National Conventional Arms Control Amendment Bill [B45-2008]: public hearings

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Defence and Military Veterans

12 August 2008
Chairperson: Mr F Bengu (ANC)
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Meeting Summary

The Institute for Security Studies complained that the arms export reports by the National Conventional Arms Committee did not contain enough detail and were often tardy and were not released within the specified time. The Institute stated that transparency was a very important factor and it was crucial that relevant information about arms was made publicly available in order to ensure effective accountability of government to the people. The issue of certain countries being exempt from producing End User Certificates was challenged. Members wondered what could be done for more effective oversight over arms and questioned the cost required to achieve transparency.

The Ceasefire Campaign raised concerns about transparency and questioned the need for many of the amendments proposed. They stated that through transparency and accountability, regional safety and stability could be achieved. They warned that there were attempts to limit transparency and increase secrecy within the sphere of arms dealing. The End User Certificate was necessary and purposeful and warned of the possible dangers of countries being exempt from producing these documents. Concerns about the Auditor-General’s powers of investigation being limited were also noted. It was proposed that the provisions of the proposed clause 12 (amending section 15) and clause 7 (amending section 9) that spoke about controlled items, be tightened to achieve consistency.

The South African Aerospace, Maritime and Defence Related Industry Association stated that its submission represented a consolidated view of the South African Defence Related Industries. They proposed that the Auditor General have access to financial records as well as various registers and processes. The NCACC reports had to include details of re-exports, imports and change of ownership regarding arms and that the outcome of arms meetings had to be communicated to the public. The Association also wanted clarity on the relationships between the NCACC, the Sub-Committees, the Inspectorate and the Secretariat. They noted a lack of capacity and technical presence in the National Conventional Arms Control Committee. The Committee wondered if the National Conventional Arms Control Committee would be constrained further by the Bill, as it gave the institution even more responsibility. In response, the Portfolio Committee discussed whether the NCACC met regularly and Members agreed that the relationships between the different entities had to be discussed.     

The Armaments Corporation of South Africa commended the proposed Bill but noted that there were some problematic areas, such as the issue of the End User Certificate. They commended the Scrutiny Committee but expressed concern with regard to regulations on controlled items. It was suggested that a competent committee engage in a serious discussion before laying down rules and regulations concerning controlled items.

Meeting report

Institute for Security Studies submission
Mr Guy Lamb (Programme Head: Arms Management in the ISS) commended the drafters on several aspects of the Bill such as the extension of the functions of the NCACC to include the administration of the Anti-Mercenary Bill. A complaint was made that the Annual Arms Export Report for 2007 was available to the Committee, but it was not accessible to the public. The Annual Arms Export Report for 2003 and 2004 had been released to the public only the previous year. He noted that there was a general delay in reports being released. Also, there was a trend to include only the arms category, the Rand value and country of export in these reports. A recommendation was made that more detail should be shown and he pointed to the high level of detail prevalent in the export reports of foreign countries.
 

Transparency was a very important factor and it was crucial that relevant information about arms was made publicly available in order to ensure effective accountability of government to the people. Transparency also enhanced regional and international peace and security and it built confidence between states, as sharing of information reduced incidences of suspicion and misperception, which could lead to interstate conflict. A question was raised as to why South Africa omitted information in its export reports for the purpose of national security. However, details of what had been imported from South Africa was readily available in the reports of other countries. Surely, South Africa should display this information as well. Reports used to be available on the Defence Department’s website. However, this was no longer the case. A recommendation for these reports to be placed on the parliamentary website was made. The date of delivery, type and quantity were noted as significant details for reports about arms deals.


The issue of certain countries being exempt from producing End User Certificates was also challenged. There was a concern that the importance of End User Certificates were being underestimated, which could result in the proliferation of certain arms, UN Arms embargo violations and the possibility of the black market thriving. A recommendation was made that certain countries should not be exempt from producing End User Certificates.


A question was raised about how the controlled items list would be compiled. A recommendation for it to be reviewed and updated annually was made as well as to include public consultation.  

 

The ISS recommended that the amendment to section 23 of the Act, which removed the obligation of the NCACC to report to Parliament on a quarterly basis be deleted. They recommended that section 5 of the Memorandum on the Objects of the Bill include a provision that the Directorate for Conventional Arms Control (DCAC) be appropriately staffed in order for it to effectively pursue its mandate. The ISS also proposed that a process by which the list of controlled items would be updated should be included in the Bill. 

Discussion
Dr G Koornhof (ANC) asked whether section 23 of the Amendment Bill did not fulfill some of ISS’s concerns. He asked about the ways in which there could be more effective oversight should the quarterly report be kept as opposed to an annual report.

Dr E Schoeman (ANC) called for debate about the Scrutiny Committee and its functionary powers within the Act.

Adv H Schmidt (DA) asked why there were not any basic minimum requirements for information on all arms exports. Why were some contracts commercially sensitive and not others?    

Ms P Daniels (ANC) stated that the Committee needed to protect the South African people and those we exported to. Nowhere in the amendments were there attempts to negate human rights so she questioned at what cost one should attempt to achieve transparency.

Dr Koornhof restated the purpose of the hearing and expressed a need for everyone to contribute for the purpose of improving the legislation. He asserted that the four main points to be included in the public reports were country, type, quantity and value of the arms. He wondered where one would draw the line with regard to national security and transparency. He asked whether people would be satisfied if these four categories were included or if there was a need for more information to be made available.

Dr Schoeman stated that he would take Dr Koornhof questions to next level and ask if one would be happy if the Committee had the right to insist what type of information could be made public and what type should remain secret - for the purpose of national security. 

The Institute for Security Studies representative responded that a balance could be found between transparency and national security. He called for good risk management and intelligence information, which would help in understanding the situation of the countries to which South Africa exported. He questioned the decision to allow a conveyance permit for the infamous arms deal between China and Zimbabwe at a time when there was instability prevalent in Zimbabwe. The balance between national security and transparency could be achieved and he used the example of the United Kingdom’s arms report, which showed that they produced a balance of information in their annual report, which was both informative and simple enough for the public to understand.

The Chairperson asked the Institute for Security Studies to comment on the issue of commercial confidentiality with regard to commercial contracts.

The Institute responded that commercial confidentiality in the absence of transparency could result in problematic behaviour.

 
The Chairperson thanked the Institute for Security Studies and restated the responsibilities of politicians in finding solutions to the issues raised.

Ceasefire Campaign submission
Mr Rob Thomson, from the Ceasefire Campaign Steering Committee, complained that there was a need for clarity about the scope of the Act. He was concerned that the NCACC showed serious signs of regulatory capture by the military-industrial complex. He stated that the industry could become unduly powerful in influencing the regulator, the NCACC, which should be accountable through Parliament to the people instead.

 

He pointed out that there was a problem with delegation and assignment. There was a problem with certain amended sections, which resulted in a conflict. He gave the example of the Chinese-Zimbabwean embargo arms shipment. He claimed that the Secretary of Defence was given carte blanche to issue permits. He noted that there were no arms embargos against Zimbabwe and therefore it would seem that there should be no reason why a permit should not be given. However, there were many other criteria to consider and the fact that there was no arms embargo was a minor issue. Permits were given administratively by officials and not provided by the NCACC. He disagreed with the notion of policy matters being delegated.

 

Mr Thomson found it problematic that the scope of the Auditor-General’s investigation was limited. The Auditor-General should have access to, and should be able to audit all documents. Mr Thomson had a problem with clause 14 that substituted section 17 of the Act, which dealt with the issue of End-User Certificates. The procedures for end-user certificates were extremely vulnerable to abuse and the Campaign was worried that further amendments would make end-user certificates even more vulnerable. The Campaign objected to the proposed section 17(3), which relaxed the requirements for end-user certificates. It undermined the purpose of the end user certificate without applying any constraints about the circumstances under which exceptions could be granted.

