Back to MIGRATION DOCUMENTS

Southern African Migration Project

PLEASE NOTE: Readers are welcome to reproduce and reference articles on this site as long as appropriate acknowledgments are given.


DRAFT PROTOCOL ON THE FREE MOVEMENT OF PERSONS IN THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY (SADC)

 

 

15 March 1996

 


TABLE OF CONTENTS

 

PREAMBLE

CHAPTER I - INTERPRETATION

1. Definitions

CHAPTER II - OBJECTIVES OF THE PROTOCOL

2. Main objective

3. Ultimate Objective

4. Implementation of Objectives

CHAPTER III - PRINCIPLES OF THE PROTOCOL

5. Phases

6. Different Rates of Implementation

7. Harmonisation of State Laws

8. Temporary Suspension of Protocol

CHAPTER IV - GENERAL UNDERTAKINGS

9. Popular Participation

10. Cooperation and Mutual Assistance

11. Security Arrangements

12. Travel Facilities

13. General

CHAPTER V - SHORT-TERM MEASURES

14. Harmonisation of Current Immigration Practices

CHAPTER VI - IMPLEMENTATION OF FIRST PHASE: VISA-FREE ENTRY ON SHORT VISITS

15. Entry of Persons

16. Exemption

17. Movement of Vehicles for the Transportation of Persons

18. Treatment of Personal Goods Carried by SADC citizens

CHAPTER VII - IMPLEMENTATION OF THE SECOND PHASE: RIGHT OF RESIDENCE

19. Meaning of Right of Residence

20. Granting Right of Residence

21. Residence Permits

22. Employment Permits

23. Promotion of Movement of Workers

24. Link with Employment and Labour

CHAPTER VIII - IMPLEMENTATION OF THE THIRD PHASE: RIGHT OF ESTABLISHMENT

25. Meaning of Right of Establishment

26. Granting of Right of Establishment

27. Conversion into Establishment

28. No New Restrictions

CHAPTER IX - GENERAL PRINCIPLES RELATING TO RIGHT OF RESIDENCE AND RIGHT OF ESTABLISHMENT

29. Equal Treatment with Citizens

30. Protection of Existing Rights

CHAPTER X - REPATRIATION AND PROTECTION OF RIGHTS OF AFFECTED PERSONS

31. Reasons for Repatriation

32. Protection Against Individual Expulsion

33. Protection Against Mass Expulsion

34. Principles Governing Repatriation

35. Complementary Measures

CHAPTER XI - IMPLEMENTATION OF THE FOURTH PHASE: CONTROLS ONLY AT EXTERNAL BORDERS

36. Abolition of Controls at Internal Borders

37. Suspension of Article

38. Transfer of Controls to External Borders

39. Power to Make Rules for External Borders

40. Visas for Non-SADC Citizens

41. Treatment of Non-SADC Citizens

42. Treatment of Goods

43. Complementary Measures

44. Entry into Force of this Chapter

CHAPTER XII - ASYLUM SEEKERS AND REFUGEES

45. International Obligations

46. Regional Cooperation on Issues Relating to Refugees

47. Provision of information to the Regional Refugee Committee

48. Cooperation of the Community with the United Nations

CHAPTER XIII - INSTITUTIONAL STRUCTURE FOR IMPLEMENTATION OF PROTOCOL

49. Main Institutions

50. Regional Standing Committee on Free Movement of Persons

51. Regional cross-Border Security Committee

CHAPTER XIV - SETTLEMENT OF DISPUTES

52. General Principles

53. Procedure in Complaints by Individuals

CHAPTER XV - GENERAL PROVISIONS

54. Amendment of Protocol

55. Power to Make Regulations

56. Ratification

57. Deposit

58. Entry Into Force

59. Relationship with other African Regional Economic Communities


PREAMBLE

WE, the Heads of State or Government of the Southern African Development Community (SADC):

AWARE that the concept of free movement of persons, in one form or another, is not new in parts of the Region since our people have enjoyed this in the recent past as members of the East African Community or of the Central African Federation;

ANXIOUS to build upon these historical experiences in this area of cooperation in order to enhance the benefits flowing to our people as a whole;

MINDFUL of the Preamble to the Treaty Establishing SADC and especially the provisions with regard to our duty to promote the interdependence and integration of our national economies for the harmonious, balanced and equitable development of the Region, as well as the need to involve the people of the Region centrally in the process of development and integration;

