South Africa is well known for having a progressive stance on human rights, a stance that is underpinned by the principles in our Constitution as well as the numerous international human rights conventions to which we are a signatory.

However, a recent rise in nationalist rhetoric, exacerbated by the coronavirus pandemic, has brought the country’s stance on migration into the foreground and made clear that perhaps all that glitters is not gold.

Under the umbrella of sovereignty, South Africa is free to regulate and manage its cross-border migration as it sees fit. However, this right is not unlimited.

First, the state must take into account domestic law. This imposes upon it considerations of, among others, freedom of movement and residence, freedom and security of the person, and the right to dignity and equality.

Second, the government must consider not only the international and regional conventions, protocols and codes that South Africa is a signatory to, but also binding customary international law.

A third, and possibly neglected consideration, is what the state should do to promote the spirit, purport and objectives of the Bill of Rights.

Within the parameters of these guidelines, the South African government is required to determine how and to what extent it prioritises direct and indirect security concerns related to cross-border migration.

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Direct security concerns are those that arise in relation to who is crossing the border. This is pertinent when there is a mass influx of people from a place of conflict, as those who are armed and driving the conflict may attempt to cross the border.

Indirect security concerns are those that arise within the areas in which migrants settle. Examples of this include increased violence fuelled by xenophobic sentiment and competition around employment and health services. Indirect security threats are usually short-lived.

Indirect and direct security concerns are valuable considerations as they identify genuine security concerns. However, when the state views the very existence of migration as a security threat, in other words securitises migration, a process of othering begins to frame migration policy.

By viewing migration as a security threat, in and of itself, it becomes an urgent and essential issue to solve. If migration is an urgent security threat, any action taken to remedy that threat requires less rigorous reasoning and justification. This results in restrictive policies and the framing of migrants as a threat to the safety and identity of local populations.

Rising anti-migration and xenophobic sentiment in South Africa

Language affects opinions and perspectives. Migration rhetoric can fuel prejudice and othering, or it can promote understanding and empathy. The apartheid regime regulated migration under the Aliens Control Act.

Upon the introduction of the constitutional dispensation, the term “alien” was cast aside in favour of more sensitive and nuanced terminology.

While post-apartheid migration policy has made great strides towards a human rights-based approach that recognises the arbitrary formation of borders by colonial authorities, the pace and distance of these strides has decreased. We have, perhaps, even regressed.

The language used in policy and legislation is increasingly influenced by the discourse of securitisation. An example of this is the use of the term “illegal persons/migrants” rather than the term “undocumented migrant” or, even better, “irregular migrant”.

The Department of Home Affairs (DHA) has created promising human rights-based policies. However, in practice, the DHA has espoused a narrative in which low-skilled African migrants and asylum seekers are problematised as claimants attempting to take advantage of a just and human rights-based system, despite there being little to no evidence of this.

In 2016, the then mayor of Johannesburg, Herman Mashaba, described irregular migrants as criminals. He stated, in reference to irregular migrants, that “they’re holding our country to ransom and I’m going to be the last South African to allow it”. Now the leader of ActionSA, Mashaba’s dangerous prejudices and policies have been widely welcomed with open arms into both conservative and liberal spaces.

In 2015, King Goodwill Zwelithini made prejudicial remarks about African migrants which incited an outbreak of xenophobic violence in which many migrants lost their lives. This type of outbreak has become increasingly associated with South Africa and has led to other African countries boycotting South Africa.

In 2021, member of Parliament Vuyolwethu Zungula publicly declared that 70% of South Africa’s informal economy is “in the hands of non-citizens” – an incorrect statement that fuels violence and prejudicial sentiment towards migrants in the informal sector.

Further, with the onset of the coronavirus pandemic, nationalistic campaigns such as #PutSouthAfricaFirst were popularised under the guise of a larger public health discourse, supposedly grounded in science.

In a “post-Covid world”, Operation Dudula, a campaign grounded in reprehensible xenophobic sentiment whose activities include the assault and intimidation of some of the most vulnerable people in our society, has not only thrived on the fringes but in mainstream media too, with one Radio 702 host describing the then leader of Operation Dudula, Nhlanhla “Lux” Dlamini, as a “community leader and activist”.

These are just a few examples of the popularisation of the conservative discourse around migration in South Africa – a discourse fuelled by securitisation.

Increased anti-migration and anti-migrant action by the government

The South African government pours money into reinforcing the border between South Africa and Zimbabwe, despite extensive evidence that strengthening borders does not decrease irregular migration. Instead, these efforts merely result in migrants using green borders (undesignated border crossings) rather than blue and grey borders (formal border posts).

Despite a continuous influx of refugees and an underresourced and overworked DHA, civil society organisations have to battle to keep refugee reception offices open.

The promulgation of the Border Management Act (BMA) was the latest in South Africa’s regression towards more conservative anti-African migration policies. The act creates a Border Management Authority, which is estimated to cost R10.3-billion per annum. This was promulgated in the wake of the anti-poor 2021 national Budget which drastically cut funding for socioeconomic development.

Daily Maverick journalist Richard Poplack stated that the BMA is “widely regarded as one of the worst pieces of legislation ever to hit the House”. One of its many goals is the creation of refugee centres at the border, resulting in quasi-refugee camps. This is in breach of a refugee’s right to freedom of movement and enforces the long-standing modus operandi of the state regarding migration – immobility.

Read more in Daily Maverick: “Undocumented migrants – The myths, realities, and what we know and don’t know”

In a 2021 webinar hosted by the Tshisimani Centre for Activist Education, Kudakwashe Vanyoro explained that South Africa’s approach to the influx of Zimbabwean refugees was characterised by immobility and containment. In the early 2000s, Zimbabwean refugees fled to Musina in northern Limpopo. The government responded by enforcing immobility, making it difficult for individuals to physically move further into South Africa, as well as symbolically and socially.

Vanyoro noted that we see this sort of securitisation of migration and borders in the State’s response to the coronavirus pandemic of 2020/21.

Vanyoro said that “much like everyday life in the border zone, the response to Covid-19 has provided states with the opportunity to limit movement across borders and justify restrictive approaches to managing migration… The pandemic is only a convenient framing to push certain state agendas and restrict immigration while appearing to do so under a humanitarian global health approach.”

In short, the South African government’s increasing securitisation of migration does not align with its domestic and international law obligations. It should ensure that its policies and law echo the sentiments of regional integration and acknowledge the arbitrariness of borders left intact by colonial legacies.

Despite South Africa being a signatory to many human rights instruments, should this shift in perspective and practice not occur, these well-intentioned and noble documents and the principles therein run the risk of being merely the best-laid plans of mice and men. DM