In her recent University of Stellenbosch Annual Human Rights lecture, Judge Navi Pillay, former UN High Commissioner for Human Rights, voiced her concern at South Africa’s faltering international human rights record. She argued that the 1996 Constitution represented an “incontrovertible and unimpeachable” commitment to making human rights part of South Africa’s legal and political landscape and that while the world may be changing, the commitment to human rights “is needed now more than ever”.  

This year, as we celebrate 25 years of the South African Constitution, we do so against the backdrop of outbreaks of hate crimes and xenophobic violence, which continue to scar the streets of Durban, Khayelitsha, and many parts of Gauteng. Constitutional human rights guarantees extend, in both a legal and moral sense, to every person who resides in South Africa, regardless of their immigration status. The obligation to respect, protect and promote human rights is incumbent upon all public servants, including the South African Police Service (SAPS).

However, a false tension between the provision of equal and effective policing services to non-nationals and nationals has emerged over the past 25 years that is both a driver and the result of prevailing social tensions that fuel continuing xenophobic violence. 

Six years ago, Judge Pillay recognised this tension, as the chairperson of the Special Reference Group on Migration and Community Integration, while looking into the causes and consequences of violent attacks against foreign nationals in KwaZulu-Natal. The Special Reference Group found that there were shortcomings in policing, justice and intelligence and that these shortcomings contributed to the long-term vulnerability and tension between local and foreign nationals. This included perceptions by nationals and non-nationals alike about the ineffectiveness of SAPS in preventing and combating crime, as well as findings of ineffective and partial policing which disproportionately impacts non-nationals.

There have been other national and international initiatives that have sought to understand and address the drivers and consequences of xenophobic violence in South Africa. But, as with the findings of the Special Reference Group, action by the SAPS to address their role in it remains, tragically, lacking.

In the meantime, the government has signalled its commitment to address xenophobic violence and hate crime by launching the National Action Plan (NAP) to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerances. It co-opts all sectors of society, and the SAPS as mandate holders for policing, as critical stakeholders in this coordinated effort to end xenophobic violence and hate crimes and protect victims of these crimes. 

The findings of a new research report by the African Policing Civilian Oversight Forum (Apcof) creates a worrying picture about the extent of the policy and operational shift required within the SAPS to carry out its constitutional and legislative mandate to ensure equitable service delivery to all persons, including non-nationals, and to address its role in exacerbating community tensions.

The report found several deficits in the SAPS’s current approach to preventing and combating violence — from failures of basic training on the Constitution, immigration and refugee law; to lack of early warning systems to pre-empt and recognise trends that give rise to violence. Most concerning, however, was the problematic attitudes of some SAPS members towards non-nationals, which range from discriminatory practices to apathy.

There is much work to be done to address the challenges within the SAPS, but a useful starting point — at the very least — is a clear policy. The absence of a policy framework is perhaps the most telling indictment of the lack of seriousness in the SAPS and the Civilian Secretariat of Police (which is vested with the responsibility to create policy for SAPS) to address xenophobic violence. A cohesive policy framework would identify the approach and priorities required by the SAPS, and if aligned with the broader objectives of the NAP and its 2019–2024 implementation plan, provide coherence in approach across the justice sector.

This SAPS’s overarching policy framework when it is developed must at least address the following key issues:

• Acknowledge xenophobia and related hate crimes as an issue for SAPS;
• Respond to the debate on recruitment to articulate a position on the representation of eligible non-nationals within the SAPS;
• Emphasise the need to provide SAPS members with training on issues of diversity on the basis of ethnic or national origin, and laws governing migration and asylum;
• Respond to the challenges in the misuse of operational tactics such as sweeps and raids in ways that unlawfully discriminate against non-nationals;
• Address the injustice of discriminatory policing practices of over profiling foreign nationals and the negative impact on human rights;
• Ensure that operations targeting social crime prevention are planned and implemented in terms of the constitutional requirement of equitable and non-discriminatory policing services, and are consistent with the procedural safeguards guaranteed by law, particularly in terms of immigration and refugee law; and
• Adopt zero-tolerance for xenophobia by members of the SAPS.

The constitutional and legislative framework lays a solid foundation for the promotion of responsive, equitable and non-discriminatory policing services, but lacks detail in terms of how the SAPS intends to implement these obligations at institutional and operational levels.

The absence of an over-arching policy framework to guide SAPS’s approach to the prevention, detection and response to xenophobic violence and related hate crimes, and its service provision to non-nationals more generally, is a key gap that must be addressed if constitutional protection of rights in South Africa are to be accessible and achievable by all who reside in the Republic. DM