National Conventional Arms Control Bill: hearings

Meeting report

DEFENCE PORTFOLIO COMMITTEE
23 October 2001
NATIONAL CONVENTIONAL ARMS CONTROL BILL: HEARINGS

Chairperson: Ms TR Modise

Documents handed out
Submission by South African Aerospace Maritime and Defence Industries Association (AMD) (Appendix 1)
Submission by Armscor (Appendix 2)
Submission by Centre for Conflict Resolution
Submission by South African Catholic Bishops Conference (Document Awaited)
Submission by Economists Allied for Arms Reduction
Submission by Gunfree South Africa (please email [email protected] for a copy)
Submission by Open Democracy Advice Centre (ODAC) (Appendix 4)
Submission by South African Council of Churches
Submission by Ceasefire Campaign (please email [email protected] for a copy)
Submission by IDASA (Appendix 3)

SUMMARY
The public hearings gave all interested parties an opportunity to present their objections or support for the Bill. Submissions were given in the form of verbal presentations. A number of objections were raised. In particular, Clause 23 that dealt with the prohibition of information was widely criticised. Many of the submissions demanded a redrafting of this section to ensure greater transparency.

Overall the hearings demonstrated the need for parliamentary oversight to be strengthened. It was agreed that the expertise of the civil society groups that presented needed to be used to assist in redrafting various sections of the Bill.

MINUTES
South African Aerospace Maritime and Defence Industries Association (AMD)
AMD had not previously been involved in consultations in writing up the Bill. Maj Gen Kriel expressed AMDs support for government policy on the arms industry. He said that it was important that the state had a commercially driven, export-oriented industry that formed part of South Africa's foreign policy. A properly structured defence industry would bring in foreign exchange, create jobs and ensure that South Africa remained at the forefront of arms technology.

Maj Gen Kriel gave some criticisms and recommendations on the Bill. One of his criticisms was that the Bill did not address the issuing of permits adequately. Many of the definitions relating to arms control were too wide. He also commented that the Bill did not relate to international trends. For instance, increasingly arms contractors utilised civilian components. He recognised that this reliance on commercial-civilian contractors meant that it was very difficult to exercise effective control over all aspects of the industry. However, AMD did recognise that arms trading should remain within the ambit of South Africa's foreign policy objectives.

In conclusion, Maj Gen Kriel encouraged the Portfolio Committee to enter a constructive consultative process in drafting the Bill. The public needed to be involved early in this process.

Discussion
A member asked what type of consultations AMD would be seeking? Secondly, were AMD of the opinion that the Bill needed to be redrafted?
Maj Gen Kriel responded that consultations were important as more than 50% of the industry had now been outsourced. There had effectively been the creation of a "Defence Family" which needed to be consulted early so they could understand the thinking behind such a Bill. Further, the Bill needed to be run through point by point to ensure representatives understood the issues fully.

Centre for Conflict Resolution
Dr Nathan began by saying how the terrorist attacks on the US had focused global attention on the need to eradicate terrorism. The worst kind of terrorism was repression by states against their own citizens. Dr Nathan said the Bill should protect people in other states. This would only be possible if it was ensured that South African Arms were not sold to repressive regimes. The argument that if South Africa did not sell the arms somebody else would, was not a morally and ethically tenable argument. One of the major problems of the Bill was that it deviated from the policy of respect for human rights, particularly in reference to Africa.

Dr Nathan pointed out that this was in fact a historic opportunity for the Committee to ensure that parliamentary oversight was exercised. It was also a chance for the Committee to ensure that correct principles were pursued when arms were sold.

Dr Nathan then made more specific criticisms of the Bill. Firstly, he pointed out that the preamble should state unambiguously that South Africa would not export arms to states that practiced oppression. The objective of the Bill should be to control rather than facilitate the arms trade. Secondly, the Bill should specify precisely that prospective parliamentary reviews be carried out. Another recommendation was that the NCACC should ensure that quarterly reports are made public before any weapons are exported. Dr Nathan pointed out that ultimately Parliament should be able to stop pending exports immediately if there were irregularities. This was the policy in the United States. It was also recommended that no MP should have any interest in arms exports, thus eliminating the possibility of corruption.

