Foreign Service Bill [B35-2015]: briefing

Meeting report

Briefing by the Department of International Relations and Cooperation (DIRCO) on the Foreign Service Bill
The delegation comprised of Mr Kgabo Mahoai, Deputy Director General: Corporate Management; and Ms Tania Steenkamp Hefer, State Law Adviser (International), DIRCO. Mr Mahoai undertook the briefing.

The Committee was taken through the Bill clause by clause with explanations on what each clause covered. The long title of the Bill was the management, administration and functioning of the Foreign Service of the Republic of SA; the operational requirements that were suitable and supportive of the operations of the Foreign Service in a global environment; and matters incidental thereto.
 
Clause 1 - Definitions
The clause contained definitions of words or phrases that were used in the Bill. For example, “Head of Mission” meant an Ambassador, High Commissioner, Consul-General, Permanent Representative, and any other person appointed to represent the Republic as such in terms of the Vienna Conventions and the United Nations Conventions.

Clause 2 - Foreign Service
The purpose of the Foreign Service was to promote and advance the international relations and cooperation of the Republic in an effective, coherent and comprehensive manner abroad (sub-clause (1)(a). Members of the Foreign Service could be ordinarily employed by the DIRCO or by any other national department or appointed on a contractual basis for a fixed period (sub-clause (2)).

Clause 3 - Requirements for members of Foreign Service
No member of a Foreign Service may take up a position at a South African Mission until such time as he or she had met the prescribed requirements, obtained a security clearance issued by a competent authority and the transfer had been approved by the Director General of the DIRCO.
 
Clause 4 - Heads of Missions
The Head of the Mission was responsible for the management and administration of the mission. All members of the Foreign Service located at the mission including the locally recruited personnel in the mission reported to the Head of the Mission. The Head of the Mission must act on the instructions and under the authority of the Director General of the DIRCO.

Clause 5 - Recall of member of Foreign Service
A member may be recalled to the Republic after an inquiry in the prescribed manner, when found guilty of misconduct in terms of the disciplinary code applicable to that member or pending the finalisation of such inquiry. An inquiry could be held at the Head Office or at the station of the member abroad.
 
Clause 6 - Diplomatic Academy
A Diplomatic Academy was to be established. It would fall under the control and management of the DIRCO. The Diplomatic Academy would be responsible for providing training or cause training to be provided to employees and to members of the Foreign Service.

Clause 7 - Establishment of coordination and other mechanisms
The Minister may establish consultative, coordination and other mechanisms necessary for the effective execution of this Act (sub-clause (1)). The Minister may also by notice in the Gazette make regulations or guidelines regarding the coordination and alignment of activities relating to international relations between the three spheres of government, subject to the Intergovernmental Relations Framework Act, 2005 (Act No.13 of 2005) (sub-clause (2).

Clause 8 - Assets
Notwithstanding the provisions of the Government Assets Management Act, 2007 (Act No.19 of 2007) all immovable property utilised by the Foreign Service outside the Republic, any right in respect of such property and the management and accountability thereof must vest in the Minister. The Minister may on such terms and conditions as he or she may deem fit acquire or dispose of; and lease, rent, maintain or construct structures or installations on or refurbish any immovable property belonging to the DIRCO for the use of the South African Missions or for any other purpose he or she may deem necessary for the efficient functioning of the Foreign Service.
 
Clause 9 - Policies, codes, directives and decisions
The Minister may make any policy, codes or prescribe any ancillary or incidental administrative or procedural matter that was necessary to prescribe for the proper administration and management of the Foreign Service and its members subject to any collective agreement applicable to the Foreign Service. Determination involving expenditure from revenue shall be made in consultation with the Minister of Finance (sub-clause (1).

Clause 10 - Delegation of powers
The Minister may delegate to the Director General any power conferred by this Act, except the powers contemplated in sections 9 (policies, codes or directives) and 12 (make regulations) or the Minister may authorise the Director General to perform any duty imposed on the Minister by this Act. The Director General may delegate any power conferred upon or duty assigned to him or by her under this Act to any member of the Foreign Service excluding any power or duty already delegated to him.
 
