Any prospective piece of legislation must be evaluated from two perspectives. The first is whether the goal is to be supported. The second is whether the means by which this is done is consonant with good governance and a healthy relationship between the state and its people. Outcomes and process in other words. If either is deficient – no matter how appealing its counterpart is – the legislation should be viewed with great scepticism. Indeed, it should be rejected.
This is a consideration of great current importance. The COVID pandemic has emboldened the government to push for legislation on a number of fronts that would see its reach and latitude expanded, all in the nominal interests of addressing the structural impediments to prosperity and development.
Among these is the Firearms Control Act (FCA) Amendment Bill. If it does not ban civilian firearm ownership directly, it imposes so many limitations that it pushes South Africa decisively down that road. This is not only about the removal of the possibility of owning a gun for self-defence (and the use of one for this purpose), but the summary prohibition of firearm collecting, and limitations on gun ownership for sports and hunting purposes – plus the imposition of a raft of measures that appear calculated to make burdensome whatever legal ownership is possible. It’s probable that in a few years even these remaining grounds will be stripped away. After all, a police document explicitly states: ‘A restrictive firearm policy position will gradually move towards the realisation of the ideal of a gun free society.’
For those seeking a ‘gun free’ society – and there are certainly more than a few prominent figures who are deeply invested in this idea – this Bill must seem like an early Christmas. For them, its goals can expect enthusiastic support. In this vein, Prof Peter Storey, veteran campaigner against firearms and one of the founders of Gun Free South Africa wrote in a recent contribution in the Daily Maverick: ‘This amendment bill prioritises the safety of South Africa’s 58.4 million residents because its measures — including the removal of “self-defence” as a valid reason to own a gun — will reduce the availability of guns.’
The evidence for this position – both what he cites and what has been written about this more broadly – is a mixed bag, although in fairness, the effect of firearm prevalence (and for that matter, gun policy) on crime and violence is inconclusive. Studies on the matter have reached a wide range of conclusions, and at the very least, there is very little correlation between firearm ownership rates and firearm homicide. In South Africa, information is often patchy. Where statistics are concerned, it is always best to interrogate them (thus, if we’re talking firearm-related deaths, are we just talking about homicide, or do we include suicide and police action?) So, when Prof Storey talks about licenced civilian guns lost, are these all guns held by private individuals, or do they include those held by security firms, by institutions such as PRASA and even by state bodies such as metro police departments? What do we know about the circumstances under which they were lost? Accurate insight into these questions has a material bearing on any proposed solutions. Still, it is a legitimate cause of concern and one that needs to be properly understood and factored into any decision.
However, goals alone, however, worthy, do not on their own legitimate legislation.
Evidence-based policy making?
Technically, South Africa is committed to evidence-based and consultative policy-making. The amendment is a violation of these principles. By the government’s own admission, there was no consultation with anyone or any institution outside itself. This was despite repeated entreaties by stakeholders to do so. Documents that had been prepared to inform policy were withheld from stakeholders (at least from pro-gun groups – it has been alleged that they were shared with anti-gun activists; we cannot confirm this, but if true, it certainly demands explanation, from both the state and the recipients).
Key documents have emerged recently, in the face of a PAIA demand. They make for distressing reading. A report by the Wits School of Governance casts doubt on the efficacy of the FCA in reducing violent crime – a key exhibit in demands for more intrusive measures. (Murder has in recent years been on the rise anyway.) This raises all manner of concerns about the thrust and expected outcome of the measures proposed. If the FCA’s impact has been marginal, will further controls do much to improve things? At the very least, informed public debate required that the public should have access to this research.
The Ministry of Police, meanwhile, produced a document entitled ‘Report of the Committee on Firearms Control and Management in South Africa’. It references the Wits report selectively, while dodging some of its main conclusions, such as that the FCA had not had much impact on crime. Indeed, the report at times comes close to misrepresenting the FCA. It states, for example, that ‘the FCA does not have an expressed provision excluding persons with criminal convictions from possessing or owning a firearm.’ In fact, Sections 9 and 103 set out an extensive list of offences which render one unfit to possess a firearm.
Elsewhere, the report veers into supposition and speculation. Discussing collectors, it says: ‘There is a perception that there are civilians who amass lethal weapons masquerading as firearm collectors.’ Not a shred of justification is provided for this; it is not even clear whose ‘perception’ this is. ‘Perception’ is in any event a very poor substitute for evidence. Collectors are subject to multiple layers of oversight and regulation and are restricted in what they are permitted to collect – every item must be properly motivated and fit within their fields of interest. Firearm collecting is recognised internationally as an important part of maintaining societies’ heritage.
The Socio-Economic Impact Assessment hangs between being a joke and an insult. It draws uncomplicated and un-nuanced connections between firearms and crime (which does not reflect the research conducted by the Wits School of Governance). And even though the amendments which the assessment underwrites propose banning collecting and severely limiting firearms for sport, neither is mentioned in it. This is not theoretical: what will happen to thousands of collectable firearms – recognised as such by the National Heritage Resources Act – that will become illegal. Will they be consigned to a furnace, along with their historical value?
Recasting of principles
But what is even more significant is that his Bill represents less an amendment than a comprehensive recasting, right down to the principles in the preamble. Whereas the existing preamble stresses the constitutional rights of the country’s people, it is replaced by a grimmer vision emphasising the dominance and imperatives of the state (a word used four times in the proposed preamble).
The amendment draws on the obiter dictum in the case of the Minister of Safety and Security vs South African Hunters and Game Conservation Association that firearm ownership is not a right but a privilege. Well, beware of governance erected on that foundation and that formulation; much of what constitutes our daily lives is not explicitly guaranteed by the constitution. Many things besides gun ownership could be conceived of as privileges and concessions extended conditionally by the stern hand of an intrusive state. And revoked on that basis too. This is, sadly, all of a piece with much thinking in government, and has been on prominent and often ugly display during the lockdown.
At a bare minimum, if the state determines not only to change aspects of the law, but to change the philosophy behind it, it should do this with a completely new piece of legislation.
Transparent and accommodating processes, and a deference to evidence are important as guards against irrational and abusive legislation: dispense with it at peril.
No legislation, no matter how passionately the cause is supported, should be allowed to proceed like this. The management of the FCA Amendment Bill should be of extreme concern, irrespective of one’s stance on guns and gun policy. South Africa’s future requires something much better.
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