Undocumented Migrants As Homo Sacer : Cases From Botswana and South Africa

Abstract

The concept of homo sacer originates from ancient Roman law under which an individual who committed a certain kind of crime was excluded from society and all his/her rights as a citizen were revoked. This paper uses a few selected cases reported in the media of Botswana and South Africa to demonstrate why undocumented migrants in the two countries fit Agamben’s description of homo sacer. While migrants in general, whether documented or undocumented, are targets of violence, exploitation and discrimination in these countries, undocumented migrants are particularly vulnerable because of their ‘illegal’ status. Although violence against undocumented migrants is not formally endorsed by the state, their description as a problem or a threat to society places them in a state of exception which is virtually outside the protection of the law.

Keywords

undocumented migrants citizenship exclusion xenophobia

Introduction

The history of cross-border migration in Southern Africa is well documented (Campbell, 2006; Kok et al., 2006; Maphosa, 2011; McDonald, 2000). The major migrant countries of origin are Zimbabwe, Mozambique and Lesotho, while the major migrant countries of destination are South Africa, Botswana and Namibia. In the last few decades there has been an upsurge in the number of people entering these countries as undocumented migrants. Such people are referred to by different terms such as ‘illegal immigrants’, ‘illegal aliens’, ‘irregular migrants’, ‘border jumpers’ or ‘undocumented migrants’. Makwerekwere is a popular derogatory term used to refer to both documented and undocumented migrants in both countries. In order to avoid criminalising and demeaning concepts such as ‘illegal immigrants’, ‘illegal aliens’ and ‘border jumpers’, this paper uses the term ‘undocumented migrants’ (Galvin, 2015; McDonald, 2000). The increase in undocumented migrants has become a major concern in the countries of destination. Politicians, the public and the media in the countries of destination have generally portrayed undocumented migrants as a problem (Campbell, 2006; IOM-ROSA, 2016; Vigneswaran, 2007). As observed by Vigneswaran (2007), the undocumented migrant has become a prominent figure in both political debate and popular discourse. The representation of undocumented migrants as a problem seems to provide justification for their treatment as homo sacer. A number of scholars worldwide have applied the concept of homo sacer to the analysis of the lives of undocumented migrants (Amit, 2012; Crush, 2002; Ellermann, 2009; Gordon, 2010; Klaaren and Ramji, 2015; Landau, 2006; Misago et al., 2009; Pope and Garrett, 2013; Rajaram and Grundy-Warr, 2004; Ramji-Nogales, 2014). In Southern Africa, most such analyses have focused on South Africa. This paper uses some extreme cases from Botswana and South Africa to demonstrate how undocumented migrants are often treated as homo sacer as they are relegated to a space outside the workings of the law (Gordon, 2010). While the paper focuses on undocumented migrants because they are more vulnerable than documented migrants, it is worth noting that when South Africans and Batswana refer to makwerekwere they do not distinguish between documented and undocumented migrants. A number of studies have shown that xenophobic attitudes and actions are directed at both documented and undocumented migrants (Crush and Tawodzera, 2011, 2014; Harris, 2002; Hungwe and Gelderblom, 2014; Polzer, 2008). Harris (2002: 169) asserts that the migrant ‘stands at a site where identity, racism and violence are reproduced’. Crush and Tawodzera (2011, 2014) refer to ‘medical xenophobia’, which involves negative attitudes and practices of health sector professionals and employees towards migrants, based purely on their identity as non-South Africans. Hungwe and Gelderblom (2014) argue that there are institutional, individual and social mechanisms that shape the experiences of migrants.

Methodological issues

The cases selected for study were well-publicised stories in various newspapers in both countries. Newspapers present not just facts but also opinions which reflect their individual slants. They however can be a rich source of information on the public discourse concerning an issue that is in the public domain, such as the cases presented here. According to Danso and McDonald (2000), the print media have traditionally been the provider of information on daily events and, for many people, are the only source of information about events that are not experienced directly. The cases seem different. For example, they took place in different geographical areas, the violence suffered by the victims differs and the manifest motives for the violence also differ. The common characteristic among the victims is, however, their foreignness. It is this foreignness which makes undocumented migrants targets of violence, exploitation and discrimination (Gordon, 2010).

Homo sacer

The literature reviewed includes that which focuses on the concept of homo sacer and that which focuses on undocumented migration in Botswana and South Africa. The review of literature on the concept of homo sacer was meant to provide a general appreciation of the concept before applying it as a framework for analysis. The review of literature on undocumented migration to Botswana and South Africa was meant to provide background to the treatment of undocumented migrants in these countries. This was meant to demonstrate that the few cases presented in the paper are not isolated cases but part of the general treatment of undocumented migrants as people who exist outside the protection of the law because of their foreignness and their general definition as a problem. For example, according to Misago et al (2015), since the outbreak of xenophobic violence in 2008, a total of 350 immigrants were killed, but by the time of his writing in 2015, there was only one murder conviction. He further argues that very few cases ever go to court. This seems to suggest that violence is perpetrated against foreigners with impunity.

