South Africa’s ‘Zimbabwe Problem’ – International Law vs. Soccer

Driving around the Cape Peninsula in South Africa, tourists are bound to run into street side hawkers trying to unload cheaply made pieces of “African” art – at least some of which are apparently made in China. Entering into a conversation with these traders, one quickly finds they are often not South African, but from Zimbabwe. The Republic of South Africa is awash with these economic migrants, many of whom have entered the nation illegally. The rash of xenophobic attacks here in 2008 makes it obvious that the local population does not appreciate the presence of so many illegal aliens in South Africa. After all, this is a nation with a lot of race issue to begin with, and unemployment rates hovering around fifty percent.

Ideally, South Africa’s partnership in the Southern African Development Community (SADC) means that such migrants may have a right to be here – at least on a limited basis. Article 5 of the SADC Treaty calls for the “the progressive elimination of obstacles to the free movement of capital and labour, goods and services, and of the people of the Region generally….” Article 2 of the SADC Draft Protocol on Facilitation of the Movement of Persons aims to allow citizens free movement within the group of member states. With that in mind, the interpretation of South African immigration and refugee law can also lend itself to the theory that an economic migrant can qualify as an asylum seeker.[1] Indeed, key constitutional rights have been granted to foreign nationals who have entered South Africa illegally.[2] More often than not, migrants are arrested and deported without trial, only to attempt passage into South Africa again. Those who do make it across legally are sometimes blocked access to return to South Africa as casual labourers should they return home to visit their families. The courts have tried to stem this by requiring more clarity in the entry visa renewal administration process.[3] Yet, few migrant labourers have the resources to mount adequate legal cases against the South African government.

The South African Constitution does not mention issues of immigration or refugee law. Yet it does hold that national security issues “must be pursued in compliance with the law, including international law.”[4] The Constitution also holds:

When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.[5]

In this fashion, the constitution itself enshrines international law, including that created through treaty such as the SADC open border initiative.

South African immigration law takes a firm stand in favour of the open border initiative:

…the  contribution of foreigners in the  South  African  labour  market does not adversely impact on existing labour  standards  and the rights  and expectations of South African  workers. [6]

Yet, the reality on the ground is that hundreds of thousands of Zimbabwean people (if not millions) are in South Africa illegally. This issue has become the most pressing issue in South African immigration law. Law students at the University of Cape Town undergo a whole course unit on the Zimbabwe question in studying refugee law, and universities across the country have opened up advanced level research centres to tackle the issue.

Another reality looms over this question: the personality of President Robert Mugabe of Zimbabwe. Mugabe is ferociously attacked in the Western media. He governs a nation that suffers from unimaginable social problems. Yet, besides an aging Nelson Mandela, few major African leaders have condemned his leadership, and he retains, among a certain section of Zimbabwean and African society at large, a positive reputation in that he helped liberate the former Rhodesia from white, minority rule.[7] Zimbabweans on the whole seem uninterested in regime change and it is not certain that Morgan Tsvangirai can offer a more viable leadership to the ailing nation.

For readers who are not soccer fans, 2010 marks the coming of the FIFA World Cup in South Africa. Normally soccer has little to do with refugee and immigration law, but the tournament means an immense spotlight is soon to be placed on South Africa. As such, the government wishes to ‘clean up’ some of its worst social ills – the Zimbabwe migrant question being one of them. South African officials have resorted to using minute changes in policy to stem traffic at the border. Social activists are criticizing the host nation for spending too much time preparing for the tournament, and not tackling issues that are more important to the nation.

As pressure mounts, the government will no doubt continue this immigration and crime crackdown in the coming months. It is plausible that with the lack of a clarified set of laws, economic refugees could find their way into South Africa legally through a sympathetic courts system. If the laws are clarified and such economic migrants are excluded, what will come of the international commitments on immigration made via treaty within the SADC? South Africa is the power player within the SADC. Will politics, political influence, and the domestic agenda of the ANC outweigh South Africa’s commitments under international law?

[2] Lawyers for Human Rights and Other v Minister of Home Affairs and other (CCT 18/03) [2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March 2004) at para 26ff.

[3] Koyabe and Others v Minister for Home Affairs and Others (CCT 53/08) [2009] ZACC 23 (25 August 2009) at para 60ff.

[4] Constitution of the Republic of South Africa, No. 108 of 1996, C.11 s. 198(c).

[5] Ibid at C. 14 s. 233.

[6] Immigration Act 2002, No. 13 of 2002 at Preamble (i).

[7] The author cannot back this up with any academic texts, but has had numerous conversations over the years in Ethiopia, Senegal and recently in South Africa with African professors, professionals, students and others who back Mugabe’s rule in the face of Western opposition. Of course, one can hardly blame citizens of post-colonial southern African nations for having an ‘us vs. them’ mentality – colonial or white rule ended only a generation back in most nations south of the Democratic Republic of Congo!

Share/Bookmark