Like a bad gangsta rap outfit from the early ‘90s, the BMA – or Border Management Authority Bill – is a noisy, incoherent mess punctuated by the occasional heist skit. It represents, as one commentator recently noted, a “silent coup” of the country’s borders by the Department of Home Affairs, engineered by the Duke of Capture himself – Malusi Gigaba. Currently before the National Council of Provinces, the Bill could very soon become law. But the issue is bigger than one piece of legislation: over the last decade, stealthily and with xenophobic and rent-seeking intent, Home Affairs has been “repositioned” – which basically means that South Africa itself has been reconceived. It’s time that the country stops sleeping on a scam that could, over the years, make the stymied Russian nuclear deal look like petty cash by comparison.
“In the absence of justice, what is sovereignty but organised robbery?” asked St. Augustine, grouchily. Think, then, of the re-upped Malusi Gigaba-led Department of Home Affairs (DHA) as doubling down on sovereignty, while decimating the possibility of justice.
If South Africans often feel like Home Affairs owns them, that’s pretty much the point: the department serves as the primary guardian of South Africanness as a legal concept. It’s a big job, and one that the DHA has traditionally performed shittily. As the country battled its way through the constant, unrelenting Zayhem perpetrated by the previous regime, the DHA – first under Malusi Gigaba, then Hlengiwe Mkhize, then Ayanda Dlodlo, and then finally back under Malusi Gigaba – was being quietly reshaped into a digital uber-eye that would more efficiently enact its key mandates: to secure and manage our identity and status as citizens, and to manage migration into and out of our borders.
In order to pull this off in the hell-scape that is the 21st century, and following a Cabinet meeting on 1 March 2017, it was announced that the DHA “must be positioned within the security system of the State so that it contributes to national security and is able to protect its people, systems and data”.
Just take a moment to let that statement sink in: Cabinet had effectively endorsed a United States Homeland Security-type border management system, a quasi-militarised czar-ship that inevitably builds up its own power-base, its own fiercely-protected turf, and its own ability to steal the fuck out of anything that twitches.
If Zuma had a modus operandi, it was this: herd the administration of the entire state into the security cluster, which was the only arm of government he properly understood and completely controlled. This “repositioning” of Home Affairs, outlined in far more detail in a discussion paper published in May 2017, happened in the context of additional tweaks to the legislation governing how people move into and out of our borders. The first was the Immigration Act of 2010; the second is a proposal that hoped to revamp the Refugee Act of 1998, called “The White Paper on International Migration”. (More on the latter in a moment.) But the Cabinet meeting was meant to push hard for the third leg of this unwieldy table: the Border Management Authority Bill, a piece of legislation so atrocious that it sent opposition politicians and activists from across the ideological divide into convulsions.
And no wonder: the BMA literally cedes management of the country’s borders to a standalone SAA-style National Public Entity, overseen by the historically corrupt and legendarily inept Department of Home Affairs. Its commissioner, no doubt an ANC cadre in good standing, would on the day of his or her appointment become one of the most powerful people in the country.
Despite the BMA Bill’s ability to change South Africa completely and forever, it was nonetheless slept on by most of the media, and it snuck through Parliament on a busy legislative afternoon with nary a peep from the gallery.
That’s the bad news.
The worse news is that in the first Cabinet reshuffle of his tenure, President Cyril Ramaphosa shunted Gigaba from finance back into Home Affairs. This was considered by the wonks to be a move of tactical brilliance. After all, Gigaba is alleged during his last stint at DHA to have perjured himself during a bunfight over the rights to a VIP airport facility called Fireblade. (Gigaba, in a classic instance of Zuma-era radical economic transformation, was hoping to transfer ownership from the Oppenheimer family to his pals, the Guptas.) His reappointment, Ramaphosa’s apologists insisted, would hoist the fancily-dressed dandy on his own petard. But there are clearly much bigger things afoot at DHA than the Fireblade perjury stupidity, and the repositioning of DHA over the past decade or so has very much been a Gigaba project. For the meantime, he is able to pursue it all unhindered.
So what’s at stake? Several very important, interlinked issues. First, Gigaba will probably be best remembered for his War Against Tourism – the draconian tourist visa regime he instituted that required parents travelling with children to present full birth certificates at border posts. The policy was ostensibly created to deal with the massive child trafficking problem that South Africa doesn’t have, but it was in fact in line with the Zuma regime’s hardcore nativist sensibilities: Gigaba was hoping to cut off the flow of African migrants into the country by making the price of entry impossibly high.
The policy has had knock-on effects that even Gigaba must have foreseen, but he appeared to be willing to sacrifice hundreds of millions of rands of tourism forex (and this was before the Cape Town water crisis and the strengthening of the rand) in order to create a stop-gap measure for a more comprehensive containment programme: the magical transformation of refugees into detainees, a framework that is much more in line with how, say, Hungary, or North Korea, would deal with these things. The principle mechanism here is the above-mentioned white paper, which would significantly amend the Refugee Act. There are many little legal sinkholes in the paper that would curtail the rights of asylum seekers, but most notably, the proposed legislation appears to clear the way for bespoke “processing centres” that will be built to house – a.k.a. imprison – refugees at various points at or near border entry posts.
