National Conventional Arms Control Bill: deliberations

Meeting report

MINUTES
Ms Modise: Well, we had some excitement in recent weeks to spice up our democracy - including the leaking of reports. I have just returned from Algeria where the tension between the military and civilians is very serious, and where the military say that MPs cannot be trusted with sensitive information. I wish to remind members of their responsibility to treat confidential information sensitively. We know that we have a serious problem with AIDS; we are told that the SANDF can defend this country; and we know that South Africa has more than four operational tanks. That said, I declare the meeting open and to begin consideration at Clause 4 of the Bill.
The amendments to Clause 4 (1) improving the wording were approved.

Mr Laurie Nathan (Centre for Conflict Resolution): The inclusion of Clause 4(2)(f) on Firearms Control is very positive, but the emphasis in this Clause is that the NCACC "may" authorise whereas, the term more appropriately should be "must." There needs to be better cross-referencing with the powers of SAPS, especially with respect to private dealers. The drafters need to think about the practicalities.

Mr Fred Marais, Director General: National Conventional Arms Control Committee: This Clause is meant to address the circumstances of commercial firearms dealers in foreign countries. We at the NCACC do not look at private South African individuals taking their weapons out of the country temporarily, but only at the trade and change of ownership of weapons.

Mr Roussouw (Department of Foreign Affairs): There is a distinction between people buying in small quantities, and South Africans taking their weapons out of the country. We receive reports weekly of these activities at the Department of Foreign Affairs, and we focus on a case-by-case-basis. We focus upon United Nations resolutions and NCACC criteria, and SAS and NIA are also involved.

Mr Modise: How do we close these loopholes?

Mr Nathan: We need to look at the definitions of conventional arms. Old boy agreements must be reflected in legislation.

Ms Modise: How do we do so? How do we resolve the conflicts in duty between "must" and "may" in 4(1) and 4(2)?

Mr Marais: We recommend that all firearms fall under the Firearms Control Act, and that the NCACC focuses upon trade and change of ownership. Otherwise the NCACC's scale of work will be far beyond our capacity.

Ms Modise: That approach is fragmentary. Should our recommendations not be that the left hand knows what the right hand is doing, namely a central regulatory body.

Mr Roussouw: We would support a central regulatory body. The central firearms register refers to the NCACC on a gentlemens' agreement basis.

Ms Modise: Is there a problem of turf? I am worried that South Africa must regulate effectively rather than six or seven acts, and gaps of jurisdiction.

Mr Marais: I would caution against putting all regulations in one act and/or body.

Ms Modise: If we agree that the NCACC authorises large numbers, why should we ignore the fact that small arms are used for terrorism?

Mr Nathan: We are talking about weapons-of-choice in civil wars. We need to formalise the old boy agreements.

Mr Jonkielsohn (DP): Agree that we need to formalise the old boy agreements, that the descriptions of large or small quantities are too vague.
The amendments to Clause 9 were approved, save that in Clause 9(3) the word "after" was changed to "in".

Chapter II
Clause 13(1) -- Permits
Mr Blaas (NNP): Do we not have the same conflict as with the Firearms Control Act?

Mr Nathan: The Registrar is confirmed as the National Director of SAPS.

Mr Marais: Trade in firearms differs from the political body that determines conventional arms exports to foreign countries.

Mr Blaas: As the Chair as said, trade in a small firearm can be used for terrorism.

Mr Roussouw: Firearms dealers export a huge amount of firearms and ammunition.

Mr Marais: The intention of Clause 13(1) is to define a person as a legal persona.

Mr Oosthuizen (ANC): If so, we cannot authorise the legal persona. We would end up with numerous persons acting on behalf of that entity.

Ms Modise: Agreed that the term "person" must be defined. Would the legal team please correct this?

Clause 13(2) -- Transit

Mr Jonkielsohn: Does this effect arrival in ports or transit through Customs?

Mr Roussouw: We need to tighten transit to cover transit through free ports such as Coega. Clause 14(2) amendment agreed.

Clause 14(8)
Mr Jonkielsohn: Given the nature of the product, the word "may" must be replaced by the word "must."

Mr Marais: There must be political discretion, hence the need for the word "may." Does it mean that a body, one of whose employee has been convicted of an offence, must be ruled out?

Mr Jonkielsohn: We are not talking about parking ticket offences. Either company or individual traders must be ruled ineligible.

Ms Modise: If executive members of a company have been convicted, then there remains the need to prohibit future trading under new names.

