INTRODUCTION:

IMMIGRATION, HUMAN RIGHTS AND THE CONSTITUTION

Jonathan Crush and Raesibe Mojapelo, in Beyond Control: Immigration
and Human Rights in a Democratic South Africa
(in press)

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this article as long as appropriate acknowledgments are given.

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The Aliens Control Act of 1991 is an omnibus piece of legislation purporting to regulate all facets of immigration and migration to South Africa.(1) The Act was passed in the dying years of apartheid and has been variously described as a "draconian apartheid throwback" and "apartheid's last act."(2) These depictions relate more to the origins and content of the Act than the fact that it was enacted by the last white parliament.

The vast majority of the Act's provisions were not new in 1991, deriving rather from pre-existing legislation which was consolidated in the new Act. Even the name was unoriginal. For a beleaguered white government, ostracized and condemned by the rest of the world, every outsider, every "alien", was an actual or potential threat. Immigration was about control and deportation not planning and managed entry. The apartheid government had never had an immigration plan -- unless one calls an uncritical obsession with allowing anyone with a white skin into the country and keeping out anyone with a dark skin, "a plan."

The first chapter in this collection describes the history and development of South African immigration legislation. The roots of the Aliens Control Act are deeply racist and anti-Semitic. The foundational legislation is the 1913 Immigration Act and the 1937 Aliens Act. Neither were enacted by representative governments. Both were passed in a climate of racial and religious paranoia. Both emphasized control and exclusion rather than managed entry and incorporation. Both gave wide-ranging discretionary powers to the Minister and his bureaucracy. Both shunned transparency, administrative justice and accountability. Both contained exemption clauses which allowed politically-powerful employers (such as the mines and white farmers) to devise their own "immigration policy" in league with state officials and neighbouring colonial governments. Neither would withstand a modern-day test of constitutionality.

Some have argued that the patently unconstitutional aspects of the 1991 Act were purged in a review process which began in 1994, culminating in the Aliens Control Amendment Act of 1996.(3) Certainly there was some positive tinkering at the margins but the primary purpose of the amendments was to "ensure more effective control over the admission to, sojourn in and departure from the Republic of aliens."(4) The Amendment Act was not preceded by the usual process of comprehensive policy review (the green and white paper process), public consultations and the enactment of legislation consistent with the vision laid out in a White Paper. The Parliamentary Portfolio Committee on Home Affairs did attempt to coordinate public input on the Amendment Act but there was no time to do this in a systematic and comprehensive manner.(5)

The Green Paper on International Migration recommends the abolition of the current Aliens Control Amendment Act and the development of a new Immigration Act to give effect to a new policy framework for immigration and migration to South Africa. This publication is designed to support and further the process of legislative reform initiated by the Green Paper. We believe that a comprehensive review of the shortcomings of existing legislation is a vital first step. Drafters of a new Act can be alerted to the faults and failings of existing legislation and avoid repetition of these shortcomings.

We aim here, then, to critically review existing South African immigration legislation from a variety of legal and non-legal perspectives. We do not, at this point in the policy process, prescribe what should take its place. However, we believe that the analyses offered provide a solid foundation on which to build as well as a set of warning signs to the drafters of new legislation.

The publication is structured, in the spirit of the new Constitution, as a series of informal "tests" of the Act. Each of the chapters develops one or more tests and then analyses how well the Act measures up. The remainder of this chapter highlights the main results of these "test matches" between an apartheid Act and the country's new democratic and constitutional order.

