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DELSU LAW REVIEW VOL.3 NO.1 DLR 2017
ISSN: 0331-3638
Published by Faculty of law, Delta State Oteh Campus
EXAMINING THE PHILOSOPHY OF UBUNTU AND THE REGIME OF
XENOPHOBIC UPSURGE ON AFRICAN IMMIGRANTS WITHIN THE SOCIO-
LEGAL SPACE IN SOUTH AFRICA
NGOZI OLUCHUKWU ODIAKA1
CHUKS ORIOGU2
ABSTRACT
The specifics of trying to analyse the concept of ubuntu are formidable. A person with ubuntu is
someone who is welcoming, hospitable, warm and generous, and willing to share. Such persons are open,
affirming and available to others. They are willing to be vulnerable, do not feel threatened that others are
able and good for they have a proper self-assurance that comes from knowing that they belong to a
greater whole. Each individual’s humanity is ideally expressed through his or her relationship with others
and theirs in turn through recognition of the individual’s humanity. Ubuntu means that people are people
through other people. This African philosophy which is well preached in South Africa is antithetical to the
racist and xenophobic upsurge and experiences of immigrants within the urban space of South Africa in
the face of the rule of law. South Africa has witnessed a surge in migration from the sub-continent in
search of opportunities which the new democracy has to offer. From a doctrinal research method it is
observed that despite the existence of international instruments and conventions on the protection of
immigrants and South Africa’s obligation to protect its citizens and foreigners this philosophy is a mere
adornment, not reflective of the true reality of the relationship between the indigenes and the foreigners in
South Africa. This article recommend that severe international sanctions should be imposed on South
Africa for breach of this international human rights laws, for incessant xenophobic attack on foreigners
despite its philosophy of brotherliness and communal living.
KEYWORDS: XENOPHOBIA, UBUNTU, IMMIGRATION, PHILOSOPHY
INTRODUCTION
In South Africa,the philosophy of Ubuntu is highly revered as virtues, with its absence
culminating in confused and crime-riddled societies.3 In African contexts, communities
1 LL.B BL, Lecturer College of Law, Afe-Babalola University, Ado Ekiti, Ekiti State. Phone
07060583934 Email:ngodiaka@yahoo.com
2 Law Librarian, College of Law, Afe Babalola University, Ado Ekiti, Ekiti State
orioguchuks@yahoo.com
3 Johnson, L.R and Quan-Baffour K.P 2016 “The African Philosophy of ‘Ubuntu’ and Correctional Education in
South Africa: A Case Study” African Studies Association of Australasia and the Pacific (AFSAAP) Proceedings of
traditionally and collectively uphold the values of Ubuntu or botho. However, lately, individualism
has become more evident and appeal has continuously been made to communities for the purpose of
building social cohesion, revive ubuntu and the spirit of the African renaissance. This became
necessary after the realization that this philosophy and values have become lip service in South
African communities.4 South Africa has one of the most robust economies in sub-Saharan Africa
with a history of recruiting skilled and semi-skilled labour especially from countries in the South
African Development Communities (SADC) with relatively weak economies and histories of
political instability.5 Xenophobia, and its various forms of intolerance and violence, is a source of
concern because it generates rhetoric that at times provide moral justification for the exclusion of
non-nationals from accessing basic services that they may be entitled to, such as public health
and education, shelter, potable water and sanitation which contravenes the concept of oneness. It
places migrants, asylum seekers and refugees in difficult situation as regard their human and
labour rights6 despite international legal instruments that seeks to secure these rights and promote
development. A review report on the linkages between xenophobia, international migration and
human development reveals that the increased volume of South-South migration since the late
1990s has resulted in repeated attacks on migrants in the receiving countries especially Africa
and Asia.7 This has resulted in the vulnerability and exploitation of various categories of
the 38th AFSAAP Conference: 21st Century Tensions and Transformation in Africa, Deakin University, 28th-30th
October, 2015.
4 Gumbo, M.T.,2014. ‘Elders decry the loss of Ubuntu’, Mediterranean Journal of Social Sciences, 5 (10): 67-77.
5Tevera, D., 2013 “African Migrants, Xenophobia and Urban Violence in Post-apartheid South Africa” in Manik,
S., and Singh, A., (ed) Love thy Neighbours- Exploring and Exposing Xenophobia in Social Spaces in South Africa
Interdisciplinary Journal for the study of Arts and Humanities in South Africa Special Edition No 7,
6 International Labour Organisation- ILO 2004. Towards a Fair Deal for Migrant Workers in the Global Economy,
Geneva: International Labour Conference 2004, International Labour Organisation. See Taran, P., 2000. Human
Rights of Migrants: Challenges of the New Decade. International Migration 38,6:7I-51
See Wickramasekara, P., 2008 Globalisation, International Labour Migration and the Rights of Migrants Workers.
Third World Quarterly 29,7:1247-1264 See Lefko-Everett, K., 2007. Voices for the Margins: Migrant Women’s
Experience in Southern Africa SAMP Migration Policy Series No. 46.
