REPUBLIC OF SOUTH AFRICA
PROHIBITION OF MERCENARY ACTIVITIES AND REGULATION OF CERTAIN ACTIVITIES IN
COUNTRY OF ARMED CONFLICT BILL, 2006
(As presented by the Portfolio Committee on Defence (National Assembly))
(The English text is the official text of the Bill)
(MINISTER OF DEFENCE)
[B42B -2006]
GENERAL EXPLANATORY REMARKS
Words in square brackets denote deletions from the existing enactments. .
Words underlined with a solid line denote additions/insertions in the existing
enactments.
BILL
To prohibit mercenary activity; to regulate the provision of assistance or
service of a military or military-related nature in an area of armed conflict;
to regulate the enlistment of South African citizens or permanent residents in
other armed forces; to regulate the provision of humanitarian aid in an area of
armed conflict; to provide for extra-territorial jurisdiction for the courts of
the Republic with regard to certain offences; to provide for offences and
penalties; and to provide for matters connected therewith.
PREAMBLE
WHEREAS the Constitution of the Republic of South Africa, 1996, provides
in section 198(b) that the resolve to live in peace and harmony precludes any
South African citizen from participating in armed conflict, nationally or
internationally, except as provided for in the Constitution or national
legislation;
AND WHEREAS it is necessary to prohibit mercenary activity in order to give
effect to the values in our Constitution and our international obligations;
AND WHEREAS it is also necessary, in the interest of promoting and
protecting human rights and fundamental freedoms, universally, to regulate the
enlistment of South African citizens and permanent residents in other armed
forces and to regulate the provision of military and military-related
assistance or services by South African juristic persons, citizens, persons
permanently resident in the Republic and in certain circumstances, foreign
citizens,
BE IT THEREFORE ENACTED by the Parliament of the Republic of South
Africa, as follows:-
Definitions and interpretation
1. (1) In this Act, unless the context
indicates otherwise-
"armed conflict" includes any-
(a) situation in a regulated country proclaimed as such in terms of section 6;
and
(b) armed conflict in any other country which has not been so proclaimed,
between-
(i) the armed forces of such country and dissident or rebel armed forces or
other armed groups;
(ii) the armed forces of any states;
(iii) armed groups;
(iv) armed forces of any occupying power and dissident or rebel armed forces or
any other armed group; or
(v) any other combination of the entities referred to in subparagraphs (i) to
(iv);
"assistance or service" includes-
(a) any form of military or military-related assistance, service or activity;
(b) any form of assistance or service to a party to an armed conflict by means
of-
(i) advice or training;
(ii) personnel, financial, logistical, intelligence or operational support;
(iii) personnel recruitment;
(iv) medical or para-medical services; or
(v) procurement of equipment; or
(c) security services;
"Committee" means the National Conventional Arms Control
Committee, established in terms of section 2 of the National Conventional Arms
Control Act, 2002 (Act No. 41 of 2002);
"Defence Force" means the South African National Defence Force
contemplated in section 11 of the Defence Act, 2002 (Act No. 42 of 2002);
"person" means a person who is a citizen of or is permanently
resident in the Republic, a juristic person registered or incorporated in the
Republic, or any foreign citizen who contravenes this Act within the borders of
the Republic;
"prescribed" means prescribed by regulation made in terms of
section 12;
"register" means the register referred to in section 8;
"regulated country" means a country contemplated in section 6;
"security services" means one or more of the following
services or activities:
(a) Protection or safeguarding of an individual, personnel or property in any
manner;
(b) giving advice on the protection or safeguarding of individuals or property;
(c) giving advice on the use of security equipment;
(d) providing a reactive or response service in connection with the safeguarding
of persons or property in any manner;
(e) providing security training or instruction to a security service provider
or prospective security service provider;
(f) installing, servicing or repairing security equipment;
(g) monitoring signals or transmissions from security equipment;
(h) making a person or service of a person available, directly or indirectly,
for the rendering of any service referred to in (a) to (g); or
(i) managing, controlling or supervising the rendering of any of the services
referred to in paragraphs (a) to
(h); and "this Act" includes the regulations.