 

A Human Rights Test

South African immigration legislation, like all apartheid law, was animated by principles antithetical to the protection and preservation of human rights. The immigration field presents governments with one of their sternest tests in the human rights area.(6) All nation-states are territorial beings and all governments define the protection of territorial integrity as the raison d'etre of their existence. There are no modern states that adopt an open door policy towards all-comers.(7) By definition immigration policy is discriminatory, in the broadest sense of denying some people the right to enter, live and move, in the name of protecting the rights of others to do all three. A few find this logically and morally indefensible. Human rights -- such as freedom of movement -- are, they argue, universal and universality means that rights are to be protected and enjoyed in a way that is independent of place and location.(8) In South Africa this position has been forcefully presented by Steven Friedman who has suggested that "current forms of control are a greater threat to human rights and democracy than the presence of immigrants."(9)

A somewhat messier lower-case position is that countries that recognize the inevitability of human movement and seek to profit by it should adopt universalist criteria in their decisions about who should be allowed entry. This, of course, cuts across the whole thrust of modern immigration policy which explicitly rejects universalist criteria in immigrant selection.(10) Self-interest (no matter how enlightened) demands that states develop criteria that are, or are perceived to be, selective. Race and national origin were the great guiding principles of nineteenth and twentieth century immigrant selection.(11) In South Africa, as Maxine Reitzes points out, assimilability by the "white population" was virtually the only criterion for immigrant selection until as recently as 1986. Although the statute has disappeared, a more general restrictionist policy since 1990 has seen limited opportunity for other-than-whites to immigrate to the country.(12)

Reitzes argues that the Aliens Control Act violates "a wide range" of human rights. Indeed, the Act contains only one reference to human rights guarantees. Section 58 of the Amendment Act acknowledges a person's right to "freedom and security" in the context of the execution of a "warrant to enter upon and conduct a search of any premises."(13) Her primary concern, however, is with the treatment of potential legal immigrants and those who enter or remain in the country outside the terms of the Act. She discerns an official drift towards the position that people give up all rights when they enter a territory unofficially. Furthermore, unauthorized immigrants are seen as "a major threat to the rights of South African citizens."(14) Rights are non-portable and immigrants have few if any rights, unless they fulfil the official criteria for living in South Africa. Reitzes argues that there are inherent dangers in setting citizen's rights against non-citizens' rights as if they were always antagonistic and mutually exclusive:

If it is argued that any human rights which foreigners crossing our borders may have should be balanced by those of South African citizens and denied if those of the latter are imperiled, far more evidence than is now available would be needed to substantiate the claim that such a conflict does exist. And this means that it is possible that the evidence points in the opposite direction to the conclusion that there is, in reality, no conflict between the rights of illegal immigrants and the rights of South Africans. On the contrary, conflict may exist between South African's interests and the denial of human rights to undocumented migrants.(15)

Reitzes raises questions about the failure of the Aliens Control Act to extend various "negative rights" to non-citizens on issues of mobility and economic opportunity. She concludes that there need to be clear-headed decisions about what rights immigrants (both potential and actual, legal and unauthorized) are entitled to and how these rights can be reconciled both with the idea of state sovereignty and national interest. The position that people have rights only where they are domiciled denies that people have certain inalienable rights that are not lost simply by crossing state borders. None of these issues, it has to be said, concerned the original drafters of South African immigration legislation. Reitzes basic point is that human rights entitlements, whatever these are adjudged to be, are too fragile to be left undefined, unarticulated and unprotected in the construction of immigration policy and legislation.

 

A Constitutional Test

The adoption of the final Constitution and Bill of Rights has profound implications for immigration law in South Africa. In Jonathan Klaaren's words, while constitutionality appears to be "catching" across broad areas of South African life, immigration policy seems immune. Those quite happy with extending broad rights to citizens become distinctly queasy when the issue of rights for illegal immigrants is raised. By knowingly coming to or being in a country in contravention of immigration regulations, it is implied, a person voluntarily surrenders entitlement to constitutional guarantee or protection. The Bill of Rights is nothing like as restrictive: an array of rights are extended to "persons", not just citizens. This is no oversight since the Bill of Rights clearly reserves certain rights to "citizens" only. Although the courts will give definitive interpretation to these clauses, it seems unlikely that all of these rights can be summarily denied to non-citizens, whatever their legal status.