7 Crush, J., and Ramachandran, S., 2009. Xenophobia, International Migration and Human Development New
York: UNDP
migrants, including asylum seekers and refugees8 with clear signs of discontent among these
groups throughout the country about accessibility to necessities like basic education and
employment.9 It is commonly accepted and generally legal that preferential treatment or certain
rights should be afforded citizens only, however, international human rights instruments and
national laws that denounce discrimination on the basis of race, sex, language, religion or ethnic
origin, widely retain traditional distinctions based upon nationality and often explicitly exclude
lawfully resident aliens from some or all established guarantees. At the same time, arbitrary or
invidious discrimination against aliens is prohibited and can be considered a manifestation of
xenophobia although, in general, the latter term does not appear in legal instruments concerned
with discrimination. Irrespective of the status or identity of the victim, nonetheless, attacks
against foreigners increasingly are reported.10
UNDERSTANDING THE CONCEPT OF UBUNTU WITHIN AN URBAN SPACE
There is clearly a diversity of ways of understanding the meaning of the term ubuntu. The
Collins English Dictionary11 suggests that it is a noun describing humanity or fellow feeling,
while the Oxford Dictionary12 portrays it as an activity that is characterized by sympathy,
consideration for others, compassion or benevolence. Archbishop Desmond Tutu considers this
philosophy a very difficult concept to render into a western language other than to say it is “my
humanity is caught up, is inextricably bound up, in what is yours.”The word ubuntu comes from
8 Tevera, D., 2013 op cit
9 Anand, S.,2013 ”Positive Discrimination and Minorities in Post-apartheid South Africa: A case study of Indian
South Africans” in Manik, S., and Singh, A., (ed) Love thy Neighbours- Exploring and Exposing Xenophobia in
Social Spaces in South Africa Interdisciplinary Journal for the study of Arts and Humanities in South Africa Special
Edition No 7,
10 Commission of the European Communities “Legal Instruments to Combat Racism and Xenophobia” Directorate
General Employment, Industrial Relations and Social Affairs 200, rue de la Loi B- 1049 Brussels. Available at
http://aei.pitt.edu/8697/1/8697.pdf accessed on 7th February 2017
11 12th edition 2014
12 2nd edition 2003
the Zulu culture, and has been summarized and translated to mean,’A person is a person through
other persons,or I am because we are.’ It is perceived as an innate duty to support one‘s fellow man.
It presupposes that people should enrich themselves and grow in their own ubuntu, but true
enrichment will naturally align with the duty to act towards the spiritual growth of one‘s
community.13 This philosophy exists in many variations within different African cultures and
languages, each conceptualization retains the same core of meaning that is both a goal and a guide
for humanity. It runs through a range of other cultures, often combining the concept of generosity
with genuine humanity.14
DEFINING XENOPHOBIA AND ITS THEORETICAL BACKGROUND
The concept of xenophobia originates from the Greek words: xenos (foreigner or stranger) and
phobos (fear) hence the fear of a stranger.15 It has also been seen as to entail contempt or loathing
of strangers,16 hatred and prejudice against foreigners17 Several theories can be used to explain
the basis of xenophobia. Most relevant of these theories are the psychologically postulated
theories of integrated Threat and Scapegoating.18 Some components of threats are felt by one
13 Mandela, N.R. Interviewed by Tim Modise. Experience Ubuntu Interview. May 24, 2006. Available online:
http://en.wikipedia.org/wiki/File:Experience_ubuntu.ogg (accessed on 17 July 2017).
14 In the Tswana language of Botswana, this concept is represented as the ideal of Botho, captured in the phrase,
’motho ke motho ka batho’, the Botswana people use the term botho to describe a person who has a well-rounded
character and realizes his or her full potential both as an individual and as a part of the community to which he or
she belongs. Botho is an example of a social contract of mutual respect, responsibility and accountability that
members of society have toward each other and defines a process for earning respect by first giving it, and to gain
empowerment by empowering others.‖See Botho and Vision 2016. School of Graduate Studies, University of
Botswana. Available online: http://www.ubotho.net/Botho-Vision2016 (accessed on 17 July 2017). In Malawi, this
concept is called uMunthu. It is explained through the proverb, ―kali kokha nkanyama, tili awiri ntiwanthu, ‖
meaning, ―when you are on your own you are as good as an animal of the wild; when there are two of you, you
form a community. Claire E. Oppenheim “Nelson Mandela and the Power of Ubuntu” Erich Lindemann Mental
Health Center, 25 Staniford St., 2nd Floor, Massachusetts General Hospital, Boston, MA 02114, USA
15 Soyombo, O., 2008 Xenophobia: A Comtemporary Issue in Psychology, IFE Psychologia- Special Issue:
Xenophobia 16, 2:85-104
16 Van der Veer,K.R Ommundsen, O Yakushko,L Higler, S Woelders & KA Hagen 2013. Psychometrically and
Qualitatively Validating a Cross-national Cumulative Measure of Fear-based Xenophobia. Quali Quant 47: 1429-
1444.
17 Laher, H 2009. Explaining Xenophobic Violence, Information Sheet from MRC and UNISA. Lenasia: Unisa
18 Stephan, W and Stephan, C., 2000. “An Integrated Threat Theory of Prejudice“ in Oskamp, S (ed): Reducing
Prejudice and Discrimination. Mahwah, NJ: Lawrence Erlbaum Associates.
group in relation to another. For instance realistic threats seeks to endanger the well-being of the
group and includes fear of harm or a decline in quality of life; symbolic threats are seen as
threatening the group’s culture or place in the wider society by challenging or undermining
accepted norms while intergroup anxiety occurs when two groups come into contact and relates
to fear over the ability to communicate positively and effectively; negative stereotyping are
ingrained attitudes and responses to members of another group that mediate contact, set
expectations and can hamper the process of mediation.19 Often times, people use prejudice and
discrimination to express hostility which arises from frustration. This is referred to as
scapegoating.20 This theory is to the effect that foreigners are responsible for limited resources
like jobs and education. Foreigners are perceived as responsible for most of the crimes
committed. They take away jobs meant for South Africans.21 This is used as a convenient
scapegoat for those experiencing the reality of hardship that has worsened since the arrival of
foreigners into South Africa.22
VARYING PERCEPTION ON XENOPHOBIA AND THE CONCEPT OF UBUNTU
Consequent upon the grant of political independence, the legacies of the apartheid system
combined with new forms of discrimination such as xenophobia towards African refugees and
immigrants came to limelight through the country’s period of political transition.23This long
history of racial politics and stratification has had an important effect on how citizens perceive
19 Harrison,N., and Peacock,, N., 2010 Cultural Distance, Mindfulness and Passive Xenophobia: Using Integrated
Threat Theory to Explore Home Higher Education Students’ Perspectives on ‘internationalisation at home’ British
Educational Research Journal 36, 6;877-902 See also Anand, S.,2013 opcit p.87
20 Osman, R., 2009 ”The Phenomenon of Xenophobia as Experienced by Immigrants Learners on Inner City
Schools of Johannesburg” Unpublished Master’s Thesis, UNISA
21 Harris, B., 2002 Xenophobia: A New Pathology for a New South Africa? In Hook, Derek and Gillian Eagle
(eds): Psychopathology and Social Prejudice Cape Town: University of Cape Town Press.
