Executive Summary
The right to social security is a fundamental human right guaranteed to all persons. However, non-citizens are not always granted access to social security because of discriminatory provisions in national social security laws and the ‘nationality or territoriality principle’ of social security systems (which requires a claimant to be physically present in the country to be eligible for benefits). Such principles and provisions hinder the cross-border portability of social security benefits.
This is especially the case in the Southern African Development Community (SADC) region, where the portability of social security benefits is limited because of the absence of a region-wide social security coordination agreement.
Internationally, such agreements regulate issues such as equality of treatment of citizens and non-citizens, aggregation of insurance periods, maintenance of acquired rights and benefits, exportability of benefits to other countries, choice of law applicable, etc.
The SADC Treaty and its subsidiary instruments point to the need for such an instrument for the portability of social security benefits in the region. SADC’s institutional framework (SADC’s main organs and institutions) is also conducive to becoming an instrument for the portability of social security benefits in the region.
Comparative bilateral agreements that have been concluded in SADC in the area of social security portability, and in labour supply and free movement of persons, provide lessons for the region on adopting or concluding a multilateral instrument. They indicate some experience in SADC in the development of coordination agreements and an appreciation of the need for the portability of social security benefits. The experiences of comparative regional communities which have concluded or adopted social security coordination instruments (such as the East African Community, Economic Community of West African States, Caribbean Community and Common Market, Association of Southeast Asian Nations, Southern Common Market (Mercado Común del Sur) and the European Union) are also instructive. These communities have all been established to achieve the objectives of regional integration and cooperation. The conclusion of social security coordination instruments by these regions indicates the feasibility of SADC countries concluding or adopting a similar multilateral instrument.
SADC national social security systems are diverse in nature. This has led to the conclusion that it is difficult to develop baseline standards for the region and to adopt measures to coordinate the various countries’ social security systems. However, harmonisation of the various social security systems are not imperative to the conclusion of a multilateral social security agreement. All that may be required is a convergence of the social protection policies of the member states.
Therefore, diversity in national social security systems and schemes does not preclude the adoption of a regional instrument for social security coordination. SADC member states merely need to specify issues such as the social security risks or benefits (and scope of beneficiaries) to be covered; equality of treatment in the respective national systems; exportability of benefits; aggregation of insurance periods; determination of the legislation applicable; and institutional and administrative cooperation.
The task of coordinating social protection in the SADC region is further enhanced by the presence of some similar schemes in all the countries (such as employment injury and disease, or workers’ compensation schemes).
However, there are issues that must be considered in negotiating a social security coordination agreement. These include the exhaustive non-discrimination provisions in the SADC Treaty; discriminatory provisions in national legislation; the prevalence of private, occupational or supplementary schemes; and the lack of institutional and administrative cooperation between schemes.