(2) Despite this Act or any other law, no act may be construed as assistance or
service if such act is-
(a) in accordance with the principles of international law, especially
international humanitarian law, including the purposes and principles of the
Charter of the United Nations and the Declaration on Principles of
International Law concerning Friendly Relations and Cooperation among States;
(b) performed by the security services, as contemplated in section 199 of the
Constitution,1996, either in fulfillment of international obligations or in
terms of any other law.
Prohibition of mercenary activity
2. (1) No person may within the Republic or elsewhere-
(a) participate as a combatant for private gain in an armed conflict;
(b) directly or indirectly recruit, use, train, support or finance a combatant
for private gain in an armed conflict;
(c) directly or indirectly participate in any manner in the initiation, causing
or furthering of-
(i) an armed conflict; or
(ii) a coup d'etat, uprising or rebellion against any government; or
(d) directly or indirectly perform any act aimed at overthrowing a government
or undermining the constitutional order, sovereignty or territorial integrity
of a state.
(2) Any person who contravenes subsection (1) is guilty of an offence.
Prohibition and regulation of certain assistance or rendering of services in
country of armed conflict or regulated country
3.(1) No person may within the Republic or elsewhere
(a) negotiate or offer to provide any assistance or render any service to a
party to an armed conflict or in a regulated country, unless such a person has
been granted authorisation in terms of section 7 to negotiate or offer such
assistance or service;
(b) provide any assistance or render any service to a party to an armed
conflict or in a regulated country, unless such assistance is provided or such
service is rendered in accordance with an agreement or arrangement authorised
in terms of section 7;
(c) recruit, use, train, support or finance any person to provide assistance or
render any service to a party to an armed conflict or in a regulated country,
unless such person has been authorised in terms of section 7 to recruit, use,
train, support or finance such a person;
(d) recruit, use, train, support or finance any person to provide assistance or
render a service to a party to an armed conflict or in a regulated country
unless such a person is recruited, used, trained, supported or financed in
accordance with an agreement or arrangement authorised in terms of section 7;
or
(e) perform any other act that has the result of furthering the military
interests of a party to an armed conflict or in a regulated country, unless
such a person has been authorised in terms of section 7.
(2) Any person who contravenes subsection (1) is guilty of an offence.
Prohibition and regulation of enlistment of South Africans in armed forces
4.(1) No South African citizen or permanent resident may enlist with any
armed force, other than the Defence Force, including an armed force of any
foreign state, unless he or she has been authorised in terms of section 7.
(2) Subject to section 7(8) and (9), an authorisation granted in terms of
section 7 may be revoked if the person to whom the authorisation has been
granted takes part in an armed conflict as a member of an armed force other
than the Defence Force and such authorisation contravenes anyone of the
criteria listed in section 9.
Prohibition and regulation of humanitarian assistance in country of armed
conflict
5.(1)No South African humanitarian organisation may provide humanitarian
assistance in a country where there is an armed conflict or a regulated
country, unless such organisation has been registered with the Committee for
that purpose.
(2) An organisation referred to in subsection (1) must submit to the Committee
an application for registration in the prescribed form and manner.
Proclamation of regulated country
6. (1) .The Committee must
inform the National Executive, whenever it is of the opinion that-
(a) an armed conflict exists or is imminent in any country; and
(b) such a country should be proclaimed to be a regulated country.
(2) After the Committee has informed the National Executive in the manner
contemplated in subsection (1), the President, as Head of the National
Executive, may, by proclamation in the Gazette, proclaim a country as a
regulated country.
(3) The President must notify Parliament of any proclamation issued in terms of
subsection (2).
(4) This Act applies in a regulated country.
Application for authorisation
7. (1) Any person who applies for an authorisation referred to in section
3(1 ) (a) to (e), 4(1) or 5 must submit to the Committee an application for authorisation
in the prescribed form and manner.
