South Africa

South Africa

TRAINSPOTTER: The Border Management Authority – transforming South Africa into an open-air prison

Q: The creation of a standalone Border Management Authority would be one of the most significant changes to the mechanics of the state since the dawn of democracy. Tabled as a priority at the recent ANC National Executive Committee’s Lekgotla, it is passing way under the radar. Why? A: Because the government wants it that way. RICHARD POPLAK, on South Africa’s most slept on, and dystopian, sci-fi initiative.

All infographics courtesy of Kathryn L. Hoeflich & Ross McDonald

A great South African rule of thumb goes like this: if President Jacob Zuma is desperate for a Bill to pass, it means that millions of people are about to get catastrophically screwed. To wit: the largely undiscussed Border Management Authority Bill, first proposed in 2009; tabled in Parliament in 2015, now slowly snaking its way through hearings towards certain and happy ratification in the near future.

We know that the BMA’s rubber-stamping is foreordained because, buried deep in the gunk of last week’s ANC NEC Lekgotla summary, lurks the following terse bullet point:

Parliament should expedite the passing of the Border Management Authority (BMA) Bill to ensure the establishment of a fully-fledged Border Management Agency.

Thing is, the gravity of the BMA bill’s stipulations, and the immensity of the changes it would usher in, renders the rest of the lekgotla summary as meaningless flim-flam. What, then, would the BMA mean for the policing of South Africa’s borders?

Pretty much everything, as it turns out.

If you take Bill B9-2016 at its word, “There is a need for integrated and co-ordinated border management that facilitates secure travel and legitimate trade in accordance with the Constitution, [and] international and domestic law.”

No question, every nation has an obligation to secure its sovereign borders, and has a right to police those who enter, either by a visa process, or by some other means. In this regard, our current border management is a mess, and could use a nuanced reconception by talented bureaucrats and committed legislators. But the BMA Bill proposes to roll a loopy border management non-strategy into a standalone National Public Entity – basically a parastatal – which would include elements of the South African Police Service (SAPS), the South African National Defence Force (SANDF), the Department of Agriculture, and Customs, all overseen by the Department of Home Affairs.

Home Affairs, you ask? Where frontline corruption goes to find its most perfect and pernicious articulation?

Indeed. According to the BMA Bill, border enforcement – in the sea, on land, and in our airspace – would be “performed exclusively by the officers of the Authority”. In other words, picture a Judge Dredd-type scenario, where the resulting agency would have the power to shoot people swimming the Limpopo, and then collect from their bullet-ridded corpses the appropriate customs duties. All of this would be presided over by a Commissioner appointed by the President – another czar of another state-owned thingee in a country that is simultaneously over- and under-governed by dozens of petty martinets, all of whom owe loyalty to the Zumacrateriat alone.

At its best, the BMA addresses what Home Affairs spokesperson Mayihlome Tshwete described to the Daily Maverick as a woefully disparate – and dangerous – border management farrago:

“We’ve been delaying this thing for a long time,” he said. “This disintegrated way of doing things is unsustainable, and it presents certain risks to the country.”

But the Bill is so jammed with legislative limpet mines that a fair reaction would be to chop your emergency supply of Xanax into several thick yet snortable lines, and spend a day with a straw lodged in your nose. The whole deal with the BMA – which is to say: the establishment of a stand-alone, “revenue neutral” state-run corporation backed by all of the guns – is so entirely creepy that the problems just seem to create themselves.

For instance, what is the country’s policy with regard to asylum seekers? Following 2015’s outbreak of xenophobic violence, we were bequeathed the unloved, draconian Operation Fiela, an intra-departmental effort to “clean up” criminal activity in the country – in effect, a dragnet intended to corral foreign nationals and dump them in various detention centres until deportation.

Listening to Fiela pitches from the likes of Pravin Gordhan, at the time Minister of Co-operative Governance and Traditional Affairs, and Nathi Nhleko, Minister of Police, it was clear that there exists in this country no visionary policy regarding folks seeking sanctuary within our borders. Processing times for asylum claims are notoriously backlogged – some people have waited for 14 years for a document that should by law take 180 days to be churned through the bureaucratic meat grinder. (Which is not to say that the relevant papers provide refugees with any protection). This has led to incidences of enormous cruelty, to say nothing of actual human rights abuses. As a response to this nightmare, the BMA appears to be treating total incoherence with… total incoherence, a homeopathic approach that is even dumber when applied to migration policy than it is to, say, menstrual cramps.

