2004 Nairobi Protocol

For decades, the Greater Horn of Africa region has been characterized by destruction and extraordinary human suffering from long and interrelated civil and inter-state wars. L. Griffith-Fulton, ‘Small Arms and Light Weapons in the Horn of Africa’, Ploughshares Monitor, Vol. 23, No. 2 (Summer 2002). After the struggle against colonialism and Cold War conflicts, civil wars in Ethiopia, Somalia, Sudan, and Uganda all contributed to increasing numbers of small arms in circulation across the region. These weapons have been used in armed struggles over natural resources and in cattle rustling, and have contributed significantly to violent urban crime.

Multilateral initiatives to control these weapons in the Horn of Africa and the Great Lakes region preceded the 2001 UN Conference on Small Arms. On 15 March 2000, government delegates from ten countries (Burundi, the Democratic Republic of Congo (DRC), Djibouti, Ethiopia, Eritrea, Kenya, Rwanda, Sudan, Tanzania, and Uganda) concluded a four-day conference by signing the Nairobi Declaration on the Problem of the Proliferation of Illicit SALW. 2000 Nairobi Declaration on the Problem of Proliferation of Illicit Small Arms and Light Weapons

The Nairobi Declaration is an important political document for the Intergovernmental Authority on Development (IGAD) and Great Lakes countries. It mandated the Nairobi Secretariat to coordinate efforts by national focal points in the Great Lakes Region and Horn of Africa to prevent, combat and eradicate stockpiling and illicit trafficking in SALW. A practical Agenda for Action and an Implementation Plan were developed in 2000 to facilitate implementation and to guide member states in the necessary revision of their national laws and regulations. 

But the Nairobi Declaration was only a politically binding instrument, and implementation was slow. Learning from the South African Development Community (SADC) experience, the police chiefs of signatory states mandated the Eastern Africa Police Chiefs Cooperation Organisation (EAPCCO) to develop, through its legal sub-committee, a draft of a legally binding protocol, elaborating on the content of the Declaration. This would be modelled on the SADC Protocol, but with a view to closing gaps in that instrument. For example, the Nairobi Protocol goes into much more detail on the regulation of arms brokers and brokering transactions. D. Dye, ‘Arms Control in a Rough Neighbourhood: The Case of the Great Lakes Region and the Horn of Africa’, ISS Paper 179, February 2009, p. 3. Similarly, more detail is provided on the regulation of civilian possession of firearms.

The Draft Protocol was adopted on 19 December 2003 at an extraordinary meeting of EAPCCO in Arusha, Tanzania.

On 21 April 2004, at the Second Ministerial Review Conference of the Nairobi Declaration, the ten signatory states of the Nairobi Declaration were joined by the Seychelles in signing the Nairobi Protocol for the Prevention, Control and Reduction of SALW in the Great Lakes Region and the Horn of Africa. This made the region the second in Africa after SADC to adopt a legally-binding instrument on small arms. Somalia joined the initiative the following year. The Nairobi Protocol entered into force on 5 May 2005.

The Nairobi Protocol adopts the definition of small arms and light weapons used in the 1997 report of the UN Panel of Experts on Small Arms, including the general definition of firearms into the former. It also refers explicitly to ammunition, as well as part or components of weapons.

Manufacturing

According to the Protocol, manufacturing of small arms and light weapons must be regulated by law (Arts. 3(c)(iv) and 11(i).); provisions promoting legal uniformity and minimum standards must also be incorporated into national law (Art. 3(c)(v).). Weapons manufacturers will be licensed, registered, and checked regularly (Art. 11(v).). Intentional illicit manufacturing must be made a criminal offence (Art. 3(a)(ii).), and all weapons manufactured without proper authorization will be seized, confiscated, and forfeited to the state (Arts. 3(c)(vii) and 9(a).).

Weapons must be marked with a unique marking at time of manufacture, on the barrel, frame, and — where applicable — slide, indicating the name of the manufacturer, the country or place of manufacture, and the serial number (Art. 7(a).). Records of weapons marked will be kept for not less than ten years (Art. 7(d)). National laws must ensure standardized marking and identification of small arms and light weapons (Art. 3(c)(vi)), and obliterating, removing, or altering markings will be made a criminal offence (Art. 3(a)(iv).). States must take measures to promote legal uniformity in sentencing for convictions (Art. 3(c)(xiii).).

