In this debate there seems to be much confusion.

One should distinguish between refugees (who have certain rights in terms of International Law and domestic legislation) and undocumented immigrants (who have rights under the Constitution but do not have the same rights as refugees in terms of legislation and International Law).

Only a very small number of the people affected by the violence are actually refugees with the legal status of refugees. We have a legal obligation to integrate them into our society.

Most of the reported 5 million foreigners from elswehere in Africa entered South Africa illigally or are now staying here illegally and they are not refugees in the legal sense – although they are often seen as economic refugees.

One can only be legally classified as a refugee if a determination is made that one has a ¨well founded fear of persecution¨ on the basis of one´s political affiliations, ethnic or religiouis origin, sexual orientation and the like. Only a small number of people now living in South Africa without the right papers would qualify for this if they applied.

Because our borders are not well guarded and because of the vast differences in economic opportunities available in neighbouring countries and in South Africa, many people flood to South Africa. They are often industrious and ready to do almost anything to get ahead and are often – in the long term – very good for the development of a country. Just think the USA who became the only world power based on immigration.

In theory people staying in South Africa illegally can be deported but only if this is done in a way that would comply with the rights in the Bill of Rights and the supporting legislation – including the right to a fair hearing – before any decision is made to send them back. Most of the rights in the Bill of Rights apply to ¨everyone¨ and not only to SA citizens.  Sadly, often the rights of such undocumented immigrants are not respected and they are merely sent back only to return on another day.

But in the end, as the apartheid government found out, it is impossible to keep so many people away from economic opportunities by merely putting them on busses and trains and sending them back to their own countries (or ¨homelands¨ in the apartheid era) where they face even worse conditions and a lesser chance of making a living.

The only way to deal with the matter is to find a regional solution and this would have to include a solution of some sort of the Zimbabwean crisis. Sadly our government has helped – directly or indirectly – to prop up the person mainly to blame for the economic meltdown in Zimbabwe so this solution never materialised.

All those people venting at the undocumented immigrants should shout at the government to do more to get Robert Mugabe out of office and a new government there up and running.

But what do we do now? If we cannot (and based on humanitarian and human rights grounds, should not) deport 5 million people from South Africa and if tens of thousands of them are now destitute because of the violence, would it not be better to set up some temporary camps to assist them to survive?

I suspect the government thinks this is a toxic idea because it would LOOK so bad in the world media while – so they might think – it may also encourage more economic refugees (who are not legal refugees to come into South Africa.

But unless something drastic happens to improve the economy of Zimbabwe, the millions of undocumented immigrants will remain part of our lives, violence or no violence. A sensible government would try and steer a course between the anger of its own people and the need to accept the inevitability of millions of immigrants in our country.

Sadly, denial instead of proactive management has characterised the management of this issue and now it has blown up in our faces.

An astounding lack of political delivery surrounds the South African crisis. Neither Mbeki nor his likely successor, Jacob Zuma, have altered their diaries in the past week to visit the displaced or speak to the nation. Instead, ministers, police chiefs and senior civil servants have put their energy into a two-pronged exercise of denial, aimed at proving that the attacks are linked neither to poverty nor to xenophobia. The intention is clearly to deflect any accusations that Mbeki’s ‘quiet diplomacy’ over Zimbabwe has led to an uncontrollable influx of foreigners and, thus, to xenophobia. Neither will the ANC tolerate suggestions that it has neglected its own poor.

Ministers and senior civil servants have gone to extraordinary lengths. National Intelligence Agency director-general Manala Manzini has dusted off struggle rhetoric and claimed that a ‘third force’ – mysterious right-wing ‘elements’ that supported the apartheid regime – is at work with a view to destabilising the 2009 elections.

Others, such as police spokesman Govandsami Mariemuthoo in Gauteng province, insist that ‘copycat criminal elements, not xenophobia’ are at work. As a result, it is now unclear what charges, if any, will be brought against the 400 people police claimed last week had been arrested in connection with the attacks in the Johannesburg area.

The reigning confusion feeds into the foreigners’ widely expressed belief that the attacks have been orchestrated by elements within the ANC – a party that has been deeply divided since Zuma was elected party president against Mbeki’s will last December. Grassroots supporters of the Zulu-dominated Inkatha Freedom Party, which fought the ANC in the early 1990s, are also being accused of involvement.

There has been much discussion on this Blog and elsewhere about the xenophobic violence and why it has spread so quickly to many parts of South Africa. The denialists within government have predictably blamed a ¨third force¨ and others wonder whether it is because foreigners have been allowed into South Africa too easily or whether those foreigners work too hard and therefore take the jobs of South Africans with a lower work ethic.

