By Sandile Nene
One of the key government’s strategic outcomes is secure and efficient management of international migration resulting in South Africa’s interests being served and fulfilling international commitments. To this end, government continues refine its policy and regulation that will result in the efficient determination and safeguarding of the identity and status of South African citizens and the regulation of migration to ensure security as well as to promote and fulfil this country’s international obligations.
To this end, South Africa has different pieces of legislation dealing with citizenship, immigration and refugee protection namely, Citizenship Act, Act 88 of 1995, Immigration Act, Act 13 of 2002, and the Refugee Act, Act 130 of 1998 as amended. In fact, the South African Citizenship Act is a relic of the colonial era and a replica of the 1949 Citizenship Act, Act 44 of 1949, under the Union of South Africa. In practise, these pieces of legislation in other instances, are not in harmony with each other and the implementation becomes cumbersome and difficult resulting in:
- Asylum seekers, refugees and foreign nationals acquiring permanent residence status, other visas and citizenship prematurely and irregularly;
- Criminal syndicates, including human traffickers having networks to exploit the refugee and immigrant system to carry out their criminal activities with impunity;
- The many visas provided for in the Immigration Act are abused and, in some instances, through corrupt activities involving officials of DHA;
- The asylum regime is sometimes conflated with economic migrants, which overburdens the asylum system and that the new system must provide for economic migrants and asylum seekers separately;
- The United Nations, International Residual Mechanism for Criminal Tribunal (relating to genocide) complained about granting of refugee status in South Africa to persons who are excluded in terms of the 1951 Convention because they committed atrocities in their country of origin; and
- The enforcement and the implementation of the said three pieces of legislation are weak and ineffective and passed through the earlier years of democracy.
Since the dawn of democracy in 1994, work has been done to facilitates and regulate the secure movement of people into and out of the Republic of South Africa through ports of entry; determines the status of asylum seekers and regulates refugee affairs. This work includes strides made to confirms and provide enabling documents to foreign visitors legally residing within the Republic of South Africa and enforces immigration legislation and effects deportations.
Further, government has been rolling-out the e-Visa regime in the 2019/20 financial year, starting with Kenya, then the Peoples' Republic of China, Nigeria and India. By the end of March 2022, the e-Visa had been rolled-out to 14 countries. The e-Visa initiative contributes to the world-class visa regime supporting economic growth and job creation. The e-visa also enhances economic recovery, increases tourism activities, and promotes investments and business growth.
Notwithstanding the above, the legislation that regulates many critical areas (such as national identity, migration as well as marriages) in South Africa has been developed without an overarching policy that is based on constitutional values (e.g. equality, non-discrimination and human dignity) and the understanding of modern societal dynamics. For instance, instead of creating a harmonised system of marriage in South Africa, the state has sought to give recognition to different marriage rituals by passing a range of different marriage laws and this has created serious gaps as the current legislation does not regulate some religious marriages, such as the Hindu, Muslim and other customary marriages practised in some African or royal families.
In the same way, government through the Department of Home Affairs (DHA) has embarked on a difficult process of drafting an overarching White Paper Policy on Citizens, Immigration and Refugee Protection (the White Paper).
As South Africa is a member of the International Organisation for Migration, an agency of the United Nations (UN), the proposed policy various measures in which this country can implement to deal with the crisis of migration which at times leads to violent classes between foreign nationals and citizens.
The South African government through DHA bears the constitutional and legislative mandate to ensure that migration is properly regulated and result in economic development; effective borders management; refugee protection; peace and stability. The White Paper policy is informed by the principle of Pan-Africanism and existing international trends to government’s response to challenges posed by unlawful migration.
As a caring and responsive government, it is important to note that this policy development comes after consistent loud voices calling for effective policy measures and legislative interventions dealing with migration in South Africa. These voices grew louder as violent clashes between foreign nationals and citizens rear its ugly heads and this development threatens the security of the State.
Sandile Nene is Chief Director Media Policy at GCIS