Dr Nathan argued that the Bill was very weak with respect to transparency. Despite the obvious need for transparency there appeared to be over-emphasis on confidentiality. In particular Clause 23 was widely criticised. Dr Nathan said that this section was inconsistent with the principles as outlined by the White Paper on Defence. There were further inconsistencies with the international agreements on peace and security and with the cabinet policy on transparency.

A number of other recommendations and criticisms were made. Firstly, South Africa must comply fully with the UN Register on Arms Exports. Secondly, that the quarterly reports include the name of the state and the type of exports. The only area where confidentiality could be exercised was in technological information. Thirdly, the classification system outlined in the Bill was wholly inappropriate. The sensitivity of arms exports depends on their use. It was recommended that the classification system be withdrawn completely. It was further recommended that any person exporting illegal or unauthorised arms should be liable for a prison sentence of up to twenty years. Companies found guilty should be banned from exporting arms completely. Fourthly, Dr Nathan mentioned the need for a centralised control system. Currently, the arms control process was fragmented. There needed to be an integrated system that was regulated by a single act. Fifthly, it was recommended that a joint committee be formed between the Departments of Defence and Foreign Affairs to deal with arms control issues.

Dr Nathan concluded that if South Africa aspired to halt terrorism and civil wars it also needed to ensure that the export of small weapons was controlled. These weapons often caused the most damage in human terms yet they were excluded from the Bill. Dr Nathan encouraged the Committee to take this historic opportunity to exercise parliamentary oversight.

Discussion
A Member asked what sort of parliamentary oversight he was recommending.
Dr Nathan answered that South Africa should be aspiring to comply with international law rather than simply following international norms and practices. These international norms were not something to emulate.

Will the arms contracts not be jeopardised if information is given to Parliament?
Dr Nathan responded that the contracts should be jeopardised if they are going to contribute to terrorism and war. Therefore, it is not a critical problem but rather a critical necessity.

The fact that others were trading in arms meant that there was not an international obligation to be transparent. Therefore, how could South Africa help in upholding human rights when many other nations did not?
Dr Nathan replied that there was already an international movement towards greater transparency. It was illogical to have transparency at some levels and not at others. While it was not South Africa's responsibility to uphold human rights across the globe, the country should be playing an important role in multilateral bodies. Further, South Africa could be setting an example.

How parliamentary oversight could be understood in the South African context?
Dr Nathan argued that parliamentary oversight was the essence of democracy. In a democratic system there should be a whole host of mechanisms to ensure oversight e.g. the Constitution, the Bill of Rights and Portfolio Committees. Furthermore, Dr Nathan pointed out that the issue of parliamentary oversight had already been agreed to in the White Paper. Therefore, the principles were endorsed but still had to be translated into workable practice.

Is the Bill unable to implement proper control mechanisms?
Dr Nathan said that the Bill could implement controls and it was the Portfolio Committee's responsibility to advise the executive whether a particular export should be halted.

South African Catholic Bishops Conference (SACBC)
The submission began with the assertion that the South African arms industry had to be controlled strictly from a moral and human rights basis. Furthermore, the regional build up of power needed to be more tightly controlled. Currently, there appeared to be more spending on arms and less spent on the needs of the population.

One of the SACBC's main problems with the Bill was that it did not allow for enough parliamentary oversight. It was suggested that a clause be added that specified the need for thorough annual reports. Further, it was suggested that more interactions take place between civil society and government before the actual transactions take place.

Another concern was the exclusion of small arms from the Bill altogether. This was nonsensical as handguns and rifles were as dangerous as bigger weapons when they fell into the wrong hands. Therefore, it was suggested that small arms be included in the Bill to ensure that the same standards of control existed for all weapons.

Another concern surrounded Clause 14 of the Bill that dealt with the issuing of permits. Clause 14, 3(d) referred to "international peace". It was felt that this term was too vague and therefore should be changed, rather reading "human rights, human security and international peace".
Clause 16 and 23 were also criticised as they it did not allow for adequate accountability and transparency. In particular, Clause 23 appeared to have been taken word for word from the previous legislation. This section was far too restrictive and would not stand up to constitutional scrutiny. It was recommended that the section get thrown out and redrafted completely.

Discussion
Why should the seller check so stringently on the buyer?
The response was that there were often times in society when there was a clear need for selling controls e.g. the sale of alcohol and tobacco and the regulation of gambling. These types of checks could be extended to the sale of arms.

Does South Africa not need arms to ensure that it can support its allies?
It was noted that occasionally South African allies and neighbours might be the victim of aggression. In this case military intervention might be the only option, but this must still be done within certain mechanisms.

Economists Allied for Arms Reduction (ECAAR)
The basis of the submission was that the Bill should be rejected as it was last year. The premise for this argument was that there was no such thing as a responsible arms industry. It is an unscrupulous industry and therefore both source and supply should be cut out by banning all exports of arms from South Africa. Furthermore, it was argued that South African arms had already caused enough destruction particularly on the African continent. For instance, in the Democratic Republic of Congo.

Terry Crawford-Browne also argued that the industry was not an economically viable sector as it was riddled with corruption and took away services (health and education) from the people in need. It was also argued that there was no way "national interest" could be served by the arms industry. It was stated that killing people for money was barbaric and it appeared as if the arms industry was being given higher priority than HIV/AIDS.

On the issue of corruption, Terry Crawford-Browne insisted that the arms industry was at the centre of corruption scams. He mentioned Tony Yengeni's alleged involvement in the arms deal as well as Saudi Arabian involvement. This involvement was linked to the ANC Election Campaign fund.

In conclusion, Crawford-Browne pointed out that South Africa did not need an arms industry. This was because, firstly, the country was under no security threat from neighbours, and secondly, the cost of acquiring arms was exorbitant. Therefore, overall the notion of a responsible arms trade was a myth.

Discussion
What is the importance of the submission vis-à-vis the actual Bill? Should there be a Bill or not?
Mr Crawford-Browne said his organisation did not support the arms industry at any level. Rather, they supported a complete prohibition on arms exports. The control mechanisms present in the Bill were simply a smokescreen for more illegal deals as there were numerous loopholes.

How do we modify and control the industry?
The response was that you could not legitimate something that was illegitimate.

Did the submission assist in modifying the Bill at all?
Crawford-Browne responded that the Bill had many loopholes and that South African weapons were still being found in Angola and the DRC. Therefore, all exports should be banned.

Could the serious allegations of corruption made in the submission be justified or substantiated?
Mr Crawford-Browne said it had been proven that money laundering between arms and drugs were inter-connected. This link could not really be questioned.

Gun Free South Africa
The submission only raised a few additional issues that were not mentioned by other groups.
Firstly, in Clause 3(b) the organisation sought clarity on the definition of "national interest". It was recommended that the definition in the Bill be amended according to the definition in the Constitution. There was a need for definitional consistency on such important issues. Secondly, various recommendations were made about Clause 5 that dealt with the composition of the committee. It was recommended that the committee consist of Ministers or Deputy Ministers of Foreign Affairs, Defence, and Safety and Security, as well representatives for the Central Firearms Registry, SAPS Legal Services Division, SA Human Rights Commission and the Commission on Gender Equality.

Thirdly, minor changes were recommended for Clause 14 that dealt with the issuing of permits. The recommendations included a greater consideration of human rights in issuing permits.
Finally, serious objections were raised about Clause 23, as it would not allow for appropriate levels of transparency. The objections were in line with many of the previous submission's comments.

Discussion
What does the Central Firearms Industry actually do?
It keeps track of all arms in circulation. It has been in operation for a while and all exports are supposedly forwarded to the NCACC.

