National Conventional Arms Amendment Bill: Minister’s briefing & deliberations

NCOP Security and Justice

20 October 2008
Chairperson: Kgoshi L M Mokoena
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Meeting Summary

The Committee interrogated several issues of interest in the National Conventional Arms Amendment Bill (the Bill). The Department of Defence attended the meeting to give further clarity on general issues, before the Members proceeded to a clause-by-clause consideration. Members asked a number of questions around the definition of controlled items, the domestic transfer of conventional arms, the Wassenaar List, its scope and how it was dealt with in the Bill, and the end-user certificates that signatories to the Wassenaar Arrangement would provide when arms were transferred on. This gave rise to discussion of what were essentially policy issues, including the classification of nations and the accompanying conventional arms trade implications and the enforceability of the EUCs, as well as whether they should be subject to time limits. Members recognised that it was not in the power of this Committee to make a decision on such matters. The question of the classification of components versus the whole item on the Wassenaar list was also explained. Certain definitions were questioned. The Committee was concerned around capacity issues, and noted the need to strengthen the capacity of the Inspectorate. The Committee would proceed to debate the Bill further at its next meeting.

The Hon Enver Surty, Minister of Justice, addressed the Committee briefly on his proposal for the 16 Days of Activisms for No Violence against Women and Children that would commence on 25 November. He had thought that it would be useful to centre the activities around a theme, which he proposed should be “Our Home, Our Fortress for Safety and Peace”. The Committee agreed to consider the theme formally and report their views to the Minister.

It was noted that the Second Hand Goods Bill debate had been deferred. A briefing would be given on the Directorate of Special Operations matter and the Review of the Criminal Justice System on 11 November.

Meeting report

 

National Conventional Arms Amendment Bill: discussion with Department of Defence
Mr Siviwe Njikela, Director: Legal Support, Department of Defence, apologised for the absence of Mr
Dumisani Dladla, Director of National Conventional Arms Control Committee, who had been unable to attend despite the fact that there were certain policy implications that could best be addressed by Mr Dladla. It might affect the proceedings. He noted that the delegation present was best suited to addressing technical or drafting issues, and would be available to assist in whatever way needed. He asked if the Committee had specific areas to review.

The Chairperson asked the Committee if they had general questions. The Committee should ask questions of a general nature first, and would not consider the Bill clause by clause if there were such questions.

Mr J Le Roux (DA; Eastern Cape) asked if there was any truth to the allegation that the National Conventional Arms Control Committee (NCACC) had shown a lack of urgency regarding the Denel contract.

Mr Njikela responded that this was a matter of capacity of the NCACC in the area of administrative support. The issue of the capacity of the NCACC had been continually raised. The DoD recognised this problem and it was being addressed internally. Mr Dladla's view on the matter had been exaggerated in the media. The issue was being attended to, and Mr Dladla would be able to explain that process more fully.

The Chairperson replied that they should perhaps invite the NCACC to attend the next meeting to deal with those questions. There had also been a question regarding controlled items and the domestic transfer of the ownership of such items, and the specific issue related to the monitoring and how it would be done. He was still not convinced that the NCACC would be able to monitor the domestic transfer of controlled items.

Col Nigel Apsey, Deputy Director: Arms Governance Policy, DoD, replied that there were 280 pages of controlled items and each of those items had to be defined. There were two basic sections concerning dual use items and general military use items. Items that had to be specifically controlled were highlighted for further regulation.

The Chairperson asked for clarity on the Wassenaar List.

Mr Njikela reiterated that this was linked to capacity, and this was a concern for the NCACC. The legislation created the impression that they were focused on the import and export of these items. Issues of the domestic transfer were not strongly addressed, but there was a need for this kind of control. The DoD needed to know who possessed what, and for what purpose. This again went to issues of capacity. There was a need to strengthen the capacity of the Inspectorate.

Mr Le Roux also queried the Wassenaar list, and asked if this was sensitive information on the arms South Africa sold to other countries

Col Apsey responded that the Wassenaar Arrangement was made amongst a group of 40 states that were mostly responsible arms producers. It was an independent organisation with signatories to the Arrangement, and had its headquarters in Vienna. South Africa was the most recent member. The Wassenaar Arrangement's object was to deliver an export control list (the Wassenaar List) of conventional arms. This list had two parts. The first part concerned dual use goods. These were goods and technology that could have a military use. This could be anything from high powered computers and lasers to inputs like boron dust. These items could be commercially used, but were in addition strategic materials that could be misused for military purposes. The list was aimed at getting a grip on the uncontrolled proliferation of arms.