(2) The Committee must consider any application for authorisation submitted in
terms of subsection (1), and, subject to section 9,
may-
(a) refuse the application;
(b) grant the application subject to such conditions as it may determine; or
(c) at any time withdraw or amend an authorisation so granted.
(3) . No authorisation granted in terms of this section is transferable.
(4) The prescribed fees in respect of an application for authorisation must be
paid before the Committee makes its decision known.
(5) If an application is filed with the Committee for authorisation referred to
in section 5, the chairperson may, after consultation with one other member,
grant an interim authorisation.
(6) An application in terms of subsection (5) must be ratified by the
Committee-
(a) within 30 days after receipt thereof; or
(b) if the period referred to in paragraph (a) has lapsed, at the first meeting
of the Committee following upon the expiry of that period.
(7) Any interim authorisation granted in terms of subsection (5) remains valid
until the Committee has made a final decision in the manner contemplated in
subsection (6).
(8) Any person who feels aggrieved by a decision taken in terms of this
section, may apply for written reasons in the manner contemplated in section 5
of the promotion of Administrative Justice Act, 2000 ( Act No.3 of 2000).
(9) Nothing in this Act must be construed as preventing a person from
instituting proceedings in a competent court for judicial review.
Register of declarations, authorisations and exemptions
The Committee must maintain a register of any-
(a) authorisation issued by the Committee, in terms of section 7(2);
(b) proclamation made by the President, in terms of section 6;
(e) exemption granted by the President, in terms of section 13;
(d) South African humanitarian organisations registered by the Committee, in
terms of section 5; and
(e) South African citizens or permanent residents enlisted with an armed force
whose enlistment is authorised by the Committee in terms of section 4.
(2) The Committee must submit quarterly reports to the National Executive and
Parliament with regard to the register.
Criteria for authorisation or exemption
9. An authorisation in terms of section 7(2), and exemption in terms of section
13, may be given, unless it-
(a) is in conflict with the Republic's obligations in terms of international
law;
(b) would result in the infringement of human rights and fundamental freedoms
in the territory where the assistance or service is to be rendered or the
exemption granted;
(c) endangers the peace by introducing destabilising military capabilities into
the region or territory where the assistance or service, or humanitarian aid,
is or is likely to be, provided or rendered;
(d) would contribute to regional instability or negatively influence the
balance of power in such region or territory;
(e) in any manner supports or encourages any terrorist activity or terrorist
and related activities, as defined in section 1 of the Protection of
Constitutional Democracy against Terrorist and Related Activities Act, 2004
(Act No. 33 of 2004);
(f) contributes to the escalation of regional conflicts;
(g) in any manner initiates, causes or furthers an armed conflict, or a coup
d'etat, uprising or rebellion against a government; or
(h) prejudices the Republic's national or international interests.
Offences and penalties
10. (1) A person who contravenes or fails to comply with section
4(1) or section 5, or contravenes or fails to comply with a condition
determined in respect of an application in terms of section 7(2)(b) or section
13 is guilty of an offence and liable upon conviction to a fine or to
imprisonment, or to both a fine and imprisonment.
(2) A person referred to in section 15(2) who fails to apply for the
authorisation within the period referred to in that subsection, and remains so
enlisted, is guilty of an offence and liable, upon conviction, to a fine or to
imprisonment or to both a fine and imprisonment.
(3) The court may, when convicting any person of an offence under this Act
declare any armament, weapon, vehicle, uniform, equipment or other property or
object in respect of which the offence was committed or which was used for, in
or in connection with the commission of the offence, to be forfeited to the
State in the manner contemplated in section 35 of the Criminal Procedure Act,
1977 (Act No. 51 of 1977).
