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DEFENCE PORTFOLIO COMMITTEE
31 July 2002
NATIONAL CONVENTIONAL ARMS CONTROL BILL: DELIBERATIONS
Chairperson: Ms Thandi Modise (ANC)
Documents handed out:
National Conventional Arms Control Bill (B50B-2000)
Also present: Minister of Defence, M Lekota
Deputy Minister of Defence, N Madlala-Routledge
Captain Fred Marais, Director General of the National Conventional Arms Control Committee
Mr Roussouw, Department of Foreign Affairs
Mr Laurie Nathan, Centre for Conflict Resolution
Mr Hoon, State Law Adviser
Having considered amendments to the Bill the previous day and after caucus meetings overnight by the three political parties, the Committee heard input from the Minister of Defence in motivation of the Bill. The final amended version is to be considered on August 13, and the Bill is to be debated in the National Assembly on August 15 (not August 27 as previously notified). The State Law Advisor will effect changes to the Bill before then. There was no consensus reached on Clause 23: the Democratic Party rejected Clause 23(b) and sought the inclusion of Clause 23(c).
Ms Modise: The three political parties wanted to caucus on Section 23 (1)(c).
Mr Blaas: The NNP wants to know the composition of the parliamentary committee? Should there be contravention of guidelines, what remedies will there be since the Chair will be a political appointee? What controls will ensure that violations of NCACC guiding principles and criteria will not happen?
Mr Hoon (State Law Adviser): The Committee would be appointed by Parliament, and I would anticipate that it would be multi-party.
Mr Laurie Nathan (Centre for Conflict Resolution): It was intended that the Committee should be representative, or multi-party. It is a technical drafting matter.
Minister Lekota: There is no way that it cannot be a multi-party committee.
Ms Modise: Should we write in that it is multi-party?
Mr Hoon: I will check the rules, and use the right words.
Ms Modise: The resolution of this Committee is that it will be a multi-party committee. Agreed.
Mr Blaas (NNP): What about the issues of secrecy? Will this be a security-cleared committee?
Mr Roussouw (Department of Foreign Affairs): We will have to look at legislation covering classification of documents, and the guidelines to it.
Minister Lekota: Only Members of Parliament can constitute a parliamentary committee, and loyalty to the Constitution, including the oath that we will not disclose information that we may not disclose, pertains. The Promotion of Access to Information Act also becomes relevant. There is the NCACC report available to the public, but additional information and detail for MPs is not available to the general public. It is classified and cannot go beyond Parliament. There is no information that the Executive can keep away from Parliament. Otherwise, Parliament cannot scrutinise the work of the Executive. If it is classified information, it will not be available to the person in the streets, and divulging such information would breach the oath of office.
Mr Schmidt (DP): What kind of information will be covered by this provision? What is the meaning of "confidential" in Clause 23(3)? "Confidential" is too wide a term for legal interpretation.
Minister Lekota: We enter agreements with, say, the Democratic Republic of Congo that we trade in arms. Every client will try to attach conditions, stipulating, for instance, that South Africa does not disclose the type or number of weapons bought because the DRC does not want hostile neighbours to know. Such information would prejudice the DRC's security. If South Africa signs such an agreement, we would be bound to tell Parliament that the DRC has bought these type of weapons, but this is confidential and not for public knowledge. Such knowledge will be given to MPs knowing that they are bound by the oath of office, and betraying that information is betraying the commitment South Africa has made to the DRC. We will tell you whether we were right in selling such weapons, and you can take remedial action if we are wrong. The term "confidential" is broader, and we want it broad so that we will say why such information should be withheld.
Mr Fred Marais (NCACC): May I propose substituting the word "confidential" with the word "classified?"
Minister Lekota: If you use the term "classified," all concerns will be covered.
Mr Blaas: What remedies can be provided if the NCACC violates the guidelines?
Ms Madlala-Routledge: The law would apply to the NCACC as well.