RECOGNISING that full popular participation in the process of building the Region into a Community is only possible where the citizens of the Community enjoy the rights of free movement of persons, namely visa-free entry, residence and establishment in the territories of Member States;

CONSCIOUS of the necessity to adopt a flexible approach in order to accommodate disparities in the levels of economic development among Member States and the need to redress imbalances in large scale population movements within the Community;

DETERMINED to fulfil our objectives articulated in Article 5 of the Treaty;

EAGER to support, assist and promote the efforts of the Organisation of African Unity which is encouraging free movement of persons in African Regional Economic Communities as a stepping stone towards free movement of persons in an eventual African Economic Community;

PURSUANT to Article 5.2.(d) of the Treaty which requires SADC to develop policies aimed at the progressive elimination of obstacles to the free movement of capital and labour, goods and services, and of the people of the Region generally, among Member States;

IN TERMS of Article 10.3 of the Treaty which authorises the Summit to adopt legal instruments for the implementation of the provisions of the Treaty;

HEREBY AGREE as follows:

 

CHAPTER I

INTERPRETATION

 

ARTICLE 1

Definitions

In this Protocol, unless the context otherwise requires:-

"Community" means the organisation for economic integration established by Article 2 of the Treaty;

"Council" means the Council of Ministers of SADC established by Article 9 of the Treaty;

"External border" means any land or sea border or any airport or sea port of a Member State which is not an internal border;

"Host State" means the Member State of residence or establishment;

"Internal border" means any common land border between any two Member States, or any airport used for flights within the Region, or any sea port used for trans-shipment connections exclusively from or to other ports within the Region and not calling at any ports outside the Region;

"Member State" means a state which is a Member of SADC;

"Region" means the geographical area of all Member States;

"Regional standing committee" means the Regional Standing Committee on Free Movement of Persons established under Article 50;

"SADC" means the Southern African Development Community established by Article 2 of the Treaty;

"Short visit" means a visit to the territory of a Member State for a period not exceeding six months;

"Summit" means the Summit of Heads of State or Government of SADC established by Article 9 of the Treaty;

"Third State" means any State other than a Member State;

"Travel document" means a valid passport or other document used to identify a traveller which contains personal particulars and a clear photograph of the holder, is issued by or on behalf of the government of a Member State of which the holder is a citizen and on which endorsements may be made by immigration authorities and shall include a laissez-passer or border pass approved by the Council.

"Treaty" means the Treaty Establishing SADC.

"Tribunal" means the Tribunal established under Article 9 of the Treaty.

 

CHAPTER II

OBJECTIVES OF THE PROTOCOL

 

ARTICLE 2

Main Objective

The main objective of this Protocol is, in relation to every citizen of a Member State, to confer, promote and protect

  1. the right to enter freely and without a visa the territory of another Member State for a short visit;

  2. the right to reside in the territory of another Member State; and

  3. the right to establish oneself and work in the territory of another Member State.

     

ARTICLE 3

Ultimate Objective

The ultimate objective of this Protocol is to achieve the progressive abolition of controls on movements of citizens of a Member State at an internal border with another Member State.

 

ARTICLE 4

Implementation of Objectives

The implementation of the objectives in Articles 2 and 3 of this Chapter shall be achieved over a period not exceeding ten (10) years from the date of entry into force of this Protocol.

 

CHAPTER III

PRINCIPLES OF THE PROTOCOL

 

ARTICLE 5

Phases

The rights of entry, residence and establishment under this Protocol shall be regarded as phases in the process of building the Community and the implementation of the phases shall be concurrent.

 

ARTICLE 6

Different Rates of Implementation

Member States shall take all steps possible to act together as a Community in the implementation of the conferment of the rights under this Protocol, provided, however that a Member State may progress at a rate which is faster than that achieved by any other Member State.

 

ARTICLE 7

Harmonisation of State Laws

Every Member State shall ensure that all its national laws, and statutory rules and regulations are in harmony with and promotive of the objectives of this Protocol.

 

ARTICLE 8

Temporary Suspension of Protocol

Member States hereby agree that where an emergency occurs in a Member State, by reason of a breakdown of or serious threat to national security, public order or public health such Member State may, by written notice to the Council, inform all the other Member States of its temporary suspension of the implementation of this Protocol for the duration of such emergency: Provided that the Member State concerned shall furnish to the Council, not later than once every two months, enough information regarding the emergency to enable the Council to review the necessity of such temporary suspension.

 

CHAPTER IV

GENERAL UNDERTAKINGS

 

ARTICLE 9

Popular Participation

1. Member States undertake to do everything in their power at both the national and regional levels, to ensure that all the people of the Community are fully involved in the various activities of the building of the Community towards economic integration.

2. Member States shall refrain from doing anything which may hinder popular participation in the implementation of this Protocol.

 

ARTICLE 10

Cooperation and Mutual Assistance

1. Member States shall build upon existing arrangements or set up new mechanisms for increasing the consultations and cooperation among them in creating a healthy, prosperous and enabling environment in their territories for the peoples of the Community to participate fully in community building activities.

2. Towards the achievement of Clause 1 of this Article, every Member State undertakes to cooperate with and assist the other Member States to facilitate the free movement of persons in the Community as a vehicle for achieving economic integration.

3. In particular, Member States agree to increase cooperation and mutual assistance in the following fields, among others;

a. formulating policies on free movement of persons;

b. exchanging information among relevant authorities especially on crime, security and intelligence.

c. conducting public education to increase general awareness of labour, employment, health, immigration, customs, fiscal and monetary regulations;

d. training and educating competent authorities regionally and nationally on the new ethos of free movement of persons;

e. improving the mechanisms for enhancing cooperation in safeguarding national and regional security within the Community;

f. providing sufficient and adequately equipped border posts;

g. harmonizing of employment policies, labour relations, human resource development and financial regulations so as to make movement within the Community more and more stable, uniform and even.

 

ARTICLE 11

Security Arrangements

1. Member States undertake to strengthen and improve security arrangements inside their territories in order to combat drug trafficking and other cross-border crimes.

2. Each Member State agrees to ensure that its bilateral or multilateral relations with Third States will not compromise the security of the Community.

3. Each Member State agrees to regard every external border post which is on its territory as an actual or potential entry point into the territory of every other Member State and therefore to strive to ensure that the controls at such external border posts are such as will not impair the internal security of other Member States or of the Community.

 

ARTICLE 12

Travel Facilities

1. Member States agree to make travel documents more readily available to their citizens and to cooperate in harmonising travel whether by air, land or water and to increase and improve transport facilities especially between their mutual borders.

2. Member States undertake to introduce, within a period of five years from the entry into force of this Protocol, a SADC passport for travel within the Community.

 

ARTICLE 13

General

In accordance with their constitutional provisions and procedures and in terms of this Protocol, Member States agree to take all necessary legislative, judicial, administrative and other measures for the proper supervision of the implementation and the effective achievement of the objectives of this Protocol.

CHAPTER V

SHORT-TERM MEASURES

 

ARTICLE 14

Harmonisation of Current Immigration Practices

Member States hereby agree to take immediate steps to achieve each of the following within a period of twelve months from the entry into force of this Protocol:

a) harmonization of their laws and administrative practices so that a citizen of a Member State who wishes to enter the territory of another Member State on a visit shall be allowed to do so for six months at a time;

b) abolition of the need for migration forms by travelling citizens of Member States and issuance of a simple and uniform SADC migration form for use by citizens of Third States who wish to enter or exit the territory of any Member State;

c) establishment of a separate "SADC DESK" at each major border crossing post;

d) establishment of a sufficient number of border crossing posts into the territory of another Member State, with identical opening hours on each side of the border, and ensuring that at least one such post remains open twenty-four hours every day;

e) issuance of a common and simple "border pass" to citizens of Member States who reside in the border areas of the territories of Member States, and harmonising the treatment and facilities given to such citizens when they cross an internal border;

f) abolition of visa requirements where they still exist: provided that where visas are regarded as still necessary, they shall be issued free at the border post of arrival and intended crossing to any citizen of a Member State who needs one;

g) introduction of a uniform SADC passport for use primarily within SADC but also with such other Third States as may be agreed;

h) provision of such regional training facilities for senior immigration, customs, police and security officials as may be necessary to promote the free movement of persons within SADC.

 

CHAPTER VI

IMPLEMENTATION OF FIRST PHASE:

VISA-FREE ENTRY ON SHORT VISITS

 

ARTICLE 15

Entry of Persons

1. Member States agree to ensure that within a period of twelve months from the entry into force of this Protocol, a citizen of a Member State who wishes to enter the territory of another Member State as a visitor shall be admitted without the requirement of a visa.

2. Visa-free admission in terms of Clause 1 shall be on condition that:

a) the visit is for a period not exceeding six months at a time, but without prejudice to the visitor's right to apply for the extension of such period if a longer stay is, to the satisfaction of the host State, deemed necessary;

b) the visitor possesses a travel document;

c) the visitor has or can obtain sufficient means of self support for the duration of the intended visit: provided that every visitor shall be presumed to have such support;

d) the visitor is not an inadmissible immigrant under the laws of the intended host country;

e) entry is sought through an official border post.

 

ARTICLE 16

Exemption

1. A member State may, by notice in writing and for good reason, request the Summit for an exemption from implementing Article 15.

2. An exemption obtained under this Article shall only allow the Member State to which it relates to impose on a citizen of another Member State the requirement of an entry visa on condition that

a) any such citizen who requires a visa will be able to obtain one at the entry border post;

b) no fee shall be demanded for such visa; and

c) each exemption shall be valid for a period not longer than twelve months.

3. All the conditions under Clause 2 of Article 15 shall apply to entry under this Article.

 

ARTICLE 17

Movement of Vehicles for the Transportation of Persons

1. Any vehicle which is used for the transportation of persons, whether for personal, private or commercial purposes and which is registered in the territory of a Member State shall be allowed to enter the territory of another Member State and to remain there for a period not exceeding six months.

2. The driver or other person in control of such a vehicle shall be required to produce to the relevant authority at the entry border post the following valid documents:

a) a driver's licence of the driver of the vehicle;

b) a registration certificate for the vehicle;

c) an insurance policy for the vehicle;

d) an international customs carnet;

e) a road-worthiness certificate where applicable;

3. Where permitted by the domestic laws of the Member State concerned, a commercial motor vehicle which is allowed to enter the territory of another Member State in terms of this Protocol may engage in any commercial activities within the territory so entered.

 

ARTICLE 18

Treatment of Personal Goods Carried by SADC Citizens

1. Member States shall cooperate closely to harmonise their laws governing the treatment of goods which visitors from a Member State may bring into another Member State for the personal use of the visitor.

2. Goods brought in for commercial purposes shall be dealt with in accordance with the provisions of an appropriate protocol on trade facilitation or under the laws of each Member State.

 

CHAPTER VII

IMPLEMENTATION OF THE SECOND PHASE:

RIGHT OF RESIDENCE

 

ARTICLE 19

Meaning of Right of Residence

The right of residence shall mean and imply the right to enjoy all or any of the following rights:

a) to live in the territory of a Member State in accordance with the legislative and administrative provisions of that Member State;

b) to apply for and accept the offer of employment where actually made;

c) to enter freely the territory of a Member State for the purpose of seeking employment;

d) to reside in the territory of a Member State in order to take up employment subject to the labour laws of that Member State;

e) to reside in the territory of another Member State as a student or trainee.

 

ARTICLE 20

Granting Right of Residence

Member States agree to ensure that within a period of three years from the entry into force of this Protocol, every Member State shall grant to citizens of other Member States the right of residence in its territory whether or not the exercise of such right of residence may, imply seeking employment or engaging in other income-generating activities.

 

ARTICLE 21

Residence Permits

1. The right of residence shall be exercised through an application for a residence permit.

2. An application for a residence permit shall be made by the applicant to the appropriate authorities of the relevant Member State in accordance with the laws of that Member State.

3. Each Member State whose authorities are handling an application for a residence permit shall ensure that the processing of such application shall not delay the immediate carrying out of an employment contract or other income-generating activities by the applicant.

4. Member States shall take steps to ensure that, within a period of two years from the entry into force of this Protocol, their laws and regulations governing the granting of residence permits are harmonised and a uniform SADC residence permit is established.

5. A residence permit issued in terms of this Protocol shall:

a) in respect of an application for the purposes of Article 19 a) b) and c), be for a maximum period of three years;

b) in respect of an application for the purposes of Article 19 d), be for a period equivalent to the period of the contract of employment of the applicant;

c) in respect of an application for the purposes of Article 19 e), be for a period equivalent to the length of the period of study or training required by the applicant.

6. A residence permit shall be subject to renewal in accordance with the laws of the Member State concerned.

 

ARTICLE 22

Employment Permits

Nothing in this Protocol shall be construed as preventing the issuance by any Member State of employment or work permits in terms either of a SADC employment and labour protocol or domestic labour laws: provided, however, that no such permit shall derogate from the enjoyment of any right under this Protocol.

 

ARTICLE 23

Promotion of Movement of Workers

With a view to promote the freedom of movement of workers, Member States may, under this Protocol or in an appropriate protocol on employment and labour, make provisions for the transferability from one Member State to another of benefits and rights acquired by virtue of employment.

