Prohibition of Mercenary Activities & Prohibition & Regulation of Certain Activities in an Area of Armed Conflict Bill [B42-2005]

DEFENCE PORTFOLIO COMMITTEE
3 August 2006
PROHIBITION OF MERCENARY ACTIVITIES AND PROHIBITION AND REGULATION OF CERTAIN ACTIVITIES IN AN AREA OF ARMED CONFLICT BILL [B42-2005]: DELIBERATIONS

Chairperson:  Ms T Tobias (ANC)

Documents handed out:
Ms Raenette Taljaard: Submission on Prohibition of Mercenary Activities and Prohibition and Regulation of Certain Activities in Areas of Armed Conflict Bill
Prohibition of Mercenary Activities and Prohibition and Regulation of Certain Activities in Areas of Armed Conflict Bill [B42-2005]
 
SUMMARY
After making technical changes to the Prohibition of Mercenary Activities and Prohibition and Regulation of Certain Activities in Areas of Armed Conflict Bill, the Committee listened to a submission by the Bill. The Committee discussed the foreign enlistment of South Africans in countries such as the United States or the United Kingdom, and whether it would be unconstitutional to prohibit such activity in terms of the freedom of trade, occupation and profression clause in the Constitution.

MINUTES
The Committee made technical changes to clauses in the Bill including Clauses 2 to 9 and 11.

Submission on Bill by Raenette Taljaard 
Ms R Taljaard (Director: Helen Suzman Foundation; ) presented her concerns about the Bill. These included comments about the definition of security services and its consequent regulation; the possible retrospectivity of foreign enlistment, extraterritoriality and constitutionality, the processes and procedures for authorisation and the notification of Parliament and its role in these processes (see submission).

Discussion
Mr R Jankielsohn (DA) noted certain changes to the Bill that he had been unaware of as being being approved. Those changes had not been discussed in the Committee’s meeting the day before.

The Chairperson replied that the changes had indeed been agreed upon, and that while they could discuss this further, these had been agreed upon in the previous meeting. She suggested coming back to the enlistment issue at a later time.

Ms Taljaard advised that concerns remained on the issue of criteria and extraterritoriality. She suggested that perhaps there should be negotiations.

Mr S Ntuli (ANC) commented that the State invested resources in people who later left to serve elsewhere. They should be patriotic to their country.

Mr H Schmidt (DA) pointed out that South Africans had the right of freedom of choice of occupation such as a career in the military.  White South Africans found that affirmative action limited their access to careers in the civil service. If South Africans were limited in South Africa, they would find work elsewhere, such as other military forces.

Mr O Monareng (ANC) commented that foreign enlistment, such as South Africans serving in a Commonwealth country, might lead to the old ways of colonialism when South Africa was a part of the Commonwealth. He did not know how many South Africans were enlisted with foreign forces such as with the United Kingdom or the United States, but hoped that the issue could be handled diplomatically

Mr P Groenewald (FF+) questioned whether the Committee distinguished between South Africans who trained in South Africa and then enlisted abroad, and others who received military training overseas. He questioned whether the government had the right to say that they could not take up jobs elsewhere.  He urged the Committee to look at whether the legislation was unconstitutional.

The Chairperson said that the Committee was already in the process of answering that question, but because Mr Groenewald had been tardy, he had missed that portion of the meeting.  She then moved on from the topic of foreign enlistment saying that the Committee could not spend the entire meeting on that point alone.

Ms Taljaard (Director of the Helen Suzman Foundation) was concerned about constructing a credible regulatory framework on the issue.  She urged debate in order to provide some conceptual clarity and avoid ambiguity. She proposed debate in order to answer the constitutionality question.

The Chairperson stated that international law had ambiguities in terms of enlistment and that members were looking at the issue permissively. There was a need for control and regulation.

Ms Taljaard again noted that there was a constitutional question to answer.

Mr S Njikelana commented that the Committee had already dealt with the issue of extraterritoriality. All the safety mechanisms were there to ensure that nobody was criminalised.

The Chairperson stated that this was a regulative measure not a pre-emptive one. And it still provides for administrative justice.

The meeting adjourned.