Ab/implementation plan org crime/john

IMPLEMENTATION PLAN: UN CONVENTION AGAINST TRANSNATIONAL ORGANISED CRIME

AND PROTOCOLS THERETO

LEGISLATION

Instrument

Required Legislation

Status

Responsible Dept(s)

Action

Funding

1. The Convention

Criminalisation of the following crimes:

Participation in organised criminal groups (art 5 of the Convention)

Money laundering (art 6)

Corruption (art 8)

Obstruction of justice (art 23)

Other legislation:

Regulatory and supervisory regime in respect of banks and non-bank financial institutions i.e., in respect of money laundering (art 7)

Promotion of integrity and punishment of corrupt public officials (art 9)

Legislation to enable confiscation of proceeds of crime (art 13)

Legislation and/or treaties on extradition and mutual legal assistance in criminal matters (arts 16 and 18)

South Africa is compliant with the Convention:

Prevention of Organised Crime Act, 1998 (Act 121 of 1998) criminalises organised crime, money laundering and criminal gang activities. It also provides for confiscation of proceeds of crime

The Financial Intelligence Centre Act, 2001 (Act 38 of 2001) is aimed at combating money laundering, in particular the reporting of suspicious transactions to the Financial Intelligence Centre (FIC)

Corruption Act, 1992 (Act 94 of 1992) Public Protector Act, 1994 (Act 23 of 1994) and Public Finance Management Act, 1999 (Act 1 of 1999) deal with corruption, especially in the public sector.

Prevention of Corruption Bill, 2002, has been submitted to Parliament for consideration.

The Extradition Act, 1962 (Act 67 of 1962) and International Cooperation in Criminal Matters Act, 1996 (Act 75 of 1996) deal with extradition and mutual legal assistance in criminal matters. South Africa has also concluded bilateral and multilateral treaties in this respect

Department of Justice and Constitutional Development (DoJCD), Finance and Public Service Administration

None

None (no financial implications)

2. Trafficking in Persons Protocol

Legislation to criminalise trafficking in persons (art 5)

Currently, no legislation

Draft Children’s Bill has been submitted to Parliament (it does prohibit and criminalise trafficking in children)

In addition the Child Care Act, 1983 is currently being amended to criminalise child trafficking and to ensure reporting of this. It is hoped that this will be finalised by the end of the year (2003).

DoJCD, Social Development, Safety and Security and NDPP

The SALRC is currently investigating trafficking in persons for purposes of law reform. An Issue Paper is being prepared and will be published for comment before the end of 2003. Responses to the Issue Paper and further research will form the basis for the preparation of the Discussion Paper. The Discussion Paper with draft legislation should be finalised by the end of 2004.

The NDPP have proposed draft interim human trafficking legislation which is still at a consultative stage. This legislation is intended to serve as an interim measure until the SALRC’s proposed legislation comes into operation.

Costing will be done by the relevant departments

3. Smuggling of Migrants Protocol

Legislation to criminalise smuggling of migrants (art 6)

Currently, no legislation

Home Affairs, Transport, NDPP and SAPS

Special legislation dealing with the smuggling of migrants to be developed

Costing will be done by relevant departments

4. Firearms Protocol

Legislation to criminalise illicit manufacturing of and illicit trafficking in firearms, their parts and components and ammunition

South Africa is compliant with the Protocol

Firearms Control Act, 2000 (Act 60 of 2000)

National Conventional Arms Control Act, 2002 (Act 41 of 2002)

SAPS

None

None (no financial implications)

