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SAFETY AND SECURITY PORTFOLIO COMMITTEE
14 May 2003
ANTI-TERRORISM BILL: BRIEFING BY DEPARTMENT
Chairperson: Mr M George (ANC)
Anti-Terrorism Bill [B12-2003]
Committee Working Document - circulated on 14 May 2003
Presentation by Department
Definitions of "terrorism"
Existing South African Laws on Terrorism (Appendix)
The deadline for public submissions on the Bill has been extended to 23 May 2003. The DA stated that the definition of "terrorism" in the Bill will be crucial, and contended that Part (b) of the current definition is too wide. The South African Police Service (SAPS) stated that the Working Document can be used by the Committee as a basis when it processes the Bill, and it is essentially a fusion of the best elements from the two versions of the Bill. It does not contain any new provisions. The ANC asked SAPS to respond to the concerns raised by the National Editors Forum with the negative impact the Bill would have on the press.
Introduction by the Chairperson
The Chair stated that some interest groups argued that the period of one month allocated for public submissions was too short, and that more time had to granted. Yet this seems to be nothing more than a delaying tactic by groups who do not want the legislation to be passed. The Chair stated that he had told those groups that their tactics will not work, and they will not prevent the passage of the Bill through Parliament.
It was however decided that the period for the receipt of public submissions would be extended to 23 May 2003, in order to accommodate the interest groups. This Bill has received much hype, especially from the Islamic community, who argue that the Bill seeks to target them. Yet, the process of introducing this Bill began as far back as 1995, well before the September 11 attacks. The intention of the Bill is to fight and combat terrorism, and it is not aimed at any specific group in South Africa. Those against the legislation have also contended that the current laws are adequate to deal with terrorism. But this is not the case, hence the need for the Bill.
Briefing by Department
Dr P Jacobs, the South African Police Service (SAPS) Assistant Commissioner, conducted the presentation (document attached), which outlined South Africa's international obligations to anti-terrorism, the history of the legislation, the definitions of its terms, the necessity for the Bill, the drafting and consultation process, the contents of the Bill as well as the objections and motivation for the introduction of the Bill.
Mr M Booi (ANC) stated that the ANC was aware of the history of the Bill, the criticisms leveled against it and the need for the Bill. The ANC was not opposed to the Bill.
Adv P Swart (DA) stated that the current version of the Bill was very different to the 29 January 2003 Draft. Clause 11 stipulates that they must answer the questions posed to them. How did this relate to the right to remain silent? When exactly would the person be kept in detention?
Dr Jacobs replied that Chapter 3 was taken from the Canadian legislation, and was aimed at dealing with a person that refused to co-operate and answer questions. The authorities would have to show that that person did in fact have the information needed, and that person would be handled in the same way as a recalcitrant witness. The court would have a hearing on this and could even punish the person for refusing to co-operate. The provision did not allow the person to be detained indefinitely, as was the case under the previous Section 29.
Mr D Gibson (DA) stated that the focal point of this piece of legislation was the definition of "terrorism". Was Part (b) of the definition of "terrorist organisation" in Clause 1 not too widely framed? There were many South Africans who suspected that this law would grant the law enforcement authorities too broad a reach, and they would object to this Bill if Part (b) was retained. Would it not be better to specify exactly the offences that had to be included in this provision?
Mr E Ferreira (IFP) contended that Part (b) was so widely framed that it could even include a bank robber as a "terrorist organisation".
The Chair agreed that the Bill lacked a definition of the term "terrorism", and stated that a definition was currently being sought after. There were certain issues that had been omitted from the Bill by the State Law Advisors, and this had in fact inhibited the progress of this Committee. He reminded Members that officials would always abuse their powers, even Ministers, and all that could be done was to put measures in place to curb this abuse. It was precisely these types of measures that were included in this Bill.
The Chair stated that the word "likely" created too wide an ambit, and was the cause of the problem.
Dr Jacobs responded o Mr Gibson's concern by stating that it was useful to look at the difference between the tabled Bill and the certified version of the Bill. It was decided that the best option would be to have discussions on the definition inside Parliament, instead of arriving at a definition and then presenting it to this Committee for consideration. He agreed that the definition was the focal point of the Bill.
The tabled version of the Bill contained the specific offences and then provided the general definition of a "terrorist act". The problem with the tabled version was that the offences in the previous draft were not linked to the definition of the term terrorism in that Bill. Government had then considered both the criticisms and recommendations made in this regard, and redrafted the provision.
