Since 1994 the ANC-led South African government has taken important steps toward meeting the aspirations of its own citizens, and the requirements of international law. It also has been a leader in addressing the human rights problems posed by some types of weapons and by unscrupulous private individuals and companies.
Yet, the gaps and inconsistencies between theory and application in South Africa's arms export have become a source of concern for many South Africans, even outside specialized circles. In a 1999 survey conducted by the Institute for Global Dialogue and the Stellenbosch University Department of Political Science, ninety-one percent of the 3,500 respondents either said they did not want their government to sell arms at all (thirty-eight percent) or would only accept these sales under strict humanitarian conditions (fifty-three percent). Only nine percent of the respondents (mostly white, male, and affluent) declared that South Africa should sell its weapons to whomever would pay.218
The examples cited above indicate that more is needed. In particular, Human Rights Watch considers that the following are critical elements in the completion of South Africa's arms export control regime and its application.
A Statutory Framework
Until legislation incorporating the relevant principles and code of conduct is passed into law, the NCACC process of approving arms sales depends on the political commitment of its members to human rights considerations. The power of public opinion to shape the outcome is limited because information on arms exports is made available only after deals have been concluded. This state of affairs cannot guarantee that the government will abide by its own stated commitments; it does not allow other interested parties to mount legal challenges to arms trade decisions; nor does it provide for records to be made available under the Promotion of Access to Information Act (taking advantage of the provision granting access to a record if the disclosure demonstrates a failure to comply with the law). Human Rights Watch believes, therefore, that a statutory framework codifying the government's arms export policy is essential and urgent, and that the Conventional Arms Control Bill must be redrafted accordingly and enacted.
Strengthened Human Rights Input
Human Rights Watch considers that decisions in relation to arms sales are so intimately connected to the question of who will use the weapons and for what purpose, that human rights considerations must be the foremost priority in shaping an arms trade regime. While South Africa has taken important steps to integrate human rights concerns into the decision-making process, it is clear that economic and political considerations have on occasion outweighed human rights concerns. To some extent, this imbalance can be attributed to the differing political strengths within government of the Department of Defence, the Department of Trade and Industry, and the Department of Foreign Affairs. At least part of the solution to ensuring the centrality of human rights issues must be the strengthening of the human rights unit in the Department of Foreign Affairs, both institutionally and in terms of capacity, to enable it to make thorough assessments of the human rights implications of arms transfers (and other policies), and for those assessments to be given greater weight within the framework of the NCACC.
Increased Outside Involvement in Arms Trade Decisions
South African government officials have often indicated their commitment to expanding the range of those involved in forming foreign policy generally and arms trade policy in particular. Parliamentarians, civil society representatives, academics, and other experts were closely involved in the debate leading to the adoption of the 1996 White Paper on Defence, but this was not the case with respect to the development of the 1999 White Paper on Defence-Related Industries, and the only parliamentary hearings scheduled on the proposed CAC Bill before its withdrawal were closed to the public. In addition, there has been little if any consultation outside the executive branch of government when it comes to individual decisions to supply weapons.
Arms trade policy is most likely to comply with international and domestic human rights standards when it is debated among a wide spectrum of individuals and institutions. Decisions that the government cannot justify to its own parliamentarians and national human rights institutions or to South African nongovernmental organizations are unlikely to be good decisions in human rights terms.
Similarly, full disclosure of concluded arms trade transactions both within South Africa and to institutions such as the U.N. register offers important guarantees for the protection of human rights. South Africa has moved towards greater openness in its arms trade, yet it has not committed itself to full transparency. Human Rights Watch believes it should remove the self-imposed restrictions on reporting to the U.N. register, and also include in its domestic publication of arms sales details of quantities of weapons sold and the specific types of weapons involved. The government should also adopt legislation to ensure that restrictions on access on information do not unduly limit transparency and public accountability with regard to arms transfers. It should likewise fulfil its stated commitment to the creation of an independent inspectorate for defense-related industries whose duties would include monitoring implementation of government policy with respect to arms trade controls and reporting regularly to parliament.218 Quoted in Commonwealth Human Rights Initiative, Over a Barrel, p. 192