Anti Terrorism Bill: Public Hearings

Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE & JUSTITICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
26 June 2003
ANTI-TERRORISM BILL: PUBLIC HEARINGS

Chairperson: Mr M George (ANC)

Documents handed out:
Idasa Submission (Appendix)
The National Prosecuting Authority of South Africa: Submission
South Africa Law Reform Commission (PowerPoint Presentation)
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

SUMMARY
Idasa expressed concern about a lack of clear definitions in the Bill. This had affected a great many of its provisions. They recommended that the Bill target individuals and not organisations, as organisations were generally not mandated for criminal purposes. They also believed that the right to remain silent should be protected.

The National Prosecuting Authority (NPA) proposed a number of technical amendments, stating that the Bill was a noble attempt at countering terrorism.

The South African Law Reform Commission (LRC) provided a useful analysis of anti-terrorism legislation in Australia and Canada.

The Committee agreed that the Bill's definitions were problematic. Amended definitions would be re-circulated. The public hearings had not persuaded the Committee not to proceed with the Bill. However, there needed to be Parliamentary involvement in the process of declaring an organisation terrorist since the Minister alone could not be given such an onerous responsibility.

MINUTES
The Chair began the meeting by stating that this would be the final day of the public hearings. A great many submissions had been made, including some that were opposed to the Bill. A range of opinions had been heard from those who believed that the Bill was necessary but who wanted minor changes made. There had been general consensus that the definitions were problematic. The section concerned would be amended and circulated. Could the remaining presenters focus, instead, on the content of the remaining sections?

The Institute for Democracy in South Africa (Idasa)
Ms N Ntuli, Legislation Monitor, presented the Idasa submission, which focused on Definitions, Human Rights, and Right to Silence. The lack of clear definitions affected every facet of the Bill, causing problems throughout its contents. It was Idasa's view that there were sufficient existing laws to address the criminal activities covered in the Bill. However, since the Bill was already far into the legislative process they would not question its necessity.

Discussion
Advocate P Swart (DA) thanked Idasa for their meaningful presentation, noting that it was in line with what they had heard so far. While they all agree that the definitions were problematic, they would benefit from Idasa's opinion on what they should be. Regarding the right to silence, he gave an example. Someone driving a gold Lamborghini was seen placing a bomb in a rubbish bin. Many people were killed. The registration of the vehicle was traced to an old woman who then said that her niece had borrowed the vehicle during that time period. When the police tried to question the niece, she claimed her right to silence. Should she be compelled to speak or should her right to remain silent be protected?

Mr M Maziya (ANC) commented that, while it was encouraging to see such a young person being given an opportunity to present a submission, the Committee would nevertheless have expected a more senior person to attend.

Mr M Booi (ANC) said that it was crucial for them to hear Idasa's opinion on whether or not the Bill was necessary.

Imam G Solomon (ANC) noted that Idasa had said, in the submission, that people often organised for good reasons. Under the Bill it might be an offence to organise to provide people with food and water. There were organisations that were a danger to society, but what about the organisations that financed them? Regarding the right to remain silent, important information sometimes needed to be obtained in the interests of public safety. How to balance the sensitive issues entailed would require careful thought.

The Chair questioned Idasa's comment that frustrations might lead some organisations to resort to terrorist activities. He wondered if Idasa was condoning this type of behaviour. In a free and democratic society there were other avenues to take. Idasa had recommended that the Bill target individuals and not organisations. Surely arresting individuals but leaving the organisation concerned alone could lead to more incidents? If an organisation condoned criminal acts, then it and the individuals concerned should be dealt with.

Ms Ntuli replied that Idasa did not condone the existence of organisations formed for criminal purposes. However, there were times when certain members engaged in criminal activity. This issue went to the heart of the definition of terrorism in the Bill; at what point was an act considered terrorist or criminal? There were cases of paedophilia in the Catholic Church, but should the whole church be shut down? At Idasa, different people had different functions. Her role was legislative monitoring and the more senior people to whom she reported were confident in her ability to handle the presentation.

IDASA appreciated the weight given by the Committee to their opinion. Even though Idasa might believe the Bill to be unnecessary, since it was already in existence it was important to address it. If pushed, Idasa would perhaps say that the Bill was not necessary, particularly in view of its vague definition of a terrorist activity. