THE
We, the
Ministers of Foreign Affairs and other plenipotentiaries of
Democratic
Federal
Democratic
State of
Republic of
the
United
(Hereafter
referred to as the States Parties);
REAFFIRMING
the inherent right of states to individual or collective self-defence as
recognized in Article 51 of the United Nations Charter;
GRAVELY CONCERNED with the problem of the proliferation
of illicit small arms and light weapons in the Great Lakes Region and the Horn
of Africa and the devastating consequences they have had in sustaining armed
conflict and armed crime, degrading the environment, fuelling the illegal exploitation of
natural resources and abetting terrorism and other serious crimes in the
region;
CONCERNED about the supply of small arms and light weapons into the region
and conscious of the need for effective controls of arms transfers by suppliers
and brokers outside the region (including measures against transfer of surplus
arms) to prevent the problem of illicit small arms and light weapons;
AWARE of the
urgent need to prevent, combat and eradicate the illicit manufacturing of,
excessive and destabilising accumulation of, trafficking in, illicit possession
and use of small arms and light weapons, ammunition, and other related
materials, owing to the harmful effects of those activities on the security of
each state and the sub-region and the danger they pose to the well-being of the
population in the sub-region, their social and economic development and their
right to live in peace;
ACKNOWLEDGING
that the problem of proliferation of illicit small arms and light weapons in
the region has been exacerbated by internal political strife, terrorist
activities and extreme poverty, and that a comprehensive strategy to arrest and
deal with the problem must include putting in place structures and processes to
promote democracy, the observance of human rights, the rule of law and good
governance, as well as economic recovery and growth;
RECOGNISING
also that the inadequate capacity of states in the region to effectively
control and monitor their borders, poor and sometimes open immigration and
customs controls, as well as movement of armed refugees across national borders
in certain countries, have greatly contributed to the proliferation of illicit
small arms and light weapons;
RECOMMENDING
that States Parties should consider becoming parties to international
instruments relating to the prevention, combating and eradication of illicit
manufacturing of, excessive and destabilising accumulation of, trafficking in,
illicit possession and use of small arms and light weapons and to implement
such instruments within their jurisdiction;
ACKNOWLEDGING
the work of the United Nations, the African Union, the European Union, the
Organisation of American States, as well as the efforts in
AGREEING that
they shall fulfil their obligations and exercise their rights under this
Protocol in a manner consistent with the principles of sovereign equality,
territorial integrity of States and non-intervention in the domestic affairs of
States Parties;
With the
purpose of reaffirming the goals of, and implementing, the Nairobi Declaration
and the Coordinating Agenda for Action,
HEREBY AGREE
as follows:
Article 1
Definitions
In this
Protocol, unless the context otherwise indicates:
“broker”
is a person who acts:
(a)
for
a commission, advantage or cause, whether pecuniary or otherwise;
(b)
to
facilitate the transfer, documentation and/or payment in respect of any
transaction relating to the buying or selling of small arms and light weapons;
or
(c)
as
an intermediary between any manufacturer, or supplier of, or dealer in small
arms and light weapons and any buyer or recipient thereof.
“brokering”
means acting:
(a) for a
commission, advantage or cause, whether pecuniary or otherwise;
(b) to
facilitate the transfer, documentation and/or payment in respect of any
transaction relating to the buying or selling of small arms and light weapons;
or
(c) thereby
acting as intermediary between any manufacturer, or supplier of, or dealer in
small arms and light weapons and any buyer or recipient thereof.
“illicit
manufacturing” shall mean the manufacturing or assembly of small arms and
light weapons:
(a) from parts
and components illicitly trafficked;
(b) without a
licence or authorisation from a competent authority of the State Party where
the manufacture or assembly takes place; or
(c) without
marking the small arms and light weapons at the time of manufacture, in
accordance with Article 7 of this Protocol.
“illicit
trafficking” means the import, export, acquisition, sale, delivery,
movement or transfer of small arms and light weapons from or across the
territory of one State Party to that of another State Party if any one of the
State Parties concerned does not authorise it in accordance with the terms of
this Protocol or if the small arms and light weapons are not marked in
accordance with Article 7 of this Protocol;
“light
weapons” shall include the following portable weapons designed for use by
several persons serving as a crew: heavy machine guns, automatic cannons,
howitzers, mortars of less than 100 mm calibre, grenade launchers, anti-tank
weapons and launchers, recoilless guns, shoulder-fired rockets, anti-aircraft
weapons and launchers, and air defence weapons;
“small
arms” are weapons designed for personal use and shall include: light machine
guns, sub-machine guns, including machine pistols, fully automatic rifles and
assault rifles, and semi-automatic rifles.
