Making Mobility a Problem: How South African Officials Criminalize Migration

Darshan Vigneswaran

Introduction

Controls on human mobility are a central feature of the modern criminal justice system. Officers of the law commonly regard evidence of vagrancy, trespass, protest, or flight as grounds for suspicion of criminal intent. The territorial manipulation and management of mobility—whether this takes the form of neighbourhood patrols, roadblocks, building raids, or CCTV surveillance—is a fundamental strategic objective and operational ideal of policing strategy (Herbert 1997). Finally, and most obviously, a central goal of the modern prison system has been to restrict the mobility of criminal perpetrators. Since the relationship between criminal justice and mobility is enduring and multi-faceted, any evidence that international migrants—people who move across borders—are increasingly targeted as suspects within criminal justice systems should not come as a surprise. The ‘criminalization of migration’ is not an outgrowth, logical extension, or particularly harsh variant of restrictive immigration policies. Rather, these developments ought to be studied as the reintegration of two parallel judicial systems (immigration and criminal) that have both problematized human mobility but have each been formulated to address different variants of this phenomenon: crossborder mobility and internal or domestic mobility. Human mobility is a fluid and indeterminate process and it has always been difficult to suggest that persons who cross an international border are necessarily engaging in an altogether different type of movement from those who do not. Nonetheless, the institutions which states have developed to regulate and control human mobility have been built upon the premise that this distinction is fundamental and warrants very different types of state intervention. Given this, my aim in this chapter is to trace how these two institutional structures are being conceptually and procedurally synthesized in everyday law-enforcement practices in such a way that specific categories of mobile person become objects of criminal suspicion and/or concern.

Indeed, even this more refined characterization of my research aims may be a slight overstatement in so far as there has always been an abiding connection between the development of the criminal justice system and the formulation of immigration policy and law (Walters 2010). For example, if we look, as many have, to the origins of our contemporary notions of sovereignty, citizenship, and statehood in the Italian city-state of the Renaissance period, we see that early notions of criminal justice were developed through the practice of banishing violent offenders from the capital (Starn 1982). In that context, the criminalization of private violence and the more general control of human mobility went hand in hand (Vigneswaran 2007). Alternatively, we might look to the British Empire and its use of a policy of transportation as a mode of punishment in the eighteenth and nineteenth centuries. In that context, policies regarding migration and settlement were strongly linked to a parallel effort to generate practical and sufficiently harsh sanctions for an over-burdened criminal justice system. Finally, we may choose to look to the development of the criminal justice system in places like apartheid South Africa. The Apartheid regime did not establish distinctions between criminal and immigration law or their respective enforcement and penal policies because the government was fundamentally opposed to unregulated mobility in all its forms, but particularly the mobility of the country’s black, Indian, and ‘coloured’ populations. Instead, one of the core regulatory aims of apartheid was to render the mobility of black people into white areas as the primary source of criminal threat and primary target of anti-crime policing (Brewer 1994; Vigneswaran 2011).

These examples suggest that the separation between immigration and criminal law, as two different legal and institutional mechanisms for regulating and controlling mobility, is a very specific historical outcome that may only make sense within a limited range of political and institutional settings rather than a general condition that applies across all political systems for all times. The moment that we begin to move beyond the traditional set of cases which we conventionally use as meters of encompassing historical trends, namely the small set of advanced states of late twentieth-century and early twenty-first-century Europe and North America, the idea that immigration law is something that can be meaningfully ‘criminalized’ begins to lose purchase. As we expand our analytical view, backwards in time and outwards across space, we begin to recognize that immigration law has regularly been deeply wedded to the criminal law and its characteristic means of surveillance, investigation, punishment, and redress. The question then becomes one of determining what forms of mobility are being criminalized in particular times and places; and how.

In contemporary South Africa, it is sometimes difficult to detect any separation between the criminal justice and immigration enforcement systems. Whereas theorists of migration policy who work in the comparatively liberal legal traditions of Europe and North America may be interested in the manner in which certain aspects of migration policy and law have become progressively criminalized, their South African counterparts may confront the opposite problem: social scientists, lawyers, and practitioners have struggled to define the contours of a realm of migration control policy and practice which accepts the core principle that a violation of the immigration code constitutes an administrative—as opposed to a criminal—offence.