The concept of homo sacer was used by the Italian philosopher Giorgio Agamben (1998) to describe an individual in ancient Roman law, who by virtue of having committed a certain kind of crime was excluded from society and had all his/her rights as a citizen withdrawn. He/she could be killed by anybody with impunity. The individual was thus reduced to a ‘bare life’, one which has a biological existence without any political significance and agency. A bare life is one that is outlawed or placed outside recourse to the law (Downey, 2009). The application of the law on such an individual, particularly its protective function, is suspended.

As one who has been stripped of his/her rights, homo sacer is therefore the opposite of a citizen. Citizenship is rights based (Ellerman, 2009). The status of citizen bestows on an individual the right to political and economic participation and the right to life and protection by the law. The status of a homo sacer on the other hand revokes all these rights. Thomas Lemke (2005) describes homo sacer as a figure who has become a ‘living dead’. As a result of their exclusion from citizenship, undocumented migrants represent a bare life. Although in principle human rights are universal and exist beyond nation states, they can, however, only be guaranteed within the confines of the nation state. In fact, according to Ramji-Nogales (2014: 721):

Discrimination or exclusion based on immigration status – in particular, on the lack of lawful status – is considered acceptable under domestic and international law.

As illustrated by the cases presented in this paper, undocumented migrants in Botswana and South Africa fit the description of homo sacer. While they are uprooted from their countries of origin due to exclusion from political and economic participation, they are not integrated into their countries of destination (Maphosa, 2011). They exist on the margins of social, political-cultural, economic and geographical borders (Downey, 2009).

Denied access to legal, economic and political redress, these lives exist in a limbo-like state that is largely preoccupied with acquiring and sustaining the bare essentials of life. The refugee, the political prisoner, the disappeared, the ‘ghost detainee’, the victim of torture, the dispossessed, the silenced, all have been excluded, to different degrees, from the fraternity of the social sphere, appeal to the safety net of the nation state, and recourse to international law. (Downey, 2009: 119)

The United Nations (2014: 1) describes undocumented migrants as people who

. . . live and work in the shadows, afraid to complain, denied rights and freedoms that we take for granted and disproportionately vulnerable to discrimination and marginalisation . . . more likely to face discrimination, exclusion, exploitation and abuse at all stages of the migration process. They often face prolonged detention or ill-treatment and, in some cases, enslavement, rape or murder. They are more likely to be targeted by xenophobes and racists, victimized by unscrupulous employers and sexual predators, and can easily fall prey to criminal traffickers and smugglers. Rendered vulnerable by their irregular status, these men, women and children are often afraid or unable to seek protection and relief from the authorities in countries of origin, transit or destination.

The life of an undocumented migrant is full of physical and social suffering, including risk of injury, illness and death (Kitiarsa, 2014). It is a life lived in limbo-like state (Downey, 2009).

The use of the concept of homo sacer does not imply that undocumented migrants lack agency. Ellermann (2009) argues that there is often a possibility of resistance by migrants to the state of exception. One of the ways they do so is to strip themselves of any legal identity by destroying their identity documents.

By rendering themselves as unclassifiable, illegal migrants oftentimes succeed in tying the hands of the sovereign who is forced to operate within the constraints of the international legal order that requires possession of identity documents for repatriation. (Ellermann, 2009: 1)

Sichone (2008) asserts that in South African history, the hospitality of the host population has tended to be overshadowed. He observed that migrants enter into personal relationships, not only with fellow migrants, but with individuals in the host countries. Galvin (2015) describes the strategies adopted by undocumented Zimbabwean migrants to cope with their deportability and deportation which makes it a normal part of daily life.

There has been debate about whether or not what gets reported as xenophobic violence, especially in South Africa, is just the usual daily violence. There are those who argue that South Africa is characterised by high incidences of violence particularly among black people. As such, what the media report as xenophobic violence might just be everyday criminal behaviour. This is the view that many public figures have been sponsoring. Three of South Africa’s post-apartheid presidents Thabo Mbeki, Jacob Zuma and Cyril Ramaphosa have attributed the attacks on foreigners to criminality. Bhengu (2019) quotes South Africa’s Chief Justice as saying that violence against foreign nationals is not caused by xenophobia but hunger. Social commentators such as Samatar (2019) have also attributed the attacks on foreigners to criminal and not xenophobic behaviour. Some researchers, for example Maina et al. (2011), have also asserted that xenophobia is just one of the factors that lead to violent attacks on foreigners in South Africa. Hungwe (2012), however, argues that the killing of migrants should not be attributable to mob violence and the madness or craziness of the mob but rational acts directed at migrants. This paper argues that the attacks on foreign nationals are not just everyday criminal acts but that they are behaviour motivated by xenophobic attitudes. The cases presented in this paper illustrate this point.

