INSTITUTE FOR SECURITY STUDIES
PRESENTATION TO THE PARLIAMENTARY
PORTFOLIO COMMITTEE ON SAFETY AND SECURITY ON THE FIREARMS CONTROL AMENDMENT
BILL
Cape Town, 11 August
2006
Compiled by Guy Lamb, Ben Coetzee and Noel Stott, Arms
Management Programme
The Institute for Security Studies (ISS) would like to
commend the Minister of Safety and Security and the South African Police
Services (SAPS) in their efforts to strengthen firearms control in South Africa
by means of the drafting of the Firearms Control Amendment Bill (2006) as
introduced in the National Assembly as a Section 75 Bill, and published in
Government Gazette No. 28843 of 19 May 2006. In addition, the ISS would like to
thank the Parliamentary Portfolio Committee on Safety and Security for
continuing what has become a tradition of public consultation on firearm
control issues in post-apartheid South Africa.
The availability and abuse of firearms continues to
contribute to the high levels of violent crime in South Africa. We are of the
opinion that many of the suggested amendments to the Firearms Control Act, 2000
(Act No. 60 of 2000) will contribute to the enhancement of firearms control in
South Africa and will hopefully, therefore, significantly reduce the high
levels of violent crime. At the same
time, the ISS is concerned about the possible negative implications and impact
of some of the provisions of this Bill.
Recently gun violence has received particular public
attention given that more than 50 police personnel have killed as a result of
firearms this year. This is not a new development. Over the past decade over a
thousand police personnel have died or have been injured due to bullets. In
fact, in South Africa it is more likely for police personnel to be shot than
soldiers from the South African National Defence Force.
Nevertheless, despite this high level of gun violence, South
Africa’s National Injury Mortality Surveillance System, which is administered
by the University of South Africa has recently reported that deaths as a result
of firearms have nearly halved in three of South Africa’s major cities (Cape
Town, Durban and Johannesburg) since 2001, while non-firearm fatalities have
remained relatively constant. This reduction in gun deaths can be largely
attributed to the implementation of the Firearm Control Act, which came into
effect five years ago, and police operations aimed at confiscating illegal
firearms.
The ISS has limited its comments on the Bill to those
sections that relate to: the renewal of competency certificates; brokering services;
linkages between firearms legislation and the National Conventional Arms
Control Act (2002); the use of a licensed firearm by a non-license holder
(Section 22); inquiry procedures; and search and seizure.
Renewal of Competency
Certificates
It is the view of the ISS that the provision for the renewal
of competency certificates on a five year basis represents a strengthening of
firearms control in South Africa. However, for the sake of enhancing firearms
control and competency, it would be preferable if firearms license holders are
required to undergo mandatory re-training in terms of firearms-handing
(including eye-sight testing) and knowledge of the firearms legislation as part
of the renewal of a competency certificate process. Regular mandatory re-training
will promote more effective competency of firearm licence holders as it will
educate them in amendments to relevant legislation, ensure that they are still
fit to carry and use a firearm, as well as make them aware of changes in
firearms safety technology.
It will also ensure that that those firearms license holders
that are no longer competent to use a firearm legally have their licenses
revoked.
Brokering
Arms brokers play a major role in supplying weapons to
African conflict-zones, and in the recent past, South African citizens and
foreign nations doing business in South Africa have been implicated in arms
trafficking to conflict zones. A number
of UN reports into violations of UN arms embargoes in Africa have highlighted
the role of arms brokers who operate from South Africa. Establishing better
regulations is in line with the 2001 United Nations Programme of Action (UNPoA)
on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects.
Section II, Paragraph 14 of the UNPoA commits states:
To develop adequate national
legislation or administrative procedures regulating the activities of those who
engage in small arms and light weapons brokering. This legislation or
procedures should include measures such as registration of brokers, licensing
or authorization of brokering transactions as well as the appropriate penalties
for all illicit brokering activities performed within the State's jurisdiction
and control.
The Southern African Development
Community (SADC) Protocol on the Control of Firearms, Ammunition and Other
Related Materials
also commits SADC Member States to standards relating to the coordination of
procedures for the import, export and transit of firearms shipments; the
regulation of firearms brokering; and a review of national firearms
legislation. Thus, it commits Member States to incorporate into their national
laws as a matter of priority, “provisions that regulate firearm brokering in
the territories of State Parties” [Article 5 (3m)].
