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SAFETY AND SECURITY PORTFOLIO COMMITTEE & JUSTICE AND CONSTITUTIONAL PORTFOLIO COMMITTEE
25 June 2003
ANTI - TERRORISM BILL: PUBLIC HEARINGS
Chairperson: Mr Mluleki George (ANC)
Documents handed out:
The Law Society of the Cape of Good Hope (LSCGH): Submission
Military Legal Services (MLS)
Call of Islam: Submission
United Ulama Council of South Africa (UUCSA): Submission
UUCSA: Oral Submission
UUCSA Supplementary: Submission
South African National Halaal Authority (see Appendix)
Islamic Forum Submission: Submission
South African Human Rights Commission (SAHRC): Submission
Unemployed and Social Activists Committee: 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
The Law Society of the Cape of Good Hope (LSCGH) was opposed to the Bill, being of the view that existing legislation was more than adequate for dealing with the threat of terrorism. The Bill would be difficult and costly to implement. Many of its provisions could even be unconstitutional.
Military Legal Services (MLS) proposed that the definition be broadened to include intent and purpose, excluding the issue of motivation in relation to liberation struggles as referred to in the Algiers Convention.
The United Ulama Council of South Africa (UUCSA) expressed concern that the Bill might be used to promote a United Nations agenda or United States of America (US) foreign policy objectives, particularly in respect of Islam.
The Call of Islam expressed concern about using the UN list as a basis for declaring an organisation terrorist, also proposing that the Bill should make provision for such an organisation to be de-listed.
The South African National Halaal Authority & Islamic Forum joint presentation questioned South Africa's relationship with the UN and other international institutions. They felt that the Bill would result in an unjust balance of power.
The South African Human Rights Commission was not convinced of the need for the Bill. They provided perspectives that would have to be considered in any definition of terrorism. They proposed a number of technical changes to the Bill and expressed concern at the limitations to the right to silence. Adv De Lange challenged the SAHRC on the right to silence, stating that there was a widely accepted alternative interpretation of it to theirs, one that had been accepted by the Constitutional Court.
The Unemployed and Social Activists Committee rejected the Bill in its entirety as unconstitutional and a tool of imperialist oppression.
Law Society of the Cape of Good Hope (LSCGH)
Mr Vincent Saldhana reminded members that, under the old regime, security legislation had been imposed. There had been no transparency or public participation in the legislative process, and nothing organisations such as the LSCGH could do to influence it. This had now changed. Although the LSCGH did not want South Africa to be vulnerable or defenceless, it was nevertheless opposed to the Bill which, in the view of the LSCGH, was reminiscent of South Africa's old security measures. Also, experience elsewhere had drawn attention to serious problems in implementing legislation such as this. Vague definitions of terrorism in the Bill were a cause for concern. Further, sections of the Bill dealing with the notion of suspicion could lead to the misuse and abuse of designated powers. The Bill failed to deal adequately with the complex relationships underpinning some communities. This could turn the members of a community against one another, as had been the case with apartheid security legislation.
While there were pressures for South Africa to meet international obligations, Government needed to consider whether there might not already be appropriate laws in place to deal with the types of threat the Bill sought to address. Guidelines had to be found in the context of the African Union (AU) and the Southern African Development Community (SADC) to address the tensions that could develop by linking international conventions, which were political decisions, to domestic law. Further, the role of the Judiciary in investigative enquiries, as proposed in the Bill, would undermine its independence. The Bill would be costly to implement and might even require the establishment of specialised units.
Mr M Booi (ANC) said that he was uncomfortable with the suggestion that communities could be turned against each other. The Bill sought to promote community participation in policy implementation, not spying. Ever since 1994, Government had been identifying gaps in legislation that affected human rights and taking the necessary steps to remedy them. The fears that had been expressed about the Bill were rooted in the past and not based on current realities.
Mr Saldhana replied that the Bill could promote a culture of impimpi's or askaris, turning people against each other instead of uniting them in opposing crime.
Advocate P Swart (DA) commented that the purpose of the parliamentary process was to ensure that deficiencies in any piece of proposed legislation could be addressed. Would the LSCGH prefer one omnibus Bill for dealing with the issues concerned, or several different pieces of legislation? The LSCGH had not mentioned provisions in the Bill for declaring an organisation terrorist? Was the LSCGH happy with these provisions?
Mr Saldhana replied that different pieces of legislation would be more appropriate for dealing with specific issues rather than an omnibus Bill with vague definitions encompassing all these issues and treating them as the same. Regarding the declaration of an organisation as terrorist, this could simply drive the organisation underground. Terrorism was a sophisticated form of warfare and needed a more sophisticated approach.
