The Department of Home Affairs (DHA) briefed the Portfolio Committees on Home Affairs and International Relations on progress made with the implementation of the African Union (AU) Agenda 2063 as it related to migration, regional integration and African passports, in response on the issues raised at a seminar held on 14 November on the same topic.
The DHA said AU member states had adopted Agenda 2063 as a robust framework for addressing injustices caused by slavery, colonisation and apartheid, and the realisation of the Pan African vision of an “integrated, prosperous and peaceful Africa.” The Agenda underscored the importance of free movement of Africans in Africa for meaningful integration and increased trade. South Africa fully supported the vision of an Africa where its citizens could move more freely across national borders, where intra-Africa trade was encouraged and there was greater integration and development of the African continent. The current status was untenable. For instance, on average Africans needed visas to travel to 55% of other African countries.
South Africa’s support for the Agenda 2063 was informed by the understanding that South Africa’s destiny was intrinsically linked to that of the continent. Regional and continental integration were the foundations for Africa’s prosperity and security. South Africa fully supported the principles of free movement, including the need to for the AU to conclude a protocol to facilitate such a free movement. South Africa had recently adopted a new White Paper on International Migration which advocated an Afrocentric migration approach.
The DHA said there were a number of provisions in the AU Draft Protocol which presented a challenge not only for South Africa, but also other AU member states. South Africa’s concern with an African passport was that it had no legal instruments that gave rise to its issuance. There was also an AU draft African common position on the comprehensive Refugee Response Framework. In this respect, South Africa would argue for the adoption of a regional collaboration approach which would include burden sharing and the application of a first safe country principle. This would require harmonisation of policies and legislation. The DHA felt the principle of free movement seemed to disregard the sovereignty of states, and did not adhere to international protocols.
Members said it would be premature to implement the AU Protocol relating to free movement of persons prior to ensuring good governance, peace and security in Africa. They agreed with the DHA that the Protocol should be reviewed to meet international standards through the establishment of legal mechanisms that would regulate the granting of African passports. They were particularly concerned that SA’s current challenges of migrants and refugees entering through porous borders would be exacerbated. It did not want to allow free entry to people who might do harm to the country.
The Committee was told that for the Protocol to become effective, it had to be approved by Parliament. The Parliamentary process should be followed, including public consultation and the National Economic Development and Labour Council (Nedlac) process. These processes would be started in January 2018. The ratification would be dealt with in these processes. The deadline was December 2018, and the ratification would depend on how quickly the Parliamentary process would be undertaken. Although there was a deadline, there was no pressure on the state to sign and ratify the Protocol before such a date.
The Chairperson said this would be a joint meeting of the Committee on Home Affairs and Committee on International Relations, at which they would be briefed by the DHA and DIRCO on the progress made in the Implementation of the African Union Vision 2063 as it related to migration, regional integration and African passports, and a response to the issues raised at the seminar held on 14 November on the same topic. However, it had been difficult to get the hold of DIRCO to come and brief the meeting.
The Co-chairperson said that both Committees were scheduled to attend a seminar to discuss the phenomenon of international migration at the national and international level, and its impact on different countries. South Africa was not the only country that was flooded by migrants. Others included Uganda, Kenya and Botswana. Migration could result in statelessness and xenophobic attacks. In South Africa, migrants and nationals fight over scarce resources, jobs and houses. These two departments should tell us where they stood on these issues, and the committees would take the report to Parliament. The discussion was not just about the migration on the continent, but beyond it. When one looked at the AU Agenda 2063, one could see that all the countries of Africa needed to implement it. Some aspects were being implemented by regional organisations such as the Economic Community of West African States (ECOWAS) and the East African Community (EAC), and one should learn from them how they were being implemented. How should the Southern African Development Community (SADC) and South Africa would be implementing it, taking into account its sovereignty?
The Chairperson welcomed the Minister and her delegation.
Ms Ayanda Dlodlo, Minister of Home Affairs, said it was unfortunate that the DIRCO was not there, as they could have addressed their positions with one voice. She hoped that the DIRCO presentation would consolidate their position.
Migration, regional integration and African passport: DHA briefing
Mr Jackson McKay, Acting Director General: DHA, briefed the Committee on South Africa’s position on the implementation of the African Union (AU) Agenda 2063 as it related to migration, regional integration and an Africa passport.
He said that in September 2015, the AU member states had adopted Agenda 2063 as a robust framework for addressing the injustices caused by slavery, colonialism and apartheid, and the realisation of the Pan African vision of an “Integrated, prosperous and peaceful Africa.”
