PRESENTATION TO THE SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS ON THE PROHIBITION OF MERCENARY ACTIVITIES AND REGULATION OF CERTAIN ACTIVITIES IN AN AREA OF ARMED CONFLICT BILL, 2006

1
PRESENTATION TO THE SELECT COMMITTEE ON SECURITY
AND CONSTITUTIONAL AFFAIRS ON THE PROHIBITION OF
MERCENARY ACTIVITIES AND REGULATION OF CERTAIN
ACTIVITIES IN AN AREA OF ARMED CONFLICT BILL, 2006
2
SCOPE

• SCOPE
• BACKGROUND
• GAPS IDENTIFIED
• KEY AMENDMENTS
• CONCERNS ON THE BILL
• AMENDMENTS BY PCOD
• CONCLUSION

3
BACKGROUND

• In response to increased participation of SAs
  citizens in conflicts around the world, the
  Cabinet Lekgotla of May 2004 instructed the DOD
  to review the RFMA
• An Interdepartmental Task Team (ITT) consisting
  of the Departments of Defence, Justice, Foreign
  Affairs, Home Affairs, SAPS, National Prosecuting
  Authority, NIA, SASS and NICOC was set up to
  review the RFMA with the view to improving its
  effectiveness.

4
BACKGROUND (Contd)

• The ITT invited Departments to submit inputs on
  the problem areas and how the RFMA may be
  improved.
• Various inputs received from Departments served
  as basis for the work of the ITT.
• In this process the DOD consulted widely and
  presentations were made to NCACC, JCPS DG Cluster
  and policy considerations were submitted to
  Cabinet for direction on certain issues.

5
GAPS IDENTIFIED

• Foreign Military Assistance (FMA)
• Pre-condition for the applicability of RFMA
  provisions (existence of armed conflict)
• No mechanism to determine existence of armed
  conflict
• Parties to the armed conflict.
• Humanitarian Activities
• Excluded from the definition of FMA
• Exclusion exploited in order to circumvent the
  application of the RFMA

6
GAPS IDENTIFIED(Contd)

• Enlistment in Foreign Armed Forces
• RFMA is silent on enlistment
• Sec 198(b) of the Const. precludes SA citizens
  from participating in armed conflict unless it is
  ito the Constitution or national legislation.
• Penalties
• There were no prescribed penalties
• Option of a fine with regard to serious offences
• Given the lucrative industry, imposition of a
  fine did not serve as a deterrent.

7
GAPS IDENTIFIED(Contd)

• Difficulties with gathering of evidence
• Mercenarism is conducted in closed rings
• Reluctance to prosecute by the State
• Convictions followed only after plea bargains
• This limited development of jurisprudence on the
  RFMA
• Alignment of RFMA with NCACC Act
• RFMA vests decision-making powers in the Minister
  of Defence which he must exercise in consultation
  with the NCACC
• Minister of Defence is a member of the NCACC

8
KEY AMENDMENTS

• Clause 1 Definitions
• Foreign military assistance assistance or
  service
• Military or military related assistance, service
  or activity by means of-
• Training, personnel, financial, logistical,
  intelligence or operational support
• Procurement of equipment
• Medical or Para-medical services and
• Security services

9
KEY AMENDMENTS

• Amended to include reference to assistance,
  service or activity
• Exclusion of humanitarian activities deleted
• committee
• amended to refer to the establishment of the
  NCACC by Sec 2 of the NCAC Act as opposed to the
  decision of 18 August 1995

10
KEY AMENDMENTS

• regulated country
• President will now be empowered to declare
  regulated areas to which the Bill will be
  applicable (Clause 6)
• security services
• The RFMA does not define what security services
  involve
• Definition lifted from the PSIRA and provides
  for
• Protection of individuals and property
• Giving advice on protection of individuals,
  property and advice on equipment
• Training or instruction to security service and
• Installing, servicing and repairing of equipment.