Imam G Solomon (ANC) observed that, if the Bill was likely to undermine the independence of the Judiciary, surely the South African Bar Council would have drawn attention to this in its submission?
Mr Saldhana said that many provisions in the Bill, such as those relating to bail, might well need to be tested in the Constitutional Court.
Ms A Van Wyk (ANC) asked for clarity on the LSCGH's comments about the financial implications of the Bill, and particularly its reference to the need for specialised units. She then referred to the definition contained in the Algiers Convention, to which South Africa was a signatory. Could this definition be a starting point?
Mr Saldhana replied that Government would need to appoint specialists who understood the complexities of terrorism to deal appropriately with it. Special units dedicated to counter-insurgency could result and might even create more Eugene de Koks. The definition in the Algiers Convention needed to be taken into consideration. South Africa should lead the way in demonstrating how most realistically and effectively to fulfil the region's international obligations in the fight against terrorism.
Mr I Vadi (ANC) asked whether the LSCGH could propose an alternative to the investigative hearings proposed in the Bill.
Mr Saldhana replied that the South African Police Services (SAPS) already had the investigative tools needed to deal with crime. Why were special investigative hearings necessary?
The Chair wondered how the abuse of power could be policed.
Ms Sheila Camerer (DA) asked what would be most effective in curbing terrorism: one, new omnibus law or the existing cluster of legislation. In the region, it was only Mauritius and South Africa that had felt the need to have special legislation.
The Chair wondered whether the Criminal Procedures Act already contained some of the provisions in the proposed new Bill.
Mr Saldhana pointed out that the UN conventions concerned had not called for special legislation. The Bill was essentially a mechanism for ratifying other, international, laws. It would be difficult to implement.
Imam Solomon said that the LSCGH had raised substantive issues. The Committee needed to ensure that the Bill was constitutional.
Military Legal Services (MLS)
Advocate T J Kruger said that the MLS submission would focus on the practical rather than the theoretical. Terrorism was a challenge to democracy and threatened the rule of law. There needed to be a single, omnibus piece of anti-terrorist legislation to facilitate regulation by Government. The Bill's definition of a terrorist act was inadequate and should include intent and purpose. The various offences referred to in the conventions concerned should be incorporated, verbatim, in a Schedule to the Bill. However, the Algiers Convention, giving special status liberation struggles and related activities, should be excluded.
Advocate J de Lange, Chair: Portfolio Committee on Justice and Constitutional Affairs, saw no reason to include international conventions in domestic law. They could, instead, inform domestic legislation. He asked for clarity on a reference in the MLSA submission to the exclusion of an AU convention referring to important liberation struggles and actions taken as part of those struggles.
Advocate Kruger said that the Schedule to the Bill proposed in the MSLA submission would focus on the definitions themselves, which would not form part of the Bill. The definition contained in the Algiers Convention should be excluded.
Ms Camerer asked for clarity on which definitions should be included and which ones left out. There were many definitions of terrorism, with ample room for misinterpretation. Under the definition proposed by the MLS, an activist could be charged on the basis of an unintended consequence to an act. It was impossible to define terrorism.
Advocate Kruger explained that the submission specified those definitions that should be excluded. The MLS was in the process of refining the definition proposed in the submission.
Mr E Ferreira (IFP) remarked that, according to the definition proposed by the MLS, millions of people would find themselves labelled 'terrorist' overnight.
Advocate Swart said that the Bill's definition was vague. The definition suggested by the MLS was broad and comprehensive. The issues of motive and human rights should not be taken into consideration when dealing with terrorist activities. If they were, incidents of terrorism would increase.
Imam Solomon commented that the exclusion of political motive could lead to a situation in which any crime could be considered an act of terrorism.
Advocate Kruger said that intent, not motive, was the issue. There would never be complete agreement on a definition for terrorism, but motive should not be a consideration.
Mr George commented that, under the suggested definition, stealing someone's car would be a violation of anti-terrorist law. It was very vague.
Advocate Swart said that the proposed definition needed to distinguish between terrorism and crime.
Advocate Kruger again said that the motive for an act of terrorism should not be a consideration. Motive had no bearing when an ordinary crime was committed and it should be the same for terrorism.
Submission by the United Ulama Council of South Africa (UUCSA)
Advocate A Albertis said that the Bill was flawed because it failed to define terrorism adequately. The UUCSA submission sought to question the need for the Bill by challenging its source, the events of September 11 in the US. These events had been precipitated by a set of historical circumstances that had no relevance to the South African experience. South African law was flexible enough to either extradite those accused of terrorist crimes or try them under domestic law. Although SA had an international obligation to support the UN Security Council, the role of the US in the Security Council was a cause for concern. US involvement in global policing had placed Islam under threat and the reality was that this was what had motivated the Bill. South Africa should avoid being made an instrument of US foreign policy. The Bill failed to define what should be considered an act of terrorism and the Committee needed to look into this.
