Testimony prepared for:

Open hearings on ‘Xenophobia and Problems Related to it"

Hosted by the South African Human Rights Commission with the Portfolio Committee of the Departments of Foreign Affairs and Home Affairs

Johannesburg, South Africa

2 November 2004

Forced Migration Working Paper Series #11

Forced Migration Studies Programme

University of the Witwatersrand

This series provides a forum for researchers to publish preliminary findings on themes related to forced migration in Africa. These papers may be cited (including the full URL and the date downloaded), but reproduced only with direct permission of the author. Submissions are welcome by email or post directed to our research coordinator who serves as the series editor <[email protected]>. Authors whose work is included here are encouraged to resubmit papers for publication elsewhere.

Other works in this series include:

Mr. Chairman, Commissioners, members of the portfolio committee, I am grateful for the opportunity to be here and I applaud your decision to support this valuable initiative. As academics we live in fear that our work will be read by a few ivy-covered professors holed away in their ivory towers. I hope that the following testimony, based on our research over the past two and a half years, will manage to reach at least a few who live and work beyond the academy’s narrow confines.

That said, the testimony I am about to present is distinctly academic in its flavour. Although my personal biases and inclinations lean towards cosmopolitanism over nationalism, my testimony is not based on any particular political agenda. Rather, I wish to exploit my role as a social scientist and critic to challenge five empirically unfounded myths that I believe have informed public attitudes towards non-nationals in the country and South Africa’s policy towards non-citizens. I also hope to highlight the negative consequences of these myths.

Many South Africans fear that the country is being over-run by refugees and asylum seekers. While there are undoubtedly more of these in the country than in years past, they still number under 150,000. In a country of around 44 million people, that is a tiny number. While there are many more non-nationals in South Africa who are neither refugees nor asylum seekers, even these numbers are modest. Accepting estimates at the high end of the spectrum—850,000 people, for example—means that less than 2% of the country’s residents are foreign born. In cities like Toronto, Canada, over 40% of the population is foreign born. In some parts of Tanzania, almost a quarter of the population are non-nationals. The numbers in South Africa may be climbing, but we should be wary of accepting claims that there are millions of non-nationals inundating the country and we must keep these numbers in perspective. Recent claims that there are 2-3 million Zimbabweans in the country, for example, are simply implausible. Although the number of Zimbabweans here has grown since 2000, a figure of 2-3 million represents represent more than 20% of that country’s population.

Many South Africans in and out of government believe that non-nationals are a serious burden on the country’s social services. Pronouncements from the former Minister of Home Affairs together with more recent statements from the Mayor of Johannesburg and others (cited in the background document), are indicative of such beliefs and have helped to establish them as widely held social facts. There are good reasons, however, to doubt such convictions. For one, as I have just described, non-nationals are only a small percentage of the country’s residents and are, consequently, unlikely to levy considerable costs on public services. As the recent state of the cities report suggests, many of the country’s municipal governments are struggling to manage burgeoning populations, but most of those coming to the cities are South Africans. If anyone is overwhelming local capacity and budgets, it is the South Africans themselves. Moreover, the fact that so many foreign nationals who are eligible for services—including emergency health care—are denied access, further limits their impact and demands we look elsewhere to explain cost overruns and service delivery problems.

There is a widespread assumption among South Africans that non-nationals are stealing their jobs. While it is true that many of the non-nationals have entrepreneurial skills and training and are, as such, better suited for South Africa than many South Africans, it makes little sense to characterise them as a threat. On aggregate, migrants are likely to increase job opportunities for South Africans. Wits University research in inner-city Johannesburg, for example, found that non-South Africans were far more likely to have hired someone to work for them in the past year than the South Africans amongst whom they lived. Even more significantly, more than two-thirds of those hired by migrants were South Africans. Work in Durban also identifies a positive economic impact from immigration and the city government has now adopted policies that allow non-nationals to apply for street-trading permits. Internationally, there is evidence that immigration provides a net-benefit to national economies by bringing new skills, innovations, experience, and what often appears to be a superhuman work ethic.

South African immigration policy is founded on a misplaced faith in governments’ ability to prevent cross-border movements. The focus on identity documents, detention, and deportation is illustrative of this as is the need for asylum seekers and refugees to report regularly to designated offices. Due in part to this belief, recent discussions about harmonising regional instruments have tended to shy away from facilitating movements, but rather put forward new measures to control them. These include, inter alia, proposals to create asylum seeker camps and a computerised data base listing all immigrations, refugees and asylum seekers entering the region so that individuals may be traced and prevented from ‘asylum shopping’ or undertaking irregular movements outside of state regulation. Apart from the ethical problems with such propositions, there are few reasons to believe that South Africa (or its neighbours) could track such movements when so many South Africans—who have few incentives to hide from the state’s eyes—continue to live without identity documents and effectively outside of state regulation.

