On Sunday, 2 August, the defence and veterans' affairs spokesperson of the Democratic Alliance (DA), held a media conference in Cape Town in which he suggested that South Africa's arms export control regime was in a state of crisis. He also accused the South African government of approving and/or considering the approval of permits to export arms and military equipment to "dodgy" destinations. Iran, Libya, North Korea, Syria, Venezuela and Zimbabwe were mentioned during the DA media conference.
Ironically, South Africa has one of the most advanced and progressive arms export laws and processes in Africa, cornerstones of which, on paper at least, are transparency and human rights considerations. The National Conventional Arms Control Act (as amended) requires the South African government to publish annual reports on its arms exports, and to take human rights considerations of the recipient government (amongst other criteria) into account before approving arms exports. However, in recent years, the South African government appears to have not consistently adhered to these two principles. The reasons for this state of affairs remains a mystery.
Why is transparency of the arms export decision-making processes important? Firstly, in a democracy citizens should be able to hold their elected officials to account for their actions, and for the manner in which public funds are used. The South African arms industry is subsidised from the government purse, which is largely drawn from tax revenue. In addition, as arms exports are one of the more destructive elements of a government's foreign policy, it is crucial that relevant information is made publicly available in order to ensure effective accountability of government to the people. Secondly, transparency mechanisms tend to keep governments honest by helping to assure their adherence to national arms export principles and criteria, international arms control treaties and conventions, and relevant United Nations Security Council resolutions. Thirdly, transparency has the potential to enhance regional and international peace and security by building confidence between states, as sharing of information reduces incidences of suspicion and misperception, which could otherwise lead to inter-state conflict.
The transfer of arms and military equipment into contexts characterised by significant cases of human rights abuses is highly problematic as it can lead to an escalation in such human rights abuses and further exacerbate internal repression. Conflict management, peacekeeping and human rights promotion are key features of South Africa's foreign policy. For example, South Africa has mediated peace processes in some of Africa's most complex violent conflicts and has deployed peacekeepers into arguably the most dangerous territories in Africa.
Secrecy under apartheid and the emergence of more principled approach
The current arms export regime is 13 years old and contrasts significantly to the practice under apartheid. During the apartheid era the South African arms trade was shrouded in a blanket of secrecy. Few considerations, other than profit, guided South Africa's arms export practice. As revealed by the Cameron Commission of Inquiry, which was established in the mid-1990s by Nelson Mandela to investigate the nature of the South African arms trade during the 1970s and 1980s, the South African government sold arms to numerous pariah regimes and rebel groups. For example, South African transferred arms to UNITA in Angola and RENAMO in Mozambique.
The Cameron Commission recommended that: a cabinet committee on arms control be established to consider and approve arms export applications; South Africa's future arms export regime should be guided by human rights criteria; and arms exports should be subject to parliamentary (and consequently public) scrutiny. In response a Cabinet Memorandum was compiled which made provision for the establishment of the NCACC; stipulated that South Africa should not transfer arms to countries where serious human rights abuses and violations of fundamental freedoms are taking place, or to countries where the arms have the potential to destabilise a region; and required the NCACC to report all South African arms exports to parliament on an annual basis.
Between 1995 and 2002 the NCACC provided parliament with annual arms export reports. The NCACC also generally took the protection of human rights and regional stability into consideration in its deliberations over arms export considerations. Some decisions were nonetheless controversial, and resulted in substantial public criticism, such as the 1996 small arms transfer to Rwanda at a time when the Great Lakes region was on the brink of multi-state war, and the sale of armoured personnel carriers to Pakistan in 1999 shortly after a military coup (when most other arms exporters had suspended arms sales to Pakistan).
Following pressure from civil society organisations and the intervention of the Parliamentary Portfolio Committee on Defence, the National Conventional Arms Control Act was promulgated in 2002. The drafting of this legislation was however fraught with conflict between the Parliamentary Portfolio Committee on Defence and the NCACC, particularly with respect to the transparency and accountability aspects of the Act. The result was that the text of the Act was an unhappy compromise between the legislature and the executive branch of government. Nonetheless, the Act does require the NCACC to employ human rights protection criteria (amongst other considerations) when deliberating over arms export applications. The Act also requires the NCACC to provide parliament with annual export reports, which are to be available to the public.
At the time of writing, the NCACC had not had a meeting of all its members in over a year. The most recent annual arms export report that the NCACC publicly released was for 2004, but it was only released in 2007, in flagrant violation of the National Conventional Arms Control Act, which requires the NCACC to release the annual report by the end of the first quarter of the following year. The NCACC remained in arrears with regards the public release of the 2005, 2006, 2007 and 2008 annual arms export reports. Concerns have been raised by civil society organisations that South Africa may be returning to the apartheid era of secrecy in terms of the arms trade.
The 2004 arms export report did not indicate a significant departure in terms of past export trends to recipient countries. Algeria, Columbia, India and the United Arab Emirates remained the largest consumers of South African arms. However, the absence of one transaction from the 2004 report is a cause for concern. In early 2004 the South African government controversially agreed to transfer arms and riot control equipment to Haiti, at the height of internal strife in the Caribbean state. The arms and equipment were allegedly not delivered to the Haitian security forces due to the intensification of the armed conflict. It is a matter of concern that no reference to this incident appears in the 2004 report.
Defence industry sources have indicated that since 2004, South Africa has exported arms and military equipment to the Democratic Republic of Congo and Sudan, both of which are subject to partial UN Security Council arms embargos. Gross human rights violations have also taken place in these two countries. South African arms exports may very well not have been in violation of UN sanctions, and may even have been in support of peacekeeping missions in those countries. However, in the absence of publicly available information, the worst is suspected. Linked to this, the DA has accused the South African government of permitting a South African company to exhibit military equipment in North Korea. North Korea has been subject to a UN Security Council arms embargo since October 2006.
As there is no treaty or convention to govern the international arms trade, this sector is primarily regulated by means of national controls and trust. In terms of the latter, the established practice is that exporting governments require importing governments to sign an end-user certificate indicating that they will not re-sell or re-export the arms or military equipment. Evidence suggests that the South African government has approved the export of arms and military equipment to Venezuela and is considering the approval of arms exports to Zimbabwe. Both countries have been implicated in inconsistently adhering to end-user certificates and re-exporting arms to controversial destinations. In addition, Zimbabwe is subject to EU and US arms embargos. Should South Africa be selling arms to countries to cannot be trusted?
The international arms trade is notorious for dubious dealings. Corruption has tainted numerous arms deals, with the paying of bribes having become standard business practice for some defence companies. South Africa is no stranger to corruption and the arms industry, even on the export side. In recent years, Denel, the South African arms manufacturing parastatal has been prohibited by the Indian government from doing business in India due to allegations of bribery.
The need to go public
The DA is indeed correct that South Africa's arms export control regime is in a state of crisis, and that urgent action on the part of the South African cabinet is required. It is imperative that a NCACC meeting take place as a matter of priority, and that at this meeting it be resolved that the 2005, 2006, 2007 and 2008 arms export reports be publicly released. In addition, recent arms exports permit approvals and pending approvals should be carefully scrutinized to ensure that they conform to South African laws and South Africa's international obligations. Where there has been impropriety, appropriate action should be taken. In the absence of such actions South Africa's arms export regime will remain a destructive enigma undermining South African noble peacemaking efforts in Africa and elsewhere in the world.
Written by: Guy Lamb, Arms Management Programme, ISS Tshwane (Pretoria)