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JOINT MONITORING COMMITTEE ON IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF WOMEN
20 September 2000
FIREARMS CONTROL BILL AND OTHER GENDER-RELEVANT LEGISLATION
Briefing Document on Gender Aspects of the Firearms Control Bill
Department of Justice and Constitutional Development: Report on the Implementation of Legislation, the Status of Discussion Papers and Bills
The Commission on Gender Equality, the Child Health Policy Institute and the Women's Legal Centre drew the committee's attention to the fact that the drafting team responsible for compiling a summary of all submissions made during the public hearings on the Firearms Control Bill, had failed to include certain submissions made by women and children rights organisations plus had failed to adequately respond to key points in certain others.
The recommendations in these submissions were outlined and the committee was asked to intercede because of this glaring omission. This Committee will approach the relevant committee considering this Bill, the Portfolio Committee of Safety and Security, with these concerns. It will also try to organise a snap debate in Parliament on these recommendations.
The Department of Justice briefed the Committee on current status of various gender-relevant Bills and the implementation of Acts relevant to women. The Deputy Minister of Justice explained the difficulties the Department has had in implementing the various Acts as a result of the lack of funding and the tranformation process within the Department. On a more positive note, the three pilot programmes focusing on issues relevant to the implementation of the Maintenance Act were reviewed.
Firearms Control Bill
Ms Fatima Seedat of the Commission on Gender Equality pointed out that the drafting team, made up of police, had been responsible for summarizing all of the submissions presented at the hearings. Significant omissions were evident in this document regarding key points made by numerous women's rights organizations. She stressed that this document is neither a comprehensive nor an objective summary of the submissions. The document omits specifically nine submissions, including those made by the Network on Violence Against Women, the Women's Legal Centre and the Child Health Policy Institute. It also fails to respond to key points made in certain submissions.
She made the following points regarding firearms and violence against women:
- The Bill has large implications regarding violence against women
- The majority of perpetrators are men and their victims are women
- Violence against women is evident more often at home and this must be recognised
- Homicides are most frequently the result of domestic violence and most often by the use of a gun.
-A study done by the Centre for Study of Violence and Reconciliation in 1994 noted that out of 180 women shot, 94 were shot by male partners.
Ms Paula Proudlock of the Child Health Policy Institute at UCT and Ms Debbie Quenet highlighted eight clauses in the Firearms Control Bill significant to gender:
Clause 11 - Application for a Competency Certificate
The competency certificate is a new innovation introduced by the Bill. Only people who pass the competency test may obtain legal firearms Applicants will have to satisfy certain prescribed criteria before they will issued with a competency certificate. A competency certificate may only be issued to a person who:
- is 18 years old
- of stable mental condition and not inclined to violence
- not dependent on alcohol or drugs
- has not been convicted of an offence involving a firearm
- has not been convicted of an offence involving violence
- has not been convicted of an offence involving the abuse of alcohol or drugs
- has not been convicted of an offence in terms of the Domestic Violence Act
- has not been the subject of a final protection order in terms of the Domestic Violence Act where a reasonable apprehension of violent behavior was involved
- has successfully completed the prescribed test on knowledge of the Act
- has successfully passed the practical and firearm safe-handling tests.
Community Involvement in the Competency Process
The Bill requires the Designated Firearms Officer to verify information about the applicant regarding mental condition, inclination to violence, domestic violence record, alcohol or drug dependency and that the applicant is a fit and proper person
to own a firearm. The Bill is silent on how the DFO establishes this.
The family, especially the partner or spouse of the applicant, and the surrounding community are best placed to provide this information to the Designated Firearms Officer. There is no other source for this information (other than a sworn affidavit by the applicant himself). Furthermore, there is no central database of domestic violence protection orders.
- The competency application process should provide for input by the applicant's partner/family. This can be done by requiring the Designated Firearms Officer to investigate as to whether the applicant has a partner and to inform the partner of the applicant's application.
- The partner should have an opportunity to object to the application in confidence.
- Only objections that fit into the criteria set out in Clause 11 will be considered valid objections. A partner therefore cannot simply veto an application - they have to provide good reasons why the application should not be granted.
