Minister on the Foreign Service Bill

Meeting report

Foreign Service Bill: briefing by the Minister of International Relations and Cooperation
Minister Maite Nkoana-Mashabane, accompanied by her two Deputy Ministers, said that the White Paper on South Africa’s Foreign Policy expressed the vision that South Africa should be a successful, influential and leading member of the international community and contribute to the development of their region, continent and the world. It also placed emphasis on the need to pursue national economic policy objectives and leverage opportunities that arise internationally to the benefit of South Africa. South Africa’s Diplomacy of Ubuntu that focused on their common humanity and provides an inclusive and constructive world view to shape the evolving global order, can only be achieved if its foreign service is enabled through legislation to deliver on its mandate.

The Minister said that the rationale for the Bill is that currently South Africa does not have a legislative mechanism to support the mandate of the Department to achieve the country’s foreign policy objectives optimally. Unique challenges are faced daily in respect of the realities of the management and operations of missions in foreign jurisdictions. International relations are conducted in an increasing complex world and the Foreign Service has to be able to respond appropriately and adequately, and often immediately. International relations are executed in a global environment and operate within diverse legislative systems that are different from the national domestic legislative context. At present the practical and administrative challenges faced daily are to be dealt with within the confines of legislation aimed at regulating the public service domestically in South Africa. Various government departments with officials at missions operate with fragmented and inconsistent approaches. South African representation abroad at present includes career diplomats within DIRCO, employees from other departments, and appointees from outside the public service.

The difficulties of managing the current foreign service within the confines of legislation regulating the public service are evident and also lead to concerns of compliance to legislation by the Auditor-General. Extensive research was done on comparable countries such as Brazil, Kenya, Canada and the Philippines. The study revealed that the majority of foreign services have legislative frameworks through which the administration and management of the Foreign Service are regulated by their departments of foreign affairs/international relations. International practice shows that for the effective execution of international relations, a foreign service needs to be supported by an appropriate legislative framework that is flexible enough to address the challenges posed at an operational level in missions.

The Minister said the Bill creates an enabling legislative framework through which the current Foreign Service will be managed and regulated by DIRCO and through which international relations will be conducted. The Foreign Service as part of DIRCO will resort under the authority of the Minister of International Relations and Cooperation. The Bill consolidates the current fragmented approach into a single Foreign Service that can represent South Africa in a coherent and comprehensive manner to improve coordination, coherence and service delivery. The Bill is operationalised in the context of the Constitution, existing legislation applicable to the public and security services, but with the flexibilities needed to have an effective foreign service.

The Minister will have the power to make any policy on an administrative or procedural matter that is necessary for the proper functioning and administration of the Foreign Service. The Minister may also make regulations on conditions of service of members of the Foreign Service who are placed or seconded at South African missions.

The Minister explained that Clause 1 contains the definitions to assist with the interpretation of the provisions of the Bill. Clause 2 defines the Foreign Service and sets out how the Foreign Service is made up and who are the members of the Foreign Service. The Foreign Service is responsible for the implementation of the Republic’s foreign policy and for promoting the Republic’s national interests and values in line with its foreign policy. The Foreign Service will be managed and administered by DIRCO and the functions of DIRCO include coordinating and aligning international relations between all three spheres of government; leading, managing and coordinating the Republic’s participation in international engagements, negotiations and the conclusion of bilateral, regional and multilateral agreements; and render protocol, consular and custodianship services.

Clause 3 provides for the requirements to serve as members of the Foreign Service. It provides for the minimum requirements a person must meet to qualify for transfer to a Mission and the conditions of transfer. Clause 4 regulates the responsibilities of Heads of Mission to manage and administer the Mission and that the Heads of Mission must act on the instructions of the Director-General. Clause 5 deals with recall of members of the Foreign Service under specific circumstances. Clause 6 deals with the responsibilities of the Diplomatic Academy in the training of South African diplomats and foreign diplomats especially from the African continent.

