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DEFENCE PORTFOLIO COMMITTEE DEFENCE PORTFOLIO COMMITTEE 24 May 2006 PROHIBITION OF MERCENARY ACTIVITIES AND REGULATION OF ACTIVITIES IN ARMED CONFLICT BILL: HEARINGS Chairperson: Ms T Tobias (ANC) Document handed out: Submission by Safenet Group Prohibition of Mercenary Activities and Regulation of Activities in Armed Conflict Bill SUMMARY The Committee heard submissions on the Bill. It was submitted that the Bill would not pass constitutional muster for a number of reasons. These included that it unfairly limited the rights to freedom of trade, profession and property. The extraterritorial application of the Bill would raise a number of problems since it could criminalise activities that were not criminal in the country in which they were performed. Some of the definitions used in the Bill were too vague and broad. The Bill should only criminalise acts of a serious nature. Criminal law had no role in prohibiting beneficial acts that were essential to the reconstruction and protection of human rights. The drafters of the Bill should revert to the scope of the Regulation of Foreign Military Assistance Act, No. 15 of 1998. There was nothing in law or international instruments that could help the Committee to decide in favour of criminalising activities other than criminal activities. Issues raised by the Committee included the following: - Whether the security industry should be left alone to conduct its business without let or hindrance. - What was the nature of Safenet's business, where it came from, its role players and what was the nature of its interest in the Bill? - Whether Safenet agreed with the objects of the Bill. - How Safenet interpreted or understood Section 22 of the Constitution. MINUTES The Chairperson welcomed everybody to the meeting. She invited the Safenet Group to make its submission. Adv M du Plessis (Legal Advisor to Safenet) made the presentation. (See Document Attached). He said that there was nothing in the Constitution or international law that could assist the Committee in deciding in favour of the Bill. Safenet had a problem with the extra territorial application of the Bill. The Bill gave insufficient guidance to the National Conventional Arms Control Committee regarding prohibition and regulation of security services. The definition of the term "armed conflict" was very vague. The term "a party to an armed conflict" was the gateway to this Bill. Certain services were prohibited if they were provided to a party to an armed conflict. The concept 'being able to fight against oppression' was deeply in conflict with international law. The Bill seemed to allow South African authorities to ostensibly promote or encourage people to go abroad to fight in some rebellion against oppression or colonialism. In the Nicaragua decision, the International Court of Justice had clearly stated that such type of force was unlawful in international law. The Constitutional Court had negatively reacted to the absence of guidance in the exercise of discretionary power. The Bill would seriously impact on an individual’s rights to choose and practice his or her trade and the right to property as entrenched in the Constitution. Adv du Plessis said that the Bill should only criminalise acts of a serious nature. Criminal law had no role in prohibiting beneficial acts that were essential to the reconstruction and protection of human rights. The drafters of the Bill should revert to the scope of the Regulation of Foreign Military Assistance Act, No. 15 of 1998. In addition to a prohibition of the rendering of military activities, the Act was limited to prohibiting the rendering of military assistance to a party in armed conflict. This was as far as the current Bill had to go. The Bill should refer to particular international instruments that it sought to reflect. The extraterritorial nature of the Bill should be revised. Clause 11 should be revised and at the minimum, Clause 11(2) should be deleted. The existing Section 9 of the Regulation of Foreign Military Assistance Act provided a good example of an internationally acceptable formulation. Discussion Mr R Sayedali-Shah (DA) said that people should focus on solutions to the problem. He asked if the presenter was suggesting that the security industry should be left alone to conduct its business without let or hindrance. Adv du Plessis replied that the Committee had every reason to criminalise mercenary activities. There was nothing in the Constitution or international law that could justify the decision to criminalise activities other than mercenary activities. Safenet had no objections to the regulation of the security industry. There was no suggestion that the industry should not be regulated at all. Regulation should be done in a way that was constitutionally fair and after consultation with all stakeholders. Mr O Monareng (ANC) concurred with Mr Shah. The Committee had heard the argument that the Bill would be unconstitutional if passed in its current form. The intention of the Bill was to prohibit mercenary activities. Safenet should take time to concentrate on whether it was correct to regulate the movements of private security companies. The Committee represented a democratic institution. It would, in dealing with the Bill, have to refer to the Constitution and international instruments. It was the last Committee that would victimize the citizens of this country. The assumption and allegation that the Bill was unconstitutional should be explained given the historical past of the