IMMIGRATION AND THE STATE OF EXCEPTION:

SECURITY AND SOVEREIGNTY IN EAST AND SOUTHERN AFRICA Loren B. Landau Director, Forced Migration Studies Programme landaul@migration.wits.ac.za February 2005

Accepted for publication in Millennium: Journal of International Studies

Forced Migration Working Paper Series #15 Forced Migration Studies Programme University of the Witwatersrand http://migration.wits.ac.za

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Immigration and the State of Exception

The Forced Migration Studies Working Paper Series

This series provides a forum for researchers to publish preliminary findings on themes related to forced migration in Africa. These papers may be cited (including the full URL and the date downloaded), but reproduced only with direct permission of the author. Submissions are welcome by email or post directed to our research coordinator who serves as the series editor <landaul@migration.wits.ac.za>. Authors whose work is included here are encouraged to resubmit papers for publication elsewhere. The previous ten working papers are:
Working Paper #14 F. Maphosa The Impact of Remittances from Zimbabweans Working in South Africa on Rural Livelihoods in the Southern districts of Zimbabwe. Working Paper #13 L. Landau, K. Ramjathan-Keogh, and G. Singh Xenophobia in South Africa and Problems Related to It. Working Paper #12 L. Landau, Five South African Migration Myths and A Manifesto for Pragmatism in Migration Management Working Paper #11 Loren Landau and Karen Jacobsen The Value of Transparency, Replicability, and Rrepresentativeness: A Response to Graeme Rodgers' "Hanging Out with Forced Migrants" Working Paper #10 Loren Landau and Sally Roever The Burden of Representation in Humanitarian Contexts: Survey Research on Mobile and Marginal Populations Working Paper #9 Fred Golooba Mutebi Witchcraft, Trust, and Reciprocity among Mozambican Refugees and Their South African Hosts in a Lowveld Village Working Paper #8 Tara Polzer "We Are All South Africans Now:" The Integration of Mozambican Refugees in Rural South Africa Working Paper #7 L. Landau The Laws of (In)Hospitality: Black Africans in South Africa Working Paper #6 L. Landau and K. Jacobsen Forced Migrants in the New Johannesburg Working Paper #5 T. R. Smith The Making of the South African (1998) Refugees Act Working Paper #4 L. Landau Challenge Without Transformation: Refugees, Aid, and Trade in Western Tanzania

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Immigration and the State of Exception

IMMIGRATION AND THE STATE OF EXCEPTION: SECURITY AND SOVEREIGNTY IN EAST AND SOUTHERN AFRICA1 Loren B. Landau
Abstract

The imperative to protect national territory from the unplanned movements of people across borders has generated exceptional, often extra-legal, responses from countries throughout the world. Although intended to reassert state sovereignty, little is known about such exceptionalisms lasting effects on the nature of political authority and territorial control. Through a comparison of Johannesburg, South Africa and Western Tanzanias Kasulu District, this article demonstrates that measures designed to alienate or liquidate non-national populations may be broadly popular, but the subterranean and extra-legal practices they engender can criminalise the state and prevent leaders from re-establishing a normal legal order. These effects depend on the measures employed while being conditioned by preexisting practices of state power. In Tanzania, the creation of temporary camps in response to a massive influx of refugees has generated spatially delimited extra-legality that is unlikely to threaten sovereignty. Amidst South Africas post-Apartheid transitions, emerging networks of corruption stemming from exceptionalism are challenging the liberal states mandate and creating incentive systems that leaders can no longer control. These findings illustrate the significance of immigration, humanitarianism, and migration management for the exercise of political power and suggest that exceptionalism not only threatens democratic principles, but may undermine the sovereignty it is designed to protect. Sovereignty, Humanitarianism, and the State of Exception The increased insinuation of international actors into domestic political processes gives cause to reconsider the nation-state-territory trinity as a normative and analytical ideal.2 Multi-national corporations, international financial institutions, and information technology are undeniably potent catalysts, but migration and international humanitarianism often levy more immediate challenges to existing state forms and norms. Although principles of state sovereignty may be nowhere more absolute than in matters of emigration, naturalization, nationality, and exclusion,3 they are immediately tested by the near simultaneous arrival of internationally protected refugee populations and humanitarian actors.4 With much of the world in some way affected by conflict, human mobility,
This paper was first presented at the 47th Annual Meeting of the African Studies Association, New Orleans, Louisiana (11-14 November 2004). I thank Caroline Kihato, Gayatri Singh, Antina von Schnitzler, Karen Jacobsen, and Peter Geschiere for comments on earlier drafts. I have also benefited from discussions with Achille Mbembe and the comments of two anonymous reviewers. 2 See Saskia Sassen, ed., Global Networks, Linked Cities (London: Routledge, 2002); John Agnew, Mapping Political Power Beyond State Boundaries: Territory, Identity, and Movement in World Politics, Millennium: Journal of International Studies 28, no. 3 (1999): 499-522. 3 See Hannah Arendt, The Origins of Totalitarianism (2nd edition) (New York: Meridian Books 1958), 279. 4 See Robert Keohane Political Authority after Intervention: Gradations in Sovereignty in Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, eds. J.L. Holzgrefe and Robert O. Keohane (Cambridge: Cambridge University Press, 2003), 275-298; Brenda Chalfin, Working the Border in Ghana: Technologies of Sovereignty and its Others, Occasional Paper Number 16 (Princeton: Institute for Advanced Study. November 2003).
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and humanitarian intervention, there is a need to recognise the political configurations these phenomena engender. The remainder of this essay focuses on an increasingly common strategy for reasserting sovereignty against perceived threats associated with the arrival of refugees and other non-nationals: declaring a state of exception. Through exceptionalism, governments consciously suspend elements of their normal legal order to address crises they feel threaten sovereignty. These exceptional measures are by definition paradoxical, being legally sanctioned but outside the law creating the legal form of what cannot have legal form.5 Under such conditions, authority and sovereignty cease to be bound by legislation, but become contingent on the sovereigns ability to maintain control over authorised practices (the power of law) and, when desired, to restore the normal legal order (the power to decide).6 Exceptionalism can also create categories of people within the national territoryrefugees and undocumented migrants for examplewho become alienated from their hitherto inalienable human rights. In doing so, they may also forfeit their identity as legal beings. This essay examines two instances in which sovereign states, Tanzania and South Africa, have authorised exceptional responses to the arrival of non-nationals. Although the two countries are incomparable in many waysone being a classically weak state, the other a regional hegemonthey nevertheless illustrate how responses to the perceived threats of refugees and undocumented migrants are transforming sovereign practices. While considerable parallels exist, the lasting effects of exceptionalism will differ. In Tanzania, a liberal state that lacks the institutions or resources to realise its Constitutional commitments, the responses will prove truly exceptional as the affected region returns to something approximating the status quo ante. Although the South African state is objectively stronger, the nature of immigration combined with its administrative integration and historically conditioned commitments to universal legal principles mean its exceptionalism will have greater lasting effects. These not only include cancerous economies of corruption, but by these economies power to limit the states power to decide. Two primary factors explain the divergent effects of the countries exceptional responses to the arrival of refugees and undocumented migrants. The first stems from Tanzanias de facto ability to physically and chronologically delimit the state of exception. Whereas Tanzania isolated nonnationals in temporary, internationally funded camps located on the countrys political and territorial margins, immigration has become a perennial and irreversible feature of South Africas post-apartheid urban landscape. South Africas exceptionalism is, consequently, far less delimited and targets people residing in its economic and political centres. In doing so, the states extra-legal responses not only affect both non-nationals and citizens, but risk being institutionalised in essential state agencies and departments.