The second part of the Wassenaar List was the munitions list for the control of arms. There were complicated technical definitions on the list. Referring back to the dual use goods, he stated that these were very sensitive items and were the kind of items used by terrorists in the production of weapons of mass destruction. These organisations had high technology capabilities, which they used to produce these weapons. This elevated the status of many of the dual use goods.

The List was reviewed and updated annually, consisted of over 300 pages and was very technical. It was a handy list to use as a baseline standard for export control, as 39 other countries used the same standard. Non-members also used it as a benchmark. South Africa did have scope to amend the list, but there was a danger that amending it too much would lower its credibility. South Africa therefore tried to stay as close to the List as possible for the purposes of maintaining credibility.

The Chairperson asked if there should be a time limit for the sale of controlled items. If country A sold to country B, and country B then wanted to sell that item to country Z, he asked whether country B would still need to get country A's permission for the sale. He thought there should be a time limit on this permission arrangement, and that it should not be indefinite. 

Mr Njikela responded that the end-user certificate (EUC) was a very important principle. This was not ordinary property, but dangerous weapons for which countries were held responsible. The principle they were trying to enforce was that there should be a regulatory mechanism so that those weapons did not end up in the wrong hands. The EUC was a convention in all developed defence regimes internationally. There was also the intellectual property issue, which raised the same issues of monitoring and tracking, and the capacity of bodies to perform this function. If countries did not comply with the conditions on the EUC, the United Nations (UN) could intervene. Mr Njikela added that he did think there was merit in the suggestion of a time limit.

Mr van Heerden replied that this did not make sense to him. The issue of enforceability immediately came to mind. 

The Chairperson asked how the sale was checked once it was concluded. He enquired whether, for instance the country to whom South Africa had sold an item was obliged to inform South Africa if that item was sold, and what would happen if there was a sale, but no information provided.

Mr Njikela responded that the issuers of the EUC needed to accept the international system of arms control. South Africa was just one player in this system and needed the co-operation of other countries. If this co-operation was not in place, the system would collapse. The EUC concerned the principle that there should be some kind of guarantee that the countries who had acquired the weapons would act in a responsible manner. The EUC was a guarantee that weapons would not be re-exported without the permission of the original exporter.

Mr Mack said that the explanation did not make sense to him. He noted the chance of weaponry falling into the wrong hands and also added the problem of just who would define the “wrong hands”. He was of the opinion that the United Nations (UN) was effectively run by the USA, and that the USA defined the “wrong hands” in the current global scenario. This was open to abuse and manipulation.

Mr Njikela said that the “wrong hands” issue could be dealt with in one of two ways. The simplest way was to look at those countries where there was, for instance, a UN embargo, which would give a clear cut indication of an international agreement to indicate the “wrong hands. There was international consensus on such issues. All member states of the UN would be bound by that embargo and would have to comply. Alternatively, Section 15 of the NCAC Act set out the guiding principles and criteria, saying that the applications had to be dealt with on a case-by-case basis. Considerations were stated clearly in the section. He did, however, agree that those were political value judgments that the Executive had to make, as to whether a country was likely to contribute to the violation of human rights. There were already criteria built into the NCAC Act. The NCACC must apply these before they issued permits for the sale of arms. The dynamics of an international organisation were such that the powerful countries had a bigger influence in these matters. In respect of public servants, such as the DoD, the system was already built in.

Mr B Mkhaliphi (ANC; Mpumalanga) asked how they DoD would define the capacity of the NCACC, whether the capacity related to the numbers in the organogram and the people to deal with the work, or whether it was related to the restrictions of the legislation and rules.

Mr Njikela responded that it was a combination of all the issues raised in the Mr Mkhaliphi's question. There was a lack administrative capacity, especially linked to the time taken to process the application for a permit. There was also the issue of regulatory capacity, and whether the current Act sufficiently empowered the NCACC to foster the kind of regulation that was desirable for the security interests of South Africa. The DoD felt that there could be improvements, and to this end had proposed certain amendments. The amendments related, in one respect, to the domestic transfer of arms. Currently the DoD felt that the Act was biased towards export and import, and failed to govern what happened within the borders of the country. There were definitely regulatory loopholes that needed to be filled, hence these proposals.

