Don’t Invoke the ‘Rule of Law’ to Excuse Xenophobia

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It is a truly bizarre experience to have to say South Africa has a xenophobia problem. Not only because it’s uncomfortable, humiliating, and depressing, but chiefly because it is too obvious to deny. But I have had to have this conversation multiple times over recent weeks with individuals who refuse to acknowledge it. To them, South Africans are not xenophobic; they simply want the ‘rule of law’ to be observed insofar as it relates to immigration and border law enforcement.

What twaddle.

Law, order, and the Rule of Law

Sinethemba Zonke writes in the Daily Maverick that South Africa faces is that there is no respect for “the application of the rule of law”. If the ‘rule of law’ is applied, “the central issue against which the xenophobic mobs are rallying” would be dealt with, and thus the violence will cease.

The institutions that are meant to regulate entry and exit from South Africa in an orderly fashion have been plagued by “a lack of adherence to the rule of law”, leading to the protests that have recently swept across Gauteng. Ordinary South Africans have had to resort to self-help to deal with the disruptive foreign elements in society – like drug dealers – because the State has failed to uphold and apply the law. Or, so reasons Zonke. While he is not one of those who deny the existence of xenophobia in our society, Zonke does misdiagnose the problem entirely.

Zonke’s analysis into the Rule of Law starts and ends with him correctly noting that it is a founding value in the Constitution.

Section 1(c) of the Constitution provides that South Africa is founded upon the supremacy of the Constitution and the Rule of Law. This provision inspired the title of my latest book, The Constitution and the Rule of Law: An Introduction, which sets out what this idea of the ‘Rule of Law’ is all about within the South African political and constitutional context. The book is freely available at the link provided. At one point I attempt to briefly summarise what the essence of the Rule of Law is:

“The Rule of Law can, clearly, be conceptualised and articulated in various ways, which essentially mean the same thing. Its essence, in my view, can be summed up as an aversion to arbitrariness. It is concerned, however, with only a particular type of arbitrariness: that which emanates from the State.”

In the foreword to the book, former judge Rex van Schalkwyk notes very pertinently that the Rule of Law does not mean “rule by, or according to law”, but “the state under law”, which guards against “the unconstrained exercise of political authority” that would cost us our “cherished freedoms”. The Rule of Law, bluntly, protects individual freedom against overzealous government conduct.

Zonke makes the understandable mistake that most people who hear about this idea of the Rule of Law fall victim to: The notion that whatever Parliament enacts as legislation becomes part of the ‘rule of law’, and a failure to enforce that legislation, or even regulations by the executive, amounts to the Rule of Law not being respected. This is not so.

Make no mistake, it is very important that the executive fulfils its role as the executor of parliamentary legislation, but this has nothing to do with the Rule of Law. It is more closely related to the notion of ‘law and order’. But even then, law and order must be subjected to the overriding principles of the Rule of Law; those values that demand that the State conduct itself reasonably and proportionally in everything that it does, including law-making and enforcement.

This has not happened. Instead, as far as xenophobia and immigration are concerned, the law-and-order conception of the Rule of Law is precisely part of the problem. It is not because of the lack of law enforcement that we have a so-called immigration problem, but because we have been enforcing bad laws.

The labour laws

Does South Africa have a ‘porous border’, and is this a problem? Perhaps. But to the extent that this is a problem, it is nowhere near the most pressing problem we face. South Africa is a car with a broken engine – at best, our ‘porous border’ is the small rip in the backseat’s fabric.

Zonke tries, but fails, to pre-empt this kind of criticism when he writes that the “upper classes”, “who don’t compete at he unskilled level with masses of foreign labour”, are full of “empty platitudes” about how immigration “primarily benefits the economy, without stating who benefits and who bears the brunt of the costs”.

Perhaps unintentionally, Zonke excuses xenophobia by shifting the spotlight from the vile human scum who kill, maim and destroy the lives and property of innocent foreigners, to the local “privileged classes of South Africa”, who maliciously hire foreigners instead of South Africans, and revel in “the opportunity of paying lower wages and having cheap meals at restaurants”. Whilst somewhat more sophisticated, this thinking is of the same ilk as Naledi Pandor’s ridiculous assertion that Apartheid is to blame for xenophobia. It is deflection at its worst.

