This article is written by Shalom Manamela, an undergraduate law student at Noida International University, Greater Noida, Uttar Pradesh.
ABSTRACT
South Africa’s constitution is one of the world most advanced constitution with values grounded in human dignity, equality, freedom and human rights protection. The frequency of xenophobic attacks on foreign nationals shows clear conflict between ideals provided by the constitution and their realisation. This article shall examine xenophobia from a constitutional perspective while emphasising on human dignity, equality and right of security that everyone has.
INTRODUCTION
There has been a major shift from the previous system of racial discrimination as there has been segregation which favours the democratic system which embraces the values of equality and human rights that are achieved through the adoption of the constitution of the Republic of South Africa of 1966. The constitution envisions a society in which everyone has an opportunity to be treated equally with dignity, freedom and protection without regards to the persons characteristics. Despite the constant changes in the constitution, xenophobic attacks are still predominant and posing a serious challenge to the realisation of this ideal. Immigrants coming from neighbouring countries usually face discrimination, violence, economic exclusion and social isolation which raises questions on how a constitutional democracy embodying the idea of human dignity allows for the discrimination of people based on nationality or origin. Xenophobia is more than just a societal phenomenon as it brings up several constitutional issues.
HISTORICAL BACKGROUND OF XENOPHOBIA IN SOUTH AFRICA
South Africa is one of the countries that has received immigrants and refugees not only from South Africa but the whole African continent for many years due to their developed economy and the relative political stability there. When the apartheid of 1994 ended, the development of democracy in South Africa and its integration into the world community caused an increase in migration from neighbouring countries like Mozambique, Zimbabwe, Malawi and the Democratic Republic of Congo. This had a positive effect on the economy and their culture however it also caused a lot of conflicts in the country as the people in South Africa were facing problems of unemployment, poverty, inequality and lack of social infrastructure. Xenophobia is characterised by several socio economic, political and historical reasons such as immigrants and refugees in South Africa are blamed for taking their jobs, lowering their salaries and putting strain on various services. The allegations do not have support and xenophobia causes discrimination and aggressions against immigrants and refugees. In some cases, political discourse and misrepresentation lead to negative attitudes toward foreigners. Violence has characterised many of these problems. attacks have been witnessed in the form of xenophobic violence in several provinces in the year 2008 which had about sixty individuals losing their lives and the destruction of the property belonging top foreigners. Xenophobic attacks also took place in the year 2015 and 2019 making xenophobia part of South Africa society recurring societal issue thus facing internal and external criticism as a result of their implication to protect all citizens within the state. Within this historical context, xenophobia shouldn’t be viewed as a social economic problem. There are serious constitutional challenges that needs to be addressed in South Africa as this problem continue to persist in a country established on values of human dignity, equality and freedom. Xenophobia cannot just be seen from the perspective of public order and immigration policy but needs to be viewed from the constitutional angle.
XENOPHOBIA AND THE CONSTITUTIONAL VALUE OF HUMAN DIGNITY
Dignity in the South African Constitution holds a very major and important place according to section 10 of the constitution, everyone is born with dignity and every individual is entitled to having his dignity preserved. With such a constitution dignity is seen to address the wrongs caused by the apartheid policy that implied certain inferior status for specific people. Nevertheless, xenophobic practices bring about the reproduction of such approach in a new form that implies treating migrants as threats rather than a human being who should be treated equally. When one becomes a target of attacks, denial of opportunities and humiliation since they are a migrant means that there is violation of dignity. It’s a must to admit that constitutional rights that concerns dignity covers not only the citizens but also the people residing in the country, thus xenophobia raising doubts about equal dignity of every person.
EQUALITY AND THE PROBLEM OF EXCLUSION
The constitution under section 9 provides equality before the law and non-discrimination. Even though nationality does not form part of the prohibited grounds for discrimination. discrimination, which is based on foreign background, ethnic affiliation or social origin can be considered as being within the ambit of unfair treatment. Xenophobia is characterised as the stereotyping which portrays foreigners as criminals or a burden to society thus dividing the society and going against the objective of the constitution of developing a society that promotes equality and inclusiveness. Equality under the constitution demands more than just the provisions of protection through the laws of the land.
THE RIGHT TO SECURITY AND PROTECTION FROM VIOLENCE
Xenophobic attacks pose as a major problem for the constitution as section 10 of the constitution guarantees that everyone has the right to personal security and liberty. It is the obligation of the government under the constitution to make sure that the citizens are safe from violence and can lead lives without the element of fear. If recurring xenophobic attacks continue taking place in South Africa or if the government fails to prosecute those responsible, it hereby raises an issue with the government failure to fulfil its constitutional obligations. A constitutional democracy not only protects the rights in theory but in practice as well.
THE CONSTITUTIONAL RESPONSIBILITY OF A STATE
Xenophobia shows how there is another bigger problem regarding the realisation of constitutional values. Even though South Africa has a well-developed system of laws, constitutional values can be ensured only through good governance, law enforcements, education and social policies. The state must address the political and economic leading to xenophobia to thrive. It might be true that poverty, unemployment and inequality are factors behind social problems but cannot be an excuse for any violation of human dignity. Constitutional democracy needs to hold accountable not just the perpetrators of xenophobic violence but even institutional failure.
CONSTITUTIONAL JURISPRUDENCE ON HUMAN DIGNITY AND EQUALITY
The jurisprudence of South Africa’s constitutional law has strongly established the right to dignity and equality as constitutional values that apply to all persons in the republic of South Africa and not just the citizens alone. The constitutional court has stressed on the importance of interpreting the constitution in a way that promotes inclusiveness, human dignity and protection of vulnerable people. This is very relevant when considering the issue of xenophobia as it essentially goes against the values of the constitution. An important case is the S v. Markwayne (1995) where it was held that the death penalty was unconstitutional. while the judgement was on issue of capital punishment, what it signified was the right to human dignity as a core principle of South Africa constitution democracy. Every person of inherent value and state’s obligation to the constitution to recognise and protect it. The principle was further established in the case of Khosa v. Minister of Social Development (2004) where the court held that refusal of permanent residents to have access to social grants amounted to unfair discrimination on grounds that violate the constitutional rights to equality and dignity. According to the court people who reside legally in South Africa make contributions to society and therefore ought to be afforded equal concern and respect by the constitution. This judgement showcases that the constitution can protect individuals whose dignity is violated by the state whether they are a citizen or not. In the case of Minister of Home Affairs v. Watchenuka (2004), the court held that it is unreasonable infringement of the asylum to seekers dignity and to deny him an opportunity to work or study. The court held that dignity includes more than mere existence of individual but also includes the development of their abilities, enjoying their worth and the feeling of being part of a society. Collectively all these decisions established clear constitutional principles that the right to dignity and equality are universal and should be given to every person living in South Africa. It provides strong foundation to condemn xenophobia while demonstrating that violence and discrimination towards foreigners does not align with both the letter and the spirit of their constitution.
THE UNMET EXPECTATIONS OF TRANSFORMATION
The unmet expectations convey the contradiction between south African constitutional ideals to the social conditions on the ground. The constitution itself guarantees an inclusive and non-discriminatory society while xenophobia reveals that constitutional change doesn’t mean social change. This problem does not lie with the constitutional principles but with the implementation. Constitutional provisions guaranteeing dignity and equality require a culture that reflects such values
INTERNATIONAL HUMAN RIGHTS OBLIGATIONS OF SOUTH AFRICA
The constitutional dedication oof South Africa to human dignity and equality is supported by the international human rights obligations of South Africa. Article 39(1)(b) of the Constitution states that the courts should consider international law when interpreting the bill of rights so that the constitutional rights of citizens can reflect global norms of human rights. South Africa itself is a signatory to many international and regional instruments protecting human rights, such as the Universal Declaration of Human Rights., the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights. All these documents provide that people have the right to respect for their dignity and equality and have protection against discrimination irrespective of citizenship. The repeated episode of xenophobia thus brings into question not only the provisions of the Constitution but also the international Human rights obligations of South Africa.
RECOMMENDATIONS
South Africa will need to implement an integrated system strategy against xenophobia through lax enforcements, prosecution of xenophobic attacks and respect human rights of all people within the country’s boundaries. There will be need to increase human rights education and awareness campaigns that will encourage the constitutional principles of dignity, equality and non-discrimination. There is need for increased collaboration with government, civil society organisations and the migrant community to bring about social harmony and prevention of violence in the future.
CONCLUSION
Xenophobia is one of the biggest obstacles faced by the South Africa Constitution in respect of human dignity and equality. This demonstrates the gap between constitutional theory and the reality of life experienced by most migrants living in the country. The constitution gives us an excellent instrument for addressing the problem of xenophobia through acknowledging the dignity of all people. But constitutional democracy should be not only about rights but the protection and realisation. The constitutional promise of South Africa will remain unfulfilled until everyone living there, irrespective of their nationality, feels dignity, equality and security.