Are there statistics on the export of firearms, especially small arms?
There are no statistics are such, but in the case of small arms it has been recognised that it's a sizeable problem. It was commented that the more public knew about arms statistics the better as secrecy and confidentiality allowed arms-brokers to operate the way they did.

Open Democracy Advice Centre (ODAC)
The focus of the submission was not on arms control but rather on the access to information. It was said that a more transparent democracy would assist in people's human rights being protected.

Most of the recommendations concerned Clause 23 of the Bill. Ms Tilley questioned how this Bill would work and whether Clause 23 would not override the access to information. She stated that the Promotion of Access to Information Act was enacted to ensure freedom of information. The problem was that Clause section 23 turned on its head all the previous legislation on access to information. These contradictions needed to be ironed out. In conclusion it was recommended that this section be redrafted to clear up these contradictions and ensure that the public still had access to information.

Discussion
The Committee agreed that Clause 23 needed substantial work and that assistance would be required from the various organisations that made submissions.

Ceasefire Campaign
The submission focused on a number of problems they had with the Bill. Firstly, it was recommended that the preamble be redrafted. This Clause was criticised for its tone in that appeared to be promoting the sale of arms rather than controlling these sales. Surely the preamble should reflect more accurately the purpose of the Bill?

Secondly, a number of recommendations were suggested for Clause 15 of the Bill. This Clause referred to the guiding principles and criteria for the issuing of permits allowing arms sales. Rob Thompson recommended that if a particular country had a record of internal oppression it should be wiped off the list. At all costs there should be an avoidance of increasing the military capabilities of unstable and unsuitable states. Furthermore, there should be a careful checking of a country's compliance with international arms treaties. It was also mentioned that the recipient of arms in a particular country must be an accredited agent of the government. Arms should never be transferred purely on a commercial basis.

Thirdly, it was stated that the Arms Control Committee must guard against becoming part of the "cosy" defence family. This would ensure that there was no conflict of interest. It was recommended that no member of the committee should be related anybody involved in the military or defence circles.

Fourthly, Mr Thomas also criticised the manner in which Clause 23 deals with the issue of transparency. He said the whole practice of secrecy and confidentiality that had so often been associated with arms issues needed to be fundamentally changed. It was recommended that when arms are exported there should be the highest possible amount of transparency rather than vice versa.

South African Council of Churches (SACC)
The SACC expressed many of same concerns highlighted by the other submissions. Douglas Tilton focused especially on moral and ethnical issues particularly with reference to the trading of small arms. In addition to the recommendations on the sections dealing with the appointment of the NCACC Chair, parliamentary oversight and transparency, the SACC said the South Africa had to guard against arming child soldiers that fuelled civil conflicts around Africa.

Institute for Democracy in South Africa (IDASA)
This submission presented by Mr Richard Calland was an extension on the findings of a Human Rights Watch report on South African arms trading, done in 2000. IDASA as an organisation was particularly interested in the issue of parliamentary oversight when dealing with arms issues. Mr Calland pointed out that the Constitution imposed the need for parliamentary oversight and accountability. However, Parliamentary Committees needed to know exactly what they were looking for. Mr Calland recommended a dual approach to ensure oversight. Firstly, oversight had to be precise, and secondly, oversight had to be prospective rather than retrospective.

Discussion
Would parliamentary oversight not jeopardise the deal between the buyer and seller?
The response was that commercial interests should never outweigh human rights concerns. The September 11 terrorist attacks are an indication of what could happen if arms fell into the wrong hands. Secondly, there are ways in which information could be supplied to Parliament that should not effect commercial interests. However, it was also noted that it would be difficult to have one set of rules and regulations ensuring oversight. Rather, a good democracy should be able to adjust on a case by case basis.

The Chairperson thanked all organisations for there submissions and said all recommendations would be considered. It was clear that parliamentary oversight needed to be strengthened on a number of levels.

The meeting was adjourned.

