Prohibition or Restriction of Certain Conventional Weapons Bill [B7-2007]: adoption

DEFENCE PORTFOLIO COMMITTEE
24 August 2007
PROHIBITION OR RESTRICTION OF CERTAIN CONVENTIONAL WEAPONS BILL: ADOPTION

Chairperson: Ms T Tobias (ANC)

Documents handed out:
Prohibition or Restriction of Certain Conventional Weapons Bill [B7-2007]
Prohibition or Restriction of Certain Conventional Weapons Bill [B7B-2007]
Prohibition or Restriction of Certain Conventional Weapons Bill [B7A-2007]
Convention on Prohibitions or Restrictions on Use of Certain Conventional Weapon Which May Be Deemed to Be Excessively Injurious to Have Indiscriminate Effects

Audio recording of meeting

SUMMARY
The Committee continued its deliberations on the Prohibition or Restriction of Certain Conventional Weapons Bill. Members debated the provisions under Chapter 3 – Reporting on Compliance with Convention and Chapter 4 – General Provisions. Two unresolved matters from the previous meeting concerning Clauses 3 and 10 were addressed. The Bill was voted on and approved with amendments.

MINUTES
Deliberations on the Prohibition or Restriction of Certain Conventional Weapons Bill
Chapters 1 and 2 of the Bill had been previously discussed and finalised. Three additional Members of Parliament attended the meeting to establish a quorum: Mr P Hendrickse, Mr L Marisenyane and Ms E Ngaleka.

The Committee Secretary read Chapter 3 – Reporting on Compliance with Convention and Chapter 4 – General Provisions. The Committee reviewed some proposed amendments that were not provided to the public. Members debated the provisions under each clause and some amendments were proposed before consensus was reached and the Bill approved.

Chapter 3 Reporting on Compliance with Convention
Clause 11 - Reporting
Mr V Ndlovu (IFP) pointed out that Clause 11(b) required the Minister of Defence to monitor South Africa’s compliance with the Convention. As the Minister was also responsible for compliance, he could not also play a monitoring role.

Mr Siviwe Njikela (Director – Legal Advice, Department of Defence) agreed that the Minister of Defence was responsible for ensuring that South Africa complied with the Convention as well as being responsible for preparing an annual report to the United Nations.

Mr Dumisani Dladla (Director – Defence Policy, Department of Defence) suggested that the term “monitor” be changed as it applied to an independent party.

Mr Mukesh Vassen (Legal Services, Parliament) said that use of the words “supervise” in 11(a) and “monitor” in 11(b) implied separate functions.

Ms Ntombi Mnyikiso (Senior State Law Adviser) agreed with Mr Vassen and said that 11(b) was superfluous.

Ms Tobias said that there was at present no independent body or agency responsible for monitoring the Department of Defence. The Minister was a member of the Cabinet and Parliament played an oversight role.

Mr S Ntuli (ANC) said that Canada had an Ombudsman responsible for monitoring compliance to the various conventions. He suggested that 11(b) was deleted.

Mr M Moatshe (ANC) felt that 11(b) should remain.

Mr L Diale (ANC) said that “monitoring” was a process while “compliance” described the position taken.

The Committee debated the points raised at length. It was finally agreed to remove subclause (b) “monitor the Republic’s compliance with the Convention” from Clause 11.

Clause 12 – Power to require information
The Clause was agreed to without alteration.

Chapter 4 – General Provisions
New clause – Exemptions
The Department of Defence requested that an additional Clause, headed “Exemptions”, be inserted under Chapter 4 – General Provisions. The new Clause dealt with the exemption of organs of state or its agents from the provisions in sections 5 and 8. The Clause was agreed to.

Clause 13 – Guidelines for training
The Clause was agreed to without alteration.

Clause 14 – Regulations
Ms Tobias wanted to know what was meant by “cause a copy” and Mr Dladla explained that it was a legal way of saying that a copy must be submitted. The Clause was agreed to without alteration.

Clause 15 – Delegation of power and assignment of duty
Mr Ndlovu asked why the distinction of a Junior Grade Rear Admiral was made. Mr Dladla explained that this was the equivalent rank in the Navy to a Director. The Clause was agreed to without alteration.

Clause 16 – Short title and commencement
The Clause was agreed to without alteration.

The Committee then addressed the outstanding issues from the previous deliberations:

Clause 3 – Extraterritorial application of the Act
Mr Dladla reported that since the previous meeting, the Department had discussed the clause with the State Law Adviser. It was suggested that subclauses (2)(b) and (2)(c) be deleted from Clause 3 to remove the confusion around the issue of jurisdiction.

Mr Vassen said that if subclause (2)(b) was removed, there was no jurisdiction over non-South African citizens and they cannot be tried.

Ms Mnyikiso pointed out that if an offence occurred outside South African territory, there was no jurisdiction in any event.

Ms Tobias was concerned that South Africa could be used as a refuge for certain undesirable individuals who had contravened the Convention in other countries. She felt that South Africa had a moral obligation not to allow this. The question was whether the matter should be dealt with by recommendation, regulation or legislation.

Mr Hendrickse agreed and said that the clause should not be deleted. Persons who contravened the Convention, even if it was not illegal to do so in their own country, were not welcome in South Africa. He remarked that other countries had similar laws and were avoided by fugitives.

Ms Mnyikiso warned that an extension of the South African jurisdiction to crimes committed in other countries was not desirable and would be challenged.

Mr Njikela said that South Africa cannot police the world but it can take a policy decision on the matter. Ms Tobias agreed in principle but felt that there should not be a legal loophole that would allow South Africa to be used as a launching pad for such activities. Mr Dladla mentioned that extradition agreements and international police co-operation (for example, Interpol) were in place to deal with these cases.

Ms Tobias asked if the Members agreed to the deletion of the subclauses. Mr Diale agreed. Mr Ndlovu, Mr Ntuli and Mr Hendrickse felt the clauses should remain. Mr Moatshe and Mr Schippers wanted to debate the matter further.

Ms Tobias said that it must be the policy of the South African Government to prevent individuals who had contravened the Convention from finding refuge in the country. Mr Hendrickse remarked that the State Law Advisers had approved the Bill with the relevant clauses and that it was a matter of policy rather than a matter of law.

The matter was finalised by deleting 3(2)(b) and (c).

Clause 10 – Offences and Penalties
It was agreed by the Members that the sentencing period be changed from 15 years to 25 years to be consistent with the National Conventional Arms Control Act.

Voting on the Bill
The Bill was unanimously adopted with amendments.

Ms Tobias thanked those present for their contribution and adjourned the meeting.