National Conventional Arms Control Amendment Bill: deliberations

NCOP Security and Justice

07 October 2008
Chairperson: Kgoshi L Mokoena (ANC)
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Meeting Summary

A delegation from the Department of Defence presented an extensive overview of the National Conventional Arms Control Amendment Bill, setting out the key objectives, and the content of the Bill. It was explained that the amendments were intended to ensure that South African arms control mechanisms would become more effective, to promote responsibility and accountability in South African arms transfers, and to assist in prohibiting mercenary activities. The Department summarised the role of the National Conventional Arms Control Committee (NCACC), the establishment of a Scrutiny Committee; the proposed criminalisation of unauthorised possession and domestic trade; and the introduction of an Industry Internal Compliance programme. It also set out the details in respect of the transfer of conventional arms in South Africa, both nationally, and the internationally accepted best practice of ensuring that South Africa must be advised of any on-sales of armaments purchased from South Africa.

Members raised questions on the alleged “administrative chaos” in the NCACC, questioned a report on the munitions exports to Indonesia, which allegedly had been reported to the United Nations, but not supervised by the Committee, and questioned the delays in providing clearance. The Department responded to all the allegations, and stressed that the transfer of arms and the regulation of it must be seen in the context of the commitment to the international agenda of disarmament and non-proliferation of arms, and also on the strong defence industry base existing in this country. Other questions related to the administrative and legal challenges faced by the Committee, its new functions, some deceptions that had occurred in the past, and the reasons for requiring end-user certificates from countries that purchased arms from South Africa.

Meeting report

Vision for Combating Crime: Cancellation of briefing by Minister of Safety & Security
The Chairperson noted the apology of Minister Nathi Mthetwa, Minister of Safety and Security, for being unable to present the Vision for Combating Crime, scheduled for the meeting, due to a Cabinet engagement.
 
National Conventional Arms Control Amendment Bill (the Bill): briefing by Department of Defence (DOD)
Mr Dumisani Dladla, Director of Conventional Arms Control, Department of Defence, briefed the Committee on the background and objectives of the Bill.

Mr Dladla stated that the National Conventional Arms Control Committee (NCACC) was a government functionary, instituted to regulate legitimate trade in arms. It represented a set of new values relevant to such activities. It existed side by side with the South African Police Service (SAPS) Firearms Registry, and the Department of Trade and Industry’s Non-proliferation Council. It operated within the context of a strong defence industry base, as well as international agreement on the sensitivity of the arms trade.

South Africa had emerged as an international player, and had to assume a responsible role. A predictable arms control system was essential, in terms of accountability, regularity and objectivity.

The current National Conventional Arms Control Act (the principal Act) had been established in 2003, and lessons had been learnt since. Practical and legal challenges had emerged, and a conception of the realities of the industry, both on domestic and international fronts. The NCACC was tasked with forging effective relationships with the industry. Ground rules had to be established for the functioning of the industry. Maturity was required on the part of the regulator and the industry.

The Act had been under review since 2006, with an inter-departmental workgroup created for this purpose. Amendments were approved both by the NCACC and Cabinet. Cabinet had approved the proposals on 14 May 2008, and the National Assembly had also given its approval. The matter was now being brought to the Select Committee for further deliberation.

Mr Dladla continued that the NCACC had to be brought in line with the realities of business. The Act to which it owed its existence exhibited a bias towards trade, especially across borders. The scope of the Act had to be extended to include domestic arms transfer and unauthorised dealing.
Possession of conventional arms had to come within the fold of regulation. A position had to be adopted with regard to dual use items, which could be put to civilian or military use. He cited the example of computers, which could be employed to navigate a battleship, besides its more customary uses. The Wassenaar Arrangement could provide guidelines in this regard.

Definitions
Mr Dladla took the Committee through the proposed definitions. “Armed conflict would refer to armed conflict as defined in the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act. “Controlled items would replace the term “conventional arms”. The former term would also include dual use goods and technical services. Controlled items would be specified in a notice published by the NCACC in the Gazette in terms of Section 27(3). There would have to be a constant updating of the list of conventional arms in terms of the Wassenaar Arrangement. The prohibition of mercenary activities had to be defined more adequately.

Objectives
An important objective of the new legislation and the NCACC would be to criminalise the possession of military arms, except by legal government security agencies.

The objectives of the NCACC were further defined to include regulation of domestic transfer. The prohibition of mercenary activities was important, because it was related to the power to prescribe thresholds for other possible future arms legislation. The SAPS had to be authorised to export, for instance, 9mm weapons or ammunition. It would be untenable to have a proliferation of agencies authorising export of weapons out of the country.

An important regulatory function of the NCACC was related to the provision of end-user certificates by countries purchasing conventional arms from South Africa. Mr Dladla emphasised that this was international practice. This practice was intended to prevent recipient countries from re-selling arms acquired from South Africa. Mr Dladla insisted that if country X wished to sell a South African Rooivalk helicopter to country Y, South Africa should know of it. Requests for exemption would be measured against a value system, which would take into account the purpose and use to which the items would be put. There had to be monitoring, but this was to be done in ways that would not frustrate the industry.

Reports
The obligation of the NCACC to report to the United Nations (UN) and to Parliament on an annual basis would be retained. The current Act only required reporting on exports, but this would be extended to include reports on all transfers, contracting and marketing. The Bill would retain the NCACC’s powers of discretion regarding released information, but within the provisions of the Promotion of Access to Information Act. It would also retain an obligation to justify administrative decisions, but within parameters of exemption provided by the Promotion of Administrative Justice Act. 

