Consideration of UNAFRI Statute; Extradition Treaties; Treaties on Mutual Legal Assistance; Employment Benefits of TRC Staff

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
11 November 2002
CONSIDERATION OF UNAFRI STATUTE; EXTRADITION TREATIES; TREATIES ON MUTUAL LEGAL ASSISTANCE; EMPLOYMENT BENEFITS OF TRC STAFF

Chairperson: Mr K L Mokoena (ANC) [Northern Cape]

Documents handed out
Committee Report on Employment Benefits of TRC (Appendix 1)
Committee Report on United Nations African Institute for the Prevention of Crime and the Treatment of Offenders [UNAFRI] (Appendix 2)

SUMMARY
The Committee adopted the Extradition Treaties between South Africa and Egypt, Algeria, Nigeria and China and the Mutual Legal Assistance Agreements with Egypt, Algeria, Nigeria and France. Members also agreed to the Employment Benefits Increases of the TRC Staff, and agreed that South Africa should become a member of UNAFRI.

During the discussion on TRC benefits, Members raised concern with the apparent "rubberstamping" function of the NCOP in this irregular procedure. Members contended that the UNAFRI membership fee was not an accurate reflection of the current exchange rate, and this had to be considered further. Clarity was sought on Article 19 of the Extradition Treaty with Egypt with regard to the involvement of the third state in the extradition mechanism

MINUTES
Employment Benefits of TRC Staff
Mr Esser Allers, Legal Drafter from the Department of Justice and Constitutional Development (the Department), informed Members that the increase in TRC staff salaries had yet to be approved by Parliament. The increase was effected in July 2001 and, even though the TRC was no longer , the increase was a mere formality that remained to be addressed. Section 9(2)(b) of the Promotion of National Unity and Reconciliation Act of 1995 (the TRC Act) was important because it illustrated that "everything was in order in terms of the Act" as Parliament could still decide not to approve the salary increase. Yet it is suggested that this Committee accepted the increase and the Committee Report (see document attached), which reflected the acceptance of the proposed increase.

Discussion
The Chair contended that it was clear that even the Minister of Finance approved the increase.

Mr C Ackermann (NNP) [Western Cape] suggested that Members be provided with copies of the actual written approval given by Minister Manuel.

Mr Allers stated that he only had the original with him, but would be able to make additional copies available to Members.

Mr Ackermann asked Mr Allers to explain how long it would take to finalise this process.

Mr Allers replied that the TRC wound down on 30 July 2002 and it did not therefore have any additional staff that were still functioning, and this salary increase applied from 1 August 2001 till the end of the contract.

Mr B Mkhalipi (ANC) [Mpumalanga] asked if the approval of the salary increase would have any retrospective effect.

Mr P Maloyi (ANC) [North-West] asked if this increase meant that there were outstanding monies owing to TRC staff that still had to be paid to them, because Mr Allers stated that this salary had already been effected during 2001.

Mr Allers said that this was not the case and Mr Maloyi was correct in asserting that the salary had already been implemented, and there was thus no retrospective effect. Before the Attorney-General could only close the books on the TRC once all the relevant legislation had been complied with, and it had to check for compliance before the TRC books were closed. Should the increase be approved by Parliament, it would then be submitted to the Attorney-General who would then present it to Parliament, and Parliament could still decide not to approve the salary increase. Should Parliament in fact disapprove, the additional amounts paid out via the salary increase would have to be retrieved from the TRC staff.

Mr Mkhalipi contended that this sounded like this Committee was now being asked to condone something that was implemented a long time ago but without the necessary approval.

Mr Allers replied that this was a difficult concern to answer as this Committee was not being asked to "condone", because both Members and Parliament could still disagree with the increase. The Attorney-General would then be contacted and steps would be instituted to retrieve the increase from the TRC staff.

Dr E Conroy (NNP) [Gauteng] suggested that this would not happen in practical terms, because the staff could not be asked to return their salaries. This appeared to be a clear slip-up in the Department and he therefore agreed with Mr Mkhalipi that this was an irregular procedure but, because the increase was not a large amount of money, it should be approved by this Committee.

Mr Mkhalipi contended that because the TRC was a special type of public service and not merely an ordinary service, this should be accepted. Yet the report from the Attorney-General should have been acquired before presenting this matter to this Committee.

Mr Maloyi agreed that Members should accept the increase, but stressed that it was not following proper procedure.

Mr Ackermann stated that this was a serious matter in that is required Parliament to approve something that had already been implemented. Why then did the Minister of Justice and the Constitutional Affairs (the Minister) not approach Parliament on this matter when it first arose?

Mr Allers replied that this was the fourth time that the Department had presented this matter to Parliament, and it first arose when the Financial Officer of the TRC effected the salary increase in accordance with the increase effected to government employees. The Financial Officer then wrote to the Minister requesting approval of such increases, who then in turn submitted the request to the Minister of Finance, who was now presenting the increase to Parliament for approval.

