In moments like this I become deeply aware that I am not
serving in Cabinet for my edification, pleasure or political
convenience, but because I have committed to walk the full length
of the path of the reconciliation necessary to heal the wounds of
a conflict which killed tens of thousands of our people, and I
shall, therefore, stand here before you as your Minister of Home
Affairs.
The passing of the Immigration Bill by our Parliament is symbolic
of a turning point in our history of South Africa. The Aliens
Control Act was apartheid's last Act and reflected an insular and
discretionary mindset. Its repeal seems the last major
legislative reform amongst the many which this Parliament has
undertaken since May 1994 to bring us from the old to the new, as
migration control is the last of our functions to be reformed to
adjust to the values and spirit of the new South Africa.
As we emerge from the insular perspective of colonialism and
apartheid, we embrace the perspective of globalisation at the
dawn of a new millennium. The Immigration Bill is the culmination
of policy formulation which began in 1995, inclusive of a Green
and a White Paper, both approved by Cabinet after public
comments, public hearings and conferences. The Bill was drafted
on the tenets of the White Paper approved by Cabinet on 31 March
1999 and began circulating amongst stakeholders in November 1999,
being published for comments on 15 February 2000.
After an international conference held on it, the Bill was tabled
in Cabinet where it was discussed in the most minute detail for
nine months, to the point of holding a workshop on it. Cabinet
itself amended various sections eliminating the notion of a
statutory Immigration Service exercising migration control on the
same basis as the Revenue Services. It also changed the
Immigration Board into an advisory board with no executive
powers, and caused about 80 additional amendments.
On 20 May 2000, I requested the tabling of the Bill in Nedlac,
where it was considered from June 2000. After its approval by
Cabinet, the Bill was tabled in Parliament in April 2001,
published again for comments on 29 June 2001 and introduced in
Committee soon thereafter. This has been a long and difficult
process on a subject matter which throughout the world remains
impervious to serene policy-making. I must thank the Portfolio
Committee for the assiduous work of its members. I must also
thank you, Madam Speaker, for facilitating the processing of this
Bill and wish to congratulate Mr Mpho Scott on his election to
the chairmanship of the Committee, extending to him special
appreciation for brilliantly wrapping up the deliberations of the
Committee at the final and crucial juncture of its deliberations.
I have followed the Bill through the Committee, and the progress
made there. I never thought that the Bill would be passed as
introduced, and I was pleased that 23 pages of amendments were
made and discussed on 8 May and reflected on in the 9 May draft
"B" version of the Bill. On 9 May, I was informed that
the ruling party had sprung a radical redrafting of the Bill,
leading to political discussions to overcome the impasse. Only on
15 May at 8:00 am did I receive the outcome of such discussions
in a reformulated Bill which was voted on in the afternoon of the
same day, in a process which did not allow my Department to take
the Committee through its written view on such reformulation. My
own Party voted against key elements of this reformulation.
I am here standing before my colleagues not as the leader of a
political party, but as a Minister of State and for as long as I
remain a Minister of State, I shall faithfully execute any
legislation this Parliament may wish to adopt. I am a democrat
and bow to the will of the elected representatives. It is my duty
to present and recommend the approval of the Immigration Bill,
but I feel duty bound to highlight its features with the honesty
I have always employed when speaking to my colleagues.
The Bill before you is an enormous improvement on the present
uncertainty and levels of discretion. It contains innovative
solutions which place South Africa ahead of many other countries
which are struggling with issues of migration without the
opportunity of thinking a new system from scratch, carrying over
the core of systems shaped at the end of the 19th or in the first
part of the 20th century. We endeavoured to conceive and launch a
system responsive to the needs and challenges of the 21st
century.
The Bill creates a general entry visitor's permit which caters
for tourists as well as short-term business, students, medical
treatment and other activities which are not work as defined. It
also restricts the definition of work to require work permits
only when an employment relationship is maintained within South
Africa. These provisions reflect the age in which people travel
more freely for a combination of reasons including business,
tourism, study and research. The Bill creates permit categories
which are clear and defined ensuring that anyone in South Africa
will be accounted for as a citizen, a resident or a temporary
permit holder, while creating objective criteria to acquire
permanent residence and moving away from the Immigrants Selection
Boards.
The Bill brings immigration control into compliance with the
highest standards of human rights protection, including
administrative and judicial review, and the establishment of
Immigration Courts which provide a unified area of subject matter
jurisdiction so that all cases flowing from the Bill may be heard
in one set of courts rather than shuttling between the
Magistrate's Courts for warrants and the High Court for the
review of administrative actions and the validity of regulations.
This unified area of jurisdiction is essential to the good
performance of the system with the burdens the additional human
rights guarantees.
The Bill strengthens the enforcement of immigration laws, for
whatever we place in legislation becomes irrelevant when millions
of people flaunt it and enter, reside or remain in the country
illegally. We must develop the capacity to detect, redress and
deter illegal immigration. Our front door to immigration is now
becoming more widely open, but we must commit to closing the back
door to immigration. The Bill establishes mechanisms to
co-ordinate law enforcement amongst various organs of the State,
imposes responsibilities on certain institutions of civil
society, and sanctions employers and other people who promote or
facilitate illegal immigration.
For the first time in our history and as one of the first
instances in the world, the Bill creates the new function of
deterring and redressing xenophobia. We were proud when the UN
Conference in Durban on the elimination of racism and
discrimination, for the first time placed the issue of xenophobia
on the international human rights agenda, as this issue was
already entrenched in our own policy formulation and draft
legislation. We will learn more about xenophobia which often
operates in subtle forms, as do many other forms of
discrimination.
The Bill recognises that migration control cuts across many line
functions and that policy formulation will need to continue in
the future both to address the matters of detail to be set out in
regulations, and to adjust the system to the ever-changing needs
of the future. For this reason, it provides for an Immigration
Advisory Board with crucial roles in developing policies on the
basis of inter-departmental co-ordination and with the
involvement of representatives of civil society. As is done in
other countries, the Bill also requires that regulations be
adopted through a necessary process of public participation, and
that they may be declared invalid not only if they violate the
Act, but also if they disregard the advice of the Immigration
Board or public comments in a manner which is arbitrary and
capricious.
The Bill clears the presently constitutionally problematic and
administratively difficult situation and vests border control in
the Department of Home Affairs, while providing for mechanisms of
inter-departmental co-ordination in respect of this function, and
to provide for a process in which with the consent of all parties
concerned, resources and capacity may be transferred to our
Department to fulfil this function. Also, in this respect, South
Africa is moving towards a more modern regulation and structuring
of border control which reflects present and future challenges.
The Bill clarifies that Home Affairs will be responsible for the
administration of ports of entry where more than ten departments
or agencies have to perform their respective roles, which has
often created confusion and lack of co-ordination, replacing
ineffective voluntary co-ordination with a precise statutory
responsibility.
In this and many other respects, the Bill represents a monumental
step ahead and sets our country on a much stronger footing to
cope with the issues of migration control which are bound to rise
exponentially in the years to come. International migration is
the fastest growing phenomenon in the world and I believe that in
the 21st century is bound to pose the conceptual and policy
challenges which, in the 20th century, the development of human
rights did.
However, in other respects the Bill before you is profoundly
different from our Government's policies to this point and the
terms of the debate on immigration control during the past seven
years. These differences became evident to me for the first time
only when the revised version of the Bill was informally
presented to me 48 hours ago, for I, as the Minister, was not
formally informed of any amendments made to the Bill, in respect
of which my Department was not involved or consulted.
Up until 48 hours ago, our Government maintained and declared to
the world a policy based on tenets which have now been subverted.
The core of an immigration policy is the determination of which
skilled or unskilled foreigner workers are needed for our
economic well being. Since the White Paper, we held that
government is ill-equipped to determine the skills our country
needs and we realised that in the modern labour markets assessing
immigration applications on the basis of skills is extremely
difficult and demands massive administrative capacity. We also
realised the difficulty of classifying skills, as our country's
economic growth needs skills both from the high and the low level
of the spectrum, and in the modern world one can no longer equate
skills with qualifications.
Therefore, we designed a system which tested the need for
foreigners by relying on market dynamics, leaving employers to
decide which foreigners they need, while we, as a Government,
would test the intensity of employers stated needs through a
licensing fee. If an employer pays the licensing fee, which makes
the foreigner more expensive than a national, then the foreigner
would be needed, and we could raise the threshold of acceptable
need by raising the licensing fee.
The Bill before you has gone in a diametrically opposed direction
and requires our Government to determine every year what skills
we need and to establish categories to accommodate each
conceivable foreigner whose skill may contribute to or be needed
for our economic growth, and to set numeric limits for each of
such categories. Rather than relying on and influencing market
forces, this approach reflects the command economy philosophy
which predicates that Government may be able to assess present
needs and predict future challenges and aspirations.
In addition to the difficulty of creating categories and quotas,
our Government would need to perform delicate assessments,
reviews and evaluations in respect of each application to ensure
that the applicant has, indeed, the skills he claims to have and
fits the category, in a process which may resemble what an
employer does when interviewing a person. This process is simpler
when skills are entirely reflected in qualifications as would be
the case of a dentistry degree holder applying under a dentist
category, but what about some one claiming years of academic
experience in China applying under a category for journalists, or
someone claiming years of engineering experience in Finland
applying under a category for project managers? Very difficult
things for us to check and even more difficult for us to
evaluate.
The Bill provides that when quotas are exceeded, foreigners may
obtain work permits through a complex process of labour
certification. Our Department will need to develop large
additional administrative capacity for conducting this new
function and will need much greater budgetary allocations.
