NATIONAL ASSEMBLY AND NATIONAL COUNCIL OF PROVINCES
EXPLANATORY MEMORANDUM: RATIFICATION OF THE UNITED NATIONS
CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME ( THE
CONVENTION) AND PROTOCOLS THERETO
The purpose of this memorandum is to -
1.1 set out the history, purposes and consequences of the Convention and Protocols thereto, namely, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention (Protocol 1), the Protocol against the Smuggling of Migrants by Land Sea an Air, supplementing the UN Convention (Protocol 2) and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, supplementing the UN Convention (Protocol 3); and
1.2 highlight some of the most important provisions thereof, with a view to obtaining
Parliament's approval for the Republic of South Africa to ratify the Convention and the three supplementary Protocols as contemplated in section 231(2) of the Constitution of the Republic of South Africa Act, 1996 (Act No 108 of 1996 (the Constitution)
2. OBJECTS OF THE CONVENTION AND PROTOCOLS
2.1 The purpose of the Convention is to promote co-operation to prevent and combat transnational crime more effectively.
2.2 Protocol 1 supplements the Convention and its purposes are to, inter aha, p event and combat trafficking in persons, especially women and children.
2.3 Protocol 2 supplements the Convention and its purposes are to, inter alia, prevent and combat the smuggling of migrants and promote co-operation among States Parties to that end.
2.4 Protocol 3 also supplements the Convention and its purposes are, inter aIia, to promote, facilitate and strengthen cooperation among State Parties to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms.
3.1 The Department of Justice and Constitutional Development (the Department) as represented at all the meetings regarding the drafting of the Convention and Protocols by Mr Peter Gastrow of the Institute for Security Studies, while Mr Pieter Smit of the South African Law Commission (SALC) represented the Department when money laundering issues were discussed.
3.2 South Africa signed the Convention and Protocols 1 and 2 on 14 December 2000.Protocol 3 (on firearms) was signed on 14 October 2002. The Convention and Protocols have to now be ratified.
3.3 The Convention must be signed and ratified by 40 countries before it comes into force. The Convention and Protocols oblige countries, which sign and ratify them to
take measures against transnational organized crime.
4. OVERVIEW OF IMPORTANT PROVISIONS
4.1 The Convention
4.1.1 The foremost purpose of the Convention is international co-operation. Article 1 of the Convention states that the purpose of the Convention is to promote co-operation to prevent and combat transnational organized crime more effectively".
4.1.2 The Convention establishes four specific crimes:
Article 5, participation in organized criminal groups;
Article 6, money laundering:
Article 8, corruption; and
Article 23, obstruction of justice
4.1.3 States, which ratify the instruments are required to enact legislation making these activities domestic offences if they are not already offences.
4.1.4 Co-operation under the Convention includes extradition and mutual le al assistance (articles 16 and 18 respectively). Article 16 states that his Convention may be considered the legal basis for extradition in respect of any offence this article applies to, where a State Party makes extradition conditional on the existence of a treaty and the other State Party has no extradition treaty with it.
4.1.5 Article 18 states that State Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to offences which are transnational in nature and involves an organized criminal group. States Parties may decline to render assistance pursuant to this article on the ground of absence of dual criminality. However, the requested State Party may provide assistance at its discretion. Article 18, paragraph 13 states that a State Party shall designate a central authority that shall have the power to receive requests for mutual legal assistance and shall either execute them or transmit them to competent authorities for execution. The Director-General of the Department of Justice and Constitutional Development shall be the designated central authority in terms of Article 18, paragraph 1 3.
4.1.6 The Convention and Protocols make provision for technical assistance projects where developed countries would assist with technical expertise, resources, or both. Article 30, paragraph 2(b) requires States Parties to "enhance financial and material assistance to support the effort of developing countries to fight transnational crime effectively and to help them implement the Convention successfully."
4.2.1. This Protocol (like Protocols 2 and 3) supplements the Convention and is to be interpreted together with the Convention.
4.2.2 Articles I and 2 set out the purposes of the Protocol. The purposes of this Protocol is to prevent and combat trafficking in persons, especially women and children, protect and assist the victims of such trafficking, and promote co-operation among States Parties to meet these objectives.
4.2.3 This Protocol requires States, which ratify it, to take steps to protect assist trafficked persons. Article 6 of this Protocol deals with assistance and protection of victims of trafficking in persons. Each State Party shall terms of Article 5, adopt legislative and other measures (necessary) establish as criminal offences those defined as such under the Protocol, trafficking in persons.
4.2.4 Article 7 states that a State Party should consider adopting measures that in appropriate cases, permit victims of trafficking in persons to remain in territory temporarily or permanently.
4.2.5 Article 10 deals with information exchange and training. In terms of article law enforcement, immigration or other relevant authorities of State Parties must co-operate with one another by exchanging information accordance with their domestic law. States Parties must provide for or strengthen training of these officials.
4.3 Protocol 2
4.3.1 Article 2 states that the purpose of this Protocol is to prevent and con the smuggling of migrants, promote co-operation among States Parties. that end and protect the rights of the smuggled migrants.
4.3.2 Article 5 states that migrants shall not become liable to criminal prosecution under this Protocol.
4.3.3 Article 6 states that a State Party shall adopt legislative and other means to establish as criminal offences inter alia, the smuggling of migrants procuring, providing or possessing a fraudulent travel or identity document
4.3.4 Part 11 deals with the smuggling of migrants by sea.
220.127.116.11 Article 7 states that a State Party must co-operate fully to prevent suppress the smuggling of migrants by sea.
