South Africa’s complex migration policy highlights the contradiction between its commitment to free movement within the African continent and its stringent immigration regulations. The country’s political, philosophical, and economic underpinnings of free movement struggles against the AU’s Agenda 2063 and international treaties.
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The word ‘containment’ is fitting when describing South Africa’s immigration policy. From the legislation that seeks to control and limit the movement of unskilled people, to the alarming raids that seek to identify and incarcerate people who are undocumented in harrowing detention facilities where there is little regard for their human rights. South Africa has an alarmingly high deportation rate—it deported over 350,000 people in 2016 (the United Kingdom deported 40,377 people in the same year)—and chooses to haphazardly close refugee reception offices in places where refugees need them most. It is evident that South Africa’s migration policy functions to control and prevent immigration.
It is indeed perplexing that this policy was in place during the time when President Cyril Ramaphosa held the position of the African Union’s (AU) head. This is particularly noteworthy because it was during Ramaphosa’s tenure that the AU undertook its most comprehensive regional integration initiative since the establishment of the African Union. For this reason, it is important to understand what seems like policy uncertainty—the gap between South Africa’s regional obligations and its law. It is necessary to explore South Africa’s migration policy in light of the concept of free movement and the political and economic underpinnings of it on the African continent.
INTERROGATING SOUTH AFRICA’S MIGRATION POLICY
The official position of the South African government is that it stands firmly behind the idea of free movement. In a 2017 parliamentary briefing on the AU Agenda 2063, the Department of Home Affairs presented a report to parliament stating:
South Africa supports the development objectives and aims of Agenda 2063 in the context of strengthening the African cooperation, integration and for promoting inclusive development, peace and security. The support for the Agenda 2063 is informed by the understanding that South Africa’s destiny is intricately linked to that of the continent. Regional and continental integration are the foundation for Africa’s socio-economic development and political unity and essential for South Africa’s prosperity and security. South Africa fully supports the principle of free movement on the Continent, including the need for the AU to conclude a protocol to facilitate such free movement.
In this report, the Department of Home Affairs listed factors that it considered when choosing to forego signing the Free Movement of People Protocol (FMoPP). The FMoPP aims to facilitate the movement of Africans within Africa and enhance the right to entry, residence and establishment. The Department of Home Affairs’s factors for forgoing the FMoPP included the lack of preconditions to the implementation of the abolition of visa requirements, the failure to develop a civil registration system that would result in integrated border management and concerns regarding failure to establish bilateral agreements that would precede abolition of visas and an unqualified right of entry.
The FMoPP stands as the primary legal framework establishing the fundamental basis for continental free movement in Africa. It Is noteworthy to mention that no country in the Southern African Development Community (SADC) regional bloc has signed, ratified or acceded to the FMoPP. South Africa seems to have opted to follow the policy outlined In the SADC Protocol on the Facilitation of Movement of Persons which was ratified In 2008 which focuses on mitigating and controlling free movement rather than opening borders.
However, there is a general sense that policy relating to migration seems to say one thing while doing another. On one hand, migration treaties and international statements commit to regional integration. On the other hand, South Africa seems to be leaning into robust border control and immigration legislation, which creates a proliferation of red tape around the movement of people, especially unskilled people, from other African countries. One of the South African Immigration Act’s main intentions is to permit an easy flow of highly skilled foreigners and investors into South Africa. Furthermore, the South African government has implemented increasingly restrictive measures on migration in the last decade. These have included the Immigration Amendment Act, which was aimed at providing adequate sanction for immigrants who had overstayed the stipulated dates on their visa, even if they timeously applied for an extension that had not been processed by the Department of Home Affairs.
This policy uncertainty muddies the waters of South Africa’s contribution to free movement. By signing and ratifying the Abuja protocol and the African Continental Free Trade Area treaty (AfCTA), South Africa has committed to free movement and continental integration. But failure to sign the FMoPP, the 2017 White Paper on Immigration and the lack of consistency in immigration legislation do not signify that this commitment is at all pressing, at least in the short term. This incoherency exists notwithstanding tight schedules for the implementation of economic integration.
Nonetheless, it is still meaningful to analyse the concept of ‘free movement’ and hope to understand its meaning, implications and how it can be actualized. Not only because South Africa has, in many uncertain terms, committed to it broadly but also because it is useful in imagining the future of immigration policy.
