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SECURITY AND CONSTITUTIONAL DEVELOPMENT SELECT COMMITTEE
29 July 2002
OAU CONVENTION ON TERRORISM
Documents handed out:
OAU Convention on terrorism
Legal opinion on the Convention
The Committee recommended the ratification of the OAU Convention on Terrorism. The DP raised concerns about the legal consequences of ratifying a document drawn up by an organisation that no longer exists. Concerns were also raised about the haste with which the Committee had been expected to deal with the convention - a document that had not previously come before them. The opinion was expressed that the issue should have been relayed to the provinces, as terrorist acts had taken place within the provinces as well. The haste with which the Committee decided on the issue was due to the request made by the African Union to the Speaker that the convention be ratified before September 11th.
The Chair explained that the Committee would be discussing the treaty on terrorism. He apologised for the members having been called in at short notice and noted that there was a quorum in order for the Committee to endorse ratification. The matter was being dealt with differently and with haste because of a discussion held in the whippery that had decided that the convention needed to be endorsed before September 11th. As "leader" of the African Union, the South African government would be embarrassed if it had not endorsed the treaty. A special sitting of the House would take place that afternoon to endorse the convention.
Mr Phillip Jacobs (Justice Department) presented a briefing on the convention. He began by explaining the background to the convention, which was still referred to as the OAU Convention although the AU had succeeded the OAU. The Convention had been signed in 1999 and tabled in parliament, along with two other related conventions. The OAU Convention had been signed by only 13 countries and required 15 signatures to come into operation. Ratification by South Africa would give impetus to the ratification and coming into operation of the convention.
There were 12 UN conventions on terrorism and then the OAU Convention. South Africa was in the process of ratifying all these conventions. A draft Bill on terrorism would also be introduced in parliament. A legal opinion had been obtained from state law advisors on the OAU Convention. in terms of international law, a country must have legislation in place before signing a convention, but this was not necessary as indicated by the precedent set by the Rome Statute.
South Africa and other countries were under a lot of pressure with regard to their position on terrorism and were in the process of reviewing and ratifying all UN and other conventions on terrorism. Aspects not covered by South African law were extended jurisdiction and extradition. However these were being covered in draft legislation and once passed, South Africa would be in line with all the UN conventions and the OAU Convention.
The Chair asked if the Committee needed a more detailed briefing on the convention.
An ANC member felt that it was unfortunate that the Committee had only just received the documentation. A problem was created when the Committee was given such a large volume of documentation to go through in such a short space of time. The state law advisors document had gone to parliament on the 31 of May and the Committee had only received it now on the same day that it was expected to really go through the document. There was a need for the Committee to be briefed, as it could not be expected that they would pass the convention without knowing it. It was also necessary in order for members to contribute on the document.
The Chair asked if there was a dissenting view. He pointed out that even the National Assembly was in the same predicament. The Portfolio Committee had met the previous Friday to consider the same document. It had been stuck somewhere between the Cabinet and Parliament.
Mr Lever (DP) asked that Mr Jacobs explain what mechanism of the AU allowed it to take on conventions of the OAU and whether or not the OAU Convention was in conflict with the UN conventions. He agreed that the Committee should go through the document.
Mr Jacobs reiterated that the Convention had been tabled in Parliament on the 15 August. The Speaker had been requested by the AU to ratify the Convention before September 11th. The AU had followed in the steps of the OAU and the Convention had been developed and signed under the auspices of the OAU and would be addressed by the AU as something that had come to it.
The OAU Convention was based on the UN Convention on Terrorist Bombings, however the scope of the OAU was much wider than only terrorist bombings. Mr Jacobs read through the Convention and highlighted important aspects.
The first important provision was paragraph 3 of Article 1, which defined a "terrorist act" rather than "terrorism". The 6th Committee of the UN was negotiating on a comprehensive convention on terrorism and the definition was in line with the definition in the OAU Convention. this was an indication that the definition would remain in line, although negotiations for the UN Convention might take a long time.
In terms of the OAU Convention, the Secretary-General of the OAU must be notified of all legislative measures relating to terrorism. The scope of the convention gives countries one year in which to enact it into national legislation. Paragraph 1 was also reflected the NAM position. He pointed out that a number of provisions relating to the financing of conventions are mandatory.
Paragraph 3 of Article 6, relating to state jurisdiction, was also in line with the Terrorist Bombing Convention. Paragraph 2 dealt with one of the problems of the present terrorist legislation. Section 54 of the Internal Security Act dealt with acts committed against the South African government. The problem with a September 11th situation was that a number of nationalities might be involved. The Law Commission had included this extended jurisdiction, which had also been included in the Terrorist Bombing Convention.
Article 8 of Part 4 dealt with extradition and expects countries to either prosecute or extradite. In terms of the present law the political exception is still valid, although a political motive is not sufficient cause for a terrorist act.
Part 5 deals with mutual legal assistance for investigative purposes and tracking down evidence. Article 15 sets out the grounds on which assistance may be refused, while the annexure lists other international conventions and countries that are obliged to consider this convention's ratification.
The Chair responded that Mr Jacobs had made it very simple and clear. Any country that respects its citizens, constitution and the rule of law would endorse the treaty.
