South Africa’s emerging Department of Homeland Security

“A border is an idea decided by the lucky” – Al-Masih, from the Netflix series ‘Messiah’

The Department of Home Affairs’ refugee regulations, released on 27 December 2019, are a shocker. According to the regulations, South Africa will wash its hands of a refugee if s/he “…participates in any political campaign or activity related to his or her country of origin or nationality while in the Republic without the permission of the Minister”.

The regulations go on to say, “… no refugee or asylum seeker may participate in any political activity or campaign in furtherance of any political party or political interests in the Republic [of South Africa]”.

So, with the stroke of a pen, the home affairs minister has removed basic political rights from one of the most vulnerable groups in the country. The regulations deny the automatic right to political activities both in relation to their home country and their host country, and in the case of the former, make a political appointee an arbiter of what they can and cannot say about their own country. Correctly, Steven Friedman has criticised this for pandering to xenophobes and dictators.

However, another piece of news about home affairs crept through practically unnoticed over the silly season. President Cyril Ramaphosa announced the establishment of the National Security Council. Tasked with streamlining all security-related work in the country, the council includes the home affairs minister.

This inclusion follows a 2016 decision where Cabinet approved the reclassification of the home affairs department from being under the governance and administration cluster to being under the justice, crime prevention and security cluster.

The government is also proceeding with the establishment of the Border Management Authority, falling under home affairs. Once established, the authority will be responsible for border law enforcement and management of South Africa’s borders more generally.

Home affairs has also acquired a national security mandate following a Cabinet-approved repositioning plan. Its White Paper on Home Affairs, released for comment last year, recognises three elements to its mandate: enabling national sovereignty and national self-determination, ensuring citizens access to their rights, and protecting national security.

The department claims it is central to national security as it enables citizens and institutions to realise their rights and responsibilities and protect their identities to enable them to vote, for instance. It also allows the state to protect national security by tracking the movements of people who may threaten the country.

According to the department, its mandate necessitates a new operating model built around a National Identity System and underpinned by the new legislation. The department also intends to provide the state with early warnings, and responsive reports of risks and threats to national security within the scope of its mandate.

Homeland (in)security in the US

Minister of Defence Nosiviwe Noluthando Mapisa-Nqakula went even further in 2017 and said that matters of homeland security, although a term borrowed from the US, were central to South Africa’s new security management architecture, which includes the Border Management Authority and an enhanced cyber capability.

This comment gives important insight into government thinking about the role of home affairs and its new entity. By referring to homeland security, she clearly had the US’s Department of Homeland Security in mind as a model.

President George W Bush established the US department in the wake of the September 11, 2001, terrorist attacks. Bringing together scores of already-existing government agencies into a single, massive bureaucracy employing close to a quarter of a million people, the department’s primary objective is to prepare for, prevent and respond to threats to the US on its own soil, especially terrorism threats.

Homeland security uses a risk-based model in its work. It assesses risks by running a colour-coded terrorism threat advisory system, underpinned by extensive intelligence gathering and analysis capabilities. This system is controversial, as its criteria for determining threats and government responses are unknown. With such a lack of transparency, the department has been caught talking up threats and generating bloated target lists to justify maintaining high threat levels.

One former security chief has alleged that former president Bush pressurised him to maintain an unjustifiably high threat level to shore up the president’s support ahead of an election. Their terrorism target database has included everything from a petting zoo to a popcorn factory.

Homeland security has also been criticised for using artificial intelligence to mine data in uncontrolled ways that took no account of peoples’ privacy, creating risks of people being flagged falsely as security threats. More members of the public are being labelled security threats, leading to the flagging of a wide range of perfectly legitimate organisations. Profiling and subsequent criminalisation of suspect individuals and groups display hostility towards Muslims and activists.

But it is the conduct of homeland security’s Customs and Border Protection (CBP), and Immigrations and Customs Enforcement (ICE), at US borders that really stick in the gullet. Their objectives are to regulate and facilitate international trade, prevent cross border criminal activity and terrorism through intelligence-led operations, and enforce immigration laws.

These entities have become the sharp end of the spear in the US government’s war on immigration. They have arrested, detained and deported undocumented immigrants even if they are not guilty of serious crimes. President Donald Trump’s policy to separate families, tougher asylum procedures and other inhumane immigration practices sparked an Abolish ICE campaign.

This campaign has been taken up notably by Democrat Member of Congress Alexandria Ocasio-Cortez, who has accused homeland security of low-grade torture of immigrants and argued for the closure of ICE and the disestablishment of homeland security.

Most fundamentally, homeland security has turned into a sprawling bureaucracy whose effectiveness is in question. It has spawned a huge Homeland Security-industrial complex where eager security companies – whose business model is to sell fear – fell over themselves to provide surveillance equipment to an entity that is poorly regulated and has operated extra-judicially.

