Prohibition of Mercenary Activities & Regulation of Certain Activities in an Area of Armed Conflict Bill [B42-2005]: deliberatio

DEFENCE PORTFOLIO COMMITTEE
2 August 2006
PROHIBITION OF MERCENARY ACTIVITIES AND REGULATION OF CERTAIN ACTIVITIES IN AN AREA OF ARMED CONFLICT BILL [B42-2005]: DELIBERATIONS

Chairperson: Ms T Tobias (ANC)

Documents handed out:

Prohibition of Mercenary Activities and Prohibition and Regulation of Certain Activities in Areas of Armed Conflict Bill [B42-2005]
Democratic Alliance proposed amendments

SUMMARY
The Committee continued its deliberations on the Bill and dealt with recommendations made by its sub-committees, the amendment proposals of the Democratic Alliance as well as input from the British High Commissioner to South Africa. The proposals were mainly technical and grammatical whilst those from the British High Commissioner were procedural and seen by some Members to be of an administrative nature. Notwithstanding, the Chairperson undertook to consider the views of the British Government and consult further on the issue of South African nationals currently serving in the British armed forces.

MINUTES

Sub-committee report

Mr O Monareng (ANC) stated that there had been a number of issues from the previous day that had been flagged. His sub-Committee had been mandated to propose amendments for the definitions. The sub-Committee proposed to remove the second 'prohibition' definition, because of the need for consistency.

Among other proposed amendments were that the word “persons” should be removed, changing the word 'coup' to "coup d' etat" and deleting point 3 as it is was explained in the definition of “person”. “Area of conflict” should be changed to “country or regulated country”. 

Dr N Koornhof (ANC) stated that the main question arising from Clause 6 was that the National Conventional Arms Control Committee (NCACC) would inform Cabinet.

Discussion of DA amendment proposals

Mr R Jankielsohn (DA) mentioned that he had received the draft amendments in the middle of the briefing; had read it overnight and received legal advice. He wanted to table his proposals to the Committee.

The Chairperson felt the Committee should give him a chance to make his proposals even though he had not been part of the earlier processes.

Mr Jankielsohn stated that in Clause 1(1), there should be definition of “assistance or service”. The Committee should not change 'area' to country. This was a blanket approach. 

Dr Koornhof stated that the wording already existed in sub-paragraph (b).

Ms C Boyes, State Law Advisor, stated that this was a policy issue and not a legal issue. The Department of Defence (DOD) should expand on it.

Mr Njikelela, Deputy Director: Legal Support (DOD), stated that it was better to target a country than an area. This would make monitoring easier. An example is that if they legislate on Darfur it would be easier for somebody to go to Khartoum to render mercenary services and not be liable for prosecution as they would not be contravening any law.

Mr Monareng stated that they should include as a compromise the wording 'to a party'.

Mr Jankielsohn proposed a change to Clause 4(1) by replacing the word 'authorise' with 'registered with the NCACC'.

Mr M Booi (ANC) stated that the word 'authorised' should be retained and used throughout the Bill.

The Chairperson stated that it needed to be clear that when SA citizens engaged in activities outside the country they should not embarrass SA and hamper diplomatic ties.

Mr R Ntuli (ANC) stated that he concurred with Mr Booi and the Chairperson. SA had invested resources in the training of its soldiers and should retain control over their overseas activities.

Dr Koornhof stated that the Department had presented the Committee with choices that included application, prohibition and leaving out foreign enlistment entirely. The Committee had opted for the application route. The Committee should look at the proposal by Assistant Commissioner Jacobs of the South African Police Services (SAPS). Clause 4(2) should also be deleted and a new proposal should be made.

Mr Booi stated that even in the current Hezbollah vs Israel conflict, South Africans were being recruited and there was a need for authorisation.

Mr Jankielsohn stated that Clause 6 (1) was a legal matter and in other legislation they had used the term 'national executive' and not 'cabinet'. In Clause 9 the word 'must' should be used instead of 'may'.

The Chairperson stated that the word 'must' could not be used because then every application had to be granted. The Committee had to be careful of the words they used.

Mr Jankielsohn stated that Clause 10 (3) read 'citizen' or 'resident'. It should read 'citizens' or 'residents'. Also the South African Humanitarian Organisation should be defined.

Ms Boyes stated that this was not necessary because definitions are provided only when the word or term is used outside of their usual meaning. In this case it should be understood in the context of the Bill.

The Chairperson stated that she would give the British High Commissioner to SA, Mr Paul Boateng, a chance to comment or make suggestions.

Submission by the British High Commissioner

Mr Paul Boateng stated that he appreciated the manner and spirit in which the proceedings had been conducted. He valued the defence relationship between South Africa and Britain. In the matter of transitional arrangements, he wanted to appeal to the Committee that the 700 South African nationals serving in the British army be exempted from the application procedures. These nationals were serving in the British armed forces all over the world and he feared that those who were serving with good intentions would be criminalised. This could be detrimental to the relationship between the two countries. They should be exempted or given enough time to sort out their status.

Discussion

Mr Ntuli asked if Mr Boateng proposed that the application window of six months be extended.

Mr Monareng stated that the problem was logistical as far as he was concerned.

Mr Jankielsohn said that it was important to take note of what had been said. The concern was that what people had done legally might not be legal anymore after the Bill is passed.

Mr Monareng stated that the Committee should “sleep” on the matter raised by the British High Commissioner.

Mr Booi stated that the Committee’s purview was to legislate. The High Commissioner could engage with bureaucratic details after the law had been passed.

The Chairperson stated that she would need to consult on the matter.

The meeting adjourned.