News agency, Cape Town, South Africa
Wednesday November 14th 2018

SA mercenary legislation remains toothless

South Africa remains a major exporter of mercenaries and security contractors, say security industry sources, yet legislation signed by Thabo Mbeki in 2007 to prevent this remains unenforced.The 2006 Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, which came about shortly after the ill-fated 2004 attempt by mercenary firm Executive Outcomes to effect a coup in Equatorial Guinea, aims to prohibit South Africans from engaging in mercenary activity and to regulate the provision of security services in countries of armed conflict.

Yet delays in the issuing of regulations means the Act is not enforced while a well-placed source in the private security industry said as many as 450 000 South Africans are working in conflict areas, although how many of them are working in a military or security capacity is unknown.

Just last week the UN ‘Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination’ visited South Africa to review legislation surrounding recruitment by private military and security companies and to find out what the problem was in implementing the 2006 Act.

Following its discussions with government and civil society, UN Working Group chairperson Alexander Nikitin diplomatically said: “The Government of South Africa should pursue its efforts to strengthen the regulatory framework for private military and security companies exporting their services abroad.”

Member of the Working Group, Jose Gomez del Prado, said since the end of apartheid South Africans have been widely employed by private military and security companies operating around the world.

He said it was for this reason that South Africa was one of the first countries to adopt legislation to deal with the issue and “must be commended for that”.

Yet South Africa continues to be a major source of contractors to conflict ridden countries in Africa and the Middle East. Jobs range from non-military technicians and artisans to providing high security protection of mines and oil refineries, private body guards, assisting troops in Afghanistan and Pakistan, and combating piracy on the East African seas.

Some of these activities could be in violation of the 1998 Regulation of Foreign Military Assistance Act prohibiting mercenary activity and regulating the provision of military assistance, said Chris Macadam of the National Prosecuting Authority Priority Crimes Litigation Unit.

“This Act would therefore apply to security companies if in fact they do render military assistance to a party to an armed conflict without a permit issued by the National Conventional Arms Control Committee,” he said.

But senior researcher at the Institute for Security Studies, Sabelo Gumedze, said that the 1998 Act was “not helpful and effective” when it came to prosecution and was in effect replaced by the 2006 Act.

A fine line exists between private military and private security companies. Although some companies would call themselves private security companies, they would also be involved in military services, said Gumedze.

It was a line so fine that the UN did not distinguish between them, said president of the Pan African Security Association (PASA) Chris Greyling.

PASA members only provided security for legitimate governments, he said, and had “nothing to do with the conflict” in these countries.

Yet details on the nature of the work, and the exact numbers of South Africans employed in conflict areas remains sketchy, with Brian Dube, media liaison at the Ministry for State Security saying “we don’t have those figures”.

Michael Bolhuis, a specialist investigator who owns a security company which specializes in investigating crimes in South Africa, said there were a number of private military and security companies (PMSCs) in South Africa recruiting South Africans to work in conflict areas.

But he said most were not willing to divulge any information for fear of being exposed.

“There are many loopholes for private military and security companies and many are operating in grey areas. It is necessary to regulate this at an international level,” said del Prado.

Once South Africa’s 2006 Act is enforced, it would require a South African intending to work for a private military and security company to get authorization from the South African government.

But Greyling said he did not think the Act would affect private security companies.

“The Act and the legitimate operations of private security companies have nothing in common. Private security companies contract mainly with governments and large corporations and especially those that support the COC (Code of Conduct), as they supported the entire process to clean up the industry of mostly negative perceptions,” he said.

A South African man who declined to be named, who worked in security and in maintenance and construction in Iraq and Afghanistan, said even if the Act was enforced people would ignore it due to the lucrative nature of the work.

“If I get a job again, I will definitely go back. But once this Act is enforced I will find out what is legal and what is illegal and see what I can get away with,” he said.

Head of Communication for Department of Defense, Siphiwe Dlamini said that there were a number of technicalities around the wording of the Act and a number of regulations still needed to be looked at. When asked why it was a problem for South Africans to work in security in conflict areas, he said “to regulate and make sure that South Africans do not participate in mercenary work.” — Fadela Slamdien, West Cape News

Tags: armed conflict, conflict areas, equatorial guinea, executive outcomes, government of south africa, mercenaries, private security industry, security contractors, thabo mbeki

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