FIREARMS CONTROL BILL (B34-2000)

Submission to the Portfolio Committee on Safety and Security

Summary

The SACC strongly supports the Firearms Control Bill as a crucial component of a strategy to halt gun violence and to protect constitutional rights to life, security, and freedom from violence. We take this opportunity to raise concerns about the criteria for the issuing of a competency certificate; the number of weapons permitted for self-defence; accreditation of training institutions; controls on the export of firearms and ammunition; the criteria for the issuing of firearms permit to an employee of an exempted official institution; the procedure and criteria associated with a declaration of unfitness to possess a firearm; and certain transitional provisions. We also propose the establishment of a government buy-back programme during the transitional period to reduce the number of firearms in circulation.

1.0 Introduction

1.1 The South African Council of Churches (SACC) is the facilitating body for a fellowship of 24 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and some Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate .

1.2 The SACC strongly supports new legislation to control the proliferation of guns and gun violence in our society. As Christians, we believe that all human beings are created in God's image and are equally worthy of respect and dignity. We are called to affirm the value of life and to work to ensure that all of God's people can realise and enjoy Christ's promise of "life abundant". Yet in virtually every community across South Africa, we have seen how violence--and gun violence in particular--have undermined security, robbing people of their right to live free of fear.

1.3 Our congregations witness the destruction wrought by firearms on a daily basis. All too frequently, our ministers are being called upon to conduct funeral services for victims of gun violence--even young children. Current data indicates that firearms kill 33 people each and every day in South Africa, and this figure has been rising steadily in recent years. Poor communities are typically the most vulnerable to gun violence. In situations of domestic violence, the ready availability of firearms places women and children in even greater jeopardy. Contrary to the common belief that guns enhance safety, South Africa's recent experiences confirm evidence from other jurisdictions the proliferation of firearms correlates strongly with an increase in violence and insecurity.

1.4 The existing apartheid-era Arms and Ammunition Act is clearly inadequate to address the problem. It is necessary to introduce a much more extensive and effective system of control over gun ownership and use.

1.5 The SACC strongly supports the Firearms Control Bill (hereafter "the Bill") as a major improvement on the existing legislation. We particularly endorse:

• the introduction of certificates of competency (as defined in sections 11-12) as an additional measure to ensure responsible gun ownership;
• the restriction on the total number of firearm licences that may ordinarily be held by an individual (sec. 17(3));
• the provisions for the regular renewal of licences (secs. 27, 38, 51, and 66);
• the establishment of a central firearms database (sec. 33);
• the prohibition of unlicensed dealing in firearms (sec. 34); and
• the provisions for the establishment of firearm free zones (sec. 143)

1.6 Our endorsement of the bill in not unqualified, however. We have reservations about several aspects of the legislation including:

• the criteria for the issuing of a competency certificate;
• the number of firearms that may ordinarily be licensed to a person for self-defence;
• the effectiveness of controls on the export of firearms and ammunition;
• the criteria for the issuing of firearms permit to an employee of an official institution;
• the procedure and criteria associated with a declaration of unfitness to possess a firearm; and
• certain transitional provisions (the sanction of disposal of excess firearms by private sale during the five-year transitional period, exemption from training on renewal).

2.0 Criteria for competency certificates

2.1 Competency certificates are an extremely valuable innovation that should prevent many unstable, violent, or unsuitably trained people from obtaining firearms in the first place. Section 11(2) contains an extensive list of requirements for which an applicant must meet to demonstrate her or his competency to possess a firearm. These deal primarily with demographics (at least 18 years old and a South African citizen or permanent resident), knowledge (successful completion of prescribed tests and training), and behaviour (mentally stable without a record of crime or violence).

2.2 We agree that conviction for any of the offences listed (violent offences--including domestic violence, offences involving a firearm, fraud, and alcohol and drug-related offences) should all disqualify a person from receiving a competency certificate. However, we are concerned that, in terms of section 11(3) only convictions that earn a sentence of more than six months imprisonment without the option of a fine constitute "offences". Any conviction for a violent or firearms-related crime should render the perpetrator ineligible to obtain a firearm. We therefore recommend the deletion of section 11(3)(a).

2.3 Similarly, while we endorse the disqualification of individuals who have been the subject of a final protection order in terms of the Domestic Violence Act, we also feel that, as a precaution, individuals should not be permitted to obtain new firearms when they are the subject of a temporary restraining order. However, since temporary protection orders are issued without a right of reply, a temporary protection order should not become a long-term disqualification unless it is subsequently confirmed by a permanent order. We therefore recommend the insertion of a new clause 11(2)(mA):

3.0 Licences for Self-Defence

3.1 The draft version of the Bill permitted a competent individual to possess a single firearm for self-defence. The current version, as introduced, increases this limit to two weapons, no more than one of which may be a handgun.