Minister Lekota: Can any legislature pass legislation guaranteeing that there is no possibility of executive error? That is why review is necessary. The suggestion that at the end of every quarter the NCACC must provide Parliament with a list of all pending applications is arrogating the role of the Executive. I understand the anxiety, and that it is in good faith. But if anything goes wrong, we can blame the Legislature. That is not oversight but taking over the role of the Executive. That is the objection of the Executive because it violates the separation of powers. The suggestion of parliamentary oversight is made in good faith, but it is not acceptable for the Legislature to take on this role. The scrutiny of executive actions by Parliament requires calling the Executive to account, so that future actions do not violate legislative intentions. If the Executive violates the law, either blatantly or unintentionally because the law is ambiguous, the implications are very different. The function of law is to close the gaps.
Mr Blaas: I do not interpret clause (c) to mean executive control, but the NNP will concede that the clause can be deleted.
Mr Schmidt: We will not concede that easily that any oversight be removed from this bill. For instance, divulging that South Africa is exporting armaments to both India and Pakistan carries a prospective twenty year penalty. South Africa is endeavouring to meet the standards of international best practice, but failing. The Cameron Commission recommended Parliamentary oversight. Clause 3 is too wide. What is the "confidential business of the Committee?" You are making disclosure of contractual obligations into a crime carrying a twenty year penalty.
Mr Jonkielsohn (DP): Regarding clause (c), as MPs we must make qualitative and value judgements. We are not selling wheat or computers, but armaments that destroy human lives. The parliamentary committee must have input on what we are selling and to whom. We have different views on different countries. We are selling category A weapons to India and Pakistan that are on the brink of war. And we are selling category D weapons to Zimbabwe to subjugate that population. Given the nature of the product, we want that oversight. Type and quantities of weapons are needed beyond a broad "category." We need that information. The Minister says "classified" documents, but who is going to classify the documents if all the information dealt with by the NCACC is classified as secret. The report to the public will be meaningless.
Ms Modise: Yesterday we decided to include type and quantity in the information we require.
Ms Madlala-Routledge: What was circulated yesterday was the public report, not the report that will come to Parliament. You will have adequate information beyond the report to the public. I cannot understand why Parliament wants to oversee what is still being considered by the Executive. You will have the information to say that the Executive made the wrong decisions.
Mr Roussouw: Officials in most countries make the decisions on exports, not the Executive. All government departments use the same MIS classification system for documents.
Mr Marais: The business of the committee is set out in Clause 4. The reports and documents will be classified by the NCACC.
Mr Oosthuizen (ANC): I have been assured by the Deputy Minister. I cannot understand Advocate Schmidt's arguments that Parliament must pre-empt the work of the Executive elected by the people. Enough room is provided by oversight of export permits and reports in terms of Clause 23 (b). What drives Schmidt to demand a clause that Parliament must instruct the Executive what to do?
Mr Diale: With regard to Clause 23 (3): which Committee are we talking about, the parliamentary committee or the NCACC? The Bill provides for what information can be disclosed, and covers the concerns of Advocate Schmidt. We note that issues debated here end up in the Mail and Guardian newspaper.
Minister Lekota: I wish to appeal to members when we make law, we must not be guided by fear or lack of confidence in the party in power. Your party may be in power tomorrow. Whether you make bad law whilst in power, the consequences are the same. Sooner or later, your party may be on the wrong side, and bad law would have undermined the country. I suggest to the Committee that South Africa signs agreements with many countries. The pilot documents are not contracts, but they prescribe a general framework. Bilateral relations demand that certain information may not be disclosed. If certain countries wish to trade with South Africa (including for instance air tickets to Zimbabwe that might become subject to international sanctions), we cannot abrogate such agreements.
We took the decision to support our defence industry, which was many, many years in the making. We took the decision not to sell offensive weapons. But what are offensive weapons? Do you describe a G6 as an offensive weapon? Nuclear and or chemical and biological weapons are only offensive. But a G6 can also be a defensive weapon. South Africa's obligations are clear on chemical and nuclear weapons. All the materials we export are defensive. Countries with which we trade say that we may disclose to the public what weapons have been sold, but we may not disclose to their enemies what quantities have been sold.
