Date: 30/04/2003
Source: Ministry of Home Affairs
Title: Buthelezi: Bali Conference
REMARKS BY MANGOSUTHU BUTHELEZI, MP, MINISTER OF HOME AFFAIRS OF THE REPUBLIC OF SOUTH AFRICA, AT SECOND BALI CONFERENCE ON PEOPLE SMUGGLING AND TRAFFICKING IN PERSONS AND RELATED TRANSNATIONAL ORGANISED CRIMES, Nusa Dua, Bali, April 29-30, 2003
South Africa is very honoured to participate in this Bali process as an observer. On behalf of the Government of South Africa, I wish to thank both Indonesia and Australia for the invitation to this Conference. On the two days we have spent here we have learned a lot, and I hope that we shall have the opportunity to continue to be involved in this exciting exercise. I particularly wish to praise the promoters of, and the participants in this process for having chosen an action-based approach to the problems of people smuggling and trafficking in people, which problem can only be addressed by means of concrete plans of action co-ordinated at the international level on bilateral and multilateral basis. I am impressed that the tone this Conference is not about merely talking about a problem but doing something together to solve it. South Africa is ready and willing to provide its contributions in these efforts and act as a trusted partner of the many countries represented in this forum.
In fact, it gives me great pleasure to participate in this important Conference in which, together, we seek ways and means to give substance and implement the commitments we made in December 2000 when we signed the UN Convention and supplementary Protocols. South Africa is looking forward to receiving the guidance, which may emerge from this forum. In fact, my country is experiencing both the phenomenon of people smuggling as well as the scourge of trafficking in people. Because of our greater development and position in our continent and region, we have many of the problems experienced by developed countries, which are the targets of illegal migratory fluxes. However, as a partially developing country, we do not have the necessary resources to attend to these problems in the full measure required.
A few weeks ago, we launched a new system of migration control centred around our recently enacted Immigration Act. This new statute has the specific purpose of facilitating and simplifying permitting procedures so that we can move our scarce administrative capacity and resources towards the enforcement of our immigration laws. We felt that it was counterproductive to have stringent measures for legal immigration when the majority of immigrants stayed illegally outside the system. In fact, I think that one of preconditions in our collegial fight against people smuggling and trafficking in people is the State's capacity to and political will of effectively enforcing immigration laws within its territories, both to detect illegal immigration as well as to deter the crimes associated with it. For as long as large pockets of illegal immigrations remain untouched by the law-enforcement efforts, a fertile ground will continue to exist which will attract people smuggled and enable the trafficking in people.
Unfortunately, our police forces are primarily mandated to, and occupied by dealing with the full range of crimes experienced in our country. Even in this respect we remain under-resourced, and our fight against crime in general is testing the limited capacity of our security services. For this reason, our new legislation has transferred the competence of deterring, detecting and redressing illegal immigration and phenomena associated therewith to a dedicated Inspectorate, which the law has established within my Department. We will need to undertake the difficult learning process of developing techniques to inspect workplaces and communities to detect illegal immigration without creating associated and undesirable perceptions of xenophobia on the side of our government or mobilising xenophobic sentiments, which may exist within communities. We will need to learn a difficult balancing act between effective law enforcement and the promotions of the higher standards of human rights protection, which my country is unqualifiedly committed to. We feel that in a country such as ours with about 7,000 km of very porous borders, law enforcement at community level is as important as border control as it addresses the so-called pull forces.
However, in the context of my ministerial responsibilities, has indeed I have done throughout my long political life, I know that I must be a pragmatist. We cannot jump a flight of stairs or make a step longer than our leg. We are committed to ratifying the Convention on Trans-national Organised Crime, the Protocol to Prevent Trafficking in Persons and the Protocol against the Smuggling of Migrants by Land, Sea and Air. However, in respect of certain portions of the Protocol dealing with the trafficking in persons, we will need to read down or apply a restrictive interpretation of some provisions. In fact, we cannot construe the language of such Protocol as requiring us to extend permanent residence or a stable immigration status to victims of trafficking merely on that account. As I have discussed often with my colleagues in other fora, such during the celebration for the 50th anniversary of the Refugees Convention, my country has experienced an inordinate abuse of the asylum process, even though the number of asylum applications remain low as compared to other receiving countries. However, the facts remain that we employ the bulk of our resources destined to refugees' protection to dealing with asylum applications, which, in the end, result to be unfounded.
We fear that certain provisions on the Protocol on trafficking in people may be giving rise to similar problems if anyone subject to a deportation procedure may raise the defence or exception that he or she has been a victim of trafficking, which, as we know, may be the case when one is brought into South Africa not necessarily under duress but merely under false pretences. Under our law we would need to adjudicate such a claim and investigate the underlying relevant facts before we could proceed with deportation. If the claim of being a victim of trafficking may lead to a temporary or permanent immigration status, such claim is likely to be abused, as much as the asylum claims are, with the added disadvantage that we cannot summarily eliminate claims from citizens of certain democratic countries, as we do in respect of asylum; for a citizen of any country could be a victim of trafficking.