-The drafting team has said that consultation with family members would be administratively difficult.
Clause 11 Proviso: Sentence of Six Months Imprisonment
The offences listed in Clause 11 are qualified by the requirement that any offence must have carried a sentence of six months or more without the option of a fine. Most first time offenders for assault, sexual assault and threats of violence do not receive sentences exceeding six months.
In order to reduce the number of women and children injured and killed in domestic violence situations, applicants who manifest early signs of violent tendencies should not be able to obtain legal access to guns. The Child Health Policy Institute recommended that the six-month term of imprisonment qualification be removed. She pointed out that once a person has a conviction for a violent offence, they should be considered incompetent to possess a firearm. The length of the sentence should not be a factor.
Competency Process should be Stopped Pending the Outcome of an Appeal
The Bill provides that a person who has been convicted of a violent offence, for instance murder, is considered competent until the appeal process has been finalised.
Ms Proudlock pointed out that such a situation could produce absurd consequences.
In South Africa, no one has a right ( it is a privilege) to possess a gun, therefore the presumption of innocence does not play a role here. The State will not be violating an applicant's rights if they postpone the finalisation of the application until the appeal has been decided. Therefore the recommendation here should be that if an applicant is awaiting an appeal decision, then the competency determination process should be stopped until the appeal process has been finalized.
Clause 23 - Licences to Possess Firearms for Business Purposes
This clause makes it clear that a security company may only issue a firearm to a security officer if the security officer holds a valid competency certificate.
This provision was welcomed as the proper control of firearm possession and use in the security industry is essential in contrast to the police being exempted from the comptency certificate crietera
Clause 101 - Possession and Use of Firearms by Official Institutions
The provisions of the Bill that exempt State security officers from the competency requirements are of great concern to all the organizations present at the meeting.
While private citizens and private security officers are required to comply with strict objective criteria before being issued with a gun, the Bill provides hardly any restrictions on the issuing of guns to the state security forces (SAPS, Correctional Services, SANDF).
Clause 101 (8) in particular provides that the head of the police may issue a firearm permit to a police officer if the police officer concerned is a fit and proper person to possess a firearm, and has completed the prescribed training and test for the safe use of a firearm. The problem is that this determination of whether the officer is a fit and proper person lies in the subjective discretion of the head of police. There are no objective criteria specified, such as a lack of convictions for violent offences, as there are for private citizens and private security guards. No one should want the State to arm police officers that have convictions for violent offences.
Clause 150 - Regulations
Ms Proudlock made the following points with regard to the regulations:
- As a result of the lengthy regulations that need to be drawn up for this Bill, the time lapse between the Bill being passed and enactment is likely to be long. Due to the urgency of stricter gun control, she recommended that the regulations be prioritised and fast-tracked. Setting time frames in the Bill, the Portfolio Committee Report or a Committee Resolution would achieve this.
- Additionally, the regulations should be tabled in Parliament so that the Portfolio Committee on Safety and Security and the Joint Monitoring Committee on the Improvement of the Quality of Life and Status of Women can scrutinize the draft regulations and ensure that they adhere to the principles in the legislation. A clause specifying this tabling process should be incorporated into the Bill.
- The Bill must specify that the draft regulations should be published for public comment.
Schedule 1 - Item 11 - Renewal of Licence by Existing Licence Holders
Item 11 does not make it clear that existing licence holders will have to complete competency tests in order to renew their licences. Thus the Bill should be quite clear that when existing licence holders are required to renew their licences, they must go through the competency process as prescribed for all new gun owners.
Clause 1 Definitions
There is no current definition of what an "offence involving violence" means. It was recommended that this definition needs to incorporate that an offence involving violence includes rape and any other sexual offence.
Clause 99 Exemptions
Currently official institutions are not required to comply with the Bill (except for Clause 112 and 150). It was recommended that official institutions should not be exempted from Clause 106 (Declaration of Unfitness by a Court).
Clause 106 Declaration of Unfitness by a Court
In Clause 106(1) the court must declare a person unfit to possess a firearm where an offence involves violence. This clause presently limits this to offences involving violence that carry a sentence of twelve months or more.