Literature on undocumented migrants in Botswana and South Africa

Undocumented migrants in Botswana and South Africa are perceived by the states and the public as a problem and therefore have to be removed. Arresting, detaining and deporting undocumented immigrants are the major ways in which these countries deal with the ‘problem’. According to Gordon (2010), detention and deportation are seen as preventive measures that allow individuals to be taken into custody just because their mere presence is seen as a danger to the security and integrity of the state. In both countries the ‘influx’ or ‘flood’ of undocumented migrants is seen as straining those countries’ social services and infrastructure. South Africa’s Centre for Development and Enterprise (CDE) (2006) asserts that xenophobia is an undeniable reality in South Africa. South Africans feel they are being swamped by migrants in general and in particular undocumented migrants whom they treat with hostility. Mattes et al. (1999) conclude that South Africans simply do not like foreign nationals. Campbell (2006) makes reference to a study by the Southern African Migration Programme (SAMP) which found that over 65% of South Africans feel that undocumented migrants should never be granted police protection or rights to social security and legal protection. The study also found that 90% of South Africans felt that migrants should never be granted the right to vote or freedom of speech.

Unlike South Africa, Botswana has not experienced any large-scale violent attacks motivated by xenophobia (Betts, 2013; Campbell and Crush, 2015). This is perhaps because of the lower volume of undocumented immigrants to Botswana compared to South Africa. It might also be a result of the culturally embedded non-violent approach to dispute resolution by Batswana encapsulated in the popular saying ‘ntwa kgolo ke ya molomo’. This literally means the greatest battles are fought through dialogue. The absence, or low levels, of xenophobic attacks in Botswana should, however, not be taken to mean that undocumented migrants are welcome in the country. A number of observers have decried the growing dislike for foreigners in general and undocumented migrants in particular by Batswana. In a study of Zimbabwean migrants at White City in Gaborone, Marr (2012) quotes Zimbabwean migrants saying they are treated like children, criminals or dogs.

Campbell and Crush (2012) assert that evidence exists that shows that attitudes towards undocumented migrants in Botswana are not different from those in South Africa. Studies have shown that xenophobic feelings have increased in Botswana (Lesetedi and Modie-Moroka, 2007; Nyamnjoh, 2006). Although Batswana are not known for violently attacking immigrants, attitudes towards foreigners are hardening (Nyamnjoh, 2006). In a report presented to the United Nations Committee on the Elimination of Racial Discrimination, Botswana’s human rights organisation Ditshwanelo (2006) stated that there was an increase in negative feelings towards undocumented immigrants – particularly Zimbabweans – in Botswana. The organisation states that negative statements by public officials and the media on the problems associated with undocumented immigrants have contributed to the widespread hostility towards undocumented migrants, especially Zimbabweans (Ditshwanelo, 2006). Campbell (2006) cites another SAMP study which shows that Botswana nationals have a passionate dislike for illegal immigrants. Almost 70% of the respondents rated undocumented migrants very unfavourably. Mwakikagile (2009: 12) observed that xenophobia against Zimbabweans in Botswana ‘has reached alarming levels . . .’. Seleke (2010) points out that xenophobic attitudes of Batswana, especially towards Zimbabweans, have become extensive. He argues that xenophobia happens everywhere and anywhere in Botswana including in homes, workplaces, professional set-ups, health services, police stations, prisons, cattle posts, beer outlets and even in political circles. He further states that domestic workers, farm managers and herd boys are abused, made to work long hours without rest, sometimes go for months without being paid and are even beaten up for various reasons. In 2011, Segatti pointed out that

South Africans are not the only ones to have turned on migrants in their midst. Similar, if milder episodes of xenophobic violence have been reported in Botswana, Mozambique and elsewhere in the continent. (Segatti, 2011: 11)

According to Betts (2013), Botswana has the most exclusionary migration policies towards Zimbabweans in the region. He adds that ‘an increasingly xenophobic population has become concerned about resource competition, jobs, crime and security’ (Betts, 2013: 79). In 2014, Dube wrote that dislike for foreigners is on the rise in Botswana and Zimbabweans have become the major targets of the growing anti-foreign sentiments. Like Seleke (2010), Dube (2014) believes that xenophobia happens everywhere in the country. Akinola (2018) observes that xenophobia has been a consistent feature of Botswana’s policy making and a social reality for decades, and that dislike of foreigners continues to rise in Botswana. From a study carried out among Zimbabwean migrants in Gaborone and Francistown, Campbell and Crush (2015) conclude that xenophobic attitudes are highly prevalent among citizens and within government. These are demonstrated through various negative stereotypes. As Campbell (2006) observed, people in both countries of origin and countries of destination have very low opinions of undocumented migrants. Even in their countries of origin the same derogatory terms of ‘border jumpers’ and ‘illegal migrants’ are used. For example, in 2015 at the end of a Southern African Development Community (SADC) extraordinary meeting in Harare, Robert Mugabe, the then President of Zimbabwe, insinuated that Zimbabweans who were victims of xenophobic attacks were to blame for the attacks. Responding to questions related to the wave of xenophobic attacks that left at least seven people dead, Mugabe was quoted as saying Zimbabweans voluntarily migrate to South Africa because they think it is ‘heaven’. He singled out the Kalangas from Matabeleland whom he described as ‘crooks’ who were involved in criminal activities in South Africa.

