NATIONAL ASSEMBLY AND NATIONAL COUNCIL OF PROVINCES

REVISED EXPLANATORY MEMORANDUM: RATIFICATION OF THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME (THE CONVENTION) AND PROTOCOLS THERETO

  1. 1. PURPOSE

  2. The purpose of this memorandum is to –

    1. set out the history, purposes and consequences of the UN Convention against Transnational Organized Crime (the Convention) and Protocols thereto, namely, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime (Protocol 1), the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime (Protocol 2) and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, supplementing the UN Convention against Transnational Organized Crime (Protocol 3); and

    2. highlight some of the most important provisions thereof, with a view to obtaining Parliament's approval for the Republic of South Africa to ratify the Convention and the three supplementary Protocols as contemplated in section 231(2) of the Constitution of the Republic of South Africa Act, 1996 (Act No 108 of 1996) (the Constitution).

  1. OBJECTS OF THE CONVENTION AND PROTOCOLS

    1. The purpose of the Convention is to promote co-operation to prevent and combat transnational organized crime more effectively.

    2.2 Protocol 1 supplements the Convention and its purposes are to, inter alia, prevent and combat trafficking in persons, especially women and children, and to protect and assist victims of such trafficking.

    2.3 Protocol 2 supplements the Convention and its purposes are to, inter alia, prevent and combat the smuggling of migrants and promote co-operation among States Parties to that end.

    2.4 Protocol 3 also supplements the Convention and its purposes are, inter alia, to promote, facilitate and strengthen cooperation among State Parties to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms.

  2. SUMMARY

    1. South Africa was represented at all the meetings regarding the drafting of the Convention and Protocols by Adv Pieter Smit of the South African Law Reform Commission (SALRC) and Ms K Strydom from the South African Police Service (SAPS), who joined him in 2000.

    2. South Africa signed the Convention and Protocols 1 and 2 on 14 December 2000. Protocol 3 (on firearms) was signed on 14 October 2002. The Convention and Protocols have now to be ratified.

    3. The Convention must be signed and ratified by 40 countries before it comes into force. The Convention and Protocols oblige countries, which sign and ratify them to take measures against transnational organized crime.

4. OVERVIEW OF IMPORTANT PROVISIONS

4.1 The Convention

4.1.1 The foremost purpose of the Convention is international co-operation. Article 1 of the Convention states that the purpose of the Convention is to "promote co-operation to prevent and combat transnational organized crime more effectively".

4.1.2 The Convention establishes four specific crimes:

      1. Article 5 requires States Parties to enact legislation making these activities (referred to above) domestic offences if they are not already offences. Paragraph 3 requires States Parties to inform the UN Secretary -General at the time of their deposit of their instrument of ratification whether their domestic law requires an act in furtherance of the agreement for purposes of the offences established in terms of paragraph 1(a)(i) or whether their domestic law requires involvement of an organised criminal group for purposes of the offences established in accordance with paragraph 1(a)(ii). South African domestic legislation conforms to paragraph 1(a)(ii). The Secretary-General of the United Nations must be so informed of the position at the time of deposit of the instrument of ratification.

      2. Article 6, paragraph 2(d) requires States Parties to furnish copies of its laws that give effect to this article (criminalisation of the laundering of proceeds of crime) and of any subsequent changes to such laws to the UN Secretary-General.

      3. Article 10 requires States Parties to adopt measures to establish the liability of legal persons for participation in serious crimes involving an organized criminal group and for the offences referred to in articles 5, 6, 8 and 23 of the Convention.

      4. Article 11 requires States Parties to ensure that courts/competent authorities bear in mind the grave nature of the offences covered by this Convention when considering early release or parole.

      5. Article 12 requires States Parties to empower its courts/competent authorities to order that bank, financial or commercial records be made available or seized. States Parties shall not decline to act under the provisions of this paragraph on the ground of bank secrecy.

      6. Article 13 deals with international cooperation for purposes of confiscation. This article requires, inter alia, States Parties to furnish copies of its laws and any subsequent changes that give effect to this article, for e.g. obtaining confiscation orders, to the UN Secretary –General.

4.1.9 Co-operation under the Convention includes extradition and mutual legal assistance (articles 16 and 18 respectively). Article 16 states that this Convention may be considered the legal basis for extradition in respect of any offence this article applies to, where a State Party makes extradition conditional on the existence of a treaty and the other State Party has no extradition treaty with it. Paragraph 5 states that States Parties that make extradition conditional on the existence of a treaty shall at the time of deposit of their instrument of ratification inform the UN Secretary –General whether they will take this Convention as the legal basis for cooperation on extradition with other States Parties to this Convention. South Africa has the Extradition Act, 1992 (Act 67 of 1962); this facilitates extradition and therefore does not require the existence of a treaty before extradition can take place. Paragraph 15 states that States Parties may not refuse a request for extradition on the sole ground that the offence is also considered to involve fiscal matters.

    1. Article 18 states that State Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to offences, which are transnational in nature and involves an organized criminal group. States Parties may decline to render assistance pursuant to this article on the ground of absence of dual criminality. However, the requested State Party may provide assistance at its discretion. Paragraph 8 states that States Parties shall not decline to render mutual legal assistance on the ground of bank secrecy.

Article 18, paragraph 13 states that a State Party shall designate a central authority that shall have the power to receive requests for mutual legal assistance and shall either execute them or transmit them to competent authorities for execution. The Director-General of the Department of Justice and Constitutional Development shall be the designated central authority in terms of article 18, paragraph 13. The Director-General is to be complemented by law enforcement agencies (special units) such as the NDPP (Directorate of Special Operations), SAPS (INTERPOL) and National Intelligence Agency (NIA). The Secretary-General of the United Nations must be notified of the central authority designated at the time the State Party deposits its instrument of ratification, acceptance or approval of or accession to this Convention.

Paragraph 22 states that States Parties may not refuse a request for mutual legal assistance on the sole ground that the offence is also considered to involve fiscal matters. Paragraph 28 states that the ordinary costs of executing a request shall be borne by the requested State Party, unless otherwise agreed by the States Parties concerned. States Parties may consult to determine the manner in which costs may be borne where expenses are substantial.

4.1.11 Article 25 requires States Parties to take appropriate measures within its means to provide assistance and protection to victims covered by the Convention. Paragraph 2 states that States Parties shall establish appropriate procedures to provide access to compensation and restitution for victims of offences covered by this Convention. Opinions were sought from both the State Law Adviser and Chief State Law Adviser (International Law) regarding the financial implications for a State Party in respect of this article. Both agree that paragraph 2 of article 25 does not envisage that States Parties must establish a compensation fund for victims. The opinion of the Chief State Law Adviser (International Law) states that a State Party is required to implement legislative procedures that would allow the victims to claim compensation from the perpetrators of crimes defined in the Convention. The following provisions are available in our domestic law:

      1. The Convention and Protocols make provision for technical assistance projects where developed countries would assist with technical expertise, resources, or both. Article 30, paragraph 2(b) requires States Parties to "…enhance financial and material assistance to support the efforts of developing countries to fight transnational crime effectively and to help them implement the Convention successfully."

4.1.13 Article 35 provides for settlement of disputes concerning the interpretation or application of this Convention through negotiation (paragraph 1). If not, through arbitration; and if six months after the date of the request for arbitration, those States are unable to agree on the organisation of the arbitration, any one of those States Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court (paragraph 2). Paragraph 3 deals with reservation regarding paragraph 2, which provides for settlement of disputes through arbitration or by requesting the ICJ to do so. Reservation may be entered at the time of signature, ratification, acceptance or approval of or accession to this Convention. Article 15 of the Trafficking Protocol, article 20 of the Smuggling Protocol, and article 16 of the Firearms Protocol provide for the similar provision regarding reservations. The Chief State Law Adviser (International Law) has advised that South Africa does not recognise the compulsory jurisdiction of the ICJ, as provided for in article 36(2) of the Statute of the ICJ. In the past South Africa has, when ratifying UN multilateral treaties, entered a reservation with regard to the compulsory jurisdiction of the ICJ with regard to the settlement of disputes arising out of the interpretation or application of a specific treaty. Although the issue of whether or not to accept the compulsory jurisdiction of the ICJ in this instance is a political decision South Africa is advised to make the relevant reservations regarding the above instruments. If no reservation is entered the Government of South Africa may find that it may have to defend a vexatious case in lengthy and expensive legal proceedings.

4.2 Protocol 1 (Trafficking in Persons Protocol)

4.2.1 This Protocol (like Protocols 2 and 3) supplements the Convention and is to be interpreted together with the Convention.

4.2.2 Article 2 set out the purposes of the Protocol. The purposes of this Protocol are to prevent and combat trafficking in persons, especially women and children, protect and assist the victims of such trafficking, and promote co-operation among States Parties to meet these objectives.

4.2.3 Article 5 requires States Parties to adopt legislative and other measures necessary to establish as criminal offences the conduct set out in article 3 (trafficking of persons), including, inter alia, attempting to commit an offence and participating as an accomplice.

4.2.4 Article 6 of the Trafficking Protocol provides for the protection of victims of trafficking in persons. Paragraph 3 of article 6 provides that each State Party "shall consider implementing measures" for the physical, psychological and social recovery of victims of the 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:

The Chief State Law Adviser (International Law) has advised that States Parties are only obliged to consider providing assistance to victims; they do not have an obligation to provide such assistance. They state that this is a drafting style frequently utilised in multilateral treaties, where the drafters wish to provide guidelines to States on what States Parties should do in certain instances to give effect to the purposes and aims of the treaties. If the drafters had intended that the provision of assistance to victims was a binding obligation then they would have stated that "Each State Party shall implement measures to provide" for certain specified assistance.

Paragraph 6 provides that 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. The Chief State Law Adviser (International Law) has advised that this paragraph 6 is very similar to article 25(2) of the Convention and that the similarity is enough to allow for the same interpretation as was attributed to article 25(2), that is, a State Party must ensure that its domestic legal system allows a victim to claim compensation from a perpetrator of the offences provided for in the Convention and Protocol; the State itself is not obliged to establish a compensation fund for victims. Reference is also made to information given under article 25 of the Convention above.

4.2.5 Article 7 provides for the status of victims of trafficking in persons in receiving States. It requires States Parties to consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases. States Parties shall give appropriate consideration to humanitarian and compassionate factors.

4.2.6 Article 8 provides for the repatriation of victims of trafficking in persons. Paragraph 1 states that the State Party of which a victim of trafficking in persons is a national or in which the person had a 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, the return of that person without undue delay.

4.2.7 Article 9 deals with the prevention of trafficking in persons. It requires States Parties to, inter alia, establish comprehensive policies / programmes to prevent and combat trafficking in persons and to take or strengthen measures to alleviate factors such as poverty, which make persons, especially women and children, vulnerable to trafficking.

4.2.8 Article 10 deals with information exchange and training. In terms of this article law enforcement, immigration or other relevant authorities of States Parties must co-operate with one another by exchanging information in accordance with their domestic law. States Parties must provide for or strengthen training of these officials.

4.2.9 Article 12 requires States Parties to take the necessary measures, within available means, to ensure that travel or identity documents issued by it are of such quality that they cannot be easily misused or readily falsified, replicated or issued.

 

4.3 Protocol 2 (Smuggling of migrants Protocol)

4.3.1 Article 2 states that the purpose of this Protocol is to prevent and combat the smuggling of migrants, promote co-operation among States Parties to that end and protect the rights of the smuggled migrants.

4.3.2 Article 5 states that migrants shall not become liable to criminal prosecution under this Protocol.

4.3.3 Article 6 states that a State Party shall adopt legislative and other measures to establish as criminal offences, inter alia, the smuggling of migrants.

4.3.4 Part 11 deals with the smuggling of migrants by sea.

        1. Article 7 states that a State Party must co-operate to the fullest extent possible to prevent and suppress the smuggling of migrants by sea.