Extra-territorial jurisdiction
11. (1) Any act constituting an offence under this Act and that is committed
outside the Republic by-
(a) a citizen of the Republic;
(b) a person ordinarily resident in the Republic;
(c) a company incorporated or registered as such under any law, in the
Republic; or
(d) any body of persons, corporate or unincorporated, in the Republic, must be
regarded as having been committed in the Republic and the person who committed
it may be tried in a court in the Republic which has jurisdiction in respect of
that offence.
(2) (a) Any act that constitutes an offence under section 2 of this Act and
that is committed outside the Republic by a person, other than a person
contemplated in subsection (1); against the Republic, its citizens or residents
must be regarded as having been committed in the Republic if that person is
found in the Republic.
(b) A person contemplated in paragraph (a) may be tried for such an offence by
a South African court if there is no application for the extradition of the
person or if such an application has been refused.
(3) Any offence contemplated in subsection (1) or (2), is, for the purpose of
determining the jurisdiction of a court to try the offence, regarding as having
been committed at-
(a) the place where the accused is ordinarily resident;
(b) the accused's principal place of business; or
(c) the place where the accused was arrested.
(4) Where a person is charged with conspiracy or incitement to commit an
offence or as an accessory after the fact, the offence is regarded as having
been committed not only at the place where the act was committed, but also at
every place where the conspirator, inciter or accessory acted or in the case of
an omission, should have acted.
Regulations
12. (1) The President as Head of the National Executive, may make
regulations relating to-
(a) any matter which is required or permitted in terms of this Act to be
prescribed;
(b) the consideration of an application for an authorisation in terms of
section
7(2);
(c) the maintenance of the register; and
(d) generally any other ancillary or incidental administrative or procedural
matter which it may be expedient or necessary to prescribe for the proper
implementation or administration of this Act.
(2) A regulation may prescribe a penalty of a fine or of imprisonment for a
period not exceeding five years, or both a fine and such imprisonment, for any
contravention thereof or any failure to comply therewith.
Exemptions
13. The President as Head of the National Executive' may, subject to section 9,
upon request in the prescribed form and manner, exempt any humanitarian aid
organisation from the provisions of section 5 of this Act, if such exemption
would facilitate the rendering of humanitarian aid, without delay, in order to
relieve the plight of civilians in an armed conflict, and subject to such
conditions as he or she may determine.
Amendment and repeal of laws
14. (1) The Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), is hereby
amended to the extent set out in the Schedule.
(2) The Regulation of Foreign Military Assistance Act, 1998 (Act No. 15 of
1998), is hereby repealed.
Transitional provisions
15. (1) Any authorisation or approval granted in terms of the Regulation
of Foreign Military Assistance Act, 1998 (Act No. 15 of 1998), remains in force
and effect until withdrawn or amended or until expiry of the term for which it
was granted.
(2) A citizen of the Republic or a person ordinarily resident in the Republic
who, at the time of the commencement of this Act, had already been enlisted in
an armed force, must within six months of the date of commencement of this Act,
apply for authorisation in the manner required by section 7.
(3) (a) Any person who, at the time of the commencement of this Act, is
involved in the activities contemplated in section 3(1)(a) to (e), that did not
constitute an offence under the Regulation of Foreign Military Assistance
Act,1998 (Act No. 15 of 1998), must within six months of the date of
commencement of this Act, apply for authorisation in the manner required by
section 7.
(b) If an application for authorisation contemplated in paragraph (a) is lodged
within the period provided for in that paragraph, the person who conducts the
activity contemplated in section 3 (1)(a) to (e) may continue with the activity
until the application is decided.
(4) All formal hearings and court proceedings instituted, prior to the
commencement of this Act, in terms of the Regulation of Foreign Military
Assistance Act, 1998, and that have not been concluded before the commencement
of this Act, must be continued with and concluded as if this Act had not been
passed.
Short title and commencement
16. This Act is called the Prohibition of Mercenary Activities and Regulation
of Certain Activities in Country of Armed Conflict Act, 2006, and comes into
operation on a date determined by the President by Proclamation in the Gazette.