The founding policy framework for the AU Agenda 2063 was the Abuja Treaty of 1991. In 1980, the Organisation of African Unity (OAU) extraordinary summit had adopted the Lagos Plan of Action as a major step towards the goal of regional integration. The commitments in this Plan and the Final Act of Lagos had been translated into concrete form in Abuja, Nigeria, in June 1991 when the OAU Heads of State and Governments had signed the Treaty establishing the African Economic Community (AEC). The aim of the AEC was to promote economic, social and cultural development, as well as African economic integration.
The AU Agenda 2063 had underscored the importance of free movement of Africans in Africa for meaningful integration and increased trade. South Africa fully supported the vision of an Africa where its citizens could move more freely across national borders, where intra-Africa trade was encouraged and there was greater integration and development of the African continent. The current status was untenable. For instance, on average Africans needed visas to travel to 55% of other African countries. They could get visa on arrival in only 25% of other African countries.
The Agenda 2063 had seven overarching aspirations, and one of them was “an integrated continent, politically united, based on the ideals of Pan-Africanism and the vision of Africa’s Renaissance.” The clauses that unpacked this aspiration mentioned free movement twice, locating it at the heart of political and economic regional integration.
Mr McKay said that South Africa’s support for the Agenda 2063 was informed by the understanding that South Africa’s destiny was intrinsically linked to that of the continent. Regional and continental integration were the foundation for Africa’s prosperity and security. South Africa fully supported the principle of free movement, including the need for the AU to conclude a protocol to facilitate such free movement. South Africa had recently adopted a new White Paper on international migration which advocated an Afrocentric migration approach.
Mr McKay also noted that there was AU Protocol Relating to Free Movement of Persons. It was a Protocol to the Treaty establishing EAC. The Protocol was aimed at facilitating the free movement of persons in Africa, as well as the rights of African citizens to the right of establishing and right of residence anywhere on the continent. He further noted the SADC common position was to develop a draft Protocol, which would focus a great deal on the pre-conditions that were necessary if the AU Draft Protocol was to be successfully implemented.
There were issues of concern arising from implementation of the AU Draft Protocol. There were a number of provisions which presented a challenge for not only South Africa, but also other AU member states. With regard to passports, South Africa’s concerns were that it had no legal instruments that would give rise to its issuance. The Protocol mentioned the African passports, but it could not be legal basis for its issuance by member states. There was also an AU Draft African common position on the comprehensive Refugee Response Framework. In this respect, South Africa would argue for the adoption of a regional collaboration approach, which would include burden sharing and the application of a first safe country principle. This would require harmonisation of policies and legislation. He remarked that the principle of free movement seemed to disregard the sovereignty of states, and did not adhere to international protocols.
The Chairperson asked what the areas were where the DHA had different views, and what were they proposing? When they think the opportunity would arise to discuss the mechanisms to regulate the passport?
The Co-Chairperson thanked the DHA for its comprehensive brief, and remarked that they had shed more light on the position of South Africa on the AU vision.
Ms T Kenye (ANC) said there was a need for a legal instrument that regulated African passports and the granting of visas. She raised concerns over international migration in South Africa. South Africa had a problem of foreign nationals who overstayed and others were being rejected by their own country because those countries could not identify them as their citizens. These were countries which did not have a population register. She asked what happened to those foreign nationals who were rejected by their home countries. Were they integrated into the community? She said the main objective of the Agenda 2063 was to have a united Africa and to integrate economies regionally and continentally. She was concerned about the “Fifth Aspiration,” which stated that its people wanted an Africa with a strong cultural identity, common heritage, values and ethics. She asked whether this aspiration would be achieved, given that in South Africa they were experiencing cultural problems. What would happen if all African cultures were brought together? How would this work? With regard to the first and second aspirations, she asked how these two aspirations would be implemented with a view to facilitating free movement.
Mr M Hoosen (DA) remarked that it looked like South Africa highly disagreed with the AU Vision, and that its implementation would not occur in our lifetime. He asked what the pre-conditions would be to implement the AU Vision, and how long it would take to agree on these pre-conditions at the regional and continental level. He was of the view that the implementation would require a range of revisions to existing laws in order to bring the Vision into effect. SA had been challenged by managing migration due to financial constraints. It had a high volume of immigration because it had no effective mechanisms in place. How long would it take SA to have an effective immigration mechanism so that the country could embark on implementing the free movement principle?
Ms N Dambuza (ANC) said the presentation had responded to the previous seminar, at which they had various concerns, and she thus felt a bit more comfortable. She asked what other areas had to be reviewed for the AU Agenda 2063 and African Passport to be implemented. She concurred with other colleagues that South Africa was not going to be ready by 2018 to implement the Africa Passport. Rather, she would like to know what the priorities would be in implementing the free movement principle. She asked whether the issues of good governance in the countries had been assessed and looked at thoroughly. Was the Department discussing these matters with other countries? Were other African economies people-driven? How did other countries take this forward through peoples’ participation?