Advocate De Lange said that the Committee was aware of these issues. Nevertheless, South Africa had certain international obligations. Could the US perspective be realistically ignored in framing a definition when the AU principle had been taken into account? The threat of terrorism could not be ignored simply because of the phenomenon of US-provoked terrorism or because of differences with the current US regime. Ways had to be found to balance the influence of the US in the UN Security Council. The financing of terrorist activity did need to be dealt with. Further, in order to fulfil its international obligations in respect of terrorism, South Africa required legislation with provisions for declaring an organisation 'terrorist'. Nevertheless, this issue merited careful consideration by Parliament. The provisions of the Bill would need to be in keeping with the principles of the South African Constitution. UN law did not automatically become South African law.
Advocate Albertis replied that the inclusion of the AU principle in the provisions of the Bill was commendable. The issue of motive was an important one. Regarding the financing of terrorism, perhaps this should be included in existing legislation dealing with organised crime?
Mr Booi asked about comments in the submission referring to the role of the media in promoting anti-Moslem sentiments. As far as he knew, South Africans were engaging across the spectrum of political, religious and cultural perspectives in their efforts to address the terrorist threat. No law would ever be passed that excluded certain sectors of South African society. Was the Committee perceived to be promoting anti-Moslem sentiment?
Advocate Albertis said that there were tensions between the UN conventions concerned and the agenda underpinning US foreign policy. The role of the Security Council was complex. The US was powerful and had a track record that had tainted the role of the UN in the eyes of the international community. References to this in the submission should serve to warn South Africa and the Committee of the dangers of becoming party to US foreign policy.
Imam Solomon said that the Committee was definitely not anti-Muslim. He then asked about practical alternatives to an omnibus Bill.
Advocate Albertis suggested that the Committee explore whether the existing body of laws had any deficiencies in dealing with terrorism. Those laws appeared to have been adequate for trying members of People Against Gangsterism and Drugs (PAGAD).
Advocate Swart commented that he had never witnessed an expression of anti-Muslim sentiment in the Committee. However, South Africans needed to be aware of the dangers of self-fulfilling prophesy.
The Chair agreed.
Advocate De Lange commented that the events of September 11 had not, in fact, been the motivating force behind the Bill. Work on the issues addressed in the Bill had begun long before the emergence of current US foreign policy.
The Chair said that all issues raised would be investigated and, where necessary, sound reasons found to justify the decisions taken. The Committee had still not heard strong enough arguments to explain why the Bill was unnecessary.
Call of Islam
Mr Naazim Adam said that, although the Bill's definition of terrorism was problematic, there were nevertheless positive aspects to some of its provisions. Legitimate acts of liberation and opposition needed to be spelled out and definitions in the Bill should distinguish between terrorism and liberation. The role of the US was an issue that could not be overlooked and a US-oriented perspective of an act of terror should be treated with caution. Every country represented at the UN should respect international conventions. Section 14 (1) of the Bill (Declaration of a Terrorist Organisation) was too wide and should be scrapped. Also, the Bill made no provision for de-listing an organisation that had been declared terrorist and reinstating it as legitimate. South Africa was a regional and international peace-broker and, as such, should not pass legislation that did not give organisations the opportunity to defend themselves and even change. The Bill's title had caused a great deal of confusion and needed to be changed. Also, the preamble to the Bill, taken from the UN Resolution, should be more home-grown. The appropriateness of many of the Bill's provisions would have to be put to the test and might eventually be found to be open to abuse. Government should strive to deal with the causes of terrorism and not its symptoms.
Mr Adam asked that it be put on record that the Call of Islam was not in favour of a UN listing of organisations declared terrorist without provision being made for such an organisation to be given the opportunity to challenge the declaration. An individual should not be prosecuted because he/she belonged to a group or organisation. At times there were legitimate acts of terror.
Mr Yusuf Saloogee said that the UN should not prescribe what constituted an act of terror. The preamble to the Bill needed to include a definition appropriate to a free, democratic nation state and the needs of the individuals and groups concerned. The powers given to the Minister were too wide. The Committee needed to look into this and the need for a process of listing and de-listing.
Advocate De Lange said that he was equally concerned about the reluctance of some countries to respect international law. Because South Africa had signed the conventions concerned the Government had to be diligent in respecting them. He agreed that the preamble to the Bill needed changing because it sounded like a resolution. He pointed out that the majority party had a large following in the Muslim community. It would not be in their interests to introduce legislation that would target Muslims. He agreed that the Bill should make provision for a process of listing and de-listing. The debate about declaring an organisation 'terrorist' needed to focus on the issue of how such an organisation was financed, since opposition to terrorism implied opposition to the financing of a terrorist organisation. The relevant provisions in the Bill would need to be reworked.
