rangement of Provisions
PART I
PRELIMINARY
1. Short title and commencement
2. Interpretation
3. Meaning of cluster munition
4. Application
5. Purpose
PART II
ACTIVITIES RELATED TO
CLUSTER MUNITIONS
Division 1 – Offences and
exceptions to offences
6. Offences
7. Exceptions to offences in
section 6(1)
8. Liability of an officer of a
corporation
9. Application of this Division to
certain explosive bomblets
Division 2 – Actions in relation
to cluster munitions
10. Seizure, forfeiture, and
destruction of cluster munitions
11. Application of Customs Act
1977
12. Minister may authorise cluster
munitions for certain purposes
Division 3 – Information
13. Purpose of this Division
14. Supply of information
PART III
MISCELLANEOUS
15. Regulations
16. Consequential amendment
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2012, No. 11
AN ACT to give effect to the 2008 Convention on Cluster Munitions, and for related matters. [13
th March 2012]
BE IT ENACTED by the Legislative Assembly of Samoa in
Parliament assembled as follows:
2 Cluster Munitions Prohibition 2012, No. 11
PART I
PRELIMINARY
1. Short title and commencement-(1) This Act may be cited as
the Cluster Munitions Prohibition Act 2012.
(2) This Act commences on a date to be nominated by the
Minister.
2. Interpretation-(1) In this Act, unless the context otherwise
requires:
“Attorney-General” means the Attorney-General of Samoa;
“authorised cluster munition” means a cluster munition
authorised under section 12;
“Chief Executive Officer” means the Chief Executive Officer
of the Ministry;
“cluster munition” has the meaning given to it by section 3;
“Convention” means the Convention on Cluster Munitions,
done at Dublin on 30 May 2008, which Samoa signed on 3
December 2009, and any amendments to, or substitutions of,
the Convention that are, or will become, binding on Samoa
from time to time, but does not include any amendments or
substitutions that have been objected to by Samoa;
“corporation” means a body corporate formed or incorporated
whether in Samoa or outside Samoa;
“Court” means the Supreme Court of Samoa;
“explosive submunition” means a conventional munition:
(a) that is designed to function by detonating an explosive
charge prior to, on, or after impact; and
(b) that, in order to perform its task, is dispersed or released
by a cluster munition.
“funds”:
(a) means assets of every kind, whether tangible or
intangible, moveable or immoveable, however
acquired; and
(b) includes legal documents or instruments in any form
evidencing title to, or an interest in, assets of any
kind.
“mine” means a munition designed to be placed under, on or
near the ground or other surface area and to be exploded by
the presence, proximity or contact of a person or a vehicle;
“Minister” means the Minister responsible for Foreign Affairs;
2012, No. 11 Cluster Munitions Prohibition 3
“Ministry” means the Ministry responsible for Foreign Affairs;
“officer” means a member of the Police Service, or an officer
of Customs;
“Police Service” means the Samoa Police Service;
“Samoa registered aircraft” means an aircraft registered or
required to be registered in accordance with the Civil
Aviation Act 1998 as a Samoa registered aircraft;
“Samoan ship or vessel” means, in accordance with the
Shipping Act 1998:
(a) a ship or vessel registered or licensed in Samoa; or
(b) an unregistered ship or vessel for which a person has
assumed Samoan nationality.
“self-deactivating” means automatically rendering a munition
inoperable by means of the irreversible exhaustion of a
component of the munition that is essential to the munition’s
operation;
“self-destruction mechanism” means a mechanism,
incorporated into a munition, that:
(a) secures the destruction of that munition; and
(b) functions automatically; and
(c) is in addition to the munition’s primary initiating
mechanism.
“transfer”:
(a) includes -
(i) importation into, and exportation from,
Samoa; and
(ii) the transfer of title to, and control over,
cluster munitions; but
(b) does not include the transfer of territory containing
cluster munition remnants.