5 6

Giorgio Agamben, State of Exception (Chicago: University of Chicago Press, 2005), 1. Agamben, Homo Sacer, 15.

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The second factor explaining exceptionalisms divergent consequences derives from the historically informed contexts in which the declaration occurred. Western Tanzanias institutional frailty created conditions where extra-legality does not fundamentally change the states relationship to its territory or citizens. For rural Tanzanians with few expectations for public services, security, or rights protection, extra-legal measures are exceptional largely for exhibiting an uncharacteristically high level of state activity.7 Instead of threatening the existing political order, the presence of a vilified, foreign other is strengthening citizens one expectation for the state: that it serves as the symbolic centre of Tanzanian national virtues and values.8 This contrasts vividly with South Africa where an expanded set of expectations for services and regulationmandated and regulated by a powerful Constitution and judiciarymeans that any practice compromising the states ability to provide security, achieve administrative justice, or protect citizens human rights endangers its legitimacy and the bases of its sovereignty. Moreover, as leaders prove unable to counter the corruption exceptionalism has engendered, they lose both the power of law and the power to decide. With these gone, their sovereignty is also at risk. Sovereignty in Humanitarian Contexts My approach to sovereignty interrogates the localised practices that realise legal principles and international norms. For present purposes, I draw these principles and norms from a combination of Weber, Agamben, and others. In Webers Westphalian perspective, I find two, critical components of modern sovereignty: territorial integrity and the states monopolization on legitimate violence as mandated by supreme law.9 However, we must also consider the role of non-state actors and noncoercive influences in maintaining and destabilising political regimes.10 This is markedly evident in humanitarian contexts where non-governmental organizations (NGOs), aid agencies, and refugees are critical determinants of political practice. When public institutions are weak, as they are across much of Africa, they can easily eclipse state agents and domestic legislation. By invoking Agamben, my treatment of sovereign practices travels still further from that typically informing political scientific and legal studies. The ideal modern (i.e., Weberian) nationstate pegs sovereignty on standardised control of a national territory. Agamben argues, however, that
7

See Paul Kaiser, Structural Adjustment and the Fragile Nation: The Demise of Social Unity in Tanzania, The Journal of Modern African Studies 34 (1996): 227-237; Aili Mari Tripp and Crawford Young, The Accommodation of Cultural Diversity in Tanzania, in Ethnopolitical Warfare: Causes, Consequences, and Possible Solutions, eds. Daniel Chirot and M. E. P. Seligman (Washington, DC: American Psychological Association 2001), 259-274. 8 See Loren Landau, Beyond the Losers: Transforming Governmental Practice in Refugee-Affected Tanzania, Journal of Refugee Studies. 16, no. 1 (2003): 19-43. For comparative reference, see Clifford Geertz, Negara: The Theatre State in Nineteenth Century Bali (Princeton: Princeton University Press, 1980). 9 Max Weber, Politics as a Vocation, in From Max Weber: Essays in Sociology, eds. H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946), 77-128.

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when this control is threatened, the true sovereign can break from this uniformity and declare a state of exception. Under such conditions, the state authorises its agents to act outside the law in an anomalous zone where they retain the power of law, but are not constrained by it.11 Agamben recognises, however, that leaders often inflate or fabricate the threats used to justify such declarations. Moreover, quoting Tingsten, he warns that the systematic and regular exercise of the institution necessarily leads to the liquidation of democracy and the possibility of tyranny.12 Hitlers rise to power is evidence of this danger while Agamben fears the Anglo-American war on terror may have similarly dire consequences for liberal democracies and the rights they are sworn to uphold. An understanding of sovereignty that considers territorial integrity, monopolies of violence, the interplay of domestic and international actors, and exceptional exercises of state power is well suited for studying environments occupied by significant non-national populations and/or international humanitarian actors. Although humanitarian spacesparticularly refugee camps typically remain under the legal control of domestic states, they are often practically zones of exception. Many are regulated by international agencies working outside normal domestic laws. In other instances, the camps are simply declared exceptional spaces where normal law does not apply. Such anomalies may be shaped by policy directives, as in Northern Kenya where the central government authorised the United Nations High Commissioner for Refugees (UNHCR) to oversee hundreds of thousands of Somali and Sudanese refugees.13 Leaders may also judge the danger of foreign invasion adequately acute to justify denying the humanity of non-nationals attempting to enter or living within their countries.14 Such zones also emerge informally, with powerful and wellresourced international agencies effectively making decisions without consulting domestic authorities (but with their acquiescence).15 In all of these cases, responses to displacementhumanitarian or otherwiserepresent a break from normal governmental practice. With this, sovereignty becomes an elastic term that refers to a category of social and political organization that is linked geographically to delimited territory . . . Humanitarian interventions can be classified as yet another exception to the anomaly of sovereignty.16

See Tim Mitchell, The Limits of the State: Beyond Statist Approaches and Their Critics, American Political Science Review 85, no. 1 (1991): 77-96. 11 Giorgio Agamben, State of Exception, 2. 12 Ibid., 7. 13 See Marc-Antoine Perouse de Montclos and P. M. Kagwanja, Refugee Camps or Cities? The SocioEconomic Dynamics of the Dadaab and Kakuma Camps in Northern Kenya, Journal of Refugee Studies 13, no. 2 (2000): 205-222. 14 See Human Rights Watch, Fleeting Refuge: The Triumph of Efficiency over Protection in Dutch Asylum Policy. (New York: Human Rights Watch, 2003). 15 Tony Waters, Assessing the Impact of the Rwandan Refugee Crisis on Development Planning in Rural Tanzania, 1994-1996, Human Organization 58 (1999):142-152; Jennifer Hyndman, Managing Displacement: Refugees and the Politics of Humanitarianism (Minneapolis: University of Minnesota Press, 2000). 16 Thomas G. Weiss and Jarat Chopra, Sovereignty under Siege: From Intervention to Humanitarian Space, in Beyond Westphalia? eds. Gene Lyons and Michael Mastanduno (Baltimore: John Hopkins University Press, 1995): 100.