11
KEY AMENDMENTS

• Sub-Clause 1(2)
• Exclusion The definition of assistance or
  service, however, excluded struggles for
• National liberation
• Self-determination
• Independence and
• Resistance against occupation, aggression or
  domination by foreign forces.
• NB The exclusion of the liberation struggles,
  self-determination, independence etc has been
  deleted by the PCOD from the Bill.

12
KEY AMENDMENTS (Contd)

• Clause 2
• Prohibition of Mercenary Activity
• Mercenary activity is prohibited.
• Direct and indirect recruitment, training and
  financing of mercenarism is prohibited
• This also includes an action aimed at
  overthrowing or undermining the constitutional
  order or sovereignty of a state.
• This clause broadens the scope of mercenarism
  to include indirect assistance or support
• Contravention of this clause is an offence.

13
KEY AMENDMENTS (Contd)

• Clause 3
• Rendering of assistance or service
• Prohibits the negotiation or offering of
  assistance or service without an authorisation
• prohibits recruitment, training, or financing of
  persons to render assistance or service unless
  authorised or in accordance with an agreement
  that has been authorised
• Also prohibits any other act that has the effect
  of furthering military interests of a party to
  the armed conflict.
• Contravention of this clause is an offence

14
KEY AMENDMENTS (Contd)

• Clause 4
• Enlistment in Foreign Armed Forces
• The current Act is silent on enlistment
• The Bill prohibits enlistment with a foreign
  armed force unless it is authorised ito clause 7
  of the Bill
• Such an authorisation shall be subject to a
  condition that it lapses once such a person
  participates in armed conflict or the Committee
  may revoke it in certain instances

15
KEY AMENDMENTS (Contd)

• Clause 5
• Rendering of Humanitarian Assistance
• Humanitarian assistance is no longer excluded
  from the provisions of the Act
• SA humanitarian organisation will now be required
  to be register with NCACC (Amendment by PCOD)
• Humanitarian assistance is not regulated under
  RFMA.

16
KEY AMENDMENTS

• Clause 6
• Proclamation of Regulated Country or Area
• This clause empowers the President to proclaim in
  the gazette, regulated countries or areas to
  which the Act shall apply
• The President may proclaim a country or area
  where there is a conflict or where conflict is
  imminent
• This will be done on the recommendations of the
  NCACC
• Each proclamation is required to be tabled in
  Parliament
• This is a new provision and is specifically
  intended to deal with borderline cases (grey
  areas) and to prevent SA citizens from
  destabilising other areas even if there is no
  conflict per se.

17
KEY AMENDMENTS (Contd)

• Clause 7
• Application for Authorisations
• Empowers the NCACC to consider applications for
  authorisations (see sec 3,4 and 5)
• Ito this clause the NCACC may refuse, grant
  (subject to conditions) or withdraw an
  authorisation
• This power is currently vested in the MOD and is
  required to be exercised on the recommendations
  of the NCACC. Since the MOD is part of the
  NCACC, it was felt that it should vest in the
  NCACC instead.
• To deal with applications expeditiously, the
  Chair may after consultation with one other
  member grant an interim authorisation.
• This authorisation is subject to ratification by
  the NCACC.

18
KEY AMENDMENTS (Contd)

• Clause 10
• Offences
• This clause creates new categories of offences
  with regard to enlistment and rendering of
  humanitarian assistance
• The option of a fine with regard to mercenary
  activity and assistance or service has been
  removed
• This is done by amending the Criminal Law
  Amendment Act, 1997 (105 of 1997)
• Contraventions of ss 2 and 3 are punishable with
  a maximum sentence of life and imprisonment of 15
  to 25 years depending on whether the accused is a
  first, second or third offender, respectively

19
KEY AMENDMENTS (Contd)

• Clause 11
• Extra-territorial Jurisdiction
• The clause creates an extra-territorial
  jurisdiction for our courts with regard to acts
  committed outside the Republic by
• Citizens or residents
• Any otherperson who commits mercenary activity
  against SA, its citizen or property and is
  arrested/found in the Republic or in its
  territorial waters and
• Companies registered in the Republic

20
KEY AMENDMENTS (Contd)

• Clause 13
• Exemptions
• The clause provides for the granting of
  exemptions to certain organisations by the
  President in order to facilitate the rendering of
  humanitarian aid.
• This power is currently vested in the Minister.