Offences and Penalties
Penalties were envisaged for unauthorised arms trade and possession. However, there would be no interference with the existing judicial process regarding weapons forfeited to the State.

Less serious offences would be dealt with through administrative mechanisms. Administrative penalties would have to comply with processes of administrative justice, and the choice of opting for a court process was provided.

Exemptions
Mr Dladla noted that the SAPS and South African National Defence Force (SANDF) could be exempted from permit requirements if a need arose to deploy at speed. Mr Dladla used the example of a disaster occurring in a neighbouring country. The Chairperson of the NCACC, plus one other member could provide such exemption, with ex post facto ratification. It was imperative that such actions did not compromise principles of accountability.

Compliance
Mr Dladla turned to the institution of the Industry Internal Compliance Programme (ICP). The strategy proposed was defined as best practice promotion. It would be required of companies to indicate exports, and to establish extensive filing systems. Companies would be graded according to performance. A clear-cut methodology for this grading had to be developed. The NCACC had to be in a position where resources could be spent to require recalcitrant companies to comply.

Programme Approval
The practical application of this concept would be the granting of multiple export or import permits. In practice, a South African manufacturer co-operating closely with a manufacturer overseas would need authorisation to import and export items rapidly, and on an ongoing basis. This could facilitate the launching of large manufacturing programmes. Non-compliance with principles of audit accountability could disqualify companies from obtaining such permits.

Regulations and Notices
The NCACC would be empowered to issue notices and make regulations. A periodic publication of lists of controlled items, was envisaged.

Discussion
Mr D Worth (DA, Free State) referred to “stinging attacks” against the NCACC in the press. He noted that there had been complaints from the arms industry about administrative chaos. Mr Worth described the arms industry as a sensitive and competitive industry. He mentioned that ammunitions exports to Indonesia had been declared to the UN by a company, and that the NCACC had allegedly been shown to be ignorant of these transactions. He pointed out that a company exporting military vehicles to the USA under a contract worth a great deal claimed that it could not obtain clearance because of administrative delays, and had to operate within an atmosphere of insecurity. He noted that penalties for non-compliance were envisaged, but asked what would then happen if the NCACC delayed the process. Finally, he enquired whether a list or definition of controlled items existed.

Mr Dladla conceded that the administrative capacity of the NCACC could induce delays, but also insisted that often the NCACC did not have the chance to state its viewpoint. The NCACC Secretariat was a government department hampered by capacity constraints. Exports could not be administered without adherence to due process. Documentation was also required from a recipient country when an export transaction occurred. There were good reasons why a given process could take five to ten days. If documentation from the recipient country was not received, it was not possible to proceed. He noted that with regard to the export to Indonesia, in fact the media article was inaccurate. The exports to that country had in fact been recorded. Documentation could also be produced regarding the sale of 400 jeeps to the USA, mentioned in a Mail and Guardian article.

Mr Dladla then noted that in respect of the list or definition of controlled items, the NCACC wanted to be able to update definitions of what passed for conventional arms, and what did not. The Wassenaar Agreement could serve as a guide, seeing that it referred to expert definitions contributed by forty member countries.

Mr M Mzizi (IFP, Gauteng) asked what was meant by the practical administrative and legal challenges referred to.
 
Mr Dladla replied that the arms industry had grown immensely since the early 1990s, with
a proliferation of new companies. In 1995, revenue generated by the arms trade was cited as R1.5 billion, whereas this year it amounted to R50 billion. The question was whether the NCACC had the capacity to address that. A specific challenge was the regulation of the large number of armoured vehicles currently in use. Questions arose about the ownership of these vehicles, and the uses to which they might be put. Such vehicles could be employed, for instance, to launch an attack on Parliament. Therefore, the reasons for owning and selling such vehicles had to be checked. The notion existed that such items could simply be sold without any checks, seeing that this did not constitute export. However, he stressed that it was not acceptable that it would be possible to sell a Rooivalk attack helicopter to just anyone.

Mr Mzizi asked whether the prohibition of mercenary activity could be taken to mean control.

Mr Sizwe Njikela, Department of Defence Legal Adviser, responded that it was incorrect to speak of the regulation of mercenary activities. Such activities were emphatically prohibited. The intention of the amendment Bill was to establish new functions for the NCACC. The intention was not to usurp powers, for instance the power to deal with forfeited goods. There was an interest in, for instance, why arms were exported in quantity to a given destination. Capacities for monitoring and evaluation had to be increased. An inspectorate for the NCACC existed, but the question had been asked whether it had capacity. The Bill sought to ensure monitoring strength.

The Chairperson referred to the practice of requiring end-user certificates from countries that purchased arms from South Africa, noting that these countries would require permission to on-sell to another country. He questioned the logic of this.

Mr Dladla reiterated that this was international practice. South Africa was dragged through American military courts in the early 1990s, at great cost, because of acquired items that had been sold to the Middle East. In the present dispensation, Corvettes, Griffens and Hawks could not be sold without German consent.

Mr A Moseki (ANC, North West) noted that some role players would be trusted and allowed to regulate themselves, and yet he was worried that deception could occur. He asked whether the monitoring mechanism could meet the challenges. 

Mr Dladla admitted that there had been deceptions in the past. There was an auditor assigned to compliance, but it could be difficult to constantly hold people to account.

The meeting was adjourned.

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