Undocumented migrants and public discourse

In public discourse undocumented migrants in both countries have been accused of taking the jobs of the locals and contributing to the lowering of wages (Human Rights Watch, 1997; Lesetedi and Modie-Moroka, 2007). They are portrayed as people with criminal tendencies, exploiting business opportunities meant for locals, and are accused of stealing women from locals and spreading diseases. As a result, xenophobic feelings towards undocumented migrants are rife in both countries. Politicians have contributed significantly to this popular perception of undocumented migrants.

South African politicians often make inflammatory statements against undocumented immigrants. They blame them for the increase in social problems such as the rise in crime, unemployment and the spread of diseases. While presenting a budget speech in 1997, South Africa’s then Minister of Home Affairs, Chief Mangosuthu Buthelezi, warned that immigrants were a threat to his country’s Reconstruction and Development Programme as they were taking houses meant for South African citizens. He also claimed that it was unpatriotic for South Africans to employ illegal immigrants. He went on to state that foreigners were responsible for the problems experienced by the country’s health care system. He stated:

With an illegal population estimated betwee 2.5 and 5 million, it is obvious that the socio-economic resources of the country, which are under severe strain as it is, are further being burdened by the presence of illegal aliens, The cost implication becomes even clearer when one makes a calculation suggesting that if every illegal cousts our infrastructure, say 1 000 Rands (US$200) per annum then multiplied by whatever number you wish, it becomes obvious that the cost becomes billionsof Rands per year. (Buthelezi, 1997)

Studies have however shown that immigrants contribute significantly to the economies of countries of destination. For example, according to the Organisation for Economic Co-operation and Development/International Labour Organization (OECD/ILO, 2018: 16):

. . . immigrants [in South Africa] are well integrated into the labour market in terms of employment and unemployment rates and in general do not seem to displace native-born workers . . . The impact of immigrants on gross domestic product (GDP) per capita is positive and estimates from an econometric model show that immigrant workers may raise the South African income per capita by 5%.

Also in 1997, Joe Modise, the then Defence Minister of South Africa, stated:

As for crime, the army is helping the police to get rid of crime and violence in the country. However, what can we do? We have one million illegal immigrants in our country who commit crimes and who are mistaken by some people as South African citizens. That is the real problem. (Human Rights Watch, 1997: 185)

The 2015 xenophobic attacks came after the controversial statements made by the Zulu King Goodwill Zwelithini and Edward Zuma, the son of Jacob Zuma, the former President of South Africa. In a speech delivered during a moral regeneration event, King Goodwill Zwelithini likened foreigners to lice and ordered them to leave the country. He is quoted by the media as saying:

We are requesting those who come from outside to please go back to their countries. The fact that there were countries that played a role in the country’s struggle for liberation should not be used as an excuse to create a situation where foreigners are allowed to inconvenience locals. . . I know you were in their countries during the struggle for liberation. But the fact of the matter is you did not set up businesses in their countries. (The Citizen, 23 March 2015)

An inquiry by the South African Human Rights Commission exonerated the Zulu king from the allegations that his utterances had triggered the xenophobic attacks that left seven people dead. The Commission concluded that although the comments were ‘hateful and harmful’, they did not amount to hate speech. Although the Commission agreed that the King stated that the immigrants were stealing jobs from South Africans and described them as a social ill, it concluded that there was no causal link between those statements and the outbreak of xenophobic violence.

Edward Zuma stated that South Africa needed to be aware that as a country it was sitting on a ticking time bomb of foreigners taking over the country.

In South Africa you need to have a gun licence to be able to carry a gun. Where are their licences? We can’t rule out the possibility of a coup in the future. The government needs to clean out everyone that is in the country illegally. They need to leave . . . They are the reason why there are so many drugs in the country. They supply and sell the drugs to communities in our country. (Mail and Guardian, 25 April 2015)

Addressing a media briefing at the end of his 100 days in office, the Mayor of Johannesburg Herman Mashaba had this to say:

You see, for me when I call these criminals criminals, I want them to understand that they are criminals . . .They are holding our country to ransom and I won’t allow that. Illegal foreign nationals in the inner city must leave. (Sowetan, 2 December 2017)

A year later, Herman Mashaba still expressed the same feelings towards foreign nationals. Responding to a question at the Mo Ibrahim Foundation conference in Kigali, Rwanda, he stated:

Anyone who’s been in the city illegally must be prepared to face us. We are not going to tolerate illegality in our city . . . I’m actually declaring war against illegality in our city. (City Press, 18 May 2018)

