As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
There seems to have been some talk about setting up refugee camps for those people displaced by the xenophobic violence around the country. This has been rejected by the government because it argues that it has a duty in terms of the Constitution and International law to integrate refugees and not to lock them up in camps.
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.BACK TO TOP