Echoing global moves to restrict access to asylum, the South African government has recently limited the right of asylum seekers to work, has narrowed the grounds for claiming asylum, and most controversially, has all but silenced refugees’ political voice. Already prevented from voting in South African elections, refugees will now risk losing their status if they vote or campaign for change in their countries of origin. This holds even for those claiming for asylum on grounds of political activism. Should they try it, they would be at risk for speaking up about conditions in South Africa too.
This decision is about far more than the rights of South Africa’s substantial population of refugees and asylum seekers. South Africa’s Constitution promises the country to “all who live in it.” Since the end of apartheid, this has meant legally recognizing the fundamental rights of everyone. Even if constitutional protections have translated poorly into reality for foreigners and South Africans, the principle was sound. Recent changes to the Refugees Act are an assault on this constitutional universalism. What were once guaranteed protections for non-nationals now become privileges.
More alarming is that the government has effectively transformed the Constitution by arbitrary order and regulation, not open parliamentary debate or amendments. Most of these changes do not appear in the amended Refugees Act itself, but in accompanying regulations not vetted through normal legislative amendment process. If left unchallenged, the government is likely to continue reshaping the constitutional landscape in additional areas.
The recent restrictions on refugees—and the limited protests against them—reflect the degree to which many South Africans see “xenophobia” as a legitimate hate. Few see it as akin to the racism and exclusion so many South Africans continue to suffer. Ironically, many claiming to “decolonize” the country’s institutions often reinforce its colonial borders. Many accept opposition leader Mangosuthu Buthelezi’s proposition from all those years ago: that immigration spells the end to positive transformation. Rather than condemn the exclusion, citizens and politicians embrace it.
Even when South Africa was deporting hundreds of thousands a year in the early 2000s, citizens took to the streets calling for the rest to go. The consequences have been death or displacement for thousands of non-nationals in repeated bouts of “xenophobic violence.”
As the ruling African National Congress has faced declining public support, it increasingly relies on immigration to rally the masses. Drawing isolationist language from the streets and political margins, it calls for closing borders, workplaces, and public services to non-nationals. Such appeals featured prominently in the 2019 election campaigns.
Perhaps most worrying is what these moves reveal about the nature of activism and commitment to constitutionalism among South Africa’s civil society. Only a small group of activists and officials decry these moves. Some critics argue that they align South Africa with Donald Trump’s America or the European Union. While the US and EU might approve, this is not their doing. Rather, it reflects the manifestation of an isolationist tendency baked in to South Africa’s post-apartheid politics. Most South Africans have responded to these changes with deafening silence or quiet nods of approval.
Pro-refugee activism in South Africa continues to play into these hostilities, as it does elsewhere in the world. By making migrants the center of action, middle-class activists alienate the poor and draw lines in the township soil between groups who have similar struggles with economic marginalization, hostile policing, and insecurity. Yet, activists continue to highlight the vulnerability of refugees and migrants alone. More damagingly, they speak of an obligation to assist. This is not just a legal duty outlined by the Constitution and the Refugees Act. Rather, they argue South Africa has a responsibility to protect people from countries who once sheltered South African exiles or mobilized against apartheid. Others appeal to pan-Africanist ideals.
An ethics of reciprocity has its place, but also severe limits. For one, it says nothing about people from countries that did little for South Africa, or for those from other continents. Moreover, neither reciprocity nor pan-Africanism have much traction with the “born-frees”: people who know little about the anti-apartheid struggle, but recognize that not much has changed for their families since its end. They can vote, but jobs are scarce. Many feel aggrieved and marginalized. Among this group, appeals to hospitality and reciprocity gain no traction. Many across Africa support Trump’s nationalism despite his evident racism. Pro-refugee campaigns naturalize the line between citizen and foreigner and reinforce the idea that we must care for others even as we struggle to make ends meet.
The politics of exclusion behind South Africa’s new restrictions have evidently offered short-term political gains for some. Other leaders now seek similar benefits, but elements of these proposals are almost undeniably unconstitutional. Their widespread acceptance reduces the prospects of constitutional protection and democratic forms of disputation for the many. Every anti-immigrant victory creates further incentives for exclusion by parliamentarians or gangsters on the street. When migrants cease to become a threat because of the success of these policies, exclusionary politics will seek another outlet. Politicians who have been rewarded for their politics of exclusion are unlikely to change course, they are more likely to change target. What we need now is not hand wringing over refugee rights, but a revitalized commitment to constitutional principles. This demands a new politics that delivers on promises for South Africans and foreigners, and holds accountable those who have failed to deliver.