“unexploded submunition” means an explosive submunition
that has been dispersed or released by, or otherwise
separated from, a cluster munition and has failed to explode
as intended.
(2) Unless the context otherwise requires, any other term or
expression used in this Act which is not defined shall have the same
meaning as in the Convention.
3. Meaning of cluster munition-(1) A cluster munition means
a conventional munition that is designed to disperse or release
explosive submunitions each weighing less than 20 kilograms and
includes those explosive submunitions.
4 Cluster Munitions Prohibition 2012, No. 11
(2) A cluster munition does not include:
(a) a mine; or
(b) a munition or submunition that is designed -
(i) to dispense flares, smoke, pyrotechnics, or
chaff; or
(ii) to produce electrical or electronic effects;
or
(c) a munition that is designed exclusively for an air defence
role; or
(d) a munition that, in order to avoid indiscriminate area
effects and the risks posed by unexploded
submunitions, has all of the following characteristics
-
(i) each munition contains fewer than 10
explosive submunitions;
(ii) each explosive submunition weighs more
than 4 kilograms;
(iii) each explosive submunition is designed
to detect and engage a single target object;
(iv) each explosive submunition is equipped
with an electronic self-destruction mechanism;
(v) each explosive submunition is equipped
with an electronic self-deactivating feature.
4. Application-(1) This Act binds the Government.
(2) This Act extends to every Samoa registered aircraft, and
Samoan ship or vessel.
(3) This Act extends to acts done or omitted to be done outside
Samoa by -
(i) a Samoan citizen; or
(ii) a person ordinarily resident in Samoa; or
(iii) a member of the Police Service; or
(iv) a corporation.
(4) Subject to subsection (5), proceedings in respect of a
contravention of this Act in Samoa or anywhere outside Samoa
shall not be instituted in Court unless the consent of the Attorney-
General has been obtained and the Attorney-General has certified
that it is expedient that the proceedings should be instituted.
(5) Despite subsection (4), a person may be arrested, or a
warrant for a person’s arrest may be issued and executed, and the
person may be remanded in custody or on bail, but no further or
other proceedings shall be taken until the Attorney-General’s
consent has been obtained under subsection (4).
2012, No. 11 Cluster Munitions Prohibition 5
5. Purpose-(1) The purpose of this Act is to implement Samoa’s
obligations under the Convention.
(2) A person exercising a power conferred under this Act shall
do so in compliance with Samoa’s obligations under the
Convention.
PART II
ACTIVITIES RELATED TO CLUSTER MUNITIONS
Division 1 – Offences and exceptions to offences
6. Offences-(1) Subject to section 7, a person who directly or
indirectly does one (1) or more of the following commits an
offence:
(a) uses a cluster munition;
(b) develops, produces, or otherwise acquires, a cluster
munition;
(c) possesses, retains, or stockpiles a cluster munition;
(d) transfers a cluster munition to another person;
(e) assists, encourages or induces another person to engage
in any conduct under paragraphs (a) to (d);
(f) invests funds with the intention that the funds be used, or
knowing that they are to be used, in the development
or production of cluster munitions.
(2) A member of the Police Service also commits an offence if
he or she expressly requests the use of cluster munitions when:
(a) he or she is engaged in operations, exercises, or other
military activities with the armed forces of a State
that is not a party to the Convention; and
(b) the choice of munitions used is within the exclusive
control of the Police Service.
(3) A person who commits an offence under subsections (1) and
(2) shall be punishable, upon conviction, by:
(a) in the case of a corporation, a fine not exceeding 100,000
penalty units; or
(b) in the case of a natural person, a fine not exceeding
10,000 penalty units or imprisonment for a term not
exceeding seven (7) years, or both.
(4) This section does not limit the provisions of the Arms
Ordinance 1960 relating to explosives.
