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HOME AFFAIRS PORTFOLIO COMMITTEE
30 October 2000
COMMITTEE REPORT ON WHITE PAPER ON INTERNATIONAL MIGRATION
Chairperson : Mr A Mokoena
Relevant Documents :
Penultimate Report on the White Paper on International Migration
Response of Inkatha Freedom Party to the Penultimate Report (See Appendix 1)
UDM comments on the Penultimate Report (See Appendix 2)
Democratic Alliance draft response to the Penultimate Report (See Appendix 3)
Letter from Mario Ambrosini to Mr Mokoena (See Appendix 4)
Critique of the DA response to the Penultimate Report (See Appendix 5)
Critique of the IFP response to the Penultimate Report (See Appendix 6)
Critique of the UDM response to the Penultimate Report (See Appendix 7)
The Chairperson critiqued the written responses of the IFP,UDM and Democratic Alliance to the Penultimate Report on the White Paper on International Migration. The Chairperson expressed the view that it was not only the function of the Portfolio Committee to pass legislation but it also had to be mindful of the constitutionality of the procedures being employed in the process of passing legislation. He believed that the Department had completely ignored the parliamentary committee in the various stages of policy and legislation formulation.
The committee discussed the letter from the Special Advisor to the Minister requesting removal of criticisms levelled against him in the Penultimate Report which he regards as defamatory.
The ability of a Portfolio Committee to summons the head of a department (rather than the Minister) to appear before a parliamentary committee was confirmed in a letter from the Public Service Commission. This is pursuant to the refusal by the Home Affairs Minister for the Director General to appear before the Home Affairs Portfolio Committee.
Committee’s Penultimate Report on International Migration White Paper
The Chairperson gave a personal critique of the written responses of the IFP, UDM and Democratic Alliance to the Penultimate Report.
Chairperson’s Critique of the IFP response
The Chairperson complained that the IFP did not recognise the constitutional role of this parliamentary committee. He referred the members to the second page of the IFP document, which states that ‘the Minister approached the Committee to request its inputs along with all other public inputs.’ He described this as an erosion of democracy as the Committee simply had to queue up with the rest of the public to give its input. He stated that this clearly violated the principle that the Committee serve as overseers. Reducing the committee’s powers to this level made it very difficult for the Committee to uphold the Constitution. He stated that the oversight role of Parliament cannot be taken away by the Minister. Infringing on the separation of powers amounted to a violation of the Constitution. He also criticised the fact that parliamentary involvement of the Portfolio Committee was described as an abuse of power. He described their document as being defensive as it focussed on defending the Minister who was IFP. Minister Buthelezi should not be viewed as an IFP Minister but as a Minister representing the country.
Ms Van Wyk (UDM) interrupted by saying that the critique of the response was prepared by the chairperson and not by the committee. She stated that it was more important that members gave their input instead of just being presented with a one-sided opinion by the chairperson.
The Chair responded that he was merely outlining his viewpoint and that the members would be making the actual decisions.
Chairperson’s Critique of the UDM response
He described the UDM response as being very superficial and stated that it was clear that they still do not know what the issues are.
Ms Van Wyk interjected that these were the Chair’s personal opinions and asked why only he was being given the opportunity to give an opinion.
The Chair said that they would receive the opportunity once he had finished. He continued with his critique, pointing out that the UDM’s submission that the head of state be called in to intervene in order for the process to move forward , was outrageous as the issue involved parliamentary procedure.
Ms Van Wyk interjected that she had not asked for the President to intervene and requested that the Chair reflect her document correctly.
The Chair agreed and apologised stating that he had mixed up her conclusions with that of the Democratic Alliance. The Chair noted that he had asked for responses on the 20th already and had been informed that there were no responses by that date. Only subsequently had the responses started to trickle in. He then admitted that his critique was subjective but stated that members now had the opportunity to give their opinions.
No further discussion took place.
Powers and Duties of a Director General
The Chairperson had requested that the Public Service Commission clarify the Powers and Duties of a Director General and whether a head of a department is accountable to Parliament and can be summonsed by a parliamentary committee to give evidence before it. Prof Sangweni confirmed that this is so in accordance with Rule 138(a) of the National Assembly Rules.
The Chair explained the context in which the duties of the Director General of the Department was being discussed. He stated that he had wanted to call the DG to address the Committee but had been prevented by the Minister from doing so. The Minister said that it was unnecessary to call the DG as he could answer any questions the committee had. The Chair asserted that this amounted to an infringement of their rights and a violation of the principle of separation of powers.
The Chair stated that he had asked the Constitutional Court to send a judge to explain the duties of the Committee. Their response was that he should approach the Parliamentary law advisors to deal with the issue pertaining to the powers and duties of the legislature versus the executive.
He continued that the IFP document had listed 17 stages of policy formulation that the Department had followed but had completely failed to mention the role of the Committee. It appeared as if the Department had done everything and there was now no need for the Committee to do anything.
Letter from Special Advisor to the Minister, Mr Ambrosini
The Chair referred to this document and explained that as a result of his criticisms of Mr Ambrosini in the Penultimate Report, the latter had now threatened to institute legal action against him. Mr Ambrosini felt that his job was being threatened as a result of Mr Makoena’s criticisms.
Prince Zulu (IFP) noted that they were now 45 minutes into the meeting and that nothing had been discussed except the Chair’s personal opinions. He asked when the parties who had made submissions would be allowed to read out their own responses.
The Chair responded that the members would receive the opportunity to respond on Wednesday, 1 November 2000.
Prince Zulu enquired whether Mr Mokoena was signing letters on behalf of the Committee or on his own behalf. He referred to the letter addressed to Mr Ambrosini in which the Chairperson had started using the word ‘I’ but had then later switched to the plural ‘we’ as if he was speaking on behalf of the Committee. Prince Zulu asked that the Chair state clearly in which capacity he is acting (especially since this letter had never been discussed with the Committee)
The Chair conceded that Prince Zulu was correct in his observation but stated that he had not meant to imply that he was speaking on behalf of the Committee. He explained that his tendency to use the word ‘we’ was merely a habit. He stated that he would proceed in this matter in his personal capacity if the Committee did not support him.
Ms Van Wyk asked how they would take the process further. She stated that the Penultimate Report needs to be finalised and the Chair’s comments were not taking the matter any further. She recommended that the Committee go through the Report page by page.
The Chairperson agreed that this would have been ideal but that time did not allow for it. He stated that it could be dealt with in this way on Wednesday. He pointed out that the way the parties had responded had made such an approach difficult. For example, the UDM had only responded to certain paragraphs while he would have preferred that it had been dealt with on a point by point basis.
He gave credit to the IFP and the way in which they had dealt with the document but stated that he could not accept it without criticising it. He stated that despite his criticisms, the document would accompany the main report when it is presented to Cabinet. He stated that the possibility then exists that Cabinet will accept points raised by the Minority and reject those of the Majority report.
Recording of Committee Meetings
Mr Kalako (ANC) then brought it to the attention of the committee that the meeting was being recorded [by a member of the public] and asked whether this was allowed.
The Committee secretary explained that this usually only took place at the request of the committee.
The Chairperson stated that one could not record members without their permission and that Mr Ambrosini (who had at this stage joined the meeting) was thus not allowed to record the proceedings without the knowledge of the members. It was unclear whether the Chair knew for a fact that the tape recorder belonged to Mr Ambrosini.
Another member observed that Mr Ambrosini’s cell phone was on and said that this should not be allowed as anyone could be listening in on the proceedings.
Mr M Waters (DP) commented that this discussion indicated how relationships had deteriorated. He could not see how the recording was a problem as these meetings were open to the public in any case.
The Chair responded that it was relevant since Mr Ambrosini was threatening to institute legal action against Parliament.
Mr Waters responded that the tape would have no value in court since it had been obtained without the prior knowledge or consent of the Committee.
The Chair then ordered the person to switch off the tape recorder. Mr Kalako felt that the tape should be confiscated but the Chair disagreed.
Mr Waters requested that Wednesday’s proceedings be recorded as it would serve to cover everyone’s backs which is necessary when dealing with sensitive issues such as the one facing the Committee.