“small arms”
shall also include:
“firearms”, meaning:
(a) any portable barrelled weapon that expels, is designed to expel or may
be readily converted to expel a shot, bullet or projectile by the action of an
explosive, excluding antique firearms or their replicas. Antique firearms and
their replicas shall be defined in accordance with domestic law. In no case,
however, shall antique firearms include firearms manufactured after 1899;
(b) any other weapon or destructive device such as an
explosive bomb, incendiary bomb or gas bomb, grenade, rocket launcher, missile,
missile system or mine
“ammunition”,
meaning the complete round or its components, including cartridge cases,
primers, propellant powder, bullets or projectiles, that are used in a small
arm or light weapon, provided that those components are themselves subject to
authorisation in the respective State Party;
and “other related materials”, meaning any
components, parts or replacement parts of a small arm or light weapon, that are
essential to its operation.
“tracing”
shall mean the systematic tracking of small arms and light weapons from
manufacturer to purchaser for the purpose of assisting the competent
authorities of States Parties in detecting, investigating and analyzing illicit
manufacturing and illicit trafficking.
The objectives
of this Protocol are to –
(a) prevent,
combat and eradicate the illicit manufacturing of, trafficking in, possession
and use of small arms and light weapons in the sub-region.
(b) prevent
the excessive and destabilising accumulation of small arms and light weapons in
the sub-region.
(c) promote
and facilitate information sharing and cooperation between the governments in
the sub-region, as well as between governments, inter-governmental
organisations and civil society, in all matters relating to the illicit
trafficking and proliferation of small arms and light weapons.
(d) promote
cooperation at the sub-regional level as well as in international fora to
effectively combat the small arms and light weapons problem, in collaboration
with relevant partners.
(e) encourage
accountability, law enforcement and efficient control and management of small
arms and light weapons held by States Parties and civilians.
Legislative Measures
(a) Each State
Party shall adopt such legislative and other measures as may be necessary to
establish as criminal offences under its national law the following conduct,
when committed intentionally:
(i) Illicit trafficking in small arms and light weapons.
(ii) Illicit manufacturing of small arms and light weapons.
(iii) Illicit possession and misuse of small arms and light
weapons.
(iv) Falsifying or illicitly obliterating, removing or
altering the markings on small arms and light weapons as required by this
Protocol.
(b)
States Parties that have not yet done so shall adopt the necessary legislative
or other measures to sanction criminally, civilly or administratively under
their national law the violation of arms embargoes mandated by the Security
Council of the United Nations and/or regional organisations.
(c) States
Parties undertake to incorporate in their national laws:
(i) the prohibition of unrestricted civilian possession of
small arms;
(ii) the total prohibition of the civilian possession and
use of all light weapons and automatic and semi-automatic rifles and machine
guns;
(iii) the regulation and centralised registration of all
civilian-owned small arms in their territories (without prejudice to Article 3
c (ii);
(iv) measures ensuring that proper controls be exercised
over the manufacturing of small arms and light weapons;
(v) provisions promoting legal uniformity and minimum
standards regarding the manufacture, control, possession, import, export,
re-export, transit, transport and transfer of small arms and light weapons;
(vi) provisions ensuring the standardised marking and
identification of small arms and light weapons;
(vii) provisions that adequately provide for the seizure,
confiscation, and forfeiture to the State of all small arms and light weapons
manufactured or conveyed in transit without or in contravention of licenses,
permits, or written authority;
(viii) provisions for effective control of small arms and
light weapons including the storage and usage thereof, competency testing of
prospective small arms owners and restriction on owners’ rights to relinquish
control, use, and possession of small arms;
(ix) the monitoring and auditing of licenses held in a
person’s possession, and the restriction on the number of small arms that may
be owned;
(x) provisions prohibiting the pawning and pledging of small
arms and light weapons;
(xi) provisions prohibiting the misrepresentation or
withholding of any information given with a view to obtain any license or
permit;
(xii) provisions regulating brokering in the individual
State Parties; and
(xiii) provisions promoting legal uniformity in the sphere
of sentencing.