country. It seemed that there was a suggestion that the Bill was partisan and favoured those in power. This was a problem. The Regulation of Foreign Military Assistance Act had flaws and the intention was to move away from it. This Bill would repeal it. In the past, private security companies had military connections with the government. They were involved in clandestine activities across the borders of the country. Most of the security companies that had left the country were those who believed in the past and were disgruntled. Some people had decided to join private security companies because they did not like the application of affirmative action in some sectors of the government. The law should prohibit mercenary activities and regulate the movement of people. Adv du Plessis replied that that Safenet was not being critical due to ideological opposition to the government. Safenet was critical because it had briefed independent Advocates to advise on the constitutionality of the Bill. He said that he was a practising Advocate and was not interested in the ideological or political reasons behind the Bill. His concern was whether the Bill would pass constitutional muster. The Committee should refer to the Constitution and international instruments when dealing with the Bill. There was nothing in law or international instruments that could help the Committee to decide in favour of criminalising activities other than criminal activities. There was no suggestion that the Committee or government should not regulate the industry. Safenet had no principled objection to the regulation of the private security industry. The regulation of the industry should be constitutional and done after proper consultation with the stakeholders. The Safenet Group would welcome an attempt to sit down and see how best to regulate the industry. He said that it was interesting that the Member seemed to suggest that there were ideological reasons behind the Bill. Such reasons seemed to have been related to the problem of apartheid and old order personnel working abroad. The Bill would be suspect to challenge if it was indeed inspired by ideological reasons. It would not be constitutional to use the Bill to chase after certain sectors of the population when they were performing constitutionally acceptable services. It would have been different if one was saying that the old older personnel were performing unconstitutional and internationally unlawful services. He agreed with the need to control the movement of people who were working outside the country. One way of doing this was to have a register of every company that did work outside the country. The companies could be required to disclose the identities of South Africans who were working abroad. The industry should be part of the process should the Committee decide to go this route. Some of the authorisation criteria in Clause 9 were too broad and lacking in guidance that the potential existed for a Committee to sit and say it had no objective reasons for refusing authorisation but would refuse authorisation for political or ideological reasons. This would create problems. Who would be required to apply for authorisation? Would it be the individual who would be going to perform certain services or the employer? Would the Committee have the power to say to a company that it had heard that the company was involved in certain activities and therefore it should make an application in order to be able continue with the activities? One could only be prosecuted and found guilty if the necessary mens rea was found to exist at the time of engaging in the activity. One would be acquitted if he did not think that his activities would create regional instability. The Committee should decide whether to go broad and close loopholes. The Committee could only close loopholes in a constitutional manner. Adv du Plessis replied that the submission had proposed some solutions. The fact that the Committee had heard different organisations raising issues with the constitutionality of the Bill suggested that there was something that the Committee had to look into. It seemed that there was a recurrent theme or trend. The Committee had a duty to give regard to the complaints. It was not so much a case of looking at solutions by tinkering with the Bill but asking if the Bill could get off the ground. He was very happy to assist the Committee with solutions. The Bill should be sent back to the Department for redrafting. There were two choices: at a political level, one could say that the Bill should be passed and therefore the Committee should do its best to remedy the defects. The second choice was to send the Bill back to the Department for redrafting taking the complaints of stakeholders into consideration. The second option was preferable. Mr G Koornhof (ANC) said that it would have benefited him had the presenter introduced the company to the Committee. It would be preferable to know the nature of its business, where it came from, its role players and the nature of interest in the Bill. It was not clear if the company agreed with the objects of the Bill. The gist of the presentation was that the Bill would be unconstitutional if passed in its current state. He asked the State Law Advisor to comment on the constitutionality of the Bill. Adv du Plessis replied that Safenet was a collection of South African private security companies. It performed security work around the country. Safenet should not be understood to be against the Bill. It fully supported the objects of the Bill as