The Chair proposed that the Committee accept the increase because, as stated earlier by Mr Allers, Parliament could refuse the increase.

Dr Conroy reminded Members that the correct wording was retroactive and not retrospective because the latter only referred to "looking backwards", whereas the former denotes actual operation in the past.

The increase was accepted by the Committee.

Statute of the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders
Mr Allers informed Members that South Africa was invited to become a Member of the Statute of the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders (UNAFRI) [see document above] and Parliament now merely had to accept this invitation. Subsection 7 of the Explanatory Memorandum indicated that the membership fee currently stood at R240 000, which the Department had already budgeted for.

Discussion
Mr Ackermann stated that it was even too late to present this matter to his provincial constituency, because most have already gone into recess.

The Chair suggested that it would be an embarrassment if South Africa, as one of the major players, were not to adopt this initiative. He agreed however that this Committee should not merely be seen to be "rubberstamping" this matter.

Mr Ackermann contended that $49 450 referred to in Subclause 7 as the membership fee was not the equivalent of R240 000 as suggested in the Memorandum, but was instead closer to R500 000. Where then would the Department obtain the remaining R260 000 needed here? Furthermore it appeared that the highest membership fee was imposed on Libya, when one would have expected such high fees to have been imposed in the wealthier countries. It appeared that South Africa was accepting this merely to finance it.

Mr Allers replied that South Africa was not in it to finance UNAFRI but was rather aimed at effecting the recognition given to the need for African countries to come together to fight crime and to make resources available to the whole African region. He stated that he was not sure why Libya was required to pay that fee, and the $49 450 had to be checked.

Mr Ackermann suggested that this was a serious amount of money, because the Department had not budgeted for the R260 000. Where would it obtain those funds?

Mr Allers replied that this amount was not yet reflected in the budget because South Africa was not presently a member of UNAFRI as Parliament's approval is awaited, and when the time comes the Department will look closely at the issue of membership fees and it will be properly addressed.

Mr Ackermann stated that the problem here was that Mr Allers said that the Department had already budgeted for this amount.

Mr Allers replied that the Department was prepared to table this amount in the budget during 2001, but was requested by the Department of Foreign Affairs to delay its introduction because that department was still engaged in negotiations with Egypt. This was an important matter because South Africa wanted Egypt, as one of the leading member states, to be part of UNAFRI, and the Department was thus waiting for the signal from the Department of Foreign Affairs.

The Department has appointed a special International Affairs directorate to budget for this amount, and the membership fees would be made available should UNAFRI be accepted, as the matter was currently on the Department's programme.

The Chair asked Mr Allers to indicate the number of African states that were already members of UNAFRI.

Mr Allers referred Members to Article I(2) of the UNAFRI statute (see document above) and contended that approximately twelve states are currently members.

Mr Maloyi asked if Morocco, Egypt and Botswana were already members of UNAFRI, and also sought clarity as to the reason for the high membership fee imposed on South Africa even though its exchange rate was not as strong as other countries that have to pay a lower membership fee.

Mr Allers replied that Morocco and Egypt were both members of UNAFRI, but he was not sure as to Botswana. Different membership fees had been imposed because a differential payment system had been created to apply here, and he was unable to address further clarity because he was himself not involved in the negotiations process here. Article IX could be of assistance here.

Mr Maloyi contended that the phrase "Organisation of African Unity" currently contained in Article V(1)(d) should surely read "African Union".

Mr Allers replied that such amendments would be effected by the Department.

The Chair sought clarity on the severity of the penalties imposed on those states who failed to adhere to the UNAFRI statute, and asked Mr Allers to indicate the penalty imposed on those States.

Mr Allers replied that no penalties were imposed by the statute, as the other State would merely request the assistance of South Africa in a certain matter, such as negotiations.

The Chair asked if a sanction was imposed on those States that fail to pay their membership fees.

Mr Allers replied that no penalty was imposed here, but the State was reminded of the fee.

Dr Conroy reminded Members that failure to pay would cause embarrassment, as the United States government had for many years not paid any contribution to the United Nations.

Mr Maloyi asked Mr Allers to indicate which SADC members would be represented on the UNAFRI governing board.

Mr Allers replied that he was not in a position to answer this question, and would get back to Mr Maloyi on this.

The Chair noted that Members accepted the invitation to become a Member of UNAFRI.

Extradition Treaties between South Africa and Egypt, Algeria, Nigeria and China
Mr Allers informed Members that these treaties were similar to each other in substance and were also similar to treaties that had been accepted by Parliament in the past, and these treaties should therefore not be time consuming. The State Law Advisors had also indicated that these treaties were not in conflict with any domestic law and existing obligations, and it was therefore not necessary for Members to scrutinise every line of each treaty. The Department also established an Extradition Treaty Committee a while ago which dealt with the treaty, and was chaired by Mr Enver Daniels, the Chief State Law Advisor. Thus the legal experts were present to advise government, and even after they were signed the treaties were returned to that committee for approval before they were presented to this Committee. It was thus proposed that the Committee approve the four treaties.

A few noteworthy provisions in the Treaty with Egypt (see document above), for example, was Article 2 which detailed the extraditable offences, Article 4 which excluded political and military offences from the list of extraditable offences, and Article 5 which listed the other grounds for refusal to extradite. The remainder of the provisions in that Treaty were similar to those contained in the Treaties with Algeria, Nigeria and China.

Discussion
The Chair referred to the current case involving Mr Pape who might be extradited to the United States for crimes he committed within that jurisdiction, and asked if he would in fact be extradited.

Mr Allers replied that the South African government was currently engaged in negotiations with the United States in which it would only hand over Mr Pape on condition that he did not receive the death penalty once extradited to the United States. Mr Pape's case was currently before the magistrates court in which the contents of the agreement entered into with the United States wouldl be indicated. Should the agreement meet the conditions imposed by the South African government, Mr Pape would be extradited to the United States, as the South African government had already concluded an extradition agreement with the United States.

The Chair sought clarity on the actual workings of Article 19 of the Egypt Treaty.

Mr Allers replied that this provision stipulates that, should South Africa require a person to be extradited from Lesotho, for instance, Lesotho would first have to obtain permission from the South African government before releasing that person into a third state, such as Botswana.

The Chair asked how this provision reads with Article 21 of the same treaty.

Mr Allers replied that the article merely provided that, in the example given above, the South African and Lesotho governments could agree that Lesotho was to transport the person to Botswana, and Lesotho cannot transport that person without the permission of the South African government.

Mr Mkhalipi contended that the Egypt Treaty contained 25 Articles, both the Algeria and Nigeria Treaties contain 23 Articles and the China Treaty contains 24 Articles. There seemed to be a discrepancy despite the fact that Mr Allers had assured Members that the four treaties were similar, and the concern here was whether all the necessary provisions had been included in each treaty.

Mr Allers assured Members that the four treaties covered the same ground and all the necessary and important provisions were included in each. It was stated earlier that the treaties were different but similar, and one could not compare them as one would ordinarily compare two pieces of legislation.

The Chair noted that Members agreed to the treaties with Egypt, Algeria, Nigeria and China.

Mutual Legal Assistance Agreements with Egypt, Algeria, Nigeria and France
Mr Allers informed Members that these agreements were aimed at facilitating the criminal procedure including the provision of evidence, locating or identifying persons and exchanging information between states.

A few noteworthy provisions in the Agreement with Egypt (see document above), for example, was Article 2 which indicated the scope of the application of the agreement, Article 6 which listed the grounds to be employed in refusing or postponing the granting of assistance under certain conditions. The remainder of the articles are similar to those contained in the Agreements with Algeria, Nigeria and France.

Discussion
Mr Mkhalipi stated that Members had not yet had the opportunity to consider these documents and sought clarity on the difference between extradition treaties and mutual legal assistance agreements.

Mr Allers replied that these treaties dealt with the grounds and procedure to be followed in the physical removal of a person to another country, whereas the mutual legal assistance agreements provided for countries to assist each other in criminal matters, such as exchanging information, locating or identifying persons, taking evidence and testimonies, executing requests for searches and seizures etc.

Ms E Lubidla (ANC) [Limpopo] asked Mr Allers to explain the South African position on Article 10, and whether it would apply to the those four prisoners who were currently delivering evidence at the Desai Commission. Does Article 10 of the Agreement with Egypt apply within a State, or did it only apply between two States?

Mr Allers replied that it only applied between two States.

The Chair noted that Members agreed to the Agreements with Egypt, Algeria, Nigeria and France.

There were no further questions or comments and the meeting was adjourned.

Appendix 1

Report of the Select Committee on Security and Constitutional Affairs on the Employment Benefits of TRC:

The Select Committee on Security and Constitutional Affairs, having considered documents regarding the remuneration, allowances and other employment benefits of the staff of the Truth and Reconciliation Commission, tabled on 19 March 2002 in terms of section 9(2)(a) of the Promotion of National Unity and Reconciliation Act, 1995 (Act No. 34 of 1995), referred to the Committee, recommends pursuant to section 9(2)(b) of the said Act, that the determination as set out in the said documents is in order and that the Council take no further action.

Appendix 2

Report of the Select Committee on Security and Constitutional Affairs on the Statute of the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders (UNAFRI):

The Select Committee on Security and Constitutional Affairs, having considered the request for approval by Parliament of the Statute of the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders (UNAFRI), referred to it, recommends that the Council, in terms of section 231(2) of the Constitution, approve the said Statute.