A Presentation to the 3 rd Meeting of the EU-Africa Social Economic Interest Groups 6-7 July 2016, Nairobi Kenya Austin C Muneku, Executive Secretary - SATUCC 1

Background: Existing regional, bilateral and national legal frameworks There is no overall regional policy framework to govern migration including labour migration in t he Southern Africa Development Community (SADC). SADC member States all have national migration and labour policies that govern the entry, stay, and employment of foreign workers, although these are often disconnected from each other internally (labour and migration) and/or across countries. Permits for work are either issued by Ministries of Home Affairs only (as is the case in South Africa) or through a system combining Ministries of Labour and Home Affairs (Botswana, DRC, Tanzania and Zambia). In Botswana, the DRC, Lesotho, Mauritius, and Mozambique there is separate legislation granting employment permits to foreign workers 2

Background: Existing regional, bilateral and national legal frameworks In addition to national migration and labour policies bilateral agreements in SADC exist. South Africa leads in the number of bilateral agreements and remains the principle receiving country in the region to its historical migrant labour system in core sectors of its economy in particular mining South Africa has 5 bilateral agreements to recruit labour with Lesotho, Malawi(now expired), Mozambique, and Swaziland. South Africa has signed MoUs with Zimbabwe, Cuba and Tunisia to meet labour demands in critical sectors or for certain skills. A number of joint permanent commissions exist among SADC countries which are responsible for bilateral agreements beyond migration and labour 3

Background: Existing regional, bilateral and national legal frameworks At the regional level (SADC) a number of instruments exist which refer to the need to better manage migration in particular labour migration. SADC Treaty sets forth the regional body’s objectives, amongst which are to : Article 5, 1 (e) achieve complementarity between national and regional strategies and programmes Article 5, 1 (f) promote and maximise productive employment and utilization of resources of the region Article 5, 2 (d) develop policies aimed at the progressive elimination of obstacles to the free movement of capital and labour, goods and services, and the people of the region generally, among member states. 4

Background: Existing regional, bilateral and national legal frameworks SADC Protocol on Education and Training Article 3(a) states as an agreed objective of Member States “to work towards the relaxation and eventual elimination of immigration formalities in order to facilitate freer movement of students and staff within the Region for the specific purposes of study, teaching, research and any other pursuits relating to education and training.” Charter on Fundamental Social Rights in SADC sets out in its objectives among other things to promote labour policies, practices and measures, which facilitate labour mobility, remove distortions in labour markets and enhance industrial harmony and increase productivity, in Member States. Furthermore, the Charter sets the foundation for ensuring that the basic human rights of migrant workers and their rights to freedom of association, collective bargaining, access to social security and decent work are guaranteed. 5

Background: Existing regional, bilateral and national legal frameworks SADC Protocol on Employment and Labour Article 3(e) sets an objective of Member States “promote the development of employment and labour, as well as social security, policies, measures and practices, which facilitate labour mobility, and enhance industrial harmony and increase sustainable productivity and decent work in Member States”. At large the protocol provides for collective bargaining; social dialogue and consultations among employers, trade unions and government; equal treatment and social protection for workers and their families; the protection of migrant workers; paternity leave in addition to maternity leave; protection of children and young persons, as well as people with disabilities; education and skills development and decent work; and strengthening labour market information systems Article 19 of the protocol is dedicated to labour migration and the rights of migrant workers The Protocol was singed in 2014 and is yet to come into force. SADC Protocol on Facilitation of Movement of Persons Article 2 sets out the overall objective as “to develop policies aimed at the progressive elimination of obstacles to the movement of persons of the Region generally into and within the territories of State Parties”.”. The Protocol was singed in 2005 and is yet to come into force. SADC member states are also part to a number of international legal instruments and guidelines relating to migration including the AU Migration Policy Framework for Africa and ILO conventions 97, 143, 157, 118, Recommendation 151, the ILO Multilateral Framework on Labour Migration, a non-binding guiding document on managing labour migration to effectively meet the needs and rights of constituents of the tripartite alliance(governments, employers and workers)and the ILO SADC Decent Work Programme 6

Roadmap towards a Regional Migration Policy Framework An important recommendation of the 2010MIDSA ( Migration Dialogue for Southern Africa) Ministerial Conference was to “enhance migration management coordination, including through the establishment of migration focal points in relevant ministries; agreement on common regional standard operating practices including minimum standards for migrants access to basic social services; capacity building; ongoing exchange of experiences and best practices; harmonised border management systems; and an integrated regional information management system. In 2012 a MIDSA Technical Meeting held in Mauritius drafted a Regional Action Plan on Labour Migration for Southern Africa which was subsequently approved by the SADC Ministers of Labour and Social Partners meeting in May 2013 in Maputo. The SADC secretariat also convened a labour migration workshop for the tripartite structure in the region in August 2013 in Johannesburg. One of the conclusions from that workshop was the need to develop a regional policy on labour migration which this initiate directly responds to. Between 2013 to 2014 Tripartite Technical Committee of the SADC Employment and Labour Sector were mandated to formulate the SADC Labour Migration Framework The draft SADC Labour Migration Policy framework was approved in principle by the SADC Ministers responsible for Employment and Labour and Social Partners and request the SADC Ministers responsible for Migration issues to consider and endorse the Policy Framework to facilitate smooth implementation. 7

SADC Labour Migration Policy Framework The policy framework seeks to promote sound management of intra regional labour migration for the benefit of both the sending and receiving countries as well as the migrant workers. Policy Areas National Labour Migration policies Migration and development Enabling, facilitating and managing the migration process Promoting and protecting the rights of migrant workers and their Families Bilateral and Multilateral Labour Agreements Migration Data 8

Expected Outcomes Governance of intra –regional labour migration is enhanced Protection of the rights of Migrant workers is strengthened Intra regional Labour Migration is mainstreamed into the national development plans and the Region’s development strategic agenda Intra regional labour migration data collected, analysed and used in the planning processes 9

Implementation, Monitoring and Evaluation mechanisms and Roles of Actors The SADC ELS Committee of Ministers and Social Partners on its own or in a special sitting with the Ministers responsible for Home Affairs should every second year assess the progress towards the achievement of the objectives and realisation of the goals set out in this framework Member States and Social Partners (constituents) should provide and allocate resources and expertise to formulate and implement policy and regulatory instruments necessary to implement the SADC Labour Migration Policy Framework Build capacity of social partners to enable them engage and participate and contribute effectively in migration process Establish focal points including desks to assist migrants and their families Creating awareness about the positive side of migration 10

Challenges  High levels of unemployment, inequality and poverty  The myth that migration is bad, takes host jobs & opportunities away leading to actions such as xenophobia  Lack of data on migration to make informed interventions  Disconnected and uncoordinated administration mechanisms  Hostile legislations and legal frameworks ( mainly legislation that tend to restrict or criminalize non citizens activities)  Democratic and governance deficits (resulting in breakdown in rule of law, civil strife, displacement and forced migration)  Regional institutional architecture devoid of any oversight institutions to drive policy development and implementation  Globalization and failure of neoliberal policies leading to under development, inequity among and within nations and social injustice. 11

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