The Chairperson of the National Conventional Arms Control Committee (NCACC), Minister Jeff Radebe, presented the NCACC’s 2012 Annual Report to the United Nations. He explained that the NCACC was a sui generis Cabinet Committee, appointed by the President, consisting of seven Cabinet Minister and three Deputy Ministers. NCACC was supported also by a Secretariat, the Inspectorate, which would look after matters of compliance, and the Scrutiny Committee that considered applications and made recommendations to the NCACC, and it was also supported by and sought advice from other government departments and agencies. It met on a monthly basis to consider arms transfer applications lodged by the defence industry with the Secretariat. It would consider all applications in context and in aggregate, as provided for in section 15 of the NCACC Act, and would then approve or deny permit applications. NCACC had a mechanism of responding to political circumstance in countries of prospective export, and could place applications on hold where it was concerned about any developments in a particular country. It would continue to monitor the situation and if the situation deteriorated, it could deny authorisation to the arms companies.
The Minister assured the Committee that NCACC complied fully with legal imperatives, and that South Africa was committed to the international agenda of disarmament and non-proliferation. However, South Africa had a strong defence industry base and recognised that its robust arms control system should be complemented by international instruments setting common standards for arms transfers. South Africa had participated in the negotiations for, and was a signatory to the United Nations Arms Trade Treaty, which had been approved by Cabinet in July 2013 and would be brought to Parliament for ratification.
The reporting obligations of the NCACC were set out, and the process of reporting on arms transfers to the UN was explained. The Register of Conventional Arms had operated since 1991. It was not mandatory, but was a voluntary mechanism to promote transparency in arms transfers. NCACC reported annually and voluntarily to the UN each year, in each of the seven categories set out for reporting. A full table of South African exports and imports was presented, showing the types of armaments, the countries to whom or from whom they were exchanged, and the ultimate users.
A DA Member had raised concerns earlier in the meeting that this Committee had a number of reports from the NCACC on which reports were still expected, but he clarified during the discussion session that he was not intending to criticize the NCACC, but rather was concerned about the backlogs. He noted that the present Chair and Committee had tightened the regulations and improved decisions. He asked if the NCACC was fully compliant with reporting requirements in terms of the amending legislation, asked if any confidential reports had been tabled to Parliament and noted that perhaps this Committee might want to discuss whether such reports should be tabled to the Joint Standing Committee on Intelligence. The Minister and other members of the NCACC clarified the context in which confidential matters were dealt with in the NCAC Act. Questions were asked about the transfer of conventional arms to opposing sides, which could escalate regional conflict, but it was explained that no blanket authorization was followed and that the NCACC considered all applications individually and in context. A Member agreed that it may be useful to get a report on the numbers of applications declined. Another Member questioned if any instances had been found where approval was given but arms were diverted, contrary to the Act.
Mr D Maynier (DA) asked for the opportunity to express some concerns before the meeting commenced. He noted that the Minister had been invited to present the 2012 Report. The last meeting with the Minister was on 15 March 2013, when the Committee had dealt with the three quarterly reports mentioned in March but the Committee had not dealt with the 2012 Annual Report and two subsequent quarterly reports. He wondered if the Department of Defence had complied with all reporting requirements, and whether this may be because the Minister had intended to re-submit the two reports.
The Chairperson noted that the ATC of 18 June 2013 specifically noted that the 2012 Annual Report by the National Conventional Arms Control Committee (NCACC) to the United Nations was tabled in terms of the relevant legislation (section 23(1)(c) of the NCAC Act of 2000). There were indeed some other reports that needed to be considered by the Committee, but in putting across this programme, the Committee had wanted to ensure that it could deal with some of the backlog. This report formed part of the backlog. That was why the Ministry had been asked to present this report. Anything else that was still outstanding would be dealt with. The Committee had to refer the new legislation on Special Pensions to the Department of Finance, and that was another backlog.
Mr Maynier wanted to follow up. He wanted to place on record that NCACC had been very controversial.
Minister Jeff Radebe, Chairperson of the NCACC, raised a point of order. The NCACC had been asked to deal with the 2012 Report. If the Committee wanted to deal with other issues, and this was no longer on the table, he would leave. He commented that he could not sit there to hear insults from Mr Maynier.