Mr Adam said Muslims did feel targeted. Certain communities had been marginalized under apartheid and the laws designed to address this did not always impact on everyday interactions such as those that took place with security guards at airports. Violent acts were being perpetrated against Muslims world-wide everyday and this global onslaught had filtered down to South Africa. A sense of oppression and discrimination was not easily articulated, but Muslims felt it. It was there and could not be wished away. Many organisations collected money for oppressed groups and it was important that there be clarity in the Bill on the financing of legitimate causes, taking into account that some of these legitimate causes would be defined globally as terrorist but locally as liberation struggles.
Imam Solomon noted the level of frustration expressed both with the UN and the international community where the issues of de-listing and the special status of liberation movements tended to be overlooked.
Mr J Ngubeni (ANC) asked if the Call of Islam had a problem with the definition of terrorism contained in the 1999 Algiers Convention. He said that de-listing was a difficult issue.
Ms L Mabe (ANC) asked about the process of arriving at the Bill. If South Africa had started looking at this issue as far back as 1995, who had been driving the process?
Mr Adam said that the process that had begun in 1995 had been driven by the need to look at all security issues. The Bill itself had been motivated by developments in the UN. There should be provision for a nation state to be declared 'terrorist'.
An ANC member asked for suggestions for the preamble. How did the Call of Islam propose that the Committee should deal with the issues raised given the complexity of international politics? How was it that Parliament could be suspected of being capable of passing an unconstitutional Bill?
Mr Adam said that Section 14 (2) (Declaration of a Terrorist Organisation) would be sufficient to meet South Africa's international obligations. All that was needed was a set of objective criteria. A state was an organisation and many states had been charged with war crimes. Issues of principle and morality had to be continuously challenged.
The Chair asked for clarity on the submission's reference to US influence over the South African government. He also asked for clarity on what, in his view, appeared to be a contradiction in terms regarding the declaration of a nation state as terrorist.
Mr Adam pointed out that the UN Security Council had its roots in the Second World War. The Security Council was not representative and yet controlled international security. The UN as a whole needed to be reformed. South Africa should take a stand, not simply do as other countries were doing. There were also senseless acts of terror in which a nation state could be the aggressor. If a state was prosecuted the individuals in power would then be held accountable.
Advocate De Lange it was not possible to declare a nation state terrorist. A country could only prosecute on issues over which its government had jurisdiction. If terrorism fell under the International Criminal Court (ICC) it would be a different matter.
South African National Halaal Authority (SANHA) & Islamic Forum
Mr Rasool Snyman (Palestine Support Committee) gave the oral presentation on behalf of SANHA and the Islamic Forum. The organisations looked at the spirit not the letter of the law. They found the Bill worrying. The Bill had internal and external components. In considering the Bill, we had to go back and define who and what we are. We should also explore the UN and its role in global politics and consider whether we can abide by its conventions. If we are dealing with dubious parties, should we abide by the conventions?
Mr Snyman said that he would not go into the matter of the definition of terrorism, other than to state that the Islamic Forum had reservations about it. Regarding compliance with the conventions, South Africa's compliance had to reflect underlying values and those in the Constitution, otherwise it would become a bantustan in the global community. The Bill conferred an unjust balance of power; it failed to balance the burden of proof. The Bill should not become an entry point for injustice in the future. He questioned the use of a Bill with an international focus for dealing with domestic terrorism.
He stated that there had to be a mechanism to protect rights. Rights were threatened with the shift of the burden of proof to the citizen. The Minister would be able to declare organisations terrorist without judicial involvement and this was unbalanced. The Bill allowed no appeal to anyone outside the political process. He rejected the argument that the Constitution would protect citizens. The US had a constitution and yet had passed the Patriot Bill. Simply being called before a judge could cause problems and subtly violated rights. Persons called before a judge would be regarded with suspicion. This would be like US citizens called by the FBI who found themselves unable to find employment as a result. There should be a thorough examination before any declaration, not a declaration followed by the examination.
He returned to the nature of international institutions. These had to be examined before abiding by them. The UN's responses to genocide had been less than satisfactory; they were even accessories after the fact. South Africa was in the international community and had to decide its role in it. Sovereignty was of paramount importance. South Africa had to be able to fight off attempts at dominating it.
He stated that the Bill invoked fears in citizens. There had to be checks and balances to protect society. Democracy was about balance between the power of the State and the rights of the citizen.
An ANC member stated that the purpose of the hearing was to hear the voice of the people. South Africa could be proud of this aspect of its democracy. There had to be an understanding of what Government stood for.
