COMMENTS ON THE FIREARMS CONTROL BILL
1. Introduction The Alternatives to violence Project (AW) Cape Town is a network of volunteers who are committed to the reduction of violence in our society. We present community workshops Creative, non-violent conflict handling and personal transformation. Our members, facilitators and participants are drawn from a wide range of backgrounds and Communities in and around Cape Town.
We welcome the Opportunity to Comment on the Bill, due to our interest in the reduction in Cape Town and in South Africa. We have endorsed the submission of the Gun Control Alliance but also wish to make our own independent comments.
2. General response to the Bill and its Context AVP welcomes the Firearms Control Bill. Currently firearm crime and violence is unacceptably high (for example, we have the second highest rate of firearm related homicide in the world). We are convinced that a better system for the management of firearms is an essential part of the reduction of violence in South Africa.
It is a sad fact that, largely for historical reasons, South Africa is a violent society. AVP, along with many other organisations and individuals, has a vision of a society that has broken the patterns of violence and that lives responsibly in the peace and security to which all people are entitled. However, any law dealing with safety arid security needs to acknowledge that we are still a long way from the realisation of that vision. Firm measures need to be taken to limit opportunities for violence, to reduce the availability of the means of violence, and to protect potential victims.
However, tough measures alone will not transform our society. The new and fragile culture in South Africa needs to be defended, nurtured and developed if we are to hope for a truly peaceful society. From a human rights perspective, our Constitution is arguably the best in the world, but many ordinary South Africans have not internalised the values of respect & tolerance it enshrines. The State needs to provide leadership in this regard. While being resolute in it’s against crime and violence, legislation and the implementation thereof must also promote a culture of human rights and human dignity.
We acknowledge that there is sometimes a difficult tightrope to walk between tough anti-crime measures and the promotion of human rights. However, we believe that these compatible, are essential, and are both aimed at the same ultimate goal.
For the above reasons, AVP strongly supports the Firearms Control Bill, in general, although we do have some reservations and suggested alterations which appear in the next section. Gun violence appears to be out of control and the current Systems are clearly not adequate. Without a better system, matters can be expected to get worse. We believe that Parliament has a clear responsibility to address this situation. We respectfully believe that that responsibility would be neglected if a suitable Firearms Control Bill were not passed, or if for some reason a watered-down compromise version of the Bill were passed. We also believe that the Bill makes ample, even generous, allowances for legal firearms ownership and usage. We would question the true intentions behind any calls for more liberal provisions.
Finally, and most importantly, we must record our strong belief that the most important elements in the transformation of our society are education and development. If more resources could be allocated to the rehabilitation of offenders (especially first-time offenders), and to the education of South Africans in general in non-violent responses to conflict, in time there would be a greatly reduced need for firearm control legislation, and indeed for firearms themselves.
3.Detailed comments on the Bill Preamble - We support the implication that the Constitutional rights to life and security carry more weight than an unrestricted right to own and carry firearms.
Competency certificates[section 11] - Disqualification - We support the competency certificates that require training and tests on practical skills and knowledge of the Act. However, we would argue for a tighter definition of "offence" [11 (3)], on the grounds that one important mechanism to prevent violence is to ensure that individuals who have demonstrated an inclination towards criminal violence, or abuse of firearms, should be prohibited from owning, carrying or using a firearm. Any conviction, irrespective of the sentence, of an offence involving violence, or involving a firearm, should be enough to disqualify a person. Therefore we suggest that section 11(3)(a) should be deleted, or alternatively should only apply to 11(2)(j) and (k). Furthermore, we believe that 5 years is an insufficient time period to "wipe the slate clean"and suggest that 11(3)(c) should read "seven years" instead of "five years".
Competency certificates[section 11) - Age restriction - We strongly believe that most individuals at the age of 18 years have not reached the level of maturity required for the enormous responsibility of firearm ownership. We are also extremely concerned about spiralling levels of crime and violence amongst the youth, and feel that youth need to be discouraged from a culture of gun ownership. We suggest that 11(2)(a) be changed to read "21 years or older", and that 11(5) likewise be changed to read "21 years".
We support the limitations on the number of firearms to be licensed to a person, and we support the concept of limiting the use of a firearm to the purpose for which it is licensed.