A decision about recording the meeting will be taken on Wednesday.
Penultimate Report on International Migration White Paper (continued)
Prince Zulu asked whether the Penultimate Report was an ANC report.
The Chair replied that he had stated this at the beginning and that this was the reason that they had invited the minority parties to respond. He said that members are faced with a radical piece of legislation and that it was not only their duty to see that legislation gets passed but also to ensure that proper procedure is followed. It is for this reason that their oversight duty becomes important as the Committee is the eyes and ears of Parliament.
Chairperson’s Critique of the Democratic Alliance response
The Chair stated that there is no such thing as a Democratic Alliance party in Parliament and instructed the parties involved [Democratic Party and the New National Party] not to submit a document as such.
He objected to their statement that the process had been reduced to political mudslinging and likened this to the view of the Minister that the Committee should not exercise an oversight duty. He described their suggestion that the President be ‘dragged in ‘ as a joke. He responded to their comment that the public is waiting by saying that this did not mean that they were exempt from applying their minds properly.
In response to the statement by the Chair that there are ten stages in the legislative process, Mr Waters argued that this was not the case and that there is in fact no such thing in law.
The Chair responded that even though it was not always adhered to, one cannot deny that these stages do exist.
Mr Waters said that if all Committees had to adhere to ten stages, they should do so even when dealing with an ANC minister.
The meeting was adjourned until 2 November 2000.
RESPONSE OF THE INKATHA FREEDOM PARTY TO THE "PENULTIMATE REPORT ON THE WHITE PAPER ON INTERNATIONAL MIGRATION IN RESPECT OF PUBLIC HEARINGS CONDUCTED BY THE PORTFOLIO COMMITTEE ON HOME AFFAIRS
Cape Town: October 20, 2000
This document comments on the above-captioned report ["the report"] released in Cape Town on October 11, 2000 for deliberation by the Portfolio Committee on Home Affairs ["the Committee"].
At the outset, it must be stated that the report is so constructed as to support the conclusion that the White Paper on International Migration is flawed and the process of policy formulation needs to begin again from scratch. The Chairman of the Committee proposed this conclusion even before hearings were held and the report gives the impression of being completely directed towards and instrumental to finding reasons and justifications to support this conclusion. One cannot find other ways to explain the many distortions, inaccuracies, irrational statements and factual errors with which the report is punctuated throughout. After reading the report, one does not identify a clear reason to support the statement that the White Paper is flawed.
The contents of the report often have little to do with an objective analysis of the issues of migration control raised and addressed in the White Paper. The report is burdened with chapters designed to conduct unwarranted and often preposterous political attacks and puts forward bizarre notions about policy making, legislative process and the role of the Committee, all of which should be expunged from the report to give it some degree of credibility. As it stands, the report is a disgrace to our parliamentary institutions and the quality of their documentation. Furthermore, the report completely ignores the preliminary comments offered by the Department of Home Affairs ["the Department"] in a detailed written submission presented when the antecedent of this report was tabled in the Committee. This highlights the report's intention of pursuing its thesis, irrespective of arguments and facts to the contrary.
It is true that the Committee has the responsibility of supervising the activities of the Department, including its processes of policy formulation and legislative drafting. However, the Committee is under the obligation of discharging this responsibility rationally and in good faith. Like in respect of any other organ of the State, the discharging of a responsibility for purposes other than those for which it was granted, and in an irrational, biased or tendentious manner, constitutes an abuse of power. As it will appear from the contents of these comments the distortions contained in the report would constitute an abuse of power if the Committee were to adopt it.
It is irrational for the Committee to have stubbornly proceeded to consider the White Paper without, and outside the parameters of, its implementing draft legislation. This has resulted in dialogue and discussions being held on erroneous assumptions and general statements intended only to offer a basis for the formulation of actual legislative options. A policy document creates a mere framework which can only be understood in detail if read against the chosen legislative options. Instead of matching the general statements of the White Paper with general comments or criticisms, the submissions discussed in the report raise issues of detail which have been addressed in the draft legislation, or are the product of erroneous assumptions on how the White Paper could be implemented through legislation.
The conduct of the Committee is even more peculiar in light of the White Paper not yet having been formally tabled with it. The White Paper was adopted by Cabinet on March 31,1999 and published the day after. Thereafter, the Department solicited comments to direct its drafting of the legislation to give substance to the White Paper. Within this context, the Department and the Minister approached the Committee to request its inputs along with all other public inputs. The Minister indicated that the matter was urgent and that it was his intention to finalise draft legislation for public comments by the end of 1999.
A draft Immigration Bill ["the Bill"] was finally published on February 15, 2000 and reflected the many inputs and comments received by the public. However, by that time, the Committee had made no comments nor started its public hearings. It would stand to reason that the public hearings should have concentrated both on the White Paper and the draft Bill. After its publication, the draft Bill received a vast number of comments which led to its reformulation in many substantive aspects, leading to a consultative conference held on July 6 and 7, 2000.
Throughout the history of the new South Africa, policy papers have been considered by portfolio committees together with draft legislation in different forms, including Bills already adopted by Cabinet or draft documents produced by the relevant departments for purposes of consultation or public comments. There are even cases in which the policy document reached Parliament after the relevant portfolio committee began deliberations on the Bill. The constitutional task of Parliament is that of processing legislation, and portfolio committees are required to focus their attention on Bills. Policy documents are aimed at the formulation of legislation and they should not be read in abstract.
The Committee is only now beginning to finalise its deliberations on the White Paper, 19 months after its adoption by Cabinet. Immediately after its adoption by Cabinet, the Department began the process of drafting what is universally recognised as urgent legislation. It would have been impossible and totally against the interests of the country for the Department, to wait until this time, or perhaps the end of this year, before beginning the process of drafting legislation, which in itself took from November 1999 to August 2000. This would have meant a further delay of almost two years in providing needed solutions which can no longer wait. The report indicates that there is no reason for such a dramatic delay, for it fails to articulate any intelligible criticism of substance to the direction taken by the White Paper and its draft Bill. Its only thesis is that the process must start again, to which end a variety of pretexts which do not survive critical scrutiny are employed.
Therefore, paragraph 1.4 remains unintelligible as it purports that the report is the "synthesis" between the White Paper posed as a "thesis" and the public hearings posed as an "antithesis". In fact, as pointed out in the attached comments of the Department, the summary of the public inputs and feedbacks do not match the issues at hand, nor the proposals of the White Paper and its implementing legislation, and therefore are not their "antithesis". Moreover, the "proposals" contained in the report are unrelated to both, and its 20 principles, irrespective of their questionable merits, have little to do with migration control or the dramatic issues confronting the Department, which makes them no "synthesis". These principles are immaterial to the formulation of solutions to the difficult choices confronting migration control and, if anything, reflect how distant the report is from even entering the realm of actual discussions and analysis of the relevant issues. It is unfathomable how such principles could be used to "carve legislation".
The summary of the White Paper set out in the background is incoherent, for the shift of administrative and policy emphasis to law enforcement is but one of a multifaceted policy approach which includes a variety of proposals including main-streaming the criteria and procedures for the issuance of permits, the techniques for law enforcement, an ongoing process of policy formulation based on interdepartmental cooperation and public input, and the complete restructuring of the migration function on the basis of a new structural and administrative model of administration. The snippets selected from the executive summary and the conclusions of the White Paper are hardly representative of what this complex legislation and administrative reform is intended to be all about.
3. Parliamentary mandate
It is legally incorrect to utilise the Rules as a source for parliamentary powers and functions, for their purpose is that of organising and providing internal arrangements in respect of the powers and functions granted to Parliament by the Constitution.
4. Constitutional function
The exercise of this function is centred around the role of the legislature, which must be exercised within the boundaries which prevent any abuse of power and define the difference between good faith and bad faith. The exercise of powers should be finalised in the pursuit of national interest and not petty political agendas, especially when the line function concerned is faced with such a dramatic crisis as that confronting Home Affairs.
The difference between the "deductive" approach ostensibly used in the White Paper and the "inductive" one allegedly underpinning the report is neither understandable nor traceable in either document. If anything, the White Paper utilises elements of empirical analysis.
