South Africa gave effect to the UN Convention by the enactment of the Refugees Act 130 of 1998, which echoes the international principle of “non-refoulement”. This principle requires countries who ratified the UN Convention not to return persons to countries where their life or freedom would be threated because of their “race, religion, nationality, membership of a particular group or political opinion.” In South Africa however, there appears to be controversy around how refugee status is awarded and the asylum-seeking process was plagued with systemic corruption. This had to be urgently addressed and, in December 2017, the President signed into law the Refugees Amendment Act 11 of 2017, which seeks to address fraud and corruption and to streamline the asylum-seeking process. Although signed into law, the operation of the 2017 Amendment Act still needs to be proclaimed.
The asylum-seeking process however cannot be viewed in isolation. Besides the Refugees Act, the Immigration Act 13 of 2002 also regulates the movement of people into the country. South Africa has 72 designated ports of entry and the Department of Home Affairs’ Annual Report of 2016/17, revealed that Immigration Officers recorded 40 million entries and exits annually. It is also important to keep in mind that these ports of entry are also the first contact asylum-seekers would have with the country’s administrative system before being referred to a Refugee Reception Office to apply for asylum. Therefore, border management is a crucial aspect, which one cannot lose sight of in considering South Africa’s asylum-seeking process. With this in mind, it is fitting to discuss the controversial Border Management Authority Bill (BMA Bill), lurking in the corridors of Parliament. Despite serious objections, the BMA Bill was passed by the National Assembly in 2017 and is currently under deliberation by the National Council of Provinces (NCOP). If approved, it only requires the President’s signature to become law.
The BMA Bill essentially aims to integrate border management, which is currently exercised by various Departments, under a single authority. It establishes the Border Management Authority (BMA), which, via the Authority’s head (the Commissioner), reports to the Minister of Home Affairs (Minister).
The BMA is described as an “armed service” in terms of section 199(3) of the Constitution, which has the “exclusive” right to perform “border law enforcement functions” within the “border law enforcement area” and ports of entry. The “border law enforcement area” is described in the Bill as the area falling within a distance of 10km inside the land border or maritime border. Therefore, essentially the BMA is a security body reporting to the Minister. The BMA Bill will also “facilitate” and “manage” the “movement of persons and goods” at these points. Worryingly, it will also “facilitate the collection of revenue within the border law enforcement area and all ports of entry”.
On close reading of the BMA Bill, various alarm bells go off. The BMA Bill undermines the well-established power of the South African Revenue Service (SARS) with reference to the collection and administration of tax, which includes control over import and export. National Treasury emphasised that one cannot separate tax collection from the administration and the Davis Tax Committee specifically held the BMA cannot be assigned key revenue-collection functions of SARS. Furthermore, the BMA Bill provides law enforcement in the “border enforcement area” and ports of entry will be “exclusively” exercised by the BMA. On this reading, the constitutional mandate of the South African Police Services (SAPS) to “prevent, combat and investigate crime” and to “uphold and enforce the law” in the whole of the Republic appears to be restricted.
In relation to asylum-seekers, it is concerning that even though ports of entry would be their first contact with the country’s administrative system, the BMA Bill fails to make any reference to the Refugees Act or the Immigration Act. It is unclear how law enforcement by BMA officers will be applied to these Acts. The BMA Bill also worryingly provides extensive powers to search, seize and arrest with or without a warrant – but fails to make any reference to the Criminal Procedure Act 51 of 1977 (CPA Act) in this instance. Asylum-seekers could easily be abused and it is unlikely that they will question authority in these desperate circumstances.
Vagueness and legislative uncertainty create ample opportunity for corruption to creep in. The BMA Bill not only raises worrisome concerns on security and taxation but it also hinges on extensive unchecked power being exercised by BMA officers. World Refugee Day provides a vital reminder: we have to closely monitor law-making to ensure it does not feed into xenophobia but reflects the Rule of Law and gives effect to our Bill of Rights.
By Ms Christine Botha: Legal Officer, Centre for Constitutional Rights
20 June 2018