawed (resulting in countless acts of inhumanity).[68]  This was followed by the elimination of voting rights for the Coloured and African categories.[69]  The government’s divide and conquer strategy allowed the white minority to hold complete power for almost a half century.[70]

            Over the next several decades, the apartheid government created “homelands” to further disenfranchise black Africans by forcing them into ten different territories based on completely artificial boundaries.[71]  In addition, the homelands program created “economic incentives,” in reality an economic necessity, for non-white South Africans to become migrant laborers.[72]  This system was governed by the most restrictive pass laws the country had ever seen.[73]  Under the apartheid pass laws, people lost every conceivable element of freedom and dignity.[74] 

The Group Areas Act “divided urban areas into zones where members of one specified race alone could live and work.”[75]  The domestic situation had become so bad in South Africa that it spurred the General Assembly of the United Nations to pass “annual resolutions condemning apartheid,” eventually declaring it a “crime against humanity” in 1973.[76]  While it was certainly a step forward, these new resolutions did little to actually end the system, and the arms embargo following Steven Biko’s death had a much greater effect than such pronouncements.[77]

Between 1960 and 1983, a study estimated that 3,548,900 people were forcibly removed through the Group Areas Home Act.[78]  These removals resulted in massive “townships” springing up around major cities where people lived in soul crushing conditions.[79]  By 1977, apartheid had resulted in a twenty-six percent unemployment rate amongst those in the African racial category.[80]  By 1980, a World Bank survey of ninety countries showed South Africa had the most “inequitable distribution of income.”[81]  The “top [ten] percent of the population” received “[fifty-eight] percent of the national income,” while the “lowest [forty] percent received [six] percent.”[82]  When the “euphoria that marked the election and inauguration [of Nelson Mandela] died down,” it became overwhelmingly apparent that the “cumulative effects of colonialism, apartheid, and urbanization” created an enormous set of challenges to overcome.[83]

C.     The Rainbow Nation is Born

No discussion of the xenophobic attacks can begin without acknowledging the historical context.  After apartheid’s demise, some South Africans incorrectly assumed that “non-racial” policies “cannot be…oppressive and undemocratic at the same time.”[84]  Believing this to be true, many in the current “ruling party” have used any excuse possible, including history, to argue that xenophobia is not their responsibility and “quite impossible to control.”[85]  Although “the rise of xenophobia…cannot be isolated from the country’s apartheid past of racial class division and animosity,” it exists today because of a fatal trifecta consisting of “racist immigration policies, a siege mentality and attitudes of uniqueness and superiority towards the rest of Africa.”[86]  The result being that “the extreme power of state officials over the weak, whether actually foreign or not, has been…a mere continuation of a pass-like system” from the country’s history.[87] 

Ironically, “white immigrants” do not seem to instill the same kind of “panic and hostility” from South Africans as black immigrants from neighboring countries.[88]  Research shows that white foreigners from “Europe and North America” receive the “most favourable ratings” from South Africans, but it also shows how xenophobia is really racism in another name.[89]  This preference becomes unfair discrimination when the government deports only forty-nine out of the “26,000 [mostly white foreigners]…from Germany, Britain and the United States [who had] overstayed their visit.”[90]  These kinds of incidents led one researcher to conclude that “racism is a key feature of South Africa’s immigration legislation and practice…despite the country’s transition to democracy and equality.”[91]  Besides raising several potential violations of South Africa’s constitution, it also raises serious questions about the motivation and goals of the government.

III.             The Fearful Void

A.     The Popular Opinion

Since 1996, the Southern African Migration Project, SAMP, has been conducting

research on migration issues in South Africa.[92]  Beginning in 1994, SAMP’s research has shown a “hardening of [negative] attitudes” amongst South Africans towards other black Africans.[93]  Between 1995 and 1999, there was an increase of people wanting “strict limits or a total prohibition on immigration” from sixty-five percent to seventy-eight percent.[94]  By 2006, seventy-four percent of South Africans supported “a policy of deporting anyone who is not contributing economically to South Africa.”[95]  Around sixty percent would support deportation solely because a foreigner “test[s] positive for HIV” or has AIDS.[96]  In 1999, sixty-six percent of South Africans wanted their borders to be electrified, but by 2006 that number had risen to seventy-six percent.[97]  This survey research shows that “xenophobic attitudes are deeply-rooted, wide-spread and as entrenched as ever.”[98]

Although this data paints a terrible picture of the average South African, the same study also shows some positive indicators.  First, between the years of 1997 and 2006, the number of respondents who rated the “likelihood of [taking] action against migrants from other…countries” has actually decreased despite the recent attacks.[99]  South African respondents were given a number of different situations and asked if they would actively try to prevent them from occurring.[100]  Out of those who would take action, only sixteen percent were prepared to “combine with others to force foreign nationals to leave their area.”[101] 

Second, the “economic threat posed by immigrants does not appear to be based on personal experience.”[102]  Instead, negative attitudes are formed “in a vacuum, relying mainly on hearsay and media,” meaning that the xenophobia that does exist is the result of “second-hand misinformation.”[103]  This also shows why statements from political leaders are so important, and why they must change in order to eliminate a major source of this structural violence.[104] 

Third, and perhaps most importantly, even though the attacks were widespread, not every “poor [area]…erupted with similar ferocity.”[105]  While some South Africans were attacking people in the streets, others were helping the displaced in any way they could.[106]  There was also strong and widespread condemnation of the attacks by many South Africans, culminating in a “Day of Remembrance” on the third of July.[107]

B.      View from the Top

Politicians and government officials from almost every department and every level have a long record of making disparaging remarks and negative characterizations of black Africans from neighboring countries.[108]  In 1994, the Home Affairs Minister Buthelezi, the department now responsible for helping survivors of the attacks, “drew direct links between migrants and crime” claming that “Mafia-style” foreigners were to blame for “‘drug-trafficking, prostitution and money-laundering.’”[109]  In 1997, the Defence Minister Moise said, “The army is helping the police get rid of crime and violence in the country…However, what can we do?  We have one million illegal immigrants…who commit crimes.”[110]  Even Nelson Mandela hopped on the band wagon, at one speech referring to “threats posed by illegal immigrants, [such as] gun running and drug smuggling.”[111]  All of these examples point towards, what can generously be described as, a “larger political climate in South Africa, which placed high value on restricting access…and limiting immigration.”[112]

Frantz Fanon explained that this shift of perception in both the general populace and government officials towards other Africans was commonplace across the continent.[113] During the “liberation struggle” against colonial powers, “every individual living in Algeria is an Algerian” meaning that Africans shared an inclusive conceptualization of citizenship.[114]  Upon gaining independence, the idea of Pan-Africanism died, and citizenship became exclusionary in nature.[115]  This shift was the most severe in South Africa where citizenship, as well as the rights and privileges that accompany it, changed to a “notion of indigeneity [sic]” rather than common purpose.[116]  This “South African superiority complex in relation to other Africans” was cited by the Human Sciences Research Council as one of the major factors behind the xenophobic attacks.[117]

 

  

C.     The Fortress View

When membership in a society is based on a standard of nativism, it leads to a destruction of the “collective freedom [that] honours the human person and gives each of society’s members maximal respect.”[118]  It results in a “fortress” approach to immigration that can be made using just refugee statistics.[119]  The fortress argument states that “poverty is high in South Africa and unemployment has been growing,” so the government “must look after our own first,” and besides, it would be disastrous to ‘open the flood gates’ allowing the poverty of Africa to overwhelm the economy.”[120]  

According to the USCRI, South Africa had 28,000 refugees in 1998.[121]  By 2008, that number had grown to over 144,000 refugees and asylum seekers within the country.[122]  The majority came from Zimbabwe, and on average the government deported “about 10,000 Zimbabweans per month for illegal entry.”[123]  South Africa’s total population is roughly 48.7 million people.[124]  The USCRI estimates that there are about 147,000 refugees in the United States, roughly the same as South Africa, but the total population of the United States is well over 300 million people.[125]  Proportionately, the number of just refugees in South Africa compared to the total population would be the equivalent of over nine and a half million refugees being in the United States.

            In 2007, South Africa’s gross domestic product, GDP, was roughly 282 billion dollars US with a per capita of 9,700 dollars US.[126]  South Africa’s unemployment rate is 24.6 percent.[127]  Compare this with the United States, whose GDP in 2007 was almost 14 billion dollars US, a per capita of almost 46,000 dollars US, and an unemployment rate of 4.6 percent.[128]  At first glance, these figures seem to provide some justification for a fortress policy.  However, it is relatively simple to refute the policy both legally and substantively.

IV.              Things Fall Apart

A.     In the Law

Rather than live up to the promise of its constitution, which states that “everyone has inherent dignity and the right to have their dignity respected and protected,” South African immigration law has continued to scapegoat foreigners as both the cause of social problems and an economic threat.[129]  First, there was the Aliens Control Act of 1991, described as “apartheid’s last act.”[130]  The 1991 Act was the consolidation of previous laws that explicitly “distinguished between white immigrants and black migrants.”[131]  It also “entrenched the existence of a secretive and non-accountable Immigrants Selection Board and removed the right to appeal to a board.”[132]

This law created, the Orwellian named, “Aliens Control Units” who were “let loose on the street and workplaces.”[133]  These Aliens Control Units “swept through townships; arresting people at random” using “racial stereotypes” to determine their targets.[134]  The government units rounded “them up like convicts” and sent foreigners to “holding centres like the notorious Lindela” to the extent that over “1 million people were rounded up…and deported with no due process.”[135]  However, this law remained the primary instrument for years, and no serious reform movement has been undertaken by the government to create a system that comports with the ideals and requirements of the Constitution.[136]

In 1999, the Minister of Home Affairs offered a new immigration bill that not only failed to make any “fundamental change to the current policing system,” but radically expanded enforcement powers.[137]  In the 2002 Immigration Act, provisions were included stating that xenophobia must be “prevented and countered both within Government and civil society.”[138]  However, policy experts in South Africa argue that the framework of the new act is still “incoherent” and “in many respects, unimplemented.”[139]

B.      In the Streets

Regardless of what the controlling law was at the time, the overall experience of “contact…with state authorities” has been “systematic xenophobia, particularly from the police and Home Affairs officials.”[140]  This systematic xenophobia manifests in the “arbitrary exercise of power, corruption, extortion, and gratuitous violence and torture.”[141]  In a terrible irony, police rely on “apartheid-type” practices such as “the colour of the skin and darker features” or “language checks and inoculation marks.”[142]  Also typical of the apartheid era, the police regularly engage in “the practice of tearing up or otherwise removing official documents” after having demanded their production from suspected foreigners (there is no law in South Africa requiring identification documents be carried).[143]

Extortion is also “extremely widespread among apprehending officers.”[144]  Bribes are used “to secure…release from the custody of apprehending officers,” but authorities will also use the threat of transfers to detention centers in order to extort money.[145]  In September of 2005, “policemen were caught on video extorting funds from friends and relatives for the release of foreigners who had not been convicted of any crime…and some of whom had been unlawfully arrested.”[146]  It seems that such behavior can manifest in any civil institution, even hospitals.  A few months after the videotaped extortion from police, an “asylum seeker” from the DRC “was turned away at the Johannesburg General Hospital as she was about to give birth” because she did not have any money.[147]

V.                 Long Walk to Freedom

A.     Fallacy of the Fortress

No matter what argument is made in favor of “fortress” policies, they all share the same “speculative nature” and flawed “assumptions.”[148]  This prevalent xenophobic attitude is fueled by fundamental attribution error, whereby the behavior of some foreigners has been misattributed to all because of the mere fact that they are foreigners.[149]  Fundamental attribution theory shows “we tend to err toward attributing other people’s behavior to disposition,” whereas we ascribe our own behavior to external “circumstances” beyond our control (negating any person responsibility for ourselves but setting a high standard for others).[150]  Dr. Mamphela Ramphele provided one of the clearest counter arguments to such policies right after the attacks first began.[151]  As a former managing director of the World Bank, she argued that “successful countries everywhere recruit skills globally.”[152]  This is especially true “given the time taken to train South Africans and high rates of migration out of South Africa” making “international migration…the only viable mechanism to provide much needed skills to business.”[153]

According to a study conducted in 2006, 14% of the Johannesburg’s population, or around half a million people, were foreigners; sixty percent of whom “make a positive contribution” to the South African economy, but report “experience[s] of negative treatment” from their fellow city dwellers.[154]  The idea that outsiders “take jobs” from South Africans is a myth, as research has shown that foreigners were “more than twice as likely to be self-employed,” and those who start their own businesses actually created more jobs by hiring others.[155]  The majority of foreign business owners “are operating the only shops in Township areas” which lowers “the costs of acquiring food and other necessities for people living in those areas.”[156]  Research shows that “families spend more for food” after “migrants have been displaced by threats or actual violence,” and “the distance traveled to secure commodities also puts people, often women, at risk of robbery or assault.”[157]  By attacking black Africans, the angry mobs have ultimately hurt themselves and been a cause of the problems they used to justify their actions.

South Africa vigorously lobbied to host the 2010 World Cup, which would bring in a huge number of foreign tourists, mostly from African nations, in order to reap the benefits of a huge “economic boom…[for] the region in terms of direct revenue and spin-off tourism.”[158]  This was all thrown into jeopardy because of the attacks, and an official warned that “if the scenes did repeat themselves, FIFA, [the world’s governing body for football] would rethink its decision in favour of South Africa and, if necessary, pull the plug.”[159]  A month after the attacks, “FIFA president Sepp Blatter” gave the government a warning by announcing that he had “spoken to three countries about hosting the 2010 World Cup” should the organization decide that South Africa was unable to host.[160]

The only saving grace for South Africa is that the attacks “had very little impact on…preparations…in terms of infrastructure, transport systems, planning and organization.”[161]  Also, because the attackers were targeting black Africans who lived in townships, the “central business and tourism areas where visitors would be staying” remained relatively safe.[162]  However, there is no doubt that the attacks were a major blow to the “enthusiasm of fans to travel to the World Cup” and could still affect the outcome.[163]  The World Cup could trigger new attacks if foreigners are seen as “flooding into South Africa expecting to share in the economic benefits.”[164]  Regardless of the contribution that foreigners make to the economy, Ramphele declared that the “government has failed to establish a policy framework that translates…[South Africa’s] human rights obligations under…[the]…national constitution to protect and promote the rights of all people.”[165]

B.      The Role of the Constitution

            Even though “debates on citizenship in South Africa…were overwhelmingly taking place within the confines of state institutions,” those bodies are controlled by the constitution.[166]  It is the supreme law of the land and represents the culmination of decades of struggle, and to not live up to its tenets is a betrayal of the sacrifices and misery that was suffered to see it created.  Because it has, “perhaps the most liberal and human-rights based Constitution in the world,” it is surprising that such conduct by some spheres of government has continued for so long.[167]

There has been concern over what the courts can actually do because of a distinction “in law between citizens and foreigners.”[168]  It is true that numerous sections of the constitution reserve certain rights and privileges solely for “South African citizens.”[169]  Additionally, there is a “strong tendency for the Constitutional Court” to defer to the legislature on any policy matters “based on social and economic conditions.”[170]  However, a non-citizen can still effectuate change using the judiciary. 

Section 167 of the Constitution grants the power to any “person,” rather than only citizens, to “bring a matter directly to the Constitutional Court; or…appeal directly” to it when constitutional issues are raised.[171]  Generally, the Constitutional Court is reluctant to adopt an interpretation of constitutional clauses that would cause “courts to sit in judgment on what are essentially political decisions.”[172]  To do otherwise would mean that “all legislative policy judgments would be subject to the strictest scrutiny.”[173]

However, the Constitutional Court has repeatedly struck down laws that it finds unconstitutional, even on matters based on nationality.[174]  In Khosa v. Minister of Social Development, the court struck down provisions of the Social Assistance Act 59 of 1992 that excluded non-citizens after being challenged by Mozambicans who had acquired permanent residence status.[175]  The result of this holding was “profound,” and it affirmed that “the rights in the Bill of Rights…cannot be construed as referring only to ‘citizens.’”[176]  Predictably, given the research data on xenophobic attitudes, the court’s ruling in this case “gave rise to statements of fear [and criticism] in the press.”[177]

The judiciary is tasked “with defending people’s rights against other state institutions,” but contrary to some social researchers, it does not remove that parallel responsibility from “the people” themselves.[178]  Political mobilization can certainly have positive effects.[179]  For example, in the early 1990s, the National Union of Mineworkers, whose leader at the time was from Lesotho, was instrumental in putting pressure on the government to grant “amnesty” for foreign miners.[180]  As a result of this political mobilization, 124,000 foreign workers from the other countries who were living in South Africa were granted permanent residency status.[181]

Within a month of the first attacks, “refugees living in the [Germiston] city hall…started their own school so that their children can continue to be taught despite being displaced.”[182]  In June, hundreds of those affected marched “to the South African parliament in a demonstration against xenophobia.”[183]  Those who did have jobs “returned to work,” even though most were still fearful, with the tacit understanding that their lives have “to go on.”[184]  If this kind of determination exists, then empowerment could be achieved by bringing suits, with the help of certain advocacy groups, to change national laws before the Constitutional Court.[185]  In fact, such a challenge may be coming in the near future as the Consortium for Refugees and Migrants in South Africa and the Wits Law Clinic will file a petition with “the Constitutional Court to keep refugee shelters open” in Gauteng.[186]

C.     The Role of International Law

Shortly after the first attacks in the Western Cape, representatives from temporary camps set up for the displaced demanded “intervention by the United Nations because the South African government has failed them.”[187]  Two months after the attacks, South Africa sent 17,000 people back to Zimbabwe even after the U.N. called for deportations to be suspended.[188]  Lawyers for Human Rights opposed the government as well, stating that deporting the Zimbabweans back to their home country was a clear violation of both international laws and the basic concept of “non-refoulement.”[189]  South Africa is a signatory of numerous international treaties, including the landmark 1951 United Nations Convention on Refugees that prohibits the forcible returning of a refugee to their country of origin if there is a well-founded fear of persecution or threat to their life (commonly called the obligation of non-refoulement).[190]  However, South Africa did not ratify either the Draft Protocol on the Free Movement of Persons in 1995 or the United Nations Convention on the Rights of All Migrant Workers and Members of Their Families, delivering a blow to expanding the rights of foreign nationals.[191]  If the South African government is willing to violate international law, while at the same time making no effort to expand them, then what hope is there for the Guiding Principles?

