Why not regularise all law-abiding Zimbabweans living under ZEP?

Minister of Home Affairs Aaron Motsoaledi recently lost a court case that anyone could have anticipated was unwinnable. He probably expected to lose it too. He lost it on humanitarian and technical grounds.

It prevents him from terminating the South African government’s concession to refugees from neighbouring Zimbabwe nearly 15 years ago.

In April 2009, SA provided legalised shelter for Zimbabweans hit by economic and political crisis in their country across the Limpopo River. The Zimbabwe Dispensation Project was the first form of a policy to temporarily accommodate Zimbabwean refugees.

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It became the Zimbabwean special permit in 2014 and after 2017 it was known as the Zimbabwe Exemption Permit (ZEP). Zimbabweans who had arrived during the crisis period of 2008-2009 had full freedoms, but no rights to citizenship even for their children, for as long as the permits allowed.

In 2021, home affairs decided to end the special dispensation after a period of grace lasting till the end of 2022 to allow Zimbabweans to regularise their circumstances. Some were expected to be able to obtain residence and work rights based on their skills and occupations, and others were to return to Zimbabwe.

The number of people affected by the ruling is estimated at around 178 000 who remained on their ZEPs. Children born in SA were expected to obtain Zimbabwean citizenship and were not allowed SA citizenship.

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The number of 178 000 is relatively small number with the total number of immigrants in South Africa, estimated at 3.96 million by Statistics SA.

Many of the registered Zimbabweans are educated and skilled. Most have been successfully living in SA for 15 years. Why not simply regularise all the law-abiding Zimbabweans living under the permit? Elsewhere around the world, larger numbers of irregular migrants have been regularised.

In SA, Mozambican refugees were regularised after the end of the Mozambican civil war. But the current anti-migrant sentiment in SA made such a course difficult for the minister of home affairs. This is why he opposed a court action he pretty much knew he would lose.

I have been studying migration policy on the continent, including the African Union’s adoption of a protocol on the free movement of people in 2018, which I have argued could facilitate economic growth and trade integration.

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Migration policy in SA seems to be constantly in flux. Most of the Immigration Policy White Paper passed by Cabinet in 2017 has never been implemented. Policy documents and a law amendment on labour migration published a year and a half ago are still in limbo. A promised new White Paper on immigration has not yet been published.

Some of the proposals could have simplified migration rules, such as a proposal to replace the critical skills list with a points system, while others such as the quota system proposed in the draft law would have added further complexities.

Will any reforms be implemented before the general election of 2024? Probably not. This is the fundamental problem.

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Immigration policy is so highly politicised that the government seems afraid to move. While politicians frequently voice sentiments hostile to migration and migrants, sensible policies in practice and on the table are shrouded in camouflage and occasionally sneaked through.

One example is the corporate labour permit, another is the rising number of African countries with visa-free access to SA. Access to skilled employees needed from beyond our borders is being simplified. Reforms will be hidden behind a veil of hostility to foreigners.

A textbook on migration warns us, when it comes to migration policies, “not to equate political rhetoric with policy practice”.

It is not surprising that in many countries migration policies seem confused or incomprehensible. Migration policy reform seems elusive in the context of such opacity. And yet, effective African economic development depends on economic integration.

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Most countries are pretty small, especially economically, and effective integration entails the movement of persons across borders without excessive hindrances. Not all African governments, even of richer countries, have been as hesitant as SA to reform migration policies.

Members of both the East African Community (EAC) and the Economic Community of West African States (Ecowas) have made greater progress than regions at the southern and northern ends of the continent. Countries in Africa can learn not only from experiences in the EU or in South America, but also from other African countries.

The New South Institute is running the Migration Governance Reform in Africa project. We are studying migration policy and practice in four African countries: SA, Mozambique, Kenya and Nigeria, and in four regional organisations, SADC, the EAC, Ecowas and the African Union. There are some exciting examples of reform on the African continent.

In east and west Africa, there are many ways to allow cross-border migrants access for different periods and reasons. Even in southern Africa, the recent agreement between Namibia and Botswana on travel by citizens of the two countries across their common border with identity documents alone shows what progress is possible.

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Visa-free travel is proliferating in Africa, as the recent bilateral agreement between SA and Kenya shows.

-Hirsch is research fellow New South Institute and emeritus professor at The Nelson Mandela School of Public Governance, University of Cape Town