The NCACC is a Cabinet committee of Ministers. Cabinet is accountable to the Legislature. We limit information to the public in terms of 23 (3); classified information on the numbers of weapons. We are compelled to tell you the quantities involved, but it must not go beyond yourselves because of bilateral agreements between South Africa and the buying country. We withhold information from the public because this is strategically and commercially confidential to our clients.
We must sustain South Africa's defence industry so that South Africa can look after itself. Without the industry we cannot sustain the SANDF. You carry the responsibilities to the citizens of South Africa if South Africa loses the capacity of its defence industry. You cannot be held responsible for contractual obligations with client countries. We want legislation to enable the Executive to control exports. With regard to 23(1)(c), if you say that the Executive must get recommendation from Parliament, then you are making Parliament into an executive organ and violating the separation of powers.
If Kenya wants to purchase weapons, I am happy for the Committee to tell me what to do. What are you going to have to do about law-making? Where are you going to get the intelligence information about Kenya or its neighbours? You cannot take that decision without intelligence evaluation. The African Union is another example, and the obligations that will follow.
Whose voice must ultimately prevail? The Executive or Parliament? In no country can the Legislature determine what the Executive must do. That is the effect of the original 23(c) to which we object. The weakness is not in the spirit, but it mixes powers and places all of us in difficulties. The Executive must carry out executive functions. It is destroying our democracy to take transparency so far.
Ms Modise: Two things come out of this debate. In respect of 23(1)(b): like Mr Blaas we understood that the reports that go to Cabinet and Parliament would be sanitised. Mr Marais' statements yesterday sounded alarm bells that Parliament will get meaningless information. If this is a bad bill, this clause will haunt me as Chair of this Committee. If the future reports in any way resemble what we got in yesterday's report, this Committee will regret this bill. We must not be fobbed off by Mr Marais. What remedy do we have if things go wrong? This is asked because we are dealing with weapons. The Minister says that if the matter is criminal, then criminal penalties apply. But the weapons will have already left our borders. Can you bring back those weapons? What do you do about people who deliberately go against the act?
The ANC supports 23(1). The DP objects. I have been left to face the unpleasant matter of putting this to a vote. Yesterday we found that the reports only concern exports, but this needs to be broadened. What about imports of goods and services?
Minister Lekota: If South Africa is to purchase weapons, we will come to Parliament. There is no way we can purchase weapons without first coming to Parliament, and providing the Budget. No one else can import weapons into South Africa. The NCACC was set up so that the government would take responsibility for exports. No firm can export weapons without the NCACC scrutinising the order and making recommendations to Cabinet.
Any other weapons we are not responsible for. Any exports of weapons without NCACC approval are illegal, and companies that contravene the NCACC will be charged. Imports come through Armscor, not the NCACC.
Mr Nathan: Some factual information on transparency. This bill deals with both imports and exports, hence the need for reports on imports. We need to be careful that restrictions are not so severe that we face the British circumstance. Yet even British reporting is vastly greater than is proposed by the NCACC. We sold R21 million of category A armaments to Swaziland. We sold weapons to India. I got this information from the United Nations website. It is anomalous that we can get information via the United Nations, but our own citizens are not given it.
Miinister Lekota: Where did you get the Swaziland information?
Mr Nathan: The United Nations register: seven mine protected armoured personnel carriers to Swaziland and seventy five caspirs to India. Why must South African citizens get their information via the United Nations?
Mr Roussouw: The UN register is a voluntary agreement, and only contains seven categories. South Africa as a responsible member of the United Nations with a responsible defence industry accedes to the register voluntarily. We participate where we can, but our exports in terms of those seven categories are minimal. The UN requires the amount and description of equipment. The Register was designed for the North, not our circumstances. Our exports are minimal in world terms.