Advocate De Lange said that he was not sure why the speaker was concerned about the relationship between Government and the people. Just as Members of Parliament (MPs) should not be patronising to people coming to Parliament, so the speakers should not be patronising to MPs. He had a problem with activists that implied that they and not MPs defend rights. People should accept that MPs did not just pass laws; they strove for constitutionality and had a good track record in this. It had been pointed out at the start that the Committee thought there were weaknesses in the Bill, notably in the definitions.
Imam Solomon said that he was concerned about unfounded statements made on record by presenters, such as that Government is draconian, is abusing human rights, attacking civil liberties, and so on. Speakers should be fair about what they put on record.
The Chair said that when the hearings had started, he had asked that Committee members not respond to attacks. They should simply thank people for their comments and leave it at that. Members should only respond around the issue on the table - the Bill. He recognised that the temptation to respond was there, but appealed that members resist it.
Mr Snyman replied that he was not questioning Government's integrity. The process had been transparent, though there were perhaps areas that need further exploration.
An ANC member stated that Government was arguing for multilateralism in the international arena. It was working for the transformation of the UN, so the difficulties cited were not new to it. The Constitution stated that treaties were between the Executive and other governments. Parliament's role was to ratify such treaties and to oversee what the executive branch does. The issues raised by the presenter had been raised before. Members sought to ensure that they passed laws that were constitutional, in line with values, and fair and just. South Africa could not ignore the reality of the UN as the instrument to regulate international conduct. As flawed as it was, it was the UN that shaped relations between countries. To ignore it was to encourage the unilateralism to which South Africa was opposed.
The Chair said that whilst the Committee took note of presenters' views on the UN, the aim of the hearings was to deal with the Bill.
Advocate De Lange expressed concern that the speaker was mixing issues. Conventions were not structures. Conventions were different - nations sat down and discuss them. They addressed specific, focused acts and needed to be ratified by Parliament. One might object to the ratification and could even take the matter to the Constitutional Court. Even in its current poor form, the Bill allowed that an organisation could challenge a declaration in Court. The Committee had talked about a different role for the Judiciary in this. He wished South Africa could declare state-sponsored terror a crime under its jurisdiction but it did not have that authority. The furthest it had gone in this direction was the ICC, but terrorism was not a crime in the ICC treaty. With the ICC Act in place, South Africa could act against people that entered its territory that had committed an ICC crime. South Africa could not just create international law with international jurisdiction.
Mr Snyman replied that he did not intend that South Africa should ignore the UN but that it should be actively engaged in reforming it. He had referred to the international context because this was where fears lay. His group was active in Palestine across a range of organisations. What would happen if one of these were declared terrorist? What were the international ramifications of such a declaration? The greatest danger lay in the international context. Groups could talk to Government, but how could they deal with international organisations? Government had to contribute to changes in the international community. He had reservations about saying that one had to abide by conventions. Conventions were not permanent. Would South Africa have honoured a convention signed with the pre-Nazi German government when the Nazi government was in power? How could international institutions be dismantled when necessary? For example, the North Atlantic Treaty Organisation (NATO), which had committed war crimes in bombing Yugoslavia.
Mr Ngubeni said that he did not agree with claims that South Africa already had adequate laws to counter terrorist threats in the country. Speakers that claimed this referred to a range of Acts that could be used. It was wiser to have one, unambiguous piece of legislation to deal with terrorism. He did not think that the Boeremag trial had proved anything since no-one yet knew what the result would be. He questioned speakers' claims that the Bill would criminalise legitimate humanitarian aid, which they had then failed to substantiate. All members embraced the Constitution. Regarding the UN, one needed to consider its role during the struggle. South Africa could not suddenly isolate itself.
The Chair said that he thought Advocate De Lange had dealt adequately with the UN issue. He noted that the speaker had emphasised checks and balances - could he suggest some?
Advocate Swart stated that the Committee had noted that certain provisions in the Bill could be interpreted as applying to humanitarian aid. The Committee was looking at this already.
The Chair said that the Committee had heard a good deal about the UN and the US. The Committee did not have the ability to deal with this. They might not be happy with some of the things done by the US and UN, but this was not what they were dealing with at the hearings. He asked that presenters take account of the fact that the Committee had expressed their objection to the definition and the way the Bill was drafted. Presenters should address the content of the Bill. The Committee had yet to hear a strong argument for using and amending current legislation rather than passing an anti-terror Bill. Presenters would be wasting their time if they simply used their opportunity to tell members how bad Government is.
