Libya today remains politically and territorially divided between east and west. Tripoli and the north-west of the country are under the authority of the Government of National Unity of Prime Minister Abdul Hamid Dbeibah, supported by the High Council of State and the Presidential Council.
The east and large areas of central and southern Libya are nominally under the authority of the House of Representatives and a parallel government, the Government of National Stability. However, General Khalifa Haftar’s Libyan Arab Armed Forces represent the stirring force behind this unbalanced pendulum.
Libyans have not voted in presidential or parliamentary elections since 2014, when a contested vote led to divided rule and conflict. Libya’s 2011 interim constitution remains the only one in place. A draft constitution submitted by the elected Libyan Constitution Drafting Assembly in July 2017 has yet to be put to a national referendum.
Anti-apartheid support
Libya is known to have supported South Africa during its anti-apartheid struggle, offering military training within its borders. Formal diplomatic relations between the countries were established in 1996, and subsequently, diplomatic missions of both countries were opened in Tshwane and Tripoli. However, due to increasing security concerns since 2014, many countries – South Africa included – closed their embassies in Tripoli.
In 2015, the Institute for Security Studies reported rising diplomatic tensions between South Africa and Libya. The global divide and controversy surrounding the question of diplomatic and formal recognition of Tobruk vs Tripoli’s governments placed South Africa in a precarious and indecisive position.
This situation was exacerbated in June 2015 on the occasion of the visit of Aguila Saleh Issa, “head of state” of the Tobruk-based government (as recognised by the UN and the AU and the majority of countries at the time), which coincided with Jacob Zuma’s controversial welcoming of Sudanese President Omar al-Bashir to attend the African Union Summit in Johannesburg. Zuma, however, did not meet with Issa, a public rebuff made even more evident by the surrounding circumstances.
At the time, al-Bashir was a fugitive from the International Criminal Court (ICC) with two warrants of arrest against him. The South African executive, led by Zuma, refused to arrest him, blatantly failing its obligations in terms of the Rome Statute (since incorporated by Parliament into SA law) and openly defying an interim court order handed down by the Pretoria High Court.
This stance attracted fierce criticism from ICC member states as well as from the international community at large. The international diplomatic disaster and fallout resulted in the ANC’s threat to withdraw from the ICC rather than capitulate to its demand that South Africa file a formal reply with it, setting out its reasons for its decision not to arrest al-Bashir.
Prohibited persons
Beyond the disputed application of international conventions and the Rome Statute, section 29 of the South African Immigration Act defines the criteria by which a person is considered “prohibited”, or in simple terms, “persona non grata”, in the country. Prohibited persons “do not qualify for a port of entry visa, admission into the Republic, a visa or a permanent residence permit”.
The “prohibited persons” criteria include:
“Anyone against whom a warrant is outstanding or a conviction has been secured in the Republic or a foreign country in respect of genocide, terrorism, human smuggling, trafficking in persons, murder, torture, drug-related charges, money laundering or kidnapping” [s 29(1)(b)] and “a member of or adherent to an association or organisation advocating the practice of racial hatred or social violence; anyone who is or has been a member of or adherent to an organisation or association utilising crime or terrorism to pursue its ends” [s 29(1)(d) and (e)].
Prohibited persons should not be admitted into South Africa based on South African legislation if all checks and systems and the rule of law are applied consistently.
South Africa’s relations with Libya remain vaguely ineffective to date, particularly in relation to the de-escalation of the internal conflict and practicable solutions.
Shared experience
In February 2022, Candith Mashego-Dlamini, then Deputy Minister of International Relations and Cooperation, confirmed to the Parliamentary Monitoring Group South Africa’s commitment to remain that of assisting Libya and “share its experience in the constitution-building process and the democratic transformation of the state… by sharing… its experiences in transitional justice, transformation of the state, unification of forces and the development of the economy”.
In late July 2024, news spread of an Mpumalanga military camp, officially registered as Milites Dei Pty. The camp was found to be in violation of security regulations and made international headlines once it was determined that 95 Libyan nationals had been arrested on-site.
It was reported that these Libyan nationals (identified as both instructors and militants) are allegedly affiliated to the armed group known as the “Brigade 20/20” which forms part of General Haftar’s Libyan Arab Armed Forces, and had entered South Africa on study visas.
Since the arrests, the study visas have been found by the Department of Home Affairs (DHA) to have been “illegally issued” in Tunis. The South African Embassy in Tunis is the appointed Dirco foreign mission responsible for the processing and issuance of visas to South Africa for Libyan nationals.
Whether the mission was responsible for issuing these “study” visas under misrepresentation or due to a failed application of the rules of law in their processing is still to be determined.
A study visa can only be issued in terms of section 13 of the Immigration Act upon, among other things, proof of provisional enrolment with a registered “learning institution” [Immigration Regulations 12(1)(a)] and its duration is determined by the duration of the course of studies. The Regulations clearly define what is a “learning institution” and this is subject to registration with the relevant department of education (DOE).
Falls short
As much as Milites Dei’s website boasts full accreditation with both the Private Security Industry Regulatory Authority and the Safety and Security Sector Education and Training Authority, it appears that it falls short of being a registered learning institution as required in terms of the Immigration Act for the purposes of a study visa.
These study visas have since been voided and declared invalid by the DHA, rendering the militia group “illegal” and therefore subject to arrest and deportation in terms of South African immigration laws, as happened on Sunday 18 August.
Human Rights Watch found in March this year that “human rights violations and abuses by armed groups and militias remain pervasive [across Libya], as political elites and myriad quasi-authorities compete for legitimacy and control of territory”.
These violations included forcible evictions conducted by the 20/20 Brigade of more than 20,000 residents of Benghazi and the forced rescission of their property ownership without any compensation scheme.
Should these study visas have been issued by Dirco in Tunis to study at Milites Dei – not a learning institution registered with the DOE unless proven otherwise – and without any red flags being raised regarding potential grounds of prohibition, something was Shakespeareanly rotten in the State of Dirco in Tunisia and at South African borders no fewer than 95 times.
This serious security and border breach calls for an in-depth, apolitical investigation by multiple government agencies, and accountability to the public which should not end with the physical deportation of the Libyans on Sunday 18 August. DM
Daily Maverick
www.dailymaverick.co.za