In 2017, the then Deputy Minister of Police, Bongani Mkongi, accused foreign nationals of economic sabotage. He stated:

How can a city in South Africa be 80% foreign nationals? That is dangerous, in that in Hillbrow and surrounding areas, South Africans have surrendered their own city to the foreigners. (The Citizen, 14 July 2017)

Batswana have not been as outspoken against immigrants as their South African counterparts. However, the human rights organisation Ditshwanelo (2006) states that adverse media and government attention on the problems of immigration in Botswana have contributed to the widespread hostility towards immigrants, and Zimbabweans in particular. During a parliamentary debate in 2011, the Serowe North Member of Parliament Tshekedi Khama had to be called to order by the then Speaker of the National Assembly, Margaret Nasha, for repeatedly using the word ‘makwerekwere’ to refer to foreign nationals. The derogatory word is generally used to refer to African foreigners living in Botswana and South Africa. He was complaining that the then Ministry of Infrastructure, Science and Technology was favouring foreign companies at the expense of local contractors (Dube, 2014).

Dipholo (2018) described undocumented Zimbabwean migrants as:

. . . sweat-scented thankless foreigners . . .

. . . uninvited delinquents who create hollow fantasies about their importance and sophistication as border jumpers and purse-snatchers of repute . . .

. . . foreign nationals and scavengers . . . illegally sneak into our country for purposes of belittling us and boast about their superiority and exceptional criminality . . .

. . . foreign nationals who are only attracted to our country due to the many opportunities for a better life and take our warm and friendly hospitality for stupidity. . .

. . . typical dirty scoundrels living comfortably in our country . . .

. . . We [Batswana] have never collectively or individually behaved as though our only reason for existence is to support a mad man who impoverished the entire nation and had to be pushed out by soldiers . . .

. . . we [Batswana] do not export cheap whores, serial rapists and everything in between . . .

. . . delinquents who discharge body scents that attract maggots . . .

. . . some smart arse fleeing famine . . .

. . . some flea-infested border jumpers . . . .

Dipholo was reacting to what he referred to as

. . . a common refrain amongst some foreigners of the African stock living in Botswana . . . that Batswana are an unintelligent, brainwashed people with frightening levels of illiteracy and general social ignorance.

Such sentiments by foreigners, wherever expressed, are obviously bound to evoke feelings of outrage among citizens. However, Dipholo seems to suggest that foreign nationals who make such utterances should forfeit the hospitality granted to them by Batswana as they disqualify themselves from remaining in the country. According to him,

. . . a visitor must be courteous failing which s/he could be dealt with . . . .

Literature indicates that in both South Africa and Botswana, very strong anti-foreigner feelings are rife. This is because foreigners and, in particular, undocumented migrants are generally perceived as a risk and therefore treated as homo sacer. The following are a few cases that are used to illustrate the homo sacer status of undocumented migrants in Botswana and South Africa.

Selected cases

Gift Ncube: Botswana

Gift Ncube is a Zimbabwean who in 2013 was shot by his employer and subsequently lost both arms following a dispute over pay. By the time of his shooting, he had lived in Botswana as an undocumented immigrant for 10 years. Ncube and a fellow Zimbabwean were hired by a farmer to clear his land. When the work was completed and Ncube demanded his payment from the farmer, disagreement ensured, resulting in the farmer shooting Ncube in both arms, leading to their amputation. Ncube was taken to Palapye Hospital for treatment. While he was still receiving treatment in hospital, immigration officials came to deport him back to Zimbabwe, his country of origin. When they arrived with him at the Plumtree border post, the Zimbabwean immigration officials refused to allow Ncube into their country, arguing that the Botswana government had made no arrangements for Ncube to return to Botswana to attend court. He was then taken to the Centre for Illegal Immigrants in Francistown to await the trial.

The matter went to court and Ncube’s former employer was charged with attempted murder. He pleaded self-defence, arguing that when Ncube approached him, he (Ncube) was very angry and brandishing an okapi knife. He then fired at Ncube in self-defence with the intention to scare and not to kill him. According to Ncube’s account, the farmer fired four shots. The first one scratched his forehead, the second and third shots hit his arms and the fourth hit his chest and he fell to the ground. Ncube lost the court case and the employer was discharged and acquitted of all charges. In his judgement a High Court Judge stated:

I cannot find as a fact that the accused fired four shots at the complainant. I also find it reasonably possibly true that the shots were fired with the intent to scare rather than to kill the complainant. . . It is my considered view that the version of events as narrated by the accused cannot be held to be false. . . . (The Monitor, 16 May 2016)

Speaking to The Voice newspaper of 17 November 2013, Ncube summarised his condition:

I may be an illegal but they wouldn’t treat a dog this way . . . Truly speaking, I am finished. It would be better if the guy could have killed me because now I can’t do anything for myself . . . I am helpless, I have no arms, no money and no life.

