SAR, Vol 12 No 1, November 1996
A BAD NEIGHBOUR POLICY?
MIGRANT LABOUR AND THE NEW SOUTH AFRICA
BY JONATHAN CRUSH
Jonathan Crush is the Canadian Project Director of the Southern African Migration Project. The views expressed in this article are the author's own and not those of the Project or the funders, the Canadian International Development Agency. For more details about the Project, see the SAMP homepage at the following address: http://www.queensu.ca/samp/
Maxine Reitzes has recently argued that immigration has come up from behind on South Africa's post-apartheid policy-makers. She notes how, in response, immigration policy is "diverse and inconsistent." Conflicting public statements, resort to the failed policies of the past, no clear sense of direction, an absence of constructive public debate, and a failure to engage with the lessons of the international experience, are all present. Progress towards a new and more progressive immigration policy has been slow. More than two years since the 1994 election, there is still no green paper on immigration and little of the kind of consultation and dialogue witnessed in other areas of public life. Immigration is still governed by the omnibus Aliens Control Act of 1991. The Amended Act of 1995 is far from being a progressive piece of legislation. Indeed, as the name suggests, the premise of the Act is tighter controls on immigration and greater powers of expulsion by the state.
One reason for the lack of movement is that the new South African government has had to contend with an inherited system of migration and immigration management rife with corruption, racial double-standards and special privileges for certain employers. At the same time it has faced a rapidly escalating influx of undocumented migrants from the Southern African region and further afield. This has prompted rising demands from interest groups within South Africa for a "South Africans first" policy in the labour market. Some employers, particularly the farmers and mining companies, have openly argued for the right of continued access to foreign labour. Others have made few public pleas but continue to employ non-South Africans in considerable numbers. Organized labour has been more equivocal; some call for the outright expulsion of non-South Africans, others acknowledge the need for some form of legal access to South Africa by residents of SADC.
The Department of Home Affairs has struck closely to the "control and deport" script of the ancien regime. Minister Buthelezi has made his own penchant for this model abundantly clear and is followed by most of his senior bureaucrats, the majority of whom are holdovers from the old days. Support for their views has come from the Human Sciences Research Council, who have prepared three problematical reports on "illegal aliens" for the Department.
The thinking embodied in these reports, and in official discourse more generally, suggest that there are still significant obstacles to the kind of creative thinking which would make South African immigration legislation and policy consistent with the country's new commitment to transparency, human rights and constitutional guarantees and its stated commitment to regional cooperation and development. What is required is a fundamental re-evaluation of the purposes of immigration legislation particularly as it pertains to the migration of Africans to South Africa.
Forgetting the past
The South African media and officialdom often seem to forget that formal and undocumented cross-border migration in Southern Africa did not begin in 1990. South Africa has long been part of a regional economy and a regional labour market and cross-border migration needs to be seen in that context. As part of this system, migrants have been coming to South Africa (and returning home) from countries like Mozambique, Zimbabwe, Lesotho and Malawi since the mid-nineteenth century. Draconian controls to try and stop this movement of migrants from the region have always been spectacularly unsuccessful.
It is a disturbing fact that South African immigration policy is still largely governed by a piece of legislation from the dark ages of segregation and apartheid. The origins of the Aliens Control Act are deeply racist and anti-Semitic. It was originally passed in 1937 to exclude German Jews fleeing Nazi persecution from coming to South Africa. The virulent anti-Semitic rhetoric that accompanied passage of the Act is curiously reminiscent of the language heard in some quarters over the last year or two by those clamouring for tighter controls on "aliens" from the rest of Africa.
Subsequent amendments to this Act were almost always designed to erect higher boundaries, to place greater controls on people's mobility, to give the police greater powers, to circumscribe the legal rights of "aliens" and to extend the range of people to which the Act applied. These amendments were invariably accompanied by moral panics in which the country was supposedly being "swamped" or "polluted" by "floods of unsuitable" immigrants. A moral panic not dissimilar to today's prompted the passage of the original Aliens Act in the 1930s.
Policy by numbers
Within South Africa, official and popular discourse is obsessed with the question of how many undocumented migrants there are in the country. The idea has become embedded in the press and official discourse that there are between 4 and 11 million "illegals" in the country. These figures have absolutely no basis in fact. As international experience shows, counting undocumented migrants is a largely pointless, because impossible, exercise. The danger is that in the absence of reliable statistics, officials, politicians, and members of the general public feel free to use whatever figure they like to whip up anti-immigrant sentiment.
One illustration of the massive inconsistencies this produces should suffice. Some South African police sources "reliably" estimate that there are 8 million undocumented immigrants in South Africa. They also claim that an "illegal" enters the country every 10 minutes. Both figures are designed to bolster the idea that a "flood" of undocumented migrants is pouring into the country. The problem here is that at the given rate of entry, it would take over 150 years to reach the given figure of 8 million migrants in the country.
Statistics are not unimportant, of course. There is certainly a need to build a reliable data base and socio-economic profile of immigrants in order to test, and if necessary contest, the unsubstantiated claims that are often made about the harm they cause. But the issue is not primarily about numbers in any case.