Mr D Bloem (COPE, Free State) pleaded that the meeting be brought to order and said that there was an agenda before the Committee. Other matters were internal and could be discussed after the agenda for the day. He asked that the NCACC be allowed to proceed with the report.
The Chairperson noted that he had tried to explain the reasons behind the programme. The correspondence between Mr Maynier and the Ministry was private and did not have to be presented to this Committee.
Mr Maynier wanted to clarify something.
The Chairperson said that he may not speak. The meeting should continue.
Mr Maynier continued that he had a point of order, and insisted that he had had no intention to insult the Minister.
The Chairperson repeated that Mr Maynier was not given permission to speak.
Mr Bloem asked the Chairperson to make a ruling.
The Chairperson said he would prefer it if the Minister simply continued with the presentation of the report.
National Conventional Arms Control Committee United Nations Report for 2012
Minister Radebe thanked the Committee for inviting the NCACC to present and brief the Committee on its tabled 2012 Annual Report to the United Nations on Arms Import and Export, which had been tabled in May 2013.
He noted that this meeting coincided with a meeting of the Justice, Crime Prevention and Security Cluster, which was why some other members of the NCACC were not present. He explained that the NCACC was established in terms of the NCACC Act, with the statutory mandate to regulate the development, manufacture, possession, trade and transfer of conventional arms in South Africa. It was a sui generis Cabinet Committee, appointed by the President and consisting of seven Cabinet Minister and three Deputy Ministers. In terms of the legislation the positions of Chair and Deputy Chair had to be held by Ministers who had no line function interests in the conventional arms business. He noted that he was accompanied today by the Deputy Chair, Minister Naledi Pandor, Minister of Home Affairs, Dr Rob Davies, Minister of Trade and Industry, and Mr Ebrahim Ebrahim, Deputy Minister of International Affairs and Cooperation. The other members of the NCACC were set out (see attached presentation, slide 6).
There were various supporting structures: the Secretariat, the Inspectorate, which would look after matters of compliance, and the Scrutiny Committee that considered applications and made recommendations to the NCADCC. NCACC was also supported by various government department and agencies, including the South African Police Service (SAPS), Department of Defence (DOD), Department of International Relations and Cooperation (DIRCO), Department of Trade and Industry (dti), the National Prosecuting Authority and Customs.
The NDCACC met on a monthly basis to consider arms transfer applications lodged by the defence industry with the Secretariat. It would consider all applications in context and in aggregate, as provided for in section 15 of the NCACC Act, and would then approve or deny permit applications. NCACC had a mechanism of responding to political circumstance in countries of prospective export, would take the inputs of other bodies and could place applications on hold where it was concerned about any developments in a particular country. It would continue to monitor the situation and if the situation deteriorated, it could deny authorisation to the arms companies. The NCACC had used this mechanism in the 2012 period. Some of its powers were delegated to the Secretariat, particularly in order to facilitate trade, and the Secretariat would execute the decisions of the NCACC.
Mr Radebe assured the Committee that the whole process followed by the NCACC demonstrated its commitment to and full compliance with legal imperatives. NCACC would consistently ensure that it was composed according to the dictates of the law, that its meetings were conducted in terms of section 6, and that it had established the necessary processes for effective regulation of arms trade. NCACC had set up effective structures of support, for administration and compliance, and was effectively applying the guiding principles and criteria for decision-making on arms transfer. It was disclosing relevant information according to section 23, acted to protect the security and commercial interest of South Africa.
South Africa was committed to the international agenda of disarmament and non-proliferation but this recognised the rights of states to self defence and to engage in responsible and accountable trade in arms. South Africa had a strong defence industry base and its robust arms control system needed to be complemented by international instruments setting common standards for arms transfers. In April 2013, the United Nations had adopted the Arms Trade Treaty which sought to create common minimum standards for arms trade and this was in response to the international desire to have an international treaty to regulate the transfer of arms worldwide. South Africa had participated actively in the negotiations, based on its recognition of the benefits that the Treaty would bring, including end user certificates. The provisions of the Treaty also mirrored other provisions that South Africa already had, including various arms already regulated under domestic legislation (the NCAC Act and the Firearms Control Act), specific arms transfer prohibitions, and reporting obligations that were also covered in the NCAC Act. Cabinet had given its approval for the signature of the treaty in July 2013. After signature at the UN, the Treaty would be brought to Parliament for formal ratification.
Mr Radebe noted that the NCACC had participated actively in negotiations on the Treaty and mentioned that South Africa’s arms trade regime was lauded in Europe.
Mr Radebe moved on to describe the reporting obligations, under section 23 of the NCAC Act (see attached presentation for full details) and noted that the 2012 Report to the UN, which had been tabled in Parliament as already mentioned, had also been submitted to the UN.
The reporting on arms transfers to the UN was informed by the UN General Assembly Resolution 46/36, of 9 December 1991. This had established the UN Register of Conventional Arms, which had been in operation since 1991. Although it was not mandatory, but voluntary, the Register was a confidence-building measure to promote transparency in arms transfers, and helped to determine accumulation of defence capabilities of an excessive or destabilising nature. It therefore encouraged restraint in the production and transfer of arms, in defence to preventative diplomacy. NCACC did provide information voluntarily each year to the UN.
The UN register set out only seven register categories for reporting (see attached presentation, slide 23). Mr Radebe set out a table of South African exports in this year, which listed the types of armaments, the countries to which they were exported, and the ultimate users. A similar table was also given in respect of the imports to South Africa, from Finland, Sweden and United Kingdom, and the bodies to which they were transferred.
Mr D Maynier (DA) commented that the meeting had begun on the wrong footing that morning and wanted to clear something with the Minister. He had previously given his view, and wanted to repeat it now, that under the present leadership of the Chairperson and Deputy Chairperson the regulation of conventional arms had been tightened and there were better decisions being made over time. Previously, there had been difficulties in getting NCACC reports, but it was clear that they were now being tabled regularly. His frustration, expressed earlier, was in fact directed not to Mr Radebe, but the Committee, because he was concerned about the way in which the Committee was exercising oversight, and the backlog. He wanted to compliment Mr Radebe on the improved decisions and strengthening of the NCACC.
However, he still had some concerns. Firstly, he questioned whether the NCACC was complying fully with the reporting requirements set out in the NCACC Amendment Act, which required more information to be disclosed, and this applied to the 2012 Annual Report as well as the quarterly reports. If he was correct in his assumption that there was non-compliance, he asked if Mr Radebe was taking any action to remedy the situation and perhaps consider re-tabling the reports.
Minister Radebe thanked Mr Maynier for clarifying his earlier points and was pleased that he had recognised that the systems were working. He reminded Members that the specific invitation to the NCACC was to speak on the 2012 Annual Report, and this was what had been presented and prepared. If Members were interested in other reports, then the NCACC should be given an opportunity to prepare specific answers on those. He said that the NCACC would like to be guided by the Committee how far it wanted to hear about the work. This was the second time it had been invited to brief the Committee, and NCACC was keeping an open mind on engagements.
Mr Maynier asked if, under the new requirements, the Minster had, since 16 April 2012, tabled any confidential reports to Parliament.
The Chairperson stressed that the UN register was quite clear on the responsibilities of states about the registration .It was a voluntary process and indicated the type or reporting on imports and exports.
Mr Radebe questioned how it was intended that any confidential matters could be dealt with, since this Committee was an open Committee, unlike the closed sessions of the Joint Standing Committee on Intelligence.
The Chairperson reiterated that the list of armaments reported to the UN was limited and anything confidential would not be called for. If the NCACC had confidential information, it would deal with it under a set procedure; some might be classified, and some matters were referred to the Joint Standing Committee on Intelligence, but not this Committee. If Parliament needed to obtain reporting on confidential matters, there were relevant structures and channels.
Mr Maynier agreed that confidential reports were a challenge, but suggested that perhaps this Committee needed to discuss further whether the Joint Standing Committee on Intelligence was the correct route. He repeated his question whether any confidential reports had been submitted.
