Prohibition of Mercenary Activities & Regulation of Certain Activities in Countries of Armed Conflict Bill [B42B-2005]: briefing
NCOP Security and Justice
07 September 2006
Meeting Summary
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Meeting report
SECURITY AND CONSTITUTIONAL AFFAIRS SELECT
COMMITTEE
7 September 2006
PROHIBITION OF MERCENARY ACTIVITIES AND REGULATION OF CERTAIN ACTIVITIES IN
COUNTRIES OF ARMED CONFLICT BILL [B42B-2005]: BRIEFING BY DEPARTMENT
Chairperson: Kgoshi L Mokoena (ANC, Limpopo)
Documents handed out
Prohibition of Mercenary
Activities and Regulation of Certain Activities in Countries of Armed Conflict
Bill [B42B-2005]
PowerPoint
Presentation on the Bill [B42B-2005]
SUMMARY
The Department of Defence presented briefed the committee on The
Prohibition of Certain Activities in an Area of Armed Conflict Bill, 2005. The
presenter gave the background and described the key amendments that would be
made to the Regulation of Foreign Military Assistance Act, No 15 of 1998. He
went through each clause of the Bill. The committee raised questions on the
constitutionality of the Bill and whether it impinged on the individual’s right
to pursue his or her profession. The question of the Department of Defence
failing to provide work opportunities was raised. Further questions related to
areas of armed conflict, when enlistment was deemed to take place, the
activities regulated, dual citizenship and possible loopholes, requests for extradition,
gathering of information across countries and the involvement of private
recruitment companies.
The Committee was unable to finalise the Bill at this meeting, owing to time
constraints, and would finalise discussions on the Bill in the following week
MINUTES
Presentation on the Bill by Department of Defence
Major General Segomotso Mmono (Chief
Director: Military Legal Support Services, Department of Defence (DoD)
introduced his delegation.
Mr Siviwe Njikela (Director of Legal Services, DoD) began the presentation with
a background to the Regulation of Foreign Military Assistance (RFMA) Act, No 15
of 1998. This had been informed by the increased number of South Africans
involved in certain activities in other countries. An interdepartmental team
was created to review the RMFA Act, to search for loopholes and to suggest
solutions. The gaps found in the current Act included the definitions of
foreign assistance, and humanitarian activities, and also related to the
alignment of the RMFA Act with the National Conventional Arms Control Committee
(NCACC). He detailed the key amendments that would be made to this Act by the Prohibition of Mercenary Activities and Regulation of
Certain Activities in Country of Armed Conflict Bill [B 42B-2005] and
described the key contents of clauses 1 to 15. He also told the committee of
the concerns raised about the bill and the amendments made by the Portfolio
Committee on Defence.
Discussion
Mr D Worth (DA, Free State) asked for clarity on the title of the Bill.
Ms Carin Booysen (State Law Advisor, Office of Chief State Law Advisor) replied
that the title had been shortened from the previous one, and the new title now
read The Prohibition of Mercenary Activities and Regulation of Certain
Activities in Countries of Armed Conflict.
Mr J Le Roux (DA, Eastern Cape) asked the Department’s opinion around the area
of authorization, and in particular the argument that the application for
authorisation impinged on the individual’s right to pursue his or her desired
profession.
Maj-Gen Mmono, Mr Njikela and Ms Booysen concurred that the Bill would regulate
the constitutional right to freedom of occupation and trade protected by
Section 24 of the Constitution. Moreover, they added that no right in the
Constitution was absolute, hence the presence of Section 36, the limitation
clause. Like any other right Section 24 could be regulated and be made subject
to certain confinements to balance out competing equal rights that might arise.
Ms Booysen however emphasised that where the Constitution had a limiting clause
the limitation should be done in a justifiable manner
Mr Worth asked the Department how it would deal with the fact that the Bill
interfered with work opportunities being offered abroad, when it was clear that
the Department had failed to offer working opportunities for professionals in
South Africa.
Maj-Gen Mmono replied that unfortunately the main aim of the Bill was not to
cater for social needs. Its aim was to regulate the activities of highly
trained personnel who might act in a manner prejudicial to the country, and who
should not be allowed to enlist at will.
Mr Le Roux asked whether there was a provision in the legislation that took
consideration of a certain area, and cited the example that in the DRC, only the
Eastern part of the country was under armed conflict but the remaining areas
were peaceful.
Mr A Moseki (ANC, North West) also expressed concern on this issue and asked
whether only an area under armed conflictwould be listed as a no-go area for
South Africans.
Mr Njikela replied that initially, when the Bill was introduced, it made
references to areas of armed conflict. However, it became increasingly obvious
that it was logistically impossible to regulate activities and conduct
oversight of individuals so that they would not operate in the areas of armed
conflict after entering the country. Therefore, the focus moved from areas to
countries.
Mr N Mack (ANC,Western Cape) requested clarity on when enlistment actually
occurred with a foreign force.
Mr Njikela replied that enlistment occurred when the individual requested and
was granted authorisation of enlistment.
Mr A Manyosi (ANC,Eastern Cape) asked for the particular kind of activity that
the Bill was supposed to regulate.
Maj-Gen Mmono replied that the Bill was not only intended to regulate mercenary
activities in armed conflict; but it had expanded to include issues that might
foster armed conflict, such as financing mercenaries and selling of arms.