6 Cluster Munitions Prohibition 2012, No. 11
7. Exceptions to offences in section 6(1)-(1) Despite section
6(1), an officer does not commit an offence by using, acquiring,
possessing, retaining, or transferring an authorised cluster munition
if he or she is doing so:
(a) in the course of his or her employment or duties; and
(b) for the purposes of developing, or training persons in,
techniques of cluster munition detection, clearance,
or destruction; and
(c) in compliance with any notice given under section 12.
(2) Despite section 6(1), an officer does not commit an offence
by seizing, receiving, or acquiring a cluster munition if he or she is
doing so:
(a) in the course of his or her employment or duties; and
(b) for the purposes of destroying it, retaining it pending its
destruction or transferring it so that it can be
destroyed.
(3) Despite section 6(1), a person does not commit an offence in
the circumstances set out in subsection (4) by:
(a) possessing a cluster munition until an officer collects it
from him or her or destroys it; or
(b) giving the cluster munition to an officer who is to collect
it from him or her or destroy it.
(4) The circumstances referred to under subsection (3) are:
(a) that the person complies with section 14; and
(b) that, as soon as practicable after becoming aware that he
or she possesses the cluster munition, the person
takes all reasonable steps to ensure that it is not used
before an officer can collect or destroy it.
(5) Despite section 6(1), a person does not commit an offence
by his, her, or its conduct outside Samoa in relation to a cluster
munition that is:
(a) for the purposes of -
(i) destroying it; or
(ii) enabling another person to destroy it; or
(iii) rendering it harmless; or
(iv) enabling another person to render it
harmless; and
(b) in accordance with the Convention.
(6) A member of the Police Service does not commit
an offence against section 6(1) merely by engaging, in the course of
his or her duties, in operations, exercises, or other military
2012, No. 11 Cluster Munitions Prohibition 7
activities with the armed forces of a State that is not a party to the
Convention and that has the capability to engage in conduct
prohibited by section 6(1).
8. Liability of an officer of a corporation-(1) Subject to
subsection (2), if an offence was committed by a corporation, the
following, as well as the corporation, shall be deemed to be guilty
of the offence:
(a) a person who at the time of the commission of the
offence was a director or was purporting to act in
such capacity;
(b) a person who at the time of the commission of the
offence was a manager or was purporting to act in
such capacity;
(c) a person who at the time of the commission of the
offence was a secretary or was purporting to act in
such capacity;
(d) a person who at the time of the commission of the
offence was another similar officer of the
corporation similar to those under paragraphs (a), (b)
and (c) or was purporting to act in such capacity.
(2) A person stated under subsection (1)(a) – (d) shall not be
deemed to be guilty of an offence if the person proves that:
(a) the offence was committed without his or her consent,
connivance, tacit or otherwise; and
(b) he or she exercised all such diligence to prevent the
commission of the offence as ought to have been
exercised, having regard to the nature of his or her
functions in that capacity and to all the
circumstances.
9. Application of this Division to certain explosive bomblets-
(1) In this section, explosive bomblet means a conventional
munition:
(a) that is not self-propelled; and
(b) that weighs less than 20 kilograms; and
(c) that is designed to function by detonating an explosive
charge prior to, on, or after impact; and
(d) that, in order to perform its task, is dispersed or released
by a dispenser.
8 Cluster Munitions Prohibition 2012, No. 11
(2) The provisions of this Division apply, with any necessary
modifications, to explosive bomblets that are specifically designed
to be dispersed or released from dispensers affixed to an aircraft, as
if those explosive bomblets were cluster munitions.
Division 2 – Actions in relation to cluster munitions
10. Seizure, forfeiture, and destruction of cluster
munitions-(1) A cluster munition in respect of which an offence
against section 6 has been committed:
(a) may be seized without warrant by an officer; and
(b) if not owned by the Government, is forfeit to the
Government; and
(c) must be either -
(i) authorised under section 12; or
(ii) destroyed by an officer.
(2) A cluster munition to be destroyed under subsection
(1)(c)(ii) must be retained, pending destruction, as the Minister
thinks fit.
11. Application of Customs Act 1977 - The provisions of the
Customs Act 1977 that apply with respect to prohibited imports and
prohibited exports, except the penalties for offences under that Act,
shall extend and apply with respect to cluster munitions whose
importation and exportation is prohibited under this Act, in all
respects as if the importation or exportation of the goods were
prohibited under the Customs Act 1977.
12. Minister may authorise cluster munitions for certain
purposes-(1) For the purposes of developing, or training persons in,
techniques of cluster munition detection, clearance, or destruction,
the Minister may, by notice in writing, authorise cluster munitions
to be used, acquired, possessed, retained, or transferred.
(2) The Minister must not make a notice under subsection (1) if
the making of the notice will result in the total number of cluster
munitions authorised by all notices made under subsection (1)
exceeding the number determined for the time being by the Minister
under subsection (3).
2012, No. 11 Cluster Munitions Prohibition 9
(3) The Minister must specify, by notice in the Savali and in one
other newspaper circulating in Samoa, the number of cluster
munitions determined by the Minister to be the number that for the
time being is the minimum number that is absolutely necessary for
the purposes referred to in subsection (1).
Division 3 – Information
13. Purpose of this Division - The purpose of this Division is
to ensure:
(a) that the Chief Executive Officer has knowledge of
dealings with cluster munitions that facilitates the
making of Samoa’s reports or clarifications under the
Convention; and
(b) that Samoa is otherwise able to fulfil its obligations
under the Convention.
14. Supply of information-(1) A person who uses, develops,
produces, otherwise acquires, possesses, retains, or transfers a
cluster munition must:
(a) notify the Minister of the cluster munition as soon as
practicable; and
(b) keep records in relation to the cluster munition and the
purpose to which the cluster munition is put; and
(c) prepare from those records, and send to the Chief
Executive Officer, periodic reports relating to the
cluster munition that are sufficient to enable the
Minister to determine whether the Convention, this
Act, and any regulations made under this Act are
being complied with.
(2) A person commits an offence who:
(a) without reasonable excuse, refuses or fails to comply
with subsection (1); or
(b) in any document prepared under subsection (1), makes a
statement or omits any matter knowing that, or being
reckless as to whether, the statement or omission
makes the document false or misleading in a material
particular.
(3) A person who commits an offence under subsection (2) shall
be punishable, upon conviction, to:
(a) if the offender is a corporation, a fine not exceeding
10,000 penalty units; or
10 Cluster Munitions Prohibition 2012, No. 11
(b) if the offender is a natural person, a fine not exceeding
1000 penalty units, or imprisonment for a term of
one (1) year, or both.
(4) Nothing in this section applies to a person whose conduct in
relation to a cluster munition is, by reason of section 7(5), not an
offence against this Act.
PART III
MISCELLANEOUS
15. Regulations - The Head of State, acting on the advice of
Cabinet, may make regulations, not inconsistent with this Act,
prescribing all matters required or permitted by this Act to be
prescribed, or necessary or convenient to be prescribed for carrying
out or giving effect to this Act, and in particular, making provision
for, or with respect to the following:
(a) providing for any matter that is necessary or desirable for
the purpose of implementing the Convention;
(b) prescribing offences in respect of the contravention of,
or non-compliance with, any regulations made under
this Act;
(c) prescribing penalties not exceeding 100 penalty units for
offences against regulations made under this Act;
(d) providing for any other matters contemplated by this
Act, necessary for its administration, or necessary for
giving it full effect.
16. Consequential amendment - Section 14(1) of the Police
Powers Act 2007 is amended by deleting the word “The” and
replacing it with “Subject to the Cluster Munitions Prohibition Act
2012, the”.
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The Cluster Munitions Prohibition Act 2012 is administered
by the Ministry of Foreign Affairs and Trade.
