Striking a balance between upholding human rights and the rule of law

THE issue of undocumented migrants in South Africa has caused a stir across various sectors. While some call for their immediate deportation because they deplete the country’s resources at the expense of the nationals, others — including some NGOs - plead on their behalf.

- PROF BHEKI MNGOMEZULU

They even invoke certain clauses of the Freedom Charter and sections of the country’s Constitution to strengthen their argument on why these undocumented migrants should be allowed to stay in this country.

The main question that begs for attention is: Where does one draw the line between addressing the challenge of undocumented migrants and upholding human rights?

Another question is: Should the rights of these undocumented migrants supersede those of South African citizens? These are very critical questions. To answer them properly, one must cogently interpret both the Freedom Charter and the Constitution.

Clause five of the Freedom Charter states that “all shall be equal before the law”. Clause 6 states that “all shall enjoy equal human rights”.

The reality is that when the Freedom Charter was adopted in Kliptown, Soweto, on June 26, 1955, it did not envision a South Africa that people from outside the country would populate. In that sense, the “all” in both clauses did not refer to foreign nationals.

Therefore, if these undocumented migrants were to be allowed to live in South Africa, it would be for other reasons, not because of the Freedom Charter.

Some cite different sections of the Constitution to make a case for these undocumented migrants, especially Chapter 2 on the Bill of Rights. Section 25 states that “everyone has the right to have access to adequate housing”. Section 27 states that everyone has the right to basic education. While these sections are relevant to the debate, it is Section 27 that has triggered a serious debate. Subsection 1(a) states that “everyone has the right to have access to health care services, including reproductive healthcare”.