Mandela could legitimately claim that taking up weapons was a last resort to bring down a violent and racist regime. Terre’Blanche could claim that the carrying of weapons was necessary to protect the rights, property and security of a group of people who perceived themselves as being under siege.
More broadly, AK-47s were vital to the liberation of the African continent, but have become the calling card of terrorists and organised criminals in post-colonial Africa. The point is that guns as such are value neutral. The context and purpose of their ownership and usage is moot.
The failure to recognise this distinction is the cardinal problem with the current firearms control amendment (FCA) bill, which, among other things, seeks to ban the ownership of guns for self-protection. The most glaring contradiction of the bill is the assumption that law-abiding licenced gun owners are responsible for violent crime.
The FCA bill is ill conceived, has not followed due process, is irrational and is constitutionally challengeable.
Independent research by the Wits School of Governance commissioned by the Civilian Secretariat for Police in 2015 and 2016 underpinned the bill but failed to provide the empirical evidence sought by the police to justify the bill and less still its draconian content.
A raft of Public Access to Information Act applications finally resulted in the Civilian Secretariat publishing the research reports’ availability late on Friday 25 June. This was just more than a week before the initial cut-off date for public submissions on the bill.
The socio-economic impact assessment conducted to frame the bill is outdated, contradictory and wholly inadequate. Dated 2016, yet quoting 2017 statistics, the impact assessment was drafted under the aegis of a police minister in Jacob Zuma’s administration and this alone should raise concerns.
The assessment’s stated purpose is to help drafters avoid finalising an inappropriate solution or selecting a strategy “without adequately analysing the roots of the problem”. If the purported problem is gun crime, then the assessment neither analyses the roots of the problem, nor recommends an appropriate solution.
Rather than recommending the banning of gun ownership for self-defence (as the FCA bill does), the impact assessment recommends the need for stricter licencing regimes, renewals and competence testing.
Paradoxically, in attempting to justify stricter gun control legislation, the impact assessment identifies the key underlying issue as highlighted by the 2030 National Development Plan, “Personal safety is a human right. It is a necessary condition for human development, improved quality of life and enhances productivity.”
“When communities do not feel safe and live in fear, the country’s economic development and the people’s well-being are affected,” it noted. Yet it is exactly this social fear that the bill and its impact assessment fail to address.
Socio-economic impact assessments are required to consult with those stakeholders affected by the proposed legislation. There is no evidence of the drafters of the assessment consulting with victims of violent crime, whether gender-based violence or farm attacks, home invasions or less still those involved in either the legal firearms or hunting sectors.
While the right to own a firearm is not entrenched within the South African constitution, the right to property is, although this too is currently under threat. Section nine of the constitution entrenches equality before the law and thus, firearm owners cannot be discriminated against.
The FCA bill appears to be in conflict with other clauses of the constitution protecting the freedom of association, freedom of trade, occupation and profession as well as with a host of other laws, including the Promotion of Administrative Justice Act.
The FCA bill may also fail to pass muster when tested against Section 33 of the constitution dealing with just administration, which guarantees the right of every individual to administration that is lawful, reasonable and procedurally fair.
The explanatory memorandum to the FCA bill highlights the threat caused by and consequences of the loss of privately-owned firearms. This concern is legitimate and requires urgent attention. Yet the Civilian Secretariat research reports that 2 167 firearms were lost or stolen from police members between 2016 and 2019. The report notes that, “The negligence by law enforcement officials is a serious indictment on the [police] and results in poor trust in the police as the police are meant to uphold the law.”
The report goes on to identify negligence, an unsafe and mismanaged policing environment and poor training as causes for such losses. Police firearms were stolen from under mattresses, under couches, forgotten in wardrobes or left in toilets. Spare keys for firearm safes were found to be left in insecure areas. Moreover, police collusion with criminals and gangsters in the sale of firearms is well-documented. In one case alone, former police officer, Christiaan Prinsloo, sold 2 400 firearms to gangs in the Western Cape.
Moreover, in June this year, the Institute of Security Studies noted that the police “have not made any significant progress in rooting out illegal firearms”.
The current wave of criminality, looting and destruction that is sweeping parts of KwaZulu-Natal and Gauteng has exposed the inadequacy of the police to deal with violent crime and has propelled private citizens to place their own lives at risk to protect property and livelihoods. If passed into law, the FCA bill would in effect remove the final line of defence for law-abiding citizens whose lives are under threat from violent criminals while our country burns.
The state has an obligation to protect all of its citizens, but this duty is amplified with respect to the most vulnerable. In this regard South Africa’s global topping crime statistics demonstrate that the government is failing in its most fundamental duty and, if passed into law, the FCA bill will compound this failure.