Chikondi Chijozi Jere — MW Legal Update

The Malawi Human Rights Commission (MHRC) has formally engaged its South African counterpart, the South African Human Rights Commission (SAHRC), expressing profound concern over the escalating anti-immigrant attacks in South Africa. This inter-commission communication highlights the regional implications of xenophobia and underscores the critical role of National Human Rights Institutions (NHRIs) in upholding international human rights standards. The MHRC's intervention prompts a re-examination of South Africa's domestic legal framework and enforcement mechanisms designed to protect non-nationals, particularly in light of its constitutional commitments and international treaty obligations. The development signals a growing demand for accountability and proactive measures to safeguard the rights and dignity of all individuals within South Africa's borders.

In a significant diplomatic and human rights development, the State-funded Malawi Human Rights Commission (MHRC) has formally addressed the South African Human Rights Commission (SAHRC) regarding the persistent and alarming anti-immigrant attacks occurring in South Africa. The letter, dated June 25, 2026, from MHRC chairperson Chikondi Chijozi Jere to SAHRC chairperson Reverend Chris Nissen, underscores a shared concern across African nations about the safety and rights of foreign nationals residing in South Africa. This direct engagement between two national human rights institutions (NHRIs) highlights the transnational nature of human rights violations and the imperative for regional cooperation in addressing them.

The MHRC's action is not merely a diplomatic gesture but a call to accountability, urging South Africa to uphold its constitutional and international obligations to protect all individuals within its borders, regardless of nationality. The escalating attacks, often driven by xenophobia, pose a severe challenge to the principles of human dignity, equality, and non-discrimination enshrined in both national and international legal instruments. This article will delve into the legal frameworks governing the mandates of these commissions, South Africa's obligations concerning xenophobia, and the broader implications for legal practitioners and human rights advocacy in the region.

Both the Malawi Human Rights Commission (MHRC) and the South African Human Rights Commission (SAHRC) are independent national human rights institutions (NHRIs) established to promote and protect human rights within their respective jurisdictions. These bodies operate under the internationally recognized 'Paris Principles,' which set standards for the status and functioning of NHRIs, emphasizing their independence, broad mandate, and pluralism.

The MHRC was established under Chapter XI (Section 129) of the Constitution of the Republic of Malawi and further empowered by the Human Rights Commission Act (Chapter 3:08, Laws of Malawi). Its mandate broadly encompasses the protection and promotion of human rights, including the investigation of violations either on its own motion or upon receipt of complaints, and making recommendations. Similarly, the SAHRC derives its mandate from Section 184 of the Constitution of the Republic of South Africa, 1996, and the South African Human Rights Commission Act 40 of 2013. Its core functions include promoting respect for human rights, protecting and developing human rights, and monitoring their observance in the Republic.

South Africa has a documented history of xenophobic violence, which has periodically flared up, targeting foreign nationals from various African countries. The country is a signatory to several international and regional human rights instruments that prohibit discrimination and protect the rights of non-nationals. These include the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR), and the African Charter on Human and Peoples' Rights (Banjul Charter). These instruments collectively impose obligations on State Parties to prevent and punish acts of racial discrimination and to ensure that all individuals within their territory, regardless of nationality, enjoy fundamental human rights.

The MHRC's decision to address the SAHRC is firmly rooted in the mandates of NHRIs and the principles of international human rights law. The MHRC's enabling legislation grants it broad powers to investigate human rights violations and to foster cooperation with other government agencies on human rights issues, including those arising from Malawi's international obligations. This inter-state communication between NHRIs exemplifies the collaborative spirit encouraged by the Paris Principles, allowing commissions to engage on cross-border human rights concerns and advocate for consistent application of international standards.

South Africa's legal framework offers robust protections against discrimination and xenophobia. The Constitution of the Republic of South Africa, 1996, in Section 9, explicitly prohibits unfair discrimination on grounds such as race, ethnic or social origin, and birth, affirming that these rights extend to "all people in South Africa, including non-nationals." Furthermore, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) serves as a comprehensive anti-discrimination law, prohibiting unfair discrimination, hate speech, and harassment by both state and private entities. In a significant legislative step, the Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023 was signed into law in May 2024, though its commencement date is yet to be proclaimed. This Act criminalizes hate crimes and hate speech, providing a specific legal mechanism to address prejudice-motivated offenses, including those based on xenophobia, thereby fulfilling South Africa's international human rights obligations.

The SAHRC, as a Chapter 9 institution, plays a crucial role in monitoring and assessing the observance of human rights, investigating abuses, and seeking appropriate redress. It is constitutionally mandated to promote respect for human rights and a culture of human rights, and has a duty to promote awareness of the prohibition against hate crimes and hate speech. While the SAHRC has wide-ranging investigative powers, including the ability to subpoena witnesses, its recommendations are generally not legally binding, which can present a challenge to direct enforcement. This limitation often necessitates reliance on advocacy, public education, and collaboration with other state organs to ensure compliance and secure redress for victims. The persistence of anti-immigrant attacks, despite these legal and institutional safeguards, highlights a gap between legislative intent and effective implementation, pointing to underlying societal issues and potential enforcement deficits.

The MHRC's communication to the SAHRC serves as a timely reminder of the interconnectedness of human rights across borders and the collective responsibility of NHRIs to address systemic injustices. For legal practitioners in South Africa, this development reinforces the importance of leveraging the existing robust legal framework to protect foreign nationals. This includes advising clients on their rights under the Constitution, PEPUDA, and the forthcoming Hate Crimes and Hate Speech Act, as well as assisting with complaints to the SAHRC and pursuing litigation where appropriate. The new Hate Crimes and Hate Speech Act, once fully in force, will provide a critical tool for prosecuting perpetrators and deterring future attacks, offering a more direct avenue for criminal justice intervention.

Looking ahead, practitioners should closely monitor the implementation of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023, and any subsequent policy directives from the SAHRC or the South African government. The effectiveness of this legislation will depend heavily on its enforcement and the proactive measures taken to address the root causes of xenophobia. Continued advocacy, public education, and regional cooperation between NHRIs like the MHRC and SAHRC will be essential to ensure that South Africa lives up to its constitutional promise of human dignity and equality for all, fostering a society where foreign nationals are protected and respected.