 

Mr Thomson said that his most significant concerns were about clause 17 (amending section 23 of the Act) which deliberately removed reference to compliance with the reporting requirements of the United Nations. The Campaign was concerned that the NCACC was failing to meet the reporting requirements of the United Nations. This section conflicted with many ideals of transparency and a complaint was made that reports from previous years were still not accessible and in the public domain. Further, they were submitted to Parliament at a later date than required. He stated that the NCACC was more concerned with secrecy than transparency. He proposed that the provisions of clause 12 (amending section 15) and clause 7 (amending section 9) that spoke about the transfer and trade of controlled items be tightened to achieve consistency.
           
Discussion
Dr Koornhof stated that one could not limit the extent of investigation and downscale the role of the Auditor-General. He asked for clarity on whether Mr Thomson wanted the Scrutiny Committee to be scrapped or just subject to section 15 of the current Act, which spoke about the transfer of controlled items. He asked if Mr Thomson wanted a case-by-case study of the NCACC or of the Scrutiny Committee. He asked for clarity on this issue.

 

Mr Thomson replied to Dr Koornhof’s question noting that he was referring to the arms committee itself and not the Scrutiny Committee. He clarified that he did not have an issue with the Scrutiny Committee and confirmed that the issue related to clause 8 amending 11(1)(b) and not 11(1)(c). He repeated that the major issue was the time delay in availability of reports. They were supposed to be submitted within three months after the end of the year. He emphasized the need for the quarterly report and claimed that an annual report would not be sufficient, as transfers in arms deal were made 15 months before and were therefore “ancient history”. If the NCACC were really committed to transparency, they would put the arms transfers on their website after every meeting. This should include necessary details and not just the basic bare essentials. He concluded by stating that if the NCACC were serious about transparency, those types of things would occur, as they were the type of principles that allowed for transparency.
 

An ANC member asked how a country was expected to defend itself and at the same time maintain such high levels of transparency with regard to arms.

 

Mr Thomson responded t that the requirements for deterrence were transparency. He continued by arguing that this served regional peace. What it did not serve was the interest of aggressive nations. In those instances, secrecy was called for. He stated that South Africa should not wish to conduct arms business with aggressive countries and there should be the expressed commitment to dealing with only defensive countries. The country needed to know more about this industry than any other. This would serve South Africa’s defence issues in the regional sphere.


Dr Schoeman stated that one did not allow those delegated by the NCACC to issue permits. If this had occurred, it was irregular. He continued by stating that there was no justification for such delegation.

The Chairperson thanked Mr Thomson for his contribution and noted that they would look into the issues that had been raised.


South African Aerospace, Maritime & Defence Related Association (AMD) submission

Mr Simphiwe Hamilton, the Executive Director, stated that the submission represented a consolidated view of the SA Defence Related Industries (SADRI). He stated that this engagement was significant because the successful implementation of the Amendment Bill was acutely dependent on the implementation of the recommendations of the July 2007 SADRI Survey on arms control, which included, but was not limited to, the optimal resourcing and capacitisation of the Directorate Arms Control (DCAC).

 

SADRI proposed a few amendments to the Bill. They proposed an amendment to clause 9 amending section 12 of the Act so that the Auditor General could have access to financial records as well as various registers and processes. clause 17 amending of section 23 of the Act should be amended to state that the NCACC’s report to Parliament had to include details about re-exports, imports, destruction and change of ownership regarding arms.

 

It was suggested that the schedule of the regular/monthly meetings of the NCACC should not only be strictly adhered to but also made public with a standing method of communicating its outcomes or decisions. It was also recommended that clarity be attained about the exact nature of the relationship between the NCACC, the Sub-Committees, the Scrutiny Committee, the Inspectorate and the Secretariat.