22 Osman, R., 2009 The Phenomenon of Xenophobia as Experienced by immigrant Learners on Inner City Schools
23 Muthuki, J., (2013) “The Complexities of Being a Foreign African Student in a South African Tertiary
Institution” in Manik, S., and Singh, A., (ed) Love thy Neighbours- Exploring and Exposing Xenophobia in Social
Spaces in South Africa Interdisciplinary Journal for the study of Arts and Humanities in South Africa Special
Edition No 7,
non-nationals. Foreign nationals living in South Africa have been exposed to discriminatory
behavior not just by South African citizens but also by state departments such as the Department
of Home Affairs and the South African Police Services (SAPS).24 Xenophobic prejudices is
manifested in various ways and is sometimes subtle and sometimes obvious. Furthermore, given
the background of hostilities by local South Africans towards other African nationals, any form
of discrimination against these foreign African nationals is perceived as being tinged with
xenophobia.25
The hostility of South Africans towards foreign African nationals was baffling because it
contravened the Ubuntu philosophy which South Africans purported to embrace.26 A person with
Ubuntu27 is welcoming, hospitable, warm and generous, willing to share. Such a person is open
and available to others, willing to be vulnerable, affirming of others, does not feel threatened that
others are able and good, for they have a proper self-assurance that comes from knowing that
they belong in a greater whole.28 However, this philosophy is not in tandem with the experience
and sentiments expressed by non-nationals with regards to practical realities. In this wise,
scholars have submitted that the rise in xenophobia in the 1990’s cannot be isolated from the
country’s apartheid past of racial and class segregation and attitudes of uniqueness and
superiority towards the rest of Africa. Even though spatially located in Africa, the Apartheid
regime had consciously situated itself ideologically, temporally and dispositionally in the
24 Gopal, N., (2013) “They call us ‘Makwerekweres’- Foreign Learners Speak out against xenophobia” in Manik,
S., and Singh, A., (ed) Love thy Neighbours- Exploring and Exposing Xenophobia in Social Spaces in South Africa
Interdisciplinary Journal for the study of Arts and Humanities in South Africa Special Edition No 7,
25 Muthuki, J. op cit p.114
26 Muthuki, J. op cit p.117
27 In the words of the South African Nobel Laureate, Archbishop Desmond Tutu
28 Panse, S., (2006) Ubuntu- African Philosophy Available at http: //www.Buzzle.com/authors.asp//authors762
accessed on 15th February 2017
western, white world.29 It is a form of fragile sense of national consciousness by the national
bourgeoisie to mimic its western counterpart.30
POLICING IMMIGRANTS IN SOUTH AFRICA
The perception that “illegal immigrants” are responsible for higher crime rates is deeply rooted
in public opinion and is sustained by media anecdote and popular myth.31 In the absence of
rigorous empirical research, stereotypes about immigrants and crime often provide the
underpinning for public policies and practices and shape public opinion and political behavior.32
Periods of increased immigration have historically been accompanied by nativist alarms,
perception of threats and pervasive stereotypes of new comers, particularly during economic
downturns or national crisis33with the twist that “illegal immigrants” are now singled out with
added animus and framed as harbingers of crime.34
Police work has a social and structural context and since xenophobia is a national problem in
South Africa and members of the police force are part of South African society, they may not be
immuned to such prejudices.35 The fact that the police deal on an on-going basis with migrants
29 Crush, J., (2008) “The Perfect Storm: The Realities of Xenophobia in Contemporary South Africa.” Cape Town:
Southern African Migration Project
30 Fanon, F., (1990) The Wretched of the Earth. London: Penguin Books.
31 Rumbaut, R.G., “Undocumented Immigrants and Rates of Crime and Imprisonment- Popular Myths and
Empirical Realities” available at https://www.policefoundation.org/wp-content/uploads/2015/06/Appendix-D_0.pdf
accessed on 19th February 2017
32 Chavez, L.R., (2001) Covering Immigration: Popular Images and the Politics of the Nation. Berkeley University
of California Press. See Hagan, j., and Palloni, A., (1999) “ Sociological Criminology and the Mythology of
Hispanic Immigration and Crime” Social Problems 46: 617-32 See Lee, M.T., (2003) Crime on the Border:
Immigration and Homicide in Urban Communities. New York: LFB Scholarly Publishing. See Martinez, J., and
Valenzuela A., (2006) Immigration and Crime: Race, Ethnicity and Violence. New York: New York University Press
33 The challenges of managing migration in South Africa became more complex due to the apartheid regime.
Immigrants arrived en masse and differed substantially from the native-born in religion, language, physical
appearance and world region of origin. See Fry, B.N., (2006) Nativism and Immigration: Regulating the American
Dream. New York: LFB Scholarly Publishing. See Johnson, K.,(2005) “The Forgotten ‘Repatriation’ of Persons of
Mexican Ancestry and Lessons for the ‘War on Terror.’” Pace Law Review 26, 1: 1-26 See Kanstroom, D.,(2007)
Deportation Nation: Outsiders in American History. Cambridge Harvard University Press.
34 Rumbaut, R.G op cit.
35 Vahed, Y.,(2013) “Crime, Fear of Crime and Xenophibia in Durban, South Africa” in Manik, S., and Singh, A.,
(ed) Love thy Neighbours- Exploring and Exposing Xenophobia in Social Spaces in South Africa Interdisciplinary
Journal for the study of Arts and Humanities in South Africa Special Edition No 7,
and refugees may in fact, exacerbates their prejudices.36 This high incidence of police brutality
against nationals is because the police themselves share the same xenophobic sentiments as the
community. These circumstances are aptly encapsulated in the following statement:
As in many other countries, immigrants have been blamed for a rise in violent
crime, drug dealing and a rise in drug abuse, unemployment, and other social ills.
