Anti-Personnel Mines Prohibition Bill: briefing

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
20 May 2003
ANTI-PERSONNEL MINES PROHIBITION BILL: BRIEFING

Chairperson: Kgoshi M L Mokoena (ANC) [Northern Province]

Documents handed out:
PowerPoint presentation on Anti-Personnel Mines Prohibition Bill
Anti-Personnel Prohibition Bill Proposed Amendments (approved by Defence Portfolio Committee)
Anti-Personnel Prohibition Bill [B44B-2002]

SUMMARY
The Committee was briefed by the Department of Defence on the Anti-personnel Mines Prohibition Bill. The Committee posed questions about the specific clauses of the Bill. They noted their agreement with the overall principles of the Bill and expressed the desire to expedite the passing of the Bill.

MINUTES
Briefing by Department of Defence
Mr Nick Sendall: Chief Director, Defence Policy, explained that the purpose of the Bill was to put into place the best practises to prohibit anti-personnel mines. This embodies South Africa's strong stance against them. He emphasised that anti-personnel mines have dramatic impacts on civilians and civilian economies and reviewed the South African history of banning them, which began after 1994. He noted that the Government has two options regarding the adoption of the International Convention Against landmines, to which South Africa is a signatory. They could take a minimalist approach by just bringing the Convention into force or they could aim to put forward the best practice against land mines. This Bill seeks to do this and as a result has been recognised internationally as a model. The process of drafting the Bill has been an extensive and consultative process, including six civil society hearings.

Mr Rathebe stated that this Bill seeks to prohibit only anti-personnel mines, as they can last long after the cessation of hostility in an area.

(Please see attached presentation)

Discussion
Mr Sendall stated that although South Africa is presently not a landmine affected country, there remains a legacy that the Bill aims to deal with.

Mr L Lever [DA, North-West] raised a number of concerns. Firstly relating to Clause 4 of the Bill, he noted that there may be constitutional problems with trying a civilian in a military court. Therefore the clause must by qualified to state that only those subject to military discipline may be tried in a military court. Mr Lever thought that Clause 6(3) should be imperative, which could be accomplished by turning the "may" into a "must". He was concerned that in Clause 19 (b)(ii) the use of the word "environment" was out of place, and he suggested that it be replaced with "damage to persons and property". He noted, in Clause 20, that there was not an equivalent clause that covered police officers that gain a warrant under false pretences. Furthermore, it was an incomplete answer to say that the officer may be then charged for perjury, as this charge was rarely successful.

He argued that Clause 28 (2) was too broad on the type of information that may be requested.

Mr RM Nyakane [Northern Province] referred to Clause 19, wondering if environment should include the holes left by mines in mining areas, which might be a danger.

The Chairperson was concerned about how the Bill handled South African interaction with countries that are not a party to the Convention. He wondered what would happen if a South African citizen contravened the Act in those countries. He noted that land mines are a larger problem in surrounding nations, which would still affect South Africa even with the implementation of this Bill.

Ms Ntwanambi [ANC, Western Cape] questioned why Clause 11 gave the opportunity to the Department of Defence to even participate with states that are not signatories to the Convention. She asked whether there was a framework to guide the Minister on how they administer their discretion under Clause 15. She asked for the reason for choosing who could destroy mines in terms of Clause 13(2).

Mr Rathebe addressed Mr Lever's concerns about Clause 4 (1), by stating that the remainder of the Clause, specifically (b) and (c) already specifies who is subject to military court.

Mr Lever reiterated his concerns with Clause 6(3).

Mr Rathebe noted that they would consider this.

Mr Lever then noted that he was too hasty, and since the clause refers to vehicles it would be appropriate to grant discretion.

Mr Sendall responded to the questions concerning Clause 19(b)(ii). He noted that although it was a valid suggestion to include personal property, there were also many environmental concerns surrounding the disposal and storage of land mines.

Mr Lever clarified that this clause gave the authority to enter a property without a warrant, which was a serious override. It should only be granted if there is an immediate threat to person or property. So "environment" was not the appropriate word.

Mr Rathebe stated that land mines are often found in areas designated for agricultural purposes, which would be a threat to the environment.

Mr Lever said that the issue was the immediacy of granting a search without a warrant that should not be granted just for the environment.

The Chairperson stated that both sides should consider the issue and revisit it at a later time.

Mr Rathebe then addressed Mr Nyakane's question, stating that this Bill was only aimed at prohibiting anti-personnel mines, and not the ones that he mentioned.

Mr Ntwanambi addressed the Chairperson's questions. He noted that all countries in the region are state parties to this Convention, but some had a problem with embedded mines. A country affected by mines can ask for assistance to destroy them and at a political level South Africa can assist them in this.

Mr Sendall said that the Convention is ratified in the SADC region. The next stage was implementation, which involves three steps: the enactment of domestic legislation, the destruction of existing stockpiles and the destruction of the mines in place within ten years.

Mr Rathebe noted that Clause 27 already addresses the concerns raised by Mr Lever regarding Clause 28(2).

The Chairperson requested a response to Ms Ntwanambi's question on Clause 13(2).

Mr Rathebe responded that sometimes the capacity was not there. The South African Police Service is the explosives authority, but the Department of Defence will sometimes assist them.

A Member asked why it was not the responsibility of the SAPS to appoint the domestic inspector under Clause 14. Why is the power to appoint instead given to the government?

Mr Rathebe stated that there is a necessity to appoint someone and for administrative reasons it was given to the Department. He noted that there are instances in which the Police are given the authority to confiscate under this Bill without having to go through the Department of Defence. He then addressed her second question, although there may be a necessity to work with non-signatories of the Convention, under the Act this co-operation must be terminated if anti-personnel mines are used.

Mr Sendall added that this Bill places normative obligations on the South African Government to ensure that they are not transgressing the Bill, even if it is through co-operation. He added that agents of the government must also include those who do research about the clearance of land mines.

Mr Rathebe then responded to Ms Ntwanambi's second question, that the Bill sets out conditions which are intended to relate to how to handle sensitive equipment, areas and so forth. The Minister is given the power to impose these conditions.

Mr Lever argued for a remedy in the Bill for an officer guilty of unlawful conduct terms of the Bill, and noted that the situation is even more grave if the authorities search without a warrant.

Mr Rathebe suggested that other legislation took care of this.

The Chairperson stated that the two should revisit this discussion later.

Mr Mkhalipi asked about why other types of mines had not also been exempted.

The Chairperson asked for examples of natural or juristic persons that may be exempted from this Act.

Mr Sendall responded that any agents of the Department of Defence may be registered to uses mines for training purposes. For example, training people how to disarm an embedded mine. He provided some examples.

A Member noted that this Bill totally restricted the use of land mines, and other types of mines were restricted, or conditioned according to international law. For example, they may not be used in areas of civilian concentration.

Mr Lever asked whose budget this Bill would fall under.

Mr Rathebe responded that the police would handle the violations, whereas the Department would handle the inspections and regulations.

The Chairperson told the Department that they wanted to expedite the passing of this Bill.

The meeting was adjourned.