Appendix 1:

AMD PRESENTATION TO THE PORTFOLIO COMMITTEE ON DEFENCE

Madam Chairperson, members of the Parliament's, Portfolio Committee on Defence, ladies and gentlemen.

We are a small team here today representing the Defence-Related Industries of South Africa. We are representing the industry at which the Bill is primarily aimed. May I please introduce: Dr Johann Viljoen: Manager, Arms Control Compliance, Armscor; Mr Paul Gerber: Group Manager, Business Development, Grintek; Mr Pieter Labuschagne: Group Manager, Non-Proliferation and Arms Control, Denel.

We would like to thank the Portfolio Committee for inviting us to the public hearings and giving us the opportunity to present our case.

In contrast with many other policy documents and Bills, that directly affected the industry, we were not invited to participate in a consultative process with regard to the actual preparation of the draft Bill. However, we accept that we are part of the public domain and until now the Bill was in the Government Executives' domain. When we were invited, fourteen days ago, it was the first time that the Bill was formally available to us for evaluation.

We would also like to make it very clear from the outset that the South African Defence-Related Industries support Government's initiatives, national policy, and legislation and we and we recognise the necessity for control over the import, export, manufacture and trade in armaments.

The Defence-Related Industry has gone through a process, over the past six years of consultation with Government, in order for Government to develop a policy on the Defence-Related Industries, as articulated in the White Paper on Defence, the Defence Review and the White Paper on Defence Related Industries.

In terms of Government policy, South Africa needs a defence industry, it is an integral part of the Defence Force's logistics and operational base both in peace and in war. Government policy also recognises that the South African market, i.e. the SANDF, is not large enough to sustain an industry of the type required by the South African Defence Force, therefore Government has stated that industry will have to become a commercially driven export orientated industry which operates within the framework of, and as an extension of foreign policy, and that Government will support the industry in this objective.

We would also like to bring it to the attention of the Portfolio Committee that all Defence Related Industries of South Africa are hybrids of defence and commercial companies, and that none are purely defence contractors in nature. The Defence Related Industry is an integral part of South Africa's broader industrial base, as is also recognised by Government.

It should also be noted that the Defence Related Industry is a recognised foreign exchange earner, an employer of people and very important, at the pinnacle of the technology innovative pyramid as well as an Integrator of Complex Materials.

With reference to the Bill, we have submitted to the Committee a number of comments and recommendations for consideration, in respect of which we would like to comment as follows:

-In the definitions, and particularly the definition of export, the Bill does not define the permanent export of armaments in the context of controllable transactions, but only refers to the entering into commitments and temporary exports relating to conventional armaments.

-In defining the functions and powers of the Committee, which is a creature of statute, the Bill does not address the issuing of permits authorising transactions involving conventional armaments as being a primary function of the Committee

-The Bill does not empower the Committee to authorise or deny authorisation for transactions involving conventional arms;

-The Bill does also not empower the Committee in respect of the balance of control and inspection functions as contemplated in Section 13 and 14.

We would also like to comment regarding certain aspects of the Bill which does not, in our view, contribute to effective arms control, and which may in certain cases lead to absurd results.

As an example a new clause in the proposed Bill contemplates control of dual-use items, which we consider if defined too wide to be prohibitive in terms of practical implementation and enforcement.

International trade in conventional arms can be characterised as follows:

-International trends dictate that in modern defence related industries, the old concept that every component having to comply with military specifications, has long been replaced by the utilisation of civilian components in defence systems, i.e. dual-use components.

-With globalisation, the main weapons or armaments suppliers have become designers, integrators and assemblers of systems, and do not necessarily manufacture components and sub-systems. A company like Boeing International, who supply aircraft, is heavily reliant upon contractors and subcontractors in the commercial sector, irrespective of country, is a case in point.