The Southern Eye newspaper of 28 January 2014 stated that the shooting incident left Ncube with no arms, no money, no parents and no place to call home. In 2016, the state appealed against the High Court judgement, arguing that the judge had misdirected himself in a number of respects in the judgement. The case then fizzled out of public interest. In April 2017, The Monitor carried an article entitled ‘Zim double amputee: Dead man walking’, which reported that Ncube had been seen in one of Gaborone’s upmarket malls seeking donations from passers-by with the help of two men (Kgamanyane, 2017). In September 2018, The Midweek Sun reported that the two parties had, through their lawyers, agreed on an out-of-court settlement in which the former employer undertook to give Ncube 20 goats and eight heads of cattle to start a new life. The former employer had also undertaken to transfer ownership of a two-bedroomed house to Ncube. The agreement also included payment of BWP100,000 to Ncube. At the time of writing, the former employer had not yet honoured the agreement. The fact that the case has generally fallen out of public discourse and media interest is indicative of the general marginalisation of undocumented immigrants.

Joseph Milidzani: Botswana

The Sunday Standard of 9 May 2014 carried a headline ‘Botswana a danger to economic refugees’, in which it claimed that there was widespread ill-treatment and abuse of Zimbabwean undocumented migrants in Botswana which had resulted in some committing suicide while leaving others with scars of abuse. The paper reported an undocumented migrant who committed suicide by hanging himself in Mokatse village on the outskirts of Gaborone. Joseph Milidzani had not been paid for his duties as a herdboy for two months. The employer had threatened to report to the police that he was an undocumented immigrant. Dube (2014) and the International Organization for Migration spokesperson confirmed that there are cases where employers withhold illegal immigrants’ salaries and threaten to report them to the police.

Ernesto Alfabeto Nhamuave (The burning man/The flaming man): South Africa

During the 2008 xenophobic violence in South Africa, in broad daylight and in full view of armed police officers, Ernesto Alfabeto Nhamuave, a 35-year-old Mozambican man, was beaten, stabbed and burnt by a group of people in the Ramaphosa informal settlement. The body, except for part of one leg and a foot, was burnt almost beyond recognition. The image of Nhamuave’s burning body was widely publicised in the media across the world and it has become a graphic representation of xenophobia. It took two weeks for the body to be identified. Meanwhile Nhamuave had no identity, only referred to as ‘The Burning Man’. Despite the incident happening in full view of a group of police officers and journalists, no one was arrested in connection with this horrific murder. On 27 October 2010, after what The Economist describes as a ‘cursory’ police investigation, the case was closed. This means that Ernesto Alfabeto Nhamuave’s killers will never be brought to book although The Sunday Times went to Ramaphosa settlement and tracked down an eye witness who identified two of the suspects in Nhamuave’s killing. The eye witness stated that she sees the suspects at least once every week. She was willing to assist the police, but they had never approached her. The Sunday Times also found that the spot on which Nhamuave was murdered had been turned into a taxi rank with new paving.

Emmanuel Sithole: South Africa

Emmanuel Sithole was a Mozambican national who was murdered in the 2015 xenophobic attacks in Alexandra Township of South Africa. A street vendor, Sithole was attacked by four men using wrenches and knives. He was beaten and stabbed in full view of journalists.

The murder was fully documented by Sunday Times photojournalist James Oatway and reporter Beauregard Tromp.

Mido Macia: South Africa

Mido Macia, yet another Mozambican, a 27-year-old taxi driver, was tied to a police van and dragged for several metres in Daveyton in 2013. He was later found dead in police cells with evidence that he had been brutally assaulted. Eight police officers were subsequently arrested and each sentenced to 15 years in jail. Police claim that Macia had parked wrongly and thereby blocked traffic. They also claim that he was resisting arrest. Many Mozambicans in South Africa saw it as a xenophobic attack, while the South African authorities presented it as the work of a few criminal elements in the South African Police Service and not xenophobia.

The publication of these stories was met with mixed reactions from both the general public and politicians. The public in Botswana generally sympathised with Ncube, especially after his attempted murder case against his former employer was dismissed by the court. The following are some of the responses to the story as reported by The Monitor of 16 May 2016:

Eish . . . Animal Farm by George Orwell

Not convincing judgement!

Ditshwanelo [human rights organisation] must intervene!

What a travesty of justice. Money can indeed get devils off the hook.

Ridiculous an appalling judgement, I am embarrassed.

Very disturbing the judge appears to be biased, the investigators and the prosecutors did not do a proper job, is it because the victim is a foreigner?????

The following comments appeared on MmegiOnline on 9 September 2016:

Ba dipitse bonang ba dinao. . . Motho yo ke motho jaaka nna le wena a hiwe katlholo e mo tshwanetseng le ha a se kitla a boelwa ke matsogo a gagwe. Judge o ne a sokile dirope Mozimbabwe ke motho wa madi le nama le ene o bopilwe mo tshwanong ya modimo.