I am not sure there is one definitive answer to the question. What I am sure of is that it shows very clearly that we are not a very healthy society. The vast disparities between rich and poor, the history of racial oppression, the fracturing of family life through the migrant labour system and the homelands policies of the apartheid government have all contributed to the present fractured state of our nation.

I suspect many poor people see the wealth around them and compare that with their own lives and then they look for someone to blame. The problem is in South Africa there are so many people to ¨blame¨: foreigners, yes, but who is next? Homosexuals? Xhosas? Vendas? Whites? Woman?

This is why the spreading of the violence is so scary. It reminds us that where the social dislocation is so profound, the society is inherently unstable and it will only take one charismatic politician to whip up the sentiments of the dispossessed against the ¨enemy¨of choice.

That is why I wonder whether we are not – despite all their faults – lucky to have a party like the ANC in power. Although some of Jacob Zuma´s supporters have been seen wearing ¨100% Zulu Boy¨ T-shirts at times, on the whole the ANC is very much against tribalism and the scapegoating of minority groups. Even white South Africans who can easily be scapegoated are seldom vilified as a group.

Thabo Mbeki has often ranted against the racism of many white South Africans and while he has sometimes done this in a dishonest manner to try and hide his parties own shortcomings (remember the ¨fishers of corrupt men¨statement about those who dared suggest the arms deal was not Kosher), but he has never vilified white people and has never whipped up emotions against white people in a way that would allow the dispossed to think it would be right to attack whites and destroy their homes.

The same goes for whipping up feelings against gay men and lesbians (which was one of the first groups Mugabe turned against after he lost the referendum in 2000).

The problem is at present there is no other political party with the auro and the mythical liberation credentials of the ANC who are strong or credible enough to keep all the anger in check.

So if I was a white, middle class South African with property and a job (oh yes, I am actually one) I would have thanked my lucky stars for the ANC.

While condemning the ongoing attacks, the LHR said deploying the army to police civilians was a concern as there was the lack of a legal framework for the military to get involved in what was essentially a police responsibility. ‘Such use of the military risks exacerbating the situation and creating a security environment similar to that continuously used prior to 1994.

Because his response was too long to post in the comments section, I repost it here:

Does the LHR response not miss the point? It was emphasised that the police remain responsible and the army would only be involved in a supportive capacity. The simple fact seems to be that the available police are too few in numbers to be patrolling all potential scenes of violence. It is certainly true that “use of the military” escalates the situation, but what is the alternative – letting the police continue on their own in the hope that the violence will die down? Or would the precedent of ongoing attacks which the police are powerless to prevent not encourage an even greater escalation of “copy-cat” violence? Might the visible presence of soldiers in the streets not help to discourage the commission of acts of violence in their presence?

Amidst the deep anguish caused by these events there is a danger of some of the fundamental causes of the xenophobic attacks being lost sight of. On the one hand there are legal and moral issues involved. It is wrong and criminal to attack foreigners, especially those from countries which welcomed South African political exiles pre-1990 and supported the struggle against apartheid. Forming such a judgment, however, does not change the ugly reality on the ground.

There may well be criminals involved who exploit the situation to steal and to loot. But it is widely understood that many (or most?) of those involved in the attacks do so not because they are innately criminal or bad. It is widely understood that many of attackers are from the poorest of the poor, reacting against what they see as an endless stream of equally poor refugees settling in their midst, competing for the same pitifully scarce resources, diminishing whatever hopes they may have of bettering their lives and those of their children.

True, the government should have been more pro-active since 1994 at least in changing those bleak conditions. True, President Mbeki should not have closed his eyes to what was happening in Zimbabwe and allowed a situation to develop where additional masses of desperate people would pour into the country. But the government wasn’t, and Mbeki did. Now we are facing the consequences.

It doesn’t help, in this situation, to let emotion get the better of our judgment. This morning I heard two radio talk-show hosts (on Cape Talk / Radio 702 as well as SAFM) deploring the fact that the violence is against fellow black Africans while European immigrants are not seen as targets – not that Europeans should be attacked, as one talk-show host emphasised, but doesn’t it show “hypocrisy” and “negrophobia” rather than “xenophobia”?

Such reactions ignore the grim reality. Had the poorest of the poor from Europe and elsewhere been allowed flood into the informal settlements, I have no doubt that they would soon (sooner than black Africans) have come under attack. There is no “hypocrisy” in not attacking white immigrants with whom one is not competing for the means of subsistence, who live in a different world.

