Briefing Paper 215 September 2009

The NCACC Revisited

1. Introduction 2. Background

Over the years our office has taken a keen The NCACC is a cabinet committee, governed interest in the work of the National by the provisions of the National Conventional Conventional Arms Control Committee Arms Control Act 41 0f 2002. It consists of (NCACC), and we have made various eight ministers and three deputy ministers. The submissions regarding the law in terms of which Chair of the newly-appointed committee is it operates. Our interest stems partly from the Justice Minister ; Vice-chair is Church’s well-known concern that the Science and Technology Minister Naledi production and distribution of weapons of war Pandor. Other members are Defence Minister should be strictly limited to situations of (and her deputy Thabang legitimate national defence; and partly from the Makhwetla), International Relations and Co- fact that this committee provides a good operation Minister Maite Nkoana-Mashabane snapshot of the state of executive accountability (and her deputy Ebrahim Ebrahim), Trade and to Parliament. Industry Minister , Public Enterprises Minister , State In recent years the NCACC has failed dismally Security Minister , and Police to honour the statutory requirement that it report Minister . The remaining regularly to the Portfolio Committee on member is Finance Deputy Minister Nhlanhla Defence. There is also a strong suspicion Nene. (which, in the absence of reports, can be neither proved nor allayed) that it has authorised The committee’s appearance before the PC was weapons deals in clear contravention of the billed as an ‘introductory’ meeting, but it was guidelines set out in the National Conventional certainly prompted, to some extent at least, by Arms Control Act. At least one such transaction claims published by a Democratic Alliance – the granting of a permit in 2008 for the member of the PC, David Maynier, that the conveyance of Chinese arms across South committee either had recently approved, or was African territory to Zimbabwe – was openly considering, applications in respect of a variety admitted to by the secretariat of the NCACC. of dubious countries and regimes. Among these, according to Mr Maynier, were Zimbabwe, Towards the end of July this year President Syria, Libya, Burma and North Korea. Zuma appointed a new NCACC, and the new committee appeared for the first time before The PC’s meeting was originally ruled by the Parliament at the beginning of September. This Chairperson, Mnyamezeli Booi, to be a closed briefing paper considers that appearance and one, but after representations by some MPs and what it revealed about our arms trade and about civil society groups, the decision was reversed, the question of accountability. For convenience, and the usual committee meeting, open to press we refer to the NCACC as ‘the committee’ and and public, took place. This was clearly a step in to the National Assembly’s Portfolio Committee the right direction, and will hopefully serve as a on Defence and Veteran Affairs as ‘the PC’. precedent for future reports by the committee to the PC.

3. The Content of the Meeting On the other hand, the report tells us nothing about some of the other permits issued, such as The meeting had two purposes: the presentation marketing and conveyance permits. As the of the committee’s 2008 annual report; and a example of last year’s arms shipment to briefing on its new membership and how it Zimbabwe shows, the issuance of such permits operates. Although its 2009 activities were not can be completely at odds with the committee’s under review, it was mentioned that the guidelines. It is also necessary for us to know committee had already met four times since the where our weapons are being marketed and end of July, and that it had dealt with a exhibited, since it is precisely such activities considerable backlog. Permits had been that tend to fuel regional arms build-ups and to approved, whether for export or import of arms, divert state spending away from real social or simply to allow contracts to be entered into, needs. to the value of R12.6 billion. Members of the committee made it clear that 3.1. The 2008 annual report they could not account for the decisions of their predecessors and perhaps for this reason they According to the 2008 report the following were not pressed on some of the more permits were issued in that calendar year: 370 outrageous transactions, such as the sale of more contracting permits to the value of R19.5 billion than R64 million of category A equipment to (these will not necessarily end up as actual Sudan or R82 million of other categories to ‘deals’); 2965 exporting permits worth R5.8 China. This illustrates a weakness of the system billion; 1639 importing permits worth R6.3 – it is good and proper that regular reports are billion; 54 marketing permits; and 16 tabled, but there is no effective mechanism for conveyance permits. ensuring that the guidelines in the Act are adhered to. At best, the PC can express its Arms were exported to a very large number of disapproval after the fact. countries. Among them are numerous countries which would appear to fall foul of the statutory 3.2. Method of operation guidelines in various ways. These include Algeria, Burundi, Chad, China, Colombia, Minister Jeff Radebe gave a detailed run-down Georgia, India, Iraq, Niger, Pakistan, Rwanda, of the committee’s operations and of its various Saudi Arabia, Sudan, Swaziland, Turkey, the structures and sub-committees. These very United Kingdom, and the United States of largely followed the framework set out in the America. It was interesting to note, though, that Act, and it is not necessary to repeat them here. Zimbabwe was not on the list. One point of concern was that approval for contracting permits has been fully delegated to The annual report itemizes what was sold the secretariat of the NCACC, in other words its according to various categories, A – G. The officials. Permission to contract does not mean most common exports are of category A and B that permission to export will automatically be items, being heavy weaponry such as missiles, granted, but the mere existence of a contract artillery pieces, tanks, etc, and hand-held or might well be a factor that sways the decision, portable weapons respectively. A certain in the sense that there may be penalties attached amount of non-lethal riot-control equipment was to a failure to honour the contract. It would be also apparently exported, but it is difficult to preferable to keep all the decision-making in the determine this as it falls into the same category, hands of the committee itself. C, as mine detection and clearing equipment.

