NATIONAL COUNCIL OF PROVINCES (NCOP) Select Committee 20 May 2003

THE ANTI-PERSONNEL MINES PROHIBITION BILL PROCESS AND KEY POLICY PRONOUNCEMENTS

BACKGROUND  South Africa has signed and ratified the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and their Destruction also known as the Mines Ban Treaty (Attached as Schedule 1 to the Bill).  By 30 October 1997, approximately 312,000 APM's were destroyed. South Africa retained 5,000 APM's for training soldiers and developing de-mining techniques. These reside with Defencetek (CSIR) at present.  Article 9 of the Convention states: "Each State Party to the Treaty shall take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited by a State Party under the Convention undertaken by persons or on territory under its jurisdiction".

 The Constitution of the Republic of South Africa, Section 231(4) states that any international agreement becomes law within this country when enacted into law by national legislation, but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.  Bill is drafted in response to the Republic's obligation under the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and their Destruction.  By promulgating the Bill, the Republic will have fulfilled its obligation in terms of the Convention.

CONSULTATION PROCESS  Drafting Committee. – Department of Defence. – Department of Public Enterprises (represented by Denel). – Department of Foreign Affairs. – South African Police Services. – CSIR (Defencetek). – International Committee of the Red Cross (ICRC).  In drafting the Bill, the Committee considered all existing international legislation.  State Law Advisor. The State Law Advisor was approached early on in the process and made significant input into the Bill.  Public Consultation. Partnership with the International Campaign to Ban Landmines, as follows:

– Greater Gauteng. Workshop with Civil society hosted by the Group for Environmental Monitoring in Braamfontein, Johannesburg. – Greater Western Cape. Workshop with Civil society hosted by the Centre for Conflict Resolution at the University of Cape Town. – Greater Durban Area. Workshop with Civil society hosted by ACCORD. – De-Mining Industry. Workshop with the South African Humanitarian De-Mining Industry, who conduct de- mining operations outside of the Republic's territorial borders.

KEY POLICY TENETS CAPTURED IN THE BILL  Definition of Terms. [Section 1 of Bill] – Consistency is created between the Bill and the Convention by using the same definitions, and thereafter adding those definitions that are necessary to eliminate misinterpretation.  Intention. [Sections 2 & 5 of Bill] – To completely prohibit the Use, Stockpiling, Production and Transfer of Anti-Personnel Landmines and thus to implement South Africa’s obligations under the Convention.  Enactment of Convention. [Section 3] – The MBT is enacted into the body of South African law.  Extra-Territorial Application. [Section 4 of Bill] – Bill seeks to address transgressions by South African persons acting out of the borders of the Republic. South African Courts are competent to prosecute South African citizens who contravene the Bill outside the territorial borders, and the contravention will be seen as if it had occurred within the borders of the Republic.

 Prohibitions. [Sections 2 & 5 of Bill] – The Convention requires that national legislation cover a broad range of activities prohibited under the Treaty. In order to be as comprehensive as possible and to close any undesired loopholes, a wide spectrum of activities are expressly prohibited in the Bill.  Penalties. [Section 6 of Bill] – Penal sanctions are required to prevent violations of the Convention. The Bill follows the trend of other international legislation that identifies penal sanctions for both natural and juristic transgressors. Any contravention of Bill will be punishable by either a fine or imprisonment, or both.  Exemptions to the Bill. [Sections of Bill] – Article 3 of the Convention provides that, despite the prohibitions of the Treaty, the retention or transfer of anti- personnel mines is permissible, as long as those mines are retained or transferred for training or development of techniques relating to mine detection, mine clearance and mine destruction. – All international legislation reviewed makes provision for this kind of exception. South Africa has retained 5,000 mines for such purposes. – SANDF, SAPS, Customs Officials, various museums and collectors.

