This brief explores South Africa’s standpoint in the context of economic migration policy across the Africa. We research how ‘free movement’ is threaded through the establishment and protocols of bodies like the African Union, or Southern African Development Community – and South Africa’s position on this.
South Africa’s economic migration was historically influenced by the “racist orientation of migration policy.”
- At the end of the 19th century, as the mining industry boomed in South Africa, black laborers came mainly from Malawi, Mozambique, Lesotho, Botswana, and eSwatini to work in the South African mines. Meanwhile, skilled labor was primarily recruited from European countries. The structure of migration to South Africa has often followed this “two-gate policy”: African cross-border labor migration and European immigration. In other words, a two-tier immigration pattern existed, effectively divided along lines of race and skill set.
- The white government of the South African Union established a recruiting system for labor migration.
- In 1901, Witwatersrand Native Labor Association (WNLA) agents traveled to places throughout Southern Africa to recruit mineworkers. In 1912, the Native Recruiting Corporation (NRC) also began recruiting black indigenous people to work in mines.
- The government issued a series of migration laws in 1913. The laws stated that only male laborers could enter South Africa. They had no rights, could not bring their families, and could only stay for up to one year, after which they had to return to their country of origin. Black laborers could not obtain permanent status in South Africa.
- Starting in 1961 and throughout the 1980s, the South African government implemented programs to address the growing scarcity of qualified white labor. The government introduced subsidies—which were used to pay for travel expenses, accommodations and settlement allowances—in order to promote the settlement of people from Europe, as well as white settlers from African nations that had recently achieved independence.
- Particularly between 1959 and 1994, the South African government issued a series of acts that controlled the internal economic migration of black people. Black South Africans were sent to impoverished homelands and stripped of their South African citizenship. They were only able to enter “white South Africa” temporarily as migrant laborers. In order to control and regulate black people’s movement to and within “white South Africa,” the government strictly enforced the pass system.
1970s and 1980s
- While the South African government continued to welcome white migrants, starting in the early seventies, black economic migration decreased. This decrease was due to stricter border enforcement policies and less demand for foreign laborers by domestic businesses.
- A main goal of the Apartheid government’s immigration legislation was to economically exploit labor migrants from neighboring African nations. The Aliens Control Act of 1991 continued the “racist orientation of migration policy.” It reinforced the “two-gate policy” by welcoming white economic migrants to help protect the power of the ruling elite and only allowing black migrants into South Africa temporarily to work in mines.
- The post-Apartheid government adopted a very restrictive approach to economic migration. These restrictions affected all foreigners (including Europeans), but mainly African migrants. The policies were adopted in large part because of xenophobic public sentiment. South Africans presumed their “superiority to the rest of the continent” and thought of Africa and Africans as a threat in terms of employment and crime. According to demographers at the United Nations, between 1990 and 2000, the stock of international migrants in South Africa actively fell.
- The South African government signed comprehensive immigration reform into law in 2002. As a result, cross-border economic migration experienced a positive growth.
- The Immigration Act of 2002 established a new legislative framework for economic migration. Among other changes, it granted migrants rights and placed an important focus on the recruitment of skilled labor.
- 2014: In 2014, an amendment to the Immigration Act of 2002 made visa regulations more restrictive.
- The number of cross-border migrants in South Africa has increased by over two million between 2000 and 2017.
- According to estimates, South Africa will receive a net immigration of 1.02 million people between 2016 and 2021. Due to the economic attractiveness of Gauteng, most cross-border migrants are expected to settle there.
- Demand-pull factors such as employment (domestic service, mining, construction), trade, and investment opportunities drive economic migration from countries such as Mozambique to South Africa. According to the 2016 Community Survey conducted by Statistics South Africa, 2.8% of South Africa’s population is foreign-born.
The Organisation of African Unity
The Pan-Africanist movement, which arose in the late 19th and early 20th centuries, played a major role in the ideological development of the OAU. Though there were different versions of Pan-Africanism, one of the central ideas of the movement was that all Africans have shared experiences of exploitation that unite them. Also, the movement held that Africa and its people could only achieve economic prosperity, freedom, and political power if the continent was politically united.
The Pan-Africanist movement began in the United States among African-American intellectuals, and soon caught the attention of prominent intellectuals and heads of state on the African continent, such as Kwame Nkrumah of Ghana. A number of Pan-African Congresses were held to discuss how to further the interests of African people. At the fifth session, the Congress called for total independence of the African continent, the unification of Africa, democracy, and economic regeneration. Between 1958 and 1960, Nkrumah also held a series of conferences in Accra with the goal of building cultural and economic ties between African nations. However, not everyone agreed with the vision of a “United States of Africa,” which led to ideological divide.
Between May 22 and 25 in 1963, delegates from 32 African nations met in Ethiopia to establish the Organization for African Unity (OAU) by signing the OAU Charter. South Africa was not in attendance because, at the time, it was ruled by a white Afrikaner government whose main tenet ran counter to OAU philosophies. Ultimately, because of the ideological divide about how to approach African unification, the OAU resulted in a “watered-down compromise” between the ideological groups—a “diluted version” of the original idea of a “United States of Africa.” Because immediate full integration of African countries wasn’t possible, the OAU was created with the intention that it would incrementally proceed with unification until a Union of African States became possible.
The goals and objectives of the OAU that are specifically relevant to this brief:
- Promote unity and solidarity of the African states
- To coordinate and intensify African States’ cooperation and efforts to achieve a better life for the peoples of Africa
- To co-ordinate and harmonize members’ political, diplomatic, economic, educational, cultural, health, welfare, scientific, technical and defense policies
- The 1991 Abuja Treaty was the first framework of the OAU to include free movement of people and capital as key pillars.
South Africa became the 53rd and last State to join the OAU on June 6th, 1994, the same year that apartheid officially ended and 31 years after the OAU’s original creation.
In 1979, the Committee on the Review of the Charter was established. By this year, it had already become clear that the Charter had to be amended to make the OAU more effective at dealing with issues in a changing world. However, despite several meetings, the Charter Review Committee was not able to develop substantive amendments. Then on September 9, 1999, an Extraordinary Summit of the OAU was held in Sirte, Libya. The Summit called for the establishment of an African Union in conformity with the objectives of the OAU Charter and the provisions of the Abuja Treaty (the treaty that established the African Economic Community). In other words, one of the main goals behind forming the AU was to merge the political activities of the OAU with the economic and development issues outlined in the Abuja Treaty (the treaty that established the African Economic Community). So, on July 11, 2000, the Constitutive Act of the African Union was adopted. The AU was officially launched in July of 2002 in Durban, South Africa.
