Long-awaited ‘Border Bill’ finds resistance in Parliament

On the face of it the Border Management Authority Bill aims to address long-standing concerns over South Africa’s porous more than 8,000kms of land and sea borders, 72 ports of entry and countless unpatrolled airstrips and cross-country crossings. The aim is to establish a single integrated authority with armed border guards “to contribute to the facilitation of legitimate trade and secure travel” against, among other things, cross-border crime syndicates, people trafficking and the health risks of “harmful and infectious diseases, pests and substances”.

Exactly how this should be done is unclear as the Bill creates a framework without too much detail. An explanatory memorandum states that customs, immigration and law enforcement functions related to agriculture and environmental affairs would be transferred to this authority by ministerial proclamation. Co-operation with other organs of state and border communities remains.

The Bill also raises serious questions about the governing ANC’s increasing securocratic tendencies and changing policy stances. Given the South African Revenue Service (SARS) wars over the tax collector’s capacity to investigate compliance through every means, including intelligence gathering – both the police and state security ministers publicly claimed surveillance equipment was unlawfully purchased in this pursuit – it appears contradictory that the state is now envisioning an in-house intelligence capacity, the tracking centre, for this authority.

Similarly contradictory is the move towards establishing a new structure of armed border guards with powers of search, seizure and arrest – though the Bill is not clear on investigative capacity – as the ANC since its 2007 Polokwane national conference resolved there could only be one single police service in South Africa.

The Bill is driven by Home Affairs, which in February 2016 moved to the justice, crime prevention and security cluster in the Cabinet, joining police, state security, defence and correctional services. Previously Home Affairs chaired the governance cluster, including finance, the presidency’s monitoring and evaluation component, co-operative governance and public service and administration.

On Tuesday, the National Treasury cautioned against separating tax collection and administration: custom and excise duties collected by SARS amounted to about R300-billion in the last financial year, or roughly 30% of total revenue collection.

“Any break in the chain will introduce significant risk… It will be disruptive. It will lead to huge tax avoidance,” said National Treasury Deputy Director-General: tax and financial sector policy, Ismail Momoniat. “If the Bill is silent on SARS, it creates a lot of uncertainty.”

And constitutionally, only the Finance Minister could introduce Money Bills, including tax laws, including those regulating the collection of custom and excise duties.

The SAPS raised concerns over the constitutionality of establishing an authority with armed border guards in competition with its constitutional policing functions. An SAPS spokesman said policing functions could “not be ceded to anyone else” and the Bill was silent on whether a mere secondment of SAPS to such an authority would be in order.

Later on Mpumalanga SAPS commissioner Lieutenant-General Mondli Zuma (no relation to the president, but involved in showing MPs and journalists around Nkandla in 2015), attending as a member of the police’s national management forum, told MPs: “We are looking at the constitutional imperatives… A constitutional amendment is required to create an additional law enforcement agency.”

According to Section 205 of the Constitution, the “objective” of the police service is “to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property and to uphold and enforce the law”.

Although parliamentary home affairs committee chairman Lemias Mashile cautioned MPs their “main, main job is to receive a briefing” – discussions would only take place next month, after the closure of a public comment period – several parliamentarians raised substantive issues. Concerns ranged from the impact on tax revenue collection and the lack of funding for the authority’s need of vehicles, ships and planes to effectively manage border patrols and checks.

And MPs questioned why at this stage it appeared not everyone was on the same page. However, Mashile said that as President Jacob Zuma had announced this border management authority in 2009, and Cabinet having approved this, the administrators had to work out how to make it possible.

“It is then expected of administrators (that the Cabinet decision) sees the light of day. The administrators must assist us… so we can (heed) the national call to deal with our porous borders,” Mashile said, adding later: “There must be a balance (between) the security of the state and the assurance to collect tax.”

Despite concerns from both the SAPS and National Treasury – and the committee chair’s plea for departmental disagreements to be resolved before the next meeting on 13 September – Home Affairs Director-General Mkuseli Apleni dug in. The border management authority had to be established. He earlier touted the Bill as a solution to ensure South Africa’s security as the current co-ordinating arrangement was inadequate. There was no single command and control, he said: “We are all under one roof, but we are not sharing information.”

The Bill has been a long time in the making. A border management authority was among the announcements made by Zuma in his first State of the Nation Address after becoming president in 2009. However, Cabinet only approved it in principle in 2013, and a Bill in December 2014. Since then, on the basis of an agreement between various directors-general, a number of pilot projects for the authority have been up and running, including in the fight against rhino poaching.

Home Affairs published a draft Bill for public comment a year ago on 6 August 2015. It was also processed in the National Economic Development and Labour Council (Nedlac), where disagreements remained, including whether this authority was needed in the first place. The Bill was finally tabled in Parliament earlier this year. The 11-week local government electioneering “constituency period” intervened.

The Government has indicated it wanted the border management authority to be operational in April 2017. That deadline leaves MPs about five months in the parliamentary calendar to process a piece of legislation, seemingly steeped in political and other machinations, and with an impact beyond border management technicalities on, for example, tourism and trade and industry.

The Bill may well be rushed through. But this year alone, three pieces of legislation were returned to Parliament: two by the presidency and one by the Constitutional Court, all due to flaws in procedure and inadequate public participation.

Lawmakers, of course, have other options: they could redraft the Bill themselves, or simply return it to its original drafters to come up with a better version. DM

Photo by Pim Stouten via Flickr.