National Conventional Arms Control Amendment Bill [B45-2008]: discussion on public submissions

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Defence and Military Veterans

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

The Committee discussed what had been raised in the public hearings on the National Conventional Arms Control Amendment Bill. Both the ANC and the DA had serious concerns about the establishment of the Scrutiny Committee – as had the Minister of Defence in his recent meeting with the Committee. The concern was that important powers and responsibilities might be delegated to officials. The Scrutiny Committee could usurp the decision-making powers of the NCACC, and move the Cabinet further away from the oversight of conventional arms in the country. There were also concerns about the vetting for and the capacity of this Scrutiny Committee and the elimination of quarterly NCACC reports in favour of annual reporting. Currently, not even the annual reports were delivered to Parliament on time. The content of the report contained information only on exports and this was also found to be inadequate. The Portfolio Committee and Parliament needed to be informed at all times on all such matters. The Committee planned to raise these matters with the Department of Defence on the following day.

Meeting report

The committee researcher highlighted some of the issues that were raised at the public hearings:

The South African Catholic Bishops Conference (SACBC) referred to the establishment of the Scrutiny Committee and stated that the National Conventional Arms Control Committee (NCACC) was a political committee and acted as a sub-committee to Cabinet. This committee was already in operation and the de facto decision-making body. Their concern was that the Scrutiny Committee could usurp the decision-making powers of the NCACC, and move the Cabinet further away from the oversight of conventional arms in the country. It was thus suggested that one member of NCACC be on the Scrutiny Committee. It was also suggested that an outside expert be part of the Scrutiny Committee, and that this be a person with no vested interest in the arms of South Africa. SACBC also suggested that the skills of an expert in international law and international relations would enhance the capacity of the Scrutiny Committee to make for more reliable and credible recommendations.

Section 23 also attracted a lot of attention and interest. One request was that it needed to be drafted in layperson’s language. Also noted was that some of the information was made available to the United Nations but was omitted from viewing by the South Africa public.

Armscor raised the issue of end user certificates. It also stated that a grading system should be customised. They asked for a possibility to digitise the process as the current manual process was very cumbersome and time consuming and documents got lost easily.

Armscor asked for clarity on relationships amongst all the bodies, that is, the Inspectorate, the Scrutiny Committee, the NCACC and the Secretariat. In addition, it challenged the legal standing of the Scrutiny Committee. It also requested reasons why the Defence Force and police were excluded from being compliant. It was suggested that the controlled items list be reviewed on an annual basis and that this review process include the relevant stakeholders.

Discussion
Mr R Shah (DA) raised several issues. Firstly, he wanted an adequate explanation why they wanted to provide only annual reports as opposed to quarterly reports. He mentioned that to extend this to an annual basis would be problematic. His second concern related to the NCACC’s need to issue permits and the Scrutiny Committee would thus need proper functioning. He wanted to know if they were informed as to what structures were in place regarding capacity. Thirdly, he raised the issue of exemption as stated in Clause 20. He said that in order for the Portfolio Committee to fulfil their oversight role, it was important to know that the Scrutiny Committee would not provide blanket approval. Furthermore, the Portfolio Committee needed to make sure that no organ of state went against the principles of the Constitution

Dr Schoeman (ANC) also questioned the Scrutiny Committee and expressed his concern that there would be too much power in the hands of officials. He asked for careful consideration of the concept and expressed his reluctance to give blanket approval for the establishment of this committee without its functions, roles and powers being clearly stated in the Bill. He also voiced his concern about the lack of reporting by the NCACC to Cabinet and to this parliamentary committee. The Portfolio Committee had to ensure that at least one member of the NCACC and one person from the outside was on the Scrutiny Committee.

Dr G Koornhof (ANC) noted that many issues were raised but only some of them needed to be legislated upon as some related to management. He stated that the Portfolio Committee had to apply their minds carefully to the establishment of the Scrutiny Committee because it was necessary to bear in mind that the NCACC could delegate functions but it could not delegate responsibilities.

He referred to Section 23 and stated that the Portfolio Committee needed to make sure what the original intentions of the 2002 Act were.

He spoke about the importance of what would be reported on in the composition of the annual reports as the current system of reporting on exports only was problematic.

He also had issue with the exemption clause and stated that it was problematic.

Dr Koornhof stated that as regards the capacity issue, it was necessary for the Portfolio Committee to make sure that it understood what was needed in terms of human resources and finances.

He stated that the Armscor proposal about the grading system was not needed in the legislation. He also said that one could not legislate for meetings to take place. Nor could the Portfolio Committee legislate for relationships to exist between the various bodies of the NCACC. Rather it had to obtain an agreement of understanding.

