Abstract

The role of language in a diverse and democratic society is critical for many reasons: first, it serves as a vital tool for the realisation of the right to freedom of expression. Secondly, it brings into confluence two other rights: the rights to dignity and equality. When language has the potential to cause hurt or harm, or incite others towards hatred, discrimination, or violence, then law as an instrument must be relied upon to regulate it. Political rhetoric uttered by top politicians in South Africa does not reflect the truth from a policy perspective; it incites hatred towards foreign nationals, shatters communities as fear and suspicion fill individuals who target foreign nationals and is counterproductive when one thinks of nation-building. The rhetoric exceeds the limits of legally protected speech. In addition, scapegoating foreign nationals for the country's socio-economic woes is not only dishonest but is a form of political corruption.

Keywords

Xenophobia; poisonous pedagogues; foreign migrants; immigration; hate speech; freedom of speech.

………………………………………………………

1 Introduction

In 2015 and 2016 the Republican primaries in the United States presidential race served as a public podium for Donald Trump to utter controversial and divisive remarks regarding specific demographics. 1

 Avitus A Agbor. LLB (Hons) (Buea); LLM (Notre Dame); PhD (Witwatersrand). Research Professor of Law, Faculty of Law, North-West University, Mahikeng Campus, South Africa. Email: Avitus.Agbor@nwu.ac.za. ORCID: 0000-0001-9647-4849.

1 Lind 2015 https://www.vox.com/2015/12/9/9872908/donald-trump-muslims.

The U.S. has become a dumping ground for everybody else's problems. [Applause] Thank you. It's true, and these are the best and the finest. When Mexico sends its people, they're not sending their best. They're not sending you. They're not sending you. They're sending people that have lots of problems, and they're bringing those problems with us. They're bringing drugs. They're bringing crime. They're rapists. And some, I assume, are good people. 2

2 Benkler, Faris and Roberts Network Propaganda 105.

Those remarks were further echoed and amplified during Republican primaries in 2016 and the general election in the Autumn of that same year. Trump would say Mexicans are perpetrators of the most violent crimes. He labelled Mexicans as criminals who rape and murder Americans. 3

3 Yount 2017 https://www.asc.upenn.edu/news-events/news/study-finds-troubling-consequences-anti-muslim-and-anti-mexican-attitudes-and-actions. Also see Kteily and Bruneau 2017 Personality and Social Psychology Bulletin 87.

countries were red-flagged for restricted entry into the United States. 6

6 Pierce and Meissner 2017 https://www.migrationpolicy.org/sites/default/ files/publications/Trump-EO-Refugees-TravelBan-FINAL.pdf 1-6; Anon 2017 https://www.bbc.com/news/world-us-canada-38777437.

Trump's actions and comments were not without precedent. History records that in Nazi Germany, propaganda authored by Julius Streicher and Hans Fritzsche filled the newspapers and airwaves, stirring anti-Semitic sentiments and creating a fecund environment for the perpetration of atrocities. 11

11 Artz 1994-1995 NY L Sch J Hum Rts 689-758.

As witnessed recently, some South African politicians are intentionally putting the country on a similar path, orchestrating discrimination, hostility and violence against specific groups of individuals. The only difference with the South African experience is that such individuals belong neither to a race nor to an ethnicity. National origin is the key factor here. 14

14 The discriminatory acts perpetrated against foreign nationals are based solely on the fact that they are foreign nationals.

There have been numerous instances of prominent politicians who utter words and phrases that have undoubtedly resulted in the perpetration of xenophobic acts. 16

16 Mazarura 2022 https://www.dailymaverick.co.za/opinionista/2022-03-16-the-political-agency-of-xenophobia-and-xenophobic-violence-in-south-africa-a-call-for-responsible-leadership/. Also see Welle 2022 https://frontline.thehindu.com/dispatches/south-africa-new-campaign-reignites-xenophobic-rhetoric/article65396102.ece.

been targeted following such comments. 19

19 On the contributory role played by South Africa's politicians to xenophobic violence, see the following: Landau 2015 https://www.washingtonpost.com/news/monkey-cage/wp/2015/05/11/political-rhetoric-and-institutions-fuel-xenophobic-violence-in-south-africa/.

Laying bare some of the undeniable facts about foreign migrants in South Africa, this paper investigates some of those contentious issues that surround the unwittingly problematised migration in South Africa. Taking an evidence-based approach, the paper picks a few snippets of speeches made by prominent politicians in South Africa regarding foreign nationals and shows how such speeches played a contributory role to the perpetration of violence against foreign nationals in South Africa. This is followed by a discussion on the regulation of migration in South Africa, backed by data collated from Statistics South Africa (Stats SA). The paper then evaluates the contents and context of those speeches in the legal framework: domestic legislation such as the Constitution, 20

20 Constitution of the Republic of South Africa, 1996 (the Constitution).

urgent need to hold honest and rigorous debates on thematic issues such as migration which may help allay the anxieties harboured by South African citizens towards foreign nationals.

