SA attacks on migrant workers violate international law

The recent wave of deadly attacks on migrant workers in South African cities has been strongly condemned across Africa.

These wanton attacks happened in Johannesburg and Pretoria, targeting economic migrant workers, especially from Nigeria, Zimbabwe, Namibia, among other nations.

By definition, a migrant worker refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.

South Africans have claimed that migrant workers are taking up their jobs, and as a result, they’re left jobless.

What a limp excuse! Given the gravity of wanton acts they committed against these migrants, it’s absolutely unacceptable and unorthodox behavior.

In the contemporary world, most countries embrace and respect multiculturalism.

This is where a given society deals with cultural diversity, based on the underlying assumption that members of very different cultures can coexist peacefully. 

Multiculturalism expresses the view that society is enriched by preserving, respecting, and even encouraging cultural diversity.

These xenophobic attacks against fellow Africans are reminiscent of the case of Anders Behring Breivik, a Norwegian national, who killed eight people by detonating a bomb and then shot dead 69 participants of a Workers’ Youth League (AUF) summer camp on the island of Utøya, Norway.

It was an act of extremism threatening multiculturalism in his home country or Europe.

However, it exhibited a growing reactionary element against migration in general.

The resentful perception of South Africans towards migrant workers is somewhat no different from last week’s US Supreme Court ruling which has allowed the government to severely limit the ability of Central American migrants to claim asylum.

Existing policy bars people arriving at the US southern border from seeking protection if they failed to do so in a country they passed through en route. And the ruling has to be enforced nationwide.

In the eyes of the law, either nationally or internationally, does South Africa have an obligation to protect and respect the rights of migrant workers?

The Constitution of South Africa, under the ‘Bill of Rights’, envisages equality of everyone before the law and has the right to equal protection and benefit of the law.

This equality includes the full and equal enjoyment of all rights and freedoms. In particular, the Constitution stipulates that State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.

It also articulates that national legislation must be enacted to prevent or prohibit any such unfair discrimination. To illustrate, equal treatment of people applies to both nationals and non-nationals [migrant workers].

Besides, the South African Constitution embodies human dignity. 

That’s to say, everyone has inherent dignity and the right to have their dignity respected and protected. Such protection and respect for human dignity are applicable to nationals as well as migrant workers.

Under international law, South Africa is under obligation to comply with universally recognized human rights standards. For example, it has to observe the Charter of the United Nations, which is based on the principles of the dignity and equality inherent in all human beings.

It imposes obligations on all Member States, including South Africa, to take joint and separate action, in co-operation with the Organization [UN], for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion.

Inasmuch as South Africa may not be a signatory to the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families and International Convention on the Elimination of all Forms of Racial Discrimination, these instruments depict a collective will of the international community as a whole.

Therefore, acting contrary to globally agreed standards, South Africa would be isolating itself from the rest of the world.

For example, recently, the global community – by 193 UN Member States, including South Africa – adopted ‘Global Compact for Safe, Orderly and Regular Migration’. This Declaration, to begin with, recognizes that migrants and refugees may face many common challenges and similar vulnerabilities.

As such, it underlines that refugees and migrants are entitled to the same universal human rights and fundamental freedoms, which must be respected, protected and fulfilled at all times.

Obviously, this responsibility is incumbent on countries that subscribed to the declaration. And such responsibility must be performed in good faith.

Hence, all human beings are equal before the law and are entitled to equal protection of the law against any discrimination whatsoever.

Therefore, South Africa must live up to its international obligations—as migrant workers ought to be treated as equal to the nationals in respect of remuneration and conditions of work.

Equality with nationals extends also to social security benefits and emergency medical care.

Equally, migrant workers have the right to transfer their earnings and savings as well as their personal effects and belongings.

The writer is a law expert.

The views expressed in this article are of the author.

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