Clause 11 - Offences
Members may be prosecuted in the Republic for the offence committed in the territory of the foreign state in accordance with section 110A of the Criminal Procedure Act, 1977 (Act No. 51 of 1977). A person or member or employee who in wilful or negligent manner, contravened or failed to comply with the provisions of this Act or its regulations, was guilty of an offence and was liable on conviction to a fine not exceeding R50 000 or imprisonment for a period not exceeding one year.

Clause 12 - Regulations
Amongst other things the Minister may make regulations regarding the transfer of a member of the Foreign Service, conditions of service applicable to the members of the Foreign Service, categories of members of the Foreign Service, disciplinary matters, and adjustment of allowances of members of the Foreign Service transferred to South African Missions
.
Clause 13 – Short Title and commencement
The Bill was called the Foreign Service Bill, 2015.

Discussion
The Chairperson thanked the DIRCO for piloting legislation of the Bill’s type. It was the first of its kind since 1994. The Committee needed a concise strategic intent statement on what the Bill intended to do. The statement should preferably be a one liner.

Mr B Radebe (ANC) concurred with the Chairperson that the briefing was hugely appreciated. It was only the Committee’s second bite on the Bill. The Bill would henceforth be dealt with at Committee level. The Bill had some lacunas and loopholes that needed attention. The Committee could re-craft the Bill if the need existed. The Bill was now a product of the Committee and would be looked at from a Committee perspective. The Committee needed to consider the Bill from different perspectives. Members had to look at how the Bill affected other government departments and how the Bill impacted upon collective bargaining issues. The Committee needed to get feedback from persons who had commented on the Bill as well as feedback from trade unions. On offences that were covered in the Bill he felt that the R50 000 fine was not sanction enough where for example a person had sold national secrets. The sanctions in the Bill were not stringent enough. He suggested that the Committee consider what other countries had set as sanctions for offences. The Bill also held cost implications like the establishment of the Diplomatic Academy.

Ms Steenkamp Hefer said that the DIRCO could provide the Committee with a timeline of consultations that had been done on the Bill.

Mr S Mokgalapa (DA) agreed with the sentiments expressed by Mr Radebe. The Bill was in the hands of the Committee and was work in progress. The Bill was of great importance as it touched upon the image of SA and its national interests. He had looked at international best practices on sanctions and had realised that the punishments were very explicit. The Bill had to thus be spot on especially on sanctions. The Committee needed to clarify and amplify what the requirements were. Exceptions should also be looked at. Attaches of government departments like Defence and Trade and Industry for example should be looked at. The Committee furthermore had to consider issues of asset management which the Auditor General’s Office had raised. The issue was about who was accountable for assets. The Committee additionally had to debate the issue of recall and transfer of staff as there could be grey areas. The status of the Diplomatic Academy also had to be looked at since at present there was currently an institute in place. Would the Diplomatic Academy need accreditation? Differences between political and career diplomats had to be taken into consideration. On para-diplomacy provinces and municipalities needed to be roped in as coordination was needed. Discussion was needed on the waivering of immunity where serious crimes were committed and host countries had requested it. A R50 000 fine was not enough where a serious crime like rape was committed. Security requirements also needed to be explicit. He noted that whatever government did was gazetted so there was a need to clarify what would or would not be gazetted. He felt that there was a long process ahead on the Bill as there were many loopholes.

Ms Steenkamp Hefer, on the issue of regulations to be published pursuant to the Bill, noted that it was not the intention to give teeth to the Bill without getting inputs on it. From a legal point of view, it was just easier to amend regulations than to have an amendment to an act. In regulations it was easier to deal with practical issues of running missions and making amendments where needed.

Mr Mahoai added that regulations were byproducts of bills. The Committee could be provided with insight into some of the things that would be placed in the regulations. On immovable assets the DIRCO had the power to buy and sell property abroad. There was a framework in place to guide the DIRCO on immovable assets.

Ms D Raphuti (ANC) noted that SA had a policy of Ubuntu in terms of touching the world. The Bill was work in progress and needed to be benchmarked with countries abroad.

Mr S Maila (ANC) agreed that the Bill had to be work in progress in order for it to be a fine-tuned product. Benchmarking and best practices had to be taken into consideration. He asked why countries always looked towards Europe and the US to do benchmarking. Was Africa not considered good enough? The Committee should perhaps look at African countries for benchmarking.

