SUBMISSION TO PARLIAMENTARY DELIBERATIONS –
PROHIBITION OF MERCENARY ACTIVITIES AND PROHIBITION AND REGULATION OF CERTAIN
ACTIVITIES IN AREAS OF ARMED CONFLICT BILL [B42-2005}
General
Comments:
The
Portfolio Committee on Defence and its Chair Ms. Thandi Tobias must be
commended for the manner in which it has conducted its deliberations on the
Bill during the past week and its openness to suggestions, comments and
amendments in the processing of B42-2005. The changes in respect of aligning
the definition of ‘armed conflict’ with international law; the deletion of ‘an
area of armed conflict’ throughout the Bill; the dramatic amendment of the
exemption for national liberation struggles in the context of the international
community’s lack of progress of crafting an internationally agreed definition
of terrorism; the possible loosening of provisions on humanitarian assistance
and security services must all be welcomed.
However,
there are some core concerns that remain in respect of the definition of
security services and its consequent regulation; the possible retrospectivity
of foreign enlistment, extraterritoriality and constitutionality, the processes
and procedures for authorization and the notification of Parliament and its
role in these processes.
Specific
Matters:
- Long title and Preamble: The new long title ‘Prohibition of Mercenary Activities and
Regulation of Certain Activities in a Country of Armed Conflict Bill’ is a
more accurate reflection of the more permissive stance of the Bill to the
provision of security services as contemplated in the Bill after
amendments. The deletions and insertions in the preamble are supported.
- Changes in Definitions: Clarity is sought on the last wording in respect of security
services …
- National Liberation Struggles
Exemption: The sc rapping of 2(a) and retention of 2(b) is
supported as it should minimize the scope for discretion in exemptions for
these purposes.
- Prohibition of Mercenary
Activity: The proposed insertion of a new sub (3) ‘for the
purposes of this section a person includes a foreign citizen permanently
resident in South Africa irrespective of where the offence is committed’
will broaden the application of this clause considerably. This could be
construed as complying with South Africa’s obligations in respect of the
AU Convention on the Elimination of Mercenarism.
- Regulation of assistance or
service: Clarity is sought in respect of final definition
of security services and its relation to Section 3
- Foreign Enlistment: The conflicting policy imperatives underpinning this clause must
be resolved in such a manner that there is no possible unconstitutional
aspect of retrospectivity in the practical application of this clause. The
South African state has a legitimate requirement to be aware of all of its
citizen’s deployment to other armed forces. It has an understandable
desire not to have its nationals so enlisted and deployed in theatre’s
where the deployment and activities of the armed force of another country
conflicts with South Africa’s own foreign policy positions and goals such
as is the case in Iraq at present. However, in respect of enlistment in a
foreign force there are two aspects of constitutionality at stake
potentially. Firstly, if authorization is granted but rendered effectively
meaningless due to an inability to deploy there is a hollowing out of the
constitutional right of freedom of occupation, trade and profession.
Whether this is a reasonable limitation will be contentious. In addition,
the effect of the transitional provisions would be to effectively function
retrospectively and to criminalize activities retrospectively in the
absence of authorization for foreign enlistment been granted. This matter
is partially resolved in the proposed SAPS amendment but the
retrospectivity issue remains in respect of the transition provisions. It
is recommended that the State Law advisor give advice on possible drafting
solutions following government-to-government diplomatic resolution with
countries that may be affected by these provisions including the United
Kingdom. It is worthwhile reminding the Committee that whilst foreign
enlistment is not as common internationally the South African Constitution
effectively makes any outright ban on foreign enlistment arguably
impossible or, at best, more difficult subject to only to the limitation
cause in the Bill of Rights..
- Humanitarian assistance: Whilst humanitarian assistance was the ‘loophole’ in the RFMA in
terms of which many security and other services were offered, the scope
that is being created to accommodate international humanitarian
orginisations through key amendments is supported. However, ambiguities
may arise in respect of ‘South African humanitarian organisation’ in the
absence of a clear definition in the Bill.
- Proclamation of regulated
country or area: The Bill does not contain
any criteria that would make a country susceptible to being designated as
a regulated country. It may be important to once again make reference in
this clause to international law and ‘armed conflict’ to give greater
legal certainty given that the uncertainty potentially created by using an
‘area’ and the scope for administrative discretion this opened up has
largely been eliminated with the elimination of all references to ‘area’
in the Bill. Cross-references here with definitions and international law
are crucial.
- Authorisation application: In terms of constitutionality and due and fair administrative
action, there is a clear need to give greater clarity in respect of
processes and procedures for application as well as processing times. Key
references, as contemplated in respect of Section 33 and 34 of the
Constitution may need more detail and/or clarity in respect of the
requirements of PAJA. Alternatively, the key references to 33 and 34 will
reserve the Constitutional rights of applicants in the event of any
litigation in respect of any administrative acts in lieu of authorisation
decisions and procedures.
- Register and Reports to
Parliament: Given the considerable new role that the
President plays in respect of designating regulated countries, exemptions,
and the overall architecture of the Bill, the oversight role of Parliament
will be a crucial counterweight to the scope of executive decision-making
in the Bill. There are two different yet equally crucial roles for Parliament.
The reports / tabling of Proclamations in terms of Section 6(3) should be
tabled for Parliament’s consideration in a similar vein in which the
deployment of the SANDF is dealt with in the Constitution and the rules of
the House. This is an indispensable tool of parliamentary accountability,
as are regular quarterly reports in respect of authorisation decisions.
These reports contemplated in section 8(2) should ideally include a list
of applications received, the authorizations granted and refused and the
reasons for such decisions. Currently the information that is tabled in
Parliament before the PCOD by the NCACC on RFMA applications is woefully
incomplete. Parliament will face a
new challenge in crafting an oversight role over the new Bill.
- Extraterritoriality: Whilst other instruments exist in respect of extraterritorial
application such as the US’s MEJA (military Extra-Territorial Jurisdiction
Act) – which was amended in 2004 to include third country nationals under
its jurisdictional scope – and Australia’s Defence Force Discipline Act
and Crimes Overseas Acts, the scope of extraterritorial jurisdiction in
the South African Act is very wide. In addition, as was seen in the
EG-Zimbabwe case ruling in the Constitutional Court, extraterritorial jurisdiction
only functions effectively if it is supported by an interlocking system of
similar offences in other jurisdictions that make extradition a realistic
possibility.
- Regulations: Broad scope of the regulation provision may raise Constitutional
concerns.
- Transitional Provisions: The proposed 6 month period across the board is supported. Residual
concerns remain with respect to transitional provisions and enlistment.
- Constitutional aspects: Concerns remains about administrative discretion, limitation of rights,
retrospectivity and extra-territorial application of the Bill.