Mr Njikela added the Bill aimed to regulate the participation of South Africans
in armed conflict. He said that the legislation precluded South Africans from
being part of an armed conflict, internationally or nationally, unless the
Constitution and the Statutes of the country allowed their involvement. For
instance, RMFA Act regulated the instances where a person could provide
military assistance. In addition UN reports on mercenaries showed that the
definition had indeed expanded to encompass other forms of involvement that
fell short of armed conflict, but that might destabilise States. The Bill
therefore sought to encompass those activities as well.
Mr Mack indicated his concern that dual citizenship could be manipulated to the
benefit of perpetrators. He gave the example of the group that was arrested in
Zimbabwe, who later demanded to be tried in South Africa because the trial
procedure in South African courts was considered more lenient. He asked whether
it was possible to revoke the citizenship of the offender, once caught. This
would render the offender stateless so he or she could be prosecuted wherever
arrested.
Mr Njikela started that he was no expert on citizenship but he thought that if
a South African citizen acquired the citizenship of another country he would
automatically lose his South African citizenship unless he/she applied to the
Department of Home Affairs (HA) to hold dual citizenship. It would then be in
the discretion of the Minister of Home Affairs. He added that terminating
citizenship was a dangerous area as Section 20 of the constitution clearly
stated that no citizen should be deprived of citizenship.
On the issue of the offender requesting to be extradited to his own country, as
in the given example, he said that the Constitutional Court pronounced that no
one had the right to be tried in South Africa despite citizenship. If South
Africa had an extradition treaty or an agreement with another country then it
might request extradition. However, this was dependent on the diplomatic
relations of the countries. It might, through agreements, demand better trial
conditions but no one could demand to be tried in his or her own country only.
Mr Mokoena asked about the accessibility of the NCACC, since it was made up of
people in senior positions who would obviously be busy.
Maj-Gen. Mmono replied that because NCACC had been unable to meet regularly the
Chairperson of the NCACC and two members could on application grant a temporary
authorization, which would then be confirmed or revoked when NCACC had a formal
meeting.
Mr Mokoena asked whether there were mechanisms in place that would facilitate
in the gathering of information across countries.
Mr Njikela replied that this was the Department’s biggest challenge because
these crimes often were trans-border offences. Unfortunately the only method
the Department currently had of acquiring information was information given by
one mercenary about the other mercenaries. At the moment everything was still
dependent on informal cooperation between countries.
Mr Mokoena inquired as to what would happen to the private companies that
initially recruited the professionals, especially when these people commit
crimes.
Mr Njikela replied the private companies responsible for the recruitment would
be brought to book under the law.
Mr Mack asked whether authorisation would not conflict with professionals who,
for instance, might be not be part of an armed conflict but might be offering a
security service such as guarding a pipeline.
Mr Njikela replied that was the reason why the Bill had focused on the armed
conflict rather than on the person. If the service or assistance that the
security service company might be rendering fell into the definition of
“service” or “assistance” then they had to apply for authorisation.
Mr Mokoena asked whether a person who failed to register during the given
indemnification period, due to reasons beyond his control such as ill health,
would be exempted.
Maj-Gen Mmono replied that there was no provision in the Bill to cater for such
a situation. It would be unfortunate but the persons would be caught in the
net.
Mr Njikela added that the issue would be determined in a Court, which would
look at all the factors and reasons before giving a just judgment
Mr Mokoena asked what would happen to an offender caught in a country where no
extradition treaty existed with South Africa.
Mr Njikela said if there was no extradition treaty or agreement the Department
could only wait until the offender reached South Africa since there was no
right of hot pursuit.
Ms Booysen added that these were sticky international issues and needed to take
into consideration the sovereignty of other countries. If there was no
extradition treaty other remedies such as diplomacy would have to be used.
Mr Mokoena asked whether the Department would be able to follow up on a person
who committed an offence under the legislation during the indemnity period, but
acquired citizenship of another country after committing the crime.
Brig-Gen Mmono replied that as long as the crime was committed whilst the
individual was still a South African citizen then the courts had jurisdiction.
They would not have this jurisdiction if the individual revoked citizenship
first and committed the crime later.
Mr Le Roux asked the Department whether it was reasonable to revoke
authorisation formerly given if the military force that the individual enlisted
with deployed that individual to an area listed by South Africa as a no-go
area.
Ms Booysen referred the committee to Clause 4(2), which stated that
authorisation that had been granted coulcd be revoked if the situation in which
the individual was involved contravened the criteria listed in Section 9.
Mr Njikela added that saying that the Bill gave power to revoke this
authorisation so that South Africa could maintain its neutrality, especially if
the army in which a South African citizen had enlisted were to be engaged in
war with a country that South Africa considered as a friendly country.
Mr Manyosi was also concerned as to what would happen to a person given
authorization, who later acted in a manner prejudicial to the country.
Brig-Gen Mmono replied that NCACC should be able to revoke authorisation since
under they had the power to approve and withdraw.
Mr Worth asked for clarity as to which type of foreign army was recognized, and
one in which a person could not enlist, as it was not recognised by South
Africa.
Mr Njikela replied that the Bill targeted military armies, or those that
resembled a military army, outside the formal and statutory forces of South
Africa or of a foreign state. This would, in particular, include any armed
groups that might be established in South Africa or foreign armed forces that
were state armed forces.
The Chairperson ruled that the Committee would be unable to finalise the Bill
at this meeting, owing to time constraints, and that a further meeting would be
held the following Tuesday to finalise discussions on the Bill.
The meeting was adjourned.
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