Termination of firearms licence[section 31] - It should be clearthat once a license has been revoked, the firearm may not be used, for example during the 60 days which are allowed for disposal of the firearm [31(4)]. Perhaps a clause could be added to this subsection making explicit the prohibition on the use of the firearm during this period.
Possession of ammunition[section 94) - TheBill provides for a maximum of 200 cartridges of ammunition at any one time, or a total of 2,400 cartridges over a 1 year period. This is for each firearm licensed to a person. We cannot understand why anyone using a firearm for selfdefense would need so much ammunition. 2,400 per year is an average of 200 per month, which implies the use of approximately 10 rounds every week day of the year, or alternatively 50 rounds every weekend. Surely this is excessive if the weapon is to be used only for selfdefense and related target practice. Indeed we would question the intentions of anyone who wanted to fire so many shots on a regular basis. We would therefore suggest that 94 (1) be changed to read "100 cartridges" and 94 (2) to read "1,200 cartridges". Likewise the amounts referred to in section 46(2) should halved.
Exemptions – Official Institutions[sections 94-104] - We haveserious concerns about the scope of the exemptions, and we feel that 101 (2), (3) and (4) are insufficient to compensate for the exemptions. Employees of organisations such as the SANDF, Correctional Services, the intelligence services, and most particularly the SAPS, have a far greater responsibility for the appropriate lawful use of their firearms than do ordinary members of the public. All employees of such institutions should be required to have competency certificates before they may be entrusted with a firearm, and such competency certificates should at least be subject to all the provisions of section 11. Likewise, the same, or more stringent, rules regarding declarations of unfitness to carry a firearm [chapter 12] should apply to employees of official institutions. If, for example a police officer is convicted of any violent crime, he or she is clearly unfit to serve as an armed officer of the law. Indeed we cannot understand why any employee of an official institution, who is or becomes unfit to carry a firearm in terms of any of the criteria applied to ordinary citizens, should be allowed to carry a firearm for the official institution.
Declaration by Registrar of unfitness[section 105] - In the case of one or more of the conditions listed under 105 (1), a person should automatically bedeclared unfit to possess a firearm. Thereforewe suggest that in 105 (1), the wording "may declare" be changed to "must declare".
Declarationof unfitness by a court [section 106] - Itis unclear, in the case of an offence on Schedule 2 but alsocovered by section 106 (1) - for example the use of a firearm in a kidnapping- whether the declaration of unfitness is automatic [as per 106 (2)], or whether an enquiry is required[as per106 (3)]. We hope that the intention is that 106 (2) takes precedence, i.e. that unfitness is always automatic following conviction for any offence covered by 106 (1). This could be clarified by changing 106 (3) (a) to read: "A court which convicts a person of an offence referred to in Schedule 2 of this Act, which is not an offence for which the court is obliged in terms of subsection (2) to declare a person unfit, must enquire and determine whether that person is unfit to possess a firearm."
Effect of declaration of unfitness[section 107]- Duration - In 107 (6), we recommend that "five years" be changed to "seven years"
Genetic samples[section 116] - Weare concerned about the potential for abusive treatment of suspects in the collection of genetic samples. We also anticipate fears relating to religious or spiritual objections or magical beliefs. While we accept the need for genetic sampling, we feel that it must be done in the most sensitive and controlled manner possible. We propose that only registered medical practitioners or registered nurses be allowed to take any genetic samples, and therefore request the deletion of the words "such as bodily samples especially blood samples" from 116 (3). We also recommend that a court order be required before a genetic sample may be taken.
Presumptions [sections 120-122] - We are concerned about the constitutionality, as well as the practicality, of many of the presumptions. Too much rests onthe fact of the police charging a person with anoffence, which in practice could be arbitrary. For example, if a firearm is found buried on a property, and the State cannot link it to anyone, and for whatever reason an officer of the State charges a labourer working on that property with possession of the firearm, then according to 120 (2) (b) (ii), that labourer will be regarded as guilty of unlawful possession, and could therefore be sentenced to up to 15 years imprisonment. Innocent people may be victimised by these presumptions, and criminals will probably be able to challenge their legality. We suggest that the presumptions are redrafted to take care of these potential problems.
