DEMOCRATIC ALLIANCE PROPOSAL

PROPOSAL FOR POSSIBLE AMMENDMENTS TO THE “PROHIBITION OF MERCENARY ACTIVITIES AND PROHIBITION AND REGULATION OF CERTAIN ACTIVITIES IN AN AREA OF. ARMED CONFLICT BILL, 2005”

Besides the issues discussed by the portfolio committee for defence the following additional issues require attention:

· 1(1) "assistance service" includes: (c) security services rendered to a party to an armed conflict to replace security services. This is necessary since "an area of armed conflict" has been removed throughout the Bill. It may happen that such services are rendered in one part of a country in which there is peace and it would not be necessary to prohibit this. Section 6 refers to a regulated country, not areas.

· 4(1) ''No South African citizen or permanent resident may enlist with any armed force, other that the Defence Force, including an armed force of any foreign state, unless he or she has been registered with the Committee in terms of section 8”. Since the purpose of this Bill is to prevent mercenary activities and not to prevent individuals from joining a legitimate armed force of a foreign state it is important to mow where they are without restricting their ability to work abroad or subjecting them to a bureaucratic approval process.

· Replace current 4(2) with “Any person who applies for registration in terms of subsection (1) must submit to the Committee an application for registration in the prescribed form and manner.” It does not make sense to automatically disqualify them from joining any armed force of a foreign state by restricting the type of activity they would be allowed to participate in. This would be an "unintended consequence of this provision. We should mow where they are and keep a register of them

· 6(1) “The Committee must advise the National Executive, whenever it has reason to believe that:” National Executive and not cabinet is used elsewhere in the Bill. The use of the term “reason to believe” is stronger than “it is of the opinion” and is legally more appropriate.

· 7 add “(8) The Committee must advise an applicant in writing of its decision to grant or refuse an application for authorization or registration within 60 days of the date on which the application was lodged, failing which the application is deemed to be approved.”

· 8 (1) add “(d) South African Citizens or permanent residents enlisted with an armed force whose enlistment is registered by the committee, in terms of section 4.”

· 9. "An authorization in terms of section 7(2), and exemption in terms of section 13, must be granted if it does not or would not-

(a) conflict with the Republic's obligations ...;

(b) result in the infringement of human rights...;

(c) endanger the peace...;

(d) contribute to regional...;

(e) in any manner initiate, cause, or further an armed conflict...; or

(f) prejudice the republics..."

· 10 (3) remove the words "or any other property or object" and rather expand the list if necessary. The will strengthen the legality of such actions. The current RFMAA contains a similar provision.

· 11 (2) correct "citizens" and "residents".

· 14 (3) replace "three months" with "six months".

Other areas for discussion include:

· 5(1) Define more clearly a South African Humanitarian organization.

· 6 Approval, inform or consideration by Parliament.

· 7 Right to recourse and possible appeal mechanism. The criteria for refusal The law has to be certain and the courts require criteria (confirm with justice committee submission regarding standards)

· Extra-territorial reach.

· It is important to consider the potentially wide ambit of clause 2 and wide reach of clause 3, including activities that may, not deserve punishment, before imposing inflexible minimum sentences