Racial Capitalism, Refugee Adjudication, and the Performances of Zama Zama

Cedric Robinson’s notion of “racial capitalism” as articulated in his book Black Marxism: The Making of the Black Radical Condition (1983) offers a productive lens to analyze the legal structures that condition refugee movements, especially in the contexts of South Africa and the US. Given that both nation-states are ostensible bastions of democratic processes enshrined to differing degrees in each nation’s respective legislation, their comparison reveals the fault lines of democracy and the movements of peoples that one might assume could happen under that rubric. South Africa is an especially interesting example for any study of refugees because of its relatively recent moves to codify policy as part of the embrace of new forms of governance in the wake of apartheid, the regime under which the term racial capitalism first originated. Thinking about refugee law and racial capitalism as they intersect illuminates aspects of the performance of human migration under duress. Can thinking through ostensibly non-racial categories like zama zama (miners working illegally in South Africa) imagine the relations of the juridical, racial capitalism, and refugees anew? My analysis will first concentrate on legal instruments as structuring devices that produce certain conditions of possibility for human flight and movement before proceeding to analyze racial capitalism as a concept. I conclude by very briefly bringing these fields together in the discussion of zama zama and pointing out that an analysis of refugee law through performance studies has the potential to expose and even interrupt vectors of power. By request and design, this essay is intended as a provocation for further research as opposed to a complete analysis.

Refugee Law and Its Impacts

Both the US and South Africa are now bound to the 1951 Refugee Convention (an agreement between the UN and the document’s signatories) and the 1967 Protocol (an amendment to the previous document). The main criterion for determining status was demonstration of persecution by the state based on any of several categories, specifically “race, religion, nationality, membership of a particular social group or political opinion.”¹ As I and others have argued elsewhere, such criteria compel individuals to perform in ways legible to adjudicative bodies.² When it was initially conceived, then–US President Truman refused to sign on the basis that the Convention infringed on US autonomy. South Africa did not sign because it was suspended from UN activities so long as apartheid was in force from 1948–1994. The birth of the Rainbow Nation engaged the new South Africa with a host of international norms as evidenced with the country’s signing of the Convention in 1996. The 1951 UN Convention sets the ground of policy to all signatories at the international level. It maintains, for example, the principle of non-refoulement—the idea that a state cannot return people to a state that would persecute them. 

As a balance to some of the Eurocentric assumptions in the earlier international agreement, South Africa is also signatory to the 1969 African Union Convention (initially it was the OAU, or Organisation of African Unity, established by Kwame Nkrumah and Haile Selassie.) That Convention institutes a broader definition of refugee than the UN’s. It specifically adds, “The term ‘refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.”³ At the international scale, then, South Africa’s refugee policies are more robust than the US’s. “Events seriously disturbing public order” might be seen as a relatively comprehensive criterion for claiming refugee status, and that phrase potentially does several things. Whereas individuals usually need to claim to be and perform as particular objects of persecution under the UN’s guidelines, the ability to petition because of an event would potentially authorize the claims of those who would seek refugee status on the basis of regime or even climate change.⁴

Beyond such international instruments, the US and South Africa have each worked through national legislation to address refugees. The US passed the Refugee Act in 1980 in the ongoing aftermath of the American wars in Southeast Asia; the legislation also addressed the Mariel Boatlift in the same year, an event that brought over a hundred thousand Cubans to Florida. In this regard, the Act was a Cold War imperative to help people imperiled by American imperialism in those regions. This assistance extended to folks the CIA trained as informants and assassins (which generated problems later). The specific language offered in the Act is to “provide a permanent and systematic procedure for the admission of refugees of special humanitarian concern to the United States.”⁵ Unlike some other moments of massive refugee movement, the 1980s refugee movements were racialized in the US. Together with the mass investment of popular culture in particularly Vietnam, the refugee would come to be seen, and largely continues to be seen, as a racial figure. Indeed, the provisions of the Act basically follow from the expectations of racial capitalism. Among other directives, the Act established a Refugee Resettlement Program, which emphasized English-language training and employment. In US refugee policy today, we see that the specific color of that figure changes over time, but both racial otherness and Cold War tensions continue to haunt refugee discourse. This point is manifest in the treatment of recent flows of Ukranian refugees (admitted) and Mexican and Central American refugees (denied or otherwise suspended in liminal states).

By comparison, South Africa’s refugee policies may perhaps seem less explicitly about race, given the demographics of the country and the current migration patterns there. However, like the US, race serves as the foundation upon which national institutions have been built. The new South Africa inherited racist immigration legislation like the Aliens Control Act (1991), which granted the Minister of Home Affairs a sweeping set of unchecked powers and which was not replaced in full until 2004. Arguably certain provisions of the Act, such as those involving passports, drew on previous pass laws, themselves notorious apartheid instruments for biopolitical management to control racialized movement through the country. This technology was itself of colonial origin. One legacy here is the Immigration Act of 2004’s asylum transit pass that provides fourteen days of travel from a designated port of entry to reach a Refugee Reception Office in a major city. After that time, and perhaps, if some have their way, after five days, the petitioner would be in the country without legal status.⁶ The chief legislation at the national level for dealing with questions of refugees are South Africa’s Refugee Act 130 of 1998, the Immigration Act of 2004, and the Bill of Rights. The Bill of Rights in South Africa pertains to all people in the country; in the US, some protections are afforded to everyone, while others, arguably, just to citizens. As with the 1969 African Union Convention, South Africa’s Refugee Act offers relatively generous provisions compared to the US. For example, a refugee can receive permanent residence after five years of continuous residence in South Africa. In the US, a refugee has to apply for permanent residence after one year. The US can reject an applicant solely on the basis of applying after the deadline, meaning that a refugee has to learn the bureaucracy of immigration comparatively quickly. Moreover although it does not cost money to apply for asylum in the US, asylees benefit from consultations with lawyers, which can be expensive. Denial of a petition usually results in removal proceedings.

The above said, perhaps the most formative racial legislation that has had an ongoing impact on refugees in South Africa was the 1913 Land Act and its antecedents. These legal instruments dispossessed Black South Africans of their lands and severely restricted movement and property ownership. The jurisprudence became a cornerstone on which apartheid was built and formalized. Such restrictions press not only on whether internally displaced persons qualify as refugees, but they also bear on how refugees are racialized.⁷ In both the US and South Africa, anti-refugee discourse remains persistent. While actual claims for refugee status are adjudicated at the level of the nation-state, this process frequently generates many problems despite the fact that refugees are theoretically subject to a particular country’s legislation as it interacts with international law and peremptory norms (those that would establish a baseline standard for the treatment of humans). 

In the US, the contradictions of refugee law quite clearly involve anxieties about race. To summarize the point, the treatment of the refugee throws into relief the particular racial biases in the American iteration of democracy. As an example, one might look at the legacy of the CIA’s training of Hmong villagers in the Secret War to fight the communist forces of the Pathet Lao and the North Vietnamese. When the US lost, those soldiers were at risk, and many were given refugee status in the US as allies, because they were considered of “special humanitarian concern to the US.” Many of these folks, who were trained as killers, suffered from PTSD and other ailments. When adjustment to civilian life in a new country proved difficult and one of these soldiers killed someone on US territory, these former allies were re-racialized as dangerous or subversive refugees who threatened the American social order. Rather than justifying murder, this example illustrates the irony in the US training someone to kill and then being surprised when that happens in the midst of stressful transitions with violence performed looming over the perpetrators. Nevertheless, scholarship has shown how the forgetting of history and the maintenance of racial categories reify tropes like the Asian communist spy or the Asian gangster.⁸

In South Africa, refugees most often conjure an expressly different but related phenomenon: xenophobia. Indeed, virtually all of the press I have seen invokes xenophobia as the key issue in the South African reception of refugees.⁹ Indeed the vast majority of arrests of zama zamas were of undocumented immigrants.¹⁰ However, I would not easily equate South African xenophobia with race. I would instead suggest that racial capitalism animates xenophobia and that it might be productive to thus see xenophobia as racism in a particular guise. As an example, we might turn to July of 1998, when the Refugee Act was still a White Paper. At that time, the newspaper The Sowetan reported on June 22, 1998 that then–Home Affairs Minister (1994–2004) Mangosuthu Buthelezi, who remained in political office until his death at age 95 in 2023, opined the government “does not accept that its refugee policy should be cast so widely as to include victims of poverty and other economic hardships or environmental disasters.”¹¹ That statement may contradict the provisions of the 1969 OAU Convention, and it is often the charge that refugees should not simply be migrants looking for better work opportunities. 