OUTLINING SOUTH AFRICA’S INTERNATIONAL LAW COMMITMENTS
In 1991, AU member states signed the Abuja Treaty, which established the African Economic Community. South Africa signed it in 1997. Article 5 of the treaty, which is especially noteworthy, envisages 34 years to consolidate and strengthen the structures of the African common market and includes a commitment to the free movement of all citizens on the African continent.
The Abuja Treaty is an expansive commitment to free movement because it situates the conversation on free movement in a broader conversation on African integration. Therefore, the commitment was not only to open borders in the continent but also concerned the social, political and economic integration of the continent. It is difficult to imagine that such a vast commitment could be made without an implicit acknowledgement of the future and present right of citizens to freely cross borders.
In hopes of realizing the commitments made in the Abuja Treaty, the AU has created a milieu of policies, treaties and programmes aimed at achieving regional integration and the free movement of Africans in Africa under the broad banner of the Africa 2063 policy framework. Agenda 2063 hopes to allow Africans to travel, live and work within the continent. It does so by hoping to streamline the process through which Africans can realize the right of entry, the right of residence and the right of establishment within all AU member states.
Most countries, including South Africa, have signed and ratified the AfCFTA, which largely regulates the movement of free goods while loosely alluding to the free movement of people. However, South Africa has neither signed nor ratified the FMoPP even though South Africa was largely at the helm of FMoPP negotiations.
FREE MOVEMENT: PHILOSOPHICAL, POLITICAL AND ECONOMIC UNDERPINNINGS
The Abuja Treaty for free movement of persons is defined as the right of residence and the right of establishment. However, the FMoPP refines this definition and includes the right to remain. This could be interpreted as the AU taking a policy stance on the use of visas and measures to regulate movement and in support of absolute free borders.
Free movement is the right of a person to freely enter, engage in economic activities, reside and seek employment in a state other than their state of origin in accordance with the laws of the state. In this context, it is the right of Africans to enjoy almost full benefits of citizenship in any African state.
FMoPP sets out three phases in its rollout plan. The first is the abolition of all visa requirements while the second is through the implementation of the right of residence and the third is the implementation of the right of establishment. The protocol also has descriptive requirements that set out the way free movement should be established. These include a non-discrimination clause that can function to prohibit protectionist labour policies that exclude non-citizens from certain careers, the establishment of an African passport, mutual recognition of qualifications of all member states, free movement of students and researchers and the portability of social security benefits. After the adoption of Agenda 63, Seychelles, the Gambia, Rwanda, Zimbabwe and Benin all took steps to ensure visa-free travel to all Africans. South Africa’s stance has been to reduce visa requirements for some countries through bilateral agreements.
FREE MOVEMENT: PHILOSOPHICAL, POLITICAL AND ECONOMIC UNDERPINNINGS
Although South Africa is the largest African source of Foreign Direct Investment (FDI) for the continent (accounting for 39 per cent of intra-African FDI), at five percent of total FDI in Africa, this is substantially below that of non-African sources and mostly concentrated in Southern Africa. South Africa also has a long way to go in extending its continental influence and structural power. Thus, despite its strengths and positive impacts, the AU remains financially weak, dependent on external donors and fraught with limited implementation capabilities and supranational power.
THE POLITICAL ORIGINS OF FREE MOVEMENT
‘Aspiration 2’ of the AU’s Agenda 2063 envisages an integrated African continent which is united based on the ideals of pan-Africanism and the vision of the African Renaissance. In 2063, it reads, ‘Africa will be a united continent that has realised full economic and political integration.’ The political consensus surrounding the political free movement is solidly routed in and evolves from a post-colonial, pan-African tradition that sees Africa as the source of an identity that expands beyond its borders and into the diaspora. Pan-Africanism envisions a strong united and self-reliant continent as well as its diaspora as one nation triumphant against imperialism and colonialism. These ideas are embodied by leaders-cum-presidents like Leopold Senghor who wrote in the poem, ‘To Negro-American Soldiers’:
Under your closed face, I did not recognize you. I only touched the warmth of your brown hand,
I called myself “Afrika!”
And I found once again the lost laughter, I hailed the ancient voices and the roar of Congo waterfalls.
Pan-Africanist ideas are further promoted by policy and legislation such as Ghana’s Immigration Act of 2000, which gives all Black people in the diaspora the right to live and work in Ghana by claiming the Right of Abode. These ideas are fully routed in pan-Africanist ideology, which seeks to build a strong and united Africa, on one hand, by reaffirming the sovereignty of African states from colonial powers and on the other by acknowledging that the borders we accept on the continent today are inexplicably the result of the 1884 Berlin conference which divided African societies without any thought or consideration for Africans. This line of thinking is reaffirmed in the Organization of African Unity’s founding charter in which the preamble reads:
Inspired by the noble ideals which guided the founding fathers of our Continental Organization and generations of Pan-Africanists in their determination to promote unity, solidarity, cohesion and cooperation among the peoples of Africa and African State.