The process outlined in this section of the report should be read against the unusual circumstances of a White Paper not yet formally tabled before Parliament. It is also unusual that the process of a parliamentary committee and its report would rely so strongly on requests sent to, and approvals received from, the Chief Whip of the majority party, as if he were the spokesman of the whole of Parliament. This is an identified procedural flaw of this process which betrays its misguided intent.
The process highlights that public hearings did not begin until May 16, which is about 14 months after the adoption of the White Paper, 8 months after the Department had solicited inputs from the Portfolio Committee on the White Paper, and 3 months after the publication of the draft Immigration Bill which benchmarked the issues and parameters of public debate.
The Department prefers to distinguish between temporary and permanent residence, reflecting accepted terminology, and one wonders why the report would wish to introduce a completely new terminology. The reference to the White Paper mentioning a shift of emphasis to a community based approach to migration control is a selective misstatement, for the White Paper deals with a community based approach only in respect of how to structure law enforcement activities, which are but a small segment of the overall system of management of migration regulation.
8. Actual content of the public hearings
The summary of public inputs is flawed. We are not in the position of stating whether the summary reflects what was actually conveyed during public hearings. However, it is clear that what was offered or what was registered and minuted is not entirely germane to the purpose of the hearings. Perhaps the chairmanship of the hearings did not focus the inputs on the subject matter concerned and people spoke about the present situation or irrelevant matters rather than the policy for the future. Moreover, not having had the benefit of discussing and commenting on the Bill, the possibility of going astray on relevant matters was enhanced and multiplied.
Furthermore, many of the comments relate to matters falling under the responsibility of other line functions, including tourism, trade and industry, labour, education, safety and security, and health. Migration control does not formulate policies in respect of these matters but it wishes to be the mere gate keeper which ensures that those who come in as tourists, businessmen, investors, or workers, comply with the policies and requirements set out by the relevant line function departments. In certain respects, migration control will need to make these requirements specifically applicable to foreigners or determine the conditions under which foreigners would qualify for the application of such policies and requirements. However, such determinations are not contained in the White Paper nor in the Bill, for they are bound to change from time to time and under various circumstances.
The White Paper and the Bill merely provide a matrix to ensure that such determinations are performed from time to time in the most satisfactory manner which, they suggest, must be centred around and rely upon interdepartmental coordination, public participation, and the regulation-making process which reflects and respects public inputs. This is set out in principle in the White Paper and in detail in the Bill. Discussion should have been focussed on the adequacy and desirability of the proposals made, rather than on the actual but abstract details of what could be the outcome of such determinations.
Another flaw of the public hearings is the total confusion between present and future, for a great deal of the comments relate to present problems which are readily admitted by the Department and acknowledged by the White Paper, rather than to the solutions designed to address such problems. It is concerning that the critical analysis of these comments presented by the Department on September 12, 2000 has not been taken into account. We see no reason to repeat the contents of such submission, which is endorsed, hereby incorporated by reference and attached hereto as Annexure A. Many others have long been overtaken by further stages of the public debate. Furthermore, it is clear that most of the issues discussed in this section have been addressed by the reformulation of the August 16, 2000 version of the draft Bill, which was distributed to the Committee. Moreover, it has long been accepted that many of the issues raised related to abstract and erroneous hypotheses on how the White Paper could have been implemented through legislation.
Reading the summary of public inputs, one cannot find one single and clearly identified flaw with the White Paper, especially when it is read together with its implementing legislation. There is no counterproposal nor critical objection to the proposals of the new legislative and administrative reform, nor its underpinning policies and intents. The public inputs show a great deal of dissatisfaction with the present system as well as a divergence of ideas, which always characterise migration control. It must be accepted that migration control must reconcile conflicting interests, for there will always be sectors of our society which are to benefit from a more open or a less open approach to migration control. For instance, the fact that both business and labour organizations criticize certain migration control techniques from different perspectives is almost unavoidable: the real question should be about how well the White Paper and its implementing legislation have reconciled, or struck a compromise between, the necessarily divergent interests of these two sectors of our society
However, even the inherent difficulty of conflicting sectorial interests does not seem to be addressed through the comments. In fact the White Paper does not decide how such interests are to be reconciled in detail, but merely sets in place a mechanism for it to happen. There is no criticism on whether such mechanism is adequate or desirable, or a better one should be put forward. Nor is there an indication that a preference exists that such mechanism be substituted by fixed and fast rules set in place once and for all in legislation or through the discretion of a department or its minister.
9. Report on the Lindela Repatriation Centre
This report seems unrelated to the White Paper, and is misplaced in the report.
10. Lebombo Border Post and related matters
Even though matters of importance, these matters have nothing to do with the White Paper and its implementing Bill, save for the possibility of focussing the mind on the capacity which the envisaged SAIS should have to deal with and solve these problems in a more effective and satisfactory way. However, even this assessment is missing. We have heard that the Department feels that things will improve if the proposed legislative and administrative reform is no longer delayed.
11. Recommendations of the Committee
Recommendations relating to the "beefing up" of the Lebombo Border Post, the reopening of the Mbuzini Tunnel, the granting of dual citizenship and the repairing of fences damaged by floods, have nothing to do with discussions on the White Paper.
12. The proposed principles
The proposed principles, irrespective of their merits, have little or no bearing on the actual formulation of policies, options and legislative solutions confronting migration control in the 21st century. They are generalities of dubious value and trite restatements of points of departure, with little capacity of setting direction. They do not even enter the debate of relevant issues. They give the perception that the Committee has not reached an understanding of the relevant issues. Even though one may not discard the value of their conventional and trite wisdom, this does not warrant their inclusion in the report of a parliamentary committee dealing with a serious issue of international relevance.
In any case, most of the principles have already been accommodated in the White
Paper, including the need for developing autochthonous solutions to meet South
Africa's own needs [Principle 1], the respect of the rule of law (Principle 2), the principle of equality [Principle 4], the notion of state sovereignty and security [Principles 5 and 7], the notion of legislative stability [Principle 11], the techniques for accountability, public awareness, public inputs and interdepartmental cooperation [Principle 12,13, 14. 16), and the notion of ensuring that whatever law is adopted is actually enforced (Principle 17). Discussion should be about how these principles have been adopted and implemented within the legislative proposals set out in the White Paper and its implementing Bill so as to make such principles relevant to the specific context of migration control. In respect of Principles 3, 8, 9,10,15,18,19 and 20, one cannot form a specific opinion nor react to them, for they are neither sufficiently detailed nor meaningful to warrant discussion. Rather than "principles", they sound more like sanctimonious outbursts of irrelevancies.
13. The ten significant stages in the legislative process
The "ten stages" identified in the report are not the stages of the legislative process as defined in the Constitution and do not reflect any established or accepted constitutional and legislative practice of our country. All stages of policy formulation are not part of the legislative process and, contrary to what has often been absurdly stated in the Committee, they have no relevance to the assessment of the constitutionality of a law adopted. It is legally absurd to suggest that matters relating to the formulation of green or White papers may affect the constitutional validity of a law, which depends exclusively on how the Bill is published and processed through Parliament and not on any underlying policy documentation or discussion.
The establishment of parameters for policy formulation is a prerogative of the executive, for it affects how it discharges its responsibilities. Furthermore, there are no established parameters for policy formulation. Certain legislation has been adopted without white papers, while in other cases the green paper stage was skipped to be substituted with consultation processes leading directly to a white paper. In most cases, the white paper has been accompanied by a draft Bill or even a Bill already tabled before Parliament. This has been the case for legislation ranging from refugees to local government, police, defence, land affairs, water affairs and culture. In fact, one cannot think of a single example in the past 6 years which has followed exactly the ten stages that the report pontificates as being a necessary part of the legislative process.
Furthermore, the purpose of a green paper is not that of putting forward an idea, but it has historically embodied a full draft policy, which has often not been substantially changed in the white paper. Furthermore, fully drafted legislation has accompanied white papers and very seldom has a draft Bill been crafted in a "skeletal" format. The stages of policy formulation set out in the report are in the mind of its author, not in the documented parliamentary practice of our country.