It was pointed out that the nature of the sentence should not be a relevant factor and a conviction for a violent offence should be sufficient. Furthermore, if there is a final protection order in terms of the Domestic Violence Act, the Court should not have any discretion and MUST declare that person unfit.
In Clause 106(2) the court must have an inquiry to determine whether a person is unfit to possess a firearm if s/he has contravened an interim protection order in terms of the Domestic Violence Act.
Clause 105 Declaration by Registrar of Person to be Unfit to Possess a Firearm
This clause refers to when a final protection order has been issued. In order to limit the discretion on the Registrar, it was recommended that the language stating that the "Registrar may declare an applicant unfit to possess a firearm â€¦ " be changed to "must declareâ€¦".
In conclusion, Ms Seedat requested that this monitoring committee influence the Bill on these issues. She summarized the key points that need to be addressed by the Committee and by the Bill:
Competency Certificate - There is no provision for the Registrar to obtain collaborative input from anyone else.
Conviction - Currently if someone has been convicted for six months or more they may not get a competency certificate. However, it is common that domestic violence offenders do not get this amount of time, if any at all, thus enabling them to get a certificate.
Regulations - The Bill does not specify that regulations must be published for comment and tabled in Parliament for scrutiny.
Definition of Violence - There is no current definition for what an offence involving violence means. It should include rape and other offences.
Discretion of the Registrar - The Registrar should not have this broad discretion.
Police - Possession and use of firearms by official security institutions are not required to comply with competency tests and they should.
Mr Ntuli (ANC) asked for clarification regarding the recommendation for amending Clause 101(a). He commented that the police needed guns as part of their protection. Another ANC committee member agreed and asked how the organizations would balance this issue because the police must protect themselves.
Ms Proudlock replied that the police must have a higher standard put upon them, especially the ones in the field using guns. She said that the Bill presently provides that at the end of their workday when they are no longer on duty, they turn in their guns. They can take their gun home only with special permission. This provision has been included to protect police officers because research has shown that they are attacked for their guns.
The organizations were asked for suggestions on how a spouse or partner could be included in the screening process when the competency certificate is applied for.
Ms Proudlock said that a provision should be added to the Bill for this. It could be simply done by a required phone call or some sort of contact and of course it would be done in strict confidence.
A committee member agreed that the police are under tremendous stress and suggested that a clause be added to the Bill to address ways of dealing with this such as counseling and/or psychological testing.
Ms Proudlock replied that they were only asking that the police stick to objective criteria to ensure that policemen with records do not get a gun. Currently, the criteria are purely subjective. There needs to be more scrutiny for this very reason. Additionally, she agreed that counseling was very necessary, however, that would best provided for in the SAPS Act not this Bill.
The Chair responded to Ms Seedat's request that the Committee influence the Bill on these issues by asking what the organizations thought would be the most useful way the Committee could influence the Bill? She herself suggested that the Committee draw up a document supporting these recommendations on the Bill and submit it to the Portfolio Committee on Safety and Security. The Committee could also table this and ask for a short debate in Parliament.
These organizations agreed that a snap debate would be a good idea, especially because the Bill is due for finalisation the following Friday. The main concern is that the issues that have not been included in the summary of submissions (put together by the police drafting team) will not be referenced in the Bill discussions and final vote.
A suggestion was made by Dr J Benjamin that members of this Committee sit in on the deliberation on the Bill.
The Chair said that this might be a problem as members were very busy. She said that she would try to organise a snap debate but this may be difficult to do, because of Parliament's current strict deadlines.
Status of other gender-relevant legislation
The Deputy Minister, Ms Cheryl Gillward, and her team attended the meeting to brief the Committee on the status of key pieces of gender-relevant legislation [Succession in Customary Law, Sexual Offences legislation, the Maintenance Act, Equality Bill, and the Domestic Violence Act.] Ms Joyce Maluleke, Director of Justice's Gender Directorate, made the following points:
- Succession in Customary Law: There has been a consultation process since 1998. The Bill is to be finalised on 22 September 2000.
