Government of the Republic of Zambia RECONCILING LIBERALISED MOVEMENT OF PERSONS WITHIN A REGION WITH OTHER RELEVANT REGIONAL, BILATERAL AGREEMENTS AND NATIONAL POLICIES -A FOCUS ON ZAMBIA S MEMBERSHIP OF SADC AND COMESA- Presented to the IOM Workshop on Free Movement of Persons in Regional Integration Processes, 18-19 June 2007, Geneva, Switzerland By Owen Mgemezulu Ministry of Labour and Social Security Lusaka, Zambia. 19 TH JUNE 2007
1.0 INTRODUCTION The Eastern and Southern Africa s move towards regional integration has witnessed the emergence of two regional blocs, namely the Southern African Development Community (SADC) and the Common Market for Eastern and Southern Africa (COMESA) as the main vehicles through which enhancement of regional integration and its attendant benefits are to be achieved. COMESA today has a total membership of twenty (20) countries and these are: Angola, Burundi, Comoros, Djibouti, Congo DR, Egypt, Eritrea, Ethiopia, Kenya, Libya, Rwanda, Seychelles, Sudan, Swaziland, Madagascar, Malawi, Mauritius, Zambia, Zimbabwe, and Uganda. SADC on the other hand has a membership of fourteen (14) viz: Angola, Botswana, the Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, United Republic of Tanzania, Zambia and Zimbabwe. Zambia, like seven (7) other countries belongs to both SADC and COMESA. Zambia s membership to the two regional groupings dates back to the time of inception of these groupings as the country was one of the key architects of these organisations. Fig: SADC-COMESA Dual Membership Countries (adapted from Nhara, 2006) COMESA Burundi Comoros Djibouti Egypt Eritrea Ethiopia Kenya Libya Rwanda Seychelles Sudan Uganda Angola DR Congo Madagascar Malawi Mauritius Swaziland Zambia Zimbabwe Botswana Lesotho Mozambique Namibia South Africa Tanzania SADC 2
2.0 COMESA AND SADC OBJECTIVES 2.1 THE COMMON MARKET FOR EASTERN AND SOUTHERN AFRICA (COMESA) The Common Market for Eastern and Southern Africa (COMESA) began as a Preferential Trade Area of Eastern and Southern Africa (PTA) in 1982. Its name changed to COMESA in 1994, and in October 2000 the COMESA Free Trade Area (FTA) was created. Today this FTA has thirteen members; these are Burundi, Djibouti, Egypt, Kenya, Madagascar, Malawi, Mauritius, Rwanda, Sudan, Zambia, Zimbabwe, Comoros, and Libya. COMESA has put in place a number of instruments to facilitate trade amongst its members. Some of these are: A draft Customs Management Act to govern customs operations, a common tariff nomenclature (CTN) and a single customs declaration document (the COMESA CD). A yellow card motor vehicle insurance scheme to facilitate the movement of goods and people within the region. The summit of COMESA Heads of State held in Nairobi, Kenya in May 2007 adopted the Common External Tariff structure of a four band category of raw materials (0%), capital goods (0%), intermediate goods (10%) and final goods (25%). COMESA has now set December 2008 as the year of entry into force of the Customs union but there is still a lot of tariff adjustment required on the part of individual member states. Ultimately, COMESA is looking to one day move into the final stage of its metamorphosis, that of becoming a common market characterized by the following: duty free access for all goods; a common external tariff; common policies on product regulation; and free movement of people and factors of production (services, capital and labour). 2.2 THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY (SADC) The Southern African Development Community (SADC) is the successor organization to the Southern African Development Coordination Conference (SADCC) whose primary focus was to resist the influence of the then apartheid South Africa. The coordinating conference was transformed into a development community with the signing of the Treaty of Windhoek in 1992 which calls for the development of policies aimed at the progressive elimination of obstacles to the free movement of goods, capital, labour and services. The SADC vision is one of a common future, a future in a regional community that will ensure economic well-being, improvement of the standards of living and quality of life, freedom and social justice and peace and security for the peoples 3
