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PORTFOLIO COMMITTEE ON DEFENCE
DELIBERATIONS ON THE REGULATION OF FOREIGN MILITARY ASSISTANCE BILL (B54-97)
9 FEBRUARY 1998
The meeting consisted of a clause-by-clause discussion of and voting on the proposed amendments to this Bill compiled by the Directorate Conventional Arms Control. These amendments address the issues raised during the previous meetings of the Portfolio Committee.
Mr F Marais, director of Conventional Arms Control Directorate, outlined the summary of amendments.
Mr P Groenewald suggested that the Freedom Front's proposed amendment to definition 1(iii) be accepted. Mr Marais replied that the government accepts that the definition of "mercenary" needs tightening. He proposed that paragraph 1(iii) (a) be deleted and replaced by the department's proposed amendment. Mr T Yengeni proposed acceptance on behalf of the ANC. This has been added directly after clause 1 and so clause 1 (iii) (a) will be deleted.
In answer to questions, Mr Marais said that this definition was more focused and less complex than the UN definition and consequently enforceable under South African law.
Mr H Fazzie (ANC) wanted the addition of "indirect" engagement in mercenary activities. Mr Marais felt it was already covered in s 1 (iii) and the committee agreed.
Mr T Yengeni questioned what deemed an organisation "bona fide". Mr Marais replied that the onus is on the organisation itself to determine whether the Act will apply to it or not (and avoid prosecution).
Mr N Gogotya (NP) said problems ensued where a bona fide group assists one faction of the conflict thus not relieving the plight of all civilians. Mr Wynne (departmental legal adviser) stated that in such cases, authorisation from the ministry would be necessary.
Mr P Groenewald (FF) questioned the difference between civilian and military assistance. For example, a rebel military group could be a civilian group that fights. Mr Marais stated that this must be determined in terms of the legal definition whether or not a group is combatant. This discussion was postponed.
Clause 2 was informally accepted.
A new proposal (replacing the proposed amendment ) for Clause 3 (3) was informally accepted. This being:
3 (3) (i) The Minister, in consultation with the Committee, may grant or refuse an application for approval referred to in subsection (2).
(ii) The Minister, in consultation with the Committee, may withdraw or amend an authorisation.
Mr Marais suggested inserting: prescribed "nominal" fee into Clause 3 (5) in order to cover administrative costs only and to prevent extra charging. The wording is to be re-organised by Mr Wynne and Mr Marais.
The amendment in Clause 5 (2) was accepted.
With regard to Clause 6 (1)(d) Mr P Groenewald (FF) wanted to know what constituted terrorism. Mr Wynne replied that the definition was covered in other statutes and in the UN Declaration.
There was general consensus that in Clause 7 mention should be made that fixed assets can be forfeited. This clause will be reworded to include fixed assets.
The amendments to Clause 9 and 10 were accepted.
There was a proposal by the National Party that the approval/rejection of clauses will be made in a short meeting later in the week once all the amendments have been clearly worded and typed up.
In answer to the query - is this Bill to ban mercenary activities or regulate military assistance - Mr Marais stated that this Act will regulate military assistance that is not purely mercenary. It puts the government into a position where it has to be responsible for South African activities outside its borders (for example, South African expertise used to train others).
Directorate Conventional Arms Control
6 February 1998
To Chairperson (NCACC)
From: F. Marais (DCAC)
SUBJECT: FOREIGN MILITARY ASSISTANCE BILL
1. The Cabinet approved the FMA Bill in April 1997.
2. The Bill was introduced to the Portfolio Committee by the Chairperson NCACC in August 1997.
3. The Portfolio Committee received submissions from the following organisations in August 1997:
The Ceasefire Campaign
Human Rights Committee of South Africa
Institute for Security Studies
Centre for Conflict Resolution
University of the Witwatersrand
Group for Environmental Monitoring
Urban Survival Academy
4. In summary the points made by the representative include the following:
SA should ratify / accede to the UN International Convention against the
Recruitment, Use Financing and Training of Mercenaries, also the OAU
Convention for the Elimination of Mercenarism in Africa. Any laws passed by
Parliament would therefore not be in conflict with obligations required by International Law.
The Government must decide whether Foreign Military Assistance may be performed by private organisations and / or Government Institutions in foreign countries. (Argument in favour of both cases submitted)
The Non-statutory status / authority of the NCACC as a regulatory body for Foreign Military Assistance is problematic.