2 The facts

South Africa's history has been embroiled in significant economic and political developments over the decades which, arguably, have been both positive and negative: an apartheid policy, discredited for many decades, was dismantled. The black majority was enfranchised and took the reins of political leadership, and a constitutional democracy was founded on the premises and promises of equality, human rights, the rule of law, good governance and accountability. 26

26 See s 1(a) of the Constitution.

Developments in the socio-economic, legal, and political arenas in South Africa have not only questioned the same premises upon which South African democracy is built, but the values have been compromised and constitutional institutions defied. The political leadership has lost its credibility, social cohesion amongst the people has been brought to the lowest level and suspicion breeds amongst them. Political corruption resulting in the grand theft of public resources has been rife; an economy that works for a few only with sky-rocketing prices which make the cost of living unbearable. There is a widening gap between the rich and the poor, millions of people are consigned to despair, the provision of prisons is the fastest growing industry in the land due to the surge in crime, many more people are now on welfare (or are receiving social grants, to be euphemistic), the economy is shrinking as investors seek alternative venues for investment,

service delivery is poor, social injustice is rife, and the legal, political and social systems are bereft of the much-needed trust from the people in order to thrive and operate. Infrastructural decadence and collapse have made it a huge challenge to provide even the most basic of services needed for a stable mental life. The provision of electricity is irregular and potable drinking water is a luxury. These issues are compounded by a nation-wide resentment and disappointment manifested through poor work attitudes.

Honest political debates are necessary to address the foregoing issues and to keep the broader South Africa informed, share the facts, and find sustainable solutions to these problems. The economy, the infrastructure (roads, water, electricity), the social services (hospitals, public schools, etc.); crime, socio-economic rights; social and economic injustices, good governance, combatting corruption and political leadership are some of the critical issues that warrant rigorous, honest and non-partisan debate.

The rhetoric spewed out by prominent politicians in South Africa, blaming African foreign nationals for all the challenges faced by the country, breeds suspicion, bias, hate and violence in the communities in which those foreign nationals live. 28

28 It could be argued that such a status quo was triggered by the statements made by some political figures.

produced the harsh rhetoric and have never been willing to have an open, frank and engaged debate in which the data and contribution of migrants are shared and discussed. By blaming foreign nationals for the current situation in the country, they fuel anti-foreigner sentiments and advocate hatred, and when violence and discriminatory acts are perpetrated against foreigners the perpetrators are quickly labelled as xenophobic: the most profound of irrational biases against "strangers".

The question, however, is whether the statements made by politicians square with the truth. If foreign nationals have stolen the economic opportunities in the country, why then should those same politicians preserve the laws that bring and keep them in the country? Why enact laws that define the various paths to migrating to South Africa? If the politicians genuinely believe that foreign nationals are responsible for all the social upheavals and disastrous economic structures, policies, and performances of South Africa, then they must go back to the drawing board and revisit the same laws that they enacted and do what is right. Obviously, such a path cannot be pursued because their allegations are not backed by any evidence. It is the crudest form of political dishonesty, as they say one thing to their political constituencies and do another thing in Parliament.

2.1 The migration data

The rhetoric vented by politicians would make sense had South Africa a law or policy that prohibits the admission of foreign nationals, whether on a temporary or permanent basis. The reality is different. One of the pillars of a true democracy is the right to form, hold and express opinions. 31

31 The right to freedom of expression is well entrenched in the Constitution, in s 16. As discussed earlier, international and regional human rights instruments recognise the right to freedom of expression.

legislation. The Preamble thereto tells the purpose of the Immigration Act which, amongst other things, is aimed at:

setting in place a new system of immigration control which ensures … that temporary and permanent residence permits are issued as expeditiously as possible and on the basis of simplified procedures and objectives, predictable and reasonable requirements and criteria, without consuming excessive administrative capacity; border monitoring is strengthened to ensure that the borders of the Republic do not remain porous and illegal immigration through them may be effectively detected, reduced and deterred; the South African economy may have access at all times to the full measure of the needed contributions by foreigners; the contribution of foreigners in the South African labour market does not adversely impact on existing labour standards and the rights and expectations of South African workers; a policy connection is maintained between foreigners working in South Africa and the training of our nationals; immigration control is performed within the highest applicable standards of human rights protection, and xenophobia is prevented and countered both within Government and civil society. 33