Literally translated, the previous statement means:

This person is a human being just like you and I, and he deserves justice although he won’t get back his amputated arms. The judge was biased, and the Zimbabwean fellow is a human being too, made of flesh and blood, also created in the image of God.

There was no similar public expression of outrage at the incident by public officials. Instead the government’s initial reaction to Ncube’s plight was to try to deport him.

Following the publication of the story of the gruesome murder of Sithole in South Africa, particularly the graphic images reported by Tromp and Oatway (2015). The photographer and the newspaper became the subjects of intense debate. The focus shifted from the particular murder and xenophobia in general to media ethics. Some readers blamed the newspaper for publishing such graphic images, especially on its front pages, while others blamed the photographer for failing to help Sithole while being preoccupied with taking pictures. Public anger was directed away from those who had committed the murder and directed at those who were writing about and showing pictures of it. Even the South African Ombudsman was quoted by the Mail and Guardian of 25 April 2015 as saying:

There is something profoundly disturbing about witnessing somebody being killed. We are forced to be passive observers of a man’s most private and desperate moments as he fights for life . . . There is always another much smaller audience that must be born in mind; friends and family of the victim. For them, the horror is of a completely different order. Imagine your father, sister or child dying publicly on the front pages of a newspaper . . .

While addressing a gathering on Freedom Day, the then President of South Africa, Jacob Zuma, pointed out that the murdered man was in fact Emmanuel Josias not Emmanuel Sithole. He stressed that he was an ‘illegal’ immigrant who was using a fake name to disguise his ‘illegal’ immigrant status. Shange (2015), however, quoted Thandi Sithole, the sister of the deceased, confirming that the murdered man was indeed Emmanuel Josias Sithole and therefore that he was not using a fake name. That Sithole was an undocumented immigrant was never in dispute. What is curious is the emphasis the then president put on the ‘illegal’ status of the victim. Instead of using the occasion of Freedom Day to condemn xenophobia, the former president was in a haste to highlight the victim’s ‘illegal’ immigration status. If the victim was an undocumented migrant who had used a fake name, that would not have been something new because most of the undocumented migrants in South Africa, particularly those from Mozambique and Zimbabwe, use South African names and surnames in order to avoid detection (Maphosa, 2011).

The cases discussed previously are just a few examples. Numerous other murders of foreigners have been reported, such as the murder of Farai Kujirichita, Patries Zonke and Godfrey Sibanda in South Africa. All these xenophobia-motivated murders of foreign nationals demonstrate the homo sacer status of undocumented migrants.

Discussion

In his discussion of the concept of homo sacer, Agamben (1998) takes into account citizenship. He argues that those who are excluded from national citizenship such as refugees, the stateless people and undocumented migrants represent bare life because their rights cannot be guaranteed.

[The] so-called sacred and inalienable human rights are revealed to be without protection precisely when it is no longer possible to conceive them as rights of the citizens of a state. (Agamben, 1998: 126)

Outside the confines of the nation state, human rights are not guaranteed (Ellermann, 2009). Gordon (2010) concurs with this view that migrants are not subject to the normal protections of constitutional democracy and human rights obligations. On the contrary, they are placed in a space that is outside the workings of the law. Defining undocumented migrants as a problem that must be removed places them outside the law (Gordon, 2010: 4). Foreignness is generally seen as crime in itself (Misago et al., 2009). This explains why the response to undocumented migration in the two countries has been dominated by detention and deportation. This approach is seen as a;

. . .preventive measure that allows individuals to be taken into custody on the basis that their mere presence serves as a danger to the security and integrity of the state. (Gordon, 2010: 17)

For Gordon, Agamben believes that when individuals are so classified and therefore placed in spaces outside the protection of the law, they become so completely deprived of their rights to the point that committing a crime against them would no longer appear as a crime.

Ncube was shot, while Milidzani was threatened with being reported to the police that he was an ‘illegal’ migrant for demanding payment for work done. Their Batswana employers had acted on the basis that, because of their undocumented migrant status, they would not have legal recourse in their attempts to get their dues. These are not isolated cases, as confirmed by the International Organization for Migration. While still receiving treatment in hospital, an attempt was made to deport Ncube back to Zimbabwe. When that failed, he was sent to the detention camp, the Centre for Illegal Immigration, in Francistown. The camp is locally known as ‘Teronko ya ma Zimbabwe’ (the prison for Zimbabweans). The place is aptly referred to as a prison because, as Galvin (2015) describes it, there is no provision for non-state actors to provide medical, social or legal services to the deportees. It is also appropriately referred to as a prison for Zimbabweans because most of the inmates are Zimbabwean. Their crime is being ‘illegal’ immigrants. A similar facility in South Africa, the Lindela Camp, is a holding facility where suspected undocumented migrants are kept pending verification of their immigration status. A number of individuals and organisations including the South African Human Rights Commission (SAHRC) have expressed concern at the unfavourable treatment of those detained at the facility. SAHRC (1999) found that the human rights of inmates at Lindela were being violated. These included failure to verify inmates’ immigration status, people not being notified of their rights, the correct warrants not being obtained and people being detained beyond the legal 120 days. Inmates were also not getting sufficient meals and standards of hygiene and medical treatment were unacceptable (Jeynes, 2016). Matsinhe (2011: 84) describes Lindela Camp as a ‘. . . space that operates as if these laws did not exist’.