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The anomalous spaces created through international humanitarianism and domestic responses to non-nationals are creating new ways of managing the worlds stateless people. The assimilation or liquidation of foreignersresponses to refugees normalised in the years following World War Two17are now increasingly complemented by situations in which foreigners in a territory for extended periods, but in exceptional condition. Decades old refugee camps are the most obvious, but not the only, example. Responding to xenophobianot just discrimination, but a belief that nonnationals inherently threaten security and a national ethoseven liberal states are taking extraordinary measures intended to regulate and exclude non-nationals from full (or any) participation in domestic social, economic, and political processes.18 Yet they can not be forced home, either because the state lacks the capacity to do so or it is prohibited by international law. Within this permanent liminality, many non-nationals are subjected to illegal harassment and abuse. Increasingly, however, these measures create a category of people that are extra-legal: who live in a realm that is beyond the law. In this zone, they are, a priori, denied the rights to appeal and legal representation granted common criminals. They are instead subjected to states unbridled and potentially arbitrary power.19 One sees this in practices near the US-Mexico border, in Australias Pacific Solution to asylum seekers, and even more explicitly under the US Patriot Act and the European Unions proposals to process asylum claims outside its territorial boundaries.20 The exceptional practices mentioned above establish an evident paradox in which leaders feel compelled to protect their states universalistic legal principles and commitment to human rights through extra-legal efforts that violate them both. Agamben explores exceptionalisms legal genealogy with far more subtlety than is needed. Other scholars are rapidly producing accounts supporting Agambens claim exceptionalism is becoming the dominant paradigm of government in contemporary politics.21 Many of these accounts warn of the slippery slope between exceptionalism and absolutism, but empirically substantiate these claims. Instead of suggesting that exceptionalism leads to the consolidation of power in tyrants hands, this essay outlines an alternative scenario: by fostering economies of corruption and new political logics, exceptionalism not only leads to the abuse of rights, but generates forces that erode sovereignty and resist a return to normalcy. This is not so much the instrumentalisation of corruption many describe, but the creation of an alternative order that

Arendt, Origins of Totalitarianism, 284 Daniel Zwerdling U.S. Detainee Abuse Cases Fall Through the Cracks. (Washington DC: National Public Radio, 17 November 2004, http://www.npr.org/templates/story/story.php?storyId=4173701); Kenneth Roth and Julia Hall, Closed-door Immigration Policy is Shameful Vision, European Voice (16 September 2004) http://www.hrw.org/english/docs/2004/09/16/eu9351_txt.htm. 19 Agamben, State of Exception, 2. See also, Giorgio Agamben, We Refugees, Translated by Michael Rocke (European Graduate School, http://www.egs.edu/faculty/agamben/agamben-we-refugees.html, 1997). 20 Deutsche Welle, Human Rights Group Slams EU Asylum Plans, (Bonn: Deutsche Welle, 30 September 2004, http://www.dw-world.de/dw/article/0,1564,1342901,00.html) 21 Agamben, State of Exception, 2.
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undermines state leaders power of law and their power to decide.22 If these are as central to sovereignty as Agamben argues, leaders seeking to protect sovereignty through exceptionalism may find they have created forces that rob them of it. Evaluating Sovereignty in Tanzania and South Africa Johannesburg and Western Tanzania are almost ideal environments for witnessing the effects of exceptional responses to immigration. While differences between the two countries frustrate direct comparison, the two nonetheless illustrate potential consequences of such responses. The combination of Tanzanias weak administrative structures, a sustained influx of refugees from war torn central Africa, and the undeniable influence of international aid and humanitarian actors, presents a strong, a priori, reason to expect fundamental transformations in the practice of sovereignty.23 Indeed, many government officials working in the affected region vociferously complain of their authority being usurped. Conversely, South Africas institutional resources, the gradual arrival of modest numbers of non-nationals, and the almost total absence of operational aid agencies do not, a priori, present a terrific threat to the normal order. By confounding these expectations, my findings draw attention to a range of other explanatory factors including the specific forms of migration (mis)management and the historical, political, and spatial context in which non-nationals engage with citizens, aid agencies, and public institutions. These two countries stability, tolerance and (in South Africa), prosperity, continue to attract significant numbers of asylum seekers, refugees, and other migrants from Central, East, and Southern Africa. In South Africa, estimates now place the number of non-nationals at somewhere near one million amidst a citizenry of almost 45 million.24 Although a relatively modest number, non-nationals are highly visible, particularly in the countrys primary cities. According to Statistics South Africa, the foreign-born population of Gauteng Province (home to Johannesburg and Pretoria) increased from 4.8% of to the total population in 1996 to 5.4% in 2001, a rise from 66,205 to 102,326 people. In inner city Johannesburgthe focus of this essayestimates put the numbers at close to 25% of the total.25. Refugees and asylum seekers probably account for around 40,000 of the foreign-born population, although poor record keeping makes it impossible to know.

See Patrick Chabal and Jean-Pascal Daloz, Africa Works: Disorder as Political Instrument (Oxford: International African Institute in Association with James Currey, 1999); Jean-Franois Bayart, Stephen Ellis, and Batrice Hibou, From Kleptocracy to the Felonious State in The Criminalization of the State in Africa, eds. J. Bayart, S. Ellis, and B. Hibou (Oxford: James Currey, 1999), 1-3. 23 See Bonaventure Rutinwa, The Tanzanian Governments Response to the Rwandan Emergency, Journal of Refugee Studies 9, no. 3 (1996): 291-302. 24 See Jonathan Crush and Vincent Williams, Making up the Numbers: Measuring Illegal Immigration to South Africa, Migration Policy Brief No. 3. (Cape Town: Southern Africa Migration Project, 2001). The numbers are likely to continue climbing due to ongoing crisis in neighbouring Zimbabwe. 25 Ted Leggett, Rainbow Tenement: Crime and Policing in Inner Johannesburg, Monograph No. 78, (Pretoria: Institute for Security Studies, 2003).

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Non-nationals, particularly refugees, are even more visible in Western Tanzania. At the time of data collection (1999-2000), Tanzania hosted over 680,000 legally recognised refugees. In Kasulu District, the area examined here, ongoing violence in neighbouring Burundi and the Democratic of Republic of Congo (DRC) saw the numbers rise from 7,400 in 1995 to around 143,000 in 2000.26 Government and aid agency estimates suggest there were at least another 30,000-50,000 in the district living outside of the camps. With close to 200,000 non-nationals living among the districts 320,000 Tanzanian residents, almost one third of the districts residents were foreign-born.
The two countries employed significantly different responses to the non-nationals in their respective territories. In line with its liberal principles, South Africa relies on a laissez-faire approach where immigrants, asylum seekers, and refugees receive no only minimal assistance from international or domestic agencies, compete in local markets, and move freely within the country. By contrast, refugees in Western Tanzania are housed in internationally managed, purpose-built camps where they remain relatively isolated from local populations.27 Where international aid is relatively insignificant in South Africa, social services and food for the camps through a multi-million dollar a month care and feeding operation, a figure dwarfing the district governments 1.8 million dollar annual budget.28

I draw on an ecumenical set of data in demonstrating immigration and exceptionalisms effects on state sovereignty in South Africa and Tanzania. In Tanzania, I compare two generally similar districts, one of which has experienced a humanitarian influx. The first, Kasulu, is located in Kigoma Region, close to Burundi on the countrys Western border. The second, Mpwapwa, has a similar socio-economic profile to Kasulu, but is located in the centre of the country (Dodoma Region) where it sees few refugees. To compare the districts, I conducted more than 90 interviews with citizens over a 14-month period (1999-2000); replicated a 1966 survey in four secondary schools (two in each district; n=272); drew on archival sources; and interviewed over 100 government, United Nations, and NGO representatives.29 In South Africa, I collected data between 2002 and 2005, primarily in Johannesburg neighbourhoods directly affected by immigration. This includes new survey research (hereafter, the Wits-Tufts survey) together with formal and informal interviews with migrants, service providers, and advocates. The survey was administered in February and March 2003 in seven central Johannesburg neighbourhoods with high densities of African immigrants and

