DRAFT PROTOCOL ON THE FACILITATION OF MOVEMENT OF
PERSONS
PREAMBLE
WE, the Heads of State or Government of:
The Republic of Angola
The Republic of Botswana
The Democratic Republic of Congo
The Kingdom of Lesotho
The Republic of Malawi
The Republic of Mauritius
The Republic of Mozambique
The Republic of Namibia
The Republic of South Africa
The Kingdom of Swaziland
The United Republic of Tanzania
The Republic of Zambia
The Republic of Zimbabwe
MINDFUL of the Preamble
to the Treaty Establishing SADC and especially the provisions with regard to
our duty to promote the inter-dependence and integration of our national
economies for the harmonious, balanced and equitable development of the Region,
as well as the need to involve the people of the Region centrally in the
process of development and integration;
RECOGNISING that full
popular participation in the process of building the Region into a Community is
only possible where the citizens of the Community enjoy freedom of movement of
persons, namely: visa-free entry, residence and establishment in the
territories of Member States;
CONSCIOUS of the
necessity to adopt a flexible approach in order to accommodate disparities in
the levels of economic development among Member States and the need to redress
imbalances in large-scale population movements within the Community;
DETERMINED to fulfil
our objectives articulated in Article 5 of the Treaty;
EAGER to support,
assist and promote the efforts of the African Union which is encouraging free
movement of persons in African Regional Economic Communities as a stepping
stone towards free movement of persons in an eventual African Economic
Community;
PURSUANT to Article
5.(2)(d) of the Treaty which requires SADC to develop policies aimed at the
progressive elimination of obstacles to the free movement of capital and
labour, goods and services, and of the people of the Region generally, among
Member States;
IN TERMS of Article
10(3) of the Treaty which mandates the Summit to adopt legal instruments for
the implementation of the provisions of the Treaty;
HEREBY AGREE
as follows:
ARTICLE 1
DEFINITIONS
1. In this
Protocol terms and expressions defined in Article 1 of the Treaty shall bear
the same meaning unless the context otherwise requires.
2. In this Protocol, unless the context otherwise requires:
“Border”
Means any common land border between any two Member States, or any airport used
for flights within the Region, or sea port used for trans-shipment connections
exclusively within the Region;
“Citizen”
Means a person who is regarded as a citizen under the laws of any Member State;
“Committee of Ministers”
Means the Committee of Ministers responsible for monitoring the implementation
of this Protocol.
“Establishment”
Has the meaning ascribed to it under Article 18;
Family
Family shall have the meaning ascribed to it under the national law of each
State Party;
“Host State”
Means the Member State of residence or establishment;
“Permit”
Has the meaning ascribed to it under Article 17;
“Residence”
Has the meaning ascribed to it under Article 16;
“State Party”
Means a Member State that has ratified or acceded to this Protocol;
“Third State”
Means any State other than a Member State;
“Travel document”
Means a valid passport or other document used to identify a traveller which
contains personal particulars and a clear photograph of the holder, issued by
or on behalf of the government of a Member State of which the holder is a
citizen and on which endorsements may be made by immigration authorities and shall
include a laissez-passer or border permit/border pass as approved by the
Ministerial Committee of the Organ;
“Visa”
Means an authority granted to a citizen of a State Party to enter into a
territory of another State Party;
ARTICLE 2
OVERALL OBJECTIVE
The overall
objective of this Protocol is 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.
ARTICLE 3
SPECIFIC OBJECTIVES
The specific
objectives of this Protocol in relation to every citizen of a State Party are
to facilitate:
(a) entry, for a lawful purpose and without a visa, into the territory of
another State Party for a maximum period of ninety (90) days per year for bona
fide visit and in accordance with the laws of the State Party concerned;
(b) permanent and temporary residence in the territory of another State Party;
and
(c) establishment of oneself and working in the territory of another State
Party.
ARTICLE 4
IMPLEMENTATION OF OBJECTIVES
The timeframe for the implementation of the objectives of this
Protocol shall be determined by the Implementation Framework to be agreed upon
by State Parties six months from the date of signature of this Protocol, by at
least nine (9) Member States.
ARTICLE 5
PHASES
Entry,
residence and establishment and controls at borders under this Protocol shall
be regarded as phases in the process of building the Community and the
implementation of the phases shall be consistent with the Implementation
Framework referred to under Article 4.