By its very nature, internal displacement connotes a violation of existing rights.[192]   For example, Article 1 of the African Charter on Human and Peoples’ Rights states that every member of the African Union shall recognize the rights duties and freedom enshrined in this Charter and shall undertake to adopt legislative and other measures to give effect to them.”[193]  Physical safety is supposed to be ensured by Article 3 of the Universal Declaration of Human Rights which mandates that “every person has the right to life, liberty and security of person,” and article 6 of the Geneva Convention outlaws acts of violence, murder, torture, mutilation and rape against civilians.[194]  However, it is “geo-political interests, more than anything else,” that has “undermined the ability of the existing international human rights regime to protect [both] refugees and internally displaced persons” regardless of the treaty.[195]  The global community can ratify as many treaties or develop as many new rights documents as it wants, but without the political will to act on them, it is sound and fury signifying nothing.

D.     An Example Next Door

When the U.N.’s leadership had a chance to “advance the GPID” and generate “a norm shift” in South Africa’s neighboring country Zimbabwe, they failed miserably.[196]  In 2005, Robert Mugabe began “Operation Murambatsvina,” which translates as “clean out the trash,” and sent “bulldozers and police [to destroy]….shantytowns in Harare’s high-density suburbs.”[197]  The result was that up to “700,000 people lost [their] homes and livelihoods” leaving them “exposed to the elements” at the start of winter.[198]

Former U.N. Secretary-General Kofi Annan, born in Ghana, has sometimes lamented that he is “ashamed to be an African” because of the never ending problems on the continent stemming from poor leadership and petty tyrants.[199]  Annan responded to Mugabe’s new program by appointing Anna Kajumulo Tibaijuka as a “Special Envoy on Human Settlement Issues” with a “mandate…to report on the effects of Operation Murambatsvina and present recommendations.”[200]  The first problem with this course of action is that “Special Envoys have no true authority…[and so] her report had no binding effect.”[201]  Further, Tibaijuka’s report “did not apply the Guiding Principles…[and] hesitated to say that the Responsibility to Protect was triggered by the situation.”[202]  This raises another problem.

Even if the report had recommended intervention, “Zimbabwe is not party to the Rome Statute,” and so “any determination that Zimbabwe was in violation” of international law would “require referral to the U.N. Security Council for a determination of action.”[203]  As one of the five permanent members of the Security Council, “China made clear” that it would use its “veto power” on “any resolutions targeting Zimbabwe.”[204]  Thus, political deadlock once again ruled the day at the UN.

Sarah Hager argues that Annan should have sent Walter Kalin to issue a report because he was the “Representative of the Secretary-General on the Human Rights of Internally Displaced Persons” mandated “to engage in coordinated advocacy in favor of the protection and respect of the human rights of IDPs.”[205]  Following Tibaijuka’s report, the only avenue left to Kalin was to “delicately convey his irritation in a publish press release.”[206]  In his statement, Kalin emphasized “the legitimacy of the GDIP” and its foundation in “binding documents Zimbabwe has ratified,” meaning that the government’s actions equated to numerous “violations of [both] the GPID” and international law.[207]  However, Tibaijuka’s report was the first, strong statement from the U.N. and “concluded that the actions were only violations of national law” providing an excuse for nations to sit on their hands.[208]

Hager posits that Tibaijuka was sent to report on the situation in Zimbabwe so it appeared “less politically-charged” to Mugabe, and “the issue of state sovereignty raised by the GPID” could be avoided.”[209]  Ultimately, the whole incident represents “a glaring failure of opportunity on the part of the United Nations to advance the rights of IDPs.”[210]  Regardless of the actions taken by its bureaucracy, the U.N. is also hampered by political wrangling between its member states.  For example, “Britain, Greece, Australia and New Zealand” tried to have Tibaijuka’s report “placed on the Security Council agenda,” but were simply blocked by “China, Russia, and Tanzania” for their own interests.[211]  Ultimately the whole process is at odds with itself as the “U.N. Charter explicitly directs that the sovereignty of states be protected,” and yet, “responsibility to provide protection and services…rests with…the state.”[212]  Until the member states of the United Nations can reconcile these opposite commitments, it is pointless to discuss their potential for helping the internally displaced through new law.

E.     Wait and See

Waiting for an international solution could take an indeterminable amount of time, so it is up to South Africa to deal with the structural violence of xenophobia within its borders.  However, as the attacks unfolded, the leadership was scrambling to respond.  President Mbeki did not approve the deployment of the SANDF, South African National Defence Force, until May 21st, ten days after the first mobs took to the streets (at which point forty-two people had been killed).[213]  He was also criticized by the press for not visiting “the worst affected areas of Johannesburg after two weeks of violence.”[214]  Trying to avoid any responsibility, Mbeki issued several press releases characterizing the violence as being perpetrated by just a “few criminals in our midst.”[215]  Hoping it would prove more effective than his earlier pleas for the violence to end, President Mbeki made a televised address on May 25th calling the attacks a “disgrace.”[216]

Mbeki’s handling of the attacks, as well as his delay in invoking the emergency powers clause of the constitution allowing the deployment of the SANDF, was widely criticized across the country.[217]  By June, the South African Communist Party was calling for Mbeki’s recall as president stating that “the events of the past weeks have exposed the dangers of a leadership vacuum in our country.”[218]  In the same statement, the SACP emphasized that “our region cannot afford to persist with the current blend of directionless absenteeism, and meddling factionalism and general irresoluteness.”[219] 

In late September, the pressure finally overcame Mbeki, and he resigned from office.[220]  He had already been weakened by his handling of mediations in Zimbabwe as well as the revelation by a “High Court judge [who] suggested there had been political interference in a case against his party rival, Jacob Zuma.”[221]  When the SACP first made their call for Mbeki’s resignation, their main concern was how it “should be done without creating more instability.”[222]  So far, it seems as if instability has been the only thing to come from Mbeki’s resignation.

Jacob Zuma is “expected to become…president after next year’s elections.”[223]  He is immensely popular with the average South African, exhibiting a common “touch” compared to Mbeki, who was seen by most as “rather aloof.”[224]  After being fired as the deputy president in 2005, he went on to defeat Thabo Mbeki to become the president of the African National Congress as part of a “titanic power struggle” within the party.[225] 

Zuma is also no stranger to controversy, but it has had little effect on his popularity.[226]  He is so popular that the ANC Youth League President and Zuma supporter Julius Malema said that he was ready to “kill” for him.[227]  During the attacks, some rioters were singing Zuma’s signature song “Awuleth’ umshini wami” while they looted and killed in the streets.[228]  Zuma did not condemn the use of the song but merely said it was an “abuse,” given its context during the struggle against apartheid.[229]  However, he did make a statement that “we can’t be a xenophobic country. It’s not good for our country. We need to find the culprits responsible for the attacks.”[230]

  Mbeki’s resignation was followed by a “wave of ministerial resignations” from loyalists and Mosiuoa Lekota announced the formation of “a new, breakaway party” from the ANC.[231]  Tentatively called the South African Democratic Congress, its candidates will run against the ANC in the upcoming elections.[232]  This split in the ANC has corresponded with a dramatic increase of political violence, including an “attack with axes on three DA [Democratic Alliance] members in Ekurhuleni and chants calling for ANC rebels to be killed” at a number of rallies.[233]  Another dangerous element of the split is that “people have organised and used ethnic arguments or tribal arguments to garner support in the different regions of the country for these two factions.”[234]  As the fight for political power becomes more intense, the risk that this instability will “spiral out of control” grows greater, and the likelihood that anything will be done to combat xenophobia decreases.[235]  These developments are part of a larger trend whereby “institutions once dedicated to intellectual freedom have become politicized,” and that is where “violence begins.”[236]

VI.              Cry the Beloved Country

A.     Political Will

Dr. Ramphele hopes that the xenophobic attacks will be “a major shock” that forces “society to confront challenges it has been either denying or underestimating.”[237]  Unfortunately, there are several developments since the “end” of the attacks that show that nothing has changed.  First, attacks and threats have continued, only on a less visible scale, while the government pushes forward with its policy of reintegration.[238]  The mayor of Cape Town said reintegration of the displaced was “crucial” and wants the SANDF as part of a “peacekeeping force” that will “reassure people that their rights will be protected”.[239]  Thus far, this policy seems to be an utter failure.

Once the attacks “subsided,” a Mozambican man returned home to be stoned and burned to death in Brazzaville.[240]  Meanwhile, a government spokesperson said “reintegration was going well, with communities like Masiphumelele welcoming residents back and apologising to them.”[241]  This may be true on some level, but it comes across as either cynical or naïve in the face of an Ethiopian man being shot to death in Masiphumelele just two days after returning home.[242] 

In July, a DRC refugee returned home after spending a month in a temporary camp for the displaced only to be greeted by gunshots in the night.[243]  When it was reported to the police, they declined to investigate saying, “Oh, it’s makwerikweri [a derogatory name for foreigners]…If I make an investigation” then it will give them an excuse not to return to their homes.[244]  Fearing for their lives, many refugees returned to the temporary camps with their children where there was at least safety in numbers.[245]  The same month, also saw Somali traders being beaten and robbed by a small mob, while provincial authorities were claiming reintegration was a “success.”[246]

Second, the political leadership and institutions have failed to be champions for the targets.  Many government officials are not interested in accountability, which is why they disbanded a special investigations unit called the “Scorpions.”[247]  The Scorpions were “set up to tackle high-profile crime,” and during their operation finalized “1,500 investigations,” “made close to 2,000 arrests,” and seized “more than $500 million-worth of contraband.”[248]  However, from the start they suffered “interference from the highest echelons” for rooting out corruption and fraud within the government itself.[249]  One of the strongest supporters for disbanding the Scorpions was Jacob Zuma.[250]

 

At a meeting with refugees and asylum seekers, the current Minister of Home Affairs, Nosiviwe Mapisa-Nqakula, correctly identified the root of police misconduct as a “lack of leadership.”[251]  At that meeting in March 2007, the Minister “branded xenophobia as a cruel form of racism which should not be tolerated.”[252]  And yet a year later, she was threatening to deport any asylum seekers who did not register with her department (even though it was illegal).[253]

 

This behavior has also continued in non-governmental institutions.  A local branch of the National African Federated Chamber of Commerce and Industry, NAFCOC, sent out more than 200 letters to Somali traders warning them “to close their shops by September 21 or they will ‘resolve to much higher actions that will include physically fighting’ for their rights.”[254]  When asked about the incident, NAFCOC disavowed the letters saying it was not a national effort, but never offered any statements or gestures of support for the Somali traders who received them.[255] 

 

Some leaders like Ramphele and Archbishop Desmond Tutu have been vigilant, with Tutu saying that such behavior from his fellow South Africans “is how the Holocaust happened.”[256]  However, the majority have been making empty statements without corresponding action.  The absence of political will on the part of government officials tells the country, the displaced, and the world that they do not take the problem seriously.  It also means that it falls to the judicial system to be the sole force of driving change.

 

B.      Policy Recommendations

First, and most urgently, government officials need to make strong statements

followed with decisive action to ensure the safety of black foreigners.  Reintegration can only be successful if the fears of those returning are not confirmed by more threats and open violence.  Realizing this, the Constitutional Court already issued an order following lawsuits that “nobody is allowed to be forcefully moved from their shelter, unless for the consolidation of a camp or to be taken to a repatriation facility.”[257]

            Secondly, domestic immigration law must be brought into line with the constitution in order “to establish a policy framework that translates…human rights obligations.”[258]  Section 9 of the Constitution states “everyone is equal before the law and has the right to equal protection and benefit of the law.”[259]  Further, both the state and any person are prohibited from unfairly discriminating against “anyone.”[260]  There is a strong case to be made that the current immigration laws and policies are in violation of Section 9 given the jurisprudence of the Constitutional Court.[261]

Although the Constitutional Court is set to begin hearing arguments from advocates at the end of November, the ultimate responsibility lies with the legislature.[262]  Additionally, the lower courts have been issuing rulings on over “1,446 charges…related to the May violence” resulting in numerous convictions.[263]  Obviously, not all of those who were guilty for the attacks will be brought to justice.  However, the convictions that are made can show the populace that “taking the law into its own hands will not be tolerated.”[264]  This can deter “similar actions in the future” and show foreigners that the government, or at the least one branch of it, is committed to changing the situation.[265]  It also helps build trust with the much abused community that is essential to “short-term conflict containment.”[266]

            Third, there needs to be a renewal of education campaigns to combat negative perceptions of black Africans with the “same commitment that state and civil society has shown towards the scourge of racism.”[267]  As the SAMP points out, this is best achieved through “a broad, high-profile, multi-media, government-initiated and sponsored anti-xenophobia education program that reaches into schools, workplaces, communities, and the corridors of the public service.”[268]  To be effective, it must be “systematic and ongoing” unlike the “Roll Back Xenophobia” campaign previously undertaken by the Human Rights Commission that ended in 2002.[269]

            Fourth, it is essential to increase the transparency and accountability within government institutions.  This means an increased role for bodies like the Scorpions, not a disbanding of them, that are tasked with ending “corruption in all aspects of the immigration system.”[270]  The police have the will to warn “all political parties that violence…or incitement to violence…will not be tolerated,” and such behavior will be pursued as a “criminal offence,” but so far they have not displayed the same tenacity with combating xenophobia.[271]

Fifth, organizations and constitutionally mandated bodies like the Human Rights Commission, because of its “vital role in the promotion of social welfare rights,” must step up and act.[272]  The HRC’s powers include and go “beyond the judicial processes,” meaning that they are in an invaluable position to vigorously combat xenophobia.[273]  Unlike the judiciary, the HRC can act on its own initiative to “make the legislature account for the amount it spends or fails to spend” and to “expose situations which it considers a dereliction of the states’ duties.”[274]

“Structural violence maims and kills,” but can be ignored for generations.[275]  These recommendations are all based on developing systematic changes utilizing “legal safeguards” to overcome the “societal biases” that plague more “informal dispute resolution venues.”[276]  However, these changes cannot succeed without political will and a realization on the part of government leaders that the problem is “about society, not [just] the state.”[277]  Leaders must ascribe to a “politics of responsibility” created by “an act of commitment,” whereby they pledge to “pursue a moral vision and create a society built on justice, compassion and respect for human dignity.”[278]  It is not a lofty ideal enshrined only in South Africa’s constitution, but a necessity for survival.

C.     The Future

In 2001, South Africa hosted the United Nations’ landmark World Conference on Racism, where many rallied for apologizes and reparations for every manifestation of racism over the past several centuries, including the “slave trade and colonialism.”[279]  The political fight was intense, and the declaration finally agreed upon represented a “bit of everything to everyone…every lobby was able to get its own pet aversions included.”[280]  The event was scorned by many, but hailed by even more as “a triumph in terms of visibility and impact.”[281]  In one of the greatest ironies in the discussion of xenophobia in South Africa, the township of Zandspruit, near Johannesburg, erupted in brutal violence just a month after the conference.[282] 

The angry mobs, because they were “sick” of Zimbabweans, burned and looted homes promising they would kill any “foreigners” if they saw them again in Zandspruit.[283]  The victims included people like Dennis Dube who had been living and working in the country since 1976 (Dennis was originally from Zimbabwe, but had obtained legal resident status five years before the attacks).[284]  Dennis was married to a “native” South African and lived in a small house that he had built for the two of them before it was destroyed by a “petrol bomb” (he also had eight children still in Zimbabwe whom he was supporting with his job in South Africa).[285]  Miraculously, no one was killed, but people like Dennis lost everything short of life itself.[286]  After decades in the country, Dennis said, “I’m just so sad that they [South Africans] can treat me like this, I’ve never known anything like this.”[287]

Following these attacks seven years ago, the HRC issued a statement that condemned the attacks as racial cleansing.[288]  The HRC went on to say that “whilst we acknowledge the dire economic situation faced by many South Africans, actions such as those in Zandspruit merely fuel xenophobic hatred rather than address the core issues of economic underdevelopment.”[289]  The core issues, economic and otherwise, have not been addressed.  The only way that this can change is for future leaders, like Jacob Zuma, to live up to their duties as government officials and implement the kind of measures outlined in this note.  If leaders fail to demonstrate the political will needed to see these changes through, as they have in the past, then many more lives will likely be destroyed in the interim.  The result would be disastrous for both South Africans and the country they hold dear.  As Queen Elizabeth said in Shakespeare’s Richard III, “I see the downfall of our house! The tiger now hath seized the gentle hind; Insulting tyranny begins to jet Upon the innocent and aweless throne: Welcome, destruction, death, and massacre! I see, as in a map, the end of all.”[290]

At a Youth Day rally in Cape Town, Nelson Mandela told the crowds, “As future leaders of this country, your challenge is to foster a nation in which all people, irrespective of race, colour, sex, religion or creed, can ascertain a social cohesion fully.”[291]  He told those in attendance that “you must continue to promote the principle of relentless freedom and democracy as it is the foundation upon which issues of human rights are ingrained.”[292]  South Africa is “a nation that has been able to rise to greatness under extreme pressure” in the past.[293]  It can do so again.