4.3.4.2 Article 8 deals with the measures against the smuggling of migrants by sea. It states that a flag State may authorize a requesting State to, inter alia, board and search a vessel. If evidence of smuggling of migrants is found the requesting State may take appropriate measures with respect to the vessel and persons and cargo on board, as authorized by the flag State. Paragraph 6 of this article states that a State Party shall designate an authority to receive and respond to requests for assistance, for confirmation of registry or of the right of a vessel to fly its flag and for authorization to take appropriate measures. Such designation shall be notified through the UN Secretary-General to all States Parties within one month of the designation. SAMSA (South African Maritime Safety Authority) advised that it would be the appropriate national authority to be designated, but only in relation to functions involving confirmation of a vessel’s registry and of the right of a vessel to fly the national flag. The designated authority in terms of this article will be SAMSA. Home Affairs, Transport, SAPS and SANDF will complement SAMSA.

        1. Article 9 states that a State Party taking measures against a vessel in accordance with article 8 of the Protocol shall, inter alia, ensure the safety and humane treatment of the persons on board and not endanger the security of the vessel or its cargo. Furthermore, the vessel shall be compensated for loss or damage where grounds for measures taken prove to be unfounded.

4.3.5 Part lll deals with prevention and co-operation in respect of smuggling of migrants.

4.3.5.1 Article 11 requires States Parties to strengthen, to the extent possible, border controls as may be necessary to prevent and detect smuggling of migrants.

4.3.5.2 Article 15 states that States Parties shall take measures to ensure that it provides or strengthens information programmes to increase public awareness that the conduct set out in article 6 is a criminal activity and that it poses serious risks to the migrants concerned.

4.3.5.3 Article 18 deals with the return of smuggled migrants. Paragraph 1 requires a State Party to agree to facilitate and accept, without undue delay, the return of a person who has been the object of conduct set out in article 6 of this Protocol, and who is its national or who has the right of permanent residence in its territory at the time of return. Paragraph 4 requires a State Party, of which that person is a national or in which that person has the right of permanent residence, to agree to issue, at the request of the receiving State Party, such travel documents as may be necessary to enable the person to travel to and re-enter its territory.

4.4 Protocol 3 (Illicit Trafficking in Firearms Protocol)

4.4.1 Article 1 states that the purpose of this Protocol is to, inter alia, promote and strengthen cooperation among States Parties in order to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition.

4.4.2 Article 5 states that each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the following conduct, inter alia, when committed intentionally:

4.4.3 Article 7 states that States Parties shall ensure the maintenance, for not less than ten years, of information in relation to firearms and, where appropriate and feasible, their parts and components and ammunition.

4.4.4 Article 8 states that States Parties, for the purpose of identifying and tracing each firearm, shall, at the time of manufacture of each firearm require unique marking providing certain details, for e.g. the name of the manufacturer and place of manufacturer.

4.4.5 Article 10 requires a State Party to establish or maintain an effective system of export and import licensing or authorization for the transfer of firearms, their parts and components and ammunition.

4.4.6 Article 13 requires States Parties to identify a national body or a single point of contact to act as liaison between it and other States Parties on matters relating to this Protocol. The South African Police Service has advised that this will be the Central Firearm Register.

4.4.7 Article 15 deals with brokers and brokering. It basically states that States Parties shall consider establishing a system for regulating activities of those who engage in brokering.

4.5 A State Party may denounce the Convention (Article 40). Denunciation of the Convention shall entail denunciation of any of the Protocols. A State Party may also denounce Protocol 1 (article 19), Protocol 2 (article 24) and/or Protocol 3 (article 20). Denunciation will be by written notification to the UN Secretary-General. It shall become effective a year after the date of receipt of the notification by the Secretary-General.

4.6 Article 36 of the Convention, article 16 of Protocol 1, article 21 of Protocol 2 and article17 of Protocol 3 deal with signature, ratification, acceptance and approval.

4.7 Article 39 of the Convention, article 18 of Protocol 1, article 23 of Protocol 2 and article 19 of Protocol 3 deal with amendments to these instruments.

4.8 Except for the reservation regarding settlement of disputes referred to in the Convention (paragraph 3 of article 35), the Trafficking Protocol (paragraph 3 of article 15), the Smuggling Protocol (paragraph 3 of article 20) and the Firearms Protocol (paragraph 3 of article 16), there is no provision in the instruments for any other reservation.