OTHER LEGAL AND ADMINISTRATIVE MEASURES
Instrument	Required Legal and Administrative measures	Status	Responsible Dept(s)	Action	Funding
5. The Convention	Designation of a central authority to receive requests for mutual legal assistance (art 18(3))	Director-General of DoJCD will be designated. He/she will be complemented by law enforcement agencies such as the NDPP (Directorate of Special Operations), SAPS (INTERPOL) and National Intelligence Agency (NIA)	DoJCD	None	None (no financial implications)
5. The Convention	Establishment of appropriate procedures to provide access to compensation	No compensation fund exists for victims of offences in South Africa. However, there are the following provisions: - Section 300 of the Criminal Procedure Act, 1977 (51 of 1977) which provides for a mechanism in terms of which a victim may be awarded compensation for damage suffered that was caused by a person convicted of an offence that has caused damage to or loss of for e.g. property. - Section 30 of the Prevention of Organised Crime Act also provides for a mechanism in terms of which persons who have suffered damage to or loss of property or injury as a result of an offence or related activity may approach the High Court for an order directing that they be compensated out of property confiscated in terms of the Act. - Section 69A of the Prevention of Organised Crime Act- Cabinet may authorise that funds held in the Criminal Assets Recovery Account may be paid to an institution, organisation or fund that renders assistance to victims of crime. This is not yet in force.	DoJCD, NDPP	Although there is no obligation on South Africa to establish a compensation fund, the SA Law Reform Commission is investigating the possibility of establishing a compensation fund for victims of crime in South Africa.	The opinion of the Law Advisers state that article 25(2) of the Convention does not envisage that States Parties must establish a compensation fund for victims- but should have legislative procedures in place that would allow victims to claim compensation from the perpetrators.
6. Trafficking in Persons Protocol	Each State Party shall consider implementation measures for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with NGOs, other relevant organisations and other elements of civil society and in particular, the provision of appropriate housing, counselling and information regarding their rights in a language they understand, medical psychological and material assistance and employment, educational and training opportunities (art 6(3))	No measures presently	DoJCD, Social Development (including NGOs, other relevant organisations and other elements of civil society)		The opinion from the law advisers state that States Parties are only obliged to consider providing such assistance to victims; there is no obligation to do so.
	Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered (art 6(6)	No compensation fund established in South Africa	DoJCD	The SA Law Reform Commission is investigating the possibility of establishing a compensation fund for victims of crime in South Africa.	Opinion of the law advisers is that the similarity of art.25(2) of the Convention to art.6(6) is sufficient to allow for the same interpretation as attributed to article 25(2) of the Convention.
	The State Party of which a victim of trafficking in persons is a national or in which the person had the right of permanent residence at the time of entry into the territory of the receiving State Party shall facilitate and accept, with due regard to the safety of that person, return of that person without undue or unreasonable doubt. This should include the issue of travel documents or other authorisation	Measures are in place Home Affairs will assist with the identification of SA citizens and permanent residents that may be victims of trafficking in persons and will provide the necessary documentation to facilitate their return to the country.	Home Affairs	Measures are in place	When S A is the receiving State, Home Affairs will fund the repatriation of victims of trafficking in persons. (The Immigration Act makes provision for the removal of illegal foreigners) Within the budget of Home Affairs
7. Smuggling of Migrants Protocol	Requires the designation by each State Party of an authority, or where necessary, authorities to receive and respond to requests for assistance, for confirmation of registry or of a right of a vessel to fly its flag and for authorisation to take appropriate measures (art 8(6))	The South African Maritime Safety Authority (SAMSA) will be designated. It will be complemented by Home Affairs, Transport, SAPS and SANDF	Transport (SAMSA), Home Affairs, SAPS and SANDF	None	None
7. Smuggling of Migrants Protocol	Art. 18 – Return of smuggled migrants	Measures are in place When SA is the receiving State, Home Affairs will cover the repatriation costs for smuggled migrants (found in the country). When SA citizens and permanent residents are identified as smuggled migrants in another country their costs will be covered by the receiving State concerned.	Home Affairs	Measures in place	Within the budget of Home Affairs
8. Firearms Protocol	State Parties shall cooperate with each other and shall, without prejudice to paragraph 13, art 18 of the Convention, identify a national body or a single point of contact to act as liaison between it and other State Parties on matters relating to the Protocol	A national body or single point of contact identified	SAPS	The national body or single point of contact will be the Central Firearm Register. (It’s a unit in the SAPS.)	None (no financial implications)