Figures provided by the United Nations High Commissioner for Refugees (UNHCR) in Dar es Salaam, Tanzania. 27 See Waters, Assessing the Impact; Beth Elise Whitaker, Refugees in Western Tanzania: The Distribution of Burdens and Benefits Among Local Hosts, Journal of Refugee Studies 15, no. 4 (2002): 339-358. 28 The World Food Programmes food distribution program alone (covering four Western Tanzanian districts) was a million dollar a week operation. This says nothing of the resources brought in or exchanged by other aspects of the relief operation or by refugees and aid workers. 29 For additional details on the 1966 survey, see David Koff and George Von Der Muhll, Political Socialization in Kenya and Tanzania-A Comparative Analysis, The Journal of Modern African Studies 5 (1967):13-51. For more on the 1999-2000 research, see Loren Landau, Beyond the Losers: Transforming Governmental Practice in Refugee-Affected Tanzania, Journal of Refugee Studies 16, no. 1(2003): 19-43.

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included 737 respondents, 53% South Africans and 47% non-nationals.30 Although much of the discussion centres on Johannesburg, I also draw on national surveys and examples from other urban centres. Although the data were not explicitly intended for comparative purposes, they reveal striking similarities in attitudes towards foreigners, the varied form of state responses, and their combined effects on sovereignty. The remainder of this essay explores these themes. Vilification and Violence In both Tanzania and South Africa, widespread xenophobiafostered by politicians and citizens has coded the growing foreign population as a threat to the nation, its territory, and the political order. Often employing the language of war or natural disasterinvasion, influx, floodofficials have adopted exceptional practices that contravene international human rights norms and constitutional principles. However unfounded assertions of the threat foreigners pose may be, the undeniable coincidence between declining security and an increasingly visible foreign presence in both Western Tanzania and Johannesburg mean few citizens have protested such responses. In Kasulu district (Tanzania) the number of reported criminal cases rose from 1 for every 253 permanent residents before the influx (1993) to 1 for every 148 residents in 2000, a 71% increase coinciding with the refugees arrival.31 A heightened police presence and subsequent increases in arrests explain some of this increase, but there is little doubt that the actual number of violent offencesarmed assault, rape, and murderhas grown much faster than elsewhere in the country. Due to the districts proximity to ongoing conflict in Burundi, small arms flow easily into the region and AK-47 assault rifles and other similar weapons were available for between 15-20 US dollars. There were also unconfirmed reports of Burundian rebels crossing into Tanzania to refresh supplies through theft and extortion. As in Western Tanzania, many of Johannesburgs immigrant-affected neighbourhoods have become centres of violence and fear.32 Although the governments reluctance to release statistics makes it difficult to draw conclusions about the rate or cause of crime, available data illustrate the coincidence of insecurity and foreigners. Between 1996 and 2000, the period when the non-national population in Johannesburgs inner city first rapidly grew, robberies with firearms nearly doubled and

The survey was conducted in Berea, Bertrams, Bezuidenhout Valley, Fordsburg, Mayfair, Rosettenville, and Yeoville. Of the total sample, 14% were from the Democratic Republic of Congo; 12% from Angola; 9% from Ethiopia; 8% from Somalia; 2% from the Republic of Congo; and 1% from Burundi. The remainder (53%) selfidentified as South African. For additional details on the survey and the methods employed, see Karen Jacobsen and Loren Landau, The Dual Imperative in Refugee Research: Some Methodological and Ethical Considerations in Social Science Research on Forced Migration, Disasters 27 no. 3 (2003): 95-116. 31 Figures furnished by the Kigoma Regional Police Command. Calculations are based on adjusted 1988 census figures, the most recent available at the time. 32 Ingrid Palmary, Janine Rauch, and Graeme Simpson, Violent Crime in Johannesburg, in Emerging Johannesburg: Perspectives on the Post-apartheid City, eds. R. Tomlinson, R. A. Beauregard, L. Bremner, and X. Mangcu (London: Routledge, 2003),101-123.

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the number of assaults with intent to cause grievous bodily harm also sharply increased.33 Much of this is undoubtedly linked to the ineffective transformation of the post-Apartheid police and the arrival of thousands of unemployed, black South Africans in white areas that were once relatively prosperous.34 Regardless of the actual cause, few Tanzanian or South African citizens doubt the link between crime and the foreign presence. As one Tanzanian explained, Crime has increased because of all the different kinds of people that are here nowThat is the problem, there is nothing else.35 Indeed, more of the Tanzanians interviewed in Kasulu mentioned refugees as the primary source of crime than all others combined. Importantly, this ascription of criminality is not situationally specific, but linked to the refugees inherent, essential character. While admitting past commonalities between the local population (the Ha) and the Burundian (largely Hutu) refugees in the district, a schoolteacher concluded, We are completely different; they have a rotten character.36 Another respondent was no less equivocal, They kill people; they steal from the farms. It is not just the refugees; it is all Burundians who have this bad character. Tanzanians are not like this, they are good.37 More significantly for present purposes, in the same breath as a senior Kasulu police officer described the small proportion of non-nationals arrested over the last twelve months, he confidently reported that the foreigners were behind almost all of the districts crime.38 Even casual conversations with South Africans also include tropes linking foreigners to the proliferation of drug and weapons syndicates, prostitution, smuggling rings, and confidence scams. Such perceptions are particularly pronounced in those areas with significant non-national populations: The Wits-Tufts survey found that more than three quarters of South Africans respondents in Johannesburg who thought that crime had increased (70%) identified immigrants as the primary reason.39 Others indirectly condemn foreigners by blaming them for unemployment and declining moral values. These opinions are reflected (and in turn fostered) by government officials. In 1997, then Defence Minister, Joe Modise, remarked: As for crime, the army is helping the police get rid of crime and violence in the country. However, what can we do? We have one million illegal