Organisational structures[sections 126-135] – firearms authority - We welcome the position of Registrar and the Office of the Central Firearms Register. However, we support the calls of other organisations for an Independent Firearms Authority which is not part of the police or another regular State structure. We believe that this will be of benefit in freeing the overworked police to focus on priority crimes, and enabling the Independent Firearms Authority to focus properly on firearms issues. While this may take extra resources we believe that this Act will only be meaningful if it is properly implemented. Furthermore, there is the unfortunate fact of corruption in some individuals within the police service, and we understand that some of this corruption relates to the supply of illegal firearms. There will inevitably be pressures on representatives of the firearms authority to act dishonestly, and we believe that an independent authority will be better placed to resist these pressures.
Registrar [section 126] - We feelthat an Independent Firearms Authority should be headed by a civilian Registrar, who would report to the Minister and would be able to focus her or his attention on firearms issues. Also, it seems inappropriate for the head of one of the Official Institutions regulated by the Bill to be the chief regulator.
Firearms authority-mandatory audit - Whether or not an Independent Firearms Authority is established, we strongly recommend that the office of the Central Firearms Register or its equivalent be subject to a mandatory annual audit by an independent body such as the Auditor General or some private auditing firm of high standing. The audit may encompass financial aspects but most importantly it would be to ensure that the register was accurate, that firearms were disposed of correctly, and that all necessary provisions and procedures were being complied with. It will be most important to ensure that the office responsible for firearms control is kept regularly accountable and a mandatory annual audit would be a key element in doing this.
Right of appeal[section 136]- The right of appeal should exclude the right to legal representation before the Appeal board. It should not be possible for wealthy applicants to eclipse the arguments of the Registrar's office or of a local Designated Firearms Officer by purchasing highly skilled legal representation. And if a person cannot argue the case forhim or her to possess a firearm, it is likely that he or she does not have the necessary capacity for reasoning to responsibly use one.
Compensation [sections 137-140] - The State should make it as easy as possible for persons who wish to dispose of their firearms to do so. We are concerned that persons who are not able to sell their firearms in the market may end up keeping them or selling them illegally. We call for the establishment of a State "dealership"which would act as a guaranteed buyer of last resort, at a fixed price somewhat below the normal market rate. Legal firearms so purchased would be destroyed by the State. Thisdealership could also operate as an ongoing amnesty drop-off centre, where any firearms could be handed over, for no compensation, with no questions asked. However the value of this function would need to be balanced against the limitations this might place on police forensic investigations. Possibly a system could be developed that would take care of some of the potential pitfalls while maintaining the benefits of a drop-off centre.
Firearms freezones [section 143] - We welcome the official acknowledgement of firearm free zones, as there are many places (suchas schools, clinics, youth centres, recreation centres, and other public facilities) where firearms are totally inappropriate. We do accept that SAPS members on official duty should be exempted from the prohibition on firearms in a firearm free zone, though we are less clear as to the benefit of exempting other members of official institutions, or members of the SAPS who are not on duty, as the Bill currently implies.
Existing licences [schedule 1, item 1] - We understand that the current licensing system is inadequate, and the sooner the new system is fully introduced, the better. In this regard we do not understand why holders of current licenses should require 5 years to apply for new licenses. Holders of motor vehicle licenses were given a much shorter time period to apply for their new license cards. Even considering the need for competency tests we cannot see why current license holders should need more than 3 years, at most, to meet the requirements of the new Act. Therefore we propose that schedule 1, item 1(1), be changed to read "...remains valid for a period of three years..." Further, when the intention is to improve control of firearms, we do not understand why current license holders should be exempted from the requirement to dispose of their weapons via licensed dealers. Therefore we propose that schedule I, item (2) (b) be deleted. If the State establishes a special "dealership" as recommended by us under Compensation above, this should provide an adequate and controlled channel for the disposal of currently licensed firearms.
4. Concluding comments We believe that this Bill is an important step towards the reduction of gun violence in South Africa, which is itself an important step towards building a vibrant, peaceful, prosperous nation. We understand that there are particular interest groups that would resist such legislation for reasons of their own. We call on the honourable members on the Committee and in Parliament to show leadership in this matter by unambiguously taking us forward on this important step.
We sincerely thank the members of the Committee for their time in considering these comments.
For the Alternatives to Violence Project (AVP) Cape Town:
Andrew Shackleton Co-ordinator