-In order to properly control armaments, it should be controlled at the point of sale or transfer of the finished product constituting a weapon or major component thereof. For instance, on a military fighting vehicle, the shock absorbers, tyres, wheels, engines, gearboxes and thousands of other components, spares, parts and consumables are commercial off-the-shelf products bought and imported from civilian companies. It will be prohibitive for the industry and the control authorities to exercise effective control over all transactions involving these items.

We are also now, in terms of contracts resulting from Government supported partnerships with international companies, receiving components in knock down form from overseas manufacturers. South African companies add value to these components and build up a sub-system. This sub-system is sent back for integration into another system. The international trend in this regard is that industry-to-industry contracts have become more prevalent than industry to Government contracts.

A concerted effort should be made in this regard, in partnership between the industry and the control authorities, to achieve a control environment that is enabling rather than restrictive within the boundaries of foreign policy imperatives.

These are only two examples we would like to highlight, we can mention many more, e.g. def of services.

In conclusion, we request this Committee to consider requesting the drafters of the Bill to enter into a constructive consultative process with industry and Armscor in the drafting of a final Bill reflecting Government objectives and policy regarding conventional arms control. Also more importantly to involve industry early in the drafting process of the, to-follow- regulations.

Again, we would like to reiterate that we accept that as with any South African legislation, our national interests have priority.

Thank you once again for allowing us the opportunity to address you on this, we believe for South Africa, a very important issue.

Appendix 2:

ARMSCOR COMMENTS ON NATIONAL CONVENTIONAL ARMS CONTROL BILL
Section 1 (iv)
1.'Conventional arms', in the context of this Bill, should be defined in terms of armaments, together with the means necessary to design, develop and manufacture it, including technical data, e.g. data packs. The term technical data should therefore be explicitly included in (b).
'Technical data' may be defined as follows:

Technical data means information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of conventional arms. This includes information in the form of blueprints, drawings, photographs, plans, instructions and documentation. This definition does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain. It also does not include basic marketing information on function or purpose or general system descriptions of conventional arms.

2. The interpretation of the catch all phrase 'any other articles of war' may create problems for industry, and will be difficult to enforce from a legal point of view.

3. The phrase 'component, equipment, system, process (not processes) and technology of whatever nature capable of being used in...' may be interpreted to include almost all technology related items. Such items should be qualified as those 'either specifically developed, designed, manufactured or adapted to be used in

4. The definition of a weapon of mass destruction should be added to Section 1 for easy reference.

Section 1(v)
Replace the term 'convey/conveyance' with the term 'transit', as in the Non-Proliferation Act. Section 1 (vii)

1. The term 'equipment' should be included in the definition of 'dual-use goods', as it constitutes a major category of such goods.

2. Guidelines for items to be classified as 'dual-use goods' should be provided in Regulations under Section 27 of this Act.

3. The list of dual-use goods to be published in the Gazette by the Minister, will have to be done under Section 27 of this Act.

Sections 1 (ix)
The definition of 'export' may perhaps be simplified:

'export' means to take or send conventional arms, on a temporary or permanent basis, from the Republic to a state or territory outside the Republic or to cause conventional arms to be so taken or sent out.

Sections 1(x)
Similarly the definition of 'import' may be simplified:

'import' means to bring conventional arms, on a temporary or permanent basis, from outside the Republic into the Republic or to cause conventional arms to be brought into the Republic;

Section 1 (xii)
Change to:

'manufacture' includes the design, development, production and assembly, or elements thereof, of conventional arms.

Section 1 (xxi)
The definition of 'services' should be confined to services related to conventional arms or military related services.

Section 1 (xxiii)
'technology' includes any technique, expertise, technical data or know-how that can be utilised in the design, assembly, development, manufacture, upgrading, refurbishment or maintenance of conventional arms;

Section 1 (xxiv)
'this Act' includes any Regulations made in terms of section 27;

Section 4 (1)
In (d) and (f) reference is made of aspects of permits, but only in Section 14 it is stated that the Committee issues permits. One would expect the issuing of permits, which is one of the prime functions of the Committee, to be listed in Section 4.