Leggett, Rainbow Tenement, 17. Mark Shaw, Crime and Policing in Post-Apartheid South Africa: Transforming Under Fire (Bloomington: Indiana University Press, 2002); see also Loren Landau, Urbanization, Nativism and the Rule of Law in South Africas Forbidden Cities, Third World Quarterly, 26 no. 7 (2005): 1115-1134. 35 Interview No. 3 in Kasulu (14 March 2000). 36 Interview No. 1 in Kanazi village, Kasulu District (17 December 1999). 37 Interview No. 1 in Mugombe village (6 March 2000). 38 Rashioi Mgonyani, Interview with the Assistant Superintendent of Police Crimes Officer, Kasulu District. (Kasulu, Tanzania, 13 October 2000). 39 See also Leggett, Rainbow Tenement, 52; See also Jonathan Crush and Vincent. Williams, Criminal Tendencies: Immigrants and Illegality in South Africa, Migration Policy Brief No. 10. (Cape Town: Southern Africa Migration Project, 2003).
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immigrants in our country who commit crimes and who are mistaken by some people for South African citizens. That is the real problem.40 This statement not only highlights the physical danger foreigners (evidently) present, but suggests a deeper fear of confusion between the native and the foreigner, a sentiment easily justifying measures to mark and alienate non-nationals. Politicians, bureaucrats, and the police in both countries have also capitalised on the presence of foreigners and international agencies to promote their own interests and elude blame for their failings. In South Africa, the xenophobic Home Affairs Minister, Mangosuthu Buthelezi (who served from 1994-2004) was a leader in this regard, although is not alone. In 2004, Johannesburgs Mayor, Amos Masondo, publicly decried the presence of 30 Nigerians on every corner of his city each presumably waiting to sell drugs or sex.41 In the words of an immigrant living in Johannesburg, Rumours . . . are continuously spread by everyone that foreigners are responsible for whatever is wrong. It is like, Thank you, foreigners, that you are here, now we can blame you for everything. South Africans do not look at their own they just ignore their own problems and pretend that foreigners cause all their problems.42 During the 2000 Tanzanian general elections, then Vice-President Omar pointed to the refugees as an excuse for the fact that these people have nothing, telling them that they have not only brought instability but also scared off investors. The Presidents speech in a neighbouring district spoke of the refugees making the region living hell.43 High levels of gender-based violence and the omnipresent threat of HIV/AIDS, both widely associated with migrants, provide further evidence of the dangers foreigners pose to the body politic. For many South Africans and Tanzanians, the threats foreigners pose to the nations physical and economic security can only be eradicated through their alienation and eventual removal from the national territory. In the words of one Tanzanian respondent, I will be very happy if they go back. There are good people here in Tanzania, so it is good for them to go back to their homes.44 Among Tanzanian secondary school students (n=150), 61% felt it would be a good thing if the all of the refugees left the country. The figures are even more dramatic in South Africa where a 1998 national survey found that 87% of citizens throughout the country felt that the country was letting in too many

Human Rights Watch, Prohibited Persons Abuse of Undocumented Migrants, Asylum-Seekers, and Refugees in South Africa (New York: Human Rights Watch, 1998), 124. 41 Statement made at the South African Cities Networks Strategic Planning meeting of mayors and officials (Johannesburg: 1-3 February 2004). 42 Jo Beal, Owen Crankshaw, and Susan Parnell, Uniting a Divided City: Governance and Social Exclusion in Johannesburg. (London: Earthscan, 2002.), 124. 43 Usia Nkhoma, Interview with Election Monitor, Tanzania Electoral Monitoring Commission. (Kasulu, Tanzania, 6 October 2000). 44 Interview No. 3 in Kanazi village (10 March 2000).

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foreigners.45 In the Wits-Tufts survey, almost two thirds of South African respondents (64.8%) not only supported tighter immigration restrictions, but felt it would be good if refugees and immigrants left the country.46 Many spontaneously suggested the need for mass incarceration or deportation. Through mutually supportive sentiments and statements, Tanzanian and South African leaders and citizens effectively code foreigners as inherent dangers: threats akin to epidemics and invasion. For many citizens, they are not only morally inferior, but their violent tendencies are immune to education, integration, or assimilation. Rather, the only way to protect the citizenry is through expulsion and, if that is not an option, isolation. The following section describes official, exceptional efforts to accomplish these objectives. Declaring the State of Exception In the schema outlined above, non-nationals are understood as acute threats made all the more dangerous for the ease with which they conceal themselves among the citizenry. The perceived dangers associated with their presence in turn levy strong pressure on the state to take action to control and/or liquidate non-nationals. A 2002 statement from South Africas former Minister of Home Affairs attempts to justify stepping outside the law to achieve those ends: Approximately 90% of foreign persons who are in RSA with fraudulent documents, i.e., either citizenship or migration documents, are involved in other crimes as wellit is quicker to charge these criminals for their false documentation and then to deport them than to pursue the long route in respect of the other crimes that are committed.47 In Tanzania, citizens and petty-government officials recounted a comparable statement on numerous occasions. Although more senior officials denied its veracity, many claim the districts highest ranking government official had proclaimed that, we dont want to see any more of those foreign bandits brought here. People must deal with them themselves. Even if a rumour, the lack of a concerted effort to counter the assertion allowed it to take on the power of fact. Indeed, reflecting prevailing sentiment among government officials, a prison wardena state agent paid to protect the citizenryconfidently proclaimed that, security is primarily the duty of the citizens.48

45 Cited in Tebogo Segale, Forced Migrants and Social Exclusion in Johannesburg, in Forced Migrants in the New Johannesburg: Towards a Local Government Response, ed. Loren Landau (Johannesburg: Forced Migration Studies Programme, 2004), 50. 46 Such sentiments are not limited to Johannesburg. In 2002, a township outside of Cape Town passed a resolution expelling all foreigners and prohibited them from returning. See Victor Southwell, Protecting Human Rights: Recent Cases Du Noon Expulsion of Foreign Nationals, Online report from South African Human Rights Commission (Report dated 2002; accessed 1 October 2004, http://www.sahrc.org.za/protecting_human_rights_vol3no1.htm). 47 In Jonathan Crush and Vincent Williams, Criminal Tendencies: Immigrants and Illegality in South Africa. Migration Policy Brief, 10 (Cape Town: Southern Africa Migration Project, 2003). 48 Interview No. 1 in Kasulu (14 March 2000).

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The statements cited above do not signify the kind of formal institution of a state exception seen with declarations of war or martial law. They do, nevertheless, represent official endorsement or tacit acceptance of systems in which government officials (albeit at different levels of the official hierarchy) legitimise or help create parallelextra-legalsystems for policing foreigners. Indeed, given the presumed links between foreigners and crime, coupled with a passive acceptance of vigilantism, such pronouncements effectively licence targeting and restraining non-nationals by whatever means state officials and citizens deem appropriate. With international funding, Tanzania has employed extra police to contain refugees in specially designated camps in an effort to ensure that, the security of the refugee camps as humanitarian space.49 Although this support went to Tanzanian police, state agents were required to operate within international conventions and supervision parameters determined by the donors. More importantly, their primary task was to alienate non-nationals from the politics of both the hosting country and their countries of origin: anomalous physical sites set outside normal national laws, despite their presence within the national boundaries.50 At these sites, refugees were denied the human rights guaranteed citizens, but were ostensibly protected by international law. If they strayed more than 3 km beyond the camp, they risked surrendering these rights. In practice, the millions of dollars dedicated to policing the camps did little to protect locals or refugees. As a senior researcher with the United Nations High Commission for Refugees (UNHCR) bluntly stated, The only thing that is clear is that the system is not really working as planned.51 In describing the states response, a former Regional Head of Office for UNCHR in Kigoma wrote, what is happening around the camps, in the volatile border areas, is largely beyond their grasp though it is theoretically within their purview.52 Similarly, while the Tanzanian Government claimed, in documents sent to the UNHCR in Geneva, that it had dispatched, an important military presence along the borderto protect the integrity of Tanzanias territory,53 there was in fact only a minimal effort in this regard. A senior military spokesman even admitted that, we are not keeping people posted along the border. What we have is people stationed in some areas waiting for something to

