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SAFETY AND SECURITY PORTFOLIO COMMITTEE
13 May 1998
MULTI-LATERAL AGREEMENT REGARDING CO-OPERATION AND MUTUAL ASSISTANCE IN CRIME COMBATING: BRIEFING BY SAPS DEPARTMENT
Present to address the committee were Mr. Hans, who heads SAPS Detective branch, and an individual who heads the Interpol.
V.B. Ndlovu (IFP) asked first whether other countries have indicated an intention of submitting their depositories, and secondly, why Mauritius has not signed the agreement. The department replied that because the process is time consuming, agreement has not yet been procured from other countries. Regarding Mauritius, the country has shown an intention to sign after it has gone through the general document.
N.W. Madikizela-Mandela (ANC) asked whether there are moves by SAPS to involve international agreements since crime syndicates usually have far larger links than the Southern African region. The response was that Interpol has a direct link from Harare to South Africa and therefore it will likely develop other international connections. The structures in place to operationalise this agreement include: international police organization membership since 1993; connections to Interpol headquarters in France; sophisticated e-mail system for constant link; Interpol facilities to assist investigations for every member of SARPPCO; Interpol’s database to identify modus operandi, persons and make-up of crime syndicates (SA Interpol can give member states information in 18 seconds).
It response to the query how Interpol can be more useful, Interpol depends operationally on individual state police structures and hence, do not actually do arrests. They only gather information and forward it to concerned states.
Questions were posed about states and/or police officials who violate the terms of the agreement. It was answered that states that violate terms of the agreement are addressed under Article 4, paragraph 5 of the agreement and officials who act criminally will be treated as criminals.
A committee member asked whether the agreement is functioning in the McBride case; the reply was that the agreement has yet to be signed but that other plans are in effect. It was then asked what would happen with the officer who interviewed McBride and Mbatha and later released a media publication. The department replied that it would apply appropriate sanctions against the officer and that it has already applied sanctions by Mr. Lavisa via a police signal.
The chairperson indicated that this issue was a deviation from the agreement and stated that the discussion should be specific to the agreement. A member noted that since South Africa will sign the agreement, it needs to use this example to verify what will happen to citizens concerned.
A member asked about the other African states that are not member countries of SARPPCO. The reply was that states do not have to be, for example, Kenya, Congo and Uganda have asked for observer status. SARPPCO is an association of police chiefs and not an intergovernmental organisation. Hence, countries interested in joining can indicate so and will be gladly welcomed.
It was indicated that the IFP suggests that a categorical clause be attached to the agreement that "every person be presumed innocent until proven guilty" as the South African Constitution presumes. The chairperson stated that the proposal is that in terms of §231 of the Constitution, the agreement should be adopted and later tabled before the House for ratification.
WEDNESDAY 13 MAY 1998
BRIEFING TO THE PORTFOLIO COMMITTEE FOR SAFETY AND SECURITY IN RESPECT OF THE MULTI-LATERAL AGREEMENT IN RESPECT OF CO-OPERATION AND MUTUAL ASSISTANCE IN THE FIELD OF CRIME COMBATING
Following the establishment of the Southern African Regional Police Chiefs Co-operation Organization (SARPCCO) in August 1995, a Legal Sub-committee was appointed to consider the possibility of a multilateral agreement between the member States in order to lay a firm foundation for police co-operation in the region.
SARPCCO comprises the Chiefs of Police of Angola, Botswana, Lesotho, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe, the majority of which were represented on the Legal Sub-committee.
Following in-depth discussions and negotiations, a multi-lateral Agreement in respect of co-operation and mutual assistance in the field of crime combating was eventually finalized and signed on 1 October 1997, by the responsible Ministers at the official opening of the Interpol Sub-regional Bureau in Harare. With the exception of Mauritius, which has only recently become a member of SARPCCO, the Agreement was signed on behalf o fall the respective Governments.
Although the Agreement was only open for signature by SARPCCO members' countries, any other State may, subject to acceptance of the Parties, accede to the Agreement.
Due to the central role which the Interpol Sub-regional Bureau plays in law enforcement in the Region, the Bureau has been appointed as the Depository, and will administer the Agreement and receive all instruments of ratification and access ion.
The Agreement will enter into force upon the deposit of instruments of ratification by seven countries, and I have been informed that the first instrument of ratification has already been deposited by the Republic of Botswana. It is expected that the other countries will deposit their instruments o ratification in the near future.
In terms of the Agreement, a police official of a Party may enter into, be present in or travel through or across the territory of another for the purpose of a police investigation, the tracing and questioning of witnesses and the co-operation and assistance contemplated in the Agreement.
