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
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.