The Face of Violence: Rethinking the Concept of Xenophobia, Immigration Laws and the Rights of Non-citizens in South Africa

• Author: N. Odiaka
• Position: Afe-Babalola University (Ado-Ekiti, Nigeria)
• Pages: 40-70

BRICS LAW JOURNAL Volume IV (2017) Issue 2

THE FaCE oF VIoL EnCE:

RETHInKInG THE ConCEPT oF XEnoPHoBIa, IMMIGRaTIon LawS

anD THE RIGHTS oF non-CITIZEnS In SouTH aFRICa

NGOZI ODIAKA,

Afe-Babalola University (Ado-Ekiti, Nigeria)

DOI: 10.21684/2412-2343-2017-4-2-40-70

Xenophobia, simply put, is the fear or hatred of foreigners or strangers; it is embodied

in discriminatory attitudes and behaviors, and often culminates in violence, abuses

of all t ypes, and exhibition of hatred. Theoretically, the best and only solution is to

remove enemy images; however, it is debatable whether this can be done. In the same

breath, protecting migrants’ rights may be the best way to enhance state sovereignty

in a globalized world. The protection of fundamental human rights and freedoms

transcends municipal and international laws. However, it is the state’s responsibility

to uphold human rights through its laws and enforcement. This work examines the

constitutional rights of non-citizens in South Africa within the context of its immigration

law and xenophobia. The motives of xenophobia are considered. It will be argued that

foreign nationals are particularly vulnerable to the restriction of their access to justice as

the immigration laws and policies have not adequately guaranteed foreigners cer tain

inalienable rights. The states uncoordinated attitude towards xenophobic attacks raises

doubt as to whether there can be compliance with the sacred constitutional obligation

to protect and preserve lives of all people within the country. For on the one hand the

law claims to protect non-citizens while on the other, no prosecution has been made

against anyone involved in xenophobic attack. The failures of the state will be observed

and necessary suggestions will be proered by this work to aid policy makers.

Keywords: xenophobia; attack; policies; prosecution; violence.

Recommended citation: Ngozi Odiaka, The Face of Violence: Rethinking the Concept

of Xenophobia, Immigration Laws and the Rights of Non-Citizens in South Africa, 4(2)

BRICS Law Journal 40–70 (2017).

NGOZI ODIAKA 41

Table of Contents

Introduction

1. Racism and (or) Xenophobia in South Africa

2. Theories on Xenophobia

2.1. Scapegoating

2.2. Power Theory

2.3. Power-Conict Theory

2.4. Normative Theory

2.5. Bio-Cultural Approach

2.6. Isolation Hypothesis

3. Immigration Law and Xenophobia

4. Immigration Policy and Developments in South Africa

5. Access to Justice for Non-Citizens in South Africa

5.1. Asylum Seekers and Refugees

5.2. Migrants

6. The Role of Law in Xenophobia in South Africa

Conclusion

Introduction

Violence commonly viewed as xenophobia in nature erupted in South Africa

in May 2008 leaving more than 60 people dead and tens of thousands of people

displaced in its wake. The outbreak se nt shock waves through the cou ntry, the

continent and across the globe because for almost 15 years, South Africa had enjoyed

a reputation as an exemplum of racial reconciliation.1 Xenophobia can be traced

back to pre-1994, when immigrants from elsewhere faced discrimination and even

violence in South Africa, even though much of that risk stemmed from and was

attributed to the institutionalized racism of the time due to apartheid.2 After the

advent of democracy in 1994, contrary to expectations, the incidence of xenophobia

increased.3 Studies show that between 2000 and March 2008, at least 67 people

1 Violence and Xenophobia in S outh Africa: Developing Consensus, Moving to Action (A. Hadland (ed.),

Pretoria: Human Sciences Research Council, 2008). It is based on a roundtable hosted in June 2008 in

Pretoria that was attended by around 50 key stakeholders from government, civil society and from

aected communities. It was a result of partnership between the Human Sciences Research Council

and the High Commission of the United Kingdom.

2 South Africa Xenophobia: Why is There So Much Hatred of Foreigners?, The Week, May 18, 2015 (May 10,

2017), available at http://www.theweek.co.uk/63378/south-african-xenophobia-why-is-there-so-

much-hatred-of-foreigners.

3 Olu Ojedokun, An Ethical Approach to the Xenophobia against Foreigners in South Africa, 11(1) OGIRISI:

A New Journal of African Studies 169 (2015).