of Southern Africa. This shared vision is anchored on the common values and principles and the historical and cultural affinities that exist between the peoples of Southern Africa. SADC Member States have resolved to establish a Customs Union (CU) and implementation of a Common External Tariff (CET) by 2010, a Common Market pact by 2015 and establishment of a SADC Central Bank and preparation for a single currency by 2016. As seen above, both COMESA and SADC integration agendas point to the drive towards market integration and trade liberalization a situation that calls for close harmonization of programmes. The paragraph below illustrates a typical case of conflict that needs to be urgently resolved as it might negate or slow down the integration programme. COMESA and SADC are both pursuing the customs unions (CUs) agenda: COMESA aims to establish a Common External Tariff (CET) and a CU by 2008, and an economic union by 2025. SADC wants to introduce a FTA by 2008, a CU in 2010 and a common market by 2015. While SADC and COMESA can have Custom Unions, it is practically hard for a member to belong to two different CUs and apply to different common external tariffs (CET). Zambia as a member of SADC and COMESA can offer duty free treatment to Namibia under the SADC Protocol on Trade, Zambia can give duty-free treatment to Namibian products conforming to the rules of origin by at the least 2012. Due to her COMESA membership, Zambia will effect a COMESA CET next year in 2008-this would affect Namibia. The meaning of this is that Zambia will, on one hand have free trade with Namibia and on the other hand place COMESA tariffs against Namibia. Some options for redress include (in line with the spirit of Article 31 of the SADC Protocol on the Facilitation of Free Movement of persons as well as Goal number 4 of the 2007-2010 COMESA Strategic Plan): Taking necessary steps to ensure the co-operation and harmonisation of the activities of regional economic communities; promotion of ongoing dialogue between the various key stakeholders (politicians, economics, trade experts, civil society and private sector) on matters of mutual interest and concern as a way of deepening integration of the eastern and southern Africa region. 3.0 CURRENT STATUS ON PROTOCOLS FOR THE FREER MOVEMENT OF PERSONS AGENDA IN SADC AND COMESA Free movement of persons refers to the removal of barriers such as visa requirements which operate to restrict the movement of human beings across national borders. 4
Member States of the COMESA adopted a Protocol on the Free Movement of Persons, Labour, Services, Right of Establishment and Right of Residence at the sixth summit of the COMESA Authority held in Cairo, Egypt in 2001. However progress on this aspect has been limited to individual and bilateral initiatives which are permitted under Article 164 of the COMESA Treaty. In the interim, the members agreed that the protocol on the gradual relaxation and eventual elimination of Visa requirements within the PTA Treaty would remain in force until such a time that the protocol on the Free Movement of Persons, Labour, Service, Right of Establishment and Residence enters into force. The 2007-2010 COMESA Strategic Plan has committed to undertake the following to realize the goal on free movement of persons: facilitate bilateral consultations with member states to sign and ratify the protocol; enhance programmes on movement of people; design detailed programme on movement of labour; and develop a programme to build capacity among immigration officials on the implementation of the Protocol on free movement of persons and the detection of trans-national crimes and counter terrorism. SADC, after the withdrawal (in 1997) of its initial Protocol on Free Movement of Persons by the Governments of South Africa, Namibia and Botswana, also made some progress in August 2005 by having half of its member states sign a new Protocol on the Facilitation of Movement of Persons in SADC aimed at enabling the movement of people to other countries in the region. This was 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 Protocol is still subject to ratification by two-thirds of the members for it to take effect. The objectives of the protocol 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 2005, 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 Secretariat, indicating their readiness to implement the agreement. The protocol would be implemented within the context of the SADC Indicative Plan for the Organ (SIPO) and spearheaded by the SADC Organ on on politics, defence and security under the public sector security. 5
A task force (under the public security sub-committee) comprising Angola, Lesoth, South Africa and Zambia is currently drafting guidelines that will be used in the implementation of the protocol. The SADC Free Trade Area, planned for 2008, is one of the many regional integration efforts 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. Like the COMESA draft Protocol, the SADC protocol supports efforts of the African 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. Zambia is a signatory to the Protocol on Free Movement of Persons but she has not yet ratified it. The procedure involved in the ratification process is that extensive consultations will be done within the Government and the Cabinet will give final endorsement whether to ratify or not. Once ratification has been done by two thirds of SADC Member States, Zambia will be obliged to make necessary changes to its immigration laws to align them with the dictates of this Protocol. It is worth noting that the Secretariats for COMESA and SADC lie in two different Government Ministries in Zambia; COMESA activities are coordinated by the Ministry of Commerce, Trade and Industry while the SADC portfolio is under the Ministry of Foreign Affairs. Nonetheless, steering (advisory) committees are in place to assist in managing the programmes. These draw membership from an array of Government Ministries which assist in ensuring that there is coherence in the way policies emanating from the regional agreements are formulated. 