Racial Capitalism

To unpack the paradoxes of Buthelezi’s assertion above requires a discussion of racial capitalism. Black Marxism uses “refugee” sparingly, but Robinson does see that term as an effect or index of racial capitalism. Robinson deploys the term perhaps half a dozen times including as bookends. The first mention is when he describes the sixteenth- and seventeenth-century Huguenot refugees, who establish England’s silk industry.¹² Robinson argues that this debunks the idea that the national is the appropriate scale for analysis of the proletariat. The use of immigrant labor for purposes of production from feudalism forward reveals that, “The tendency of European civilization through capitalism was thus not to homogenize but to differentiate—to exaggerate regional, subcultural, and dialectical differences into ‘racial’ ones. . . . [A]t the systemic interlocking of capitalism in the sixteenth century, the peoples of the Third World began to fill this expanding category of a civilization reproduced by capitalism.”¹³ This statement does not completely explain capitalism’s relation to race as it opens more questions about those connections. Put otherwise, Robinson sets up an argument he does not fully resolve. 

Pace Karl Marx, Robinson argues that slavery is not precapitalist, or what Marx considered part of primitive accumulation. Instead, Robinson demonstrates, as illustrated above, that capitalism as a mode of production harnesses social differences of many sorts (not just the bourgeoisie versus proletariats) for production. As Jodi Melamed writes, “antinomies of accumulation require loss, disposability, and the unequal differentiation of human value, and racism enshrines the inequalities that capitalism requires”; in short, she states, “capitalism is racial capitalism.”¹⁴ She also attends to the other part of Robinson’s title because the Black Radical Tradition is “a name for struggles that arrange social forces for Black survival over and against capital accumulation.”¹⁵ As she subsequently explains, knowledge projects—whether the Black Radical Tradition that is part of Robinson’s interest or Melamed’s focus on “Indigenous activism and Indigenous critical theory”—enable us to analyze and find alternatives to the effects of capitalism.¹⁶ In Melamed’s words, “Capital partitions, divides, and separates groups between political geographies and is the dominant relation to flow between and bind them. What is stripped out are other (and other possible) relations to land, resources, activity, community, and other possible social wholes that have been broken up for capital.”¹⁷ Interestingly, she, like Robinson, advocates for critical frameworks that arguably precede capitalism to foster solutions to the problems that system generates.

Although I do not wish to contend that the production of refugees results solely from capitalism, I do want to acknowledge that this mode of production plays a pivotal role in the construction of refugees as we understand that category today. In line with Robinson, refugees function as labor. His brief discussions further imply that situating refugees as a political problem of governmental persecution fails to capture how racialism always inheres in that categorization. In this regard, in their introduction to their anthology Colonial Racial Capitalism, Susan Koshy, Lisa Marie Cacho, Jodi A. Byrd, and Brian Jordan Jefferson write, following Ruth Wilson Gilmore, that differences of which Robinson speaks “refer to unequal social relations, which can— but do not always or necessarily— correspond to skin color.”¹⁸ What exactly is the racial in racial capitalism and how does it shape the refugee? 