Immigrants from African countries have been the target of attacks, often because
they are perceived as being in direct competition with South Africans for jobs or
services. In addition, African immigrants are often the target of random violence
and robbery, as criminals perceive them as easy targets because they are unlikely
to go to the police. The Police and Home Affairs officials have shared this
antagonism toward foreigners. The general negative attitude toward foreigners
encourages and condones abuses by police, army, and Home Affairs not only
against those suspected of being undocumented migrants, but also against non-
South Africans who are lawfully in the country, who can expect little or no help
from the police when they themselves are victims of crime, including violent
assault and theft.37
Commentaries recount the barbaric incidence of 2013 when a 26 year old taxi driver, Mido
Macia, a Mozambican national, was handcuffed by police officers to their van and dragged
several hundred metres through the streets of Daveyton, east of Johannesburg to such prejudice.
He was later found dead in police cell. Subsequently, nine police officers were charged for his
murder.38 In this case, the roots of xenophobia are to be found within the police force and not the
residence who offered support to the deceased and his family.39 Actions like this from the police
36 Crichter, T., Jefferson, T., Clarke, J., and Roberts, B.,(1978) “ Policing the Crisis Mugging, the state and Law
and Order. London: Macmillan Press Ltd
37 Human Rights Watch, “VI. Xenophobia And Attacks against Migrants,” in Report on the Situation in South
Africa March 1998, available at http://www.hrw.org/legacy/reports98/sareport/Adv5a.htm#_1_49
38 Vahed, Y.,(2013) p.210 op cit
39 Kuper,J., 37% of South Africans Admit to often Feeling Angry 27 May 2013, Available at:
http:www.politicsweb.
co.za/politicsweb/view/politicsweb/en/page71654?oid=364710&sn=Details&pid=71616 accessed on 19th February
2017
only helps to increase perceptions that lives of other Africans living in South Africa are cheap,
thus fuelling xenophobic attacks.
IMMIGRATION OFFICIALS AND LAWS GOVERNING MIGRATION IN SOUTH AFRICA
It is common knowledge that officials in the Department of Home Affairs and at various point of
entry into South Africa tend to ‘drag their feet’ about the treatment of foreign migrants, partly
because of political sensitivity over the rights of foreigners’40 Immigrants seeking refugee status
are often initially given the status of asylum seekers and it could take up to six years for their
application to be processed by Home Affairs.41 Turner’s concept of liminality is powerfully in
this waiting game, as refugees live in limbo, unsure what is to become of them.42 Between 2002
and 2008 around 30,000 people applied for asylum per annum,43with a massive backlog in
processing applications at Home Affairs and thousands are unsure whether they will ever be
attended to.44
Immigration policy during the 1990’s must be contextualized within the South African political
transition from apartheid or authoritarian state legislated on racism to a democracy governed by
constitutional equality.45 The major piece of legislation governing migration policy in South
40 Murray, M., (2003) Alien Strangers in Our Midst: The Dreaded Foreign Invasion and ‘Fortress South Afica’,
Canadian Journal of African Studies 37, 2/3: 440-466.
41 Harris, B., (2001). A Foreign Experience: Violence, Crime and Xenophobia during South Africa’s Transition.
Violence and Transition Series, 5 August. Available at: http://www.csvr.org.za/docs/racism/aforeignexperience.pdf.
Accessed on 19th February 2017
42 Turner, V., (1982) From Ritual to Theatre: The Human Seriousness of Play New York: PAJ Publications.
43 Vigneswaran, D., (2008) A Foot in the Door: Access to Asylum in South Africa, Migration Studies Working
Paper Series NO. 40, Forced Migration Studies Programme, University of the Witwatersrand. Available at:
http://pi.library.yorku.ca/ojs/index.php/refuge/article/viewFile/26030/24063 accessed on 19th February 2017
44 Goolam, V., and Ashwin, D., (2013) “The May 2008 Xenophobic Violence in South Africa: Antecedents and
Aftermath” in Manik, S., and Singh, A., (ed) Love thy Neighbours- Exploring and Exposing Xenophobia in Social
Spaces in South Africa Interdisciplinary Journal for the study of Arts and Humanities in South Africa Special
Edition No 7,
45 Shanta, B.S.,(2013) “ Voices from behind Bars’: Xenophobia and Foreign Nationals Incarcerated in South
African Correctional Centre” in Manik, S., and Singh, A., (ed) Love thy Neighbours- Exploring and Exposing
Xenophobia in Social Spaces in South Africa Interdisciplinary Journal for the study of Arts and Humanities in
South Africa Special Edition No 7,
Africa is the Alien Control Act, enacted in 1991 and consolidated into one piece of legislation a
number of provisions regulating entry and residence.46 Often, hostility towards foreigners is
explained in relation to limited resources, such as housing, education, health care and
employment, coupled with high expectations during transition.47
The Alien Control Act of 1991 ensured that racism remained entrenched in the immigration
policy. The Act maintained racism during the early 1990s and guaranteed that the alien remained
a black alien across that period, it also formed the basis for the 1995 Aliens Control Amendment
Act.48 Despite certain amendment to the Act, contemporary immigration policy has been built on
racist foundation.49The question surrounding Aliens Control Amendment Act of 1995 have
resulted in the development of three legislative instruments to redress immigration. They are the
Green Paper on International Migration(1997), The White Paper on Refugees (1998) and The
White Paper on International Migration (1999). The Green Paper made attempt at challenging
the existing focus on control and expulsion rather than facilitation and management which is
implicit in previous immigration policy. The paper recommends that migration should be
managed and planned rather than being reactive and it offers a human right-based alternative to
the racism contained in the Aliens Control Amendment Act of 1995.50
The Department of Home Affairs (DHA) made developments and amendments to the
recommendations contained in the Green Paper. This amendment was further criticized for being
46 Peberdy, S.A and Crush, J.,(1998) “ Rooted in Racism: The Origins of the Aliens Control Act. In Crussh J., (ed):
Beyond Control: Immigration & Human Rights in a Democratic South Africa. Cape Town: Idasa
47 Morris, a., (1998) “Our Fellow Africans Make Our Lives Hell”: The Lives of Congolese and Nigerians Living in
Johannesburg. Ethnic and Racial Studies, 21,6: 1116-1136 See also Tshitereke, C., (1999) Xenophobia and Relative
Deprivation. Crossings 3,2:4-5
48 Singh, S.B.,(2013) ‘Voices from behind Bars’: Xenophobia and Foreign Nationals Incarcerated in a South
African Correctional Centre. in Manik, S., and Singh, A., (ed) Love thy Neighbours- Exploring and Exposing
Xenophobia in Social Spaces in South Africa Interdisciplinary Journal for the study of Arts and Humanities in
