Refugees Amendment Bill; Local Government Municipal Electoral Amendment Bill: Deputy Minister briefing

Meeting report

Refugees Amendment Bill: briefing by Department of Home Affairs (DHA)
Mr Jackson McKay, Deputy Director General: Immigration Services, explained that that this Bill sought to address the challenges experienced by the Department of Home Affairs in the implementation of the Act as well as the amendments made to it by the 2008 Amendment Act.

As background, Mr McKay highlighted the broader problems that the Department was faced with in terms of the current permits, certification, passports and identity documents issued to asylum seekers and refugees in terms of the Act. The procedures that were in place result in many people that are unaccounted for, entering the country due to the absence of a track and tracing system, protracted adjudication and appeal processes and the fact that the Department has limited capacity to deal with the service demand. As possible solutions, it was proposed that the Movement Control Systems be linked to the National Integrated Immigration System, that a permit regime dealing with economic migrants be put in place, that an improved status determining system be developed and that the Act be amended with regard to adjudicative procedure and capacity. However, he emphasised that these issues were not dealt with in the Bill tabled before the Committee at the meeting, but that it must be dealt with in the way forward.

Mr McKay then proceeded to formulate the problem statement. Firstly, on a regulatory framework level, South Africa did not have camps or processing centres for asylum seekers or refugees and the 2008 Amendment Act could not be implemented due to technical errors that were discovered. This resulted in a security risk as people whose status had not been determined were released into local communities. In order to solve this problem, Immigration Services must develop a mechanism to deal with economic migrants who are currently clogging the asylum regime. Further, the Bill sought to correct the technical error by separating applications.

On the level of the Status Determination System the following challenges were identified: firstly, the adjudication process currently relied on an individual, the Refugee status Determination Officer, who was not in the best position to carry out the task at hand and secondly, economic migrants’ applications for asylum were clogging the asylum process. As a solution it was proposed that the Act must make provision for the Refugee Status Determination Committee in order to introduce the collective decision-making process in the adjudication of the claims. The capacity of officers dealing with the status determination must also be strengthened and an assessment phase and referral systems must be introduced especially for vulnerable groups. Furthermore, the Act in its current form, did not deal with the registration of the births of refugees and asylum seekers’ children. Such a provision would have to be included in the Act and an integrated service delivery model that is responsive to the needs of vulnerable groups would have to be developed.

A further problem was that the review process was currently handled by the Standing Committee for Refugee Affairs, which was an independent body. Currently, there was no governance model and their powers and function extended to areas that needed supervision and close monitoring. A governance model must therefore be developed and an amendment to the section of the Act pertaining to their powers and function must be proposed. The appeals process was a function that was exercised by the Refugee Appeals Board, an independent body, which had limited capacity and weak monitoring systems. The implementation of the Refugee Appeals Authority approach as proposed in the Amendment Act was offered as a solution to this problem.

Mr McKay explained that the Department has adopted a phased-in approach aimed at transforming the asylum seeker management system. Phase One entailed amendments to the Act that will not be addressing substantive issues. The Bill was promulgated for this purpose and its main objective was to provide for a Status Determination Committee to consider and determine applications for asylum. The Bill further sought to correct the technical error contained in the 2008 Amendment Act, granting the Refugees Appeals Authority the power to deal with both applications rejected as manifestly unfounded, abusive and fraudulent. During Phase Two the review of the Immigration Policy would be undertaken, the development of Refugee Policy would be explored and possible further amendments to the Act would be proposed.

The main objective of the Bill was to improve the capacity, effectiveness and efficiency of the status determination system and to further correct the technical error contained in the Amendment Act. The Bill was also aimed at achieving the following objectives: to make provision for the establishment of the Status Determination Committee, which introduces a collective approach to decision making; to make provision for the establishment of the Refugee Appeals Authority and to make provision for the registration of a child born of an asylum seeker in terms of the Birth and Deaths Registration Act of 1992 (the Birth and Death Registration Act). Lastly, the Bill conferred the function that was vested in the Director-General to certify that a person would remain a refugee indefinitely, on the Minister, as well as the function to withdraw refugee status.

Mr McKay then tabled slides which explained the provisions of the Bill clause by clause. In clause 1 the definitions of “Biometrics” and “Manifestly Unfounded” were substituted.

Clause 2 amended Section 4(1)(b) of the Act by excluding a person from refugee status, who has committed a crime that is not of a political nature, and, if committed in the Republic would be punishable by imprisonment.
 
Clause 3 substituted Section 8(2) of the Act in order to replace Refugee Reception Officers with Status Determination Committees at all Refugee Reception Offices and further deleted Section 8(3) of the Act that required of the Director-General to appoint administrative staff connected to the functions of the Refugee Reception Offices.

