Xenophobia : a critical study of the phenomenon and pragmatic solutions for South Africa

Abstract

In the post-apartheid period, thousands of refugees, migrant workers and other categories of foreign nationals have been attacked, killed, displaced or deprived of their property in xenophobic attacks throughout South Africa. These recurrent attacks violate a host of fundamental human rights of foreign nationals, including the right to life, right to own property and the right to seek and enjoy safe asylum. Making South Africa a case study on the management of xenophobia, this study contextualises xenophobia as a deeply rooted and protracted socio-legal problem and argues that only deep understanding and research-based pragmatic interventions can alleviate the phenomenon. Relying on conclusions from empirical surveys by experts and human rights organisations, the thesis explains various underlying historic factors that perpetuate xenophobia in the country. The thesis elucidates on these historic factors and analyses other on-going legal and institutional shortcomings that exacerbate xenophobia, thereby hampering social cohesion, the rule of law and peaceful coexistence between nationals and foreigners in the country. The thesis examines and critiques the domestic and international legal as well as institutional framework that could be utilised to stem xenophobia. It finds that the legal and extra-legal interventions that have so far been implemented in SA have largely been ineffective in curbing the phenomenon. This is evidenced by the current situation, where xenophobic attacks are continuing unabated. The study further reviews some foreign jurisdictions where pragmatic interventions to curb hate crimes such as xenophobia and racism have succeeded, to draw inspiration and examine certain lessons that SA could learn from their management of the phenomena. The thesis argues that, to effectively and decisively address xenophobia in SA, a multi-disciplinary approach which encompasses legal and extra-legal measures is necessary. This study concludes by proposing some short- and long-term pragmatic interventions for xenophobia in SA, both legal and extra-legal. Having been prepared from legal and multi-disciplinary perspectives, this thesis aims to stimulate academic debate as well as inform future legal, policy and institutional reforms related to management of xenophobia.