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Session Three - Plenary
Policies to address the enhancement of legal controls over weapons possession and transfer
Chairperson: Anu Saarela, Ministry of Foreign Affairs, Finland
Commissioner Edgar Hillary, Royal Swaziland Police
The implementation of the Southern Africa Regional Action Programme calls for the identification and strengthening of legal controls over weapons possession, use and transfer. This will involve the adoption of the necessary legislation by member countries that have not yet done so, and will of necessity involve the process of harmonisation, through SARPCCO, of firearms legislation in the region particularly in the areas discussed below.
Civilian possession of firearms
There is a need to promote uniformity and to strengthen legal provisions relating to the licencing, possession of, and trading in firearms and ammunition by civilians. To achieve this goal, a co-ordinated and periodical review for issuing and holding firearms licences is necessary.
Provisions are also needed that adequately provide for the confiscation of all arms and ammunition held by or conveyed into a country without, or in contravention of, licences, permits or written authority.
Also essential are provisions that promote legal uniformity, including the establishment of a minimum sentence barrier and heavier penalties in order to eradicate the seemingly lenient measures currently in place in most SADC member countries.
The screening of firearm applicants must be more stringently applied. Provisions relating to the restriction and prohibition of the number and type of firearms that may be legally owned or possessed by civilians must also be promoted. Along with these, there must be legal prohibitions relating to the pawning and pledging of small arms.
There is also a need to establish and maintain, at national level, an electronic database to record licenced arms, firearm owners and commercial firearm traders within each SADC member country and to establish a unified regional database to record the movement of firearms and production levels effectively in the region.
Effective legal controls over the licencing, as well as the conduct of commercial arms dealers and brokers are also vital, as is the establishment of a statutory body to control and monitor the issuing of import, export and transit licences for commercial arms.
Controls over the accumulation of light arms and associated military equipment
It is pertinent to establish national recordkeeping systems or accurate inventories of arms, ammunition and associated equipment held by the police, the defence force and other state security agents. Maintaining records will enhance the capacity of countries to manage and maintain the secure storage of military equipment and to facilitate the review of members’ holdings to establish whether these are above the requirements for national self-defence.
Also of importance in this respect are legal provisions and procedures to address the issue of collection, removal from circulation, and destruction of unnecessary military arms following peace processes and in post-conflict situations. Such legal measures ensure that arms or ammunition that are in excess of the requirements are securely stored and disposed of, and thus prevented from entering the illicit arms market or entering into regions that are experiencing conflict.
Improving the capacity to monitor and trace light arms possession and transfer
There is a need to improve the capacity to monitor and trace light arms possession and transfer both at national and regional levels. Uniform or harmonised legal provisions or regulations to ensure the proper marking, identification and tracing of arms are needed. Each firearm should be marked with the name of its manufacturer, its place of manufacture and its serial number. Firearms should also be marked on import. Such legal measures will ensure that adequate and accessible records are maintained by manufacturers and dealers to make certain that the source and origins of firearms can be traced. The problem of non-unique or ambiguous serial numbers will also be addressed.
Also of importance in this regard are provisions promoting legal uniformity and standardisation in both the manufacture of firearms and legal definitions.
Dr Philip Jacobs, Director, Legal Component, South African Police Service
Firearms and crime combating initiatives in Southern Africa
Since 1990, as a result of the post-war situation in Mozambique, there has been a huge flow of weapons from Mozambique, especially to South Africa. A co-operation agreement between the governments of Mozambique and South Africa was concluded, which led to the very successful Rachel operations. These operations, sponsored by the Belgian government, have led to the destruction of tons of weapons in Mozambique.
During 1995, police chiefs in Southern Africa formed SARPCCO, with Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe as members. Recommendations by police chiefs are considered after every annual general meeting of SARPCCO by the ministers responsible for policing in the region. SARPCCO consists of three committees, apart from the chiefs of police – one responsible for legal matters, one for training, and the Permanent Co-ordinating Committee comprising the heads of detective services of member countries.
