OSBP Source Book 1st Edition, September 2011

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2 OSBP Source Book 1 st Edition, September 2011

3 PREFACE A number of One Stop Border Posts (OSBPs) have been independently designed and implemented so far in different countries and sub-regions in Africa. With over 50 OSBPs planned in East, West and Southern Africa, it is important to gather the experiences and lessons learned in Sub Saharan Africa. This Source Book is, therefore, designed to provide reliable information for establishing OSBPs. It reviews what has been learned about implementing and operating OSBPs in Africa up to early 2011 and applies some of the latest thinking about border management to OSBP operations. The Source Book has been developed so that implementers facing challenges can readily locate useful information and lessons learned to apply to their decision-making process. It is premature to try to write an Operations Manual at this time. As more experience is gained and additional OSBPs are developed, an operations manual to serve as a model that can be adapted to new OSBPs will be very useful. This Source Book is, therefore, intended as an evolving document to be updated periodically through stakeholder involvement and consultation until the right time to develop an OSBP Manual. This book has been prepared with a collaborative effort involving a full range of border agencies in EAC Partner States, Regional Economic Communities (EAC, COMESA, SADC, UEMOA and ECOWAS), and International Development Partners (TMEA, USAID/COMPETE, IOM, World Bank, and African Development Bank) that are active in OSBP implementation. Without their advice and expertise, this book could not have been realized. Specially, a significant contribution has been made by IOM, which has the largest coverage of migration management and is involved in development of ongoing OSBPs. Comments from these sources have been incorporated into the current draft. Input from the discussion at the First Joint Sensitization Workshop has also been incorporated into the document. Further inputs are anticipated from similar sensitization workshops intended to be held in various other regional economic communities in the near future. The Transport Sector Platform of Infrastructure Consortium for Africa (ICA), in recognition of the urgent need for developing the Source Book, has initiated this project. Japan International Cooperation Agency (JICA), as a lead development partner of this Sector Platform, is financing the project in close cooperation with the East African Community (EAC).

4 EXECUTIVE SUMMARY Background and Objectives One Stop Border Posts (OSBPs) are being introduced in many parts of Africa to address one of the main delaying factors on major transport corridors. They combine two stops into one and consolidate functions in a shared work space for exiting one country and entering another thus reducing travel time for passenger and freight vehicles. OSBPs enable border agencies from neighboring countries to perform joint controls that can result in benefits to security, trade facilitation and human mobility. OSBPs facilitate mobility of persons and, by reducing time loss, can also reduce the cost of transport for shippers and goods to consumers accruing economic benefits across the national economic spectrum. In establishing OSBPs, it is important to understand the rationale of borders and the mandate of various agencies at the border posts. The establishment of border posts is to protect national security and autonomy. Border posts today are complex entities that often involve from 5-10 different agencies each performing specific controls related to movement of persons, vehicles and cargo from one country to another. Controls are designed to collect revenue, stop illegal trade, protect public health and facilitate economic activity. Some agencies issue permits/licenses at the borders or check permits submitted with customs declarations. It is important to give full consideration to the operational and legal issues and infrastructure requirements. Operational issues relate to the simplification/harmonization of procedures, sequencing of controls and the standard operating procedures for joint processes and coordination amongst the various border agencies. Information Technology is an important part of OSBPs as it allows sharing of data, coordination amongst agencies, improved risk management and accelerated procedures. Legal issues are important to create an enabling legal environment that allows agencies to operate extraterritorially and sets out agreement between the countries on basic operating principles. Infrastructure changes will be necessary as the establishment of an OSBP implies having to place certain offices and structures in proximity to each other to allow for sharing and joint controls. Without simultaneously improving procedures, taking advantage of information technologies and developing an enabling legal framework, constructing an OSBP is unlikely to achieve its potential benefits. Therefore, each of these aspects must be developed to achieve the close cooperation between countries that is required to operate an effective OSBP. Part 1: OSBP Concept The purpose of introducing the OSBP is to achieve greater trade facilitation by combining border clearance activities in a single location so as to benefit from economies of scale, reduce transit delays, simplify clearance procedures, increase cooperation and coordination of controls, foster data

5 and intelligence sharing and to improve control over fraud or risk management. Furthermore, the OSBP helps in optimum utilisation of available resources like scanning facilities and office accommodation. Revenue inflows are enhanced through effective sharing of intelligence and joint risk management initiatives. Previous studies highlight that border facilitation and management frameworks such as the OSBP have the ability to facilitate trade growth and human mobility thereby significantly reducing transport and trade facilitation related costs which are very high in Africa. Selection of the OSBP model depends on the topography of the border area, the condition of the existing border facilities, the willingness of countries to share facilities, traffic volumes and the degree of political integration. All three are in use in Africa. Straddle Border Post This type is on the border enabling officers to work on national territory in one common facility. Single Country Border Post This type is located solely in one country. It offers the efficiency of a single facility, but requires extraterritorial jurisdiction. Juxtaposed Border Post This is the most commonly used type of OSBP in Eastern and Southern Africa. It requires a dedicated facility in each country, each serving one direction of traffic. Some of the agencies at the border are: Customs which is important for collection of revenue and trade facilitation. Immigration which regulates the movement of persons and maintains human security. Police and INTERPOL are important for border security. Other agencies include Bureau of Standards and other relevant ministries like Agriculture, Health, Livestock and Forestry that regulate issues related to their ministries. Transport also enforces vehicle standards. The decision of which agencies should be at the borders needs to be taken early in the OSBP development process. Any agency that does most of its testing inland, should be able to have another agency do their border verifications. Coordination among the agencies that need to be at the border is critical to an effective OSBP. A variety of benefits in time, cost and reliability of transport corridors can result from OSBP implementation. Some of the potential benefits are: For border agencies - increased coordination, reduction of cost, better resource utilisation, speedier processing, efficient systems, improved economic security through better revenue collection methods, improved human security and mobility. For traders and the community - speedier clearances for trade or mobility, reduction in border delays, simplified procedures, less corruption and higher economic benefits derived from the above (savings in cost of trade, reduction in operating costs, reduction in cost of goods). At the same time, OSBPs may require additional staff from the border control agencies and certainly require a higher level of coordination than required in a national border post. Vehicles are valuable

6 assets. The logistics cost of reduced annual utilization of vehicles and of large inventories have a significant impact on growth in trade and manufacturing. There has been a great deal of literature on the problems of land locked countries and how to improve border operations. The Project Team has reviewed much of this literature and some of the findings on international best practices on border operations are presented in Part 1 of the Source Book. In the 2000s, the emphasis was on customs modernization. It has now shifted to overall border management, effective communication between agencies at the border and their headquarters and coordination among the various agencies at the border INTEGRATED BORDER MANAGEMENT. Often delays are attributed to customs when in fact a major factor is the proliferation of agencies at the border and insufficient coordination of their work. The emphasis is on a more effective alignment of necessary border controls and trade facilitation as well as greater use of ICT tools available to border control agencies. Part 2: Critical Issues in the Implementation of OSBPs Base line survey. The OSBP Concept is simple, but the implementation of an OSBP is not. To plan for the facilities and operations, a traffic and baseline survey is a necessary prerequisite. It will establish the type and volume of traffic on the route to guide planning of procedures and infrastructure. It will provide agency mandates and staffing numbers to guide planning of the operational transition to an OSBP, office and equipment requirements and staff housing. It will also provide the baseline data for setting targets and monitoring performance. Organizational Structure for Implementation. There are four core elements involved in implementation of an OSBP: legal framework, procedures, information and communication technologies (ICT) and physical facilities. All aspects must be developed at the same time and the findings integrated into an effective operation. Because of the complexity of the task, a lead agency should be selected to lead the process and introduce the legislation into the legal process. At the same time, there should be a steering committee where the policy level officers of the various border agencies meet to discuss the policy issues and provide guidance to the technical level staff that are formed into task teams. To ensure that the project remains on task, there should be a project manager and a time-bound work plan. Legal Framework. The OSBP concept requires border control officers to execute border controls within the common control zone whether in their own country or the adjoining country. There is need for a legal framework which provides for border agencies to apply their laws within the territory of an adjoining state. This is known as extra-territorial application of national laws. The other adjoining state also needs a reinforcing legal framework that allows the hosting of the agencies of another state with powers to apply their own national laws within the respective jurisdiction of that adjoining state. This is known as hosting arrangements. Therefore, the legal framework for OSBPs is underpinned by the need to create extra-territorial application of national laws and hosting arrangements in the national law of both countries involved in an OSBP.

7 There must also be a Bilateral or Regional Agreement (MOU, MOA, Protocol, Treaty, etc.) which sets forth the agreement of all OSBP states regarding the operation of the OSBP. These include: Determination of procedures and sequencing of controls and procedures. Powers of officials Determination of joint processes and procedures Issue relating to crimes committed in CCZ and immunity of officials Extra territorial application of laws Cooperation and joint operations The following steps are necessary in the establishment of a legal framework: An assessment of the existing legal framework to see if it supports extra-territoriality or any hosting arrangements. Determination of the appropriate legal instruments to extend the principles of extraterritoriality and hosting arrangements. In this regard, States could opt for enactment of legislative instruments at bilateral level or at multi-lateral or regional community level. At bilateral level there is need for an agreement (can be an MOU, MOA, Protocol, Treaty) between the States involved supplemented by an Act at domestic level. At multi-lateral or regional level it can also be a Protocol, MOU, Treaty, Constitution, or similar agreement also supplemented by an Act at domestic or regional level. OSBP in the Southern African Development Community (SADC) region have been on a bilateral basis whereas in the East African Community (EAC), Union Economique et Monetaire Ouest Africaine (UEMOA) 1 and the Economic Community of West African States (ECOWAS) there seems to be a preference towards regional agreements. There are certain essential elements that should be encompassed in the legal framework for an OSBP. The legal framework may also be supplemented by Standard Operating Procedures (SOPs) to facilitate other operational issues that may be left out of the main legislative instruments. Processes for the enactment of legislation differ in each jurisdiction but there are various considerations that have to be taken into account. These include involvement of all stakeholders including private sector, legal officials from the ministries of justice and possibly a third party facilitator for the negotiation of a bilateral or multi lateral agreement. It is important throughout the enactment process that all stakeholders have an awareness of the legal processes and the concepts therein. Various other legal instruments may be necessary in the operationalization of the OSBP. They can potentially cover areas with respect to, but not limited to, IT connectivity, information sharing, agreement on utilities sharing and management of the OSBP. Procedures. An OSBP calls for simplification and harmonization of procedures. There are various ways of simplification and harmonisation of procedures and they include: use of international standards, modernisation and use of integrated border management tools like systematic risk management, authorised economic operators and single window. Some of the issues that should be addressed during implementation are: 1 West African Monetary Union (WAMU) in English.

8 The need to eliminate outdated systems that are outdated and cumbersome. Simplification and harmonisation of procedures in line with international and regional instruments like World Customs Organization (WCO) Kyoto Convention, WCO Data Model, regional instruments like the Single Administrative Document (SAD) in the Southern African Customs Union (SACU) 2 and SADC region and ISRT or TRIE 3 in ECOWAS/UEMOA region, and the adoption of transit or development transport corridors with corridor management institutions. Border management tools include: Authorized Economic Operators program, which provides accreditation to traders and operators with a good compliance record and expedites their movement across borders. Risk management applications. Greater use of risk management tools allows for greater coordination amongst agencies and effective controls which result in a balanced environment for security and trade/mobility. Other border management tools that can be used in the OSBP to facilitate trade and human mobility include the Single Window (SW), which is a single point of contact for submission and processing of documents, Single Stop Inspection, which allows for joint inspections by all agencies to avoid dual inspections thereby resulting in speedier processing and reduced damage to cargo. Coordination amongst border agencies, including sharing of information and resources results in optimal use of resources and can also lead to speedier processing of documents. As part of an OSBP, agencies are encouraged to undertake joint controls, procedures and inspections to expedite the movement of traffic and pedestrians. Agencies will need to agree on the procedures for joint controls and joint inspections. Physical Infrastructure. The decision whether to modify the existing building or to construct a new one will depend on the condition of the current building(s), its suitability as an OSBP and the projected traffic growth. The establishment of an OSBP will usually demand an upgrade or construction of some building(s). The following issues need to be considered with respect to physical infrastructure for an OSBP. Determine optimal traffic flow through the facilities based on types of handling required and plan for their speedy flow (Consider manoeuvrability and ease of access to the OSBP). Coordinated traffic flow with different lanes for faster traffic, cargo, pedestrians and those carrying hazardous substances. Location of buildings such as inspection facilities should be in line with the sequencing of procedures to avoid unnecessary delays. Facilities should be fenced, and should provide adequate parking for both passenger and cargo travel. Office buildings and counters should be adequate, and in line with the sequencing of procedures. 2 Southern African Customs Union (Botswana, Lesotho, Namibia, South Africa, Swaziland) 3 Interstate Road Transit of Goods Agreement (or TRIE in French).

9 The financing of the construction of the physical facilities is ordinarily borne by the respective governments. There are various ways in which governments may seek finance to fund such construction. These include: Foreign or domestic investments. Public Private Partnerships (PPPs). This is when government collaborates with the private sector for the delivery of a particular service subject to an agreement which may be a concession, lease or similar condition. The Kasumbalesa and Cinkansé border posts are examples of public private partnerships for the management of border posts through concessions. Foreign aid or aid for trade initiatives. The World Bank, the African Development Bank, TMEA and JICA provide infrastructure related finance for construction of initiatives, such as the OSBPs. ICT Infrastructure: Interconnectivity infrastructure for the OSBP is a precondition to efficiency. There is a great deal of duplicative entering of data by the various border control agencies. OSBPs should have a border management information system, so that basic information entered can be shared among all agencies. Next it should facilitate and manage the flow of documentation and interventions involved in the clearance process. It allows greater coordination of agencies at the national level to coordinate their controls. Many African countries are beginning to adapt the SW concept to their operations. In an SW, all trade documentation is entered to a share data base and processed according to various formulae in the SW. Effective implementation of ICT programs requires a clear agreement of business outcomes and supportive ICT legal and policy frameworks. The business case must be clearly articulated. The design and implementation of any new ICT program requires competent and skilled support resources. For any successful implementation of an OSBP there is need to provide human resource training and capacity building as agencies will need to appropriately adapt to many functional and operational changes. The system developed needs interoperability to enable information and intelligence sharing among border agencies. Part 3: Case Studies of OSBP Introduction A great deal can be learned from the experiences of others in establishing OSBPs. Part 3 describes several case studies in the implementation of OSBPs in Africa. The case studies presented in Part 3 showcase how the above processes have been handled and made operational at the various border posts. Southern Africa: It describes the experience at Chirundu on the border between Zimbabwe and Zambia on the North South Corridor which stretches between the port of Durban and the industrial heartland of South Africa in Gauteng Province, through Zimbabwe and Zambia to the Democratic Republic of Congo (DRC). Chirundu is the first operational OSBP in Southern Africa and there are many lessons to be learned in developments there. West Africa. A case study of the approach being used in West Africa is highlighted and the role of the Regional Economic Communities (RECs), UEMOA and ECOWAS. Cinkansé is on the border between Togo and Burkina Faso. The approach being piloted there is of OSBPs built

10 wholly in one of the border states with a control zone designated as international/ Community territory (UEMOA) and operated by a concessionaire. The second case study is the OSBPs being constructed by ECOWAS. The status and lessons learned from both are discussed. East Africa: A case study of East Africa reviews the regional approach that is leading to greater harmonization. The development of a legal structure for introducing OSBPs throughout the community based on a single legal framework is described. The case study presented is that of Malaba on the border between Kenya and Uganda. Many of the major border crossings in East Africa are in various stages of implementing OSBPs. A Note to the User The Source Book is intended to be practical and user friendly. The topical design allows persons involved in OSBP implementation to find the information they need easily. As a result of this requirement, certain information in the book is deliberately repeated in various sections where such may be relevant in order to make each section fully comprehensive and avoid continuous crossreferencing between sections. It is intended as a user tool where users can make reference to specific sections with some degree of completeness without the need to read the whole Source Book. At the same time, it seeks to pull together the lessons learned up to this time, to enable OSBP implementers to learn from the experience of others and avoid some of the pitfalls they encountered.

11 Table of Contents PREFACE EXECUTIVE SUMMARY ACRONYMS AND ABBREVIATIONS PART 1: OSBP CONCEPT OSBP CONCEPT AND APPLICATIONS Purpose of Introducing OSBPs Definition and Types of OSBPs Definition Distinctions between a traditional border post and an OSBP OSBP models RATIONALE AND PROJECTED BENEFITS Rationale for OSBP Operations The Relationship between Border Controls, Facilitation and Trade Growth Potential Benefits of OSBPs in Time, Cost and Reliability Presenting the Case for OSBPs to Decision-Makers and Obtaining Buy-in OVERVIEW OF AGENCIES OPERATING AT BORDERS The Roles and Responsibilities of the Different Agencies Present at Most Borders The Usual Point of Intervention for Different Agencies The Means Used by Different Agencies for Effecting Controls Potential Opportunities for Coordination of Interventions and Information Sharing among the Agencies at the Border REVIEW OF CURRENT TRENDS IN BORDER MANAGEMENT AND INTERNATIONAL BEST PRACTICE Current Approaches to Border Management Emergence of new border management institutional arrangements Improved coordination among agencies International Best Practice and Lessons Learned in Africa Integrated border management (IBM) Single window (SW) Electronic cargo tracking systems (ECTS) PART 2: CRITICAL ISSUES FOR THE IMPLEMENTATION OF OSBPs TRAFFIC AND OPERATIONS BASELINE SURVEY Survey Requirements and Use Types of Data to be Collected The type and volume of traffic on the route, peak times Types of commodities and special clearance requirements Current time for each step in the processing The agencies active at the border, their interventions and how they coincide or precede other agency interventions Joint processing methods that are being done or could be done in the context of an OSBP... 21

12 5.2.6 Current staffing by all agencies and changes in operational hours as well as in staff numbers for the OSBP, their implications such as additional offices, houses, equipment Setting time targets for border improvements INSTITUTIONAL STRUCTURE FOR IMPLEMENTATION AND SAMPLE ACTION PLAN Key Aspects of OSBP Implementation Agencies and Associations that Need to be Involved in Decision-Making and Implementation Types of Working Groups and Committees as well as their Functions and Operations Lead ministry Policy and oversight bodies Technical task teams Work Plan LEGAL FRAMEWORK FOR OSBP The Legal Concept OSBP concept in practice Underlying legal principles Analysis of Primary Border Legislation Identification of existing relevant border control legislation Perusal of legislation for provisions entrenching or limiting the application of OSBP underlying legal principles Specific recommendations to enhance or address identified limitations Determination of Appropriate Legal Instrument Bilateral arrangements Multilateral arrangements Essential elements of any OSBP legal framework Appropriate Process for Enactment of the Legal Instruments in Each Jurisdiction Negotiation and approval process for bilateral agreements Time lines and closure (continuity, momentum and continuous consultation with public and private stakeholders) Enactment process of a national OSBP act Negotiation and approval process for multilateral arrangements Legal issues relevant to OSBP Legalizing various schedules Additional agreements that might be necessary Language considerations BORDER PROCEDURES--SIMPLIFICATION AND HARMONIZATION Review of Current Document Requirements and Procedures Elimination of outdated systems Simplification and modernization Harmonization of efforts within RECs and corridors Adoption of a corridor or community approach Expediting Handling in OSBPs Simultaneous and joint processes Means of fast tracking compliant clients Incentives for compliance Task Team Review and Encouragement of Greater Use of Border Management Tools Authorized economic operator (AEO) Risk management applications for customs and other border agencies Pre-clearance and pre-payment Other Border Management Tools Supply chain management Emergence of new border management institutional arrangements Single administrative document (SAD) Customs voluntary disclosure program (VDP)... 54

13 8.5 Determine Procedures for OSBP Operations Coordination among National Agencies and between Countries Sharing Resources Use of scanners/non-intrusive cargo inspection Use of weighbridges Experience with sharing resources Procedures Training Public Awareness Role of Clearing Agents and Transporters JOINT INSPECTION AND OSBP OPERATIONS Determination of Shipments for Joint Inspection Use of Risk Management in Joint Inspections Notification of Other Agencies for Joint Inspection Coordination of Inspection Order of Resulting Actions Exit to Entry Potential Benefits for Joint Inspections in Time and Effectiveness PHYSICAL FACILITIES AND TRAFFIC FLOW Decision Whether to Modify Existing Structures or Build New Structures Determine Optimal Traffic Flow through the Facilities Based on Types of Handling Required Types of cargo Processing requirements Fencing Parking configuration Counter and Public Hall Requirements Office Requirement Scanning and Inspections Facilities Utility Sharing Staff Housing Public Facilities Commercial Facilities in the OSBP Financing of Physical Structures and Procurement Public-Private Partnerships (PPPs) in Border Management ICT APPLICATIONS Critical Success Factors for ICT Programs Assessment of Existing Systems and Needs Border Connectivity to National Headquarters CCZ Connectivity Sharing of Information among Agencies to Expedite Processing Development of a System of Agency Shipment Alerts and Scheduling Tools Enhancement of Immigration Computerization Community Systems SW Applications Implementation of ECTS Regional Bond Acquittal Systems Liability for acquittal documents Regional bonds and acquittals ICT Training, Maintenance and Sustainability ICT Benefits COMMON CONTROL ZONE MANAGEMENT AND OPERATIONS Management and Maintenance of the CCZ... 85

14 Bilateral committee system Private management and maintenance contract Border authority Regional body Lines of Authority in the CCZ Identification of Officers and Facilitation Agents Transfer of Money Collected in the CCZ Treatment of Offences Facilities for Facilitation Agents Operations of Facilitation Agents in CCZ Shared Use of Facilities TOOLS FOR IMPLEMENTATION PART 3: CASE STUDIES OF OSBP ESTABLISHMENT CASE STUDY 1: SOUTHERN AFRICAN EXPERIENCES AT CHIRUNDU CASE STUDY 2: WEST AFRICAN EXPERIENCES AT CINKANSÉ AND THREE ECOWAS BORDERS CASE STUDY 3: OSBP ESTABLISHMENT IN THE EAST AFRICAN COMMUNITY AND MALABA APPENDICES Appendix 1: References... A-1 Appendix 2: EAC One Stop Border Post Bill... A-2 Appendix 3: Zimbabwe One Stop Border Post Law... A-3 Appendix 4: Example of Import and Export Procedures, Uganda as of January A-4 Appendix 5: Approved One Stop Border Post Procedures for Chirundu... A-5 Appendix 6: Reglement N 15/2009/CM/UEMOA... A-6 LIST OF TABLES Table 3.1: Possible Agencies Present at Borders... 9 Table 11.1: Sample ICT Needs Assessment for OSBP Table 13.1: Matrix for OSBP Implementation in the East African Community Table 13.2: Donor Coordination Matrix Table CS3.1: Summary of OSBP Timeline at Malaba LIST OF FIGURES Figure 1.1: Traditional Border Post... 2 Figure 1.2: Straddle OSBP Facility... 3 Figure 1.3: Common One Country Facility... 3 Figure 1.4: Juxtaposed Facilities... 4 Figure 3.1: Side by Side Procedures Figure 3.2: Joint Procedures Figure 4.1: Domestic Integrated Border Management Figure 6.1: Hard and Soft Components of an OSBP project Figure 6.2: Generic Timeline for OSBP Establishment Figure 6.3: Implementation Timeline Example Figure 8.1: Facilitation Control Matrix Figure 11.1: Distribution of ASYCUDA in Africa Figure CS1.1: Location of Chirundu

15 ACRONYMS AND ABBREVIATIONS AEO AfDB AG ALISA ASYCUDA AU BMIS BOE BOT CA CCS CCZ CEPS COMESA COMPETE COO DfID DRC EAC EATTFP ECOWAS ECTS EDF FESARTA GCNet GPS HGV IBM ICA ICT ID IDPs INTERPOL IOM ITC JBP JICA LPI MOA MOU NFTLP OBAs OECD OGA Authorised Economic Operator African Development Bank Attorney General ECOWAS Customs Interconnection Project Automated System for Customs Data African Union Border Management Information System Bill of Entry Build Operate Transfer Customs Agent Cargo Control System Common Control Zone Customs, Excise and Preventive Service (Ghana) Common Market for Eastern and Southern Africa Competitiveness and Trade Expansion Program Country of Origin Department for International Development Democratic Republic of Congo East African Community East Africa Transport and Trade Facilitation Program Economic Community of West African States Electronic Cargo Tracking System European Development Fund Federation of East and Southern African Road Transport Associations Ghanaian Electronic Transit System Global Positioning System Heavy Goods Vehicle International Border Management Infrastructure Consortium for Africa Information and Communication Technology Identification International Development Partners International Criminal Police Organization International Organization for Migration International Trade Center Joint Border Post Japan International Cooperation Agency Logistics Performance Index Memorandum of Agreement Memorandum of Understanding National Freight Transport and Logistics Program Other Border Agencies Organization for Economic Cooperation and Development Other Government Agencies

16 OSBP PBA PIRS PISCES PPPs RADDEx RCTG REC RFID RKC RMS RRT RTMS SACU SAD SADC SCOO SIMBA SOPs SPS SSI SW TIN TIP TiP TMEA TMSA UEMOA UN UNCTAD USAID VAT VDP VSAT WB WCO WTO One Stop Border Post Passenger Baggage Assessment Personal Identification and Registration System Personal Identification Secure Comparison and Evaluation System Public Private Partnerships Revenue Administration Digital Data Exchange Regional Customs Transit Guarantee Regional Economic Community Radio-frequency Identification Revised Kyoto Convention Risk Management System Rapid Response Team Real Time Monitoring System Southern African Customs Union Single Administrative Document Southern African Development Community Simplified Certificate of Origin Customs Processing Software used in Kenya Standards Operating Procedures Sanitary and Phyto Sanitary Scanning Systems International Single Window Taxpayer Identification Number Terrorist Interdiction Program Trafficking in Persons Trademark East Africa Trademark Southern Africa Union Economique et Monetaire Ouest Africaine United Nations United National Conference for Trade and Development The United States Agency on Aid and Development Value Added Tax Voluntary Disclosure Program Very Small Aperture Terminal World Bank World Customs Organization World Trade Organization

17 PART 1: OSBP CONCEPT 1. OSBP CONCEPT AND APPLICATIONS 1.1 Purpose of Introducing OSBP Investments in roads alone will not bring the expected trade and mobility benefits without attention to the border delays and the transit procedures that govern use of the roads. Border posts in many parts of Africa are old structures located in remote areas making staffing difficult. They are often separate, rudimentary buildings put up by each agency with little coordination among the national agencies exercising controls at a border. Signage to help the traveller or freight operator find the necessary procedures is often non-existent. New facilities must allow for streamlining the flow of vehicles through the facility and locating procedures in a logical flow that expedites the clearance of individuals, vehicles and cargo. Buildings need not necessarily be large, but they must be designed for efficiency and convenience of travellers, transporters and traders with clear responsibility assigned for facility maintenance, management and coordination of the clearance process. Achieving faster flow requires a fresh review of procedures to determine which are outmoded and should be dropped and which can be done faster through automation and systems that are carried out simultaneously rather than consecutively. Separate buildings to facilitate different types of traffic, e.g. commercial cargo and pedestrians, enhances trade facilitation and allows faster clearance of travellers. Natural barriers, such as rivers, should be critically considered by the planners when they design the OSBP approach to implement. Some border posts may need relocation where the terrain and/or space does not allow redesign or expansion, e.g. Oshikango/Santa Clara. The purpose of introducing the OSBP is to achieve greater trade facilitation by combining border clearance activities in a single location to benefit from economies of scale, to shorten the time of border crossing, to simplify clearance procedures, to increase cooperation and coordination of controls, to foster data and intelligence sharing and to improve control over fraud. Furthermore, the OSBP helps in optimum utilisation of available resources like scanning facilities and office accommodation. Revenue inflows are enhanced through effective sharing of intelligence and joint risk management initiatives. The trend is that more government departments are using the border point for enforcement of controls. The need to place a control at the border must be carefully reviewed. If the control can be exercised elsewhere, it should be. For those agencies that need to be at the border, there should be careful coordination of activities to minimize confusion and delays. Where possible joint inspections should be done and all payments made through a single cashier collecting on behalf of all border agencies. The overall procedures for an OSBP, incorporating aspects of customs modernization and concepts of IBM, plays a critical support role in the trade facilitation, investment and on job generation. It is recommended that OSBPs are considered first on major strategic corridors serving the region. The emphasis is on commercial traffic, but major passenger routes benefit almost immediately from OSBP introduction and segregating commercial and passenger traffic. They should also be considered. The crossing at Ressano-Garcia/Komatipoort between South Africa and Mozambique is a good example where substantial passenger delays occur, especially during peak seasons. While FINAL OSBP SOURCE BOOK Page 1

18 specific freight volumes could be set around HGV in each direction, this may ignore routes where major highway investments are likely to divert and generate traffic making the inclusion of new border posts, designed for OSBP operations, appropriate. An example is Moyale where a rough gravel road is being paved to bitumen, seven-meter standard and is expected to lead to diversion of traffic from the sea route and enable a large increase in traffic between East Africa and the Horn of Africa. Therefore, border post construction and implementation assistance are incorporated into the project. Delays of more than one day should trigger a need for interventions. Depending on the risk assessment, border times of 30 minutes to one day should be achievable for clearances done at the border. 1.2 Definition and Types of OSBP Definition An OSBP is a border post that combines two stops for national border control processing into one and consolidates border control functions in a shared space for exiting one country and entering another. It uses simplified procedures and joint processing wherever appropriate Distinctions between a traditional border post and an OSBP In a traditional border operation two sets of activities are performed separately at each border post: procedures required to exit a country and procedures required to enter a country. Figure 1.1: Traditional Border Post In a traditional border post, exit procedures are carried out on one side of the border for persons, vehicles and goods leaving the country. Entry procedures are carried out on the other side for persons, vehicles and goods arriving in the country. Activities generally involve immigration, customs and other border control functions depending on the size and characteristics of the border and the national laws that govern border controls. For the user, the traditional border involves going through a variety of paperwork, procedures and payments and then driving a few hundred meters and repeating the process on the other side. FINAL OSBP SOURCE BOOK Page 2

19 1.2.3 OSBP models Figure 1.2: Straddle OSBP Facility Straddle Facility a single building is constructed on the border so that officers within the building are actually operating on their own sovereign territory. This model can be used when a new facility is being built where the land is relatively flat. The advantage is direct access to each national hinterland and the fact that most controls are exercised on national soil with ready access to national police and the courts. Nevertheless, joint inspections and other joint activities still require a legal framework authorizing officers to execute controls in the CCZ within the adjoining state. A straddle facility has recently been built at Nemba/Gasenyi on the Rwanda/Burundi border in East Africa as part of a road project. Full operating procedures are still being evolved there. Figure 1.3: Common One Country Facility Common One Country Facility a single shared facility is constructed in one of the border countries to house officers from both countries for carrying out border controls. This also has the advantage of being a single facility, but requires sufficient trust and cooperation between the countries to build and operate in only one of the countries. In this model, one country will need the authority to carry out controls in the host country and the host country will need a legal framework which allows foreign officers to work on their soil. The Uganda/ Kenya border at Malaba uses this type of facility for train clearances. The two revenue authorities, the railway operator and the other government agencies all occupy a single, common facility. With advance cargo information provided by the railway for each train, this operation has managed to reduce time from four to seven days to one to two hours. Cinkansé on the Togo/Burkina Faso border uses a single common one country facility in Burkina Faso that has been defined legally as international territory. This approach is still in the piloting stage. A new one country border post is being developed at Ruhwa in Burundi on the border with Rwanda as part of a road corridor being supported by African Development Bank. FINAL OSBP SOURCE BOOK Page 3

20 Figure 1.4: Juxtaposed Facilities Juxtaposed Facilities Shared facilities are operated in the country of entry in each direction. This model is generally used where facilities already exist and/or where a river or other natural barrier forms the boundary, as is the case at Malaba (road border), Namanga and Rusumo in East Africa and Chirundu in Southern Africa. National law in both countries must enable officers to carry out their laws in a CCZ in the adjoining state (extraterritorial jurisdiction) and hosting of foreign officials. In the case of juxtaposed border posts, there are two separate facilities, entailing only one stop for vehicles and pedestrians in each direction. Juxtaposed facilities also encourage crossborder cooperation. This is the most common form in use, because it can be established in any terrain and does not require either country to give up having a border facility. Where facilities are already in existence, establishing an OSBP calls for modifications to the buildings. That requires financial resources hence the ideal scenario is to plan for the infrastructure required to establish an OSBP first. This is feasible in countries where new border posts are to be opened, however, where border posts are already in existence the modification route is unavoidable. 2. RATIONALE AND PROJECTED BENEFITS 2.1 Rationale for OSBP Operations An OSBP means that parking and entry into the building is done only once. All procedures related to documentation and passports are processed in a single public hall for exiting one country and entering the adjacent country. If inspection of cargo is required, it is done once through a joint inspection involving all necessary agencies of both countries at the same time. Scanning of cargo, if deemed necessary, is also done once. For passenger cars and buses, introduction of OSBP procedures almost immediately cuts the border processing time in half. For example, at a tradition border, buses stop at one side of the border and the passengers go into the terminal. Luggage and cargo are off loaded and inspected as needed. This takes one to two hours, then the bus is driven to the other side of the border and the same processing is repeated for another one to two hours. In an OSBP, passengers enter one terminal and do both exit and entry processing. Cargo is off loaded once and inspection is joint. In an OSBP, most bus clearances are now done in one hour in an OSBP. Freight processing is more complicated and the gains are dependent on a great deal of coordination which takes more time to achieve. Nevertheless, the potential time reductions are also considerable, if more gradual. In addition to reducing processing time due to SW processing and single administrative documents, a CCZ can also facilitate in cases of irregular migration. In cases of refused entry ineligibility or for cancellation of visa/permit, the readmission to the country of departure could be almost an FINAL OSBP SOURCE BOOK Page 4

21 automatic system process. In fact the readmission could potentially become redundant if the finalization of both entry and departure has constructed system dependencies where departure is not formalized until entry is guaranteed. Coordination of processes and sharing of both data and intelligence could significantly reduce migration management challenges at borders; hence the importance for migration to be seriously considered during planning, design, implementation and management of OSBPs. Harmonisation of procedures anchored on full utilisation of information technology is critical in OSBPs. A good example is where Revenue Authorities use similar computerised systems. There is need for these systems to be able to interface, which allows for an export entry of one country to be simultaneously captured as import entry into the other country. There is need to ensure that resources like scanning facilities are shared for smooth OSBP operations with clear procedures on use of the scanner and scanning results. Efficient connectivity systems need to be put in place to allow full utilisation of information communication technology in clearance processes. From the standpoint of the agencies, concentrating all operations in one facility enables greater coordination of procedures and sharing of intelligence and transparency. Inspections and training can be done more efficiently and cost effectively than in a traditional border post. This cannot be achieved overnight as people embrace change at different levels. Some accept change quickly whilst some deny change and want to remain in their comfort zones. This then calls for effective change management programs prior to implementation of a OSBP concept focusing on border agencies, transporters, clearing agents, importers and exporters as well as the general public of each nation first and jointly with the adjoining state stakeholders. The WCO, World Trade Organization (WTO) and specialized United Nations (UN) agencies on trade facilitation have designed and implemented a number of supportive and guiding conventions on procedures related to and emphasizing the one stop concept as a facilitation measure. An example is the Revised Kyoto Convention (RKC). Chapter 3 of the General Annex to the Convention binds the parties to implement the following standards: 3.4 Transitional Standard: At common border crossings, the Customs administrations concerned shall, whenever possible, operate joint controls. 3.5 Transitional Standard: Where the Customs intend to establish a new Customs office or to convert an existing office to a common border crossing, they shall, wherever possible, cooperate with the neighbouring Customs to establish a juxtaposed Customs office to facilitate joint controls (WCO 1999). The WCO s guidelines on the interpretation of the General Annex further define the concept as follows: The Customs controls of the exporting administration are conducted at the same time as the Customs formalities of the importing administration (or near simultaneously) by officers from both Customs administrations; and FINAL OSBP SOURCE BOOK Page 5

22 The Customs controls are conducted within a common area where Customs offices of both administrations are established, whether in separate buildings or in a single facility (WCO 1999). 2.2 The Relationship between Border Controls, Facilitation and Trade Growth Border controls at a traditional two stop border post can take as long as three-five days, especially when mistakes or miscalculations delay payment. Most trucks used for commercial cargo have daily fixed costs of US$ in Southern Africa plus the cost of the driver. Therefore a three day wait at the border represents US$ in unnecessary transport costs. Five day delays would cost US$ This added cost directly affects the cost and competitiveness of African commodities in international markets as well as the cost of imports to consumers and inputs to manufacturers. A second cost derived from border delays and poor facilitation on the route is high inventory costs. A recent World Bank Study 5 found that for goods worth from US$2-5,000 per tonne, the cost of increased inventory is $0.75 to $2.50 per day per tonne. Manufacturers and retailers report ordering an additional month ahead to account for the lack of predictability of delivery. For a 28 tonne truckload this would range from $630-$2,100 of unnecessary logistics cost. When supply routes are not reliable, buyers choose other sources of goods. Falsification of documents may be prevalent where two stop border posts are in operation due to non-sharing of intelligence. This is demonstrated by disparities between export and import of the two border countries. Declaring of differing values for goods is usually motivated by the desire to avoid or reduce duties payable. Failure to collect all revenues due affects African countries which heavily rely on customs duties as a source of revenue. Therefore, there is a strong relationship between the time and reliability lost on corridors, including border crossing time, and growth in trade with its potential impact on economic growth, revenue collection and job generation. 2.3 Potential Benefits of OSBPs in Time, Cost and Reliability OSBPs offer various economic, technological and resource utilisation benefits. Nevertheless, the OSBP whilst a very opportune concept offers various challenges in its implementation and application. Like most global integration concepts it takes away part of a state s sovereignty. Though ultimately for a good cause, trade facilitation and efficiency in human mobility can potentially face limited political will and support which stalls the implementation of the OSBP. The physical, structural, technological and institutional changes also imply an economic contribution which may be burdensome for some states. With respect to the actual application of the concept, issues relating to language, cultures and other differences usually pose threats to greater coordination initiatives amongst the states. However, most of these challenges to the effective implementation of the OSBP can be outweighed in a number of ways including: Creating a deeper awareness and appreciation of the trade, mobility, security and economic benefits of the OSBP amongst the policy makers and whole society. Regional approaches coupled with international aid systems to support the establishment of the OSBPs. Public Private Partnerships may also be a sustainable mechanism for the development of the OSBP including funding mechanisms for its development. 4 The Road Freight Association in South Africa maintains data on vehicle operating costs and average vehicle fixed price. 5 Arnold, John, Best Practices in Management of International Trade Corridors, World Bank, Transport Papers TP-13, December 2006, pp FINAL OSBP SOURCE BOOK Page 6

23 Balancing sovereignty and autonomy issues through crafting mutually supportive legal instruments which reinforce both OSBPs and sovereignty concerns. The OSBP has the following potential benefits in time, cost and reliability: To the extent the OSBP reduces time delays and transport/logistics costs, it will provide many benefits. It is possible to evaluate the benefits derived there from. For border control agencies: Better resource utilization through improved cross-border cooperation and sharing of intelligence and resources Increased employee motivation which translates to increased productivity through use of advance information Environment for increased use of ICT and speedier processing Faster processing would decrease demand for sex operators at borders and any associated trafficking in persons (TiP) for the purposes of supply of such sex workers. Therefore reduction in TiP cases and need to engage resources in the direct protection of victims of trafficking. Provides a fertile ground for harmonisation of procedures which creates certainty in clients using the border Platform to manage and embrace change together Opportunity to install proper signage and public awareness campaigns to educate clients Improve on existing infrastructure, especially where modifications are to be undertaken Improved security and reduced corruption and revenue leakage For transport operators and forwarders: Reduction in delays and operating costs Savings in time spent on document preparation/processing Spare drivers from social ills like drinking or promiscuity which are both health hazards attributable to border delays. Certainty on procedures used at the border post eradicating runners and touts in the process. Greater asset utilization in respect of truck turnaround times For shippers and manufacturers: Savings in cost of inputs Increased reliability of shipments enabling reduced inventories Reduced capital tied up in logistics through just in time delivery Consumers: Reduced cost of consumer goods Increased availability of goods Spared from social ills like promiscuity and payment of bribes Travellers and Tourists: Reduced time spent at borders Procedures that respond to their needs FINAL OSBP SOURCE BOOK Page 7

24 At the same time, establishing OSBPs have certain negative impacts as well. A juxtaposed OSBP may require more staffing than a traditional border post since staff must now be split between two facilities. Managing staff in two border posts may require more time, effort and travel time. The agreement on which the OSBP is developed, seeks to guarantee reciprocity in the facilities offered to the adjoining states, but this may be difficult to enforce. The introduction of an OSBP also requires the managers to have good change management skills or to bring in a specialist to assist. It is important that negative aspects are identified and mitigated as soon as possible. Management of OSBPs is complicated and considerably more demanding. 2.4 Presenting the Case for OSBPs to Decision-Makers and Obtaining Buy-In Making the case to decision-makers requires describing the goals and operations of OSBPs very succinctly, expressing the benefits for each segment of the economy and in protection of the general good. Whilst it is assumed that the key stakeholders would be the agencies involved in customs and trade, it is important to customize presentations toward the needs of the various decision makers. For example with regard to customs and trade in general, a structured trade and transport facilitation audit can identify barriers and constraints to trade, including border crossings. Such a study can provide a detailed analysis from which to extrapolate a brief analysis of trade barriers and potential benefits of introducing an OSBP in the context of improved corridor performance and streamlining. More specifically, making an effective case for an OSBP requires having statistical data on traffic flow through the border, times taken for the different activities and the expected impact of investments. Then once the project is implemented, statistics need to be collected so that the results can be documented. Being able to do cost benefit analysis for the impact on trade and economic growth is very valuable as well as quantifying the impact on quality of life. As another example with regard to Immigration, which is also a strong partner at a border and a key agency in influencing the success of an OSBP, a case of reduced migration fraud as well as more and accurate border crossing data would help ease possible security concerns at the OSBP, as well as assisting various government sectors to understand the impact of business, investment and tourism trends on greater economic growth. 3. OVERVIEW OF AGENCIES OPERATING AT BORDERS 3.1 The Roles and Responsibilities of the Different Agencies Present at Most Borders The following table lists some of the agencies present at borders. The number and staff size varies considerably depending on the border and the types of traffic/commodities, security issues and perceived risks. Customs and Immigration are almost always present. There are some very small border posts handling non-commercial traffic where a single agency, usually immigration, handles all matters, and some where only immigration and customs are present. The trend is for more agencies to administer controls at the border raising issues of coordination. The other agencies are mostly to provide protection to the public in terms of - preventing spread of contagious disease for humans, protecting the national economy by detecting diseased animals or plant vectors likely to affect economic production, ensuring quality of food stuff and other products entering the country, FINAL OSBP SOURCE BOOK Page 8

25 ensuring national security and others as listed below. The issue for all borders, but particularly OSBP, is to effectively coordinate the border control activities of the various agencies so they do not become a further delaying factor. Agencies should review whether the intervention is required at the border or whether it can just as well be done inland or carried out by an agency already present at the border. In Rwanda, for example, agencies responsible for agriculture, veterinary and bureau of standards are training jointly, so that controls can be exercised by one officer. When one of the three government agencies is already present at the border, it will conduct preliminary checks for all three and can refer to a specialist, if required. When none of them is present, a review will determine whether someone should be placed at the border, or customs relied on to provide the initial review. In Zimbabwe, customs officers perform delegated functions on behalf of other government ministries to reduce border agencies operating at the border while health, agriculture, environment and Interpol are visible at the border posts. Table 3.1: Possible Agencies Present at Borders Customs Immigration Police/Security Interpol INSTITUTIONS Bureau of Standards Environmental Management Agency Drug Enforcement Commission Ministry of Agriculture Forestry Department Ministry of Livestock and Fisheries Port Health Road Transport and Safety Agency/Road Authority Vehicle Examination Department Clearing and forwarding agents and transporters representatives Insurance companies Inland container depots and bonded warehouses ROLE Pursues revenue collection, trade facilitation, social and environmental protection Regulates entry and exit of persons, issuance of visas, permits and border passes, maintenance of border security Controls security, law and order Pursues intelligence gathering (mainly stolen vehicles) Formulates and enforces national standards, implements standards through product certification and import and export inspections Ensures compliance with environmental laws Controls the importation, exportation, production, possession, sale, distribution, and use of narcotic drugs and psychotropic substances. Regulates the importation and exportation of agricultural products for the purpose of controlling the spread of plant diseases and regulating sanitary and phyto-sanitary issues. Regulates the import and export of plant or timber of all forestry produce Regulates the import and export of livestock, livestock products, fish and fish products. Controls spread of animal diseases. Enforces international health standards, prevention and suppression of diseases and protecting the public against health hazards and fraud in the sale and use of food, drugs, cosmetics, and medical devices Enforces vehicle standards, licenses, driving permits, mechanical condition and collects road tolls Operates the weighbridges to control overloading and inspects outward or inward vehicles Provides the private sector service of transport and clearing goods Sell Third Party Insurance Provide logistics services, storage and services FINAL OSBP SOURCE BOOK Page 9

26 3.2 The Usual Point of Intervention for Different Agencies There are several different approaches to the sequencing of agency interventions. Generally, immigration is the first agency to carry out controls. Other agencies at the border, such as agriculture, health, etc., are often approached by clearing agents 6 in advance. The sequence following immigration is generally that the other agencies address their permit and inspection requirements next. Then Customs does their review of papers and assessment. Once all duties are paid, the truck is released. Generally in an OSBP, all exit procedures are completed first and then all entry procedures are undertaken (Figure 3.1). An alternative that is used at some borders is to have immigration conduct their clearance on the person, exit first, then entry (Figure 3.2). Immigration is followed by customs, exit of goods from one state followed by entry of goods into the next. Other agencies often complete their checks between the time the declarations are lodged and the goods are released by customs. This is the more integrated border approach, which will be described in Section Suggestions from clients are that immigration exit/entry formalities is done first followed by customs export/entry formalities is best, however, this has its own challenges especially if the client does not sail through both revenue authorities. Another school of thought is customs officers of the entry country doing export controls for their counterparts since this is not a high-risk area. Figure 3.1: Side by Side Procedures Note: Imm (immigration), OA (Other Border Agencies), Cus (Customs) Figure 3.2 Joint Procedures 6 The term clearing agents is used throughout the document. It is understood that in East Africa the term customs agent is now being used to indicate their integral part in customs clearance. Since this is not yet widely used, we have used clearing agent. FINAL OSBP SOURCE BOOK Page 10

27 3.3 The Means Used by Different Agencies for Effecting Controls Some agencies carry out their controls primarily by requiring permits, which are acquired from inland specialists. Others require extensive inspections and checks, also inland, to guarantee the safety and quality of the traded goods. This includes such items as veterinary inspections, SPS 7 permits, pre-shipment inspections, etc. The declarations made to customs include these permits, licenses, certificates, etc. Other agencies require scanning and physical inspections at the border. In this case, permits are issued manually inland and they are manually verified at the point of entry/exit. Many of these interventions have a fee involved to cover the administrative cost of the control. The traveller is required to have the proof of payment or to make payment himself, herself or through the clearing agent at the border. Payment is often done separately to each border agency which results in the client shuffling to each border agent to make payments. 3.4 Potential Opportunities for Coordination of Interventions and Information Sharing among the Agencies at the Border There are many opportunities for agencies to work together in an OSBP. Proximity both generates these opportunities and enables them to happen. The Joint Inspections discussed in Section 9 is one example, both among agencies of one country and between countries. Another example is sharing of intelligence on particular products being traded. One country may have information that is not available to the other. By sharing information, the controls will be, not only faster, but more comprehensive as well. Smuggling and revenue leakages are also thwarted through coordination and information sharing and linking of passenger movement databases ensures accurate and comparable data on migration which also helps enhance planning of resources, such as manpower. Through sharing of relevant resources 8 and expertise in document security, the cost of expensive examination equipment between countries is shared. Sharing of human expertise between agencies can also enhance fraud detection. 4. REVIEW OF CURRENT TRENDS IN BORDER MANAGEMENT AND INTERNATIONAL BEST PRACTICE 4.1 Current Approaches to Border Management There has been gradual improvement in the management of border control agencies, including computerization to achieve the objectives of these organizations. There has been increased cooperation among national border agencies. There has also been increased cooperation between border agencies at bilateral, regional and international level thanks to globalization, regional integration initiatives, increased cooperation with development partners, improved communication enabled by ICT, etc. Nevertheless, cooperation is ad hoc (for a specific purpose), gradual, and, often, not in management coordination among border agencies. 7 Sanitary and Phyto Sanitary permits required for importing plants and plant products. 8 Such as the Passport Examination Procedure Manual published by the International Organization for Migration (IOM) with training supported by the African Capacity Building Centre (ACBC) of the IOM. FINAL OSBP SOURCE BOOK Page 11

28 4.1.1 Emergence of new border management institutional arrangements Internationally, a number of countries have already, or are in the process of, reviewing their border management institutional arrangements to support their new operational imperatives. Recent examples include the establishment of the SW information desks targeting informal traders by the Common Market of Eastern and Southern Africa (COMESA) through simplified trade regime desks established at Chirundu, Kariba and Victoria Falls in Southern Africa as well as International Trade Centers (ITC) at Malaba, Busia, Katuna, Bibia/Elegu-Nimule and Bunagana in East Africa in conjunction with hosting governments Improved coordination among agencies Information technologies are providing many of the tools needed for greater coordination of border agencies. Development of a community based system of capturing and distributing initial data entry is a major time saver that can easily be adapted for statistics gathering as well. Immigration captures information on individuals crossing the border, where they came from, where they are going, etc. Immigration needs a means to do quick statistics on travellers and follow-up on whether people transiting actually leave the country. Ideally, with the use of biometrics, immigration needs to ensure the same people are associated with the same document upon arrival and departure, thereby reducing migration fraud, including people smuggling and trafficking in persons. Connected with this should be an enhanced system of identifying inadmissible persons and/or transnational criminals, by sharing of intelligence and utilization of a common alert database between agencies and countries, especially at the external border points of regional economic communities (RECs) practicing free movement of persons. This is beyond the current automation of most immigration services in Africa. Other agencies also need the data on drivers crossing the border and gather it again and reproduce it on their own forms. Customs collects a great deal of information on crossborder shipments. Much of the data they gather is re-entered on forms by other border agencies that also have an interest in the consignment. Similarly, customs agencies can also benefit from access to people movement information from immigration databases, which can enhance the detection of some cases of customs fraud as well as drug / arms smuggling. All this basic information should be captured once and accessible to all border agencies for downloading into their forms. This is usually referred to as a community based system or border management information system. It would save many officers from the time taken to re-enter data and free them up for their enforcement responsibilities. It also reduces errors from repeated entries. Much of the information collected by one agency is needed by others to perform their duties. Immigration data is of direct usefulness to Port Health Officers who need to intercept visitors from areas experiencing an outbreak of a communicable disease to prevent its spread. This is data currently shared in person, but which could be collected and monitored electronically. Agricultural officers need to know the origin of plant and animal products to determine if an inspection or testing is necessary. This data is in the FINAL OSBP SOURCE BOOK Page 12

29 customs declarations entered in ASYCUDA or other customs software 9. A system of alerts can prompt actions in real time. If immigration is aware that Port Health is watching for individuals from a particular area, they can send an electronic alert to Port Health officers. Agricultural risks should be entered in ASYCUDA so that computer alerts can be given to other border agencies that there is a consignment of interest to them. Using risk management, joint inspections can be readily scheduled among all agencies with a particular interest in the commodity. Effective use of risk management and a system of alerts provides greater assurance that the appropriate controls will be exercised on all shipments than current manual procedures. This of course assumes that agencies have computers, which is not always the case, and that they can access ASYCUDA, which is also not always the case. In the past, ASYCUDA was just a customs tool. Now increasingly other border agencies are linking up to it for faster information on shipments and to tap into the resources provided for risk management. Risk management should now be used as a tool to integrate interventions in an OSBP for efficiency and tracking of commodities through the border. 4.2 International Best Practice and Lessons Learned in Africa Integrated border management (IBM) IBM involves the organization of border control activities to facilitate trade and mobility, while meeting legally mandated controls. IBM involves: Domestic integration between government agencies within one country or customs union and International integration between neighbouring countries as, for example, an OSBP. Both require interagency cooperation, parallel processing and coordination of interventions to achieve maximum efficiency. Domestic integration requires that all border agencies reach agreement on systems, data elements and processes to be implemented. These inputs are all aligned to form a process that integrates procedures and coordinates activities for maximum effectiveness. International integration involves aligning and integrating border formalities between two or more states 10. This can often be done where agencies enforce the same international standards, such as agriculture, or use the same international data sources to monitor outbreak of disease, etc. In an OSBP, it may mean coordinating exit and entry treatment in such a way that low risk goods can be expedited through the border. As the major agency at the border, the emphasis over the past decade has been on customs modernization with active involvement from the WCO in providing training in customs operations, reform initiatives and facilitation. Time release studies sought to 9 There are a number of other customs systems such as SIMBA used in Kenya or TIMS (Trade Information Management System) used in Mozambique and Angola. Since ASYCUDA is the most widely used customs software in these regions, we have used ASYCUDA to refer to any of the software used by different customs agencies. Revenue Authorities Digital Data Exchange (RADDEx) is also being used in the EAC region as a tool for interconnectivity and electronic data exchange amongst border agencies for the two states and is discussed in Section 8 and Integrated Border Management, Global Facilitation Partnership for Transport and Trade, The World Bank Group, June FINAL OSBP SOURCE BOOK Page 13

30 identify time delays and rectified them. The Customs Modernization Handbook 11 produced by the World Bank in 2005 is representative of this effort. At the same time, more agencies have been moving to the borders increasing the number of controls to be carried out. Whilst it is necessary to continue to seek improvement in customs operations, it is equally important to seek improvements in the operation of other agencies. Each agency will need to streamline its procedures and develop a coordinated system for achieving the necessary controls more efficiently. IBM can include information sharing, co-located facilities, close interagency cooperation, delegation of administrative authority and cross designation of officials. Customs now uses automated procedures at many borders. Wide spread use of pre-clearance, online submission, risk management and post clearance audit have made major improvements in customs processing. Other border agencies tend to operate manually and risk management is not done in a systematic, automated way. Integrated border management involves bringing these agencies into a coordinated clearance system in which procedures are carried out simultaneously as much as possible. This new holistic border approach is explored in Border Management Modernization 12. IBM is the term most frequently used in eastern and southern Africa, followed by the comment that they prefer the collaborative border management term. IBM is used to describe a number of processes for improving border operations. SADC is initiating a IBM program which seeks to analyze operations from three perspectives: border, national headquarters and cross-border. SADC has just produced a guideline and tools for IBM implementation. It focuses on institutions, the communication forms among them and strategies for improving their operations and for collaboration among them. At Chirundu, national level IBM is being introduced to introduce parallel processing of goods by border agencies. Other border agencies (OBAs) are accessing declarations on line to know what consignments are being processed in real time. OBAs are entering their risk selectivity profiles in the Customs Risk Management Module so that a coordinated clearance process can be developed on each side of the border. This Module will also be used to identify agencies with interest in inspecting any consignments. A real time monitoring system will be incorporated so that the reasons for delayed clearance can be identified and addressed. The graphic below illustrates the planned system. Figure 4.1: Domestic Integrated Border Management 11 De Wulf, Luc and Jose Sokol, Customs Modernization Handbook, The World Bank, McLinden, Gerard, Enrique Fanta, David Widdowson and Tom Doyle, Border Management Modernization, The World Bank, 2011 FINAL OSBP SOURCE BOOK Page 14

31 Benefits of IBM: Improve management of border agencies and clarify responsibilities and accountability of border agencies Remove inter-agency rivalry and duplication of resources and effort Facilitate trade, transport, tourism and foreign investment Provide for overall ownership and accountability for border efficiency Contribute to the success of regional cross-border facilitation projects, such as those concerning Transit and Corridor Efficiency, OSBP and SW initiatives Facilitate implementation of regional integration agendas Facilitate implementation and access to various international instruments concerning trade facilitation Single window (SW) The SW concept has been defined at UN level as follows: The SW environment aims to expedite and simplify information flows between business and government and bring meaningful gains to all parties involved in cross-border trade. In a theoretical scheme, SW can be described as "a system that allows traders to lodge information with a single body to fulfil all import or export-related regulatory requirements. In practical terms, a SW environment provides one entrance (either physical or electronic) for the submission and handling of all data and documents related to the release and clearance of an international transaction. This entry point is managed by one agency which informs the appropriate agencies and/or performs combined controls. The SW concept focuses on paperless trading for customs clearances, for license and permit approval by other government agencies, and in some cases transport and logistics services associated with cargo import and export. The SW concept has broad implications for electronic government. The trade SWs mentioned above are essentially government-to-government, government-to-business, and business-to-business exchanges. Other SWs are aimed at a wider constituent set. For example, vehicle licensing initiatives enable citizens to renew and pay for vehicle licenses online. The major players in this type of SW may include central government agencies, commercial organizations, and local, state, or provincial organizations and companies ministries of transport, police, insurance companies, banks and finance companies, motor dealers, and citizens covering the business to government, business to business and business to consumer categories. Each type of SW shares the collaborative features (interagency and organizational) of multiparty initiatives, linked together for a single set of objectives and covered by common policies, regulation, and legislation Siva, Ramesh, Developing a national single window: implementation issues and considerations, McLinden, Gerard, Enrique Fanta, David Widdowson and Tom Doyle, Border Management Modernization, The World Bank, 2011, pp FINAL OSBP SOURCE BOOK Page 15

32 According to e-government principles, governments must become citizen/constituent centric and service-based. Consequently, the following e-government features should be taken into account when setting up a SW: Fully integrated front- and back-office processes Electronic processing from end-to-end Services that span government agencies and jurisdictions Improved and more accessible business management information Key to these improvements is how next-generation e-government systems embrace existing workflows, business rules and legacy systems, leveraging and making use of current investments. There are few examples of the SW application in Africa. Two are the Ghanaian example which is fully implemented and Kenya which is being developed. Neither country uses ASYCUDA. Ghana has been engaged in developing a comprehensive transit system for sealing cargo (both container and break bulk), computerizing entries and processing with access nationwide, GPS tracking of vehicles, statistical data gathering and sharing, etc. The computerized Customs entry system enables Customs to check cargo information and monitor vehicle clearances electronically at the ports, borders, corridor checkpoints and headquarters. Computerized record keeping allows much better risk management so that fewer consignments need to be inspected. It is being done through a specialized software design company in a joint venture with Ghanaian Customs, Excise and Preventive Service (CEPS), Ghana Shippers Council, EcoBank and an insurance company. GCNet is paid for its services, which are meant to recover the initial and on-going system development costs, maintenance, on-going operations, the cost for the replacement/renewal 5-year cycle of all hardware and software installations plus profit over time. Any profit / surplus is shared among shareholders in the form of dividend payments. The fee for services is based on: GCNet collects a Network fee for each import that is processed through the TradeNet and Ghana Customs Management System. This is based on an ad valorem formula. Export declarations are free of charge in order to support the Ghanaian export sector. Transit declarations attract a fixed fee of $50 covering the cost for the Transit Monitoring Infrastructure. The business model is based on the PPP (Public Private Partnership) model and the philosophy of the company can be summarized as follows: GCNet provides, installs, supports and maintains the systems before, during and after implementation, thereby guaranteeing project continuity and success in a difficult environment. FINAL OSBP SOURCE BOOK Page 16

33 GCNet continually improves the system to meet the developing requirements of its clients and partners. If the Transit Tracking, for example, were provided to other customs services on regional Corridors they would follow the current model that the company undertakes all capital investments and then recoups these investments via a flat fee per sub-consignment (per truck basically). This would be for a pre-determined term or mandate i.e. 5-year operating concession. 14 Kenya s vision of the SW is an entry and processing system that serves the seaport of Mombasa, Jomo Kenyatta International Airport and the land borders. It grew out of earlier work on a community based system being designed for the Port of Mombasa and exposure to more comprehensive international SW Systems. This design will enable entry of data for multiple transit nodes and tracking of transit movement of goods. By linking the port and the land borders, a seamless transit system of transport/logistics and customs controls can be achieved. The project is being housed at a senior level of government so that no one agency is in control of the system. The project is being sponsored by international development partners rather than through a PPP arrangement as in Ghana. ECOWAS is currently engaged in a major effort to develop a regional computerized transit system to replace the manual ISRT system that is no longer widely used. This project, the ECOWAS Regional Customs Interconnection Project called ALISA, is still under development. It began with a study tour to identify best practices, an analysis of the current use of ISRT, and preparation of a procedures manual to capture what is currently being done to use as a starting point for developing an electronic system. The SW concept provides economic operators with the following benefits: Easier access to information through better co-ordination between all authorities involved leading to time savings when looking for information and increased compliance due to better understanding; Improved efficiency when submitting information through exchange of data between authorities involved allowing economic operators to give the same information only once to these authorities faster processing, more rapid clearance, greater accuracy of data and increased compliance; Fewer delays, less uncertainty, and more targeted inspections through better coordination between authorities involved; Lower barriers to trade, which makes it possible for new traders to focus on strategic and commercial considerations as opposed to regulatory requirements. The SW provides Member States and the RECs with the following benefits: Improved service to customers improving the competitiveness of African business; Reduced levels of inadvertent non-compliance, leading to better ability to focus on those traders that actively try to avoid regulations; 14 Harmon, Lynn, Innovative Financing Logistics and Trade Facilitation. Presented at Asian Transport Forum, Asian Development Bank, September FINAL OSBP SOURCE BOOK Page 17

34 Better quality of information by increased sharing of information between government agencies leading to improved security, better ability to target consignments to be inspected; Improved efficiency when moving from paper-based to electronic applications, licenses etc. reduced re-typing, faster processing Electronic cargo tracking systems (ECTS) An ECTS is a multi-tiered system developed to electronically monitor goods under transit, as they move along the supply chain from source to destination. It offers real time cargo tracking solution. The goal is the development of a harmonized simplified process, which facilitates the movement of cargo internationally, assists in the enforcement of tax laws and maximizes revenue collection. The ECTS can be implemented using Radio Frequency Identification (RFID) and GPS/GPRS technology. All trucks/vehicles, tankers and containers carrying goods on transit, exports & under agencies control are fitted with a tracking device and electronic seal which sends the seal status, truck location and any violation information to recipient agents on real time basis. Operation of an ECTS include: Once the seal is armed the cargo is monitored from start to destination point. The transit cargo is expected to move along the gazetted and geo-fenced route. Any violation including moving outside the geo-fence / tamper will be detected on real time (immediate) from the control room. Alerts can also be received via or sms. The Rapid Response Team (RRT) deployed at strategic points and equipped with radio communication system intervenes in case of violation Future enhancement include automatic bond cancellation.:2000 The system in Ghana involves GPS transponders being placed on trucks as they leave the port so The system in Ghana involves GPS transponders being placed on trucks as they leave the port so that all vehicles can be monitored as the transit Ghana. A large map of Ghana at the GCNet headquarters, shows all the trucks in transit. If one has left the approved transit route, it can immediately be determined and the driver or company contacted. This system seeks to reduce the escorting, which had become more of a charge than an actual escort, and the number of customs and police check points on major corridors. Kenya has also developed a cargo tracking systems. The purpose is the same, to monitor vehicles that might be diverting goods into the local economy so that the number of physical check points can be reduced. The Kenya Revenue Authority required the transporters to purchase the transponders for their trucks. This has led to a court case over who should pay for the transponders the transport companies or the Kenya Revenue Authority. Once resolved and KRA can monitor the movement of transit vehicles, it should lead to removing some of the other customs controls that add time and cost to transit traffic in Kenya. Ethiopia has just carried out a National Freight Transport and Logistics Program (NFTLP) study that identified cargo operations as one of the weakest links in Ethiopia s freight and logistics FINAL OSBP SOURCE BOOK Page 18

35 system. It identified sources of time savings in the logistics chain from Djibouti to Addis Ababa that would allow trucks to make six trips a month, rather than the current three trips. This would allow a 27% reduction in cost. To reduce the customs delays on the route, Ethiopia is investing in a cargo tracking system which is being introduced jointly by the Ministry of Transport and the Ethiopian Revenue and Customs Authority. The interagency relationship is for the transport authorities to design and manage the cargo tracking system and for customs to use it to streamline transit controls and for gathering trade statistics that will be made available to the Ministry of Transport for its planning and freight logistics program. Benefits of an ECTS are: Customs and other governmental agencies: Maximized revenue collection Anti-dumping/diversion of transit, export, excisable export goods Fast movement of goods along the corridors and supply chain Elimination of non-tariff barriers to trade and traffic Reduction of corruption cases and promotion of integrity Increase the level of security of monitored goods: Fast movement of goods and conveyances along the corridors Improved competitiveness of ports Higher voluntary levels of compliance Lower compliance cost Use of information to identify compliant stakeholders in the industry: Platform for exchange of information with other governmental agencies Development of improved risk assessment systems Data sources and a data exchange tool for regional cargo tracking FINAL OSBP SOURCE BOOK Page 19

36 PART 2: CRITICAL ISSUES FOR THE IMPLEMENTATION OF OSBPs 5. TRAFFIC AND OPERATIONS BASELINE SURVEY 5.1 Survey Requirements and Use The survey provides the data that is used for the optimal design of the OSBP facility, facility services, traffic flow plans, pedestrian flow plans, procedures that provide expedited handling and ICT connectivity within the CCZ. The survey should also obtain recommendations from border control officers and users for ways to expedite the process and traffic flow in the new facility whilst providing opportunity for observation and risk assessment of traffic, passengers and pedestrians. The planning for the OSBP can proceed when the survey has been completed. It should be distributed to all parties that are involved in the planning of OSBPs. The baseline survey clearly gives performance indicators before implementation of an OSBP that will be used as benchmark measurement after implementation. At Chirundu, for example, a base line survey was conducted in 2008, followed by the implementation of the OSBP in December Currently, a monitoring survey is underway. The results will be compared to the baseline results in order to measure the efficiency of the Chirundu OSBP. 5.2 Types of Data to be Collected The type and volume of traffic on the route, peak times This information is important so as to know the distribution of passenger or freight traffic; as well as pedestrian movement for planning purposes. Total volumes, type of traffic, and relative percentages of container, tanker, refrigerated, break bulk and bulk should be collected. Growth projections can be used to estimate future growth in each type Types of commodities and special clearance requirements Knowing the specific commodities on the route allows one to investigate the growth potential for the key sectors. Knowing the special clearing requirements is a critical factor among competing corridors. Facilities may need to be constructed to meet the clearing needs of the countries. For example, the fast track and clearance booth at Chirundu is proposed for fuel tankers, trucks carrying hazardous substances, empty trucks and those that cannot be scanned Current time for each step in the processing The survey should include a long enough period of tracking trucks through the facility to determine the time taken for various procedures as well as wait time to determine where the greatest bottlenecks are. This can be supplemented by the times indicated in ASYCUDA for several steps in the process. A review of gate passes if they are used and/or departure and entry stamps in movement databases will also provide some data on the time required to complete processing on both sides of the border as well as the total time through the border. This information will be used for planning procedures, motivating buy-in for the project and monitoring performance after the OSBP is opened. FINAL OSBP SOURCE BOOK Page 20

37 5.2.4 The agencies active at the border, their interventions and how they coincide or precede other agency interventions The agencies for each country at the border should be identified, including the types of interventions performed, the time and location at which these interventions are carried out, and how they fit into the sequence of events at the border. This information will be used to map the procedures at the border and determine what can be done simultaneously, what needs to be modified or eliminated, as well as where each border agency should be operating from to achieve coherence in OSBP operations Joint processing methods that are being done or could be done in the context of an OSBP Any joint processing that is currently being done, both interagency cooperation within one country or cross-border cooperation should be captured, including the method used. This can then form the starting point for further developing joint processing procedures. It will also provide lessons learned to shape the further development of joint processing procedures Current staffing by all agencies and changes in operational hours as well as in staff numbers for the OSBP; their implications, such as additional offices, houses, equipment, etc. Information on current operational hours in relation to traffic volumes handled and on current staff levels is necessary to plan for the transition from a traditional border post to an OSBP. Additional staffing information to obtain is staff/supervisor ratio, productivity, number of shifts, etc. This aspect of the survey will indicate whether additions or modification to existing buildings will suffice or whether a new facility is needed. It will allow planning for office space, training facilities, equipment, housing and utilities. It will also allow advance planning for adjustments in staff positions and numbers for the OSBP as well as planning for extension of operational hours Setting time targets for border improvements Based on the assessment done, it is possible to set targets for operations in the OSBP. These will help to shape the design of the OSBP. This will also motivate changes in clearance procedures to achieve goals of greater efficiency and effectiveness. These should be reviewed during implementation, adjusted if necessary and then used for monitoring. 6. INSTITUTIONAL STRUCTURE FOR IMPLEMENTATION AND SAMPLE ACTION PLAN 6.1 Key Aspects of OSBP Implementation OSBP implementation is complex involving two countries and four key areas that affect the success of the OSBP in improving trade facilitation at the border. It is important to work on all these areas at once since each one affects the implementation of the others. Because border posts attract FINAL OSBP SOURCE BOOK Page 21

38 many businesses and require a large residential area, town planners should also be drawn into the planning and implementation process. Figure 6.1: Hard and Soft Components of an OSBP project 6.2 Agencies and Associations that Need to be Involved in Decision-Making and Implementation All the border agencies head office staff and their respective staff at the border need to be consulted as the decisions taken in each regard directly affect head office work, that of their officers at the border and ultimately the success of the OSBP. In addition to border agency ministries, it is also prudent to involve the office of the President or Prime Minister or Cabinet in that state. OSBP requires effective cooperation and coordination of a variety of Ministries. Commitment at the highest level can ensure that this occurs. Likewise, the private sector needs to be consulted. This includes the clearing agents, transporters and importers as well as exporters. Customs, immigration and other border agencies need to have a role in the design of OSBP procedures, in carrying out an ICT needs assessment, and in the design of the facilities. Freight forwarders and clearing agents play a role in preparing the documentations, ensuring all queries are answered participating in inspection and making all payments and confirm release of goods. They need to play an active role in facility and procedure design. The transporters have a definite concern on their role in procedures and traffic flow through the CCZ. They will also be concerned with facilities offered to truckers. Lastly, the importers and exporters often get ignored in this kind of a study, yet they are the ones that ultimately pays for the high cost of trade and manufacturing and need to be consulted. For example, Chirundu OSBP implementation suffered initially as other border agencies were involved only at the headquarters level in the Steering Committee, but not at the border. Some border agencies complained that their head office superiors were attending OSBP meetings, but not giving them the critical feedback so they saw no reason to partake in the initiative. They felt it was a customs initiative and were brought in only later in the implementation preparations. Some accepted the change from the onset, whilst some had to be dragged into it with the latter group slowing down progress at times. Involvement of everyone plays a critical part in total buy-in. While there was training for clearing agents and trucking companies, the users of the border took some time to understand the concept. This was made worse by the lack of adequate signage. FINAL OSBP SOURCE BOOK Page 22

39 6.3 Types of Working Groups and Committees as well as their Functions and Operations The implementation process requires the commitment of the two governments to establishing an OSBP. The lead Ministry or agency in each country needs to be identified and their role clarified. Secondly, for a bilateral arrangement, a Bilateral Steering Committee should be established comprising the Permanent Secretaries of the agencies involved at the OSBP or directly affected by it. Thirdly, technical tasks teams should be set up for implementation of the OSBP. Each agency needs to commit an appropriate person to the task teams and expect regular reporting back to the agency for on-going decision-making within the agencies as the implementation proceeds. The task teams need to involve officers from the border and policymaking level officers from headquarters. This institutional structure should be put in place when the design and implementation process begins to insure coordination and continuity of actions and to insure that each step is completed according to the time line Lead ministry Each country needs to select a lead Ministry to coordinate the overall implementation process on behalf of the Government, to present the legal framework to government and to assist in coordination with other government Ministries involved at the border. Some countries have chosen the beneficiary of trade facilitation objectives and selected the Trade Ministry. Other countries had chosen a key agency represented at the border with management responsibility for the border post, generally the Revenue Authority or Customs Department. The lead Ministry/agency at the border and their role needs to be clearly articulated for the purposes of minimising conflict during implementation and at the time of the opening. If this issue is not clearly addressed, there is bound to be jostling of leadership to claim the glory which comes with implementation of OSBP, a concept which is still new in Africa Policy and oversight bodies A Bilateral Steering Committee composed of Permanent Secretaries, or their representatives not lower than Director level, of the governmental agencies at the border and representatives of the associations of border post users should be established at the outset to provide overall guidance to the preparation for the OSBPs in the region. It should be co-chaired by the Permanent Secretaries of the lead agency tasked with OSBP implementation in each country. It will form the basis for the appointment of the Joint Commission to manage the OSBP once operational. The Steering Committee would be responsible for building and maintaining senior level governmental support for OSBPs. It would oversee the decision-making process on the following implementation issues: Determining and procuring Infrastructure and equipment requirements for the operation of an OSBP Adoption of the legal framework The number and nature of border agencies to operate in the CCZ Sequence of the clearance process Simplified and harmonized border clearance procedures FINAL OSBP SOURCE BOOK Page 23

40 One stop border training programmes for both the public and private sectors An appropriate ICT network An appropriate border management system Monitoring progress before and after implementation Ensuring policy decisions are made on time and communicated to operatives on the ground Any other requirements necessary for the smooth operation of OSBPs, such as a walk through to check on progress and conducting of meetings to address issues, which rose from the border. In East Africa, under the EAC OSBP Bill, the OSBP Board is responsible for the establishment of OSBPs within the Community to ensure uniformity of approach, to monitor implementation and to resolve issues that arise. Joint Commissions will be established by each pair of Partner States to oversee the process of OSBP implementation and operation. In West Africa, the regional economic communities are playing the lead role in development of the physical design of facilities, development of OSBP procedure working with member states, preparing a common legal framework and in developing ICT applications Technical task teams To facilitate implementation, technical teams should be established to address border procedures on an agency basis and report to the Steering Committee. Their work would be co-coordinated by a Project Manager, who reports directly to the Steering Committee. To ensure integration and timeliness and performance, this should be a fulltime task. It is important to have the same core team members participate for continuity and in order to work efficiently towards the target. Team members should be entitled to draw on the expertise of their entire agency and to obtain feedback from the relevant divisions. Representatives of the private sector should be incorporated into the task teams to ensure that the full procedures involving both public and private players are considered. The technical teams would work nationally, but also be involved in a bilateral framework so that integrated procedures, legal frameworks and facilities emerge from the process. The technical task teams include CCZ and facilities, legal framework, procedures, ICT, training and public awareness. Each team would be assigned specific tasks on which they would report to the Project Manager and Steering Committee according to agreed work plan. The tasks fall into the four categories plus training and a public awareness campaigns as the transition approaches: 1) Procedures Task Team: Streamlining and harmonising operational procedures and using automation wherever possible to reduce the time and cost while enhancing the necessary controls and data security. Conduct walk-throughs and compare procedures of each border agency based on what the team identifies and agrees as the best way to coordinate and streamline overall procedures. Identify areas where joint controls and inspections can be done and incorporate these into the procedures, including how these will be conducted. FINAL OSBP SOURCE BOOK Page 24

41 2) Legal Task Team: Negotiating a Bilateral Agreement concerning the operational practices and management of the OSBP followed by facilitating passing the enabling OSBP legislation through the respective national parliaments. Because passage of legislation can be time consuming, it should be started early in the implementation process. This team is led by someone from the Ministries responsible for legislation who will give expert legal guidance as and when necessary. It must also include border agencies and private sector operators. These two components may be merged where the legal framework is passed at the REC level. For the EAC, these two instruments were combined into a single document (the EAC OSBP Act). 3) Physical Facilities Task Team: Design new purpose-built facilities or make necessary changes in the existing physical facilities to accommodate an efficient OSBP operation taking input from the technical team responsible for procedures formulation and carrying out any necessary procurement of furniture and equipment. Reach agreement on sharing of facilities like offices, including maintenance of these facilities on comparable basis. Oversee the development of an integrated plan for the OSBP. Taking into cognisance the growth of border towns and cities, it would also be prudent to include town planning services in this Task team. 4) ICT Task Team: Review current interconnectivity, use of ITC and the compatibility of systems. Review opportunities for further applications to reduce redundancies and improve performance. Based on the agreed procedural changes, design/acquire additional systems, install them and train on new systems as well as make necessary recommendations of maintaining and financing these computerised systems. 5) Training and Public Awareness Team: Providing training to agency officials and the private sector on the changes in border operations; and carrying out a public information outreach campaign about OSBPs through the media, newspapers, radio and television programs. Conduct relevant training for associations of users when the procedures are agreed. The teams will remain active for two years after the opening of the OSBP to provide advice on resolving any problems that emerge in the first two years of operation. They would meet twice a year and be given specific tasks as and when the need arises. 6.4 Work Plan The work plan is a critical part of implementation, which must identity the tasks to be done and the persons, agencies or associations responsible. It sets firm timelines and can be used to monitor delivery. Figure 6.2 is a generic timeline that suggests the times at which activities should begin to reach completion by the time the construction of physical facilities are completed. The user can add or delete activities as appropriate. Figure 6.3 is a sample work plan developed for the OSBP intended for the Trans Kalahari Corridor between Namibia and Botswana follows with a brief explanation. 15 In this case, a feasibility study had been carried out with recommendations on each component of implementation. It had been presented to the government agencies and private 15 Corridor Development Consultants, Technical Report: Feasibility Study for Establishment of One-Stop Border Post on the Trans Kalahari Corridor (Botswana Namibia Border), Global Competitiveness Trade Hub, Windhoek, FINAL OSBP SOURCE BOOK Page 25

42 sector in both countries and agreed. Lead agencies had been chosen. It was to be carried out on a Corridor with a strong Corridor Management Committee, including both transport and customs sub-committees. Certain customs initiatives of the Corridor Management Committee could be integrated in the OSBP implementation. They are indicated with brown lines and incorporated into the OSBP implementation plan. 1) The process opens with the Steering Committee members and the technical teams selected by the border agencies and private sector. The first meeting provides an opportunity to ensure that everyone shares the same goals and understanding of the OSBP concept, that the political interests are aligned, political commitment is confirmed, and that the technical teams have clear guidelines and are mandated to perform their agreed work deliverables. The reporting and decision-making mechanism should be clarified. 2) The teams then work at the national level in their agencies or as a national group. It is suggested that the national group meet as a whole during this period to coordinate their activities and to keep their work program on track in relation to the timeline established in the first steering committee meeting. 3) A second Steering Committee meeting will provide the opportunity to share progress and coordinate task activities at the bilateral level. Final decisions will be taken on the physical design, so that the final engineering design and tendering of construction contracts can take place. Procurement of equipment can also be authorized at this time. Procedural changes and IT applications will also be discussed and approved. 4) Following this meeting, the team will again work at the national level. 5) The third bilateral meeting will be at the technical level to finalize all tasks and plans for the transition to OSBP. Many decisions and actions must be taken in the lead-up to the transition and it is critical that a coherent plan for the move is agreed and implemented. 6) A Steering Committee meeting will be held to finalize all decisions and preparations for the opening of the OSBP. FINAL OSBP SOURCE BOOK Page 26

43 Figure 6.2: Generic Timeline for OSBP Establishment Task Activities National entities, Process Start Period Year 1 Year 2 # Clustered by type 1st Q 2nd Q 3rd Q 4th Q 5th Q 6th Q 7th Q 8th Q Initial Activities 1-1 Finalize Work Plan Steering Committee Q1 1-2 Conduct base line survey Consultant Q1 1-2 Monitor ICT connectivity design/installation Steering Committee (on-going) Q1 1-3 Review regional initiatives for programs to integrate Consultant Q1 1-4 Initiate national OSBP law, if necessary EAC and UEMOA have regional laws* Q2 Preparation Activities 2-1 Decision to limit agencies at border Steering Committee (SC) Q2 2-2 Simplification/harmonization of procedures Integrate and apply initiatives underway Q2 2-3 Finalize border post designs by function and tender all agencies, Consultant Q2 2-4 Negotiate and sign bilateral agreement all concerned parties Q3 2-5 Immigration IT systems fully implemented Immig Departments, IOM Q3 2-6 Establish preclearance, prepayment, AEO, etc Revenue authorities, apply initiatives underway Q4 2-7 Integrated border management, as appropriate all agencies, apply initiatives underway Q4 2-8 Roll out border information system, if available all agencies, apply initiatives underway Q4 Final Preparation and Transition 3-1 Cross border harmonization of procedures all agencies Q4 3-2 Planning staffing and transition all agencies Q5 3-3 Complete ICT systems training all concerned parties Q6 3-4 OSBP operations training - public sector all agencies Q OSBP operations training - private sector clearing agents and transporters Q7 3-6 OSBP Public awareness programs general public Q Finalize/install signage roads & terminals Ministry Works & Transport Q7 3-8 Set up management institutions all agencies Q7 Monitoring Operations 4-1 Monitoring and continuous improvement measures all agencies Following the Opening * assumes that EAC OSBP Act will be enacted by the time of border post opening. Opening OSBP DRAFT OSBP SOURCE BOOK Page 27

44 Figure 6.3: Implementation Timeline Example Activities August Sept October Nov Dec January February March April May June July August September October November Initial Presentations/Approvals 2 Govt CoCh/Min Legal Framework - Law AG Drafting Consultation/Finalize Cabinet Parliament Legal Framework - Bilateral Agr. 2nd Draft Nat'l 3rd.Dr. 4th Dr. Nat'l Final/Sign Procedures Agency Task Teams Bilateral Agr/Regs Regs, Design & Train Public Training Private Risk Management (TKCMC) In process Integrate risk management approach with joint inspection team approach Accredited Econ. Operators (TKCMC) In process Integrate AEO with fast tracking approach at OSBP Opening Client Service Charter (TKCMC) In process Integrate Charter concepts with delivery at OSBP ICT Needs Assessment/Prelim Design Design Software Develment Hardware & Software Requirements Intraconnection of OSBP - Computers Systems Interface (TKCMC) In process Implementation of data exchange at OSBP Physical Facilities Finalize Requirem'ts/Prelim Design Engineering Design/Tender Construction Public Awareness Key: Bilateral Meetings/Steering Committee Meetings National Consultative Meetings FINAL OSBP SOURCE BOOK Page 28

45 7. LEGAL FRAMEWORK FOR OSBPs 7.1 The Legal Concept OSBP concept in practice Border controls involve, in concept, the performance of various functions by officers from different government organizations undertaken in terms of specific authority granted in a State s national laws. It is imperative that those functions by various officers and the powers they exercise be of necessity authorized in law as they potentially entail limitation or infringement of rights of individuals or corporate entities. The OSBP concept envisaged for any Border Post requires additional legal authority beyond that which is provided by current legislation for two essential reasons. Firstly, it will entail the performance of border controls by various officers of one State in terms of its national laws extraterritorially in another State. Secondly, a legal mandate is required for hosting arrangements of that State s border control officers who will operate in terms of their own national laws within the territory of the other State. The legal framework would also additionally provide for the administration and management of wider safety and security functions including the general maintenance of law and order (as distinct from border controls) at such OSBP Underlying legal principles 1) Extraterritorial jurisdiction It is an established legal principle of public international law that national laws of a State generally only apply within the territory of that State... The exercise of jurisdiction is limited, save by special international agreement, to the territory of each State, so that the State can only exercise it over persons or things within or coming within the territory. 16 The principle of extraterritoriality allows a State to extend the application of specific national laws to a place located outside its own territory. Extraterritoriality is thus an exception to the above stated legal principle and to that extent would of necessity need to clearly define which national laws apply extraterritorially and specific location where such laws would apply. 2) Hosting arrangements Similarly, as with the said principle of territorial application of national laws, officials of a State are limited, in the exercise of their functions and application of their national laws, to within the territory of that State. The exercise of official functions and application of the national laws in the territory of another State needs to be agreed to between the two States and authorised by such other State in terms of its own national laws. 16 J. E. S Fawcett, The Law of Nations, 1968, page 54. Final OSBP Source Book Page 29

46 7.2 Analysis of Primary Border Legislation The establishment of an OSBP in any jurisdiction should be preceded by a comprehensive analysis of the border controls legislation of that State to establish and accomplish the following: Identification of existing relevant border control legislation In most countries in the African region, border controls are undertaken by governmental departments and agencies that ordinarily fall into seven primary categories as follows: Immigration Customs and Revenue Authorities through their customs departments Security Agencies Health Agriculture, Animal and Plant Inspection Roads and Transport Other including Environment, Standards Bureau, etc Perusal of legislation for provisions entrenching or limiting the application of the OSBP underlying legal principles The extent to which current primary and subsidiary legislation providing for border controls can be used to implement the one-stop border concept without any need for enacting any new legal instrument is questionable. Analysis of border control legislation in most countries where OSBPs have been or are intended to be established reveals that whilst there are provisions in some of the applicable Acts providing for extraterritorial jurisdiction on some limited and specific aspects of border controls, the Acts are generally intended as a matter of legal principle to have territorial application. Similarly, there are no or very limited provisions allowing for the hosting of officers of another State in the territory of a State for the performance of official functions in terms of the national laws of that other State. There is thus no doubt that border control legislation in most countries, if not all, in its current formulation, is grossly inadequate for the control and regulation of activities of an OSBP. The legislation would need to be overhauled in both legal conception and content individually, Act by Act, or through an allencompassing instrument designed to give the current legislation the extraterritorial jurisdiction so critical to the OSBP concept. If the existing legislation is found to be deficient, the issue that has arisen before and needs to be analyzed next is whether or not such deficiencies can be addressed by way of a subsidiary legislation instrument, and the nature and form of such an instrument. In other words, the issue for determination at this stage of the analysis is whether, in the absence of provisions relating to extraterritorial application and hosting arrangements in the current legislation, such may be incorporated into the said legislation by way of an allencompassing instrument of subsidiary legislation. In doing so, it is instructive to perhaps first examine the meaning of subsidiary legislation and principles relating to its valid and effective enactment as follows: Final OSBP Source Book Page 30

47 The starting point would be to peruse the definitions of subsidiary legislation as provided in existing legislative instruments such as: The Constitution of the State Interpretation Act The Statutory Functions Act or its equivalent where it exists. The generality of the literature and case law in many jurisdictions on the status of statutory instruments in relation to the above legislative provisions confirm the following principles: The legislature passes law that simply establishes broad policies and then delegates to subordinate authorities the power to pass subsidiary legislation in order to bring into effect in detailed form those broad policies. Regulations by way of statutory instrument are a creature of an Act of Parliament and therefore cannot be used to override the provisions of such or other Act. This however, does not mean that regulations cannot strengthen the Act by supplementing its provisions so long as the supplementing provisions are not in conflict with anything specified in the Act. For subsidiary legislation to be valid, it must generally satisfy the following requirements: - Promulgation must be published in the Government Gazette. - Follow prescribed procedures as laid down in the enabling Act. - Consistent with general law cannot make unlawful something that is lawful under general law and vice versa. There is also a general presumption against alteration in the common law by statute law unless the words of the statute are plain and unambiguous and an intention to alter the common law is evident from the enactment. It is therefore unlikely that subsidiary legislation can validly be employed to effect an alteration in the common law. - Certain and positive must indicate with reasonable clarity the act required or prohibited otherwise it may be struck down as being void for vagueness. It should be more than an expression of desire. - Pass the ultra vires test can only create legislation on matters upon which it has been empowered by the enabling Act to legislate. - Pass the reasonableness test can be ruled ultra vires if grossly unreasonable. - In essence, if subsidiary legislation fails to satisfy any of these requirements it is open to challenge by any person who is so affected by it Specific recommendations to enhance or address identified limitations Analysis has shown that the nature and scope of the deficiencies in all current border controls legislation, to varying degrees, is that it fails to incorporate fully the principle of extraterritoriality in its provisions and none of the legislation provides for hosting arrangements. In its current formulation the legislation is predominantly applicable Final OSBP Source Book Page 31

48 territorially. The fundamental question therefore is whether, given the aforementioned guiding legislative provisions and principles relating to subsidiary legislation, a statutory instrument can be used to cure the nature of the deficiencies inherent in the primary border controls legislation. The following is observed in this regard: The principles of extraterritoriality and hosting arrangements fundamental to OSBP operations run against the common law principle of territorial application of national laws. To alter such a common law principle would require primary statute law, which is plain and unambiguous in its intent to making such alteration. Current border controls related statute law did not intend to alter the common law principle to the extent that it did not provide for extraterritorial application of its provisions nor allow for hosting arrangements. In this vein, any subsidiary legislation that seeks to give the provisions of any Act extraterritorial application and allow for hosting arrangements where the Act itself does not so provide would be inconsistent with that Act and to the extent of the inconsistency, void. Even if one were to assume that the use of subsidiary legislation in this instance was possible, the analysis in the preceding paragraphs requires that enactment of such subsidiary legislation must follow prescribed procedures as laid down in the enabling Act. All Acts analyzed tend to require that any regulations be promulgated by the Minister responsible for the administration of such Act or persons therein vested with such powers. In practice, therefore, it would require that appropriate regulations incorporating the two principles be promulgated for each and every border controls related Act. It is also apparent in the circumstances that the enactment of one single subsidiary legislative instrument with overriding effect over all other legislation may not be legally valid or possible as it would entail the promulgation by one Minister or person, legislation whose purport and effect alters other border controls Acts administered by other Ministers. Such legislation could be open to challenge for inconsistency with other legislation. Furthermore, it may also not be possible for all Ministers to delegate their authority to one Minister as the various Acts may not empower them to do so as may be required at law. All in all it strongly appears that seeking to incorporate and effect the principles of extraterritorial application and hosting arrangements into current border controls legislation by way of an all-encompassing subsidiary legislative instrument is not feasible and would be fraught with insurmountable legal difficulties leaving it open to legal challenges as to its legality resulting in gross legal uncertainty. There is no current legislation, as already established herein, through which the one-stop border controls concept can be implemented thus unavoidably requiring the enactment of such enabling legislation by the body in whom the power to legislate vests, which is Parliament. For the above reasons, it is considered both legally impossible and practically inappropriate in the circumstances to seek to address the deficiencies as highlighted in current border controls legislation with respect to OSBP operations by way of subsidiary legislative instruments in most jurisdictions. Final OSBP Source Book Page 32

49 7.3 Determination of Appropriate Legal Instrument A number of instruments to enact the OSBP concept into law in any jurisdiction are available as follows: Bilateral arrangements 1) Memorandum of Understanding (MOU) and National Act This is the most recommended approach where two adjoining countries are involved and the focus is on establishing an OSBP at a particular Border Post. It entails the negotiation and conclusion between the two countries of a bilateral agreement in which the parameters of establishing such OSBP are spelt out. It also requires that such arrangement be entrenched in the domestic laws of each country by way of an appropriate Act of Parliament with an overriding effect over all border control legislation so as to give legal effect to the provisions of the MOU and the principles of extraterritoriality and hosting arrangements. 2) Other It is not mandatory that the bilateral arrangement should be called an MOU. Other jurisdictions may prefer to call such agreements a Memorandum of Agreement (MOA), Protocol, Treaty, Constitution, or any such other name as may be deemed appropriate. What is critical is that such legal instrument should outline what is considered the key issues to be addressed therein as will be outlined below. With respect to national legislation, some jurisdictions may also prefer to amend each and every border control related Act and regulations to provide for the principles of extraterritorial application and hosting arrangements. Whilst such an approach can be equally effective in intention, it is considered too laborious and time-consuming especially considering that border related Acts are numerous and may even be plus 20 in most jurisdictions. It would take a long time to individually enact the changes through the legislature Multilateral arrangements From a regional perspective, it may be considered most appropriate to conclude a multilateral arrangement between a number of countries sharing common borders with each other by way of a common legal instrument and approach to the establishment of OSBPs. Such approach can be at the REC level or sub-sets thereof. This approach has been used in UEMOA and ECOWAS regions, where the land on which the CCZ for the two states becomes the property of the Regional Economic Community. In which instance before the legal framework for the establishment of OSBPs can be put in place there will be need of legal frameworks to effect the transfer of the land into the hands of the REC. There have not been studies to determine which methods are most beneficial but the transfer of CCZ to a REC connotes deeper regional integration. Thereafter the following approaches are recommended: Final OSBP Source Book Page 33

50 1) An Act and Regulations This is an approach most suited for RECs that are structured in such a way that they have a regional legislative assembly that has a mandate to legislate for the REC and such legislation is binding on all countries within that grouping and, once ratified, has overriding effect on all domestic legislation to which its provisions apply. For instance, this is the approach that was used for the EAC as it is structured as envisaged. This framework entails the enactment of an Act on OSBPs defining the broad principles to be followed by the REC States in implementing OSBPs at mutual border posts. It should specifically entrench the principles of extraterritorial jurisdiction of national laws and hosting arrangements and mandate the REC s appropriate structures to make Regulations covering the detailed operational and administrative parameters and procedures for such OSBPs. Variations to the framework to suit special REC circumstances could include a combination of the Act and Protocol or Act and individual bilateral agreements for each border post. Such a framework provides a more expeditious and integrated approach to not only harnessing consensus between the REC States, but would also easily give legal effect to the provisions of the Act in the REC States jurisdictions. It is most suited to environments where there are existing policy decisions and supportive legislative instruments at REC level mandating the establishment and implementation of OSBPs within the REC as was the case with the EAC region. Furthermore, it is most likely to deal with implementation parameters and related issues with greater uniformity due to its prescriptive and binding nature notwithstanding that it could at the same time also be rigid and difficult to inform and refine through practical experiences during implementation. 2) A REC Protocol and National Acts This is an approach most suited for RECs that are structured in such a way that they do not have a regional legislative assembly that has a mandate to legislate for the REC and rely on multilateral arrangements such as protocols, treaties, MOUs, etc with binding effect on all the REC States within that grouping once it is ratified. It must be noted that such protocols ordinarily have no automatic overriding effect on all domestic legislation of a State and have to be domesticated in order to have any legal effect. For instance, this is the approach that would be appropriate for use in SADC and COMESA. This framework envisages a REC Protocol defining the operational and administrative parameters and procedures for the OSBPs in the region together with individual enabling Acts passed in each of the REC States entrenching the principles of extraterritorial jurisdiction of national laws and hosting arrangements in all national border controls related legislation. It is a framework which also lends itself to various variations with respect to the nature of the multilateral arrangements the REC States want to commit to as outlined in the paragraph above. Whilst the framework ensures uniformity of approach at OSBPs in the region through the Protocol, it would be fragmented and cumbersome to procure requisite enabling Final OSBP Source Book Page 34

51 legislations in all the REC States, especially within the same timeframe because of differences in the legislative processes of the various States Essential elements of any OSBP legal framework The following essential elements need to be addressed in any of the above-mentioned legal instruments that are deemed appropriate for the peculiar circumstances of each OSBP implementation environment. This is to ensure that the OSBP concept becomes effective legally as well as procedurally wherever it is implemented. Countries may also need to develop their own individual national legislation to ensure all the respective functions and controls in the context of the OSBP are appropriately legally provided for within their national jurisdictions. In this regard, it is essential that whatever legal framework is used, it: Identifies the border crossing where one-stop procedures will apply. This shall include defining the CCZs within which officers from both states will perform controls and in which they may circulate freely. It also includes defining the areas set aside for the exclusive use of each State s officers. Identifies the border controls to be performed. Typically, all envisaged border controls should be undertaken at a one-stop facility, but certain controls may be excluded for practical reasons. Defines the sequence of controls. Usually, the procedures of the country of exit are performed before the procedures of the country of entry. Refer to Section 3.2 for further explanation when considering the benefits of different intervention points of the various agencies. Exceptions can be allowed subject to agreed procedures. Use of delegated authority amongst border agencies may be considered in an effort to make OSBP operations more efficient e.g. export controls which are not risky may be done by the Revenue Authority of the host country on behalf of their counterparts. Incorporates the principles of extraterritoriality and hosting arrangements and confirms that each State s laws may be applied in a CCZ in the other State in the same way as they apply in its own territory. Defines the powers of officers in the host State. Generally, officers enjoy all the powers that they have within their own State. The agreement must define at which point officers of one State may no longer exercise their powers so that the officers of the host State can undertake their controls. This is necessary to avoid confusion about which state has jurisdiction at any point in time. It should be made clear that once exit formalities are completed jurisdiction passes to the country of entry. How this is done should be documented for clarity purposes. Defines jurisdiction in respect of offences committed in the control zone. A distinction is usually made between offences committed in terms of border control laws and those committed in terms of general law and order laws. In the former case, each State has jurisdiction with respect to offences under its border laws which are detected while its officers are undertaking their controls. Once a State s officers have completed their controls, they no longer have jurisdiction, except with the agreement of the officers of the other State. With regard to general law and Final OSBP Source Book Page 35

52 order offences, the accepted approach is that the country in whose territory the offence is committed has jurisdiction. Procedures on how to treat goods which are subject of an offence in the host country detected by guest officers performing exit formalities in terms of warehousing and traffic flows in case the consignment is supposed to be warehoused in the country of export should be made clear in order to avoid confusions. Defines the immunities of foreign officers in the host State. Generally, the host State would guarantee that they would not prosecute foreign officers for acts performed in the CCZ while they are exercising their functions. Such immunity would, however, not extend to general law and order offences that officers of the adjoining State may commit in the host State. Specifies measures to facilitate the work of foreign officers in the host State. This includes the right to freely enter and exit the host State (possibly subject to the requirement of agreed identification) and the right to freely move any items required for official functions within the control zone without such being regarded as imports or exports including any movement of revenue collected in the host nation. It should also include the right to repatriate monies collected in the control zone. Facilitation measures may also include undertakings by the host State to assist in obtaining utility services such as water, electricity and communication links. Agreement may be necessary with regard to cost sharing arrangements, or States may alternatively agree to provide services to each other for free, based on reciprocity for ease of managing OSBP operations. Assuming States have achieved a substantive level of co-operation, the legal instrument may also provide for officers of one State to be appointed to undertake controls on behalf of the other State. Such a measure (which assumes that officers are trained in each other s procedures or apply substantially harmonized procedures) can contribute towards a better utilization of available personnel at the border. Delegated authority amongst border agencies should be the long term goal in making OSBP operations more efficient starting the process in low risk areas e.g. exiting formalities where there is not much revenue at stake under customs authorities. In addition to the above legal framework SOPs are usually developed to supplement the legal instruments that would have been adopted. Ideally, the SOPs regulate the issues that are paramount to the day-to-day functions of the border agencies, coordination, procedures of all border agencies for both countries. SOPs will need to be agreed based on consensus amongst the agencies and the two states, and usually operate on a reciprocal or mutually beneficial basis. 7.4 Appropriate Process for Enactment of the Legal Instruments in Each Jurisdiction Negotiation and approval process for a bilateral agreements The following broad outline of the process to be used during the negotiation and approval of the Bilateral Agreement, as informed by experience, is recommended. It includes stakeholder consultation, development of a succession of working drafts and plenary workshops. Final OSBP Source Book Page 36

53 There should be at least two initial workshops to be conducted in each country with various border control Agencies and relevant private sector stakeholders. These should be attended by both technocrats and policy making senior officials. The first entails an explanation of the OSBP concepts, presentation of a generic Draft Bilateral Agreement and a call for the various participants inputs to the Draft. The second workshop is for the presentation of the Draft incorporating the inputs from various agencies and private sector stakeholders, refinement and development of country specific positions on the issues contained in the Draft. Thereafter the first plenary session would be held where both countries are present. An initial draft to be presented consolidating the common positions of both countries on the issues and also highlighting areas of divergence and focusing on obtaining consensus in these areas. The technical committee responsible for procedures formulation should play a critical role in identifying possible areas of challenges in reference to national laws. The second plenary workshop would be held thereafter whereby a Draft with the consolidated views is to be presented and refined to fully reflect country agreed positions. Involvement of legal experts from the Ministry of Justice is paramount since their input is also very important. Thereafter another workshop is held with the Steering Committee consisting of the Permanent Secretaries and senior officials from both countries whereby the Permanent Secretaries are called upon to review, comment and agree to the Draft. Thereafter, the relevant Permanent Secretaries in the Steering Committee would take the Draft to their various Ministries for briefing and formal buy-in. The Final Draft Bilateral Agreement from the above outlined process is then sent by the sponsoring Ministry in each respective country to their Attorney General s (AG s) Office for formal legal inputs and endorsement. (Please note there could be variations in the internal processes of each country from the one here in outlined). The Draft Bilateral Agreement incorporating the Attorney General s inputs, is then sent to the Cabinet Committee on Legislation or equivalent. The Cabinet Committee on Legislation then presents its comments to Cabinet with the Draft Bilateral Agreement being presented by the sponsoring Ministry. Cabinet then approves the draft bilateral agreement. The Sponsoring Ministry is then granted the authority to sign the Bilateral Agreement on behalf of each state. A signing ceremony is thereafter set up where both respective Ministers sign the Bilateral Agreement. In some countries, the agreement becomes binding after signature with no need for ratification by any other body. In other countries, after the Agreement has been signed there will be need for ratification by Parliament or some other body before the Agreement becomes binding. Final OSBP Source Book Page 37

54 7.4.2 Time lines and closure (continuity, momentum and continuous consultation with public and private stakeholders) Specifying a timeframe is quite difficult especially considering that parties may take longer to agree as to the content of the Draft and may require more than the specified number of workshops and plenary sessions to reach consensus. The whole process is mainly determined by the period of negotiation and agreement depending on the needs and level of cooperation between the two different States. It is however imperative that the following critical success factors are adhered to during the process: Open involvement of all relevant key stakeholders of the public and private sectors and acceptance by both of the criticality for such partnership. Ensuring that where practical, the same participants be chosen to see the whole process through or at least that those who attend at any stage are fully briefed of the decisions made in previous sessions for continuity purposes. Momentum must be maintained by ensuring that short deadlines are given and workshops are not scheduled too far apart. Funding and suitable venues for these workshops is of paramount importance. Continuous briefs and consultations with all levels of the parent ministries and private sector associations for continuous buy-in on the outcomes of the process. Involvement of the legal officers from the Attorney General s Office from the onset of the process is strictly recommended for them to provide expert guidance and oversight of the process. Need for a consultant who is a third party with the requisite experience and no discernable conflict of interest to drive the process adds considerable value to the outcomes Enactment process of a national OSBP act The national OSBP Act provides for an enabling and empowering framework for the implementation of the OSBP within a bilateral arrangement between countries. Each country will need to enact an Act to ensure that the legislative framework for the OSBP is in place. The recommended framework for such enactment is as follows: The Draft OSBP Bill should be tabled and concepts therein fully explained, discussed and refined during the workshops convened for the negotiation and approval of the Draft Bilateral Agreement. Once the Draft Bill has been finalised and adopted by the officials during the negotiation process, it can be subject to a separate process from that for the Draft Bilateral as the two processes are mutually inclusive and can run parallel to each other. The sponsoring Ministry sends to the Cabinet Committee on Legislation a document outlining the principles and policy framework of the intended legislation together with the Draft OSBP Bill. (Please note there could be variations in the internal processes of each country to the one here in outlined). The Committee would then present its comments to Cabinet with the sponsoring Ministry leading the submission. Final OSBP Source Book Page 38

55 After the Cabinet approval the Attorney General`s (AG s) Office refines the Draft Bill in close consultation with the sponsoring Ministry and all stakeholders. The Draft Bill is then re-sent to the Cabinet Committee on Legislations for further comments. The Bill is then presented for approval to Cabinet by the sponsoring Ministry after incorporation applicable comments from the Cabinet Committee on Legislation. On approval by Cabinet, the Bill is sent to the AG s Office for gazetting. Plans for gazetting should take cognisance of parliament sitting periods in order to avoid any further delays. Thereafter it follows the various parliamentary processes that include the first reading, second reading, committee stages, third reading, etc., for its enactment. Upon parliamentary approval, it passes on to the President for his assent and commences operation as an Act of Parliament on the stated date of commencement. The whole process can take a period of between two to six months. However, this is dependent upon whether the parties would have agreed in the first place to go ahead with the establishment of an OSBP at their common border. Some processes as already indicated above can however run concurrently to the negotiation and approval of the Bilateral Agreement Negotiation and approval process for multilateral arrangements The above processes outlined for the negotiation and approval of bilateral arrangements are, with appropriate and necessary changes, adaptable to the process for the negotiation and approval of the various instruments as highlighted herein above. Similarly, the issues aforementioned as being of critical importance to the bilateral processes are equally applicable to the multilateral processes Legal issues relevant to OSBP The implementation process should generally be kick started by training of both policy makers and all officers and staff of both the public and private sectors that are intended to operate at the OSBP. Such training should generally encompass the following: General legal issues relevant to the OSBP concept including: Explaining the legal principles that underpin the operations of an OSBP Providing guidance to officers with regard to their powers at an OSBP Providing guidance with regard to the legal position of officers of one State operating within the territory of another State at an OSBP Specific provisions of the enabling instrument relevant to each stakeholder. These should include the following aspects: Key definitions such as: Final OSBP Source Book Page 39

56 Extraterritoriality principle whereby the application of a national law or laws is extended outside the borders of the State. As a general legal principle, a national law only applies within national territory. Hence a law will only apply extraterritorially, if this is expressly provided for in that law. OSBP traffic in both directions literally stops once, ordinarily in the country of entry in a juxtaposed facility, where both exit and entry formalities are completed from a single location. CCZ the clearly marked and specifically demarcated area within which the laws of another country shall have legal application. Any purported application outside that zone would be illegal and tantamount to a violation of the territorial integrity of that State. Extraterritoriality and hosting arrangements these are key principles of OSBPs, without which no such operations would be possible. Operatives can only legally do that which the laws allow them to do outside their territory, otherwise any such action would be illegal and can be challenged by the person against whom it is taken. It is thus important that operatives are able to make reference to the specific sections of their law from which they derive their powers to act extraterritorially when carrying out their functions or faced with such challenge. It is advisable to capture observations by operatives of any envisaged challenges in reference to their national laws. Undertaking border controls border control officers should, in principle, be able to undertake their controls in exactly the same way as at a two stop border post except that due to the proximity of the officers of the other state at the same location, there is little or no delay in between the conclusion of one State s exit controls and the commencement of the other State s entry controls. It is imperative that when undertaking controls, officers keep in mind the following: Sequence of controls the normal sequence is that exit controls are undertaken prior to entry controls. However the various agencies from both countries can essentially implement processes simultaneously with certain decision steps of different agencies in the order of country of exit and country of entry can be queued for formalization whilst any associated or dependant processes are ongoing. It is important to adhere to this sequence so as to avoid confusion over which State has legal jurisdiction over the person, vehicle or goods subject to controls. As a general principle, jurisdiction resides with the State whose officers are conducting controls. Handing over controls it is important to follow the correct procedure for handing over controls because once controls have been handed over, the person, vehicle and/or goods being controlled move from the jurisdiction of one State s laws to the jurisdiction of the other State s laws. This implies that the officers ceding control acknowledge that they have no further claim to conduct controls in respect of that person, vehicle and/or goods. Joint controls officers from both States are encouraged to undertake joint controls and the preceding discussion above should not be interpreted as inhibiting practical arrangements whereby officers undertake joint controls, e.g. in inspecting cargo. Joint controls follow the same principle regarding sequencing and Final OSBP Source Book Page 40

57 handing over control as described above. This means that officers from both states may attend a joint inspection, but that at any point in time, only one State s officers will be conducting controls, while the other State s officers will attend as observers, until the moment when control is handed to them as described above. The act of observation will, in practice, have the effect of joint controls, as it will remove the need for the officers of the entry state to repeat the inspection. Where head office approval to conduct joint controls is necessary, this should be obtained on time for implementation among all border agencies for the purposes of maximising benefits from OSBP operations. Departments like Interpol require express authority from the Commissioner General of Police. Reversal of controls in practice, it may occur that the sequence of controls is reversed. If this happens, the officers of the State of entry may proceed with their controls prior to the officers of the State of exit undertaking theirs but may not exercise powers of detentions, seizure or arrest, before the officers of the State of exit have completed their controls. If officers of the State of entry wish to exercise such powers, they must first escort the person, vehicle or cargo to the officers of the state of exit to allow them to complete their controls, before proceeding to detain, seize goods or arrest an offender. If officers of the State of exit wish to proceed to search, seize goods or arrest an offender, they shall enjoy precedence in exercising their controls. Return of persons, vehicles or goods the State of exit is obliged to accept the return of the person, vehicle or goods that has been denied entry into the State of entry, notwithstanding that such State would have completed its exit formalities and handed over jurisdiction to the State of entry. However, with certain decision steps queued for formalization whilst dependant processes are ongoing such as queued finalization of both entry and departure where departure is not formalized until entry is guaranteed, the process of readmission to the country of departure could become almost automatic if not redundant since the person has not yet officially departed thereby ensuring the obligation to accept the return of persons. State of entry may not arrest or detain a person while in the territory of the state of exit as general rule, officers of the state of entry will not control persons (including their personal effects, vehicle or cargo conveyed in the vehicle) in the state of exit. Where this does occur, such controls will be informal and should be undertaken solely with the aim of facilitating the movement of persons and traffic through the border post. Power of officers under border control laws within the CCZ in the adjoining country, an officer has the same powers as he/she would have working within their own country, subject to any exceptions as may be defined in the legal enabling instruments. The powers of an officer working in the neighbouring or host State are only restricted by the action of handing over control. Once control has been handed over (as described above), an officer can no longer exercise that power, except with the express permission of the officer of the State to whom control has been handed. Final OSBP Source Book Page 41

58 General law enforcement powers whilst border agencies exercise their functions in terms of specific powers granted in their respective laws, e.g. the Customs and Excise Act, Immigration Act etc., by contrast, police officers have general powers to enforce the principles of any law. For instance, where a police officer assists a border control officer with the latter s functions, the police officer s powers are restricted in the same way as the powers of the border control officer. In other words, the police officer may not exercise any power if a border control officer is not also entitled to exercise that power. On the other hand, a police officer s general law enforcement powers, e.g. under the Criminal Code, is restricted to each State s national territory. This implies that each police force has exclusive general law enforcement jurisdiction within its national territory. This means police officers cannot exercise general law enforcement powers extraterritorially and if a general law offence is committed in the control zone of another State, it is that State s police officers who shall have exclusive jurisdiction. CCZ the extent of a CCZ shall be as is specifically defined in the founding legal instruments. It is important that officers working in the neighbouring state familiarize themselves with the boundaries of the CCZ. Their extraterritorial powers may only be exercised in the CCZ and hence any powers exercised in the neighbouring state outside the CCZ, may be challenged as being legally null and void and also deemed a violation of the territorial integrity of that state. A CCZ could also be on a train or bus. Exclusive use areas each State will have granted officers from the neighbouring State access to a working area set aside for their exclusive use. In order to protect each State s interests, the host State agencies may not enter an exclusive use area, except at the express invitation of an officer from the neighbouring State. The only exception to the above principle is where a law and order offence is committed in an exclusive use area and the police officers of the host State may enter that area without permission, provided they would otherwise have the power to enter premises under their own law. Such powers may only be exercised for the purposes of effecting arrests (if applicable) or otherwise obtaining evidence. As a courtesy, however, it is strongly recommended that these powers be exercised in consultation with officers from the neighbouring State and preferably at their invitation. Immunities officers from a neighbouring state enjoy immunity from prosecution by the host State for any action related to the performance of their border control functions. Such offences are dealt with by the officers of the State that will have jurisdiction in terms of its laws. However, such officer s immunity does not extend to law and order offences. If an officer from a neighbouring State commits a law and order offence in the host State, he/she is subject to the criminal jurisdiction of that host State Legalizing various schedules Other critical implementation parameters that should complement the training module include the following: Final OSBP Source Book Page 42

59 Legalizing the various schedules as will be provided for in the agreements that are intended to be firmed up on after the agreements come into effect such as: Control zone demarcation and designation schedule this outlines the extent of the CCZ by way of a schedule to the founding legal instrument spelling out the exact survey coordinates, maps and any relevant diagrams depicting such. Cooperating partners funding OSBP development should ensure that these demarcations are done for clarity purpose and avoidance of doubt. Procedures manual outlining the agreed procedures to be used in undertaking the border controls by the various agencies of the two countries within the CCZ of the OSBP and to incorporate any future changes to the procedures as and when further developments to OSBPs are undertaken. Any other operational and administrative schedules as may be so specified in the founding instruments Additional agreements that might be necessary Concluding supplementary and complementary agreements, protocols, treaties, and any other legal instruments as may have been anticipated in the founding instruments including the following. Including these in the founding instruments may also be sufficient. ITC connectivity protocols between the States. Information sharing protocols/agreements between States. Information sharing arrangements between agencies and the private sector. Delegated responsibilities between agencies. Sharing of comparable infrastructure facilities and maintenance of the same. Agreement regarding utilities. List of goods to be placed on fast track. Ancillary instruments used like commercial cargo gate pass Language considerations Language differences are not usually a challenge in the establishment of legal frameworks for partnering states who may have different languages, as most legal instruments can easily be translated. However, it is also important that SOPs also be translated and other procedural documents or shared information as well. The real challenge would seem to be with various procedures documentation for use at the OSBP which would need to be in multiple languages. Often differences in language also bring differences in the border procedures that will need to be addressed during the drafting and review process. 8. BORDER PROCEDURES - SIMPLIFICATION AND HARMONIZATION Africa has many land locked countries that face special difficulties in fostering trade-led growth. A number of studies have reviewed the impact on time, cost and reliability, created performance measures for trade logistics and recommended measures for introducing improved transit regimes and smart corridors. The Final OSBP Source Book Page 43

60 legal basis for ECOWAS and the Northern Corridor in East Africa are examples of seeking to protect the transit rights of land locked countries. Two recent studies of the cost of being land locked and the development of the logistics performance indicator are examples of this effort. 17 The development of enhanced border operations is directly linked with efforts to improve overall corridor operations. As indicated earlier, the core of any border modernization program or OSBP implementation is streamlined procedures that take advantage of the various tools available to achieve a good balance between needed controls and trade facilitation. It is often easier to start with construction of infrastructure and there are many cases of that happening in all of the regions. Attention to procedures and elimination of long established systems for maintaining controls are difficult. It requires both political will and a commitment to adopt new approaches. Nevertheless, designing buildings, negotiating a legal framework and even a review of ICT without preliminary consensus on new procedures will not lead to an effective OSBP implementation. An OSBP is first and foremost, a streamlining of clearance processes and the other components all support effective, fast OSBP operations. Therefore, a process for rethinking procedures should precede the implementation work. This section describes aspects of this process and specific tools that are available for improvements in the procedures and clearance times. Not just customs, but all other border agencies are hesitant to begin a review of procedures because of concern about losing jobs and influence. Such an attitude is counterproductive as it is unlikely to protect either jobs or influence in the medium term. It is critical that a positive perspective is set by management in this assessment and streamlining process. The OSBP facility and its procedures inevitably begin and end with Customs as a lead agency by design or default in most African countries. Customs and other border control agencies are central, if transaction efficiency and seamless operations are to be achieved in the OSBP. Customs and other border management agencies in Africa have registered considerable strides in improving their delivery of trade facilitation. Traditionally, the roles of these agencies have focused on the control of goods crossing the border for revenue collection, industry assistance and standards, community protection and health, economic development and security. Over the last two decades, these traditional roles have widened to include in principle the facilitation of legitimate trade. In practice, however, this new objective is often recognized and upheld only so far as it does not infringe on the agencies existing border control practices and tendencies as provided in their national laws. 8.1 Review of Current Document Requirements and Procedures Elimination of outdated systems Outdated and overly bureaucratic border clearance processes imposed by customs and other agencies are now seen as posing greater barriers to trade than tariffs. Cumbersome systems/procedures and poor infrastructure both increase transaction costs and lengthen delays for the clearance of imports, exports, and transit goods. Such costs and delays make a country less competitive whether by imposing deadweight inefficiencies that effectively tax imports, or by adding costs that raise the price of exports. Moreover, inefficient border 17 Arvis, Jean-François, Gael Raballand and Jean-François Marteau, The Cost of Being Landlocked: Logistics Costs and Supply Chain Reliability, World Bank, Arvis, Jean-François, Monica Alina Mustra, Lauri Ojala, Ben Shepard, Daniel Saslavsky, Connecting to Compete 2010, Trade Logistics in the Global Economy, World Bank, Washington, DC Final OSBP Source Book Page 44

61 management deters foreign investment and creates opportunities for administrative corruption. 18 It is incumbent upon both Customs and other border agencies to eliminate outmoded models of clearance and to embrace simplified, often electronic means of achieving their objectives. According to a recent publication, West and Central Africa has the highest number of physical inspections of freight worldwide (estimated at 45%). One of the first steps, if not already being done, is to audit and review all procedures to determine their purpose and whether they are still needed. Often even when processes are automated, paper trails are still maintained, although the paper forms go into a storeroom and are not used. Such redundant activities must be evaluated and eliminated whenever possible Simplification and modernization Customs agencies have typically led border management reform efforts, and improving customs remains a high priority for most countries. Customs is only one of the agencies involved in border processing, however, and evidence suggests it is often responsible for no more than a third of regulatory delays. In countries with high overall logistics performance, data from the World Bank s Logistics Performance Indicators (Arvis et al, 2009) suggest that traders are much more satisfied with the performance of customs than they are with other border control agencies. The Logistics Performance Indicator statistics highlight the need to reform and modernize border management in all areas in addition to customs, such as health, agriculture, quarantine, police, immigration, and standards as well. Similarly, in many African and other developing countries, time release studies using the World Customs Organization s methodology suggest that improvements meant to speed goods through customs are undermined by the comparative failure of other border management agencies to reform using similar modern approaches and risk based selective inspection techniques. Therefore, as indicated in Section 4, simplification and then coordination of all agencies in an integrated clearance process is at the core of successful reform of this nature. Hence the importance of all agencies being considered during the planning, design, implementation and management of OSBPs. An example of customs simplification is the SAD 500. SADC reduced over 50 separate documents into the SAD 500, which is now used in SADC as the core document. The data fields used on all the documents were reviewed and it was found that most of the data fields were repeated and the few unique ones could be incorporated onto the single document. Once the document was adopted for national use, then the same document could be presented at all SADC borders. The next step was to be able to download it electronically in the adjoining state for verification purposes and then to be able to transfer data elements to generate new forms without re-entering the data from the form. The SAD is described more fully in Section In West Africa, the ISRT 19 was adopted for use at all borders within ECOWAS. While it represents the same process of simplification it is a booklet, purchased from the Chambers of Commerce, with pages to be torn out at each 18 McLinden, Gerard, "Introduction and Summary", McLinden, Gerard, Enrique Fanta, David Widdowson and Tom Doyle, Border Management Modernization, The World Bank, 2011, p Interstate Road Transit of Goods, adopted 29 th May TRIE is the French acronym. It specifies the itinerary, vehicle marking and seals, that the goods must be delivered intact and that the laws of the transit country must be respected. Final OSBP Source Book Page 45