 

 

 

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* Mark Christopher Hopson is a third year law student at Barry University School of Law. He received his B.A. with highest honors in both History and Conflict Analysis and Dispute Resolution from Salisbury University. He recently returned from a summer abroad studying law at the University of the Western Cape in South Africa through Howard University School of Law. The author would like to thank all of his friends and colleagues in South Africa for teaching him about a remarkable place first hand. Nkosi sikelel’ iAfrika.

[1] Halden Krog, Flames of Hate, https://www.thetimes.co.za/News/Article.aspx?id=768842 (last visited Nov. 26, 2008).

[2] Id.  The man was 35 years old from Mozambique named Ernesto Alfabeto Nhamuave, who had come to South Africa hoping to earn enough money to pay for the education of his three children. He died of his wounds soon after being rescued. The images of this horrific scene were broadcast and published in media outlets across the country. A reporter’s reaction and photographs, which are very graphic, can be located at https://multimedia.thetimes.co.za/photos/2008/05/flames-of-hate/ (last visited Nov. 26, 2008).

[3] Id.

[4] Id.

[5] Ernest Mabuza, South Africa: Xenophobic Rage Leaves Trail of Havoc in Gauteng, https://allafrica.com/stories/200805190001.html (last visited Nov. 26, 2008).

[6] South African Press Association, Xenophobic Death Toll Hits 62, https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=776700 (last visited Nov. 26, 2008).

[7] South African Mob Kills Migrants, https://news.bbc.co.uk/2/hi/africa/7396868.stm (last visited Nov. 26, 2008).

[8] Id.

[9] SA Mourns Victims of Xenophobia, https://news.bbc.co.uk/2/hi/africa/7486969.stm (last visited Nov. 26, 2008).

[10] Id.

[11] William Shakespeare, The Complete Works 9 (Random House 1975).

[12] Everett C. Dolman, Pure Strategy: Power and Policy in the Space and Information Age 74 (Routledge 2005).

[13] The Perfect Storm: The Realities of Xenophobia in Contemporary South Africa 21 (Jonathan Crush ed., Idasa Press 2008).

[14] Id. at 1.

[15] United Nations Guiding Principles on Internal Displacement, available at https://www.reliefweb.int/ocha_ol/pub/idp_gp/idp.html (last visited Nov. 26, 2008). 

[16] Francis Deng, The UN and the Protection of Human Rights: The Global Challenge of Internal Displacement, 5 Wash. U. J.L. & Pol’y 141, 146 (2001).

[17] Id.

[18]  Richard Holbrooke, Promoting Peace and Security: Humanitarian Assistance to Refugees in Africa, available at https://www.reliefweb.int/idp/docs/references/AddressHolbrookejan2000.pdf.

[19] Id. 

[20] Internal Displacement Monitoring Centre, Internal Displacement: Global Overview of Trends and Development, 6, available at https://www.internal-displacement.org/8025708F004BE3B1/(httpInfoFiles)/BD8316FAB5984142C125742E0033180B/$file/IDMC_Internal_Displacement_Global_Overview_2007.pdf.  These figures are compiled from just fifty-two countries around the world.

[21] Id. 

[22] United Nations High Commissioner for Refugees, 2007 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons, 2, available at https://www.unhcr.org/statistics/STATISTICS/4852366f2.pdf.

[23] Alex J. Bellamy, Paul Williams & Stuart Griffin, Understanding Peacekeeping 16 (Polity Press 2004).

[24] Roberta Cohen, The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting, 461, available at https://www.brookings.edu/fp/projects/idp/articles/cohenr_20041001.pdf.

[25] Jeremy Levitt, Conflict Prevention, Management, and Resolution: Africa—Regional Strategies for the Prevention of Displacement and Protection of Displaced Persons: Cases of the OAU, ECOWAS, SADC, and IGAD, Duke J. Comp. & Int’l L. 39, 46 (2001).

[26] Id. at 69.

[27] Id. at 49.

[28] Id. at 79.

[29] Id.

[30] Michael Georgy, Analysis: Regional Leaders Toothless in Zimbabwe Crisis, https://africa.reuters.com/wire/news/usnLA387650.html (last visited Nov. 26, 2008). Add impact of south Africa on Zimbabwe negotiations

[31] Levitt, supra note 25, at 68.

[32] Merriam-Webster Online, Xenophobia, available at https://www.merriam-webster.com/dictionary/xenophobia (last visited Nov. 26, 2008).

[33] The Handbook of Conflict Resolution: Theory and Practice 404 (Morton Deutsch & Peter T. Coleman eds., Jossey-Bass Publishers 2000).

[34] Id.

[35] Id.

[36] Id. at 418.

[37] John Reader, Africa: A Biography of the Continent 449 (Vintage Books 1999).  Upon arrival of the first European settlers, the population of the Khoisan is estimated to have been approximately 50,000 with a very low density.

[38] Id. at 450.

[39] Id. at 456.

[40] Leonard Thompson, A History of South Africa 31 (Yale University Press 2000).

[41] Id. at 32.

[42] Id.

[43] Id.  The Dutch East India Company was the first corporation in modern history.  In the 1600s, the Dutch were the dominant power of the world and the Company’s fleet totaled over six thousand ships with over forty-thousand sailors just to operate them.  Its mark on South Africa is indelible and its memory lingers on both the land and the people of South Africa as the start of white exploitation of the land.

[44] Simon Winchester, Krakatoa, 34 (Harper Perennial 2003).

[45] Thompson, supra note 40, at 33. The first major arrival of slaves came in 1658 with 170 men, women and children.  By 1793, the Company’s records showed that the slave population had risen to 14,747.  Slaves were necessary for van Riebeeck mainly because of the labor needed to establish a presence as the Khoisan had become extremely unwilling to aid the Dutch in any way.  The first wars between the Khoisan and the Dutch broke out soon after the European’s arrival, but the Dutch were heavily advantaged by firearms, smallpox and the well constructed Castle of Good Hope which remains in to this day in downtown Cape Town.

[46] Id. at 35.

[47] Deutsch, supra note 33, at 21.

[48] Reader, supra note 37, at 42.  Batavia was the word for the Dutch East Indies, which is modern day Indonesia.

[49] Id. at 42-3.  The same is true of other European colonizers whose laws were substantially different from the African laws they replaced by force.

[50] Basil Davidson, Africa In History: Themes and Outlines 209 (Simon & Schuster Paperbacks 2005).

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55]Martin Meredith, Diamonds, Gold, and War: The British, The Boers, and the Making of South Africa 1 (Public Affairs 2007).  The British first took the Cape Colony by force in 1795, but the Dutch regained possession under the 1803 Treaty of Amiens only to lose it again in 1806.  Formal British rule was established by negotiations in 1814.  However, the struggle continued for a century eventually leading to the Boer Wars of the late 19th century, fueled in part by the immense mineral resources discovered in the country in the 1870s.  For a more detailed discussion on the political history of these developments see Martin Meredith’s Diamonds, Gold, and War: The British, The Boers, and The Making of South Africa.

[56] Reader, supra note 37, at 461.  Trekboer is the combination of two Afrikaans words, “trek” meaning pull and “boer” meaning farmer.  This is a description for the lifestyle chosen by white pastoralists in the country originating from the “free burghers” who were employees of the Company imported to settle the land.  As part of a cultural movement, the Boers redefined themselves as Afrikaners who were whites of Dutch descent whose native language was Afrikaans.  Afrikaans is a Hottentot language derived from Dutch but was forced upon many others in South Africa through the education system during apartheid.

[57] Meredith, supra note 55, at 2.

[58] Id.

[59] Reader, supra note 37, at 462. At the time the British took control, there was enormous political pressure to solve widespread social unrest due in part to overpopulation and unemployment.  The British decided to expand by measures such as sending convicts to Australia and ultimately thousands of British subjects to the Cape with guarantees of land grants in 100 acre plots.

[60] Meredith, supra note 55, at 45.

[61] Id.

[62] Id. at 45-6.

[63] Reader, supra note 37, at 644.

[64] Id. at 643.

[65] Id. at 490.

[66] Thompson, supra note 40, at 190.

[67] Id.

[68] Id.  These laws destroyed social relationships in the country by banning marriage and sexual relations between racial categories.  When members of the same family were classified into different racial categories it resulted in a destruction of the family.  It also eroded the integrity of the judiciary.  For example, after a court ruled that segregation of public facilities was unlawful if they were not equal, the government just passed a law to overturn the court’s decision.

[69] Id.  With each law came an attempt by the courts to hold them as invalid, but Parliament was determined to create this terrible new world and continually passed laws degrading the power and integrity of the judicial system.

[70] Id. at 243.

[71] Id. at 191.

[72] Thompson, supra note 40, at 192-193.

[73] Id.

[74] Id.

[75] Id. at 194.

[76] Id. at 214.

[77] Id.  The embargo only spurred the apartheid regime to spend more resources on its own domestic weapons industries negating the most severe impact that such an embargo would have normally had.  Also, it was the Organization of African Unity (OAU) and its member states that did far more to actively help South Africans in their struggle, at least compared to the UN, establishing camps for refugees as well as providing education and military training.  However, because they were relatively weak and faced numerous problems of their own, such efforts could only accomplish so much.

[78] Supra note 75.

[79] Thompson, supra note 40, at 194-95.  By 1970, the black population working in manufacturing and construction was earning six times less than their white counterparts.  The actual wages of African workers in mines were less than they had been in 1911 under British rule, earning twenty-one times less than white counterparts.  Townships were also experiencing incredibly high levels of poor nutrition, almost no education, and disease that further exacerbated the misery of lives under apartheid.

[80] Id. at 195.

[81] Id. at 202.

[82] Id.

[83] Id. at 265.

[84] Michael Neocosmos, From ‘Foreign Natives’ to ‘Native Foreigners’ Explaining Xenophobia in Post-apartheid South  Africa: Citizenship and Nationalism, Identity and Politics 91 (Council for the Development of Social Science Research in Africa 2006).

[85] Id. at 125.

[86] Crush, supra note 13, at 6.

[87] Neocosmos, supra note 84, at 125.

[88] Crush, supra note 13, at 20.

[89] Id. at 30.

[90] Neocosmos, supra note 84, at 95. It also raises potential violations of several constitutional provisions, not least of which is the equality clause which reads that “the state may not unfairly discriminate directly or indirectly against anyone” on grounds including “race…ethnic or social origin [or] colour.”

[91] Id. at 95.

[92] South African Migration Project, About SAMP: An Introduction, https://www.queensu.ca/samp/aboutsamp/index.htm (last visited Nov. 26, 2008).

[93] Crush, supra note 13, at 24.

[94] Id.

[95] Id. at 25.

[96] Id.

[97] Id. at 39.  Although this sounds draconian, the wildlife in South Africa often requires electrified fences and they are quite common in rural areas to keep certain animals, seen as pests, from harassing livestock or destroying property. 

[98] Id.

[99] Id. at 37.

[100] Id. at 37.  These scenarios included a foreigner moving into your area, operating a business in your area, sharing a classroom with your children, and becoming a co-worker.

[101] Id.

[102] Id. at 33.

[103] Id. at 31.

[104] Id. at 39.

[105] Id. at 13.

[106] Borrie la Grange , R20m Fund to Help Xenophobia Victims, https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=774257 (last visited Nov. 26, 2008); Tamlyn Stewart, Hall of Hope for the Desperate, https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=774255, (last visited Nov. 26, 2008).

[107] Crush, supra note 13, at 54.

[108] Id. at 17.

[109] Id. at 16.

[110] Id. at 17.  Minister Buthelezi was infamous for xenophobic remarks, for example, at one point suggesting that all Nigerian immigrants are criminals and drug traffickers.

[111] Id. at 17.

[112] Id.

[113] Frantz Fanon, The Wretched of the Earth 126 (Grove Press 2004).

[114] Neocosmos, supra note 84, at 11.

[115] Fanon, supra note 113, at 126-9.

[116] Neocosmos, supra note 84, at 12.

[117] Human Sciences Research Council, Violence and Xenophobia in South Africa: Developing Consensus, Moving to Action, 15, available at https://www.hsrc.ac.za/research/output/outputDocuments/5504_Hadland_ViolenceandxenophobiainSA.pdf.

[118] Jonathan Sacks, The Home We Build Together: Recreating Society 10 (Continuum Books 2007).

[119] Neocosmos, supra note 84, at 90.

[120] Id. at 95.

[121] United States Committee for Refugees and Immigrants (USCRI), World Survey: South Africa, available at https://www.refugees.org/countryreports.aspx?id=1001 (last visited Nov. 26, 2008).

[122] USCRI, World Survey: South Africa, available at https://www.refugees.org/countryreports.aspx?__VIEWSTATE=dDwtOTMxNDcwOTk7O2w8Q291bnRyeUREOkdvQnV0dG9uOz4%2BUwqzZxIYLI0SfZCZue2XtA0UFEQ%3D&cid=2170&subm=&ssm=&map=&searchtext=&CountryDD%3ALocationList= (last visited Nov. 26, 2008).

[123] Id.

[124] Central Intelligence Agency, The World Factbook: South Africa, available at https://www.cia.gov/library/publications/the-world-factbook/print/sf.html (last visited Nov. 26, 2008).

[125] USCRI, World  Survey: United States of America, available at https://www.refugees.org/countryreports.aspx?subm=&ssm=&cid=2177 (last visited Nov. 26, 2008).

[126] Supra note 124

[127] Supra note 124.

[128] Central Intelligence Agency, The World Factbook: United States of America, available at https://www.cia.gov/library/publications/the-world-factbook/print/us.html (last visited Nov. 26, 2008).

[129] S. Afr. Const. (Act 108 of 1996) Section 10. 

[130] Jonathan Crush & Raesibo Mojapelo, Introduction: Immigration Law, Human Rights and the Constitution, available at https://www.queensu.ca/samp/publications/book/intro.htm (last visited Nov. 26, 2008).

[131] Sally Perberdy, A Brief History of South African Immigration Policy, available at https://www.queensu.ca/samp/transform/Peberdy.htm (last visited Nov. 26, 2008).

[132] Id.

[133] Crush, supra note 13, at 18.

[134] Id.

[135] Id.  Section 10 of the Constitution states “everyone has inherent dignity and the right to have their dignity respected and protected” while numerous sections require procedural rights such as fair action in trial or administrative procedures, due process rights, a fair trial, notice of charges and adjudication by an independent tribunal.

[136] Crush, supra note 13, at 20.

[137] Immigration, Xenophobia and Human Rights in South Africa, 9 (Johnathan Crush ed., 2001) available at https://www.queensu.ca/samp/sampresources/samppublications/policyseries/policy22.htm (last visited Nov. 26, 2008).

[138] Crush, supra note 13, at 40.

[139] Id. at 43.

[140] Neocosmos, supra note 84, at 103.

[141] Id. at 103.

[142] Id. at 104.

[143] Id.

[144] Id.

[145] Id.

[146] Id. at 106.

[147] Id. at 107.  The woman was forced into the parking lot to give birth, but was helped by two paramedics.  After giving birth she went to the same hospital and forced to stay there for four days and release with a bill for 26,407 Rand (seven rand is equivalent to about one dollar US).  When the Department of Health’s spokesman was asked about the incident, he said “The general policy is that foreigners have to pay for services rendered because we are protecting resources meant for our citizens.”  

[148] Id. at 4.

[149] Deutsch, supra note 33, at 240.

[150] Id.

[151] Mamphela Ramphele, A Mirror Image of Our Society, available at https://www.opendemocracy.net/article/migrant_voices/mamphela_ramphele (last visited Nov. 26, 2008).

[152] Id.

[153] Loren B. Landau & Veronique Gindrey, Migration and Population Trends in Gauteng Province 1996-2055, 17, available at https://migration.org.za/wp-content/uploads/2008/03/42_LandauGindrey.pdf.

[154] Agence France-Presse, Experts Slam SA Over Immigration Policy, https://www.mg.co.za/article/2008-08-28-experts-slam-sa-over-migration-policy (last visited Nov. 26, 2008).

[155] Supra note 153.

[156] Id.

[157] Id.

[158] Romi Fuller, South Africa: Xenophobia, Crime and Security in SA, available at https://allafrica.com/stories/200809050763.html?page=5 (last visited Nov. 26, 2008).

[159] Top UN Official: S. Africa Risks Losing 2010 World Cup Over Xenophobic Attacks, https://www.mathaba.net/0_index.shtml?x=593882 (last visited Nov. 26, 2008).

[160] Associated Press Sports, FIFA Has 3 Alternate Sites for 2010 World Cup, available at https://nbcsports.msnbc.com/id/25612796/ (last visited Nov. 26, 2008).

[161] Fuller, supra note 158.

[162] Id.

[163] Id.

[164] Fuller, supra note 155, at 6.

[165] Ramphele, supra note 151.

[166] Neocosmos, supra note 84, at 83.

[167] Crush, supra note 13, at 15.

[168] Neocosmos, supra note 84, at 131.

[169] Id.

[170] Ziyad Motala & Cyril Ramaphosa, Constitutional Law: Analysis and Cases 281 (Oxford University Press 2002).

[171] S. Afr. Const. (Act 108 of 1996) Section 167.

[172] Motala, supra note 170.

[173] Id.

[174] Iain Currie & Johan de Waal, The Bill of Rights Handbook 472 (Juta & Company 2005).

[175] Id.

[176] Id. at 473.

[177] Neocosmos, supra note 84, at 131.

[178] Id. at 117.

[179] Id.

[180] Id. at 78-85.

[181] Crush, supra note 13, at 45.

[182] Tamlyn Stewart, Refugees Start Their Own School, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=774167 (last visited Nov. 26, 2008).

[183] Crush, supra note 13, at 53.  Additionally, Section 18 of the Constitution provides “everyone” has the right to peacefully assemble, but Section 19 outlining political rights protects activities like forming a political party, hold public office and voting for “citizens.”  However, such differentiation is typical in constitutions around the world.