18.104.22.168 Article 8 deals with the measures against the smuggling of migrants sea. It states that a flag State may authorize a requesting State to, Inter alia, board and search a vessel. Paragraph 6 of this article states that a State Party shall designate an authority to receive and respond requests for assistance, for confirmation of registry or of the right C vessel to fly its flag and for authorization to take appropriate measures The designated authority in terms of this article will be the South African Maritime Safety Authority (SAMSA). The Departments of Home Affairs Transport, SAPS and SANDF will complement SAMSA.
22.214.171.124. Article 9 states that a State Party taking measures against a vessel accordance with article 8 of the Protocol shall, inter alia, ensure safety and humane treatment of the persons on board and not endanger the security of the vessel or its cargo. Furthermore, the vessel shall be compensated for loss or damage where grounds for measures taken prove to be unfounded.
4.4.1 Article 5 states that each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the following conduct, inter alia, when committed intentionally:
Illicit manufacturing of and trafficking in firearms, their parts arid components and ammunition
Falsifying or illicitly obliterating, removing or altering the marking(s,' firearms
4.5 A dispute between two or more States Parties concerning the interpretation application of the Convention (article 35), Protocol 1 (article 15). Protocol 2 (article 20) or Protocol 3 (article 16) should be settled through negotiation or arbitration or referred to the International Court of Justice. A State Party may declare that it does not consider itself bound by the above provisions.
4.6 A State Party may denounce the Convention (Article 40), Protocol 1 (article 9), Protocol 2 (article 24) and/or Protocol 3 (article 20) by written notification to the Secretary-General of the UN. It shall become effective a year after the date of receipt of the notification by the Secretary-General.
4.7 Article 36 of the Convention, article 16 of Protocol 1, article 21 of Protocol 2 and articlel7 of Protocol 3 deal with signature, ratification, acceptance and approval.
4.8 Article 39 of the Convention, article 18 of Protocol 1, article 23 of Protocol 2 and article 19 of Protocol 3 deal with amendments to these instruments.
4.9 In respect of its domestic legislation, South Africa has the Prevention of Organised Crime Act, 1998 (Act 121 of 1998) which makes provision for, inter alia, combating organized crime, money laundering and criminal gang activities. However countries should promulgate legislation, which will be extra-territorial in application so as to be effective. South Africa also has the Aliens Control Act, 1991 (Act 19? of 1991) and the Refugees Act, 1998 (Act 130 of 1998) which are of importance in relation to cross-border, regional and international, trafficking in persons, especially women and children, for the purpose of preventing sexual exploitation
4.10 The Department of Home Affairs has indicated that the Immigration Ad 2002, (Act No. 13 of 2002) contains proposed amendments aimed at making it an offence to use South Africa as a transit point to smuggle persons to other countries. lt is further indicated that such a provision is in line with the requirements of the Convention and the two Protocols. Apart from the above measures there are also pieces of legislation aimed at dealing with some of the matters provided for in Protocol 1 such as the Child Care Act, 1983 (Act 74 of 1983), the Sexual Offences Act. 1957 (Act 23 of 1957) and the Domestic Violence Act, 1998 (ACT 116 of 19~8). However. more has to be done to bring our legislation in line with the Convention and Protocols 1 and 2. The SAPS reports that there is an increasing number or especially women brought to South Africa from Asia and the erstwhile Eastern Europe and are sexually exploited.
4.11 South African legislation is compliant with Protocol 3, and South Africa should able to fully implement and give effect to the Protocol through present legislation namely:
Arms and Ammunition Act, 1969 (Act 75 of 1969
· Firearms Control Act, 2000 (Act 60 of 2000)
· Explosives Act, 1956 (Act 26 of 1956)
· Armaments Development and Production Act, 1968 (Act 57 of 1968)
The only aspect in the Protocol which has not been addressed is Article 1 5, dealing with brokers and brokering. This is now covered by the National Conventional Arms Control Committee Bill, which is expected to be signed into law soon. This Bill will also regulate some of the key issues relating to import/export of firearms referred to in the Protocol. The obligations in the Protocol overlaps to a large degree with the Southern African Development Community (SADC) Protocol on the Control of Firearms, the ratification of which has been approved by both Houses of Parliament.
4.12 The Interdepartmental Committee, which was established by the Minister, has already had meetings. The Directors-General Security Cluster approved the Terms of Reference and Action Plan which were drafted. One of the tasks of the Committee is to streamline the above legislation, including the Prevention of Organised Crime Act, 1998 in keeping with the Convention and the Protocols. Four drafting teams were set up to look at implementation legislation: one team for each of the instruments.
5. COMMENTS BY THE STATE LAW
5.1 The Chief State Law Adviser has advised that the Convention and Protocols 1,2 and 3 have been scrutinized with a view to possible conflict with the domestic law of the Republic of South Africa and is of the opinion that there appears to be no such conflict.
5.2 The International State Law Advisor has advised that the Convention and Protocols 1,2 and 3 have bean scrutinized and are of the opinion that the said instruments are in compliance with international law.
It is recommended that Parliament approve the ratification of the Convention and Supplementary Protocols 1, 2 and 3 in terms of section 231(2) of the Constitution of the Republic of South Africa Act, 1996 (Act 108 of 1996).