The Institute for Security Studies (ISS) briefed the Select Committee on the Border Management Authority Bill. Its report focused on the definition of border area, the securitisation of border zones, the institutional positioning of the authority and need for effective oversight and accountability, the role of other government departments and reporting lines, and regional harmonisation of border management..
The comments and inputs in the submission included the need for clarity on various issues, like the actual extent of the zone in which Border Management Authority (BMA) would operate, overlapping functions of the BMA and other government offices and agencies, and the roles of the Commissioner and Deputy Commissioner.
The legal team comprising of officials from the Department of Home Affairs clarified the issues raised by the ISS. They reminded the Committee that this Bill was framework legislation -- operational issues were dealt with in regulation, and only substantive issues were dealt with within a Bill. A proclamation was already mentioned in the Bill regarding the coordination and integration of various departments of the government for the operations of the BMA. A Memorandum of Understanding would also be signed with each department for additional clarity.
The BMA said that they had looked at the Southern African Development Community (SADC) guidelines and, in their view, the fundamental difference was that SADC talked about coordinated border management, whereas in South Africa a new policy paradigm had been adopted called integrated border management. The one that they had proposed had single command and control -- it was a single organ of state which integrates all the functions of border law enforcement.
Regarding the detention of people according to Section 21 (1) of the Bill, the legal team gave an assurance that no person would be arrested or detained without a warrant. Besides, the BMA was still tied to the constitution, so the rights of an accused person would be taken care of.
The Chairperson emphasised that the Border Management Authority (BMA) Bill was very important, as it pertained to the security of the country. There were many people in the country that were not accounted for, which might be a threat to a country.
Institute for Security Studies (ISS):Briefing
Ms Aimée-Nöel Mbiyozo, Representative: Institute for Security Studies (ISS), said the goal of ISS was to enhance human security as a means to achieve sustainable peace and prosperity.
The report focused on five key aspects:
- Definition of the border area;
- Securitisation of border zones;
- Institutional positioning of the Authority, and the need for effective oversight and accountability
- The role of other government departments and reporting lines – most notably, the South African Revenue Service (SARS) and the police;
- Regional harmonisation of border management, with the possible utility of South African Development Community (SADC) guidelines.
This list was not exhaustive, and ISS had reviewed previous submissions made on the BMA Bill by civil society organisations, members of the public and government departments. The ISS submissions served to buttress some of the arguments raised.
The comments and inputs in the submission included the need for clarity on the actual extent of the zone in which Border Management Authority (BMA) would operate. If 10 km was discussed and finalised as the demarcated zone, then the clause “or any reasonable distance” should be removed from the definition of border enforcement area in Section 1 (1)(a) and (b).
Clarity was required on the form and function of the authority in terms of the securitisation of border zones. What was meant and understood by the BMA being part of the “armed services” in Section 4 (1) of the bill? Also, Section 4 (2) restricted border law enforcement functions exclusively to the BMA. This must be regulated, as it overlapped with other law enforcement entities, to perform functions that fell within their mandate.
Elaboration on how the roles of the Commissioner and Deputy Commissioners would relate to their services in the South African Police Service (SAPS) was needed. Was the level of BMA Commissioner the same as the National Police Commissioner? If not, at what level would the BMA Commissioner be ranked? Also, the section must clarify that at the time of appointment, the person must be a commissioned officer.
She emphasised the need to clearly define the roles of government departments, authorities and services to codify coordination. The Bill did not seem to expound on them clearly -- for example, the roles of the Departments of Agriculture, Forestry and Fisheries (DAFF), Health and Trade and Industry (DTI), among others, in respect of border law enforcement -- were not mentioned at all. Other examples included clear demarcation in terms of revenue collection between the BMA and SARS, the intersection of roles between the BMA and SAPS, and the position of BMA officers in relation to the enforcement of laws such as the Immigration Act and the Refugee Act, as amended.
Some issues for consideration for regional harmonisation of border management included distinctions between intra-authority cooperation (cooperation within the BMA across all border areas); intra-authority cooperation (cooperation and coordination between offices of the different agencies at the border); and international cooperation (with neighbouring states, Interpol etc) as this was not provided for in the BMA at all. There should also be the inclusion of procedures for cooperation, as well as mechanisms of communication and information exchange. Clarity was required on whether the BMA would operate with the existing infrastructure, or whether additional facilities for the exclusive use of the BMA were envisaged.
The Chairperson remarked that majority of the issues mentioned in the presentation had been dealt with in the previous meetings, and by the time they would be finalising, all the suggestions would be included in the Dill.