 

ARTICLE 24

Link with Employment and Labour

This Chapter shall be read in conjunction with the provisions of any SADC protocol on employment and labour as may, from time to time, be in place.

 

CHAPTER VIII

IMPLEMENTATION OF THE THIRD PHASE:

RIGHT OF ESTABLISHMENT

 

ARTICLE 25

Meaning of Right of Establishment

The right of establishment shall include:

a) the right of access to economic activities as self-employed persons;

b) the right to establish and manage a profession, trade or business;

c) the right to practise one’s profession, trade, business or calling and to provide the services related thereto.

d) the right, subject to Article 29, to participate in all such human activities as citizens of the host State.

 

ARTICLE 26

Granting of Right of Establishment

Each Member State shall, within a period of five years from the entry into force of this Protocol:

a) grant to citizens of other Member States resident in its territory the right of establishment in its territory;

b) abolish progressively all restrictions on the freedom of establishment of citizens of other Member States in its territory.

 

ARTICLE 27

Conversion into Establishment

A salaried worker who is a citizen of a Member State and is employed in the territory of another Member State may, at the conclusion of salaried employment, establish himself in such territory and practice unsalaried economic activity subject to the relevant laws and regulations of the host State.

 

ARTICLE 28

No New Restrictions

Each Member State shall take steps to ensure that, with effect from the entry into force of this Protocol, no new restriction is imposed by its laws on the right of establishment in its territory of citizens of other Member States.

 

CHAPTER IX

GENERAL PRINCIPLES RELATING TO RIGHT OF RESIDENCE

AND RIGHT OF ESTABLISHMENT

 

ARTICLE 29

Equal Treatment with Citizens

1. A citizen of a Member State who acquires rights of residence or establishment in the territory of another Member State, shall enjoy the same rights and freedoms as citizens of that other Member State save for such political rights as may be agreed by the Summit.

2. Without derogation from the generality of Clause 1, citizens of Member States who become established in the territory of other Member States shall:

a) receive fair and equitable treatment in respect of capital which they invest in the territory of establishment;

b) not be subjected to any act of confiscation or expropriation except on the same basis as may legally apply to citizens of the host State;

c) receive equal treatment with citizens of the host State in respect of the transfer of assets and repatriation of capital;

d) enjoy equal treatment with the citizens of the host State in respect of all other conditions of living including:

i) security of employment and employment benefits;

ii) access to health and recreational facilities;

iii) access to education, training facilities and professional advancement;

iv) freedom of association.

 

ARTICLE 30

Protection of Existing Rights

The provisions of this Protocol shall not operate to the prejudice of the enjoyment by any citizen of a Member State of the right of residence or right of establishment acquired in another Member State before the entry into force of this Protocol.

 

CHAPTER X

REPATRIATION AND PROTECTION OF

RIGHTS OF AFFECTED PERSONS

 

ARTICLE 31

Reasons for Repatriation

No person who is a citizen of a Member State, or any member of the immediate family of such person, who has been granted the right of residence or establishment in the territory of another Member State, may be expelled from the host State or repatriated except where:

a) reasons of the national security of the host State so dictate;

b) an important and essential condition for the issuance or validity of such person's residence or establishment permit has ceased to exist or cannot be fulfilled or complied with any longer;

c) the person refuses to comply with a lawful order of an appropriate public health authority issued for the protection of public health in circumstances where the consequences of such refusal have been explained.

 

ARTICLE 32

Protection Against Individual Expulsion

An order of repatriation or expulsion of a citizen of a Member State or any member of the immediate family of such citizen from the territory of another Member State shall only be valid if the reasons thereof fully comply with this Protocol and the procedures for its implementation are fully in accordance with the laws and regulations of the host State.

 

ARTICLE 33

Protection Against Mass Expulsion

1. Persons who have acquired the right of free movement, residence or establishment in the territory of a Member State and members of their immediate families may not be subjected to collective or group repatriation or expulsion.

2. For the avoidance of doubt, each case of repatriation or expulsion from the territory of a Member State shall be considered and determined on its own merits.

 

ARTICLE 34

Principles Governing Repatriation

Every Member State shall ensure that its laws, regulations or administrative mechanisms for the expulsion or repatriation of non-citizens shall, in relation to citizens of another Member State, incorporate the following principles:

a) the giving of adequate notice of repatriation or expulsion;

b) the affording to the affected persons of the opportunity to have recourse to the appropriate domestic courts or tribunals of the host State;

c) the suspension of any order of repatriation or expulsion upon the noting of an appeal;

d) the giving of reasonable time to affected persons to enable them to settle their personal affairs including the management or disposal of their businesses or professional practices;

e) the repatriation or expulsion of any person shall not affect the right of residence or, establishment of any member of that person's family;

f) the costs and other expenses involved in the repatriation of an affected person shall be borne by the Member State ordering the repatriation or expulsion as and when necessary.

 

ARTICLE 35

Complementary Measures

1. The repatriation or expulsion of a citizen of a Member State from the territory of another Member State where he has acquired rights under this Protocol shall be regarded by every Member State as a serious matter having the potential of affecting inter-State relationships within the Community.

2. Each case of repatriation or expulsion shall be carried out strictly in accordance with the provisions of this Protocol and the domestic laws of the Member State ordering the repatriation or expulsion.

3. The diplomatic or consular authorities of the Member State of which the affected person is a citizen shall be informed by the host State of the decision to repatriate or expel and the affected person shall be afforded an opportunity to consult with the said diplomatic or consular authorities.

4. Nothing in this Protocol shall be regarded as reducing any protection afforded to repatriated or expelled persons under any bilateral or multilateral agreements to which any Member State is a party.

 

CHAPTER XI

IMPLEMENTATION OF THE FOURTH PHASE:

CONTROLS ONLY AT EXTERNAL BORDERS

 

ARTICLE 36

Abolition of Controls at Internal Borders

1. Within a period of ten years, all Member States shall take steps progressively to abolish controls on the movement of citizens of the Member States within the Community.

2. Citizens of Member States may cross an internal border at any border post and shall not be subjected to the carrying out of any checks or controls on persons.

3. The abolition of checks on citizens of the Member States shall not affect any rights or obligations of persons who are citizens of Third States.

4. Notwithstanding the provisions of this Article, each Member State shall be free to exercise police and other security powers in terms of its laws throughout its territory and to require persons in its territory to hold, carry and produce permits and documents as may be provided for under its laws.

5. Checks on goods shall be regulated either in terms of the relevant SADC protocol on trade facilitation or under the laws of each Member State.

 

ARTICLE 37

Suspension of Article 36

1. A Member State may, in the interests of its public order, public health or national security, suspend for a period not exceeding one month the application of Article 36 in relation to its territory and require the carrying out of checks which are appropriate to the situation on citizens of other Member States crossing its internal borders.

2. A Member State which decides to act in terms of this Article shall by written notice to the Council inform all the Member States of such suspension.

3. A Member State which wishes to suspend Article 36 for longer than one month shall furnish to the Council, not later than every two months, enough information regarding the reasons for such suspension to enable the Council to review the necessity thereof.

 

ARTICLE 38

Transfer of Controls to External Borders

1. Any person who wishes to cross an external border shall do so only at a border crossing point during the appropriate opening hours.

2. Each Member State shall take steps to introduce penalties for the crossing of an external border in violation of Clause 1 hereto.

3. A Member State may admit into its territory a citizen of a Third State who wishes to enter the Region on a visit if the visitor:

a) possesses a travel document;

b) where so required, holds a valid entry visa;

c) has proof of sufficient means for self-sustenance for the duration of the visit and for the return journey;

d) declares a lawful purpose for the visit;

e) has not been reported as an inadmissible person in any of the Member States;

f) is not considered by any Member State as a threat to its national security, public order or international relations or of the Community; and

g) otherwise complies with the immigration laws of that Member State.

 

ARTICLE 39

Power to Make Rules for External Borders

1. Member States shall, under this Protocol, make rules and regulations to provide the detailed arrangements governing cross-border movement at external borders which shall be uniformly applied by Member States.

2. Rules and regulations made under this Article shall cover all matters including:

a) the competent authorities and personnel;

b) verification of travel documents;

c) measures to prevent or counter threats to public order or national security;

d) machinery and equipment or other forms of cooperation or exchange of information.

 

ARTICLE 40

Visas for Non-SADC Citizens

1. Member States undertake to adopt a common policy on the movement of persons who are citizens of Third States and who wish to enter the territory of any Member State.

2. Member States may make rules and regulations to implement various aspects of the common policy adopted under Clause 1 of this Article.

3. Rules made under Clause 2 of this Article shall include measures regarding:

a) the introduction, issuance and control of the use of uniform visas;

b) appropriate consultations by Member States on applications for visas and conditions for admission of citizens of Third States;

c) the preparation and maintenance of lists of persons reported as non-admissible by any Member State;

d) the movement of citizens of Third States within the community;

e) measures relating to organised or group travel;

f) residence permits;

g) repatriation or expulsion; and

h) penalties for infringement of the policy by persons or carriers of such persons.