Ms D Raphuti (ANC) commented that the presentation had provided more light on the position of South Africa. The AU Agenda 2063 had been started by bold words – the Africa we want. The silent question was whether this vision was realistic. It was very inspiring and motivating, but there were a number of issues that needed to be reviewed for its implementation. More importantly, priority should be given to having a peaceful Africa prior to thinking about free movement or having an African passport. One should think about not selling guns in Africa prior to thinking about the free movement of people. She had heard the DHA stating that when they went to a meeting, few countries -- Nigeria, Kenya and Egypt -- understood South Africa’s concerns with regard to an African passport. If the resolutions to implement the AU Agenda 2063 were to be taken through voting, South Africa would lose, as other countries were not buying its concerns. How could the free movement be implemented when there were irresponsible leaders?
Mr A Figlan (DA) remarked that while he was sitting there in Parliament and discussing free movement, some foreigners were practising it -- they were entering South Africa illegally through porous borders. They were crossing illegally. People from neighbouring countries, especially Lesotho, were crossing into South Africa to take advantage of the health care and education system. In some African countries, there were civil wars. They were fighting. The main reason of international migration was insecurity . He was concerned about the issue of free movement.
The Co-chairperson concurred with Mr Figlan. He said that the movement of people had been taking place for centuries. At South African borders, some people from neighbouring countries were crossing to visit their families, and some of them were taking advantage of South African education. The main concern was that there were people who crossed the borders to do other illegal things. He asked whether the right of free movement should override the rights of citizens. South Africa, and Africa at large, should learn from the evolution of integration of the European Union (EU) and draw a lesson from it. The integration took many years. In Africa, there were civil wars and political strife, so how did one deal with these problems? A lot of migration in Africa was due to political instability. Agenda 2063 stated that there should be African Passport. His question was, which authority would issue it? It could not be issued by one country and apply to all African countries.
The Chairperson remarked that the DHA was a department that dealt with many people, including the dead and the survivors. He was concerned with a high number of migrants that were in South Africa and the impact free movement would have on the existing problem.
Ms Dambuza, referring to the assessment of the capacity of the states to implement the AU Agenda 2063, asked whether this report had been completed. It was very important to know if other counties would be able to implement the Vision.
The Minister said that issues being raised by Members showed that free movement was a real and serious concern. There should be an integrated approach to deal with immigration at the continental level. She said that there were different types of systems for managing people applied by countries. The DHA would do what it could to preserve the identity of individuals. Identification of individuals as citizens of a particular country was problematic. Without information on the people, it would be difficult to arrest and return illegal migrants. This matter ought to be taken into consideration.
Mr L Mpumlwana (ANC) remarked that it was very difficult to implement certain Protocols. All these Visions and Protocols revolved around the stomach. There were nations that had been created by colonists, and now there was a competition locally where people were very poor or without natural resources. The competition was about the utilisation of resources. All problems such as civil wars were about getting hold on resources. In this regard, regional bodies such as SADC and ECOWAS had been established in order to find a way of sharing materials and resources. There were other countries that were over populated, like Nigeria. Others did not have natural resources. The free movement was about getting hold of the resources of other nations.
Mr M Maila (ANC) asked how the Protocol on Free Movement would be implemented if it was ratified by South Africa. Would it mean that all people would be allowed to come into SA? Was there any possibility that South Africa might pull out if the Protocol was found to be problematic to South Africa? Would the right of free movement affect the right to vote if migrants were to be allowed to enter, reside and establish in South Africa?
The Chairperson asked, if the Protocol was ratified, what the position of the principle of reciprocity would be. Had the Protocol been taken through National Economic Development and Labour Council (Nedlac) processes? Would ratification be enough, or should there be legislation giving effect to it? If the Protocol was implemented, it would find the existing problems of refugees and asylum-seekers and those individuals who were rejected by their home country. If it came into effect, was the status of refugees, asylum-seekers and economic migrants going to change, as they would be covered by the Protocol? If member states ratified the Protocol, what happened to citizens who were outside Africa and what would happen to those individuals in African countries who were not residing in their home countries?
Mr McKay responded that the draft implementation roadmap for the draft Protocol to the treaty establishing the African Economic Opportunity relating to the Free Movement of Persons, Right of Residence and Right of Establishment, talked about the African Passport. The roadmap stated that by June 2018, there should be operating African passports and that the issuance of passports should start with the harmonisation of the Protocol with national laws. The main question was whether the timeframe was achievable. There was a big push from other regions that South Africa should implement the African Passport, but South Africa had set the pre-conditions that should be met by other countries prior to its implementation.