The complete shift of policy which has taken place in the past 48
hours has, indeed, created a completely new Bill and a new policy
framework in more areas than work permits alone. Another tenet of
Government policy as it stood until 48 hours ago was that of
simplifying permitting procedures so that the permit could be
issued without any evaluative process. By eliminating the need
for our Department to perform evaluations, we can issue permits
in an objective fashion and directly from our regional offices,
rather than having to centralise in order to concentrate
activities in our scarce pool of available resources. In order to
reach this objective, we relied on various forms of outsourcing,
especially to accountants and reliable institutions, and we
eliminated evaluative stages. However, a great number of
evaluative stages have now been reinserted in respect of most
permitting procedures, and provision is made enabling any
applicant, who does not wish to utilise an accountant, to request
the Department to perform the relevant assessment and evaluation.
The policy of shifting administrative capacity away from the
issuance of permits, to move it into law enforcement and border
control will not be able to be pursued to the same extent. We
will also not be able to expedite the issuance of permits as
envisaged. The Bill no longer contains provision for the
decentralisation of its permit issuance functions, which were
core to the overall policy and administrative reform. The most
concerning aspect is that the provision required to restructure
the Department in an expedited manner to meet the new legislative
requirements, has been deleted. This means that it will take us a
long time to go through the ordinary procedure to restructure the
Department and reorganise positions, job descriptions and the
establishment on an individual basis. We will not be able to
deliver the new system of migration control as fast as we
expected and without significant and possibly damaging down time.
The Bill contains aspects in respect of which I cannot speak,
such as corporate permits, as the original provision, which was
one of the most innovative and world-wide acclaimed aspects of
our previous policy, has now been amended beyond recognition. I
do not know whether corporate permits fall under the quotas or
outside them, and what function they actually serve. We will try
our best to give them purpose and maintain the important function
for which they were originally designed, even though they will no
longer enable the Department to save significant administrative
capacity in respect of their issuance.
It is unusual for a Minister to do so, but it would be remiss of
me not to place this on record that there are technical problems
with the Bill which, I hope, will be corrected before its
enactment. Under the circumstances, I should have withdrawn this
Bill. However, we are labouring under a Constitutional Court
deadline forcing us to replace the Aliens Control Act which was
declared unconstitutional in its handling of permanent life
partnerships, work permits for spouses and the certain
requirements to apply for permits from outside of the country.
I must ask what led the political parliamentary processes to turn
policies upside down, outside the parameters of public debates
and consultation. All those who made submissions to my Department
seemed to be adverse to a generalised quota system, had no
problem about decentralisation and, on the preponderance of
submissions, were in favour of outsourcing certain functions in
order to reduce the administrative capacity to dedicate to the
issuance of permits. The ruling party never formally expressed a
contrary view in any of its publications known to me, or in its
contributions in this process.
The people of South Africa, after this long process, know what I
intended doing for immigration in South Africa. I shared the
draft Bill with Ministers in charge of Immigration in Canada, in
Washington and in Holland. I do not question the right of this
Legislature to amend the Bill as it sees fit. In fact, many of
the amendments were effected through the Portfolio Committee. The
problem came when members of the ruling Party came out with a
different Bill from that which had already been amended by
members of the Portfolio Committee of Home Affairs, where all
parties were represented.
The Department was not given the opportunity to respond to the
Bill's amendments and it was not given the opportunity to respond
after each presentation before the Committee by selected people.
If I withdraw the Bill at this stage, we could not meet the
Constitutional Court deadline. This has placed me in a situation
where I am presenting and piloting a Bill of this Parliament as
my Bill, but it is the Bill as amended by the majority Party with
its warts and all. It is this Legislature which will be
answerable should there be problems in the areas I have pointed
out.
There is no doubt in my mind that this process shows the weakness
of our democracy where whims seem to prevail over responsible
policy formulation. This highlights lack of leadership in a
fundamental aspect of governance, for the provisions of this Bill
relating to work-permits have a massive impact on our
macro-economic equation. A few days ago, the US Trade
Representative identified our "antiquated and obsolete
immigration laws" as one of the three major impairments to
doing business in South Africa.
What Cabinet placed before this Parliament was what I felt to be
the best way to respond to present needs and future challenges. I
cannot help but read the response that Parliament gave to Cabinet
proposals as a process gone astray in which the desire to assert
the political primacy of the ruling party overrode reason and
careful considerations of issues. Apparently, the positions
shifted dramatically from Thursday last week to Wednesday this
week, signifying that rewriting this Bill even without clarity on
issues was more important than allowing the perception that
something good and worthwhile may have come from Minister
Buthelezi. This shows weakness and insecurity and, in the final
analysis, lack of true leadership.
We were offered the opportunity of leapfrogging ahead but, in
many respects, we will need to lag behind. The need will continue
to arise for Parliament to intervene again through legislation on
this subject matter. I have done the best my country and
conscience demanded of me.
I thank you.