Anti-immigrant mob is fuelling a dangerous anti-constitutionalist fire

The hoodlums were back on our streets again this week, forcefully taking over the enforcement of immigration policy while the state was at sixes and sevens. 

Mind you, they never went away. The date of 30 June, which they set as a deadline for undocumented migrants (who they call illegal immigrants) to leave South Africa, was just the symbolic peak of their campaign, but they never stopped. Jacinta Ngobese-Zuma, Phakel’umthakathi Ndabandaba and their mobs of ruffians have since June continued their crusade against foreign nationals living in this country. They claim they have been targeting those who are illegally here and are a burden to society, but it has been totally indiscriminate. Anyone who was worthy of the “kwerekwere” or “grigamba” epithet has been pretty much fair game. Before and after 30 June these gangs have been going on human hunts, banging on doors and residences in search of foreigners.

This week’s renewed outrage, which saw armed mobs take to the streets, had to do with a circular issued by the Department of Home Affairs about the need to abide by the Constitutional Court’s directive that asylum seekers cannot be turned away, regardless of how they entered the country.

“Every refugee reception office must, with immediate effect, receive every person who reports in person and indicates an intention to apply for asylum, and must assist that person to lodge an application,” the circular instructed officials. It told them that “no refugee reception office may operate a policy or quota that prevents persons from obtaining effective access to the asylum application process.”

The mob then turned on Home Affairs and the judiciary, accusing them of allowing the overwhelming of South Africa by stinky foreign elements. 

Hostility towards the judiciary, fuelled by political leaders and populist activists, is on the rise. It is not new.

This mob’s head prefect, Ngobese-Zuma, foamed that “being a South African is really tough. Is this really the democracy we signed up for? Where our voices are completely ignored even in court cases because the courts will tell us what the law is and we have to accept it because the courts say so?”

Trying hard to misunderstand that she lives in a constitutional democracy and not some godforsaken backwater banana republic, she asked: “What is the use of democracy if the judges are there? Why don’t the judges just run our lives?”

Now, Ngobese-Zuma is no dolt. She is an extremely intelligent person who fully understands the prescripts of the rule of law. She just ignores them and she knows that the yobs who follow her yelling do not get it as much as she does. She, and all of us, know that the Constitutional Court is the servant of the Constitution. It is the non-porous border through which no violation of our sacred rights should be allowed through. The courts below are also servants of that Constitution and laws of the land. Judges do not impose their views on us. They interpret the laws and compel compliance by all – be it the government, the private sector or individuals.

The ad hominem attacks on the judiciary spread into public discourse, with members of the public taking to the airwaves and social media to castigate judges and the decisions they make. Hostility towards the judiciary, fuelled by political leaders and populist activists, is on the rise. It is not new. The rise of Jacob Zuma was marked by revulsion for judges. This followed Judge Hilary Squires’s verdict in the Schabir Shaik trial that there was a “mutually beneficial symbiosis” between Zuma and Shaik, a finding that confirmed Zuma was in the pocket of the corrupt businessman. Throughout Zuma’s tenure in power the judiciary was constantly under attack from him and his cronies, with them accusing judges of overreach when decisions went against ministers and their departments. There was even a planting of the seed for a return to the apartheid-era parliamentary democracy, when National Party politicians’ dark instincts mattered even more than the flawed constitution of that particular time.

There is an almost seamless line that flows from the anti-immigration arguments to rejection of constitutional provisions.

Disrespect for the judiciary spread into the public service, with court rulings being ignored by officials. All credit to our judges, they always stood their ground and they ensured that their rulings were worth the paper they were written on. And, it must be said, credit to the politicians and bureaucrats too. When the stick came out, they eventually complied.  There were times when a shortage of resources, often a result of misspent or stolen money, meant compliance was delayed. The essence, however, was that defiance was short-lived. A judgment was something to be obeyed, and was the overriding factor.

Constitutional project under attack

A dangerous element landing with the population now is that the Constitution and the judiciary that upholds our republic’s founding document are a luxury. The anti-immigration lobby is driving this sentiment, with rejection of the preamble’s assertion that “South Africa belongs to all who live in it” being the low-hanging target. This has become the rallying point for the anti-constitutionalists. They tell South Africans that the Constitution is responsible for most of the nation’s ills. These include the country being overridden by outsiders who take their jobs, hospital beds, school desks, housing, social grants and daughters, and endanger their security. 

And the judges protect them, it is said.

There is an almost seamless line that flows from the anti-immigration arguments to rejection of constitutional provisions. This Constitution is responsible for the high crime rate because it abolished the death penalty, for the breakdown in discipline because there is no longer corporal punishment, for low morality because it enabled abortion and removed compulsory religious education from the classroom. This argument goes that South Africa has been rendered a wasteland by this Constitution, which has also prevented the majority from sharing wealth with the beneficiaries of apartheid and colonialism.

When these arguments are made, they remove state failure from the equation. It is not the state’s inability to safeguard our borders that enabled the influx of migrants into the country, corrupt Home Affairs officials who dished out fraudulent documents and frustrated asylum applications because they want to be bribed, not the police service that is not safeguarding our neighbourhoods, not municipalities and government departments who are not enforcing business licensing regulations for the operation of spaza shops and not the authorities who have allowed buildings to be hijacked.

No. It is this blerrie Constitution and the judges who make us abide by it.

In the Zuma years the rejection of constitutionality and rule of law was an elite project driven by the State Capture coterie for their own opportunistic reasons. It did not gain much traction beyond the most loyal cadres because their corruption discredited much of their argument and people saw through them. But they laid the ground for what we have today, the groundswell of populism that is fuelled by citizen frustration.

Ngobese-Zuma and her hoodlums have much more ammunition and manpower to carry out a much more effective assault on the constitutional project. DM