Before the xenophobic hate group March and March’s fascist deadline for international migrants to leave <a href="https://absafricatv.com/south-africa-prepares-for-planned-30-june-protests-law-order/" title="South Africa Prepares for Planned 30 June Protests | Law-Order”>South Africa, I asked Aseza Gungubele, a commissioner at the South African Human Rights Commission, about the legality of mass deportations. The unambiguous answer was that mass deportations would violate international and domestic laws. He said the commission approaches migration, deportation and border governance through the lens of constitutionalism, the rule of the law, human dignity, equality and South Africa’s domestic and international legal obligations.
Gungubule said international human rights law rejects collective expulsions. “Article 12 (5) of the African Charter on Human and People’s Rights expressly prohibits the mass expulsion of non-nationals aimed at particular national, racial, ethnic or religious groups. The African Commission on Human and Peoples’ Rights has repeatedly held that collective expulsions violate human dignity and fundamental principles of justice because they fail to assess each person’s circumstances individually.“
South Africa also has obligations under the 1951 UN Convention relating to the status of refugees, the 1967 Protocol Relating to the Status of Refugees and the 1969 Organisation for African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa. “The Refugees Act is particularly significant because South Africa has incorporated the international principle of non-refoulement into domestic law. This principle prohibits the return of a person to a country where they may face persecution, torture, threats to life or other serious human rights violations,” he said.
Gungubele said the debate about calls for “mass deportation” requires an important legal distinction. “South African law recognises the authority of the state to regulate immigration, secure its borders and remove persons unlawfully present within the republic. However, this authority is not unlimited. Indiscriminate deportation campaigns that fail to assess individual circumstances, deny procedural fairness, rely on racial or ethnic profiling, or result in collective expulsions would be inconsistent with both the constitution and South Africa’s international legal obligations.”
In the unlikely event that the government would decide to break the law and implement mass deportations, it would have to consider the effectiveness of the policy and its economic effects. The 2017 white paper on international migration said deportations were costly and ineffective: “By focusing on deporting nationals from neighbouring countries, we face a ‘revolving door’ syndrome where you deport and the deportee returns.” Since 1994, the government has deported about 3.8-million people. To illustrate the futility of deportations, in 2001-11, the number of international migrants increased by 1.2-million while South Africa deported 1.7-million people during this period.
Mass deportations would cause a humanitarian crisis in the region and result in an economic blowback as South Africa becomes a pariah state in the region and the rest of the continent. The channels would include the direct contribution of international migrants to the economy — about 9% of GDP according to the Organisation for Economic Co-operation and Development — and the loss of remittances, which would result in lower GDP growth in the region. International migrants account for 4%-5% of the population. This is slightly above the world average of 3.6% and is not a crisis.
Comparative international migrant density statistics are Libya (12%), Ivory Coast (9.7%), Malaysia (8.9%), South Sudan (7.9%) and Botswana (4.7%). Since mass deportations will never occur, there is no option but to implement a mass regularisation programme for international migrants to better integrate them into the economy and reduce “brain waste” due to structural and legal impediments that prevent them realising their full potential. South Africa should learn from Spain, which launched an online programme in April to regularise 500,000 international migrants.
• Gqubule is an adviser on economic development and transformation