Robinson provides one response to this query when he argues early in his text that, “As a material force . . . it could be expected that racialism would inevitably permeate the social structures emergent from capitalism.”¹⁹ Certainly if racialism is an economic force as he suggests, then even a classical Marxist would likely agree with that assertion as base determines superstructure. For Koshy and the other editors of Colonial Racial Capitalism the tying together of race and economics affords Robinson the ability to theorize “on a world scale.”²⁰ In turn, Zachary Leveson and Marcel Paret have traced the South African tradition of racial capitalism that preceded Robinson within debates animating the anti-apartheid movement; in their view, this story of emergence requires greater analysis and scrutiny because of tensions within such constituencies including the South African Communist Party and the African National Congress in the 1970s that might stand in for a much larger array of groups focused on class and racial differentiation in the period.²¹ Ultimately, they see the South African tradition of racial capitalism as a strategic coalescing of race and class into a singular unit of struggle. That strategic positioning also reveals how refugees function in relation to racial capitalism.

For example, in the 1976 document Foreign Investment and the Reproduction of Racial Capitalism in South Africa, the authors call attention to how foreign, particularly British, investment became critical, “both in the giving countries and in the receiving country,” especially in the mining sector.²² They further aver that, “The British state, acting on behalf of British capital involved in the South African economy, intervened in 1900 to assume a hegemony in South Africa under which was created the foundations of South Africa’s racial capitalism and the modern apartheid regime.”²³ They continue to show how “racial differentiation was institutionalized within the South African working class on terms which perpetuated the profits of the mining industry.”²⁴ The reverberations of these findings extend beyond the period to the present discussions of zama zama (usually constructed as foreigners as illustrated, for example in Rosalind Morris’s documentary We Are Zama Zama).²⁵ In addition, works like Uhuru Portia Phalafala’s Mine Mine Mine illustrate in poignant detail how the South African mining industry has created conditions for domestic exploitation and fracture in ways that mirror some of the discourse around the zama zamas, with impacts that far exceed a single generation of people.²⁶ In other words, the mining industry created conditions of refugeetude not only for workers who cross national borders but also for those who cross the country in need of livelihood and in thrall to capital accumulation.²⁷

Before returning to zama zama a bit more, further observations about South African mining and racial capitalism are worth elaborating for the present argument. First, the development of gold fields coincided with various jurisprudence that included the Land Act. Foreign investment thus involved the increasing need for and regulation of internal migration within the country and, indeed, forced movement for people to survive. Second, although the authors of the 1976 document on foreign investment and racial capitalism focused primarily on Black and white racialization, historian Mai Ngai has demonstrated how Chinese migrant workers complicate this story. Although her study is too large to unpack here, one generative thread of her work is its demonstration of how the mining industry drew on both domestic and foreign labor to create the conditions for the ascension of monopoly and finance capitalism.²⁸ Here the mines demonstrate racial capitalism, more or less as Robinson understood it but with specific attention to the multiple iterations of race performed both nationally and transnationally.

Nevertheless, such understanding remains incomplete because race has long been a structuring force on a global scale, that is, well before the advent of capitalism. In this regard, Denise Ferreira da Silva’s work is particularly useful. In her first book, Towards a Global Idea of Race, Ferreira da Silva specifically argues that race relations do not explain racial subjection. Instead, racial subjection is a condition of possibility for the post-Enlightenment subject to emerge. In her second book, Unpayable Debt, Ferreira da Silva also explores the legacy of slavery to explore questions of law and value. Her analysis in this speculative exercise interrogates the state and capital accumulation by exploring some of the contradictions manifested through what she calls the wounded captive body in the scene of subjugation. The chapters work to dismantle assumptions that undergird racial discourse. Chapter three brings in readings of Cedric Robinson in order to set up a long analysis of several of Karl Marx’s writings. The critique of Robinson hinges on the fact that Robinson’s formulation of the Black Radical Tradition rests on framing blackness as a kind of consciousness or subjectivity emergent from Africa that is both anterior and exterior to the development of capitalism.²⁹ In other words, Blackness for Robinson might be said to structure the operations of capitalism and the means to think about alternatives to such a system. But his logic would seem to expose a liberal, post-Enlightenment kind of thinking that remains relatively uninterrogated. As one example, Robinson retains a kind of linear progression that Ferreira Da Silva insists cannot hold if there is to be an unthinking of the dominant system of capitalism. Racial terms like “slave,” “negro,” and “coolie” all constitute what she calls in her first book an “affectable other,” who may or may not function as what she calls in her second the “wounded captive body in the scene of subjugation” in a global capitalist system. That said, contemporary terms in use in South Africa like refugee, “undesirable people” (folks who have had visas expire and can’t come officially back without an appeal process), and zama zamas are also figures of value and/or disposability. Such figures have the capacity to reveal the contradictions of capitalism. 