South Africa Special Edition No 7,
49 Peberdy, S.A and Crush, J., (1998) op cit.
50 Harris, B.,(2001) A Foreign Experience: Violence, Crime and Xenophobia during South Africa’s Transition .
Available at: http://www.csvr.org.za/papers/papvtp5.htm accessed on 19th February 2017
conservative, punitive and that the home office is becoming increasingly hard-lined about
foreigners.51
AFRICAN HUMAN RIGHTS TRADITIONS
The Organization of African Unity in 198152 established a holistic human rights system,
including comprehensive legal instruments53 and institutional organs54 to ensure the promotion
and protection of human rights in Africa. However on the contrary, Africa continues to be the
continent with exceptional gross human rights abuses.55 This paradox between institutional
protection and the realities of daily life is created in part by the lack of a widespread human
51 Cooper, J.(1999) Undocumented Aliens: An International Human Rights and Constitutional Assessment.
Johannesburg: Centre for Applied Legal Studies. See also Williams, V., (1999) Spot theAlien. Crossings 3, 2.
52 Charter of the Organization of African Unity, May 25, 1963, 479 U.N.T.S. 39, available at
http://www.au.int/en/sites/default/files/OAU_Charter_1963_0.pdf. The Organization of African Unity (“OAU”) was
adopted in Addis Ababa, Ethiopia, by the Heads of State and Government of Africa. The OAU was created during
the decolonization process in Africa. Id. Its main objective was to unify the independent states and to facilitate the
end of colonialism on the continent. Id. See generally Immanuel Wallerstein, The Early Years of the OAU: The
Search for Organizational Preeminence, 20 INT’L ORG. 774 (1966). In 2001, the OAU transformed into the
African Union (“AU”). Corinne A.A. Packer & Donald Rukare, The New African Union and Its Constitutive Act, 96
AM. J. INT’L L. 132 (2005). See generally The Constitutive Act, AFRICAN UNION, http://www.africa-
nion.org/root/au/aboutau/constitutive_act_en.htm (last visited Dec. 11, 2013); Tiyanjana Maluwa, The OAU/African
Union and International Law: Mapping New Boundaries or Revising Old Terrain?Proceedings of the Annual
Meeting, 98 AM. SOC’Y OF INT’L L. 232 (2004); Kofi Oteng Kufuor, The Collapse of the Organization of African
Unity: Lessons from Economics and History, 49 J. OF AFR. L. 132 (2005).
53 See generally African Charter on Human and Peoples’ Rights, June 27, 1981, 21 I.L.M. 58, available at
http://www1.umn.edu/humanrts/instree/z1afchar.htm; see generally The African Charter on the Rights and Welfare
of the Child, July 11, 1990, CAB/LEG/24.9/49, available at http://www1.umn.edu/humanrts/africa/ afchild.htm; see
generally Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, July 11,
2003, CAB/LEG/66.6, available at http://www.achpr.org/files/instruments/ womenprotocol/ achpr_instr_proto
_women_eng.pdf.
54 See, e.g., AFR. COMMISSION ON HUM. & PEOPLES’ RTS., http://www.achpr.org/ (last visited Nov. 15,
2013); AFR. COMMITTEE OF EXPERTS ON THE RTS. & WELFARE OF THE CHILD, http://acerwc.org/ (last
visited Nov. 15, 2013); see, e.g. The African Court on Human and People’s Rights, AFR. CT. ON HUM. &
PEOPLES’RTS., http://www.african-court.org/ ( accessed on 16th July , 2017).
55 Makau Mutua, The African Human Rights System: A Critical Evaluation, HUMAN DEVELOPMENT
REPORT 2000, 1-2, available at http://hdr.undp.org/en/reports/global/hdr2000/papers/MUTUA.pdf; George
Mukundi Wachira, African Court on Human and Peoples’ Rights: Ten Years on and Still No Justice, MINORITY
RTS. GROUP INT’L 5-6 (2008), available at http://www.unhcr.org/refworld/pdfid/48e4763c2.pdf. See generally
Adama Dieng, Introduction to the African Court on Human and Peoples’ Rights, 15 INTERIGHTS 1, 3 (2005),
available at http://www.interights.org/document/49/index.html; Ben Kioko, The African Union and the
Implementation of the Decisions of the African Court on Human and Peoples’ Rights, 15 INTERIGHTS 1, 7
(2005).
rights culture, which was created by the political and economic conditions on the continent.56
Africa has amnesia about its pre-slave past and still nurtures a “colonial hangover.57 In a brutal
and barbarous colonial context, many African communities become harsher and increasingly
insensitive to human rights; the rule of might replaces the rule of right. It is bewildering that even
law enforcement agencies are equally guilty of this ruthlessness. The economy is no longer
geared towards satisfying the needs of the local population, but instead becomes ruthlessly
predatory.58 Initially member states of the African Union (formally OAU) were indifferent on
the issue of human rights; they were more concern about decolonization of the continent and the
56 See Mutua, supra note 5, at 35-38; Wachira, supra note 5; Kathryn Birdwell Wester, Violated:
Women’s Human Rights in Sub-Saharan Africa, TOPICAL REV. DIG.: HUM. RTS. IN SUB-SAHARAN AFR. 1,
available at http://www.du.edu/korbel/hrhw/researchdigest/africa/WomensRights.pdf
57 K. Mathews, The OAU and Political Economy of Human Rights in Africa: An Analysis of the African Charter
on Human and Peoples’ Rights, 1981, 34 AFR. TODAY 85, 87 (1987). “Africa is perhaps the worst hit by colonial
and imperialist exploitation. Its productive forces were the least developed by colonialism and imperialism. It was
outright plunder of the most rapacious kind. Further, it is the last continent to be decolonized. These circumstances
had tremendous negative impact in terms of human and economic development. Other countries developed on
account of this process. Human rights violations during the colonial era and their part in colonial economic re-
organization, as well as their continuation in the post-colonial era, are now fairly well known.” Id. at 87. “Most of
the laws, institutions and attitudes that underwrote the egregious violations of human rights that were habitual during
colonialism did not just survive independence, they prospered thereafter.” Odinkalu, Chidi Anselm Odinkalu, Back
to the Future: The Imperative of Prioritizing for the Protection of Human Rights in Africa, 47 J. OF AFR. L. 1, 34
(2003)., at 8. Posits that, “[m]any countries have adopted new constitutions with new and improved Bills of Rights.
