Policing and non-nationals: Analysis of police prevention, detection and investigation of xenophobic violence in South Africa

The Preamble to the Constitution of the Republic of South Africa, 1996 (the Constitution), reflects on the country’s history of inequality and injustice and expresses the belief that South Africa belongs to all people who reside within it, ‘united in our diversity’.1 Equality and non-discrimination are among the foundational elements of South Africa’s democratic transformation; they apply not only as stand-alone rights, but also as a benchmark against which the achievement of other fundamental human rights can be measured. This includes the rights to life, dignity, privacy and security, the enjoyment of which is not qualified by a person’s citizenship status. However, since the advent of democracy, xenophobic violence and related hate crimes against non-nationals have exposed a fault line in the country’s commitment to ending discrimination and promoting social cohesion.

The March 2019 launch of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance (NAP) signals a prioritisation by government to address xenophobia, and co-opts all sectors of society to achieve this. While the NAP includes consideration of the need to strengthen law enforcement and prosecution as part of its overarching strategy, it does not provide detail on how these broad policy aims are to be accomplished by the South African Police Service (SAPS).2

At both the international and local level, much work has been done to understand and address the causes and impacts of xenophobic violence. A common thread across this work has been the capacity of the SAPS to effectively prevent, detect and investigate incidents of xenophobic violence, and to consistently render equal and non-discriminatory policing services to non-nationals. These various processes have resulted in credible and evidence-based recommendations to the SAPS and its stakeholders in order to address identified challenges. However, the implementation of these recommendations has been limited. The recent focus by government on xenophobia through the planned cross-sectoral implementation of the NAP provides an opportunity for the SAPS to examine and address deficits in its current legislative enactments, policy and practice within this thematic as part of its obligation to give effect to the NAP.

With support from the European Union (EU), the African Policing Civilian Oversight Forum (APCOF) has commissioned this study in order to examine the legislative, policy and operational framework governing the SAPS’ response to xenophobic violence and related hate crimes, and, in so doing, identify opportunities under the current NAP implementation to improve service delivery to non-nationals.