Why did you decide to study migrants’ social protection rights in the EAC?
In 2009, the EAC Member States signed the EAC Common Market (Free Movement of Persons) Regulations (Annex I).
Coming from Tanzania, one of the EAC Member States (others being Burundi, Kenya, Rwanda, South Sudan and Uganda), I am an academician and researcher in communication and social protection. I realised that labour migration is still not high in my region, the legal framework is lacking, and people are not moving much, even though some instruments allow them to do so. Preliminary research showed that the main obstacle was the fear of losing their social protection benefits, specifically their pensions, when they migrate to another Member State. That tickled my curiosity. I then asked myself, “Does the EAC social protection regime adequately protect the rights of migrant workers moving within the EAC Partner States?” This question guided my thesis to its completion. It gave rise to three subquestions:
- What international and regional coordination instruments/mechanisms are used to enable migrant workers to access social security/assistance and make their pension portable?
- Is there any legal migration framework within the EAC, and does the current social protection regime allow for accessibility to social assistance and portability of pension benefits of migrant workers within the EAC region?
- Are there any prospects for legal or policy reforms; if so, what are better options for reforms, and what can the EAC learn from global/regional experiences?
What was your methodological approach to those questions?
First, I applied a comparative legal analysis to determine the adequacy of the protection offered to migrant workers by measuring the current legal regime against the international legal standards. Second, to examine if the protection provided within international instruments is available in practice, I further analysed the extent to which national laws comply with the international minimum standards.
I also undertook a reflection on comparative regional best practices, especially those whose legal frameworks and practices offer relatively better protection to migrant workers. I chose that method because it provided an opportunity to inform the EAC legal framework and good practices, to improve legal reform and above all to extend such instruments to migrant workers. Likewise, I also widened my scope of analysis to a broader international context to understand how migrant workers are protected through the universal protection standards and assess how these norms have been developed and applied in other jurisdictions to measure their applicability in the EAC.
What are your major findings?
There are international instruments relevant to the protection of migrant workers within the ILO and the UN human rights system for the provision of social security and social assistance to the protection of migrant workers. The UN and the ILO have made significant steps to advance such protection of migrant workers’ rights. Importantly, through the principles of non-discrimination and equality of treatment. This, of course, is without watering the crucial role that “soft laws” (non-binding legal instruments) also do play, such as the Global Compact for Migration and its interplay with hard laws.
Furthermore, in safeguarding migrant workers’ social protection rights, the portability of benefits is of paramount importance. Portability enables a migrant worker to preserve, maintain, and transfer benefits that have been or are in the process of being acquired, independent of nationality and country of residence.
Likewise, the EAC Common Market Protocol stipulates that the partner states “observe the principle of non-discrimination of nationals of other partner states on grounds of nationality”. Nonetheless, the EAC legal framework subjects migrant workers to the national laws of the countries of employment. As such, in the absence of a region-wide social security coordination instrument, and given the diversity in partner states’ constitutions regarding social security and the lack of a comprehensive harmonisation of social security laws, migrant workers continue to risk losing their past contribution periods in different countries and therefore their pension benefits.
Consequently, the EAC and its Member States have much to learn from other regions and international actors on migrant workers’ social assistance and the portability of their pension benefits. To begin with, the most plausible and progressive option should be the adoption of international standards on social security entitlements into domestic law, based on principles of equality of treatment and non-discrimination. The region can benefit from other regions such as the EU, CARICOM or ECOWAS.
Moreover, it is crucial to ratify relevant migrant workers conventions. Through ratification, a state party is legally bound by the obligations under the convention. It should obey the rules that have been set out and comply with the monitoring mechanism that has been put in place. The UNCMW, ILO C97 and ILO C143 are of the utmost importance to ratify as they are conventions that are relevant to migrant workers. By ratifying these instruments, the region recognises that migrant workers are entitled to the same fundamental human rights as the nationals. In addition, the region acknowledges the vulnerability of migrant workers in different circumstances.
Lastly, the laws inadvertently create opportunities for irregular migration by allowing and protecting highly skilled migrants alone. Consequently, medium- and low-skilled migrant workers become irregular, and as a result, they are exposed to exploitation, violation and abuse. I therefore recommend that the social protection instrument designed to protect migrant workers should use the rights-based approach. To quote Martin Ruhs and Ha-Joon Chang, labour migration “involves the cross-border movement of people, who lay claim to certain rights vis-à-vis the host state and their fellow residents”. A rights-based approach acknowledges that migrant workers should enjoy all human rights as nationals by virtue of their essential humanity. Therefore, the EAC social protection regime should, first, incorporate the specific protection needs of migrant workers, i.e. access to social assistance, and second, ensure that their pension benefits are portable so that they do not fall into poverty once they retire to a country different from that of employment.
Moving beyond the case of the EAC, what could be the social and political implications of your thesis?
My thesis is topical and came at the right time when the international communities are devising various tools and legal instruments to protect migrant workers’ social protection rights. First, from a social point of view, other researchers may use these findings to advance research around the social protection of migrant workers and make recommendations. Second, from a political point of view, the findings may help policymakers shed some light on the issue in question and serve as an additional contribution to the policy and legal framework designs and reforms.
What are you doing in your post-PhD life?
I have been teaching (and continue doing so) at the Institute of Finance Management (IFM) in Dar es Salaam, Tanzania, in the field of communication skills and social protection (in general), and now also in social protection and migration law. In addition, I will concentrate more on disseminating the results of my study through research papers and possibly a book.
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Michael Noel Sam defended his PhD thesis in International Law in December 2020. Professor Andrew Clapham presided the committee, which included Professor Vincent Chetail, Thesis Director, and Ms Kristina Touzenis, Managing Director, KP&K Impact Solutions, Geneva.
Citation of the PhD thesis:
Sam, Michael Noel. “Migrants’ Social Protection Rights within the East African Community (EAC): A Reflection on Social Assistance and Portability of Pension Benefits Instruments.” PhD thesis, Graduate Institute of International and Development Studies, Geneva, 2021.
For access, please contact Dr Sam.
Good to know: members of the Graduate Institute can download the PhD thesis from this page of the Graduate Institute’s repository.
Banner image: excerpt from a picture by Andrey_Popov/Shutterstock.com.
Interview by Nathalie Tanner, Research Office.