Sunday Times

The border wars

Who Home Affairs lets in

- By GARY EISENBERG ✼ Eisenberg is the founding attorney at Eisenberg & Associates. He advised on the final draft of the Immigratio­n Act in 2003

Malusi Gigaba’s Border Management Authority Bill would be a silent coup, seizing powers from other department­s for the use of top home affairs managers

● Contrary to common belief, South Africa’s borders constitute the most valuable of all state assets on the country’s balance sheet. Their capture is tantamount to the control of South Africa’s sovereignt­y.

All immigratio­n systems aim to protect the physical and legal parameters that define a country’s sovereignt­y. In South Africa’s case, the extent to which our borders are modulated to enable the influx of foreigners is controlled by the Department of Home Affairs, with executive authority vested in Minister of Home Affairs Malusi Gigaba.

It is increasing­ly clear that the department’s managerial “complex” — which might be said to extend from the minister to an establishe­d group, including director-general Mkuseli Apleni, deputy director-general Jackson McKay, and the chief directors of its directorat­es, such as the immigratio­n inspectora­te, counter-corruption and legal services — does not operate solely within the ordinary legislativ­e and constituti­onal framework. It appears to operate also in a parallel, shadow decision-making realm.

The home affairs complex has captured South Africa’s borders in a quiet coup that has escaped the scrutiny of the public protector and observers.

Control of our borders was ultimately wrested by the Department of Home Affairs from more than 18 state department­s and parastatal­s, including SARS, by Gigaba’s championin­g of the Border Management Authority Bill. When the bill was debated in parliament in May 2017, DA spokesman on home affairs Haniff Hoosen called it “one of the worst pieces of legislatio­n that has come before the house”, and an attempt to create yet another entity that could be captured by the greedy and corrupt in power.

The department’s legislativ­e mandate gives it responsibi­lity for little more than passport control at ports of entry. Should the Border Management Authority Bill be passed by the National Council of Provinces this year, it will place a monopolist­ic control of all border-related matters — including defence, policing, customs revenue collection­s and VAT rebates, and the movement of all goods and the 40 million people entering and exiting the country — in the hands of home affairs.

Alongside the growth of a shadow state within the constituti­onal democratic structure, a second tier of our borders’ modulation has taken place, outside of the mundane implementa­tion of immigratio­n legislatio­n. This has been achieved by the home affairs complex and its “fixers” and “enforcers” embedded in the home affairs bureaucrac­y.

While various home affairs ministers — including Nkosazana Dlamini-Zuma and Gigaba — have been publicly (and loudly) preoccupie­d with the eradicatio­n of corruption from the ranks of the department and civil society, this was nothing but a ruse to divert attention from the creation of a shadow decision-making authority within the department.

The extraordin­ary stagnancy with which home affairs management pursues corruption cases brought to its attention reveals that this is nothing more than a veiled reluctance to enforce its “zero-tolerance” policy.

The first phase of the capture of our borders and immigratio­n system began with Dlamini-Zuma’s deployment of cadres as enforcers of a restrictiv­e immigratio­n policy. In 2010, with the centralisa­tion of decision-making on all immigratio­n and citizenshi­p applicatio­ns, a new approach to immigratio­n control was predicated on the fabricated scourge of human traffickin­g. This morphed into the enactment of stringent immigratio­n legislatio­n in 2014, effectivel­y closing our borders to foreigners.

The pattern of gross inefficien­cy and administra­tive bungling in home affairs’s handling of citizenshi­p and immigratio­n applicatio­ns is inextricab­le from the “designed chaos” that has been widely observed. Compliant applicatio­ns are frequently rejected; appeals and ministeria­l exemption applicatio­ns are stymied by red tape to the extent that corruption often seems the only remedy for those desperate enough.

The system of immigratio­n administra­tion now predicates itself on a dangerous duality of standards of administra­tive justice while the home affairs complex remains entrenched. This complex has artificial­ly manipulate­d policies, procedures and access to efficient decision-making for purposes other than preserving the integrity of the legislativ­e apparatus. The closure of the borders to everyone creates an opportunit­y to modulate their opening to those willing to pay a higher price.

One such example is the politicall­y preferenti­al treatment granted to a senior member of the Popular Front for the Liberation of Palestine, Leila Khaled, a “prohibited” person in terms of our immigratio­n legislatio­n. Gigaba himself went to the airport as part of her welcoming committee. The only way Khaled could have lawfully entered South Africa was for her prohibitio­n to be lifted by the director-general with “good cause”. Her entry was facilitate­d by the home affairs complex without any public explanatio­n.

Later that year, in June 2015 and against a court order, Sudanese President Omar al-Bashir escaped an internatio­nal arrest warrant by departing from South Africa through Air Force Base Waterkloof. His passport was not examined by immigratio­n officers. This is an indisputab­le case of political rent-seeking at the behest of the executive authority, with the full cooperatio­n of a willing complex of officials.

If this is the benchmark for administra­tive justice, how can ordinary people — including foreigners subject to the Immigratio­n Act — be held to a different standard? How can a regime of law exist with integrity when access to administra­tive justice is only possible through a shadow decision-making authority outside of the rule of law?

This principle cannot be more poignantly articulate­d than in the celebrated words of US Supreme Court Justice Louis Brandeis: “If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.”

 ??  ??
 ?? Picture: GCIS ?? Former president Jacob Zuma meets Sudanese President Omar al-Bashir in Khartoum in 2015 — the year Bashir escaped an internatio­nal arrest warrant by freely leaving South Africa .
Picture: GCIS Former president Jacob Zuma meets Sudanese President Omar al-Bashir in Khartoum in 2015 — the year Bashir escaped an internatio­nal arrest warrant by freely leaving South Africa .

Newspapers in English

Newspapers from South Africa