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Not for the faint-hearted

It was a clash of titans. African National Congress MP Thandi Modise in the one corner, Kader Asmal in the other. Modise, who is the chairperson of the parliamentary defence committee, wanted Parliament to have prospective oversight over arms exports; Asmal, the chair-person of the national conventional arms control committee (NCACC) of Cabinet, was having none

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by Richard Calland

of it.

Modise is the sort of woman to tell a man like Asmal to bugger off, and Asmal is the sort of man to tell a woman like Modise to ”get real”. She is a tough cookie, with a formidable mind. But Asmal is a seasoned operator, and the power is with the executive.

They won; she lost, and she has clearly been wounded by ending up on the losing side of what was a bruising encounter.

The drafting of the National Conventional Arms Control Act, concluded by her committee two weeks ago, legislates a system that was, in essence, introduced when the NCACC was first established soon after 1994.

Asmal was also the first chair- person of the parliamentary ethics committee and remains head of the ANC’s disciplinary committee, begging the question why does he get all these knotty ethical jobs — is it a compliment to his pragmatic saga-city, or is someone out to get him?

He is a passionate advocate for a policy that does not sell arms to ”all comers” but does so on the basis of carefully considered and applied criteria, such as whether the purchasing state is likely to use the arms for internal repression. He has been centrally involved in the development of this system and as is his wont, feels that he is not only rather knowledgeable about the subject matter but also tremendously well-placed at managing the competing interests, which include South Africa’s own economic interest in arms sales as well as the right to self-determination that all states enjoy under international law.

He does not, it seems, trust Parliament’s capacity for such a difficult balancing act, which is why he and Minister of Defence Mosiuoa Lekota objected so strongly to Modise putting in a clause giving Parliament prospective oversight over arms sales.

Their line is that such oversight would usurp the role of the executive and thereby confuse the separation of powers between the two branches of government.

Nonsense! The law creates a new system of licencing. People who want to sell arms to country X, must first of all apply to a special inspectorate, which must, in turn, seek the approval of the NCACC before issuing the licence. Modise’s committee was not suggesting that Parliament issue the licences, but that it look at the decisions of the NCACC and make recommendations as to whether it has applied the criteria set out in Section 15 of the new law appropriately — a persuasive, not mandatory, form of oversight.

As Modise says, ”We are not selling bricks here, we are selling arms and my question to the ministers is after the arms have gone can we bring them back? They will not answer that.”

They can’t because the answer is no. You can’t bring a life back once it has been taken, argues Laurie Nathan, head of the Centre for Conflict Resolution. Asmal probably regards Nathan as a moral lodestar and, therefore, as a pain in the ass. The difference is that unlike some ministers one can think of he understands the role and importance of such people. ”There is a place for sentiment, but not sentimentality,” is how Asmal puts it.

Arms exports is a special case, requiring special levels of checks and balances, say Modise and Nathan. Asmal points out that only Sweden and the United States in certain cases have prospective oversight, sales above $10-million in the latter case. In the past couple of years, South Africa has sold that level or more to Algeria, Germany, India and the United Arab Emirates, according to the annual report that has finally been provided by the NCACC to Parliament.

When licences are rejected, the putative importing state is not named, because, says Asmal, things can change quickly. But, if you read the report, you will notice that no arms have been sold recently to Columbia or Sri Lanka, and that Israel left the list a year ago.

Would South Africa sell to Palestine? ”They have not asked, but we would look at it,” says Asmal, ”we take each case on its merits”, and he attaches great weight to the fact that the NCACC has 11 ministers and meets monthly. No other country puts that amount of top-level executive energy into implementing such a policy, he claims.

A morning spent in the company of Modise’s committee provokes mixed emotions. The question is whether to applaud, laugh or cry. Mr Marais, a key bureaucrat from the arms export directorate, kept on saying ”but that’s not how we do it”, provoking Modise to remind him, firmly, that she is the lawmaker and she and her colleagues are deciding how it will be done in the future.

You can see that he does not quite get it; parliamentary democracy and transparency in arms sales are a bit beyond him, shame, while you also sense that Modise derives real pleasure from these moments of castigation, and who can blame her.

She uses humour to break the tension, often in Afrikaans. She has New National Party MPs Messrs Blaas and Ousthuisen eating out of her hand. Occasionally, the latter has the temerity to offer a view that is different from the ANC. But when it is put to the vote minutes later, his is the first hand in the air in support of the ANC line.

Perhaps it’s their upbringing, but now they are in alliance with the ANC they are the most pathetically obedient bedfellows.

Meanwhile, with the exception of Lulu Xingwana who raises pertinent questions and who Modise fears she is about to lose from the committee, the ANC members sit silently, like they always do once the executive has put the shutters down on an issue.

If you want to see MPs at work and be entertained at the same time, I recommend it. For this is where the real action is. The National Assembly debates, which you can watch on TV, rarely offer more than mediocre theatrics, puerile exchanges between the ANC and the Democratic Alliance, and boringly delivered set-piece speeches. Modise, for one, detests them.

This is a problem for Madam Speaker, Frene Ginwala, who presides over them and may explain why she has been singularly unsuccessful in finding a way to resource the committees properly. Some committee chairs from her own party are convinced this is no accident. Ginwala does not want them to be too strong because it would detract further from ”her chamber” and paradoxically she is in any case dinstinctly executive-minded.

This is a serious charge, and I expect Ginwala to defend her record robustly. But why is it that the defence committee has no expert research capacity? Eight years into the new democracy and, despite an injection of cash from the European Union, the committee chairs still have to beg, borrow and steal to acquire the support they need to do their job properly.

Strong committee chairs like Modise and Johnny de Lange of the justice committee are working their socks off to give Parliament a meaningful role. They probably don’t know whether to be honoured or hurt by the fact that they have not been ”promoted” to the executive. But given the example of, say, Manto Tshabalala-Msimang, who was a hapless chairperson of the health committee, they ought to feel honoured. In contrast to her, they are truly great parliamentarians pushing, like Sisyphus, a dauntingly large ball up a long pot-holed hill. It is not a job for the faint-hearted.

Archive: Previous columns by Richard Calland

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Richard Calland
Richard Calland is an associate professor in public law at the University of Cape Town and a founding partner of the Paternoster Group.

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