Regulation of Foreign Military Assistance Bill [B54 -97]: adoption

SECURITY AND JUSTICE SELECT COMMITTEE
26 March 1998
REGULATION OF FOREIGN MILITARY ASSISTANCE BILL [B54-97]

The following items were on the meeting’s agenda but were postponed for the next session: reports on overseas trips; and reports on gang violence in the Western Cape. The Regulation of Foreign Military Assistance Bill [B54-97] was discussed and a party vote was taken on each clause and the Bill was passed.

There was some discussion of the bill's wording, particularly with the definition of "person" which appears to limit jurisdiction. The ANC supported passage of the bill, proposing that since the major objectives had been covered, the bill should be accepted as is with an accompanying memorandum approving later amendments. The Democratic Party and the Freedom Front expressed concern at the committee’s hastiness to pass the Bill. The National Party requested a postponement of the voting until the following Monday. The committee adjourned for a short break so that the State Legal Advisor, Advocate De Jong, could consult with the Department. The meeting resumed and Advocate De Jong indicated the Department’s approval of a memorandum to accompany the bill indicating the need to amend certain clauses later (see Committee report below).

A majority of the committee determined that the bill should be voted on:
The Preamble was objected to only by the DP and FF.
Clause 1 was accepted by all but the DP and FF.
Clauses 2, 3, 4, 5, 6, 7 and 10 were accepted by all.
Clauses 8 and 9 were objected to by the DP and FF.
On the Bill as whole, the DP and FF objected.
On the memorandum accompanying the passed Bill, only the DP and FF objected.

The Committee Report in the Announcements, Tablings, Committee Reports of Parliament of Monday, 30 March 1998 stated the following:
Report of the Select Committee on Security and Justice on the Regulation of Foreign Military Assistance Bill [B 54B 97] (National Assembly-sec 75), dated 26 March 1998, as follows:

The Select Committee on Security and Justice, having considered the subject of the Regulation of Foreign Military Assistance Bill [B 54B-97] (National Assembly sec 75), referred to it, reports that it has agreed to the Bill.

The Committee, however, expressed a number of reservations regarding certain Clauses of the Bill, but in an endeavour not to delay the process, on the advise of the National Convention Arms Control Committee, has passed the Bill.

The Committee is of the opinion that attention must be given to the above Clauses in the near future in order to eliminate the following problems identified:

1. The Preamble of the Bill limits the operation of the Bill to preclude any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in the Constitution or national legislation".

The Committee unanimously believes that the net of this Bill should be cast also to include foreign citizens who conduct, or participate in, armed conflict within our borders, except as provided for in the Constitution or national legislation.

2. The Committee is of the view that the definition of "person" in Clause 1, read with Clause 8, limits the operation of the legislation to South African natural and juristic persons only. This, in the Committee's view, creates a legal-technical problem which may be exploited by foreigners who wish to conduct armed conflict on South African soil. It is the belief of the Committee that it was never the intention, in terms of policy or otherwise, for such a lacuna to be created in this Bill. The Committee therefore recommends that urgent attention be given to this issue, which may cause problems in future.

3. The Committee is aware that South Africa is a party to international treaties and conventions which govern the manner in which citizens of foreign countries are dealt with within our borders and the manner in which South African
citizens are dealt with within the borders of foreign countries. We do not, however, believe that any treaty, convention or protocol would have the result of curtailing our ability to deal with foreign citizens conducting armed conflict or providing foreign military assistance within our borders.

4. The Committee further believes that the immediate substantial mischief of South African companies or persons providing foreign military assistance will be prevented by this legislation, and has therefore agreed to the Bill.

5. Should the National Conventional Arms Control Committee agree with the Committee's view that this Bill requires amendment, the memorandum to the Bill will also have to be adapted by adding the following to paragraph 1:
and which would preclude any foreign citizen from engaging in armed conflict within our borders, except as provided for in terms of the Constitution or national legislation.

Paragraphs 3, 4 and 7 of the memorandum will also have to be adapted accordingly.