ARTICLE 6
ARTICLE 7
HARMONISATION OF NATIONAL LAWS
Every
State Party shall ensure that all relevant national laws, statutory rules and
regulations are in harmony with and promotive of the
objectives of this Protocol. To this end, SADC shall, from time to time,
produce model laws for the consideration by Member States.
ARTICLE 8
TEMPORARY SUSPENSION OF THE PROTOCOL
State
Parties hereby agree that where an emergency occurs in a State Party, by reason
of a breakdown of or serious threat to national security, public order or
public health, such State Party shall communicate, by written notice, to the
Chairperson of the Organ informing all the other State Parties of its temporary
suspension of the implementation of this Protocol for the duration of such
emergency. The State Party concerned shall also within a reasonable time furnish
to the Chairperson of the Organ, enough information regarding the emergency to
enable the Organ to review the necessity of such temporary suspension.
ARTICLE 9
POPULATION REGISTER
For the
purposes of identifying persons, each State Party shall establish and maintain
a population register from which the status of its citizens and permanent
residents can be determined accurately.
ARTICLE 10
GENERAL
In
accordance with their constitutional requirements and in terms of this
Protocol, State Parties shall promote legislative, judicial, administrative and
other measures necessary for co-operation in the implementation and effective
achievement of the objectives of this Protocol.
ARTICLE 11
CO-OPERATION AND MUTUAL ASSISTANCE
1. Every
State Party undertakes to co-operate with and assist the other State Parties to
facilitate the movement of persons in the Community as a vehicle for achieving
economic integration.
2. State Parties agree to increase co-operation and mutual assistance, to the
extent that this is necessary to promote the overall objective set out in
Article 2, in the following fields, among others:
(a) formulating policies and awareness programmes on the implementation of this
Protocol;
(b) improving the mechanisms for enhancing co-operation in safeguarding
national and regional security by exchanging information among relevant
authorities especially on crime, security and intelligence;
(c) training competent authorities and educating communities regionally and
nationally on the Protocol;
(d) providing sufficient and adequately equipped ports of entry; and
(e) preventing illegal movement of persons into and within the Region.
ARTICLE 12
TRAVEL FACILITIES
1. State
Parties agree to make travel documents readily available to their citizens and
to co-operate in harmonising travel whether by air, land or water and to
increase and improve travel facilities especially between their mutual borders.
2. State Parties undertake to introduce:
(a) machine readable passports as soon as possible; and
(b) technologically sensitive passports and other related facilities as
circumstances allow.
ARTICLE 13
HARMONISATION OF CURRENT IMMIGRATION PRACTICES
State
Parties hereby agree to take steps to achieve each of the following from the
date of entry into force of this Protocol:
(a) 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 ninety (90) days per year for bona fide visits;
(b) standardisation of immigration forms used by travelling citizens of State
Parties;
(c) establishment of a separate SADC DESK at each major port of entry between
State Parties;
(d) 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 twenty-four hours every day;
(e) by way of bilateral agreements between the State Parties concerned,
issuance of a uniform and simple border permit/border pass to citizens of State
Parties who reside in the border areas of the territories of such State
Parties;
(f) abolition of visa requirements where they still exist, provided that where
visas are regarded as necessary, they shall be issued gratis at the port of
entry ; and
(g) co-operation with the assistance of the SADC Secretariat or any such
designated body of SADC and other State Parties in the provision of such
training for senior immigration, customs, police and security officials as may
be necessary to facilitate the movement of persons within SADC.
ARTICLE 14
ENTRY OF PERSONS
1. State
Parties agree to ensure that within a period to be stipulated in terms of
Article 4 of this Protocol a citizen of a State Party who wishes to enter the
territory of another State Party as a visitor shall be admitted without the
requirement of a visa.
2. Visa-free admission in terms of Paragraph 1 shall be on condition that:
(a) the visit is for a maximum period of ninety (90) days per year but without
prejudice to the visitor’s right to apply for the extension of such period if a
longer stay is deemed necessary subject to the laws of the State Party
concerned;
(b) the visitor possesses a valid travel document;
(c) the visitor has or produces evidence of sufficient means of support for the
duration of the visit;
(d) the visitor is not a prohibited person under the laws of the intended host
State; and
(e) entry is sought through an official port of entry.
3. A State Party may enter into a bilateral agreement with other State Parties
regarding the reciprocal handling of travellers without travel documents
arriving at ports of entry, and regarding procedures where citizens of a State
Party need to be admitted into the territory of another State Party in
situations of personal emergency.
4. The termination of any bilateral agreement entered into in accordance with
Paragraph 3 will remain the prerogative of a State Party.
ARTICLE 15
EXEMPTION FROM ARTICLE 14
1. A
State Party may, by notice in writing and for good reason, communicate to the
Chairperson of the Organ for an exemption from implementing Article 14.
2. An exemption obtained under this Article shall only allow the State Party to
which it relates to impose on a citizen of another State Party the requirement
of any entry visa on condition that:
(a) any such citizen who requires a visa will be able to apply for such a visa
at the entry border post;
(b) no fee shall be chargeable for such visa; and
(c) each exemption shall be valid for a period not longer than twelve months.
3. A Member State may be granted by the
4. All the conditions under Paragraph 2 of Article 14 shall apply to entry
under this Article.
ARTICLE 16
MEANING OF RESIDENCE
Residence
shall mean permission or authority to live in the territory of a State Party in
accordance with the legislative and administrative provisions of that State
Party.
ARTICLE 17
RESIDENCE PERMITS
1.
Permission to reside in the territory of another State Party shall be sought
through an application for a residence permit.
2. An application for a residence permit shall be made by the applicant to the
appropriate authorities of the relevant State Party in accordance with the laws
of that State Party.
3. Each State Party whose authorities are handling an application for a
residence permit shall ensure that the processing of such application is not
unduly delayed.
4. A residence permit issued pursuant to this Protocol shall be in accordance
with the laws of the State Party concerned.
5. A residence permit may be renewed in accordance with the national laws of
the State Party concerned.
ARTICLE 18
MEANING OF ESTABLISHMENT
Establishment
shall mean permission or authority granted by a State Party in terms of its
national laws, to a citizen of another State Party, for:
(a) exercise of economic activity and profession either as an employee or a
self-employed person;
(b) establishing and managing a profession, trade, business or calling.
ARTICLE 19
GRANTING OF ESTABLISHMENT
Each
State Party shall, in terms of its national laws, grant permission for the
establishment to citizens of other State Parties.
ARTICLE 20
RIGHTS AND OBLIGATIONS FOR THE CITIZENS OF STATE PARTIES GRANTED RESIDENCE OR
ESTABLISHMENT IN A HOST STATE
A
citizen of a State Party who acquires residence or establishment in the
territory of another State Party shall enjoy those rights and privileges as
determined by the laws of a host State and shall also fulfil his or her
obligations, accordingly.
ARTICLE 21
PROTECTION OF EXISTING RIGHTS
The
provisions of this Protocol shall not operate to the prejudice of the enjoyment
by any citizen of a State Party of the right of residence or establishment
acquired in another State Party before the entry into force of this Protocol.
ARTICLE 22
REASONS FOR EXPULSION
No person
who is a citizen of a State Party, or any member of the family of such person,
who has been permitted residence or establishment in the territory of another
State Party, may be expelled from the host State except where:
(a) reasons of national security, public order or public health of the host
State so dictate;
(b) an important essential condition of the issue or validity of such person’s
residence or establishment permit has ceased to exist or cannot be fulfilled or
complied with any longer;
(c) a citizen of another State Party acts in conflict with the purposes for which
such permit was issued or contravenes or fails to comply with any such
conditions subject to which it was issued; or
(d) the person refuses to comply with a lawful order of an appropriate public
health authority issued for the protection of public health in circumstances
where the consequences of such refusal have been explained.
ARTICLE 23
PROTECTION AGAINST EXPULSION OF INDIVIDUALS
1. An
order for the expulsion of a citizen of a State Party or any member of the
family of such citizen from the territory of another State Party shall only be
valid if the reasons thereof comply with this Protocol and are in accordance
with the laws and regulations of the host State.
2. The diplomatic or consular authorities of the State Party of which the
affected person is a citizen shall be informed by the host State of the
decision to expel the affected person and such person shall be afforded an
opportunity to consult with the said diplomatic or consular authorities.
ARTICLE 24
PROTECTION AGAINST INDISCRIMINATE EXPULSION
1. Any
person who has acquired residence or establishment in the territory of a State
Party shall not be subjected to collective or group indiscriminate expulsion.
2. For the avoidance of doubt, each case of expulsion from the territory of a
State Party shall be considered and determined on its own merits.