Ms Modise: The point was made yesterday that South Africa reports to the United Nations. But, as a Member of Parliament, I can get better information overseas than here in Cape Town. We told the United Nations that we would work towards a register in this region. There will be three reports.
Mr Marais: The UN report was submitted to this committee in April.
Ms Modise: If you expect me, Mr Marais, to congratulate you for finally giving me a report that we have been demanding for years, I refuse to congratulate you.
Minister Lekota: Don't blame officials, but ministers. You are out of order.
Ms Modise: But ministers send officials.
Minister Lekota: The NCACC meeting last week ruled that I should be here yesterday. I apologise that I was not here yesterday, but I was part of the peace agreement between the Democratic Republic of Congo and Rwanda. That was a priority determined by the President.
Mr Schmidt: I don't think the Minister knows what happens in committee. Minister Kader Asmal promised us last September that we would get reports within a few weeks. But we only get the reports in April and now. That is not good enough. We have too many experiences of undertakings being broken.
Minister Lekota: I will convey these weaknesses to the NCACC. We want to place the NCACC on a proper grounding governed by law. The spirit of the NCACC has been through the political leadership, and this will be corrected.
Mr Diale: The frustrations of the Chair represent this Committee.
Ms Modise: How long, Mr Hoon, will it take to make the necessary amendments?
Mr Hoon: I have finalised most of the amendments last night, but some are still eluding me.
Ms Modise: When can I get the cleaned-up copy for this Committee to pass?
Mr Nathan: May I suggest definitely within a week? There are technicalities with the Firearms Control Act that must be dealt with.
Minister Lekota: I need to report to the NCACC what has been agreed. What are the remaining sticking points? The NCACC has been operating many years without a governing law. We had hoped to pass this bill. We must pass some legislation, so that we can be held to account. We wanted to pass it this session.
Ms Modise: Let us look at the references to the Firearms Control Act, Teargas Act etc in Clause 14 (8). In Clause 4(f), there is the matter of whether the NCACC gives authority for firearms of the Commissioner of Safety and Security. What are these conflicts? There is also the matter of quantities.
Minister Lekota: I take it there is now consensus on Clause 23.
Ms Modise: We have not agreed yet on 23.
Minister Lekota: We'll use the word "classified" instead of "confidential."
Mr Tungwana: We are most satisfied by the Minister. I appreciate that in all countries there is classified information.
Mr Schmidt: Regarding 23(b): I am not sure that the same report will go to Cabinet and Parliament. Until it states so, I cannot accept 23(b). We would like the inclusion of 23(c). As regards 23(2)(c), we want quantities and type. And if information is given to the United Nations, why not to South Africans? Section 23(3) is just too wide. There is virtually nothing on which a newspaper can report without incurring the wrath of 24(b). The Mail and Guardian article, for instance, might fall under the wrath of 24(b). It is inconceivable that the section can be so wide.
Minister Lekota: If the law provides that the Legislature is entitled to all the information of the Executive, then we cannot withhold or doctor reports. There is also a document to be provided to the public. We cannot release a report that has not been approved by Cabinet. There will not be separate reports to Cabinet and Parliament. Under 23(2)(c), we must leave quantities out of the reports to the public when that information is classified. We need to carry out trade with foreign countries. We must not break bilateral agreements. If 23 (d) includes the word "all" and the quantities of weapons, we will violate our undertakings to foreign buyers.
Mr Jonkielsohn: The Minister is going back on yesterday's decision that "all and "approved" are included.
Mr Nathan: The Minister is not being accurately advised by his officials.
Ms Modise: Clause 23(1) says we will get reports. Once South Africa volunteers to provide reports to the United Nations, we must comply. This debate frightens me, that South Africa is not being honest with what it reports to the UN Register. If the drafters can cope, I suggest August 13 for final consideration of the Bill. This will be followed by a debate in the National Assembly that afternoon on the arms deal report. A debate is then scheduled on August 15 to pass this Bill.
The meeting was adjourned.
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