A/HRC/24/45
B.
Analysis
24.
The study reveals widely divergent levels of regulation of the activities of PMSCs
among the analysed countries. At one end of the spectrum, countries may specifically
establish a licensing scheme and prohibit PMSCs from carrying out certain activities. South
Africa is an example of that approach and the only country in the study which provides for
comprehensive legislation regulating activities of PMSCs and specifically prohibiting the
export of military and security services. Several of the other countries analysed regulate
only private security companies to a varying degree within the domestic sphere and do not
prohibit the provision of military or security services abroad. Efforts undertaken by these
States to regulate the activities of PMSCs indicate their acknowledgement of a certain level
of risk in outsourcing State functions to these private companies. At the other end of the
spectrum, there are countries which have no legislation specifically addressing the activities
of PMSCs or are currently considering establishing a legislative framework.
25.
The South African legislation is also unique in that it prohibits mercenary activities.
While the term “mercenary” is defined differently to the definition in the international or
regional instruments, the South African legislation is specifically aimed at prohibiting
mercenary activities and requires permission for the rendering of military or security
services to a party to an armed conflict or to a designated country. The other countries
analysed do not have any laws prohibiting mercenary activities.
26.
While bearing in mind these varying approaches, there are common elements in the
laws of the countries under review, which are used as a basis of comparative analysis
below.
1.
Regulation of the activities of PMSCs
27.
Of the 13 countries analysed, all except Kenya and Swaziland have legislation
addressing the private security sector.2 There is currently no law that specifically deals with
the private security industry in Kenya, whereas the Swazi legislation does not regulate the
industry, the enterprises or companies, or even the security officers, but only the “wages”
associated with those involved in the security industry, through the Regulation of Wages
(Security Services Industry) Order, 2011.
28.
Two countries, South Africa and Botswana, are currently undergoing a transitional
phase as they are in the process of amending their existing laws. While Botswana is
considering the Regulation of Private Security Services Amendment Bill, 2008, South
Africa is considering the Private Security Industry Regulation Amendment Bill, 2012. This
will arguably make the regulatory framework on private security in these two countries
more effective. It is also likely that it may encourage other countries in the region to
consider amending and/or enacting legislation in the near future in order to keep up to the
developing dynamics of the private security industry.
2
Botswana: Control of Security Guard Services Act No. 28 of 1984; Ghana: Police Service (Private
Security Organisations) Regulations, 1992, Legislative Instrument No. 1571, as amended by
Legislative Instrument No. 1579; the Gambia: Private Security Guard Companies Act No. 5 of 2011;
Lesotho: Private Security Officers Act, 2002; Mauritius: Private Security Act No. 5 of 2004 as
amended by the Private Security Service (Amendment) Act of 2008; Namibia: Security Enterprises
and Security Officers Act No. 19 of 1998, as amended by the Security Enterprises and Security
Officers Amendment Act No 21 of 2002; Nigeria: the Private Guard Companies Act No. 23 of 1986;
Sierra Leone: National Security and Central Intelligence Act No. 10 of 2002; South Africa: Private
Security Industry Regulation Act No. 56 of 2001; Uganda: Police (Control of Private Security
Organisations) Regulations of 1997 and 2004; and Zimbabwe: Private Investigators and Security
Guards Control Act, Chapter 27:10 (1996).
7
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