Section 4 (2) (a) (i)
In order to be able to investigate suspicious deals, the wording should probably be

(i) any trade for which substantial reason exists to suspect that conventional arms are involved;

Section 4 (e)
Problem with construction of sentence. It should probably read:

Recommend to the Cabinet and obtain the Cabinet's approval on whether the regulation of conventional arms and services should be changed...

Section 5
Specific Departments must have representation on the Committee, e.g. Defence, Foreign Affairs, Trade and Industry, National Intelligence, Public Enterprises, etc.

Section 6
A minimum number of meetings per year should be prescribed.

Heading Chapter III 'Control and Inspection'
The Inspectorate was already described in Section 9.

Section 13
1. Replace the term 'convey' with 'transit'.

2. All the actions listed in 13(a) constitute the definition of 'trade' in Section 1 (xxv), and then trade is added to the list. Either delete the term trade or the definition for trade.

3. Does the term 'trade', as defined in Section 1 (xxv) include trade between South African entities?

Section 16
First line: remove the words 'or dual-use goods', as it is part of the definition of 'conventional arms'.

Section 17
In terms of South Africa's policy on the non-proliferation of weapons of mass destruction (see e.g. Section 2 of the Non-proliferation Act, Act No 87 of 1993), restrictions on the end-use, and not only the end-user should be posed. As we trade with countries that may possess or develop weapons of mass destruction, one should require a statement that EUC items will not be used to develop, deploy, deliver, etc. such weapons. Many countries already require such statements.

Section on confidentiality
It is necessary to provide for the confidential handling of information furnished to any person in terms of this act, e.g.:

(1) Any competent authority, as defined in section 1 (iii) or any other person who is or was concerned in the performance of any function in terms of this Act, shall not disclose, transmit or make known to any person, whether within or outside the Republic, any information which he obtained in the performance of such a function or cause such information to be disclosed, transmitted or made known, except
(a) to the Minister;
(b) to any person who of necessity requires it for the performance of his functions in terms of this Act or any other law;
(c) where he of necessity supplies it in the performance of his functions in terms of this Act;
(d) where it is required in terms of any law or as evidence in any court of law;
(e) to any competent authority within the Republic, or, with the written consent of the Committee,
(f) to any authority outside the Republic which requires it for the institution, or an investigation with a view to the institution, of any criminal prosecution;
(g) by or on the authority of the Minister or the Committee.

(2) (a) If the Minister is of opinion that the disclosure of certain information may compromise the functions of the Committee, or the interests of the industry, he may direct that any proceedings, excluding court proceedings, be held in camera.
(b) If any court is of opinion that the disclosure of certain information may compromise the functions of the Committee, or the interests of the industry, it may direct that any proceedings before it be held in camera.

D GRIESEL, ASSISTANT GENERAL MANAGER, ACQUISITION

Appendix 3:

Short Submission from IDASA

Human Rights Watch Report

1. We were asked by the international human rights NGO, Human Rights Watch, with whom we have an established association, to make copies of their report "A Question of Principle: Arms Trade and Human Rights" available to the Committee.
2. We are happy to do so - and grateful for the opportunity to do so (we have made copies for distribution) - because although the report was published first in October 2000, most of the observations contained within it remain pertinent. In particular, it provides a useful contextual overview of the subject and contains some solid suggestions about the regulatory framework that they argue is necessary to ensure that arms sales do not cause violations of human rights elsewhere.