Mr Radebe said that none were presented. In general, he commented that the NCACC would be reluctant to disclose why it was declining applications; for instance, it may be very sensitive to disclose that intelligence had determined that arms were being diverted. It was clearly not in the national interest of the country to disclose everything.
Mr Maynier also raised a concern that the guiding principles used by the NCACC when assessing transactions included a requirement that it avoid transfer of conventional arms that could escalate regional conflict. He had noted exports to South Sudan as well as Sudan and asked if this export, to two sides in a very volatile situation, did not pose concerns.
Ms Naledi Pandor, Deputy Chair, NCACC, reminded the Committee that it would be the arms industry that made applications to the NCACC. The NCACC was bound to use the criteria set out in its Act to assess whether those must be approved or not. It would also look at the world situation and input from a range of departments, and it would be very difficult, other than perhaps where there was an international indicator that certain trade should not be allowed, to disallow any exports because of the possible conflict that they may be used for conflict. NCACC looked at whether there were actual prohibitions, the existence of any peace agreements, and whether they were working, and took into consideration the advice of various bodies as well as UN decisions. NCACC went quite far in its investigations and was in fact more strict than many other countries, and industry may criticise it for being too rigorous. In general, it tried to comply with legislative indicators and the situation on the ground.
Dr Rob Davies, Minister of Trade and Industry, and NCACC member, said that the line function of his Department was to promote exports. If the commercial value of all transactions was the prime consideration, there would have been significantly greater value of exports authorised. The NCACC erred on the side of caution, and some of the applications that NCACC had declined later were supported by other countries. He had recommended that when making its reports, NCACC should also report on the amounts declined. He reminded Members that when private companies sought authorisation for exports, this did not necessary correlate with the total export actually effected. It was necessary also for the NCACC to consider the applications in their context and time frame. There may not have been simultaneous approval for armaments to Sudan and South Sudan. He assured the Committee that in each case NCACC would make a serious judgment
Mr Radebe concurred that there was certainly not blanket authorisation. The scrutiny committee included DIRCO, SAPS, and Department of State Security, who would all give input on their individual interrogations. The NCACC would also interrogate open sources, and it would also view matters with caution if there was any suspicion that an export that appeared in order could possibly be diverted to another country where forces were in conflict.
Mr Radebe noted that Mr Maynier had written a letter to him, which he had only seen in this meeting so that he had not yet had a chance to respond. The NCACC was involved in a regime dealing with arms exports and imports, and would consider the content and would respond to that letter in due course.
The Chairperson said that this should not be discussed now.
Mr Maynier said that he looked forward to receiving a reply in due course. He commented that he agreed with Dr Davies that it was in the interests of the Committee that declined transactions be reported upon.
Mr S Esau (DA) asked if there was any instance when the NCACC had approved an application and it had been found later that the arms had been diverted, and, if so, what consequences had followed.
Mr Radebe responded that the Inspectorate worked well with the NCACC and certain companies were already under investigation by the National Prosecuting Authority, where the procedures of the NCACC had been violated. He was not at liberty to disclose the details but there had been instances where South Africans had been involved in nefarious activities using the companies.
Mr D Bloem (COPE, Free State) repeated his strong view that state security should never be threatened for the sake of openness. No country should expose its security situation to others, and if there was anything in the legislation that did require reports on confidential matters, then perhaps the legislation needed to be scrutinised.
Dr Davies clarified that whilst it was generally not possible to give a blanket statement that all exports to a certain country would be refused outright, any declines could be based on other criteria. He reiterated that a careful scrutiny was carried out in all cases.
Mr Radebe added that one example might be Egypt, where for a time the situation had improved, then rapidly declined. It must be remembered that there was constant fluidity, and for this reason it made sense for section 16 of the NCACC, which required a case-by-case assessment and thus gave the NCACC the necessary flexibility to seek input.
Ms Pandor also stressed that the clause dealing with confidentiality in fact did not specify that a confidential report was envisaged from the NCACC. The reference to confidentiality was raised in the context of a specific contract where the purchaser may seek to have certain aspects protected from disclosure. She stressed that the NCACC applications related to the commercial sphere and everything had to be weighed up against the possible harm to the industry. In fact, the Act did not envisage that a separate report would be made on confidential matters.
The meeting was adjourned.
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