Maxine Reitzes and Nigel Crawhall
Southern African Migration Project
Migration Policy Series No 4
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All people in South Africa have constitutionally-guaranteed language rights. This includes non-citizens. To what extent are these rights actually observed by various state departments and officials? This report presents the results of a preliminary investigation into this question by focusing on the rights and treatment of foreigners in South Africa, particularly foreigners from other African countries.
The report was commissioned by the Southern African Migration Project (SAMP) as part of a broader programme to understand the reception and treatment of non-South Africans in the new South Africa. Our aim, as authors, is to encourage government departments and NGOs to continue to work towards policies which enhance the guarantee of multilingualism enshrined in the constitution, and which enable marginalised constituencies to be recognised and heard.
The report focuses on the national departments of Home Affairs, Safety and Security, and Justice. These are the main points of immigrant and migrant contact with the state, and therefore the most likely to require policy guidelines. Other departments dealing with immigrants -- such as Correctional Services, Defence, Health, Education and Welfare, as well as their provincial counterparts -- will also require investigation in order to get a comprehensive picture account of current language policies and practices. To this end, the report includes recommendations for further research.
Two assumptions inform this report. First, we assume that the interests of structures like the Pan South African Language Board (PanSALB) as well as non-governmental organisations (NGOs) are distinct from the interests vying for power within government and state structures. We therefore conclude that various civil society groups and possibly the PanSALB will actively defend the constitution and advance a progressive and inclusive approach to language policy that benefits everyone. In a country where language has been used to divide and undermine certain political, social, economic and cultural interests, it would seem necessary for language policy to become central in the elaboration of democracy and human rights.
Second, we assume that it is in the long term interests of the new political order in South Africa to use sensible language planning to maintain peace (by promoting tolerance of diversity), and prosperity (by using linguistic resources effectively). It should be possible for non-governmental interests to forge a consensus with government on the use of language policy to promote and sustain democracy (through promotion of diverse voices, in an inclusive and participatory political system).
However, the research for this report provided a striking reminder that few state officials have considered the impact of language policy (and its absence) on broader issues of transformation. Although faced daily with language capacity problems, and the visible manifestation of contested uses of language, state officials interviewed tend not to see a link between their immediate concerns and the role of language policy in providing solutions in both the short and long term. Furthermore, senior civil servants are not necessarily aware of the link between language policy at departmental level, and national priorities of reconstruction and development.
Administrative justice and state bureaucratic procedures concerning migrants and immigrants are currently not informed by an explicit, coherent language policy. In some cases there may be violations of constitutionally guaranteed language rights, particularly in situations involving detained persons where their rights, including the written provision of reasons for negative administrative action, are not adequately communicated; and in courts where inadequate language facilitation discriminates against individuals on the basis of language and place of origin.
Reasons for the lack of a coherent policy include:
The nature of internal departmental policies and practice, including that of language, directly impacts on public service delivery. The absence of language policy in general contributes to the lack of policy regarding language facilitation for immigrants. This contributes to an overall governmental silence about the legitimate linguistic and cultural presence of other Africans in South Africa. This silence has the potential to obscure real and potential human rights abuses by government, civil society and South African citizens. It is in the interests of democracy and the integrity of the new constitution to reach into the silence and make apparent the presence and rights of speakers of officially unacknowledged languages of African provenance.
The actions taken to make this policy area explicit and to ensure the upholding of the constitution for marginalised constituencies, can contribute to making language policy and practice part of inclusive democratic state building rather than exclusive nation- building.
Redress and correction of the current situation would provide an opportunity to replace the idea of "language as a problem" with "language as a resource." Hence, immigrants' linguistic and cultural resources could be recognised as contributing to South African reconstruction and development, and the multilingual abilities of civil servants would be acknowledged, promoted and rewarded.
Owing to the complex power dynamics within the state bureaucracy, it is necessary to assign particular responsibility within government and state departments for redress and corrective action, and for organisations of civil society to be made aware and become vigilant on the issue of language access.