Goals and Objectives of the African Union that are specifically relevant to this brief:
- The aims of the AU are found in the Constitutive Act of the African Union and the Protocol on Amendments to the Constitutive Act of the African Union.
- Achieve greater unity and solidarity between African countries and their people
- Accelerate the political and socio-economic integration of the continent
- Encourage international cooperation
- Promote peace, security, and stability on the continent
- Promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments
- Establish the necessary conditions which enable the continent to play its rightful role in the global economy and in international negotiations
- Promote sustainable development at the economic, social and cultural levels as well as the integration of African economies
- Promote cooperation in all fields of human activity to raise the living standards of African peoples
- Coordinate and harmonize the policies between the existing and future Regional Economic Communities for the gradual attainment of the objectives of the Union
- The “concept of continental free movement is central for the AU.” In fact, the concept of free movement of people frequently shows up in AU treaties and protocols. The idea is that a united and economically successful Africa is only possible when free movement of migrants is established.
Because South Africa had joined the OAU in 1994, it was already a member of the AU when the AU was officially launched in 2002.
We have selected 9 African Union treaties or protocols that speak to free movement and economic migration in Africa. Click on an option below to read more about how it relates to migration!
Main Relevant Points
- Treaty entered into force in 1994. South Africa signed in 1997, South African Parliament ratified treaty in 2000.
- This Treaty establishes the African Economic Community – see below in this brief for more information on this.
- The Abuja Treaty is an important legal framework for migration because it is the first to focus on the free movement of persons as a way to strengthen regional integration and development in Africa.
- Chapter VI of Abuja Treaty calls on Member States to agree to adopt the “necessary measures, in order to achieve progressively the free movement of persons, and to ensure the enjoyment of the right of residence and…establishment by their nationals within the .”
- In pursuance of the above goal, the Abuja Treaty states that Member States must create a Protocol on the Free Movement of Persons, Right of Residence and Right of Establishment (this Protocol is described later in the brief).
- Inter-State cooperation, harmonization of policies and integration of programs
- Promotion of harmonious development of economic activities among member States
- Peaceful settlement of disputes among member States as a pre-requisite for economic development
- Recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights
- Accountability, economic justice and popular participation in development
- In order for the provisions of the Abuja Treaty to be binding, representatives of States must sign and ratify the treaty and the protocols thereto in accordance with their own constitutional procedures, as South Africa has done.
- The Economic and Social Council of the AEC is tasked with monitoring the progress made in the establishment of the AEC.
Main Points of MPFA
- The AU Migration Policy Framework for Africa (MPFA) was adopted in 2006 by the Executive Council of the AU.
- Recently, in 2018, the AU updated the MPFA with the Migration Policy Framework for Africa (2018-30) and its Plan of Action.
- The Plan of Action lists activities that the AU Commission will carry out to facilitate the management of migration in Africa.
- The purpose of the MPFA 2018-2030 is to provide comprehensive policy guidelines to AU Member States and Regional Economic Communities (RECs) as they promote migration and development, as well as address migration challenges in Africa.
- The MPFA 2018-2030 emphasizes that nations can enjoy the benefits of migration when it is managed effectively.
The MPFA 2018-2030 provides guidelines in the following thematic areas:
- Migration Governance
- Comply with international standards and law and secure migrants’ rights
- Employ migration governance to aid the socioeconomic well-being of migrants and society
- Labor Migration and Education
- MPFA calls for the establishment of regular, transparent, and comprehensive labor migration policies at national and regional levels
- Regional cooperation and harmonization of labor migration policies
- Recommends the creation of accountable labor recruitment and admission systems
- Recommends promotion of standardized bilateral labor agreements to ensure protection of migrant workers
- Integrate migrants into labor market and education and training sector
- Recommends policies for countering brain drain
- Diaspora Engagement
- Border Governance: “The trend towards securitization of migration and borders should not engender the closing of borders and hamper integration efforts in Africa”
- Irregular Migration
- Forced Displacement
- Internal Migration
- Migration and Trade
- The movement of people for trade (particularly short-term migration) is increasing in relevance
- Other Cross-Cutting issues
- Migration and Development
- Migration Data and Research
- Human Rights of Migrants
- Migration, Poverty and Conflict
- Inter-State and Inter-Regional Cooperation
Better migration governance (overarching objective of MPFA)
The facilitation of safe, orderly and dignified migration
- The MPFA is not legally binding.
- AU Member States, including South Africa, “agreed on” the MPFA. By doing so, States demonstrated that they agree in principle with the document’s guidelines. However, they are not required to implement MPFA guidelines.
- In general, there is a lack of knowledge among AU member states, including South Africa, on the MPFA. Only Ghana, Ethiopia, and Nigeria have used the framework to guide their national migration policy development.
- The MPFA does not provide resource mobilization mechanisms for implementation or monitoring and evaluation of recommended actions.
- The African Common Position is one of the main policy documents of the AU related to migration and was adopted by the Executive Council in July 2006.
- This policy document describes the “agreed position” of the AU member States (including South Africa) on 11 priority policies related to migration. It also presents recommendations for action at the national, continental, and international levels.
Main Relevant Agreements
- Migration and Development: Migration can be an effective tool for development.
- Labor migration: Labor migration policies that are regular, transparent and comprehensive can lead to benefits for origin and destination states. For countries of origin: remittances, skills, and technology transfers can assist with development objectives. For countries of destination: labor migration can satisfy labor market needs. Regional Economic Communities (RECs) are crucial for facilitating cooperation in the area of labor mobility at the regional level.
- Migration and Peace, Security and Stability: Large and unregulated migrant flows can impact stability, security and conflict prevention.
- Migration and Human Rights: A fundamental component of balanced migration management systems is the effective protection of economic, social and cultural rights of migrants (including right to development).
- Regional Initiatives: Need to develop common regional policies within RECs. Need for more bilateral and multilateral efforts in labor migration cooperation. These efforts can ensure regular movements of laborers. Reduce recourse to illegal and irregular movements.