South African Human Rights Commission (SAHRC)
Advocate L Wessels (National Commissioner: Access to Information; Commissioner: Western Cape) gave the oral presentation for the SAHRC. He stated that some of the SAHRC comments would be technical and some superfluous since other speakers had made the points before. However, some would be substantive matters on which they and the Committee could engage. The SAHRC was not convinced of the need for the Bill. They understood, though, that the international environment was difficult and that South Africa had obligations to meet. Further, the list of related legislation was extensive. However, the manner in which each country incorporated international instruments depended on that country's circumstances. There was no requirement to go against the Constitution.
He noted that the Committee had agreed that the definitions were inadequate. There would be far-reaching consequences were the Bill to go through with the current definitions. The SAHRC submission included an account of the features that would have to be taken into account in any definition. Terrorism could be perpetrated either by individuals, groups or by governments. The motivational factors underpinning terrorism included rational consideration of goals and options - a cost benefit analysis. A terrorist act was a planned event. Terrorism could exist in the name of political, religious, socio-economic or other belief systems. The objectives of terrorism were often fear, extortion and radical change. In this regard, the process had three elements: the act or threat of violence, including techno-terrorism and other serious economic crimes committed for a political or other non-profit motive; the emotional reaction or extreme fear on the part of the potential or future victim; and the social effects that follow the violence. This illustrated the difficulty of coming up with a satisfactory definition. A loose definition would also cause problems with the offences listed in the Bill.
He proposed that 'Any person who -' be replaced with 'Any person who knowingly - ' in Clause 2 (1), bringing it in line with the rest of the offences listed in Clause 2 (Offences and Penalties). Clause 3 (Offences Relating to Internationally Protected Persons) should be changed so that the court 'might' rather than 'should' treat the fact that a victim was an internationally protected person as an aggravating factor. This would give the Judiciary the chance to decide the case on merit.
Clauses 5 (Bail) and 6 (Power to Stop and Search Vehicle and Person) appeared unnecessary. The powers in Clause 6 were already granted by the Criminal Procedures Act. It appeared strange to have a section on Bail when there was already an Act that dealt with it. Again, the definitions had to be tight or the Schedule 6 onus imposed on bail considerations in all terrorism cases would be unconstitutional.
Advocate Wessels raised concerns about the impairment of the rights to be presumed innocent and to remain silent in Chapter 3 (Investigative Hearings) of the Bill. In Clause 8 (Order for Gathering Information), a judge should be required to have regard for the requirements of Sub-clauses (3) and (4) when varying the terms and conditions of the order under Sub-clause (5). The Constitution required that there be safety mechanisms in place when rights were suspended in times of crisis. The potential for indefinite detention under the Bill placed a person in a worse situation than he/she would be in times of crisis. The Committee should take great care on this issue.
He stated that the SAHRC approved of the requirement in Clause 14 that the Minister signal his/her intention to declare an organisation terrorist. However, the SAHRC proposed that the Minister give the organisation a short period to respond. Without this, the clause might not meet the requirements of natural law and administrative justice. He noted that 'security' and 'territorial integrity' were not defined. The SAHRC thought that the Regulations ought to be tabled in Parliament.
Advocate T Thipanyane (SAHRC) stated that Clause 11 might be in tension with requirements of the Promotion of Access to Information Act. There could also be tension between Clause 11 and Clause 17 of the Bill in relation to that Act.
Advocate De Lange noted that the SAHRC was not convinced of the need for the Bill. He then posed three reasons for having it. First, setting aside the practicalities of whether the current laws were sufficient, South Africa had international obligations. Surely the SAHRC was not suggesting that South Africa should ignore these? The conventions had to be incorporated into domestic law. Second, South Africa had signed the Algiers Convention, which contained a definition of terrorism. Was there any option but to introduce the offences covered in this convention? Third, UN Resolution 1373 bound South Africa on terrorist financing. There was no way to comply with this unless South Africa had a definition of terrorism as a crime. He agreed that the relevant financial Acts had to be amended to take terrorism into account, but there had to be a crime of terrorism in order to do this.
Advocate Wessels replied that international law had to be interpreted through the Constitution. The mode and format of laws to implement conventions was left to individual countries to decide. He agreed that there were gaps in current law. Dealing with them was a matter of style. Parliament had to consider how to consolidate all the legislation to ensure it was coherent. He noted that some international duties and obligations did not fit comfortably with South Africa's scheme. For example, the African Charter did not make provision for the suspension of rights, but the South African Constitution did, drawing on international treaties and conventions.
Advocate De Lange stated that he agreed with the SAHRC on the issue of bail. The Committee was likely to go further than the SAHRC suggested on this. The consequences of a Schedule 6 onus for providing food would be unconstitutional. The Committee would deal with this and reschedule the offences. The Criminal Procedure Act did not require a warrant for search and seizure, whilst the Anti-Terrorism Bill required one. In this respect, it was stricter.
