Prof. Bheki Mngomezulu
THE Minister of Home Affairs, Aaron Motsoaledi, announced the publication of the White Paper on Citizenship, Immigration and Refugee Protection, in the Government Gazette No. 49661, last week.
The sub-theme is: “Towards a complete overhaul of the migration system in South Africa.” Briefly, this is a progressive move with good intentions and high expectations. For years, the department has been facing serious challenges. Even its financial position was unhealthy.
There was a semblance of hope when Dr Nkosazana Dlamini Zuma was appointed to lead it. For the first time, the department was given a clean bill of health. After her departure, there was a resurgence of the old challenges.
Importantly, new challenges also surfaced. Delays in processing various applications, as exemplified by long queues and the escape of fugitives such as Shepherd Bushiri attest to such assertions.
From the ministry’s side, some of the problems emanate from the decisions that were made by the political leadership in 1996 after the 1994 first democratic election.
Some even cite the Constitution as another impediment that prevents the department from making tough decisions, including dealing with illegal immigrants.
Against this background, Motsoaledi has been at pains to explain to Parliament and the public, through various media houses, why the White Paper is necessary. The question that arises is: Will the White Paper be the panacea to South Africa’s immigration challenges?
To answer the question adequately we must first understand what is contained in the White Paper. First, in his opening statement, the minister cites the resolution of the ANC at its 55th National Conference held from December 16 to 20 last year, and again on January 2.
The resolution stated: “The ANC- led government must completely overhaul the Citizenship Act, Refugees Act and Immigration Act to meet the challenges facing South Africa.”
The resolution was an honest admission that certain things are going wrong regarding immigration laws.
Implicit in the admission was that there were legislative issues that had to be addressed so that the department could properly respond to the endemic challenges.
Therefore, the minister saw himself as the conduit implementing the ANC’s decision through this White Paper.
Understandably, the White Paper provides the necessary context that prompted the minister to propose it. This includes reflecting on the role of the government in dealing with migration and the principle of pan-Africanism.
Importantly, the section is followed by one that enumerates legislation impacting immigration in South Africa. The three pieces of legislation are: the South African Citizenship Act No. 88 of 1995, the Immigration Act No. 13 of 2002 and the Refuges Act No. 130 of 1998. What is important is that all the pieces of legislation were enacted under the democratic order. Therefore, they cannot be blamed on the apartheid government.
Tacitly admitting that the post-apartheid government erred in making certain decisions, Motsoaledi captured the impact of international laws on South Africa’s immigration challenges.
In this regard, he cited the 1951 Convention, the 1969 OAU Convention and other instruments. What has become clear is that South Africa was engulfed by the independence euphoria and did not read the international conventions closely.
Unlike other countries that indicated specific clauses that they would not agree to, South Africa accepted the conventions in their totality, hence the challenges the country is wrestling with.
From the minister’s diagnosis – both the national and international contexts – one gets the impression that once the White Paper has been adopted and a bill is prepared and passed into law, the Department of Home Affairs will be out of the woods. This is a plausible conclusion.
However, our experience in the country leads us to a different conclusion. Even after the White Paper has been adopted and the necessary legislation passed, this will not be a panacea to our challenges. There are two main reasons for this.
First, South Africa is rich with technocrats who assist in crafting good policies and legislation. These are even adopted by other countries that use them successfully. In our case, the main challenge is the lack of implementation, monitoring, and evaluation.
Second, many of the challenges faced by the Department of Home Affairs are caused by a lack of ethical leadership more than limiting legislation. While it would be wrong to say the department is the only culprit, it would equally be erroneous to think that a White Paper and legislation would get the department out of its quagmire.
Implementing agents is critical. As long as corruption reigns, department’s challenge will remain unabated. Therefore, the White Paper published by Motsoaledi is not a panacea to the department’s woes. Such a thought would be self-deceit.
*Prof. Mngomezulu is Director of the Centre for the Advancement of Non-Racialism and Democracy at the Nelson Mandela University
**The views expressed do not necessarily reflect the views of Independent Media or IOL