SOUTH Africa’s new immigration law remains steeped in controversy after sweeping last-minute amendments were brought by the African National Congress in Parliament – prompting the cancellation of Thursday’s scheduled vote on the Bill.
The Department of Home Affairs, which drafted the original Bill under Inkatha Freedom Party Minister Mangosuthu Buthelezi, was caught unawares by the cancellation.
Buthelezi hinted on Thursday that the ANC’s 11th-hour intervention might force him to withdraw his Bill, and could have fallout for the IFP’s role in the government. Sources said he was ”at the end of his tether”.
”If the [ANC’s] proposals depart radically from the Bill as I presented it to Cabinet, I might be forced to make a decision,” Buthelezi said. ”I am aware I am the leader of a minority party [in the government].”
The ANC parliamentary caucus on Thursday gave its full backing to a radical rewrite of the Bill. It is understood there will now be horse-trading behind closed doors.
The revamping of the legislation – drafted by home affairs and approved by Cabinet in mid-2000 after several delays – is being driven by ANC MPs deeply uncomfortable about certain provisions. In the making for almost five years, it has been subject to repeated filibustering and intervention by the ruling party.
The Bill aims to ease the recruitment of foreign skilled workers, replace antiquated immigration controls and streamline the running of home affairs. Importantly, it seeks to remove the wide discretion of senior home affairs officials.
ANC MPs are known to be deeply unhappy about the Bill’s proposal of immigration courts. They also want the defence force, rather than home affairs, to oversee border control and are uncomfortable with the planned restructuring of the department to give regional offices considerable independence.
The ANC’s sweeping rewrite surfaced after last-minute discussions on Wednesday aimed at smoothing out disagreements that have emerged in committee debates and public hearings over the past three weeks.
Among the key changes it proposes are the removal of immigration courts from Buthelezi’s Bill; the deletion of the exceptional skills permit and treaty permit under which, for example, Cuban doctors were admitted to South Africa; and the reinstitution of bureaucratic discretion in some cases.
Various business-related permits have been reclassified. A business permit now covers pursuing charitable activities, research, the establishment of businesses, cross-border trade and the self-employed. And the work permit proposed in the ANC amendments requires employers to show appropriate measures were taken to hire locally, while demonstrating a ”willingness and plans to train a citizen or resident to occupy similar position in the future”.
In addition, provisions to promote a human rights-based immigration control have been deleted. There also appears to be no provision for diplomatic permits. One proposal that withstood serious amendment is the immigration advisory board, designed to replace the selection committees of home affairs officials who currently make immigration decisions.
ANC home affairs committee head Mpho Scott said the amendments were ”minor”. But a Democratic Alliance MP said the ANC document was a surprise. ”It seems games are being played at the expense of the country.”
The exclusion of immigration courts has raised eyebrows, as an agree- ment appeared to have been reached between Minister of Justice and Constitutional Development Penuell Maduna and Buthelezi on Wednesday.
The home affairs committee has been under pressure to meet two Constitutional Court deadlines to remedy unconstitutional sections of the Aliens Control Act. The Bill must go before the National Assembly for debate next Friday.
Observers say it could be mere months before the new law is challenged in court on grounds of unfair procedure and administrative discretion. Several provisions, including a maximum 30 days’ detention prior to deportation without the right to court appearance, could also be challenged on constitutional grounds.
The ANC amendments do not address trade union concerns about corporate permits, which allow a company, under home affairs licence, to issue its own work permits. The Congress of South African Trade Unions advocated a quota system, to be negotiated at the National Economic Development and Labour Council.
Vincent Williams of the Southern African Migration Project said the Bill has shifted the administrative burden of issuing permits to foreigners to other departments with doubtful capacity. Home affairs had effectively abrogated its authority and blurred the lines of responsibility. He said the Bill created the potential for witch-hunts by encouraging citizens to inform on illegal foreigners.