This could prove a spectacularly expensive undertaking. According to data crunched by Kathryn L. Hoeflich, former CEO of the Cape Town Refugee Centre, the initial estimates for the processing centres amounted to R2.7-billion – that’s billion with a capital “B”. The three-year feasibility study alone was expected to cost R64-million. (In 2016, a R896,209 portion of this tender was won by the White Monopoly Capital behemoth BVI Consulting Engineers, in a joint venture with a BEE front called FLR Trading Enterprise, which has no website and appears to slurp up an occasional government contract. There have been no tenders issued since.)
This was to be followed up with a two-year R800-million infrastructure build originally set to start in 2018, with projected operating costs over a three-year span amounting to R1.68-billion. This has been delayed, of course, and according to Elgene Roos of the Legal Resources Centre, “we’ve seen no actual budgets so far.”
Whatever one thinks of the South African Constitution, it provides right of movement and dignity to everyone in the country, including asylum seekers. The DHA does not seem to properly grasp this fact.
“The white paper is very elitist,” Roos told Daily Maverick, “and it limits the rights of asylum seekers significantly. No longer will they have the automatic and constitutional right to study or work. It’s kind of following the Australian model.”
Does she mean the fascist ring-fenced white supremacist overpriced hipster coffee shop in the South Pacific?
I believe she does.
All the Money in the World
How all of this clicks into a wider Integrated Border Management Strategy (IBMS) – one of the department’s more over-used buzzterms – is either deliberately unclear, or standard-grade DHA lunacy. As far as Home Affairs is concerned:
“IBMS will be an important measure to curb cross-border crime, identify risks to border security and develop the necessary interventions to mitigate or eliminate those risks, and to ensure that all role-players have an identified role.”
No one paying attention seems to know what the fuck this means, but the gist appears to be that IBMS would bundle all of the role-players formerly involved in border management under the DHA purview. Currently, outside of its duties internal domestic duties, Home Affairs is restricted to managing passport control at ports of entry. Should the Border Management Agency be Frankenstein-monstered into existence by the National Council of Provinces, the DHA would take over the tasks of more than eighteen other agencies, including the SANDF, the police, and – most critically – the South African Revenue Service (SARS).
The bill is so horrific that few observers seem think it will actually go through. Clearly, they haven’t been living in South Africa for the past 10 years. That said, according to the Parliamentary Monitoring Group’s minutes of the 20 February, 2018, NCOP committee consultation, the principal concerns remain first with the SANDF, who are not clear on how their role in border protection (as opposed to border control, which is the responsibility of SARS, SAPS and Home Affairs) would be reduced/enhanced/amended once the Authority was established. The obvious problem is that under a standalone entity with the full remit to both protect and control the borders, South Africa could become even more porous to criminals than it is now.
In fact, the BMA could become the only criminal that counts.
Which is probably why the folks at Treasury are profoundly concerned.
Section 5(c) of the Bill gives the BMA the authority to “facilitate the collection of revenue within the border law enforcement area and at points of entry” – a job that currently belongs to SARS, which, until former commissioner Tom Moyane showed up, was pretty much the only government agency keeping the ship afloat. And here’s where it gets weird: according to Section 22 of the Bill, the Authority would be funded by a combination of parliamentary appropriations, government grants and “any other monies legally acquired by it […] excluding revenue collected in terms of section 5(c).”
Okay, so why does Home Affairs insist that the BMA must collect border revenue? What exactly is the game here? (According to suspended/unsuspended Home Affairs Director General Mkuseli Apleni, whom I spoke with in 2017, it’s all about “co-ordination and coherency. We have to have a united strategy.”) The leakage could not just be spectacular, but extinction-level. As the NCOP committee minutes make clear, Treasury is concerned that the BMA could “fragment” a revenue value chain “involving 30 percent of the country’s revenue amounting to R300-billion”.
That’s a big number, and it includes all of the functions that SARS performs at the borders, including filing applications, “risk systems”, and the appropriate duties on imported goods. The disruption could be spectacularly significant, but even if we just examine the revenue collected from customs duties over the course of the 2016/2017 financial year, it amounted to R45.5-billion. As one Treasury insider pointed out to Daily Maverick, the revenue shortfall that resulted in a one percent increase in the VAT rate amounted to R50-billion.
The Big Fix
Inasmuch as it’s about anything, the Border Management Authority Bill is about weaponising and monetising the functions of Home Affairs. As Kathryn Hoeflich put it in an email, the BMA “is not about the process of governing and administering the rational movement of people (the kind of thing that legislation is supposed to do to consistently and rationally govern in a democracy). The BMA is designed to make sure that population movements, human movement and goods movement are seen as a threat that should be dealt with in a black box, behind curtains in the name of security and threat, in a manner that is not calibrated to the actual threat that these goods or people may pose to the country.”
No one is suggesting for a second that South Africa shouldn’t better manage its borders; no one is suggesting that our borders should remain porous or poorly managed. Similarly, no one except the DHA seems to believe that the DHA should remedy the situation. More to the point, the threats this country faces need to be measured appropriately. We have no military pressure on our borders from belligerent neighbours, and asylum seekers have dipped from a height of 223,329 in 2009 to a projected 15,539 applications in 2018, largely due to a new SADC visa regime. And while customs collection is beset by corruption, as is SAPS, the fix here should be obvious: stamp out corrupt officials.
The issue is one of proportionality, and the BMA is a Zuma-era stitch-up that needs to be stopped. President Ramaphosa and his clean-up crew might be busy, but they need to get wise to what could potentially be an existential threat to the country’s revenue collection processes, and more. DM
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