This right of entry is very specific that it shall be exercised, subject to the domestic-law of the hosting country, and that a foreign police officer has no police powers in that country. Under no circumstances, may a visiting police official act on his or her own and he or she shall at all times, be accompanied by a member of the hosting police service. All actions to be taken, shall be taken by the hosting police official, in
circumstances where he or she is legally empowered to do so. Accordingly, this right will not infringe upon the sovereignty of a State. In terms of the Agreement, each Party shall appoint a central office to transmit and receive requests in terms of the Agreement. Prior to entering the territory of the other, a police official will be required to obtain the approval of the official in charge of his or her central office. It has been agreed that the respective National Interpol offices will serve as the central office referred to in the Agreement.
This official will then liase with his or her counterpart in the country the police official intends to visit, who will, in turn, make the necessary arrangements for entry and for assistance to be afforded.
The Agreement, furthermore provides for:
(a) the exchange of crime related information;
(b) joint operations;
(c) co-operation in respect of border control and follow up operations;
(d) the controlled delivery of illegal substances and objects, and
(e) technical assistance and expertise.
In addition to the above, the Agreement provides for assistance to be afforded in having stolen property returned to its lawful owner.
In terms of the Agreement, the Parties shall render all reasonable advice, support or assistance in respect of the training of its officials, the improvement and development of its organization as well as the promotion of its expertise with regard to the performance of police functions.
Any expenses incurred by a Party as a result of a request in terms of this agreement shall, save in as far as the Parties may otherwise agree, be reimbursed by the other Party.
In general the Agreement is not designed to amend or in any way affect the domestic legislation of Parties, but is designed to create a structure and framework through which the police services in the region can co-operate on a uniform basis.
It is submitted that the conclusion of the Agreement is of great significance to South Africa and the Southern African Region, in that it not only creates a legal framework and uniform structure for enhanced co-operation, but most importantly, bears testimony to each countries commitment to combat crime on a regional basis. Through this commitment to mutual assistance and co-operation, a strong message is being sent that Southern Africa is intolerant of crime and that the relative safety that international borders could supply to criminals, no longer exist. No longer will police investigations be frustrated by international boundaries, as the Regions Police Services are committed to co-operation and combating crime on a regional basis.
It is therefor recommended that the Committee recommend the approval of the Agreement.
MULTI-LATERAL AGREEMENT IN RESPECT OF CO-OPERATION AND
MUTUAL ASSISTANCE IN THE FIELD OF CRIME COMBATING
The above agreement has been negotiated in the Southern African Regional Police Chiefs Co-operation Organisation (SARPCCO). The following countries' police chiefs are represented in SARPCCO: Angola, Botswana, the Kingdom of Lesotho, Malawi, Mozambique, Namibia, South Africa, the Kingdom of Swaziland, the United Republic of Tanzania, the Republic of Zambia and the Republic of Zimbabwe. The Police Chief of Mauritius has also joined the organization recently.
The Co-operation agreement has been signed on behalf of the respective governments in Harare on October 1997. Only Mauritius did not sign the Agreement, but has already indicated that the Agreement will he signed.
The Agreement addresses matters such as the right of entry of police officials to the respective countries. In this respect it should be mentioned that the right of entry, presence and travelling shall be exercised subject to the municipal laws of the hosting state.
Functions such as search, seizure, arrest, detaining and tracing of suspects will be exercised by the police officials of the hosting country.
Specific areas of co-operation addressed by the agreement are:
* The exchange of crime related information on a regular basis.
* The planning, co-ordination, and execution of joint operations including undercover operations.
* Co-operation in respect of border-control and crime prevention in border areas as well as in respect of follow - up operations.
* The controlled delivering of illegal substances or any other objects.
* Technical assistance and expertise where the same are required.
The Agreement lays a foundation for joint operations to combat organized crime, especially vehicle theft, drug and fire-arms crimes in the whole Southern African region from South Africa to the Northern borders of Tanzania, Zambia and Angola.
In terms of the Agreement, it has to be ratified by the respective countries, and in terms of section 23] (2) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), the ratification there of has to be approved by Parliament.
PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA
Draft resolution (Minister for Safely and Security) : That the ratification of the Agreement in respect of co-operation and mutual assistance in the field of crime combating, signed on 1 October 1997 for and on behalf of the Governments of Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe be approved in terms of section 231(2) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996).
PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA
NATIONAL COUNCIL OF PROVINCES
Draft resolution (Minister for Safety and Security) That the ratification of the Agreement in respect of co-operation and mutual assistance in the field of crime combating, signed on 1 October 1997 for and on behalf of the Governments of Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe be approved in terms of section 231(2) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996).
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