In anticipation of this process, Jonathan Klaaren's chapter puts specific clauses and provisions of current immigration and citizenship legislation under the microscope and discovers some significant flaws. Citizenship and immigration laws are not generally bracketed together in South Africa, as they should be. Klaaren concludes that while most of the clauses in the South African Citizenship Act would past constitutional muster, some are of more dubious provenance. Citizens in particular could bring forward challenges to an Act which metes out harsher treatment to citizens by naturalization and citizens by birth or which violate constitutional protection against discrimination on the basis of sexual orientation. A strong if indirect equality claim also exists for black immigrants without permanent residence status who came to South Africa when racial immigration laws explicitly reserved the offer of permanent residence to whites only.

The Aliens Control Act lays itself open to a much broader swathe of constitutional challenge. Klaaren argues that the procedures of the Immigration Selection Boards could conflict with the guarantee of administrative justice. The procedures for declaring a person to be prohibited also appear to violate the standards of administrative justice, as well as potentially violating the prohibition on discrimination on the grounds of disability, gender and freedom of expression. Much of the current concern over the constitutionality of the Aliens Control Act is directed at its removal provisions and "rightly so."(16) He details five major ways in which a person may become subject to deportation from South Africa and concludes:

As they presently exist, the removal provisions of the Act are riddled with constitutional problems. This is so for at least three reasons: as presently drafted, the removal provisions have a high risk of removing citizens (especially black citizens), they lack adequate procedural protection, and they are applied in a discriminatory manner.(17)

The media has already reported cases of South African citizens being summarily arrested by the police as "illegal aliens" and subject to a gamut of measures that are not only unconstitutional but violate the Aliens Control Act itself.(18) Persons subject to deportation currently have no room for administrative appeal or review beyond "appeal to the Minister" (a vague and toothless form of protection). The only other recourse is the Supreme Court. This is unavailable to many, given the cost involved and the rapidity with which removals are effected. The method of detention of suspected illegal immigrants is also a matter for great concern, despite several amendments in the 1995 Act. Other clauses of the Act which require constitutional scrutiny include its discretionary nature, its search and seizure provisions and its attempt to shift the onus of proof in court proceedings.

While most of the provisions of the Act deal with immigration proper, some focus on policy towards immigrants and non-citizens inside the country, including employment. These provisions were designed to deter entry but they also directly regulate the position of immigrants within. The Act is only one of a multitude of statutes and regulations that deal, directly or indirectly, with policy towards immigrants. Klaaren argues that "much of this law is highly restrictive to the rights of (legal) immigrants."(19) Much of it is also clearly open to challenge based on the equality provisions of the constitution. A second category of constitutional challenges to policy towards immigrants could be based on more specific rights such as freedom of movement, residence and economic activity.

Klaaren's verdict is blunt: there are "major and significant constitutional failings" in current immigration legislation and policy.(20) The logical next step would be to subject the relevant clauses of the Aliens Control Act to a real series of constitutional challenges in the courts. If the Act were to remain on the books in its present form, then that is precisely what would happen over time. A second alternative would be another series of amendments, removing or modifying any clauses that might conceivably be deemed unconstitutional. The logic of the analyses presented here is that there seems little point in going that route. The more proactive and productive alternative is to construct a new constitutionally-sound legal framework from first principles.

 

An International Test

Immigration law, as Melvin Weigel points out in his chapter, has been solidly within the sphere of national sovereignty for as long as there have been nation-states. Immigration legislation is therefore inseparable from the discourses and practices of modern nation-state building. Immigration legislation gives judicial effect to the notion of the nation as a bounded territory and provides the legal and policy instruments to preserve the real and imagined threat to the integrity of that territory posed by outsiders. Hence, as Peter van der Veer argues, immigration legislation attempts to resolve the contradiction between the notion of territoriality inherent to nationalism and the "transgressive fact" of migration.(21) The connections between nation-building and immigration have re-emerged in South Africa with unexpected force since 1991. Current policy measures are justified by ill-defined appeals to the "interests of South Africans." Immigrants are seen as the harbingers of everything anti-social and criminal.(22)

The absolute sovereignty view in immigration matters has been tempered in the twentieth century, as both Weigel and David Jacobson point out, by international law and domestic human rights legislation.(23) South African immigration legislation has a curious, indeed ironic, relationship with global immigration law. The 1913 Immigration Act and the 1937 Aliens Act were not that different from legislation passed in other white settler societies at the time. Previous generations of South African legislators even looked to these other models for the spirit and wording of their own legislation. In the post-1945 period, these states shifted uneasily away from racially-based immigration policies. South Africa grimly set its face in the opposite direction. Since domestic human rights legislation was non-existent there was little to concern the government there. The tempering effect of international law was also resisted by ignoring some international conventions (such as those of the UN) and manipulating others (such as those of the ILO).

The extent to which South African immigration law ought to be tested in the court of international or comparative immigration law is a moot point. Defenders of the Aliens Control Act have sought to justify many of its more draconian provisions by reference to comparative example. The Human Sciences Research Council, for example, claims that the Act compares favourably with equivalent legislation in the USA, the United Kingdom, and Canada, as well as several other SADC states.(24) How could this be? The answer is in a style of analysis which ignores the full text and context of other country legislation, and battens only onto enforcement provisions. In fact, it is unlikely that South Africa's enforcement and control measures would withstand an expert comparative legal analysis.

Weigel draws our attention to a number of international human rights instruments that for the most part do not distinguish between citizens and non-citizens with respect to fundamental rights. They include the International Covenant on Civil and Political Rights, the African Charter on Human and People's Rights, three relevant ILO Conventions(25) and the 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. The latter Convention has been signed by a mere handful of states to date although Weigel predicts its eventual widespread adoption. There is plenty in this Convention that the old South African government would have feared, since it would cut away at the roots of the contract labour system to the mines. There is actually little to fear by the new South African government since there is generally a good fit between many of the provisions of the Convention and South Africa's own constitution, policy objectives and new labour legislation.

Weigel identifies five areas in which inherited South African immigration law and policy might be found to conflict with the relevant international conventions. He then discusses several problem areas within the Aliens Control Act where South African legislation does not measure up well to a comparative test. The first is the area of administrative justice. A minimalist position would be that a non-citizen is allowed judicial review of the legality of a decision. Most legal experts, and immigrant-receiving states, would grant the right to a hearing on substantive issues also. Many countries have specialized administrative or judicial tribunals for the purpose. The general principle is that the greater the appellant's interest in the outcome, the less summary the hearing and review procedures ought to be. The absence of such a review and appeal mechanism in South Africa even "shortchanges people who have been lawfully admitted to the country."(26)

Other areas of concern include the poor access to information and policy guidelines (there is reference here to a bureaucracy still "steeped in a culture of secrecy" rather than service),(27) the issue of temporary permits, immigrant selection, search and seizure provisions, migration consultants, and family reunification. In each case there is no single international norm or common standard. No country is a "model of perfection". But by holding up a mirror to South Africa's "worst practice" legislation, there is hope that the country can develop its own legislative and policy instruments in a way that meshes domestic needs with international "best practice."

 

A Judicial Test

The annotated version of the Immigration Act of Canada contains less than 200 pages of legal text and over 800 summaries of benchmark immigration decisions by the Canadian courts. As the editors point out, the interpretation of any law purporting to define any relationship between individuals within Canada and the Canadian Government is subject to the provisions of the Canadian Charter of Rights and Freedoms.(28) The result is a voluminous immigration jurisprudence, as appeals of administrative decisions are taken beyond the Immigration and Refugee Board to the courts. For most, this a healthy sign of a vigorous democracy at work. In South Africa, the prospect of "clogging" an overburdened justice system with immigration cases seems to cause undue alarm. In truth, there is little choice if South Africans are serious about rights, justice and due process.

The appeal procedures of the Aliens Control Act are seriously defective. The 1991 Act contained an astonishing clause which specifically ousted the jurisdiction of the courts "to review, quash, reverse, interdict or otherwise interfere with any act, order or warrant performed or issued under the Act." This ouster clause was judiciously removed in the 1996 Amendment. Ouster clauses are one reason why there is little immigration jurisprudence in South Africa. Most deportees are either not made aware of their rights or cannot, for lack of resources or time, exercise them in the Supreme Court.

As Anton Katz points out, the courts have recently insisted on dealing with the small number of disputes referred for adjudication. Lee Anne de la Hunt notes that "the record of the judiciary is as disappointing as that of the legislature in protecting the rights of immigrants within South Africa."(29) Katz reports on several recent cases in order to assess how the courts currently handle immigration cases. He locates only one decision pertaining to the aiding and abetting of illegal immigration in which a 51 year old woman was imprisoned and her appeal turned down. Amongst the fundamental issues raised is the entitlement of non-citizens to legal aid, to bail, and to language and interpreter facilities.

A recent trilogy of challenges against decisions by officials of the Department of Home Affairs were also rejected by the court. All three decisions, around the simple issue of whether the Department is obliged to give reasons for its administrative decisions, are heavily criticized here and elsewhere. One legal expert pillories them as "archaic" and an endorsement of past "authoritarian" and "arrogant" attitudes in dealing with immigrants.(30) Katz contends that "it may be justifiable to fail to give reasons in certain circumstances on grounds of administrative convenience, but never in immigration circumstances" (our emphasis).(31) If there is no such obligation, "arbitrariness, discrimination and corruption" all breed.

A landmark case -- the first in what will hopefully become a lively jurisprudence in this area -- is the case of Foulds v Minister of Home Affairs. The judge used case law from other jurisdictions and found that Foulds' application for permanent residence had not been dealt with in "a lawful and procedurally fair manner." Part of the problem was the refusal of the Department to provide reasons for the decision. Katz speculates that the "profile of the bench" (a judge with an anti-apartheid reputation) may have contributed to the decision.(32) Whatever the contributing factors, the decision is welcome.

More troubling is that South Africa still has no legislation dealing specifically with refugee affairs. Applicants for refugee status and asylum are dealt with under the Aliens Control Act. The implications of this unacceptable situation are discussed at length by Katz and de la Hunt. Katz looks at three refugee cases. In Pembele and Others v Appeal Board of Refugee Affairs, the court ordered the Department on constitutional grounds to provide reasons for the refusal of all applications for refugee status and asylum. The obvious question is why such an obvious and fair obligation should have had to be referred to the courts at all. The case of S v Johnson raises troubling questions about the treatment of refugee claimants within the prison system. The court found that Johnson's rights had been seriously violated: "Eighteen months in prison, of which fourteen are without trial for the potential "crime" of not telling the truth about one's origins hardly fits into a culture of respect for the rule of law and human rights."(33) Nonetheless, there are persistent reports that similar treatment is still meted out to some asylum seekers.

 

A Protection Test

The Department of Home Affairs, at last seemingly cognizant of the problems inherent in dealing with refugees under the Aliens Control Act, prepared a new draft Refugee Bill in late 1996. This Bill was the subject of at least one public workshop organized by the Human Rights Commission but was then "put on ice" pending the recommendations of the Green Paper on International Migration. The Green Paper concludes that immigration and refugee affairs are separate issues that should be dealt with in separate ways using different legislative instruments. The draft Bill is therefore likely to form the starting point for discussion of new refugee legislation in South Africa. However, the Bill is not consistent in many respects with the recommendations for the solution-oriented and rights-regarding refugee protection system advocated in the Green Paper. The acceptability of this model to the public and policy-makers will obviously have a major impact on what kind of Refugee Bill finally emerges.

