Keeping Current: The SADC Firearms Protocol Update

By: Gian Giezendanner and Miles Lovell

Though the causes and factors driving conflicts in the Southern African Development Community (SADC) region have varied over the past 20 years, illicit firearms and ammunition have continued to remain a common feature. In fact, the region suffers of one of the highest rates of violent deaths by firearms per 100,000 population in the world.

To tackle these issues, the SADC member states adopted the Protocol on the Control of Firearms, Ammunition, and other Related Materials (the SADC Firearms Protocol). They did this as early as August 2001 — the same year that the global Firearms Protocol, as well as the Programme of Action on Small Arms and its International Tracing Instrument were adopted. Twenty years later, in August 2020, the governments of all SADC member states renewed their commitment to prevent, combat, and eradicate the illicit manufacturing of firearms, ammunition and other related materials, and their excessive and destabilising accumulation, trafficking, possession and use in the region, by approving the amended SADC Firearms Protocol. SADC member states and the Southern African Regional Police Chiefs Cooperation Organisation (SARPCCO) sought to revise the instrument in order to reflect the relevant international developments that have taken place during the last two decades.

With support from the UN Trust Facility Supporting Cooperation on Arms Regulation (UNSCAR), the Small Arms Survey had the privilege to work with its partners at the SADC secretariat and from the member states to support regional efforts against illicit firearms. This, through assisting with the elaboration of a Strategy and Action Plan as well as revised Standard Operation Procedures — both of which will support SADC member states in implementing the revised SADC Firearms Protocol in the coming years.

The provisions at a glance

In support of this process and to identify gaps, lessons learned, and priority issues to be considered, SADC member states provided information on their level of implementation of the original protocol via a questionnaire, which was supplemented by information from their United Nations Programme of Actions (PoA) national reports.

Article 5 of the SADC Firearms Protocol (see below) outlines the legislative measures that each state should take in order to implement the instrument. Thus, collecting data on the implementation of this specific article provided a useful means to assess the region’s legislative progress on the Protocol as a whole.

Article 5 — Legislative Measures

1. State Parties shall enact the necessary legislation and take other measures to establish as criminal offences under their national law to prevent, combat and eradicate, the illicit manufacturing of firearms, ammunition and other related materials, and their excessive and destabilising accumulation, trafficking, possession and use.

2. State Parties shall enact the necessary legislation and take other measures to sanction criminally, civilly or administratively under their national law the violation of arms embargoes mandates by the Security Council of the United Nations;

3. State Parties further undertake to incorporate the following elements in their national laws as a matter of priority:

a. the prohibition of unrestricted possession of small arms by civilians;

b. the total prohibition of the possession and use of light weapons by civilians;

c. the co-ordination of procedures for the import, export and transit of firearms shipments;

d. the regulation and centralised registration of all civilian owned firearms in their territories;

e. measures ensuring that proper controls are exercised over the manufacturing of, possession and use of firearms, ammunition, and other related materials;

f. Provisions promoting legal uniformity and minimum standards in respect of the manufacture, control, possession, import, export and transfer of firearms, ammunition and other related materials;

g. Provisions ensuring the standardised marking and identification of firearms at the time of manufacture, import or export;

h. Provisions that adequately provide for the seizure, confiscation, and forfeiture to the State of all firearms, ammunition and other related materials manufactured or conveyed in transit without or in contravention of licences, permits, or written authority;

i. Provisions that ensure the effective control of firearms including the storage and usage thereof, competency testing of prospective firearms owners and restriction on owner’s rights to relinquish control, use, and possession of firearms, ammunition and other related materials;

j. The monitoring and auditing of licences held in a person’s possession, and the restriction on the number of firearms that may be owned by any person;

k. Provisions that prohibit the pawning and pledging of firearms, ammunition and other related materials;

l. Provisions that prohibit the misrepresentation of withholding of any information given with a view to obtain any licence or permit;

m. Provisions that regulate firearms brokering in the territories of State parties; and

n. Provisions that promote legal uniformity in the sphere of sentencing.