The incontrovertible fact remains that no other process of policy formulation has had as many stages and opportunities for public comments as the one about international migration, which has undergone the following stages during more than four year:
1. Public Notice to formulate policy
2. Cabinet approves green paper process, task team and terms of reference
3. Minister tables in Cabinet his input on green paper process
4. Public comments
5. Draft green paper
6. Green Paper approved by Cabinet
7. Consultative conference
8. Public comments
9. Cabinet approves white paper task team and terms of reference
10. Public comments and public hearing in all provinces
11. Cabinet approves White Paper with amendments and after long deliberations
12. Public comments
13. Draft Bill circulated among stakeholders and role players
14. Draft Bill published
15. Public comments
16. Consultative conference
17. Extensive Cabinet discussion on the draft Bill leading to substantial reformulation
The Committee was involved or could have been involved in all these stages, even though these stage in fact relate to the performance of an executive rather than parliamentary function. The Minister and the Department made several presentations to the Committee and the Committee and its members were invited to the public hearings, the consultative conferences, and various consultative stages organized by the Department, such as the workshop with the CED.
14. The views of the Portfolio Committee on the White Paper
The disclaimer relating to the lack of contribution of the Portfolio Committee formulation of the White Paper, which is repeated in the preliminary conclusions, is unwarranted and erroneous. The Committee participated in the process of policy formulation which culminated in the White Paper. During the green paper stage several of its members travelled abroad and during the subsequent stages the Committee was invited to participate in the public hearings, which invitation was accepted by many of its members. Furthermore, during routine meetings Director-General, Mr AS Mokoena, briefed the Committee on the White Paper maintained dialogue with it on the subject.
This disclaimer serves a political purpose of dubious value. It is also a shocking indictment of the Committee, for it would suggest that the public notices requesting comments and inputs are sufficient to stimulate the participation of stakeholders and role players but do not solicit those with the constitutional responsibility of making inputs to make their views known and become active in the process. Those who have chosen to stay on the sidelines have been in dereliction of the duty of their office, and should hardly point this out claiming that it was a flaw in the process.
The comments set out under the paragraph titled "Precedents" are incomprehensible because the two Acts mentioned therein are the current migration laws in the country. The issue at hand is that of substituting the Aliens Control Act with a comprehensive legislative and administrative reform. It is not clear what the report would have in mind when suggesting the adoption of an umbrella law on international migration of Aliens Control Act and the Refugee Act would be somehow implementations. It is a bizarre idea, never before aired.
The comments relating to the Minister seeking to "circumvent parliamentary procedure" set out under the title of "Recognition of ministerial initiatives" are utter nonsense and an intolerable insult to the Minister which is rejected with the contempt it deserves. Furthermore, there is no indication of how the Minister would have circumvented such procedures as reference is made to non-existing paragraphs in the report. Furthermore, the statement is even more bizarre if one thinks that no parliamentary procedure has in fact commenced, for nothing is before Parliament, neither the White Paper nor the Bill. The suggestion that an attempt has been made to pass a law outside a parliamentary process is either the product of ignorance or bad faith.
15. Briefing of the Committee at its October 3 meeting
This is the section of the report which more clearly shows its bias and intent to bend facts to accommodate a preset political agenda. While the summary of Minister Buthelezi's remarks is accurate, perhaps on account of his having spoken out of a prepared text delivered to the Committee, the summary of the briefing by Dr Oriani-Ambrosini is vastly inaccurate, which also questions the credibility of the summaries made in respect of the inputs of the public. The summary of his briefing does not capture its content and is presented in a simplified form, often mentioning examples without the point to which they attach.
The critique of the report of Dr Oriani-Ambrosini's briefing is false, vicious, and
unjustified. It is not true that he deviated from the essence of the White Paper for he spoke about nothing other than the White Paper. Reference to the Committee report were made to point out misunderstandings of the White Paper due to knowledge or because of sectorial interests. The statement that he rendered an "unscholarly presentation" for the purpose of "whitewashing" the white defamatory and totally groundless, for his presentation was excellent and highly professional. Whoever witnessed such presentation will find in this statement the acid test of the bias of the report. We formally request copies of the tape recording of Dr Ambrosini's presentation so that the transcript thereof may corroborate this point.
The statement that Dr Ambrosini presented a version of the White Paper "vastly different from the version the public got" is as bizarre as it is concerning, as it boarders on delusion, for he spoke about nothing other than the White Paper as it stands. It can only be explained if one did not read or could not understand the White Paper and its subject matter, or wrote the report in bad faith. The statement "the second version of the White Paper is calculated at selling the Immigration Bill" borders on surrealism because there is no second version and obviously whatever is said about Paper would reflect on the legislation which implements it. Perhaps whoever wrote this section of the report had such a biassed image of the White Paper that when confronted with the truth, he could not even recognize the subject matter.
It is not true that the issue of community based enforcement was "downplayed" at the meeting: this is not an issue. It is revealing that the report wishes to make it irrespective of contents and truth. The statement that the White Paper has already been implemented ahead of the adoption of legislation because it suggests that the Immigration Service may be headed by a Deputy Director-General, is nonsense, bordering on the surreal. The reform suggested in the White Paper and outlined in the Bill is a complex one which has nothing to do with Director-General, Mr BL Masetlha, not having attended a meeting of the Portfolio Committee.
The statement that Dr Oriani-Ambrosini "did not come prepared" for the briefing and "his set of notes did not address the White Paper in a coherent way", is vicious, defamatory and utterly false. Similarly so is the statement that his presentation "was not systematic" and relied on "scattered elements" from the Committee's report. Ambrosini presented a coherent written outline of his presentation which he followed methodically, in spite of interruptions from the Chair. His presentation was coherent and highly professional and made reference to his written presentation previously submitted to the Committee, but which at the time he was prevented from delivering.
It is preposterous to state that the Committee "still has not received a proper briefing on the White Paper by the Department" for the Department gave two presentations of about 4 hours and presented three documents with attachments consisting of 27,746 words and 54 pages, in addition to oral presentations, question and answer sessions and addresses by the Minister. The Department has also made itself available for further presentations and offered to workshop the interim report of the Committee to point out its flaws and deficiencies. This is an enormous and unprecedented amount of interaction with the Committee at a stage at which no Bill or White Paper has even been tabled before the Committee.
It is the responsibility of the Minister to choose the officials in the Department most qualified and knowledgeable to answer any given question or provide any given briefing. It is erroneous to state that the Minister acted improperly when he gave notice to the Department that his Director-General conveyed to him that he was not knowledgeable about the new policy and legislation to brief the Committee. The reference to the rules of Parliament and the Constitution set out in the report are misplaced and erroneous, for the Committee will not have the power to invite nor even summon someone without specific knowledge on the matter on which he or she asked to address the Committee. Once again the powers of the Committee would be exercised in bad faith and, therefore, ultra vires. For instance, the Committee could not summon an immigration official to brief it on civic affairs matters, and it is the responsibility of the Minister to ensure that this would not happen. This incident also shows the intention of the chairmanship of the Committee to promote mischief and create issues where they should not exist.
16. Preliminary conclusions
The statement that the process has been flawed is meaningless, unsubstantiated and erroneous. It has been made as a political a priori for which evidence has been sought after the fact. There is no basis to state that there are only 4 key players in a process of policy formulation which lasted four years and involved people of high stature and intellect. This is an insult to the many Members of Parliament, University Professors, high-ranking Government officials and professional people who served in the Green and White Paper task teams, including our First Lady, and we wish to have nothing to do with this generalized insult to their stature, credibility and reputation. Moreover hundred of people made submissions which were taken into account. It is plainly wrong to state that the White Paper is the product of the Minister, his Adviser, his then Director-General and his deputy Director-General and these four people alone "pushed this document... without the appreciation of the role of the Portfolio Committee". These untruths demean the many people who contributed to this labourious process.