There is today a blunt, and increasingly bellicose, mythology targeted at non-South Africans living in the country. This mythology is fuelled by the public utterances of police, some researchers and certain officials in government. "Illegals" take jobs, commit crimes, depress wages, consume RDP resources, spread Aids, and smuggle arms and drugs. Anti-immigrant myths always generalize from the anti-social behaviours of a few and conveniently forget about the positive contribution that immigrants can and do make to a society. The power of a myth is that it does not have to be true for people to act on it. Anti-immigrant myths produce anti-immigrant behaviour. Random attacks on non-South African residents of the country, as in communities like Alexandra, are the almost inevitable result.
South African cities have traditionally acted as melting pots. Despite the best efforts of apartheid's social engineers to keep people of different ethnic and language background apart, ethnic tensions and strife have always been minimal. Racial and ethnic differences were often diluted by the power of personal contact or subsumed in the common struggle against white oppression. One of the most troubling features of post1994 community attitudes in South Africa is a surprising tendency in many areas to redefine non-South Africans as "other," as the causes of economic and social hardship and as the perpetrators of crime. True, some recent surveys have shown that black South Africans are still much less hostile than their white counterparts to the presence of African "foreigners" in the country. Nevertheless, the levels of xenophobia may be considered dangerously high. Anti-immigrant mythology needs to be systematically deconstructed and debunked. In its place, there is need for a rigorous analysis of the economic contribution that immigrants do and could make to host societies, as well as public education programmes to produce a better-informed public.
Only certain voices are being heard in the debate on immigration. Occasionally stories surface in the South African media concerning the abysmal treatment of undocumented immigrants by South African employers or the police. More often, undocumented immigrants prefer to keep silent for fear of drawing attention to themselves. Migrants are marginalized and silenced by fear. Immigrants have no channels by which to articulate their grievances or contest their treatment in the country. Nor can they present counter-arguments as to why they think they should be allowed to live and work in South Africa.
There is actually a need to listen to the voices of so-called "aliens." Why are they in the country? What do they want? How are they treated? Do they intend to stay? What do they think they contribute to the new South Africa? Would they stay if offered the chance? There is a need for a forum in which the voices of migrants can be heard and evaluated free of fear of persecution and harassment. Rarely do the objects of legislation not have a chance to respond and react. "Aliens" have no voice, by definition.
Once a problem is defined, the range of possible solutions is circumscribed. Once migrants are typecast as "illegals" or "illegal aliens" - without regard to differences of age, gender, skill level, resources, economic activity, length of residence and intended length of stay, place of residence, motivations, perceptions, and so on - they are depersonalized, branded as outsiders and treated as if they are a homogenous group requiring a uniform policy response. There is clearly an urgent need to rethink the migration terminology and language which frames current South African policy and legislation, to develop new definitions and policies consistent with a human rights approach to migration, to recognize the internal complexity of the community of migrants, and to give due recognition and reward to long-term so-called "illegal" residents.
In recent months there have been some promising moves in an alternative direction. First, although there has not yet been a broad-based national, regional and local consultation on the whole question of immigration, there are signs that this may soon change. In September 1996, following sustained pressure on the Department of Home Affairs by Cabinet and the Parliamentary Portfolio Committee on Home Affairs, the green paper process was taken out of the hands of the Department and placed in the care of a specially appointed Task Force on Immigration that will report in January 1997. There is now a much greater chance of the kind of public input and debate that has not, to date, characterized policy making in the immigration field.
Second, the South African government has offered a limit amnesty to certain categories of foreign resident. The first was an offer of permanent residence in October 1995 to long-serving migrant miners who had voted in the 1994 election. About 40,000 miners availed themselves of this offer; about one-third of those who were eligible. The reasons for this relatively low rate of uptake and the consequences of amnesty for the source areas are the subject of research currently being conducted by the Southern African Migration Project. The second amnesty was an offer of permanent residence in June 1996 to undocumented residents from the SADC states who had lived in South Africa for more than five years. This amnesty was vigorously opposed and reluctantly implemented by the Department of Home Affairs. The Department argued that 600,000 people were eligible for the amnesty and that by a process of family reunification a further 12 million people would be added to South Africa's population. These figures are highly dubious. By late September, after a last-minute rush, some 150,000 people had applied countrywide under this provision. The unresolved issue is what, if anything, to do about undocumented migrants who came to South Africa after 1991. A more general amnesty is certainly one option. This would allow undocumented migrants to regularize their status without necessarily offering rights of permanent residence.
Third, there is a growing recognition in certain circles of government that migration is as much a regional as a national issue. The South African government cannot go-it-alone on this most critical of questions. Bilateral discussions have been initiated by the Department of Home Affairs with a number of other SADC states. This is a positive sign provided that the South African motive is not simply to secure support for applying the Aliens Control Act on a sub-continental scale.
An alternative model has emerged from within SADC itself. The SADC Draft Protocol on the Free Movement of Persons in Southern Africa contains easily the most radical and even visionary model of a future regional migration regime in Southern Africa. The Protocol, initiated and promoted by the SADC Secretariat, has run aground on the opposition of South Africa and Botswana, in particular.
In the words of one South African MP, the Protocol has been "put back on the shelf." The recent South African Labour Market Commission cited the Protocol approvingly but backed off from recommending its acceptance by South Africa following vociferous opposition from the representatives of organized labour. Immigration is a regional issue requiring regional thinking and initiative. Whether by taking the Protocol back off the shelf or through some other mechanism, a multi-lateral and open-ended process of consultation and dialogue around migration within the SADC community of nations is now more important than ever.
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