The Aliens Control Act has been, and remains, a wholly inadequate piece of legislation for refugee protection. The Act itself never mentions refugees or asylum-seekers and offers no guidance at all on refugee determination procedures or the obligations of the government in this regard. Refugees and asylum seekers are dealt with as a class of "prohibited persons." The reason is simple: the apartheid regime steadfastly refused to recognize refugee claimants or provide refugee protection. This cynical and inhuman policy reached its nadir in the 1980s. South Africa's destabilization of Mozambique created a massive refugee burden for other countries in the region.(34) Most were prepared to shoulder that burden. South Africa, on the other hand, erected electrified border fences and switched the current to "kill" mode. An estimated 200 refugees a year were electrocuted on the "snake" (as the SANDF called it).

About 200-300,000 Mozambican refugees are reckoned to have remained in South Africa. Many of these, as the chapter by the Wits Rural Facility suggests, have since become the victims of the campaign to arrest and deport "illegal aliens." In 1995, the new government signed the 1969 OAU Refugee Convention and in 1996 the 1951 UN Convention and 1967 Protocol on refugees. There is, as de la Hunt points out, almost no information available to refugees about their rights or asylum procedures. Certainly the Aliens Control Act is totally unenlightening on that score, even for those with access to its tortuous legalese. Refugee claimants, treated as "prohibited persons", have been tarred with the same brush as illegal immigrants by officials and the public. Asylum seekers are regularly held in common prisons and even summarily deported, in one case because an immigration officer reportedly held that someone from Zanzibar must, by definition, be an "illegal alien."(35) The failure of the Aliens Act to "provide the necessary checks to ensure that the rights of refugees are not abused" is transparent.(36)

Under regulation and consultation with the UNHCR, rather than statute, the Department of Home Affairs put in place asylum procedures in 1994. The number of applicants has been quite small compared to the Mozambican influx of the 1980s but they come from a much wider assortment of states. de la Hunt examines the ad hoc system of the Department and finds it wanting in several crucial areas, particularly in terms of rights to administrative justice and access to information. On the other hand, the system does accord asylum seekers and refugees important rights (employment, free movement, free medical care) that are not universally enjoyed. In the final analysis, however, South Africa has not yet developed an adequate refugee regime consistent with the minimum standards of international law.

 

A Test of Due Process

The debate on administrative justice and due process has focussed, to date, on the inadequacy of existing review and appeal procedures for immigration decisions. As a number of the chapters in this volume suggest, there is also a need to look closely at the procedures sanctioned by or permitted within the Aliens Control Act for determining "prohibited status." The evidence has mounted that there is pervasive and widespread corruption and human rights abuse at this level. The tactics of those charged with making arrests under Act in, as they put it, "sniffing out illegals" bear all of the hallmarks of the enforcement of the pass laws and influx controls in times past.(37) These tactics -- including arrest on the basis of vaccination marks, accent, pronunciation of words, lack of knowledge about South African history or geography, skin-colour, and so on -- hardly constitute "reasonable grounds" in anyone's lexicon. The "green page" industry also seems alive and well on the ground.

No-one has systematically set out to document the pervasiveness of official malpractice. In this volume, we include two chapters which take the reader much closer to the ground-level reality of enforcement of the Aliens Control Act. The first, by Sheena Duncan of the Black Sash, is based on the reports of a stream of aggrieved people seeking advice on official injustice. For Duncan it is all too reminiscent of an earlier, and much darker time, of the "old days" when:

South Africans and foreigners were equally subject to arrest in terms of the Urban Areas Act and never went out without ten rand in one pocket to pay off the policeman who wanted to arrest you if he was black and twenty rand in the other pocket to fork out if he was white. With inflation it is doubtful if one can buy anything at all now for less than R250 but the system remains the same.(38)

Duncan goes on to detail a whole series of complaints about the behaviour of police and immigration officers (often one and the same under the Act).