Dissatisfaction with the present oversight / disclosure proposals, ie "register".
A Parliamentary / Portfolio Committee oversight is required (as per Cameron Commission proposal).
The Mm of Defence's authority to overrule the NCACC is not a satisfactory arrangement.
The Definition of Foreign Military Assistance should be amended to specifically prohibit / ban mercenary activity while clearly exempting other NGO / civilian humanitarian / non-military related activities.
The definition of Foreign Military Assistance does not adequately deal with its content. A narrower definition is required.
The Bill leaves the door open for the NCACC to sanction mercenary activities.
The Bill fails to discriminate between legitimate humanitarian and mercenary activities.
5. At a meeting in Oct 97 between Adv Kuzwayo (Def Sec), Mr A Stemmet (DFA), Mr H Radebe (SASS) and F. Marais (DCAC) the above proposals were considered against the purpose of the Bill as proposed by the Chair NCACC.
6. The amendments below address the issues raised during the previous meetings of the Portfolio Committee while retaining the basic concept of the Bill as proposed by the Chairperson.
7. The following amendments have been inserted into the Bill (in italics):
a. Ad clause 1 (iii) thereof:
The following sub-paragraph is inserted:
(e) Action aimed at overthrowing a government or undermining the
Constitutional order; sovereignty or territorial integrity of a state.
b. Ad clause 1(iii) thereof:
The following paragraph is added after the new sub-paragraph (e), but before clause 1(iv):
but excluding bona fide humanitarian and civilian activities aimed at relieving the plight of civilians in an area of armed conflict.
Ad clause 3(3) and 4(3) thereof:
The entire sub-clause has been deleted, and substituted with the following sub-clause:
The Minister; in consultation with the Committee, may grant, refuse, withdraw or amend an application for approval referred to in subsection (2), subject to such conditions as the Minister may determine.
d. Ad clause 5(2) thereof
The phrase "the Portfolio Committee on Defence of the National Assembly" has been deleted, and substituted with the following:-
e. Ad clause 6(2) thereof:
The following sentence is inserted after this clause:
The Minister shall furnish the reasons within a reasonable time.
f. Ad clause 7 thereof
(i) It is recommended that the fines and imprisonment prescribed in the Bill are too lenient if one considers the proceeds gained and destruction attendant to such activities. It was thus felt that sentences should be imposed at the discretion of the court, taking into account the surrounding circumstances in which the offences were committed. It has also been suggested by a Member of Parliament at the Portfolio Committee that a
clause on forfeiture of property should also be inserted.
(ii) Thus, the present clause 7 has been converted to clause 7(l), and the phrase "exceeding one million rands or to imprisonment for a period not exceeding ten years", has been deleted and the following phrase is substituted:
or to imprisonment...
(iii) The following new sub-clause (2) is inserted:
(2) Subject to the provisions of any other law contained, a court which convicts a person of an offence under this section may declare any weapon, instrument or other article by means whereof the offence under this Act was committed or which was used in the commission of the offence, or any proceeds of the crime, forfeited to the state.
g. Ad clause 9 thereof:
The phrase "acting upon the recommendations of" has been deleted and substituted with the following phrase:
in consultation with...
Ad clause 10 thereof:
The phrase "acting upon the recommendations of the Committee, may except any natural person or category of natural persons" has been deleted and substituted with the following phrase:
in consultation with the Committee, may exempt any person...
8. The above proposed amendments address many, but not all of the issues raised in the submissions. In essence the definitions remained unchanged but have been expanded to embrace some of the proposals
9 The Portfolio Committee is meeting on 9 Feb to discuss these amendments against those proposed by the other parties.
DIRECTOR CONVENTIONAL ARMS CONTROL
REGULATION OF FOREIGN MILITARY ASSISTANCE BILL, 1998
Add new section:
Prohibition on mercenary activity
No person may within the Republic or elsewhere recruit, use, train, finance or engage in mercenary activity.
Add under Definitions
"Mercenary activity" means direct participation as a combatant in armed conflict for private gain.
Delete from Definitions:
"direct combative participation in armed conflict" [Section 1 (iii)(a)]
The effect of the above amendments is to prohibit mercenary activity (i.e. 'direct combative participation in armed conflict "), with no possibility of government authorisation for such activity.
The Bill already defines "armed conflict" [Section (i) and "person" [Section 1 (v)].
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