Mr Tungwana: I would agree with Mr Marais on the need for discretionary powers, given inclusion of the Internal Security Act. It depends upon a particular government to define security. I am not sure that we should have blanket regulation.

Ms Modise: If the whole idea of permits in Clause 14 is to control trade in armaments, we need to remember what happened before the Cameron Commission, Sierra Leone etc. I would have a big problem in selling arms to mercenaries. We must start cleaning up, and be very clear who we will sell to and who we will not sell to.
Mr Marais: What is the understanding of "person" and "employee?" The political body needs discretion, given also the needs of transparency.

Mr Nathan: An amendment is necessary to reflect that a company cannot export if any of its executives or board members have been convicted. The original clause intended "must." The Executive should have no discretion if persons have been convicted under the legislation.

Mr Marais: I reiterate that the NCACC is answerable to Parliament, and that queries would possibly change decisions.

Ms Modise: I suggest to the drafters that they have a look at the Internal Security Act to see whether a discretionary aspect is catered for.

Mr Tungwana: Plus other apartheid-era legislation that would exclude the Chair.

Ms Modise: I do not have another revolution to fight.

Mr Jonkielsohn: What happens to people who violate the end-use certificates?

Mr Roussouw: Are you talking about South African entities or violations of end-user certificates by buyers?

Mr Marais: End-user certificates are not legally binding. They are considered a diplomatic rather than legal instrument.

Ms Modise: If we are relying on end-user certificates in this legislation, we want to take them seriously.

Mr Nathan: When companies wish to contravene embargoes, they typically produce forged or fraudulent end-user certificates. We need a Clause that explicitly deals with end-user certificates.


Mr Marais: To who are these end-user certificates to be applicable? South African citizens or foreign buyers?

Ms Modise: Supposing the end-user certificates were falsified in past transactions, surely we must be cogniscent and refuse to authorise new transactions?

Mr Marais: There are repeated allegations against South Africa, but no proof. It must be a question of degree.

Ms Modise: I am not concerned about questions of degree, but peoples' lives. South Africa stands out as a country that is trying to lead by example. South Africa says that we did not sell to Rwanda or the DRC or Sierra Leone, yet South African weapons found their way there. It seems to me that I have a responsibility to make sure that South African arms export applications are thoroughly scrutinised. We cannot exclude a country's past behaviour.

Ms Madlala-Routledge: I agree, Chair, that you must be firm on this issue. The NCACC does take this into account. The NCACC must take into account the history of the country's compliance with end-user certificates.

Mr Blaas: I have no doubt that we must insist on "must" instead of "may."

Mr Marais: What is an end-user certificate? It says that a country won't resell to a third country. But if there are circumstances - for instance, India where South African equipment is captured in a war situation - we get many allegations when we do not know how the weapons got into conflict zones.

Ms Modise: Clearly you and I will not agree. The Committee feels the word "may" must state "must" in Clause 14(8). The matter of discretion must be resolved.

Clause 15
Amendments to Clause 15(f) and (g) were approved. There was discussion on Clause 15(i).

Mr Nathan: This is dangerously weak. It needs an emphatic prohibition rather than executive discretion. If we exercise discretion when arms exports commitments have been violated, then there is no purpose to this Bill.

Mr Diale (ANC): What do we mean by "consider?"

Mr Roussouw: I cannot recall why the clause was changed. I agree that the word "consider" sends out a very weak signal.

Mr Marais: Not all countries view end-user certificates as seriously as South Africa. It is not an internationally-defined document.

Ms Madlala-Routledge: The original clause relates to a breech between countries. I think the two clauses can be combined.

The Committee agreed to combine 15(i) to read: "Consider the commitment of the recipient country to, and their record of compliance with End User Certificate undertakings, and thus avoid the export of conventional arms to a government that has violated an end user undertaking."

Clause 16 (c)
Add the word "where."

Clause 17
Add "subject to Clause 16 above,"

Clause 23 (c)
Mr Nathan: The implication of the proposed deletions is very serious. It was originally intended to give the committee oversight over prospective exports. This provides only retroactive oversight, and therefore no oversight whatsoever. In supporting the deletion, the Committee would strip itself of control required by the Constitution.

Mr Jonkielsohn: What is the DoD reasoning for the deletion?

Mr Marais: It is inappropriate for Parliament to make recommendations before the NCAAC -- or to pre-empt the NCACC's executive functions. Must everything come before the parliamentary committee? The NCACC has executive authority accountable to Parliament.

Mr Blaas: Quarterly accountability must be retained.

Ms Modise: The ANC has requested a caucus for 15 minutes. (The Committee stopped for about 30 minutes).

Mr Rubasha: The bill must give executive powers to the NCACC not to Parliament. I recommend that the powers of Parliament and the Executive must be distinct.

Ms Madlala-Routledge: I would suggest some clarification that taking away that clause does not take away powers of Parliament to oversee decisions. The Committee would give a report on permits already approved as well as pending permits. The Executive makes decisions not just on armaments, without reference to Parliament. It seems strange to put a provision of parliamentary oversight into the law.

Ms Modise: The ANC caucus has decided that 23 (1)(c) must be read in conjunction with 23(1)(b) and 23(1)(d), and that the issues of parliamentary oversight is covered.

Mr Jonkielsohn: The DA must consider the prospective as well as retroactive oversight. This is not interfering with the Executive, but the prerogative of Parliament. I will refer this to the DA caucus.

Mr Blaas: I also wish to refer this to the NNP caucus.

Mr Oosthuizen: One has to consider pending applications -- yet are we not opening a can of worms -- we need to look holistically and wider. Undue influencing and lobbying in the media would be a consequence of prospective oversight.

Mr Tungwana: Are we not we going too far into the Executive's role? We should give the Executive the opportunity to perform. Our intervention is oversight role. I am sensitive to the issues raised by the DP and NNP. Let us go back to our principals, and review the position.

Ms Modise: All three parties present want to reconsider 23(1)(c). In 23(1)(d) the words "all" and "approved" have been deleted in the amendment. Why?

Mr Marais: It is an issue of tautology.

Ms Modise: But some exports might not be included in the reports if "all" is deleted.

Mr Jonkielsohn: The word "approved" is also important.

Mr Tungwana: I propose that the words "all" and "approved" should be retained in 23(1)(d).
The Committee agreed.

Ms Modise: Mr Marais says we do not know what we want to be reported in the report. The word "all" is critical to ensure that the report does not exclude some exports. Do we limit ourselves only on reports of what is exported? What about imports? The quarters reports and UN Register should begin to inform us. The NCACC report for 2000 and 2001 has now been delivered. Members will receive copies.

Clause 23(2)(c)
Mr Nathan: The term category of armament is inappropriate without details of quantity, value and type of weapons, and is inconsistent with reporting to the UN.
An amendment was accepted by the Committee to require inclusion of quantity and type of weapons.

Mr Marais: We have to respect pre-conditions of recipient countries that may not wish disclosure of the armaments they are purchasing from South Africa. The information that goes to the UN is all Category A whereas most of South African exports are in other categories. We do not provide public details that might embarrass either our government or foreign governments.

Ms Modise: I purchased a calendar in Malaysia for US$10 that discloses what equipment all countries possess. If that information is available internationally, why can Parliament not receive the appropriate South African information?

Mr Nathan: The way the reports are presented is not only inadequate but alsomisleading. For instance, that South Africa sells teargas to countries that abuse human rights. The UN Register only requires seven categories. Parliamentarians or South Africans should not have to look to the UN website or arms exhibitions to find out where South African weapons are being exported.

Mr Roussouw: The South African defence industry is very small by international standards. The government is committed to public disclosure, but we also have to protect that industry.

It was agreed that the three parties would caucus overnight on Clauses 23(1)(c) and 23 (2)(c).

Mr Jonkielsohn: Does the Minister determine what is 'confidential information'?

Mr Marais: All information is confidential.

Mr Jonkielsohn: So if we sell arms to Pakistan, and a member of the Hindu community or any other South African objects, any member of the public divulging that information is subject to 20 years imprisonment. Is that correct?

Mr Marais: Such information is labelled secret. There are prescripts by government on classified information. The information being handled is sensitive and classifications systems are being established.

Ms Modise: I am increasingly worried by what I hear about documents being classified secret. I believe we need a vigorous defence industry. But I disagree if reports are so sanitised so that MPs are not provided with comprehensive information. Do not reduce us to little children.

Mr Marais: We have said there are two reports. There is the detailed report with information given to the Portfolio Committee in the quarterly report. But for public consumption there is a second report which will not provide the same detail. If the Committee decides that the reports to the Committee may be made public, that is the decision of the Committee.

Ms Modise: We will expect three reports, including the UN report.

Mr Nathan: I hear what Captain Marais says with a great deal of alarm. He now implies that classified documents will be given to the Committee, and that MPs will not be able to divulge such documents either to the public or other MPs. This is inconsistent with the Constitution and the Defence White Paper. Thus, the government says it will report publicly to the UN what it will not report to its own citizens.

The meeting was adjourned.