3.2 We appreciate the Bill's particular emphasis on controlling the proliferation of handguns, given their close association with incidents of gun violence. However, we believe that, in most cases where individuals feel that they require a gun for self-defence, a single gun should suffice. If provision must be made for an individual to possess a second (non-restricted) firearm for protection in exceptional circumstances, then the applicant should be required to explain why a single gun affords inadequate protection, just as she or he would be required to do if applying for a licence for a restricted firearm in terms of section 16(3).

4.0 Training and accreditation

4.1 We recognise that applicants for competency certificates will be required to demonstrate that they have completed the prescribed training and tests on the safe handling of a firearm and the relevant provisions of legislation [secs. 11(2)(n), (o) and (q)]. We also note that the Registrar is empowered to issue and cancel accreditations in accordance with regulations issued by the Minister of Safety and Security [sec. 10]. However, there appears to be no provision in the bill requiring that testing and training be done by an accredited institution.

4.2 Such a provision is too important to leave to regulations. We suggest that it be incorporated into sections 11(2)(n), (o) and (q):

5.0 Export controls

5.1 Section 76 prohibits the export of firearms or ammunition from South Africa without an export permit issued in terms of this legislation. In the draft version of the Bill, the granting of an export permit was contingent on the approval of the National Conventional Arms Control Committee (NCACC) [draft bill, sec. 80(3)]. This requirement has been deleted from the certified version.

5.2 Although a "User's Note" that accompanied the certified version points out that "the referral of exports of large quantities of commercial firearms to the NCACC will still take place on an administrative basis," we believe that this non-binding assurance is inadequate. All applications for arms export permits must be reviewed by an independent body which includes significant civil society representation.

5.3 In our previous submission on the draft bill, we endorsed the NCACC's written criteria for approving arms exports but noted that the implementation of these principles has been lax. We further expressed a preference for a complete prohibition on arms exports and the conversion of the domestic armaments industry to peaceful civilian purposes. However, we called, at a minimum, for the codification of the NCACC guidelines and the establishment of an independent commission, controlled by representatives of civil society, to rule on applications for weapons export licences.

5.4 Far from advancing these objectives, eliminating the obligation to secure NCACC approval for arms exports merely invites further erosion of public oversight. Therefore, we strongly urge that section 80(3) of the draft bill be reinstated as section 79(2) of the current Bill.

6.0 Firearm permits for employees of "official institutions"

6.1 In terms of Chapter 11 of the bill, the SANDF, SAPS, Department of Correctional Services, intelligence services, and state arms acquisition agency are "official institutions" and are exempt from most provisions of the legislation.

6.2 Section 101(2) enables the head of each of these bodies to issue permits to its employees, authorising them to possess and use a firearm owned by the institution. Section 101(8) requires only that the head of the institution be satisfied that the employee is a "fit and proper person to possess that firearm" and that he or she has completed the prescribed training and test for the safe use of the firearm.

6.3 Thus, an individual could legally obtain a permit to use a firearm belonging to an official institution, even if he or she is deemed unfit or incompetent to possess a firearm in terms of other provisions of the legislation. To avoid this scenario, we recommend that section 101(8) be amended to read:

7.0 Declaration of unfitness

7.1 Chapter 12 enables the Registrar or the courts to declare a person unfit to possess a firearm. We fully support this concept, but do not believe the Registrar's powers should be wholly discretionary. Section 105(1) says that the Registrar may declare a person unfit in certain circumstances (a final protection order is issued against the person in terms of the Domestic Violence Act, mental instability, negligence with a firearm, threatening behaviour, etc.). We believe that, when any of the listed conditions apply, the declaration of unfitness should be automatic. We would therefore wish to see the opening of section 105(1) amended to read: The Registrar must declare a person unfit ...

7.2 Section 106(1) lists a series of offences which, upon conviction, will cause a perpetrator to be declared unfit to possess a firearm. Section 106(3) requires a court which convicts a person of certain crimes--listed in Schedule 2 of the bill--to consider whether that person should also be declared unfit to possess a firearm. All declarations of unfitness lapse after five years in terms of section 107(6).

