Prohibition or Restriction of Certain Conventional Weapons Bill (B7B-2007): briefing

Meeting report

Prohibition or Restriction of Certain Conventional Weapons Bill (B7B-2007) by the Department of Defence (DoD)
Mr Siviwe Njikela (Director: Legal Advice – DoD) went through the Bill as amended by the Portfolio Committee on Defence and outlined the definitions and provided a summary on the objectives of the Bill and its provisions.

Discussion
The Chairperson thanked the delegation for providing a concise summary of the issues related to in the Bill and asked the Committee if they had any issues with the definitions in the Bill.

The Committee was satisfied.

The Chairperson referred to Chapter 1 and asked if the Committee had any views on Clauses 2 and 3.

None were forthcoming.

In reference to Chapter 2, the Chairperson asked if there were any issues with Clauses 4-8. He questioned whether Clause 6 – Mines, booby-traps and other Devices – prohibited the South African National Defence Force (SANDF) from conducting ambushes on enemy troops and if so whether this aspect of combat was to be removed from SANDF training.

Adv Dumisani Dladla (Director: Material Resources and Policy, DoD) replied that it did not, but placed restrictions that made sure that only enemy combatants were targeted and did not cause environmental and civilian collateral damage.

The Chairperson asked whether there were any comments on Clauses 8 and 9 specifically.

Mr N Mack (ANC – Western Cape) referred to Clause 9 and stated that there was provision for the military to train troops in the use of these prohibited weapons in order to understand the potential capabilities of the enemy. He was concerned that Clause 9 stated that any person who contravened the Act would be prosecuted and he was worried that the term ‘person’ made it hard to prosecute the officer potentially issuing the order to operate a prohibited weapon. Usually one person alone could not be held responsible and he was worried that this would allow the commanding officer to get away without prosecution.

Major General Bailey Mmono, Chief of Legal Services, DOD, replied that the DoD trained soldiers to follow lawful commands and that members should not follow unlawful commands. He added that there was an obligation by the DoD to train and educate members as to what they could and could not do.

The Chairperson asked if Mr Mack was satisfied but Mr Mack replied that he was not.

The Chairperson asked if in law it was phrased like that.

Mr N Vanara (Parliamentary Legal Office) replied that in reality there would be instances like the one described above but in the military justice system, issuing unlawful orders constituted an offence. He added that this Bill gave civilian courts jurisdiction and that in this case, the superior officer would not necessarily be called to court.

The Chairperson requested that the legal personnel from the SANDF and the South African Police Service both interact and specify the issue more clearly.

Mr J Le Roux (DA – Eastern Cape) added that in terms of Clause 9 the person who contravenes the Act would also be the commanding officer.

The Chairperson replied that the legal personnel would double-check that.

Mr A Manyosi (ANC – Eastern Cape) added that in law, one talked about accomplices and co-perpetrators and that this would cover the issue.

The Chairperson acknowledged this.

The Chairperson moved on to Clause 10 and referring to the period of six months to hand over prohibited weapons, he asked what the feeling on this provision was.

Ms F Nyanda (ANC – Mpumalanga) replied that they should leave it at six months.

The Chairperson stated that South Africans left everything to the last minute and hoped that that was enough time. He added that Mr M Mzizi (IFP – Gauteng) had raised the issue that non-detectable fragments were not in the definitions. He asked what notification in Clause 10 constituted.

Maj Gen Mmono replied that notification was not defined in the Bill and would be in the regulations.

Mr Manyosi stated that this caused more work and that it was a very important aspect of the Bill, he felt that it should be defined in the Bill to provide clarity and prevent it from becoming cumbersome.

Mr Mzizi believed that some details should be in the regulations in case they did not work and needed to be changed, which would save them having to amend the Act. He requested that instead the DoD provide them with the regulations as soon as possible.

The Chairperson stated that they could agree on that and asked the DoD to provide another presentation on the topic.

On Clause 11, the Chairperson stated that when the Minister of Defence reported to the United Nations he was speaking on behalf of the people of South Africa and that as such he should be in touch with the structure that represented the people, which was Parliament. Therefore he should consult with them before he presented to the UN. He stated that they should specify a timeframe.

Maj Gen Mmono replied that this was an important issue and that it was the prerogative of the Committee to call in the Department in order to ensure compliance at any time they wished.