62 border. This too needs to be converted to an electronic system rather than a manual paper driven system An example of immigration simplification is the installation of various border management information systems 20 in multiple countries across Africa, and the removal of entry and departure card processes for residents in Tanzania. These systems provide the potential ability to obtain multiple entry visas / permits at BCPs in order to reduce visa processing workload, especially within transport corridors and relating to transport operators. An example with other border agencies is SPS. When countries apply the international standards, such as the International Plant Protection Convention on plant health and the World Organization on Animal Health standards, it allows for common requirements among countries and much greater coordination on enforcement. The inherent value in the OSBP is to expedite movement of vehicles through the single stop and to expedite clearance processes through review and simplification of documents required, enhanced procedures and greater coordination among border agencies Harmonization of efforts within RECs and corridors As countries in Africa developed border agency forms, requirements, and automated systems over the years, there was little coordination and consultation among countries. As a result, there are thousands of data elements, hundreds of different forms, and as many different systems as there are administrations. This lack of coordination has created a confusing environment. These different requirements are rife with redundancy and duplication and are expensive to maintain and operate. It would be preferable that both customs administrations involved in an OSBP system use a common declaration form and introduce a SW System with the other border agencies, resulting in reducing the burden of document preparation work on themselves and clearing agents. Bearing in mind the fact that one country is next to several countries, using multiple forms within one country is not plausible. RECs are an appropriate body to tackle these matters. Some RECs are recognizing the significance of the WCO Data Model (WCO 2010) and are agreeing to include SW and developing a whole-of-government set of inter-regional standardized data and messages for import, export, and transit of goods, conveyances, equipment, and crew. Similarly there is a need to harmonize definitions of data elements associated with migration in order to facilitate cross-border and regional analysis of migration data and border movements. International standards and procedures from frameworks such as the WCO Kyoto Convention, WTO Trade Facilitation Agenda, IOM on migration and INTERPOL on global crimes are some examples that may be utilised. Harmonization between a customs administration and other border control agencies or between the countries is advantageous in an OSBP. If it is done before reviewing the procedures and practices, and eliminating the wasted effort, the current inefficiency of the 20 Such as the Personal Information Registration System or PIRS which is an open architecture BMIS developed and supported by the International Organization for Migration and its African Capacity Building Centre (ACBC). Final OSBP Source Book Page 46

63 work will remain. It is difficult to review procedures after the harmonization with other agencies or countries. Therefore, it is necessary to tackle improving the procedures and practices first and then focus on harmonization and standardization Adoption of a corridor or community approach The corridor approach emphasizes transits from origin to destination. As illustrated in Section 2.2, time spent at borders has a significant impact on the cost of transport and as a result on the competitiveness of goods when they reach the market. Transporters are driving expensive assets that have a fixed daily cost even when they are waiting for border clearances. Ideally, to contain the cost of transport and reduce high inventories, most goods would be cleared in motion on a corridor. This links the concept of transport efficiency with implementation of border controls. With the laying of new submarine cables off the coasts of Africa, the laying of fibre optic cable across the continent is accelerating. This makes possible far better interconnectivity between border posts and eliminates some of the onerous features of transiting under customs control. In Zambia, for example, transit goods are recorded on entry and the exit border post informed of the consignment details to handle acquittal on departure. Goods travel in bond with a 5-day limit to reach the other border, but without escort or interim check points unless high risk is identified. When viewed on an entire corridor basis, most goods that are not identified as high risk can be pre-cleared by each country on the corridor. To take one example, when goods enter Zimbabwe at Beitbridge the documents can be pre-cleared for exit from Zimbabwe and entry into Zambia at Chirundu OSBP. The same process can continue through Zambia to Kasumbalesa on the DRC border. With scanners being installed at most borders, scanned images can also be used to verify consistency of cargo, but only if some risk is perceived. Otherwise scanners can introduce an additional time-consuming bottleneck. RFID technology is also used for non-intrusive tracking of vehicles and cargo to identify diversion of goods and potential dumping with paying duties. Such systems are currently deployed in Ghana and being implemented in Kenya and Ethiopia. Combined with one stop borders and active risk management programs, a near seamless virtual corridor would be created. The OSBP is complementary to a principle of seamless movement of cargo and vehicles across frontiers. Effective preclearance and fast tracks through borders would provide a major incentive for compliance with border controls. With officers of both countries operating in the same facility, OSBPs provide the opportunity for this type of operation. Many of the main corridors in Eastern and Southern Africa have corridor committees that focus attention on improving corridor transport performance, eliminating the transport bottlenecks and reducing non-tariff barriers. Two that have been actively linking customs modernization and border efficiency with transport performance are the Trans Kalahari Corridor Management Committee and the Dar es Salaam Corridor Committee. Both have customs and transport subgroups that set their own performance objectives and then combine to work on overall corridor performance. Both of these organizations as well as other corridor committees, have been active proponents of OSBP. At the same time this corridor approach is promoted, RECs should be working on harmonization of documentation and controls throughout the REC. With the creation of Final OSBP Source Book Page 47

64 the Tripartite mechanism, harmonization could cover most of Eastern and Southern Africa. Further development of transit regimes and ICT systems that interface with each other is urgently needed as part of an overall modernization program. It will greatly enhance the introduction of OSBPs that make a significant impact. 8.2 Expediting Handling in OSBPs Simultaneous and joint processes Because clearance times are largely determined by the weakest link in a border processing chain, meaningful trade facilitation presupposes comprehensive reform initiatives across the whole of border management. There must be cooperation and information sharing among all agencies involved. The keen interest of many developing countries in harmonizing, streamlining, and simplifying border management systems and procedures has led to such initiatives as the OSBP, integrated or coordinated border management and the SW. There are several IBM models of OSBP facilities that exist in other parts of the world. Coordinated border management. This can include information sharing, co-located facilities, close interagency cooperation, the delegation of administrative authority, and the cross-designation of officials. SW systems. Traders can submit all import, export and transit information required by regulatory agencies at one time through a single electronic gateway - rather than submit essentially the same information repeatedly to various government entities. It will be dealt with in greater details under ICT section below. The above initiatives, which have some common themes, promise significant improvement in border management and clearance Means of fast tracking compliant clients Compliant clients are fast tracked through the border management tools of Authorized Economic Operator (AEO), risk management, green and blue channel lanes, pre-arrival declarations, post clearance audits and SW usage. (Discussed below) They can also enjoy other clearance options designed under modernization programmes: Warehousing which allows a trader time to mobilize funds, change status of goods, transfer ownership, modify/re-pack goods and storage space outside the CCZ. Temporary Imports (motor vehicles, construction equipment and trade shows/exhibition goods) allow easy reconciliation. Direct payment of duties enables faster delivery of cargo, and savings on storage, truck retention, demurrage, loading and offloading that are sometimes incurred through slower payment methods. Re-exports enables the trader to get better markets outside the customs area. Final OSBP Source Book Page 48

65 8.2.3 Incentives for compliance Incentives for compliance are given under the border management tools. Easier access to simplification by customs and other border agencies. Fewer physical and documentary controls from all border agencies. Priority treatment if selected for controls over non-authorised Economic Operators. Reduced time and cost in Customs and other agents related activities. Mutual recognition and status across the customs area. 8.3 Task Team Review and Encouragement of Greater Use of Border Management Tools Authorized economic operator (AEO) An AEO is an economic operator, by satisfying certain criteria, which is considered to be reliable in its customs related operations and is therefore entitled to certain benefits and greater trade facilitation. In an OSBP, the concept is to fast track compliant companies. This system is being used in parts of Southern Africa to reward compliant customers with faster border clearances, in return often for post clearance audit by customs and periodic random checks. It is currently practiced in Zambia where it has been used as a basis for establishing a Fast Track lane for processing and will be used for clearance of commercial vehicles through a booth. An initiative to develop common customs AEO policies for the EAC is being developed. SADC is also working on a regional system. i. The development of AEO status is the response to the need to improve intra- African trade and increase trade facilitation while improving compliance and closer partnership with the business community. The client will usually receive accreditation status that is recognized by all participating government agencies operating in the CCZ(s). ii. The aim is to provide business with an internationally recognized quality mark, which indicates that their customs procedures are efficient and compliant. That implies that upon arrival into the CCZ, the client is expedited to continue without getting subjected to the rigorous normal processes even at one stop posts. iii. AEO accreditation indicates that the business is reliable in financial and customs terms and can therefore be considered a reliable trading partner. This adds credence to qualify the client for (i) & (ii) above Risk management applications for customs and other border agencies The changes in the strategic landscape of Customs and other border agencies operating environment together with the long-term growth in trade and travel volumes have affected their way of managing and approaching their tasks. These developments, together with the increasing uncertainty regarding security and revenue leakage, have led many agencies to seek a more structured and systematic way to manage risks, especially across borders. Final OSBP Source Book Page 49

66 Risk management has been one of the key tools for customs and the other agencies to better meet the demands of the 21st century operating environment. The development and implementation of an intelligence-enabled risk management framework along with embedding a risk management culture within Customs and other border agencies has enabled more effective decision-making in relation to all areas of risk. Today risk management is seen as one of the guiding principles associated with best practice in border management. Risk is the possibility of something happening that will have a negative impact on organizational objectives. It is measured in terms of the probability that the action or event may happen and the consequences if it does happen. For customs, the risk may be that duty owed is undervalued or that commodities have been misclassified to avoid duty. For other agencies, it might be the admission of a new plant disease, harmful drugs, a person who is a vector for a highly contagious disease or the smuggling and/or trafficking in persons - with risk to the vulnerable persons being trafficked or having potential to be trafficked; and economically through such tools as the US TiP 21 Report and associated sanctions on funding for the US TiP Tier 3 list of nations. Risk level is the measure of the likelihood of the risk occurring and the consequences. Risk management systems identify, assess and quantify risks for the purpose of developing control measures. Risk management is systematic and helps decision-making at the border. It helps border agencies to enforce their controls whilst facilitating trade by compliant companies. Figure 8.1: Facilitation Control Matrix Implementing a risk management system requires: The Matrix illustrates the balance between controls and facilitation. Low control and facilitation creates a situation of continual crisis management. High controls with low facilitation create an environment of red tape and discourages trade. High facilitation and low control creates a laissez faire situation where society is not protected. A balanced approach is one in which controls are maintained while facilitation is also achieved. Greater use of systemised risk management tools allows for greater inter connectedness amongst agencies and effective controls. Risk management systems attempt to achieve a balanced environment of adequate controls while fostering trade or mobility. 22 Establishing a risk management committee comprising all OSBP agencies. 21 Trafficking in Persons 22 Widdowson, David and Stephen Holloway, Core border management disciplines: risk based compliance management, McLinden, Gerard, Enrique Fanta, David Widdowson and Tom Doyle, Border Management Modernization, The World Bank, 2011, pp Final OSBP Source Book Page 50

67 Determining the resources and environment in which the controls will be carried out. Identifying risks. Establishing the likelihood and severity of consequences for each to prioritize risk Determining measures to control significant risks physical inspection, scanning, documentary checks, post clearance audit, etc. Developing an information and intelligence sharing protocol. Sharing information with other agencies. Monitoring how well measures identify and address risks. Once this process has been followed, risk profiles for all border control agencies can be entered into ASYCUDA or other risk management software. Selectivity parameters are entered for each agency so that the software can evaluate risk concerns for all border agencies and recommend the channel for each consignment: Red for thorough documentary check and physical inspection Yellow for documentary check Blue for post clearance audit Green for release after face vetting only It is best practice that not only customs use risk management, but that a system for integrated application of risk management be used that identifies and selects the most important risk for all border agencies. In an OSBP environment, border agencies from the two countries work in close proximity to each other. This promotes more intelligence sharing on risks as well as greater use of joint inspections. It encourages coordinating the exit and entry procedures in the OSBP and for sharing intelligence related to documentary checks. Nevertheless to be effective, the risk profiles and selectivity criteria must be continuously updated to reflect the risks perceived at the borders. The risk management system is generally maintained at headquarters, so it is necessary that a reporting mechanism is set up at the border with regular updates to headquarters for the system to adequately address the changing risks to achieve agency objectives. Risk management can serve as the basis for finding the balance between controls and facilitation and provide the means for more effectively coordinating the work of the different agencies involved in exit procedures and those involved in entry procedures. Benefits for participating agencies include: Supporting strategic and business planning, Promoting continuous improvement, Receiving fewer shocks and unwelcome surprises, Grasping new opportunities, Enhancing internal and external communication, Reassuring stakeholders, and Helping to focus organizational programmes. From the CCZ operations perspective: Final OSBP Source Book Page 51

68 A sustained and transparent risk management environment, Participating customs and agency employees take responsibility for managing risk and make decisions based on sound risk assessment practices, Effective and efficient resource deployment, A continuous monitoring and evaluation culture that leads to better operational results, and The ability to respond and recover quickly and effectively when risks are realized. From a regional government and wider stakeholder perspective further benefits of risk management include: Better balance between Customs control and trade facilitation, Enhanced focus on high risk movements of goods and passengers, Improved compliance with laws and regulations, Reduced release times, lower transaction costs, Creation of a more level playing field for business, Improved cooperation between traders and border agencies, and Better foundations for more efficient revenue collection. In conclusion, risk management principles should be applied to improve inspectiondetection ratios and to let border control agencies more effectively target suspect or high risk shipments while speeding the release of shipments, that pose little risk in terms of revenue loss or hazards Pre-clearance and pre-payment A customs administration requires traders to put their pre-cleared goods under its physical control in order to ensure collection of the import duties and taxes, prevention of the contraband smuggling and execution of all the trade related laws and regulations. Many customs administrations prefer traders and clearing agents to lodge a declaration prior to arrival under the pre-arrival lodgement scheme, but they cannot release goods before the physical arrival at the border post is confirmed. Customs administrations will release goods before their arrival for AEO clients only as an administrative disposition. Other clients will just get informed on the status of their cargoes while the cargo is still in transit. With the exception of AEO clients, customs cannot give the traders and clearing agents a 100% guarantee and still retain an authority to change the status upon their physical arrival; otherwise traders or transporters can easily smuggle contraband, evade the import duties and taxes and avoid requirements of trade related laws and regulations. Traders or clearing agents lodge their declarations for their cargoes prior to arrival under the pre-arrival lodgement systems, The customs administration gives such cargoes an immediate release status after completion of all the necessary official procedures, The customs administration physically confirms their arrival (enter the Customs Custody) at the entrance gate and simultaneously releases them at the exit gate. Final OSBP Source Book Page 52

69 In some cases, a customs administration requires importers or clearing agents to pay duties and taxes only through a bank within the CCZ. To quicken the payment system of customs fees at places of customs clearance, new practices and modes of payments are being introduced. These include, but are not limited to; payment by a debit card, cash, cheques, electronic funds transfer, real time growth settlement, bank drafts, electronic payment (Visa and Credits Cards), mobile payment system and point of sale. Therefore coordination and partnership between customs services and banks receiving payment at places of clearance is of great significance. Furthermore, a one stop shop clearance by all relevant officials will facilitate trade by reducing the time and inconvenience for agents having to move across many desks for clearance purposes. 8.4 Other Border Management Tools There are other border management tools listed below that establish closer interdependencies among policies, processes, implementation strategies, governance models, organizational structures, development frameworks, and supporting infrastructures within the CCZ Supply chain management The supply chain is the continuous linking of activities that take place for the systematic movement of goods from place of origin to the place of final destination. To facilitate international trade, the supply chain must first be secured. Securing the supply chain raises issues around the physical movement of goods between places and operators within the supply chain. Unless the consignment s onward movement can be satisfactorily monitored throughout its export or import transportation leg, no amount of advance information will provide any guarantee about its integrity. Therefore, for the OSBP to remain efficient and effective, there must be a mechanism, such as RFID, to monitor the events taking place along the supply chain Emergence of new border management institutional arrangements Internationally, a number of countries have or are in the process of reviewing their border management institutional arrangements to support their new operational imperatives. As mentioned in 4.1.1, recent examples include the establishment of the one-stop window information desks targeting informal traders currently introduced and supported by COMESA and International Trade Centers set up at border posts in East Africa Single administrative document (SAD) The promotion of a SAD for the purposes of submission of a trade and movement declaration document which is applicable to customs and all others controlling agencies. A SAD is a standard format document containing fields for the entry of trade and movement data to service the purposes of all agencies. This eliminates the requirement to submit different sets of the same data to obtain the approval of different control agencies. The implementation of the SAD had the following essential characteristics: To ensure openness in national administrative requirements. This openness constitutes the basis for any progress and simplification. Final OSBP Source Book Page 53

70 To rationalize and reduce administrative documentation (of a statistical, tax, transport, exchange-control, etc. nature). The SAD replaces the different administrative forms previously required, and limits the administrative documents which may be required in support of the SAD. Such documents may cover: The documents expressly created by Government Acts or provided for by such acts for the implementation of specific regulations, the application of which cannot be implemented solely by the use of the single document. The documents required under the terms of international trade and conventions compatible with the REC s treaties or protocols, e.g. transactional documents, certificates of origin. The documents required by other border control agencies or from clearing agents/brokers operators to enable them to qualify for an advantage or specific facility. To reduce the amount of information and standardize the required data. The legislation on the SAD establishes, procedure by procedure, the maximum list of information which can be required of operators. To harmonize data likely to be transmitted from one Member State to another, together with the establishment of common codes, constitutes a language understandable in all the Member States and avoids linguistic problems for the documents which are drawn up in other countries. The SAD therefore fits within this framework and provides the basis for coordinated development of computerized systems Customs voluntary disclosure program (VDP) To encourage voluntary compliance and industry self-regulation, several customs administrations have instituted voluntary disclosure schemes which allows for traders to inform customs of errors made leading to short-payment of duties and taxes. Such a scheme can only be used if customs had not yet instituted any investigations against the traders. The scheme facilitates the traders who may not have to pay any penalties for shortages disclosed or may pay a smaller percentage of penalties. VDP is for individuals or companies who voluntarily come forward in good faith to disclose their errors and omissions in exchange for reduced fines or no penalty quantum. Eligibility Criteria for VDP Benefits: Disclosure must be voluntary; Disclosure must be complete; Disclosure is made before notice or commencement of audit checks and investigations. Process Disclosure Format Any written application in form of letter, fax or OR VDP form Disclosure Period/Volume Final OSBP Source Book Page 54

71 No fixed period/volume. Document Submission Documents may be required for submission to support the VDP application. 8.5 Determine Procedures for OSBP Operations In 2008, Mr. Mizui, the Chief Advisor for JICA, worked closely with EAC regional customs senior officials on a model for operational system for OSBP. He made significant proposals that contribute to the procedures operative in the OSBP set-up. He proposed three OSBP models (pillars) as procedures for the best practice in operationalizing OSBP; concurrent processes, release upon arrival and management by tack time. His proposed procedures encompass common practices, but put in a logical and sequenced format. Let us consider briefly each one below as it relates to Malaba, Busia and Namanga s experience where Mr. Mizui, worked closely with the regional senior customs officials and other border agencies. Software described in pillar one and two, has been designed and is now in the pilot stage in Kenya before being rolled out within EAC. It has the potential to facilitate many improvements in OSBP procedures at OSBP in the regions. Pillar One - Concurrent processes In order to address the multiplicity of the clearance processes, the model introduces Concurrent Process including Single Counter System, Concurrent Document Processing and Joint Coordinated Physical Examination by developing a custom-made ICT system, OSBP Real Time Monitoring System (RTMS) as a mechanism to confirm completion of all the necessary official procedures prior to release. RTMS will improve visibility of the processes to make it clear who causes any delay. This peer pressure will automatically synchronize customs and other border agency (OBA) document processes and implicitly push concerned officers to speed up their examination work. This is a management technique called Peer Comparison. RTMS also has a function to coordinate their joint physical examinations. This will also reduce clearance time. After implementation of the Concurrent Process, it is roughly estimated that clearance time for imports at OSBP border posts, except cargoes subject to physical examination will be reduced from 1.5 days to 5 hours. Pillar Two - Release upon arrival The model introduces Release upon Arrival by developing a custom-made ITC system, OSBP Cargo Control System (CCS) to confirm arrival of the cargoes electronically. In addition, the model gives customs administrations and other border agencies two choices to complete document examinations prior to the arrival for the cargoes declared under the pre-arrival lodgement scheme. One choice is document examinations only with electronic information. The other is acceptance with a copy of supporting documents. The latter one should apply to all cargoes, resulting in shortening clearance time to a great extent. CCS will also improve cargo control functions of customs and other law enforcement agencies. By implementing these measures, certain cargoes such as those of green channel and/or AEO can be released upon the arrival. It will greatly Final OSBP Source Book Page 55

72 contribute to shortening mean clearance time which can offset the delay caused by physical examinations. Pillar Three - Management by tack time Management by Tack Time aims at making the document examination process efficient and reducing daily backlog except for a daily controlled backlog. A lean process will make problems visible and help people find the real cause of delays so that they can solve it. In other words, they pursue holistic optimization in the document examination process, leading to enhancing productivity at the frontline. The One Officer One Declaration Examination System aims to utilize available human resources to the maximum degree. Document Acceptance Examination is to remove incomplete declarations at the beginning of document processing. Management by Tack Time will process document examinations in a small batch under rigid time management by allocating declarations to each officer in a fixed short time period. After introducing these management practices, it is roughly estimated that clearance time at OSBP border posts except for cargoes subject to physical examination will be reduced from 5 hours to about 1 hour. There is a tendency not only in Africa, but also in the rest of the world, that management of customs operations has been largely left to the officers at the borders. Their decision in the daily work tends to be based on tradition or rules of thumb. This pillar presents a precise business process concept based on of new Industrial Engineering. 8.6 Coordination among National Agencies and between Countries There are various agencies that interface and cooperate with customs administrations to ensure that trade is facilitated in the region. These agencies require a coordinated control system and procedures under the OSBP arrangement to expedite the flow of goods within the CCZ. The need for coordination among national agencies is to ensure that their interventions are coordinated and do not result in consignments that are lost in the system. At the same time, in an OSBP, coordination between countries is equally important. It does little good to fast track or pre-clear goods in the country of entry, if the exit country treats all entries on a first come, first serve basis on arrival. OSBPs require rethinking on many procedures rather than just transporting them to the other side of the border. New ways of thinking about coordination is one of the biggest challenges in implementing an OSBP. Despite the increasing interest in OSBPs there is still little understanding of what they actually are and how they change crossing a border for the officers, for the commercial drivers or for the general public. At Chirundu, several kinds of preparatory sessions were held in advance of the opening of the OSBP. They were intentionally done for groups that mixed agencies and countries to overtly encourage greater understanding of all the activities at the border and how they would change once it became an OSBP and to get the officers used to working together. They were also begun about six months in advance of the opening to involve all the officers and the private sector in anticipating and planning for the new operations. A four-day workshop was held six months in advance in which each agency presented and described in writing how they carry out their Final OSBP Source Book Page 56

73 mandated responsibilities at the border. Following a description of the OSBP operations, they then rewrote the description to include how they would work in the new environment and how they would interact and collaborate with their counterparts. Particularly for some of the agencies that have few staff, but work to enforce the same international standards and address the same risks, coordination began in that workshop and remained a strong feature of the transition to an OSBP. In East Africa, there is also little understanding of the OSBP concept and how it will function amongst non-customs institutions like police, immigration, standards and port health. The implementation began with the design of new border facilities. A process was also initiated for developing a legal framework for the entire EAC. This process involved bringing together representatives of all the main agencies at the borders as well as the private sector from the five Partner States to design a single Act that would establish similar OSBP operations throughout the Community. This process created some awareness of the OSBP and the changes in operations it would bring to both the government agencies and private sector. Having already worked for a number of years on an OSBP for Malaba between Kenya and Uganda, there was some experience to share in developing OSBPs. The operating rules and procedures of non-customs agencies will require urgent review to bring them in harmony with the OSBP Act and the relevant established procedures thereof. OSBP Regulations that provide for business rules and processes will need to be developed as soon as the Act is passed and border construction is being completed. 8.7 Sharing Resources It should not be necessary to have weighbridges and scanners on both sides of the border. In an OSBP arrangement, these facilities should be located such that they can be effectively used in both directions of travel and an effective system developed for sharing of weighbridge and scanning results. The investments and acquisition of such heavy-duty equipment tools weighbridges, cargo tracking systems, X-ray equipment and cargo scanners and information technology equipment, cranes, forklifts, etc., to operate within the CCZ is usually a responsibility of each state. The responsible Ministries and Government agencies handle the procurement Use of scanners/non-intrusive cargo inspection Scanners generate an X-ray-like picture or image of the contents of a shipping container without actually opening it up. For instance, an Intelligence Supervisor and Officer in Charge of Enforcement, Eastern Region of Uganda indicated that we can spot concealment and contra-bands usually welded in container compartments or on the motor vehicle chassis. Photo: Mobile truck X-ray unit/photo courtesy of James R. Tourtellotte/U.S. Customs and Border Protection Final OSBP Source Book Page 57