 

Discussion

Dr Koornhof noted that there was a lack of technical presence and capacity in the NCACC. In a previous engagement with the NCACC, the Committee had asked them what the timeframes were for decision-making on various programmes. The Committee wanted to finalise the legislation. However; according to SADRI, the NCACC was understaffed and lacked capacity. The legislation could give the NCACC more responsibility and this might put more strain on its human resources and the timeframes for decision-making. He asked whether SADRI thought the Bill put more constraints on the NCACC. He thought that most of SADRI’s suggestions were quite straightforward and that they would have to engage with the Committee together with the Department of Defence to determine if they could improve the legislation. Dr Koornhof was not sure that he followed SADRI on their amendment of clause 20 (inserting section 25A into the Act), which proposed that the provision should expressly “exclude the sourcing of capital equipment” except if it was in the replenishment of existing stock. He also needed clarity on what SADRI thought the problem was with the structural relationships between the Committee, Sub-Committees, Scrutiny Committee, Inspectorate and the Secretariat. 

 

Mr Hamilton stated that in truth, there were challenges with human resources. They needed to make sure that the people who were appointed had the technical “know-how” required for their positions. The technical aspect was very important.

 

Mr Hamilton clarified that SADRI wanted to know how the NCACC committees met and how many times they met.

 

Dr Schoeman stated that it was shown that the NCACC had not met regularly. He wanted clarity on this. He wondered, in terms of the sub-committees, if SADRI were now contesting the amendments that formalised the Scrutiny Committee. He asked if they now wanted to formalise all the sub-committees within the Bill.

 

Mr Hamilton replied that the sub-committees and the Scrutiny Committee could definitely be included in the regulations even if they were not formalised in the Bill. The Scrutiny Committee could be formalised because of the key role it played in the legislation.

 

Mr Hamilton answered that people needed to know the relationship between the different entities that were part of the framework that was implementing the Bill. They needed to know the legal standings of the committees. Many people in different industries wanted to know what status the different entities had. 

 

Mr Hamilton added that he could not comment on whether the NCACC and the committees had met regularly, as he did not have insight into this information.

 

Ms Daniels asked SADRI if they thought that the Bill spoke to the challenges experienced by the NCACC.

 

Mr Hamilton stated that SADRI had interacted with the Department in July and August 2007. This interaction was limited. A workshop was held where the initial Draft Bill was presented. SADRI was not engaged in the drafting of the final tabled Bill.

 

Dr Koornhof added that the regular meetings of the committees and the NCACC, as well as the relationships between the NCACC and the other committees were practical issues that needed to be discussed. 

Armaments Corporation of South Africa (ARMSCOR) submission
Mr Brig Van Staaden, Executive Manager, stated that he was very positive about the Amendment Bill. There were areas that were problematic but they were generally satisfied. He noted that the word “possession” regarding controlled items that was used throughout the tabled Bill was problematic. Armscor proposed the insertion of a section 7A, which suggested that the Departments of Minerals and Energy as well as Science and Technology be included as part of the Scrutiny Committee.


Another problem was the re-occurring issue of the End User Certificate, which he stated as being a “broad based document”. He recommended that perhaps one could categorize specific controlled items that needed to have an end user certificate. Armscor also suggested that a “Pro-Forma End-user Certificate be provided to a competent authority issuing end-user certificates, which would assist in standardising the process. Mr Van Staaden presented the example of how the French operated. If one wanted to sell an aircraft that was purchased from France years ago, the French would ask for a competent authority. France would transfer authority to South Africa’s competent authority, namely the NCACC. He continued by stating that the Armscor Act was not addressed in the amended Bill. He noted the Armscor contract on behalf of the Department of Defence to supply them with vehicles, personnel or facilities.

 

Mr Van Staaden also expressed concern that now there was a need for them to go back to the Scrutiny Committee to apply for a permit before giving an item to a company. He requested that these issues be revised. He commended the concept of the Scrutiny Committee but expressed concern with regard to the regulations on controlled items. He requested that a competent committee go through a series discussion before laying down rules and regulations concerning controlled items.


Discussion
Dr Koornhof requested that Armscor make a proper presentation, as he found it difficult to deal with these sorts of remarks. He asked how one was expected to take these comments and reach some kind of decision.
 

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