A summary of this committee meeting is not yet available.
PORTFOLIO COMMITTEE ON SAFETY AND SECURITY WITH PORTFOLIO COMMITTEE FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT
24 June 2003
ANTI-TERRORISM BILL: PUBLIC HEARINGS
Chairperson: Mr M George (ANC)
Documents Handed Out:
South African Council of Churches Submission
Freedom of Expression Institute (FXI) Submission
Freedom of Expression Institute (FXI) Addendum
South African Chapter of the Media Institute of Southern Africa (MISA) Submission
A Comparative Law Assessment of the Proposed South African Anti-Terrorism Legislation (Professor A Thomashausen)
Cape Bar Council Submission
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
Association of Accountants and Lawyers for Islamic Law (AMAL) Submission
The South African Council of Churches (SACC) expressed particular concern about the broad definition of 'acts of terrorism' in the Bill. This view was shared by each of the organisations presenting a submission that day.
The Freedom of Expression Institute (FXI) asked for the Bill to be withdrawn. Existing legislation was sufficient for dealing with acts of terrorism, although certain of the provisions concerned could be improved. Concern was also expressed about the Bill's implications for freedom of assembly and bail. Its provisions compelling journalists to reveal the sources of any information they might have relating to State security was, in FXI's view, a threat to press freedom.
The Media Institute of Southern Africa (MISA) also expressed concern about the Bill's implications for press freedom.
Adv Donen, speaking on behalf of the Cape Bar Council, stressed the need for a precisely defined law on terrorism. He criticised the definitions as nonsensical, suggesting that they could only be made sense of if one read into them that the offences referred to offences in Schedule 1 (the treaties). He expressed concern at the compulsion of testimony allowed in the Bill since this could lead to prosecution where the person repeated the testimony when no longer under the protection of the compelling clause.
Prof A Thomashausen questioned the validity of UN Resolution 1373, stating that it should be challenged in the International Court of Justice. He explained that the definition in the Bill made sense if one corrected the typesetting error, but remained inadequate. He argued that other SADC countries were not or did not wish to enact anti-terror legislation and that South Africa should resist doing so, so as not to set a precedent.
The Association of Accountants and Lawyers for Islamic Law (AMAL) asked that the Committee consider a second period of oral hearings if the Bill were redrafted. They questioned the fairness of the Bill since it appeared not at least to equate Israel and Hamas and the need for the Bill since PAGAD and the Boeremag had been dealt with without it. They stated that banning terrorist organisations should be based on UN General Assembly, not Security Council, decisions and should exclude liberation movements.
South African Council of Churches (SACC)
The Reverend Keith Vermeulen opened his presentation by stating that the position of his organisation was that all people were people of God. The SACC was a facilitatory body representing twenty-four other church groups. As an organisation that had opposed apartheid, the SACCC was delighted with the political gains that had been made under the new dispensation. South Africa now held the moral high ground on the world stage and its integrity needed to be reflected in its legislation.
The definition of a "terrorist act" had been altered since the first draft of the Bill and the SACC was proposing an entirely new definition to the one that had appeared in subsequent drafts.
Adv P Swart (DA) asked for clarity on the drafts to which the SACC had referred.
The Chair intervened and said that, while he could not speak for the SACC, the Certified Bill was the document on which submissions should be made. The ANC's internal party document had no status before the Hearings.
Adv Swart said that this was making things very difficult for parties who had not had sight of the ANC document.
Ms A van Wyk (ANC) said that the SACC had suggested that South Africa should be strengthening existing legislation rather than passing a new Bill, and yet had also referred to the vague legislation in terms of which the previous regime had carried out abuses. Could the SACC explain?
Mr R Zondo (ANC) said that a former Minister of Defence under the old regime had said that it was perfectly acceptable for the State to resort to unconventional methods. Also, Mr Wouter Basson had got away with murder because he could not have anything pinned on him.