74 One of the scanners is set up so that a truck moving cargo from the port will drive under the machine. The driver activates the system after the cab is past the inspection area to protect the driver from radiation. The truck is then driven at 5 mph and the system scans the cargo. Another nonintrusive system is the mobile unit where by the containers are lined up in a row on the port and the X-ray system is built into a vehicle that drives past the cargo. A third type of technology is the radiation-detection device that resembles a soccer goalpost and inspects the containers leaving the port while the trucks drive through them. Photo: Radiation portal used by U.S. Customs and Border Protection to detect radiological weapons at ports/photo courtesy of Gerald L. Nino/U.S. Customs and Border Protection Uganda, for example, possesses both mobile and the US technology-based back-scanners. The later are built and fixed in the mobile vans. These vans will drive alongside a convoy or queue of stationery cargo or empty trucks and will be able to receive images without trucks being stopped. A mobile scanner is in use at the Zambian freight terminal for northbound traffic at Chirundu whilst a fixed scanner is being installed also on the Zambian side. Zimbabwe is in the final stages of installing fixed scanners for southbound traffic at Chirundu. While scanners offer the opportunity for non-intrusive inspections, they should be used in conjunction with best practice in risk management. The danger is that they will be used for all cargo, thereby reducing the efficiency of the OSBP with marginal additional revenue gain. It is also critical that optimal traffic flow is considered when positioning the scanners. Scanning systems use relatively low radiation levels and warning lights when they are turned on. Nevertheless, users need to follow all guidelines issued with the product to insure the safety/health of the driver is protected. In sensitive areas, workers can wear personal dosimeters which record the level of radiation achieved. Fixed dosimeters also check the work area. Walls surrounding the scanning area should be built of concrete to protect operators and drivers Use of weighbridges For certain commodities, duties are assessed by weight. Therefore, weighbridge within the border post provides a crosscheck on the weight provided in the declaration. Significant differences may also indicate smuggled goods in the vehicle. With constrained space in the border facility, they can be located outside the facility. Weighbridges are generally operated and managed by the roads authority for protecting the roads. Final OSBP Source Book Page 58

75 8.7.3 Experience with sharing resources 8.8 Procedures Training The establishment of the physical facilities should lead to optimal use and sharing of resources within the OSBP. This objective should be captured in the legal framework. The Bilateral Agreement for Chirundu contains commitment to some shared use of resources to achieve economies of scale on border post investment costs. This has been understood as shared use of scanners, inspection bays and weighbridges. The EAC OSBP Act also assumes some cross-border sharing of resources. Implementing this requires specific procedures and interconnectivity. Training is important to the successful opening of an OSBP. It needs to prepare the officers for operating in the new environment. It needs to encourage enthusiasm for the OSBP and to strengthen cooperation among agencies at the border and between the officers of the two countries. One way to do this is to emphasize the leadership role expected of them in creating new systems. Conducting information sessions that help them understand better the concept of the OSBP and what the other agencies at the border do is critical. All information sessions and training should involve officers of both countries and multiple agencies to encourage interaction and problem solving across agencies and the national border. Some activities that bring the officers of both border posts together for a social or sports activity will also be helpful. The training needs to give a thorough conceptual understanding of the OSBP concept and the benefits expected to result from it. The officers also need to have a firm grounding in the legal aspects agreed by the two countries in shaping the legal framework. The officers will need to be able to make quick decisions on the ground and need a thorough understanding of legal jurisdiction they are given in the CCZ and the guiding principles under which they will operate. This is the core aspect of the training. Next they need to understand where different procedures will be carried out in the new/modified facilities. Diagrams are very helpful to give a full sense of where specific functions will be carried out and the traffic flow through the facility. As the facilities are completed, this can best be done with a walk-through as well. Officers assigned to work in the adjoining state need to know the legal aspects of working in the CCZ of the other state, where their offices and working area will be, what computer interconnectivity they will have and how they will communicate within the control zone. Officers need to know who they report to in terms of their agency functions, equipment maintenance, building supplies, law and order offenses, etc. Coordination of officers is a major issue at all border posts, but it essential in an OSBP. The training provided at Chirundu provides some lessons learned for OSBP training. At Chirundu, the OSBP training was divided into 6 modules. Ideally, a comprehensive training needs assessment should be conducted within the context of the knowledge and skill profiles of all agencies at the border. The goal for this training was only on the knowledge and skills need for an OSBP. The assumption was that the individual agencies provided training on functional competencies. In addition to the 6 modules below, considerable training focus should be on the communication, coordination and management at OSBPs. The first three were done about 3 months in advance of the opening and consisted of: Final OSBP Source Book Page 59

76 Module 1: OSBP Concept and Application Module 2: Legal Aspects of an OSBP Module 3: Overview of Border Agencies and the Private Sector Service Providers It proved to be very advantageous that this was done well ahead as it enabled people to think in a very positive way about the transition they were about to experience. The legal module was particularly important because they understood well what was in the Bilateral Agreement, their authority within the CCZ and the sequencing of interventions. They relied on this to resolve many issues as they moved to the new location and began operating in the OSBP. Training on the second set of modules was done about a month before the opening. They were done close enough to the opening to prepare the officers for the new modes of operation. Training focus on the communication, coordination and management at OSBPs was on Module 5. They were: Module 4: Infrastructure and Procedures Flow in the OSBP Module 5: CCZ Management and Operations Module 6: Joint Inspections At the same time, there was training for the private sector, both clearing and forwarding agents and transport companies. This latter training was done at Chirundu and at the two capitals, Lusaka and Harare, where many companies were headquartered. The private sector training module included a matrix which included each step and the interaction between the border control officials, the clearing agents and transporters. There will need to be a similar process of training before each of the scheduled OSBPs is opened. The training should also be extended to policy makers and high-level stakeholders in a bid to sensitize them on all the issues paramount for the operationalisation of an OSBP. Whilst some officials and policy makers usually have an understanding of the basics surrounding an OSBP, there is limited knowledge with respect to issues like the legal processes and ICT changes necessary and this usually stalls the operationalisation or support. 8.9 Public Awareness Training is important to the successful opening of an OSBP. It is important that the general public also have information on the OSBP as it is being planned in a variety of media. Brochures can be provided that provide overall information on the OSBP concept and given out at appropriate public meeting to lay a foundation of public information and interest. Occasional press briefings on the OSBP can be held with carefully prepared press notes that provide the information in such a way that it can be quickly converted to news stories. When there are news worthy achievements during implementation, the press should be informed so that the TV and radio stations will cover it and well informed participants can present the project for TV or radio. Careful attention to this detail during implementation will help raise awareness and understanding. It should also be used to obtain positive recognition for agencies and persons heavily involved in the implementation and to garner continued support. Prior to the opening, a brochure or flier that describes using the OSBP and efforts to foster media coverage will also be helpful. Final OSBP Source Book Page 60

77 Good signage is essential: Signs that announce OSBP operations as vehicles approach the border Exterior signs that indicate the roads and parking to be used for specific types of vehicles and channels. Interior signs over counters in the public hall indicating the country and function performed at each window or office. Interior signs at the entrance to the public hall that list the steps the traveller, clearing agent or truck driver must follow to complete clearance of the border Role of Clearing Agents and Transporters The customs clearing agents/brokers are responsible for assembling the essential information that opens doors at the OSBP border to the prompt delivery and clearance of cargo. As the critical gobetween among the disparate clients of the clearing agents and freight forwarders importers, exporters, shippers, carriers, government and regulators the clearing agent (CA)/broker is ultimately responsible for ensuring the document trail and payments that flows with any shipment is accurate, timely and satisfies the regulatory authorities. The various stakeholders in this process have turned to automation tools to help them cope with the increasing automation of customs administrations, and the increasing amount of traffic along the corridors. Information technology is making gradual inroads into a few other agencies and helping clearing agents to prepare them to become effective in the international trade facilitation arena. Governments require standard information about every item that comes across the border. They have the authority to inspect the goods and give them a nod of approval or hold them back, according to compliance with regulations from Customs and many other government departments. Although much of the process of clearing a shipment through Customs is now automated, the one area that remains relatively low-tech is the interface between the importer or exporter and the broker. The majority of the shippers/ CA s clients still transmit their information via fax or physical paper. But the amount of time and money it takes to process physical paper documents is causing severe bottlenecks in the system. The OSBP framework will motivate clearing agents, importers and exporters to make use of automation and interconnectivity. There are two compelling factors time and money. By communicating electronically with brokers, the chance of file errors is reduced to them and to the agencies. This also increases the speed at which the goods are processed at the border with less chance of costly delays. Prudent customs brokers know that sizeable investments in technology are necessary to maintain a competitive edge and to provide the foundation for their electronic commerce strategy. The electronic submission to customs and other agencies, will lead to greater efficiency and facilitate electronic customs clearance, cross-border transportation management and the detailed information trails and cost reductions. Final OSBP Source Book Page 61

78 9. JOINT INSPECTION AND OSBP OPERATIONS An important time saver in an OSBP is joint inspections. Currently at some borders, cargo is off loaded three or four times when transiting border posts, by both customs agencies and by agriculture, veterinary, bureau of standards, etc. depending on the cargo. At a OSBP, this should happen only once. Joint inspections are used to effectively control smuggling, duty evasion, prohibited commodities, etc, while not unnecessarily delaying legitimate trade and thereby adding to transport and logistics costs. Secondly, joint inspections in an OSBP mean that cargo undergoes physical inspection only once, thereby saving time and reducing the likelihood of loss or damage that occurs with multiple inspections. The software used by customs in most countries provides a module for risk management. This means that customs agencies can enter in computer software the shippers, forwarders and transporters who have a non-compliant record with customs, the origin of specific commodities and other information useful in flagging shipments that may warrant physical inspections. Other agencies can also put their requirements for inspecting specific commodities in the ASYCUDA or other customs software. Joint inspections require adequate, regular updating of customs software on risks and effective coordination among border agencies and clearing agents. This section will address the issues to be determined in coordinating inspections in an OSBP setting. It will also address good practice in the use of scanning so that it doesn t become an impediment to efficient processing of goods through the border. 9.1 Determination of Shipments for Joint Inspection Joint sight and physical inspection is done on the basis of selectivity and high risk goods criteria. Such goods as used motor vehicles, export bonded cargo and hides & skins fall in this category and inspections are carried out by the exporting country. Most other joint inspections are done in the importing country. Joint inspections generally follow these principles: Checks can be carried out jointly by other border control agencies, but are generally coordinated with customs of a host country. Final clearance checks generally take place at the border (allowing goods to move freely to destination), in central clearance facilities or at destination bonded warehouses. Risk management and sharing of intelligence information by either country forms the basis of the inspection criteria. The regional risk management criterion and the AEO registered clients, aids the application within the transaction regimes. Confirmation of exit for identified high-risk cargo is usually established through joint inspection in the importing country. There is usage of non-intrusive inspection with scanners and sharing of other country scanner information. Automation of examination/inspection accounts have been configured in most customs software so that once any transaction is inspected and is posted onto it, then it will be hard to alter or erase. Installation of the motor vehicle number plate sensor readers for fast track lane clearance would enhance the concept of fast-targeting and seamless clearance through the border. Final OSBP Source Book Page 62

79 9.2 Use of Risk Management in Joint Inspections The use of risk management techniques is critical to effective joint OSBP operating systems. The application of risk management systems should be used by all control agencies represented at the border. Risk Management is discussed in Section Notification of Other Agencies for Joint Inspection AYSCUDA World or similar programmable customs software can be used to alert all border agencies interested in the consignment that a joint inspection is planned. Cargo notification begins from the time cargo is submitted into the customs operating applications. If the other border agencies are interfaced, then the shared portal or SW facility, and risk management framework incorporated therein, can be used. Notification comes automatically through red-flagging or flashes posted on the networked computer terminals and screens. When this happens, then other government agencies become alerted both on the particular cargo and the time of arrival and subsequent placement at the inspection platform. Customs officials and the other border agencies will ensure that they report at the appointed time to proceed with the joint inspection. If the customs software in use does not allow for this, then a fast, alternative system needs to be devised. RTMS, designed by JICA, offers this capability to East African border agencies (Section 8.5). 9.4 Coordination of Inspection The customs clearance system electronically communicates and informs the participating agencies in the CCZ. When cargo arrives for inspection, only the relevant agencies will have been flagged and invited to jointly participate in the joint inspection exercise. All parties indicating interest must be present before the container/bulk/break bulk cargo is handled. The facilitation agencies will usually come in to represent the owners. However, Customs may invite the physical presence of the cargo owners, whenever it is deemed necessary. The other border agencies may delegate customs to conduct the inspection on its behalf, in case the cargo does not require tests, analysis- or the officer is unable to be present. 9.5 Order of Resulting Actions Exit to Entry The resulting action of dealing with cargo will be influenced by the existing customs operating systems in both the adjoining states and the CCZ. The resulting actions will depend on the facilities the client enjoys. If the client is in the category of AEO, he/she will be allowed to proceed to the owner s premises. If the client falls into blue or green selectivity criteria, then release will be done upon lodgement. The process below refers to clients that will require further checks on their cargoes at the border. Cargo arrives and gets received both electronically through pre-arrival technique and physically through the conveyance means. When the cargo is received electronically, the clearing agents that are connected to the customs system through the SW or IT connections, will proceed to prepare the bills of entries, self-assess themselves, make payments to the appointed bank and thereafter declare and submit the entries to customs both electronically and physically at the counter. Final OSBP Source Book Page 63

80 Customs will proceed to make an examination using risk management tools applicable. If the selectivity function points to a low risk scenario on the transaction, these are released upon lodgement. Where the entries are found with a certain level of risk, then further documentary checks or/and physical examinations are called for. Joint inspections are carried out by all agencies simultaneously as much as practicable. Nevertheless the same order of interventions apply, exit first and entry second. Therefore following the physical inspection the exit country has jurisdiction to intervene first in terms of confiscation, fines, destruction, return of goods to exiting country or other action allowed by the laws/regulations of the inspecting agency. Even though officers of the country of entry have noted an infraction of their laws they may not act until the country of exit has completed their interventions and passed authority to the country of entry (as though the goods have now passed the border). The entry country may in the interim complete their report in preparation for announcing their intervention. It is critical the OSBP Act or Bilateral establish the principle that the country of exit must allow the return of goods or persons that are rejected for any reason by the country of entry. Any established variations identified by documentary checks and physical examinations will lead to an amendment on the entry leading to a top-up for tax purposes. The other government agencies are notified for these adjustments/amendments and corrections. Customs will issue a release notification to the other government agencies. The other government agencies will in turn present it for verification with the customs official in the system for the final issuance of the exit note and release at the warehouse or examination shed. The client receives the cargo to terminate the transaction. 9.6 Potential Benefits of Joint Inspections in Time and Effectiveness For those clients for whom inspection is required by the type of commodity, origin and/or risk category, joint inspections save time and reduce the risk of damage from handling or theft. A further result is saved cost, through greater efficiency of clearing operations and potentially reduced insurance cost. For perishables, time savings are particularly important. For border control agencies, it also saves time and allows them to make more efficient use of their time. The ease of sharing intelligence also makes their controls more effective. 10. PHYSICAL FACILITIES AND TRAFFIC FLOW 10.1 Decision Whether to Modify Existing Structures or Build New Structures The decision whether to modify the existing building(s) or to construct a new one will depend very much on the condition of the current building(s), its functionality and its suitability as an OSBP and the projected traffic growth. Each building is different, but many can be successfully modified to become an OSBP. Physical facilities should be designed in an efficient and effective manner for the flow of traffic, and should be optimally used to enhance trade facilitation and human mobility. An example is at the Chirundu OSBP where the respective governments, on realisation that existing structures did not complement the OSBP concept, initiated modifications and renovations to the existing structures (completed in 2006 and 2007). On the other hand at Malaba, between Uganda Final OSBP Source Book Page 64

81 and Kenya pre existing facilities are still in use and new building have been designed and are ready to go tender. All of the OSBPs in West Africa thus far are new facilities designed to be OSBP. Two are Build Operate Transfer (BOT) constructions and management Determine Optimal Traffic Flow through the Facilities Based on Types of Handling Required If OSBPs are going to be efficient, the traffic flow and physical facilities must be planned for time savings in movement through the facilities. Generally, passenger traffic and freight traffic should be separated first along with separate parking areas. Travellers can generally be cleared much faster and should be expedited through the facility in dedicated parts of the building and traffic patterns. Where heavy passenger traffic is handled, clearing vehicles in lanes can be designed. For borders that handle primarily freight, two or more commercial routes are needed (in addition to the passenger/pedestrian route) one that accommodates goods that can be cleared quickly and another for goods that will require full physical inspections or where documents are incomplete or payment of duties delayed. The general assumption in border design is that all vehicles park while procedures are carried out by the drivers and clearing agents. Often there is a great deal of moving back and forth through the facilities. Parking and repositioning of vehicles in the control zone should be minimized and movement through the facility to carry out procedures should be made as efficient as possible. Because vehicles, cargo and persons can be refused entry, return lanes must be planned within the facility. As the procedures are considered, the plans must be conveyed to those doing the architectural and engineering design. Traffic flows should be designed so as to address the following critical success factors: Manoeuvrability Ease of access to the OSBP Adequate parking dependent on the volumes of traffic and efficiencies expected from the OSBP Effective road signs and road markings Dedicated lanes for traffic in and out of the CCZ for dangerous/awkward cargoes (Such as fuel, guns and hazardous substances carrying trucks as well as those which cannot be scanned). Traffic flows should be planned in such a way that, in the long-term, clearance of identified traffic can be done from the lanes. This section describes the main issues to be taken into account in the facilities and traffic flow design Types of cargo Containerised. The amount of containerised traffic varies considerably. Flows depend in part on the amount of deposit charged by the shipping lines. Use of containers has the advantage that handling is easier and they can easily be sealed. Nevertheless, the transporter is hauling about four tonnes of container which restricts and reduces his cargo load and the delivery site may not have handling equipment to offload and de-stuff/stuff the container. Final OSBP Source Book Page 65

82 Break bulk. Break bulk is commonly used, because more can be loaded on the truck than if it is containerized. Handling can often be done manually although this can lead do damaged goods. Refrigerated cargo. Refrigerated cargo gets special treatment at the border because it is perishable. The vehicles are about twice the value of a flatbed vehicle. Therefore, delays are more costly in terms of fixed costs for the owner. Petroleum tankers, hazardous goods, etc. Hazardous goods are generally routed through the border post quickly because of the hazard they pose to persons and freight. Border posts should have fire equipment, but many do not. Abnormal loads. Abnormal loads require escorts and special road permits to travel on the roads. As a result, they can take a long time to exit while they wait for their permits. At Chirundu, for example, transit permits are issued for only five days and for limited driving periods. Therefore, drivers prefer to wait until they arrive at Chirundu before applying. The permits are not issued at the border. Therefore, drivers generally wait three to four days before proceeding. It is an avoidable delay, if permits were issued at the border Processing requirements The various types of processing are described in Section 8 and affect the traffic flow through the facility, parking requirements and terminal design. Identifying the predominant types of cargo and projections for growth or decline must be taken into consideration in the design of the terminal and specialized facilities. Use of scanning and inspection is also a major consideration in the planning for traffic lanes and parking within the terminal. Unless properly sited, they can cause considerable congestion in the CCZ or force an awkward traffic flow Fencing Generally border posts are fenced to provide security for operations and freight. Once someone has entered the border facility, it is not possible to leave or take goods out without completing all controls. It is also erected to prevent exchange of goods between vehicles moving in the two directions. In a OSBP, the exterior fence generally delineates the area in which the officers have authority to act extraterritorially Parking configuration Parking lots can serve as a buffer while trucks wait to be cleared, thereby solving traffic problems. Some border posts charge incremental parking fees or demurrage to discourage trucks from remaining after they have been cleared. Many border posts depend on trucks parking on the roadside approaching the border. It provides a natural queuing lane, but also trucks break the pavement on the sides of the road thereby raising road maintenance costs. Final OSBP Source Book Page 66

83 10.3 Counter and Public Hall Requirements Counter space needs to be arranged so that the traveller can proceed from one to the next seamlessly. Counter space to fill forms should also be provided. The public hall should be structured so that individuals entering a country do not mix with those who are leaving. A juxtaposed border post achieves this, since each terminal serves only travellers and freight travelling in one direction Office Requirements Terminal requirements need to be determined based on the traffic survey described in Section 5. Terminals must be configured for accommodating the needs of two countries, within the same terminal: document room, computer systems room, strong room, search room, holding room, warehouse, cold room etc. Generally on exit fewer specialized facilities are required. In some cases, the facilities can be shared, such as common kitchen, eating area, training rooms, etc. Often public halls are in the center of the building and each country can have offices on one side. In others, customs has one side and immigration the other meaning officers of the two countries have offices along the same hall. Arrangements should be made so that each country has identified exclusive use areas as well as space for officers not assigned an office to store personal belongings. As the time to begin OSBP operations approaches, a transition plan is important. For new facilities, offices should have been planned according to planned usage. In modified buildings, the space may still need to be allocated. Functionality should be taken into account as well as seniority. Plans for allocation of furniture, computers, printers, and office supplies should be made in advance. Installations of new networks and new computer systems should also be prepared and training conducted in advance of the move as much as possible Scanning and Inspection Facilities Scanning and inspection facilities should be planned according to traffic and future growth projections. Scanning is a very useful tool for risk management, but should be used strategically. On some corridors, there is a plan to use scans in the acquittal process to verify that what entered the country also left. Such scans could follow vehicles for the length of the corridor. Inspections are basically used for companies with a record of non-compliance or for commodities that are frequently involved in fraudulent shipments. Nevertheless, due to public safety issues, some types of commodities may be automatically or intermittently inspected at borders. The facilities need to accommodate this Utility Sharing Additional considerations include utility sharing arrangements. Generally, in the case of a juxtaposed OSBP, the usage is roughly equivalent and host countries meet all utility costs in their building. The system needs to include storage tanks to provide water during maintenance problems and backup generators. Telephone and internet connections may be the exception, since they are easy to meter and use may vary quite widely. The Bilateral Agreement for Chirundu OSBP provides for sharing utilities on a reciprocal basis. The EAC Act also provides for this arrangement. Final OSBP Source Book Page 67

84 The first OSBP in West Africa was completed on a BOT basis and the concessionaire covers all utility costs from the per vehicle user fee (see Cinkansé Case Study in Part 3) Staff Housing The baseline (Section 5) survey also provides data on current staff and the implementation team will need to estimate the number of staff required for OSBP operations. Plans need to be made well in advance for additional staff housing and roadways to serve them. This will be especially true, if the border would shift to 24-hour operations. Often appropriate staffing is delayed by the unavailability of housing. As implementation plans proceed, it is important to review housing needs again as staffing needs become more apparent. Staff rationalization needs to be done to determine optimum staffing levels for the OSBP and for 24/7 operations to avoid overestimating requirements. Existing staff planning tools may need to be modified to be appropriate to OSBP requirements Public Facilities Public facilities, such as ablution and toilet facilities for travellers and long distance drivers also need to be included in the plans for the control zone. Access to food vendors within the OSBP, particularly for officers operating in the adjacent state, is useful Commercial Facilities in the OSBP Some borders provide restaurants, duty free shops and other facilities for the general public. They tend to add to the congestion in the CCZ. Where border posts are being built on a BOT basis, these and other facilities become a part of construction/ operating cost recovery. Generally, it is recommended that these facilities are located outside the CCZ. With respect to banking facilities there are divergent opinions. One view asserts that it is necessary for them to be part of the CCZ to facilitate revenue payments and collections at the same time providing a secure service decongested from the community. Another view suggests its location outside the CCZ to service both the community and the border users. At Cinkansé border post banking facilities are located adjacent to the fence where there are two entrances, one for use by the community and the other for border related usage. To be commercially viable at many relatively remote border posts, banks may need both business generated by the border post and by the local community. The Cinkansé solution would seem to be a good one. A truck stop before or after the facility that provides bathing and food facilities would serve drivers that are cleared at the end of the day and the driver prefers to continue his trip early in the morning. The objective of an OSBP is to expedite persons and vehicles and extensive facilities tend to encourage delays necessitating more parking and facilities Financing of Physical Structures and Procurement It is the ultimate role of individual governments to finance the development of physical structures at the border, or to contribute to the development of the CCZ. There are various ways in which governments can seek financing to facilitate the building of structures. Stakeholders and RECs should provide linkages and advisory support to states in sourcing finance for the construction of physical structures. These include: Final OSBP Source Book Page 68