Definitions of who is an arms broker and what constitutes
brokering activities vary. Some definitions define brokering broadly to
encompass associated activities, such as financing, technical, advertising,
insurance and transportation services, while others take a more narrow approach,
referring solely to the activity of mediating the conclusion of arms contracts.
The ISS is supportive of the definition of brokering in the
Bill, as long as it includes activities associated with facilitating firearm
(and other arms) deals between suppliers and recipients where the brokers (both
natural persons and legal entities) do not take ownership or possession of the
arms. However, the Bill should include extra-territorial controls, as it may
still be possible for a South African broker operating in from a foreign
country to arms firearms to other countries without requiring a license from
the South African government.
The ISS recommends that Bill make provision for the
following: that punitive action is taken against arms brokers (both individuals
and organisations) based in South Africa or of South African origin that fail
to register with the secretariat of National Conventional Arms Control
Committee.
Linkages with the
National Conventional Arms Control Act
From the perspective of the ISS, a lack of clear linkages
between the Firearms Control Act and the National Conventional Arms Control
Act, 2002 (Act No. 41 of 2002) was hindering the effective implementation of
firearms control in South Africa. Hence the ISS welcomes the amendments to Section
96 (as appears in the Firearms Control Amendment Bill).
Use of a licensed
firearm by a non-license holder (Section 22)
Section 22 of the Bill states:
“Despite anything to the contrary in
this Act but subject to section 120(5), any person who is at least 21 years of
age and the holder of a licence to possess a firearm or a competency
certificate in respect of a muzzle loading firearm issued in terms of this Act
may allow any other person to use that firearm or muzzle loading firearm while
under his or her immediate supervision where it is safe to use the firearm or
muzzle loading firearm and for a lawful purpose.”
The ISS has three concerns in relation to Section 22.
First, this section does not stipulate a minimum age of the
person to whom a licensed firearm holder may lend his/her firearm (while under
his/her supervision). In essence, in terms of this section, a four-year old
child will be legally entitled to use a firearm under the supervision of a
license holder.
If a person is only deemed mature and responsible enough to learn
to drive a motor vehicle from the age of 17, would it not be prudent to
insert a similar minimum age in terms of firearms use?
Second, this section is silent on the issue of
responsibility in the event of misuse of the firearm by the non-licence holder
and negligence on the part of the licence holder (other than making reference
to Section 120(5) of the Firearms Control Act). Who will be responsible if the
non-licence holder violates any of the provisions and/or regulations of the
Act? What are the implications if the licence holder is negligent in terms of
their supervision of the non-licence holder?
Third, in essence, it appears that this amendment will allow
a person who has been deemed unfit to use a firearm (with the exception of
mentally ill persons) to discharge a firearm in so far as it is under the
supervision of the licence holder. The ISS strongly recommends that section 22
be amended to stipulate that only a person above the age of 18, and who has not
been deemed unfit to use a firearm be covered by this section.
Unforeseen
consequences of changing definitions
By amending the definitions of ‘occasional hunter’ and
‘occasional sports person’, situations may arise where firearm licence
applicants may cite sport shooting or hunting as the reason for requiring a
firearm. In many cases there is no distinction between firearms used for
hunting and those used for self-defence. Changing the definition may cause
applicants to state that they require a firearm for hunting or sport shooting
rather than for self-defence. An incentive for this type of application is that
under the current act, hunting licenses are renewable on a ten-year basis,
while licenses for self-defence purposes are required to be renewed every five
years.
Powers to search and seizure
The amendment of Section 111 of the principal Act enhances
the powers of police officials considerably in terms of search and
seizure. However, this amendment may
lead to police officials inadvertently undermining firearms control. For
instance, if a sealed container from ARMSCOR is awaiting shipment at a harbour
or airport, any police official may break the official seals to inspect the
contents. This would contradict the policies and procedures required by the NCACC
and Customs and Excise. The Act makes no mention of how searched containers
should be resealed or handled if a search takes place, and this omission may
make the State vulnerable to civil proceedings, and contradicts existing
weapons transfer control procedures.
Inclusion of the definition of
‘dispossessed’
It is
important that a definition of
‘dispossessed’ is provided in the Act in order to exclude any possible
misinterpretation of the word.