This document reinforces the need for collective action by Africans and the socio-economic and political integration of the continent but makes sure to place a caveat, which reaffirms respect for the sovereignty and territorial integrity of each state and its right to independence, existence and determination of its policies.
This continued insistence on acceptance of African territories as valid and, by extension, their borders has been criticized by contemporary pan-African thinkers most notably political theorist, Achille Mbembe, who argues, quite controversially, that nation-states with their borders are unable to respond to the challenges that Africa faces. Mbembe draws on the theories of anti-border scholars in the West and seems to think that borders reproduce dehumanization of people who from elsewhere by attaching terms such as refugees and asylum seekers to people. Borders, in Mbembe’s worldview, are boundaries to us experiencing a pre-colonial, disrupted African history in which people could build alliances through trade, marriage and religion and be absorbed into polities.
African states in the post-colonial era have, however, had to consider the myriad of challenges including terrorism, economic meltdown, poverty and unemployment. This poses a unique challenge to states who must choose whether to shed their ability to control and dictate the internal affairs of their countries or abide by ideology and international agreements. In West Africa, where borders are porous, easy movement through states has contributed to the crossing of borders in the region by terrorists such as Boko Haram and the Islamic State in West Africa. States wishing to integrate must address the issue of large development gaps, corruption, instability, undemocratic rule and civil strife. In South Africa, where unemployment is high, the rising numbers of migrants fan xenophobic sentiments that argue that migrants are an undue burden on the workforce.
THE ECONOMIC ORIGINS OF FREE MOVEMENT
The strength or failure of free movement, no matter how politically and philosophically strong its underpinnings may be, is vastly determined by its economic feasibility. Therefore, looking into the practice of free movement in ECOWAS, on the African continent and in the European Union where free movement has been established, is a helpful tool in accessing the success of free movement.
Proponents of open borders have argued that restrictive laws surrounding border and immigration policy function as an unjustifiable denial of the right to freedom of movement and equality. This is in line with Articles 15, 23 and 25 of the Universal Declaration of Human Rights, which affirms the right to change nationality, work freely in exchange for remuneration without discrimination and obtain an adequate standard of living.
Notwithstanding these rights, there is still a massive gap between legal protections of freedom of movement and the way they have been realized by the South African state. This may be because South Africa is still dealing with the legacy of apartheid and is reluctant to further complicate an already complex socio-political situation. Therefore, South Africa is choosing to gradually develop relationships with other states and prioritizing sovereignty over economic and social integration. This position is in line with the OAU’s founding charter and ultimately Articles 3 (b) and 4(b) of the AU’s constitutive act, which reinforce the territorial integrity of states. South Africa’s hesitancy to advance the freedom of movement may also be due to its preference for a securitized approach to border management and the reality that there are pervasive negative ideas regarding migration. For example, the 2017 South African White Paper on Immigration has been criticized for focusing on the link between migrants and criminality and only extending leniency in the visa process to highly skilled immigrants.
Nonetheless, it is important to remember that the rights set out in the Universal Declaration of Human Rights are not absolute and can be limited in line with section 36 of the South African Constitution, which states that rights may be limited by a law of general application that is ‘reasonable and justifiable in an open and democratic society based on dignity, freedom and equality’. The rights to change nationality, work freely in exchange for remuneration without discrimination and obtain an adequate standard of living have without question been limited by the South African Immigration Act as well as the refugees act, which set out to restrict the ways in which immigrants can settle in South Africa. Section 36 of the constitution also states that these rights should be justifiable in an open and democratic society based on dignity, freedom and equality. This means that the law must be reasonable in so far as it does not infringe on any other rights. Research such as this , amongst others, a 2018 study by the OECD, on the effect of migrants on the labour market in South Africa shows that it does not have an overall negative impact on the labour market. However, most South Africans still see immigrants as the cause of many socio-economic issues such as crime and unemployment. Therefore, any conversation on the implementation of free movement, without the buy-in of the majority of South Africans, would undermine the constitutional commitment to a participatory democracy.
Furthermore, as stated in the White Paper considering the free movement protocol, the infrastructure and integration that is required to implement free movement does not exist in any meaningful way on the continent. For South Africa to realize its commitment to free movement, the state would have to extend the same rights and privileges to non-citizens who are citizens of other African countries. This would entail providing a broad bundle of rights to African citizens which would include the abolition of all visas, the right of residence and the right of establishment.