Clause 7 provides that consultative, coordination and other mechanisms may be established as the Minister may deem necessary for the effective execution of this Bill. Clause 8 provides the Minister with the powers to acquire, dispose, lease or rent the immovable assets of DIRCO within or outside the Republic. Clause 9 provides for the policies, codes and directives that the Minister may make to assist with the proper management and administration of the Foreign Service. Clauses 10, 11, 12 and 13 provided for the delegation of powers; making of regulations by the Minister; offences; and the short title.

The Minister noted the departments that were consulted which included: Public Service and Administration; Justice and Correctional Services; Home Affairs; Science and Technology; Agriculture; Health; Communications; Labour; Environmental Affairs; Transport; Higher Education and Training; Trade and Industry; Tourism; Public Works; National Treasury; State Security Agency; SAPS; SANDF; SARS and SA Tourism.

The Minister described the background to the Bill, saying it was presented at International Cooperation, Trade and Security (ICTS) and Governance and Administration (G&A) Cluster DG Clusters on 3 March 2015 and 5 March 2015 respectively, for consultation. It was later presented at ICTS Cabinet Committee meeting on 19 August 2015 and approved by Cabinet on 26 August 2015, then published in the Government Gazette on 17 September 2015 for public comments. It was certified by the State Law Advisers and tagged as a section 75 Bill.

Discussion
Mr B Radebe (ANC) congratulated the Minister and appreciated the Bill, which will regulate all state organs that operate internationally. But when looking at the stakeholders consulted, labour was not part of that and if the Bill was going to tamper with the Labour Relations Act, it will create some problems. The labour movements should have been consulted and been part of the process.

Mr Radebe said that as a Committee moving forward they should conduct public hearings for all those people that were omitted when the drafting of the Bill was done.

Mr Radebe asked how comfortable the Department of Public Service with the relegation of the rules of public service in introducing this Bill. Also, had the Department of Public Works been consulted because it is the department that is responsible for proper management of government works.

Ms D Raphuti (ANC) applauded the Minister and the Department for this initiative of the Foreign Service Bill, which is a good story to tell the people in rural areas. This Bill will explain to all departments how things should be done internationally.

Mr M Maila (ANC) congratulated the Minister and the Department for a job well done although it is still work in progress. He said that as DIRCO regulates this environment it should therefore mean that the Committee performs oversight for what is happening out there. He asked if it was possible to look for another oversight model because the current one will not be able to work in terms of this Bill.

Ms T Kenye (ANC) thanked the Minister for the briefing on the Bill, which will go a long way to address the issues that confront them as a Government internationally. They needed dedicated legislation in order to carry on with their diplomacy work.

Ms Kenye noted that the Bill consolidated the current fragmented approach into a single foreign service that can represent South Africa in a coherent and comprehensive manner. There is a problem if the Bill only engaged coordinating and aligning international relations between all three spheres of government, but the South African Local Government Association (SALGA) is not consulted in this regard. SALGA should be part of those engagements so that the Bill consolidated its work going forward.

Ms Kenye noted that Clause 6 dealt with the responsibilities of the Diplomatic Academy in training of South African diplomats and foreign diplomats especially from the African continent. In this regard, they should also engage African countries before going outside the continent.

Mr L Mpumlwana (ANC) said that this was very good work but a lot needed to be done. He noted that the Bill said nothing about the consultation of provinces and municipalities.

Mr Mpumlwana referred to the definition of “recall” and asked what they meant.

Mr Mpumlwana asked for clarity about clause 8 of the Bill, which provided the Minister with the powers to acquire, dispose, lease or rent the immovable assets of DIRCO within or outside the Republic.

Mr Mpumlwana asked what offences they were talking about in clause 11 of the Bill.

Mr D Bergman (DA) said that he shared the same sentiments as Mr Mpumlwana about the immovable assets of DIRCO where all arrangements were done by the Minister without any form of consultation process. Proper consultation should be done before such asset arrangements are made because any unilateral decision could be detrimental going forward.

Mr Bergman referred to their hands-on approach, as the Minister has said there were two types of foreign approaches contained in the Foreign Service Bill. He asked what form of control or retention did DIRCO have in terms of the two training agreements that take place, who monitors such agreements?

Mr Bergman asked about certain missions that are being paid for by DIRCO within South Africa and whether there was any way of improving that within the Bill or make provision for that.