The ‘recommendations for action’ are as follows:
- At national level:
- Adopt a policy on migration.
- Collect all relevant information on the extent of the migration problem.
- Improve conditions for youth employment.
- Establish a central body to manage migration.
- At continental level:
- Encourage conclusion of cooperation agreements by African States to manage migrations by developing bilateral and regional legal instruments.
- Improve management of migration flows by finding balance between effective security for legal immigrants and freedom of the legal movement of persons.
- Explore the possibility of coordinating research on migration and development by existing institutions with the goal of providing current and reliable information to States and organizations.
- At international level:
- The easing of the movement of persons through more flexible visa procedures in order to reduce illegal and irregular migration.
- Ratification and implementation of international instruments such as the UN Convention on the Protection of the Rights of Migrant Workers and their Family Members (1990) and all other relevant instruments.
- Encourage the movement of skilled African labor between host countries and countries of origin.
- Pay attention to: relaxing entry requirements for service providers, ensuring non-discriminatory treatment in the terms and conditions of service, elimination of the economic needs tests in recruitment.
- Elaborate a framework for social and economic offsets from host countries to mitigate effects of large scale departures of highly skilled African professionals in critical sectors.
- Objective: To develop a comprehensive and balanced approach to migration given the increase in migratory flows
- As mentioned above, the AU Executive Council adopted the African Common Position on Migration and Development. The African Common Position describes the position of South Africa given that SA is an AU member State. However, the policy document is not binding.
- Note: The African Common Position on Migration and Development does not have to be signed or ratified. In other words, there is no provision for signing or ratification by Member States.
- The Pan African Forum on Migration assesses the status of implementation of AU policy and legal frameworks, including the African Common Position on Migration and Development
- Adopted June 2014.
- South Africa has not signed or ratified this Convention.
- The Convention establishes a legal framework for member States to develop and implement cross-border cooperation initiatives.
- Based on coordinated activities between neighboring States, the Niamey Convention should facilitate the development of borderlands and ease free movement of persons and goods.
- Ambassador Aguibou Diarrah stated that“The relations between states and between cross-border communities can have an impact on curbing illegal migration.” And, “Working together to pool resources and in border activities can help to keep young people – the candidates for migration – from migrating.
- To promote cross-border cooperation, at local, sub –regional and regional levels.
- To facilitate the delimitation, demarcation and reaffirmation of interstate borders, in conformity with mechanisms agreed upon by the parties concerned.
- To facilitate the peaceful resolution of border disputes.
- To transform border areas into catalysts for growth, socio-economic and political integration of the continent. Border regions are often less economically developed. The Convention allows for economic growth at the border through agreements and employment.
- Promote peace and stability through the prevention of conflicts, the integration of the continent and the deepening of its unity.
- Once States sign and ratify, they are “encouraged” to harmonize their domestic law with the Convention.
- State Parties also “commit” to applying the provisions of the Convention and “commit” to submitting a report on the measures taken for implementation every two years. Because South Africa has not signed or ratified the Convention, it does not do any of this.
- Adopted in 2015.
- The AU Commission- International Labour Organization-International Organization for Migration- Economic Commission for Africa Joint Programme on Labour Migration Governance for Development and Integration (JLMP) is a long-term program between those 4 organizations and the UN Development Programme.
- It is a comprehensive program on labor migration governance for the African continent.
- Key long-term expectations: Extend decent work and social protection to migrant workers and their families, strengthen regional integration (through Regional Economic Communities) and inclusive development, enable better social and economic integration of migrants and sustainable labor market systems.
- The program has two components: Component 1: Labor Migration Governance (increased ratification and domestication of international standards, implementation of free circulation regimes in RECs and expanded engagement of labor institutions in labor migration governance). This means create focal departments in labor institutions on labor migration.Provide training and capacity building to labor institutions. Tripartite Policy Dialogue and coordination at national, REC and Continental level.
- Component 2: Operational Implementation of Law and Policy. Thie means: decent work for migrants with effective application of labor standards, extension of Social Security coverage to migrants, resolution of skills shortages and increased recognition of qualifications, obtaining relevant and comparable labor migration and labor market data.
- Overall objective: Strengthen the effective governance and regulation of labor migration and mobility in Africa, under the rule of law and with the involvement of key stakeholders across government, private sector employers, migrants, international organizations, and NGOs.
- The Joint Labour Migration Programme is not binding.
- In order to be able to realistically execute the Joint Labour Migration Programme, a Three-Year Project (JLMP Priority) was launched in 2018.
- There are committees tasked with follow up of the implementation of the program. Programme Steering Committee meets every three months, the Programme Technical Committee meets twice a year, responsible for monitoring and implementation of JLMP Priority activities and the AUC Programme Support Unit manages the day-to-day implementation of Programme by different agencies including IOM, ILO, and AUC
- Adopted by AU Summit in June 2015.
- Main Relevant Commitments: Speed up implementation of continent-wide visa free regimes. Offer all Africans the same opportunities accorded to the citizens of countries within our respective Regional Economic Communities (RECs). Expedite the operationalization of the African Passport that would, as a start, facilitate free movement of persons. Establish a harmonized mechanism to ensure that higher education in Africa is compatible and comparable and enable recognition of credentials that will facilitate transferability of knowledge, skills and expertise.
- The Declaration called on the AU Commission to organize a retreat of the Executive Council on the issue of mobility and free movement of people in Africa
- The Declaration also called for the development of a Protocol on Free Movement of Persons.
- The aim is to accelerate mobility and integration on the African continent
- The Declaration on Migration is not binding. There is also no process for signing or ratifying the document.
- The Declaration states the following: “We the Heads of State and Government of the African Union …hereby individually and collectively…commit to undertake the following actions – ”Despite this commitment, South Africa has not made significant progress with respect to the “Main Points” of this Declaration. For example, instead of helping to speed up implementation of continent-wide visa free regimes, South Africa has called for several “preconditions” before the abolition of visas can occur, thereby slowing down the process.
- The Executive Council retreat called for in the Declaration on Migration took place in January of 2016.
- The Executive Council urged member States to adopt the “process outlined towards the adoption of a Protocol…on Free Movement of People” by January 2018 (the Protocol was adopted by the Assembly on January 29, 2018).
- South Africa has not signed or ratified this Protocol.