[184] Karen Van Rooyen, Displaced People Return to Their Jobs, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=776786 (last visited Nov. 26, 2008).

[185] Borrie la Grange, Court’s Lifeline to Foreigners, https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=777756 (last visited Nov. 26, 2008).  Lawyers for Human Rights, Bishop Paul Verryn of the Johannesburg Central Methodist Church and Medecins Sans Frontieres successfully argued a case before the provincial High Court that stopped the government from forcibly moving 1700 displaced persons to shelters near areas where they feared further attacks.

[186] South African Press Association, Guateng Refugee Battle to Go to Top Court, available at https://www.mg.co.za/article/2008-08-12-gauteng-refugee-battle-to-go-top-court (last visited Nov. 26, 2008).

[187] Sashni Pather & Mazol Molefe, The Displaced Call for the UN’s Help, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=777754 (last visited Nov. 26, 2008).

[188] Justine Gerardy, SA Defies UN On Refugees, available at https://www.capeargus.co.za/index.php?fArticleId=4502639 (last visited Nov. 26, 2008).

[189] Khadija Bradlow, Rights Lawyers-Deportations Unlawful, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=807795 (last visited Nov. 26, 2008).

[190] Ramphele, supra note 151.

[191] Crush, supra note 13, at 43.

[192] Erin Mooney, The Concept of Internal Displacement and the Case for Internally Displaced Persons as a Category of Concern, 24 Refugee Surv. Q. 2005, 15 (2005).

[193] Zachary Lomo, The Struggle for Protection of the Rights of Refugees and IDPs in Africa: Making the Existing International Legal Regime Work, Berkeley J. Int’l L. 268, 276 (2000).

[194] Id. at 277.

[195] Id. at 282.

[196] Sarah Hager, Zimbabwe: Why the United Nations, State, and Non-State Actors Failed to Effectively Regulate Mugabe’s Policy of Internal Displacement, Cal. W. Int’l L.J. 221, 248 (2007).

[197] Id. at 238.

[198] Id.

[199] George B.N. Ayittey, Africa Unchained: The Blueprint for Africa’s Future 44 (Palgrave Macmillan 2005).

[200] Hager, supra note 196, at 242.

[201] Id. at 244.

[202] Id.

[203] Id.

[204] Id. at 259.  China has been looking all over Africa for investment opportunities as well as a source for natural resources to fuel their ever growing economy.  China has taking a position that the ends will justify the means, not caring what government they support in order to increase wealth or gain access to valuable minerals, oil, or other natural resources needed for development.

[205] Id. at 245. 

[206] Id. at 247.

[207] Id.

[208] Id. at 249.

[209] Id. at 247.

[210] Id. at 248.

[211] Id. at 249.

[212] Id. at 232.

[213] Crush, supra note 13, at 52.  This was the first time the army had been called out to deal with a domestic matter since the end of apartheid, and perhaps the images of white SADF members firing upon black mobs opened too many old wounds from the days of apartheid for an earlier decision.

[214] Florence Panoussian, Absent Mbeki Criticised Over Violence, available at https://www.mg.co.za/article/2008-05-25-absent-mbeki-criticised-over-violence (last visited Nov. 26, 2008).

[215] The Presidency: Republic of South Africa, Statement by President Thabo Mbeki Regarding Attacks on Foreign Nationals, available at https://www.thepresidency.gov.za/show.asp?type=pr&include=president/pr/2008/pr05192059.htm&ID=1275 (last visited Nov. 26, 2008).

[216] Crush, supra note 13, at 53.

[217] Kevin Kane, Bishop Answers Refugee Prayers, available at https://scotlandonsunday.scotsman.com/world/Bishop-answers-refugee-prayers.4118455.jp#Verryn (last visited Nov. 26, 2008).

[218] South African Press Association, ANC Must ‘Recall’ Mbeki: SACP, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=777007 (last visited Nov. 26, 2008).

[219] Id.

[220] South Africa President Steps Down, available at https://news.bbc.co.uk/2/hi/africa/7627957.stm (last visited Nov. 26, 2008).

[221] ANC In Talks Over Mbeki’s Future, available at https://news.bbc.co.uk/2/hi/africa/7626417.stm (last visited Nov. 26, 2008).

[222] Timeline: Zuma’s Legal Problems, available at https://news.bbc.co.uk/2/hi/africa/7153378.stm (last visited Nov. 26, 2008).  In 2005, his close associate Schabir Shaik was convicted of fraud over an arms deal costing several billion dollars.  In that case, the judge said that there was “a mutually beneficial symbiosis” and that Zuma received payments from Shaik.  This led President Mbeki to fire Zuma as the Deputy President of the country, and a few months later Zuma was charged with raping the HIV positive daughter of a family friend.  At the rape trial, Zuma denied the charges and was ultimately acquitted.  However, he came under intense criticism for his testimony at the trial for statements including: he knew that the accused wanted to have sex with him because of what she was wearing, that it was against his Zulu culture to refuse a woman sex and that he did not wear a condom, but took a hot shower afterwards to protect himself from getting an HIV infection.  During this trial, he was also the head of South Africa’s AIDS council, but he managed to be reinstated by the ANC and defeated Mbeki for the ANC presidency.  After prolonged legal battles, a court eventually ruled that the prosecution against Zuma was invalid but stressed it had “no bearing on Mr. Zuma’s guilt or otherwise.”  This brings us up to the current day.

[223] Country Profile: South Africa, available at https://news.bbc.co.uk/2/hi/africa/country_profiles/1071886.stm (last visited Nov. 26, 2008).

[224] Profile: Jacob Zuma, available at https://news.bbc.co.uk/2/hi/africa/4615019.stm (last visited Nov. 26, 2008).

[225] Supra note 220.  The ANC is the dominant political party in the country winning well over sixty percent of votes in every election since 1994.  Usually, the ANC picks the president of the country from its leadership.

[226] Supra note 222.

[227] Chris Makhaye, We’ll Kill Too – Vavi, Weekend Argus, June 22, 2008, at 1.  Zuma defended Malema’s statement saying that the youth wing of the party had a history of being militant.  A week later, another important political leader, Zwelinzima Vavi, stood up at a funeral and said the same thing which was cheered by the audience.  Malema refused to apologize saying “we remain unshaken and we will not retreat” going on to say that when the time comes that he will be prepared “to pay the highest price” to see Zuma in office and urged other youth to do the same.

[228] Xolani Mbanjwa, Politics: Umshini Isn’t A Song To Kill, available at https://www.int.iol.co.za/index.php?set_id=1&click_id=6&art_id=vn20080519055011398C263403 (last visited Nov. 26, 2008).  “Awuleth’ umsani wani” is an old ANC paramilitary struggle song that translates as “Bring me my machine gun,” and was used as a kind of anthem but was adopted by Zuma.  His supporters also sang it in front of the court house during his rape trial, but he did not similarly reprimand them for its use there.

[229] Id.

[230] Id.

[231] Nick Ericsson, Profile: Mosiuoa Lekota, available at https://news.bbc.co.uk/2/hi/africa/7706366.stm (last visited Nov. 26, 2008).

[232] Id.

[233] Deon de Lange, Police Lay Down Law On Political Violence, available at https://www.capeargus.co.za/index.php?fArticleId=4684004 (last visited Nov. 26, 2008).

[234] Martin Plaut, S Africa’s ANC on Bring of Split, available at https://news.bbc.co.uk/2/hi/africa/7695492.stm (last visited Nov. 26, 2008).

[235] Id.

[236] Sacks, supra note 118, at 47.

[237] Ramphele, supra note 151.

[238] Pearlie Joubert, Warren Foster & Thembelilhle Tshabalala, Finally, SA Govt Moves Into Action,  available at https://www.mg.co.za/article/2008-05-30-finally-the-sa-govt-moves-into-action (last visited Nov. 26, 2008).

[239] Id.

[240] Crush, supra note 13, at 54.

[241] South African Press Association, Cape Town Relocated Xenophobia Refugees, available at https://www.mg.co.za/article/2008-09-07-cape-town-relocates-xenophobia-refugees (last visited Nov. 26, 2008).

[242] Supra note 240.

[243] South Africa: Foreigners Still Beware, available at https://allafrica.com/stories/200811211065.html (last visited Nov. 26, 2008).

[244] Id.

[245] Id.

[246] Yazeed Kamaldien, Violent Reception for Refugees, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=810191 (last visited Nov. 26, 2008).

[247] Cape Argus, South Africa: 50 ANC MPs to Defect, available at https://allafrica.com/stories/200810190004.html (last visited Nov. 26, 2008).

[248] Nick Ericsson, Sting in the Tail for SA Scorpions?, available at https://news.bbc.co.uk/2/hi/africa/7220409.stm (last visited Nov. 26, 2008).

[249] Id.

[250] Supra note 248.  It was the Scorpions who investigated Zuma’s close associate Shaik which led to the some of the problems discussed supra note 222.

[251] Basildon Peta, South Africa: Minister Slams Treatment of Refugees By Cops, available at https://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20051006070819415C991259 (last visited Nov. 26, 2008).

[252] Id.

[253] Supra note 189.

[254] Pearlie Joubert, NAFCOC Calls for Somali Purge, available at https://www.mg.co.za/article/2008-09-05-nafcoc-calls-for-somali-purge (last visited Nov. 26, 2008).

[255] Id.

[256] South African Press Association, Beware Holocaust Mentality: Tutu, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=788135 (last visited Nov. 26, 2008).

[257] Jenni O’Grady, ‘Progress’ on Gauteng Refugee Shelters, available at https://www.mg.co.za/article/2008-08-22-progress-on-gauteng-refugee-shelters (last visited Nov. 26, 2008).

[258] Ramphele, supra note 151.

[259] S. Afr. Const. (Act 108 of 1996) Section 9.

[260] Id.

[261] Motala, supra note 170, at 252-76.  There is a lengthy, multiple step process developed by the Constitutional Court to determine “unfair discrimination” (which precludes full discussion in this context).  However, in cases of xenophobia, those targeted would fall under the category of discrimination based on a “non-listed ground” (which means that it is a human characteristic such as race that is not explicitly in Section 9).  The Court will hold an act or law as unfair discrimination for a non-listed ground after determining if the group has been disadvantaged, the effect of the power exercised and whether human dignity is impaired.

[262] Jenni O’Grady, Xenophobia Shelters Case Postponed in Court, available at https://www.mg.co.za/article/2008-09-16-xenophobia-shelters-case-postponed-in-court (last visited Nov. 26, 2008).

[263] South African Press Association, More than 420 Xenophobia Cases Pending, available at https://www.mg.co.za/article/2008-08-25-more-than-420-xenophobia-cases-pending (last visited Nov. 26, 2008).

[264] Crush, supra note 13, at 8.

[265] Id.

[266] Deutsch, supra note 33, at 86.

[267] Supra note 261.

[268] Id. at 9.

[269] Id. at 9, 19.

[270] Supra note 248.

[271] Supra note 233.

[272] Motala, supra note 170, at 411.

[273] Id. at 413.  These powers include investigations, reporting, researching, and educating the country’s institutions and population on any matters within its purview.

[274] Id.

[275] Deutsch, supra note 33, at 405.

[276] Deutsch, supra note 33, at 419.

[277] Sacks, supra note 118, at 94.

[278] Id. at 123.

[279] The Hindu, The Different Shades of Hate, available at https://hindu.com./thehindu/2001/09/09/stories/05091344.htm (last visited Nov. 26, 2008).

[280] Id.

[281] Id.

[282] Integrated Regional Information Networks, Zimbabweans Fear for Their Lives After Attacks, available at https://www.irinnews.org/report.aspx?reportid=27874 (last visited Nov. 26, 2008).

[283] Id.

[284] Id.

[285] Id.

[286] Id.

[287] Id.

[288] Id.

[289] Id.

[290] William Shakespeare, Richard III 69 (Forgotten Books 1965).

[291] South African Press Association, Mandela Calls for ‘Social Cohesion,’ available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=785548 (last visited Nov. 26, 2008).

[292] Id.

[293] Ramphele, supra note 151.

Birdsong’s refugee law student,  Mark Hopson, had the chance to work and travel in South Africa last summer.  During that summer there were many attacks by South Africans on refugee peoples who had  sought  a safe haven in South Africa.  Many were killed.  Based on his travels and his research Mr. Hopson has written an outstanding paper concerning South African problems and the xenophobic attacks that occured in South Africa.  Read and learn!

The Shadow People: How the Xenophobic Attacks in South Africa Demonstrate the Nightmare of Internally Displaced People and What Can Be Done

Mark Christopher Hopson*

“The world is not thy friend nor the world’s law.”

William Shakespeare, Romeo & Juliet, Act V, Scene 1

 I.                   The Heart of the Matter

A.     Introduction

“They are burning people down there.”[1]  Police officers rushed to the scene and soon found two men burning alive.[2]  One of the men was on his knees covered in a burning mattress.[3]  His scorched body was lying next to a concrete pillar covered in blood, making the rescuers “imagine what was done to him before he was set alight.”[4]  Imagination would not be necessary, as the country would see this kind of violence continue for weeks.  This scene was only one of many gruesome moments in what the media dubbed the “xenophobic attacks” of May 2008.[5] 

The attacks began in Alexandra, a township just north of the country’s most populous city of Johannesburg, and quickly spread from there.[6]  Organized mobs targeted black Africans from other countries such as Mozambique, Malawi, Somalia, and Zimbabwe (especially Zimbabwe).[7]  Attackers said their actions were justified because they believed that foreigners were “taking local jobs and contributing to crime” in the country.[8]  By the time the attackers were done, over sixty people had been brutally murdered, including twenty-one South Africans who were mistaken as foreigners.[9]  Hundreds were injured, and tens of thousands were displaced as the country saw the worst “bloodshed…since the end of apartheid.”[10] 

B.      Thesis   

In William Shakespeare’s The Tempest, the playwright wrote, “What’s past is prologue.”[11]  If anything, these recent attacks show that “those who cannot learn from history are doomed to repeat it.”[12]  These attacks did not spring up out of nowhere.  Instead, they were “a decade or more in the making and many forecasters were predicting just such an outcome.”[13] 

When such events occur, the question inevitably arises as to the duties and responsibilities of international actors.  The legal status of those affected was mixed, some were South African citizens, some were refugees or asylum seekers, some were permanent residents, and some were in the country illegally, but they all shared the common link of being seen as different.[14]  What happened in South Africa falls directly within the definition contained in the United Nations Guiding Principles on Internal Displacement:

persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.[15]

 

It has been ten years since the Guiding Principles on Internal Displacement were completed, but “there is [still] no international legal instrument” for defining, protecting and assisting the internally displaced.[16]  Despite the fact that the Guiding Principles simply “restate the existing norms of human rights and humanitarian law,” many have focused on solving the problem by filling this legal gap.[17]  Richard C. Holbrooke, a former U.S. Representative to the United Nations, stated, “[we have] to deal honestly with the fact that over two-thirds of the people in the world who are homeless…are classified as something called – IDPs, a terrible acronym.”[18]  The former ambassador went on to say, “We cannot let this entire category of innocent victims fall through our bureaucratic cracks.”[19]

As of 2007, the International Displacement Monitoring Centre estimates that at least 26 million have fallen through the cracks.[20]  Africa is the most affected continent of the world with over twelve million people internally displaced in nineteen countries.[21]  The UNHCR’s own figures are derived from the IDMC’s numbers, but more importantly, show that the number of refugees in the same year was only sixteen million.[22]  This shows that the world is dramatically different from when the controlling institutions and legal instruments were created by international bodies at the end of World War II.[23]

South Africa now faces two distinct challenges that it must solve on its own.  The first challenge is to effect a positive change in the attitudes and perceptions of native South Africans towards those perceived as “invaders.”  So far, leaders have exacerbated the problem by their own words and action rather than champion such change.  The second challenge is bringing current domestic laws and policies into accordance with the requirements of South Africa’s constitution and existing international law.

It is axiomatic that “conflict and displacement in one country could disrupt national stability and also create political and economic turmoil throughout geographic regions.”[24]  Therefore, it is in the best interests of the global community that such situations are prevented or that their effects are mitigated to the greatest extent possible should they occur.  However, international efforts to create a binding law for the internally displaced are counterproductive, resulting in a waste of both time and resources, and without the political will to implement and enforce such a law.

C.     Roadmap          

Jeremy Levitt has proposed a three pronged approach of conflict prevention, management, and resolution “as separate but interdependent components and processes of a comprehensive…system…[that] African states and regional actors must institute to provide ample protection to displaced persons.”[25]  Levitt’s model shifts the focus from the international theater to a regional one, emphasizing that “peace must be internally driven.”[26]  Levitt identifies the current legal protections for vulnerable populations as focusing around “three internationally recognized regimes” consisting of numerous “human rights law…humanitarian law…[and] refugee law.”[27]  However, the “events of the last decade” make it clear that “the rest of the world is not proactively concerned” with the problems of the continent.[28]  Therefore, “Africans must…take it upon themselves to proffer African solutions for African problems.”[29]

South Africa is the “regional powerhouse,” and so it is highly doubtful that Levitt’s exact model could prove effective.[30]  Additionally, Levitt notes that “every conflict is unique,” and so conflict resolution strategies must be tailor crafted to each situation as it arises.[31]  The major source of the attacks was xenophobia, which is a “fear and hatred of strangers or foreigners or of anything that is strange or foreign.”[32]  Xenophobia and the discrimination that is caused by it are best understood as a type of structural violence.[33]  Structural violence is “gradual, imperceptible, and diffused in society as the way things are done, as a matter of whose voice is systemically heard or ignored, and who gets particular resources.”[34]

This kind of conflict “is often hidden, chronic, and institutionalized” making it extremely difficult to change.[35]  Effective conflict resolution must be based on “systemic change” that, in this case, will have to correct the two aforementioned challenges facing the country, namely negative perceptions and discriminatory policy.[36]  The first section of this argument will survey the history of South Africa from the arrival of the first colonizers, the Dutch and the English, to the end of the apartheid regime.  The second section covers the current psychology of South Africans regarding foreigners, both in the general population as well as the political leadership, and the justifications provided for it.  The third section explores how this widespread negative perception of foreigners has resulted in outright discrimination in both law and practice.  The fourth section explores domestic and international avenues for change, and the final section concludes with policy recommendations going forward.

