Defence Bill: finalisation; National Conventional Arms Control Bill: deliberations

Meeting report

Defence Bill
The Defence Bill (B60B-2001) was approved by all parties, except the Democratic Party, which reserved its position on Chapters 3 and 6: referring to Employment and use of the Defence Force, and Defence Intelligence. The Inkatha Freedom Party reserved its position on Chapter 3.

National Conventional Arms Control Bill
The Chairperson, Ms Modise, expressed her dismay that the amendments to the NCAC Bill supported by the Committee last year had been overruled, and that the Bill has been reworked by the Minister of Defence.

Pages 1 and 2 were approved without much discussion. The definitions on pages 2 - 6 prompted sharp exchanges between the Committee and the representatives of the National Conventional Arms Control Committee, Mr Marais and Mr Roussouw.

Ms Modise (ANC): Please explain what is meant in the definition of "contract" in clause (iv)?

Mr Fred Marais (NCACC): This covers the political authorisation for negotiations regarding prospective exports.

Mr Schmidt (DP): This definition is completely at variance with legal concepts of "contracts". An alternative might be to refer to a "contracting permit."

Mr Oosthuizen (ANC): How can a person bind governments in this instance?
The Committee agreed that Mr Hoon should redraft this clause to reflect the negotiating authority.

Mr Marais: Import authorisation is taken by Cabinet rather than the NCACC, except if South African industries require armaments for research and development purposes.

Mr Makanda (ANC): In other words, the NCACC has no teeth.

Ms Modise (ANC): We asked the NCACC to define its functions, but have had no reply. You say we do not have to worry about imports if the Cabinet approves the acquisitions, but that the NCACC rather than the Cabinet decides on exports.

Mr Marais: The NCACC is a regulating body responsible for what it authorises for export, and accounts to Cabinet quarterly. But it is not responsible for what the Department of Defence purchases. Movement of all arms: import and export, is regulated by the NCACC.

Mr Schmidt (DP): Do I understand that all imports and exports by South African industry is controlled by the NCACC, but not imports by the Department of Defence?

Mr Laurie Nathan (Centre for Conflict Resolution): A distinction is necessary between "procurement" of armaments determined by the Cabinet, and "trade."

Mr Schmidt (DP): Were the government to contract to supply arms to say, Zimbabwe, could the NCACC object?

Mr Marais: Yes.

Mr Schmidt: How can "conventional arms" include "brokering services"? Surely one is "hardware" and the other "software"?

Mr Marais: "Brokering services" should become part of "trade".

Ms Modise (ANC): The Committee agrees that Mr Hoon should redraft the definitions of "contract and "brokering services".

Mr Marais: We wish to delete reference to the Firearms Control Act 2000 in clause (v) (c).

Mr Nathan: This raises the possibility of confusion because the Firearms Control Act defines firearm so broadly. There is overlapping authority.

Mr Marais: Commercial arms permits are approved by the SAPS. This creates the facility for the SAPS not to approve large shipments without reference to the NCACC. There is an "old-boys" agreement between SAPS and the NCACC.

Mr Nathan: An "old-boys" agreement is inadequate for controls of ten weapons and less, or so many rounds of ammunition. The Cameron Commission found that dealers simply reduce the shipment quantities and multiply their frequency.

Mr Oosthuizen (ANC): Can the ANC consult on this issue?

Ms Modise (ANC): Agreed. Obviously we will not pass this bill today. Let us proceed to page 4.

Mr Ndlovu (IFP): Does dual use include agricultural commodities that can be used to make bombs? Would dual use include 4x4s?

Mr Roussouw (NCACC): This is covered by the Mass Destruction Act, and refers to a schedule included in the Wassenaar Arrangement.

Ms Modise: Our intention is to pass legislation that is clear to the reader, not something that refers to other legislation.

Mr Roussouw: The Government Gazette will publish a list of dual-use items in terms of the Wassenaar Arrangement. This would include the use of 4x4s used for armoured purposes.

Mr Oosthuizen (ANC): Then, why does the bill not refer to the list of the Wassenaar Arrangement?

Ms Modise: We want to see the list of the Wassenaar Arrangement.

Mr Oosthuizen: Under clause (x) regarding exports, what do you mean "by advance a cause?"

Mr Nathan: You cannot export arms without a permit.

Mr Marais: Clause 16 of the Bill covers the export and return of arms.

Ms Modise: We will hold over the definition of "export". What kind of "causes" do you envisage?

Mr Nathan: The intention of the drafters is to cover all exports, regardless of whether there is payment because they do not want anyone to export weapons without a permit.

