SANDF deployment letters: Committee complaints & approval; National Conventional Arms Control Amendment Bill [B45-2008]: deliberations

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Defence and Military Veterans

26 August 2008
Chairperson: Dr E Schoeman (ANC)
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Meeting Summary

Letters about SANDF Deployment
The Chairperson referred to the three letters of deployment relating to the extended use of South African National Defence Force members to combat xenophobic violence, the extended deployment of peace-keeping forces in Burundi and the deployment of seven SANDF members to Uganda.

Deep concerns were expressed by the members that no response had been received to the Chairperson’s letters addressed to the Speaker regarding the deployments. They had been sent on 18 June 2008. It was also felt that the oversight role of the Committee was being undermined by the lack of timeous communication – as it seemed that the Committee had no right to object to any deployment once the instruction was given.

Nevertheless, the letters of deployment were formally adopted by the Committee although it was resolved that a legal opinion be obtained, as to exactly what the constitutional mandate of the Committee was in terms of such matters. The Chairperson also agreed to follow up urgently why no response had been received from the Speaker.


National Conventional Arms Control Committee (NCACC) Amendment Bill: Deliberations
Concerns were again expressed about the possibility that the NCACC might be granted powers to delegate its role to functionaries. It was also agreed that the poor quality of reporting and the failure of the NCACC to provide reports, as required, should be addressed. It was noted with concern that despite being composed of members of Cabinet, the NCACC had not reported satisfactorily even to this body. Most of the other amendments were, however, seen to be sensible and desirable.

Meeting report

Consideration of Letters of SANDF Deployment
The Chairperson began the session by expressing his regret at the untimely demise of the Secretary of Defence, Mr January Masilela. The other members echoed his sentiments and all rose and had a moment of silence, as a token of respect.

The Chairperson referred to the contents of the letters of deployment before the members. Two of them were extensions of deployment, the first regarding SANDF forces who were assisting the SAPS in their campaign against xenophobic violence, the second regarding the peace-keeping force in Burundi. The third letter concerned the deployment of seven SANDF members to Uganda.

The mood of the session became increasingly sombre when the Chairperson noted his deep concern that his letter addressed to the Speaker on 18 June 2008 concerning the deployments had yet to elicit a reply. While the letters of deployment complied with section 201 of the Constitution. The other provision required Parliament to be in session at the time when the letters were issued. This provision was not complied with. If Parliament was expected to perform its oversight role, it should presumably be notified within the stipulated seven days. Failure to do this seemed to violate the principle of the separation of powers. The question of cost was also not discussed, which was problematic as the deployment was often not budgeted for. Further, the deployments often had a political background of which Parliament was not appraised. 

Discussion
Mr R Shah (DA) expressed his appreciation for the Chairperson’s frank and earnest response which reflected the concerns of the entire Committee. He was rather exasperated, however, that since 18 June no response had been received from the Office of the Speaker. Consequently, he requested a follow up letter asking for a response. He was of the opinion that Dr Schoeman and the Committee had been treated with disregard and issues of great constitutional and political concern were being swept under the carpet.

Mr V Ndlovu (IFP) wondered if the fact that English was his second language made him misunderstand the meaning of ‘promptly’ when describing response time described in Section 201. He asked how the Joint Committee could perform its oversight function if it were not communicated with. He was in agreement with the tone of the Chairperson’s letter to the Speaker as he believed that the Committee was being used as a rubber stamp. 

Dr G Koornhof (ANC) identified six issues in the Chairperson’s letter and stated that unless a satisfactory answer was obtained to all of them, the Committee could not move forward. The time lags between the date of letters and deployment varied between two weeks and three months and the question was where the delay had taken place in the process of communicating with the Committee. It was imperative to find where the problem lay in the chain of communication.

The Chairperson agreed that was a general problem, citing the fact that one of the letters of deployment was received after the date upon which the forces were to be deployed.

Mr L Diale (ANC) noted that the Committee was also to blame for taking too long to write a follow-up letter to the Speaker. He agreed on the need to send such a letter immediately.

Mr A  Moseki (ANC) agreed that the parliamentary process was being short-circuited by the lack of timeous communication.

The Chairperson called for proposals for accepting the letters of deployment. These were passed without opposition. A discussion did, however, ensue after this motion and the Chairperson allowed for further comments.

Mr N Fihla (ANC) agreed that urgency was required because the matter concerned soldiers, not ordinary citizens.

Mr Shah suggested that the defective communication implied a conscious effort to short-circuit Parliament.

Mr F Benghu (ANC) asked whether the Committee had sought a legal opinion on the matter as there seemed to be a conundrum as to the interpretation of the Constitution. He noted that the soldiers were deployed de facto by the President, not Parliament. It was, therefore, the duty of the Joint Committee to pick up on this debate. There was clearly an administrative problem in the Office of the President and, wittingly or unwittingly, this had led to the Committee being undermined.  