- Officially called: Protocol to the Treaty Establishing the African Economic Community Relating to Free Movement of Persons, Right of Residence and Right of Establishment (AU Free Movement Protocol)
- South Africa has not signed or ratified the AU Free Movement Protocol.
- This Protocol and the Implementation Roadmap are described in depth in question 6 of this brief.
- Adopted January 2018
- CAP has 6 thematic areas: Addressing drivers to migration. Addressing human rights of all migrants including social inclusion. Smuggling of migrants. International cooperation and governance in migration. Irregular migration and regular pathways. Contributions of migrants and diasporas
- What does the CAP say specifically about economic migration? The CAP states that labor migration can increase irregular migration and raise risks or management challenges. It also states that when labor migration is well-governed it can bring many benefits such as the balance of labor supply and demand, help develop and transfer skills, contribute to social protection systems, foster business innovation, and enrich communities both culturally and socially.
- The CAP calls for: Supporting the improvement of national institutions that deal with labor migration to enable them to form sound national and regional labor related policy. Abolishing the holding of travel documents as a prerequisite to conclude labor contracts. Introducing random field visits by officials of sending countries to monitor observance of labor contract rules. Creating a platform for encouraging balanced inter and intra-regional dialogue in order to ensure that migration systems and recruitment corridors are fair and respectful of labor rights. Investing in data collection on labor migration to further understand the implications of migration for labor markets, sustainable development, and protection of migrant workers. Developing and ensuring that migrants have access to timely and affordable complaints mechanisms. Close cooperation between origin and host countries to ensure matching of skills and labor market needs.
- The CAP also notes concern that the rhetoric surrounding irregular migration has focused mainly on security and border control considerations instead of on demonstrating how migration can relate to development strategies.
- The adoption of the CAP is guided by the fact that human mobility and free movement of all persons within the continent constitute one of the pillars of an integrated Africa.
- The CAP is non-binding. However, it is important because cooperative frameworks like this one can lead to further bilateral and multilateral agreements.
Agenda 2063 is described in depth in Question 7 of this brief.
Even before the OAU was established, African leaders realised that economic cooperation between African nations was key to the development of the continent. In June of 1991, 34 OAU leaders met in Nigeria to sign the Abuja Treaty for the establishment of an African Economic Community (AEC) by 2025.
The Abuja Treaty officially came into force in 1994. The treaty established the AEC to achieve economic integration on the African continent. The AEC is essentially an economic and monetary union that would cover the entirety of Africa.
South Africa signed the Abuja Treaty on October 10, 1997 and it was ratified by the South African Parliament on November 3, 2000.
Main Points of the Abuja Treaty
The Abuja Treaty strives to create an African Economic Community through the progressive integration of the activities of existing and future regional economic communities (RECs). In other words, the idea is to merge RECs together over a maximum period of 34 years to form the AEC.
There are currently eight RECs, which include:
- The Arab Maghreb Union
- The Economic Community of West African States
- The East African Community
- The Intergovernmental Authority on Development
- The Southern African Development Community (South Africa belongs to this REC)
- The Common Market for Eastern and Southern Africa
- The Economic Community of Central African States
- The Community of Sahel-Saharan States
According to the Abuja Treaty, the AEC is to be created through six stages of evolution.
- Strengthening existing RECs and creating new ones where they do not exist (no more than 5 years)
- Strengthening sectoral integration, especially in areas such as trade, finance, transport, communications, and industry
- Coordination and harmonization of activities of RECs
- Up to 8 years
- Establishment of a Free Trade Area and Customs Union at level of each REC (up to 10 years)
- Coordination and harmonization of tariff and non-tariff systems among RECs with goal of establishing Customs Union at continental level (up to 2 years).
Establishment of African Common Market through:
- Adoption of common policies
- Application of the principle of free movement of persons
- Application of provisions regarding rights of residence and establishment
- Up to 4 years
- Strengthening of African Common Market by including the free movement of people and goods
- Integration of economic, political, social, cultural sectors; establishment of single domestic market and Pan-African Economic and Monetary Union
- Establishment of African Central Bank and single African currency
- Creating and electing Pan-African Parliament
- Up to 5 years
Another main point of the Abuja Treaty is that its preamble recognises migrants as an “integral part of the national human resources,” regardless of their country of residence.
Objectives of the AEC
- To promote economic, social and cultural development and the integration of African economies in order to increase economic self-reliance and promote an endogenous and self-sustained development
- To establish, on a continental scale, a framework for the development, mobilization and utilization of the human and material resources of Africa
- To promote cooperation in all fields in order to raise the standard of living of Africans
- To coordinate and harmonize policies among RECs to foster the gradual establishment of the Community
Unfortunately, the progress made thus far with regards to the Abuja Treaty and the AEC is not where it should be. The African continent is moving too slowly towards economic integration. According to Dr. Olu Fasan, a Visiting Fellow and member of the International Trade Policy Unit at the London School of Economics, there is little integration within many RECs and “hardly any harmonisation between them.”
The African Union Free Movement Protocol* makes some important points.
Main Agreements and Points of Protocol Related to Economic Migration
The Free Movement Protocol has been signed by 32 AU member States and ratified by 4 (Mali, Niger, Rwanda, São Tomé & Principe). Eleven more ratifications are needed for the protocol to enter into force. South Africa has not signed or ratified the Free Movement Protocol.
Also, the Protocol forms part of an effort to form a single continental market for people, goods, and services in Africa, similar to what exists in the EU.
To facilitate the implementation of the Treaty Establishing the African Economic Community (AEC) by providing for the progressive implementation of free movement of persons, right of residence and right of establishment in Africa.
Article 5: Progressive Realization
Three phases of implementation:
- Phase 1: States Parties shall implement right of entry and remove visa requirements
- Phase 2: States Parties shall implement right of residence
- Phase 3: States Parties shall implement right of establishment
Article 14: Free Movement of Workers
- Member State nationals have the right to seek/accept employment without discrimination in any member State in accordance with the laws/policies of the host State.
- Member State nationals who accept employment in another member State can be accompanied by spouse and dependents.
Article 15: Permits or Passes
- Host member States shall issue residence and work permits to nationals of other member States who are seeking to reside or work in the host State.
- Permits shall be issued in accordance with the immigration procedures of the host member State
- Nationals of any member State have the right to appeal against a decision denying them a permit
Article 18: Mutual Recognition of Qualifications
- States Parties shall mutually recognize academic, professional, and technical qualifications of their nationals.