In nearly all cases, however, the adoption of new Bills of Rights has not been followed with the review or repeal of
the insuperably oppressive raft of legislation that African countries inherited from colonialism. In effect, many
elected African governments still find themselves able to exercise dictatorial and arbitrary powers under the
appearance of both constitutional and electoral legitimacy.” Id. at 11. This appalling situation is explained by
Odinkalu quoting Abdullahi An-Na’im: “it is unrealistic to expect the postcolonial African state to effectively protect
human rights when it is the product of colonial rule that is by definition the negation of these rights. However one
evaluates precolonial African political regimes from the point of view of human rights, it is clear that colonialism
was incapable of creating and sustaining the institutions and processes necessary to protect rights.” Id. at 2. For
example, the Family Code of Senegal is a copy of the French Civil Code of the sixties, except for the provisions on
polygamy and inheritance under Islamic law (although Senegal is a secular state). Fatou Camara, Women and the
Law: A Critique of Senegalese Family Law, 13 SOCIAL IDENTITIES 787, 790 (2007). Thus despite the signing
and ratification of CEDAW and of the African Women’s Protocol, the concepts of marital power (“puissance
paternelle”- the husband is chief of the family) and paternal power (“puissance paternelle” - the father has sole
exercise of parental authority) remain in force.
58 Odinkalu, ibid (“[t]he focus today on human rights in Africa is against the background of a long history of
colonial and post-colonial repression, political instability and economic pauperization of the continent and its
peoples. The colonial background is important because its legacies continue to determine, often conclusively, the
contest for rights and access to power in Africa and the long and painful history of instability that has accompanied
the transition from independence”).
end of apartheid.59 Eventually, the OAU agreed to address the calamitous situation of human
rights in Africa. Consequently, in 1979, at the request of the Assembly of Heads of States and
Government of the OAU, the General Secretary of the OAU in 1979 appointed a committee of
experts to draft a regional human rights convention.60 This gave birth to the African Charter on
Human and Peoples’ Rights61 The charter was adopted June 28, 1981 at the Conference of Heads
of State and Government in Nairobi, Kenya.62 It entered into force on October 21,1986.63 By
1999, the Charter was ratified by all member states of the OAU.64 In the wake of the adoption of
the African Charter, the African Charter on the Rights and Welfare of the Child (Children’s
Charter) was adopted by the OAU in 1990 and was entered into force in 1999.65 In November
2010, all member states of the AU had signed the Children’s Charter, and all but eight66 had
59 See Rose M. D’Sa, Human and Peoples’ Rights: Distinctive Features of the African Charter, 29 J. OF
AFR. L. 72, 72-73 (1985); see also Mathews, K The OAU and Political Economy of Human Rights in Africa: An
Analysis of the African Charter on Human and Peoples’ Rights, 1981, 34 AFR. TODAY 85, 87 (1987). “Africa is
perhaps the worst hit by colonial and imperialist exploitation. Its productive forces were the least developed by
colonialism and imperialism. It was outright plunder of the most rapacious kind. Further, it is the last continent to be
decolonized. These circumstances had tremendous negative impact in terms of human and economic development.
Other countries developed on account of this process. Human rights violations during the colonial era and their part
in colonial economic re-organization, as well as their continuation in the post-colonial era, are now fairly well
known.” Id. at 87. “Most of the laws, institutions and attitudes that underwrote the egregious violations of human
rights that were habitual during colonialism did not just survive independence, they prospered thereafter.”
60 History of the African Charter, AFR. COMMISSION ON HUM. & PEOPLES’ RTS., http://www.achpr.
org/instruments/achpr/history/ (accessed on 15thJuly 2017)
61 B. Obinna Okere., B, The Protection of Human Rights in Africa and the African Charter on Human and
Peoples’ Rights: A Comparative Analysis with the European and American Systems, 6 HUM. RTS. Q. 141, 145
(1984);
62 History of the African Charter, AFR. COMMISSION ON HUM. & PEOPLES’ RTS., http://www.achpr.
org/instruments/achpr/history/ (accessed on 17th July 2017)
63 Ibid
64 Ibid
65 The African Charter on the Rights and Welfare of the Child, July 11, 1990, CAB/LEG/24.9/49, available at
http://www1.umn.edu/humanrts/africa/afchild.htm; see generally Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa, July 11, 2003, CAB/LEG/66.6, available at
http://www.achpr.org/files/instruments/ womenprotocol/achpr_instr_proto _women_eng.pdf.Women in Africa, July
11, 2003, CAB/LEG/66.6, available at http://www.achpr.org/files/instruments/ womenprotocol/ achpr_instr_proto
_women_eng.pdf. accessed on 17th July 2017
66 The eight member states that have signed but not ratified the Charter are: Central African Republic, Djibouti,
Democratic Republic of the Congo, the Sahrawi Arab Democratic Republic, Somalia, Sao Tome and Principe,
Swaziland, and Tunisia. Ratification Table: African Charter on the Rights and Welfare of the Child, AFR.