While the US has not suffered another terrorist attack on the scale of 9/11, it is no less vulnerable than it was at the time of the 9/11 attacks, in spite of the growth in the number of security institutions. This is because its securitised prosecution of the war on terror has created even more enemies than it had.

Homeland security model inappropriate for South Africa

Although, speaking from a defence perspective, Mapisa-Nqakula has signalled the government’s shift in thinking towards a homeland security model for home affairs, where it becomes central to protecting national security.

However, home affairs does not aspire to a mandate that is nearly as extensive as the US department, so the parallel should not be overstated. But, to the extent that it exists, the shift will almost certainly lead to increased surveillance on the basis of identity and citizenship.

There is one glaring problem with this shift, though. South Africa doesn’t face any major terrorist threats. Consequently, a homeland security model is inappropriate for the country; and that’s apart from the fact that the concept smacks of right-wing ethno-nationalism.

The definition of national security needs to be kept as narrow as possible and the list of government agencies that defend it should be kept as short as possible. This is because national security powers are typically the most severe powers a government can use. They can be used to justify exceptional measures that would be unlawful in ordinary circumstances, create more secrecy around government activities and sanction the harshest forms of punishment possible in terms of the law.

Rushing to define problems like immigration as security problems – and particularly national security problems – without compelling reasons to do so, is a mistake that no democracy worth its salt should make. Premature securitisation leads to governments treating symptoms rather than causes of social problems, and often in the most confrontational manner possible using the armed might of the state.

Yet, in this era of tighter border controls and growing right-wing nationalism, more governments are securitising more issues. The huge potential for abuse of security powers is why the South African Constitution is very specific about which institutions can act as security services, and these include the police, the military and any intelligence service established in terms of the Constitution.

The Constitution does have the caveat, though, that other armed services may be established in terms of legislation, which could potentially cover the Border Management Authority’s law enforcement function. But this caveat does not extend to national security institutions.

Discursive shift: framing social problems as national security problems

As recent government decisions and statements have shown, the shift of home affairs from a civil department to a national security department, has discursive, bureaucratic and political dimensions.

Historically, home affairs has been responsible for a variety of civil functions that are important for social and economic development, such as the issuing of birth and death certificates, setting up and running a national identity system and managing immigration.

The government has put major effort into framing these functions as central to national sovereignty and hence national security. Drawing on discursive strategies used by governments elsewhere, it has framed immigration as a national security threat that is so imminent, that their need to counter it as such is so self-evidently needed, that citizens may fail to question the institutional underpinnings of the state. They have even warned that South Africans may rise up in revolt against their own government “if they feel they’re in competition with everybody”.

Academics Barry Buzan, Ole Waever, and Jaap De Wilde argue that some governments participate in political posturing to securitise issues, in an attempt to implement measures not normally acceptable in a low or no-threat environment. They elevate the nature of a threat to reduce pushback from the population.

Securitisation enables greater surveillance of society. Naming something as a national security threat leads to the massive expansion of the security powers of the state, and the inevitable policing of activities far beyond what should be considered criminal behaviour. Threats to national identity become equated with threats to national security, which is then used as a means to control and restrict migration.

If the government frames foreign nationals as existential threats to national security, then xenophobia will be the almost inevitable result. As another academic, Michael Neocosmos has argued, xenophobia has taken root in society because it is promoted by the state, not because society is inherently prejudiced against “foreigners”.

In this regard, consider the deeply disappointing statement by then the newly-appointed branch of the State Security Agency (SSA), Mahlodi Muofhe, that the number one threat to South Africa was its porous borders.

It is simply not credible to argue that South Africa’s myriad crime, unemployment and violence problems are as a result of undocumented migrants, whose numbers have been exaggerated repeatedly to talk up the threats they pose and to scapegoat them in the process. Experts have pointed out that crime statistics have not demonstrated a causal link between immigration and high crime levels. Nevertheless, migration control is taking on more of the characteristics of crime control.

Bureaucratic shift: from the margins to the centre of government

Home affairs has portrayed the bureaucratic shift in its functions as modernisation and who would argue with modernisation?. The department aims to reposition itself as the “nerve centre of security”, and its new position would move it from the periphery to the centre of government. This ambition is triggering important restructuring in government, including the move into the JCPS cluster and representation on the National Security Council.

Home affairs has suffered from status problems in government, which has impacted negatively on its budget. For a government department seeking enhanced status and bigger budgets, national security is the place to be. Issuing birth and death certificates isn’t sexy – defending national security is.

It is working hard to move away from what it was under apartheid – namely a department of petty bureaucrats servicing a minority under apartheid – to a department of the Fourth Industrial Revolution. Already, the department has managed to harness technology to increase its efficiency, although mainly for South African citizens.

However, if artificial intelligence is going to be used to weed out who is worthy of services and who isn’t, then there needs to be transparency about the bases for automated decision-making. Otherwise, users of home affairs services may find it even more difficult to challenge decisions than they have.

