Promotion of Equality, Administrative Justice & Access to Information Amendment Bills: adoption; International Conventions for S

NCOP Security and Justice

05 November 2002
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Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
5 November 2002
PROMOTION OF EQUALITY, ADMINISTRATIVE JUSTICE & ACCESS TO INFORMATION AMENDMENT BILLS: ADOPTION; INTERNATIONAL CONVENTIONS FOR SUPPRESSION OF TERRORIST BOMBINGS & FINANCING OF TERRORISM; SADC PROTOCOL ON CONTROL OF FIREARMS

Chairperson:
Mr KL Mokoena

Documents handed out:
Promotion of Equality and Prevention of Unfair Discrimination Bill [B41B-2002]
Promotion of Administrative Justice Bill [B46B-2002]
Promotion of Access to Information Amendment Bill [B60-2002]
International Convention for the Suppression of Terrorist Bombings
International Convention for the Suppression of the Financing of Terrorism
Explanatory Memorandum: International Convention for Suppression of Terrorist Bombing
Protocol on Control of Firearms, Ammunition & Other Related Materials in SADC Region

SUMMARY
The Committee unanimously adopted all the Bills without further amendment. The Committee unanimously agreed that Parliament be requested to ratify the two Conventions and the Protocol. The part of the Conventions relating to extra-territorial measures, would be addressed by the Anti-Terrorism Bill which is in its final stages of drafting.

MINUTES
Adoption of Bills
The Committee adopted the Promotion of Equality and Prevention of Unfair Discrimination Bill, Promotion of Administrative Justice Bill and the Promotion of Access to Information Amendment Bill.

International Conventions for Suppression of Terrorist Bombing & Financing of Terrorism
Commissioner P Jacobs (Head: Legal Support: Crime Operations in SAPS) noted that there are two UN Conventions submitted to the Parliament which are both aimed at combating acts of terrorism. He noted that the Convention received from the AU, also relating to acts of terrorism, had already been ratified by the Parliament and therefore only these two Conventions are still outstanding. South Africa condemns acts of terrorism and therefore fully supports any effort which is directed against terrorism.

He noted that some of the issues raised in these Conventions, especially those relating to intra-territorial measures to combat terrorism, are catered for in the Explosives Bill, which is now before the Parliament. The remaining part of the Conventions relating to extra-territorial measures, would be addressed once the Anti-Terrorism Bill has been passed by Parliament - and this Bill is in the final stages of its drafting. Thus the ratification of these Conventions by Parliament would be in line with South Africa's obligations both in the region as well as internationally.

Discussion
Mr L Lever (North-West, DP) asked how South Africa intends to comply with its obligations in terms of these Conventions.

Mr Jacobs responded that the Explosives Bill which has been submitted to Parliament tries to address some of the concerns raised in the Conventions, especially those relating to internal acts of terrorism. He added that feedback would have to be submitted to the UN detailing all efforts that SA has taken in ensuring compliance with its international obligation.

The Chairperson asked who would be responsible for financing these activities.

Mr Jacobs replied that it would be the responsibility of each Department to ensure the implementation and enforcement of these activities. This would be done in the normal line of function responsibilities for which the Departments are budgeted for. He also noted that the Financial Intelligence Centre, which is going to be established in terms of the Financial Intelligence Centre Act [No 38 of 2001], would also play a very important role in this regard.

The Committee unanimously agreed that Parliament would be requested to ratify these Conventions.

Protocol on Control of Firearms, Ammunition & Other Related Materials in the SADC Region
Commissioner Jacobs noted that this Protocol has been signed by all SADC countries including South Africa, except Angola. Amongst its objects is the prevention, combating and eradicating of illicit manufacturing of firearms, ammunitions and other related materials. For these objectives to be achieved, police co-operation, exchange of information and experience need to be encouraged throughout the region.

Article 5 of the Protocol requires all member states to bring in line their national legislation within the ambit of the Protocol. The Protocol does not only regulate the control over possession of firearms by civilians but also State-owned firearms, including those which were used in the peacekeeping processes.

