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SADC Today Volume 8 No. 4, October 2005
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Cross-Border movement of people

by by Munetsi Madakufamba

IN A fitting commemoration of SADC's Silver Jubilee, the leaders of member states concluded their 2005 summit in Botswana by adopting a watershed decision that will facilitate easier movement of people in the region.

This is based on the premise that full participation in the process of building the region into a community is only possible where the citizens of the region can enjoy freedom of movement across borders.

The signing of the Protocol on the Facilitation of Movement of Persons in SADC, aimed at enabling the movement of people to other countries in the region, is a defining moment in the history of this regional community that has adopted more than 30 legal instruments in its quarter of a century in existence.

While all other protocols and declarations signed thus far are important in harmonising national policies and providing the legal framework for regional cooperation and integration, the new protocol, as one delegate put it, is “the people's protocol” that will give relevance to all other legal instruments. It directly extends the benefits of SADC to all citizens of the region.

Already signed by half of the 14 member states and still subject to ratification by twothirds of the members, the protocol's overall objective is to develop policies that are aimed at the progressive elimination of obstacles to the movement of people in the SADC region. It will facilitate visa-free entry, residence and establishment by individuals or families in territories of member states.

The protocol applies to citizens of SADC countries. Although the maximum period per year for visa-free entry will be 90 days, the protocol provides for the visitor to apply for an extension subject to the laws of the Member State.

Applicants for residence permits can expect their requests to be processed much more expeditiously after the protocol comes into force. Similarly, the protocol provides for those who are seeking permission to perform a legal economic activity or business or those who want to practice a profession, for instance as a lawyer or doctor, in a fellow member state.

The countries that did not sign on the day of the summit a re Angola, Botswana, Madagascar, Malawi, Mauritius, Tanzania and Zambia.

The objectives are to facilitate:
  • entry into member states without the need for a visa for a maximum period of 90 days per year for bona fide visit and in accordance with the laws of the member state;
  • permanent and temporary residence in the territory of another member state; and
  • working in the territory of another member state.

The new protocol approved by the SADC summit in August, will now need to be ratified by at least nine member states before implementation can begin. The process of ratification involves member states depositing legal papers with the SADC S e c retariat, indicating their readiness to implement the agreement.

João Ndlovu, Director of the Organ on Politics, Defence and Security, explained that member states have different constitutional procedures for dealing with protocols. Some require parliamentary endorsement for all international agreements before the head of state or government can append his/her signature.

Although the procedures vary from country to country, ratification is usually done after some form of national consultation, a process that can take anything up to several years. However, SADC regulations are such that once two-thirds of the member states have ratified, the protocol becomes a legally binding document.

The protocol is in line with SADC's “duty to promote the inter-dependence and integration of our national economies for the harmonious, balanced and equitable development of the region”. It recognises the need to involve o rdinary citizens of the region centrally in the process of development and integration.

The SADC Free Trade Area, planned for 2008, is one of the many regional integration e fforts that will benefit immensely from the Protocol on Facilitation of Movement of Persons. The SADC Trade Protocol, through which the Free Trade Area will be created, is facilitating the movement of capital, goods and services across borders.

However, critics have argued that a Free Trade Area is meaningless without facilitating the movement of people since trade is conducted by persons. In fact, visa requirements are one of the significant non-tariff barriers to trade.

Some member states have already entered into bilateral agreements to lift visa requirements as a way of promoting tourism and facilitating trade across their borders. The most recent was a no-visa agre e m e n t signed early this year between Mozambique and South Africa . Some bilateral agreements under negotiation at the time of signing of the protocol are between Mozambique and Swaziland, Mozambique and Zimbabwe, and Angola and Botswana.

The new SADC protocol supports efforts of the A frican Union which is encouraging free movement of people across the continent as a stepping stone towards the movement of persons in an eventual African Economic Community.

Through the protocol, SADC member states also re a ff i r m their commitment to international agreements, to which they are a party, relating to asylum seekers and refugees. They com mit to cooperation, among others, with the UN High Commission for Refugees and the International Organisation for Migration.

Travel facilities Through the protocol, member states “agree to make travel documents readily available to their citizens. They agree to cooperate in harmonising travel whether by air, land or water and to increase and improve travel facilities especially between their mutual borders”.

The member states “undertake to introduce machine readable passports as possible”. They also undertake to int roduce “technologically sensitive passports and other re l a ted facilities as circumstances allow”.

Immigration practices
From the date of entry into force of the protocol, member states agree to take steps to achieve:
  • Harmonisation of their laws and administrative practices so that citizens of state parties are able to enter the territory of another state party for a maximum period of 90 days per year for bona fide visits;
  • Standardisation of immigration forms used by travelling citizens of state parties;
  • Establishment of a separate SADC Desk at each major port of entry between state parties;
  • By way of bilateral agreements, establishment of a sufficient number of border crossing points into the territory of another state party with identical opening hours on each side of the border and ensuring that at least one such post remains open 24 hours every day;
  • By way of bilateral agre ements between the state parties concerned, issuance of a uniform and simple b o rder permit/pass to citizens of state parties who reside in the border areas of the territories of such state parties;
  • Abolition of visa requirements where they still exist, p rovided that where visas are regarded as necessary, they shall be issued free of c h a rge at the port of entry; and
  • Cooperation with the assistance of the SADC Secretariat or any such designated body of SADC and other state parties in the pro v ision of such training for senior immigration, customs, police and security o fficials as may be necessary to facilitate the movement of persons within the Southern African Development Community.
 

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