 

ARTICLE 41

Treatment of Non-SADC Citizens

1. The admission of any person who is a citizen of a Third State into the territory of a Member State under this Protocol shall entitle such person to enter and travel freely in the territories of other Member States for a period not exceeding three months.

2. The Community shall endeavour to develop agreements with third states or communities of third states to secure the reciprocal treatment of citizens of Member States in those third states or communities.

 

ARTICLE 42

Treatment of Goods

The treatment of goods accompanying a person who enters the Community from a Third State shall be regulated under such protocol on trade facilitation as may be agreed between SADC and any such Third State.

 

ARTICLE 43

Complementary Measures

In order to assist the enforcement of the provisions of this Chapter, Member States shall put in place such police and other security cooperation arrangements as may be necessary from time to time to monitor and ensure that only genuine travellers from Third States are admitted into the Region.

 

ARTICLE 44

Entry into Force of this Chapter

This Chapter shall enter into force on a date to be determined by the Summit.

 

CHAPTER XII

ASYLUM SEEKERS AND REFUGEES

 

ARTICLE 45

International obligations

Member States hereby reaffirm their commitment to their obligations under international agreements to which they are parties, especially under:

a) the United Nations Geneva Convention of 28th July, 1951, as amended by the New York Protocol of 31st January, 1967, Relating to the Status of Refugees;

b) the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, signed at Addis Ababa on the 10th September, 1969; and

c) the established international principles and standards relating to the treatment of refugees.

 

ARTICLE 46

Regional Cooperation on Issues Relating to Refugees

1. Member States shall foster a common understanding towards, and strive to find durable solutions for, issues relating to refugees based on an inter-disciplinary approach that takes into account inter alia humanitarian, economic, social, human rights and environmental aspects which constitute the root causes of refugee situations and other involuntary population movements.

2. Member States shall establish a regional committee on refugees which will be charged with promoting:

(i) a standing coordinating mechanism for the Region to deal with issues relating to the prevention, early warning and conflict resolution of situations likely to produce refugees or other massive involuntary movement of persons;

(ii) the harmonisation of policies, legislation, procedures and assistance pertaining to refugees;

(iii) without prejudice to the confidentiality and privilege of information on refugees, the establishment of a regional data base containing information on refugee movements, with the sole aim of facilitating the determination of which Member State is responsible for assessing an asylum claim;

(iv) the building of awareness within the general public and the media on human rights and the plight of asylum seekers and refugees;

(v) national and regional capacity building through Governmental, United Nations and Non-Governmental organisations, including the training and mobilisation of human resources to implement internationally accepted principles and standards relating to the treatment of asylum seekers and refugees.

 

ARTICLE 47

Provision of Information to the Regional Refugee Committee

In order that the regional committee on refugees may make reports to the competent organs of the Community, Member States undertake to provide the committee in the appropriate form with information and statistical data requested concerning:

a) the conditions of refugees;

b) the implementation of the relevant refugee convention and regional arrangements; and

c) laws, regulations and rules which may, from time to time, be in force relating to refugees.

 

ARTICLE 48

Cooperation of the Community with the United Nations

Member States undertake to cooperate with the office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of the 1951 Convention and the 1967 Protocol referred to in Article 45 (a).

 

CHAPTER XIII

INSTITUTIONAL STRUCTURE FOR IMPLEMENTATION OF PROTOCOL

 

ARTICLE 49

Main Institutions

The main institutions for the implementation of this Protocol shall, in addition to those established by Article 9 of the Treaty, be:

a) the Regional Standing Committee on Free Movement of Persons;

b) the Regional Cross Border Security Committee;

c) the Regional Committee on Refugees.

 

ARTICLE 50

Regional Standing Committee on Free Movement of Persons

1. Member States shall establish a Regional Standing Committee on Free Movement of Persons whose principal purposes shall be to monitor the implementation of the provisions of this Protocol, take appropriate action and make such recommendations to the Council as may be necessary.

2 a) The Regional Standing Committee shall be composed of the Minister responsible for immigration and the Minister responsible for police in each Member State.

b) The Regional Standing Committee shall establish such other subcommittees as may be necessary.