ARTICLE 25
PRINCIPLES GOVERNING EXPULSION
Each
State Party shall ensure that its laws, regulations or administrative
mechanisms for the expulsion of non-citizens shall, in relation to citizens of
another State Party, except where the provisions of Article 22(a) apply,
incorporate the following principles:
(a) the giving of adequate notice of expulsion;
(b) the affording to the affected persons of the opportunity to have recourse
to the appropriate domestic courts or tribunals of the host State;
(c) the suspension of any order of expulsion upon the notice of an appeal;
(d) the giving of reasonable time to affected persons to enable them to settle
their personal affairs including the management and disposal of their business
or professional practices;
(e) the expulsion of any person may not affect the residence or establishment
permit of any independent member of that person’s family; or
(f) where expulsion results in the repatriation of the affected person, the
costs or other expenses involved in the expulsion may be shared between the
State Party ordering the expulsion and the receiving State Party, as may be
agreed.
ARTICLE 26
TREATMENT OF GOODS
The treatment of goods accompanying a person who enters the Community from
a Third State shall be regulated by an agreement on trade facilitation which
may be entered into between SADC and a Third State.
ARTICLE 27
COMPLEMENTARY MEASURES
In order
to assist in the enforcement of the provisions of this Protocol, State Parties
shall put in place such immigration, police or other security co-operation
arrangements as may be deemed necessary.
ARTICLE 28
ASYLUM SEEKERS AND REFUGEES
1. State
Parties hereby reaffirm their commitment to their obligations under
international agreements to which they are parties, and which relate to
refugees.
2. The management of refugees in the Region shall be regulated by a specific
Memorandum of Understanding (MOU) between State Parties; and
3. State Parties reaffirm their commitment to co-operate with the Office of the
United Nations High Commission for Refugees (UNHCR), the International
Organization for Migration (IOM) and other International Organizations.
ARTICLE 29
INSTITUTIONS
The
institutions for the implementation of this Protocol shall, in addition to
those established by Article 9 of the Treaty, be:
(a) the Committee of Ministers responsible for Public Security ; and
(b) any other committee established by the Ministerial Committee of the Organ.
ARTICLE 30
SETTLEMENT OF DISPUTES
1. Any
dispute which may arise regarding the interpretation or application of this
Protocol shall ordinarily be resolved through negotiated agreement by the
Chairperson of the Organ or, failing which, by the
2. Any dispute which cannot be settled by agreement may be referred to the
Tribunal, whose decision shall be final and binding.
ARTICLE 31
RELATIONSHIP WITH OTHER AFRICAN REGIONAL ECONOMIC COMMUNITIES
Member
States shall take all steps necessary to ensure the co-operation, coordination
and harmonization of the activities of SADC and those of the regional economic
communities envisaged by Article 28 of the Treaty Establishing the African
Economic Community.
ARTICLE 32
AMENDMENT OF THE PROTOCOL
1. Any
State Party may submit to the Executive Secretary written proposals for the
amendment or review of this Protocol.
2. The Secretariat shall communicate any such proposal to the Committee of
Ministers and to each
3. After a period of ninety (90) days has elapsed, following the notification
to Member States of a proposed amendment, the amendment shall be submitted to
the Council for consideration.
4. The Organ shall make appropriate recommendations on any proposed amendment
to the
ARTICLE 33
REGULATIONS
The Committee of Ministers responsible for monitoring the
implementation of this Protocol shall make regulations for approval by the
Ministerial Committee of the Organ for the effective implementation of the
provisions of this Protocol.
ARTICLE 34
SIGNATURE
This
Protocol shall be signed by the duly authorized representatives of State
Parties.
ARTICLE 35
RATIFICATION
This
Protocol shall be ratified by any
ARTICLE 36
ENTRY INTO FORCE
This
Protocol shall enter into force thirty (30) days after the deposit of the
instruments of ratification by two-thirds of the Member States.
ARTICLE 37
ACCESSION
This
Protocol shall remain open for accession by any
ARTICLE 38
DEPOSITARY
The original texts of this Protocol shall be deposited with the Executive
Secretary who shall transmit certified copies to all the Member States.
The Executive Secretary shall register this Protocol with the Secretariat of
the United Nations Organisation and the Commission of the African Union.
IN WITNESS WHEREOF, WE, the Heads of State or Government, or Our duly authorized
Representatives, have signed this Protocol.
DONE at
DEMOCRATIC
UNITED