There is, of course, the Refugee Amendment Bill of 2016 to lean on – a piece of legislation that was designed with the country’s xenophobia in mind. Sadly, it often exhibits the exact same species of xenophobia it was meant to combat. “Our feeling is that the government is sending a message that if you’re a refugee, don’t come to South Africa,” said Manson Gwanyanya, a migration policy researcher at the Legal Resources Centre. Indeed, the Bill would “…require any category of asylum seeker to report to any particular or designated Refugee Reception Office, or other place specially designated as such, when lodging an application for asylum…. ”

That keeps us roughly in line with best practices around the world. But the BMA would make the clause manifest by promising “infrastructure” in order to “process” asylum seekers. But what sort of infrastructure? Are we talking Australia-style internment camps – enormous Club Dead suicide pens in which the Earth’s most vulnerable people are left to rot under the sun? Or something a little more humane?

There is nothing in the Department of Home Affairs record to suggest that the latter is even a possibility.

Critics, including Kathryn L. Hoeflich, former CEO of the Cape Town Refugee Centre, have noted that the resources allocated to detaining asylum seekers will require immense munificence from an otherwise tightfisted Treasury. The feasibility studies will cost R64-million, the detainment centres (how many? where?) will amount to R800-million, and operating them will demand a further R1.68-billion (for a seven-year period). That’s an insane R2.67-billion in order to effectively criminalise the asylum process.

Who is going to pay for this? Well, you are, of course. According to Tshwete, “It comes down to budget reallocation. The main issue is what we take from which budget. Whether its SAPS, SANDF, Agriculture – and where there’s contention is obviously Customs.”

(But not only Customs – the SAPS, in its August 2016 submissions for the DHA’s consultation process, stated that its preferred option was that “the SAPS operational units at borders remain outside the BMA structures, [but] continue to work alongside and in cooperation with Authority officers”.)

But anyway, Customs. Just about the only thing that SARS and the Treasury seem to agree upon these days is that Customs should not be integrated into the Authority’s mainframe. Estimates suggest that BMA officials would collect about R3-billion per annum at various ports of call under the rejigged border network, monies that currently accrue to the state through SARS. Which means that 15 Nkandlas-worth of cash would enter BMA agency coffers every year, making it a “sustainable” and, depending on whom you ask, profitable, state-run entity from the outset.

At this point, we’re looking at a big bag of Nope. “Government is backtracking on years of progress that SARS has made centralising and documenting funds collection,” Hoeflich has written. “If it goes through in this form, the BMA will break up the administration and collection of taxes for the country.”

For all of its problems, SARS is one of the most efficient tax collection services in the world – unlike most state bodies, it does the job it is mandated to do. Meanwhile, as Hoeflich has further noted, “Without warrants, the BMA’s armed, uniformed agents will have unlimited search and seizure powers to open any container or suitcase that passes under their noses.” We’re talking about a potential free-for-all, with nowhere near enough oversight to prevent instances of megalithic corruption. A BMA badge would be a licence to prey on humans who have zero recourse, and there’s nothing in the Bill, and even less in Home Affair’s operational history, to suggest a system of checks and balances.

And yet?

“The agreements [regarding the BMA] have happened at the highest level – at the NEC, and at Cabinet,” Tshwete told the Daily Maverick. “We want it to be operational by the end of this financial year.”

Not good. As Hoeflich told the Daily Maverick, although drafting the Bill was an enormously consultative process, “typical of Home Affairs, they took what everyone said and did the complete opposite”. In the green paper that collated hundreds of expert submissions, Bill 09-2016 could have been a contender.

By the time the official white paper was published, all of the wheat was replaced with the Malusi Gigaba-approved chaff.

What South Africa probably doesn’t need is a heavily armed quasi-military parastatal, run by Gigaba, in league with his mouth-breathing pals in the security cluster, collecting billions in revenue and getting their fingers into everything that shows up on our borders. This massively expensive, hugely powerful Homeland Security-style mess would in any case be near useless, given that SADC’s new visa regimes will reduce asylum claims to around 17,000 this year.

It’s worth asking what the ultimate point of the BMA might be. Is it really to keep people out? Of course it is. But more significantly, it’s designed to keep us penned in. The old conundrum: at what point do the wardens become the prisoners? If Malusi Gigaba has his way – very, very soon. The BMA is a power grab. It’s in step with the border security mania in the United States, in Europe, in Australia. It turns us (back) into an open-air prison. Nobody but Home Affairs wants it.

Time to say, Thanks, but Nah. There’s other ways to do this shit. DM

Photo: A refugee illegally crosses the Beit Bridge border from Zimbabwe into South Africa July 21 2007. REUTERS/Siphiwe Sibeko

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