A second difficulty was the problem posed by the funding of terrorism. South Africa had recently become a member of the Financial Action Task Force, which had devised legal standards to be followed in this regard. The Task Force looked at the draft and concluded that it was not in line with the Conventions to which South Africa had assented. It was of the opinion that there was only a cryptic reference to "terrorism" via a deeming clause. Instead, a specific clause was needed to spell out the offences.
Dr Jacobs referred members to the Working Document (document attached). It had no official status, but merely served as a basis for the Committee and it could work through the Working Document clause-by-clause. The Working Document was therefore a "living document". The reworked definition in the Working Document now specifically linked the definition of a "terrorist act" to all the offences, which were spelt out. Certain elements had been re-inserted, as it was in the tabled version of the Bill. A specific reference was made to "property", following the recommendation of the South African Law Commission (SALC).
The result was that the definition in the Working Document was much more comprehensive. It was a mixture of the definition proposed by the State Law Advisors and the definition contained in the table version of the Bill. Part (b) of the definition now also qualified the "terrorist act" defined in Part (a). Part (b)(v) then also excluded certain categories of acts from application of this clause by stating "other than as a result of lawful advocacy, protest, dissent or stoppage of work that did not involve an activity that was intended to result in the conduct or harm referred to in any of subparagraphs (i) to (iii)".
Part (c) creates a specific link between the terrorist acts listed in the provision and the particular Conventions contained in Schedule 1 of the Bill. The Bill should contain a very good definition of "terrorist act". Dr Jacobs then referred Members to the "Definitions of Terrorism" document (attached) which lists the Conventions South Africa had ratified and how each had defined the term "terrorist act". He noted that the Organisation of African Unity Convention did not contain a definition of "terrorism".
Clause 1 on the Working Document will then contain the definition. Clause 2 will contain the offences and penalties. The "other offences" in Clause 3 refer to those who "knowingly" become involved in terrorist activities, and the precise meaning of "knowingly" had to be defined. The "extradition from the Republic" in Clause 7 had to be looked at further. The Department of Justice and Constitutional Development was currently dealing with an Extradition Convention, and will look at the category of "political exceptions". All efforts would be made to find out whether that legislation could be fast-tracked, or whether it could even be included in this process.
The "declaration of terrorist organisation" in Clause 16 had received criticism from those who contend that it violated the audi alterem partem rule. It must however be remembered that this provision creates an exceptional case, much in the same way that the Regulation of Communication Act specifically excludes the operation of the audi alterem partem rule. The current format of the Working Document is user friendly, and there was no need for any cross-referencing between two separate pieces of legislation. It is for this reason that Schedule 1 in the Bill only lists the Conventions, as the specific offences were spelt out in the body of the Bill itself. Clause 45 provides that the Minister of Safety and Security (the Minister) has to table the Report to Parliament within 30 days. This has to be extended to include regulations as well.
The document entitled "Existing South African Laws on Terrorism" (Appendix) contains the laws dealing with terrorism that have been found by the South African Law Commission (SALC) when it did its report on the matter. It also lists the shortcomings in the existing legislation and motivates the need for the introduction of this Bill. The SALC concluded that the existing laws were not adequate to prevent terrorism, and clearly raised certain difficulties that need to be addressed.
Mr Gibson thanked Dr Jacobs for the exceptional briefing. The problem was that there was a difference between the tabled version of the Bill and the version being referred to by Dr Jacobs. This was not useful because public comment had been invited on the tabled Bill, whereas many of the concerns addressed to that version might have been solved by the updates formulations in the Working Document. This would then in effect seriously hamper the public participation aspect. Would this latest draft be sent to the public as well for their comment?
Dr Jacobs replied by assuring Members that the Working Document in no way deviated from the tabled version of the Bill, and nothing new had been added to the Working Document. It merely addressed concerns between the two versions of the Bill, and was essentially a "fusion" of the best of the two versions.
Adv Swart stated that new offences had now been expressly included in the body of the Bill itself. This meant that every time new offences were introduced the Bill would have to be amended to accommodate those new offences.
Dr Jacobs replied that the Bill contained a provision granting the Minister the power to add new Conventions to the schedule. The Minister did not however have the power to add new offences. He conceded that this could create a problem if new offences were to be created.
Ms A Van Wyk (ANC) stated that she did not understand why the State law Advisors had effected the changes to the Bill that they had. Perhaps they could explain the rationale.
Ms Ayesha Johaar, State Law Advisor replied that she would prefer to explain the rationale when the Committee processes the Bill on a clause-by-clause basis.
Ms Van Wyk asked Dr Jacobs to respond to the objections raised by the National Editors Forum (NEF) that the Bill would impact negatively on press freedom.
