South African Council of Churches


Submission to the Portfolio Committee on Defence

Re: Conventional Arms Control Bill B50B - 2000


Summary

The SACC welcomes the publication of the revised Conventional Arms Control Bill and applauds a number of improvements in the Bill including its coverage of dual-use goods, the incorporation of criteria for the approval of export permits and requirements for the issuing of end-user certificates. However, we continue to have serious reservations about a number of aspects of the Bill. These include the Bill's failure to regulate the export of small arms and ammunition; the objects of the NCACC; provisions for the appointment of the chair of the NCACC; the principles and criteria to be applied in assessing export permit applications; the limited parliamentary oversight role envisioned in the Bill; the lack of provisions to ensure transparency; the restrictions on information disclosure; and the Bill's failure to bind the State.

1.0 Introduction

1.1 The South African Council of Churches (SACC) is the facilitating body for a fellowship of 24 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.

1.2 We welcome the publication of the revised Conventional Arms Control Bill (hereafter, "the Bill") and the government's continuing commitment to provide a strong legal and regulatory framework for the control of arms exports.

1.3 The Portfolio Committee on Defence has already played a laudable role in the perfection of this important legislation. We appreciate the Committee's acknowledgement of the profound reservations expressed by a number of civil society organisations with regard to the version of the Bill tabled last year. We also applaud the Committee for scheduling public hearings on the Bill in order to facilitate a vigorous public debate on its provisions.

1.4 The SACC is encouraged to find that the revised version of the Bill is greatly improved in a number of respects. In particular, we support the expansion of the definition of "conventional arms" to include dual-use goods and the extraterritorial application of the legislation. We also strongly endorse the requirements relating to the issuing of end-user and delivery verification certificates to minimise the potential for arms exports to end up in the wrong hands. Finally, we are pleased to note the incorporation of specific principles and criteria to be used in assessing applications for export permits.

1.5 In spite of these notable improvements, we continue to have grave misgivings about important aspects of the Bill. Below, we raise objections concerning:

2.0 Small arms exports not regulated

2.1 Section 1 of the Bill defines "conventional arms" to exclude all arms regulated in terms of the Arms and Ammunition Act, 1969--legislation which will soon be replaced by the Firearms Control Act, 2000. The Firearms Control Act regulates all firearms, which are defined in the Act as follows:

(xii) "firearm'' means any--
(a) device manufactured or designed to propel a bullet or projectile through a barrel or cylinder by means of burning propellant, at a muzzle energy exceeding 8 joules (6 ft-lbs);
(b) device manufactured or designed to discharge rim-fire, centre-fire or pin-fire ammunition;
(c) device which is not at the time capable of discharging any bullet or projectile, but which can be readily altered to be a firearm within the meaning of paragraph (a) or (b);
(d) device manufactured to discharge a bullet or any other projectile of .22 calibre or higher at a muzzle energy of more than 8 joules (6 ft-lbs), by means of compressed gas and not by means of burning propellant; or
(e) barrel, frame or receiver of a device referred to in paragraphs (a), (b), (c) or (d),
but does not include any device contemplated in section 5.

(Section 5 deals with specialised devices such as industrial equipment, antique firearms, airguns, paintball guns, etc.)

2.2 Consequently, the vast majority of firearms--including handguns, rifles, automatic weapons, assault rifles, machine guns, etc.--and ammunition would be excluded from the mechanisms that the Bill would establish to regulate trade in arms. Moreover, a provision that appeared in early versions of the Firearms Control Bill, which would have required the NCACC to approve the export of firearms, was deleted prior to its tabling. This leaves a gaping hole in the regulatory framework which the Bill seeks to establish.

2.3 The proliferation of small arms has been a significant factor fueling conflicts across the continent and throughout the world. In a number of situations--notably in Sierra Leone, Liberia, Uganda and the DRC--the ready availability of small, light weapons has made it feasible for insurgents to forcibly recruit and deploy child soldiers. South Africa has already spoken out against the regional trade in small arms. We should provide further evidence of our commitment to end this scourge by making small arms and ammunition exports subject to the Bill's regulatory mechanisms.