- States Parties shall establish a continental qualifications framework to encourage and promote free movement of persons.
Article 19: Portability of Social Security Benefits
- States Parties shall facilitate the portability of social security benefits to nationals of other member States who are residing or established in their member State through bilateral, regional or continental arrangements.
Article 23: Remittances
- States Parties shall facilitate the transfer of earnings and savings of nationals of other member States (through bilateral, regional, continental or international agreements)
Article 25: Cooperation Between Member States
- States Parties shall coordinate their border management systems
- States Parties shall record, document, and present upon request all aggregated migration data at the ports/points of entry or exit from their territory.
- States Parties shall, through bilateral or regional arrangements, cooperate by exchanging information related to free movement of persons and the implementation of this Protocol.
Article 26: Coordination and Harmonization
- Guided by the Implementation Roadmap, States Parties shall harmonize and coordinate laws and policies (related to free movement of persons) of the regional economic communities, with the laws and policies of the African Union.
- States Parties shall harmonize their national policies with this Protocol and use, as appropriate, the Implementation Roadmap.
The Roadmap is essentially a detailed chart that outlines the (1) main activities, (2) role and responsibilities, and (3) indicative dates for implementing specific provisions of the Free Movement Protocol.
The Roadmap is divided into three phases:
- Phase One: Right of Entry and Abolition of Visa Requirements
- Phase Two: Right of Residence
- Phase Three: Right of Establishment
South Africa’s Official Reaction to the AU Free Movement Protocol
South Africa has yet to sign or ratify the AU Free Movement Protocol. According to Liesl Louw-Vaudran, a senior researcher with the Institute for Security Studies, South Africa is “far from ready” to implement the Protocol, especially because it is currently dealing with issues of xenophobia and migration.
Quotes from South African Department of Home Affairs
- “South Africa supports the majority of the provisions of the AU Draft Protocol as they balance the objective of facilitating the free movement of persons in Africa and securing policy space for AU Member States to determine how best to implement the Protocol taking into account national circumstances. However, there are a number of provisions in the AU Draft Protocol which present a challenge for…South Africa.”
- South Africa proposes the “inclusion of…preconditions in phase one of the Implementation Plan dealing with the ‘right of entry and the abolition of visa requirements’ so that Member States facilitate a smooth process for the abolition of visas.”
- “The delegation of South Africa in AU Meetings has consistently argued…that it is imperative to enhance civil registration, establish integrated border management systems, enter into bilateral return agreements and strengthen law enforcement at national level before the right of entry and abolition of visas could be implemented.”
- “South Africa’s further concerns relate to some of the provisions of the AU Draft Protocol as they are contrary to the established international and AU practice on treaty making, as well as the Constitution of the Republic of South Africa.”
- “The Protocol provides for its entry into force upon adoption by the AU’s Assembly contrary to Section 231(2) of the Constitution of the Republic of South Africa which provides that ‘An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces…’”
- “Some provisions of this Draft Protocol oblige Member States to harmonise their national laws, policies and systems with the Draft Protocol… will require approval of both the National Assembly and National Council of Provinces to be carried out.”
*The full name of the Free Movement Protocol is the Treaty Establishing the African Economic Community Relating to Free Movement of Persons, Right of Residence and Right of Establishment.
The African Union Agenda 2063 is a strategic framework for the transformation of Africa into a global powerhouse by 2063. It is the manifestation of key Pan-Africanism ideals in that it envisions a United Africa–a democratic union. The Agenda prioritizes inclusive social and economic development, continental and regional integration, and democratic governance, peace and security. In sum, Agenda 2063 names Africa’s Aspirations for the Future, identifies important Flagship Programmes, and lists key activities that need to take place in a series of 10 Year Implementation Plans.
Economic Migration in the African Union Agenda 2063
The AU Agenda 2063 outlines free movement of people as a central goal for Africa. The free movement of people is seen as beneficial because it is expected to boost intra-Africa trade; facilitate labor mobility, intra-African knowledge and skills transfer; promote pan-African identity; improve trans-border infrastructure and shared development; and promote the rule of law and human rights.
Agenda 2063 called for abolishing “all visa requirements” for all African citizens in all African nations by 2018, but this has yet to occur. The Agenda also calls for Member States to issue a common African Passport by 2025. It appears that, when Agenda 2063 refers to a visa-free zone, it ultimately envisions the ability of African nationals to reside and work in other African countries without visas.
In pursuance of these goals, one of the Flagship Projects of Agenda 2063 is “The African Passport and Free Movement of People” initiative. This project seeks to advance the idea of a visa-free Africa by removing “restrictions on African’s ability to travel, work and live within their own continent.” The project strives to accomplish this by, as its title suggests, pushing forth the aforementioned African Passport.
Other Commitments Regarding Economic Migration in Agenda 2063:
- Develop/implement policies that can enhance free movement of workers
- Implement AU frameworks on Labour Migration Governance
- Initiate policies that would lead to a “better and more responsible” labor migration flow
- Domesticate all ILO Conventions on Labour Migration as appropriate for each Member State
- Review all labour bilateral agreements
The SADC is a Regional Economic Community. It was originally known as the Southern African Development Coordination Conference (SADCC), which was formed on April 1, 1980. The SADC was a loose alliance of nine States in Southern Africa and its main goal was to organize development projects that would reduce economic dependence on apartheid South Africa. Then on August 17, 1992, the SADCC became the Southern African Development Community (SADC). South Africa joined the SADC in 1994—the year that apartheid officially ended.
Main Aims and Goals of SADC
- Achieve development, economic growth, enhance the standard and quality of life of Southern Africans and support the socially disadvantaged through Regional Integration
- Evolve common political values, systems and institutions
- Promote and defend peace and security
- Promote self-sustaining development on the basis of collective self-reliance, and the inter-dependence of Member States
- Promote and maximize productive employment and utilization of resources of the region
- Strengthen and consolidate the long-standing historical, social and cultural affinities and links among the people of the Region
Another main objective of the SADC Treaty is to promote policies that aim to eliminate obstacles to the free movement of persons in the region.
A draft Protocol on the Free Movement of Persons within SADC was introduced in 1996, but then replaced by a more restrictive Protocol on the Facilitation of Movement of Persons in 1997.