Mr Schmidt: What about testing of armaments in, say, Botswana?

Mr Marais: Yes, in terms of "transfer," you need a permit. Let us avoid "to advance a cause". It is too loaded a term.

Mr Nathan: Agree. The reference to "advance a cause" only confuses the issue. We are seeking maximum control over all exports that leave the country. Thus, clause (x) should end at the third "Republic" before "at a late date."

Ms Modise: Clause (xvi) lists various kinds of permits. What purpose is served by this listing? Why not simplify to "any permit issued by the NCACC?"

Mr Nathan: The purpose of the Bill is to prohibit movement of weapons without a permit. It must be absolutely clear. These definitions must be absolutely clear.

Ms Modise: Mr Hoon, you will have a difficult time tightening these definitions. We agree that "brokering services" should be included in clause (xxvii) in terms of "trade."

Page 6: Chapter 1: Committee, Secretariat and Inspectorate
Mr Ratebe (DoD): The object of the Committee should be amended in paragraph 3 as: "to implement government policy regarding conventional arms control 'trade' (insert)".
Mr Nathan: Since this is one of the founding principles, the proposal under paragraph 3 (a) (i), to replace reference to Clause 15 with "norms and practices" is far too vague.
Ms Modise: We agree to reinstate the previous provision and reference to Clause 15.

Various members questioned the meaning and purpose of paragraph 3 (a) (ii) "binding on the Republic", saying that all legislation is binding on the Republic. The Committee agreed to remove the provision as being superfluous.

Ms Modise: Members will return a few days before Parliament reconvenes to consider the amendments.

The meeting was adjourned.

Appendix 1:

Centre For Conflict Resolution
Comment on the Executive's amendments to the National Conventional Arms Control Bill
Laurie Nathan
June 2002

Policy concerns

1. Section 3(a)(i) of the Bill has been amended to read that the Committee's objects are to implement Government policy regarding conventional arms control in order to establish a legitimate arms control process which "conforms to international law and the guiding principles and criteria contained in section 15, norms and practices".

This amendment undermines the objects of the Bill. The principles and criteria contained in section 15 are clear, progressive and will be enshrined in national legislation. International norms and practices, on the other hand, are vague, contradictory and include negative trends in the case of arms exports.

2. The Committee's functions have been expanded to include authorisation of the export of firearms

and ammunition regulated by the Firearm Control Act of 2000 (section 4(2)(f) of the Bill). This is very positive but there are three problems:

a) Section 4(2)(f) states that the Committee "may" authorise such exports. Does this imply that firearm exports may also be authorised by the National Commissioner of the SAPS, as provided for in chapter 8 of the Firearm Control Act? Section 28 of the Bill does not provide for the repeal or amendment of chapter 8 of the Firearm Control Act.

b) Section 4(2)(f) provides that the Committee's authorisation relates to the export of firearms to "foreign governments or their approved entities". What about exports to private dealers? The Cameron Commission found that relatively large consignments of small arms and ammunition were being sold to the same private dealers in Africa in the course of a year, raising concerns that the weapons were destined for civil wars.

c) The definition of "conventional arms" in the Bill excludes firearms regulated in terms of the Firearm Control Act (section 1(v)). This exclusion should be deleted so as to ensure that all sections of the Bill which refer to arms include the firearms referred to section 4(2)(f).

3. Section 14(8) has been amended to read: "The Committee may withhold any conventional arms

permit to any person convicted" of an offence under specified legislation. The word "may" should surely be "must".

4. Section 15(i) has been amended as follows: "The Committee must avoid the export of

conventional arms to a government that has violated an end user certificate undertaking; consider the commitment of the recipient country to, and their record of compliance with End User Certificate undertakings"

This amendment is inconsistent with the objects of the Bill and the relevant provisions in the 1996 White Paper on Defence (chapter 7). If an importing country breaches its end-user undertakings, arms exports are diverted to unauthorised destinations and undermine South Africa's arms control system.

5. Section 23(1)(c), which provides for prospective parliamentary oversight of pending arms exports,

has been deleted. Parliament will consequently only have retrospective oversight of arms that have already left the country. This does not constitute effective oversight.

The State Law Adviser who assisted the Portfolio Committee on Defence in drafting the Bill argued that section 23(1)(c) is appropriate and justified in terms of section 55(2) of the Constitution which deals with Executive accountability and parliamentary oversight. Section 23(1) (c) does not usurp the Executive's decision-making authority or undermine the principle of separation of powers.

