21 January 2008: South African Mercenary Legislation Enacted

The Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, 2006 (Act No. 27, 2006) was, after a considerable delay, assented to and signed by President Thabo Mbeki on 12 November 2007. The act replaces the Regulation of Foreign Military Assistance Act, 1998 (Act No. 15 of 1998) and also provides for two amendments to the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997). The Regulations to this Act are still to be promulgated.

The intent of the Act is to prohibit mercenary activity, to regulate the provision of assistance or service of a military or military-related nature in a country of armed conflict, to regulate the enlistment of South African citizens or permanent residents in other armed forces, and to regulate the provision of humanitarian aid in a country of armed conflict. It provides for extra-territorial jurisdiction for the courts of the Republic with regards to certain offences and it provide for penalties for offences related to the Act.

This act is the result of a long process of legislation, which started with an instruction to the Department of Defence emanating from a Cabinet Lekgotla in May 2004 to review the Regulation of Foreign Military Assistance Act (RFMA). This was in response to the concern of Cabinet with the increased participation of SA citizens in conflicts around the world. The events around the growth of mostly American and British private military companies using many South African citizens in places such as Iraq and Afghanistan, as well as the botched Equatorial Guinea attempted coup and its aftermath, highlighted the weaknesses in the RFMA and the need for improved legal provisions to prevent or curb mercenary activity or to provide clear regulation of, and guidelines for, private military and security companies.

In the explanatory memorandum to the Bill, the Minister of Defence argued that “Although the Foreign Military Assistance Act, 1998 (Act No. 15 of 1998), had been in operation for a considerable time, very few prosecutions have been instituted in terms of the Act. In cases where a conviction followed, it mostly followed upon a plea bargain between the prosecution and the accused. Recent events such as the arrest of a number of South African citizens, allegedly involved in a planned coup d'état aimed at the Government of the Equatorial Guinea, both in that country and in Zimbabwe, testify to mercenary activities being undertaken from within the borders of the Republic. The recruitment of South Africans by so-called private military companies from outside the Republic to provide military and security services in areas of armed conflict - such as Iraq - is also continuing. It is evident from the small number of prosecutions and convictions under the Act that there are some deficiencies in the Act, which need to be addressed urgently in order to ensure that the Republic effectively combats mercenary activities and to provide for the regulation of certain forms of assistance in armed conflicts”.

A draft Bill was presented to the Portfolio Committee on Defence by the Department of Defence and the Committee called for submissions by the public in October 2005. Many submissions were received both from within South Africa and abroad and certain of the instances that made submissions were invited to attend public hearings in Parliament by the Committee. Hereafter the Committee entered into vigorous debate on the Bill and made significant changes to the original draft before it was approved by majority vote on 15 August 2006. It was thereafter debated in both the National Assembly and the Council of Provinces and again approved (without amendments) by majority vote. The Bill was ultimately signed into law by the President on 12 November 2007.

It is therefore clear that the Act is the product of much debate and consultation. The manner in which the Portfolio Committee on Defence handled the Bill is to be applauded. So too is the extent to which the Bill was debated in the Committee and the fact that the Committee accepted many of the inputs and amended the Bill accordingly. This does not mean that all concerns had been removed, as demonstrated by the fact that the approval of this Bill in the Committee is one of the few issues that has ever gone to the vote (both the Democratic Alliance and the Freedom Front opposed the Bill). And, of course, many people in the private security arena still remain concerned and critical of the Act.

There can be no argument about the intent of the Act. Mercenary activity should unquestionably be banned outright and regulation is needed to prevent private companies and individuals from executing mercenary activities under the guise of private security or even humanitarian activities. The Act therefore, in section 2, bans mercenary activity outright. In regulating the other activities as mentioned above, the Act provides for application to the National Conventional Arms Control Committee for the rendering of security services and the provision of humanitarian assistance in countries of armed conflict as well as for the enlistment in armed forces (other than the SANDF).

There are still concerns regarding the Act, especially on the issue of the rather wide definition of “Armed Conflict” and the issue of enlistment in foreign armed forces. A country of armed conflict includes one in which conflict between “armed groups” occurs, even when such a country is not declared as such by proclamation of the President. Certainly events in Iraq, Afghanistan and Somalia will fall within the definition, but a more liberal interpretation could also include the Kenya of today, the whole of Sudan (due to the events in Darfur), the whole of the DRC (due to the events in the east) and Uganda, Chad and many more. Engaging on issues of security sector reform in such countries, for example, could therefore constitute an offence. Regarding enlistment in other armed forces, many South Africans currently so employed face the uncertainty of obtaining authority and, if obtained, the possibility of the cancellation thereof under certain circumstances.

It is not the intent of this article to try to analyse the Act to its full extent. It is rather aimed at bringing to the notice of all who may be affected by the Act that it has been promulgated and that they should take cognisance of the Act and forthcoming regulations thereto. Simply criticising the Act and failing to get clarity and adhering to the Act and its regulations, will serve no purpose. It is advised that all South Africans who take part in private security activities outside South Africa, who are enlisted or plan to enlist in a foreign armed forces or are engaged in humanitarian assistance in conflict areas, take legal advise to ensure compliance with the Act. To presuppose the failure of government to effectively administer the Act would be a distinctly unwise course of action.

South Africa is one of the very few countries that has tackled the problem of mercenaries so decisively, and is leading the world on the issue of the regulation of the expanding private security phenomenon. This could provide a blueprint for regional and international regulation in this regard, something that is very necessary when considering the recent “Blackwater” debacle in Iraq.

Len le Roux, Defence Sector Programme, ISS Tshwane (Pretoria)