7.3 The lists of offences in section 106(1) and schedule two overlap, creating some confusion. For example, should a person who is found guilty of rape and given a long prison sentence be declared unfit to possess a firearm automatically [in terms of section 106(1)(g)], or should the conviction simply prompt a judicial inquiry [in terms of section 106(3)]? Presumably, section 106(1) takes precedence over section 106(3) such that if both sections are relevant to a particular situation, the former (automatic disqualification) applies. But this should be more explicitly spelled out.

7.4 Furthermore, we believe that five years is too short a duration for a declaration of unfitness, especially given that a violator's period of unfitness commences with conviction rather than with completion of sentence. This means that a declaration of unfitness would be completely irrelevant for anyone serving more than five years. We hold that, in light of the serious nature of the offences listed in section 106(1), automatic declarations of unfitness made in terms of this section should be permanent. Consequently, we propose that section 107(6) be amended to read:

8.0 Transitional provisions

8.1 Item 1(2) of the Transitional Provisions listed in Schedule 1 requires individuals who possess an unlawfully large number of firearms to dispose of them in a lawful manner within five years. However, it also suspends the section 34(2) requirement that such weapons be sold through a licensed dealer.

8.2 While we recognise that any vendor (whether a private seller or a dealer) will be subject to severe penalties in terms of section 123(11)(a) if she or he sells a firearm to an ineligible person, we believe it would be preferable for all weapons sales to take place through licensed dealers at the earliest practicable moment. Consequently, we would support the deletion of item 1(2)(b) of Schedule 1.

8.3 Furthermore, we are concerned that this approach will not reduce the total number of firearms in circulation in our society. Such a reduction should be a key priority of this legislation. We therefore propose that gun owners who currently possess more than the lawful number of weapons be required to surrender their excess firearms to the State, with compensation (as per the provisions of Chapter 19).

8.4 It may be argued that such a buy-back programme will place an unworkable financial burden on the state. However, this would not be a one-off expense, not a long-term drain on the fiscus. We note that the government has recently raised loans totalling R30 billion to underwrite the purchase of weapons. We submit that a firearm buy-back programme would be a much more socially beneficial expenditure.

8.5 Similarly, item 11(3) exempts current licence holders from undergoing training and practical tests in the safe use of a firearm when applying for a licence in terms of the new Act. However, there is no guarantee that current licence holders are necessarily competent gun users or--more especially--that they will familiarise themselves with the provisions of the new Act without an incentive to do so. Consequently, we propose the deletion of item 11(3) of schedule 1.

9.0 Technical matters

9.1 The definitions of "airgun" and "specially dangerous airgun" overlap in that an airgun with a calibre of .22 or higher but with a muzzle energy between 0.7 and 8 joules falls into both definitions. This creates a number of problems--not the least of which is determining whether or not such a device (if it exists) is a firearm or not in terms of section 5(1)(f).

9.2 Section 3 of the draft bill prohibited a person from possessing any firearm unless he or she had a valid licence for that firearm or unless he or she had a dealer's licence, manufacturer's licence, gunsmith's licence, import/export/transit permit or was otherwise authorised to do so in terms of the Act. In the tabled Bill, this general prohibition has been collapsed to "No person may possess a firearm unless he or she holds a licence, permit or authorisation issued in terms of this Act for that firearm." While we appreciate the tighter language, it is unclear how a licensed gun owner could legally entrust a firearm to a gunsmith for repair or (approved) alteration. Section 25 (enabling a licensed owner to allow another person to use her or his gun under her or his direct supervision) seems inapplicable. Section 24, which allows the registrar to issue a temporary authorisation to possess a firearm--and requires the Registrar to report annually on all authorisations issued--involves an unduly onerous process.

9.3 Section 123(2) of the Bill states: "Any person who remains in the vicinity of a firearm or ammunition which is not in the possession of any person, under circumstances where he or she must have been aware of the existence of that firearm or ammunition, is guilty of an offence." The provision is ambiguous, in part because key terms are not clearly defined. Does "in the possession" refer only to legal possession? Does it mean "carrying" or merely "belonging to"? Either interpretation is fraught with problems: the former would prohibit a person from inspecting a public collection, while the latter would allow a person to handle a stolen firearm with impunity. How close must a person be to be "in the vicinity" of a firearm? We suggest that the Committee reconsider the wording of this clause. 12 June 2000

This information is produced by the Public Policy Liaison Office of the South African Council of Churches. The Public Policy Liaison Office monitors and analyzes key public policy issues under consideration by parliament and government ministries, alerts government to the concerns of the SACC, and assists people of faith to be more familiar with and involved in public policy debates.