Ms S Kalyan (DA) said that this Bill is a necessary piece of legislation and congratulated the Minister for that. In view of the fact that South Africa’s global footprint has expanded to such an extent that it is the second largest in the world, it was a very necessary piece of legislation, and she looked forward to engaging on the Bill clause by clause and also seeing regulations sooner rather than later.

Ms C Dudley (ACDP) asked whether there are any financial implication in terms of training their entire sector and what they have envisaged in that regard.

Ms Dudley asked are there any new provisions and how will the new provisions impact on working for a better South Africa generally. Will the new provision on buying and selling assist in improving the audit outcomes?

Ms Dudley said that clearly the recall clause goes to dealing with some controversial issues like that of the Gupta family.

The Chairperson also joined his colleagues in congratulating the Minister and the Department for the Bill and was hopeful that it will be passed before 2019, which will be the enduring legacy of the Minister.

The Chairperson asked about the acquisition and disposal of assets in foreign missions. Is the Bill going to allow the Minister to have powers to run the Ministry in such a way that there will be disagreements and misunderstanding with Public Works when it came to international territory, which is the space that DIRCO must defend.

The Chairperson noted that the Bill has only benchmarked countries such as Brazil, Canada and the Philippines in its research but is silent on big guns such as China, Russia, UK and USA. He asked for clarity about that.

The Chairperson referred to the stakeholder, State Security, which could work together with DIRCO, but asked if there were areas where information could not be provided to DIRCO because of security concerns.

The Chairperson asked if this Bill would not affect State Owned Entities in terms of their properties abroad.

The Chairperson asked if DIRCO will provide some form of training to the municipalities, SALGA, and councillors, in terms of this Bill.

Deputy Minister Nomaindia Mfeketo said that the importance of the Bill is to bring together and consolidate the work they were doing in the international space. Once this Bill is passed they will put mechanisms in place to consult relevant stakeholders such as SALGA, provinces and municipalities in terms of what they do in international relations.

Deputy Minister Luwellyn Landers said that advertisements for comment on the Bill will go out when the Bill is in the Committee and then afterwards public hearings on the Bill will be held by the Committee. The Committee should invite National Treasury to comment on the Bill.

Ambassador Jerry Matjila, DIRCO Director-General, said that the Bill will be clarified when they go through it clause by clause. The definitions will also be clarified. The Bill intends to enhance coordination between DIRCO, other departments and state owned entities in terms of their work internationally. They have taken note of the comments made by Members of the Committee. In terms of financial implications, they have not anticipated that there will be financial implications other than those in terms of operations.

The Chairperson said that for deployment internationally, it is important to deploy South Africans who are loyal, patriotic and understand the country very well to be ambassadors in all the international forums such as the World Trade Organisation (WTO), World Health Organisation (WHO), and so on.

The Minister said that they were 22 years in this very complex environment and needed to defend their international interests all the time. She was amazed at the number of experts they have internationally. These South African experts work in different organisations throughout the world doing good work for other countries. They needed to attract these experts to work for their country so that South Africa could grow in terms of its global footprint.

The Minister promised that they will consult and interact with labour going forward. The research work that has been done is benchmarking but the challenge was that they did not have enough resources such as those of the United States.

The Minister said that on the matter of recall, ambassadors were recalled because of their misconduct. For example, if an ambassador behaves in a manner that is improper like having an affair with a married person. Such behaviour will lead to the recall of that ambassador.

The Minister said that in the disposal of assets, there was no way the Minister could do that without consultation. On state owned entities, they needed to remind them of always practising good cooperation and good governance. But all stakeholders will be consulted in terms of the Bill going forward.

The Minister thanked the Committee for the opportunity to present the Bill. It should be noted that some of the questions asked by Members will be answered when they engage on the Bill clause by clause.

The Chairperson thanked the Minister and her delegation for the presentation on the Bill. The Bill is a very important piece of legislation which will go a long way in regulating and consolidating the fragmented Foreign Service in terms of international relations. The Committee is looking forward to engaging on the Bill clause by clause. Indeed Treasury will be invited to make comments on the Bill. The Committee will also conduct public hearings once the Bill is publicised.

The meeting was adjourned.