On 24 February 2023, Botswana and Namibia concluded a bilateral agreement on the movement of persons.^[1] This is an important regional development. What is the context and what are the implications?

Amnesty International’s Director for East and Southern Africa has written that this agreement is a step in the right direction.

In a region where irregular migrants have repeatedly been criminalized, this accord will not only reduce barriers to migration but also increase trade, offering a much-needed economic boost to each country and their people. This is a much-needed development for informal cross-border traders, especially women. This would hopefully facilitate their work which is crucial in alleviating poverty and food security in these countries. In the implementation of this agreement, we urge both Botswana and Namibia to take into consideration the needs of women traders who cross the border between the two countries on a regular basis.^[2]

This agreement will allow the citizens of these two states to cross the two countries’ border without passports but will obviously not do away with regular migration controls. Starting immediately, citizens of these two southern African countries will only be required to produce their identity cards at crossing points.^[3] Namibia and Botswana share a 1,500-kilometer-long border with five official crossing points. President Masisi of Botswana said that following the signing of the agreement, Botswana will introduce an electronic identity card.

This bilateral agreement is linked to the implementation of the SADC Protocol on the Facilitation of Movement of Persons which was adopted in 2005 but has not yet entered into force. It needs to be ratified by at least nine SADC member states before it will enter into force.

The Protocol on the Facilitation of Movement of Persons calls for the harmonisation of laws and administrative practices so that citizens from any of the SADC Member States are able to enter another SADC Member State for a maximum period of 90 days per year without needing a visa. Other key targets set out in the Protocol include standardisation of immigration forms used by travelling citizens and the establishment of dedicated SADC desks at all ports of entry to facilitate smooth processing of travel documents for SADC citizens and residents at border posts.

According to SADC sources SADC citizens do not require visas before traveling to Mauritius, Seychelles, and Zimbabwe. Eight other SADC member states have eased visa requirements for citizens of other SADC Member States. These are Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, United Republic of Tanzania, and Zambia. However, the citizens of most SADC Member States still require visas to travel to the Democratic Republic of Congo (DRC). Citizens from Madagascar, Mauritius, Zambia, and Zimbabwe can travel to DRC without needing a visa.^[4] How that the DRC has joined the East African Community (EAC) in 2022, there will presumably be a relaxation of travel requirements form other EAC Partner States, including Tanzania, which is also a SADC Member State.

Member States that still require visas from citizens of a number of other Member States are Angola and Madagascar. Citizens required to obtain visas before travelling to Madagascar are those from Angola, Botswana, Mozambique, Namibia, and South Africa. Angola requires a visa from citizens of DRC, Lesotho, Madagascar, Malawi, and Zambia.^[5]

It is claimed that, compared to other regions in Africa, SADC Member States have established more mechanisms that allow people to move freely across borders. According to Africa Visa Openness Report 2018 published jointly by the African Development Bank (AfDB) and the African Union Commission, SADC has the largest number of countries in the top 20 of African states with open borders.^[6]

Botswana and Namibia are also both members of the Southern African Customs Union (SACU), the world’s oldest functioning customs union. The SACU region is a well-integrated commercial space and the member states have eased movement of persons quite substantially. Visas are not required for normal intra SACU travel.

Generally speaking, visa free travel is not necessarily a right and does not include a right to work. Where visa-free access is permitted, such access is not necessarily a right, and admission is at the discretion of border enforcement officers. Visitors engaging in activities other than tourism, including unpaid work, may require a visa or work permit.

How does the conclusion of the Botswana-Namibia bilateral agreement relate to the implementation of the African Continental Free Trade Area (AfCFTA), if at all? The AfCFTA Agreement (which includes several Protocols of its own) aims at liberalizing trade in goods and services on a continent-wide scale, in terms of rules and procedures provided for in respectively the AfCFTA Protocols on Trade in Goods and Trade in Services. It does not provide for the liberalization of migration requirements but does require the AfCFTA State Parties to give effect to Mode 4 of trade in services, as dealt with in the AfCFTA Protocol on Trade in Services. This involves the supply of a service by a service supplier of one State Party, through temporary presence of natural persons of a State Party in the territory of any other State Party. The details pertaining to this aspect of trade in services under the AfCFTA Protocol on Trade in Services will be found in the specific commitments that State Parties make.

At the time of the adoption and signing of the AfCFTA Agreement on 21 March 2018 in Kigali at the 10th Extraordinary Summit of the AU Assembly of Heads of State and Government, the Kigali Declaration,^[7] the AfCFTA Agreement, and the African Union Free Movement Protocol were tabled. Signing and ratification of the latter two instruments then started. The AfCFTA Agreement entered into force on 30 May 2019, 30 days after the 22nd instrument of ratification was deposited.^[8]

Article 5 of the Protocol to the Treaty Establishing the African Economic Community Relating to the Free Movement of Persons, Right of Residence and Right of Establishment (the Free Movement Protocol) provides that the free movement of persons, right of residence and right of establishment shall be achieved progressively through the following three phases: During phase one the States Parties shall implement the right of entry and abolition of visa requirements; during phase two they shall implement the right of residence; and during phase three the right of establishment.^[9] Reservations (which are not allowed in respect of the AfCFTA Agreement) are allowed under Article 34 of the Free Movement Protocol. So far, only four countries – Rwanda, Niger, Mali and Sao Tome and Principe – have ratified the Free Movement Protocol. It requires 15 ratifications to enter into force.^[10]

^[1] https://www.amnesty.org/en/latest/news/2023/02/botswana-namibia-accord-on-free-movement-between-countries/

^[2] Ibid.

^[3] Botswana, Namibia Agree to Abolish Passports for Citizens Crossing Border (voanews.com)

^[4] Towards the smooth movement of people across SADC | Knowledge for Development (sardc.net)

^[5] Ibid.

^[6] Ibid.

^[7] The Kigali Declaration on Neglected Tropical Diseases is a global health project that aims to mobilise political and financial resources for the control and eradication of the so-called neglected tropical diseases.

^[8] As stipulated in Art 23, AfCFTA Agreement.

^[9] Art 5 of the Free Movement Protocol.

^[10] Free movement protocol (thebftonline.com)