RESERVATIONS
Instrument	Required Reservations	Status	Responsible Dept(s)	Action	Funding
9. The Convention	A State Party may at the time of signature, ratification, acceptance or approval of or accession to the Convention enter a reservation against the settlement of disputes concerning the interpretation or application of the Convention through arbitration or by requesting the International Court of Justice to do so (art 35)	Advise that South Africa enter a reservation in terms of this article	DoJCD	Enter a reservation at time of deposit of instrument of ratification	None
10. Protocols (Persons, Migrant and Firearms)	They provide for a similar reservation	Advise that South Africa enter a reservation in terms of this article	DoJCD, Home Affairs, and SAPS	Enter a reservation at time of deposit of instrument of ratification	None

LEGISLATION
Instrument	Required Legislation	Status	Responsible Dept(s)	Action	Funding
1. The Convention	Criminalisation of the following crimes: Participation in organised criminal groups (art 5 of the Convention) Money laundering (art 6) Corruption (art 8) Obstruction of justice (art 23) Other legislation: Regulatory and supervisory regime in respect of banks and non-bank financial institutions i.e., in respect of money laundering (art 7) Promotion of integrity and punishment of corrupt public officials (art 9) Legislation to enable confiscation of proceeds of crime (art 13) Legislation and/or treaties on extradition and mutual legal assistance in criminal matters (arts 16 and 18)	South Africa is compliant with the Convention: Prevention of Organised Crime Act, 1998 (Act 121 of 1998) criminalises organised crime, money laundering and criminal gang activities. It also provides for confiscation of proceeds of crime The Financial Intelligence Centre Act, 2001 (Act 38 of 2001) is aimed at combating money laundering, in particular the reporting of suspicious transactions to the Financial Intelligence Centre (FIC) Corruption Act, 1992 (Act 94 of 1992) Public Protector Act, 1994 (Act 23 of 1994) and Public Finance Management Act, 1999 (Act 1 of 1999) deal with corruption, especially in the public sector. Prevention of Corruption Bill, 2002, has been submitted to Parliament for consideration. The Extradition Act, 1962 (Act 67 of 1962) and International Cooperation in Criminal Matters Act, 1996 (Act 75 of 1996) deal with extradition and mutual legal assistance in criminal matters. South Africa has also concluded bilateral and multilateral treaties in this respect	Department of Justice and Constitutional Development (DoJCD), Finance and Public Service Administration	None	None (no financial implications)
2. Trafficking in Persons Protocol	Legislation to criminalise trafficking in persons (art 5)	Currently, no legislation Draft Children’s Bill has been submitted to Parliament (it does prohibit and criminalise trafficking in children) In addition the Child Care Act, 1983 is currently being amended to criminalise child trafficking and to ensure reporting of this. It is hoped that this will be finalised by the end of the year (2003).	DoJCD, Social Development, Safety and Security and NDPP	The SALRC is currently investigating trafficking in persons for purposes of law reform. An Issue Paper is being prepared and will be published for comment before the end of 2003. Responses to the Issue Paper and further research will form the basis for the preparation of the Discussion Paper. The Discussion Paper with draft legislation should be finalised by the end of 2004. The NDPP have proposed draft interim human trafficking legislation which is still at a consultative stage. This legislation is intended to serve as an interim measure until the SALRC’s proposed legislation comes into operation.	Costing will be done by the relevant departments
3. Smuggling of Migrants Protocol	Legislation to criminalise smuggling of migrants (art 6)	Currently, no legislation	Home Affairs, Transport, NDPP and SAPS	Special legislation dealing with the smuggling of migrants to be developed	Costing will be done by relevant departments
4. Firearms Protocol	Legislation to criminalise illicit manufacturing of and illicit trafficking in firearms, their parts and components and ammunition	South Africa is compliant with the Protocol Firearms Control Act, 2000 (Act 60 of 2000) National Conventional Arms Control Act, 2002 (Act 41 of 2002)	SAPS	None	None (no financial implications)