A co-operation agreement on combating crossborder crime was negotiated in the SARPCCO legal subcommittee and signed on 1 October 1997. It came into effect on 29 July 1999, after seven countries ratified it. Ratification by the other five countries is expected soon. SARPCCO also functions on the basis of an approved constitution, which defines regional co-operation among the police on an even broader basis than the co-operation agreement. The agreement as such lays a solid foundation for crossborder investigations and operations, not only in respect of firearms offences, but any other offence committed across borders. Even before the agreement came into force, SARPCCO launched a number of very successful crossborder operations.
SARPCCO has further been involved in the firearms issue by attending to the following:
- The harmonisation of firearms legislation in the region has been addressed through activities of the legal subcommittee. Much work still has to be done, including more research and the drafting of model legislation, but attention has already been paid to the minimum requirements and elements that should be contained in regional firearms legislation.
- A regional workshop on the United Nations firearms protocol, which is drafted in tandem with the United Nations Convention on Transnational Organised Crime, was held in parallel with the annual general meeting of SARPCCO in Swaziland during July 1999. There is a need to hold a regional consultative meeting on the draft convention.
- A declaration on small arms was approved by the chiefs of police of SARPCCO, as well as the ministers responsible for policing in the region at the annual general meeting of SARPCCO in July 1999 in Swaziland.
- The legal subcommittee is also planning to draft an instrument on firearms for the region based on the Inter-American Convention on Small Arms.
- SARPCCO is recognised by the Inter-state Defence and Security Council (ISDSC) as the vehicle for police matters in the region. The SADC Council recently approved that the organisation should commit itself to the effective combating of armed transborder crime and the reduction and control of illicit arms. It was also approved that SADC should establish a regional policy for the control of small arms and light weapons and that SARPCCO shall be appointed as the implementation agency of the SADC policy on small arms and for crossborder crime prevention. The ministries responsible for law and order and safety should be the SADC national focal points on the issues of crime prevention and the combat of small arms and related crimes.
A working group comprising Mozambique, South Africa, Swaziland (chair), Zambia, Zimbabwe, the SADC Secretariat and SARPCCO has been appointed to formulate the SADC policy on small arms and develop a programme for its implementation at regional level. Other member states wishing to join the working group may do so.
Department of Foreign Affairs, South Africa
Mr O R W Mokou, Director, National Contact Point, SADC
Tackling small arms proliferation is a key priority for the South African government, and it believes the approach should be holistic. Concurrent action must be taken at national, regional and international levels, focusing both on licit and illicit small arms and light weapons.
South Africa is committed to stopping illegal small arms entering from across its borders. The country has already made agreements with several Southern African states with the aim of curbing the trafficking in small arms and ammunition. In this regard, bilateral agreements have been signed between South Africa and Mozambique, and South Africa and Swaziland to address crossborder crime.
The agreement with Mozambique has led to the launch of the first joint operation to collect and destroy uncontrolled arms and explosives caches in Mozambique, known as Operations Rachel. Four official Rachel operations have been undertaken in Mozambique since 1995. Significant successes have been achieved in which tonnes of arms and explosives have been destroyed. Approximately sixty successful ad hoc ground-level operations have been carried out between Mozambique and South Africa with the same purpose. In addition, several joint operations have occurred since then, both at grassroots and national level between the three countries. These operations include joint investigations, joint interrogation of suspects and joint exchanges of information. The costs of all of these have been carried by the South African government.
A new multilateral agreement was also signed in 1997 under the umbrella of SARPCCO with eleven different SADC countries. This agreement fundamentally has the same content as the bilateral agreement with Mozambique and Swaziland. However, it still needs ratification by some of the countries and governments.
On the international level, the South African government is insisting that equal attention should be paid to the control of conventional weapons as is given to the disarmament debate on weapons of mass destruction. In this regard, South Africa is playing a leading role in various UN initiatives on small arms.
Patrick Tsholetsane, Department of Disarmament Affairs
South Africa is in an interesting position because it is the only country in the region which is a major producer of arms. The government took a responsible decision to control this trade by creating the National Conventional Arms Control Committee. This ministerial committee sets stringent requirements for arms transfers and is responsible for issuing the prescribed certificates.
