SA Migration International

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A parallel, shadow regime has hijacked control of SA’s borders

Source: Sunday Times, 20/05/2018

Malusi Gigaba’s Border Management Authority Bill would be a silent
coup, seizing powers from other departments for the use of top home
affairs managers
Contrary to common belief, South Africa’s borders constitute the most
valuable of all state assets on the country’s balance sheet. Their
capture is tantamount to the control of South Africa’s sovereignty.
All immigration systems aim to protect the physical and legal
parameters that define a country’s sovereignty. In South Africa’s
case, the extent to which our borders are modulated to enable the
influx of foreigners is controlled by the Department of Home Affairs,
with executive authority vested in Minister of Home Affairs Malusi
Gigaba.
It is increasingly clear that the department’s managerial “complex” �`
which might be said to extend from the minister to an established
group, including director-general Mkuseli Apleni, deputy director-
general Jackson McKay, and the chief directors of its directorates,
such as the immigration inspectorate, counter-corruption and legal
services �` does not operate solely within the ordinary legislative
and constitutional framework. It appears to operate also in a
parallel, shadow decision-making realm.
The home affairs complex has captured South Africa’s borders in a
quiet coup that has escaped the scrutiny of the public protector and
observers.
Control of our borders was ultimately wrested by the Department of
Home Affairs from more than 18 state departments and parastatals,
including SARS, by Gigaba’s championing of the Border Management
Authority Bill. When the bill was debated in parliament in May 2017,
DA spokesman on home affairs Haniff Hoosen called it “one of the
worst pieces of legislation that has come before the house”, and an
attempt to create yet another entity that could be captured by the
greedy and corrupt in power.
The department’s legislative mandate gives it responsibility for
little more than passport control at ports of entry. Should the
Border Management Authority Bill be passed by the National Council of
Provinces this year, it will place a monopolistic control of all
border-related matters �` including defence, policing, customs revenue
collections and VAT rebates, and the movement of all goods and the 40
million people entering and exiting the country �` in the hands of
home affairs.
Alongside the growth of a shadow state within the constitutional
democratic structure, a second tier of our borders’ modulation has
taken place, outside of the mundane implementation of immigration
legislation. This has been achieved by the home affairs complex and
its “fixers” and “enforcers” embedded in the home affairs
bureaucracy.
While various home affairs ministers �` including Nkosazana Dlamini-
Zuma and Gigaba �` have been publicly (and loudly) preoccupied with
the eradication of corruption from the ranks of the department and
civil society, this was nothing but a ruse to divert attention from
the creation of a shadow decision-making authority within the
department.
The extraordinary stagnancy with which home affairs management
pursues corruption cases brought to its attention reveals that this
is nothing more than a veiled reluctance to enforce its “zero-
tolerance” policy.
The first phase of the capture of our borders and immigration system
began with Dlamini-Zuma’s deployment of cadres as enforcers of a
restrictive immigration policy. In 2010, with the centralisation of
decision-making on all immigration and citizenship applications, a
new approach to immigration control was predicated on the fabricated
scourge of human trafficking. This morphed into the enactment of
stringent immigration legislation in 2014, effectively closing our
borders to foreigners.
The pattern of gross inefficiency and administrative bungling in home
affairs’s handling of citizenship and immigration applications is
inextricable from the “designed chaos” that has been widely observed.
Compliant applications are frequently rejected; appeals and
ministerial exemption applications are stymied by red tape to the
extent that corruption often seems the only remedy for those
desperate enough.
The system of immigration administration now predicates itself on a
dangerous duality of standards of administrative justice while the
home affairs complex remains entrenched. This complex has
artificially manipulated policies, procedures and access to efficient
decision-making for purposes other than preserving the integrity of
the legislative apparatus. The closure of the borders to everyone
creates an opportunity to modulate their opening to those willing to
pay a higher price.
One such example is the politically preferential treatment granted to
a senior member of the Popular Front for the Liberation of Palestine,
Leila Khaled, a “prohibited” person in terms of our immigration
legislation. Gigaba himself went to the airport as part of her
welcoming committee. The only way Khaled could have lawfully entered
South Africa was for her prohibition to be lifted by the director-
general with “good cause”. Her entry was facilitated by the home
affairs complex without any public explanation.
Later that year, in June 2015 and against a court order, Sudanese
President Omar al-Bashir escaped an international arrest warrant by
departing from South Africa through Air Force Base Waterkloof. His
passport was not examined by immigration officers. This is an
indisputable case of political rent-seeking at the behest of the
executive authority, with the full cooperation of a willing complex
of officials.
If this is the benchmark for administrative justice, how can ordinary
people �` including foreigners subject to the Immigration Act �` be
held to a different standard? How can a regime of law exist with
integrity when access to administrative justice is only possible
through a shadow decision-making authority outside of the rule of
law?
This principle cannot be more poignantly articulated than in the
celebrated words of US Supreme Court Justice Louis Brandeis: “If the
government becomes a lawbreaker, it breeds contempt for the law; it
invites every man to become a law unto himself; it invites anarchy.”

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