SCHEDULE
AMENDMENT OF SCHEDULE 2 TO CRIMINAL LAW AMENDMENT ACT, 1997, (ACT NO.1 05 OF
1997) (Section 14)
|
No. and Year of Act |
Short Title |
Extent of Amendment |
|
No. 105 of 1997 |
Criminal Law Amendment Act |
1. The addition to Part 1 of Schedule 2 of the following item: "Any offence referred to in section 2 of the Prohibition of
Mercenary Activities and Regulation of Certain Activities in Country of Armed
Conflict Act, 2006;" |
MEMORANDUM ON THE OBJECT OF THE PROHIBITION OF MERCENARY ACTIVITIES AND
REGULATION OF CERTAIN ACTIVITIES IN COUNTRY OF ARMED CONFLICT BILL, 2006
1. BACKGROUND
Although the Regulation of Foreign Military Assistance Act, 1998 (Act No. 15 of
1998), had been in operation for a considerable time, very few prosecutions
have been instituted in terms of that Act. In most cases a conviction followed,
only after a plea bargain has been entered into between the prosecution and the
accused.
The recent arrest of a number of South African citizens, allegedly involved in
a planned coup d'etat aimed at the Government of the Equatorial Guinea,
demonstrates that mercenary activities are undertaken from within the borders
of the Republic. There is a continuation in the recruitment of South Africans
by so-called private military companies from outside the Republic, to provide
military and security services in areas of armed conflict (such as Iraq).
It is evident from the small number of prosecutions and convictions under the
Regulation of Foreign Military Assistance Act, 1998, that the Act inadequately,
combats mercenary activities and fails to provide for the regulation of certain
forms of assistance in armed conflicts effectively.
It is proposed that the Regulation of Foreign Military Assistance Act, 1998 be
repealed and replaced with the Prohibition of Mercenary Activities and
Regulation of Certain Activities in Country of Armed Conflict Bill, 2006
(hereinafter referred to as "the Bill").
2. OBJECTS OF BILL
The Bill proposes to:
(a) Prohibit mercenary activity in order to give effect to the values contained
in the Constitution, 1996 and in the international obligations entered into.
(b) Exclude any act if such act is-
·
performed in accordance with the principles of international law,
especially international humanitarian law; and
·
performed by the security services contemplated in terms of section 199
of the Constitution, 1996.
(c) Regulate the enlistment of South Africans citizens and permanent
residents in other armed force and to regulate the provision of military and
military-related services. Authorisation to enlist in other armed forces other
than the Defence Force may be revoked in certain circumstances.
(d) Empower the President, as head of the National Executive, to proclaim a
country as a regulated country.
(e) Provide for extraterritorial jurisdiction in respect of persons who are
citizens or permanent residents of the Republic or where a person has committed
an offence in terms of the Act outside the borders of the Republic.
(f) Authorise the provision of humanitarian aid under certain circumstances to
relieve the plight of civilians in an area where there is an armed conflict.
(g) Provide for penalties which are aligned with the seriousness of the
offence.
3. OTHER DEPARTMENTS/BODIES/PERSONS CONSULTED
All Departments represented at the International Relations, Peace and
Security Cluster were consulted. These include Departments with a direct
interest in the Bill, such as Safety and Security, Intelligence, Justice and
Constitutional Development and Foreign Affairs.
4. FINANCIAL IMPLICATIONS FOR STATE
None.
5. PARLIAMENTARY PROCEDURE
5.1 The State law Advisers and the Department of Defence are of the opinion
that this Bill must be dealt with in accordance with the procedure established
by section 75 of the Constitution since it contains no provision to which the
procedure set out in section 74 or 76 of the Constitution applies.
5.2 The State law Advisers are of the opinion that it is not necessary to refer
this Bill to the National House of Traditional leaders in terms of section
18(1)(a) of the Traditional leadership and Governance Framework Act, 2003 (Act
No. 41 of 2003), since it does not contain provisions pertaining to customary
law or customs of traditional communities.