DAVID BILCHITZ | A constitutional crisis as ideals clash with attitudes

The sight of thousands of migrants fleeing their homes is not only distressing and morally deplorable; it is the signal of a constitutional crisis. It emerges from a fundamental disjunction between the ideals, and indeed legal principles and rules, that are rooted in our transformative constitution and the attitudes and actions of many South Africans. If it is not fixed, it imperils South African constitutional democracy.

Even in 1994 it was recognised that the path to embedding the constitution in society would be difficult. Etienne Mureinik, a brilliant law professor, used the metaphor of a bridge to recognise that, after the injustices of apartheid, the emergence of a society committed to dignity and equality would be a process.

In a powerful and important judgment in the early days of the constitutional order, Constitutional Court justice Yvonne Mogkoro stressed the need for the new constitutional order to connect closely with the deepest values of the people in South Africa. To this end, she sought to root her judgment that the death penalty was unconstitutional — an unpopular position at the time — in the value of ubuntu. Ubuntu, she proclaimed, “is a shared value and ideal that runs like a golden thread across cultural lines”.

One of the foundational values of the constitution is a commitment to individual dignity — that is, a deep respect for the worth of every individual. In a 2003 landmark case dealing with the rights of asylum seekers to work and study, the Supreme Court of Appeal wrote powerfully that “human dignity has no nationality. It is inherent in all people — citizens and non-citizens alike.”

The recent organised efforts to deny migrants essential services are a fundamental denial of dignity: the humanity of a child who simply wants to be educated or an elderly individual seeking life-preserving health care is simply disregarded. Moreover, the very calls for migrants to leave are fundamentally arbitrary: people cannot change where they come from. The calls also don’t distinguish between those with strong (and often lawful) ties to this country and those without. The evils of arbitrary discrimination are replicated, with many South Africans simply seeing a nationality rather than an individual, and ubuntu being sorely lacking.

This is a deeply troubling moment for those of us committed to South African constitutional democracy

The discourse around migrants has also demonstrated a fundamental failure to understand the limits of freedom of speech and association. Both our constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act recognise that there is no place for advocacy of hatred and incitement to harm on the basis of someone’s nationality.

Yet a frenzy of hate speech against migrants has been allowed to permeate South African society without consequences and is now threatening their very lives and livelihoods. It is important to recognise that free speech would allow us to have a serious debate about immigration and how South Africa wishes to address it. It does not allow for the deliberate targeting of individuals.

Worryingly, the calls to vigilantism represent a loss of faith in constitutional structures themselves. A central value of the constitution is the rule of law, which entails that generally applicable legal rules govern how individuals are treated. The rule of law also requires a commitment to individualised decision-making by impartial state structures with fair procedures.

What we are now seeing are extralegal threats being used to instil a culture of fear and intimidation among migrants such that they are leaving their homes and workplaces out of a concern for their lives. There is also advocacy for a form of mass expulsion, bypassing any of the procedures and institutions set up to provide fair, impartial and individualised decision-making on questions of immigration status. That is the complete antithesis of a society founded on the rule of law.

Given the scale of this crisis, urgent intervention is required. It is heartening to hear about the preparations being made by our security forces to counter any violence this week. The problem is that much of the harm has already been done through allowing a culture of impunity to take hold in relation to xenophobia and failing to enforce hate speech laws. In the run-up to June 30, it is necessary to indicate that consequences will follow for anyone who incites hatred. Moreover, authorities must clarify that they will be guided by their obligations towards migrants and not by societal pressure.

This is a deeply troubling moment for those of us committed to South African constitutional democracy. How we respond to it will determine whether South Africa flourishes or descends into an anarchic and hate-filled dystopia.

• Bilchitz is a professor of law at the University of Johannesburg and the University of Reading. He writes in his personal capacity