Report on national laws and regulations relating to PMSCs of selected countries in Africa (Part I of the Global Study)

Background

Twice a year, the Working Group on the use of mercenaries issues calls for inputs to inform thematic studies to be presented at the Human Rights Council in its September session and at the General Assembly in October.

Between 2013 and 2016, the Working Group conducted a comprehensive Global Study of national legislation and regulations with a view to study and identify trends in national regulatory frameworks relevant to private military and security companies (PMSCs) in 60 States from all the regions of the world. The methodology for the study included a questionnaire sent to States in 2012. Over 30 States responded. Additional research was conducted on States’ laws and regulations.

The results of this comprehensive study and analysis of national legislation, which provides a basis of research for a variety of stakeholders, has informed the production of six reports on this issue presented to the General Assembly and the Human Rights Council over three years.

Summary

This report presents the findings of the Working Group’s ongoing global study of national laws and regulations relating to private military and security companies.

The report provides presents findings of the Working Group’s survey of national laws and regulations relating to private military and security companies. In this report, the Working Group focuses on laws and regulations from 13 African countries – namely, Botswana, Ghana, the Gambia, Kenya, Lesotho, Mauritius, Namibia, Nigeria, Sierra Leone, South Africa, Swaziland, Uganda and Zimbabwe – and discusses trends and differences in regulatory approaches in these countries. While there are common elements in laws of these countries, the diverse contexts at the national level affect the way in which PMSCs are regulated and the regulatory approach of each country significantly varies.

The analysis of domestic legislation on PMSCs shows that the various African States reviewed for this report have responded to the privatization of security differently. Given the absence of a legally binding international instrument on PMSCs, there is little guidance on how effectively to address the phenomenon of the privatization of security. This has resulted in divergent regulatory approaches at the national level, creating regulatory gaps in some respects.

The manner in which the countries’ laws are framed reflects the challenges that the privatization of security poses in the various States. Countries such as South Africa, which faced the phenomenon whereby its nationals with extensive military skills and experience provided military and security services abroad and some of whom became involved in mercenary activities, responded by enacting legislation specifically prohibiting mercenary activities and the export of military and security services, as well as regulating PMSCs within the domestic sphere. In other countries, where the private security industry mostly focuses on more traditional guarding of persons or properties, the laws have not yet evolved to address these challenges.

The provisions on the use or non-use of firearms by the private security providers, particularly on the use of lethal force, are also indicators, among others, which reflect how those States view the private security sector. The prohibition of use of firearms by PMSCs in some countries signals the recognition of the risk of outsourcing what may be regarded as State functions. In other countries, where the use of firearms is permitted by law or where the laws are silent on this matter, there is a risk that the use of firearms by PMSCs may result in human rights violations, for the existing laws do not provide sufficient guidance on the use of force in accordance with the international human rights and humanitarian standards.

The report concludes by reiterating the need for effective regulations of the activities of PMSCs and inviting all States to facilitate the Working Group’s study on national legislation.