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PORTFOLIO COMMITTEE ON SAFETY AND SECURITY
6 September 2002
BUILDING AND RENOVATION OF POLICE STATIONS: BRIEFING BY PUBLIC WORKS AND SAPS; RATIFICATION OF THE OAU CONVENTION ON THE PREVENTION AND COMBATING OF TERRORISM
Chairperson: Mr EM George (ANC)
Documents Handed out:
Presentation by the South African Police Services on Safety and Security Facilities
Index of Capital Works
Explanatory Memorandum: Ratification of the International Convention for the Suppression of the Financing of Terrorism, the OAU Convention on the Prevention and Combating of Terrorism and the International Convention for the Suppression of Terrorist Bombings (Appendix 1)
International Convention for the Suppression of Terrorist Bombings
OAU Convention on the Prevention and Combating of Terrorism
International Convention for the Suppression of the Financing of Terrorism
The Committee was dissatisfied with the Department of Public Works' slow progress on building and maintaining government buildings. It was suggested that low morale amongst the police force was due to poor working conditions. The Department responded that funding for the SAPS was low due to huge funds being expended on unplanned maintenance. The Department has asked the National Treasury for extra funding. The Committee unanimously agreed to the ratification of the OAU convention on the prevention and combating of terrorism. Members were concerned that South Africa has not passed its legislation on terrorism yet. The South African Law Commission handed its project report to the Minister of Justice on 29 August 2002.
The Chairperson expressed his dissatisfaction with the slow progress of the Department of Public Works in building and renovating police stations. He attributed the low morale of the police force to poor working conditions. He invited the Public Works officials to explain the slow progress.
Mr Hlela: the Deputy National Commissioner of the South African Police Services (SAPS), gave a presentation on the SAPS' budget allocation from the Department of Public Works for the current year (2002/2003). He mentioned that the SAPS was under-resourced and that it also faced budget constraints. However, he also stated that he was happy with the progress of the Department of Public Works.
Mr Samuels: Department of Public Works, acknowledged that funding for the SAPS was low and that his Department had asked the National Treasury for extra funding. He also added that slow progress was due to huge funds being expended on unplanned maintenance. These funds constituted R53m from the SAPS vote for the financial year 2002/2003.
Mr Zondo (ANC) asked the Department of Public Works representatives if they were doing anything about the current backlog.
Mr Samuels said that the Department had done some backlog studies and that they were looking into the issue.
Mr Zondo also wanted to know if there were any private donors who funded the building and renovation of police stations. What was the role of local government in the building and renovation of police stations?
Mr Samuels said that he had no knowledge of the funding sourced by the National Treasury for the SAPS. He said that local government was involved since they were responsible for maintaining provincial state assets.
Mr Swart (DP) asked if the Deputy National Commissioner was satisfied with the Department of Public Works' achievements.
Mr Hlela explained that initially he was unhappy with the Department of Public Works and that he then commissioned teams to investigate the progress of provincial Public Works. Following that he had meeting at Director General level to discuss the issue and reached some agreements. Those agreements have been fulfilled and it was on this basis that he was satisfied with the Department of Public Works.
Mr Swart (DP) asked if the Commissioner had statistics of police stations that had been given notice in terms of the Occupational Health and Safety regulation.
The Commissioner did not have the statistics.
Mr Kgauwe (ANC) wanted to know which geographical areas had problems in receiving discretionary funds. This question was not answered.
Mr Kgauwe also asked who was responsible for drawing the budgetary needs of police stations.
Mr Hlela said that it was the MEC and provinces and that the Commissioner would certify the budget.
The Chairperson interjected and once again lashed out at the Department's inefficiency, unresponsiveness and irresponsibility. He did that by way of examples of dilapidating and unsafe police stations in Eastern Cape. He also pointed out that it was a sad fact that while the police were central towards general public safety, they had to work under appalling conditions. He also opined that the money wasted on correctional services could be used for SAPS so that there would be less crime and less need for funding correctional services.
Ms Van Wyk (UDM) questioned the efficiency of the Department of Public Works and the possibility of privatising the building and renovation of public buildings. She substantiated her argument by pointing to an example of a construction of a shopping mall, which went up quickly and efficiently.
Mr Samuels disagreed. Even if it were privatised, he reasoned that the problems would remain the same.
Mr Mnyamezeli (ANC) was dissatisfied about the progress and integrity of the Department of Public Works. He said that he was tired and not impressed by the presentations when there were backlogs that could have been reduced a long time ago.