Local businesspeople hire foreigners because foreign Africans are not in the business of governmentalising the employment relationship. Whilst foreigners have the right to approach the CCMA and the Labour Court, they don’t, because foreign Africans, more so than the best and brightest South African intelligentsia, understand the value of economic freedom.

The South African government has seen fit to make it extremely onerous for local businesspeople and foreign investors to make use of this country’s untapped labour pool. They do this by means of unjustifiable intrusions like the Labour Relations Act and the National Minimum Wage Act, and the multitude of regulations associated with these laws. It is too expensive, in terms of both money and effort, to hire unskilled local South Africans.

These laws themselves contravene at least one imperative of the Rule of Law, but usually far more. For instance, the Minister of Labour or other bureaucrats are assigned a multitude of arbitrary powers. They may effectively make law – a power reserved for Parliament – under the guise of ‘regulation’. The R3,500 national minimum wage is also a number that was arrived at arbitrarily, and can be changed arbitrarily.

Foreigners do not make use of South Africa’s labour law regime, and they are not unionised. In any decent society, this would be a bad thing, because the law is intended to protect you, and unions are meant to represent you. This is not so in South Africa: Legislative interventions actively undermine your interests – particularly as a poor South African – and the unions, whilst maximising short-term benefit for their members, are engaged in the long-term game of forcing the South African economy to its knees.

Zonke – admittedly in an implicit fashion – seeks to guilt-trip the beleaguered small business owner by saying the xenophobic attacks are, at least in part, due to their conduct. They did not hire locals. They wanted cheap labour. Now look what we have! But this is not true. Government, the political class, and those protesters who have resorted to violence against innocent people, are the only guilty parties in this debacle.

Immigration: A problem?

A job cannot be stolen, because only that which is owned by you or owed to you can be stolen. There is no right in the Bill of Rights, nor an implied entitlement, that anyone in South Africa has a claim to any job. A job is a market – not a political or jurisprudential – phenomenon. Economics determines whether there is a job, and who will get that job. The aforementioned labour laws have done their part in politicising employment and trying to wrest it out of discipline of economics, but this is impossible. The market cannot be beaten into submission. It always adapts, and the more we push back against it, the more we get hurt by that adaptation.

The hiring of foreigners and the prosperous drug trade so commonly associated with Nigerians are two instances of this. There is only a violent drug trade because the production, distribution, and sale of drugs is illegal. Decriminalise drugs, and the gang violence associated with it disappears. This is politically untenable, but reality nonetheless. The point, however, is that the so-called immigration problem is a deflection away from the real problem: An overactive State and political class.

Indeed, there is a perception that immigration (whether it is ‘legal’ or ‘illegal’ immigration, when you get to the rub of the matter, is totally irrelevant) is a problem, but instead of endorsing and giving credence to such irrational fears, we should educate people as to why they are incorrect. When more South Africans understand that they are poor not because of immigrants, but because of unnecessary government intrusions into the market, will xenophobia go away.

But before we can even start this process, we need to stop excusing xenophobia and trying to shift blame away from the marauding murderers to the immigrants themselves or the struggling South African small business community. We must all have empathy with poor and jobless South Africans, but we must not allow our empathy to lead us into a witch-hunt against innocent foreigners.

Respect the Rule of Law (but not in the way intended by Zonke or Herman Mashaba)

The Rule of Law is meant to protect everyone, whether foreign or local, against unreasonable government conduct. The South African government has conducted itself most unreasonably by enacting disastrous labour laws thus ensuring local labour is economically unattractive.

The government’s failure to adhere to the Rule of Law, however, must not lead us to conscripting a phantom version of the ‘rule of law’ into the service of blaming foreigners or local businesspeople for our woes. We must instead demand an end to government’s labour law regime, principally, and an end to its disastrous prohibition on the drug trade, secondarily, if we are truly interested in solving this problem. Focusing on our so-called porous borders is nothing but a red herring that focuses our attention on something that is, at best, irrelevant.

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