Mr Deon Erasmus, Legal Advisor: Department of Home Affairs, said that they had noted all the comments and next week they would come back with more details. Regarding the issues pertaining to coordination, the implementation protocols, etc, he cited clauses 24, 25, 26 and 27 which dealt with the inter-ministerial consultative committee ,wherein ministers engaged with each other on matters of mutual interest, which was included in the Bill.
Regarding the lack of operational clarity, he reminded the meeting that this Bill was framework legislation. Operational issues were dealt with in regulations, and only substantive issues were dealt within a Bill.
There would be some functions that took precedence over others. However, some functions would be dealt in a concurrent manner. For example, immigration would be dealt with at the border law enforcement area by the BMA, but also by immigration offices inland. Implementation protocols were provided in the bill, and they would be concluded between 11 government departments. Details of concurrent jurisdiction and coordination protocols were provided in the Bill, details of which would be given next week.
Ms Yolande van Aswegan, State Law Advisor, clarified that along with a proclamation already mentioned in the Bill, there would also be a Memorandum of Understanding, which was known as the implementation protocol between the BMA and all the departments and different agencies that operated in the area.
The Bill established the BMA as an armed service. This might seem to contradict the constitution with regards to identifying the SAPS as the single organisation responsible for doing that job. However, there was a provision in national legislation to establish another armed service which operated or existed apart from the SAPS. This would also be subjected to Parliamentary oversight, because the Minister must submit an annual report to Parliament.
She clarified that the BMA Commissioner was not the same as the National Commissioner, who was appointed in terms of the constitution. This commissioner was appointed by the BMA board, so one could not say that this commissioner would be at the same level as National Commissioner. Remuneration of this commissioner would have to be decided after consultation with the Minister of Finance.
She emphasised that the Bill did provide provisions for an integrated approach, thereby resolving queries relating to coordination and concurrence.
Mr E Africa, BMA Project Manager, said that the Authority had looked at the SADC guidelines and, in its view, the fundamental difference was that SADC talked about coordinated border management whereas in South Africa, a new policy paradigm had been adopted called integrated border management. The one that it had proposed had single command and control -- it was a single organ of state which integrated all the functions of border law enforcement. There was no other place in the entire continent with a similar system, so it was a first of its kind.
Regarding the 10 km radius, it was already there in SAPS and defence legislation, and was not something new.
He agreed with Mr Erasmus and Ms Van Aswegan regarding the status of the commissioner. He added that the BMA would go through a job evaluation process in the government. It was a very scientific process which would determine the exact level of this commissioner.
Mr M Khawula (IFP) (KwaZulu-Natal) asked for an explanation of the words in the presentation regarding Section 21 (1) of the bill: “To avoid the possibility of abuse in respect of places of detention, arrested people should be detained only at stations under the control of the SAPS.” He specifically wanted to know what the word “abuse” meant in this context. Who were these commissioned officers? What were their qualifications?
The Chairperson emphasised that in previous sessions, the Committee had urged the government to look into a few issues with a lot of consideration, and to change them in the Bill. For instance, with the revenue collection, the use of the word ‘exclusive’ in the security role of the BMA interfered with the constitutional role of other organisations, such as the SAPS.
Ms Mbiyozo replied that the word “abuse” in Section 21 (1) referred to the lack of clarity on the authority that could, for instance, chain people like refugees in detention centres before handing them over to SAPS. Those concerns were combined with where people would be detained at borders, under whose authority, and for how long. There were international examples where such detentions had led to quite a lot of protests.
However, Mr Erasmus clarified that there would always be a warrant for a person arrested under Section 21 (1), which would indicate why that person had been arrested. He understood where the ISS was coming from, but there were checks and balances in place. A warrant could not be issued randomly -- it was sanctioned by a high authority after due diligence and review.
Ms Van Aswegan added that everything that happened under Section 21 (1) was still subject to the constitution, and this implied that the rights of the accused person would be taken care of.
Mr Africa said that members of the BMA were divided into two categories. First were the officers, who worked at the frontline. In other words, they would work at the ports of entry, at the borders. The second category in the Bill were the ones who were simply staff. They were not officers, but were the people handling corporate services, information technology (IT), finances etc.
As far as the commissioners were concerned, the BMA had discussed and taken inputs from the SAPS and South African Defence Force. Commissioned officers existed in the defence and police forces, so it was not a new concept. It was all about seniority. The commissioned officer had a special status in the law enforcement body. Such a person was very important for the command and control of officers. It helped to deal with issues of hierarchy and with the management of a new policy paradigm. The submission, however, would provide more background and details on the matter.
The Chairperson appreciated the inputs and announced that the intention of the Committee was to finalise the Bill by next week. It was important that the matters discussed were incorporated in the Bill.
Adoption of minutes
The minutes of 27 March were approved with no major changes.
The meeting was adjourned.
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