II.                Country of My Skull

A.     The Empire’s Arrival

What is past is prologue, and it is there that any informed discussion on

xenophobia in South Africa must begin.  The earliest known inhabitants of southern tip of the continent were the Khoisan people.[37]  They are a traditional pastoralist society that archaeological evidence places in South Africa back to the first century anno domini.[38]  However, like so many other tribes in Africa, the Khoisan would soon become another people conquered by its continental neighbor’s imperial ambitions.[39]

The first Western Europeans to sail past the Cape of Good Hope were the great Portuguese explorers Bartholomeu Dias and Vasco da Gama in the late 15th century.[40]  However, Portugal’s colonial ambitions focused more on the eastern coast of Africa in places such as modern day Zimbabwe and Mozambique.[41]  The pivotal moment in South Africa’s history came in 1649, when Jan van Riebeeck landed on the coast with eighty employees of the Dutch East India Company.[42]  The Dutch had decided to establish a fort in the Cape, an area in the southwestern region of the country, to supply the Dutch East India Company’s fleet on its way to the riches further east.[43]

            The Company funded and managed the entire Dutch empire whose center was in Java, far from Africa.[44]  Nevertheless, the Dutch found that the limited role they envisioned for Table Bay quickly expanded through the typical imperial enterprises of slavery and land grabbing.[45]  Modern South Africa’s remarkably complex racial and social structure began to take shape from the Dutch importing populations from the empire’s holdings around the globe.[46]  However, diversity within a society, in and of itself, does not always equate to conflict.  Instead, social conflict was engendered by the main vector of structural violence in South Africa, unequal treatment under the law. 

Unequal treatment under law is generally achieved in a two step process.  First the law differentiates people, creating a vertical hierarchy where privileges and deprivation become entrenched.  Second, this split forces people into positions where competition, rather than cooperation, becomes endemic.  Establishing competitive approaches within a society regularly result in “a destructive course” for everyone involved.[47]  One of the clearest examples of this cycle playing out is the practice of slavery. 

Dutch law in South Africa was a hybrid of the statutes of Batavia and Roman-Dutch law from Holland.[48]  The Dutch laws divested slaves to the position where they “were unable to marry…unable to make legal contracts, acquire property or leave wills…and could be sold or bequeathed at will.”[49]  African societies had practiced slavery long before the arrival of the Europeans, but it was completely different because the slave did not lose these major rights.[50]  African slaves “were seldom or never mere chattels, persons without rights or hope of emancipation.”[51]  Instead, “household slaves lived with their masters, often as members of the family…they could work themselves free of their obligations…[and even] marry their masters’ daughters.”[52]  Before the arrival of the Europeans, slaves across Africa could often “become traders, leading men in peace and war, governors…even kings.”[53]  Such destinies were entirely closed by European laws, which divided people and forced them into conflict.[54]

The British Empire took possession of the Cape Colony in 1806, but it did nothing to improve the situation.[55]  For example, in order to quell years of violence between the trekboers and the Xhosa people in the eastern frontier, the British decided on a policy of separating the groups and importing more Europeans.[56]  The British continually gave twisted rationalizations for their policies, insisting that they were “civilized.”[57]  One of the colony’s governors wrote in a report to London, “I am happy to add that in the course of this service there has not been shed more Kaffir blood than would seem necessary to impress on the minds of these savages a proper degree of terror and respect.”[58]  The “service” employed by the British consisted of military campaigns to push black tribes, such as the Xhosa, from their lands to make more room for white settlers.[59]

Following the discovery of diamonds and gold in the middle of the 19th century, the British created a new “regime for labour contracts, linking it to a system of pass laws that became the main device for controlling black labour throughout southern Africa” (after being pressured by white miners who were threatened by an abundant supply of cheap labor).[60]  These pass laws labeled black workers as “servants” who were required to register and carry a pass at all times signed by their employer, called the “master,” under penalty of fines, imprisonment, or flogging.[61] 

In a startling case of foreshadowing, the British “saw fit to distinguish between civilized and uncivilized blacks,” the former being “natives, half-castes, and others…who are honest, intelligent and respectable men…[who] must be treated in every way similar to the whites.”  The latter, “uncivilized blacks” were seen as “the great mass of the labouring coloured population” that consisted of “raw Kaffirs, who come from the interior with every element of barbarism…[and] must be treated as children incapable of governing themselves.”[62]  The racial animosity of colonial rule was nothing compared to what was yet to come.

B.      The Scourge of Apartheid

The word apartheid is Afrikaans for “apartness.”[63]  Apartheid laws were a radical expansion of the inherently unequal laws imposed by the former colonial powers.    In 1910, South Africa gained limited independence from British rule, the first country in Africa to do so, and the first apartheid laws were enacted in the 1940s.[64]  Credit for the creation of apartheid goes to Hendrick Verwoed, an Afrikaaner who is known to this day as the “architect of apartheid.”[65]  Under the new republic, the population was divided into one of four racial groups “White, Coloured, Indian, and African.”[66]  Whites, considered the “civilized race,” were “entitled to have absolute control over the state,” and their “interests should prevail over [all] black interests.”[67]

The history of the apartheid regime is well documented, and to discuss it fully is beyond the scope of this article.  However, a few of the developments under apartheid are pertinent to the issue of xenophobia.  The first laws emphasized difference as fundamental and inherently corrosive.  The Prohibition of the Mixed Marriages Act, the Immorality Act, and the Population Registration Act mandated that every person be classified into a racial category and contact between them was outlawed (resulting in countless acts of inhumanity).[68]  This was followed by the elimination of voting rights for the Coloured and African categories.[69]  The government’s divide and conquer strategy allowed the white minority to hold complete power for almost a half century.[70]

            Over the next several decades, the apartheid government created “homelands” to further disenfranchise black Africans by forcing them into ten different territories based on completely artificial boundaries.[71]  In addition, the homelands program created “economic incentives,” in reality an economic necessity, for non-white South Africans to become migrant laborers.[72]  This system was governed by the most restrictive pass laws the country had ever seen.[73]  Under the apartheid pass laws, people lost every conceivable element of freedom and dignity.[74] 

The Group Areas Act “divided urban areas into zones where members of one specified race alone could live and work.”[75]  The domestic situation had become so bad in South Africa that it spurred the General Assembly of the United Nations to pass “annual resolutions condemning apartheid,” eventually declaring it a “crime against humanity” in 1973.[76]  While it was certainly a step forward, these new resolutions did little to actually end the system, and the arms embargo following Steven Biko’s death had a much greater effect than such pronouncements.[77]

Between 1960 and 1983, a study estimated that 3,548,900 people were forcibly removed through the Group Areas Home Act.[78]  These removals resulted in massive “townships” springing up around major cities where people lived in soul crushing conditions.[79]  By 1977, apartheid had resulted in a twenty-six percent unemployment rate amongst those in the African racial category.[80]  By 1980, a World Bank survey of ninety countries showed South Africa had the most “inequitable distribution of income.”[81]  The “top [ten] percent of the population” received “[fifty-eight] percent of the national income,” while the “lowest [forty] percent received [six] percent.”[82]  When the “euphoria that marked the election and inauguration [of Nelson Mandela] died down,” it became overwhelmingly apparent that the “cumulative effects of colonialism, apartheid, and urbanization” created an enormous set of challenges to overcome.[83]

C.     The Rainbow Nation is Born

No discussion of the xenophobic attacks can begin without acknowledging the historical context.  After apartheid’s demise, some South Africans incorrectly assumed that “non-racial” policies “cannot be…oppressive and undemocratic at the same time.”[84]  Believing this to be true, many in the current “ruling party” have used any excuse possible, including history, to argue that xenophobia is not their responsibility and “quite impossible to control.”[85]  Although “the rise of xenophobia…cannot be isolated from the country’s apartheid past of racial class division and animosity,” it exists today because of a fatal trifecta consisting of “racist immigration policies, a siege mentality and attitudes of uniqueness and superiority towards the rest of Africa.”[86]  The result being that “the extreme power of state officials over the weak, whether actually foreign or not, has been…a mere continuation of a pass-like system” from the country’s history.[87] 

Ironically, “white immigrants” do not seem to instill the same kind of “panic and hostility” from South Africans as black immigrants from neighboring countries.[88]  Research shows that white foreigners from “Europe and North America” receive the “most favourable ratings” from South Africans, but it also shows how xenophobia is really racism in another name.[89]  This preference becomes unfair discrimination when the government deports only forty-nine out of the “26,000 [mostly white foreigners]…from Germany, Britain and the United States [who had] overstayed their visit.”[90]  These kinds of incidents led one researcher to conclude that “racism is a key feature of South Africa’s immigration legislation and practice…despite the country’s transition to democracy and equality.”[91]  Besides raising several potential violations of South Africa’s constitution, it also raises serious questions about the motivation and goals of the government.

III.             The Fearful Void

A.     The Popular Opinion

Since 1996, the Southern African Migration Project, SAMP, has been conducting

research on migration issues in South Africa.[92]  Beginning in 1994, SAMP’s research has shown a “hardening of [negative] attitudes” amongst South Africans towards other black Africans.[93]  Between 1995 and 1999, there was an increase of people wanting “strict limits or a total prohibition on immigration” from sixty-five percent to seventy-eight percent.[94]  By 2006, seventy-four percent of South Africans supported “a policy of deporting anyone who is not contributing economically to South Africa.”[95]  Around sixty percent would support deportation solely because a foreigner “test[s] positive for HIV” or has AIDS.[96]  In 1999, sixty-six percent of South Africans wanted their borders to be electrified, but by 2006 that number had risen to seventy-six percent.[97]  This survey research shows that “xenophobic attitudes are deeply-rooted, wide-spread and as entrenched as ever.”[98]

Although this data paints a terrible picture of the average South African, the same study also shows some positive indicators.  First, between the years of 1997 and 2006, the number of respondents who rated the “likelihood of [taking] action against migrants from other…countries” has actually decreased despite the recent attacks.[99]  South African respondents were given a number of different situations and asked if they would actively try to prevent them from occurring.[100]  Out of those who would take action, only sixteen percent were prepared to “combine with others to force foreign nationals to leave their area.”[101] 

Second, the “economic threat posed by immigrants does not appear to be based on personal experience.”[102]  Instead, negative attitudes are formed “in a vacuum, relying mainly on hearsay and media,” meaning that the xenophobia that does exist is the result of “second-hand misinformation.”[103]  This also shows why statements from political leaders are so important, and why they must change in order to eliminate a major source of this structural violence.[104] 

Third, and perhaps most importantly, even though the attacks were widespread, not every “poor [area]…erupted with similar ferocity.”[105]  While some South Africans were attacking people in the streets, others were helping the displaced in any way they could.[106]  There was also strong and widespread condemnation of the attacks by many South Africans, culminating in a “Day of Remembrance” on the third of July.[107]

B.      View from the Top

Politicians and government officials from almost every department and every level have a long record of making disparaging remarks and negative characterizations of black Africans from neighboring countries.[108]  In 1994, the Home Affairs Minister Buthelezi, the department now responsible for helping survivors of the attacks, “drew direct links between migrants and crime” claming that “Mafia-style” foreigners were to blame for “‘drug-trafficking, prostitution and money-laundering.’”[109]  In 1997, the Defence Minister Moise said, “The army is helping the police get rid of crime and violence in the country…However, what can we do?  We have one million illegal immigrants…who commit crimes.”[110]  Even Nelson Mandela hopped on the band wagon, at one speech referring to “threats posed by illegal immigrants, [such as] gun running and drug smuggling.”[111]  All of these examples point towards, what can generously be described as, a “larger political climate in South Africa, which placed high value on restricting access…and limiting immigration.”[112]

Frantz Fanon explained that this shift of perception in both the general populace and government officials towards other Africans was commonplace across the continent.[113] During the “liberation struggle” against colonial powers, “every individual living in Algeria is an Algerian” meaning that Africans shared an inclusive conceptualization of citizenship.[114]  Upon gaining independence, the idea of Pan-Africanism died, and citizenship became exclusionary in nature.[115]  This shift was the most severe in South Africa where citizenship, as well as the rights and privileges that accompany it, changed to a “notion of indigeneity [sic]” rather than common purpose.[116]  This “South African superiority complex in relation to other Africans” was cited by the Human Sciences Research Council as one of the major factors behind the xenophobic attacks.[117]

 

  

C.     The Fortress View

When membership in a society is based on a standard of nativism, it leads to a destruction of the “collective freedom [that] honours the human person and gives each of society’s members maximal respect.”[118]  It results in a “fortress” approach to immigration that can be made using just refugee statistics.[119]  The fortress argument states that “poverty is high in South Africa and unemployment has been growing,” so the government “must look after our own first,” and besides, it would be disastrous to ‘open the flood gates’ allowing the poverty of Africa to overwhelm the economy.”[120]  

According to the USCRI, South Africa had 28,000 refugees in 1998.[121]  By 2008, that number had grown to over 144,000 refugees and asylum seekers within the country.[122]  The majority came from Zimbabwe, and on average the government deported “about 10,000 Zimbabweans per month for illegal entry.”[123]  South Africa’s total population is roughly 48.7 million people.[124]  The USCRI estimates that there are about 147,000 refugees in the United States, roughly the same as South Africa, but the total population of the United States is well over 300 million people.[125]  Proportionately, the number of just refugees in South Africa compared to the total population would be the equivalent of over nine and a half million refugees being in the United States.

            In 2007, South Africa’s gross domestic product, GDP, was roughly 282 billion dollars US with a per capita of 9,700 dollars US.[126]  South Africa’s unemployment rate is 24.6 percent.[127]  Compare this with the United States, whose GDP in 2007 was almost 14 billion dollars US, a per capita of almost 46,000 dollars US, and an unemployment rate of 4.6 percent.[128]  At first glance, these figures seem to provide some justification for a fortress policy.  However, it is relatively simple to refute the policy both legally and substantively.

IV.              Things Fall Apart

A.     In the Law

Rather than live up to the promise of its constitution, which states that “everyone has inherent dignity and the right to have their dignity respected and protected,” South African immigration law has continued to scapegoat foreigners as both the cause of social problems and an economic threat.[129]  First, there was the Aliens Control Act of 1991, described as “apartheid’s last act.”[130]  The 1991 Act was the consolidation of previous laws that explicitly “distinguished between white immigrants and black migrants.”[131]  It also “entrenched the existence of a secretive and non-accountable Immigrants Selection Board and removed the right to appeal to a board.”[132]

This law created, the Orwellian named, “Aliens Control Units” who were “let loose on the street and workplaces.”[133]  These Aliens Control Units “swept through townships; arresting people at random” using “racial stereotypes” to determine their targets.[134]  The government units rounded “them up like convicts” and sent foreigners to “holding centres like the notorious Lindela” to the extent that over “1 million people were rounded up…and deported with no due process.”[135]  However, this law remained the primary instrument for years, and no serious reform movement has been undertaken by the government to create a system that comports with the ideals and requirements of the Constitution.[136]

In 1999, the Minister of Home Affairs offered a new immigration bill that not only failed to make any “fundamental change to the current policing system,” but radically expanded enforcement powers.[137]  In the 2002 Immigration Act, provisions were included stating that xenophobia must be “prevented and countered both within Government and civil society.”[138]  However, policy experts in South Africa argue that the framework of the new act is still “incoherent” and “in many respects, unimplemented.”[139]

B.      In the Streets

Regardless of what the controlling law was at the time, the overall experience of “contact…with state authorities” has been “systematic xenophobia, particularly from the police and Home Affairs officials.”[140]  This systematic xenophobia manifests in the “arbitrary exercise of power, corruption, extortion, and gratuitous violence and torture.”[141]  In a terrible irony, police rely on “apartheid-type” practices such as “the colour of the skin and darker features” or “language checks and inoculation marks.”[142]  Also typical of the apartheid era, the police regularly engage in “the practice of tearing up or otherwise removing official documents” after having demanded their production from suspected foreigners (there is no law in South Africa requiring identification documents be carried).[143]

Extortion is also “extremely widespread among apprehending officers.”[144]  Bribes are used “to secure…release from the custody of apprehending officers,” but authorities will also use the threat of transfers to detention centers in order to extort money.[145]  In September of 2005, “policemen were caught on video extorting funds from friends and relatives for the release of foreigners who had not been convicted of any crime…and some of whom had been unlawfully arrested.”[146]  It seems that such behavior can manifest in any civil institution, even hospitals.  A few months after the videotaped extortion from police, an “asylum seeker” from the DRC “was turned away at the Johannesburg General Hospital as she was about to give birth” because she did not have any money.[147]

V.                 Long Walk to Freedom

A.     Fallacy of the Fortress

No matter what argument is made in favor of “fortress” policies, they all share the same “speculative nature” and flawed “assumptions.”[148]  This prevalent xenophobic attitude is fueled by fundamental attribution error, whereby the behavior of some foreigners has been misattributed to all because of the mere fact that they are foreigners.[149]  Fundamental attribution theory shows “we tend to err toward attributing other people’s behavior to disposition,” whereas we ascribe our own behavior to external “circumstances” beyond our control (negating any person responsibility for ourselves but setting a high standard for others).[150]  Dr. Mamphela Ramphele provided one of the clearest counter arguments to such policies right after the attacks first began.[151]  As a former managing director of the World Bank, she argued that “successful countries everywhere recruit skills globally.”[152]  This is especially true “given the time taken to train South Africans and high rates of migration out of South Africa” making “international migration…the only viable mechanism to provide much needed skills to business.”[153]

According to a study conducted in 2006, 14% of the Johannesburg’s population, or around half a million people, were foreigners; sixty percent of whom “make a positive contribution” to the South African economy, but report “experience[s] of negative treatment” from their fellow city dwellers.[154]  The idea that outsiders “take jobs” from South Africans is a myth, as research has shown that foreigners were “more than twice as likely to be self-employed,” and those who start their own businesses actually created more jobs by hiring others.[155]  The majority of foreign business owners “are operating the only shops in Township areas” which lowers “the costs of acquiring food and other necessities for people living in those areas.”[156]  Research shows that “families spend more for food” after “migrants have been displaced by threats or actual violence,” and “the distance traveled to secure commodities also puts people, often women, at risk of robbery or assault.”[157]  By attacking black Africans, the angry mobs have ultimately hurt themselves and been a cause of the problems they used to justify their actions.