Mr S Njikela (Director: Legal Advice – DoD) added that there was a structure in the Office of the Auditor-General that ensured legal compliance.

Mr A Moseki (ANC - North West) suggested that the regulations stipulate that the Minister’s report be submitted twice yearly to Parliament for comment, before going to the UN.

Mr Mziz countered that there was no benefit in viewing the report twice.

The Chairperson agreed with Mr Mzizi’s proposal that they should review the report once, before it went to the UN. He added that they could call in the DoD anytime they wished to hold them accountable.

Mr Vanara asked for confirmation that they wanted to see the report at some stage before it went to the UN.

The Chairperson replied in the affirmative.

The Chairperson referred to Clause 15 and stated that regulations were assigned to the executive and were within the ambit of the Minister of Defence. However, they needed to be checked by the Committee to ensure that they were in line with the Act.

Mr Moseki noted that the Bill stated that regulations would be made in consultation with the Minister of Safety and Security. He asked what happened if there was disagreement between the two Ministers and the DoD went ahead.

The Chairperson replied that it should state “after consultation” with the Minister of Safety and Security. He added that laws needed to be able to stand the test of time.

Maj Gen Mmono replied that they needed to take the role of the police into account and as such the Minister of Safety and Security was included.

Mr Manyosi added that the law seemed workable, but stressed the need for the phrase “in consultation”, to be used.

Mr Mzizi agreed and added that as the SANDF was not trained in law enforcement, but trained to kill, they needed to remain in consultation with the Ministry of Safety and Security.

Mr Mack disagreed saying that they needed to take away weapons and that this was the Department of Defence’s mandate and could not be devolved to the Department of Safety and Security, as the superior force of the SANDF was necessary.  He added that “after consultation” was not that bad.

The Chairperson said that the Committee should look at the pros and cons of each phrase and then come to an agreement on the issue at a later date, after careful consideration.

Mr Mzizi mentioned that the Bill should be changed from 2007 to 2008.

The Chairperson noted this.

Mr Moseki asked for information on who had signed the Convention that had precipitated the Bill.

Mr Njikela replied that not all countries subscribed to all the protocols of the Act, but that the United States subscribed to protocols 1-2, the United Kingdom to protocols 1-4, China to all except protocol 5, the same applied to Russia, France subscribed to all the protocols. He added that a briefing document should be available from the Committee researcher.

Mr Mzizi asked why the National Intelligence Agency and the South African Secret Service were not included as key stakeholders in the Memorandum on the Objects of the Bill.

Mr Njikela replied that initially they had both advised on the drawing up of the Bill, but that both parties felt that the SANDF and the South African Police Service could manage the issue.

The Chairperson thanked the delegation for coming and the meeting was adjourned.

Appendix:
MEMORANDUM ON THE OBJECTS OF THE PROHIBITION OR RESTRICTION OF

CERTAIN CONVENTIONAL WEAPONS BILL, 2007

1. BACKGROUND

1.1   South Africa signed and ratified the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (the Convention). The Convention seeks to implement the international humanitarian law principle that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited. The Convention therefore identifies specific categories of conventional weapons and places prohibitions or restrictions on their use. 1.2 The Convention further provides that each State Party should take all appropriate steps, including legislative and other measures, to prevent and suppress violations of this Convention on territory under its jurisdiction or control. In view of this provision, South Africa is under an obligation to promulgate enabling legislation in order to give effect to this Convention. 1.3 Section 231(4) of the Constitution of the Republic of South Africa, 1996, states that any international agreement becomes law within this country when enacted into law by national legislation. A self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. 1.4 By promulgating the Prohibition or Restriction of Certain Conventional Weapons Bill, the Republic will have fulfilled its obligations under the Convention.

2. MAIN OBJECTS
2.1 The main object of this Bill is to place the necessary restrictions or prohibitions on specific categories of conventional weapons and thus fulfil South Africa’s obligations under the Convention. 2.1.1 Definitions The Bill creates consistency with the Convention by using the same definitions and thereafter adding those definitions that are necessary to eliminate misinterpretation in the implementation of the Bill. 2.1.2 Prohibitions or restrictions The Convention requires that restrictions or prohibitions be placed on specifically identified categories of conventional weapons. This Bill provides for restriction or prohibition of those identified conventional weapons. The Bill also ensures that a distinction is drawn between categories of conventional weapons that are prohibited and those that are restricted. The Bill provides for the prohibition of the following conventional weapons: