The new immigration policy is an important case study for our country.
For the second time in a row I was greeted at immigration at Cape Town International not just with a smile, this time from a man, but with an identically cheery greeting: “Welcome home, sir.” In
contrast to the coarse rudeness of the typical United States equivalent or the passive-aggressive surliness of the average South African immigration officer 10 years ago, this was music to my ears.
First impressions do matter. That is why immigration matters to tourism as much as anything else. It is also why the President’s International Investment Advisory Council’s first major recommendation after it was set up two years ago was to tell President Thabo Mbeki, in no uncertain terms, to get a grip on immigration policy.
A slow, offensive, obscure service was doing South Africa’s inward-investment policy a grave disservice, it said. Moreover, it added, it would be one of the easiest things to fix. Mbeki, his spin doctors told us, was going to personally drive the issue from the top. Hence it became an obvious indicator for measuring Mr Delivery’s true capacity for doing just that.
Granted, there was a complication. And a serious one at that: Mangosuthu Buthelezi, and behind him in the shadows, that arch-meddler and wannabe constitutional lawyer, Buthelezi’s ministerial adviser and general handlanger, Mario Ambrosini.
While it would be naive to think that the complex political relationship between the Inkatha Freedom Party and the African National Congress has been anything other than an unneeded distraction in what is now a record-breaking eight-year policy and law-making saga, there are other more important conclusions to be extracted.
I say saga, but this is really too polite. Fiasco would be the more apposite adjective. The Institute for Democracy in South Africa’s immigration specialist, Vincent Williams, has followed the process closely from the outset. Now he is disgusted that so much time and effort has been wasted on such a paltry outcome. The Bill that emerged at the end of last week is “terrible”, says Williams.
A law is about to be passed that is really just a more sophisticated version of the Aliens Control Act of 1991 that the Constitutional Court declared unconstitutional and one that the Department of Trade and Industry says is unworkable.
So, the government is at odds over the new law; the responsible minister, Buthelezi, went on radio three hours after he introduced it to the National Assembly last Friday and said he was unhappy with it; business is confused about the last-minute insertion of a “quota” system. Is anyone remotely content with it? Is the president satisfied with what his government has delivered? And, most importantly, what will the citizens and potential investors who have to use it make of it?
How, we must now ask, can one of the longest-running law and policy processes have delivered possibly the worst pieces of legislation since 1994?
It is tempting, and intellectually sloppy, to blame the IFP-ANC factor. The heart of the matter is the failure to grapple with the policy questions that lie behind the law, such as the awkward balance between human rights and administrative efficiency, and between facilitating entry into South Africa and dealing with unlawful entrance.
Thus, what began as a model policy-making process seriously lost its way. An initial Green Paper, produced by a committee chaired by Professor Wilmot James, and which included Zanele Mbeki, the president’s wife, was replaced by a confused and regressive White Paper. The parliamentary committee on home affairs chaired by ANC MP Aubrey Mokoena rejected the White Paper and asked for it to be rewritten.
This was towards the end of 2000, which is when an already drawn-out process came off the rails. Instead of revising the White Paper and addressing the policy choices, neither the parliamentary committee nor the ministry chose to do so. While Ambrosini quietly drafted a Bill, the committee went into paralysis. It is something of a mystery why this happened, but the most likely reason was that Mbeki wanted to commit to delivering the new law the following year and indicated as much to both Buthelezi and Mokoena.
This represents a serious failure by Parliament. How so? Partly because Mokoena was well-intentioned but weak. But also because his parliamentary committee, as so many do, lacked the necessary capacity. If it wanted to, there was nothing to stop it rewriting the White Paper itself. But it lacked assertiveness as well as technical confidence, something that has been regularly exposed in recent weeks as Ambrosini has repeatedly told committee members what is and is not permissible, and the committee has lacked the firepower and expertise to stand up to him.
When the ANC part of the committee, driven now by the tough young intellectual and former whip, Mpho Scott, who had replaced Moekena in April, chose efficiency and expediency ahead of quality by pushing through a series of ANC amendments last week, the result was no better.
Yes, Parliament will meet the Constitutional Court’s June deadline, but has it delivered a sound and coherent new immigration policy? No. Does it meet the policy objectives? No, because the policy objectives have never been clearly stated, not by Mbeki, not by Buthelezi, not by Mokoena. Why? Because they have never been satisfactorily resolved or clarified, a fact that is reflected in what I understand is a four- or five-line Cabinet policy “framework” and by the mix ‘n’ match pot-pourri of a preamble to the Bill.
I heard political commentator Xolela Mangcu at a lunch last year say that government is really just like being at school: it is the process of learning to learn that is crucial. Governments that learn from their mistakes and their successes — go on and do better (and continue to win elections). Those that do not tend to fall into the abyss.
That is why it is important to view this mess as an important case study for the new South Africa. What is both ironic and frustrating is that this should happen at a time when there is a growing sense that government departments are beginning finally to settle down after the transformational flux that followed 1994.
What is especially depressing about the role of Parliament in this story is that the patterns of inadequacy that were striking in the first democratic Parliament of 1994 to 1999 still exist.
I remember, for instance, how in 1996 a senior Department of Home Affairs lawyer named Attie Tredoux railroaded a wise but diffident Senate (as it then was) home affairs committee into passing an appallingly drafted Film and Publications Act.
Time and again, members of the committee offered perfectly sensible suggestions for improving the Bill, and time and again Tredoux patronisingly rebuffed them.
What makes the “perfect chief whip” will, I hope, be the subject of this column in a fortnight’s time. But in the meantime, let me suggest that the core challenge for Nkosinathi Nhleko, Parliament’s sixth chief whip in eight years — far too many for the good of such a rapidly evolving institution — appointed last week, is to win the necessary political backing to ensure that Parliament’s committees have the resources to enable them to command the law and policy-making process.
There are important exceptions to this general rule — Johnny de Lange’s justice committee and Yunus Carrim’s local government committee spring to mind. But if Nhleko fails in the task initiated by his short-lived predecessor, Nosiview Mapisa-Nqakulu, Parliament’s committees will continue to be eclipsed when the executive offers little but incompetence or incoherence, to the detriment of us all.
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