3.0 Objects of the NCACC

3.1 Section 3 of the Bill lists the three main objects of the NCACC as:

3.2 The second of these objects--facilitating trade in conventional arms--seems at odds with the other two, which are geared to exercising strict control over arms trade. It should not be in either the economic or the national security interests of the nation to promote the production and distribution of weapons of destruction, nor to build up an industry which is largely a remnant of apartheid-era efforts to counterbalance the international arms sanctions imposed on South Africa.

3.3 Further, this object is inconsistent with the vision of national security captured in section 198(a) of the Constitution, which states:

National security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life.

3.4 Consequently, we propose that section 3(b) be amended to read:

protect and promote the economic and security interests of the Republic by regulating and limiting trade in conventional arms and the provision of services in accordance with the policy contemplated in paragraph (a) and in order to advance the vision of human security articulated in the Constitution; and

4.0 Appointment of the NCACC Chair

4.1 Section 6 stipulates that the NCACC shall consist of such Ministers, Deputy Ministers and other persons as the President shall appoint. It further empowers the President to designate one member of the Committee as the chairperson and another as the deputy chairperson.

4.2 We do not dispute the general right of the President to appoint members of the Committee, nor to designate a chair and deputy chair. However, we agree with the recommendation of the Cameron Commission of Inquiry into Arms Trade that, in order to minimise conflicts of interest and ensure the Committee's independence, the chair of the NCACC should not be a person with any direct connection to the security forces or the arms industry.

4.3 Current practice is consistent with this rule. We believe that the Bill should require adherence to this convention and should extend the rule to include the deputy chairperson. We therefore recommend that section 5(3) be amended to read:

The President must designate one member of the Committee as the chairperson and and another as the deputy chairperson, provided that neither the chairperson or the deputy chairperson shall be--
(a) the Minister of Defence;
(b) the Deputy Minister of Defence; or
(c) a person appointed in terms of paragraph (1)(b) who is an employee of the Department of Defence or any manufacturer or distributor of conventional weapons or firearms.

5.0 Criteria for assessing export permit applications

5.1 Section 15 enumerates the principles and criteria to be used in assessing applications for permits to export conventional arms. The inclusion of these criteria constitutes a significant improvement on the earlier version of the Bill in which such criteria were not spelled out.

5.2 Whilst we appreciate the incorporation of these criteria, we believe that they are neither sufficiently comprehensive nor adequately binding on the NCACC.

5.3 Section 15 currently requires the NCACC to take the following issues into account when assessing applications for arms export permits:

5.4 We acknowledge that these criteria correspond roughly to guidelines currently used by the NCACC, as well as the principles set out in items 15 and 17 of the White Paper on Defence. However, given that defence spending often "squeezes out" social investment, we would urge that the level of human development in the recipient country also be taken into account.

5.5 Criterion Eight of the European Union Code of Conduct for Arms Exports, adopted in June 1998, requires member states contemplating arms exports to consider "the compatibility of the arms exports with the technical and economic capacity of the recipient country, taking into account the desirability that states should achieve their legitimate needs of security and defence with the least diversion for armaments of human and economic resources." We would propose the inclusion of language modelled on this criterion. (It may be that this was the intent of paragraph 15(f) of the Bill, but if so, it needs to be more clearly stated.)

5.6 More importantly, with the exception of paragraph 15(3) regarding adherence to international law and agreements, the remaining principles in section 15 are cast as considerations to be taken into account when considering applications, rather than as strict criteria to be applied. The NCACC would therefore still be able to use its discretion in approving arms exports to nations with poor human rights records or histories of abetting terrorism.

5.7 This is at least partly inconsistent with defence policy articulated in the White Paper. Item 16 states bluntly: "South Africa shall not transfer arms to countries which systematically violate or suppress human rights and fundamental freedoms." [Emphasis added.] In keeping with this approach, the Regulation of Foreign Military Assistance Act (No. 15 of 1998)--which also makes military decisions subject to review by the NCACC--states that the NCACC may not grant approval to certain forms of military assistance if that aid would violate certain listed principles similar to those in section 15 of the Bill.