3. The Regional Standing Committee shall have the following main functions:

a) Information:

To gather information on how the Protocol is working and how similar protocols in the world are being implemented and increase public awareness of this Protocol;

b) Training:

To organise regional training programmes for persons inside and outside Government who are closely involved in the implementation of the Protocol and to assist similar efforts at the national level in each Member State;

c) Research and Development:

To be the main vehicle for conducting world wide research on free movement of persons and utilizing the results of such research to assist the development and the achievement of the objectives of this Protocol;

d) Advice:

To render advice to Member States, whether on request or on its own initiative, on matters germane to the implementation of this Protocol;

e) Recommendations:

To monitor all aspects of the implementation of this Protocol and make recommendations to the Council.

 

ARTICLE 51

Regional Cross-Border Security Committee

1. Member States may establish a Regional Cross Border Security Committee under this Protocol or under an appropriate protocol on drug trafficking and cross-border crime or such other protocol as the Summit may determine.

2. The Regional Cross-Border Security Committee shall provide Member States with general back-up information, intelligence and security mechanisms necessary for building the Community.

 

CHAPTER XIV

SETTLEMENT OF DISPUTES

 

ARTICLE 52

General Principles

1. Any dispute which may arise regarding the interpretation or implementation of this Protocol shall ordinarily be resolved through negotiated agreement by the Council or, failing which, the Summit.

2. Any party to a dispute which cannot be resolved by agreement may refer such a dispute to the Tribunal whose decision in the matter shall be final and binding.

3. The powers and procedures of the Tribunal shall be those set out in an appropriate protocol of the Community.

4. The provisions of this Protocol shall prevail over the laws of any Member State to the extent of any conflict between them.

 

ARTICLE 53

Procedure in Complaints by Individuals

1. Member States shall, in accordance with their national constitutions and in terms of this Protocol

a) ensure that every person who alleges that his rights under this Protocol have been infringed shall have unimpeded recourse to the domestic courts or tribunals of the relevant host State;

b) guarantee that the competent courts or administrative bodies shall decide on the rights of the aggrieved person speedily according to the laws of the Member State concerned.

2. Where any person exhausts the domestic remedies of the host State but remains dissatisfied with the results, such person may appeal to the Member State of which such person is a citizen and request that the matter be taken up and dealt with in terms of Article 52.

3. Any complaint that a Member State has committed a breach of any of its obligations under this Protocol shall be reported to the Executive Secretary of the Community who shall transmit the same with comments to the Council.

4. The Council may deal with the matter in terms of Article 52.1 or refer it to the Tribunal for resolution in terms of Article 52.2.

 

CHAPTER XV

GENERAL PROVISIONS

 

ARTICLE 54

Amendment of Protocol

1. Any Member State may submit to the Secretariat of the Community written proposals for the amendment or review of this Protocol giving reasons for each proposal.

2. The Secretariat shall communicate any such proposal to the Regional Standing Committee and to each Member State within thirty days of receiving the proposal.

3. Within three months of receiving a proposal to amend this Protocol, the Secretariat shall forward the proposals, with any comments thereon by then received, to the Council for consideration.

4. The Council shall make appropriate recommendations on any proposed amendment to the Summit.

5. Any proposal to amend this Protocol shall be regarded as rejected unless it receives the support of three quarters of all members of the Summit.

 

ARTICLE 55

Power to Make Regulations

The Council shall have power to make regulations either as specifically authorised under any Article hereto or generally for the better carrying into effect of the provisions of this Protocol.

 

ARTICLE 56

Ratification

1. A Member State shall indicate its approval of this Protocol by signing the original copy or by subsequent ratification or accession in accordance with its constitutional procedures.

2. Ratification or accession of this Protocol shall not be subject to any reservation.

 

ARTICLE 57

Deposit

Every instrument of ratification or accession of this Protocol shall be deposited with the Executive Secretary of SADC who shall transmit a certified true copy of this Protocol to each Member state giving notice of the dates of each instrument of ratification or accession deposited with him.

 

ARTICLE 58

Entry into Force

1. This Protocol shall enter into force thirty (30) days after the deposit of the instruments of ratification by two thirds of the Member States.

2. Upon its entry into force, this Protocol shall form part of and be read as one with the Treaty.

 

ARTICLE 59

Relationship with other African Regional Economic Communities

1. Member States shall take all steps necessary to ensure the co-operation, co-ordination and harmonization of the activities of SADC and those of the other regional economic communities envisaged by Article 28 of the Treaty Establishing the African Economic Community.

2. This Protocol shall be implemented in such a manner as to promote the eventual establishment of a protocol on the free movement of persons on the African Continent.

 


Back to MIGRATION DOCUMENTS