South Africa vigorously lobbied to host the 2010 World Cup, which would bring in a huge number of foreign tourists, mostly from African nations, in order to reap the benefits of a huge “economic boom…[for] the region in terms of direct revenue and spin-off tourism.”[158]  This was all thrown into jeopardy because of the attacks, and an official warned that “if the scenes did repeat themselves, FIFA, [the world’s governing body for football] would rethink its decision in favour of South Africa and, if necessary, pull the plug.”[159]  A month after the attacks, “FIFA president Sepp Blatter” gave the government a warning by announcing that he had “spoken to three countries about hosting the 2010 World Cup” should the organization decide that South Africa was unable to host.[160]

The only saving grace for South Africa is that the attacks “had very little impact on…preparations…in terms of infrastructure, transport systems, planning and organization.”[161]  Also, because the attackers were targeting black Africans who lived in townships, the “central business and tourism areas where visitors would be staying” remained relatively safe.[162]  However, there is no doubt that the attacks were a major blow to the “enthusiasm of fans to travel to the World Cup” and could still affect the outcome.[163]  The World Cup could trigger new attacks if foreigners are seen as “flooding into South Africa expecting to share in the economic benefits.”[164]  Regardless of the contribution that foreigners make to the economy, Ramphele declared that the “government has failed to establish a policy framework that translates…[South Africa’s] human rights obligations under…[the]…national constitution to protect and promote the rights of all people.”[165]

B.      The Role of the Constitution

            Even though “debates on citizenship in South Africa…were overwhelmingly taking place within the confines of state institutions,” those bodies are controlled by the constitution.[166]  It is the supreme law of the land and represents the culmination of decades of struggle, and to not live up to its tenets is a betrayal of the sacrifices and misery that was suffered to see it created.  Because it has, “perhaps the most liberal and human-rights based Constitution in the world,” it is surprising that such conduct by some spheres of government has continued for so long.[167]

There has been concern over what the courts can actually do because of a distinction “in law between citizens and foreigners.”[168]  It is true that numerous sections of the constitution reserve certain rights and privileges solely for “South African citizens.”[169]  Additionally, there is a “strong tendency for the Constitutional Court” to defer to the legislature on any policy matters “based on social and economic conditions.”[170]  However, a non-citizen can still effectuate change using the judiciary. 

Section 167 of the Constitution grants the power to any “person,” rather than only citizens, to “bring a matter directly to the Constitutional Court; or…appeal directly” to it when constitutional issues are raised.[171]  Generally, the Constitutional Court is reluctant to adopt an interpretation of constitutional clauses that would cause “courts to sit in judgment on what are essentially political decisions.”[172]  To do otherwise would mean that “all legislative policy judgments would be subject to the strictest scrutiny.”[173]

However, the Constitutional Court has repeatedly struck down laws that it finds unconstitutional, even on matters based on nationality.[174]  In Khosa v. Minister of Social Development, the court struck down provisions of the Social Assistance Act 59 of 1992 that excluded non-citizens after being challenged by Mozambicans who had acquired permanent residence status.[175]  The result of this holding was “profound,” and it affirmed that “the rights in the Bill of Rights…cannot be construed as referring only to ‘citizens.’”[176]  Predictably, given the research data on xenophobic attitudes, the court’s ruling in this case “gave rise to statements of fear [and criticism] in the press.”[177]

The judiciary is tasked “with defending people’s rights against other state institutions,” but contrary to some social researchers, it does not remove that parallel responsibility from “the people” themselves.[178]  Political mobilization can certainly have positive effects.[179]  For example, in the early 1990s, the National Union of Mineworkers, whose leader at the time was from Lesotho, was instrumental in putting pressure on the government to grant “amnesty” for foreign miners.[180]  As a result of this political mobilization, 124,000 foreign workers from the other countries who were living in South Africa were granted permanent residency status.[181]

Within a month of the first attacks, “refugees living in the [Germiston] city hall…started their own school so that their children can continue to be taught despite being displaced.”[182]  In June, hundreds of those affected marched “to the South African parliament in a demonstration against xenophobia.”[183]  Those who did have jobs “returned to work,” even though most were still fearful, with the tacit understanding that their lives have “to go on.”[184]  If this kind of determination exists, then empowerment could be achieved by bringing suits, with the help of certain advocacy groups, to change national laws before the Constitutional Court.[185]  In fact, such a challenge may be coming in the near future as the Consortium for Refugees and Migrants in South Africa and the Wits Law Clinic will file a petition with “the Constitutional Court to keep refugee shelters open” in Gauteng.[186]

C.     The Role of International Law

Shortly after the first attacks in the Western Cape, representatives from temporary camps set up for the displaced demanded “intervention by the United Nations because the South African government has failed them.”[187]  Two months after the attacks, South Africa sent 17,000 people back to Zimbabwe even after the U.N. called for deportations to be suspended.[188]  Lawyers for Human Rights opposed the government as well, stating that deporting the Zimbabweans back to their home country was a clear violation of both international laws and the basic concept of “non-refoulement.”[189]  South Africa is a signatory of numerous international treaties, including the landmark 1951 United Nations Convention on Refugees that prohibits the forcible returning of a refugee to their country of origin if there is a well-founded fear of persecution or threat to their life (commonly called the obligation of non-refoulement).[190]  However, South Africa did not ratify either the Draft Protocol on the Free Movement of Persons in 1995 or the United Nations Convention on the Rights of All Migrant Workers and Members of Their Families, delivering a blow to expanding the rights of foreign nationals.[191]  If the South African government is willing to violate international law, while at the same time making no effort to expand them, then what hope is there for the Guiding Principles?

By its very nature, internal displacement connotes a violation of existing rights.[192]   For example, Article 1 of the African Charter on Human and Peoples’ Rights states that every member of the African Union shall recognize the rights duties and freedom enshrined in this Charter and shall undertake to adopt legislative and other measures to give effect to them.”[193]  Physical safety is supposed to be ensured by Article 3 of the Universal Declaration of Human Rights which mandates that “every person has the right to life, liberty and security of person,” and article 6 of the Geneva Convention outlaws acts of violence, murder, torture, mutilation and rape against civilians.[194]  However, it is “geo-political interests, more than anything else,” that has “undermined the ability of the existing international human rights regime to protect [both] refugees and internally displaced persons” regardless of the treaty.[195]  The global community can ratify as many treaties or develop as many new rights documents as it wants, but without the political will to act on them, it is sound and fury signifying nothing.

D.     An Example Next Door

When the U.N.’s leadership had a chance to “advance the GPID” and generate “a norm shift” in South Africa’s neighboring country Zimbabwe, they failed miserably.[196]  In 2005, Robert Mugabe began “Operation Murambatsvina,” which translates as “clean out the trash,” and sent “bulldozers and police [to destroy]….shantytowns in Harare’s high-density suburbs.”[197]  The result was that up to “700,000 people lost [their] homes and livelihoods” leaving them “exposed to the elements” at the start of winter.[198]

Former U.N. Secretary-General Kofi Annan, born in Ghana, has sometimes lamented that he is “ashamed to be an African” because of the never ending problems on the continent stemming from poor leadership and petty tyrants.[199]  Annan responded to Mugabe’s new program by appointing Anna Kajumulo Tibaijuka as a “Special Envoy on Human Settlement Issues” with a “mandate…to report on the effects of Operation Murambatsvina and present recommendations.”[200]  The first problem with this course of action is that “Special Envoys have no true authority…[and so] her report had no binding effect.”[201]  Further, Tibaijuka’s report “did not apply the Guiding Principles…[and] hesitated to say that the Responsibility to Protect was triggered by the situation.”[202]  This raises another problem.

Even if the report had recommended intervention, “Zimbabwe is not party to the Rome Statute,” and so “any determination that Zimbabwe was in violation” of international law would “require referral to the U.N. Security Council for a determination of action.”[203]  As one of the five permanent members of the Security Council, “China made clear” that it would use its “veto power” on “any resolutions targeting Zimbabwe.”[204]  Thus, political deadlock once again ruled the day at the UN.

Sarah Hager argues that Annan should have sent Walter Kalin to issue a report because he was the “Representative of the Secretary-General on the Human Rights of Internally Displaced Persons” mandated “to engage in coordinated advocacy in favor of the protection and respect of the human rights of IDPs.”[205]  Following Tibaijuka’s report, the only avenue left to Kalin was to “delicately convey his irritation in a publish press release.”[206]  In his statement, Kalin emphasized “the legitimacy of the GDIP” and its foundation in “binding documents Zimbabwe has ratified,” meaning that the government’s actions equated to numerous “violations of [both] the GPID” and international law.[207]  However, Tibaijuka’s report was the first, strong statement from the U.N. and “concluded that the actions were only violations of national law” providing an excuse for nations to sit on their hands.[208]

Hager posits that Tibaijuka was sent to report on the situation in Zimbabwe so it appeared “less politically-charged” to Mugabe, and “the issue of state sovereignty raised by the GPID” could be avoided.”[209]  Ultimately, the whole incident represents “a glaring failure of opportunity on the part of the United Nations to advance the rights of IDPs.”[210]  Regardless of the actions taken by its bureaucracy, the U.N. is also hampered by political wrangling between its member states.  For example, “Britain, Greece, Australia and New Zealand” tried to have Tibaijuka’s report “placed on the Security Council agenda,” but were simply blocked by “China, Russia, and Tanzania” for their own interests.[211]  Ultimately the whole process is at odds with itself as the “U.N. Charter explicitly directs that the sovereignty of states be protected,” and yet, “responsibility to provide protection and services…rests with…the state.”[212]  Until the member states of the United Nations can reconcile these opposite commitments, it is pointless to discuss their potential for helping the internally displaced through new law.

E.     Wait and See

Waiting for an international solution could take an indeterminable amount of time, so it is up to South Africa to deal with the structural violence of xenophobia within its borders.  However, as the attacks unfolded, the leadership was scrambling to respond.  President Mbeki did not approve the deployment of the SANDF, South African National Defence Force, until May 21st, ten days after the first mobs took to the streets (at which point forty-two people had been killed).[213]  He was also criticized by the press for not visiting “the worst affected areas of Johannesburg after two weeks of violence.”[214]  Trying to avoid any responsibility, Mbeki issued several press releases characterizing the violence as being perpetrated by just a “few criminals in our midst.”[215]  Hoping it would prove more effective than his earlier pleas for the violence to end, President Mbeki made a televised address on May 25th calling the attacks a “disgrace.”[216]

Mbeki’s handling of the attacks, as well as his delay in invoking the emergency powers clause of the constitution allowing the deployment of the SANDF, was widely criticized across the country.[217]  By June, the South African Communist Party was calling for Mbeki’s recall as president stating that “the events of the past weeks have exposed the dangers of a leadership vacuum in our country.”[218]  In the same statement, the SACP emphasized that “our region cannot afford to persist with the current blend of directionless absenteeism, and meddling factionalism and general irresoluteness.”[219] 

In late September, the pressure finally overcame Mbeki, and he resigned from office.[220]  He had already been weakened by his handling of mediations in Zimbabwe as well as the revelation by a “High Court judge [who] suggested there had been political interference in a case against his party rival, Jacob Zuma.”[221]  When the SACP first made their call for Mbeki’s resignation, their main concern was how it “should be done without creating more instability.”[222]  So far, it seems as if instability has been the only thing to come from Mbeki’s resignation.

Jacob Zuma is “expected to become…president after next year’s elections.”[223]  He is immensely popular with the average South African, exhibiting a common “touch” compared to Mbeki, who was seen by most as “rather aloof.”[224]  After being fired as the deputy president in 2005, he went on to defeat Thabo Mbeki to become the president of the African National Congress as part of a “titanic power struggle” within the party.[225] 

Zuma is also no stranger to controversy, but it has had little effect on his popularity.[226]  He is so popular that the ANC Youth League President and Zuma supporter Julius Malema said that he was ready to “kill” for him.[227]  During the attacks, some rioters were singing Zuma’s signature song “Awuleth’ umshini wami” while they looted and killed in the streets.[228]  Zuma did not condemn the use of the song but merely said it was an “abuse,” given its context during the struggle against apartheid.[229]  However, he did make a statement that “we can’t be a xenophobic country. It’s not good for our country. We need to find the culprits responsible for the attacks.”[230]

  Mbeki’s resignation was followed by a “wave of ministerial resignations” from loyalists and Mosiuoa Lekota announced the formation of “a new, breakaway party” from the ANC.[231]  Tentatively called the South African Democratic Congress, its candidates will run against the ANC in the upcoming elections.[232]  This split in the ANC has corresponded with a dramatic increase of political violence, including an “attack with axes on three DA [Democratic Alliance] members in Ekurhuleni and chants calling for ANC rebels to be killed” at a number of rallies.[233]  Another dangerous element of the split is that “people have organised and used ethnic arguments or tribal arguments to garner support in the different regions of the country for these two factions.”[234]  As the fight for political power becomes more intense, the risk that this instability will “spiral out of control” grows greater, and the likelihood that anything will be done to combat xenophobia decreases.[235]  These developments are part of a larger trend whereby “institutions once dedicated to intellectual freedom have become politicized,” and that is where “violence begins.”[236]

VI.              Cry the Beloved Country

A.     Political Will

Dr. Ramphele hopes that the xenophobic attacks will be “a major shock” that forces “society to confront challenges it has been either denying or underestimating.”[237]  Unfortunately, there are several developments since the “end” of the attacks that show that nothing has changed.  First, attacks and threats have continued, only on a less visible scale, while the government pushes forward with its policy of reintegration.[238]  The mayor of Cape Town said reintegration of the displaced was “crucial” and wants the SANDF as part of a “peacekeeping force” that will “reassure people that their rights will be protected”.[239]  Thus far, this policy seems to be an utter failure.

Once the attacks “subsided,” a Mozambican man returned home to be stoned and burned to death in Brazzaville.[240]  Meanwhile, a government spokesperson said “reintegration was going well, with communities like Masiphumelele welcoming residents back and apologising to them.”[241]  This may be true on some level, but it comes across as either cynical or naïve in the face of an Ethiopian man being shot to death in Masiphumelele just two days after returning home.[242] 

In July, a DRC refugee returned home after spending a month in a temporary camp for the displaced only to be greeted by gunshots in the night.[243]  When it was reported to the police, they declined to investigate saying, “Oh, it’s makwerikweri [a derogatory name for foreigners]…If I make an investigation” then it will give them an excuse not to return to their homes.[244]  Fearing for their lives, many refugees returned to the temporary camps with their children where there was at least safety in numbers.[245]  The same month, also saw Somali traders being beaten and robbed by a small mob, while provincial authorities were claiming reintegration was a “success.”[246]

Second, the political leadership and institutions have failed to be champions for the targets.  Many government officials are not interested in accountability, which is why they disbanded a special investigations unit called the “Scorpions.”[247]  The Scorpions were “set up to tackle high-profile crime,” and during their operation finalized “1,500 investigations,” “made close to 2,000 arrests,” and seized “more than $500 million-worth of contraband.”[248]  However, from the start they suffered “interference from the highest echelons” for rooting out corruption and fraud within the government itself.[249]  One of the strongest supporters for disbanding the Scorpions was Jacob Zuma.[250]

 

At a meeting with refugees and asylum seekers, the current Minister of Home Affairs, Nosiviwe Mapisa-Nqakula, correctly identified the root of police misconduct as a “lack of leadership.”[251]  At that meeting in March 2007, the Minister “branded xenophobia as a cruel form of racism which should not be tolerated.”[252]  And yet a year later, she was threatening to deport any asylum seekers who did not register with her department (even though it was illegal).[253]

 

This behavior has also continued in non-governmental institutions.  A local branch of the National African Federated Chamber of Commerce and Industry, NAFCOC, sent out more than 200 letters to Somali traders warning them “to close their shops by September 21 or they will ‘resolve to much higher actions that will include physically fighting’ for their rights.”[254]  When asked about the incident, NAFCOC disavowed the letters saying it was not a national effort, but never offered any statements or gestures of support for the Somali traders who received them.[255] 

 

Some leaders like Ramphele and Archbishop Desmond Tutu have been vigilant, with Tutu saying that such behavior from his fellow South Africans “is how the Holocaust happened.”[256]  However, the majority have been making empty statements without corresponding action.  The absence of political will on the part of government officials tells the country, the displaced, and the world that they do not take the problem seriously.  It also means that it falls to the judicial system to be the sole force of driving change.