Mr Mahoai said Kenya was one African country that had this type of legislation. Most countries did not have it.

Ms S Kalyan (DA) said a proper comparative study was needed with countries abroad. Canada and the Philippines had been looked at on the Bill. She suggested that once the Committee returned after the municipal elections to be held in August 2016 the Committee could go on a study tour to one or two places to observe how other parliaments dealt with Foreign Service legislation. It was all good and well that the Committee could tweak the Bill but perspectives from parliamentarians from abroad could be invaluable.

Mr Mahoai stated that a comparative analysis of countries which had this type of legislation would be useful.

The Chairperson asked what the definition of national interest was. Was it the common understanding of national interest of government where it pertained to state security or territorial security for instance? He said industrial espionage happened all over the world and technological developments were often stolen and sold. The fine of R50 000 was wholly inadequate. On the recalling of members of the Foreign Service he asked what happened where the person had committed a serious crime in the host country or had been involved in motor vehicle accident where someone had died and there was no extradition.     

Ms Steenkamp Hefer observed that many members had concerns over the issue of offences and the sanctions that went along with it as contained in the Bill. The DIRCO had distinguished crimes like espionage and murder from crimes or offences that were dictated by the Bill. She explained that the Criminal Procedure Act (CPA) covered serious crimes like murder and espionage. The CPA gave the South African legal system the power to prosecute the accused guilty party. The normal rules applicable to specific crimes would apply. For example, for treason the punishment was life imprisonment. The R50 000 fine or the one-year imprisonment sanction contained in the Bill was for crimes contravening the Bill. It could be for instance where an employee from a government department refused to report to the head of a mission or defying the head of a mission. Problems with sister departments to the DIRCO were common. The Bill regulated the sanctions applicable to such types of offences.  A distinction needed to be made firstly where a crime was committed in SA, secondly at a South African mission or thirdly abroad. If a crime was committed in SA, then the South African legal system would apply. If a crime was committed at a South African mission, then the mission was regarded as South African territory and hence South African procedures would apply. Where a car accident caused the death of someone on foreign soil the host country could request that diplomatic immunity be waivered. General practice was that diplomatic immunity was not waivered, but rather that the individual would be recalled and prosecuted in terms of the CPA.  
 
Mr Mahoai said comments made by Members were noted by the DIRCO. 

Ms Dineo Mosala, Committee Content Adviser, stated that she had looked at the list of countries which the DIRCO had considered when it had done its international benchmarking and best practices. Tthe list was not exhaustive and the Committee could consider looking at other countries as well in order to  be more informed. A study tour could be helpful.

The Committee Secretary, Mr Lubabalo Sigwela, spoke to the process on the Bill. Advertisements in all official languages on the Bill would be placed across all provinces to encourage public participation. Submissions received would be summarised and a date would be set for public hearings to take place on the Bill. This would afford the Committee an opportunity to interrogate submissions received and the DIRCO’s responses thereto. He agreed that study tours to countries like Kenya would be useful. Once finalised then members could make input on the Bill. Thereafter the Bill could be submitted to the National Council of Provinces. The DIRCO could make suggestions to the Bill and the Committee could decide to accept or reject them. The Bill could then be submitted to the National Assembly.

The Chairperson asked that the process on the Bill outlined by Mr Sigwela be put in writing and forwarded to members.   

Ms Kalyan asked where the advertisements had been placed and in what media i.e. radio, print etc.

Mr Sigwela responded that advertisements had been placed in national and provincial newspapers. He would provide the details on the advertisements to members. He asked whether there was agreement by Members on the suggestion of a study tour.

Ms Kalyan reiterated that the study tour should take place after the municipal elections that were to be held in August 2016.

The Chairperson supported the proposal but it had not been placed as an item on the agenda of the current meeting.

Ms Kalyan said the suggestion need not be on the agenda as a standalone item. It was a suggestion made in the course of the meeting.

The Chairperson responded that Members could find each other over the matter. He needed to broach the matter with the House Chairperson. It was a matter that the Committee could discuss and agree upon.

The meeting was adjourned.