4.0 FREER MOVEMENT OF PERSONS IN THE SOUTHERN AFRICAN REGION, CONTINENTAL COMMITMENTS, REGIONAL DILEMMAS AND NATIONAL MIGRATION POLICIES. The migration policy discourse in Africa vis-à-vis the free movement of people has to be considered at several levels; continentally by reviewing the clauses of the New Partnership for Africa s Development (NEPAD), regionally by examining charters of groupings such as SADC, and nationally by examining the thrust of laws governing entry and stay of non-nationals. Through the NEPAD, the goal of free movement of people across Africa has been stated as a core long-term objective of the African Union (AU). As already stated, the Southern African Development Community (SADC) aims to promote regional development through cooperation and integration. Protocols pursuing these aims have been developed, signed and are subject to ratification 6
by Member States. COMESA adopted its protocol in 2001. The signing of the Protocol on the Facilitation of Free Movement of Persons by SADC Heads of State in 2005 is also testimony of commitment to this cause. The SADC made an attempt at adopting a protocol on free movement of persons in formulated in 1995. This was unsuccessful as the protocol was rejected by South Africa, Botswana and Namibia as stated earlier. This protocol has since been replaced by the recently signed Protocol on the Facilitation of Movement of Persons. Asymmetrical development realities in the region call for a cautious approach to the move towards complete opening of the borders. Apart from some bilateral agreements between countries, there is to date, no common migration management mechanism in the region. 4.1 SOME DILEMMAS SADC Member States seem to have gone a step ahead of COMESA members in relaxation of visa requirements to allow entry. For instance, flexible visa arrangements already exist for Zambians traveling to other SADC countries and vice-versa whereby these visas are obtainable at the point of entry. However, traveling to some COMESA countries such as Ethiopia, Djibouti, etc requires that one obtains a visa before embarking on the journey to these countries. In spite of this, there is a great deal of sense in the region that COMESA seems to be more supportive of the idea of freer movement of persons within the borders of the grouping; it is speculated that this is so because South Africa, the economic giant of the region and few of her neighbours are not members of this grouping. This free movement failure in SADC is predicated on the theory that since South Africa and few of her neighbours were against the draft protocol on free movement of persons, they are unlikely to fully support freer movement in the near future. At this stage, it is unclear how countries belonging to both SADC and COMESA such as Zambia would reconcile this in the event that COMESA realized the free movement vision while SADC remained hesitant. 4.2 ZAMBIA S NATIONAL POLICY ON MIGRATION Zambia has not yet come up with a migration policy but consultations are underway to put this in place. Currently, the main instruments governing cross border migration is the Immigration and Deportation Act chapter 123 of the Laws of Zambia. Article 11 of the Zambian Constitution also grants every person in Zambia the right to life, liberty, security of person, protection of law, freedom of conscience, expression, assembly, movement, and association as well as other rights and 7
proceeds to provide that the exercise of these rights is irrespective of place of origin, race, political opinion, colour, creed, sex or marital status. Other policies that deal with issues of migration are such as the Investment policy which requires one to bring into the country a minimum of US$500,000 to be eligible as a self employed person; the National Employment and Labour Market policy. Currently, Zambia s labour force stands at 4,900,000 persons. Out of this, 88% are employed in the informal economy, and the under-employment rate is estimated at 84.3%. 