ratified it. Since then, a Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa (African Women’s Protocol) has also been adopted by the African
Union in 2003.67 It entered into force in 2005.68 All these human rights instruments put forward
their respect for positive African values. This unambiguous stand on the elimination of any
religious or customary practices that violate the rights of individuals is accompanied by an
equally clear statement that Africa has a civilization based on positive values, which state parties
must promote.69 The African Charter on Human and Peoples’ Rights paved the way by stating in
its preamble that its provisions are adopted by the state parties: “[t]aking into consideration the
virtues of their historical tradition and the values of African civilization which should inspire and
characterize their reflection on the concept of human and peoples’ rights.”The Preamble also
declares that state parties are “[f]irmly convinced of their duty to promote and protect human and
peoples’ rights and freedoms[,] taking into account the importance traditionally attached to these
rights and freedoms in Africa.”70 South Africa being one of the parties to the African Charter on
Human and Peoples’ Right in its post-apartheid era enacted a new Constitution which has been
described as: “one of the most advanced constitutions in history,”71 and also as “one of the best
constitutions in the world” with a Bill of Rights “which is considered among the most
comprehensive of all Bills of Rights to date.”72 The Constitution unambiguously provides in
section 39(1)(b) that “when interpreting the Bill of Rights, a court, tribunal, or forum must
COMMISSION ON HUM. & PEOPLES RTS., http://www.achpr.org/instruments/child/ratification/ South Africa
signed it in 1999 and ratified it in 2000
67 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, July 11, 2003,
CAB/LEG/66.6, available at http://www.achpr.org/files/instruments/ womenprotocol/ achpr_instr_proto
_women_eng.pdf. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa,
July 11, 2003, CAB/LEG/66.6, available at http://www.achpr.org/files/instruments/ womenprotocol/
achpr_instr_proto _women_eng.pdf. South Africa ratified this protocol in 2004
68 Ibid
69 Camara, F.K., Teaching, Promoting and Implementing Human Right Instruments in Africa: The Need to
Contextualise” 03_CAMARA.EICREVIEW.FINAL.DOCX
70 African Charter on Human and Peoples Right Ibid
71 Dugard (2007) International Law: A South African Perspective 546-547
72 Ibid
consider international law”. Under section 233, when interpreting any legislation, a court must
ensure that it adopts an interpretation that is in line with South Africa’s international law
obligations. Sections 231 and 232 are to the effect that customary international law and treaties
are sources of law in South Africa.73 This underscores the sublime philosophy of unbuntu.
RIGHT OF ACCESS TO JUSTICE BY IMMIGRANTS AND THE ROLE OF LAW
The rights entrenched in the Bill of Rights in South Africa’s final Constitution are, with a few
exceptions, guaranteed to citizens and non-citizens alike. Ordinarily, citizenship can be acquired
by being born in a country (jus soli or the law of the place); being born to a parent who is a
citizen of the country (jus sanguinis or the law of blood); naturalization; or a combination of any
of these paths. Persons falling outside of these borders are non-citizens.74 These include people
who reside in the country but were not born there and owe no allegiance to it, and also some
people who owe allegiance to the country and have been living in it for generations but still find
themselves in this category.75 Non-citizens however, include refugees, asylum seekers,
documented migrants and undocumented migrants.76 An asylum seeker is one who has left his or
her own country of origin in order to seek international protection as a refugee.77 In South Africa,
a person becomes an asylum seeker when he or she states his or her decision to apply for refugee
status. The fact that a person is fleeing from his or her home country to seek international
protection does not automatically make him or her an asylum seeker. Under the South African
73 Mujuzi J.D “The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa: South Africa’s reservations and interpretative declarations” available at
www.saflii.org/za/journals/LDD/2008/12.pd accessed on 15th July 2017
74 UN Office of the High Commissioner for Human Rights (OHCHR), The Rights o.f Non-Citizens, 2006, HR/
PUB/06/11 (May 15, 2017), available at http://www.ohchr.org/documents/publications/noncitizensen.
pdf.
75 Patricia E. & Helga L, Beyond National Citizenship: Turkish Immigrants and the (RE)
Construction of Citizenship in Germany, 24(2) Urban Geography 127, 127–128 (2003
76 The Rights of Non-Citizens, op cit
77 Weissbrodt , The Human Rights of Non-Citizens 110 (Oxford: Oxford University Press, 2008).
Law, such a person must first make the claim for asylum before he or she can be considered an
asylum seeker.78 South Africa committed itself to the principle of non-refoulement. This principle
finds expression in section 2 of the Refugees Act which prohibits the return of refugees and
asylum seekers to a country from which they are fleeing persecution based on the grounds
specified in it. Most asylum seekers do not enter the country through the designated entry point
for fear that they would be denied the right of entry if they present themselves at the port of
entry.79 Consequently, they only seek asylum after their irregular entry into the country.80
However, by the provisions of the Immigration law, a person who enters and remains in the
country must do so within the confines of the law81 because an asylum seeker who enters the
country through irregular means could potentially be regarded by authorities as undocumented
migrants, especially if they are not in possession of any other form of documentation. They are
usually arrested and detained if found to have no document or to be in possession of expired
asylum seeker permits.82 Apart from refugees and asylum seekers, non-citizens consist of migrant
workers, foreign students, business visitors, tourists and undocumented migrants or “illegal
foreigners.”83 There is a disjuncture between the guaranteed rights and the realities that face non-
citizens.84 Xenophobia leads to denying noncitizens their rights and access to justice which are
78 Sec. 23 of the Immigration Act No. 13 of 2002 as amended by sec. 15 of the Immigration Amendment
Act No. 13 of 2011
79 Weissbrodt 2008
80 Ibid
81 Secs. 9(1),(4) and 10(1) of the Immigration Act No. 13 of 2002
82 Arse v. Minister of Home Affairs and Others, (25/2010) [2010] ZAS CA 9; 2010 (7) BCLR 640 (SCA);
[2010] 3 All SA 261 (SCA); 2012 (4) SA 544 (SCA) (March 12, 2010); Hassani v. Minister of Home Affairs,
(01187/10) SGH C (February 5, 2010) (unreported); Kibanda Hakizimana Amadi v. Minister of Home
Affairs, (19262/10) SGHC (June 1, 2010) (unreported); Jean Paul Ababason Bakamundo v. Minister of
Home Affairs and 2 Others, (17217/09) SGHC (May 12, 2009).
