When South Africa’s xenophobia affects arts in Malawi

The pervasive issue of xenophobia in South Africa is increasingly impacting the arts and entertainment sector, particularly affecting cultural exchange with neighbouring countries like Malawi. This article examines the legal frameworks in place, both domestically in South Africa and Malawi, and regionally through the Southern African Development Community (SADC), that are intended to foster cultural cooperation and facilitate the movement of artists. Despite robust anti-discrimination legislation in South Africa and SADC protocols promoting free movement and cultural exchange, the persistent threat and perception of xenophobia lead to tangible consequences, including cancelled performances and diminished collaboration. The analysis highlights the legal challenges faced by artists and the broader implications for regional integration and economic development within the creative industries.

The vibrant cultural landscape of Southern Africa, often characterised by dynamic cross-border collaborations and performances, is facing a significant challenge stemming from xenophobia in South Africa. Reports indicate that the fear and reality of xenophobic sentiment are now directly affecting the arts and entertainment industry, leading to South African artists losing international performance opportunities and impacting cultural exchange with nations such as Malawi. This development underscores a critical intersection between socio-political issues, human rights, and the economic and cultural fabric of the region.

This article delves into the legal ramifications of South Africa's xenophobia on the Malawian arts scene and, by extension, on broader regional cultural integration. It will explore the existing legal and policy instruments designed to promote cultural exchange and protect individuals from discrimination, assessing their effectiveness in mitigating the impact of xenophobia. The central thesis is that while comprehensive legal frameworks exist, their inconsistent enforcement and the persistent societal issue of xenophobia create significant practical barriers to the free flow of artistic talent and cultural goods, thereby undermining regional integration efforts.

South Africa's post-apartheid era, despite its constitutional commitment to equality and non-discrimination, has been marred by recurrent waves of xenophobic violence and sentiment directed primarily at African and Asian foreign nationals. These attacks, often fuelled by socio-economic challenges and the scapegoating of migrants, have resulted in loss of life, property damage, and widespread displacement. In response, South Africa has enacted significant legislation to combat discrimination and hate speech, notably the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA), which prohibits unfair discrimination on various grounds, including ethnic or social origin, and forbids hate speech and harassment. More recently, the Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023 was assented to, specifically aiming to give effect to South Africa's obligations concerning racism, racial discrimination, xenophobia, and related intolerance by criminalising hate crimes and hate speech.

Regionally, the Southern African Development Community (SADC) has established protocols to foster integration and cooperation. The SADC Protocol on the Facilitation of Movement of Persons of 2005 aims to progressively eliminate obstacles to the free movement of people within member states, including provisions for visa-free entry for up to 90 days for bona fide visits and pathways for residence and establishment. Complementing this is the SADC Protocol on Culture, Information and Sport of 2001, which seeks to promote and celebrate the region's cultural diversity and cooperation among member states, including through joint cultural shows and the harmonisation of cultural policies. However, it is noteworthy that Malawi has not yet ratified the Protocol on the Facilitation of Movement of Persons, which may affect the direct application of some of its provisions in bilateral contexts. For foreign artists entering Malawi, the Copyright Society of Malawi (COSOMA) collaborates with the Department of Immigration and Citizenship Services to ensure compliance with both copyright authorisation and immigration laws, including visa and permit requirements. In South Africa, foreign artists, such as writers, painters, or sculptors, can apply for a short-term visa under Regulation 11(4)(a) and Section 11(1)(b)(iv) of the Immigration Act 13 of 2002, or a long-term visitor's visa for up to three years, provided they meet specific criteria including a portfolio of work and proof of funds.

The interplay between South Africa's legal commitments to combat xenophobia and its immigration policies, juxtaposed with the SADC's integration agenda, reveals significant gaps and contradictions when confronted with the practical realities of xenophobic sentiment. While PEPUDA and the newer Hate Crimes and Hate Speech Act provide a robust legal framework to prosecute acts of discrimination and hate speech, their effectiveness in preventing the underlying societal attitudes that fuel xenophobia remains a challenge. Recent court cases, such as *Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others*, have affirmed that intimidation, harassment, and hate speech on grounds of nationality or ethnicity are unlawful, and have ordered the government to take concrete steps to operationalise its National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance. However, the persistence of vigilante groups and anti-immigrant rhetoric, particularly online, continues to create a hostile environment for foreign nationals.

For artists, this climate of xenophobia translates into tangible professional and personal risks. South African artists themselves are reportedly losing international performance opportunities, with organisers abroad citing concerns linked to South Africa's reputation. This 'backlash' directly impacts their income and the growth of the creative industry. Conversely, Malawian artists seeking to perform or collaborate in South Africa, despite SADC's aspirations for free movement, may face heightened scrutiny, bureaucratic hurdles, or even direct threats. Although SADC's Protocol on the Facilitation of Movement of Persons aims for visa-free entry for up to 90 days for citizens of member states, Malawi's non-ratification means that South African artists travelling to Malawi are generally visa-exempt, but Malawian artists travelling to South Africa would still need to comply with South African immigration requirements, including obtaining appropriate visas or permits for artistic work. The administrative burden and the perceived risk of discrimination or violence can deter cultural exchange, undermining the objectives of the SADC Protocol on Culture, Information and Sport, which explicitly encourages cooperation and joint cultural shows.

The economic impact extends beyond individual artists to the broader cultural economies of both nations. Reduced cultural exchange means fewer opportunities for collaboration, market expansion, and the cross-pollination of artistic ideas that drive innovation and growth in the creative sector. The South African Department of Arts and Culture's own objectives include promoting international exchange platforms and creating new international markets for South African arts, which are directly hindered by perceptions of xenophobia. The lack of effective, consistent protection for foreign nationals, despite constitutional and statutory provisions, creates a chilling effect that discourages cultural mobility and investment. This situation highlights a critical disjuncture between legal principles and their practical application, necessitating a more robust and visible commitment from state actors to enforce anti-xenophobia laws and foster a truly inclusive environment for cultural practitioners across the SADC region.

The impact of xenophobia in South Africa on the arts in Malawi and the broader SADC region presents a complex legal and practical challenge. While South Africa possesses comprehensive anti-discrimination and hate speech legislation, such as PEPUDA and the Hate Crimes and Hate Speech Act, and is party to SADC protocols promoting cultural exchange and movement, the persistent reality and perception of xenophobia continue to undermine these legal frameworks. The resulting cancellations of performances and reluctance for cross-border collaborations not only inflict economic harm on artists and the creative industries but also impede the deeper cultural integration envisioned by regional agreements.

For legal practitioners, advising artists, event organisers, and cultural institutions in this environment requires a nuanced understanding of both domestic immigration laws and international human rights obligations. It necessitates proactive engagement with immigration processes, robust contractual protections, and, where necessary, advocacy for the enforcement of anti-xenophobia laws. Moving forward, a concerted effort is required from SADC member states to fully implement and harmonise policies that genuinely facilitate the free movement of artists and protect them from discrimination. This includes strengthening judicial and law enforcement responses to xenophobia, fostering public awareness campaigns, and promoting cultural diplomacy that reaffirms the value of regional artistic collaboration. Without such comprehensive action, the vibrant potential of Southern Africa's cultural landscape will remain constrained by fear and intolerance.