Here I push again on the refugee and move back to Robinson’s Black Marxism, despite its problems, and to Ferreira Da Silva’s Toward a Global Idea of Race and Unpayable Debt because they share an investment in what the articulation of race might do even if they do not agree on how it is constituted or what its effects might be. Towards the end of his text, Robinson writes that, “Substantial numbers of the world’s Black peoples are under the threat of physical annihilation or the promise of prolonged and frightening debilitation.”³⁰ He was writing in the 1980s when mass famine in Ethiopia dominated the headlines. He continues by noting that material conditions have produced, “Black refugees drifting helplessly beyond the threshold of human sensibility.”³¹ It is the Black Radical tradition that might render this problem intelligible and offer solutions. In other words, the Black refugee is the figure that occupies his attention as he closes Black Marxism, and that figure generates a kind of aporia.

Ferreira Da Silva, perhaps, provides one response: for her part, she also discusses refugees in Unpayable Debt in the same chapter that she discusses Robinson. However, when it comes to this topic, Slavoj Žižek rather than Robinson is her interlocutor. In the subsection entitled “A Price for European Hospitality,” she opens with an epigraph from Žižek’s “We Can’t Address the EU Refugee Crisis without Confronting Global Capitalism.” Here is a relevant excerpt of that quotation by Žižek: “Refugees should be reassured of their safety, but it should also be made clear to them that they have to accept the area of living allocated to them by European authorities, plus they have to respect the laws and social norms of European states.”³² Ferreira da Silva’s reading of Žižek is worth quoting at length because it potentially applies to the construction of refugees in many national discourses. According to Ferreira da Silva, Žižek misunderstands, 

how the Colonial and the Racial have always been and remain integral to the functioning of capital, and assumes that the total and symbolic violence that produces the figure of the Racial/Cultural Other of Europe has no juridical or economic or ethical relevance for what unfolds in the global present. In Žižek’s text we find (a) a repetition of Marxism’s disavowal of the juridical and economic relevance of coloniality and raciality, and (b) a reflective repetition of the racial dialectic, which results in an appeal to state protection (which sounds like self-preservation [of one’s way of life]), which again (c) returns total violence to the racial “other.”³³ 

Put simply, Zizek’s discourse about the refugee obscures race. The material and discursive conditions upon which the European subject is predicated depend on rendering Others vulnerable and exploiting them. The plight of the refugee cannot be addressed by the structures that facilitated their coming into being in the first place.

Zama Zama and Tentative Conclusions

In August 2023, I watched the current South African Minister of Home Affairs (since 2019) Aaron Motsoaledi talking to JJ Tabane on the South African talk show Power to Truth.³⁴ To summarize, the Minister said the government understood immigration issues differently in 1994. South Africa made a mistake in signing without reservations the UN Convention on Refugees, the 1967 Protocol, and the OAU Convention. In this vein, zama zama constitute not evidence of ongoing Black disenfranchisement through racial capitalism but a particular breed of opportunistic and violent foreigners extracting South Africa’s wealth. Motsoaledi’s formulation is vexing and inaccurate.

Over six thousand mines have been abandoned since the decline of the South African mining industry in the mid-1980s. That formally neglected infrastructure has given rise to a robust informal economy with tens of thousands engaging in illegal mining as employment opportunities within South Africa and surrounding nation-states have dwindled. As one example, an Eye Witness news feature reported on Mpumalanga province. One interviewee named Given Masina from the town of Ermelo states that the coal from the zama zamas “really helps us because we have dire electricity issues,” given that the government is “failing to deliver services to our communities.” Another informant called “Anonymous Artisanal Miner” from the village of Boekenhouthoek in the same province explains that, “A lot of people have homes because of . . . [his] work” extracting gemstones from the subterranean tunnels.³⁵ Zimbabwean Jefferson Ncube, a University of Pretoria graduate, turned to an old DeBeers mine to make a living. Andrew Cloete, a longtime zama zama, has also eeked out a subsistence living; as he notes, “The companies left us like they found us—with nothing. But if we just sit there thinking about it, our kids will die. So we, the diggers, come in here and take the scraps.”³⁶