5. DOMESTIC LEGISLATION

5.1 South Africa is compliant with the Convention as far as the legislative requirements for criminalisation of offences contained therein. The Prevention of Organised Crime Act, 1998 (Act 121 of 1998) makes provision for, inter alia, combating organised crime, money laundering and criminal gang activities. Corruption is combated through several pieces of legislation, which includes the Corruption Act, 1992 (Act 94 of 1992), Public Finance Management Act, 1999 (Act 1 of 1999) and the Public Protector Act, 1994 (Act 23 of 1994). 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. South Africa has the Extradition Act, 1962 (Act 67 of 1962) and the International Co-operation in Criminal Matters Act, 1996 (Act 75 of 1996), and is party to several bilateral and multilateral agreements on these matters, and these are in line with the provisions contained in the Convention.

5.2 Article 5 of the Trafficking Protocol requires each State Party to adopt legislation criminalizing trafficking in persons. South Africa has no legislation specifically criminalizing trafficking in persons. The South African Law Reform Commission (SALRC) is currently investigating trafficking in persons for the 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 next year.

5.3 Article 6 of the Smuggling Protocol requires States Parties to criminalise smuggling of migrants. Currently, there is no legislation dealing with this. Special legislation criminalising the smuggling of migrants is required. The Immigration Act 2002, (Act 13 of 2002) does deal with security and control of travel and identity documents, legitimacy and validity of travel and identity documents.

5.4 Article 5 of the Firearms Protocol requires each State Party to criminalise illicit manufacturing of and trafficking in firearms, their parts and components and ammunition. The Firearms Control Act, 2000 (Act 60 of 2000) goes beyond the provisions of this Protocol. The National Conventional Arms Control Act, 2002 (Act 41 of 2002), which came into operation on 1 May 2003, also gives effect to the Firearms Protocol.

The obligations in the Protocol overlap to a large degree with the Southern African Development Community (SADC) Protocol on the Control of Firearms, Ammunition and Other Related Material. South Africa recently ratified this Protocol.

6. DEPARTMENTS AND/OR BODIES CONSULTED

6.1 The Interdepartmental Committee, which was established by the Minister, has already had meetings. The Committee comprises the following departments/organisations: Justice and Constitutional Development, Foreign Affairs, Social Development, Transport, Home Affairs, NDPP, SAPS, Correctional Services, SANDF and SAMSA. The Directors-General Security Cluster approved the Terms of Reference and Action Plan.

6.2 The Chief State Law Adviser has advised that the Convention and Protocols 1, 2 and 3 have been scrutinized with a view to possible conflict with the domestic law of the Republic of South Africa and is of the opinion that there appears to be no such conflict.

6.3 The Chief State Law Adviser (International Law) has advised that the Convention and Protocols 1, 2 and 3 have been scrutinized and are of the opinion that the said instruments are in compliance with international law.

7. ORGANISATIONAL AND PERSONNEL IMPLICATIONS

7.1 There will be no organisational and personnel implications since members of the Inter -Departmental Committee have a mandate to facilitate the ratification of the Convention and Protocols and to develop implementation legislation; in particular the Department of Justice and Constitutional Development: Directorate: Parliamentary Legislation is assisting with determining what further legislation is required to give effect to the obligations set out under Convention and Protocols.

7.2 The designations referred to in the Convention (article 18, paragraph 13), the Smuggling Protocol (article 8, paragraph 6) and the Firearms Protocol (article 13, paragraph 2) have been identified from existing structures; it was not necessary to set up new structures to deal with this.

8. COMMUNICATION IMPLICATIONS

The Department, in consultation with GCIS, will handle communication implications in this regard.

9. FINANCIAL IMPLICATIONS

Reference is made to the Implementation Plan attached hereto.

 

10. RECOMMENDATION

It is recommended that Parliament approve the ratification of the Convention and

Supplementary Protocols 1, 2 and 3 in terms of section 231(2) of the Constitution of the Republic of South Africa Act, 1996 (Act 108 of 1996).