Submission to the Portfolio Committee on Defence
18 October 2002

Introduction

1. The South African Council of Churches (SACC) is the facilitating body for a fellowship of 24Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, including matters of national debate.
2. The SACC wholeheartedly welcomes the introduction of the Anti-Personnel Landmines Bill. Anti-personnel landmines have had a devastating impact on the people of Southern Africa, which remains one of the most-mined regions of the world. African nations have long been in the forefront of the global campaign to abolish the production, sale and use of this vicious weapon.
3. South Africa has been a particularly ardent proponent of the landmines ban. The third signatory to the landmark Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Landmines and on their Destruction, South Africa has already completed the destruction of its stockpiles of anti-personnel landmines. Now it is moving to give legislative force to its international obligations in terms of the treaty. We applaud the government's decision to eschew a minimalist approach to the codification of its treaty obligations, opting instead to craft legislation that strengthens and expands the domestic application of the provisions of the treaty. In this context, we are especially pleased by the Bill's articulation of the state's duty to destroy anti-personnel landmines and by the authority which the Bill gives the state to take part in international fact-finding missions outside the Republic.
4. We recognise that the proposed legislation has been extensively workshopped with stakeholders throughout the drafting process. In particular, we appreciate the efforts made to consult civil society organisations and the demining industry before finalising the Bill.
5. Although we unreservedly support the intention underlying this legislation, we believe that there are a few technical matters worth of further consideration by the Portfolio Committee on Defence. These include: the definitions of "import", "export" and "transfer"; the disclosure of exemptions granted in terms of section 7; the establishment of fixed deadlines for the destruction of anti-personnel landmines, and the protection of "sensitive" information.

Definitions of "import" and "export"

6. The definitions of "import" and "export" in section 1 refer specifically and exclusively to the import and export of (assembled) anti-personnel landmines. However, sec 5(b) also prohibits the import or export of component parts. We suggest that this slight inconsistency be addressed by inserting the words "or component parts thereof" after the words "anti-personnel landmines" throughout these two definitions.

Constitutional obligations

7. Section 2(b) (Objects of the Act) refers to section 231(3) of the Constitution as requiring the enactment of legislation to entrench the provisions of the convention in law. It appears, however, that section 231(4) is the operative clause requiring such action.

Prohibitions

8. The various prohibitions set out in section 5 are joined by "and", implying that the prohibition only applies to a person who engages in one of the activities in each of the three categories listed. We believe that section 5(b) should end with "or" so that the prohibition applies to any activity in any of the three categories. This point applies in a similar fashion to section 28(1) dealing with the Minister's power to gather information.

Authorised possession of landmines

9. Article 3 of the Convention permits "the retention or transfer of a number of anti-personnel mines for the development of and training in mine detection, mine clearance, or mine destruction techniques". This exception is incorporated in Section 7(1)(a) of the Bill, which empowers the Minister to exempt any organ of state or employee of such organ or any other person from a prohibition set out in section 5. It also allows the Minister to authorise such persons to possess anti-personnel landmines for the training purposes defined in the Convention. However, the wording of Section 7(1)(a) is ambiguous as the limitation on the scope of the Minister's powers could be interpreted to apply only to the authorisation to possess and not also the exemption from section 5. Potential ambiguity could be eliminated by reformatting the section as follows:

7.(1)(a) The Minister may -

(i) exempt any organ of state or any employee of such organ, any agent or any other person from a prohibition referred to in section 5; and
(ii) authorise any such organ, employee, agent or person to possess anti-personnel mines for the purposes of developing and conducting training in mine-detection, mine-clearance or mine-destruction techniques or for their destruction.

10. Section 27(c) requires the Minister to maintain a record of all such exemptions granted in terms of Section 7. We would propose that the Minister also be obliged to publish in the Gazette notification of any exemptions granted in terms of this clause.

Deadlines for destruction of stockpiled and emplaced mines

11. Section 13(1) requires the Minister to ensure the destruction of all stockpiled and emplaced mines. However, no deadline is fixed for the completion of such destruction. Notwithstanding the government's pre-emptive action in destroying stockpiled landmines, we would suggest that the legislation set fixed deadlines for the completion of these tasks, in line with the requirements set out in Articles 4 and 5 of the Convention (four years from entry into force of the treaty for stockpiled landmines, ten years for emplaced landmines).

Further action

12. The SACC supports prompt enactment of the Anti-Personnel Landmines Bill. We further urge the government to maintain its leading role in the global campaign to ban landmines by applying moral and diplomatic pressure on those states that have not yet signed the Convention - including the United States, Russia and China and important landmine producers such as India - to encourage them to do so as a matter of urgency. As a leading member of the African Union, South Africa should give particular attention to those African nations that have not yet signed the Convention (Morocco, Libya, Egypt and Somalia) and should assist those countries that are signatories or states parties to fulfill promptly their obligations in terms of the treaty.