He said that althe Members’l questions were interrelated. He would therefore give a general response. It was important to state that the Protocol on Free Movement did not require states to open their borders, per se. Rather, it meant that citizens of other countries should enter other countries with fewer immigration restrictions. It sought to promote tourism. In this regard, a person could come into a country for 30 days without a visa. The free movement was tourism-oriented, and this approach existed in the SADC context. However, because the borders should be managed, the Border Management Authority (BMA) would not be affected.
The right of residence was another issue. This allowed foreign nationals to have a residence in the country. This was not something new, given that South Africa allowed foreign nationals to stay and reside in the country through the grant of business, study or work permits, for example. When the DHA went to international bodies or international platforms, it was surprised to find these bodies talking about issues that South Africa was already applying. They talked about the right of residence, because other countries were not constitutionally progressive and, as a result, were not doing the same thing. SA’s immigration policies were advanced and in compliance with international instruments.
The right to establishment meant that migrants should come and be allowed to open business in the country. South Africa was already doing this. In other African countries, this was not possible. If one looked at the Protocol, one would find that South Africa was ahead of other countries because various principles contained in the Protocol were applied by South Africa.
Mr McKay said that he had noted that South Africa supported the Protocol, and not the DHA. The Protocol had been taken to the Cabinet for consideration. Despite that, South Africa was among countries that had negotiated the Protocol. However, for the Protocol to become effective required the process of adoption of law. It ought to be approved by Parliament. The Parliamentary process should be followed, including public consultation and the Nedlac process. These processes would be started in January 2018. The ratification would be dealt with in these processes, and all of the Members’ questions could be saved to be asked during the tabling of legislation.
The questions on free movement and individual’s rights could not override the country’s right to sovereignty. This would not be possible. An individual right could not override the right of a sovereign nation to protect its territorial integrity. The Protocol talked about how certain (interpretational) disputes should be resolved. On top of this, there was a provision in the Protocol that allowed a country to divorce or to withdraw from the Protocol in case the country found the implementation of the Protocol to be a burden on it. A country could withdraw from the Protocol or could reserve its right with regard to certain provisions of the Protocol.
On the question of which country would issue the African Passport, Mr McKay said that the passports were to be issued by any member of the AU. He was of the view that there should be a single authority issuing African passports. If one already had a country such as South Africa, where they are perceptions that the flow of immigration is out of control, where borders are porous, and where the department has no financial means to manage the immigration, then free movement becomes a problem. The DHA should find a way on how to implement the Protocol, taking into consideration existing immigration problems.
The Protocol touched on the issues of good governance, peace and security at the continental level. These aspects were some of conditions to be met for its effective implementation. South Africa did not have conditions on entry other than the existing one that no one could be allowed entry into the country if he or she posed a risk to South Africa. In the face of Protocol, SA’s national laws would still apply. The issue of guns were not only critical to free movement, but also to economic development. Security was a prerequisite.
For its adoption, the Protocol would have to go through a public participation process and if the people said no to the Protocol, then it would not be implemented. The Protocol was not yet ratified by South Africa. There was also the same Protocol in the SADC which had been ratified by seven countries so far, and was being implemented by South Africa. Whether there was a free movement or not, SA was facing challenges in the control and management of immigration. The Protocol would only apply to the countries which ratified it.
Ms Kenye, referring to the issue of ratification, asked whether December 2018 was the deadline for ratification.
Ms Dambuza made a follow up on the capacity assessment of the African states to implement the Protocol.
Mr McKay said that South Africa did not know yet how to deal with African citizens carrying an African passport. There was no legal foundation for granting the passports and hard questions would continue to be asked at the AU platform. The main challenge was that the ECOWAS and the EAC were saying that they had started implementing the African passports. When South Africa raised its concerns relating to such implementation, South Africa was supported by the Nigeria, Egypt and Kenya, and some other countries found South Africa’s arguments to be valid and legitimate. South Africa had to consider the Protocol as a nation, on whether the Protocol should be ratified and adopted.
The deadline was December 2018 and the ratification would depend on how quickly the Parliamentary process would be undertaken. Although there was a deadline, there was no pressure on the state to sign and ratify the Protocol before such a date. There was no report on the capacity assessment of the states to implement the Protocol.
The Co-chairperson said that the DIRCO should be invited to brief the two Committees at a joint meeting, and that the DHA should brief the Committee on International Relations on the White Paper on International Migration. There should be a presentation on the protection of national interests.
Mr Raphuti said that the Department of Police and of Constitutional Development should be invited to brief these two committees at a joint meeting on the impact of international migration.
Members of the Committee on International Relations were excused, so the Committee on Home Affairs could proceed and deal with its own matters.
Refugees Amendment Bill 2016
The Chairperson said that the Refugees Amendment Bill would be returned from the National Council of Provinces (NCOP) to the Committee for consideration. The Bill would not be debated again, but the Committee would consider the proposals of the NCOP.
The Members agreed.
The meeting was adjourned.
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