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DEFENCE PORTFOLIO COMMITTEE
13 August 2002
NATIONAL CONVENTIONAL ARMS CONTROL BILL: DELIBERATION & FINALISATION
Chairperson: Ms Thandi Modise (ANC)
Also present: Adv. Elizabeth Kubushi, Legal Adviser to the Minister of Defence
Mr Frederick Marais, Director: NCACC
Mr Laurie Nathan, Centre For Conflict Resolution and advisor to the Committee
Mr Gideon Hoon, State Law Adviser
Documents handed out:
National Conventional Arms Control Bill [B51B-2001]
The purpose of the meeting was to finalise amendments to the Bill, and to approve it for submission to the National Assembly. It was approved by the ANC caucus, and opposed by the DP. The Bill is scheduled for debate in the National Assembly on Tuesday, August 20, 2002.
Ms Modise (ANC): We intend to finalise the Bill today. I place the Bill, and now take it from Clause 1. The issues of small arms, access to information, and the debate around Clause 23 have not been resolved.
Adv Schmidt (DP): Does the Bill include imports or only exports?
Mr Nathan (Centre for Conflict Resolution): The Bill deals with both imports and exports. Trade is defined in the Bill to include both imports and exports.
Mr Groenewald (FF): Does brokering include an individual?
Ms Modise: That is the understanding of this Committee.
Clauses 1 - 3 were agreed to by the Committee.
Adv Schmidt: There is no reference in Clause 4 to the granting of permits as a function of the NCACC.
Mr Nathan: Clause 14 (2) refers to the granting of permits.
Adv Schmidt: Perhaps, but Clause 4 covers the functions of the NCACC and should surely include the granting of permits.
Ms Modise: Do Members feel that permits should be included in the functions clause?
The Committee agreed to insert the word "permits" in Clause 4(1)(a).
Clauses 5 - 13 agreed.
Ms Modise: Under Clause 14, all the acts referred to under Clause 14(8) are being withdrawn and replaced by the wording:
"must refuse to authorise a permit if the applicant is a company, any executive officer of the company or any member of its board of directors, has after the Constitution (Act 108 of 1996) took effect been convicted of an offence and sentence to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic."
Clause 14 was agreed to with this amendment.
Clauses 15 - 22 were agreed to.
Adv Schmidt: I recall the discussion with the Minister regarding the UN Arms Register. Could Mr Nathan advise whether we can conclude bilateral agreements in violation of United Nations obligations?
Mr Nathan: The UN Register is a global transparency measure to promote military confidence and stability through transparency. Its purpose is to ease tensions and to contribute to restraint in arms transfers. Its covers imports and exports in seven categories of big items corresponding to the NCACC's Category A. Countries can choose whether to report to the UN Register; it is voluntary. But countries that choose to report are obliged to report fully withholding information defeats the purpose. The government provides more information to the United Nations than to our own citizens. We sold arms to Malaysia in 2001 to the value of R137 million, but South Africa's report to the UN Arms Register reports nothing. The Malaysian report on imports confirms 28 G5s imported from South Africa. It does not make sense that the United Nations gets more information than the South African public.
Mr Groenewald: What is the UN criteria?
Mr Nathan: It requires description of the item.
Ms Xingwana (ANC): Would Mr Marais explain how he reports to the UN, and to the public? Why should a similar report not be given to the South African public?
Mr Marais: We are off the point. The UN report establishes criteria including options on time reporting. The government has given the undertaking that it will report fully, and the NCACC does so. The UN Register covers only Category A. We go further with Categories B-G.
Ms Modise: But the question is whether the South African public gets the same information as the UN Register.
Mr Fred Marais (NCACC): We give vastly more information in the annual statistics.
Ms Xingwana: It reflects badly on the integrity of our government if the NCACC reports less to the South African public.
Mr Groenewald: As I read it, the same UN report is presented to Parliament.
Mr Blaas (NNP): I recommend an amendment to 23 (1)(a) of a full stop after the word "Arms". Insert "submit a detailed report to Parliament indicating all exports inclusive of type and quantity."
Mr Jonkielsohn (DP): Do bilateral agreements between other countries and ourselves take precedence over the UN Register? Is that so? And if the public can get information from the UN Register, is he threatened with 20 years' imprisonment for divulging classified information?
Mr Oosthuizen (ANC) I think we are covered if we insert the word "simultaneously" in Clause 23(1)(a) between Arms and "simultaneously" present to Parliament..."
Mr Jonkielsohn: What information will the public receive? Where there is a secret agreement, the Minister said it would not be submitted to the public.
Mr Oosthuizen: I suggest that we amend 23(1)(b) to say conventional arms exports concluded "and" permits authorised.
Adv Kubushi: That would infringe the Executive oversight if Parliament previews permits for armaments not yet shipped.
Ms Modise: This brings us back to the distinction of exports for which permits are authorised, but not yet shipped.
Mr Nathan: The Minister says that Parliament has the right to all information. The issuance of a permit makes the decision of the Executive.
Mr Diale (ANC): If the clause regarding permits suggest that permits are outside the ambit of our oversight, then the clause "conventional arms exports" should be reinstated.
Adv Kubushi: Permits can be authorised now, but the action of exporting may commence only years later.
Ms Modise: We are advised that the NCACC covers imports as well as exports. Now we learn that permits may be in respect of prospective exports. I suggest that we go back to the original phrasing and include "permits authorised."