Adv Swart attempted to intervene at this point but Mr Zondo told him to be quiet, as he was not allowed to provide a running commentary when other members were asking questions.
Mr Zondo continued, saying that, the day before, Mr M Booi (ANC) had mentioned methods used by the ANC during the struggle against apartheid as part of the history underpinning the old legislation. The Bill had its origins in pre-September 11 history.
Mr I Solomon (ANC) said that it was imperative that faith-based organisations participated in the process. Civil society input and support was vital.
Rev Vermeulen acknowledged that the safety of a country's citizens should not be compromised. Civil society organisations needed to be bolstered so they could play an appropriate role in processes such as this. It was important to recognise that the potential for acts of terrorism was often a manifestation of societal ills that could not be addressed simply by passing a statute. Legislation to combat terrorism should not do more harm than good.
Mr Solomon asked whether the SACC saw a need for the Bill or not. Adv J de Lange, Chair: Portfolio Committee on Justice and Constitutional Development, had said that there was no way of getting away from the fact that the Bill was needed. It was important that the SACC made its position clear.
Rev Vermeulen said that the SACC took the issue very seriously. That was why they were making the submission which spelled out points the Bill needed to reflect.
The Chair asked whether the SACC had been mandated by all twenty-four of its member churches to make the submission. He doubted that the SACC had contacted each church organisation concerned to ask if it supported the submission.
Rev Vermeulen explained that the submission had been prepared by the SACC's Parliamentary Group.
The Chair said that he was worried by the SACC's comments in the submission about the United Nations (UN). Most countries went to war without UN approval so why was the Council claiming that the UN had no credibility simply because Britain and the United States (US) had gone to war without UN permission? He was constantly trying to persuade people to go to church. If he stopped trying every time someone told him of a mistake made by a church-goer, then he would never get anyone to go.
Rev Vermeulen replied that there seemed to be a huge misunderstanding on the part of the Chair about the submission. The SACC accepted the role of the UN as a peace broker, but was concerned at the way in which the USA had used its power to bypass UN resolutions on security.
The Chair said that the submission claimed that the Protocols ratified by Parliament were in "stark contrast" to the spirit of South Africa's hard-won freedoms and the Bill of Rights. He challenged the Reverend to name one Protocol that was not in keeping with the principles enshrined in the Bill of Rights.
Rev Vermeulen said that paragraph 4 of the SACC submission referred to the Bill and not to UN Security Council Resolutions or international protocols. The SACC had not criticised the UN or its conventions. Neither had the submission intended to suggest that Parliament had ratified international protocols that were in breach of the Bill of Rights. The Chair had misunderstood.
The Chair observed that the SACC had not provided appropriate answers to the questions posed and called for the next submission.
Freedom of Expression Institute (FXI)
Mr Simon Ndungu said that, while the Bill might appear to be beyond the scope of FXI's mandate, it had such serious implications that a full submission had seemed appropriate.
In summarising this submission, Mr Ndungu developed a critique of the definition of "terrorist act" as proposed in the Bill. He quoted the South African Law Society, which had said that the act of terrorism could not be defined. The problem with the Bill's definition was that it was so broad that it could also include legitimate forms of political protest and even cover the actions of striking workers on a picket line.
Since the Bill did not clearly define the behaviour it intended to prohibit, the intentions of the Bill as a whole were not clear. The Bill also failed to provide standards for operational procedures used by the South African Police Services (SAPS). By way of example, Stop and Search procedures could prove to be very invasive. Further, provisions in Clause 5 relating to bail stated that those charged under the Act would be regarded as Schedule 6 offenders, the most serious category of offences. The requirements for bail were extremely tough, almost to the extent of shifting the burden of proof to the accused. Because the Bill did not distinguish between serious acts and non-serious acts, an altercation between the SAPS and an individual being searched in terms of a Stop and Search Order could lead to a situation in which the SAPS were empowered to treat that person as a Schedule 6 offender.