Similar loss of perspective is revealed by contrasting the hospitality shown to South African exiles in the 70s and 80s in neighbouring states with the violence now being unleashed against citizens of those countries. The 70s and 80s did not see large numbers of impoverished “economic refugees” from South Africa pouring into the poorest suburbs of Harare and Maputo. South African political exiles were by and large sponsored by political organisations, often with funding from international humanitarian organisations, making them less dependent on local economies. The two situations can’t really be compared. All one is left with is a sense of tragedy at the harsh way in which history has turned events on their head – but still we must deal with the consequences.

If soldiers can place themselves between would-be attackers and potential victims in troubled areas, thereby preventing the latter from getting at the former while alerting the police to incidents and enabling arrests to be made, it will indeed not solve the root causes. But it may give immigrant communities a degree of protection, and a respite from violence, which in past weeks they have not enjoyed. That, I suspect, may be worth more to them than the knowledge that the LHR, like most South Africans, is “condemning” the attacks.

But, most of all, the events should be a wake-up call to the government and all other parties involved – including private citizens – that if we continue to delay the massive economic and social interventions that are needed to start making a difference on the ground, we do so at our peril. We know what the priorities are (housing and infrastructure, schools, hospitals, and the millions of new jobs needed to build and operationalise all these things). We have been exhorted to think “business unusual”. What is needed, besides condemning xenophobia, is an urgent concentration of minds and resources on launching the response that is needed – but urgently.

Wonder what readers think about this analysis?

Two quite different approaches to this problem seems evident. On Thought Leader Michael Trapido has posted a provocative piece in which he argues that the people of Alexandra are Diepsloot who have spearheaded the attacks, looting and murder of foreigners are owed an apology for the insensitive way they have been treated by the press, experts and politicians.

Money quote:

Many “experts” and politicians are jumping on to the “clampdown on xenophobia” bandwagon without so much as a casual remark about those victims suffering from uncontrolled immigration run wild. Perhaps they’d best remember that these so-called members of a third force (or criminals, as they are so quick to judge them) are, in the main, simply the residents of towns and cities overrun by immigrants.

So, if only we had better border control and kept out those evil immigrants it would not have been necessary for the good people of Alexandra and Diepsloot to murder them and loot their belongings. This seems deeply wrongheaded to me. It is one thing to try and understand the frustrations of poor people who feel desperate and are therefore looking around for someone to blame. It is another to suggest that the problem is not xenophobia but the fact that there are too many immigrants. This smacks of blaming the victim and is not in accordance with the values of a human rights based society which we want to create in this country.

A much better analysis – at least as far as I am concerned – is the piece in this morning’s City Press by Andile Mngxitama who points out that not all foreigners are targeted in these attacks. White foreigners coming from the UK or Australia (god forbid) are not called names like “makwerekwere” and their homes are not looted and burnt. As Mngxitama points out:

Since these attacks are targeted at black Africans, why do we continue using the term xenophobia, which generally refers to the hatred of foreigners? Our country doesn’t hate all foreigners, in fact white foreigners are revered by both rich and poor blacks. The rise of negrophobia is the logical conclusion of our failure to decolonise our minds and also socioeconomic realities. Government and public responses are disingenuous and woefully inadequate. What have we done to help the victims in Alex? We need action not nice talk……

We have failed to humanise our society through genuine freedom which leads to material and psychological liberation. The depoliticisation and demobilisation of our communities to influence the post-1994 politics of profits above people are contributing factors….The colonial border and the criminalisation of Africans is complicated by the anti-black racism rife in South Africa and etched in the psyches of both blacks and whites.

This is perhaps our dirty little secret: that race hatred (whether one can call it racism is another debate) is shared by many South Africans of all colours. Some of my foreign students tell me of how they are often discriminated against and vilified by both black and white South Africans because they happen to have a skin colour that is darker than the average South African.

Are these attacks not a sign of how successful apartheid has been in instilling race based prejudices in our hearts? The big question is, of course, how to begin to address this race based prejudice. This is not an easy question to anaswer. Maybe we can start by ending the denial that such prejudices exist amongst our brothers and sisters. More complicated is the question of how we begin to undo the hundreds of years of race based thinking on which such prejudices are based given the fact that white racism is still so rife and given that we still need affirmative action to overcome past oppression.

It would be naive and irresponsible merely to run around claiming that race does not matter or that we are all just human beings and that race should therefore be banished from our lexicon. That is the favourite strategy of those whites who do not wish to acknowledge the injustices of the past. Maybe a more nuanced understanding of race is required. An understanding that starts with the acknowledgment that while race is very real for most South Africans (because it is the basis on which they have been oppressed), race is a construction – an invention of the West.

But I cannot pretend I know how I would begin such a discussion with the people of Alexandra and Diepsloot without sounding like an effete Latte drinking, white liberal. All I know, if we do not talk about these things, the days will only get darker in South Africa – and I am not talking about Eskom.