Clause 4 deleted paragraph (f) of Section 8E of the Amendment Act which disqualified a political office bearer from appointment to the Appeals Authority.

Clause 5 amended Section 21B(2) of the Amendment Act which only provided for the registration of a child of a refugee and not of an asylum seeker. The Bill sought to also provide for the registration of a child born of an asylum seeker in terms of the Births and Deaths Registration Act. Clause 5 further provided that an asylum seeker or refugee must, after registration of a child born in the Republic, submit the certificate issued in terms of the Birth and Death Registration Act, to any Refugee Reception Office in order to have the child included as a dependent of such asylum seeker or refugee.

Clause 6 deleted the requirement in Section 24(1)(b) of the Act that a representative of the United Nations High Commission for Refugees may be consulted or invited to furnish information to the Refugees Status Determination Officer (which will now be substituted by the Status Determination Committee). Mr McKay explained that the reason for this amendment was that the Department felt that there were other organisations that could give valuable input on that point and that the provision should therefore be of a more general nature. The clause further amended Section 24(4) of the Act in order to effect the technical correction in the Act by separating applications that are rejected as manifestly unfounded, abusive or fraudulent from being dealt with in the same procedure as applications rejected as unfounded applications.

Clause 7 inserted a provision which provided that an application reviewed by the Director-General was deemed to have been finalised upon receipt of the decision by the applicant, in the procedure to be prescribed.

Clause 8 amended Section 24B of the Amendment Act which provided that an asylum seeker whose application had been rejected as manifestly unfounded, abusive, fraudulent or unfounded, may lodge an appeal with the Refugees Appeals Authority. Clause 8 substituted Section 24B(1) in order to provide that an asylum seeker whose application is rejected as “unfounded” may lodge an appeal to the Refugee Appeals Authority. The clause further deleted the requirement that the Refugee Appeals Authority may invite a United Nations High Commission on Refugees representative to make oral or written representation before it makes a decision.

Clause 9 replaced the Director-General with the Minister as the entity with the power to certify that a person would remain a refugee indefinitely.

Clause 10 replaced the Director-General as the entity with the power to withdraw a person’s refugee status, with the Minister. This Clause further removed the words “in good faith” from Section 36(1)(b) to ensure that any refugee status granted due to an error, omission or oversight by the Status Determination Committee, may be withdrawn regardless of an error being in good faith or not.

Clause 11 amended Section 38(1)(d) of the Act which empowered the Minister to make regulations in regard to the manner and period in which applications for asylum which were unfounded, fraudulent or abusive, must be dealt with. The clause amended Section 38(1)(d) in order to effect a technical correction by inserting the words “manifestly” before the word “unfounded”

Clause 12 replaced “Refugee Status Determination Officer” as the person adjudicating applications for asylum, throughout the Act with the “Status Determination Committee” as the committee to determine applications for asylum.

Lastly, Clause 13 provided that the date of commencement of the Act would be determined by that of the Amendment Act.

Discussion
Mr W Faber (DA; Northern Cape) asked if a refugee or asylum seeker’s child born in the Republic was automatically granted the status of a South African citizen.

Mr McKay answered that such children were registered on South Africa’s system, but not on the population register and accordingly the nationality of such a child’s parents accrued to the child.

Mr Faber also referred to Mr McKay’s comment on the absence of camps and processing centres in the Republic and asked him to explain how the Refugee Reception Offices differ from such camps and processing centres.

Mr McKay answered that South Africa currently had Refugee Reception Offices based in four provinces and that anyone wishing to apply for asylum, reported to these offices where after they could leave and enter the South African community. He explained that a refugee camp was a place where asylum seekers were confined to a particular area for a certain time during which they were not allowed to mix with the general populace. Processing centres were places where pre-screening of asylum seekers were done in order to obtain the necessary information about them before releasing them into the community. These centres would be multidisciplinary centres where many departments would be present (for example the Department of Housing) in order to determine the needs of the people and the services that must be provided to them.

Ms M Boroto (ANC; Mpumalanga) asked for more information on the establishment, composition and other aspects of the Status Determination Committees.

Ms Lindile Kgasi, DHA Chief Director: Asylum Seeker Management, explained that members of the Department would sit in the Status Determination Committees. The Department would ensure that it was informed about the demand capacity and the expertise that these Committees would have to possess to ensure that the objectives of fast tracking and reducing the backlog were met.

The Chairperson asked what was being done in terms of categorisation in the case of an asylum seeker who did not enter the country through legal means.