Marjon Kamara, Security Arrangements in the Refugee Areas, Unpublished letter written to B. Mchomvu, Permanent Secretary in the Ministry of Home Affairs, (Tanzania. Dar es Salaam, 2002), 2. 50 Effort to create these spaces started taking shape in January 1998 when the UNHCR and the Tanzanian government began implementing a joint security initiative with an annual budget of approximately two million US dollars for police mobilizations allowances, transport and fuel, and construction of a new police post at Makere village (Kasulu district) and a special processing facility north of the district (Mwisa). The Tanzanian government was to contribute almost 100 extra police officers for Kasulu, drawn from other parts of the country and stationed just outside the refugee camps. For a district with a pre-influx delegation of only 20 police (almost all stationed in the district capital), this was an impressive response. 51 Interview with Jeff Crisp, Director, Evaluation and Policy Analysis Unit, UNHCR (Geneva, 11 April 2000). 52 Jean-Franois Durieux, Preserving the Civilian Character of Refugee Camps: Lessons from the Kigoma Refugee Programme in Tanzania, (Kigoma: United Nations High Commissioner for Refugees, 1999). 53 Government of Tanzania/UNHCR, Joint Tanzanian Government/UNHCR Assessment of the Security Situation in and Around Refugee Camps in Kagera and Kigoma Regions, (Dar es Salaam: United Nations High Commissioner for Refugees).

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do.54 Among the villagers, the impact of additional police was similarly minimal, with few in Kasulu even aware of the new measures. Although ineffective at alienating non-nationals or controlling crime, the expanded Tanzanian police force managed an impressive number of arrests for petty offences, rapidly outstripping the capacity of district courts and prisons. (One respondent even reported being detained for a missing bicycle pedal.) This overcrowding subsequently bred irregularities within the courts, violence, and networks of corruption that affected non-nationals and foreigners. Former inmates describe bargaining their paltry food allocations simply to find floor space on which to sleep. No one was safe from abuse or sexual assault. Pressure to reduce overcrowding and clear the backlog of pending cases also saw many serious cases dismissed on technicalities or payment of a small fee while suspects for pettycrimes spent months waiting for preliminary hearings. During this time, they were kept together with convicts and received few of the protections designated by law. The courts and prisons ineffectiveness also justified many Tanzanians further disregarding official regulatory institutions. As a result, Kasulu residents were almost half as likely to go to police if they were a victim of crime as those interviewed in central Tanzania. When asked about incidents in which they had been victimised, most Kasulu residents reported doing nothing or turning to local vigilante groups that have been mandated by the state to help maintain order. Although such groups exist elsewhere in Tanzania,55 they are expected to work together with regular police. In Kasulu, they had taken on almost complete authority to arrest, try, and often kill suspects, without reference to published national law or standards. Even where there was severe or fatal violence against untried suspects, the police made no effort to investigate the incident, but simply accepted it as a justified response. Tanzanias ill-orchestrated effort to restore order through exceptional measures contrasts sharply with South Africas more sophisticated response that draws on the countrys administrative infrastructure, specialised immigration laws, and semi-private agencies. Although formally under orders to respect non-nationals rights, police often exploit popular opinion and their official mandate in attempting to control foreigners. Not only do they often refuse to recognise non-nationals identity documents, some respondents report having their identity papers confiscated or destroyed in order justify an arrest or facilitate a bribe.56 This is not only expensive and a threat to dignity, but effectively denies non-nationals a legal identity, making them non-people in the states eyes. Along with

Statement made during an interview with Kilonzo (Col.) and Mndolwa (Brigadier General), Assistant Military Spokesmen, Ministry of Defence. Dar es Salaam, Tanzania (25 October 2000). 55 See Ray Abrahams, Sungusungu: Village Vigilante Groups in Tanzania, African Affairs 86 (1987):179-196. 56 The South African Human Rights Commission (1997) argues that under the International Covenant of Civil and Political Rights (ICCPR), to which South Africa is a signatory, even undocumented migrants have rights against arbitrary arrest or detention (s5); the right to be treated with humanity and with respect (s9); the right to equality before the courts and tribunals (s10); the right to be recognised everywhere as a person before the law (s14); and the right against arbitrary deportation (s16).

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financial exploitations, such apprehensions are often accompanied by violence. A Sierra Leonean man recounts his experience as follows: The police asked me for my refugee paper, which had not yet expired. They say, f-ck you and they just tear the paper and seize my money and cellphone . . . So then, what they do is take me to the police station. I was shouting . . . [and] one of them just removed something like a little shocker. He was shocking me . . . say that I was to shut up and if I wasnt shut up, he was going to shock me until I die.57 Non-nationals tenuous legal status, (often) poor documentation, and tendency to trade on the street (hawking or informal business) have led some police officers have come to see foreigners as mobileATMs.58 In the words of one Eritrean living in Johannesburg, as foreign students we are not required to pay taxes to the government. But when we walk down these streets, we pay. Indeed, the WitsTufts survey found that non-South Africans living or working in the inner city were stopped by the police far more frequently than South Africans (71% versus 47%) with each stop likely to require a bribe. Non-nationals are simply too vulnerable or marginalised to object to this treatment, while many South Africans see such harassment as a legitimate form of territorial control. In Tanzania, exceptionalism was affected through the isolation of foreigners in internationally managed camps and administrative incapacity and non-action. In South Africa, the threats to the legal order outlined above have been formally endorsed by the 2002 Immigration Act, which effectively authorises Department of Home Affairs agents to conduct searches, arrests, and deportations without reference to other constitutional or legal protections.59 Without muscle of their own, immigration agents rely on the South African Police Services (SAPS) and, occasionally, the National Defence Forces to make arrests. More importantly, SAPS has exploited this law to legalise what would otherwise be illegal raids on buildings inhabited by suspected criminals and, potentially, undocumented non-nationals. Often conducted at night and away from oversight, police officers force entry, demand identity documents, and arrest both non-nationals and South Africans with little respect for normal legal provisions. In September 2003, a joint operation launched by the City of Johannesburg and the Department of Home Affairs deployed helicopters and almost 1,000 private security officers in a thinly disguised effort to rid the city of unwanted foreigners in the name of crime prevention and urban renewal. After sealing a Hillbrow apartment block, officials managed to confiscate four illegal firearmsmodest by Johannesburg standardsand arrest 198 illegal immigrants. This is not the only effort to rid the city of foreigners. Soon after South Africas first

Quoted in Palmary, Violent Crime in Johannesburg, 113. Private Communication (7 May 2004). 59 See Section 3 (Powers of Department) in the Immigration Act (2002). This provision bears remarkable similarities in spirit, if not substance, to the American Patriot Act of 26 October 2001 that authorises the Attorney General to detain aliens suspected of endangering national security and a military order issued by President Bush (13 November 2001) abrogating the seven-day limit on holding aliens without charge or expulsion. South African laws are now being challenged, although change will come slowly.
58