The Chairperson raised the concern about the relationship of the NCACC and the Cabinet. He reminded the Portfolio Committee that when they had been briefed on this Bill, the Minister of Defence had made it clear that he was not in agreement with the proposal for a Scrutiny Committee. Minister Lekota questioned whether these sub-committees would be run by officials and he said that to have this Scrutiny Committee run by bureaucrats was to regress politically.
Mr Bengu stated that it seemed that here was a situation where one found officials running the show. He reminded committee members that they were not there to play games; and if there was something hidden behind the bill, it would be important for the Committee to find out what it was.

He also stated that the Committee had not found any conclusive arguments why the quarterly reports should be replaced with only annual reports. He reminded the Committee that not even the quarterly reports were forthcoming, and that was very problematic.

Mr Shah said that there were real concerns about the capacity of this Scrutiny Committee.

Mr S Ntuli (ANC) said that the request for quarterly reports was well thought out and therefore the Committee could not do away with it in favour of annual reports. He expressed his concern about the vetting of the Scrutiny Committee.

Dr Koornhof stated that the Scrutiny Committee was an official committee and that their functions were wide ranging. He was starting to feel uncomfortable. It was important to note that the NCACC could not delegate their political responsibilities to officials and asked for serious consideration of this matter.

Dr Schoeman noted that when looking at the functions of the Scrutiny Committee as addressed in the Bill, the Explanatory Memorandum on the Objects of the Bill stated that the functions of the Scrutiny Committee had addressed the concerns of the Auditor General.  He stated that Parliament was entitled to know what the concerns of the Auditor General were. He was uncomfortable that the Scrutiny Committee might be being used as a smokescreen and the Portfolio Committee were entitled to know what the Auditor General’s concerns were. These concerns should be contained in the Auditor General’s Report and this was a public document

Mr Shah stated that the defence industry had complained that their orders were not timeously processed by the NCACC and as a result they were losing contracts. The Portfolio Committee had a responsibility to ensure that the defence industry functioned optimally and that they retained skills for this country. There was also a need to address the anti-mercenary aspects of the Bill.

Dr Koornhof stated that the AMD submission had not raised a concern about any Auditor General matter and asked therefore why the NCACC would make an argument motivating for the Scrutiny Committee. He suggested that the Committee request reasons for the Scrutiny Committee from the Department of Defence.

Mr Booi (ANC) echoed his concerns about the Scrutiny Committee.

The Chairperson stated that there must be something wrong with the Department if they were waiting idly by for another bill to be enacted. The Department needed to come forward and explain how they intended to implement this legislation. This was confusing.
 
Mr Ntuli said that he would look into the matter of the Anti-Mercenary Bill which had already been passed in 2006 [but was not yet promulgated].

Dr Koornhof requested that the Committee wait for the clarity requested and suggested that these could be two separate issues.

The Chairperson asked members to speak to the issue of disclosure and non-disclosure.

Dr Koornhof replied that this referred to the quarterly reports. Valid reasons needed to be made about why quarterly reports should be scrapped. What information should be disclosed also needed to be addressed. The parliamentary committee must have authority to ask for any other information needed for clarity. He also wanted more information as to reason why only information on exports was disclosed to the Committee.

Dr Schoeman expressed his concern regarding the frequency of the reports. He mentioned that if quarterly reports had been forthcoming, the annual reports would have reached the Committee sooner. He stated that to do away with quarterly reports would delay everything. The Committee must insist that quarterly reports remain and that they be tabled in Parliament.

Mr Shah expressed his concern that if there were non-disclosure, how would the Committee enforce proper oversight? The Committee could not allow a “client” to violate parliamentary rights and rights to transparency.

The Chairperson maintained that nothing could not be disclosed to the Portfolio Committee and that it was up to this committee to determine what could or could not be disclosed.

Mr Ntuli suggested that there was a need to look at what went into these reports. While South Africa was not selling illegal weapons such as nuclear arms, cognisance needed to taken of the strategies of defence of another buying country that might not want to disclose the number of arms bought as it might affect that particular country’s national security. It was necessary for the Committee to consider commercial interests. He added that it was important for the Committee to look at the issue of vetting and its purpose and that even if committee members need to be vetted. This would have to be considered in order to ensure industry confidentiality and that this must be balanced with disclosure.

Mr Shah suggested that confidentiality related to quantity and not to the nature of the arms being sold.

The Chairperson stated that controlled items were addressed adequately in the Bill

Mr Bengu reiterated the question about the purpose of the Scrutiny Committee and why the restructuring was required so quickly. He stated that the issue that talks to public scrutiny, the role of the Portfolio Committee and Parliament must be made very clear.

It was agreed to continue with deliberations the next day and address the Department on these issues. The Chair emphasised his concern about the NCACC reports. As not even the annual reports were delivered on time, the NCACC needed to address this matter seriously. The Portfolio Committee and Parliament needed to be informed at all times. He also asked about which members were to represent the Committee on the NCACC and that these names be provided.

The meeting was adjourned.

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