-There are two discussion papers going around on the Sexual Offences legislation. One is on substantive law and the other is on process and procedure (victims rights and secondary victimization issues).
-The Maintenance Act came into effect last November.
-The Equality legislation was passed in February 2000 and its Regulations will be made available in October. She said that hopefully it would be implemented by 31 March 2001. However, training is currently on the go.
- The Domestic Violence Act went into effect in December 1999. The Domestic Violence Act has broadened the scope of services offered, but the amount of people needed in order to provide these services has not grown. Currently, after hour services (for domestic violence interim orders) are being provided, however, there is no money to pay people overtime, thus not many people will work. Additionally, the infrastructure of the building is not conducive to providing women-friendly services. She said that the Act is fully implemented, but the lack of funding for it is a huge problem.
Implementation of Legislation
The Deputy Minister, in her address to the Committee, highlighted issues regarding Departmental funding and overall resources, implementation time frames and pilot programmes She made the following points:
- The Department of Justice is clearly under pressure. It is on a shoestring budget and the new legislation is putting a big strain on its resources.
- The Maintenance Act has added to the courts' burden .
- The Department is working on three pilot projects related to Maintenance Act. The programs will address the historical problem with the Sheriffs. There will be a training program for Specialised Maintenance Officers (this will be in a rural area) and Maintenance Investigators (this will be an ad hoc program, with paralegals and volunteers). Additionally, there will be an Outsourcing Program to assess whether outsourcing the maintenance officer function would be more efficient and cost effective.
-The training program for the Sheriffs has nearly been approved and the Department is trying to identify and target the areas of specific need.
- Transformation has to be incremental and funding is definitely an overall problem. However, the Department is very committed to improving their services.
- The criticism of the pace of this Ministry is understandable, however, consultation on the sexual offences legislation is a must.
- The consultative process is very inclusive and broad in scope, but very qualitative.
- She called the court management system a "dinosaur."
- Additionally, they are trying to sort out funds specifically for gender issues and poverty. This they consider an absolute priority.
- This transformation of the Department is a three-year process that is in its first year.
- She asked for support from the Committee with regard to these issues.
Mr Ntuli (ANC) asked the Deputy Minister how involved are the non-governmental organisations in the implementation process. He noted that he had been told that the NGOs were not wanted, but they are more than willing to help.
The Deputy Minister responded that it is the Department's policy to work jointly with the NGOs, but the NGOs have a different focus. As a result they come to the Department on their own when ready. She said that although the Dept. could be more innovative, it is not only up to them to deal with this relationship. The NGOs need to reach out to the hard-to-reach areas and do some self examination. Again, she stressed that they welcome joint ventures with NGOs.
The Chair asked the following questions:
- Regarding the consultation process for the Succession in Customary Law Bill, have rural women also been consulted and not just traditional leaders?
- When will the Sexual Offences Bill come before Parliament? The South African Law Commission tabled a draft bill in 1999 and now it is almost 2001. What is happening?
-To what extent is there inter-ministerial and inter-governmental cohesion?
- What's the total amount of the present budget for Justice?
- Which departments have bigger budgets so we can evaluate this as a Committee?
- What percentage of the budget is going into training?
Due to time constraints, the Chair asked the Deputy Minister if she would provide answers to these questions in writing.
Banks Amendment Bill
Ms Michelle O' Sullivan of the Women's Legal Centre briefed the Committee on the implication of amending the Banks Amendment Bill to make the Bill more gender sensitive. The suggestions given would be in line with the constitutional imperative not to discriminate unfairly on the basis of sex or gender. The options were outlined:
- Amend only the current Bill (B56-2000) and not the principal Act to be gender sensitive. In line with previous legislation considered and amended by the Portfolio Committee on Finance, this will involve drafting the Bill in a gender-neutral manner by using the word person or by using both genders. The clauses of the principal Act, where "chairman," "he" or "him" are used, will remain and a correct interpretation of the Act, using the Interpretation Act, will mean that these terms are interpreted to include women as well as men.
- Amend the Bill to be gender-sensitive and include further amendments in the Bill to replace all the non-gender sensitive terms in the original Banking Act with gender sensitive terms.
The meeting was adjourned.
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