An Implementation Snapshot

Article 5 of the original SADC Firearms Protocol obliges states to enact legislation designed both to criminalise the illicit manufacturing of firearms, ammunition, and related material and to support and implement the various UN Security Council sanctions regimes. Furthermore, states are required to restrict civilian possession of firearms and ensure that proper control and legal authority is exercised over the entire supply chain. Enacting such legislation is at the core of implementing the other provisions of the SADC Firearms Protocol and as such is not only a crucial step towards implementation, but also a mandatory one. The development, implementation, and enforcement of robust arms control legislation is considered critical to reducing the illicit arms trade and the protection of civilians.

The most apparent result from our analysis is that, due to certain challenges, SADC member states have prioritised the implementation of certain elements of Article 5 over others. For example, 11 states indicated that they had established the following as criminal offences: the illicit manufacturing of firearms, ammunition and other related materials, and their excessive and destabilising accumulation, trafficking, possession, and use (under Article 5(1)). This, while only five states indicated that they had implemented some form of sanction, whether civil, administrative, or criminal, for the violation of UN Security Council Arms Embargoes (under Article 5(2)).

This pattern of mixed implementation was apparent also for Article 5(3), with all but three member states reporting that they had implemented procedures for the import, export, and transit of firearms, and only eight reporting that they had implemented some level of firearms brokering regulation. Several states also reported that the provisions requiring proper controls to be exercised over the manufacturing of firearms, ammunition, and other related materials were simply not a high priority for them, as they do not produce any of these goods domestically. While the standardisation of markings on firearms, both at the time of manufacture and at import, is critical to any state’s tracking and tracing efforts and requires significant investments in infrastructure and expertise, only four and seven states, respectively, reported having implemented any form of standardisation or common practice in their markings.

Current challenges and the way forward

Legislative development is often the indispensable first step in any implementation process as it lays the foundation for what is to follow. Yet, in the case of the SADC Firearms Protocol, incorporating it into domestic laws comes with a series of challenges, including budgetary constraints and a lack of technical expertise among member states. However, the legislative development does not need to happen in a political vacuum. On the contrary, states can look to their neighbours with already-existing legislation as a source of inspiration and an opportunity for international cooperation. Over the years, many member states have gained valuable experiences and lessons learned that they can share with others to support their processes and progress. By encouraging greater peer-to-peer information sharing, in addition to collaboration with specialised organisations that can provide the technical expertise, SADC member states can continue to successfully address the current gaps in implementation. This can further contribute to the harmonisation of legislative approaches and foster regional cooperation.

Often, gaps in national polices and legislation can greatly affect neighbouring countries, requiring more regional approaches to national challenges. The revision of the SADC Firearms Protocol’s Strategy and Action Plan provide an important impetus for the complete implementation of the revised Protocol and its related legislative development. Experience also shows the importance of addressing the firearms issue as a cross-government initiative — ideally coordinated, and guided by national committees. On a national level, established interagency mechanisms allow for coordinated and widely supported approaches. At the regional level, the SADC secretariat also plays an important role in supporting the actions of member states and in monitoring implementation of the SADC Firearms Protocol.

After twenty years of the SADC Firearms Protocol, there are effective practices, policies, and procedures in place in some of the region’s member states. These have been achieved with minimum resources and rely on existing national structures. Strengthening effective information sharing within and between governments, as well as mutual exchanges of knowledge and lessons learned could assist others in the region to achieve the same. The amended Protocol along with its Strategy and Action Plan offer further opportunities.

Finally, the resolve, political will, and vision that SADC has shown in renewing their commitment to their Firearms Protocol could set an example for other regions, and encourage them to take similar steps to continue combatting the negative impact of illicit small arms.

Gian Giezendanner is a project officer at the Small Arms Survey’s Policy and Capacity Support unit. Miles Lovell was an intern at the Small Arms Survey during spring and summer of 2021 and now works as legal expert for the Centre of Armed Violence Reduction as well as a legislative researcher for GunPolicy.org.

This blog post is published as part of the Small Arms Survey project ‘Strengthening the Southern African Development Community (SADC) Firearms Protocol and its Implementation to Effectively Tackle the Illicit Small Arms Trade’ — made possible through the generous support of the United Nations Trust Facility Supporting Cooperation on Arms Regulation (UNSCAR).

Blog posts are intended as a way for various Small Arms Survey collaborators and researchers to discuss small arms- and armed violence-related issues, and do not necessarily reflect the views of either the Small Arms Survey or its donors.

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