The statement about the separation of powers is meaningless because, in our constitutional practice and jurisprudence, all white papers have been developed by the executive and, comparatively, have had much less public and parliamentary inputs than the process of formulating a new migration policy. Similarly, the statement that the Committee is "expected to rubber stamp" the document is as inflammatory as it is meaningless. Soon after the adoption of the White Paper, the Committee was asked to produce substantive inputs in the formulation of the legislation, as it was previously asked to produce inputs for the formulation of the policy. One can do no more than ask, and it is the Committee's responsibility to come up with the responses, if any. Any public request for comments is also addressed to the Committee and this process has had a record number of opportunities for public participation, hearings and comments. To this day no substantive proposal has been forthcoming from the Committee. Similarly, as stated above, it is incorrect that the Portfolio Committee did not participate in the development of migration policies and made no contributions towards it.
The Committee was offered ample opportunities to participate in a process which at this stage rests with the Executive until the Bill is tabled in Parliament. Moreover one should question why the Committee members chose the bizarre option of participating in a high-profile consultative international conference on the Bill merely as "observers" rather than people with something to say and the willingness to contribute to the work of the executive. In any case this statement is not correct because certain members of the Committee participated in the conference actively and with valuable contributions and their contribution should not be obliterated in the report's bias.
The final conclusion that "there is a preponderance for the aversion fear of White Paper" is wrong, whatever this incoherent language sought to express. Throughout the report there is no fact to substantiate this conclusion. The only two facts which are put forward are as sweeping statements, namely that the policy is "schizophrenic" and that it advances rational persuasions" while "it recommends measures that contradict the motivation". If the report intends to undermine the outcome of a four-year process of policy formulation, it must do much better than this and resort to some degree of intellectual depth.
It has been explained over and again that the drafting of the Bill could not wait indeterminately. Now that the report is out in its "penultimate" form, it is obvious that this was the right choice, for the parliamentary process has not highlighted any new elements which were not taken into account in the drafting of the Bill, beyond doubt that discussions on the White Paper without the assistance of implementing legislation translating general policy statements into tangible and administrative options is fruitless, confusing and punctuated with potential for
The continuing reference to paragraph 5.1 of the White Paper relating to the structure of the Immigration Service as having been already implemented by virtue of the Director-General briefing the Committee on migration matters is surreal. It clearly shows no understanding of the nature of the administrative reform and connects together two events with no relation whatsoever for purposes of finding support for the equally surreal suggestion that the White Paper has already been implemented before Parliamentary deliberation.
In reading the Bill, it becomes clear that issues or details such as those of the accounting officer are properly provided for and that there is no hidden agenda in what the Department is trying to achieve in the interests of the country. Similarly, the financial implications of the new policy could only be worked out once it is translated into actual legislative options, which has been done within the process of formulating the Bill and its submission to Cabinet. This shows once again that consideration of the policy document outside its implementing legislation is often meaningless, for it is not policy but legislation and administrative actions which carry financial implications and must be costed.
It is not true that Dr Oriani-Ambrosini "de-emphasised the emphasis on community
enforcement". He merely explained something which has been explained for the past 18 months, including by the Minister on two occasions before members of the
Committee. The accusation that he "put an acceptable gloss or veneer on the White Paper" is as vicious as it is unwarranted and possibly derives from the ignorance of law enforcement aspects of migration control under present legislation and in other countries, or as clarified in the Bill. The statement that "the authors of the White Paper constantly adjusted when it suits them to make it saleable" is perhaps the product of people wanting to find fault where there is none, finding reasons to reject the document not because of its content, but because of its origin. When confronted with the matter they end up thinking that something different is being presented to them.
It has not been stated that the proposals in the White Paper are "unconventional" rather that they are innovative. It has been stressed over and again that the 21st century poses challenges and opportunities which cannot be addressed in the mould of solutions drafted in the 19th century or early part of the 20th century. This has got nothing to do with "experiments or gambles", especially when existing solutions are proven to be inadequate and unsatisfactory.
1.The report contains no rational basis to support the statement that the White Paper should not be proceeded with;
2. The consideration of the 20 principles does not provide any tangible contribution to bring forward the debate on the real issues of migration control;
3. The statement that "we must go back to the drawing board" is the essence of the political agenda which the report intends to capture, which existed before any finding was made and has no relation whatsoever to the findings nor to the contents of the White Paper or the Bill. It is the political intention to hold this process to ransom, not because of its contents but because of its origin, and to this end feeble and even surreal pretexts are utilized both as points of procedure and as points of substance. The language of the report speaks volumes corroborating this conclusion;
4. Any further consideration by the Committee of the legislative and administrative reform on migration control should be based on the combined reading of the White Paper and its Bill, which will make discussions topical and relevant, being mindful that the primary role of Parliament is that of formulating and processing legislation, rather than policies;
5. The statement that the present process is "bottomed on quicksand" may be true only to the extent that there are people who, for petty political reasons and agendas, are creating such quicksand and have chosen to be part of the problems rather than part of the solutions, acting against the interests of the country in a matter which is disruptive rather than constructive. The Minister and the Department have constantly indicated their full willingness to take on board any substantive and relevant proposals the Committee may wish to make, as they have taken on board those which they have received from a broad variety of role-players and stakeholders, within the NEDLAC process and from many other Ministers and their departments within the ongoing process of Cabinet deliberation on the Bill.
6. As it stands, the report is not part of the exercise of the supervisory powers of the Committee, but represents the abuse of such powers employed in bad faith to pursue a political agenda contrary to the interests of the country, and, as such, it is illegitimate, unconstitutional and worthy only of being rejected in its entirety.
UNITED DEMOCRATIC MOVEMENT COMMENTS ON THE PENULTIMATE REPORT OF
THE WHITE PAPER ON INTERNATIONAL MIGRATION IN RESPECT OF PUBLIC HEARINGS CONDUCTED BY THE PORTFOLIO COMMITTEE ON HOME AFFAIRS
Ideally the report should strive to give a clinical analysis and reflection of the Public Hearings as conducted by the Portfolio Committee. Unfortunately the intent of the report is cluttered and obstructed through unnecessary content that blur the objective and devalue the report.
The following sections of the report are not contributing towards the report and it might even lead towards a negative experience and evaluation of the report:
The right of the Portfolio Committee to conduct Public Hearings are not under scrutiny and it is thus unnecessary to spend time to justify this.
lt is suggested that the report starts off with the process that was followed by the Committee. The general Observations can form part of the process and lead as introductory towards the Actual Contents of Public Hearings.
2. ACTUAL CONTENTS OF PUBLIC HEARINGS
This section of the report should form the crux of the report. It would therefore be good if the content thereof were divided into comments reflecting on the current migration situation. comments that relate to Departments other than the Department of Home Affairs and lastly those comments that are directly related to the White Paper on International Migration. In this way the report and the process of public participation can significantly contribute towards the discussions and debate on International Migration.
3. THE PROPOSED 20 PRINCIPLES
The proposed principles are not problematic. It is however important that we acknowledge that many (as much as 11) of these principles are already incorporated in the White Paper and the Bill. We should not create the idea that some of these are not already catered for and rather concentrate on lobbying the additional ones that we agree should be there.
4. THE TEN SIGNIFICANT STAGES IN THE LEGISLATIVE PROCESS
The inclusion of this in a report dealing with public hearings does not make logical sense. The report is not intended to be a lecture in the legislative process and as such does not contribute towards the aim of the report. Furthermore it is also important that we realise and acknowledge that it rarely happens that the legislative process develops in reality as set out here.
5. THE VIEWS OF THE PORTFOLIO COMMITTEE ON THE WHITE PAPER
It is wrong to insert this in the report as the views of the Portfolio Committee. These views can merely be described as the views of the ANC since the Committee did not adopt or discussed the views as expressed here.
6. BRIEFING TO THE PORTFOLIO COMMITTEE (TUESDAY 3 OCTOBER 2000)
The inclusion of this briefing in the report is making no positive contribution to the report and is not enhancing any of the principles or arguments put forward. It is believed that the credibility and objectivity of the report is compromised through what appears to be no more than a reflection of a personal view and even a personal attack.
The committee should not get involved in this kind of politicking, as this will not contribute towards the productivity of the Committee in dealing with the Department and the work that should and ought to be done. As it is now reflected this will rather lead to polarization within the Committee and between the Committee and the Department.
It is thus suggested that this part of the penultimate report be dropped from the final report.
