Policing Programme
Graduate School of Public and Development Management
Wits University
January 2000
(1) Introduction
The Policing Programme at the Graduate School of Public and Development Management welcomes the proposed policy changes governing the licensing of firearms in SA contained in the Firearms Control Bill. We believe that the proliferation of, and relatively unregulated access to, firearms – both legal and illegal – is a major cause of crime, violence and victimisation in SA. We further believe that all measures to reduce and regulate such proliferation and access should be supported. It is, therefore, in this light that we take great pleasure in advancing our comments on the Bill to the Portfolio Committee, and trust that they will assist you in the difficult and sensitive process of moving this draft legislation into law.
The Policing Programme welcomes unreservedly the primary innovation of the new legislation which requires the issuing of a competency certificate to potential licensed firearm owners as well as the licensing of the specific firearms which will be owned/possessed by that person. We believe that this approach, in emphasising the competence of the potential owner/possessor overcomes one of the main defects of the present licensing regime in which various loopholes exist through which licensed firearms may be used by persons who are not themselves licensed. Further, the new system, in requiring the comprehensive documentation of firearms and their movements from one owner/possessor to another, will significantly improve the control over access to firearms, as well as the tracking of firearms used in crimes.
Having said that, we are somewhat concerned that there exists the real possibility that the very complex and comprehensive character of the requirements of the Bill will create very large difficulties in their implementation and urge the Committee to consider mechanisms for easing the burden of implementation. It is for this reason that we offer some more specific comments on the contents of the Bill in the following sections. These comments are loosely divided between policy and implementation issues, although the distinction between the two is not absolutely cut and dried.
Policy issues
The most important policy issue is the character, content and consistency of causes of incompetence to possess a firearm. In this regard, we believe that there are a number of areas in which the present Bill might be improved, though, in general, the approach taken is both appropriate and desirable. Possible improvements might include the following:
Ensure greater consistency between sections 10, on the one hand, and sections 107 and 108, on the other. At present it appears as if there are a larger number of grounds on which an initial application for a competency certificate can be rejected than there are grounds on which competency certificates can be subsequently withdrawn. In particular, we would urge that the grounds contained in all three sections should be both consistent, and be defined as widely as possible.
Create a procedure in terms of which the Registrar must consider submissions on the fitness of a person to possess a firearm might be contested by members of the public, police officers (including, but not limited to, the Designated Firearms officer) and members of the helping professions, as well as the requirement that the Registrar establish such procedures as may be required to facilitate the making of such submissions. It is submitted that, in the absence of such a procedure, many of the more discretionary grounds for withholding or withdrawing certificates of competency will be inoperable.
The impact of the legislation will be partly determined by the nature and severity of punishments imposed for violations of the relevant provisions. In this regard, we welcome the intention to impose severe punishments on offenders. We would caution, however, against imposing maximum sentences which are disproportionately severe as such an approach may lead to the destabilisation of the balance between the severity of punishments meted out for various crimes. This may lead to the unintended consequence that persons making themselves guilty of offences under the present Bill will not be deterred from committing further crimes in order to avoid arrest and prosecution for crimes committed under the Firearms Control Bill. Such offences may well include bribing police officers and other officials in order to avoid arrest/prosecution. It would be unfortunate if the laudable intention to punish firearms-related crimes severely either increased corruption, or led to the commission of other offences. (Indeed, this need for balance is relevant both between the offences created under the Firearms Control Bill and other offences and for the overall balance of offences created under the present Bill itself.)
We believe that the provisions of s119 which provides that genetic material can be taken from someone accused/suspected of committing an offence under the Firearms Control Bill should be extended to include anyone suspected of involvement in a crime in which a firearm was used. Indeed, and more controversially, we believe that it is worth investigating the insertion of a provision that all applicants for a competency certificate should be required to submit genetic material along with providing their fingerprints. If operationalising such a provision may be beyond the resources of the Registrar at this time, provision should be made for enacting this requirement at some later date.