Advocate Wessels replied that he would not go into bail, and search and seizure.
Advocate De Lange said that there were two accepted ways of dealing with the right to silence. One could simply grant a right to remain silent. Alternatively, and this appeared to be the view of most countries and was accepted by the Constitutional Court, one could force disclosure but only if evidence from that disclosure and any derivative evidence was excluded. Could the Bill be interpreted differently from the second view?
Advocate Wessels replied that he did not wish to get into this. He felt uncomfortable because a person who found himself on the receiving end of this provision would be in a very difficult position. To remain silent would be difficult. The Committee should consider the matter with the greatest care. It was an administrative action that took away a constitutional right.
Advocate De Lange replied that Advocate Wessels was mixing the declaration, which is administrative, with the investigative hearings. A judge might only make the order if he/she had reasonable grounds for the belief that an offence in terms of the Act had been committed, information about the offence or the whereabouts of the person suspected of having committed the offence would be obtained, and that no other reasonable avenue for getting the information could be pursued. The order could thus only be given where something had already happened. Only if the person did not co-operate and the judge thought that he/she ought to have done so might a judge sentence the person.
Advocate Wessels replied that there were limitations to what one might refuse. The right to silence was impaired and that was the issue for the SAHRC.
Advocate Thipanyane added that, in Clause 18 (Protection of Person Making Report) it was not clear whether the person compelled had the right to legal representation, as in Clause 10 (Detention or Release on Bail or Warning). In the context of the right to silence, the compulsion might be a justified limitation. The matter was unclear.
Advocate De Lange stated that the interpretation that the Bill allowed indefinite detention might be correct. The Bill did not force a judge to place a time limit on detention. He did not understand the arguments around the Promotion of Access to Information Act and asked for clarity.
Advocate Thipanyane replied that one had to consider Clauses 15 (Determination by Accountable institution), 16 (Duty to Report on Property of a Terrorist Organisation), 17 (Applicability of Rules Relating to Confidentiality) and 18 (Protection of Person Making Report) read with Clause 2 (Offences and Penalties), especially as regards the accountable institution or person. The question of who had to provide the information related back to Sections 5, 6, 34 and 36 of the Promotion of Access to Information Act, which prohibited the disclosure of records of third parties. How could one get round this prohibition if the information the individual held affected a third party?
Advocate De Lange stated that the declaration provisions had to be examined. However, even as the clause stood, one could challenge the declaration as an administrative action by the Executive. He agreed that it was badly drawn. He asked for the SAHRC's view of an alternative suggestion that the Court be allowed to freeze the assets of the organisation. As the Bill stood, the assets were not frozen but only reported to the Financial Intelligence Centre.
Advocate Wessels replied that the direction in which the Committee was taking things was an improvement. The approach appeared constitutional and was worth serious consideration.
Mr Booi said that he was disturbed by the analysis of the PAGAD case in the SAHRC's written submission. If they said that the Bill was based on the events in the Western Cape, this would confuse the public.
Advocate Wessels replied that the part of the document to which Mr Booi referred (Annexure A of the SAHRC submission) was an earlier submission to the Law Commission. It was not the intention of the SAHRC to cause discomfort.
An ANC member stated that it appeared that if the definition were addressed, the SAHRC's other concerns would cease to be material. Was this a correct impression?
Advocate Wessels replied that the debate on whether the definition needed to be addressed appeared settled.
An ANC member asked about the SAHRC's suggestion that the organisation be informed of the Minister's declaration by some means. Were they proposing an alternative to serving a notice, such as using the media?
Advocate Wessels replied that the idea behind the proposal was to inform the organisation. If the targeted organisation could not be found for service of the notice, then public means would have to be used.
Ms Van Wyk noted that many speakers had suggested that the declaration of an organisation as terrorist be eliminated. Advocate De Lange had explained why it was necessary. Would it help the SAHRC's concerns if the clause required that the Minister consult with the Minister of Intelligence? This made sense since the decision would be based on intelligence. Should the declaration be considered by Parliament?
Advocate Swart stated that Advocate De Lange had asked his questions. He was under the impression that the Committee already intended to go much further than the SAHRC had suggested. He asked if, in addition to Ms Van Wyk's suggestion, there should be a process on declarations based on UN declarations. Should they be ratified in Parliament?
Advocate Wessels replied that it would not improve the fit with constitutional objectives to have Ministers consult one another. This suggestion fell far short of what Advocate De Lange had proposed and what the SAHRC had in mind. There was a trend towards involving Parliament in matters as serious as this. He accepted that Parliament was not always in session, but could then be involved even if it was after the fact.