This claim should not be taken as a suggestion that there has been no significant constitutional and legislative change in South Africa over the past two decades— and that apartheid-style movement controls live on in their fullness of spirit. The process of political transformation, which began in the late 1980s and culminated in the transition to democracy in the mid-1990s, has largely eliminated apartheid’s segregation laws—including the Group Areas Act (n. 41 of 1950)—as well as its immigration laws—specifically the Aliens Control Act (n. 95 of 1991)[1]—which explicitly criminalized migration offences. Since then, South Africa has begun to follow global immigration policy norms, defining the enforcement of criminal and immigration laws as the separate responsibilities of two different departments of state. The armed South African Police Service (SAPS) is now responsible for fighting crime, while the unarmed officials of the Department of Home Affairs deal with immigration. Perhaps more importantly, and in an apparent reaction against the racist intent and authoritarian disposition of the former regime, the rights of mobile people are now protected by a variety of constitutional and statutory provisions. For example, section 22 of the new Constitution of the Republic of South Africa (n. 108 of 1996) recognizes that ‘everyone has the right to freedom of movement’, pointedly not limiting this freedom by making it an exclusive right ofcitizens. In addition to this broad commitment to migrant rights, the Immigration Act (n. 13 of 2002) establishes important jurisdictional boundaries between the immigration enforcement and criminal justice systems. For example, police officers are specifically prevented from making determinations about the immigration status of a suspected illegal foreigner and, in order to ensure the separation of penal and immigration detention systems, suspected illegal foreigners can only be detained in cells designed to hold other criminal offenders for limited periods of time.

Despite significant reforms, South African laws provide for custodial sentences— and not merely detention awaiting deportation—for most immigration offences. Hence, for the most basic offence ofremaining in the country after one’s permit has expired, a foreign national can be detained in prison for a period of up to two years (section 49(1)(a)), regardless of whether or not he or she has committed any other offence. More serious offences attract higher penalties. Only a small number of contraventions of immigration law—including acts like voluntary departure with an expired permit or failure on the part of transport operators to ensure that travellers possess adequate travel documents—are specifically defined as ‘administrative offences’ which attract only pecuniary penalties (section 50). On this basis, one could easily argue that South African immigration laws continue to define informal cross-border migration as a criminal offence.

We can begin to develop a better understanding of the true meaning of these legal categorizations by examining how they are enforced in practice. South African law provides individual officials with a great deal of discretion to determine how the law is enforced and enforcement outcomes vary widely depending on the training and disposition of local level officials who are responsible for deciding whether or not foreign migrants will be treated ‘as if ’ they were criminal offenders. Take, for example, the issue of custodial sentencing. In general, when police officers assume custody of a person who does not possess valid documentation and has not committed any non-immigration offences, they seek to transfer the detainee to the Department of Home Affairs (DHA). The DHA then confirms the person’s status and, if it has sufficient reason to believe that he or she does not have authorization to remain in the country, initiate deportation procedures. However, since the law provides considerable discretion for officials to impose harsher penalties, in many cases the transfer of custody is substantially delayed. For example, in 2008 the Johannesburg Central Police Station began adopting its own policy towards suspected ‘illegal foreigners’, charging them with immigration offences and requesting the local magistrate to hand down a three-month prison sentence. The station commander, frustrated by the fact that many foreign nationals had returned to South Africa soon after being deported to their countries of origin, had adopted this policy as a strategy of deterrence, which presumably would ensure that migrants would now know not to return to his precinct. This new policy did not stem from any national immigration policy or even correspond with the formal position of his own police commissioner who, earlier in the same year, had issued a circular to all provincial commanders to deprioritize immigration policing and concentrate SAPS resources on identified ‘priority’ crimes: murder, assault, vehicle theft, etc.

This case is illustrative of a broader trend that can be observed across the South African bureaucracy but which is particularly strong within the South African police. Officials act on their own initiative to utilize some of the harsher criminal sanctions within immigration law (Vigneswaran et al 2010). Of course, officials do not only use the available legal framework to police and punish foreign nationals. South African police officers are equally infamous for using immigration laws as a pretext for extorting migrants for bribes (Vigneswaran 2011). These characteristics of South Africa’s policing system stem less from more recent evolutions in migration law or policy and more from institutional hangovers—older apartheid traditions of policing and law enforcement which run deep in the bureaucracy.