The FXI was also concerned about the provisions in Clause 8 for applications for Questioning Orders. The Bill was creating room for speculative offences, which was contrary to the principles of international criminal law. The UN Conventions concerned were not accessible to ordinary South African citizens even though, in terms of the Bill, they were bound and protected by those Conventions. Further, the position in which the UN now found itself was a political issue and a stark reality that needed to be born in mind.
The Bill also impacted seriously upon the freedom of the press, an essential element of democracy enshrined in the Constitution. The Constitutional Court had placed specific limitations on Section 205 of the Criminal Procedure Act (51 of 1977), in terms of which journalists could be compelled to reveal their sources. Why did the Bill not expressly refer to this?
The FXI was also concerned about restrictions to the right to freedom of assembly in respect of persons suspected as terrorists. The Bill did not require the Minister to communicate his or her intention to declare an organisation a terrorist. Further, provisions in Sections 15 to 19 reintroduced the concept of secret evidence, relating to the gathering of information on financial transactions made by suspected terrorist organisations and the fact that informants, whose evidence was deemed "competent", need not be disclosed to the accused.
While the FXI's submission might appear preoccupied with the definition of an act of terrorism it was important to realise that, if the foundation of the Bill was flawed, then a flawed Act was the only possible outcome. The FXI's view was that the existing legislation simply needed to be tightened up or amended. There was no need for a new Bill. Government appeared to have the necessary powers to deal with acts of terrorism without the proposed new legislation. This had been clearly demonstrated by the confidence with which it had responded to the Boeremag threat.
An ANC member commented that the written submission focussed more on media-related issues. Mr Ndungu's oral presentation had been far broader.
Mr Ndungu replied that his oral presentation had sought to highlight the complexity of the issues related to the State's powers of investigation.
Adv M Masutha (ANC) observed that Mr Ndungu had implied that statements by Government about the Boeremag threat had indicated that Government itself was of the view that it had sufficient legislation to deal with terrorism. It was important that Government statements were not exaggerated or used out of context.
Mr Ndungu replied that it was incumbent on the Government to protect the public while, in turn, it was incumbent on members of the public not to create instability. The FXI position was that new legislation was not required to achieve these ends.
Adv Masutha then pressed Mr Ndungu on the issue of the elusiveness of terrorism. He asked if Mr Ndungu believed that terrorism existed and, if it did, did he not think there was merit in the position that to highlight it as a distinct phenomenon would assist in giving shape to it?
Mr Ndungu argued that, if the phenomenon could not be clearly defined, how could mechanisms to cope with it be created?
Mr Solomon said that, although the presenter was making some good points, he was also using his platform as an opportunity to criticise Government. What exactly was the FXI's position on the Bill?
Mr Ndungu replied that the FXI was calling for the withdrawal of the Bill.
An ANC member pointed out that the very people who, prior to September 11, had been critical of Government's intentions in respect of earlier intelligence-related legislation, had since applauded Government for being so visionary. Did Mr Ndungu appreciate how much South Africa had learned since 1994? South Africa was now in a better position, constitutionally, to deal with these issues.
Adv De Lange thanked Mr Ndungu for his contribution. The two Committees were themselves unhappy with many aspects of the Bill and the public hearings sought to find ways to improve it. He agreed that the definition of terrorism was wholly inadequate. Could the FXI suggest how it could be to improved?
Mr Ndungu replied that FXI's difficulty in arriving at a sufficiently precise definition of terrorism had motivated its position that the Bill was not necessary.
Adv De Lange said that there were many aspects of the Bill with which he, too, was unhappy. Some of these had not been identified by any of the presenters. For example, the proposed investigative hearings allowed for a period of detention, but did not place a time limit on this. This allowed for unlimited detention, yet no one appeared to have noticed this. Mr Ndungu was correct in saying that there were many problems with the criminal justice system. However, to suggest that the existing laws were adequate for dealing with problems of terrorism was fallacious. South Africa had succeeded in prosecuting some people for terrorist crimes despite the limitations of existing legislation.