Dr Jacobs replied that he did not believe that this Bill aimed to target any particular group specifically, except those who commit terrorist acts. The NEF contended that the investigative hearings in Chapter 3 would force them to disclose information, such as its source. These concerns were also raised with Section 205 of the Criminal Procedure Act, which was similar to Clause 11. SAPS was however in a difficult position when it came to the gathering of this information, because the media was always reporting that SAPS was not dealing adequately with crime, yet when SAPS requested the information from the journalists they refused and say it was privileged. This information was actually in the hands of the journalists. The Staggie case is a perfect example.
It also had to be remembered that Chapter 3 would be used as a last resort in cases where, as the bill itself stated, there was no other way to make progress in the matter.
The Chair concluded the meeting by stating that all those interests groups and submissions which merely state that they rejected the Bill were not assisting the process in any way. He urged people to also offer workable solutions to the concerns or problems they may have encountered with the Bill. The Bill was not aimed at targeting specific groups such as Islamic groups and journalists. It was aimed at preventing terrorism, and bringing those involved with it to justice. The public hearings on the Bill would probably take place in the second week in June 2003.
The meeting was adjourned.
Appendix : Existing South African Laws on Terrorism
EXISTING LAWS ON TERRORISM VIS-A-VIS PROPOSED COUNTER-TERRORISM LEGISLATION
The South African Law Commission dealt extensively with the question on whether existing laws relating to terrorism in South Africa is adequate, especially in view of international obligations relating to the combating of terrorism.
The Law Commission points out that the offence of terrorism which is set out in section 54(1) of the Internal Security Act, 1982, "relates only to terrorism in respect of the South African Government and population. The international threat of terrorism is, however, often directed at foreign officials, guests, a embassies and the interests of foreign states." The Law Commission specifically stated :"It can be argued that any act of terrorism can in any event be prosecuted in terms of existing law as such an act would constitute an offence, whether under statute or common law. The worldwide trend, however, is to create specific legislation based on international instruments relating to terrorism. The reason for this is twofold: firstly to broaden the normal jurisdiction of the courts to deal with all forms of terrorism, especially those committed outside the normal jurisdiction of courts, and secondly to prescribe the most severe sentences in respect of terrorist act." The Law Commission clearly stated its concern about the limited scope of section 54(1) of the Internal Security Act, 1982, and specifically expressed the need to address the intent required in respect of international terrorism. Conventions such as the Terrorist Bombing Convention, the African Union Convention on the Prevention and Combating of Terrorism, as well as the Terrorist Financing Convention oblige states to create in their legislation an extended jurisdiction in respect of terrorist offences. The jurisdiction clause proposed in the Bill is based on exactly the required jurisdiction. Following South Africa's recent ratification of the Terrorist Bombing Convention and the terrorist Financing Convention, the United Nations requested that South Africa should indicate which steps were taken to comply with the jurisdiction requirements, and the United Nations have been informed that the required jurisdiction will be created in the Bill now before Parliament.
International instruments require different acts of terrorism to be criminalized in terms of national legislation. This includes offences such as bombing offences, financing of terrorism, hijacking of aircraft, offences on platforms on the continental shelf, offences in respect of diplomatic personnel and embassies, piracy, etc. South African law does not have these specific offences, which could impede mutual legal assistance as well as extradition in respect of terrorist offences.
United Nations Security Council Resolutions, which are binding on South Africa and all other member States of the United Nations, requires specific action and creates obligations in respect of the combating of the financing of terrorist acts. The Law Commission specifically states that: "At present South Africa does not have legislation relating specifically to the combating of financing of terrorism. The provisions of the prevention of Organized Crime Act and the Financial Intelligence Centre Act have been developed to counter money-laundering in its traditional sense and are not specifically designed to apply to terrorism or terrorist activities. This must be remedied by including appropriate provisions in the proposed Bill.
South Africa has applied to become a member of the Financial Action Task Force(FATF), which is an international body which co-ordinates anti-money laundering activities, including the combating of the financing of terrorism, During a recent visit by representatives of the FATF, they expressed themselves strongly that the proposed Bill might need to be strengthened in respect of the combating of the financing of terrorism freezing of terrorist property and funds, etc. The impression was gained that the version of the Bill, as tabled might be preferable in this regard.
Any person who alleges that the present laws are adequate to combat terrorism and to comply with international obligations in respect of terrorism, have not taken proper cognisance of the resolutions of the Security Council of the United Nations, specifically Resolution 1373/2001, the twelve International instruments and the African Union Convention on the Prevention and Combating of Terrorism.
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