South Africa has also taken a decision to destroy all surplus small arms that have been confiscated from criminals, as well as obsolete small arms that are in the possession of the state.
South Africa believes that a regional approach to the problems of small arms proliferation is essential. An holistic approach is needed which also addresses the causes driving the demand for arms, such as poverty and social deprivation.
Euan Wallace, Non-Proliferation Department, UK Foreign and Commonwealth Office
As a result of two tragic domestic multiple shootings, the UK government introduced some of the most stringent civilian firearms laws in the world today. A 1988 government act stipulates that private individuals could not own self-loading ‘sporting rifles’, nor could they legally own bolt or pump action weapons capable of chambering more than two rounds.
The 1997 act outlawed the private ownership of all military calibre, semi-automatic, assault rifles and every model of hand gun. The exceptions were guns of less than .22 calibre and black powder weapons, for example antique muzzle-loaders. Civilian shooters were given a fixed time to surrender their weapons, ammunition and ancillary equipment in the knowledge that they would be financially compensated by the government.
To prevent these weapons from re-entering circulation, they were destroyed using mechanical methods such as shearing, and the remains were burned to ensure the components could not be re-used.
UK small arms policy rests on four pillars:
- pursuing a transparent and responsible policy on legal transfers of small arms;
- preventing and combating illicit trafficking;
- promoting the removal and, where possible, destruction of surplus small arms from affected societies; and
- reversing cultures of violence and providing development assistance from a platform of peace and security.
An interdepartmental working group, chaired by the Foreign Office, promotes coherence in policy and information-sharing.
Control of legal exports
- The UK agreed to new national export criteria in July 1997. Licences are refused where there is a clearly identifiable risk that the proposed export might be used for internal repression, international aggression, or may adversely affect regional stability.
- The UK published its first ever Annual Report on Strategic Export Controls in March 1999.
- The UK helped to establish the EU code of conduct on arms exports that consists of two parts: detailed criteria governing exports from all member states (similar to the UK’s national criteria) and a consultation mechanism under which all countries have to inform one another when they refuse an export licence. If one country wants to take up a licence which another has refused, it first has to consult the member state who originally denied the export.
Preventing and combating illicit trafficking
- The UK helped to elaborate the EU programme by funding the seminar in Midrand in May 1998 which led to the Southern Africa Regional Action Programme.
- The UK is actively involved in negotiations about a protocol on illicit firearms trafficking to the UN Convention on Transnational Organised Crime.
Disposal of surplus weapons
Effective stockpile management is essential. The UK supports public destruction initiatives such as the Mali Flamme de la paix and is examining how it might improve its own procedures.
The UK and the EU are financially supporting a weapons for development project in Albania where the United Nations Development Programme (UNDP) is providing development assistance in the form of roads in exchange for weapons in the area. So far, over 5 000 weapons have been handed in.
Reversing cultures of violence
Addressing small arms proliferation is a key component of the policy of UK development agencies on conflict reduction. The Department for International Development (DFID) is actively seeking to integrate small arms issues into its programming in relevant sectors such as policing and customs support, security sector reform and in strengthening regional organisations.
It is recognised that there is no single solution to the small arms problem. It is not the same as landmines. It will require dialogue between the suppliers, producers and purchasers of these weapons. It will require the co-ordinated action of diplomats, law enforcement officers, the military, trade union officials, border guards and many others. And it will require governments and NGOs to work together in partnership to draw these threads together. But it will, in the end, be worth it.
Peter Gastrow, Institute for Security Studies
SADC should consider whether the current momentum that has been established in addressing the illicit trafficking in firearms cannot be complemented by a parallel process that looks at developing a more effective regional approach towards the legal control over the ownership of firearms by civilians.
The SARPCCO legal subcommittee began to address the issue of the harmonisation of firearms legislation in the region well before the UN ad hoc committee commenced its discussions on an international protocol against the illicit trafficking of firearms. Taking into account recent international developments, SADC and SARPCCO should consider whether the attempt at harmonising firearms legislation is not an ad hoc approach which, on its own, will not take the region much further. A more comprehensive regional consideration of legal controls over firearms owned by civilians is needed.