Notwithstanding the frequent charges of foreigners’ opportunism, the history of mining in South Africa has long been linked to a domestic and transnational workforce. As a writer from The New Yorker frames it, “The economic logic of the mines also demanded an inexhaustible supply of cheap Black labor. …[B]etween 1910 and 1960, according to one estimate, five million mine workers travelled between South Africa and Mozambique alone.”³⁷ The article proceeds to discuss how the new informal mining activity has produced new elites, “similarly based on Black labor.”³⁸ As illicit mining activity, which has always been part of the industry, has increased significantly in scale, occasional tales of prosperity emerge from both the digging itself and from ancillary activities, such as providing food or other resources to workers or, in another vein, from theft by armed gangs who rob the miners of their bounty. 

Zama zamas thus inhabit a realm of Black fugitivity. In that vein, the zama zamas clearly expose the faultlines of state protections on all sides. As a salient illustration, the Mail and Guardian reported that, “According to the department of mineral resources and energy (DMRE), the economy lost about R49 billion in 2019 to illegal mining. It added that mining companies spend over R2 billion on security just to prevent these illicit activities.”³⁹ At the same time, the zama zamas themselves have been subjected to many forms of violence including killings carried out by mining corporation representatives. Informal mining work places the workers in positions of precarity, but with the caveat that some of their labor clearly benefits the communities that the state has failed. Put another way, we might say that zama zamas engage in forms of accumulation that attempt to redistribute wealth to those the state has ignored and bring attention to the plight of the powerless in structures of governance. On a less optimistic note, the mine shafts have received an uncountable number of bodies of those lost to falling rock or to the ambitions of competitors. Here racial capitalism is useful because it reveals how the quest for profit is predicated not only on disregard for others’ well-being but on the lives of the vulnerable.

Given this situation, innovations to recuperate zama zamas back into sanctioned hierarchies of employee and employer relationships may further result in unforeseen collaborations between individuals and institutions. The case of Mhlonipheni Mavuso, a zama zama since 1997, provides one example. Mavuso turned to this toil, “For my family and I to go to bed on a full stomach.”⁴⁰ Given his vast experience in the trade, Bosveld Mines decided to work with rather than against Mavuso and the artisanal miners he led in an experiment where individuals were offered work through cooperatives or as full-time employees. That experiment lowered the risk for both sides involved in negotations, although it remains to be seen whether such a contract structure remains viable. If it does, it offers a path forward for many refugees pushed to cross borders and become zama zamas. Another example is the development of a different artisanal scale mining cooperative that has tried to employ women in the diamond belt.⁴¹ 

Much of the work on refugees and performance studies have attempted to demonstrate lifeworlds beyond legal strictures whether through representation of, or performance with, refugees.⁴² An analysis of refugee law through performance studies can provide a heuristic to map vectors of power and also to imagine how they might be interrupted. How does an individual perform legibility in terms of the norms that govern juridical structures of refugee identification? What is missing from such performative productions of personhood? For me such a project is critical because refugees are produced as much through rhetorical performances as material circumstances. Those rhetorical performances and material circumstances I insist are linked to racial capitalism, and this essay has attempted to illustrate some of these conjunctions. 

Acknowledgments

I want to extend heartfelt thanks to Uhuru Phalafala and Tina Steiner of the University of Stellenbosch and Karen Harris of the University of Pretoria for their comments on this essay and for helping me with some of the research. I also thank the audiences at the talks I gave at those institutions as well as those at the PSi conference at the University of Witwatersrand during the summer of 2023. Finally, thanks to my research assistants Devon Baur and Qianxiong Yang as well as the anonymous reviewer for their comments.