Prohibition of Mercenary Activities & Regulation of Certain Activities in Countries of Armed Conflict Bill [B42B-2005]: briefing

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.