This problem may become even more severe as home affairs’ identity management functions are taken out of the realm of normal administration and into the security realm. This shift could lead to national security being used as a pretext not to provide reasons for decisions about the non-issuing of identity documents.

In the process, its new “smart” ID card systems could well become weaponised as a means of population control and exclusion. Already, concerns have been raised about the conversion process being used to block access to IDs on inappropriate grounds and render people stateless in the process.

If not overseen properly, home affairs runs the risk of turning South Africa into a border police state, and the Border Management Authority into a CBP/ICE-in-the-making with extensive surveillance capabilities. The department has become notorious for its hostility towards “foreigners”, and now, it is about to be given the right to bear arms.

The home affairs restructuring may also lead to another problem, namely function creep with other government departments. The danger of overlapping functions has been a source of some concern for the South African Police Service, but their concerns have been papered over.

The department intends to provide the state with early warning and responsive reports of risks and threats to national security within the scope of its mandate. This is in line with its intention to pursue an intelligence-led approach to border management, where it assesses risks before they occur. But what will that entail exactly?

Such a system is likely to require significant strategic intelligence capabilities. However, only the State Security Agency is tasked with strategic national security intelligence, including on matters that fall into home affairs' mandate.

Political shift: shrinking citizenship and exclusive identities

The third shift implicit in the Home Affairs White Paper, as well as its White Paper on International Migration, is political. Overall, it has become much more difficult to obtain citizenship and immigration is being tightened. These measures appear to be based on a view that sees foreigners, not as a resource, but as a threat. This view aligns with a global shift involving what scholars have referred to as the shrinking of citizenship.

Active citizenship is characterised by social and political engagement, often in political and social movements. The Arab spring saw millions of people in the Middle East and North Africa taking to the streets and practising citizenship-from-below. In other words, they claimed the right to have rights, participate in political life and decide for themselves how society is organised.

In the wake of the Arab spring, governments fearful of people power have reasserted their authority to decide on what rights and resources people can have access to, in the process restricting citizenship access and rights. These moves were often preceded by creating a sense of danger to public order posed by uncontrolled immigration, or poor identity management. After all, countries are more likely to be tolerant of restricting rights when national security is at stake.

For Benjamin J. Muller, bureaucratised (usually biometric), identity management systems are being used to restrict citizenship access and exclude those considered “undesirable”. In this view, citizenship is not about people determining their own positions in society by performing citizenship acts such as claiming rights.

The struggle against apartheid was, in part, a struggle to establish an inclusive national identity. In his book, An Ordinary Country, Neville Alexander argued that this struggle could well, in time, create the path to regional integration and the development of supra-national identities, leading to a greater sense of regional belonging.

Alexander argued that every South African should be open to having his or her identities – including national identity – extended “… should historical evolution point in the direction of regional or continental, and even global unification”. The end result may be a very different identity to that of being a South African, but the point is that citizens should be open to this process of historical development and not feel threatened by it.

Unfortunately, the South African government is moving in the opposite direction to free movement and regional integration – notwithstanding its protestations to the contrary – and home affairs is at the helm of these efforts. This means there has been a free movement of capital across the continent, but not the free movement of labour, which is inherently unfair.

Home affairs on the wrong path

Home affairs has done a great deal to improve its service delivery to South Africans. For that, it must be commended. But, strategically and ideologically, the department is on the wrong path.

Home affairs needs to remain in the realm of normal politics, as opposed to emergency politics. It is counter-productive for home affairs to be repositioned as a security institution. We have enough problems with the existing security institutions and do not need to create another one.

It should not form part of the security cluster or the National Security Council. Its functions should remain civil in nature, not coercive. National security should be stripped out of its mandate. These decisions are not merely bureaucratic; they are deeply political.

Granted, there are home affairs functions that impact on security. But those could be dealt with through structured relationships with existing security agencies rather than a wholesale securitisation of the department’s mandate and functions. Home affairs can contribute to national security without becoming an integral part of the national security architecture. The National Identity System can be afforded all the security protections of a critical database without the department itself being a security entity.

More fundamentally, though, South Africa needs to make a conscious political choice. Every sensible person should be horrified at the racist, ethno-nationalist developments around citizenship around the world, notably in the US, Europe, Brazil, India and Israel.

We need to ask ourselves, do we really want to join the growing list of nasty little countries that have defined themselves recently according to who they can exclude, repress and marginalise? History will judge us very harshly if we do.

Doing so may also boomerang on the country’s national security in time to come, in ways that no-one is prepared for. This is because security politics has a way of creating the very problems they were meant to solve. Ask the US department of homeland security. DM

Jane Duncan is a professor and Head of Department of Journalism, Film and Television at the University of Johannesburg. She is author of ‘Stopping the Spies: Constructing and Resisting the Surveillance State in South Africa’ (Wits University Press, 2018).