- The Protocol was made more restrictive because of income disparities between member States, which led to imbalances in migration flows. The 1997 Protocol was then revised in 2005. The new Protocol allows visa-free entry for citizens from other member States for no more than 90 days and as long as entry is for a “lawful purpose.” However, the Protocol is not operational because not all member States have ratified it.
- Only Botswana, Mozambique, South Africa and eSwatini have signed and ratified the Protocol.
- SADC is the only African regional organization that has failed to fully support, ratify and implement a policy framework for free movement of persons.
- There exists a large tension between “free movement” and “security threat” discourse on migration in the region
- Even though the Protocol isn’t operational, it makes provision for member States to make bilateral agreements for visa exemptions. Most States have exempted one another from visa requirements.
- In the SADC, many member States regulate economic migration through the use of bilateral labor agreements. South Africa, for example, has bilateral labor agreements with a number of member States.
- The SADC also adopted the Action Plan on Labour Migration for 2013-2015 (renewed until 2019) and the 2014 SADC Labour Migration Policy Framework and the Protocol on Employment and Labour, which promotes the protection of migrant workers. However, these documents are not binding.
- Recently, the SADC Labour Migration Action Plan (2020-2025) was approved. It is based on the idea that well managed labor migration is mutually beneficial and can facilitate greater development and economic stability for all SADC countries.
According to experts at the Southern African Migration Project, “If economic parity is a prerequisite for free movement, it is clear that free movement is unlikely to be a feature of Southern Africa for some time to come.”
Power in Terms of Binding Nature/Political Power
The Summit of Heads of State or Government of the SADC is one of the bodies in charge of ensuring implementation of SADC protocols. However, even when the Summit agrees on an issue, there is “little space” to allow for implementation. For example, when the Summit agrees on the need for a well-resourced and funded Secretariat, it cannot simply make it happen. This is so because member States are supposed to fund the operational budget, but they do not provide enough.
Also, member States and their leaders are considered the pillars for implementation of the SADC agenda. However, there are several discrepancies in States’ commitment to implementation. For example, not all States agree to ratify SADC Protocols. The problem with this is that protocols must be ratified by a two-thirds majority before they can enter into force.
Even protocols that are ratified by a two-thirds majority and enter into force face implementation issues at the national level. SADC agreements don’t have a binding obligation to translate or integrate regional decisions into national law. As such, when member States don’t comply with their regional obligations, they face no consequences.
As the Institute for Security Studies asserts, “On paper, the prospects for freedom of movement are there. In practice, more needs to be done.”
Overall, South Africa’s viewpoint regarding economic migration through the SADC has been restrictive. South Africa is reluctant to advance the idea of regionalizing the governance of migration by creating a regional migration policy framework for the SADC bloc. This reluctance is largely driven by anti-immigrant rhetoric and South Africa’s focus on security when dealing with migration. Domestically, South Africa has adopted a “self-risks based” approach that strives to keep “risks” outside of the country’s borders. For example, it implemented a “detain and deport” domestic policy to remove undocumented migrants considered “undesirable.” However, this policy is largely inefficient, costly, and fails to deter undocumented migration.
Regionally, South Africa has historically gotten in the way of improving the management of economic migration within the SADC. For instance, in 1995, the first Draft Protocol on the Free Movement of Persons was proposed. This protocol sought to allow citizens of SADC countries to enter other SADC nations freely, establish themselves, and work. However, South Africa (along with Namibia and Botswana) strongly opposed this proposal. Ultimately, a watered-down version of the protocol was introduced and adopted by the SADC in 2005. This 2005 protocol, known as the Draft Protocol on the Facilitation of Movement of Persons, considers migration management a national competency and under it, states are responsible for individually and collectively handling migration. Unfortunately, the protocol has not yet entered into force because only four SADC member states have ratified it, including South Africa. According to experts interviewed by the Institute for Security Studies, though South Africa is one of the few countries that has ratified the 2005 protocol, it did so for “diplomatic reasons” and “has no intention to follow through.” Indeed, South Africa has yet to take significant steps towards the regionalization of migration policies as called for in the protocol.
It is important to understand that there is still no regional migration protocol for the SADC and labor movements continue to be governed by bilateral agreements and national labor laws.
Other Relevant Facts About South Africa’s Participation in SADC Policies/Treaties:
South Africa’s Bilateral Labor Migration Agreements
South Africa has bilateral labor migration agreements with several countries, such as the following:
South Africa established a memorandum of understanding (MOU) on labor migration with Botswana.
Free movement of people from Lesotho to South Africa for up to 30 days
Labor migration from Lesotho is permitted but work permit is required
A Lesotho Special Permit (LSP) existed for certain Lesotho migrants in South Africa until December of 2019. Recently, the LSP was replaced by the Lesotho Exemption Permit (LEP), which is only available to valid LSP permit-holders. The LEP is a new four-year special dispensation for certain Lesotho nationals.
MOU on labor migration with South Africa
No visa needed for 30 days (for purposes of tourism or business)
Angolan Special Dispensation Permits were issued to around 2,000 Angolan former refugees. The current permit expires in December 2021.
Bilateral agreements between South Africa and Zimbabwe have eased movement for a number of Zimbabwean labor migrants through special dispensation permits granted to a specific number of people (245,000). The current Zimbabwean Special Dispensation Permit is referred to as the ZSP.
Holders of ordinary passports do not need a visa for 30 days
MOU on labor migration with South Africa
These agreements essentially govern migration in southern Africa. By implementing these bilateral arrangements, South Africa has at least complied with one of the main aims of the 2005 Draft Protocol on the Facilitation of Movement of Persons.
The problem with these bilateral arrangements is that they tend to place the most emphasis on controlling and discouraging movement, rather than managing it effectively.
The Institute for Security Studies argues that the SADC should use these bilateral agreements as a stepping stone to develop the implementation of regional migration governance.
Special Dispensation Permit
Special dispensation permits have been issued by some States in the SADC region. The governments of South Africa, Zimbabwe, and Mozambique have issued “special permits” to certain categories of non-citizens to allow them to secure work in these nations.
According to the Migration Data Portal, more information needs to be gathered in order to determine the progress of this initiative.