Operational Capacity
States Parties
shall:
(a) strengthen
sub-regional co-operation among police, intelligence, customs and border
control officials in combating the illicit circulation and trafficking in small
arms and light weapons and suppressing criminal activities relating to the use
of these weapons;
(b) enhance
the capacity of national law enforcement and security agencies, including
appropriate training on investigative procedures, border control and law
enforcement techniques, and upgrading of equipment and resources;
(c) establish
and improve national databases, communication systems and acquire equipment for
monitoring and controlling small arms and light weapons movements across
borders;
(d) establish
or enhance inter-agency groups, involving police, military, customs, home
affairs and other relevant bodies, to improve policy co-ordination, information
sharing and analysis at national level;
(e) develop or
improve national training programmes to enhance the capacity of law enforcement
agencies to fulfil their roles in the implementation of the agenda for action.
Article 5
(a) States
Parties undertake to consider a co-ordinated review of national procedures and
criteria for issuing and withdrawing of small arms and light weapons licenses,
and establishing and maintaining national databases of licensed small arms and
light weapons, small arms and light weapons owners, and commercial small arms
and light weapons traders within their territories.
(b) State
Parties undertake to :
(i) introduce harmonised, heavy minimum sentences for small
arms and light weapons crimes and the carrying of unlicensed small arms and
light weapons;
(ii) register and ensure strict accountability and effective
control of all small arms and light weapons owned by private security
companies;
(iii) prohibit the civilian possession of
semi-automatic and automatic rifles and machine guns and all light weapons.
Article 6
States Parties
undertake to:
(a) establish
and maintain complete national inventories of small arms and light weapons held
by security forces and other state bodies, to enhance their capacity to manage
and maintain secure storage of state-owned small arms and light weapons;
(b) ensure
strict national accountability and the effective tracing of all small arms and
light weapons owned and distributed by the state.
Article 7
Marking and Tracing
of Small Arms and Light Weapons and Record-keeping
States
Parties undertake to:
(a) mark each
small arm or light weapon at the time of manufacture, with a unique marking
providing the name of the manufacturer, the country or place of manufacture and
the serial number. The marking should be on the barrel, frame and, where
applicable, the slide.
(b) mark each
small arm or light weapon at the time of import, with a simple marking
permitting identification of the country of import and the year of import, and
an individual serial number if the small arm or light weapon does not bear one
at the time of import so that the source of the small arm or light weapon can
be traced.
(c) ensure
that all small arms and light weapons in the possession of the state are marked
with a unique mark.
(d) ensure the
maintenance, for not less than ten years, of information in relation to small
arms and light weapons that is necessary to trace and identify those small arms
and light weapons which are illicitly manufactured or trafficked and to prevent
and detect such activities. Such information shall include:
(i) the appropriate markings required by this Article;
(ii) in cases involving international transactions
in small arms and light weapons, the issuance and expiration dates of the
appropriate licenses or authorisations, the country of export, the country of
import, the transit countries, where appropriate, and the final recipient and
the description and quantity of the articles.
Article 8
States Parties
undertake to identify and adopt effective programmes for the collection,
safe-storage, destruction and responsible disposal of small arms and light
weapons rendered surplus, redundant or obsolete, in accordance with domestic
laws, through, inter alia, peace agreements, demobilisation or (re-)integration
of ex-combatants, or re-equipment of armed forces or other armed state bodies.
States Parties shall accordingly:
(a) develop
and implement, where they do not exist, national programmes for the
identification of surplus, obsolete and seized stocks of small arms and light
weapons in possession of the state;
(b) ensure
that small arms and light weapons rendered surplus, redundant or obsolete
through the implementation of a peace process, the re-equipment or
re-organisation of armed forces and/ or other state bodies are securely stored,
destroyed or disposed of in a way that prevents them from entering the illicit
market or flowing into regions in conflict or any other destination that is not
fully consistent with agreed criteria for restraint.
Article 9
States Parties
undertake to:
(a) adopt
within their domestic legal systems, such measures as may be necessary to
enable confiscation of small arms and light weapons that have been illicitly
manufactured or trafficked;
(b) maintain
and further develop joint and combined operations across the borders of States
Parties to locate, seize and destroy caches of small arms and light weapons
left over after conflicts and civil wars;
(c) encourage
law enforcement agencies to work with communities to identify small arms and
light weapons caches and remove them from society;
(d) establish
an effective mechanism for storing impounded, recovered or unlicensed illicit
small arms and light weapons pending the investigations that will release them
for destruction.
