The White Paper on Immigration : A Disgraceful Regression from the Constitutional Values of Human Dignity, Ubuntu and Equality
The Department of Home Affairs published the White Paper on Citizenship, Immigration and Refugee Protection in November 2023 with a deadline for public comments on 31 January 2024.
The White Paper proposes amongst other things, for South Africa to withdraw from the United Nations Refugee Convention, enshrine the “first country principle” into law and strip asylum seekers, refugees and migrants of the already tenuous rights which they possess. This policy has proven controversial and many prominent human rights organisations have condemned it.
For the reasons that follow, in my view, the White Paper is a disgraceful policy that is anathema to South Africa’s constitutional values of human dignity, ubuntu and racial equality. Moreover, it is a textbook case of what the Special Rapporteur on Racism has termed “nationalist populism” which she warned has the capacity to “disenfranchise groups portrayed as outsiders” ultimately eroding the guarantee of racial equality.
Nationalist Populism:
In her thematic report, the Special Rapporteur defined nationalist populism as an ideology which deploys an exclusionary vision of who qualifies as ‘the people’. According to her, this ideology limits ‘the people’ to a particular racial, ethnic or religious group understood to be the only legitimate national group. She observed furthermore that “those groups and individuals depicted as excluded from forming a part of ‘the people’ then also become targets of populist antagonism, even if those groups and individuals have no elite status.”
The Special Rapporteur pointed out that “while States have the sovereign right to regulate immigration,” they cannot implement policies which are inconsistent with their obligation to eliminate racial discrimination.
As far back as July 2022, UN Special Procedures observed “that discrimination against foreign nationals in South Africa has been institutionalised both in government policy and broader South African society.” Notably, they drew attention to the strong racial character of said discrimination noting how some individuals had been accused of “being too Black, to be South African.”
The question remains however: why has South Africa adopted this exclusionary version of “the people”, which specifically targets and excludes persons of African descent? Frantz Fanon once made the prescient observation that in post-colonial societies “the colonised subject’s last resort is to defend his personality against his fellow countryman”. He described this phenomenon as “fratricidal feuds” which happen because the colonised subject is unable to direct his anger towards his colonial master.
Fanon thus predicted the kind of nationalist populism which has taken root in countries like post-apartheid South Africa, where groups who have “no elite status” namely poor and working-class African migrants, have become a scapegoat for the state’s failure to remedy the structural injustices which still place poor Black people at the bottom of the food-chain.
“The White Paper…represents a disgraceful regression into the most myopic nationalist populism imaginable.”
The flaws of the White Paper:
For purposes of this Blog post, I will only be discussing the ramifications of the White Paper for asylum seekers, refugees and migrants. The White Paper proposes that South Africa withdraw from the major Refugee Conventions. In addition, it proposes that the current refugee framework enshrine the “first-country principle” into law. According to this principle, a refugee would be obliged to seek asylum in the first country they flee to and only in the event that this fails, they would be at large to seek asylum elsewhere.
The so-called “first country principle” is not a recognised principle of refugee law. To the contrary, every country is under an obligation to provide a person seeking asylum a bona fide opportunity to state their case and for that claim to be processed accordingly. The right to have one’s asylum claim processed by due process of law is guaranteed not by international law, but the Constitution itself, namely: the right to just administrative action in terms of section 33 of the Bill of Rights.
The White Paper assumes that by withdrawing from the Refugee Convention, South Africa can avoid the principle of non-refoulement. The latter principle recognises that a person may not be returned to a place where they face a bona fide threat to their person or property due to potential persecution on a recognised ground. This principle however is a principle of customary international law. As such it matters not whether South Africa is a signatory to any of the existing Refugee Conventions. The Scalabrini Centre correctly points out that in any event, that South Africa’s own Constitution enshrines the principle as well.
The White Paper also seeks to strip refugees of their socio-economic rights, including the right to work, based on unsubstantiated claims that foreign nationals are taking away economic opportunities from South African citizens. In my view, the nationalist populism which undergirds this policy is not only incompatible with international law but also our own constitutional values of dignity, ubuntu and equality.
In Makwanyane, the Constitutional Court held that our Constitution is “different” because it seeks to reject our authoritarian and oppressive past by moving us towards an egalitarian and ubuntu-centred future. In Khosa v Minister of Social Development, the Court held that the exclusion of permanent residents from the social grants scheme was unconstitutional. Writing for the majority, the late Justice Mokgoro held that permanent residents – and by extension foreign nationals – are a vulnerable group in society deserving protection. In reaching this conclusion, Justice Mokgoro emphasised the values of human dignity and ubuntu which underpin the right to social security. The Court found as such that citizenship did not serve a legitimate purpose in determining those who should be eligible for social grants. Although Khosa, was not about refugees and migrants it stands to reason that the principles which underpin the judgment necessitate the protection of refugee rights for similar reasons. At the heart of Khosa, is an acknowledgement that socio-economic rights act as a vanguard against poverty and destitution whilst combatting systemic discrimination and inequality.
Meanwhile in Mahlangu v Minister of Labour the Court held that the purpose of socio-economic rights is to eradicate the gendered and racialised system of poverty inherited from apartheid. Similar to Makwanyane, the Court in Mahlangu also emphasised that the principles of ubuntu and equality require that no person in South Africa be confined to a life of abject poverty and suffering.
It is no surprise therefore that in Watchenuka, the Court held that the right to earn a living flows from the right to dignity, as without such a right refugees would be condemned to a life of indignity.
Taken together, these judgments describe the vision for South Africa’s post-apartheid society: a society united in its diversity and that belongs to all who live in it; a society where every person irrespective of race or ethnicity is entitled to dignity, belonging and equality.
The White Paper is not only dangerous because it will make South Africa a political pariah – but because it is a rejection of the pan-African and egalitarian ethos which defined South Africa’s transition from apartheid rule to constitutional democracy. It therefore represents a disgraceful regression into the most myopic nationalist populism imaginable.