He added that the NCACC met as needed in order to deal with the permits. The lack of capacity was a combination of all those issues.

The Chairperson asked how often the DoD checked what had happened to the items exported. He referred to the relationship between the USA and Israel and asked if it was possible to monitor something sold to the USA, in order to prevent the item being sold or traded to Israel.

Mr Njikela replied that this was not easy to monitor, and the difficulties arose from the practicality of the jurisdiction issues that all nations faced.  All members did an annual report to the UN on arms transfer. It was, however, difficult to verify this disclosure. This was the reason that the Wassenaar List was so important, as all parties were committed a framework within which to function and a uniform reporting process for all. There was really no more than that they could do.

Mr Mack referred to the embargo the USA had on Cuba and how the UN had continually voted against it. Despite these votes against the embargo, Cuba was still regarded as a “rogue state”. He asked again what the determination of the “wrong hands” was based on, and noted that sometimes this was wrongfully imposed. He did, however, concede that this was a political decision.

Mr Le Roux remarked that he thought Mr Mack was treading on very thin ice with the comments on Cuba. The Committee was not the place to express these views. He said that the Committee had other business and ought to be dealing with this.

The Chairperson responded that the comments had been made by way of giving examples. He agreed that this Committee could not determine what was a good or bad country. The issues that it had to decide upon were the criteria on which a country was judged – whether the final judgment was positive or negative - in terms of the transfer of controlled items. How the right balance should be achieved was a very important question.

Mr van Heerden referred to the Wassenaar List and South Africa's membership. He said that the issues now being discussed were not Committee business. The Committee Members must go through the National Conventional Arms Bill clause by clause and not discuss matters on the periphery.

Mr Mkhaliphi asked the DoD to elaborate on the "freedom of expression to deviate" in respect of the EUCs, and where this applied.

Mr Njikela responded that this sought to give the NCACC the opportunity to waive the EUC in certain instances. An example of such an instance would be the sale of components to be integrated into other systems. In terms of the EUC, a Grippen could not be sold as long as the EUC logged the fact that a component of the Grippen was made in South Africa. In those situations, the NCACC may exercise its discretion and exempt the other country from needing permission.

Mr M Mzizi (IFP; Kwazulu-Natal) observed that the crux of the matter was the honesty of the countries trading the weapons.

Mr Njikela responded that the EUC could be required from any country upon sale. Countries could buy the item to use it, but not to re-export. The EUC was a g
uarantee to the NCACC. In respect of the point raised about the use of South African arms that were sold to the USA, and then used in the Iraq war, he pointed out that the USA was not reselling these items, but was using them themselves in Iraq. This was an interesting development and he had no answer for that. If the South African arms had been sold to Iraq, the NCACC could have enforced the EUC and found out exactly where they were.

Mr Mack referred to instances where the DoD was using foreign-made equipment like submarines and the Swedish Grippen aircraft. He noted that South Africa had now been using  and maintaining them for some time, and he wondered if South Africa did not have the capability and could get permission to manufacture its own Grippens.

Mr Njikela replied that this was an issue of intellectual property, which was covered under a separate agreement. Sweden probably had a prohibition on the use of their intellectual property for commercial purposes. This was not part of this Bill,

The Chairperson asked if the UN Security Council could take action against Country A in terms of a sale to Country B, if they could prove that Country A was aware that Country B intended to use the weapon to attack a state to whom the UN was sympathetic.

Mr Njikela responded that this was probably a foreign affairs issue. It was only situations where South Africa sold arms to a country under a UN embargo that this covered. If South Africa contravened a UN embargo, the UN would take action. He did not want to make statements that might encroach on issues that related to the Department of Foreign Affairs.

The Chairperson felt that the topics being queried went far beyond the scope of the Bill. These discussions were interesting, but were very time consuming. The main issue of this Bill was the controlled items, and that was the issue on which the Committee must focus.

The Chairperson redirected the discussion to the definitions section of the Bill and asked for clarification of the term "re-exporting", asking under which conditions this could happen and how the EUCs did apply.

Mr Njikela responded that those guarantees applied across the board, except for certain conditions. On being asked for examples, he referred back to the previous example of selling a component. This was an exemption from the regulatory provision. An item was either a conventional arm or it was not, and the Wassenaar List defined these items as whole items. For example, a gun without bullets or a trigger would still be classified as a gun. The system would be cumbersome and open to abuse if there was a necessity to look at each and every  individual part. The DoD had decided to abide by how conventional arms were defined under Wassenaar.

Col Apsey responded that the issue would go back to the regulations. Once the legislation was passed, the NCACC would have the mandate to review the list and define which items should be on the list of controlled items. Some of the dual use goods might be very sensitive.

Mr van Heerden stated that even the possession of an empty abalone shell contravened the regulations on abalone poaching, and was therefore an offence. He asked for views on how this principle might apply to conventional arms

Mr Njikela remarked that this was a very relevant discussion. The NCACC defined a conventional arm in terms of its capabilities. and were regulating such arms because of the danger posed by them. It was necessary for governments to regulate because of the harm caused by them. A case-by-case judgment must be made, based on the capabilities of the conventional arms at a regulation level.

Mr Theo Hercules, Principal State Law Adviser, Office of the Chief State Law Adviser, pointed out that Clause 18(3) of the Bill (amending Section 27 of the National Arms Control Act ) outlined the categories of controlled items.

The Chairperson queried which had more weight - a permit or a certificate.

Mr Njikela responded that they were two different things. If the manufacturers sold an item to Country A, they would need an export permit. Once the item was exported, Country A would provide South Africa with a certificate, as a guarantee that they would not re-export the item without notifying South Africa. The two documents were different parts of the same value chain.

The Chairperson asked which would have to be certified - the buying or selling country.

Col Apsey replied that the recipient would have to certify that it would abide by the terms of reference on the EUC.

The Chairperson noted that the Committee would deliberate the Bill further on the following day. 

Address by the Minister of Justice, Mr Enver Surty, and the Introduction of a Theme for the 16 Days of Activism for No Violence against Women and Children
The Chairperson announced the arrival of Mr Enver Surty, Minister of Justice.

The Minister greeted members and expressed his pleasure at attending this meeting. He noted his awareness that the SC dealt  with issues that went beyond justice. Their hard work was appreciated,  as was their dedication to getting the pending legislation finalised with the appropriate amendments. He assured the Committee that he would listen to any recommendations the Committee had.

Mr Le Roux thanked the Minister for his open door policy, adding that it augured well for the future.

Mr van Heerden referred to the Judicial Service Commission meeting he had attended, together with the Minister, on the administration of justice and stated that he was appreciative of the Minister showing a willing ear on these matters.

Hon Surty thanked Members, and for the enormous support he had received from all quarters following his appointment. His aim was to be consistent, predictable, level headed and open-minded

The Minister said that the Sixteen Days of Activism for No Violence against Women and Children was pending, coming upon 25 November, which was also the International Day of No Violence against Women, and running through to 10 December, which was the International Human Rights Day. He thought that it would be useful for the government to have a theme. His suggestion for this theme was “Our Home, Our Fortress for Safety and Peace”. This theme spoke to the fundamental importance of the home and family for individual citizens and society at large. He encouraged the Committee members to help raise awareness and even to discuss these issues on community radio stations. He asked the members for their views on this suggestion in order to formalise the theme and make the announcement accordingly.

The Chairperson replied that the Committee would formally respond to that suggestion.

Second Hand Goods Bill
The Chairperson reported that the debate on this Bill had been deferred as the amendments had not been submitted to the Office of the Chief State Law Advisor on time, and in terms of the Rules. This had caused confusion, and the Chair of the NCOP had called the management of the Committee section in order to address the problem.

Committee programme
Mr Mack noted that there was a Thursday meeting planned for the constituency week, to deal with negotiating mandates. He reported that the Chief Whip had been mandated at the political committee meeting that all Section 76 Bills that were still on their way from the NA should stay there. The NCOP was looking to bring down the load by separating out only the priority legislation.

The Chairperson reported that, in respect of the Review of the Criminal Justice System and the Directorate of Special Operations (DSO) Bills, Parliament would be visiting the provinces from 24 November 2008 to 5 December 2008, giving a briefing and a report back. The briefing would be done on 11 November, and the Committee would meet every day until the matter was finalised.

The meeting was adjourned.

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