Article 10
(a) Each State
Party shall establish and maintain an effective system of export and import
licensing or authorisation, as well as of measures on international transit,
for the transfer of small arms and light weapons.
(b) Before
issuing export licences or authorisations for shipments of small arms and light
weapons, each State Party shall verify:
(i) that the importing States have issued import licences or
authorisations; and
(ii) that, without prejudice to bilateral or multilateral
agreements or arrangements favouring landlocked States, the States have, at a
minimum, given notice in writing, prior to shipment, that they have no
objection to the transit.
(c) The
export and import licence or authorisation and accompanying documentation
together shall contain information that, at a minimum, shall include the place
and the date of issuance, the date of expiration, the country of export, the
country of import, the final recipient, a description and the quantity of the
small arms and light weapons and, whenever there is transit, the countries of
transit. The information contained in the import licence must be provided in
advance to the transit States.
(d) The
importing State Party shall inform the exporting State Party of the receipt of
the dispatched shipment of small arms and light weapons.
(e) Each State
Party shall, within available means, take such measures as may be necessary to
ensure that licensing or authorisation procedures are secure and that the
authenticity of licensing or authorisation documents can be verified or
validated.
(f) States
Parties may adopt simplified procedures for the temporary import and export and
the transit of small arms and light weapons for verifiable lawful purposes such
as hunting, sport shooting, evaluation, exhibitions or repairs.
Article 11
State Parties,
that have not yet done so, shall establish a national system for regulating
dealers and brokers of small arms and light weapons. Such a system of control
shall include:
(i) regulating all manufacturers, dealers, traders,
financiers and transporters of small arms and light weapons through licensing;
(ii) registering all brokers operating within their
territory;
(iii) ensuring that all registered brokers seek and obtain
authorisation for each individual transaction taking place;
(iv) ensuring that all brokering transactions provide full
disclosure on import and export licenses or authorisation and accompanying
documents of the names and locations of all brokers involved in the
transaction; and
(v) licensing, registering and checking regularly and
randomly all independent manufacturers, dealers, traders and brokers.
Article 12
States Parties
shall introduce programmes to encourage :
(a) small arms
and light weapons in lawful civilian possession may be voluntarily surrender
their small arms and light weapons for destruction/disposal by the State in
accordance with its domestic laws;
(b) illegal
small arms and light weapons holders shall surrender their small arms and light
weapons for destruction. In such cases, the State may consider granting
immunity from prosecution.
Article 13
States Parties
undertake to develop local, national and regional public/community education
and awareness programmes to enhance the involvement of the public and
communities and support for efforts to tackle the proliferation and illicit
trafficking of small arms and light weapons, and to encourage responsible ownership
and management of small arms and light weapons. These programmes shall:
(a) Promote a
culture of peace;
(b) Involve,
and cooperate with, all sectors of society.
Article 14
(a) States
Parties shall engage in the creation of a mutual legal assistance system in
order to cooperate with each other to afford mutual legal assistance in a
concerted effort to eradicate the illicit manufacturing and trafficking of, and
control the possession and use of, small arms and light weapons. Mutual legal
assistance shall, inter alia, include the following:
(i) investigation and detection of offences;
(ii) obtaining evidence and/or statements;
(iii) execution of searches and seizures;
(iv) communication of information and transfer of exhibits;
(v) inspection of sites or examination of objects and/or
documents;
(vi) request for judicial documents;
(vii) service of judicial documents;
(viii) communication of relevant documents and records;
(ix) identification or tracing of suspects or proceeds of
crime; and
(x) application of special investigative techniques, such as
forensics, ballistics and fingerprinting.
(b) States
Parties may further agree upon any other form of mutual assistance consistent
with their national laws.
(c) States
Parties shall designate a competent authority which shall have the
responsibility and power to execute and monitor requests for mutual legal
assistance.
(d) Requests
for mutual legal assistance shall be made in writing to the competent authority
and shall contain :
(i) the identity of the authority making the request;
(ii) the subject matter and nature of the investigation or
prosecution to which the request relates;
(iii) the description of the assistance sought;
(iv) the purpose for which the evidence, information or
action is sought; and
(v) all relevant information available to the requesting
State Party and which may be of use to the requested State Party.
(e) A
State Party may seek any such additional information, which might be necessary
for the execution of the request in accordance with its national laws.
