Going about my business today, I met a 20-year-old Zimbabwean — an elegant young woman who spoke with a South African accent. Her light shone brightly.
She was born in Mfuleni on the outskirts of Cape Town and has lived there all her life. Her parents come from Mutare in Zimbabwe. She was surprised when I told her in 1967 I had spent three months very ill in what was then the Umtali General Hospital. She confessed she had never been to Mutare, but that’s where she comes from.
She told me she had recently finished school in Cape Town, had done well, but there is a problem at home affairs as all the documentation she had previously relied on to renew her visa was suddenly gone. She cannot get what she needs to proceed with tertiary studies.
She asked me anxiously: “What can I do? I am illegal.”
Last night, her dad gathered the family together and suggested everyone pool their money and think about what kind of business they could do in Mutare because after 20 years, it was maybe time to leave.
In allowing this to happen, sitting back, drinking the Kool-Aid, watching as immigrants are othered as ‘illegal foreigners’ and driven without fair process back across the Limpopo River, we disgrace ourselves and our country. We betray our Mandela-ism.
As she told me this, her poise slipped momentarily and I saw a flicker of fear and grief run through her. Tomorrow she may be heading to life in a rural town in Zimbabwe where she has never been before. Her dream of a successful life in Cape Town, the only home she has known, is evaporating.
Overwhelmed by an avuncular need to comfort her, I fecklessly said: “You are not illegal, you are one of us. You were born here, you belong to and with us.”
What kind of country are we becoming?
We are terrifying and rejecting our children, whose only crime is that their parents had the gumption and wherewithal to escape the failure of Zimbabwe and head south to make a better life, many with admirable, albeit modest, success. We insist on labelling them “illegals”.
What are we thinking when we choose to brand a dignified young woman born and raised in South Africa as an “illegal”? It feels like an affront not only to her dignity and personhood, but to mine, and to yours. The comparison with apartheid’s pass laws is inescapable.
This is not who we are as South Africans. What would former president Nelson Mandela have said? What would Archbishop Desmond Tutu have said? What about the constitutional promise of ubuntu?
South Africans are warmly admired by many in the international community, in part because at the critical moment we dodged the bullet and embraced humanity instead of barbarity. We gifted the world a hopeful vision, one that miraculously holds, though undeniably frequently frays at the edges.
Our national archetype is cemented in memorable moments of generosity that resonate powerfully: the donning of the No 6 rugby jersey; the 2010 World Cup; and most recently the hospitable grace with which President Cyril Ramaphosa and our foreign service hosted the G20 in Johannesburg.
The images of thousands of Zimbabweans and Malawians fearfully heading to Beitbridge, clutching a few salvaged belongings, while armed denizens menacingly roam the streets, is not one of those moments and by no means our finest hour.
Under apartheid, when “illegal foreigners” were driven back to the Bantustans because they did not have the right stamp in their “dompas”, it was at the initiative of the hated authorities. In this instance, once again a segment of the citizenry, with dubious support and questionable legitimacy, has seditiously assumed authority.
In allowing this to happen, sitting back, drinking the Kool-Aid, watching as immigrants are othered as “illegal foreigners” and driven without fair process back across the Limpopo River, we disgrace ourselves and our country. We betray our Mandela-ism.
The time has come for our centre ground and moral core to hold. Civil society, our religious leaders, the unions, the progressive media, the legal profession and the judiciary must rally
In this obscene moment, much to the delight of the sinister forces at play behind it, South Africa stands to lose its moral stature and position in the world as an effective guardian of international humanitarian law, an ethical actor pitted against those trashing the international rules based order.
We are being played.
The time has come for our centre ground and moral core to hold. Civil society, our religious leaders, the unions, the progressive media, the legal profession and the judiciary must rally.
The public narrative on immigration has been captured by narrow sectarian elements intent on ripping up our constitutional vision. It is time to take it back and construct an immigration policy and a system which is rational and proportional, not capricious and inhumane.
That said, my young Zimbabwean friend is an “illegal”. In terms of the Immigration Act she is probably an “illegal foreigner” defined to mean a foreigner who is in the Republic in contravention of the act. In other provisions of the governing legal framework she may be “a prohibited person” or perhaps even an “undesirable alien”.
The law though, as we know, is an ass. On the surface it pays insufficient heed to this child’s dilemma inflicted on her at birth by her parents’ misfortune and their burden to give her a shot at a wholesome life.