In order to enhance transparency in the dispossession and accumulation of firearms a small committee has been established. This committee would supervise the implementation of this Protocol by the Member States and whether they adhere to their principles.

Commissioner Jacobs requested that Parliament ratify this Protocol as soon as possible since that would place South Africa as an example to other countries to follow suit. He said this would not present any problems since South Africa had always been the driving force through out the preparation this Protocol.

Discussion
Ms E Lubidla (Northern Cape, ANC) noted that SAPS Commissioner J Selebi had in the past spoken of the problems encountered by his Department regarding the voluntary surrender of firearms. He said that people are reluctant to hand in their firearms, including those which were used during the old regime. She asked what mechanism will be put in place to ensure that there is transparency regarding the disposal of the firearms handed in.

Commissioner Jacobs responded that the Protocol clearly expresses that the handing in of firearms would be voluntary. There are awareness programmes which aim at educating the public about the importance of handing in their firearms.

Mr P Maloyi (North West, ANC) expressed disapproval regarding the act of ratification by Parliament. He held that this left Parliament with no powers to change the instrument since the Heads of State had already signed the document. He asked why the Honorable President of Angola, Mr E Dos Santos, had refused to signed the Protocol.

Mr Jacobs noted that the Honorable Mr Dos Santos did not refuse to sign the Protocol, however he was not present in the meeting at which the Protocol had been signed in by other Heads of States. Mr Dos Santos had later affixed his signature to the Protocol since his country had always been involved throughout the preparations of the Protocol.

Ms Lubidla asked where the cross border operations would be monitored.

Mr Jacobs replied that the importance of co-operation between the regional countries would enhance police co-operation at the borders, where the cross border operations would be monitored.

The Chairperson asked the intentions underlying Article 12(a) of the Protocol.

Mr Jacobs responded that Article 12 is not a mandatory but a discretionary provision. It was inserted after other regions insisted on its inclusion in the Protocol - based on their experiences. The decision to compensate anyone based on the provisions of Article 12 depended entirely on the policy of each Member State.

Ms Lubidla asked if the owners of hand-made guns would also be compensated in terms of Article 12.

Mr Jacobs replied that it is not South Africa's policy to pay its citizens for voluntary surrender of their firearms. However, whether to follow the provisions of Article 12 or not would depend on the decision of the Director General on whose discretion the decision lies.

The Chairperson noted that the incorporation of this provision "opens a back window to a major crisis which could be fatal for the country". He asked the implications of the word "may" in Article 12(b) and whether it denoted that immunity can be refused in certain circumstances.

Mr Jacobs replied that it is not possible to create a general immunity provision and as such the decision to grant or refuse immunity lies squarely within the Director General's discretion.

Mr Maloyi noted that the experience which South Africa has gained from its TRC processes would be useful in assisting other SADC countries in the disposal of firearms. This would enable SA to play an important role in the dispossession of firearms throughout the region.

Ms Lubidla said that there are instances when someone may loses a legal firearm and then someone else used it in an illegal activity. She asked what would happen in such circumstances - after the firearm had been recovered by the police.

Mr Jacobs responded that this is a criminal matter which would be dealt with in terms of the criminal law procedures. However, before a firearm can be handed back to its rightful owner, it would first have to be determined whether the owner was not negligent in losing it. If the person was, such a person would be criminally prosecuted. If not, the firearm would be returned. If the rightful owner of the firearm, which was used in the criminal activity, could not be traced then the firearm would be destroyed.

Mr B Mkhalipi (Mpumalanga, ANC) what is the status of the Protocol.

Mr Jacobs responded that Protocol is a simple way to ensure that all parties involved reach consensus and unanimously co-operate with each other. He noted that nowadays the majority of States are more willing to sign a Protocol than to sign a Convention.

Mr Maloyi asked what would happen if a country signed a Protocol but failed to adhere to it principles.

Mr Jacobs responded that Article 15 expressly laid down the procedures to be followed to ensure the enforcement of this Protocol.

The Committee unanimously agreed that Parliament be requested to ratify the Protocol.

The meeting was adjourned.

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