21
KEY AMENDMENTS (Contd)

• Clause 14
• Amendment and Repeal of laws
• The Bill amends the Criminal Law Amendment Act
  with regard to penalties
• The Bill will, once it has been passed, repeal
  the RFMA in its entirety.

22
KEY AMENDMENTS (Contd)

• Clause 15
• Transitional Arrangements
• The clause provides for the validity of the
  authorisations granted under the repealed RFMA
• Persons who are already enlisted or rendering
  assistance are given 6 months from the date of
  the coming into operation of the Act to apply ito
  this new Act
• Investigations and court proceedings initiated
  under the RFMA shall remain valid until they are
  finalised.

23
CONCERNS ON THE BILL

• Overbreadth of some of the Provisions
• Regulation of assistance or services by any
  person
• Extra-territoriality
• Regulation of Humanitarian Activities
• There is a groundswell of opinion that the
  limitation on the rendering of humanitarian
  assistance to desperate civilians in areas of
  armed conflict will undermine South Africas
  contribution to humanitarian causes around the
  world, more especially in Africa.
• Exclusion of legitimate Liberation Struggles
• the Bill does not make any attempt to define what
  is a legitimate liberation struggle or
  prescribe how a legitimate liberation struggle
  will be determined

24
CONCERNS ON THE BILL

• Enforceability of certain Provisions
  (Enlistment) This provision presents a number of
  practical challenges
• Firstly, members of armed forces are generally
  obliged to serve unless specifically exempted
  from service in terms of the domestic laws of
  that particular country.
• Secondly, it will require considerable resources
  to monitor and enforce compliance with this
  provision as most of these activities will be
  happening not only outside the borders of RSA but
  within the armed forces of other foreign states.
  Any attempt to rigorously enforce this provision
  may be frowned upon by the international
  community.
• Insufficient Transitional Arrangements
• Arrangements should be made to protect persons
  already rendering assistance or services in
  areas of armed conflict prior to the coming into
  operation of this Bill.

25
AMENDMENTS BY PCOD

• Deletion of the exclusion of liberation
  struggles, self determination, independence
  against colonialism etc from the definition of
  assistance or services.
• The Bill now specifically excludes the activities
  of the Security Services contemplated in section
  199 of the Const from the provisions of the Bill.

26
AMENDMENTS BY PCOD

• Regulation of humanitarian assistance is now
  limited to SA organisation.
• All SA humanitarian organisations have to be
  registered with the NCACC for this purpose.
• This addresses the concerns raised by ICRC and
  other international humanitarian organisation.

27
AMENDMENTS BY PCOD

• The PCOD insisted on inserting a provision on
  right to reasons in terms of PAJA.
• The Bill was amended to give our courts
  extra-territorial reach with regard to mercenary
  activities committed against the Republic
  irrespective of where such acts were committed.
• With regard to the rest of other offences the
  jurisdiction of our courts is limited to the
  territory of the Republic and its citizens,
  residents, companies registered in the Republic
  and foreigners who use the territory of the
  Republic.

28
AMENDMENTS BY PCOD

• Transitional provisions were broadened to include
  assistance or service that did not constitute an
  offence under the RFMA.
• The citation of the Bill was shortened to read
  Prohibition of Mercenary Activities and
  Regulation of Certain Assistance in a Country of
  Armed Conflict, 2006

29
CONCLUSION

• Notwithstanding the amendments the following
  challenges may persist
• Gathering of evidence closed community
• Trans-border policing offences are often carried
  outside the borders of RSA
• Reluctance to prosecute Plea bargains.
• Notwithstanding the amendments the challenge
  still lies with the implementation of the Act,
  more especially, policing and prosecution.