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Lessons from South Africa’s migration debate
DR MPHUTLANE WA BOFELO argues that the South African government’s response to March and March reveals that law and public policy are never politically neutral.
The South African government is currently undertaking a range of interventions aimed at addressing structural and institutional deficiencies in the country’s migration governance, including the regulation of immigrants’ participation in employment and business. Whether these interventions ultimately produce progressive reforms or reactionary outcomes remains to be seen. What is already evident, however, is that the government has been jolted into action by sustained public mobilisation led by groups such as March and March.
This episode demonstrates an important political reality: even protest movements whose ideological orientation or political programme may be contested can compel governments to act. Governments may respond by adopting policies that either advance or undermine social justice, but they rarely remain indifferent to sustained pressure from below.
Protest, whether advancing progressive or conservative demands, remains a powerful mechanism through which citizens shape the public agenda and compel state institutions to confront issues they might otherwise ignore.
The South African government’s response to the migration debate also exposes the fallacy of a widely held assumption—that law exists independently of politics. Frequently, when people engage in social and political action to challenge the shortcomings or perceived injustices of the law, they are accused of ‘politicising’ legal issues, as though law could somehow be separated from the social, political, economic, and cultural contexts in which it is created and applied. Such accusations often function to delegitimise dissent and silence those who experience the law as exclusionary or marginalising.
Those in positions of power and privilege often seek to preserve existing legal and institutional arrangements because they benefit from them. They are comfortable with the reality that access to legal institutions and legal protection is mediated by social, political, economic, and cultural resources in ways that advantage some while disadvantaging others. At the same time, they exclude marginalised groups from meaningful participation in law-making and policy processes, yet dismiss or ridicule those same groups when they resort to political mobilisation outside formal legal and institutional channels.
Officialdom and the political establishment frequently portray protest as the product of an uninformed and irrational mob or as evidence that protesters are ignorant of formal legal and political processes. In reality, protest is often a form of political communication employed by people whose voices have been ignored, marginalised, or systematically excluded from those very processes.
More often than not, protesters have exhausted institutional avenues long before they take to the streets. Protest—whether peaceful or confrontational—should therefore be understood not as a rejection of democracy or legality, but as a response to the failures and limitations of democratic and legal institutions.
The government’s response to March and March therefore illustrates a broader truth. Whatever one thinks of the movement’s politics or demands, its mobilisation succeeded in placing migration governance firmly on the government’s agenda. That alone demonstrates that law and public policy do not evolve in institutional isolation. They are shaped by ongoing political contestation within society.
The state may reject protesters’ demands, accommodate them, or selectively respond to them, but it cannot ignore sustained political pressure indefinitely. Consequently, the claim that law is apolitical is itself a political claim. It obscures the power relations that shape the making, interpretation, and application of law while portraying existing legal arrangements as neutral, objective, and beyond contestation.
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Law consists of rules, regulations, and normative prescriptions established through social and political processes by institutions such as governments, states, families, communities, and other organised forms of social life.
Laws emerge from conventions, customs, and traditions while simultaneously reinforcing, transforming, or challenging those very conventions and traditions. Law is therefore both a product of society and an instrument through which society is organised and transformed.
The making, interpretation, enforcement, and application of law involve a continuous interaction between structure and agency. Structural, systemic, and institutional arrangements influence how laws are formulated, interpreted, adjudicated, and implemented. At the same time, the decisions, choices, and actions of legislators, judges, public officials, law enforcement officers, activists, social movements, and ordinary citizens shape these legal processes. Likewise, compliance with and resistance to the law are products of both structural conditions and human agency.
To understand law adequately, one must therefore recognise it not as an autonomous or politically neutral system, but as a dynamic social institution that reflects, reproduces, and contests prevailing relations of power.
Law is never merely a technical instrument of governance. It is always implicated in broader struggles over authority, citizenship, justice, inclusion, exclusion, and social change.
The South African government’s response to March and March is therefore about more than migration policy. It is a reminder that law does not stand above society. It is made within society, contested within society, and transformed through society.
Those who insist that citizens should stop ‘politicising the law’ are, consciously or otherwise, advancing a political project of their own—one that seeks to shield existing legal arrangements from democratic contestation. The real lesson is not that protest undermines the law. It is that law has always been political, and that meaningful legal change has almost always been driven by political struggle.
Dr Mphutlane wa Bofelo is a scholar and researcher in Governance and Political Transformation, with a focus on political development, public leadership, popular politics, and worker education.