The chapter by the Wits Rural Facility takes us even closer through a sample of transcripts with Mozambican interviewees conducted by the Wits Rural Facility in 1995 and 1996 in Mozambique and Johannesburg. The Facility has gone furthest in efforts to provide a "voice" for the victims of official malpractice. The veracity of these, and like, stories has never been tested in a court of law. Indeed, we know of no case where suspected "illegal aliens" have been permitted to take their "sniffers" to court. We reproduced them here, with that qualification, because we believe there is a ring of authenticity about them.

What the testimony reveals, first of all, is the almost complete disrespect for due process and the rule of law amongst some of those charged with enforcing the Aliens Control Act. Every person's testimony contains at least one flagrant example of the abuse of powers and the failure to extend basic constitutional guarantees. One of the primary problems, permitted by the Act, is the blurring of responsibility between different departments, particularly the Department of Home Affairs and the Police. Currently, over 300 police also serve as immigration officers which means that the same individual can be responsible for detaining, holding a hearing and deporting a suspected illegal immigrant. This is a serious problem for which the Green Paper suggests several remedies.

The sub-text in the interviews with Mozambicans concerns the way in which they themselves interpret and make sense of their puzzling experience. For many, there is an overwhelming sense of betrayal as they have seen earlier solidarities and empathies with black South Africans disintegrate. The actions of the authorities are also interpreted by the interviewees (as well, it seems, by some of their captors) in party political terms as a campaign waged by the IFP against former ANC supporters.

This argument would probably be repudiated by most politicians. But it does raise the more general question of the relationship between party politics and immigration policy within a Government of National Unity. Future historians will ponder the impact on post-1994 immigration policy of the appointment of the IFP leader to the immigration portfolio in an ANC-led government. Another fraught political issue, on which the Act gives no guidance, concerns the involvement of high-profile ANC women in a Departmental contract for a detention centre for deportees on the West Rand. The field report by Sheena Duncan on conditions at the Dyambu Accommodation Centre, reproduced here, is reasonably positive. Others are less sure.(39) Two broader questions with implications for administrative justice are also raised by Duncan: first, what role, if any, should privatized detention centres be playing in the deportation system and how should this be regulated. And second, are detention centres of this kind not, in fact, a waste of resources and an "exercise in futility"?

 

A Considered Verdict

Is the Aliens Control Act, as Sheena Duncan contends, "bad law"? The essayists in this volume would certainly concur. The fundamental reason is that bad policy makes bad law. South African immigration policy has been variously described as confused, incoherent, reactive, defensive and lacking in vision. This was not always the case. Previous governments had a very clear vision of the role of immigration in (white) nation-building and in bolstering white supremacy. They also had a carefully managed migration policy, designed to utilize cheap labour from outside the country and dump it back over the borders when it was no longer wanted. Policy and legal instruments were finely tuned to fit these purposes. The Aliens Control Act was for white immigrants; bilateral contract labour agreements were for black migrants. There was no such thing as a refugee. And there was no reason why a non-accountable government should be obliged to give reasons for its decisions and actions. So it didn't.

The Green Paper on International Migration tries to articulate a quite different and proactive vision of the role of immigration and the value of immigrants to South Africa. Central to that policy vision are far-reaching suggestions for the institutional and legal transformation of the current system. The Green Paper suggests the need for two new pieces of legislation to replace the inherited Aliens Control Act. The first is a Refugee Bill to give effect to the proposal for a solution-oriented and rights-regarding temporary protection system. The second is a new Immigration Act to govern the conditions of entry and exit of both immigrants and migrants (temporary residents) in the country.

There is clearly great symbolic value in dispensing with an Act with such clear roots in South Africa's racial past. However, symbolism alone is not sufficient as a motivation. The Green Paper therefore advances a number of pragmatic reasons why a new Immigration Act is a necessity:

The essays in this volume give substance to many of these objections. They are published here in the hope that the very act of criticizing the old will clear the ground for new legislation, a new Immigration Act which is consistent with a new policy vision of the role of cross-border movement in the construction of a new South Africa.