Nonetheless, we are in an advanced process of the ratification of the Convention and its Protocols, which have already been approved by Cabinet and are in the process of being tabled by Parliament. We feel that most of our existing legislation has already given municipal implementation to the provisions of the Convention and it's Protocols. The smuggling of persons is regarded as a criminal offence. However, we will need to investigate the extent to which it may be necessary to create a new specifically defined crime dealing exclusively with trafficking in people, rather than relying on existing crime definition typology. In this respect we would like to receive the guidance of comparative experience and learn what our colleagues in other countries are thinking or doing. In our context, additional specificity could give greater impetus to law enforcement, for instance creating dedicated law enforcement and prosecuting units, but could make actual prosecution more difficult. One needs to decide whether the fight against trafficking in people would not be equally promoted under the application of existing provisions of the criminal code, but with separate and dedicated policy emphasis and administrative capacity.
We are also concerned about the related trans-national crimes, on which the theme this Conference is also rightly focussed. Both people smuggling and trafficking in people are often associated with bribery and corruption of officials, forged or fraudulently acquired documentation, illegal smuggling of vehicles, and even a much broader range of crimes, ranging from drug trafficking to prostitution and child abuse rackets. We have in place recently enacted legislation to deal with these types of crimes, but we will need to assess the extent to which our existing legislation deals with the trans-national dimension of this phenomenon. Also in this respect we will appreciate the guidance we may be receiving from the deliberations of this Conference.
We are very committed to dealing effectively with the problem of people smuggling and the scourge of trafficking in people. We are delighted to do so in partnership with our friends and look forwards to the dialogue among the people of our region in solving such a common concern. We think that bilateral and regional co-operation and exchanges remains the key to successfully deal with these concerns. For this reason, we applaud both the plan of action and the initiatives contemplated by this Conference and the other action, which will undoubtedly emerge from the continuation of the Bali process. We shall make ourselves available to participate in future stages of this process both at the technical and the political levels, as it may be required and to provide to it any appropriate assistance.
Issued by Ministry of Home Affairs
30 April 2003
Source: Ministry of Home Affairs
Title: Buthelezi: Bali Conference
REMARKS BY MANGOSUTHU BUTHELEZI, MP, MINISTER OF HOME AFFAIRS OF THE REPUBLIC OF SOUTH AFRICA, AT SECOND BALI CONFERENCE ON PEOPLE SMUGGLING AND TRAFFICKING IN PERSONS AND RELATED TRANSNATIONAL ORGANISED CRIMES, Nusa Dua, Bali, April 29-30, 2003
South Africa is very honoured to participate in this Bali process as an observer. On behalf of the Government of South Africa, I wish to thank both Indonesia and Australia for the invitation to this Conference. On the two days we have spent here we have learned a lot, and I hope that we shall have the opportunity to continue to be involved in this exciting exercise. I particularly wish to praise the promoters of, and the participants in this process for having chosen an action-based approach to the problems of people smuggling and trafficking in people, which problem can only be addressed by means of concrete plans of action co-ordinated at the international level on bilateral and multilateral basis. I am impressed that the tone this Conference is not about merely talking about a problem but doing something together to solve it. South Africa is ready and willing to provide its contributions in these efforts and act as a trusted partner of the many countries represented in this forum.
In fact, it gives me great pleasure to participate in this important Conference in which, together, we seek ways and means to give substance and implement the commitments we made in December 2000 when we signed the UN Convention and supplementary Protocols. South Africa is looking forward to receiving the guidance, which may emerge from this forum. In fact, my country is experiencing both the phenomenon of people smuggling as well as the scourge of trafficking in people. Because of our greater development and position in our continent and region, we have many of the problems experienced by developed countries, which are the targets of illegal migratory fluxes. However, as a partially developing country, we do not have the necessary resources to attend to these problems in the full measure required.
A few weeks ago, we launched a new system of migration control centred around our recently enacted Immigration Act. This new statute has the specific purpose of facilitating and simplifying permitting procedures so that we can move our scarce administrative capacity and resources towards the enforcement of our immigration laws. We felt that it was counterproductive to have stringent measures for legal immigration when the majority of immigrants stayed illegally outside the system. In fact, I think that one of preconditions in our collegial fight against people smuggling and trafficking in people is the State's capacity to and political will of effectively enforcing immigration laws within its territories, both to detect illegal immigration as well as to deter the crimes associated with it. For as long as large pockets of illegal immigrations remain untouched by the law-enforcement efforts, a fertile ground will continue to exist which will attract people smuggled and enable the trafficking in people.