5.0 CHALLENGES AND BENEFITS OF ZAMBIA S DUAL MEMBERSHIP OF COMESA AND SADC 5.1 CHALLENGES Some costs or challenges hitherto noted in dual membership include the following: Slow pace of implementation of commitments and agreements as the Government has to consult widely to ensure that its SADC commitments are in harmony with the signed COMESA protocols; Duplication of effort- sometimes SADC and COMESA conferences have had similar agendas and the Government has had to participate in both of these; Lack of a statistical mechanism for determining the extents of movements in the COMESA/SADC areas; Inadequate research and exchange of study findings on pertinent phenomena in the SADC/COMESA countries; Bringing on board the public and generally civil society in charting course of action. 5.2 BENEFITS Some of the benefits that are enjoyed by virtue of dual membership include the following: The common investment area offered by COMESA has created jobs for the Zambians, especially in the trading sector. Regular meeting of the Heads of State to discuss issues of peace and security; Enjoyment of the SADC power base which gives leverage in international negotiations; Access to the institutions of COMESA -e.g. The PTA Bank and reinsurance agency; The SADC trans-boundary wildlife parks which is a big boost to the tourism sector. 8
6.0 EFFECTS OF ANCILLARY POLICIES (I.E. RECOGNITION OF QUALIFICATIONS, FAMILY REUNION, SOCIAL SECURITY, DOUBLE TAXATION) ON FREE MOVEMENT OF PEOPLE As already stated, the ratification of the Protocol on the Facilitation of Free Movement of People by two-thirds of SADC Member States will set in motion the process of relaxing border controls and reforming and re-aligning of migration policies of member countries to conform to the letter of the Protocol. This would gradually lead to the attainment of the vision of free movement. However, the road to freer movement of persons whereby citizens of the region are free to enter a sister country without visa (but with valid passport or other identification), reside there and be able to do business, or get a job, is not a smooth road. Opening of borders is not the only thing in the equation. There is a whole pyramid of factors that would discourage people from choosing to move into certain countries. The differences in education, social security and welfare, taxation policies in SADC countries would be an issue to consider. 6.1 RECOGNITION OF QUALIFICATIONS People with foreign qualifications seeking employment in Zambia are, under the current policy, required to submit their certificates to relevant bodies such as the Examinations Council of Zambia (ECZ) for validation; lawyers trained in Malawi, Zimbabwe or any foreign country are subjected to examination by the Zambia Institute of Legal Education (ZIALE) before they can be admitted to practice law and stand in the courts of law. 6.2 SOCIAL SECURITY AND WELFARE The differences in Social Security Systems in countries of the same region might also movement of people. Some countries have contributory Social Security schemes and public welfare funds, some do not. Or still, these schemes are more advanced in some countries than in others. This might discourage movements of people especially where they are not able to transfer their pension, unemployment, health or other rights into another country. 6.3 TAXATION In instances where taxation rules have not been harmonized, anxieties of double taxation have a discouraging effect on would be migrants. 7.0 CONCLUSION 9
COMESA and SADC are both working towards the objective of having custom unions; this naturally will entail the freer movement of factors of production. The adoption of protocols on freer movement of people and the campaign for their ratification are necessary milestones towards the vision of regional integration. Given the intricacies of the process of removing border controls, the full application of the provisions of the protocols on movement of people will take time before they can be implemented. The SADC/COMESA states have made tremendous progress towards achievement of other objectives relating to security, trade but the issue of removing border controls to allow people to freely move, settle and get jobs where they want remains a challenge to the member states including Zambia. Time frames for achieving objectives have been set at regional level but it remains to be seen how the regional policies will be translated into domestic law. 10
APPENDIX: FACTS AND FIGURES SADC (2003) Population GDP 209million $645billion COMESA (2005) Population GDP 400million $230billion ZAMBIA (2005) Population: 11 million Capital: Lusaka Area: 752,614 sq km (290,586 sq miles) Major language: English (official), Bemba, Lozi, Nyanja, Tonga Major religions: Christianity, indigenous beliefs, Hinduism, Islam Monetary unit: 1 Kwacha = 100 ngwee (At time of writing 3,800 Kwacha was equal to $1 ) Main exports: Copper, Cobalt, Cotton, tobacco. GNI per capita: US $680 Unemployment rate 16% (88% of labour force in informal sector) Internet domain:.zm International dialing code: +260 11