Two suggestions regarding the way forward: That the current impasse between the Minister and the Committee Chairperson be addressed and resolved as a matter of urgency. The current situation is not contributing towards finding solutions for a Department with very specific and clear challenges, but is rather a contributing obstacle.
Secondly, that the Committee continue its work as a matter of urgency and starts considering the Draft Bill on International Migration. All parties and interest groups agree on the importance and urgency of the matter at hand. Further delay can thus riot be allowed. It is suggested that the Committee starts with public hearings on the Bill and also use the information that was gathered from the public hearings on the White Paper and constructively incorporating those in the Bill where no provision for it has been made yet.
Ms Annelize van Wyk, MP
20 October 2 000
United Democratic Movement
Primary Member Portfolio Committee, Home Affairs
DEMOCRATIC ALLIANCE DRAFT RESPONSE TO THE "PENULTIMATE
REPORT ON THE WHITE PAPER ON INTERNATIONAL MIGRATION IN
RESPECT OF PUBLIC HEARINGS CONDUCTED BY THE PORTFOLIO
COMMITTEE ON HOME AFFAIRS" OCTOBER 13, 2000
The Democratic Alliance believes that the White Paper on lnternational Immigration will be the most important piece of legislation affecting economic growth and job creation. If we are to liberate the poor and unemployed from the perpetual cycle of poverty, economic growth of at least six percent will be needed. Only the inflow of investment and skills into the country will be able to achieve this. We have to reverse the 'brain drain' with 'brain gain'.
The huge impact HIV/AIDS will have on the economy in general and the loss of skilled people in particular has been ignored.
It is unfortunate that this crucial piece of legislation has been turned into a political football. In fact the Portfolio Committee has become a political mudslinging exercise.
To the knowledge of the DA, the ten stages identified in the report are not stages of the legislative process as defined in the Constitution and do not reflect any established or accepted constitutional and legislative practice. There are no requirements stipulated in the constitution to which "the ten significant stages in the legislative process" (as stipulated in the document) must adhere.
In fact many departments (inducing those run by the ANC) have adopted legislation without white papers, while in other cases the green paper stage was skipped. Some deal with the white paper and the bill simultaneously. In most cases, the white paper has been accompanied by a draft Bill or even a Bill already tabled before Parliament. This has been the case for legislation ranging from refugees to local government, police, defence, land affairs, water affairs and culture. ln fact, one is hard pressed to think of a single example in the new dispensation which has followed exactly the stages that the report suggests is part of the legislative process.
The DA agrees with the statement in the report that "the Portfolio Committee has the responsibility of supervising the activities of the Department, including its processes of policy formulation and legislative drafting". However, the responsibility has to be taken seriously. To wait 14 months before starting public hearings on the White paper is a dereliction of duty. What the portfolio committee did from March 1999 until December 1999 is a mystery. This important piece of legislation should have taken priority on the portfolio committee's agenda. The DA realises that the current chairperson of the portfolio committee, Mr Aubrey Mokoena, was appointed February 2000, which clearly indicates that the previous chairperson had failed to execute his responsibilities. It is now 19 months since the white paper saw the light of day and the committee still has not completed its report.
The DA is also under the clear impression that public hearings organised by the department on the white paper did indeed take place, and in fact happened on the insistence of ANC MP Winnie Mandela.
The DA has no major objections to the 20 proposed principles; 11 of which are in fact already incorporated in the white paper.
On page 85 of the report the heading "The views of the portfolio committee on the White Paper" should in fact read "The views of the ANC on the White Paper". The Chairperson clearly stated in the portfolio committee that the views were in fact that of the ANC. The DA does not wish to become involved in the mudslinging of the Portfolio Committee Chairperson and the department. We believe that the issue of immigration is of such importance that one can not take one's eye off the ball in order to score political points.
Pages 88 to 91 deal with the remarks made by Minister M G Buthelezi, Dr O Ambrosini and the Deputy Director Mr I Lambinon. On pages 92 and 93 the committee gives its critique of the remarks made by the three gentlemen. The DA points out that these remarks are yet again the views of the ANC and not those of other opposition parties. The DA rejects out of hand the comments about Dr Ambrosini concerning points three and five in particular which we find insulting. These useless comments only serve to divide the committee further
It is also misleading to state that the Committee "still has not received a proper briefing on the White Paper by the Department" when in fact the Department given two presentations and submitted three documents.
In conclusion the DA proposes the following:
· In order for the process to move forward in a positive way, the DA proposes that the President should intervene by setting up a meeting between the Chairperson of the Portfolio Committee, Mr Aubrey Mokoena, and the Minister of Home Affairs, Dr M G Buthelezi, in order to repair the relationship between these gentlemen. Failing this, the consequences will be the continued polarisation of the committee and the paralysing of the workings of the committee.
· The DA also believes that the issue of starting the whole process from scratch should not be entertained, as an Immigration policy is desperately overdue. The report does not substantiate this proposal with any rational arguments
As public representatives we are expected to represent the voters of South Africa in a dignified, mature and responsible manner. The voters wait.
Letter from Mario Ambrosini to Mr Mokoena
October 24, 2000
To: Aubrey Mokoena, MP
Chairman: Portfolio Committee on Home Affairs
From: Mario GR Oriani-Ambrosini
On or about October 11, 2000 you published or caused to be published a document titled "Penultimate Report on the White Paper on International Migration in Respect of Public Hearings Conducted by the Portfolio Committee on Home Affairs", [’the Report"] which bears your signature at its end. This document has been distributed to members of your parliamentary Portfolio Committee and others.
The Report contains libellous statements and defames my personal integrity, professional reputation and good standing in my profession and community. Namely, the document states that when on October 3, 2000 I made a presentation to the parliamentary Portfolio Committee of Home Affairs on the White Paper on International Migration:
1. I deviated from the essence of the White Paper;
2. I employed an unscholarly approach;
3. I whitewashed the White Paper;
4. I tried to mislead the Committee by presenting a version of the White Paper vastly different from the version that the public got;
5. I did not come prepared to the briefing of the Committee;
6. I prepared and submitted a set of notes which did not address the White Paper in a coherent way;
7. I delivered a presentation the points of which were not systematic;
my presentation was based on scattered elements;
8. I shifted the goal post to the point of shocking the Committee and in order to put an acceptable gloss or veneer on the White Paper;
9. I presented a second version of the White Paper; and
10. I did not properly brief the Committee.
The foregoing statements carry the necessary implication and/or innuendo that I have acted in such a manner so as to deceive, and misrepresent matters to the Committee.
The foregoing statements are not true, nor does any factual basis exist for them to be justified. They are highly defamatory for they carry the necessary implication that I have breached the rules of professional responsibility, my personal and professional integrity, and the duties of my office, in an attempt to deceive an organ of Parliament. Accordingly, they are also a defamation of my character and personal and professional reputation. Furthermore, these statements carry the necessary implication that I have discharged improperly and unsatisfactorily the duties of my office and my professional responsibilities, which is also a defamation of my good name.
These aforesaid statements are devoid of any factual basis and, for this reason, they are either the product of reckless negligence or outright malice. Since I am neither a political representative, nor a public figure, but a specialised lawyer working for the State, no latitude exists to excuse such a blatant departure from the truth. The publication of these statements has already caused damages in excess of R100,000 for which, subject to the Constitution, I hold you and Parliament liable. Moreover, the damaging effect of these statements will continue for many years to come, given the official nature and the possible circulation and traceability of the document in which they have been made and the high-level context in which they have been rendered. If taken seriously and believed, they would forever create an irreparable stigma on my future career.
Unless immediate reparative action is taken, and the undertakings I hereby request are made, I shall commence legal action against you personally and against Parliament to interdict any further publication and distribution of the Report, and, subject to the Constitution, recover damages.
By no later that the end of business of October 27, 2000, I request to receive your written undertakings that the aforesaid statements are going to be expunged from the Report, and that all those to whom the Report has been conveyed or in any way made accessible will receive corrective written notice of the erroneous nature of such statements, failing which I shall seek a preliminary interdict to prevent the Report’s further distribution and publication.
Furthermore, unless by October 31, 2000 I receive written assurance that adequate reparative measures shall be undertaken, including the payment of present and future damages and the making of equally publicised statements which effectively counter those made in the Report, I shall approach the Cape High Court for the appropriate relief against you personally and Parliament.