Ms Xingwana: The Minister was arguing that 23(1)(c) covered pending exports, and that the Committee would be taking over the Executive's function. Will there be any remedy if we take objection to exports to Pakistan?
Adv Schmidt: Anything less than sighting permits issued amounts to no oversight at all.
Mr Jonkielsohn: It is no good saying sorry after a million Indians and Pakistanis are dead.
Adv Kubushi: This is the matter of separation of powers. The process of authorising permits is within the function of the Executive. Parliament cannot intervene. If a permit is outstanding to Pakistan, there might be intervention and Paliament saying "do not issue". Immediately there is intervention before the export is complete and there is a violation of the separation of powers. Only the concluded export reports must come to Parliament.
Mr Jonkielsohn: Parliament's obligation is to ensure accountability and oversight. We must look at the Executive's decisions, and make recommendations.
Ms Xingwana: We decided previously that sight of the authorised permits would give us the opportunity to intervene and object.
Ms Modise: The Committee and sub-committee agreed to "all permits, both imports and exports." We thought we were widening the scope of the reports coming to the Committee.
Mr Hoon: Your summary is correct. That is why we inserted the words "permits authorised."
Mr Groenewald: I propose we include "permits authorised."
Mr Blaas (NNP): I think we have reached consensus that we want permits included. I support Mr Groenewald.
Mr Diale: We had reached consensus in 23(1)(b) to exclude permits authorised.
Ms Modise: I do not want to put this to a vote.
The Committee voted the ANC position to delete "permits authorised."
Ms Modise: What do we do now in Clause 23(1) (d) with "permits authorised?"
Mr Oosthuizen: May I ask why the disparity that the word "concluded" is used in 23(1)(b) but "approved" in 23(1)(d)?
Mr Marais: This is a technical problem given shipping delays. Once the NCACC has approved the shipment, there may be delays before the export is actually concluded.
Ms Modise: Then Mr Marais you take us back to 23(1)(b). These contradictions are unacceptable.
Adv Kubushi: Clause 23(1)(d) should have read concluded not approved.
Mr Oosthuizen: What is "authorised, "issued" and "concluded?"
Mr Marais: "Authorised" refers to the Cabinet Committee. "Issued" refers to the NCACC. "Concluded" is confirmation that the goods have left South Africa.
Ms Modise: I suggest that 23(1)(d) should read "concluded".
Adv Schmidt: At issue is whether South Africa should approve an export to India or Pakistan. Therefore "approval" should be the correct word.
The ANC decided to amend the word to "conclude".
Ms Modise: Now to 23(1)(c).
Mr Groenewald: I am withdrawing. The outcome is obvious.
Adv Schmidt: The word recommendation is not the same as approval. The Executive is being oversensitive over the word "recommendation," and this clause should be included.
Mr Blaas: We conceded the deletion of this clause, but with concern.
Mr Diale: We agreed to the deletion of this clause.
The Committee voted to delete Clause 23(1)(c).
Ms Modise: Now to 23(2)(a) and the clause "in respect of exports".
Adv Schmidt: The public has the same right as Parliament to know what arms have been exported, including the quantity.
Adv Kubushi: The Minister said that quantity was not to be included in the public reports. A report to Cabinet and Parliament will have all the information, but the report to the public will not have the quantity.
Mr Diale: The ANC will agree to delete quantity.
Mr Nathan: In terms of 23(1)(a) and the UN Register, the public will receive the quantity and type of Category A exports. South Africa will therefore be providing more detail on the sensitive categories, but not on the less sensitive.
Adv Kubushi: At issue is whether South Africa will be bound by contractual obligations not to disclose quantities even to the UN. South Africa will not be obligated to reveal to the UN Register, if the contract so requires. If we say that quantities are to be excluded to the public, and the information comes voluntarily from the importing country, not South Africa, that is fine.
Mr Jonkielsohn: We have a commitment to disclose to the UN, but when it suits us, we will not disclose. Is that correct?
Adv Kubushi: Only when there is a contractual arrangement with the importing country.
Adv Schmidt: Once we volunteer to comply with the UN Register, you cannot have it both ways.
Mr Jonkielsohn: If a member of the public accesses information from the UN Register and discloses it, is he then subject to twenty years' imprisonment for disclosing the same information?
Ms Modise: What is the status of the person who obtains UN Register information, and then discloses it?
Mr Hoon: It is difficult to ascertain the classification, but the information in the UN arms register is not classified.
Mr Marais: In providing the information to the UN, it is declassified information.
Ms Modise: Thus, if you even access the UN Register you are risking being guilty?
Adv Kubushi: If South Africa puts the information on the UN Register, it has been declassified. You cannot then be found guilty of divulging classified information.
Clause 23 was then approved by the Committee, with the DP voting against.
Clauses 24-29 were agreed to by the Committee.
Ms Modise: I wish to put the whole bill to the Committee, and refer first to its desirability.
Adv Schmidt: In light of Clause 23, we are worse off with the Bill than without it.
Mr Diale: The ANC agrees with the desirability.
Ms Modise: May I, given the DP's reservations about undesirability, now put the bill to the Committee?
The Bill was approved after a vote, with the DP voting against the Bill. The Freedom Front and the Inkatha Freedom Party were not present at the meeting at this point.
Ms Modise: This Bill now goes to Parliament with the notation that it will be supported by the ANC and opposed by the DP.
The meeting was adjourned.
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