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democratic election, Alexandra Township north of the city centre organised a campaign entitled Operation Buyelekhaya (Operation Go Back Home) in an effort to rid the township of all foreigners involving armed gangs claiming to be members of the ANC, the South African Communist Party, and South African National Civil Organisation. That Yakoob Makda, the Director of Johannesburgs Region Eight (i.e., the inner city), could proudly report on these anti-crime cum anti-immigrant achievements to a public meeting called to help combat poverty and social exclusion illustrates the degree to which such actions are legitimised under the state of exception.60 Whereas non-nationals arrested in or around Tanzanias refugee camps have been detained amongst citizens in a decaying and judicial infrastructure, non-nationals arrested by South Africans for immigration offencesor otherwise designated as persona non grataenter a privatised realm of law enforcement existing largely outside of government regulation and public scrutiny. Escape from this world requires an outside advocate or money to pay the requisite exit fees.61 Short of these, many simply disappear or are remanded to Lindela Repatriation Centre, a privately run detention and deportation facility located on the outskirts of Johannesburg. When first opened, the facility could hold between 1,200 and 1,800 people awaiting repatriation. Capacity has since been expanded to hold more than two times that amount. During peak seasons, the centre can house up to 7,000 people. Reports of sexual abuse, violence, and bribery within Lindela are common while extortion is a normal part of journeys to and from the centre. There is also evidence that Lindelas operators unduly extend inmates stay, even after friends or relatives have produced proper documentation, in order to capitalise on the fees they collect from the government.62 Those who serve out their term in Lindelaincluding some with legal status to remain in the country and the occasional South Africanare loaded onto trains that make twice weekly trips from Johannesburg to the border with Zimbabwe or Mozambique. Those claiming more distant origins are returned, albeit less frequently, by airplane. In a Kafkaesque twist, some detainees are required to pay to be deported.63 Others have poisoned themselves hoping to be transferred to a civilian hospital from where they could more easily escape. Despite its expense and the fact that many of the deportations take place without mandatory hearings, deportations show no sign of abating: The Department of Home Affairs Annual Report for 2004 indicates that 167,137 non-citizens were removed, up from

60 This statement was made during a poverty alleviation work Workshop Organised by the Joburg Development Agency (JDA): Poverty and Exclusion in the Inner City, (Johannesburg, 14 May 2003). 61 Non-nationals report that each of Johannesburgs police stations has its own price and can draw out a rate schedule for what one must pay to be released from them. 62 Under South African law, a person can be legally detained within the facility for a maximum of 30 days without an additional court order. In mid-2004, detainees were kept in Lindela for 39 days on average, with many being held for months without an additional court order. See South African Press Association, Lindela Doesnt Comply With Immigration Laws (2 November 2004; http://www.sabcnews.com/south_africa/general/0,2172,91155,00.tml). 63 Human Rights Watch, Prohibited Persons, 59.

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135,870 just two years before. Of these, over 81,000 were from Mozambique and another 72,000 from Zimbabwe. As a point of comparison, only 17,000 Zimbabweans were deported in all of 2001.64 The extra-legal patterns of policing, detention, and deportation authorised under the state of exception are widely popular, but they have been largely unable to establish order or security. Despite their political symbolism, these measures general ineffectiveness has lead citizens to simply accept criminal activity or seek alternative means to manage crime. As in Tanzania, this means turning to forms of law enforcement that exist largely outside of State regulation and, often quite proudly, employ extra-legal forms of coercion to fulfil their mission. Because South Africans often assume foreigners are behind crime, much of this vigilantism is targeted at non-nationals. Indeed, a national study found that a significant minority of the citizenry were unprepared to leave the policing of migration solely to the authorities and a third of those surveyed said they would personally try and prevent migrants from moving into their neighbourhood, operating a business, becoming a fellow worker or having their children in the same classroom.65 Nor are these empty threats. On October 23, 1997, approximately 500 street-traders marched through Johannesburgs streets chanting slogans demanding a boycott on foreigners goods and the deportation of foreigners. This builds on an incident a few months earlier in which foreigner traders were targeted and beaten and their goods stolen.66 More recently, foreign owned shops in Kgotsong Township were looted and burned while South African shops were left standing. Throughout the country, targeted non-official violence continues to rob non-nationals of their livelihoods and, occasionally, their lives. Historicity and Shifting Sovereignties Threats levied by non-national populationsto physical security, employment, health, and even the environmenthave justified exceptional responses from both Tanzania and South Africa. In Tanzania, these include specialised refugee camps, additional police, and mandated or tacitly promoted vigilantism. Reflecting South Africas more sophisticated administrative and regulatory capacities, vigilantism is accompanied by more formalised responses ranging from concentrated police efforts, an unconstitutional Immigration Act, and a specialised, privatised system of detention and deportation. In neither case have exceptional measures effectively protected sovereignty by ensuring territorial integrity, fighting crime, or promoting citizens rights and welfare. Rather, the declaration of exception has opened space for both networks of corruption and coercion that exploit formal structures, but exist outside of legal regulation. Inasmuch as these practices resist state efforts to reassert normalcy by reversing the declaration of exception, exceptionalism threatens the sovereignty it was intended to protect.
N.D. Innocenti, A Magnet for the Rest of the Continent, Financial Times (13 April 2004), A5. Jonathan Crush. The Dark Side of Democracy: Migration, Xenophobia and Human Rights in South Africa, International Migration 38 (2000): 103-131. Quotation page 110.
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The enduring consequences of these practices will differ in the two countries. The Tanzanian citizenrys further disengagement from official regulatory mechanisms undermines constitutionalism, but does not fundamentally break from pre-influx state practices. Not only had most villagers already taken the exit option from the cash economy and held few expectations for state services and legal protection,67 but vigilantism and the ad hoc administrations of justice were already normal (if somewhat less common). Moreover, given the countrys fragmented transportation and institutional infrastructure, any changes that have taken place are likely to remain geographically isolated. As much of the specialised security apparatus, other forms of irregular policing and prison overcrowding are tied to the temporary presence of enormous refugee camps and the flow of humanitarian assistance, these measures will disappear when the refugees depart. Many of the economies of corruption will undoubtedly go with them. Although vigilantism and prison overcrowding are likely to continue, the general exercise of state power will more easily return to forms comparable to those elsewhere. In South Africa, the presence of non-nationals is bound by neither time nor space. The illegality and extra-legality developed to address the alien problem consequently constitutes a far broader threat to the post-Apartheid state. Although Lindelaa specialised, private facility run under government sanctionis at the centre of efforts to control non-nationals, bodies charged with migration management retain close ties with permanent institutions also serving South Africans. Rather than extending the rule of law, Lindela (together with broader patterns of irregular policing) are fostering a corrupt, semi-privatised, and largely ineffective criminal justice systemsinvolving border guards, police, private security firms, and vigilante groupsthat increasingly exists outside of formal regulation and oversight. Helped by the prevailing lack of discipline, bridges have been built between the soldiery and the worlds of crime and fraud.68 These new economies of corruption and extortion are already spreading into state organs that will continue to serve citizens even in the unlikely event that non-nationals return (or are returned) home. That the organisations most-affected by their presencethe police and home affairsare also largely responsible for restoring constitutionality, further decreases the likelihood of overturning irregular administrative practices and criminality. A recent scandal in which over a thousand South African woman found themselves unknowingly married to non-nationals who paid Department of Home Affairs officials for the residency rights these weddings confer is indicative of the nefarious spread of migration related corruption.69 Police officers inability to distinguish between non-nationals and citizensdue either to
66 67