 

B.      Policy Recommendations

First, and most urgently, government officials need to make strong statements

followed with decisive action to ensure the safety of black foreigners.  Reintegration can only be successful if the fears of those returning are not confirmed by more threats and open violence.  Realizing this, the Constitutional Court already issued an order following lawsuits that “nobody is allowed to be forcefully moved from their shelter, unless for the consolidation of a camp or to be taken to a repatriation facility.”[257]

            Secondly, domestic immigration law must be brought into line with the constitution in order “to establish a policy framework that translates…human rights obligations.”[258]  Section 9 of the Constitution states “everyone is equal before the law and has the right to equal protection and benefit of the law.”[259]  Further, both the state and any person are prohibited from unfairly discriminating against “anyone.”[260]  There is a strong case to be made that the current immigration laws and policies are in violation of Section 9 given the jurisprudence of the Constitutional Court.[261]

Although the Constitutional Court is set to begin hearing arguments from advocates at the end of November, the ultimate responsibility lies with the legislature.[262]  Additionally, the lower courts have been issuing rulings on over “1,446 charges…related to the May violence” resulting in numerous convictions.[263]  Obviously, not all of those who were guilty for the attacks will be brought to justice.  However, the convictions that are made can show the populace that “taking the law into its own hands will not be tolerated.”[264]  This can deter “similar actions in the future” and show foreigners that the government, or at the least one branch of it, is committed to changing the situation.[265]  It also helps build trust with the much abused community that is essential to “short-term conflict containment.”[266]

            Third, there needs to be a renewal of education campaigns to combat negative perceptions of black Africans with the “same commitment that state and civil society has shown towards the scourge of racism.”[267]  As the SAMP points out, this is best achieved through “a broad, high-profile, multi-media, government-initiated and sponsored anti-xenophobia education program that reaches into schools, workplaces, communities, and the corridors of the public service.”[268]  To be effective, it must be “systematic and ongoing” unlike the “Roll Back Xenophobia” campaign previously undertaken by the Human Rights Commission that ended in 2002.[269]

            Fourth, it is essential to increase the transparency and accountability within government institutions.  This means an increased role for bodies like the Scorpions, not a disbanding of them, that are tasked with ending “corruption in all aspects of the immigration system.”[270]  The police have the will to warn “all political parties that violence…or incitement to violence…will not be tolerated,” and such behavior will be pursued as a “criminal offence,” but so far they have not displayed the same tenacity with combating xenophobia.[271]

Fifth, organizations and constitutionally mandated bodies like the Human Rights Commission, because of its “vital role in the promotion of social welfare rights,” must step up and act.[272]  The HRC’s powers include and go “beyond the judicial processes,” meaning that they are in an invaluable position to vigorously combat xenophobia.[273]  Unlike the judiciary, the HRC can act on its own initiative to “make the legislature account for the amount it spends or fails to spend” and to “expose situations which it considers a dereliction of the states’ duties.”[274]

“Structural violence maims and kills,” but can be ignored for generations.[275]  These recommendations are all based on developing systematic changes utilizing “legal safeguards” to overcome the “societal biases” that plague more “informal dispute resolution venues.”[276]  However, these changes cannot succeed without political will and a realization on the part of government leaders that the problem is “about society, not [just] the state.”[277]  Leaders must ascribe to a “politics of responsibility” created by “an act of commitment,” whereby they pledge to “pursue a moral vision and create a society built on justice, compassion and respect for human dignity.”[278]  It is not a lofty ideal enshrined only in South Africa’s constitution, but a necessity for survival.

C.     The Future

In 2001, South Africa hosted the United Nations’ landmark World Conference on Racism, where many rallied for apologizes and reparations for every manifestation of racism over the past several centuries, including the “slave trade and colonialism.”[279]  The political fight was intense, and the declaration finally agreed upon represented a “bit of everything to everyone…every lobby was able to get its own pet aversions included.”[280]  The event was scorned by many, but hailed by even more as “a triumph in terms of visibility and impact.”[281]  In one of the greatest ironies in the discussion of xenophobia in South Africa, the township of Zandspruit, near Johannesburg, erupted in brutal violence just a month after the conference.[282] 

The angry mobs, because they were “sick” of Zimbabweans, burned and looted homes promising they would kill any “foreigners” if they saw them again in Zandspruit.[283]  The victims included people like Dennis Dube who had been living and working in the country since 1976 (Dennis was originally from Zimbabwe, but had obtained legal resident status five years before the attacks).[284]  Dennis was married to a “native” South African and lived in a small house that he had built for the two of them before it was destroyed by a “petrol bomb” (he also had eight children still in Zimbabwe whom he was supporting with his job in South Africa).[285]  Miraculously, no one was killed, but people like Dennis lost everything short of life itself.[286]  After decades in the country, Dennis said, “I’m just so sad that they [South Africans] can treat me like this, I’ve never known anything like this.”[287]

Following these attacks seven years ago, the HRC issued a statement that condemned the attacks as racial cleansing.[288]  The HRC went on to say that “whilst we acknowledge the dire economic situation faced by many South Africans, actions such as those in Zandspruit merely fuel xenophobic hatred rather than address the core issues of economic underdevelopment.”[289]  The core issues, economic and otherwise, have not been addressed.  The only way that this can change is for future leaders, like Jacob Zuma, to live up to their duties as government officials and implement the kind of measures outlined in this note.  If leaders fail to demonstrate the political will needed to see these changes through, as they have in the past, then many more lives will likely be destroyed in the interim.  The result would be disastrous for both South Africans and the country they hold dear.  As Queen Elizabeth said in Shakespeare’s Richard III, “I see the downfall of our house! The tiger now hath seized the gentle hind; Insulting tyranny begins to jet Upon the innocent and aweless throne: Welcome, destruction, death, and massacre! I see, as in a map, the end of all.”[290]

At a Youth Day rally in Cape Town, Nelson Mandela told the crowds, “As future leaders of this country, your challenge is to foster a nation in which all people, irrespective of race, colour, sex, religion or creed, can ascertain a social cohesion fully.”[291]  He told those in attendance that “you must continue to promote the principle of relentless freedom and democracy as it is the foundation upon which issues of human rights are ingrained.”[292]  South Africa is “a nation that has been able to rise to greatness under extreme pressure” in the past.[293]  It can do so again.

 

 

 

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* Mark Christopher Hopson is a third year law student at Barry University School of Law. He received his B.A. with highest honors in both History and Conflict Analysis and Dispute Resolution from Salisbury University. He recently returned from a summer abroad studying law at the University of the Western Cape in South Africa through Howard University School of Law. The author would like to thank all of his friends and colleagues in South Africa for teaching him about a remarkable place first hand. Nkosi sikelel’ iAfrika.

[1] Halden Krog, Flames of Hate, https://www.thetimes.co.za/News/Article.aspx?id=768842 (last visited Nov. 26, 2008).

[2] Id.  The man was 35 years old from Mozambique named Ernesto Alfabeto Nhamuave, who had come to South Africa hoping to earn enough money to pay for the education of his three children. He died of his wounds soon after being rescued. The images of this horrific scene were broadcast and published in media outlets across the country. A reporter’s reaction and photographs, which are very graphic, can be located at https://multimedia.thetimes.co.za/photos/2008/05/flames-of-hate/ (last visited Nov. 26, 2008).

[3] Id.

[4] Id.

[5] Ernest Mabuza, South Africa: Xenophobic Rage Leaves Trail of Havoc in Gauteng, https://allafrica.com/stories/200805190001.html (last visited Nov. 26, 2008).

[6] South African Press Association, Xenophobic Death Toll Hits 62, https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=776700 (last visited Nov. 26, 2008).

[7] South African Mob Kills Migrants, https://news.bbc.co.uk/2/hi/africa/7396868.stm (last visited Nov. 26, 2008).

[8] Id.

[9] SA Mourns Victims of Xenophobia, https://news.bbc.co.uk/2/hi/africa/7486969.stm (last visited Nov. 26, 2008).

[10] Id.

[11] William Shakespeare, The Complete Works 9 (Random House 1975).

[12] Everett C. Dolman, Pure Strategy: Power and Policy in the Space and Information Age 74 (Routledge 2005).

[13] The Perfect Storm: The Realities of Xenophobia in Contemporary South Africa 21 (Jonathan Crush ed., Idasa Press 2008).

[14] Id. at 1.

[15] United Nations Guiding Principles on Internal Displacement, available at https://www.reliefweb.int/ocha_ol/pub/idp_gp/idp.html (last visited Nov. 26, 2008). 

[16] Francis Deng, The UN and the Protection of Human Rights: The Global Challenge of Internal Displacement, 5 Wash. U. J.L. & Pol’y 141, 146 (2001).

[17] Id.

[18]  Richard Holbrooke, Promoting Peace and Security: Humanitarian Assistance to Refugees in Africa, available at https://www.reliefweb.int/idp/docs/references/AddressHolbrookejan2000.pdf.

[19] Id. 

[20] Internal Displacement Monitoring Centre, Internal Displacement: Global Overview of Trends and Development, 6, available at https://www.internal-displacement.org/8025708F004BE3B1/(httpInfoFiles)/BD8316FAB5984142C125742E0033180B/$file/IDMC_Internal_Displacement_Global_Overview_2007.pdf.  These figures are compiled from just fifty-two countries around the world.

[21] Id. 

[22] United Nations High Commissioner for Refugees, 2007 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons, 2, available at https://www.unhcr.org/statistics/STATISTICS/4852366f2.pdf.

[23] Alex J. Bellamy, Paul Williams & Stuart Griffin, Understanding Peacekeeping 16 (Polity Press 2004).

[24] Roberta Cohen, The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting, 461, available at https://www.brookings.edu/fp/projects/idp/articles/cohenr_20041001.pdf.

[25] Jeremy Levitt, Conflict Prevention, Management, and Resolution: Africa—Regional Strategies for the Prevention of Displacement and Protection of Displaced Persons: Cases of the OAU, ECOWAS, SADC, and IGAD, Duke J. Comp. & Int’l L. 39, 46 (2001).

[26] Id. at 69.

[27] Id. at 49.

[28] Id. at 79.

[29] Id.

[30] Michael Georgy, Analysis: Regional Leaders Toothless in Zimbabwe Crisis, https://africa.reuters.com/wire/news/usnLA387650.html (last visited Nov. 26, 2008). Add impact of south Africa on Zimbabwe negotiations

[31] Levitt, supra note 25, at 68.

[32] Merriam-Webster Online, Xenophobia, available at https://www.merriam-webster.com/dictionary/xenophobia (last visited Nov. 26, 2008).

[33] The Handbook of Conflict Resolution: Theory and Practice 404 (Morton Deutsch & Peter T. Coleman eds., Jossey-Bass Publishers 2000).

[34] Id.

[35] Id.

[36] Id. at 418.

[37] John Reader, Africa: A Biography of the Continent 449 (Vintage Books 1999).  Upon arrival of the first European settlers, the population of the Khoisan is estimated to have been approximately 50,000 with a very low density.

[38] Id. at 450.

[39] Id. at 456.

[40] Leonard Thompson, A History of South Africa 31 (Yale University Press 2000).

[41] Id. at 32.

[42] Id.

[43] Id.  The Dutch East India Company was the first corporation in modern history.  In the 1600s, the Dutch were the dominant power of the world and the Company’s fleet totaled over six thousand ships with over forty-thousand sailors just to operate them.  Its mark on South Africa is indelible and its memory lingers on both the land and the people of South Africa as the start of white exploitation of the land.

[44] Simon Winchester, Krakatoa, 34 (Harper Perennial 2003).

[45] Thompson, supra note 40, at 33. The first major arrival of slaves came in 1658 with 170 men, women and children.  By 1793, the Company’s records showed that the slave population had risen to 14,747.  Slaves were necessary for van Riebeeck mainly because of the labor needed to establish a presence as the Khoisan had become extremely unwilling to aid the Dutch in any way.  The first wars between the Khoisan and the Dutch broke out soon after the European’s arrival, but the Dutch were heavily advantaged by firearms, smallpox and the well constructed Castle of Good Hope which remains in to this day in downtown Cape Town.

[46] Id. at 35.

[47] Deutsch, supra note 33, at 21.

[48] Reader, supra note 37, at 42.  Batavia was the word for the Dutch East Indies, which is modern day Indonesia.

[49] Id. at 42-3.  The same is true of other European colonizers whose laws were substantially different from the African laws they replaced by force.

[50] Basil Davidson, Africa In History: Themes and Outlines 209 (Simon & Schuster Paperbacks 2005).

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55]Martin Meredith, Diamonds, Gold, and War: The British, The Boers, and the Making of South Africa 1 (Public Affairs 2007).  The British first took the Cape Colony by force in 1795, but the Dutch regained possession under the 1803 Treaty of Amiens only to lose it again in 1806.  Formal British rule was established by negotiations in 1814.  However, the struggle continued for a century eventually leading to the Boer Wars of the late 19th century, fueled in part by the immense mineral resources discovered in the country in the 1870s.  For a more detailed discussion on the political history of these developments see Martin Meredith’s Diamonds, Gold, and War: The British, The Boers, and The Making of South Africa.

[56] Reader, supra note 37, at 461.  Trekboer is the combination of two Afrikaans words, “trek” meaning pull and “boer” meaning farmer.  This is a description for the lifestyle chosen by white pastoralists in the country originating from the “free burghers” who were employees of the Company imported to settle the land.  As part of a cultural movement, the Boers redefined themselves as Afrikaners who were whites of Dutch descent whose native language was Afrikaans.  Afrikaans is a Hottentot language derived from Dutch but was forced upon many others in South Africa through the education system during apartheid.

[57] Meredith, supra note 55, at 2.

[58] Id.

[59] Reader, supra note 37, at 462. At the time the British took control, there was enormous political pressure to solve widespread social unrest due in part to overpopulation and unemployment.  The British decided to expand by measures such as sending convicts to Australia and ultimately thousands of British subjects to the Cape with guarantees of land grants in 100 acre plots.

[60] Meredith, supra note 55, at 45.

[61] Id.

[62] Id. at 45-6.

[63] Reader, supra note 37, at 644.

[64] Id. at 643.

[65] Id. at 490.

[66] Thompson, supra note 40, at 190.

[67] Id.

[68] Id.  These laws destroyed social relationships in the country by banning marriage and sexual relations between racial categories.  When members of the same family were classified into different racial categories it resulted in a destruction of the family.  It also eroded the integrity of the judiciary.  For example, after a court ruled that segregation of public facilities was unlawful if they were not equal, the government just passed a law to overturn the court’s decision.

[69] Id.  With each law came an attempt by the courts to hold them as invalid, but Parliament was determined to create this terrible new world and continually passed laws degrading the power and integrity of the judicial system.

[70] Id. at 243.

[71] Id. at 191.

[72] Thompson, supra note 40, at 192-193.

[73] Id.

[74] Id.

[75] Id. at 194.

[76] Id. at 214.

[77] Id.  The embargo only spurred the apartheid regime to spend more resources on its own domestic weapons industries negating the most severe impact that such an embargo would have normally had.  Also, it was the Organization of African Unity (OAU) and its member states that did far more to actively help South Africans in their struggle, at least compared to the UN, establishing camps for refugees as well as providing education and military training.  However, because they were relatively weak and faced numerous problems of their own, such efforts could only accomplish so much.

[78] Supra note 75.

[79] Thompson, supra note 40, at 194-95.  By 1970, the black population working in manufacturing and construction was earning six times less than their white counterparts.  The actual wages of African workers in mines were less than they had been in 1911 under British rule, earning twenty-one times less than white counterparts.  Townships were also experiencing incredibly high levels of poor nutrition, almost no education, and disease that further exacerbated the misery of lives under apartheid.

[80] Id. at 195.

[81] Id. at 202.

[82] Id.

[83] Id. at 265.

[84] Michael Neocosmos, From ‘Foreign Natives’ to ‘Native Foreigners’ Explaining Xenophobia in Post-apartheid South  Africa: Citizenship and Nationalism, Identity and Politics 91 (Council for the Development of Social Science Research in Africa 2006).

[85] Id. at 125.

[86] Crush, supra note 13, at 6.

[87] Neocosmos, supra note 84, at 125.

[88] Crush, supra note 13, at 20.

[89] Id. at 30.

[90] Neocosmos, supra note 84, at 95. It also raises potential violations of several constitutional provisions, not least of which is the equality clause which reads that “the state may not unfairly discriminate directly or indirectly against anyone” on grounds including “race…ethnic or social origin [or] colour.”

[91] Id. at 95.

[92] South African Migration Project, About SAMP: An Introduction, https://www.queensu.ca/samp/aboutsamp/index.htm (last visited Nov. 26, 2008).

[93] Crush, supra note 13, at 24.

[94] Id.

[95] Id. at 25.

[96] Id.

[97] Id. at 39.  Although this sounds draconian, the wildlife in South Africa often requires electrified fences and they are quite common in rural areas to keep certain animals, seen as pests, from harassing livestock or destroying property. 

[98] Id.

[99] Id. at 37.

[100] Id. at 37.  These scenarios included a foreigner moving into your area, operating a business in your area, sharing a classroom with your children, and becoming a co-worker.

[101] Id.

[102] Id. at 33.

[103] Id. at 31.

[104] Id. at 39.

[105] Id. at 13.

[106] Borrie la Grange , R20m Fund to Help Xenophobia Victims, https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=774257 (last visited Nov. 26, 2008); Tamlyn Stewart, Hall of Hope for the Desperate, https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=774255, (last visited Nov. 26, 2008).

[107] Crush, supra note 13, at 54.

[108] Id. at 17.

[109] Id. at 16.

[110] Id. at 17.  Minister Buthelezi was infamous for xenophobic remarks, for example, at one point suggesting that all Nigerian immigrants are criminals and drug traffickers.

[111] Id. at 17.

[112] Id.

[113] Frantz Fanon, The Wretched of the Earth 126 (Grove Press 2004).

[114] Neocosmos, supra note 84, at 11.

[115] Fanon, supra note 113, at 126-9.

[116] Neocosmos, supra note 84, at 12.

[117] Human Sciences Research Council, Violence and Xenophobia in South Africa: Developing Consensus, Moving to Action, 15, available at https://www.hsrc.ac.za/research/output/outputDocuments/5504_Hadland_ViolenceandxenophobiainSA.pdf.