Mr McKay explained the Act stated that any person could apply for asylum no matter how they had entered into the country. The reason for this was that people who fled their countries often did it in such haste that they left their documents behind. Furthermore, such people often avoided the official ports of entry into a country in fear of prosecution by their governments.

Ms Boroto asked what exactly economic migrants were. Secondly, she wanted to know what was being done about the categorising of applicants.

Mr McKay explained that some people came to South Africa in search of better opportunities and work. However, the Immigration Act did not make provision for unskilled and lowly skilled people in that regard and accordingly these people claimed asylum in an attempt to regularise their entrance into the country. The problem was that such economic migrants clogged the system and this had the result of compromising the Department’s mandate to protect real asylum seekers and refugees. Regarding categorisation, there were no processing centres in place yet, but in future the Department would put multidisciplinary centres in place where such categorisation and other issues would be dealt with.

Mr Jaco De Bruyn, a representative of the South African Local Government Association (SALGA) Western Cape, voiced his concern over the problem of xenophobia that was encountered in South Africa and noted that a very structured act was needed in order to also deal with this complex issue.

Ms Boroto noted that if most of the responsibilities were being shifted from the Director-General to the Minister, it must be ensured that no backlogs were created.

Mr McKay said that refugee status was a very important status and that it should not be conferred lightly. The Minister had the final say in most committees. Mr McKay reassured the Committee that the Department would be putting administrative structures in place that would assist in making the process run smoothly.

Mr McKay was asked to comment on the information technology (IT) system that the Department was using. The success of a system dealing with asylum seekers and refugees depended largely on the IT system in place and especially the track and trace system.

Mr McKay answered that the Department was currently using the National Immigration Information System which linked all the offices, as well as a biometric system which dealt with the fingerprints and photos of the applicants. The Department was constantly trying to improve the system but the biggest challenge lay in the IT infrastructure (for example, bandwidth and stability). The IT department was, however, working on these problems.

Local Government: Municipal Electoral Amendment Bill: briefing by the IEC
Mr Michael Hendrickse, Senior Manager, Independent Electoral Commission (IEC), briefed the Committee on the Local Government: Municipal Electoral Amendment Bill [B27-2010]. After the 2006 Local Government elections and the 2009 national elections, several problem areas were identified, which this Bill sought to address.

The Bill was proposed in order to give a prescribed election timetable outline, which was not included in the current Local Government: Municipal Electoral Act of 2000 (the Act), although it was included in the Electoral Act. The Bill also sought to revise certain provisions on the nomination of candidates. The Bill would regulate central payment of prescribed deposits by parties contesting an election. It would also revise the powers of presiding officers in the Act to alter boundaries of voting stations when necessary. It would revise the provisions of the Act regulating the number of party agents permissible in a voting station and would clarify provisions relating to assistance of voters. It would insert a new provision to allow for special votes and the procedure for these. It would enhance the powers and functions of the IEC and the Electoral Court in relation to the determination and declaration of results. It would revise the Act’s provisions on objections material to results of an election, and the procedure for submission, handling and resolution of objections by the IEC and/or the Electoral Court.

Mr Hendrickse then tabled slides that explained the provisions of the Bill clause by clause.

Clause 1 supplemented Section 11 by inserting a new schedule with a pro forma election timetable, and regularised the inclusion in the timetable of a time and day by which acts must be performed and/or documents submitted in terms of the Act.

Clause 2 amended the requirement that a candidate must submit certified copies of his or her identity document, but brought the Act closer in line with the Electoral Act of 1998 (the Electoral Act) in that candidates wishing to contest the election must now also submit an undertaking to bind the party, supporters, members and candidates to the Code as well as give a declaration that all candidates qualified.

Clause 3 provided that in addition to the current requirements, a candidate’s nomination must be accompanied by a declaration that the candidate was not disqualified from standing in the election and an undertaking to be bound by the Code. Further, a candidate who omits to submit the required documents will not be automatically disqualified, but will be given an opportunity to resubmit by a certain date.

Clause 4 would allow candidates who were contesting in more than one municipality to pay all deposits at one central point, instead of having to go to each municipality.

Clause 5 was aimed at addressing the problem that once a presiding officer had determined and demarcated the boundary of a voting station in terms of Section 21, there was no provision that allowed for the changing of the boundary should changed circumstances necessitate it. The Electoral Act did not contain such a provision. Accordingly, Clause 5 would allow the presiding officer, after consultation with party agents and members of the security services present at the voting station, to re-determine and re-demarcate the boundary.

Clause 6 made provision for more than two agents for parties and more than one agent for independent candidates, to be appointed at the voting stations.

