SUBMISSION TO PARLIAMENTARY DELIBERATIONS – PROHIBITION OF MERCENARY ACTIVITIES AND PROHIBITION AND REGULATION OF CERTAIN ACTIVITIES IN AREAS OF ARMED CONFLICT BILL [B42-2005}[1]

 

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:

 

  1. 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.
  2. Changes in Definitions: Clarity is sought on the last wording in respect of security services …
  3. 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.
  4. 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.
  5. Regulation of assistance or service: Clarity is sought in respect of final definition of security services and its relation to Section 3
  6. 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..
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. Regulations: Broad scope of the regulation provision may raise Constitutional concerns.
  13. Transitional Provisions: The proposed 6 month period across the board is supported. Residual concerns remain with respect to transitional provisions and enlistment.
  14. Constitutional aspects: Concerns remains about administrative discretion, limitation of rights, retrospectivity and extra-territorial application of the Bill.


[1] Raenette Taljaard Director

Helen Suzman Foundation

Tel: 011-880-3350/3352

Fax: 011-880-1850

E-Mail: raenette@hsf.org.za

 

Mobile: 082 450 6810

 

Senior Lecturer

Graduate School of Public and Development Management

WITS University

Tel: 011-717-3517

Fax: 011-484-1755

E-Mail: taljaard.r@pdm.wits.ac.za