 Military Activities. [Section 11 of Bill] – The SANDF may participate in operations, exercises or other military activities with the armed forces of a State that is not a party to the Convention, provided that it is not in contravention of the Convention or amounts to active assistance in any activity prohibited by the Convention. – Other visiting Forces are bound, without exception, by the provisions of the Bill.  Destruction of Anti-Personnel Mines. [Section 12 &13] – The Minister of Defence shall ensure the destruction of all anti- personnel mines held by the Republic, with the exception of those anti-personnel mines exempted by the Minister for training or development of techniques for detection, clearance, destruction or de-activation. – Any person knowingly in possession of an anti-personnel mine must take all reasonable steps to deliver such a mine, without delay, to a member of the South African National Defence Force or a police official for destruction. – Such mines are forfeited to the State. – The Department of Defence and the South African Police Service (and their agents) are the only Organs of State permitted to possess anti-personnel mines exempted by the Minister.

 Domestic Inspectors. (Sections 14 – 20) – The Minister may appoint a domestic inspector to: investigate and enforce compliance with the Bill. assist international inspectors in investigating alleged non-compliance with the Convention. Appointment procedure is clearly specified. – When accompanied by a police official, a domestic inspector may: Enter and search premises with a search warrant. Inspect any article or record. Examine any activity. Seize any document, record or material that may be used as evidence in a court of law. A seized anti-personnel mine or component part is forfeited to the State. Announce their intention to enter a premise. Under conditions, may enter without a warrant. May use reasonable force to gain entry or overcome resistance to the entry. Obstruction of a domestic inspector is a penalty.

 International Inspections on South African Compliance with the Convention. [Section 21-24] – Article 8 of the Convention provides that the United Nations can, on request by any State Party, order the establishment of a Fact-Finding Mission. The mandate of that Fact-Finding Mission will be to monitor if a particular identified State Party fully complies with the provisions of the Convention. The report of the Fact-Finding Mission is delivered to the United Nations for consideration and action if necessary. – The Bill thus provides for inspections by UN commissioned Fact-Finding Missions and specifies the obligations of the South Africa to a Fact-Finding Mission. The main obligations are: Authorisation of the Fact-Finding Mission and its members by the Minister and conferring rights of access to the Fact-Finding Mission whilst conducting its work. Conferring of privileges and immunities to be enjoyed by the Fact-Finding Mission whilst conducting its work. Assisting the Fact-Finding Mission in terms of providing domestic inspectors or police officials to accompany the Fact- Finding Mission.

 International Co-operation. [Section 25 & 26] – The Minister may, in terms of Article 6 of the Convention, authorise or otherwise facilitate the South African National Defence Force or any other Organ of State or competent body to assist another State Party to the Convention, or any other State requesting such assistance, with the clearance of anti-personnel mines and the destruction of stockpiled anti-personnel mines. – The assistance of the South African National Defence Force or any other Organ of State must be conducted in terms of an agreement that states the conditions of the assistance to be delivered or the co-operation to be given, and the obligations of all parties.

 Reporting on South African Compliance with the Convention. [Section 27 & 28 of Bill] – Article 7 of the Convention requires every State Party to report annually to the Secretary of the United Nations on its compliance with the obligations of the Convention. The Bill thus places the obligation on the Minister of Defence to report on South Africa's compliance, via the Minister of Foreign Affairs. – In order for South Africa to be able to provide this kind and level of information to the United Nations, it is important that such information be readily available to the Minister. This information may be possessed by different sources and the Minister must have the right of access to all information relating to anti-personnel mines, and in the event of refusal, those who refuse will be subjected to prosecution.  Records.[Sections 29 & 30] – The Department of Defence and the South African Police Service (and their agents) are the only Organs of State permitted to destroy anti-personnel mines and the Minister must retain a written record of all anti-personnel mines destroyed.

 General Provisions. [Sections 31 – 34] – The Minister must ensure that training guidelines are issued. – The Minister may make regulations – The Minister may delegate powers and duties.