33 See Preamble (a)-(m) of the Immigration Act.

To give effect to the vision encapsulated in the Preamble, the Immigration Act stipulates the general provisions on temporary residence permits. 34

34 Section 10 of the Immigration Act.

indirect grounds for the acquisition of permanent residence. 49

49 Section 27 of the Immigration Act.

2.2 Give the devil her due – comparative analysis of migration in Africa

The statistics above reveal three important things: first, and contrary to what some politicians say in public, permits are issued to foreign nationals. Sub-categorised under temporary or permanent residence permits, all of them have different requirements and prescribed processes for their approval and issuance. 60

60 See ss 11-27 of the Immigration Act.

aid like their South African counterparts, especially those pursuing postgraduate qualifications. They also compete with and successfully occupy substantive academic positions in the universities where they engage in teaching and learning, conducting research and engaging with the community.

2.3 Facts versus rhetoric: a cancerous distortion of the truth

Prominent politicians and public servants in various parts of the country have in recent times scapegoated foreign nationals for the social and economic woes facing the country. In Limpopo a Zimbabwean national in need of medical attention was told that Zimbabweans and other foreign nationals were overburdening the already incapacitated healthcare system in the country. 61

61 Rall 2022 https://www.iol.co.za/news/south-africa/limpopo/limpopo-health-mec-causes-stir-on-social-media-calling-on-hospital-to-charge-foreigner-for-treatment-d2463c86-6971-4c36-adfb-faf2598e46d7.

No one would question the impact of those statements. The immediate aftermath was the perpetration of violence against foreign nationals and their property. Shops belonging to foreign nationals were looted. 64

64 Myeni 2022 https://www.aljazeera.com/news/2022/6/16/s-africa-minister-suggests-foreigners-to-blame-for-no-jobs.

In view of the socio-economic realities and appalling incidence of violence against foreign nationals, it could be argued that anti-foreigner rhetoric produced by political figures may directly lead to or contribute to the perpetration of further acts of violence against foreign nationals. Such rhetoric, it is argued, because of its propensity to spark violence or

discrimination against specific groups of people, may fall beyond the limits of legally protected speech.

3 Rhetoric beyond the limits and its ramifications

The right to freedom of expression is not only recognised in South Africa's legislative framework but forms a fundamental feature of its constitutional democracy. 66

66 See s 16 of the Constitution.

The right to freedom of expression in South Africa, as in most other democracies, is not an absolute right. It is subject to legal restrictions. Citing the case of Khumalo v Holomisa 70

70 Qwelane v South African Human Rights Commission 2021 6 SA 579 (CC) para 74.

Two important national instruments restrict the right to freedom of expression in South Africa. First there is the Constitution, under Section 16(2). The kinds of speech that are prohibited in the constitutional framework include "incitement of imminent violence" or "advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause

harm". 73

73 See s 16(2)(b)-(c) of the Constitution.

The incitement of imminent violence is an inchoate crime, meaning that liability for it is imposed irrespective of whether it results in the commission of a crime or not. In legal parlance incitement may take different forms, including words, speeches or cartoons calling for or suggesting that unlawful acts be perpetrated. In the context of (mass) atrocities in which specific groups of people are targeted, such incitement is rarely direct. 78

78 Where incitement is direct and public, and when specific elements are present, then that may attract criminal liability.

their listeners, who in turn target and victimise those individuals and groups. Subsequent to those speeches, foreign nationals and their assets become the targets of attacks. That raises the question whether there is a causal link between those speeches and the attacks that take place after them, or if such speeches played a contributory role in those attacks. South Africa is currently undergoing a huge economic crisis that has resulted in shrinking job opportunities, inflation that has resulted in skyrocketing prices for basic goods and services and a toxic political environment that is marked by dishonesty and victimisation. In this context fabrications and distortions have been deployed as the national currency, with tribes and political factions turning against one another. In such a volatile political environment all influential individuals, especially politicians, must choose and calibrate their words carefully and exercise caution in the way they are disseminated. To attribute fault to any group for the ongoing crises in the country would be tantamount to saying that the group should be victimised. That is what the politicians and their rhetoric have done; they have succeeded in brainwashing their naïve and shallow-minded constituents into believing that their economic and social problems are caused entirely by the presence of foreign nationals in South Africa.

Followers of history have no difficulty in understanding and sharing the details of some of the worst atrocities documented by mankind in the past century: the Nazi persecution of the Jews in Germany and the Hutu massacre of Tutsis in Rwanda in 1994.