Palmary, et al, Violent Crime in Johannesburg, 112 See Goran Hyden, Beyond Ujamaa in Tanzania: Underdevelopment and an Uncaptured Peasantry. (Berkeley: University of California Press, 1980); Tripp and Young, The Accommodation of Cultural Diversity. 68 Achille Mbembe, On the Post Colony (Berkeley: University of California Press), 58. 69 Florence Panoussian, Marriage SA Style: No Ring, No Veil, No Groom, Sunday Times Online (30 July 2004, http://www.suntimes.co.za/zones/sundaytimesnew/newsst/newsst1091180762.aspx). See also the

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poor documentation or to an unwillingness to recognise documentationalso means everyone becomes a suspect. Darker skinned South Africans and those who can not speak the primary local language are particularly vulnerable. (the country has 11 official languages). Echoing measures to enforce the apartheid-era pass laws, many black South Africans are consequently arrested on immigration offences or targeted for harassment and extortion. In 1998, for example, Human Rights Watch found that that 20% of those held in Lindela were in fact South Africans. Police claim the numbers were inflated, but admit that South Africans are regularly detained within the facility.70 Similarly, evictions, raids on buildings, and vigilantism all directly undermine citizens rights and livelihoods. That the exceptional practices originally created to protect citizens from foreigners are now creeping beyond the specialised apparatus designed to contain non-nationals further illustrates the declining boundaries between the zone of exception and society at large. The Department of Home Affairs now recognises the problems it faces in restoring normalcy, but is struggling to find the means to fight corruption that is so well-entrenched. To do so they are developing their own internal intelligence service and, in some instances, are building parallel administrative systems to escape the irregularities in existing facilities. The emergence of privatised and corrupt systems of state sanctioned violence stand against one of post-Apartheid states primary (Weberian) objectives: the standardization of coercion within a rights-based system of laws and accountability. In Tanzania, the state had formally devolved or practically abrogated responsibility for most social service provision long before the declaration of exception. The changes exceptionalism has engendered will serve few peoples long-term interests, but they do not represent a break from past practice or a fundamental challenge to current political ambitions: the declaration will not ultimately undermine the order it was intended to protect. In South Africa, new patterns of immigration have coincided with the states effort to monopolise and legalise the use of force. During the apartheid era, vigilante groupsin various political, quasi-political, and criminal formationsblossomed while an overblown police force employed all means at their disposal to enforce the governments repressive policies.71 The South African government sought to abolish these practices with the 1996 National Crime Prevention Strategy.72 However, by attempting to regulate immigrants through exceptional measures, the South African state has inadvertently produced exactly what it hoped to abolish. Where the continued existence of irregular, extra-legal policing does not fundamentally challenge Tanzanias political order, such corruption and vigilantism threaten to undermine the form of sovereignty South Africa is
Department of Home Affairs website (http://www.dha.gov.za/status/marital_status.asp) where citizens can check to see if they have been married without their knowledge. 70 Interview with Danie Louw, Director, Hillbrow Police Station, (Johannesburg, 18 July 2003). 71 See G. Cawthra, Policing South Africa: The SAP and the Transition from Apartheid (Cape Town: David Phillips, 1993). 72 Steffen Jensen, The Battlefield and the Prize: ANCs Bid to Reform the South African State in States of Imagination: Ethnographic Explorations of the Postcolonial State, eds. T.B. Hansen and F. Steputtat (Durham: Duke University Press 2001): 97-122. Citation on page 110.

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actively working to affect. Moreover, these new practices and logics are developing their own dynamics and momentum which not only limit leaders ability to retain the power of law, but also their power to decide: to reverse the state of exception. With these zones of exception located close to South Africas economic, cultural, and political heart, this dual loss of sovereignty will affect all residents. Citizens and non-nationals alike now face threats to the legal protections the law ostensibly guarantees. Conclusions: Reconsidering State Power, Migration, and Humanitarianism The findings outlined in the previous pages provide added nuance to the process through which exceptionalism is declared and the consequences of such declarations. While Agamben (and others) warn that states of exception invite tyranny and despotism, this article explores another possibility: that declaring exception may undermine the sovereignty it is designed to protect. This may happen in at least three ways. First, the exceptional measures employed may be ill-conceived or otherwise ineffective at neutralising the identified threat. If foreigners do not, as in South Africa, represent a disproportionate threat to security, anti-foreigner policingincluding unconstitutional searches, arrests, and deportationsdistracts officials from other concerns and offer citizens little or no protection. Second, by suspending normal legal practice, states open space for economies of corruption and violence that can undermine the normal order. Where the perceived threat cannot be geographically or institutionally quarantined, as in the South African example discussed here, these economies are likely to spread, affecting functions that are critical to states legitimacy and sovereignty. Lastly, the economies developed within this anomalous space may function on incentive systems that legally designated authorities do not control, robbing them of the power of law. While this alone represents a threat to sovereignty, the loss of this power also deprives leaders the power to restore normalcy, the power to decide. The current pre-occupation with Agambens deliberations on the State of Exception is symptomatic of efforts by politicians and academics to address the challengesreal or perceived transnational actors levy against the nation state as a normative and analytic ideal. As political leaders struggle to protect Westphalian sovereignty, they are ever more regularly authorising their agents to operate outside the laws on which that sovereignty is ostensibly founded. Scholars, as per form, are struggling to make sense of these actions and establish the implications for state-society relations. As international migration and humanitarianism become more prominent concerns in domestic politics, our energies must also include bridging divisions between the analysis of domestic politics and migration management. Effectively overcoming these divides means moving beyond legalistic or Manichean perspectives on sovereignty. Sovereigntyalong with state power more generallymust instead be understood as agglutinations of historically conditioned, spatialised practices that differ between and

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within states. The legitimacy of the Tanzanian state rests, largely on long-standing symbolic relations with its citizens, not on its ability to provide them with social services or, even security. While the influx challenged localised political practices, they did not threaten the states popularly mandated role. In South Africa, efforts to overcome apartheid-era vigilantism, political factionalism, and social exclusion have created significantly different bases of legitimacy and sovereignty. Here, the normal order depends on the states ability to protect citizens legally defined rights, control irregular violence, and maintain a monopoly on the legitimate use of force in ways mandated by law. Its inability to do soor to reverse the state of exceptionconsequently represents a far more serious threat to the self-defined conditions for achieving and maintaining sovereignty. The liberal foundations of the new South Africa are paralleled throughout the worlds liberal states. So too are its exceptional responses to asylum seekers and immigrants. We must now wait to see if these states actions will have similar effects on their sovereignty.