Ms Kgoali (ANC) said that it was a pity that when the meeting had been opened the chair had said that the chief whips had agreed that the Convention must be accepted. It was unfortunate that the convention was going to be signed without a definition of "terrorism". She was not happy about either the definition or what constituted terrorism and was worried about the fact that Mr Jacobs had said that there is no agreement on the definition of terrorism. She had attended the IPU in Morocco where it had been clear that all states are unhappy about this issue. She could not say no to the convention as the leaders had taken a decision, but made a reservation as an MP on the definition.
An ANC member commented that while she recognised acts of terrorism as bad for the country, it was important for us as a country to look into it. Passing the convention was fine but the definition must be taken into account. The convention was supposed to be accompanied by legislation. Legislation was not in place but the convention was being passed. She could not see how it was going to help, given that there was no definition.
Mr Lever referred back to his earlier question concerning the mechanism with which the AU will take over the convention of the OAU. Mr Jacobs had said that the AU would follow on the OAU and Mr Lever questioned if that were a principle of law or a treaty of the AU. Regarding the definition, he felt that there was a conflict between the two documents that the Committee had been given. Paragraph 2.2(b) of the treaty says one thing while the second document says another and he asked for an explanation. He commented that notwithstanding the definition, it might be open to state parties to use other conventions, such as the Rome Statute to convict perpetrators of, for example, crimes against humanity. He pointed out to the Committee that the convention makes provision for the reviewing of legislation after the passing of the convention.
Mr Jacobs responded that the convention had been signed long ago - it was only the ratification that was waiting. The state law advisor's opinion was dated May 2002. The Law Commission process was complete on the Bill and the report. Both would be tabled in parliament. He was not quite sure on the way in which the AU succeeded the OAU but he was sure that there are provisions in the AU to take over. The Meeting of Experts in Algiers is the practical implementation of the convention. There was no definition of "terrorism" but what was defined was not that but "terrorist acts". He did not think that there would be agreement on "terrorism" because of political considerations.
Mr Lever asked what the effect was of ratifying an OAU Convention after the OAU had ceased to exist. He was not sure that what the legal consequences of such an act would be and remarked that he had not been pointed to a substantive mechanism.
Mr Jacobs responded that he could make a phone call and find out for Mr Lever. He was sure that there was a binding mechanism.
Mr Lever reiterated that he wanted to know what the legal consequences were of ratifying a convention of an organisation that had ceased to exist.
Mr Jacobs turned to the outstanding issue of the overlapping of conventions. Terrorism had been addressed haphazardly in conventions and depended on particular incidents - where there was a bombing there was then a convention on terrorist bombings, and the same applied to hijackings etc. the overarching convention would be the one that was being negotiated by the 6th Committee of the UN. To some extent, some of that had been achieved in the OAU convention, which obliges all countries to review their legislation in this respect. One convention is complementary to the other and the OAU convention is complimentary to all existing conventions on terrorism.
The Chair commented that despite minor objections, there were no fundamental differences of opinion.
Mr Surty (ANC, Chief Whip) remarked that he was not a member of the Committee and inquired if the briefing was being done by the Department of Safety and Security or Foreign Affairs and was answered that it was by Safety and Security. He acknowledged that the convention needed to be adopted timeously but questioned the delay. The NCOP had gone to enormous lengths to ratify the document on that day. It was an important document and it seemed to be a somewhat rushed exercise in bringing it to parliament. He spoke on behalf of all political parties in this regard and asked for the message to be conveyed to the people responsible.
The Chair thanked Mr Surty and said that he expressed the same sentiments and noted the minor differences of the Committee.
Mr Jacobs added that the convention had been tabled on the 15th of August. The request had come from the AU and it was not the Department's request that it would be dealt with in such a fashion.
Ms Kgoali (ANC) felt that this was not a minor concern but a major concern because it was binding on a country. She questioned if the UN was aware of the problem of this parliament. The document was an important one and the concerns raised were not minor. The matter should have been given to the provinces because these were things that had happened in a particular province and not only in the US.
The Chair felt that as leader of the AU, it was important for South Africa to show that it was committed to peace, especially bearing in mind September 11th.
Ms Lubidla (ANC) questioned what was going to happen concerning the definition issue. She felt it worrying since in the past any person who did something was labelled as a terrorist, and the convention was now being given the support of the government. She questioned if each and every struggle would now be labelled as a terrorist act and whether or not the definition could be changed later.
The Chair pointed out that Article 1 provided a definition for "terrorist acts" and not "terrorism".
Mr Lever requested that Mr Jacobs make the phone call that he had mentioned, as he would like to know the legal implications before the debate in the House.
Mr Surty felt that it was not a big concern because the AU was the successor of the OAU and there was nothing preventing member states from adopting a document that had previously been adopted. However, Mr Lever was entitled to his opinion. It was clear that the Committee was sitting with an important document. It was also clear that there had been inadequate communication between the Departments of Safety and Security, Justice and Foreign Affairs. The NA had sent the convention to the Portfolio Committee on Security, but it was clear that it overlapped with Justice. He recommended that the procedures regarding this be revisited. The Justice Committee had felt that they could have given an opinion. He stressed the need for haste as he did not want to delay the plenary because of members expected on flights back to the provinces. Mr Lever's position could be dealt with after the Committee had taken their position, and Mr Lever agreed.
Mr Jacobs said on the concern raised about struggles that Article 3 provided that political struggles were not regarded as terrorist acts.
The Committee endorsed the convention and the Chair read the report of the Committee recommending the ratification of the convention and declared the convention to be ratified by the Select Committee.
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