Clause 7 catered for the need to assist voters in voting, and would allow a voter with a disability to be assisted by a presiding officer, should the disabled voter request this.

Section 8 would amend Section 55 of the Act, which provided that voting must occur on voting day and in the voting district where the voter is registered, by allowing for persons who will not be able to vote on voting day in his or her voting station, to apply to vote on a day prior to voting as shall be determined by the IEC. However, such persons would still be required to vote in their voting districts.

Clause 9 was aimed at amending Section 64 which obligated the IEC to determine and declare election results within seven days. Currently no exceptions were permitted. Clause 9 would permit an extension of this period through application to the Electoral Court, should the IEC, through circumstances beyond its control, need more than seven days to declare results.

Clause 10 related to extensions of time for objections to be disposed of, it also provided a procedure for lodging of complaints and arbitration of objections of electoral results. The amendment would clarify what “any aspect of an election” meant: would enhance the powers of the Electoral Court in deciding on an objection, would clarify the powers of the Electoral Court and, most importantly, re-regulate the process to enhance the effectiveness and fairness.

Discussion
Mr Faber referred to the current situation for the counting of ballot papers. He noted that there were different regulations at different stations which caused confusion as to how the counting should be dealt with and that the whole process was extremely time consuming. He asked, in the light of the fact that South Africa already had bar-coded identity documents, why voting could not take place electronically.

Mr Hendrickse explained that the counting of ballot papers was regulated in the Regulations. He noted that the IEC was in the process of researching electronic voting and that a delegation was recently sent to India to look at their electronic voting machine. However, an electronic voting system had severe cost implications and the public would still need a lot of convincing before trusting an electronic voting machine. A further problem with these machines was that it was very difficult to maintain secrecy of the votes, because as soon as there was a paper trail, secrecy was compromised. As a result of such difficulties, the Constitutional Court of Germany has declared electronic voting machines unconstitutional.

Ms Boroto commented that the Committee welcomed an increase of the regulating of voting of large numbers, but asked whether there was no mathematical way of determining how many party agents had to be present in relation to the number of voters at a station. Secondly, she inquired who nominated independent candidates and whether the deposit that such candidates had to pay was the same as other candidates.

Mr Hendrickse answered that a maximum of 3200 voters at every voting station was catered for. Should there be more than 3200 voters at a station, the station would be split into sub stations. There was a presiding officer and a deputy presiding officer at each station. With regard to the question about independent candidates, Mr Hendrickse explained that such candidates were registered voters in the particular area, who were nominated by a registered voter in the area and whose application had to be accompanied by the names and signatures of at least 50 voters in the ward. The amount that needed to be paid in deposit varied in terms of different factors for example which type of municipality was involved and whether a party was involved. Independent candidates had to pay a deposit of R500.

Ms M Moshodi (ANC; Free State) asked why the requirement of a certified copy of a candidate’s identity document was being disposed of.

Mr Hendrickse explained that parties said that it was extremely difficult to always furnish certified copies as it would sometimes be decided at very short notice that a candidate would stand and depending on where the candidate found himself and when such decision was taken, they would often not be in a position to get the copies of their identity documents certified. Accordingly, this requirement often resulted in a situation where a party had to compromise on their choice of candidate. The reason the IEC needed copies of the identity documents of candidates, was purely administrative (for example to ensure correct spelling of names and correct identity numbers) and it made no difference whether the copy of the identity document was certified or not.

The Chairperson asked whether there was any consultation on the proposed amendments .

Mr Hendrickse answered that the IEC has consulted with the National Liaison Committee.

Mr De Bruyn then said that SALGA requested clarity on the election time of elected party members, in other words when an elected person’s period of office would commence.

Mr Hendrickse explained that this particular matter was regulated in the Municipal Structures Act which had a provision according to which a councillor took up office as soon as he had been elected. If more clarity was needed about that issue, the Minister of Cooperative Government must look into it and amend the Municipal Structures Act as is deemed necessary.

Ms Boroto asked with regard to special votes who it was that could apply for such a vote and how the procedure worked.

Mr Hendrickse explained that if a person was bedridden, for example, he or she could apply by proxy. The IEC would then check that the applicant was a registered voter and issue him or her with a receipt which indicated that the application for a special vote was granted. On the day prior to the voting day, the IEC would then visit the home of the applicant to enable him or her to cast the special vote.

Lastly, Mr De Bruyn asked when the Department will start with the new Act regulating Municipal and Provincial elections and that this process should start soon.

Mr Malusi Gigaba, the Deputy Minister of Home Affairs, answered that the matter was not under consideration yet.

The meeting was adjourned.