SADC Labor Migration Policy Framework (2014)
The goal is to promote sound management of intra-regional labor migration for the benefit of both sending and receiving countries, as well as migrant workers. The regional labor migration policy framework seeks to promote:
- Development and implementation of national labor migration policies
- Development and conclusion of multilateral and bilateral labor agreements
- Protection of migrant workers’ rights
- Harmonization of national labor migration policies
The SADC Labor Migration Policy Framework was approved by SADC Ministers and Social Partners in July of 2014. It was signed at the SADC Heads of State and Government Summit (South Africa signed) in July/August of 2014.
The Framework is not a binding legal instrument and there is no provision for ratification. It is “likely to remain unimplemented.”
SADC Labor Migration Action Plan
First version approved by SADC Ministers and Social Partners for 2013-2015, second version approved for 2016-2019, third version approved for 2020-2025.
The 2016-2019 version of the Action Plan laid out 5 outcomes aimed at promoting labor migration. The 2020-2025 version is based on the idea that well managed labor migration is mutually beneficial and can facilitate greater development and economic stability for all SADC countries.
It appears that once the SADC Ministers and Social Partners approved the Labor Migration Action Plan, it applies to all SADC member States (including South Africa). However, the Action Plan is not binding.
According to the 2016-2019 Labor Migration Action Plan, South Africa held a national consultative stakeholders workshop on labor migration policy in 2015. South Africa also signed the Declaration on Tuberculosis in the Mining Sector (affects mineworkers). South Africa is a major reason for why the Declaration on Tuberculosis was adopted.
SADC Protocol on Employment and Labor (2014)
South Africa signed the SADC Decent Work Programme in May of 2013. South Africa also has its own Decent Work Country Programme (2018-2023) which aligns with some of the priorities of the SADC Decent Work Programme.
Migration Dialogue in Southern Africa (MIDSA)
MIDSA was established in 2000. MIDSA gives SADC State governments the opportunity to engage in non-binding and transparent discussions on migration.
Some of the specific areas of discussion include: border management, irregular migration, labor migration, migrant health/rights, migration and development, return and readmission, and migration governance.
South Africa was a founding member and is currently a member state of MIDSA. It was also previously a Chairing Country of MIDSA.
Common Market for Eastern and Southern Africa (COMESA), the East African Community (EAC) and SADC Tripartite Free Trade Area (TFTA)
A main goal of this tripartite agreement is to speed up the facilitation of free movement of goods and persons between the three regional economic commissions (RECs).
South Africa both signed and ratified the TFTA.
South Africa National Action Plan (NAP) to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance
Approved March 2019. This is not an SADC Action Plan, but it relates to economic migration from African countries.
The NAP notes the impact and importance of migration policy on xenophobia and related intolerance (“To complement enforcement measures , government should increase its efforts towards prevention of racism, racial discrimination, xenophobia and related intolerance in areas such as immigration policy…”).
The Economic Community of West African States (ECOWAS) prides itself as the first region on the African continent with a free movement initiative. Member States adopted the Protocol on Free Movement of Persons, Residence and Establishment in May of 1979. The Protocol states the right of ECOWAS citizens to enter, reside, and carry out economic activities in any ECOWAS member state.
It also outlines a three-step roadmap to achieve freedom of movement of persons in ECOWAS within 15 years. The first phase of the Protocol (five years) concerns the right of visa-free entry and has been “fully implemented.” During this first phase, the requirements for visas and entry permits within the ECOWAS region were removed. ECOWAS citizens with valid travel documents and an international health certificate can enter member States without a visa for no more than 90 days.
In order to facilitate this, ECOWAS introduced and established an ECOWAS passport in December of 2000 (previously known as the ECOWAS travel certificate). The ECOWAS passport exempts holders from intra-regional visa requirements and functions as an international travel document. The ECOWAS passport can only be used for travel within the ECOWAS region.
Currently, ECOWAS member States are working on implementing the Eco-Visa for non-Community citizens. The Eco-Visa is an electronic travel document seeking to boost tourism and business in the region.
The second phase of the ECOWAS Free Movement Protocol, the Right of Residence, has also been implemented. ECOWAS citizens have the right of residence in ECOWAS member States for the purpose of “seeking and carrying out income-earning employment.”
According to the Protocol, in order to secure residence without a visa, ECOWAS nationals must acquire an ECOWAS Residence Card or Residence Permit. Every ECOWAS nation has its own way of offering an “ECOWAS Residence Card/Permit.”
The nations also have different rules for the time limit of the validity of these permits. For example, in Nigeria, the ECOWAS Residence Card (meaning only ECOWAS citizens are eligible to apply) is valid for two years. After two years, the individual must renew the Card to be able to stay in the country.
The third phase of the ECOWAS Free Movement Protocol, the Right of Establishment, is still under implementation in the majority of member States. In this third phase, ECOWAS citizens are granted the right to settle or establish in another member State and gain access to “carry out activities as well as to set up and manage enterprises, in particular companies, under the same conditions as defined by the legislation of the host Member State for its own nationals.”
Additionally, ECOWAS has also introduced measures to ease the movement of people transported in private and commercial vehicles by coordinating policies that allow vehicles to enter a member State for up to ninety days (private vehicles) and fifteen days (commercial vehicles). With respect to this project, the majority of ECOWAS member states have instituted the ECOWAS brown card, which serves as an insurance of motor vehicles and covers the civil responsibility of the owner within the ECOWAS region.
ECOWAS: Challenges and Issues
Despite these successes, there also exist a series of challenges and issues. One significant issue is that the ECOWAS Protocol on Free Movement of Persons, Residence and Establishment allows member States the right to refuse admission into their country if an individual is considered “inadmissible” under domestic laws. This provision interferes with the purpose of the Protocol because countries have and continue to implement restrictive domestic inadmissibility laws.
Moreover, according to the Protocol, ECOWAS nationals have the right to reside and work in ECOWAS countries, without discrimination, as long as they apply for work permits from the relevant State Agencies. However, in reality, member States impose specific restrictions which mean that ECOWAS citizens are unable to work in any sector of their choice. Another issue is that migrants hoping to settle in a member State often do not apply for work or residence permits, meaning that they work without the required documents.
The White Paper
In 2017, the White Paper on International Migration was released by the South African government.
The White Paper connects migration, development and security: “South Africans should embrace international migration for development while guarding sovereignty, peace and security”. The main relevant points are as follows:
- The White Paper for International Migration acknowledges that migration can help South Africa reach its National Development Plan goals.