CRITIQUE ON THE DEMOCRATIC ALLIANCE DRAFT PEPORT ON THE WHITE PAPER ON INTERNATIONAL MIGRATION IN RESPECT OF PUBLIC HEARINGS CONDUCTED BY THE PORTFOLIO COMMITTEE ON HOME AFFAIRS - OCTOBER 18, 2000
1. INTRODUCTORY REMARKS
We will not comment on every point made as the Penultimate report has addressed most issues. The belated response of the Democratic Alliance is appreciated. However, it must be pointed out right at the outset that, in terms of the Constitution and the Rules of Parliament, THERE IS NO SUCH ANENTITY AS THE DEMOCRATIC ALLIANCE. Even the Speaker of the National Assembly has pronounced herself on this no nomenclature.
For instance, die ANC has its own TRI-PARTITE ALLIANCE WITH COSATU and the SACP but DOES NOT REFER TO THE TRIPARTITE ALLIANCE IN PARLIAMENTARY DOCUMENTATION. There are no seats in Parliament for Democratic Alliance. That argument has been made OUTSIDE Parliament. As part of our parliamentary oversight functions, the moment to hear the views of the Democratic Party and those of the New National Party!!! We do lot want an unsigned document.
2. BRIEF CRITIQUE
2.1 The Portfolio Committee will have to become a political football for "apolitical xxxxx exercise. We are serious about our role of OVERSIGHT. No amount of sarcasm will deter us
2.2 The 10 stages have been started as a hazical sequence in the legislative process. There is no need to take potshots at them.
2.3 It is utterly naive to regard the proposals of the White Paper which are of a RADICAL nature with other ordinary policy matters.
2.4 The Member of Parliament who represents the Democratic Party on the Portfolio Committee, the Honourable Mike Waters, knows EXACTLY how we have tried to speed up the process of the White Paper. The Member of Parliament who represents the New National Party on the Portfolio Committee, the Honourable Sakie Pretorius also knows the problems of the White Paper and how we have tried our best to underwrite its completion.
2.5 The Portfolio Committee is enjoined by the Constitution and the Rules of the National Assembly to conduct Public Hearings. We dare not ESCHEW that duty.
3. CONCLUDING REMARKS
3.1 No need to drag the Head of State into a simple matter of the Separation of Powers. These are clearly delineated in the Constitution.
3.2 Any Chairperson of a Portfolio Committee who does not ensure executive accountability, transparency and democracy will be failing to defend the democratic gains for which many people have fought and died.
3.3 The Democratic Alliance report escapes responsibility by merely stating that " ...The issue of starting the whole process from scratch should not be entertained."
3.4 Yes the voting public is waiting but not for an ill conceived policy on Migration that will have ominous repercussions on itself, in the final analysis!. What we need is not HASTE but a SOUND POLICY ON INTERNATIONAL MIGRATION. Hence the proposed 20 principles as a LOADSTAR
CRITIQUE OF THE DOCUMENT ENTITLED "RESPONSE OF THE INKATHA FREEDOM PARTY TO THE PENULTIMATE REPORT ON THE WHITE PAPER ON INTERNATIONAL MIGRATION IN RESPECT OF PUBLIC HEARINGS CONDUCTED BY THE PORTFOLIO COMMITTEE ON HOME AFFAIRS. Cape Town: October 20, 2000
There is no need to write a lengthy critique to the above-mentioned document as this will drag the Portfolio Committee into a quagmire of recriminations and alterations which may have unintended repercussions. On account of the fact that it is not signed, we will refer to the authors of the IFP Document in this critique.
2. SUCCINT RESPONSE
2.1 We thank the authors of the document for having responded to the Penultimate Report on the White Paper. We particularly note the diligence and thoroughness of attention applied to the Penultimate Report.
2.2 It is, however, regrettable that the authors of the IFP document HAVE COMPLETELY MISSED THE BOAT.
2.3 The crucial tragedy is that the authors of the IFP document DO NOT RECOGNISE THE PARLIAMENTARY AND CONSTITUTIONAL ROLE OF THE PORTFOLIO COMMITTEE. To illustrate or point, we quote for P. 2 of the IFP Document, 3rd paragraph. "within this context, ... the Minister appointed the Committee to request its inputs along all other public inputs". HERE, THE PORTFOLIO COMMITTEE MUST SIMPLY QUEUE UP WITH THE REST OF THE PUBLIC FOR ITS INPUTS. This is a clear EROSION OF DEMOCRACY and we cannot allow it.
2.4 South Africa is a Constitutional State. We emphasise and reiterate this fact.
2.5 All the 400 members of the National Assembly HAD to take either of the following two oaths:
OATH OF ALLEGIANCE
I ............................................ swear that I will be faithful to the Republic of South African and will obey, respect and uphold the Constitution and all the other law of the Republic; and I solemnly promise to perform my functions as a member of the National Assembly to the best of my ability.
So help me God.
Signed in Cape Town on this the twelfth day of September 2000.
SPEAKER OF THE MEMBER OF THE
NATIONAL ASSEMBLY NATIONAL ASSEMBLY
OATH OF AFFIRMATION
I ............................................ swear that I will be faithful to the Republic of South African and will obey, respect and uphold the Constitution and all the other law of the Republic; and I solemnly promise to perform my functions as a member of the National Assembly to the best of my ability.
Signed in Cape Town on this the twelfth day of September 2000.
SPEAKER OF THE MEMBER OF THE
NATIONAL ASSEMBLY NATIONAL ASSEMBLY
2.6 The oath specifically enjoins an MP to "uphold the Constitution" whose CLAUSE 56 (and we have quoted it on page 8 of the Penultimate Report) reads:
Evidence or information before National Assembly.
The National Assembly or any of its committees may:-
a) summon any person to appear before it to give evidence on oath of affirmation or to produce documents;
b) require any person or institution to report to it;
c) compel, in term of national legislation or the rules and orders, any person or institution to comply with summons or requirements in terms of paragraph (a) or (b); and
d) receive petitions, representations or submissions from any interested person or institutions.
Furthermore, (and we quoted on P.7 of our Report),
2.7 The N.A. Rule 138 (c) states that for the purpose of performing its function, subject to the Constitution, legislation the other provisions of these rules and resolutions of the Assembly: -
a) Summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
b) Receive petitions, representations or submission from interested persons or institutions;
c) Conduct Public Hearings;
d) Permit oral evidence on petition, representations, submissions and any other matter before the Committee;
e) Determine its own procedure;
f) Meet at a venue determined by it which may be venue beyond the seat of Parliament;
g) Meet on any day at any time, including:-
· On a day which is not a working day
· On a day on which the Assembly is not sitting
· At a time when the Assembly is sitting
· During recess
h) Exercise any other power assigned to it by the Constitution; Legislation, and the other provisions of these rule or resolutions of the Assembly.
2.8 We find it INCOMPREHENSIBLE that any of the 400 MP’s who took the OATH, can try and UNDERMINE the injunction of the Constitution, i.e. exercise of oversight!
2.9 What is AT THE HEART of this debate is what the authors of the IFP document refer to as the EXECUTIVE PREROGATIVE OF THE MINISTER and the PARLIAMENTARY OVERSIGHT FUNCTION that the Portfolio Committee should exercise over the EXECUTIVE!
2.10 The Constitution sets out the SEPARATION OF POWERS i.e. the EXECUTIVE, THE LEGISLATURE AND THE JUDICIARY.
2.11 THE OVERSIGHT ROLE of Publication over the EXECUTIVE through Portfolio Committee, cannot be taken away by the Minister.
2.12 The authors of the IFP Document extol the EXECUTIVE PREROGATIVE while berate PARLIAMENTARY involvement by the Home Affairs Portfolio Committee, as ABUSE OF POWER. One cannot think of a more classic example of TWISTED LOGIC.
2.13 MP’s must do their job. It is our Constitutional obligation. We cannot just behave like TEDDY BEARS and watch the conveyor belt of ministerial activities. When we detect something wrong, we must STOP THE MINISTERIAL CONVEYOR BELT to examine the situation and if needs be restart the process. All this is done in the interest of democracy, transparency and accountability.