It is true immigration law does provide paths to permanent residence and citizenship. But as every South African who has ever tried to navigate the maze that is home affairs knows, the road is long and hard, and few make it to the finishing line. The situation at the road borders is especially bad, most notably Beitbridge. One hears of returning Zimbabweans and Malawians being endlessly subjected to degrading treatment and required to cough up substantial bribes to corrupt officials before they are permitted to pass through. Subsequent attempts to regularise their position in the country are rarely fruitful. Today thousands are sitting pitifully in hastily established camps in Musina waiting to be endorsed.
This is systemic failure
Many immigrants who are illegal in South Africa are so because the law governing their ingress into, egress out of and residence in the country is implemented capriciously. The system is inefficient, corrupt and unpredictable. Much of the official conduct operationalising the system is likely to be inconsistent with our constitution and in violation of the rights of equality and dignity.
Moreover, the constitution requires the state to ensure the public administration is governed by democratic values and principles, including the rights of equality and dignity, the observation of a high standard of professional ethics, efficient and effective use of resources and the provision of services impartially, fairly, equitably and without bias. Most objective observers will agree this is not happening in the administration of the immigration system.
Though a constitutional challenge along these lines might prove impractical and difficult to sustain, it nonetheless remains salutary to invoke the spirit of the constitution and its mission as the moral conscience of our democracy. Much of the enforcement of immigration policy, and the pervasive systemic failures in its implementation, if not inconsistent with the letter of the constitution, certainly violates its spirit. Conduct that is inconsistent with the spirit of the constitution is morally unsustainable and invites remedial action, political and judicial, which is just and equitable.
For 30 years, South African authorities have condoned widespread unconstitutional conduct by the officials tasked with implementing and enforcing immigration policy, allowing more than one million people from our neighbouring countries to come here, find work, start businesses and raise their children, many of whom were born here, like my young friend supposedly from Mutare but actually from Mfuleni. The state through its laxity has rooted a perception, a legitimate expectation even, among immigrants that they can take refuge and find security and hopefully a better life among us.
The government must convene a high-profile commission of experts ... to formulate a plan of action to reform the immigration system ... rather than act like apartheid functionaries applying the hated pass laws
It need hardly be said that it is profoundly unjust and inequitable, after all this time, to sweep down on them and squash that hope and expectation. Our constitution demands we find a just and equitable solution to the problem, and given the humanitarian crisis that is currently being unleashed, to do so urgently.
At risk of being the “troublesome priest”, I make a plea to our government of national unity, in the face of this moral crisis, to step up quickly with a Mandela moment and redeem our standing as a nation of human rights by doing two things:
- Immediately announce a change in policy to the effect that all children born in South Africa of parents from SADC countries since 1996 will be deemed to be South African citizens (birthright citizenship). The state’s leniency has represented to the many immigrants who have lived in South Africa for a long time that their children can hope for a life here. It is morally inconsistent and inequitable to deny them that opportunity.
- The government must convene a high-profile commission of experts, drawn from civil society, business and the arms of government, to formulate a plan of action to reform the immigration system, eliminate the inefficiencies and corruption bedevilling it, and find a humane solution to regularising the position of the “illegals” among us, rather than act like apartheid functionaries applying the hated pass laws.
Such a course of action will encounter its own difficulties, but much of its value will rest in the powerful symbolism of granting birthright citizenship on this scale even if only retrospectively or for a limited time. It will convey a message to the most vulnerable among us, and further afield, that South Africa remains guided by the moral prescripts of Mandela and Tutu’s legacy; that we will not be impeded in or distracted from our vision by those who seek to sow division among us and harm our international standing for their nefarious purposes. Right now we appear caught on the hop, trapped in the headlights, while appeasing the baser instincts of sinister actors ripping up the fabric and spreading terror.
Coincidentally, in the US the most conservative Supreme Court of all time recently affirmed the constitutional guarantee of birthright citizenship as a form of remedial redress against colonialism and slavery, implicitly conceding America’s prosperity owes much to the diversity midwifed by its liberal immigration policy over the best part of 250 years.
It is fitting to remember in relation to those who come from Zimbabwe, but are actually from here, like my young friend, that but for a fiat of settler colonialism, Rhodesia could have been the fifth province of South Africa. The proposal for that to happen in 1922 was defeated by about 2,000 votes in a referendum of about 16,000 white men who made up the electorate. The fate of my young friend owes something to that decision, which somehow makes it easier to tell her she is not illegal, she is one of us. She was born here and belongs to and with us.
In the name of basic decency, we surely can be expected to protect our children.
• John Murphy is a judge of the High Court, released from active service, and former president of the UN Appeals Tribunal and chairperson of the World Bank Sanctions Board.
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