Law Enforcement
(a) States
Parties shall establish appropriate mechanisms for cooperation among law
enforcement agencies to promote effective law enforcement including :
(i) strengthening regional and continental cooperation among
police, customs and border control services to address the illicit
proliferation, circulation and trafficking of small arms and light weapons.
These efforts should include, but not be limited to, training, the exchange of
information to support common action to contain and reduce illicit small arms
and light weapons trafficking across borders, and the conclusion of necessary
agreements in this regard;
(ii) establishing direct communication systems to facilitate
free and fast flow of information among the law enforcement agencies in the
sub-region;
(iii) establishing multi-disciplinary/specialized law
enforcement units for combating the illicit manufacturing of and trafficking
in, possession and use of small arms and light weapons;
(iv) promoting cooperation with international organisations
such as the International Criminal Police Organisation (INTERPOL) and the World
Customs Organisation (WCO) and to utilise existing data bases such as the
Interpol Weapons and Explosives Tracing System (IWETS);
(v) introducing effective extradition arrangements.
Article 16
States Parties
undertake to :
(a) establish
National Focal Points to, inter alia, facilitate the rapid information exchange
to combat cross-border small arms and light weapons trafficking;
(b) develop
and improve transparency in small arms and light weapons accumulations, flows
and policies relating to civilian-owned small arms and light weapons, including
serious consideration to the development of a sub-regional small arms and light
weapons register on civilian possession;
(c) encourage
the exchange of information among law enforcement agencies on criminal groups
and their associates, types of small arms and light weapons, sources, supply
routes, destinations, methods of transportation and financial support of these
groups;
(d) establish
national small arms and light weapons databases so as to facilitate the exchange
of information on small arms and light weapons imports, exports and transfers;
(e) establish
systems to verify the validity of documents issued by licensing authorities in
the sub-region;
(f) establish
a sub-regional system to facilitate intelligence exchange on small arms and
light weapons violations and trafficking;
(g) establish
a sub-regional system to harmonise relevant import, export and transfer
documents and end-user certificates.
Article 17
States Parties
shall institute appropriate and effective measures for cooperation between law
enforcement agencies to curb corruption associated with the illicit
manufacturing of, trafficking in, illicit possession and use of small arms and
light weapons.
Article 18
(a) States
Parties mandate the Nairobi Secretariat to oversee the implementation of this
Protocol.
(b) In this
regard the Nairobi Secretariat shall be responsible for :
(i) development and issuance of guidelines and instructions
for the implementation of, monitoring the implementation of, the execution of,
and the evaluation of this Protocol, in liaison with law enforcement agencies,
and ensuring adherence to the standards set out therein informing Ministers on
a regular basis of progress thereof;
(ii) attending to the difficulties experienced in the
application of this Protocol.
Settlement of
Disputes
Disputes
arising out of the interpretation or application of this Protocol, which are
not settled amicably, shall be settled in accordance with the principles of
public international law.
Article 20
An amendment
to this Protocol shall be adopted by a decision of three quarters of the
members of the States Parties.
Article 21
Signature
This
Protocol shall be signed by duly authorised representatives of Member States.
Article 22
This Protocol
shall be ratified by the Signatory States in accordance with their
constitutional procedures.
Entry Into Force
This Protocol
shall enter into force thirty (30) days after the deposit of the instruments of
ratification by two thirds of the Member States.
Article 24
This Protocol
shall remain open for accession by any Member State.
Article 25
(a) The
original text of this Protocol will be in English, French and Arabic; the three
texts being equally authentic
(b)
Instruments of ratification and accession shall be deposited with the Nairobi
Secretariat, who shall transmit certified copies to all Member States.
IN WITNESSES WHEREOF, WE, the Ministers of Foreign Affairs and other
plenipotentiaries of the States Parties have signed this Protocol.
Done at
Nairobi this 21st day of April 2004.
..................................
…………………………
For the
Government of For
the Government of
Republic of
Burundi Democratic
Republic of Congo
………………………… …………………………
For the
Government of For
the Government of
Republic of Djibouti Federal
Democratic Republic of Ethiopia
…………………………
………………………..
For the
Government of For
the Government of
State of
Eritrea Republic
of Kenya
………………………… …………………………
For the
Government of For
the Government of
Republic of
Rwanda Republic
of Seychelles
………………………… ………………………….
For the Government
of For
the Government of
Republic of
the Sudan the
Republic of Uganda
…………………………
For the
Government of
United
Republic of Tanzania