Understanding the unique way in which officials behave towards mobile persons requires some understanding of this historical legacy. Over the course of the twentieth century, the South African police had followed a markedly different developmental trajectory to their counterparts in other parts of the world. The institutional evolution of the police was marked by the progressive reduction or stagnation of the police’s capacity to detect, investigate, and prosecute ‘serious’ crimes such as murder and theft, and the ongoing augmentation of their ability to enforce movement controls and the other administrative laws of apartheid (Brewer 1994). Indeed, the concepts of ‘crime’ and ‘crime prevention’ were progressively absorbed by the logic and purpose of ‘separateness’. Apartheid was seen as a means of protecting the white minority from the threat posed by the co-presence of black people. So, policing resources were heavily concentrated in white areas, where the detection and removal of unauthorized black persons was equated with the successful prevention of criminal activity. In this context, everyday policing practice commonly consisted of the efforts of beat police officers to detect persons who were ‘out of place’ or lacked formal authorization to be in particular areas at certain times and to arrest these persons and remove them back to their ‘own areas’, ‘homelands’, or countries of origin. In some respects, the contemporary policing of immigration merely represents the adaptation of this vast regime of movement control to deal with a new population. As influx control laws were abandoned and South African nationals were amnestied from movement controls, foreign migrants became the new focus for the police, who applied the same modes of surveillance, interrogation, and enforcement to compile huge numbers of immigration arrests.

I have written on this historical legacy in some depth elsewhere (Vigneswaran 2008, 2011; Vigneswaran et al 2010) and instead want to use the remaining space in this chapter to develop more broadly relevant theoretical formulations on the relationship between policing and mobility. More specifically, I want to examine how the police comprehend and interpret the relationship between crime and mobility and how these understandings acquire new dimensions as the policing of internal mobility becomes more deeply wedded to the policing of various forms of cross-border movement: of people, goods, and ideas.

In South Africa, the linkages between criminality and international migration have not been established solely through the application of ‘domestic’ anti-crime and policing agendas to ‘foreign’ nationals. Rather, these developments have occurred across a broader range of policing activities as South Africa—following decades of international isolation—has been progressively absorbed into an international regime that increasingly posits cross-border mobility as a distinct criminal threat. While this agenda has its roots in organizations like INTERPOL and an international policing movement that has a long history, its recent momentum stems from the passage of the United Nations Convention against Transnational Organized Crime (Resolution 55/25 of 2000) and its protocols on human trafficking and smuggling. Much has been written on the international formulation of these laws and initiatives, and some attention paid to the manner in which they shape border control policies by immigration departments, customs agencies, and the armed forces. However, we know comparatively little about the way this regime and related initiatives shape or interact with the everyday policing of mobility within national borders. Does the new raft of legislation on human trafficking impact on the way that ordinary police officers deal with individual sex workers on their beat and, if so, how? Does international cooperation filter down to the way precinct commanders deal with the local nodes of transnational criminal networks, and to what effect? Does the increasing attention to the development of standards of policing regarding a wide variety of mobile goods, services, and ideas have spillover effects for the way local officials understand and police human mobility?

In part, answering these questions involves understanding the reasons why global policing regimes condition, influence, and dictate local law-enforcement practices. Such effects could be the result of the development of a broad consensus around international criminal law, or a consequence of the fact that international cooperation is an efficient way of dealing with enforcement problems in an increasingly globalized world, or a reflection of the distribution of power in the international system. As an example of the latter dynamic, in other work I have argued that the relative power imbalances between, on the one hand, powerful states and international organizations, and, on the other, policy makers in Africa, has meant that international organizations seeking to impose international norms, treaties, and institutions concerning human trafficking, drugs, and intellectual property have been able to significantly shape or determine the way domestic or local actors in Africa respond to issues like informal migration and human trafficking (Landau and Vigneswaran 2007; Vigneswaran 2013, forthcoming). In this piece, I extend this point by examining the specific mechanisms through which such similar power imbalances frame local policing strategy.

While acknowledging this ‘top-down’ process, I also want to look at the problem from the ‘bottom up’. The capacity of international actors to influence outcomes in South Africa is only one side of the relationship between global agendas and local practices. The manner in which local officials invoke global and transnational policies and agendas in order to support, buttress, or legitimate forms of enforcement practice, which may have little to do with the primary purposes and intentions of the international agendas themselves, is equally important. Here, I am not simply emphasizing the ‘agency’ or autonomy of local officials. Rather, I am referring to the fact that this autonomy is commonly expressed in enforcement practices which significantly subvert, re-orient, and, fundamentally redirect policing initiatives that may appear on the surface to be functional outgrowths of global enforcement agenda, but in practice turn out to be something quite different.

  • [1] This Act was a synthesis of a range of immigration laws passed during the apartheid era.
 
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