Adv De Lange also challenged the allegation that South Africa had only endorsed international treaties on terrorism and related activities to enhance its international status. South Africa had an obligation to ratify international treaties and the Constitution gave legal status to its International obligations.
Mr Ndungu replied that nowhere in the UN Convention concerned was it stipulated that signatory states were obliged to introduce anti-terrorism legislation. Instead, these states were required to make acts of terrorism punishable under domestic law. While some countries were introducing legislation of the type proposed in the Bill, many were simply tightening up their existing domestic legislation. Also, Section 231(4) of the Constitution said that international law that was inconsistent with the Constitution would not have force and effect.
Adv De Lange said that, in terms of the Treaty concerned, the UN Security Council had been empowered with a monitoring role. There were internal checks on the improper use of those powers. He agreed that the clauses relating to Bail should not be in the Bill. This issue should be dealt with by amending the Bail Act and simply adding terrorist acts to Schedule 6. He cautioned Mr Ndungu against criticising the Bail Act since this had been fully tested in the Constitutional Court. Mr Ndungu's interpretation of clauses in the Bill regarding information on financial transactions in respect of terrorist organisations was wrong, suggesting that FXI had not read or properly understood these provisions.
Another ANC member asked who benefited from press freedom if it meant that journalists did not need to give information on terrorist activities?
The Chair observed that Mr Ndungu had not adequately answered many of the questions asked and proceeded to the next submission.
South African Chapter of the Media Institute of Southern Africa (MISA)
Mr Raymond Louw said that MISA's focus was the promotion and defence of media freedom. MISA's concern was that the definition of terrorism was so broad that it could also be seen to include legitimate public protest. Terrorism sought to instil a climate of fear through acts of intimidation. The Bill itself was instilling fear in certain sectors of the community and could therefore be termed an act of terrorism.
When some Committee members expressed discomfort with this view, Mr Louw referred to a recent situation in Morocco where bombings in Casablanca had resulted in the detention of approximately one hundred people. One of those arrested had been a taxi driver who had remarked to a passenger that he was pleased the bombings had been in Casablanca and not in his hometown. This had been interpreted as a statement in support of terrorist activities. The broad definition of terrorism proposed in the Bill could result in many people being convicted in South Africa on equally spurious grounds.
MISA concerned that the South African Law Society had been working on the proposed legislation for some time, yet had never once sought the views of MISA or the Editors Forum. As the Bill impacted so greatly on press freedom, this had been a serious oversight.
A member asked Mr Louw what he would have done if he had been told about the imminent attack on the US on September 11.
Adv De Lange asked if Mr Louw saw any distinction between a journalist receiving confidential information and a journalist witnessing a terrorist offence.
An opposition member asked if Mr Louw felt there should be a distinction between the obligations placed on a journalist and those placed on an ordinary member of the public.
Mr Louw replied that, had he had sight of information suggesting the imminence of the September 11 attack, he would have had to decide whether or not it was credible. When a journalist was off-duty and witnessed a crime, he/she had the same obligations as any member of the public. However, special consideration had to be given to the fact that, on duty, journalists often obtained information on the promise of confidentiality. During periods of unrest the first person targeted was often the one holding the camera, so journalists were often in danger. A journalist was motivated by his/her conscience in disclosing information and should not be compelled to do so.
Adv De Lange said that, in defence of the South African Law Commission, it was not their duty to seek out potential submissions. They had made a general call and had expected organisations to come forward. As the newspapers had reported on the Commission's activities, they must have known that the process was underway and should have put together a submission. He then asked if Mr Louw had read provisions in the Bill relating to the Ministerial declaration of an organisation as a terrorist organisation. What amendments was MISA proposing to make the relevant clauses more acceptable?
An opposition member asked if Mr Louw believed journalists had a role to play when draft legislation such as this was being debated? Mr Louw replied that he did.