On the one hand, therefore, the release of the 4. Accountability 2008 report is welcome. It sets out with some detail the export transactions for the year, and As already mentioned, over the last few years the fact that the new committee has tabled it this very important committee has failed to relatively soon after assuming office is respect either the spirit of executive commendable and a distinct improvement on the accountability to Parliament, or indeed the clear performance of its predecessor. reporting requirement set out in the Act. It was thus most encouraging to see that no fewer than

Briefing Paper 215: The NCCAC Revisited 2 three members of the committee – Ministers to try to raise it with the executive. Mr Maynier Radebe, Cwele and Mthethwa – appeared before has certainly done the right thing by ringing the the PC. All three of them, as well as the PC alarm on this issue. The issue of our arms sales chair, expressly mentioned that the appearance has once again hit the headlines and, judging by was in fulfillment of their duty to account, a the number of civil society organisations and refreshing attitude when compared with that of media representatives present, it will not be easy certain ministers in the previous a cabinet. for the committee to revert to its former habit of operating with disregard for Parliament’s Minister Radebe answered most of the questions oversight role. put to him openly and clearly (except for the matter of pending applications, as discussed below), and emphasised that the committee 5. The Reporting Requirement would provide both the quarterly and annual reports, as required. This is something that will Section 23(1)(b) of the National Conventional need to be monitored. Arms Control Act requires the committee, as already mentioned, to make ‘quarterly reports to Mr Maynier of the DA elicited an answer the Cabinet and a committee of Parliament’ on concerning applications that had been turned exports concluded during the previous quarter; down; this information is not provided in the and s 23(1)(c) requires it to ‘present to written report. Two applications, one involving Parliament and release to the public’ an annual Iran and the other North Korea, had been report at the end of the first quarter of each year. rejected. However, Minister Radebe declined to answer further questions about pending An amendment bill that came before the PC in decisions that, according to Mr Maynier, July last year proposed to do away with the involve the export of 2 million small-calibre quarterly reports entirely, and to remove the rounds of ammunition to Zimbabwe, and the requirement of ‘release to the public’. We were sale of more than a thousand sniper rifles to among a handful of civil society organisations Syria, among others. The Minister’s response that opposed these changes in oral submissions was, firstly, that such information would be to the PC. It has now emerged that the supplied in the forthcoming quarterly and amendment bill was assented to in April this annual reports. Secondly, if the PC wished to year, and that our representations were at least have answers on these matters, it should invite partially successful: while release to the public the committee back with a specific set of will no longer be required, quarterly reporting is questions so that it could prepare adequate still stipulated. In addition, the wording of the answers; the purpose of the present meeting was amended Act suggests that the annual report to to table the 2008 report. Parliament will not be a confidential one, which effectively means that it can be made public. Mr Maynier was not happy with this standpoint, and certainly the Minister could easily have confirmed or denied that such transactions were 6. Conclusion under consideration (or had already been decided). However, the Minister was probably Ultimately, the NCACC can approve arms procedurally justified in declining to answer. exports to undesirable destinations and then Parliament does not generally have powers of simply announce them ‘after the fact’. It may prospective oversight over the executive; the well do so in future, as it has done in the past, executive must account to Parliament for what it and there is not much that Parliament or civil has done, not necessarily on every decision that society would be able to do to reverse such is pending or under discussion. Clearly, it would decisions. However, the committee’s recent be impossible to conduct the business of appearance before the PC has certainly provided government on such a basis. some encouragement. Members of the PC, and not only opposition members, clearly intend to On the other hand, certain matters are more hold the NCACC accountable. A number of important than others, and if an MP has reliable requests were made for information on technical information about – for example – the sale of and non-controversial matters to be supplied to arms to a country such as Zimbabwe, he is right

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MPs by the committee secretariat. Civil society, extremely seriously, will apply the statutory likewise, is showing a renewed interest. guidelines and our constitutional values far more rigorously than has been the case up to For the time being at least, the assurances of the now. ministers that they will report on a quarterly basis must be accepted (and carefully monitored). We may also hope that the new ______members of the NCACC, some of whom have a Mike Pothier reputation for taking matters of human rights Research Co-ordinator

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