Striking a Balance Between Upholding Human Rights and the Rule of Law

Prof. Bheki Mngomezulu

The issue of undocumented migrants in South Africa has caused a stir across various sectors. While some call for their immediate deportation because they deplete the country’s resources at the expense of the nationals, others – including some NGOs – plead on their behalf. They even invoke certain clauses of the Freedom Charter and sections of the country’s constitution to strengthen their argument on why these undocumented migrants should be allowed to stay in this country.

The main question that begs for attention is: where does one draw the line between addressing the challenge of undocumented migrants and upholding human rights? Another question becomes: should the rights of these undocumented migrants supersede those of South African citizens? These are very critical questions. To answer them properly, one must cogently interpret both the Freedom Charter and the Constitution. 

Clause five of the Freedom Charter states that ‘all shall be equal before the law.’ Clause 6 states that ‘all shall enjoy equal human rights.’

The reality is that when the Freedom Charter was adopted in Kliptown, Soweto, on June 26, 1955, it did not envision a South Africa that people from outside the country would populate. In that sense, the “all” in both clauses did not refer to foreign nationals. Therefore, if these undocumented migrants were to be allowed to live in South Africa, it would be for other reasons, not because of the Freedom Charter.

Some cite different sections of the Constitution to make a case for these undocumented migrants, especially Chapter 2 on the Bill of Rights. Sec 25 states that “everyone has the right to have access to adequate housing.” Section 27 states that everyone has the right to basic education.

While these sections are relevant to the debate, it is Section 27 that has triggered a serious debate. Sub-section 1(a) states that “everyone has the right to have access to health care services, including reproductive healthcare.”

Some South Africans complain that they are unable to access health care services because they compete with undocumented migrants. It was for this reason that members of Operation Dudula were arrested for checking patients’ identity documents to ascertain if they were South Africans. Others criticise these undocumented migrants for taking their jobs. Whether this is true or not varies from one case to another.

This debate leads us to a broader discussion that we must focus on. In this regard, there are five questions to ruminate about.

 Firstly, what role has our government played in creating this situation? For example, had they protected the country’s borders like other countries do, would this problem have arisen?

Secondly, to what extent are the home governments of these undocumented migrants to blame for many of the challenges South Africa is wrestling with? In other words, had these governments ensured political and economic stability in their countries, would these undocumented migrants have come to South Africa?

Thirdly, what role do NGOs play in sustaining this challenge? Do they assist the government on how to address the challenge, or do they use the desperation of these undocumented migrants to make themselves relevant and score cheap points?

Fourthly, how does the international community contribute to the sustenance of this challenge about undocumented migrants? Do they share their experiences with the South African government, or do they use these migrants for political expediency?

Fifthly, what is the way out of this dilemma? In other words, should South Africa simply learn to live with this challenge, or should a solution be found? If the latter is the case, how should the process unfold, and who should be the role-players?

On the first question, our government is to blame for the current situation. The country’s borders are porous. Corruption has become ‘normal’. Some argue that they were in exile in the countries where the undocumented migrants come from. While this statement is factually correct, it is analytically flawed. They lived in camps, were known to the authorities, respected the laws of those countries, and many of them did not compete for jobs with the citizens of their host countries.

On the second question, the home governments of these undocumented migrants are to blame. They created economic and political conditions not conducive to their citizens. As such, some had to find their way out to look for greener pastures in South Africa.

Regarding the third question, NGOs are not a homogeneous group. Some are doing a good job in filling the gaps where the government has failed. Others advance the interests of foreign governments that want to see South Africa fail. They do so under the guise of helping the needy. They take the side of undocumented migrants to paint the country in a bad light.

The fourth question is related to the third one. Some foreign governments are vocal whenever South Africa acts against undocumented migrants. Ironically, they are very tough in their own countries. In that sense, the fate of these undocumented migrants is used to tarnish South Africa’s global image while scoring cheap political points.

The fifth question is the most important. The South African government should demonstrate leadership. This includes teaching South Africans the correct interpretation of the Freedom Charter and the Constitution. Where the constitution has loopholes, these should be filled through constitutional amendments.

 The government does not have all the solutions. Instead of claiming the ‘omniscient narrator’ status, politicians should solicit the views of other South Africans – including academics who conduct research and draw lessons from other countries through comparative analyses. Some ordinary South Africans could also proffer ideas on how this situation could be addressed.

Instead of labelling concerns about undocumented migrants as ‘xenophobia’ or ‘Afrophobia’, it is important to approach this issue objectively. Documented migrants and asylum seekers are not the problem. They can be accounted for. They officially contribute to the country’s economy. However, this is not the case with undocumented migrants.

South Africa’s laws should not be used for political expediency!

* Prof. Bheki Mngomezulu is Director of the Centre for the Advancement of Non-Racialism and Democracy at Nelson Mandela University.

** The views expressed do not necessarily reflect the views of IOL, Independent Media or The African.