In South Africa, there are no credible statistics to establish the proportion of migrants who are documented. Most migrants are in possession of documentation, some being valid and fit for the purpose that they are in the country and some having either passports and visas that are not fit for the purpose of their stay. However, the White Paper on immigration makes reference to Agenda 2063 and abolishing visa requirements as a long-term goal, which is subject to bilateral agreements between states and security measures. The policy it sets out allows trusted travellers from the African continent to access long-term multiple-entry visas. The concession is daring in light of prevalent nationalist policies in South Africa that see real support for the tightening of immigration policies. However, a deeper look at South Africa’s visa architecture reveals that visas for people of African nationality still on average have shorter stay times and fewer entitlements.
THE RIGHT OF RESIDENCE AND ESTABLISHMENT
The right of residence entitles people to reside in a given country and enjoy some benefits that resemble those conferred on citizens. This is especially contentious in South Africa, as it has an extremely high deportation rate. In the last decade, the Department of Home Affairs has exercised rash and broad powers to deport people with minimal repercussions. They have not complied with legislation that is already in place. This has included the detention of minors who have been subjected to inhumane conditions in detention facilities. Children born to refugee parents are also consistently deprived of their right to belong to a state and have security of residence. This means that there is a long way to go before the right to residence for Africans within South African borders is actualized.
The right of establishment refers to the right to take up employment and pursue economic activities in a state. In South Africa, migration policy in the last 27 years has prioritized South Africa’s commercial interests and not the establishment of the right of establishment for all migrants. This has resulted in migration policy favouring skilled immigrants. However, the reality is that South African migrants are more likely to be employed in precarious work or in the informal sector. Their contribution to the economy, however, cannot be overlooked. For instance, migrant waste-pickers save the municipality millions of rand per year, improve the rate of recycling and free up space in the cities’ congested landfill sites. Despite their contribution, no city has formally recognized their work or integrated them into its waste management systems. This lack of recognition is largely because of their migration status. The right of establishment is currently available to immigrants only after successful application for certain visa types. While the Immigration Act provides that migrants shall enjoy all the rights of South African citizens, the Employment Services Act provides that citizens ought to be employed before non-citizens.
The right to establishment also includes broad social security benefits. This is elucidated by the European case, Gaygusuz v Austria (1996), which was brought before the European Court on Human Rights. It had to do with the refusal of an unemployment benefit on the basis of nationality. The court found that the contributions of a Turkish national, Mr Cevat Gaygusuz, to Austrian social security through taxation had to be considered and he could not be subjected to differential treatment merely because of his citizenship. In South Africa, in the 2004 constitutional court case, Khosa v. Minister of Social Development and Mahlaule v. Minister of Social Development, the court held that the legislative qualifications that prevented permanent residents from accessing social security were unconstitutional and could not be justified on financial grounds.
The failure to promote the right to establishment is most frequently seen in the Spaza shop industry, where migrant business owners have frequently been the victims of xenophobic attacks. Although the immigration act lays out a platform for the education of communities on the rights of immigrants and the integration of migrants, the government has responded to these attacks by regulation that has attempted to curtail the business activities of immigrants.
The African Union envisions the attainment of free movement as a process that will only be completed in 2063. The first step of that process is the abolition of visa requirements. In this regard, South Africa has not holistically committed to its obligations. While it has eased the visa process for nationals of Brazil, Russia, India and China (the other members of ‘BRICS’, a grouping of emerging market economies that South Africa belongs to), it has not done so for the AU. This means that there is a legislative framework for the easing of restrictions; there is just no willpower. The problem is in migration policy that does not prioritize continental integration. The continued insistence by South Africa on the use of bilateral agreements flouts the readily available international mechanisms to achieve free movement. This is an indication that there is no willpower to abolish visas on a continental scale.
International commitments to free movement cannot be seen in a vacuum. South African leaders must contend with a growing nationalist rhetoric in South Africa. This is worsened by regional security problems that allow citizens and politicians alike to see African immigrants only as security threats or economic burdens. These commitments also happen against a backdrop of worsening socio-economic problems such as youth unemployment crisis, which results in a popular sentiment that immigrants only take already scarce government resources. The lack of full commitment will become more worrying in the coming years, as a growing number of African countries have and continue to ease visa requirements for African citizens. The reality is that there can be no hope of implementing the right of residence or establishment if visas continue to be such a contentious issue⎈
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