It is important to note that section 23(1)(c) does not confer on Parliament the power to veto a pending arms export. It provides that a parliamentary committee may recommend to the Executive that an arms export be rejected on the grounds that the export is inconsistent with the principles contained in the Bill (as in Sweden). The final decision would rest with the Executive.

6. The new Section 23(2)(c) provides that the annual report on arms exports presented to Parliament and released to the public "shall only reflect the country, category of armament and total value per category exported to the country for the year"..

The NCACC uses the term "category of armament" to define armaments in terms of their sensitivity (e.g. "sensitive", "non-sensitive" and "non-lethal" equipment). This is completely inappropriate because the sensitivity of arms depends on their use and on the political and military context of the importing state. For example, riot control products, defined as "non-sensitive" by the NCACC, are highly sensitive if sold to a state engaged in repression.

Further, the NCACC must ensure compliance with the annual reporting requirements of the UN Register of Conventional Arms and must present to Parliament a copy of its annual report to the UN (section 23(1)(a)). In terms of the requirements of the Register, this report must indicate the specific type and quantity of arms exports in a given year. Why then does section 23(2)(c) entail a lower level of detail in reporting to Parliament?

The solution to this problem lies in deleting the new section 23(2)(c) and reinstating the deleted reference to "subsection (1)(d)" in section 23(2)(a). Section 23(2)(a) requires quarterly reports to the parliamentary committee to "set out the names of the importing states and the type, quantity and value of all the conventional arms in question".

Stylistic concerns

7. The last paragraph of the Preamble has been amended as follows: "AND SINCE it is vitally

important to ensure accountability in all matters concerning conventional arms and services provided in connection with conventional arms". The phrase "provided in connection with conventional arms" should be deleted since it refers to the term "services" which has been deleted.

8. The definition of permits mixes upper case and lower case initials for different permits (section

1(xvii)).

9. The word "and" at the end of section 4(2)(d) should be deleted and should be added at the end of

section 4(2)(e).

Appendix 2:
Open Democracy Advice Centre

11 October 2001

CONVENTIONAL ARMS CONTROL BILL - COMMENTS
The Open Democracy Advice Centre is a project of Idasa, the Black Sash Trust, and the University of Cape Town Department of Public Law.

The Open Democracy Advice Centre's mission is -

to promote an open and transparent democracy;
to foster a culture of corporate and government accountability and transparency; and
to assist persons in South Africa to be able to realise their human rights.

ODAC seeks to achieve this mission through supporting the effective implementation and protection of rights and laws which enable access to, and disclosure of, information. We aim, amongst other things, to enhance civil society access to public & private information through the new Promotion of Access to Information Act (POATIA).

Our greatest concern at this stage is the deletion of the previous section 23(2)(c) in the in the most recent version of the Bill.

We are concerned that the operation of the Promotion Of Access To Information Act (POATIA) may be undermined by the deletion of this clause, which specifically made provision for the operation of this Act. The deletion of section 23 (2)(c ) has resulted in a conflict between POATIA and the Bill.


Section 5 of POATIA provides:
"This Act applies to the exclusion of any provision of other legislation that-
(a) prohibits or restricts the disclosure of a record of a public body or private body; and
(b) is materially inconsistent with an object, or a specific provision, of this Act."

Section 5 governs the relationship between POATIA and legislation restricting access to information. The effect of section 5 is that the POATIA overrides other legislation that prohibits or restricts disclosure and that is materially inconsistent with an object or a specific provision of the Act.

Section 23(1) of the Conventional Arms Control Bill clearly restricts disclosure of certain information.

The general rule, however, is that a later law overrides inconsistent earlier law. This would mean that if the Bill is passed in its current form it would override the POATIA. This would be the case despite the fact that the Bill does not expressly exclude the application of POATIA. The exclusion of the application of POATIA by implication may be sufficient for the Bill to eventually override it.

Further, the information which the Bill seeks to protect does not fall within the ambit of the exemptions set out in chapter 4 of the POATIA. Even if an exemption did apply, the "public interest override" found in S46 of the POATIA could be used to overcome such difficulty. There is thus no guarantee under the POATIA that the information referred to in the Bill would be protected from disclosure.

It would be helpful if the drafting of Section 23 of the Bill makes clear its relation to POATIA, which previous versions of the Bill did. If it does not, then litigation around the right to access this information would have to ensue, based on whether or not this is a reasonable and justifiable further limitation of the right to access to information, particularly as it is to an extent greater than that considered reasonable and justifiable by the Justice committee.

Alison Tilley
Project manager