Possession and use

National laws must prohibit unrestricted civilian possession of small arms (Art. 3(c)(i).), and adopt measures to promote uniformity and minimum standards regarding control and possession of weapons (Art. 3(c)(v).). Restrictions include:

• Total prohibition of civilian possession and use of light weapons, automatic and semi-automatic rifles, and machine guns (Arts. 3(c)(i) and (ii) and 5(b)(iii).)
• Limitations on the number of small arms that can be owned (Art. 3(c)(ix).)
• Competency testing of prospective small arms owners (Art. 3(c)(viii).), and a prohibition on misrepresenting or withholding information to obtain a licence or permit (Art. 3(c)(xi).)
• Monitoring and auditing of licenses held (Art. 3(c)(ix).)
• Safe storage and use (Art. 3(c)(viii).)
• Restrictions on the owner's right to relinquish control, use, and possession of small arms (Art. 3(c)(viii).), including a prohibition of pawning and pledging (Art. 3(c)(x).)

States parties must establish central registries of all civilian-owned firearms (Art. 3(c)(iii).), as well as firearm owners, brokers, and traders (Arts. 5(a) and 11(v).), and firearms held by private security companies (Art. 5(b)(ii).). Dealers and traders will be subjected to registration, licensing, and regular checks (Art. 11).

Public education programmes are to promote responsible ownership and management of small arms (Art. 13). Intentional illicit possession and misuse of firearms must be established as a criminal offence under national law (Art. 3(a)(iii).), and states parties must take measures to promote uniformity in sentencing for convicted persons (Art. 3(c)(xiii).), introducing heavy minimum sentences for the carrying of unlicensed small arms and light weapons (Art. 5(b)(i).).

Law enforcement agencies must work with communities to identify weapons caches and remove them from society (Art. 9(c)), including through cross-border operations (Art. 9(b).). Voluntary surrender of legal or illegal weapons will be encouraged (Art. 12). Impounded, recovered, or unlicensed illicit firearms will be stored pending investigation, when they will be released for destruction (Art. 9(d).).

State-owned firearms

States parties must establish and maintain inventories of small arms and light weapons held by security forces, and ensure their safe storage (Art. 6(a).). They will also ensure strict accountability for and tracing of weapons owned and distributed by the state (Art. 6(b).). All weapons in the possession of the state have to be marked (Art. 7(c).).

To avoid diversion weapons rendered surplus, redundant, or obsolete, for example through peace agreements, demobilisation and reintegration of ex-combatants, or re-equipment of armed forces, will be collected, safely stored, and destroyed or disposed of responsibly (Art. 8).

Transfers and trafficking

National laws must include provisions that promote legal uniformity and minimum standards regarding import, export, re-export, transit, transport, and transfer of weapons (Arts. 3(c)(v) and 10.). Systems are required to be set up at sub-regional level to facilitate information exchanges (Art. 16(d), (e), and (g).).

Weapons must be marked at time of import with a simple marking (Art. 7(b).). Records of markings and details of licences will be kept for not less than ten years (Art. 7(d).).

Brokering must be regulated by national laws (Art. 3(c)(xii)). This includes licensing and registration of brokers, ensuring they seek and obtain proper authorization for each individual transaction, and that they operate transparently (Art. 11.).

Intentional illicit trafficking must be made a criminal offence under national law (Art. 3(a)(i).). The same applies to any violation of arms embargoes (Art. 3(b).). Exchange of information between states parties on trafficking is encouraged (Art. 16(c) and (f).). All weapons conveyed in transit without authorization will be seized, confiscated, and forfeited to the state (Art. 3.c.vii and 9), and states must take measures to promote legal uniformity in the sentencing of convicted persons (Art. 3(c)(xiii).).

Cooperation and capacity-building

Cooperation between police, intelligence, customs, and border control officials is encouraged (Art. 4(a).). To support their work, the Protocol calls for training, upgrading of equipment and resources, national databases, and communication systems, and inter-agency working groups (Art. 4.).

The Protocol encourages mutual legal assistance to combat illicit manufacturing, trafficking, possession, and use, and determines modalities for such assistance (Art. 14.). It also encourages cooperation of law enforcement agencies in training, information exchange, common action, direct communication systems, and collaboration with international organizations (Arts. 15 and 16). To this end, states parties must designate national focal points (Art. 16(a).), and seriously consider establishing a sub-regional register on civilian possession of firearms (Art. 16(b).). They will also cooperate to combat corruption (Art. 17.).

Institutional arrangements

The Nairobi Secretariat will oversee implementation of the agreement, inter alia by developing guidelines and instructions, and monitoring progress (Art. 18.).

Further developments

At the Third Ministerial Review Conference of the Nairobi Declaration, in June 2005, member states decided to transform the Nairobi Secretariat into a Regional Centre for Small Arms and Light Weapons (RECSA). This is now the body coordinating national efforts to implement the Protocol.

The same Review Conference also agreed to a set of non-binding Best Practice Guidelines for the Implementation of the Nairobi Declaration and the Nairobi Protocol, which provide policy and practice recommendations on implementation of the Protocol. 2005 Best Practice Guidelines