The Chairperson said that he had in fact asked the Speaker for a legal opinion on the matter, as Section 201 suggested that Parliament be informed within 7 days. He was not sure if this was indeed the correct interpretation. The legal opinion was awaited on this and the question of the separation of powers. There was a time delay here as well.  The Chairperson reluctantly added that a previous letter requesting a meeting between the Chairpersons of the Joint Committee and Portfolio Committee on Defence had also received no response, intensifying his unease.

Mr S Ntuli (ANC) said that the Joint Committee should decide on what degree of oversight they believe is warranted over decisions. The Committee should discuss amongst itself whether it desired a pure oversight role or a greater say.

Mr Ndlovu pursued his earlier point and asked what the definition of  “informing” was. Did it include the right of refusal and did it mean that the Committee had the power to monitor the deployment of SANDF forces or was that the preserve of the person ordering the deployment (that is, the President).

The Chairperson agreed and asked whether oversight could really be said to be carried out by the Committee if it had not been part of the process leading up to the deployment.

Mr Shah added that the interpretation of “promptly” must also be interrogated. If the citizens were unhappy with a particular deployment, could the Committee articulate their views? It would seem that this was not the case and he would like to see the Committee being given more teeth.

Ms P Daniels (ANC) expressed her deep concerns about the financial implications of the deployment. She asked who would foot the bill as SANDF funds were severely limited. 

The Chairperson said that the question of financial implications was not mentioned in the Constitution but this was surely an egregious omission as the funds rarely came back to the Department of Defence (DoD), when promised by other departments. He undertook to obtain legal opinions on the matters under discussion and contact the secretary of the Speaker personally by phone, requesting a response to the two letters which they had sent.

Mr Benghu suggested that a record of the letters sent to the Speaker be forwarded to the members when the Chair contacted her secretary.

The Chairperson thanked all for their attendance and adjourned the session.

Deliberations on the National Conventional Arms Control Amendment Bill chaired by Chairperson of Portfolio Committee on Defence: Mr F Bhengu (ANC)
The Chairperson of the Portfolio Committee on Defence recapped on the previous sessions, referring to the concerns expressed on the independence of the NCACC as it was a sub-committee of Cabinet. He expressed the general view that amendments should be made to the effect that the NCACC reported both to Parliament and to Cabinet.

Discussion
Dr Schoeman (ANC) was extremely concerned that neither Cabinet nor the Portfolio Committee had received quarterly reports from the NCACC. When information had been supplied it was deficient in detail. It was, therefore, perilous to assume that the process was being improved when it might be watered down by amendments which did not require the NCACC to submit quarterly reports.

Mr Ndlovu (IFP) noted that the Department of Defence was not involved in the NCACC; therefore it should have been briefed by the NCACC. At present it seemed to him that the NCACC operated outside of Parliament. This posed a further question of who was then finally responsible for the NCACC.

The Chairperson agreed that this question had not been resolved.

Mr Shah (DA) echoed the concerns expressed up to this point and added that the Committee still needed to deliberate on what shape the ‘internal regulations’ regarding the activities of the NCACC would take. He asked who would be responsible for making these regulations. If the Scrutiny Committee was removed from the Bill, the Committee must be proactive to prevent any new regulations from having the same effect of devolving power to another body.

The Parliamentary Legal Advisor noted that although sections 7A, 7B, and 7C would be deleted, section 4(11) and 4(14) technically permitted the NCACC to delegate its responsibilities to a sub-committee. Further, dealing with the functions of a body like the Scrutiny Committee by regulations could have same effect of devolving power to another body.

Ms Daniels said that it seemed to her that the NCACC wanted to obtain extra powers in whatever way possible.

The Chairperson expressed similar sentiments. If the members of a sub-committee were also members of the NCACC there would be no problem but if not, they would be performing a function that was not their responsibility. It was also clear to him that the reporting by the NCACC had been insufficient and that this should be communicated to the Minister of Defence.

Mr Shah emphasised that other parts of Bill were sensible amendments and had not been objected to by the members. An area of concern remained the problem of selective exemptions for the issuing of EUCs (End User Certificates) because this could be open to abuse. He believed that this matter should be raised at the next meeting of the Committee.

Mr Ndlovu expressed a general sentiment when he asked why the provisions of the existing Act had not been complied with in terms of the Scrutiny Committee.  He added that it was clearly the responsibility of the NCACC to sit on any sub-committee and there would be no need for amendment in this regard.

Dr Schoeman agreed with this point, noting that in terms of Clause 11, the Minister was given broad powers of delegation, as to who may serve on a sub-committee of the NCACC. This could lead to a committee which is composed of functionaries assuming the same powers as the NCACC.

The Chairperson suspected that there was a lack of input on the part of the Minister in the process, as it was clear that a common position had been reached by the members.

The meeting was adjourned.

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