A summary of this committee meeting is not yet available.
SAFETY AND SECURITY PORTFOLIO COMMITTEE; JUSTICE AND CONSTITUTIONAL AFFAIRS: JOINT MEETING
23 June 2003
ANTI-TERRORISM BILL: PUBLIC HEARINGS; FIREARMS CONTROL ACT REGULATIONS ON ACCREDITATION: ADOPTION
Documents handed out:
Institute for Security Studies (ISS) Presentation
Institute for Security Studies (ISS) Submission
Legal Resources Centre (LRC) Presentation
South African National Editors' Forum Presentation
Media Review Network (MRN) Presentation
South African Catholic Bishops' Conference Presentation
Muslim Lawyers Association submission
Adv. Anton Katz - no written submission
Society for the Protection of our Constitution submission (email email@example.com)
Programme for implementation of Firearms Control Act and Regulations
Finalised Firearms Control Act Regulations on accreditation
Draft Anti-Terrorism Bill, 2002 as published by SA Law Commission in August 2002
Anti-Terrorism Bill (as of 15 /11/02) as approved by Cabinet; prior to State Law Advisors
Anti-Terrorism Bill [B12-03] as tabled
Anti-Terrorism Bill Working Document - circulated on 14 May 2003
These public hearings were part of a process started in 1995, to implement legislation which would address terrorist activities relating to the Republic of South Africa. Those opposing the Bill were told that the legislation was necessary to meet the country's legal obligations in terms of ratified international conventions. The Committee complained that it did not only want criticism of the Bill but that constructive alternatives should be provided.
The Institute for Security Studies was in favour of the Bill, although they suggested certain refinements to it.
The Legal Resources Centre opposed the Bill, saying that existing South African laws were sufficient to address terrorist activity. They stated that recent police and intelligence successes in bringing to trial those right-wing individuals responsible for bombings, were proof of this view. The Media Review Network agreed that anti-terrorism laws were unnecessary, stating that existing laws, if beefed up, would sufficiently fulfil international obligations.
The Southern African Catholic Bishops Conference felt that, should legislation be required to fulfil international obligations, then it should be implemented. However, they expressed reservations regarding certain definitions and provisions in the Bill. They made the point that should the criminal justice system be sufficiently allocated with resources, and should current legislation be modified or amended as necessary, South Africa could effectively combat the threat of terrorism.
The South African National Editors' Forum raised their serious reservations on the impact of the proposed Bill on individuals and civil society in general. They argued that the provision that journalists could be called to give evidence in criminal cases, would jeopardise the trust which the public places in these professionals.
Adv A Katz suggested that instead of the Bill before the Committee, which is inadequate to the task of meeting South Africa's international obligations, a short Bill be passed incorporating the treaties signed into South African law as Schedules or Annexures. He stressed the importance for African advancement of combating terrorism.
The Muslim Lawyers Association stated that the Bill lacked constitutionally solid foundations with respect to banning terrorist organisations and the criminalisation of terrorism. Banning terrorist organisations could in any case be dealt with under Common Law. If this Clause is passed, the Committee should re-examine the onus of proof in declaring an organisation to be terrorist and require standard judicial processes in this. The terrorism that was criminalised was too broadly defined, and left no space for freedom fighters and did not address State terrorism. The Committee asked for suggestions on defining terrorism, freedom fighters, state terror. The MLA suggested using dictionary definitions.
The Society for the Protection of our Constitution argued that no Bill should be passed without the informed consent of the people. The presenter raised concerns about the constitutionality of Section 2(5)(a)(i) requiring that terrorists be reported. He expressed the fear that donations to Palestinian groups would be stopped by the Bill if enacted.
The Committee adopted the Firearms Control Act Regulations on accreditation.
Institute for Security Studies (ISS) submission
This presentation was made jointly by Mr Gysbert Engelbrecht, and Ms Annette Hübschle, both researchers for the Institute. The ISS is an independent, non-governmental research institute focusing on human security in Africa.
On the necessity for anti-terrorism legislation, the Institute made the point that South Africa had signed international declarations, obligating themselves to legislate anti-terrorism laws. They contended that voids exist in current South African legislation, making it insufficient to satisfy international provisions. The proposed Bill honours these international obligations, but ISS suggested a few amendments, in order to "guard against an over-zealous approach, as well as to assure legal certainty".
Their amendments focused mainly on definitions and use of terminology, measures to combat terrorism, and suggested counter-terrorism approaches.
They objected to the title, "Anti-Terrorism Bill", and suggested instead, "Counter-terrorism Bill". Amendments were suggested for the terms "terrorist act", and "terrorist organisations", "convention offences". In addition, they proposed that legislation avoid an organisational focus, while rather concentrating on individuals. To that end, they recommended replacing the word "organisation" with "entity". They suggested that "convention offences" should be separate from the definition of "terrorist act", and should form part of the "Offences and Penalties" section of the Act.
Under "Convention Offences" were mentioned the contravention of aircraft and airport safety, the taking of hostages, financing of terrorism, hoaxes involving noxious substances or things or explosives or other lethal devices or weapons of mass destruction, and those offences mentioned under the Algiers Convention.
The term "investigative hearings", a replacement for the previously used "detention without trial", was highlighted for potential human rights concerns, and the need to guard against arbitrary arrest and detention. There were also implications for journalists. It was felt that journalists should be called in to give testimony only when information could not reasonably be obtained from other sources.
The ISS agrees with the Bill listing individuals and groups associated with terrorism as a useful instrument in blocking terrorist funding. However, on the banning of organisations as a counter-terrorism measure, they felt that such measures are often counter-productive, and suggested a shift in focus from the organisation to the individual.
Suggested methods to counter terrorism, were
- the use of an holistic approach, which recognises that violence and terrorism are manifestations of a fundamental political and / or social problem. Tolerance, socio-economic upliftment and understanding are key factors in addressing these problems.
- a strategic approach was advised, to adopt tough counter-terrorism legislation and investigation techniques.
- cross-referencing to other relevant legislation, in working towards an omnibus counter-terrorism Bill.
Adv. De Lange (Chair: Justice Portfolio Committee) felt that those offences which are not spelt out in the Conventions, should be spelt out as offences in this Bill. He asked if the Institute was in favour of approving of the Algiers Convention definition for terrorism.
Ms Hübschle responded that one of the previous drafts of the Bill actually had a list of offences. The Act had to spell out very specifically, what would be regarded as offences.
Ms Ntuli asked if the ISS had looked only at the tabled Bill or if they had looked at the recent May redraft. The purpose of the redraft was to attempt to change some definitions. She also wanted to know which sections of the Bill contravened the Constitution.
Mr Engelbrecht responded that he had subsequently seen the redraft, but had been unable to make changes according to it. The Bill contravened the individual's constitutional right to silence.
Legal Resources Centre submission
Adv. George Bizos presented a submission on behalf of the Legal Resources Centre (LRC) which is in opposition to the Bill. Mr Bizos felt that in fighting terrorism, the role of the Police Services and of National Intelligence should be acknowledged. The aim of Government is to deal with terror. However, in declaring organisations as terrorist organisations, he asked what would happen to the thousands of innocent people who are members, or sympathisers, of these organisations. The concern was for human, state, economic and social security. He called on members to uphold the values of the Constitution.
He cautioned against the vague wording of the definitions in the Bill, saying that this could lead to miscarriages of justice. He added that what some people would regard as terrorists, or fugitives from justice, may to others be asylum seekers.
He stated that the South African Law Commission had spent much time examining national and international law, to formulate anti-terrorism legislation (see SALC's Draft Bill of 2002). The SALC Draft Bill contrasted markedly to the Bill before the Committee. He continued that the whole of the tabled Bill was unconstitutional. The Constitution requires that laws must be clearly defined. The definitions in the Bill were so embarrassingly vague, that it would be thrown out by the Constitutional Court. Definitions must have clear indications to police officers, prosecutors, defence lawyers, and so forth.
Clause 2 states that a person is guilty of an offence if "he or she knowingly harbours or fails to report to the authorities the presence of a member of a terrorist organisation". Adv. Bizos noted that such a person may be an asylum seeker, who may have been accused, and not yet found guilty. It was undesirable to have legislation which enables the detention and torture of such a person. If a definition is not absolutely tight, it was possible for immigration officials to abuse their powers to detain people who are asylum seekers, and not necessarily fugitives from justice. Adv. Bizos stated that the definitions in the SALC's Anti-Terrorism Bill of 2002 were more extensive than the ones in the Bill before the Committee. However Clause 63 of that Bill states that the President could assign the administration of that Act to any Minister, and that any power or duty conferred by the Act on such a Minister, would be carried out by that Minister after consultation with other Ministers. That would have an effect on South Africa's penal procedure, on energy resources, on the legal profession, and so forth. It was absolutely crucial that a co-ordinated effort be made, so that there were no competing bills coming before the members.
Mr D Gibson (DA) asked if the Committee should ask for a radical redrafting of the Bill, or if Adv. Bizos was of the opinion that an Anti-Terrorism Bill was not necessary.
Adv. Bizos responded that he felt South Africa already has the ability to deal with the matter.
Adv. De Lange stated that it would be foolish to suggest that the two Committees would pass a Bill that was unconstitutional. That would enable a person who was arrested, and who appealed to the provisions of the Constitution, to go free. He added that, even if it took them ten months to deliberate on, and pass the Bill, they would do that.
In addition, South Africa's international obligations meant there was a legal obligation to pass this Bill. The focus should be on how the Bill will be worded. He asked Adv. Bizos if there were any further considerations which the Committees should take into account, regarding the Bill. In investigative hearings, he asked what should be the role of the judiciary.
Mr Solomon (ANC) asked what elements should be contained in the definitions.
Mr Bizos responded that different countries demand different elements. They generally demand to have perpetrators tried on their own soil, irrespective of the country's laws in which the perpetrator was apprehended. That is a political matter. He added that it was possible to be selective in what appeared in anti-terrorism legislation. He painted a hypothetical picture of a person who is arrested in terms of South African common law, and brought to court within 48 hours. The person could apply for bail, which he was not likely to get. He asked why the country needed special legislation to deal with that. Thus far, without the help of an act, the Police Services and Intelligence have managed to put an end to the bombings by right-wingers, and to bring the perpetrators of these bombings to trial. There have been some convictions on very serious offences of arms-gathering. Great efficiency has been displayed in intelligence and investigative services, and those services were improving. He appealed to the Committees to "stick to the rule of law", adding that he was not ignorant to the need for international cooperation. However, with efficient acts of justice, acts of terrorism can be stopped.
To Adv. De Lange, Adv. Bizos replied that good, hard-working judges did not want to be involved in quasi-judicial functions.
On the banning of organisations, Adv. Bizos cautioned that care must be taken not to drive people underground, thereby further alienating people with similar ideas and aspirations as these banned organisations, but who wish to use different methods to achieve their aims. He reminded the Committees that this was the method of opposition used by the apartheid regime, in the past. The banning of organisations can often make them more difficult to investigate.
He invited Mr Solomon to have a look at the Draft Anti-Terrorism Bill of 2002, saying that some of South Africa's most prominent judges and human rights lawyers were involved in drawing it up. He appealed to the Committees that they allow themselves to be guided by what it contained, rather than by the contents of the Algiers Convention.
South African National Editors' Forum (SANEF) submission
Mr Henry Jeffreys expressed SANEF's serious reservations on the impact of the proposed Bill on individuals and the broad civil society in South Africa. The following were some of the concerns highlighted in the presentation:
- the proposed legislation lacks a clear definition of what constitutes an act of terrorism. This, they said, make it an ideal instrument for "selective application against perceived foes of the day".
- various provisions of the Bill confer powers to the Minister, the National Directorate of Public Prosecutions or any police officer, which are inconsistent with a democratic government, and in conflict with the Constitution.
- the right conferred upon the state to declare organisations as terrorist organisations.
- the capacity given the judiciary to preside over investigative hearings. SANEF contended that this could damage the independence of the Bench, and that the judiciary should not be involved in the process of information-gathering, and building a case for the state.
- the clauses relating to the powers of the authorities to compel people to appear before investigative hearings and supply information, documents and materials deemed necessary to police inquiries, would negate a journalists' ability to carry out his or her professional duties. They also conflict with the Record of Understanding reached in 1999 between the Justice Department and SANEF on the use of Section 205 of the Criminal Procedure Act.
Mr Jeffreys concluded with the assertion that there are 22 existing statutory laws which can adequately deal with crimes of terrorism, without jeopardising constitutional freedoms, including the freedom of the media.
Mr Booi (ANC) stated that when a particular person is faced with a number of charges, and the State is powerless to convict him, because of a lack of evidence, and the provision mentioned by Mr Jeffreys (the Record of Understanding), criminals are allowed to go free. He mentioned, for instance, that the murderers of policeman Benny Lategan are free. He also mentioned the murder case of Rashaad Staggie. He asked at which stage journalists could be relied upon to make a contribution to the justice system.
Adv. De Lange commented that thus far, none of the presenters had offered a solution for getting around the country's legal obligations with regard to the implementation of anti-terrorism laws. He added that there was no doubt the definitions contained in the Bill were insufficient, and the Committees would not pass the Bill in that form. The committee members would welcome suggestions for improvement of the definitions. With regard to investigative hearings, the role given to judges in the Bill was not satisfactory. He appealed to the presenters to apply their minds to that matter as well.
Mr Gibson asked if SANEF was of the opinion that there should be no obligation for journalists to give evidence in terrorism investigations.
Mr Jeffreys responded that the state seemed to have achieve a number of successes through effective police work, in apprehending those responsible for terrorist activities. He suggested the Committee check on how best it could improve the efficiency of the police by using the laws of the country. Although journalists were keen to fulfil their duties like any other citizens, when it came to performing their professional duties, that took precedence. If journalists were compelled to give evidence, that would impact the trust levels between themselves and the public.
SANEF continued that journalists' desire for non-disclosure of information, was not just self-serving. If the image was created that journalists could be used as instruments of the state, they and their families would be in danger. He added that it was dangerous to criminalise something that was ill-defined. The contribution of journalists and the media in general, came down to the fact that they are watchdogs of society.
Adv. De Lange stated that there was general sympathy for the media, in deriving information from sources. However, it was different when a journalist had been a witness to a crime. This was a policy matter. He suggested that it was not fair to give certain people in society exemption from giving evidence, if they had witnessed a crime, and knew where the perpetrators were.
The Chairperson urged the presenters to give the members tangible suggestions for improvements which could be included in the Bill.
Mr Jeffreys stated that journalists were not claiming to be special citizens with special privileges. He added that SANEF would respond with further submissions on the proposed Bill.
Media Review Network submission (MRN)
This submission was made by Mr Saber Ahmed Jazbhay (Legal Adviser) on behalf of the MRN, the Africa Muslim Agency and Human Rights Media Initiative. They were in agreement that South Africa's international legal obligations had to be met, but felt that it was not necessary to implement laws in order to fulfil those obligations. South Africa has legislation which will enable it to meet its international obligations. According to information supplied by the United Nations, all of the SADC member states have complied with the international law requirements, with the exception of Mauritius and South Africa, who considered it necessary to oblige by means of implementing legislation. South Africa has well over 37 existing laws which, if properly beefed up, could provide the necessary fulfilment of international obligations. Even with the most draconian measures, the government would not be able to bring down the level of crime, without addressing the underlying issues which cause people to break the laws. He added that there were serious structural and operational weaknesses in the country's criminal justice system, and in the intelligence system.
For any conduct to be declared criminal, the South African public would need to know exactly what constitutes crime. Certain aspects of the proposed Bill impacts on the individual's freedom of expression and association, and seeks to introduce a guilty until proven innocent principle, which stands against the principles enshrined in the Constitution.
It was felt that the Chapter entitled "Investigative Hearings" was unconstitutional, and that the entire Bill was, in fact, unconstitutional. While international obligations must be fulfilled, there are enough laws to fulfil that obligation.
Referring to the Committee's request for an alternative, he advised that they "go back to the drawing board", and to start all over again.
Key concerns with the Bill were that:
- the Bill in its totality constitutes an erosion of human rights in all areas of the Constitution.
- definitions are arbitrary and very broad, thereby compromising legal standards.
Mr Gibson asked if Mr Jazbhay had looked at the Law Commission's original draft, and if he had comments regarding that particular draft.
Mr Jazbhay answered in the negative.
The Chairperson stated that committee members were not ignorant of the various factors which the presenters were highlighting. They were interested to know how the various organisations could assist them in improving the Bill. Instead, they were hampering the members by consistently arguing that there were things they were unaware of.
Mr Maziya (ANC) stated that it was not enough to identify the problems, and leave them there. The MRN had said the laws in existence required some beefing up. He asked to be informed as to which laws particularly had to be beefed up, and how.
Mr Booi (ANC) asked if the existing laws dealt with blowing up aircraft, bombing of fences, and if so, if they dealt with them sufficiently. He asked if the Financial Intelligence Centre that had been created, was sufficient, and if the type of conventions South Africa had ratified, were enough.
Adv. De Lange stated that the Committees would hear all the submissions, and then the legal drafters would be asked to draft appropriate documents. As the legislation is drafted, and is made available to the public, the Committees will continue to note comments. However, there will not be any future public hearings on the same matter. He continued that the Committees would continue to work on the Bill until it was ready. The submissions which the Committee was receiving, were not sufficient to help them in their process of completing the Bill. The Conventions had been signed, and none of those conventions are currently present in South Africa's laws. He explained that Government could not stop the financing of terrorism if it did not legislate for terrorism. South Africa would have to comply with its obligations. If the presenters moved against implementing terrorism laws, they would have to show alternative measures to comply with the country's international obligations. He invited the participating organisations, if they wanted to give further inputs on the actual Bill, to do so as the Committee proceeded with the drafting thereof, until its completion.
Mr Gibson pointed out that Adv. De Lange was incorrect because as of 14 May 2003, members had been told that there was a revised draft of the tabled Bill. If such a draft had been available a month before the hearings, why had members of the Justice Portfolio Committee not received it, and why had it not been made available to the public to make submissions on. He also felt that Adv. De Lange was wrong in not allowing criticisms on the Bill before the Committees.
Adv. De Lange explained that his Committee was meeting on the Bill for the first time. They had not been privy to any revised drafting. The Committees were compelled to work with the Bill as approved by Cabinet, and they would discuss inputs from various sectors. That was the accepted process. If people wanted to see further drafts, they should by all means receive them. However, he had no knowledge of any additional documents available. He was not opposed to people raising issues but asked that the presenters then submit alternative options. Since they had obviously invested much work into their submissions plus the fact that the country's international obligations absolutely had to be met, the organisations were encouraged to make further submissions.
The Chairperson suggested that presenters advise the Committees how existing laws could be "beefed up". With regard to statements about weaknesses in the criminal justice system, and various other general statements, he asked for specific suggestions on how to make improvements.
Mr Jazbhay, referring to Mr Gibson's comment that a revised Bill existed, asked if the tabled Bill as gazetted was going to be replaced, would that not be making a mockery of the process?
Adv. De Lange pointed out that he had not said that the tabled Bill would be replaced. The three legal drafters would be instructed to make amendments on the tabled Bill as advised by the Committees.
Ms A van Wyk (UDM) pointed out that these public hearings were for the purpose of affording presenters the opportunity to influence Parliament, so that improvements could be made to the tabled Bill. This was their opportunity to make an impact on the country's legislation.
Mr I. Jassat (MRN Chairperson) stated that the MRN took exception to the implication that their presentation was a waste of time. On the call for suggestions on improvements to the Bill, he stated that as parliamentary members, they were the ones who had been elected to consider and pass legislation. He called on them to look at the statutes, in order to see what could be done, and so to do their jobs as parliamentarians. Improving legislation was not the job of anybody else, but those who had been elected by the people, to perform this task on behalf of the public.
South African Catholic Bishops' Conference (SACBC) submission
Bishop Kevin Dowling expressed his gratitude for the openness of Parliament to society and to faith-based groups such as the Catholic Bishops' Conference. The Church condemned all acts of terrorism, which it saw as a grievous affront to peace, justice, reconciliation, and the common good and dignity of all people. The Church believed that human rights, which includes the rights of the accused, as well as of convicted terrorists, should be respected, and that no right is safe unless there is a commitment to respect all human rights.
Adv. Mike Pothier continued the presentation. He said that the Church does not have the expertise to make judgements on the need for the Bill. However, if there are international obligations, then they should be met. He added that preparing specific legislation would be a quicker alternative than taking the time to amend the various pieces of legislation in order to "beef them up".
The proposed Bill did not appear to address the intention to commit acts of terrorism. It seemed that an individual would have to complete an act, in order to fall foul of the law. He continued that there should be a distinction made between terrorist acts and threats to commit such acts, with the aim of spreading fear and intimidation. The latter, though it might spread terror, might not necessarily be an act of terrorism.
The Advocate said that an act of terrorism, which was intended to produce fear, and regardless of where is was committed, did not require that an actual act of violence had been done. For example, when a person's economic security is threatened, there is no direct violence involved, although such behaviour could incite fear.
He proposed certain structural amendments to the Bill (see submission).
Adv. De Lange commented that he had found the prestentation very useful. He asked SACBC to write down those items from their submission which were new, for the sake of the two Committees. On the assertion that organisations should not be declared as terrorist organisations, it was not possible to stop the financing of such organisations, if they were not declared as terrorist organisations. Since the declarations had already been signed, it was necessary to stop the funding of these organisations, meaning that the declaration of terrorist status was imperative. He liked the SACBC's idea of giving the judiciary a role to play. On the right to remain silent, he informed Mr Pothier that, where individuals were forced to give self-incriminating evidence, such evidence was inadmissible in court.
A Committee member said that one should always keep in mind that no right is absolute, and one could not equate the rights of a law-abiding citizen with the rights of a criminal. An environment must not be created which allowed terrorists to breed. In theory, it did not matter how democratic a country was. There would always be those people on the fringes of society who were unhappy.
The Chairperson commented that this had been the first useful presentation, and that it had dealt with the issues in a more scientific and detailed manner. For that reason, it would assist the Committees in their deliberations a great deal.
Mr Masutha (ANC) asked, with regard to membership of terrorist organisations, if the Committees should confine themselves only to threatened acts, and acts, and not to organisations or individuals that sponsor those threatened acts. He said that it was extremely difficult to establish threatened acts, which are hard for states to anticipate. A way of restricting those acts should be found. He wanted to know if the SACBC was of the opinion that these organisations should nevertheless be allowed to operate, because of freedom of operation.
Adv Pothier said that the SACBC was not arguing against declaration. They were arguing against making membership an offence. They could accept declaration, especially if that was meant to freeze funds. However, they were against the idea that somebody could be jailed for wearing an organisation's T-shirt. Should the Minister list an organisation as a terrorist organisation in the Gazette, he asked what members would have to do, in order to dismember.
Mr Masutha said that the membership issue was a sticky one. Tightening legislation, and declaring organisations as terrorist, was the most critical step in discouraging people in violent organisations from meeting.
Mr Pothier asked Mr Masutha if he truly believed that declaration would result in members leaving an organisation. There is a possibility that more people will join an organisation once it is banned, or declared as a terrorist organisation. Rather, Government should consider how to prevent attacks and other unlawful acts.
The Chairperson asked if it was the SACBC's suggestion to wait for organisations to commit acts of terror, before dealing with them.
Adv. Pothier replied that "prevention was always better than cure".
Mr Gibson stated that it was true that the SACBC had made an outstanding presentation. However, he asked if they were prepared to accept that other contributions made were equally useful.
Adv. Pothier explained that, as one role-player in civil society, they worked together with others. He agreed that all the input had certainly been useful.
On the matter of organisations that had already gone "underground", he said that if an organisation were taking steps to commit acts of violence, it had already fallen foul of the law.
Advocate Anton Katz
Adv A Katz (consultant to the African Union in the drafting of the Plan of Action concerning the AU Algiers convention on the Prevention and Combating of Terrorism in Africa (1999)) stated that terrorism has a multidimensional character. It is international, which feeds into it being multi-sectoral and it is not a regular crime. People commit terror for different purposes from other crimes. The Bill does not satisfy South Africa's international obligations. Altering current legislation would not suffice to fulfil these obligations, a separate omnibus Bill is required to do this. He cited experience with extradition as an issue not dealt with by current legislation. Except under the provisions of the International Criminal Court, South African legislation did not allow South African to bring people into the country. Persons brought in unlawfully do not fall under the jurisdiction of the Courts.
He suggested that instead of the Bill before the Committee, a short Bill be passed incorporating the treaties signed into South African law as Schedules or Annexures. There should be a central authority in South Africa to deal with issues related to terrorism. Debate would not produce an answer to the question of how to define terrorism. The solution is for Parliament to give a definition consistent with international conventions - there is no sense in giving a different definition. This had been done with the International Criminal Court, where Parliament had simply used part of the Rome Statute.
Mr M Booi (ANC) asked if there were matters other than extradition that needed to be covered in an omnibus Bill.
Adv Katz replied that one need only look at the UN Security Council's Counter-Terrorism Committee's (CTC) response to the South African submission. The CTC stated that South African laws failed to satisfy its international obligations in a range of respects. South Africa had recently been accepted into the Financial Action Task Force, in terms of which membership, South Africa had a range of new obligations which it does not satisfy. There was thus a range of respects in which South Africa does not comply with international conventions.
An ANC member asked Adv Katz to expand on his claim that terrorism is not a regular crime.
Adv Katz replied that studies had shown that traditional crime fighting mechanisms do not work on terrorists. Standard deterrence had little value with people prepared to die. Banning a terrorist organisation would not necessarily have the same effect on it as shutting down a soccer club. Terrorism is a different type of crime and this had to be taken into account. For example, the South African Catholic Bishops Conference had questioned the difficulty of getting bail for crimes under the Bill that merited a maximum sentence of six months. Whilst this might be inappropriate with ordinary crimes, this does not mean it is inappropriate for terrorism-related crimes.
Mr Booi noted that there had been accusations that the Bill was for the USA and being passed under pressure from that country's Government. He asked what Adv Katz thought of these accusations.
Adv Katz replied that the OAU had adopted the stance that Africa should take responsibility for terrorism by Africans and in Africa. Thus, he did not agree that this was a Bill for the USA. Locally, the Western Cape had experienced a problem with terrorism. Kenya had experienced the embassy bombings. The Continent had to take a stand. Africa and South Africa should not be seen as a haven. Terrorism drives economic improvement backwards and Africa was fighting to drive it forwards. It is a problem that Africa must deal with regardless of what the USA Government might say.
The Chair stated that it was offensive that people suggested that the Government and Parliament were acting as US puppets in this. In saying this, people were suggesting that South Africans could not govern themselves. South Africa had seen puppets, with one buried recently, and the great damage that they could do.
Muslim Lawyers Association (MLA)
Mr F Bodu gave the MLA's oral submission. He stated that the Government could not incur obligations that are not constitutional. The Anti-Terrorism Bill lacks a constitutionally solid foundation in two core areas: the banning of terrorist organisations and the criminalisation of terrorist acts.
Banning of terrorist organisations
Under the Constitution, people have the right to associate and form organisations. This is limited under Common Law such that people do not have the right to form an organisation with an unlawful purpose. The Common Law provision means that no additional legislation is needed to ban terrorist groups. The Bill creates the impression that the Executive wants to limit freedom of expression. If the Committee deemed this element of the Bill necessary, the MLA had three problems with the current provisions. The onus of proof on the State was too light - declaration of an organisation as terrorist required only reasonable cause under the Bill, it should require proof beyond reasonable doubt. The Bill allowed the Minister to promulgate his/her intention to declare an organisation terrorist and the organisation could then show this to be wrong - this is a reverse onus. The Bill ignores separation of powers in that the Judiciary is set up to check the Executive, but the declaration of organisations as terrorist is an executive process, excluding the judiciary. Such declarations should involve a full judicial process involving all the usual rights and proof beyond reasonable doubt.
Terrorist Acts & Criminalisation
The definition of terrorism in the Bill is too broad. The Bill allows no political space for freedom fighters fighting oppression by undemocratic and terrorist governments. The Bill does not combat state terrorism. In localising an international instrument, the Government should not be selective and so cannot exclude the executive arm of governments. He cited as an example that if he held President George Bush to be a terrorist, then he would not want that the law applied to someone opposed to George Bush should s/he come to South Africa and not to George Bush himself if he should visit the country. This made the Bill selective and thus unconstitutional. The offences under Chapter 2, Clause 2(5) were unconstitutional because they infringed the right to silence. Clause 2(5)(a)(i) compels whistle-blowing; under it, it would be criminal not to report a spouse. The Clauses were so widely drawn that they could prevent a prison warder from feeding a terrorist. The need for legislation is ultimately a political decision. However, the Government could not create new offences that did not exist as of the adoption of the Constitution in 1996, under Section 35(3)(l) of the Constitution.
Mr Booi raised the matter of judicial review of the declaration of organisations as terrorist. One had to consider the intelligence community in this. Was the MLA suggesting that the Government go back to the organisation with the gathered intelligence? Who should prove the case?
The Chair raised the separation of powers. He noted that the judiciary would come into the matter when someone was arrested for continuing to work for a terrorist organisation. That person would then be taken to court and the usual judicial procedures would apply.
Mr Bodu replied that the Executive process envisaged was not a proper process. There were no safeguards for the accused. There had to be a judicial process because it is connected to a criminal offence. This should be the normal judicial process. One should serve a summons on the organisation and the State should prove in court beyond reasonable doubt that the organisation is terrorist, with all the usual rights and procedures. The Chair's response was inadequate because an element of the offence would already be proven at the time of trail. One could not challenge the declaration that the organisation is terrorist. This removes a leg of one's possible legal defence.
Imam G Solomon (ANC) asked for further comment on the proposed checks and balances on Clause 14 (Declaration of terrorist organisation).
Mr Bodu replied that a judicial process should provide the check, not an executive one. This should include the right of appeal.
Imam Solomon noted that terrorism is not part of conventional war. It would be unprecedented in international law to regard terrorism as part of conventional war.
Adv P Swart (DA) raised South Africa's international obligations. These were obligations to the AU and UN, not to any particular state or government. Was the MLA suggesting that the Government wave aside its obligations?
Ms A van Wyk (ANC) raised the matter of making space for freedom fighters. It is difficult to define the notion of a freedom fighter.
Mr Bodu replied that one could not legislate only half of the question. One must define both terrorists and freedom fighters. To do this one could use a literal dictionary definition.
Ms Van Wyk questioned Mr Bodu's interpretation of Section 35(3)(l) of the Constitution. She stated that she did not think it meant that the Government could not enact legislation to deal with terrorism because there was no Terrorism Act at the time the Constitution was passed, rather it required that the Government could not retrospectively declare an action an offence.
Mr Bodu agreed that he had overstated this point. Any political decision to have an anti-terrorism Bill should have due regard for the requirements of this Section.
An ANC member stated that terrorism required extraordinary measures. It is an attack on human rights not only as individuals but also as a collective.
The Chair asked how the state should deal with terrorist assets if not through the mechanism of declaring the organisation a terrorist organisation.
The Chair asked how to define state terrorism and how to deal with it. It would not help for South Africa to end up with an unenforceable law.
Mr Bodu replied that whilst it would be unusual to incorporate the concept, one had to be morally consistent. This involved facing the hard questions of who is a terrorist. Inconsistency on this would only breed more terrorism. He suggested that the Committee use 'literal' dictionary definitions.
Adv Swart asked how the State should deal with UN decisions on terrorist organisations.
Mr Bodu replied that the Bill did not oblige the Minister to declare groups as terrorist in line with UN decisions on this. However, judges could take this into account in a judicial process.
Adv Swart asked that Mr Bodu address the question of dealing with terrorist funding.
Mr Bodu replied that the provisions of the Prevention of Organised Crime Act are wide enough to curtail any unlawful economic activity. In so far as there was a need to curb donations to terrorist organisations, philanthropic donations should be excluded from criminalisation. The Asset Forfeiture Unit has sufficiently wide powers to act against such groups.
Mr Booi noted that PAGAD had started as an anti-crime group and grown into an organisation responsible for bombings. The issue of contributions to terrorist organisations is a difficult one. He thought the MLA was making unfair demands of the Committee on the Bill.
Mr Bodu replied that one did not need to ban an organisation to curb it. Existing law had been sufficient to curb the activities of PAGAD. Banning would only give these organisations legitimacy and they would use the bans to mobilise support. The state should use its intelligence capacity and curb the activities of such groups. The debate around state terrorism is a morally charged one. To laypeople one was not being fair if one banned Osama bin Laden but not agents of states that do similar things. One had to confront these issues, difficult as they were. Victims of collateral damage are victims of terrorism. It involves reckless disregard and so is murder. One should not be able to use diplomatic or sovereign immunity to avoid prosecution.
Adv Swart raised the question of defining terrorism. Did Mr Bodu have any suggestions?
Mr Bodu replied that the process was a simple one - the Committee had simply to define terrorism using a dictionary. He noted that the MLA had done so with a dictionary definition in their written submission.
The Chair raised the issue of freedom fighters in a democratic state. The Boeremag might claim to be fighting for freedom, but they could express their views through the democratic process. There are many parties in Parliament that represent the Afrikaner. One could not encourage a state that oppressed its own people. Also, there is no guarantee that democratic states will not evolve into oppressive states. The people of Zimbabwe probably did not imagine that they would be involved in a second struggle within thirty years of their liberation.
Society for the Protection of our Constitution
Mr Z Omar (Attorney) addressed the Committee on the submission. He stated that he was the voice of the humble people. 'Terrorist' is being used in the same way as 'communist' was under the old regime. He suggested that the Bill be renamed the Prevention of the Suppression of Human Rights Bill. The word 'terrorism' should be avoided. South Africa ushered in democracy in 1994. Whatever Bill is enacted will thus express the will of the people. If the people on the ground did not know what was happening and why, then this would be a huge intrusion on the power of the people. He asked for the international instruments that require the country to enact the Anti-terrorism Bill less than ten years into democracy. He could only find Resolution 1373. This spoke of necessary steps to prevent acts of terrorism. The use of 'necessary' accommodates the varying socio-economic circumstances of member nations. To enact such legislation so soon after the advent of democracy would fly in the face of what the people were taught to fight for.
Clause 2(5)(a)(i) violated Section 27(1) of the Constitution. To enact a law that would violate a provision of the Bill of Rights should require a two-thirds majority. Whatever the Bill contained, it had to have a Clause allowing humanitarian assistance to persons or organisations resisting a government that has disregarded or rejected UN resolutions. His greatest fear was that, if enacted, the Bill would stop him from helping people fighting a just battle in Palestine. Nothing must be done without the knowledge and consent of the people.
Adv Swart asked if the exception allowing assistance where countries had violated UN resolutions might not be read to apply to Iraq.
Mr Omar replied that any assistance of a humanitarian nature must not be proscribed. Since no weapons of mass destruction had been found, Iraq had not violated any UN resolutions.
Imam Solomon noted that Mr Omar had mentioned only Resolution 1373. The Resolution was agreed through the UN, with several countries. It would have a great impact. Further, under the Algiers convention, South Africa was obliged to exempt humanitarian assistance from criminalisation.
Mr Omar replied that he was asking only that the instruments be identified in the Bill. If Parliament went too far from the people, it would lose support.
Mr Booi stated that Mr Omar's naming suggestion would be considered. The Committee had to consider the case of uninformed people falling foul of the legislation.
Mr A Maziya (ANC) asked if Mr Omar could provide a definition of terrorism.
The Chair cautioned Mr Omar about leadership of the masses. The people had given their leaders the responsibility to defend the democracy they fought for. The leaders could not keep running back to the people to ask them what they should do. It was their responsibility to define and defend freedoms on the people's behalf.
The Chair stated that he had a problem with elevating the status of the Bill so that it required a two-thirds majority. The name of the Bill is important and the Committee is open to suggestion. However, one had to be careful in citing the emotional value of a term. Even in Mr Omar's suggested title, there might be people that object to 'suppression'.
The Public hearing was closed.
Firearms Control Act Regulations on accreditation
Members of the Committee agreed that they had had enough time to consider the Regulations before them, and the Committee approved the Regulations without objection.
Adv P Jacobs (Head: Legal Support, SAPS) explained that the relevant portions of the Act would now be brought into operation with the President's signature.
Ms Van Wyk asked that the Department take the Committee through the implementation programme at a future meeting.
Adv Swart asked when the remaining Regulations would be ready.
Adv Jacobs replied that they had undertaken to have them ready after the recess. There was enough time to process and have them in place by 30 October 2003.
The Chair stated that it would be best if the Department stuck to the programme and they should do everything in their capacity to see it was met.
The Committee endorsed the programme.
The meeting was adjourned.
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