There is a need to recognize that lack of capacity and the country’s extended porous borders make it effectively impossible to stop people from crossing into South Africa’s national territory. Even high walls, armed guards, electric fences, sophisticated surveillance equipment and the full power of the US government’s Department of Homeland Security have been unable to prevent people from crossing the Mexico-US border. What such efforts have done, however, is greatly increase the number of deaths amongst people trying to do so. South Africa is not likely to be any more successful in its efforts, to say nothing of the endemic corruption and administrative irregularities that characterise many of the country’s formal border posts. In practice, any one with even modest resources can cross borders with relative ease, although the illegality of doing so opens the possibility of considerable abuse and exploitation. The fact that local police are often unable to distinguish migrants from locals—or can not do so based on documents—means that there are also no easy, rights-based means of controlling people once they have entered the country.

Although impracticable, the ethos of control without capacity has critical, negative consequences in at least two areas of great concern. We have discussed many of these in the background paper so I will do little more now than simply draw attention to them

• South Africa has a gaping skills gap. While policy and law recognize that South Africa must recruit highly-skilled labour, few seek to capitalise on the economic potential of those already in the country or who are likely to come in the near future.

• Criminalising migrants has driven processes of informalisation and illegality. Rather than protecting the rights and livelihoods of citizens, immigration policy has de facto promoted the illegal hiring of non-nationals in ways that continue to undermine the unions and suppress the wages paid to all workers. Moreover, by encouraging non-nationals (and those who hire them) to work in the informal sector or shadow economy, the government deprives itself of an important source of revenue.

The criminalization of non-nationals has opened opportunities for police corruption and illegality. By targeting non-nationals, police are able to meet periodic arrest targets. Moreover, because they are denied access to almost all formal banking service, poor immigrants must either stash cash in their residences or carry it on their bodies. Combined with their tenuous legal status, (often) poor documentation, and tendency to trade on the street (hawking or informal business), some police officers have come to see foreigners as ‘mobile-ATMs’. In the words of one Eritrean living in Johannesburg, "as foreign students we are not required to pay taxes to the government. But when we walk down these streets, we pay."

Those arrested for immigration offences—or otherwise determined to be persona non grata—enter a privatized realm of law enforcement existing largely outside of government regulation and public observation. Kaajal Ramjathan-Keogh has described the terrors of this system, so I will simply refer you to her testimony. I wish only to suggest that there while extra-legal patterns of policing, detention, and deportation authorised by the state are popular, they are generally ineffective at establishing order or security.

As an issue of state sovereignty and international relations, officials, politicians, and the public often suppose that migration policy can only be effectively formulated by national government departments. There are two reasons for questioning this assumption. First, because immigration necessarily affects two or more sovereign states, regional migration instruments are needed to manage these movements. More importantly, as political decentralization and devolution continues, migration management will, de facto, be transferred to local governments who are already charged with overseeing and spear heading the development of their communities. Because immigration insinuates cities (especially) directly into global and regional processes in ways that often circumvent national policy, effective immigration and asylum policy must be developed together with local authorities and in line with local priorities. I have brought along copies of a recent publication intended to help outline ways in which this could happen.

Rather than ending with specific suggestions for reformulating South Africa’s migration and immigration management systems—that is a job for politicians, not political scientists—I wish only to rehearse a number of the points made above; issues that I believe should be included in any consideration of migration policy:

• Carefully learn from other regions. Southern African governments and regional bodies must not borrow laws and regulations in toto nor seek to legitimize repressive policies simply because they have been enacted elsewhere. Rather, they must recognise the specific contexts in which they operate, their own regulatory capacities, and the potential by-products of any intervention;

• Develop mechanisms for objective tracking of migration trends. Accepting that migration and immigration will continue—and that such movements can make important contributions to the regional economy—means shifting from a control ethos to one focused on managing and facilitating regional migration. The first step in doing this is developing an accurate understanding of migration flows and their potential social, economic, and political effects. Rather than relying on politicians and methodologically flawed studies to generate estimates of migration and its impacts, efforts must be made to develop objective population scientists that can collect longitudinal and comparative data throughout the region.

• Incorporate local governments into migration management. To make migration a developmental rather than a policing issue means expanding the locus of responsibility beyond national government agencies and departments. City governments in South Africa are, de facto, already addressing the effects of migration. They should be supported in their efforts and encouraged to consider migration-related policies that contribute to, rather than undermine, local, national, and regional priorities.

• Reconsider citizenship and residency laws. There is currently little public or political support for Eurozone-type rights of unrestricted movement or regional citizenship. Recognizing, however, that these movements are taking place—and that many people spend the majority of their working lives in countries in which they are not citizens—suggests the need to rethink the terms under which people access social services, participate in decision making, and protect their rights.

While the South African Government and other members of SADC and NEPAD speak of halting "the marginalisation of Africa in the globalisation process and enhance its full and beneficial integration into the global economy," these efforts are not currently supported by the legal mechanisms needed to manage migration: a form of integration that is already taking place largely outside the realm of official policy and regulation. I hope that through consideration of these recommendations—suggestions that are more pragmatic than political—South Africa can help to build a country and a regional community that respects the rights of citizens and non-citizens in ways that promote their health, wealth, and security.

Loren B. Landau

Acting Director and Research Coordinator,

Forced Migration Studies Programme