There are at least four focus areas that SADC countries should consider when exploring a more common approach to legal controls over firearms.
Policy issues
Legislation should follow policy. There has to be policy agreements within the region before a move towards the harmonisation of legislation can succeed. SADC, with the assistance of SARPCCO, should therefore examine policies on key issues, such as whether there should be licencing by the state of firearms owned by civilians. If the region is to have similar licencing systems, what system should that be? Should the focus be on licencing the individual, or the firearm as well as the owner? What categories of firearms should not be allowed to be in the ownership of civilians? Policy agreements within the SADC region on matters such as these would greatly facilitate and enhance the harmonisation and implementation of legislation and law enforcement.
Harmonisation of legislation
Harmonisation is a major task. It requires far more extensive research than is currently available. The different legal systems and different resource capacities within SADC countries need to be considered. Legislative and even constitutional adjustments may be required in some cases.
Resources
The discussions in Vienna on the draft protocol against the illicit trafficking in firearms are largely being driven by the developed world. Criteria are being established which many developing countries will find difficult to abide by, or implement, because of a lack of resources and expertise. Countries in the SADC region should conduct a resource audit in order to establish whether they have the resources to move towards a regional approach on the legislative control of civilian owned firearms. An audit will enable the region to establish what forms of international assistance it will require to develop an approach that suits SADC and that is at the same time in line with international developments.
International developments
In the draft of the Vienna protocol on the trafficking in firearms, norms and definitions are being established with regard to the marking of firearms, mutual legal assistance, importing and exporting firearms, technical co-operation and so forth. If SADC countries were to embark now on a process of developing a regional approach towards the legal control of firearms, they would be able to take many of these internationally set standards on board and therefore benefit from international developments that are taking place. This would enhance the legal and technical expertise, as well as the legislation in SADC countries.
If SARPCCO had started its initiative on the harmonisation of legislation after the Vienna discussions on the protocol had commenced, its work would probably have been closer aligned to the Vienna process. There is no doubt that the entire initiative would have fitted more closely into that process.
The lessons that South Africa has learned over the past few months in developing new domestic legislation on the control of firearms, have been considerably informed by international experiences and developments. More was learned about the importance of the process and the fact that clarity on policy should precede attempts to deal with details in legislation. These lessons can also be applied at a regional level, without suggesting that SARPCCO should aim to have uniform legislation in different SADC countries. It is highly unlikely that this will be the case as circumstances and needs are too divergent. It is, however, within the reach of SADC and SARPCCO to develop a set of common principles and basic policy positions to enable the region to operate in unison when considering the effective internal control of civilian possession of firearms.
Discussion
Regional policy
There was general agreement that an effective regional policy to control weapons possession and transfer is essential. It was suggested that the SARPCCO legal subcommittee was the appropriate forum in which this should be discussed. It was hoped that agreement on a regional policy could be reached fairly quickly and that a process for the harmonisation of legislation would follow from this.
It was noted that there was a general lack of awareness of the different controls on weapons possession and transfer that functioned within the countries in the region. There is a need for a wide debate on establishing norms, raising awareness and information exchange. Questions which need to be addressed, include: Is it legitimate to hold firearms for self-defence, or should they just be for hunting and sporting purposes? Should civilians be able to trade in firearms? Should off-duty police officers be allowed to take weapons home? It was remarked that, in Cambodia, for example, nobody under the rank of a senior colonel was allowed to take a firearm home.
This debate should go beyond the region as well. It was pointed out that supplier countries may often be unaware, for example, of the controls on end-use which exist in importing countries. Increased knowledge of the different systems in operation is vital to combat proliferation.
Research
Many participants felt that more research was needed on civil society’s attitudes to gun ownership, trafficking and violence. It was stressed that such research should be seen as an important element of the practical projects which were needed for the implementation of the action programme. This research would inform legislation and social research across the region could support the development of a common policy.
Culture of violence
The need for an holistic approach was emphasised. Researchers pointed out that incidents of gun violence vary considerably between regions, despite uniform legislation. Social and cultural factors may provide reasons for this that need to be addressed simultaneously with the enhancing of legal controls.
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