far as they were related to combating mercenary activities. The prohibition on other activities raised a number of challenges. Mr Shah noted the argument that the Bill would be in conflict with Section 22 of the Constitution. Section 22 provided that every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law. He asked for the presenter's interpretation and understanding of this section of the Constitution. How did the Bill violate the principles of the Constitution? Adv Du Plessis agreed that Section 22 of the Constitution provided that a profession could be regulated by law. The most important thing was that a profession could only be regulated in a rational and not arbitrary manner. This meant that a law, such as the one under discussion, that empowered a Committee to criminalise a conduct by virtue of vague and open-ended criteria would be unconstitutional because it would amount to an arbitrary regulation of the profession. The Chairperson said that it was submitted that the definition of "armed conflict" was vague. She said that definition was very clear. One would not just wake up and say that there was an armed conflict. The conflict would first have to be proclaimed. The proclamation would be made in accordance with international instruments. The Bill clearly specified activities that it thought to prohibit. The problem was that there were people who thought that the Bill might only look at other activities and not mercenary activities. It had been suggested that the Department should revert to the Regulation of Foreign Military Assistance Act. The Act had many gaps that necessitated the drafting of this Bill. The presenter did not say that the Department should revert to the Act with amendments. Eighty percent of the Bill was around the NCACC. She asked if Safenet was questioning the principles that governed the NCACC. Adv du Plessis replied that armed conflict did not include mob riots, civil disobedience under international law. The definition of 'armed conflict' as contained in the Bill was wide enough to include such acts. The Regulation of Military Assistance Act indeed had gaps. The provision of the Act that dealt with extraterritorial application of the Act was useful. The Act contained a limited extraterritorial application that should be contained in the Bill. There was no suggestion that the Committee should go ‘wholesale’ back to the Act. There were numerous ways in which the Act could be improved. Every person who had been prosecuted for mercenary activities had been prosecuted under that Act. Perhaps the Act was serving its intended purposes and going after the right people. The fact that the prosecuting authority had not been able to get private security and humanitarian workers was not bad. There was no intention to impugn the ability or credibility of the NCACC to do its work. The Committee had a duty to consider whether that Committee could perform its duties under this Bill. One could not be certain that it could do so. Mr S Ntuli (ANC) suggested that people going abroad should meet stipulated requirements so as to avoid criminalisation. The Committee had initially invited everybody to air their views about the Bill Mr P Groenewald (FF) said that nobody was able to stop mercenary activities, likewise illegal firearms. He felt mercenary activities took place under the guise of humanitarian assistance .He asked Adv du Plessis if the Committee should look at loopholes and fix them rather than re-drafting the Bill afresh. Adv du Plessis replied that the current Bill created impediments to an extent that only certain activities were allowed. South African citizens were at risk of having the choice and practice of their profession, a right protected by Section 22 of the Constitution, limited. The acts of ‘assistance’ or ‘service’ were widely defined in the Bill and ought not to be regulated by means of criminal sanction. He added that even if one accepted that government had a legitimate interest in regulating, by criminal means, the acts of assistance or service as defined in the Bill, there was an unconstitutional failure in the Bill to provide guidance to the Committee that was tasked with effectively regulating the proscribed conduct. Chairperson commented that the presentation would be considered by the Committee and assured the Safenet Group that that would not be the final stage of consultation. She said remarked that it was a difficult Bill as it was intending to define mercenary activity. Mr L Nathan (UCT) commented that it was vital to prohibit mercenary activity. He felt there were inappropriate strict provisions regarding security services. The Bill did not identify the problem .He recommended that the words ‘humanitarian help’ be deleted from the Bill. He advised the Committee to consider loopholes and gaps in the Bill rather than re-drafting it. Mr Monareng added that the reason for including the words ‘humanitarian assistance’ in the Bill was to clearly articulate the role players Mr Nathan said there was no problem in regulating humanitarian assistance because if a company lied in the court it would be prosecuted. Mrs Booysen (State Law Advisor in the Department of Justice) said that she had not had enough opportunity to look at the Bill to make a submission but promised to do so if she could be given more time. Under the Bill, the criteria were stipulated clearly and Section 33 of the Constitution mentioned fair administrative action. The chairperson thanked everybody and adjourned the meeting.
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