1. Contract migration falls outside the Act. Migrant labour to the South African mines is regulated by bilateral agreement between South Africa and the supplier states; see Jonathan Crush, Alan Jeeves and David Yudelman, South Africa's Labor Empire: A History of Black Migrancy to the Gold Mines (Boulder and Cape Town: Westview and David Philip, 1991). The bilateral agreements are the subject of a separate SAMP Migration Policy paper.

2. Eddie Koch, "The Pass Laws Keep on Prowling" Weekly Mail and Guardian 15 July 1994; Jonathan Crush, "Apartheid's Last Act?" Democracy in Action 10(2) (1996),12-13.

3. Department of Home Affairs, "Memorandum on the Objects of the Aliens Control Amendment Bill, 1995" Attachment to Aliens Control Amendment Bill, B54-95 (Cape Town, 1995), p. 40.

4. Ibid., Clause 3.1.

5. A small number of written submissions were received from legal experts and human rights groups, most very critical of the Act. The Black Sash submission is referred to by Sheena Duncan in her chapter in this publication.

6. See David Jacobson, Rights Across Borders: Immigration and the Decline of Citizenship (Baltimore: Johns Hopkins University Press, 1996).

7. Wayne Cornelius, Philip Martin and James Hollifield, eds., Controlling Immigration: A Global Perspective (Stanford: Stanford University Press, 1994).

8. Joseph Carens, "Aliens and Citizens: The Case for Open Borders" Review of Politics 49 (1987):251-73; Richard Ebeling and Jacob Hornberger, eds., The Case for Free Trade and Open Immigration (Fairfax: Future of Freedom Foundation, 1995); John Isbister, The Immigration Debate (West Hartford: Kumarian Press, 1996), pp. 209-37.

9. Steven Friedman, "Migration Policy, Human Rights and the Constitution" Briefing Paper to Green Paper Task Team on International Migration, Pretoria, 1997, p. 7.

10. Cornelius et al, Controlling Immigration.

11. Roger Daniels, Coming to America (New York: Harper Collins, 1990); Stephen Legomsky, Immigration Law and Policy (Westbury: Foundation Press, 1990).

12. Maxine Reitzes (in this publication), p.

13. Ibid., p.

14. Ibid., p.

15. Ibid., p.

16. Jonathan Klaaren (in this publication), p.

17. Ibid., p.

18.

19. Klaaren (in this publication), p.

20. Ibid.

21. Peter van der Veer, Nation and Migration (Philadelphia: University of Philadelphia Press, 1995), p. 2.

22. Chris Dolan and Maxine Reitzes, "The Insider Story? Press Coverage of Illegal Immigrants and Refugees" Centre for Policy Studies, Social Policy Series, Research Report No 48, 1996.

23. Jacobson, Rights Across Borders.

24. Mike Hough, Anthony Minnaar, Sam Pretorius and Marie Wentzel, A Comparative Study of Immigration Legislation in Selected Countries with Specific Reference to the South African Aliens Control Act, 1991 (as amended) (Pretoria: HSRC, 1996).

25. ILO Convention No 602 (1925) on Equality of Treatment for National and Foreign Workers; No 97 (1949) on Migration for Employment; and No 143 (1974) on Migration in Abusive Conditions and the Promotion of Opportunity and Treatment of Migrant Workers.

26. Melvin Weigel (in this publication), p.

27. Ibid.

28.

29. Lee Anne de la Hunt (in this publication), p.

30. Rika Pretorius, "Discrimination against Aliens: International Law, the Courts and the Constitution" South African Public Law 11 (1996), p. 261.

31. Anton Katz (in this publication), p.

32. Ibid., p.

33. Cited in Ibid., p.

34.

35.

36. de la Hunt (in this publication), p.

37.

38. Francophone Africans informed Antoine Bouillon (personal communication) that the standard bribe for avoiding summary arrest was R200 in Johannesburg; 50 i

39.