Both Nhamuave and Sithole were killed during xenophobic attacks in 2008 and 2015 respectively. This clearly shows that their killings were not just isolated criminal activities. Nhamuave was killed by beating, stabbing and finally ‘necklacing’. ‘Necklacing’ was a method widely used by the African National Congress (ANC) during the apartheid era to eliminate those who were accused of being traitors or sell-outs (impimpi). It was therefore an acceptable way of cleansing the movement of ‘undesirables’. South African struggle icon, the late Winnie Madikizela-Mandela, was once quoted as saying:

We have no guns – we have only stones, boxes of matches and petrol . . . Together, hand in hand, with our boxes of matches and our necklaces, we shall liberate this country. (Hanes, 2018)

Necklacing is still being used in South Africa to cleanse the country of ‘undesirables’ including undocumented migrants. Burning undocumented migrants is symbolic of removing ‘undesirables’ from society in the same manner that ‘undesirables’ were removed during the apartheid era. ‘The image of a man on his knees burning in a ball of flame screaming for help, with people standing by clapping their hands and laughing’, (Mawere and Marongwe, 2016) clearly shows that undocumented migrants in South Africa are perceived as people who should be killed as a way of cleansing society.

Sithole was also killed by being stabbed many times, while a crowd was watching. By focusing on Sithole’s illegal status when addressing a gathering after the murder, the former president, Jacob Zuma, consciously or unconsciously reduced the seriousness of the murder to xenophobia and seemed to blame the victim. Such statements by state officials are likely to give the impression that undocumented migrants should be killed.

The excessive force used by the eight police officers in arresting and the subsequent beating of Mido Macia to death cannot be seen as just police brutality. As Vahed (2013) states, members of the South African Police Service are part of South African society. They are therefore not immune to the prejudices against undocumented migrants or migrants in general that are prevalent in South Africa. As a result, as Klaaren and Ramji (2015) observe, numerous human rights abuses occur in the arrest and detention of undocumented migrants and refugees.

Both in South Africa and Botswana, there is no legal permission for anyone to kill undocumented migrants but, as Young (n.d.) observes in the United States, public discourse and utterances by state officials make immigrants vulnerable to the denial of basic rights. Xenophobic attacks as exemplified by the cases presented previously are therefore not spontaneous and irrational outbursts (Hungwe, 2012; Misago, 2019). According to Ditshwanelo (2006), adverse media and government attention on the problems associated with illegal immigration in Botswana have contributed to widespread hostility towards illegal immigrants and Zimbabweans in particular (Ditshwanelo, 2006). While for Passer (2012) all immigrants of all kinds have become the paradigmatic modern day homo sacer, this is more applicable to undocumented migrants. The suggestion that someone is a threat can lead to their exclusion from the protection of the law. This gives justification for undocumented migrants to be killed without the killing being considered as murder (Kitiarsa, 2014). As Dorty (2011) observed, migrants, especially undocumented migrants, are both wanted and unwanted. They are wanted for their labour but unwanted as human beings. As a result, they are perfect candidates of being reduced to bare life. The experience of migrants is full of physical and social suffering, including risk of injury, illness and death. Being singled out as unwanted and problematic increases both their vulnerability and marginality (Galvin, 2015). While it is not legally authorised for anyone in Botswana and South Africa to kill undocumented migrants, their representation as a problem, especially by state officials, practically places them outside the protection of the law. Characterising them as criminals and a threat to society places them in a state of exception.

Conclusion

The lives of undocumented migrants in both Botswana and South Africa are characterised by physical and social suffering, including risk of injury, illness and death. This is largely a result of the perceptions of undocumented migrants by both officials and the general public as problematic and unwanted. While it is not legally sanctioned for anyone in Botswana and South Africa to kill undocumented migrants anytime they come into contact with them, their representation as a problem, especially by state officials, practically places them outside the protection of the law, reduced to a bare life. Characterising them as criminals and a threat to society places them in a category of people who do not deserve protection but from whom society has to be protected. This therefore places them in a state of exception where the protection of the law does not apply. They are therefore homo sacer.

Footnotes

Funding

The author(s) received no financial support for the research, authorship and/or publication of this article.

ORCID iD

France Maphosa

Author biographies

France Maphosa is a Professor of Sociology at the University of Botswana.

Christopher Ntau is a Senior Lecturer in the Department of Sociology, University of Botswana.

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