Parliamentary Oversight

3. South Africa's constitution is clear: the executive is accountable to parliament; the legislature must exercise oversight over the executive. They are, we submit, two sides of the same coin. There is on-going discussion around what, in conceptual terms, oversight and accountability mean. A special parliamentary sub-committee is also busy finalising a report in response to Professor Hugh Corder's report on Parliamentary Oversight and Accountability, which makes recommendations as to the operation and practice of oversight by parliament.
4. The Corder Report distinguished oversight from accountability, defining the latter in narrow terms: "Basically, accountability means 'to give an account' of actions or policies, or 'to account for' spending and so forth. Accountability can be said to require a person to explain and justify - against criteria of some kind - their decisions or actions. It also requires that the person goes on to make amends for any fault or error and takes steps to prevent its recurrence in the future. A condition of power in a constitutional democracy is that the administrative or executive is checked by being held accountable to an organ of government distinct from it" (Corder 1999: 2). This is to be distinguished from oversight, which "…refers to the crucial role of legislatures in monitoring and reviewing the actions of the executive organs of government. The term refers to a large number of activities carried out by legislatures in relation to the executive. In other words oversight traverses a far wider range of activity than does the concept of accountability." (Corder 1999: 2).
5. This Bill provides an "historic opportunity", as Dr. Laurie Nathan rightly puts it, to create a meaningful framework for oversight. For it to be meaningful, the law must be both

• Precise; and
• Prospective.

1. In other words, as Dr. Nathan also suggested, the law should prescribe exactly what the NCACC should provide by way of information to the assigned parliamentary committee. Second, it should provide parliament with an opportunity to discuss and offer a recommendation before the sale/export of arms - to do so afterwards is an exercise in futility.

Other Submissions

2. IDASA expressly supports the submissions of Dr. Nathan and the Open Democracy Advice Centre.

Richard Calland, Programme Manager: PIMS
The Political Information & Monitoring Service at IDASA

Appendix 4:

Open Democracy Advice Centre

11 October 2001

CONVENTIONAL ARMS CONTROL BILL - COMMENTS
The Open Democracy Advice Centre is a project of Idasa, the Black Sash Trust, and the University of Cape Town Department of Public Law.

The Open Democracy Advice Centre's mission is -

to promote an open and transparent democracy;
to foster a culture of corporate and government accountability and transparency; and
to assist persons in South Africa to be able to realise their human rights.

ODAC seeks to achieve this mission through supporting the effective implementation and protection of rights and laws which enable access to, and disclosure of, information. We aim, amongst other things, to enhance civil society access to public & private information through the new Promotion of Access to Information Act (POATIA).

Our greatest concern at this stage is the deletion of the previous section 23(2)(c) in the in the most recent version of the Bill.

We are concerned that the operation of the Promotion Of Access To Information Act (POATIA) may be undermined by the deletion of this clause, which specifically made provision for the operation of this Act. The deletion of section 23 (2)(c ) has resulted in a conflict between POATIA and the Bill.


Section 5 of POATIA provides:
"This Act applies to the exclusion of any provision of other legislation that-
(a) prohibits or restricts the disclosure of a record of a public body or private body; and
(b) is materially inconsistent with an object, or a specific provision, of this Act."

Section 5 governs the relationship between POATIA and legislation restricting access to information. The effect of section 5 is that the POATIA overrides other legislation that prohibits or restricts disclosure and that is materially inconsistent with an object or a specific provision of the Act.

Section 23(1) of the Conventional Arms Control Bill clearly restricts disclosure of certain information.

The general rule, however, is that a later law overrides inconsistent earlier law. This would mean that if the Bill is passed in its current form it would override the POATIA. This would be the case despite the fact that the Bill does not expressly exclude the application of POATIA. The exclusion of the application of POATIA by implication may be sufficient for the Bill to eventually override it.

Further, the information which the Bill seeks to protect does not fall within the ambit of the exemptions set out in chapter 4 of the POATIA. Even if an exemption did apply, the "public interest override" found in S46 of the POATIA could be used to overcome such difficulty. There is thus no guarantee under the POATIA that the information referred to in the Bill would be protected from disclosure.

It would be helpful if the drafting of Section 23 of the Bill makes clear its relation to POATIA, which previous versions of the Bill did. If it does not, then litigation around the right to access this information would have to ensue, based on whether or not this is a reasonable and justifiable further limitation of the right to access to information, particularly as it is to an extent greater than that considered reasonable and justifiable by the Justice committee.

Alison Tilley
Project manager