Mrs S Camerer (DA) asked Mr Louw if he felt the provisions of the Bill could endanger journalists, citing the case of a journalist being killed because of fears that he might reveal confidential sources.
Mr Louw replied that these provisions could discourage people from coming forward with information for journalists if they felt insecure because they did not believe it would be privileged.
Once again, the Chair complained that presenters were not answering the questions posed by Committee members.
Cape Bar Council
Adv M Donen, SC, gave the oral presentation on behalf of the Cape Bar Council. He stated that his presentation would explain the Bar's starting point in their written submission to the Committee. Terrorist legislation was where the law and politics met. From a legal perspective, there had just been a war against terrorism in which international law, including the UN Charter and principles enunciated at Nuremberg, had been 'trashed'. There had also been the use by the apartheid regime of terror laws to oppress people. The Bar thus wanted a precise law so that it could only be used to combat terrorism. The Bar memorandum had been drafted by advocates with experience defending so-called terrorists.
He noted that the Committee appeared to have accepted that the definition of terrorism in the Bill was wrong. The Bill was to give effect to the relevant international instruments and should do this and little more. However, the Bill as drafted gave unlimited scope to define terrorist acts. As much as one might trust current officials, one could not be sure what would happen under future officials. It would thus be better if their hands were tied by a precise law.
Terrorism was an extension of politics. It was coercion by violence. One should deal with it simply by adding political purpose to common law restrictions against violence. The Bill should leave no discretion for people to use the law as a political tool. The international convention offences had to remain in the Bill because they were not part of domestic law and had to be made part of it.
Regarding the difficulty of defining terrorism, Adv Donen stated that such definition was impossible in international law and unwise in domestic law. The UN had never managed to produce a comprehensive account of terror. He cited the example of an Indian attempt blocked by Arab states that had wished to exclude terror against foreign occupation from the definition.
It was a misnomer to speak of terror in terms of people blowing themselves up. Terror was used by the military in aerial bombardment. The aim was to terrify civilians into getting the government to capitulate. This led to countries becoming increasingly inured to killing civilians and, ultimately, to the use of the atomic bomb at the end of World War II. This showed what could happen if the laws around such acts were not precisely drawn.
The definition of terrorist acts should not go beyond that in the instruments in Schedule 1. Giving oneself unlimited power created a poor impression, such as in the US 'war on terror', which was perceived as a war on Islam. It would be unfortunate to create a similar impression in South Africa. Thus one needed a very specific definition of terrorism.
Within the domestic context, South Africa should draw lessons from its history. Such experience had shown that compelling testimony could be a problem even where the compelled evidence and all evidence resulting from it was excluded, since it was hard for a detainee not to talk again once s/he had talked the first time. Prosecution could then become unfair.
The Bill lacked definition of the convention crimes. It would be difficult for an accused to know what s/he had done wrong. Definition of these crimes in the treaties should be included in the Bill, not just in the Schedule. The definition of the terrorist act in the Bill made sense if it only intended to refer to the definition in Schedule 1. Similarly, the definition of terrorist organisations made sense if they were understood as organisations that committed convention offences with the purpose of intimidating the public.
Regarding Chapter 2 of the Bill, Adv Donen noted that one could not make sense of Clauses 2, 4 and 6 since one could not make sense of the definitions. However, the term 'knowingly' might be too broad. He suggested that it be replaced with 'intentionally' or 'with the intention of supporting an act of terrorism'. On Clause 2(5)(a)(ii), he noted that even the Israeli Supreme Court was not prepared to hold that a man who had supplied food, drink and a car to his brother, without intending that it be used for terror, could be expelled.
On the matter of bail, Adv Donen stated that, whilst one might want to make all terrorist offences Schedule 6 offences, there was no reason not to make distinctions when dealing with bail. Persons detained for lesser offences under the Bill should have easier access to bail.
The Bar supported the requirement, in Clause 7(1), that prosecution required the consent of the National Director of Public Prosecutions. However, such consent should be in writing. The duty on the judge in Clause 9(3) should be expanded to include the duty to inform the person that legal representation was available. The obligation to answer questions in Clause 11 offended the sense of justice. Historically, people that had spoken once, under the protection of the provisions in Clause 11(3), were likely to speak again thus enabling prosecution. The compulsion failed to have regard for Chapter 3 of the Constitution. The Bar agreed that notice of the Minister's intent to declare an organisation terrorist was desirable. However, the appeal procedure was motion procedure, with no cross-examination. The rules of such procedure required that the respondent's view be accepted. Thus, as respondent, the Minister's view would always be accepted.
Adv De Lange stated that he was pleased that Adv Donen had dealt with the matter of international obligations and was of the view that South Africa should abide by these. He took note of the suggestion that convention crimes be used to define terrorism. Such crimes had to be spelt out in the Bill. He noted that the AU had given a definition of terrorism that excluded struggles for self-determination.
Adv Donen responded that South Africa had to meet its international obligations, universal and AU obligations. He recommended against non-universal definitions. The Bill should include the universal treaty definition.
Adv De Lange asked if this meant ignoring the OAU obligations.
Adv Donen replied that he would have to think about this and answer later in writing.
Adv De Lange asked that Adv Donen expand on the suggestion of including the purpose of terrorism.
Adv Donen replied that there were two issues. The definitions in treaties had to be used for international obligations. For domestic terror, the law could simply add 'politically motivated' to the list of existing common law crimes. It would be dangerous to go beyond this.
Adv De Lange took issue with Adv Donen's description of motion proceedings. Crucially, he had left out that if the case could not be decided on papers then evidence was led before the judge. The provision was not as narrow as Adv Donen suggested.
Adv Donen acknowledged his weakness in civil law. However, judges took a long time and the accused remained in prison whilst waiting for an appearance.
Adv De Lange raised the right to remain silent, and the acceptance that one could force disclosure so long as the evidence from this compelled statement and all evidence that flowed from it was excluded. Was Adv Donen's complaint simply the practical one that the accused tended to repeat their statements and the Committee should find a way to take account of this?
Adv Donen replied that he recognised that there were situations where it was in the interest of the community that people speak. It was not the right to remain silent that he was debating. Rather it was the consequences of using the information for prosecution at a later stage when it was repeated. The Bill should exclude this or require that the person be warned again.
Adv De Lange stated that he agreed with Adv Donen on the matter of bail.
Adv De Lange raised the declaration of organisations as terrorist. South Africa was under an international obligation to deal with terrorist financing. How did Adv Donen suggest it deal with this without the power to declare organisations to be terrorist? Further, as the law stood, the declaration could be challenged in Court. There had been a suggestion that the Courts play a role at an earlier stage.
Adv Donen supported introducing the judiciary to supervise this process. He suggested that, to deal with finances, the organisation could be declared a criminal organisation and conceded that there had to be a declaration. The assets of the organisation could be frozen whilst the investigation proceeded.
Adv De Lange expressed his surprise that the Bar had said nothing on the indefinite detention allowed in Clause 8 and the judge's role in interrogation.
Adv Donen replied that the Bar had left this matter to the human rights organisations, with whom they had consulted. The Bar had focused on the principles of the Bill.
Adv Swart noted that Adv De Lange had covered most of what he had wanted to ask. He asked Adv Donen if he thought it would be better to pass an omnibus Bill that dealt with most or all of the terrorist legislation in one place or amend the twenty-two or more Acts suggested as an alternative.
Adv Donen replied that simplicity was needed. It was better to find everything in one place.
Professor A Thomashausen
Prof A Thomashausen (Professor of Law, UNISA; Director: Institute of Foreign and Comparative Law) presented a paper on terrorism. He explained that the term had originated in the French Revolution with the Reign of Terror. He stated that it was difficult to distinguish normal punishable acts from terrorist acts. To illustrate this he gave three examples. In the case of car hijacking, the highjacker inflicted extreme fear and anguish, killing the victim in about a third of cases, but this would not be termed terrorist. The snipers in the US northeast had caused considerable fear in the affected areas, but are not being tried as terrorists despite the fear they caused. Finally, the political assassin in Iraq, targeting US soldiers on duty from a hidden point, caused no fear because the victim was unaware that s/he was about to die. The act might cause fear amongst other soldiers, but not amongst the general populace and even the families of soldiers would experience only sadness since they were not targets. Despite the lack of fear in this case, he had no doubt such an assassin would be tried as a terrorist. Should terrorism thus be viewed simply as an attack on the State - as akin to treason? It is important not to blur the distinction between an individual's right to security and the perceived need of the State to preserve security.
After the attack on the World Trade Centre and Washington, the UN had ruled in Resolution 1373 that terrorism was a threat to world peace. Prof Thomashausen questioned the validity of this resolution. He stated that the duties under it were not mandatory. The UN Charter required an attack by a state and this did not apply. An appeal to the International Court of Justice should be considered. Whilst the resolution remained in place, the Counter-terrorism Committee (CTC) would continue to press smaller countries to adopt and apply draconian measures.
If one looked at CTC submissions, only eleven of the fourteen SADC countries had reported to it. Of these, only Mauritius has enacted terrorist legislation. The remaining SADC countries claimed that existing laws covered their obligations. Mauritius had acted under extreme financial pressure.
Only the current South African Bill had attempted to being in anti-terrorist legislation without a definition. He noted that a definition was present in the Bill if one corrected the typesetting error. The definition would then read: "'terrorist act' means an unlawful act, committed in or outside the Republic which is - (a) a convention offence; or (b) likely to intimidate the public or a segment of the public". Currently, the definition ended at 'Republic' with the following lines moved to below the definition of terrorist organisation. Even once this was corrected, it was not clear where one could consult the convention texts. National criminal offences could not be defined in terms of inaccessible documents not under the control of the South African legislature. The definition of a terrorist act was further flawed since (b) contained three subjective terms - 'likely', 'intimidate' and 'segment' - and yet formed the basis for severe punishment.
The Bill was dishonest since the bail provisions provided for detention without trial by the backdoor, despite the Minister's assurance that detention without trial would not be a feature of the Bill. Past experience should give the Committee pause before adopting an anti-terrorism Bill. The rest of SADC was reluctant to introduce such laws and they would damage respect for human rights.
An ANC member asked if Prof Thomashausen's research had found whether SADC states had created or had already had laws adequate for dealing with terrorism. The Bill was not simply to meet international obligations but to deal with international terrorism.
Prof Thomashausen replied he had found that convention crimes covered everything. He approved of the suggestion by Adv Donen that one could add the purpose of terrorism to common law - it could then count as an aggravating condition.
The Chair noted that some other SADC countries had no need to create laws because they had given over the running of security to the Federal Bureau of Investigation (FBI).
Ms Van Wyk noted that Prof Thomashausen's paper indicated that SADC countries other than Mauritius were working on legislation, which appeared to contradict his claim that other SADC countries were reluctant to or were not introducing such laws. Malawi was ready with a review and Namibia was working on enacting a Bill. This had been borne out at a recent SADC meeting. She wondered why he had not read out that section of his paper.
Prof Thomashausen replied that SADC countries were trying to enact such legislation but were not getting anywhere. They were under great pressure to try to pass such laws. If South Africa passed an anti-terrorism law, it would set a precedent as the leading country in SADC and the others would have to follow.
Association of Accountants and Lawyers for Islamic Law (AMAL)
Mr A Mayat gave the oral presentation for AMAL. He explained that they lacked the resources to make a proper study of the Bill, but had sought to highlight areas of concern. Since the difficulty of defining terrorism had been dealt with, he did not go into that aspect of AMAL's written submission. He stated that the consensus appeared to be that the Bill should be passed because of South Africa's international obligations, though the preamble merely stated that the UN had urged states to adopt anti-terror legislation. If South Africa was obliged to pass such legislation then the precise content was up to the legislators and the Constitution was paramount. He stated that it appeared that the Bill would have to be redrafted and that the Committee had decided that it would accept only written submissions after the close of the public hearings. He asked that the Committee consider further oral hearings.
Mr Mayat stated that the Bill fell short on justice and fairness, requiring South Africa to join the machinery of hypocrisy. Targeted killings, collateral damage and destruction of homes were not allowed under the Constitution. South Africa would lose the moral high ground if it thought it could deal with Israel or that it could not deal with Hamas. To be consistent, one would have to declare both or neither terrorist.
He questioned the need for the Bill since the rightwing threat and PAGAD had been dealt with using existing laws
Mr Mayat listed a series of problems with the Bill. The preamble should include reference to struggle history and South Africa's democratic dispensation. It was impossible to understand convention offences without them being spelt out in the Bill. Under the Bill, persons opposing oppressive governments would count as terrorist. The Bill was so loosely worded that it could be used to silence opposition. There was a problem of abuse of citizens by other countries if they were handed over under the Bill - they might be subject to harsh treatment or even the death penalty. There was no justification for all the offences to be considered Schedule 6 offences. He questioned how a member of the public could know that a person was a member of a terrorist organisation and noted that the provisions against feeding such members were ill-considered. How would a person even be deemed to be a member by the State?
There seemed no need to ban organisations since FICA and the Prevention of Organised Crime Act were more than sufficient to deal with them. If South Africa took the banning route, then Parliament should decide which organisations were to be banned, taking no special account of the UN Security Council. The Security Council was an unfair body with veto-wielding members and its use of poor or fabricated evidence had been documented. If UN decisions had to be considered, then only the General Assembly's view should be taken into account. The Bill should allow that state organs be declared terrorist - in its current form it protected and promoted state terror. The Bill should exclude liberation organisations, as declared by the UN General Assembly, from being declared terrorist. He noted that it would be difficult for organisations without the power and resources of the State to discharge the onus of proving that the declaration that they were terrorist was wrong. Such practical aspects should be considered.
He questioned the need for jurisdiction over acts committed anywhere, as long as the person was arrested in South Africa or on a South African ship. Such persons should instead be extradited to the appropriate country and only brought back to South Africa, through international judicial mechanisms, if that country refused to prosecute them.
Ms Van Wyk stated that, as the Committee understood it, the wide jurisdiction of the Bill was necessary so that South Africa could prosecute acts committed against South Africa outside of its territory. She cited the example of attacks on embassies.
Mr Mayat replied that such jurisdictional moves stemmed from the American desire to be able to charge people that had done things to Americans anywhere in the world.
Adv Swart asked if AMAL thought an anti-terrorism Bill was necessary.
Mr Mayat replied that he had not studied the thirty or more Acts other speakers had proposed could be amended to deal with terrorism, so he could not give a legal answer. The Boeremag and PAGAD appear to have been dealt with by existing legislation. There might also be other avenues, akin to the South African Revenue Service's (SARS) New Income Tax System (NITS) programme. There were crimes of far greater immediate concern to ordinary persons and no special measures had been considered for these.
An ANC member asked if AMAL had a proposed definition of terrorism.
Mr Mayat replied that the question of definition was a difficult one, stating that the world still lacked an adequate definition. Adv G Bizos had recommended the Law Commission's definition for study and AMAL would look at it and make submissions.
The Chair stated that the Committee agreed that the definitions were poor. He could not understand how the State Law Advisors had done what they had. The original Bill from the Law Commission had been far better. State Law Advisors were meant to improve Bills, not worsen them.
The hearing was closed.
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