The freedom to form, hold and disseminate opinions constitutes one of the crucial pillars of a democratic society. The functional importance of the right to freedom of expression has been the focus of numerous scholarly works and policy documents developed by intergovernmental institutions. 80

80 The literature on the right to freedom of expression is extensive and impressive, with different scholars’ views shaped to a greater extent by the legal and political context from which they emanate. International and regional human rights instruments that recognise the right to freedom of expression include the ICCPR and the Banjul Charter. For scholarly works, see the following: Stotzky 2002 U Miami L Rev and Finkelman 2002 Wm & Mary Bill Rts J. Also see Van Vollenhoven 2015 PELJ.

The perception that foreign migrants are responsible for the social and economic woes that have befallen the country has been disseminated publicly to the broader South African society, and this kind of statement excites anti-foreigner sentiment in the feeble minded which, as has been seen, often leads to the perpetration of xenophobic attacks. 81

81 Mazarura 2022 https://www.dailymaverick.co.za/opinionista/2022-03-16-the-political-agency-of-xenophobia-and-xenophobic-violence-in-south-africa-a-call-for-responsible-leadership/. Also see Welle 2022 https://frontline.thehindu.com/dispatches/south-africa-new-campaign-reignites-xenophobic-rhetoric/article65396102.ece.

The argument raised in defence of such kinds of speeches is that they fall within the zone of legally protected speech. The counterargument, obviously, is that speech that has the potential to incite hatred based on any ground, or targets a socially identifiable group of individuals, falls beyond the contours of free speech. Looking at the speeches made by political figures and the ensuing perpetration of violence against foreign nationals and their belongings, can one deny a causal link between those two? Therefore, such speech can be classified as hate speech. This becomes one of the clear cases where language, unchecked, contravenes the law. In such instances the law itself, as a regulator and guarantor of civil liberties, displays an unwillingness to embrace, condone or endorse inappropriate and divisive language with the potential to fuel hostile sentiments in a community.

Beyond the national frontiers there is a strong international and regional human rights framework regulates the right to freedom of expression and the limits thereto. 82

82 See Article 19 of the ICCPR and Art 11 of the Banjul Charter. Also see Art 20 of the ICCPR and Art 4 of the ICERD.

first instrument at international level that grants recognition to the right to freedom of expression. 83

83 Article 19 of the UDHR.

Two core instruments in the United Nations (UN) human rights regime deal with the issue of clearly prohibited speeches: the ICCPR and the ICERD. While Article 19 of the ICCPR recognises and delineates the right to freedom of expression in international law, Article 20 thereto sets two limits to this right. Under Article 20(1), "any propaganda for war shall be prohibited by law". In addition, any "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law". 85

85 Article 20(2) of the ICCPR.

The ICERD also deals with the issue of hate speech and urges its State Parties to

condemn all propaganda and all organizations which are based on ideas or theories of the superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form … 86

86 Article 4 of the ICERD.

In evaluating the regulation of hate speech in the UN human rights architecture, it is necessary to look at the wording used in Article 20(2) of the ICCPR and Article 4 of the ICERD. These instruments place limits on the right to freedom of expression. 87

87 See generally Arts 19 and 20 of the ICCPR and Art 4 of the ICERD.

foreign nationals, one would struggle to deny that they do not amount to advocacy for national hatred. 88

88 See the examples of such speeches provided earlier.

4 Conclusion

Like many other African countries South Africa is miserably mired in complex socio-economic and political issues. Scapegoating foreign nationals for these issues has been the safe and expedient political choice made by politicians. Their language regarding foreign nationals has been an amalgam of distortions, fabrications, and manipulations, depicting foreign nationals as the problem. Such customary fabrications, distortions and manipulations are a common feature of biased societies. History tells us about the fate of Jews in Germany during the Nazi reign, the fate of the Tutsis in Rwanda during the Hutu-dominated regime, etc. In a diverse community language can foster cohesion and unity or it can be used to foment bigotry, division, hatred, and suspicion. When language is used as a medium to orchestrate lawlessness, the language of the law comes into play to ensure that such lawlessness, and those responsible for it, are held accountable. The language of human rights, which is also the language of the law, requires that individuals be cautious in the use of language. By setting limits to the right to freedom of expression the law seeks to exclude specific kinds of speeches from legal protection, thereby exposing those who act beyond the remit of the law. Without any iota of doubt, the language used by prominent politicians in scapegoating foreign nationals goes well beyond the limit of legally protected speech, constitutes advocacy for hatred against national groups, and does not help to build the social cohesion needed in today's South Africa.

In recent years, the South African public has been bewildered by the nature and extent of the looting of state resources by top political figures. In addition

to the shocking amounts stolen, details of the syndicated theft of state resources have been exposed. Honest discussion on the ramifications of the grand corruption perpetrated by top South African political figures has been avoided. The question that remains unanswered is this: between corruption and migration, what is killing the economy? Probably there is a need for some research to provide an answer to that question.

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List of Abbreviations