The Chair asked for the SAHRC's view on a scenario where someone had information about a bomb about to go off in a shopping mall and kill hundreds of people. Did they think the right to silence, as they understood it, applied under such circumstances?
Advocate Wessels replied that there was no question that certain rights could not be impaired no matter how severe the circumstances, because to impair them would be to embark on a process that would not withstand constitutional scrutiny. Should the person be beaten if he/she refused to reveal the information? There was a procedure for limiting rights and under this there had to be measures to ensure security.
The Chair asked for a further, written, submission from the SAHRC on the compulsion of evidence. Members had not understood the point made.
Unemployed and Social Activists Committee (USAC)
Mr M Gunguluzi (Co-coordinator, USAC) gave the USAC's oral submission. He introduced the organisation as one that aimed to inform and educate people so that they could play their role as South African citizens. The security of citizens rested with Parliament, not with the police or judges. He stated that the Bill was more repressive than apartheid itself had been. There had been a lack of transparency - the Bill had started its life in 1995, but he had only heard about it recently and people had been given only twelve days to respond to it. The Bill was intended to defend imperialist globalisation and the bourgeoisie of South Africa.
It allowed detention without trial, which was unconstitutional. Government had introduced the Bill to give greater power to the police; a police state was inevitable. The Bill lacked a definition of terrorism, yet referred to an unlawful act, convention or offence likely to intimidate the population or a segment of the population. This was ambiguous and the segment referred to the minority determined to oppress and exploit the workers. The Government wished to punish everyone that opposed it in any way.
An example of a terrorist was George Bush, who used force to impose democracy. The law was framed to dominate the black working class. He noted that the internationally protected persons would include officials from imperialist countries. Government was acting as an agent of imperialist oppressors and exploiters.
During investigative hearings, one was obliged to answer questions. The Constitution did not allow this. The Minister would be obliged to follow suit if the UN declared an organisation terrorist. However, the UN was undemocratic and had done nothing to stop the US killing the people of Iraq. The Minister's decision could only be challenged in the High Court, which was a very expensive process. The Minister was not obliged to inform organisations of a declaration and so they might not be able to appeal in sixty days. The Financial Intelligence Centre would ensure that there would be no financial support for organisations declared terrorist. This might affect legitimate organisations, including the USAC, which had had to go to an imperialist institution for funding since it had no funds of its own.
The Bill protected the accuser. One could not cross-examine the accuser because the police would protect him/her. The Bill was inconsistent with the Constitution. It was important to study the foreign policy of the US. If one disagreed with the US, they could declare one terrorist. The Bill should be rejected. It would be used against people struggling against imperialist globalisation and the macro-economic policy of South Africa.
An ANC member said that the presentation had been a lambasting. Since the USAC rejected the Bill in its entirety, what did they propose in its place? The presenter had stated that the Government was an agent of oppressors, yet South Africa had been clear that it did not support the Iraq war. She wondered what informed the presenter's view. She stated that other presenters were of the view that banning an organisation would strengthen it and wondered if the presenter concurred with this.
The Chair appealed to members to stick to the matter at hand - the Anti-terrorism Bill. Members should have developed the skill to take what was given to them. If people came to the hearings and told them that they are imperialist agents, members could not argue with them; such people had been indoctrinated. The hearings were called to deal with the Anti-Terrorism Bill. The USAC had stated that they rejected it. He could see no reason to probe their views. They had stated that the Government is imperialist, so they did not respect it. The issues raised by the speaker were not relevant.
There were no objections and the hearing was closed.
South African National Halaal Authority
21st May 2003
Our Ref.: COR.3810/SM/mc
Attention: The Secretary to Parliament Mr. Nkosekhaya Lala
The South African Parliament
P.O. Box 15,
Fax: 021 462 2142
Re: Submission on Anti-Terrorism Bill
The whole world applauded our emergence from the dark and tortuous past of inhuman oppression to a new dawn in 1994. Even more phenomenal was the manner in which all South Africans negotiated their future in a spirit of conciliation and framed a constitution that became the envy of the world.
As proud citizen of this new found democracy we find the proposed Anti-Terrorism Bill abhorrent and incongruous with the above.
We believe that our existing laws affords us adequate protection and the proposed legislation is an overkill of using a sledgehammer to kill a mosquito variety.
South Africans today are a living witness to the abuses of power under draconian legislation, with revelations at the Truth and Reconciliation Commission, a tip of the iceberg. There is no way we can ever return to that kind of inhumanity, aided and abetted by totalitarian and archaic legislation.
Whilst we cannot afford the luxury of waiting for an election to register our protest at the ballot box, we appeal to the conscience and good sense of the members of the legislature to withdraw or amend the bill.
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