2.14 According to the authors, the Minister is Boss and must DECREE e.g. the invitation of the D6 to brief the Committee.
2.15 Following from 2.10 above is that the PORTFOLIO COMMITTEE must just OBEY MINISTERIAL DECREE. This is illustrated by the assertion that "as Portfolio Committees are required to focus their attention on Bills" (P. 2 of the IFP Document.)
2.16 The IFP document also makes an astounding averment "It is legally incorrect to utilise the Rules as a source for Parliamentary powers and functions, for their purpose is that of organising and providing internal arrangements" (P3 IFP Document).
2.17 What is also pathetic about the IFP Document is that it contradicts itself blatantly in respect of whether the White Paper on International Migration was ever PRESENTED to the Portfolio Committee or NOT. This can best be described as an AMBIVALENT if not SCHIZOPHRENIC quandary the IFP authors find themselves in.
2.18 The following evidence puts the record straight through the correspondence of the Minister.
a)The Department would like to have the opportunity to give a presentation onthe White Paper to the Committee along with a presentation on relevant issues and options which currently frame the debate on migration policies both in South Africa and internationally (Date: 29 September 1999).
b) I would appreciate an indication from you of how we could best assist the members of the portfolio committee in familiarising themselves with these important policy documents (Date:29 September 1999).
c) I have been informed by the Department that the Department has still not given the Portfolio Committee a presentation on the White Paper explaining how proposals were reached and their background. I think this perspective is important to your deliberation on the White Paper which is now before your Committee. I regret that the Department has not been sufficiently forthcoming in responding to your request for such presentation. I have urged the Deputy Director-General, Mr Ivan Lambinon to liaise with you and your Committee to seek guidance on when and how to make such presentation available to the members of your Committee (Date: 07 June 2000).
d) For this reason, I tabled the White Paper in Parliament to ensure that we could strengthen co-operation between the executive which is drafting the legislation and the Parliamentary Portfolio Committee (Date: 15 June 2000).
e) I know that the Portfolio Committee has engaged in a meritorious process of public consultation to increase its knowledge and understanding of the relevant issues. I must praise the Portfolio Committee and its Chairman for these efforts (Date: 3 October 2000)
2.19 The authors of the IFP Document spare no effort in using diatribe, expletives and vitriolic verbiage in attacking the Penultimate Report. One would have thought that more suave and urbane words would have been more effective.
2.20 An unwarranted attack on the Chief Whip of the Majority Party on page 4 of the IFP Document is pathetic. Nobody should envy his premiers and authority!! One wishes the IFP goodluck to be a Majority Party one day, so that it can also have a Chief Whip with such powers and authority.
2.21 The insistence by the authors of the IFP Document (P5) that the White Paper cannot be flawed, "especially when it is read together with its implementing legislation" boggles the mind. This is, in fact an admission that the White Paper is nonsensical and only makes sense when buttressed by legislation. Not even a rocket scientist can grasp this type of reasoning! As a Portfolio Committee, we have always WARNED AGAINST THE DANGER OF THIS PRACTICE. The White Paper process must first be concluded and when FEEDBACK is received on it, then PROCEED with the bill instead of POTPOURRI OR STEW APPROACH whereby both the White Paper and the Bill are handled together!! This is exactly what has bedevilled this entire progress.
2.22 Lindela Repatriation Centre and the Lebombo Boarder Post. Very simple English was used to explain the purpose of these two visits and there is NO NEED to pretend to misunderstand their inclusion in the Penultimate Report.
2.23 A self-congratulatory and presumptuous assertion on P.7 of the IFP Document is the cause for amusement. The 17 items exclude the Portfolio Committee! It is common cause that ONE CANNOT BE A REFEREE AND PLAYER AT THE SAME TIME. Even if 17 items are quadrupled, this does not earn the exercise legitimacy because they are conducted by the same quarter without preliminary oversight! What is also interesting is that the "Consultative Conference" was made possible by the Chairperson of the Portfolio Committee AGREEING TO SUPPORT an application to Parliament to grant a venue (Old Assembly Chamber).
2.24 The Portfolio Committee attended the said conference merely as OBSERVERS because we were in the middle of Public Hearings on the White Paper and could not express our opinion on the same subject on which we were seeking public opinion. Why is that difficult to understand? Our opinion would only come at the end of Public Hearings.
2.25 The proposed 20 PRINCIPLES are intended to form the basis of the new White Paper. They are a subject of discussion NOT A PRESCRIPTION.
2.26 It is difficult to fathom the ARROGANCE of point 4 on page 12 of the IFP document,namely " Any further consideration by the Committee of the legislative and administrative reform on migration control should be based on the combined reading of the White Paper and its Bill." We as the Portfolio Committee do not know WHO HAS THE RIGHT to dictate to us how we should exercise Parliamentary oversight!!! MP worth his or her salt cannot countenance the erosion of democracy, absence of transparency and accountability.
2.27 The other points to respond to have already been adequately dealt with and canvassed in the Penultimate Report. There is no need to revive the debate on them.
3.1The authors of the IFP Document are defensive in the extreme.
3.2Their views are noted and respected as we cannot always agree.
3.3 The Portfolio Committee will comply with the request of the authors of the IFP Document that in familiarising our report, "Comments be attached to it as an integral part of proof or minority view". (P.13)
CRITIQUE OF THE RESPONSE OF THE UDM TO THE PENULTIMATE REPOR OF THE PUBLIC HEARINGS CONDUCTED BY THE PORTFOLIO COMMITTEE ON HOME AFFAIRS ON THE WHITE PAPER ON INTERNATIONAL MIGRATION
20-10-00, Cape Town
We thank the United Democratic Movement for taking the trouble to respond to the Penultimate Report.
2. BRIEF CRITIQUE
On account of the brevity of the UDM's response as proposed (although unsigned) by the Hon. Annelize van Wyk (MP), our response will also be laconic.
2.1. It must be stated right at the outset that, though the UDM is active on the Portfolio Committee on Home Affairs, from its response, on this subject it is superficial. The UDM has not grasped the issues. This may be partly due to their inability to having attended fully the Public Hearings. This has deprived them of knack to develop a holistic prospective of the While Paper Process.
2.2. The UDM takes for granted the "right of the Portfolio Committee to conduct Public Hearings." (UDM Document). What the UDM fails to grasp is that RIGHT is actually being challenged by the Minister because he has ALREADY CONDUCTED PUBLIC HEARINGS! In his opinion we are merely duplicating and delaying. All we should do is to accept the White Paper and read it together with the BILL.
2.3. The proposed 20 principles are meant to set the foundation for a new White Paper. It is therefore, incorrect for the UDM to acknowledge that "as much as '11' of those principles are already in-cooperated in the White Paper and the Bill" (P.2 UDM Document).
2 4 By the above-mentioned statement, the UDM actually condones the fact that it is alright for the Bill to drafted EVEN BEFORE a report by the Portfolio Committee on Public Hearings is presented. This is a crucial FLAW! as the Bill should be INFORMED BY OUR REPORT!
2.5. The matter of the views of the Portfolio Committee was clarified when the Penultimate Report was released on 5-10-00.
2.6. Briefing of the Portfolio Committee on 03-10-00 is appropriately captured it because it exposes the SHIFT in the White Paper.
3.1. We thank the UDM for their views and note them.
3.2. We urge the UDM to acquaint themselves with the issues at hand.
3.3. The issue of Minister and chairperson is immaterial to the situation. What is at stake is democracy, Parliamentary protocol regardless of who the Minister or chairperson is i.e., the Constitutional separation of powers that must be respected.
3.4. The urgency of having a migration law is accepted. However, what is important are the principles on which such a law is bottomed. Otherwise, Home Affairs will always be played by endless litigation that will not augur well for good governance. Our task as a Portfolio Committee is to exercise oversight in under to foresee the pitfalls arid thus help both the Minister and Government. We should avoid the temptation of merely cruising or bobbling along. MP's must be vigilant and not be land-bank. We must defend the gains of the democracy for which people fought so hard. NO MP worth his or her salt cannot countenance the erosion of democracy, absence of transparency and accountability.