83 This terminology comes from sec. 32 of the Immigration Act No. 13 of 2002. It was contested at the
time of drafting by the SAHRC who felt it was offensive and objectified the persons concerned – see SAHRC
Submission on Immigration Bill (2002) (May 15, 2017), available at https://www.sahrc.org.
za/home/21/files/7%20SAHRC%20Submission%20on%20Immigration%20Bill%20%28Parl.%29%20
April%202002.pdf
84 Weissbrodt 2008,
guaranteed in domestic and international law.85 The overarching international instrument for the
protection of human rights remains the UDHR with its ancillary treaties like the International
Covenant on Civil and Political Rights (ICCPR)86 and the ICERD among others.87 Since these
instruments apply to all human beings, they apply to both citizens and non-citizens88alike
irrespective of where one comes from and they safeguard everyone from arbitrary arrest and
detention,89 arbitrary killing90 torture and inhuman treatment.91
Understanding the reason and the role of law in curbing this violence and ensuring access to
justice for immigrants is important for the country for several reasons: on a micro-level it would
help prevent future attacks, while on a macro-level, the country would be able to meet regional
cooperation such as tolerance and acceptance of non-citizens which the philosophy of ubuntu
stands for.92 According to Sachs J minority judgment in the Union of Refugee Women’s93case
the basic tenets of xenophobia is the deep dislike of non-nationals by nationals of
a recipient State. Its manifestation is a violation of human rights. South Africa needs to
send out a strong message that an irrational prejudice and hostility towards non-
nationals is not acceptable under any circumstances.94
He cautioned however, that the manifestation of this phenomenon struck at the heart of the Bill
of Rights, warning that it could subconsciously sip into the mainstream of life through biased
85 Ibid.
86 UN General Assembly, International Covenant on Civil and Political Rights, December 16, 1966, United
Nations, Treaty Series, vol. 999, at 171.
87 See the following treaties: African Charter on Human and Peoples’ Rights; UN General Assembly,Convention
on the Rights of the Child, November 20, 1989, United Nations, Treaty Series, vol. 1577, at 3; UN General
Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, December 18, 1979,
United Nations, Treaty Series, vol. 1249, at 13. All these treaties have been ratified by South Africa and contain
similar protections applicable to all, including migrants
88 Art 2 of the UDHR; Art 1 of the ICERD
89 Art. 9 of the ICCPR.
90A rt. 6 of the ICCPR
91 A rt. 7 of the ICCPR
92 Nina .H. & de Jager, N., Locals Only: Understanding Xenophobia in South Africa, 33(1) Strategic
Review for Southern Africa 120, 121 (2011).
93 Union of Refugee Women and Others v. Director, Private Security Industry Regulatory Authority and
Others, (CCT 39/06) [2006] ZACC 23; 2007 (4) BCLR 339 (CC); (2007) 28 IL J 537 (CC) (December 12, 2006),
94 Para. 143
interpretation and application of laws.95 In an attempt to explain why xenophobia exists in South
Africa, blame has been placed on the country’s immigration laws which are perceived as
exclusionary in context and operation.96 The immigration law97 is structured in such a way as to
rope in the citizenry, businesses, schools, tertiary institutions, hospitals, hotels and other local
entities to identify and report undocumented migrants.98 The Act requires that non-citizens
should prove their lawful status in the country at all times, even to non-state actors such as
landlords, businesses, schools, hospitals, banks and colleges.99 The effect of this law is that it
paints all noncitizens as “others” who, in accessing public and private services, must continually
prove and justify the legality of their presence in the country. These xenophobic attitudes
and practices by institutions of the state dehumanize foreign nationals in the country, rendering
them easy and soft targets for non-state actors.100
CONCLUSION
This article has interrogated the concept of ubuntu and the experiences of immigrants in South
Africa in view of International legal instruments that protects immigrants. It is observed that this
revered philosophy of ubuntu is honoured more in breach than in observance even within the
palace of the justice system which should uphold the virtues of human right and preservation of
95 Ibid
96 Hopstock & de Jager 2011, at 127. The delay in implementing a new immigration system meant that
the Aliens Control Act with its emphasis on security, sovereignty and exclusion continued in force until
2002. See also Neocosmos 2006. In 1997, the Department of Home Affairs led by Chief Mangosuthu
Buthelezi (IFP) specifically rejected a Draft Green Paper on International Migration that was produced
by an independent task team which called for a right-based approach to immigration.
97 The Immigration Act No. 13 of 2002.
98 Secs. 38 to 45 of the Immigration Act No. 13 of 2002. See also Darshan Vigneswaran, Enduring Territoriality:
South African Immigration Control, 27(7) Political Geography 783 (2008).
99 Vicki Igglesden et al., Humanitarian Assistance to Internally Displaced Persons in South Africa: Lessons
Learned Following Attacks on Foreign Nationals in May 2008 (Johannesburg: Forced Migration Studies
Programme, University of the Witwatersrand, 2009);
100 Jean-Pierre Misago et al., May 2008 Violence against Foreign Nationals in South Africa: Understanding
Causes and Evaluation Responses, Forced Migration Studies Programme (FMS P), University of the Witwatersrand
and Consortium for Refugees and Migrants in South Africa (CoRMSA ) (April 2010) (May 15, 2017), available at
www.migration.org.za/uploads/docs/report-27.pdf.
lives. It is equally observed that no person or group of persons has ever been prosecuted and
punished for several xenophobic attacks on foreigners. This makes not only the citizens guilty
but the government of South Africa as a whole. It will be recommended that international
sanctions be placed on South Africa for several and incessant xenophobic upsurge on foreigners.
This principle of neighborliness and oneness should not only be preached but seen to be
practiced among members of the South African communities. The various laws which expressly
or impliedly encourage indigenes to police immigrants thereby creating unfriendly environment
for foreigners should be amended to reflect the African concept of oneness. This philosophy of
neighborliness should be preached through the mass media and taught in schools thereby
emphasizing the need to live in harmony.