The challenges of implementing the provisions of the Firearms Control Bill will be awesome given the nature and extent of the problem which they seek to address. Perhaps the most difficult issue to confront will be the extent to which the various provisions will rely on systems and procedures which are likely to be subjected to a variety of fraudulent practices in which state officials are likely to become involved corruptly. We welcome, therefore, the criminalisation of such frauds, but would suggest that the real challenge is to find the resources for conducting audits and other checks on the veracity of the relevant documentation. Indeed, this comment applies more generally: in order to address the challenges of implementation it will be necessary to find the appropriate resources for the Registrar.
Given the various difficulties alluded to, we would propose that a fund be set up structured in much the same way as third party insurance is set up in relation to transport policy. Such a fund, financed by a substantial tax on the purchase of ammunition, would be used for the resourcing of the enforcement of the provisions of the Firearms Control Bill, and, perhaps also for the compensation and care of victims of firearm-related crimes.
Given this proposal, we would are less convinced about the need to set limits on the amount of ammunition which may be purchased annually, and would propose that this restriction be lifted. We would, however, suggest the retention of the prohibition on stockpiling ammunition.
One of the most complicated policy questions flows from the proposed limitation on the number of firearms which can be licensed to any one individual, and the process of transition from the present regime to that proposed in the Bill. As it stands, the Bill proposes that individuals who currently have more firearms licensed than the new Bill provides for will have five years in which to dispose of them legally, following which those firearms will have to be forfeited to the state. We believe that there are substantial problems with this approach, not the least of which is that if existing owners are, in fact, willing and able to dispose of their excess firearms, the net effect would be to spread the ownership of firearms. Because only current non-owners would be willing to purchase these guns, this would increase access to firearms and, therefore defeat the purposes of the Bill. We believe, therefore, that it would be far more desirable for the state to buy-back presently licensed firearms.
A related concern to that discussed in para. 2.7 is that there is a real likelihood that owners of excess firearms will not be able to dispose of them legally if there is rigorous competence testing as envisaged in the act. This will result in a combination of consequences including: illegal ownership of excess firearms; sales into the black market and unaffordable demands for compensation for large numbers of firearms forfeited to the state. The only way to avoid this appears to be in the allocation of substantial funds for a buy-back programme. We would encourage such an approach, but would also urge that mechanisms be explored to try to limit the amount of compensation payable to owners of excess firearms. Such an approach, however, should avoid encouraging owners to dispose of their firearms illegally, and should, ideally, even compete with the legal purchase of second-hand firearms by new licensees.
Implementation issues
As has already been remarked, it is our belief that the real challenge posed by the Bill is in implementation. We would, therefore, suggest that the Bill provide for regular reports to parliament on the implementation of the provisions of the Bill, and that provision be made for the Auditor-General, or some other agency, to assess the performance of the Registrar periodically.
In order to assist in the implementation of the relevant provision, we would propose that the Registrar, and members of the SAPS, be granted the power to stop members of the public who are in possession of a firearm and to test whether or not they are under the influence of alcohol.
The Bill will open a new range of strategies for making communities safe by denying persons who should not have access to firearms competency certificates. Such an approach will only work, however, if community members, police officers and other relevant role-players (such as the medical and social work communities) are able to use the relevant procedures to have competency certificates denied or revoked. For this reason, we would propose compulsory training of relevant groups about the possibilities and provisions of the Bill. We would also propose the Community-Police Fora be exposed to the provisions of the Act, and that Station Commanders be required to provide the relevant information.
Conclusion
The Policing Programme congratulates government on the proposed changes to the legislation and once again reiterates our conviction that increased regulation of legal firearms must play an important role in improving levels of public safety in SA. We look forward to the passage of this Bill into law, and offer any assistance we may be able to give in the proper implementation of the Bill once it is enacted.