- The White Paper takes a pan-African stance, which seeks to move away from the colonial legacies of previous migration policies, and it references the AU Agenda 2063.
- It sets out a fully automated visa application system (for all migrants), whereby applications are made in countries of origin, and are subject to advanced security checks using improved data systems and biometrics.
- The White Paper aims for visa-free travel for African citizens (i.e., the ability to enter South Africa for 90 days upon arrival at South Africa’s borders). This would, however, only work if there are return agreements and security measures in place.
- ‘Trusted travelers’ from Africa will be able to access long-term, multiple-entry visas.
- It aims to implement more ‘Special Dispensation’ Permits for certain SADC nationals.
- It aims to roll out new visa options for SADC nationals: a special work visa, a trader visa and Small Medium Enterprise Visa, etc. These visas would be dependent on bilateral agreements with South Africa and sending countries, and would be subject to requirements, such as business registration, SARS registration and so on.
- These visas would not link into permanent residency. In fact, the White Paper delinks permanent residency from several immigration options.
Recent developments + implementation of the White Paper on International Migration
The White Paper on International Migration was ‘approved by Cabinet for implementation’ in December 2019.
The minister of Home Affairs’ narrative is between development and security. The narrative around The White Paper’s implementation shifts from development to security focuses. For example, the Minister of Home Affairs said on 04 March 2020: “The Republic of South Africa’s International Migration approach is focused towards prioritising development in Africa and its development orientated. Actually, throughout the whole world, migration without development won’t be successful. South Africa’s approach is consistent with the White Paper on International Migration which recognises the nexus between migration and development and migration and security.’
The plan is to prioritise ‘key elements’ of White Paper – and implement BMA, immigration review, critical skills.
On 20 July 2020: Minster of Home Affairs said that the ‘draft Immigration Bill is still being developed in consultations with relevant stakeholders. It will however be submitted to Parliament for consideration, once the review of the White Paper on International Migration has been undertaken and finalized.’
The South African government is first reviewing the White Paper on International Migration, and then drafting amendments to legislation. The plan, according to the Department of Home Affairs, is to now focus on ‘key elements’ of the White Paper which seem to be: the establishment of an effective Border Management Authority (BMA), modernization, a review of Immigration Policy and subsequent legislation, an upgrade priority land ports of entry, the One-Stop Border Post Policy, Improved client experience through leadership, early birth registration, critical skill visas and a “War on Queues”.
The Portfolio Committee on Home Affairs reported back in parliament about their Medium Term Strategic Framework (MTSF) Commitments from 2019 to 2024’.
SADC visas are not explicitly mentioned here – but ensuring speedy administration of critical work permits is, as well as a review of the policy on international migration and the amendment of relevant legislation in support thereof (Report of the Portfolio Committee for Home Affairs Strategic and Annual plan).
However, there has been some movement regarding migration and development in the SADC context. DHA stated (in May 2020) that by 2025, they want to ‘contribute positively to a capable and developmental state’, and they state (in May 2020) that DHA ‘could play a key role in enabling regional development by working with SADC countries through the Department of International Relations and Cooperation (DIRCO) to establish efficient, secure and managed migration’.
Border Management Act
The BMA is seen as a critical aspect of the implementation of the White Paper on International Migration.
On 16 July 2020, the Border Management Authority Act was signed into law.
In short, the BMA will create an overarching structure to manage the borders. At the moment, 8 different government departments work at the border.
The BMA is seen by supporters as a method to streamline border management, increase security and lessen ‘illegal’ entries. “The integrated Authority will contribute to the socio-economic development of the Republic and ensure effective and efficient border law enforcement functions at ports of entry and borders”, according to the presidency.
Critics have raised concern around the over securitization of the borders, denial of entry to certain persons (especially those seeking asylum), and the over-dominance of borders by one single force, rather than ensuring due checks and balances.
Amendments to Immigration Act
Several ministers have made mention of adjusting regulations or even immigration legislation with regards to economic migration. In July 2020, the Minister of Employment and Labour laid out intentions to develop new legislation or new regulations to limit the industries which employ a high number of foreign workers.
In September 2019, small business development minister spoke of plans to develop regulations specifying the sectors where foreign nationals are not allowed to participate.
These two developments seem to be couched in concerns around xenophobic violence and trucking issues rather than long-term considerations.
The critical skills list was due to be updated in March 2020. This has not occurred, yet, but a draft Critical Skills list evoked criticism from those in the immigration and business sectors as many professions and skills were taken off the list.
However, there has been optimism at the current Minister of Home Affairs being open to ‘an immigration policy beneficial to the country and his duties as the new home affairs minister’. On 23 July 2020, Deputy Finance Minister David Masondo announced in the Budget Vote speech that ‘Reducing the skills deficit by attracting skilled immigrants’ was a vital aspect of South Africa’s economic strategy.
Professor Jenny J Lee of the Center for the Study of Higher Education at the University of Arizona in the U.S. and visiting scholar at the University of Cape Town in South Africa, said: “The challenge in obtaining visas in South Africa…is not simply a matter of changing visa policies, but more importantly a matter of forging a common African identity and agenda. With ongoing xenophobic violence against African immigrants as threats to local labour, the problems might escalate.”
According to the Visa Openness Index, South Africa is ranked 35 (out of 54) in terms of visa openness on the African continent. South Africa has a score of 0.283 (the highest possible score—meaning most open—is 1). In order to be able to work in South Africa, foreigners must obtain work visas, which have a number of requirements.
These visas are secured through the Ministry of Home Affairs, but, much like in other SADC countries, it is not always easy to acquire authorization to work in South Africa. In fact, accessibility to work visas in South Africa seems to be getting even more difficult.
The nation recently adopted immigration legislation that has been “sharply criticized” by business leaders, non-profits, and migration experts within the country and the region. The new strict regulations affect economic migrants. Experts argue that such rules could threaten South Africa’s economic growth by turning away potential investors and skilled foreign workers.
Despite these concerns, the South African government does not seem open to relaxing economic migration regulations. In fact, on July 8th, the Minister of Employment and Labour Thulas Nxesi announced that the government is considering new regulations to limit even further the employment of foreign nationals in South Africa.
This new legislation is expected to affect foreign workers in the road and freight sector, the hospitality sector, restaurants, security, and farming and agriculture. Thus, overall, it seems that South Africa is trending negatively in the region in terms of accessibility to work visas.