SA’s proposed integrated Border Management Agency
JB Cronjé, tralac Researcher, comments on what the BMA Bill, currently being considered by parliament, may mean for integrated border management in South Africa
South Africa’s role as economic gateway to the region requires well-functioning border agencies to facilitate the cross-border movement of goods and people. Its transport infrastructure ranging from roads and railways to airports and harbours connects it to the region and its neighbouring countries to international markets. Its role of regional transport hub is supported by a numerous points of entry including 53 land, 6 rail, 10 air and 9 maritime border posts. However, its extensive land borderline of 4 471 kilometres and sea borderline of 3 924 kilometres poses significant border management risks and challenges including the trafficking of drugs, weapons, contraband, terrorist funding, minerals, wildlife and people. These challenges are worsened by limited surveillance capabilities over the country’s airspace and the many small airstrips close to the borderline; informal border crossings; and, inadequate border fences and patrol roads. Therefore, a balance must be struck between open borders that facilitate the legitimate movement of goods and people in accordance with South Africa’s international commitments such as those under the World Trade Organization, Southern African Customs Union and Southern African Development Community and controlled borders to fend off security threats and to mitigate risks.
Thousands of state officials from various state organs are working at the country’s ports of entry under different conditions of employment and remuneration; competing mandates and priorities; dissimilar tools of trade; and, with limited intra- and inter-agency information sharing because some systems like agriculture and health are not automated. As a result, the fragmentation of border management leads to unnecessary delays and costs to clients; ineffective utilisation of public resources due to limited information sharing; inability to enforce a standard approach to law enforcement; corruption, organised crime and an increase in the number of undocumented foreign nationals entering the country.
In 2009, the President announced the establishment of an integrated Border Management Agency (BMA) in the State of the Nation Address. In 2013, the Cabinet decided that the functions of the various border agencies should be ceded to the new BMA and that it will operate under the direction of the Department of Home Affairs. The Cabinet endorsed the draft BMA Bill in September 2015. Subsequently, the BMA Bill was published for public commitment and is currently serving before the parliamentary portfolio committee on home affairs. According to the Bill, the BMA will assume control over port of entry functions such as immigration and customs, inspections, border policing and custodianship of infrastructure. A BMA Coast Guard and Border Guard will also be established to patrol the country’s exclusive economic zone and an area of 10 kilometres from any land borderline, respectively. The South African National Defence Force will retain responsibility for the air border environment. The powers of border officials will include entry of premises; search of goods and people; seizure of goods without a warrant; arrest and detention of persons; and, conducting routine roadblocks and setting up checkpoints within the border area.
The Bill authorises the BMA to administer and enforce a whole range of legislation in order to achieve its objective of integrated border law enforcement and cooperation on and coordination of border management matters. It will, for example, be responsible for the implementation of certain sections of the South African Revenue Service Act, Immigration Act, Second-Hand Goods Act, Sea Fisheries Act, Refugees Act, National Health Act, National Environmental Management Act, Marine Traffic Act, Drugs and Drug Trafficking Act, Explosives Act, Customs Duty Act, Customs Control Act, Counterfeit Goods Act and Agricultural Product Standards Act to name a few. In practice, border management involves various government agencies. In order to ensure seamless integration, the Bill proposes the establishment of an inter-ministerial consultative committee consisting of the Ministers responsible for agriculture, fisheries and forestry; cooperative governance and traditional affairs; defence and military veterans; environmental affairs; finance; health; police; state security; trade and industry; economic development; tourism and transport to consult on the designation of ports of entry; proposed amendments to relevant legislation; any international agreement or protocols that affects the BMA; and, the performance of the BMA. The inter-ministerial committee will be advised by technical and advisory committees and it will monitor the implementation of inter-agency protocols to ensure the appropriate coordination of actions and the alignment of technological, electronic, information and communication systems and procedures necessary to ensure the effective sharing of information with the BMA. It will not be an easy task. Already disagreements exist over the ceding of constitutional mandates assigned to the South African Police Service (policing and security of the border environment) and National Treasury (setting, administration and enforcement of taxes including customs and excise duties). To this effect, National Treasury supports mandatory inter-agency cooperation and proposes the integration of systems and operational platforms but not the integration of institutions. This view is also supported by the Davis Tax Committee. The Committee views the assignment of functions relating to revenue collection and the control of goods that is associated with such collection from the South African Revenue Authority to the BMA as inappropriate.
There is no single model for integrated border management. Some countries have merged border agencies whereas others have set up formal structures for cooperation. The main focus is usually to improve border security by strengthening information sharing. Canada is perhaps the only country with a single border agency. The Canada Border Services Agency was established in terms of the Canada Border Services Agency Act to integrate the functions of customs, immigration and food inspection/biosecurity; similar to what is proposed in the South African BMA Bill. The United Kingdom (UK) also established an integrated border agency in 2008 but it was abolished in 2013 and split into smaller, more focused structures. At the time, (former) UK Home Secretary, Teresa May, said the border agency’s performance was ‘not good enough’ and that it had developed a ‘closed, secretive and defensive culture’. Lessons could be learned from these counties especially regarding the BMA’s proposed structure, mandate and oversight. However, there is also an international dimension to this discussion. South Africa and Mozambique is piloting a one-stop border post at the Lebombo/Ressano Garcia border crossing with the view to implement this concept at other points of entry in line with regional integration objectives. It entails the joint inspection of travellers, goods and processes in order to eliminate duplication and reduce processing times without compromising security or revenue collection. A key feature of one-stop border posts implies that one or both countries’ authorities must operate in the territory of the other. Therefore, they must be able to apply their national legislation outside their own territorial jurisdiction. One-stop border posts can only work if they are underpinned by an enabling legal framework, international agreements and compatible systems. The BMA Bill makes provision for its extra-territorial application but it does not seem to consider how to enhance cross-border inter-agency cooperation into one border control system. It is clear the last word has not yet been spoken on this matter and it might even require a complete rethink of the BMA Bill.