Unfortunately, our police forces are primarily mandated to, and occupied by dealing with the full range of crimes experienced in our country. Even in this respect we remain under-resourced, and our fight against crime in general is testing the limited capacity of our security services. For this reason, our new legislation has transferred the competence of deterring, detecting and redressing illegal immigration and phenomena associated therewith to a dedicated Inspectorate, which the law has established within my Department. We will need to undertake the difficult learning process of developing techniques to inspect workplaces and communities to detect illegal immigration without creating associated and undesirable perceptions of xenophobia on the side of our government or mobilising xenophobic sentiments, which may exist within communities. We will need to learn a difficult balancing act between effective law enforcement and the promotions of the higher standards of human rights protection, which my country is unqualifiedly committed to. We feel that in a country such as ours with about 7,000 km of very porous borders, law enforcement at community level is as important as border control as it addresses the so-called pull forces.
However, in the context of my ministerial responsibilities, has indeed I have done throughout my long political life, I know that I must be a pragmatist. We cannot jump a flight of stairs or make a step longer than our leg. We are committed to ratifying the Convention on Trans-national Organised Crime, the Protocol to Prevent Trafficking in Persons and the Protocol against the Smuggling of Migrants by Land, Sea and Air. However, in respect of certain portions of the Protocol dealing with the trafficking in persons, we will need to read down or apply a restrictive interpretation of some provisions. In fact, we cannot construe the language of such Protocol as requiring us to extend permanent residence or a stable immigration status to victims of trafficking merely on that account. As I have discussed often with my colleagues in other fora, such during the celebration for the 50th anniversary of the Refugees Convention, my country has experienced an inordinate abuse of the asylum process, even though the number of asylum applications remain low as compared to other receiving countries. However, the facts remain that we employ the bulk of our resources destined to refugees' protection to dealing with asylum applications, which, in the end, result to be unfounded.
We fear that certain provisions on the Protocol on trafficking in people may be giving rise to similar problems if anyone subject to a deportation procedure may raise the defence or exception that he or she has been a victim of trafficking, which, as we know, may be the case when one is brought into South Africa not necessarily under duress but merely under false pretences. Under our law we would need to adjudicate such a claim and investigate the underlying relevant facts before we could proceed with deportation. If the claim of being a victim of trafficking may lead to a temporary or permanent immigration status, such claim is likely to be abused, as much as the asylum claims are, with the added disadvantage that we cannot summarily eliminate claims from citizens of certain democratic countries, as we do in respect of asylum; for a citizen of any country could be a victim of trafficking.
Nonetheless, we are in an advanced process of the ratification of the Convention and its Protocols, which have already been approved by Cabinet and are in the process of being tabled by Parliament. We feel that most of our existing legislation has already given municipal implementation to the provisions of the Convention and it's Protocols. The smuggling of persons is regarded as a criminal offence. However, we will need to investigate the extent to which it may be necessary to create a new specifically defined crime dealing exclusively with trafficking in people, rather than relying on existing crime definition typology. In this respect we would like to receive the guidance of comparative experience and learn what our colleagues in other countries are thinking or doing. In our context, additional specificity could give greater impetus to law enforcement, for instance creating dedicated law enforcement and prosecuting units, but could make actual prosecution more difficult. One needs to decide whether the fight against trafficking in people would not be equally promoted under the application of existing provisions of the criminal code, but with separate and dedicated policy emphasis and administrative capacity.
We are also concerned about the related trans-national crimes, on which the theme this Conference is also rightly focussed. Both people smuggling and trafficking in people are often associated with bribery and corruption of officials, forged or fraudulently acquired documentation, illegal smuggling of vehicles, and even a much broader range of crimes, ranging from drug trafficking to prostitution and child abuse rackets. We have in place recently enacted legislation to deal with these types of crimes, but we will need to assess the extent to which our existing legislation deals with the trans-national dimension of this phenomenon. Also in this respect we will appreciate the guidance we may be receiving from the deliberations of this Conference.
We are very committed to dealing effectively with the problem of people smuggling and the scourge of trafficking in people. We are delighted to do so in partnership with our friends and look forwards to the dialogue among the people of our region in solving such a common concern. We think that bilateral and regional co-operation and exchanges remains the key to successfully deal with these concerns. For this reason, we applaud both the plan of action and the initiatives contemplated by this Conference and the other action, which will undoubtedly emerge from the continuation of the Bali process. We shall make ourselves available to participate in future stages of this process both at the technical and the political levels, as it may be required and to provide to it any appropriate assistance.
Issued by Ministry of Home Affairs
30 April 2003
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