85 Domestic investment. Many border posts are financed from the national budget and technical decision and engineering supervision is done by the Ministry of Public Works through national tendering procedures. Public Private Partnerships. This is when governments collaborate with the private sector for the delivery of a particular service subject to an agreement which may be a concession, lease or similar condition. Such PPPs may be for construction, facility management, maintenance, special services or any combination of the above. Foreign aid or aid for trade initiatives. There are various international governmental and non-governmental players involved in trade facilitation initiatives including support for OSBP construction. A number of development partners have become active in construction and facilitation of OSBPs. In East Africa, World Bank, JICA, African Development Bank, Trademark East Africa (TMEA), etc. are involved in construction. Financing of soft components include JICA, International Organization for Migration (IOM), COMPETE/USAID, TMEA, etc. In ECOWAS support has come primarily from EDF funds of the European Union (EU) for both hard and soft components. African Development Bank now includes OSBP construction and facilitation consultancy in many of its road projects. Procurement has proven a complex issue. Often OSBP construction costs have been part of a national loan requiring accounting and supervision on the national level. Yet the facility design for a juxtaposed facility, which most OSBP are, needs to be coordinated by the two adjoining states. For World Bank Funding under the East Africa Trade and Transport Facilitation Project, the initial intent was joint procurement. The adjoining states despite both being in the EAC, has different procurement rules and joint procurement was basically impossible. As a result, the method used as been separate procurement under national rules, while ensuring close coordination between the two government and the two contractors. It is a solution that needs to be monitored. The other solution that has been used for some cross-border infrastructure, such as bridges, is for the two countries to sign an agreement, that one country will do all the procurement, but the cost will be shared equally. Most West African facilities are being designed as a single facility in one country. The adjoining states determine which country will provide the land for the facility. It may be determined by topography or population density, but it may also be the willingness of the political leadership. The land is then leased by the REC for 99 years. In some cases, the process of land acquisition has been quite extended. In at least one case, it has meant one REC acquiring the land and then transferring it to another REC. This was the case of the OSBP on the Ghana Burkina Faso border. This Corridor (Tema -- Ouagadougou Bamako) falls under the jurisdiction of UEMOA, but the OSBP on the Ghana-Burkina Faso border is to be at Paga in Ghana, which is part of ECOWAS but not UEMOA. Therefore ECOWAS had to acquire the land and then transfer it to UEMOA for development of the OSBP. No such problem occurs on the Burkina Faso Mali border since the border is being built in Mali which is part of UEMOA, in fact both Burkina Faso and Mali are in UEMOA. At the initial OSBP in ECOWAS, the financing is from the European Union and the construction has been tendered under the Transport Facilitation Project support. Final OSBP Source Book Page 69

86 10.11 Public Private Partnerships (PPPs) in Border Management PPPs refer to the collaboration between public entities and business or private stakeholders in the provision of a service. PPPs have become established as an important procurement method for financing and delivering public infrastructure projects and services. In OSBPs, the private sector is a key stakeholder in the whole process and engages with government in consultations, collaborations and in contracting. Throughout the Source Book there are varied instances when government consults and collaborates with the private sector, i.e in the making of legislative instruments, operational procedures and design of facilities. There are also cases when government can contract the private sector as a service provider to help in the provision of particular services for the operationalisation of the OSBPs. PPPs also foster trade and transport facilitation, such as the Walvis Bay Corridor Group, Maputo Corridor Logistics Initiative and Dar es Salaam Corridor Committee. These examples highlight that by working and cooperating with private sector stakeholders, governments can leverage capital for investments in infrastructure and promote improved and coordinated infrastructure planning and transport facilitation. In West Africa, the Cinkansé Joint Border Post between Togo and Burkina Faso is an example of a PPP with respect to the construction and management of OSBPs. The concessionaire is an Ivoirian company which is a member of an international group called Scanning Systems International LLC. It specializes in financing and implementation of infrastructure projects in the energy and transport sectors. As BOT concessionaire for Cinkansé, it: Completed construction of the buildings, parking areas and warehouses Redesigned the traffic flow to better serve clearance needs Installed a scanner, weighbridge and satellite telephone system connecting the OSBP to the port and national headquarters in the two countries Provided furniture, computers and other equipment for the offices Installed an electronic management system for circulating, processing and archiving all documents Developed a cargo tracking system using RFID and GPS technologies 23, and Houses a bank. The concessionaire provides all the facilities necessary for an effective border operation for all types of traffic, the administrative staffing, traffic regulation, security in the zone, facility maintenance and utilities, a procedures manual and collection of statistics on the traffic. The concession is for 20 years. Several legal instruments have been enacted by UEMOA and ECOWAS for the development of Joint Border Posts (JBP) and their financing. UEMOA has also enacted Regulation 15 which defines the operating principles for OSBPs in the Community, of which Cinkansé is a border post. To finalize the development of Cinkansé as a BOT project, UEMOA issued two additional legal instruments to define BOT arrangements for their PPP JBP program. Scanning Systems has a contract to develop an OSBP at Heremankono on the Burkina Faso/Mali border as well. It will be instructive to see what lessons they take from Cinkansé to apply in this Greenfield project for a BOT JBP. 23 Radio-frequency identification and global positioning system technology Final OSBP Source Book Page 70

87 The Kasumbalesa border post between Zambia and Democratic Republic of Congo is another example of a PPP. Whilst it is not an OSBP, it is an example of how the private sector can supplement government resources for the construction of border posts. Faced with limited financial resources to finance new infrastructure, ICT applications and other related physical structures, the government of Zambia opted for a PPP. The Zambian Border Crossing Company was awarded the concession to design, build, and operate the Kasumbalesa Border Post Crossing. The concession constructed new offices, parking space, shopping outlets, security features and installed equipment, including scanning machines. They also have space offices to be leased to clearing agents, logistics operators and other private stakeholders. The border post opened in February 2011 with capacity for clearing 600 trucks daily both for entry and exit with a target clearance rate of below an hour and over 150 passengers and drivers are expected to pass through the immigration desks per hour. Whilst elsewhere, some concepts of PPPs for border management have been practised on the Arizona/Mexico Border between the United States of America and Mexico, and in Asia, there has been little experience in Africa. Therefore an evaluation of the PPP/BOT framework for OSBPs cannot be done at this point. PPPs are attractive in offering a system of financing outside the national budget. Where the concessionaire brings technological skills and experience that the governments may not have, as in the case of Cinkansé, the PPP brings added benefit to OSBP development. As has been seen in Chirundu, development of an OSBP brings added workload to existing border post managers in terms of the transition, more complex functional management challenges and managing two physical facilities. Having the private sector take over the latter, reduces this burden somewhat. On the other hand, concessionaires need to make a profit for their investment. The fee structure for use of the border post must be carefully monitored so that it isn t adding to the cost of transport so much that it becomes an impediment to trade. In the case of Kasumbalesa, the facility charges US$152 per vehicle in each direction loaded or empty. The DRC government forces all trucks serving Katanga province to use this border, so the trucks don t have alternative routes to serve the lucrative copper belt market of DRC. At Cinkansé, the transit cost is $100 full and $20 empty. This is a wide difference, suggesting the issue of user charges, traffic and trade impact needs to be reviewed. The goal of an OSBP is to expedite traffic as quickly as possible through the border. The goal of a concessionaire must be to create income-generating activities within the border post, such as restaurants, duty-free shops, ablution facilities, etc. These two goals seem to be at cross-purposes. The fact that borders are seen as part of the sovereignty and autonomy of states may tend to make public sector policymakers reluctant to venture into PPPs that transfer some part of decision making into the hands of the private sector. Nevertheless, given appropriate legal and operating procedure frameworks and guidelines, PPPs may be an effective tool for investment in border management. There are various types of PPPs and these include: short-term service contracts, long-term delegated management contracts, leases, concessions or BOT models. Various issues will determine the type of partnership or model to be entered into, for instance, the level of control to be exercised by the private sector (construction, operation and maintenance of structures), the level of financing by the private sector and autonomy of border agencies. The success of the model will depend on the type and nature of the Final OSBP Source Book Page 71

88 concessions made and the conditions that are attached to the partnership. The following issues are important when entering into a concessionary agreement or such partnerships: Purpose of the partnership; Problems the partnership will address; Types of partners involved and the relative involvement of those parties; Nature of the partnership; Extent of the power-sharing and mandates of each partner; Length of the concession or partnership and conditions on termination; In case a company is chosen its financial equity should be evaluated; and It is also important that a public tender process be followed and used for transparency and as a way of curbing corruption and choosing best candidates to ensure guaranteed delivery. An important lesson learnt from ports and railway concessions is the need for setting up some level of control or ceiling in the charges that are to be levied by the private contractors. In awarding tenders, policy makers need to be prudent and to specify standards for the construction of facilities to avoid substandard structures or default by some contractors. 11. ICT APPLICATIONS ICT is a critical component of collaborative border management and any modernization process. Realizing benefits from ICT must be part of an overall rethinking of procedures. The increasing trade volumes arriving at the borders to be handled by roughly the same number of staff requires a balance between controls and trade facilitation. Greater use of systematized risk management tools to address the issue is a policy choice. ICT is an essential part of implementing that policy choice. It allows greater interconnectedness of agencies at the national level to coordinate their controls. It allows border agencies to split their staff in a juxtaposed OSBP, while still entering their data into the same network. It also allows effective sharing of information with the adjoining states operating controls at the border and effective coordination of exit and entry processing. To put new ICT systems in place, a border management agency must have: Political and financial commitment to the vision. Any successful ICT rollout demands a high level of political buy-in and support from senior or high level officials. Limited knowledge and awareness levels can result in stalled progress in implementation processes. Administrative capacity to deliver the vision. This may imply the need for extensive training across all agencies and the development of technical competency on ICT. The right partners to support change and continued commitment to evolve and align business and technological strategies to maintain support for the vision are needed. The challenge is to learn from current best practice and create solutions that are innovative, flexible and scalable Doyle, Tom, Information and communications technology and modern border management, McLinden, Gerard, Enrique Fanta, David Widdowson and Tom Doyle, Border Management Modernization, The World Bank, 2011, pp Final OSBP Source Book Page 72

89 For an OSBP operation to be successful, agencies must be able to communicate with each other in the CCZ. In a juxtaposed OSBP (the most common form), most agencies will be split between two facilities and it is essential that they can access computer systems at their home base and do entries, assessments and agency database searches from anywhere in the CCZ. Therefore, ensuring connectivity within the CCZ should be one of the first tasks of implementation. Interconnectivity should be construed as a necessary condition in the operationalisation of the OSBP, as failure to do so may stall the progress and coordination of activities anticipated in the CCZ. There is a great deal of duplicative data entry amongst the various agencies operating at the border. OSBPs should have a border management information system, so that basic information entered can be shared among all agencies. Next it should facilitate and manage the flow of documentation and interventions involved in the clearance process. It should enable them to happen in parallel, where possible, and track fulfilment of clearance requirements. In EAC, RTMS provides such software. It is important for each state to undertake a needs assessment and inventory of existing technology in terms of equipment, skills and software as way of mapping its future needs and potential interventions. This section will deal with the process of ICT development and the range of ICT applications that should be considered in planning OSBPs and summarise preliminary design work that has been done in Africa Critical Success Factors for ICT Programs The experiences of border agencies with ICT programs since the 1980s reveal 12 critical success factors. As suggested by Tom Doyle 25, these are: An aligned legal and regulatory framework. A modern legal and regulatory basis needs to be in place before any ICT design or implementation. The time needed for regulatory or legislative change can easily exceed the time needed to develop new systems, so it is important to make the two overlap: for example, time used to prepare amendments to laws may also be used for prototyping and testing ICT prior to system design or even procurement. Because regulatory change may have unforeseen outcomes that then require new processes, a close relationship between regulators and technologists during this process is desirable (though in practice uncommon). Clarity about business outcomes. Business outcomes are not always well described before or during ICT program design, which can result in poor service delivery. Service level agreements with key dependent partners and stakeholders should be defined and agreed on as early as possible in ICT program planning. It is important to align the envisioned business outcomes with overall outcomes in the agency s vision and strategy. Effective governance. A governance model, setting out the roles and responsibilities of stakeholders, must be established. If the decision making process and procedures for issue escalation are not established and rigorously followed, a loss of direction can ensue wasting time, raising costs, and delaying the delivery of required benefits. This also involves creating a level of awareness amongst stakeholders and high level policy makers throughout the whole processes. Progress is usually thwarted due to lack of awareness, knowledge and buy in from governing structures. 25 Doyle, Ibid., pp Final OSBP Source Book Page 73

90 Specific ICT policy issues. Further ICT policy issues arise with newer border management systems because the systems often involve more than one government agency, each silo based and each with different policies (if any) for such things as security and identity management. Policies might need to be mutually agreed on for issues including: Privacy. Identity management. Security. Accessibility and digital inclusion. Intellectual property rights. Standards and interoperability. Governance, architecture, and procurement. Green computing. Social networking. A robust business case. A robust business case is often essential to securing the necessary political backing, investment, and resources for an ICT development. Business cases for ICT investments often have relied on a traditional cost-benefit analysis. Information on cost is often readily available. More difficult is to quantify the benefits and project an accurate return on the investment many benefits are not quantifiable in monetary terms. An ICT program may increase trader education and compliance, improve performance management for staff, and enhance collaboration with other agencies and stakeholders. A suitable business case will combine an analysis of the investment required with a wider view of both quantitative and qualitative benefits. Operational aspects. Who does what and how is it financed? Though critical, the answers to these questions are not always well articulated and agreed on before a program starts. If the lead time necessary for a complete analysis of delivery model and procurement options is not allowed, unplanned financial and time constraints can result, making deployment, operation, and the cost of delivery problematic. Business process efficiency. An important factor in the most successful ICT programs is the link to business process efficiency. Experience suggests that any program lacking a complementary project to review and align the processes in an organization will generally fail, requiring users to work around incompatibilities to operate a shadow or backup system. Without exception, an initial review of existing business processes should inform the design of required business processes, so that the new ICT system will in turn be designed to enable the new processes. Change management. A retrospective view of ICT program deployment reveals that most project managers, if they were starting their program again, would have invested more in change management. A change management program should consider required changes in behavior, support the required training and learning, and help with role and job design and restructuring. Final OSBP Source Book Page 74

91 Organization performance. The design and implementation of any new ICT program requires competent and skilled support resources. Organization and human resource management are critical. For any successful implementation of an OSBP there is need to provide human resource training and capacity building as agencies will need to appropriately adapt to a lot of functional and operational changes. Success metrics which measure operational efficiencies and improvements need to be determined at the start of a program and then gathered and monitored during implementation and operation. Regular progress reporting, using concise and accurate measures, must ensure that both the client management and those who put the program in place have the right information to make decisions on intervention. Interoperability. As effective border management increasingly relies on sharing information and intelligence among varied stakeholders (including those based outside the home nation), interoperability is increasingly required. Developments such as systems oriented architecture improve the ability to link existing systems. Future ICT systems must allow secure links to other national and international systems. Data privacy and protection. Privacy and protection become even more important as the demand grows for more data sharing, data reuse, and adherence to national and international data protection legislation. Standards and frameworks. Success requires the application of standards to ICT system design, development, and implementation approach and methodology. All too often ICT developments, particularly when custom built, result in poor service and high costs because process, data and interchange standards were not applied. The above quote refers to ICT applications from the perspective of the government agencies developing them. It is also critical to view them from the perspective of the business community. Too often new ICT has been developed without adequate involvement of the clearing and forwarding agents, traders, transporters and general public. This input is valuable in terms of issues the business community will have in using the proposed system and ways to make it every more efficient in serving OSBP needs. Generally, the private sector has been very fast to adapt to electronic systems to improve their own efficiency. They also need advance warning to plan for new procurements they should make to meet their clients needs and to be competitive in the market. Any frequent problem is failure to inform and training the private sector on the new systems. Too often there is an announcement in the paper the Saturday before it is being introduced. Clearing agents and other members of the business community need enough time to prepare their systems to respond and to inform and train their staff in use of the new systems so that the implementation is smooth Assessment of Existing Systems and Needs The process needs to begin with an assessment of the current use of ICT and potential needs as perceived by the users. This is a critical stage as it should review technical requirements in relation to existing systems and their scalability. It should also look at the extent of ICT use by the various agencies at the border, the compatibility of their systems, and their plans for enhancement. Assessment by users is critical because they know in the course of their work where automating Final OSBP Source Book Page 75

92 systems would have the greatest impact on their productivity. Officers may suggest ideas that are not possible, but they may also suggest new directions that otherwise would be overlooked. The Corridor Diagnostic Study reviewed Corridor performance in terms of time, cost and reliability on the Northern and Central Corridors. It provides an assessment of border constraints and investment to improve border operations. The following table suggests some of the issues to be reviewed in an initial analysis. The Matrix below was developed by Uganda Revenue Authority to plan its ICT development for OSBP. Table 11.1: Sample ICT Needs Assessment for OSBP ICT Concerns International and regional trends Critical success factors for the set up of ICT in the OSBP concept - Technical obsolescence (dependence on outdated tools, insufficient resources) - Information security (audit trail, accounting procedures, access, backup) - Data Accuracy - Time lines - Capacity Building - Communications-networking infrastructure (remote access, distribution & synchronization of data) - Sufficient hard ware - The role of the internet - International trends are fairly consistent - Common tax reference model - Common technology solutions to tax administration functions - Aiming at legacy information systems - Cross functional or enterprise system (client pressure for better services, desire for uniform functionality, economies of scale, managing support contracts easier) - Impact on regionalization (Cross border trade, synchronization of core business, Single TIN.) - Use of fiscal cash registers - Use of mobile telephony to enhance service - Advent of e-laws impact - High Level Government Support - Development of ICT Master-Plan - Business Process Reengineering within agencies (acceptance of single administrative document for trade) - Inter-Agency Coordination - Use of industry standards for electronic messaging to ease adoption (e.g. UNEDIFACT, ebxml) - Redesign Infrastructure at border posts to provide for separate clearance locations of passengers and cargo - Support trade documentation software developers (developing programs to access regional ICT portal) through testing and certification of programs for quality assurance - Provide uploading of common data elements based on international standards (port codes, country codes, including tariff codes to trading community) - Support and endorse the banking sector to participate in the electronic transfer of funds and advancement of cashless transactions - Close Collaboration & Consultation with all parties involved, including the private sector seminars and regular dialogues with trading community - Development of community networks serving specific industry sector such as Maritime and Air Services community, - Comparatively Low cost of telecommunications services - Capacity building through training provided to private sector by Singapore Customs - Full time power supplies - Full time network - Adequate band width Final OSBP Source Book Page 76

93 11.3 Border Connectivity to National Headquarters Headquarters rely on information obtained from each of the borders yet in many instances the connections are weak and data is collected on discs and transferred manually. The lack of connections or slow systems that reduce productivity are a major problem in many border environments. A first task of OSBP implementation should be addressing the connection of the border to the national telecom grid. For example, immigration would like to have immediate information on persons crossing the borders to relay it to other borders and track effectively entry and exit of transiting persons according to times allowed within the country. This requires good connections between headquarters and border posts. Border officers for Ministries of Agriculture could check the authenticity of permits if they had good connections to data bases in headquarters. Many of the time consuming aspects of work at the borders could be addressed if connectivity were available or strengthened. Viable options which may be considered to increase connectivity between the head offices and border posts include, fibre-optic wire, wireless, broadband, wi max and VSAT. Now that major submarine cables are operable connecting Africa to global links, many private companies are investing in laying fibre-optic cable to connect major cities in Africa. They can be approached to connect many of the regional borders which are located on major corridors. Where borders are more remote, the government may be able to offer a PPP opportunity to the private sector to provide connections. The Border Management Information Systems (BMISs) used by immigration agencies in Africa are varied, with some developed by the national governments using in-house IT development capacity or by outsourcing to external providers. These are country-based systems that suffer some limitation to inter-connect with separate systems of neighbouring countries. This limitation can be over-come, for example recently IOM worked with an in-house IT expert from the Rwanda Immigration Department to develop an interfacing platform to allow the exchange of data between the Rwandan national system called Gatekeeper and the IOM-developed system in Tanzania, called PIRS 26. Alternatively, some countries have adopted IT systems that have been made available through the support of donor governments or international organizations. Two examples include the US Government system called PISCES 27 and the IOM-developed system called PIRS. With regard to PISCES, the US Terrorist Interdiction Program (TIP) has installed PISCES at 155 points of entry in 17 countries globally. PISCES helps countries at risk of terrorist activity enhance their border security capabilities by providing a computerized watch-listing system and training that enable(s) host nations to identify suspect travellers. 28 PISCES is an Oracle based database that has a limited capacity to be interconnected with other databases. The IOM has installed PIRS in Burundi, Democratic Republic of Congo, Guinea Conakry, Islamic Republic of Mauritania, Kenya, Liberia, Republic of Congo, Sierra Leone, Somalia (Puntland), Somalia (TFG ), Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe. PIRS is a Border Management Information System, which allows for capturing biographic and biometric data of travellers entering and exiting border points, but also supports migration information management, data collection, processing and dissemination. It is an open-architecture SQL based database that allows for customization of data fields as per the request of countries, and has full capacity to be inter-connected with other databases including the Interpol I24/7 FIND/MIND watch list as well as being able to be interconnected with neighbouring-country databases. 26 PIRS--Personal Identification and Registration System. 27 PISCES--Personal Identification Secure Comparison and Evaluation System. 28 Annual Report on Assistance Related to International Terrorism (2010) ( Final OSBP Source Book Page 77

94 The national IT systems used by customs agencies in Africa are dominated by Automated System for Customs Data (ASYCUDA), which is used to facilitate trade and drive modernization on the continent (see Fig 11.1 below). The ASYCUDA application is the most widespread in Africa with 44% of the geographical coverage. ASYCUDA is connecting thirty one African countries, established in 432 customs sites and 192 other sites by other border agencies. Beyond the African continent, ASYCUDA covers another 69% in the world, spread in 84 countries connecting over 1936 customs sites including border posts (UNCTAD 2010). Other countries in Africa are connected to individual and customized applications with varied IT platforms such as SIMBA for Kenya and SIYAKA for South Africa. Most of these applications are quite distributed and shared by countries in regional economic groupings. Despite the common usage, very few countries have gone ahead to have their national IT systems interconnect at their common borders with neighbouring States directly or through a medium server to exchange and share transactional and trade information. Figure 11.1: Distribution of ASYCUDA in Africa Note: ASYCUDA spread in 31 African Countries, Benin, Botswana, Burkina Faso, Burundi, Cameroun, Cape Verde, Central African Rep, Chad, Comoros, Congo, D. R. Congo, Ethiopia, Gabon, Gambia, Guinea, Guinea-Bissau, Madagascar, Malawi, Mali, Mauritania, Namibia, Niger, Nigeria, Rwanda, Sao Tome and Principe, Sudan, Tanzania, Togo, Uganda, Zambia and Zimbabwe In most parts of the African continent, interconnectivity is only just being developed. (The Eastern and Southern Regions offers a relevant IT interconnectivity as an example, code named Revenue Administration Digital Data Exchange (RADDEx) experience at a bi-lateral approach, i.e. between two neighbouring states). The RADDEx software is a tool for trade facilitation. It is software designed in the environment where it is used with connectivity utilizing minimal bandwidth and employing processes that can retry forever until they succeed. If the power is out for a week, when it is re-started, the RADDEx server will pick up where it left off. RADDEx transmits customs declaration data, in near real time, from point of initial lodging, through all affected transit points, to final destination. This automatic electronic transmission directly results in decreased transit delays through provision of advance notification, facilitation of pre-lodging, elimination of duplicate data entry and risk analysis. Final OSBP Source Book Page 78