5.8 Consequently, we would urge that section 15 be replaced with the following language:

The Committee may not approve an application contemplated in section 14 if such approval could reasonably be expected to-
(a) conflict with the Republic's obligations in terms of international law;
(b) contribute to internal repression, including the violation or suppression of human rights or fundamental freedoms;
(c) endanger regional or international peace and stability by introducing destabilising military capabilities into a region or by aggravating or prolonging any existing armed conflict;
(d) support, encourage or facilitate terrorism in any manner;
(e) contribute to the expansion or escalation of any regional conflict;
(f) be inconsistent with the legitimate security and defence needs of the recipient country;
(g) substantially diminish the capacity of the recipient country to achieve sustainable human development; or
(h) damage the national and security interests of the Republic.

6.0 Parliamentary oversight

6.1 Section 4(1)(g) of the Bill requires the NCACC to make quarterly reports to the Cabinet and to the appropriate parliamentary oversight committee concerning the control and regulation of conventional arms and the provision of services.

6.2 We support this provision and, in particular, the more precise requirement that such reports be made on a quarterly basis. However, we are concerned that parliament has no opportunity to halt transactions that it considers to be inconsistent with the export criteria.

6.3 We recognise that it is impractical to allow Parliament to review every export permit decision. This would also amount to an unnecessary duplication of the NCACC's role.

6.4 As an alternative, we propose that the Minister of Defence be required to gazette, from time to time and in consultation with the Portfolio Committee on Defence, a list of countries to which the export of arms is prohibited. This would enable Parliament to exercise a greater degree of oversight over export decisions.

7.0 Transparency and public accountability

7.1 In recent years, the NCACC has published annual reports on arms exports. These have been made available to the public in a number of ways, including via the web.

7.2 The Bill makes no provision for the continuation of this practice. We propose that it do so, either by requiring that the NCACC publish the quarterly reports contemplated in section 4(1)(g), or by including a separate clause requiring the publication of an annual report.

7.3 Furthermore, published reports should adhere to a prescribed format. This would allow the Minister to specify the categories of information required and to adapt the reporting requirements in response to technological developments or other factors.

8.0 Restrictions on information disclosure

8.1 Section 31 of the Constitution of the Republic of South Africa guarantees a general right of access to any information held by the state and a further right of access to information held by any other person to the extent that suchinformation is required to exercise or protect a right. The Constitution further provides for this right to be limited in terms of national legislation.

8.2 The Act regulating this right was enacted in 2000 as the Promotion of Access to Information Act (Act No. 2 of 2000) (POATIA) following a protracted public debate. Section 5 of this Act provides:

This Act applies to the exclusion of any provision of other legislation that --
(a) prohibits or restricts the disclosure of a record of a public body or a private body ; and
(b) is materially inconsistent with an object, or a specific provision, of this Act.

8.3 The Act also protects certain categories of information from disclosure, including information relating to:

8.4 Section 23(1) of the Bill prohibits the disclosure of any information relating to the "acquisition, supply, marketing, importation, exportation, design, trade, brokering, development, manufacture, production, maintenance, repair of or research in connection with conventional arms, where such disclosure would be detrimental to the national interest or the security of the Republic or to the commercial interests of the manufacturer, or otherwise, without the written authority of a competent authority."

8.5 Unless the inclusion of the vague term "or otherwise" is intended to provide a blanket protection from disclosure of any information related to the arms industry, the disclosure exemption in section 23(1) appears to be covered by the numerous exemptions included in POATIA. If so, this provision is superfluous and should be deleted lest it complicate and confuse application of POATIA.

8.6 If this provision is intended to expand the scope of the disclosure exemptions provided for in POATIA, then we strongly object to the erosion of the right of access to information established in the Constitution and regulated by POATIA. POATIA was a legislative landmark and a product of delicate and extensive negotiations between stakeholders. If there is a demonstrable need to further limit the right of information access recognised in the Act, then we believe that this would more appropriately be accomplished through amendments to POATIA. The introduction of new limitations on information access in other legislation is likely to inhibit transparency and frustrate the objects of POATIA.

8.7 Consequently, we recommend that section 23 be replaced with the following:

No person may disclose any information in relation to the acquisition, supply, marketing, importation, exportation, design, trade, brokering, development, manufacture, production, maintenance, repair of or research in connection with conventional arms if the disclosure of that information is prohibited in terms of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000).

The corresponding offence in section 24(e) should then be deleted.

9.0 Failure to bind the State

9.1 The Bill omits the standard clause stipulating that the Act binds the State. We suspect this to be an oversight as the clause appeared in the previous version of the Bill. The provision should be reinstated.

11 October 2001