[118] Jonathan Sacks, The Home We Build Together: Recreating Society 10 (Continuum Books 2007).

[119] Neocosmos, supra note 84, at 90.

[120] Id. at 95.

[121] United States Committee for Refugees and Immigrants (USCRI), World Survey: South Africa, available at https://www.refugees.org/countryreports.aspx?id=1001 (last visited Nov. 26, 2008).

[122] USCRI, World Survey: South Africa, available at https://www.refugees.org/countryreports.aspx?__VIEWSTATE=dDwtOTMxNDcwOTk7O2w8Q291bnRyeUREOkdvQnV0dG9uOz4%2BUwqzZxIYLI0SfZCZue2XtA0UFEQ%3D&cid=2170&subm=&ssm=&map=&searchtext=&CountryDD%3ALocationList= (last visited Nov. 26, 2008).

[123] Id.

[124] Central Intelligence Agency, The World Factbook: South Africa, available at https://www.cia.gov/library/publications/the-world-factbook/print/sf.html (last visited Nov. 26, 2008).

[125] USCRI, World  Survey: United States of America, available at https://www.refugees.org/countryreports.aspx?subm=&ssm=&cid=2177 (last visited Nov. 26, 2008).

[126] Supra note 124

[127] Supra note 124.

[128] Central Intelligence Agency, The World Factbook: United States of America, available at https://www.cia.gov/library/publications/the-world-factbook/print/us.html (last visited Nov. 26, 2008).

[129] S. Afr. Const. (Act 108 of 1996) Section 10. 

[130] Jonathan Crush & Raesibo Mojapelo, Introduction: Immigration Law, Human Rights and the Constitution, available at https://www.queensu.ca/samp/publications/book/intro.htm (last visited Nov. 26, 2008).

[131] Sally Perberdy, A Brief History of South African Immigration Policy, available at https://www.queensu.ca/samp/transform/Peberdy.htm (last visited Nov. 26, 2008).

[132] Id.

[133] Crush, supra note 13, at 18.

[134] Id.

[135] Id.  Section 10 of the Constitution states “everyone has inherent dignity and the right to have their dignity respected and protected” while numerous sections require procedural rights such as fair action in trial or administrative procedures, due process rights, a fair trial, notice of charges and adjudication by an independent tribunal.

[136] Crush, supra note 13, at 20.

[137] Immigration, Xenophobia and Human Rights in South Africa, 9 (Johnathan Crush ed., 2001) available at https://www.queensu.ca/samp/sampresources/samppublications/policyseries/policy22.htm (last visited Nov. 26, 2008).

[138] Crush, supra note 13, at 40.

[139] Id. at 43.

[140] Neocosmos, supra note 84, at 103.

[141] Id. at 103.

[142] Id. at 104.

[143] Id.

[144] Id.

[145] Id.

[146] Id. at 106.

[147] Id. at 107.  The woman was forced into the parking lot to give birth, but was helped by two paramedics.  After giving birth she went to the same hospital and forced to stay there for four days and release with a bill for 26,407 Rand (seven rand is equivalent to about one dollar US).  When the Department of Health’s spokesman was asked about the incident, he said “The general policy is that foreigners have to pay for services rendered because we are protecting resources meant for our citizens.”  

[148] Id. at 4.

[149] Deutsch, supra note 33, at 240.

[150] Id.

[151] Mamphela Ramphele, A Mirror Image of Our Society, available at https://www.opendemocracy.net/article/migrant_voices/mamphela_ramphele (last visited Nov. 26, 2008).

[152] Id.

[153] Loren B. Landau & Veronique Gindrey, Migration and Population Trends in Gauteng Province 1996-2055, 17, available at https://migration.org.za/wp-content/uploads/2008/03/42_LandauGindrey.pdf.

[154] Agence France-Presse, Experts Slam SA Over Immigration Policy, https://www.mg.co.za/article/2008-08-28-experts-slam-sa-over-migration-policy (last visited Nov. 26, 2008).

[155] Supra note 153.

[156] Id.

[157] Id.

[158] Romi Fuller, South Africa: Xenophobia, Crime and Security in SA, available at https://allafrica.com/stories/200809050763.html?page=5 (last visited Nov. 26, 2008).

[159] Top UN Official: S. Africa Risks Losing 2010 World Cup Over Xenophobic Attacks, https://www.mathaba.net/0_index.shtml?x=593882 (last visited Nov. 26, 2008).

[160] Associated Press Sports, FIFA Has 3 Alternate Sites for 2010 World Cup, available at https://nbcsports.msnbc.com/id/25612796/ (last visited Nov. 26, 2008).

[161] Fuller, supra note 158.

[162] Id.

[163] Id.

[164] Fuller, supra note 155, at 6.

[165] Ramphele, supra note 151.

[166] Neocosmos, supra note 84, at 83.

[167] Crush, supra note 13, at 15.

[168] Neocosmos, supra note 84, at 131.

[169] Id.

[170] Ziyad Motala & Cyril Ramaphosa, Constitutional Law: Analysis and Cases 281 (Oxford University Press 2002).

[171] S. Afr. Const. (Act 108 of 1996) Section 167.

[172] Motala, supra note 170.

[173] Id.

[174] Iain Currie & Johan de Waal, The Bill of Rights Handbook 472 (Juta & Company 2005).

[175] Id.

[176] Id. at 473.

[177] Neocosmos, supra note 84, at 131.

[178] Id. at 117.

[179] Id.

[180] Id. at 78-85.

[181] Crush, supra note 13, at 45.

[182] Tamlyn Stewart, Refugees Start Their Own School, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=774167 (last visited Nov. 26, 2008).

[183] Crush, supra note 13, at 53.  Additionally, Section 18 of the Constitution provides “everyone” has the right to peacefully assemble, but Section 19 outlining political rights protects activities like forming a political party, hold public office and voting for “citizens.”  However, such differentiation is typical in constitutions around the world.

[184] Karen Van Rooyen, Displaced People Return to Their Jobs, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=776786 (last visited Nov. 26, 2008).

[185] Borrie la Grange, Court’s Lifeline to Foreigners, https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=777756 (last visited Nov. 26, 2008).  Lawyers for Human Rights, Bishop Paul Verryn of the Johannesburg Central Methodist Church and Medecins Sans Frontieres successfully argued a case before the provincial High Court that stopped the government from forcibly moving 1700 displaced persons to shelters near areas where they feared further attacks.

[186] South African Press Association, Guateng Refugee Battle to Go to Top Court, available at https://www.mg.co.za/article/2008-08-12-gauteng-refugee-battle-to-go-top-court (last visited Nov. 26, 2008).

[187] Sashni Pather & Mazol Molefe, The Displaced Call for the UN’s Help, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=777754 (last visited Nov. 26, 2008).

[188] Justine Gerardy, SA Defies UN On Refugees, available at https://www.capeargus.co.za/index.php?fArticleId=4502639 (last visited Nov. 26, 2008).

[189] Khadija Bradlow, Rights Lawyers-Deportations Unlawful, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=807795 (last visited Nov. 26, 2008).

[190] Ramphele, supra note 151.

[191] Crush, supra note 13, at 43.

[192] Erin Mooney, The Concept of Internal Displacement and the Case for Internally Displaced Persons as a Category of Concern, 24 Refugee Surv. Q. 2005, 15 (2005).

[193] Zachary Lomo, The Struggle for Protection of the Rights of Refugees and IDPs in Africa: Making the Existing International Legal Regime Work, Berkeley J. Int’l L. 268, 276 (2000).

[194] Id. at 277.

[195] Id. at 282.

[196] Sarah Hager, Zimbabwe: Why the United Nations, State, and Non-State Actors Failed to Effectively Regulate Mugabe’s Policy of Internal Displacement, Cal. W. Int’l L.J. 221, 248 (2007).

[197] Id. at 238.

[198] Id.

[199] George B.N. Ayittey, Africa Unchained: The Blueprint for Africa’s Future 44 (Palgrave Macmillan 2005).

[200] Hager, supra note 196, at 242.

[201] Id. at 244.

[202] Id.

[203] Id.

[204] Id. at 259.  China has been looking all over Africa for investment opportunities as well as a source for natural resources to fuel their ever growing economy.  China has taking a position that the ends will justify the means, not caring what government they support in order to increase wealth or gain access to valuable minerals, oil, or other natural resources needed for development.

[205] Id. at 245. 

[206] Id. at 247.

[207] Id.

[208] Id. at 249.

[209] Id. at 247.

[210] Id. at 248.

[211] Id. at 249.

[212] Id. at 232.

[213] Crush, supra note 13, at 52.  This was the first time the army had been called out to deal with a domestic matter since the end of apartheid, and perhaps the images of white SADF members firing upon black mobs opened too many old wounds from the days of apartheid for an earlier decision.

[214] Florence Panoussian, Absent Mbeki Criticised Over Violence, available at https://www.mg.co.za/article/2008-05-25-absent-mbeki-criticised-over-violence (last visited Nov. 26, 2008).

[215] The Presidency: Republic of South Africa, Statement by President Thabo Mbeki Regarding Attacks on Foreign Nationals, available at https://www.thepresidency.gov.za/show.asp?type=pr&include=president/pr/2008/pr05192059.htm&ID=1275 (last visited Nov. 26, 2008).

[216] Crush, supra note 13, at 53.

[217] Kevin Kane, Bishop Answers Refugee Prayers, available at https://scotlandonsunday.scotsman.com/world/Bishop-answers-refugee-prayers.4118455.jp#Verryn (last visited Nov. 26, 2008).

[218] South African Press Association, ANC Must ‘Recall’ Mbeki: SACP, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=777007 (last visited Nov. 26, 2008).

[219] Id.

[220] South Africa President Steps Down, available at https://news.bbc.co.uk/2/hi/africa/7627957.stm (last visited Nov. 26, 2008).

[221] ANC In Talks Over Mbeki’s Future, available at https://news.bbc.co.uk/2/hi/africa/7626417.stm (last visited Nov. 26, 2008).

[222] Timeline: Zuma’s Legal Problems, available at https://news.bbc.co.uk/2/hi/africa/7153378.stm (last visited Nov. 26, 2008).  In 2005, his close associate Schabir Shaik was convicted of fraud over an arms deal costing several billion dollars.  In that case, the judge said that there was “a mutually beneficial symbiosis” and that Zuma received payments from Shaik.  This led President Mbeki to fire Zuma as the Deputy President of the country, and a few months later Zuma was charged with raping the HIV positive daughter of a family friend.  At the rape trial, Zuma denied the charges and was ultimately acquitted.  However, he came under intense criticism for his testimony at the trial for statements including: he knew that the accused wanted to have sex with him because of what she was wearing, that it was against his Zulu culture to refuse a woman sex and that he did not wear a condom, but took a hot shower afterwards to protect himself from getting an HIV infection.  During this trial, he was also the head of South Africa’s AIDS council, but he managed to be reinstated by the ANC and defeated Mbeki for the ANC presidency.  After prolonged legal battles, a court eventually ruled that the prosecution against Zuma was invalid but stressed it had “no bearing on Mr. Zuma’s guilt or otherwise.”  This brings us up to the current day.

[223] Country Profile: South Africa, available at https://news.bbc.co.uk/2/hi/africa/country_profiles/1071886.stm (last visited Nov. 26, 2008).

[224] Profile: Jacob Zuma, available at https://news.bbc.co.uk/2/hi/africa/4615019.stm (last visited Nov. 26, 2008).

[225] Supra note 220.  The ANC is the dominant political party in the country winning well over sixty percent of votes in every election since 1994.  Usually, the ANC picks the president of the country from its leadership.

[226] Supra note 222.

[227] Chris Makhaye, We’ll Kill Too – Vavi, Weekend Argus, June 22, 2008, at 1.  Zuma defended Malema’s statement saying that the youth wing of the party had a history of being militant.  A week later, another important political leader, Zwelinzima Vavi, stood up at a funeral and said the same thing which was cheered by the audience.  Malema refused to apologize saying “we remain unshaken and we will not retreat” going on to say that when the time comes that he will be prepared “to pay the highest price” to see Zuma in office and urged other youth to do the same.

[228] Xolani Mbanjwa, Politics: Umshini Isn’t A Song To Kill, available at https://www.int.iol.co.za/index.php?set_id=1&click_id=6&art_id=vn20080519055011398C263403 (last visited Nov. 26, 2008).  “Awuleth’ umsani wani” is an old ANC paramilitary struggle song that translates as “Bring me my machine gun,” and was used as a kind of anthem but was adopted by Zuma.  His supporters also sang it in front of the court house during his rape trial, but he did not similarly reprimand them for its use there.

[229] Id.

[230] Id.

[231] Nick Ericsson, Profile: Mosiuoa Lekota, available at https://news.bbc.co.uk/2/hi/africa/7706366.stm (last visited Nov. 26, 2008).

[232] Id.

[233] Deon de Lange, Police Lay Down Law On Political Violence, available at https://www.capeargus.co.za/index.php?fArticleId=4684004 (last visited Nov. 26, 2008).

[234] Martin Plaut, S Africa’s ANC on Bring of Split, available at https://news.bbc.co.uk/2/hi/africa/7695492.stm (last visited Nov. 26, 2008).

[235] Id.

[236] Sacks, supra note 118, at 47.

[237] Ramphele, supra note 151.

[238] Pearlie Joubert, Warren Foster & Thembelilhle Tshabalala, Finally, SA Govt Moves Into Action,  available at https://www.mg.co.za/article/2008-05-30-finally-the-sa-govt-moves-into-action (last visited Nov. 26, 2008).

[239] Id.

[240] Crush, supra note 13, at 54.

[241] South African Press Association, Cape Town Relocated Xenophobia Refugees, available at https://www.mg.co.za/article/2008-09-07-cape-town-relocates-xenophobia-refugees (last visited Nov. 26, 2008).

[242] Supra note 240.

[243] South Africa: Foreigners Still Beware, available at https://allafrica.com/stories/200811211065.html (last visited Nov. 26, 2008).

[244] Id.

[245] Id.

[246] Yazeed Kamaldien, Violent Reception for Refugees, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=810191 (last visited Nov. 26, 2008).

[247] Cape Argus, South Africa: 50 ANC MPs to Defect, available at https://allafrica.com/stories/200810190004.html (last visited Nov. 26, 2008).

[248] Nick Ericsson, Sting in the Tail for SA Scorpions?, available at https://news.bbc.co.uk/2/hi/africa/7220409.stm (last visited Nov. 26, 2008).

[249] Id.

[250] Supra note 248.  It was the Scorpions who investigated Zuma’s close associate Shaik which led to the some of the problems discussed supra note 222.

[251] Basildon Peta, South Africa: Minister Slams Treatment of Refugees By Cops, available at https://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20051006070819415C991259 (last visited Nov. 26, 2008).

[252] Id.

[253] Supra note 189.

[254] Pearlie Joubert, NAFCOC Calls for Somali Purge, available at https://www.mg.co.za/article/2008-09-05-nafcoc-calls-for-somali-purge (last visited Nov. 26, 2008).

[255] Id.

[256] South African Press Association, Beware Holocaust Mentality: Tutu, available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=788135 (last visited Nov. 26, 2008).

[257] Jenni O’Grady, ‘Progress’ on Gauteng Refugee Shelters, available at https://www.mg.co.za/article/2008-08-22-progress-on-gauteng-refugee-shelters (last visited Nov. 26, 2008).

[258] Ramphele, supra note 151.

[259] S. Afr. Const. (Act 108 of 1996) Section 9.

[260] Id.

[261] Motala, supra note 170, at 252-76.  There is a lengthy, multiple step process developed by the Constitutional Court to determine “unfair discrimination” (which precludes full discussion in this context).  However, in cases of xenophobia, those targeted would fall under the category of discrimination based on a “non-listed ground” (which means that it is a human characteristic such as race that is not explicitly in Section 9).  The Court will hold an act or law as unfair discrimination for a non-listed ground after determining if the group has been disadvantaged, the effect of the power exercised and whether human dignity is impaired.

[262] Jenni O’Grady, Xenophobia Shelters Case Postponed in Court, available at https://www.mg.co.za/article/2008-09-16-xenophobia-shelters-case-postponed-in-court (last visited Nov. 26, 2008).

[263] South African Press Association, More than 420 Xenophobia Cases Pending, available at https://www.mg.co.za/article/2008-08-25-more-than-420-xenophobia-cases-pending (last visited Nov. 26, 2008).

[264] Crush, supra note 13, at 8.

[265] Id.

[266] Deutsch, supra note 33, at 86.

[267] Supra note 261.

[268] Id. at 9.

[269] Id. at 9, 19.

[270] Supra note 248.

[271] Supra note 233.

[272] Motala, supra note 170, at 411.

[273] Id. at 413.  These powers include investigations, reporting, researching, and educating the country’s institutions and population on any matters within its purview.

[274] Id.

[275] Deutsch, supra note 33, at 405.

[276] Deutsch, supra note 33, at 419.

[277] Sacks, supra note 118, at 94.

[278] Id. at 123.

[279] The Hindu, The Different Shades of Hate, available at https://hindu.com./thehindu/2001/09/09/stories/05091344.htm (last visited Nov. 26, 2008).

[280] Id.

[281] Id.

[282] Integrated Regional Information Networks, Zimbabweans Fear for Their Lives After Attacks, available at https://www.irinnews.org/report.aspx?reportid=27874 (last visited Nov. 26, 2008).

[283] Id.

[284] Id.

[285] Id.

[286] Id.

[287] Id.

[288] Id.

[289] Id.

[290] William Shakespeare, Richard III 69 (Forgotten Books 1965).

[291] South African Press Association, Mandela Calls for ‘Social Cohesion,’ available at https://www.thetimes.co.za/SpecialReports/Xenophobia/Article.aspx?id=785548 (last visited Nov. 26, 2008).

[292] Id.

[293] Ramphele, supra note 151.