Mr Skippers (ANC) agreed that the Department of Public Works was slow and inefficient. He made an example of his constituency in East Paarl where the building of a police station has been postponed for five years.
Mr Kgauwe reckoned that it seemed as if the SAPS did not know what proportion of the budget it was allocated and he viewed that as a serious problem of ignorance and miscommunication. He then lashed out at the Department of Public Works for its dishonesty by stating, "the Department is taking us for a ride. They are lying every time they come to us".
One Member (ANC) wanted to know what was delaying the construction of a police station in Sakhile and Vosman. The Chairperson interjected and explained that the Department had already gave broad reasons for the delay of the construction of some police stations. Another Member (ANC) also reiterated the same question and asked whether the provincial government was responsible for the building of police stations. The Chairperson resolved that the Committee would write a letter to the National Commissioner to assess how the Committee could help the SAPS. The Committee, the SAPS representative and the Department of Public Works' representatives agreed to the Chairperson's suggestion. The Chairperson, however, pointed out that the meeting was not to grill Public Works but to get the facts and reach agreement on solving the problems.
Ratification of the OAU Convention on the Prevention and Combating of Terrorism
Dr Jacobs: Assistant Commissioner, South African Police Services, thought that the meeting was supposed to focus on the ratification of three protocols. However, the Chairperson indicated that a letter from the Deputy Speaker requested the Committee to deal only with the OAU convention.
Dr Jacobs then presented the background to the ratification of the convention. The OAU Convention on the Prevention and Combating of Terrorism was signed by South Africa, as a Member State of the Organisation of African Unity (now the Africa Union), after it was adopted in Algiers on 14 July 1999. Ratification by Parliament would mean that South Africa will have regional as well as international obligations to fulfil concerning terrorist acts.
The Committee's concern was that while South Africa was a signatory to the convention, it did not have legislation on terrorism. Presently, terrorism can be addressed by section 54 (1) of the Internal Security Act, Act 74 of 1982. The South African Law Commission, in Project 105, has completed its review security legislation, especially legislation with regard to terrorism. SALC handed a report to the Minister of Justice on 29 August 2002.
The Committee decided to appeal to the Department of Justice to speed up the passing of the Bill on anti-terrorism.
The Committee unanimously agreed to the ratification of the convention. The meeting was adjourned.
RATIFICATION OF THE INTERNATIONAL CONVENTION FOR THE SUPPRESSION
OF THE FINANCING OF TERRORISM, THE OAU CONVENTION ON THE
PREVENTION AND COMBATING OF TERRORISM AS WELL AS THE
INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF TERRORIST
On 28 September 2001, after the unfortunate incidences at the World Trade Centre, the Pentagon and in Pittsburgh, the Security Council of the United Nations, adopted a Chapter VII Resolution, Resolution 1373/2001 binding on all Member States. This Resolution is significant for a number of reasons, including the fact that it reproduced some of the provisions of the International Convention for the Suppression of the Financing of Terrorism, thereby creating the same legal obligations separately from the Convention. It also created an obligation for all member States to ratify all the Anti-Terrorism Conventions of the United Nations.
The Council also established a Committee of the Council to monitor the Resolution's implementation and called on all States to report on actions they had taken to that end not later than 90 (ninety) days from the 28 September 2001.
The following obligations were placed on member States in terms of UN Resolution
-the prevention and suppression of financing of terrorism;
-the criminalizing of the willful provision of funds for such acts; taking the necessary steps to prevent the commission of terrorist acts;
-denying a safe haven to those who finance, plan, support, commit terrorist acts and provide safe havens as well;
-bringing to justice those who have participated in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts (the seriousness of such acts must be duly reflected in the sentences);
-affording one another the greatest measure of assistance in criminal investigations and proceedings relating to the financing or support of terrorist acts;
-preventing movement of terrorists or their groups by effective border control;
- intensifying and accelerating the exchange of information regarding terrorist actions or movements, forged or falsified documents, trafficking in arms and sensitive material, use of communication and technologies by terrorist groups and the threat posed by the possession of weapons of mass destruction;
-before granting refugee status, to take appropriate measures to ensure that the asylum seekers had not planned, facilitated or participated in terrorist acts;
-ensuring that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts;
-that claims of political motivation shall not be recognized as grounds for refusing requests for the extradition of alleged terrorists.
South Africa has supported, also in the Non-Aligned Movement, the combating of terrorism.
Presently, terrorism can be addressed by section 54 (1) of the Internal Security Act, Act 74 of 1982. The South African Law Commission, in Project 105, is busy reviewing security legislation, especially legislation with regard to terrorism.
The International Convention on the Suppression of the Financing of Terrorism was signed by the President on 10 November 2001. Although the signing of the Convention placed no legal obligations on South Africa, the Chapter VII Resolution, taken on 28 September 2001, places obligations as mentioned above on the Republic of South Africa as a Member State. The OAU Convention on the Prevention and Combating of Terrorism was signed in 1999 as was the International Convention for the Suppression of Terrorist Bombings.
2.1 THE INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF THE FINANCING OF TERRORISM.
This Convention was negotiated during 1999 and unlike the previous nine counter terrorism conventions, the new Convention does not deal with terrorism crimes, but with the financing of such crimes.
2.1.1 What is of importance in this Convention, is that the word "funds" is widely defined and includes:
assets of every kind, whether tangible [eg. cash] or intangible [eg. a bank accountj movable [eg. diamonds] or immovable [eg. landj however acquired [legally or illegallyj and legal documents or instruments in any form, including electronic or digital evidencing tide to, or interest in, such assets, including, but not limited to, bank credits, travelers cheques, bank cheques, money orders, shares, securities, bonds, drafts and letters of crediL"
2.1.2 The following offences are identified in article 2 of the Convention:
· A person who, by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used,- in full or in part, in order to carry out.
· Any act as appear in the scope of and as defined in the treaties listed in the annexure (attached to the Convention for your convenience).
· Any act intended to cause death or serious bodily harm to noncombatants, where the purpose of such an act, by its nature or context, is to intimidate a population, or compel aGovemment or an international organisation to do or abstain from doing any act.
2.1.3 If a member State is not a signatory, or has not acceded or ratified the
Conventions indicated in the annexure, the treaty shall be deemed not to be included in the annexure. The Conventions are listed for the sole purpose of defining the offence of financing of terrorism. A State thus has an option of making a declaration to exclude any treaties mentioned in the annexure, which it is not a party to.
2.1.4 It should be mentioned that the offence of financing of terrorism could also be committed by a legal entity, such as a company. The reason for this is that usually, large sums of money are involved and it is likely that at some stage a legal entity, such as a bank or trust, will be the means by which the money is made available, directly or indirectly, to the terrorists. When this has been done with the help of a person responsible for the management or control of the entity, it is important that the entity should be accountable. This is a deterrent and clear warning for banks and other entities to ensure that they are not being used, with the active involvement or knowledge of the persons in management or control in of them, to transmit funds to terrorism.
2.1.5 The Convention, in article 8, provides for funds to be seized and forfeited. This also applies to the proceeds deriving from terrorist financing. State parties are encouraged to establish mechanisms whereby such funds can be used to compensate the victims of terrorist offences.
2.1.6 Article 12 prohibits the refusal of a request for mutual legal assistance on the ground of bank secrecy. This is in line with the Palermo Convention's article on money-laundering, as the financing of terrorism, as well the
money-laundering in the case of transnational organized crime, are regarded as very serious offences.
2.1.7 Article 13 provides that financing of terrorism, for the purposes of extradition Thand mutual legal assistance, shall not be regarded as fiscal offences. Usually no extradition can take place in the case of fiscal offences.
2.1.8 International cooperation, as is contained in article 18, is intended to enhance further practical cooperation between the State parties to prevent and counter preparations for terrorist financing, whether inside or outside their territory. The measures include identification by financial institutions of unusual or suspicious transactions, and reporting transactions suspected of stemming from crime.
No unidentified or unidentifiable holders should be allowed to open an account and the identity of "real owners", particularly legal entities, must be determined.
-Financial institutions must promptly report all complex, unusually large transactions and unusual patterns of transactions, which have no apparent economic or obvious lawful purpose, and
Financial institutions must keep record of transactions, both domestic and international, for at least five years.
State parties are also required to consider
-supervisory measures, such as the licensing of all money-transmission agencies,
-measures to detect and monitor the physical cross-border transportation of cash and bearer negotiable instruments,
-exchanging accurate and verified information concerning all aspects of terrorism financing, and
-conducting inquiries with respect to terrorist financing concerning the identity, whereabouts and activities of suspected persons and the movement of funds involved.
2.1.9 The legal obligations on State parties, after it has ratified the Convention in terms of article 25, will have to be dealt with in either the Financial Intelligence Centre Act, which was partially enacted, which would have to be amended, or, as was suggested by the South African Law Commission, in the Anti-Terrorism Bill, which criminalizes the financing of terrorism. Currently, 31 Member States have ratified this Convention and the Convention is in operation.
THE OAU CONVENTION ON THE PREVENTION AND COMBATING OF TERRORISM
2.2.1 The above mentioned Convention was signed by South Africa, as a Member State of the Organization of African Unity (now the Africa Union), after it was adopted at in Algiers on 14 July 1999.
2.2.2 What is of importance in this Convention is:
(a) The definition of "terrorist acts" is, at the moment, in conformity with the Comprehensive Convention on International Terrorism, which is currently being negotiated by the Sixth Committee, a Working Group established by the General Assembly of the United Nations.
(b) Struggles waged by people in accordance with the principles of international law for their liberation or self-determination, including armed struggles against colonialism, occupation, aggression and domination by foreign forces, shall be considered as terrorist acts.
(c) Political, philosophical, ideological, racial, ethics, religious or other motives shall not be a justifiable defense against terrorist acts.
(d) The Convention strives to strengthen the exchange of information between State Parties regarding:
- terrorist groups, their activities and arrests;
- communication and propaganda methods, movement of their leaders and their travel documents;
- studies, researches and expertise relating to control of terrorism acts;
(e) Article 6 requires extra-territorial jurisdiction. In Article 8, extradition is discussed and the Convention provides that this will take place under extradition agreements between State Parties and within the limits of their national laws.
(f) Provisions are made for extra-territorial investigations (commission rogatoire) and mutual legal assistance, which will allow for criminal investigations to be carried out with the assistance and cooperation of another State Party. These extra-territorial investigations must be executed in compliance with and subject to the national laws of the requested State.
(g) To date only a few State Parties have ratified this Convention. As the African Union has high regard for South Africa, it is strongly recommended that South Africa ratify this Convention as soon as possible, and thus set the example.
2.3. RATIFICATION OF THE INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF TERRORISM BOMBINGS
2.3.1 The above mentioned Convention was negotiated during 1997 and -ad opted by the General Assembly of the United Nations on 15 December
1997. South Africa signed the Convention on 21 December 1999.
2.3.2 The importance of this sectoral Convention is that it deals with terrorist bombing, as terrorist attacks by means of explosives or other lethal devices have become increasingly widespread.
(a) The main aim of the Convention is the prevention of such terrorist acts and the prosecution and punishment of the perpetrators.
(b) The activities of military forces of States are not covered by this Convention.
(c) Offences within the scope of the Convention are defined in Article 2. This includes the delivering, placing, discharging or detonating explosives or other lethal devices with the intent to cause death or serious bodily injury in order to compel a State to do, or abstain from doing, any act. The scope includes an offence committed on board an aircraft.
(d) The "prosecute or extradite" principle, as is found in all the sectoral Conventions on Terrorism, is also followed in this Convention (see Article 8).
(e) Political offences are not regarded as a defense in terms of this Convention and extradition may not be refused on this ground.
(f) The prevention of acts of terrorism bombing has priority in terms of this Convention. In Article 15, State Parties have the obligation to prevent and counter preparations for the commission of these offences within and outside their territories. Accurate and verified information must be exchanged under certain circumstances. Research and development of methods of detection for explosives, including the marking thereof, must take place.
2.2.3 To date 59 Member States have ratified the Convention and the Convention is in operation.
2.2.4 A clause was inserted in the Explosives Bill to deal with terrorist bombings (with explosives) but the Anti-Terrorist Bill takes the matter further to include "other lethal device.
Should the Conventions be ratified or acceded to by Parliament, the Republic of South Africa will have regional as well as international obligations to fulfil concerning terrorist acts. The legislation concerning "terrorism" are addressed in the Anti-Terrorism Bill which is in the final stages of drafting.
4. LEGAL OPINIONS
The State Law Advisers (their opinion is attached hereto) as Annexure "A", have reservations with regard to the ratification of the Conventions, because South Africa will not be able, although it is willing, to implement the Conventions.
The Chief State Law Adviser's (International Law) opinion is attached as Annexure B". -
5. SECTION 231(4) OF THE CONSTITUTION
The Conventions contain no self-executing provisions.
6. FINANCIAL IMPLICATIONS
In respect of most Departments the enforcement and implementation of the Conventions will be done in terms of normal line-function responsibilities, for which Departments have budgeted. The additional monitoring, intelligence and policing
functions required, cannot be quantified and expressed in terms of budgetary implications. In respect of the International Convention on the Suppression of Financing of Terrorism, the Financial Intelligence Centre to be established in any event in terms of the Financial Intelligence Centre Bill, 2001, will play a major role.
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