Organization of African Unity Anti-Terrorism Protocol, Convention on Suppression of Nuclear Terrorism & Police Co Operation Agre

PORTFOLIO COMMITTEE ON SAFETY AND SECURITY
20 September 2006
ORGANIZATION OF AFRICAN UNITY ANTI-TERRORISM PROTOCOL, CONVENTION ON SUPPRESSION OF NUCLEAR TERRORISM AND POLICE CO OPERATION AGREEMENT WITH UNITED ARAB EMIRATES

Chairperson: Ms M M Sotyu (ANC)

Documents handed out:
Presentation on Ratification of International Convention on Suppression of Nuclear Terrorism.
Presentation on Ratification of AU Protocol on Prevention and Combating of Terrorism
Presentation on RSA/ United Arab Emirates Police Co-operation Agreement

SUMMARY
The Committee was asked to consider the ratification of the International Convention on Suppression of Acts of Nuclear Terrorism and the ratification, subject to two interpretative declarations, relating respectively to extradition and to mercenarism, of the African Union Protocol to the African Union Convention on the Prevention and Combating of Terrorism. The Committee was briefed on the aim of each instrument, and advised that each fell in line with South Africa’s commitment to becoming a signatory to all international instruments to counter terrorism. The interpretative declarations related to South African legislation that already existed and were in no way in conflict with the ratification. Questions were raised on Article 8, relating to mercenary activities, of the OAU convention, the difference between terrorism and mercenary activities, and protection to South African soldiers overseas. It was resolved to recommend ratification of both instruments in Parliament. In the case of the AU Protocol the ratification would be subject to the two issues of interpretative declaration.

Briefing on The RSA / United Arab Emirate Police Cooperation Agreement
The Committee received a short briefing on a police cooperation agreement entered into with the United Arab Emirates. Bi-lateral and multi-lateral agreements were becoming increasingly more important and South Africa was already party to The Transnational Organised Crime Convention. It had similar agreements with a number of African and overseas countries. The areas and extent of cooperation, and the areas of crime covered were outlined. Most cooperation would be in exchanges of information and assistance in investigation. Adequate checks and balances were in place for requests for cooperation, protection of confidentiality and budgeting. This was a technical agreement that did not require approval by Parliament, but was tabled for information. Questions by members related to benefits to South Africa of the agreement, whether it could be cancelled, and budgetary issues.

MINUTES
Ratification of International Convention on the Suppression of Acts of Nuclear Terrorism
Adv Philip Jacobs, Assistant-Commissioner of Legal Services, Crime Operations, South African Police Service (SAPS), briefed the Committee on the background to the convention. He reported that South Africa had already adopted the Protection of Constitutional Democracy against Terrorist and Related Activities Act No 33 of 2004 when the International Convention was drafted and approved. The South African legislation took account of the draft International Convention into account and the offences that the International Convention required countries to legislate for were already included in the South African Act. The definition of terrorist activity was wide enough to cover acts of nuclear terrorism. The sections dealing with explosive or lethal devices would include nuclear devices. The possible defences that could be raised by offenders were in line with the Convention. South African courts already had extended jurisdiction, there was sufficient protection of radio active material and the Department of Minerals and Energy was in the process of ratifying another Convention on Physical Protection of Nuclear Material. Adv Jacobs therefore stated that there was no need for any new legislation before the International Convention could be implemented.

The Convention had been signed by the President in 2005 and required ratification by the National Assembly in accordance with Section 231(2) of the Constitution. Once both houses had approved it, steps would be taken through the Department of Foreign Affairs for its final ratification. South African had already ratified other related conventions, along with 64 other countries. South Africa was committed to becoming a signatory to all international instruments to counter terrorism.

Ratification of the African Union Protocol to the African Union Convention on the Prevention and Combating of Terrorism
Adv. Jacobs stated that the African Union (AU) Protocol to the AU Convention on the Prevention and Combating of Terrorism also required ratification. However, the ratification should be subject to two proposed interpretative declarations.

The first proposed interpretative declaration related to mercenarism. Adv Jacobs noted that South Africa was not a part to the African Union Convention for the Elimination of Mercenarism. Futhermore this Convention was suitable for review. It was therefore proposed that South Africa should interpret and apply Article 3(1)(3) of the AU Protocol under discussion in accordance with South African legislation, which prohibited the recruitment or engaging in mercenary activity, and which was much wider than the AU Convention, and which also addressed foreign military assistance.

The second proposed interpretative declaration related to extradition. It was proposed that South Africa apply article 8 in accordance with the OAU Convention on the Prevention and Combating of Terrorism. The present AU Protocol under discussion was in conflict with South African law.

Both interpretative declarations were proposed and endorsed by the State Law Advisors, the Department of Justice and the Department of Foreign Affairs.

The protocol aimed to enhance the AU Convention on the Prevention and Combating of Terrorism, the Peace and Security Council of the AU would play an active role and the aims were in accordance with South African commitments. Adv. Jacobs added that currently there was only one counter-terrorism centre in Africa, based in Algiers, and the aim was to extend this to each of Africa’s regions.

Discussion
Ms D Kohler-Barnard (DA) and Ms A Van Wyk (ANC) asked for further clarity on Article 8, relating to mercenary activities, of the OAU convention.

Adv Jacobs gave the AU definition of mercenary activities. He noted that the definition contained certain qualifications and that South Africa had believed that not all mercenary activities were, by reason of use of the word “if”, adequately addressed in these Conventions. Article 8 provided that the Convention would constitute an adequate legal basis for extradition for State Parties that did not have extradition arrangements. This was in conflict with the South African law.

Adv Jacobs added that the use of mercenaries was not adequately addressed in the South African law. It was possible that it was sidestepping the problem by registering the interpretative definition. There was some difficulty in drawing the line between terrorism and mercenary activity..

Ms Kohler-Barnard asked if South African soldiers had enough protection when they were overseas

Adv Jacobs indicated that the Convention stated that members of the national armed services were excluded from certain obligations, and this did give enough protection.

The Committee resolved to indicate approval of both instruments and to recommend ratification of both. In the case of the AU Protocol the ratification would be subject to the two issues of interpretative declaration.

Briefing on The RSA / United Arab Emirates (UAE) Police Cooperation Agreement
Adv Jacobs stated that this agreement was very similar to the police cooperation agreement entered into with Nigeria and thus did not need much elaboration. Bi-lateral and multi-lateral agreements were becoming increasingly more important in view of globalisation, new technology and sophistication of crime, particularly transnational crime.

South Africa was already party to The Transnational Organised Crime Convention. Article 13:9 of this Convention allowed South Africa to enter bi-lateral or multilateral agreements. States were also encouraged to do so by the United Nations Security Council Resolution 1373 of 2001. Similar agreements already existed with a number of African countries, with Austria, Argentina, Brazil, Colombia, Bulgaria, China, Portugal, Russian Federation and Turkey. Further negotiations were in place with another 19 countries. The proposed agreement did not deviate from other concluded agreements. Areas of cooperation would include organized crime and corruption, drugs, trafficking in firearms and stolen goods and illicit trafficking in precious metals and stones, and trafficking in persons. Economic crimes, forgery and counterfeit, cyber crime, intellectual property and environmental crimes would be covered. The cooperation would extend to public order policing and training of staff, but would not apply to extradition and mutual legal assistance, which fell under the control of the Department of Justice. Cooperation would take place through exchanges of information, literatures, investigative techniques, and assistances in investigation, search for missing persons and suspects. Requests would be made in writing through competent authorities. Cooperation could be refused if deemed detrimental to various interests. Confidentiality was protected, and expenses in processing would be borne by the requesting party.

Adv Jacobs stated that in essence this was a technical agreement. Once the agreement had been entered into it was binding on Parliament without the need for approval by either House but did require to be tabled in both houses. It was therefore presented to the Committee for information but no decision was required.

Discussion
Ms Van Wyk commented that she disliked the use of the phrase “public order policing” in the agreement, as South Africa now termed this it “crowd control policing.” The use of “public order policing” was reminiscent of past policing in the apartheid days. She asked what actual benefits and developments South Africa would gain from this agreement.

Adv Jacobs replied that this was not just a high-level agreement between South Africa and the UAE, but was operationally vital to activities on the ground. Similar South American agreements had proved very valuable in effectively combating the illicit drug trade. There were many areas in which the UAE and South Africa might need closer cooperation.

Mr F Maserumule (ANC) asked what would be the process if Parliament were to disapprove of the agreement.

Adv Jacobs said that this was a Section 230 Technical Agreement and most obligations in the agreement could be met through the functioning and budget of the department. Ratification would only be required for multilateral agreements involving in excess of 13 countries.

Mr Maserumule asked who would raise issues if the budget went beyond what was predetermined.

Adv Jacobs stated that he was not sure on the procedure, but that there was allowance for termination in Section 331(3) of the Constitution. He added that South Africa already did training in illegal firearms trading and vehicle theft development with officials from neighbouring countries. This does not cost South Africa anything because it sat in on an already established training programme. Also, on occasion, South Africa would send trainers or experts to other countries, but this was in line with cooperation and Interpol requirements and likewise did not affect the budget. The interests of fighting crime would surely outweigh some budgetary considerations.

The meeting was adjourned.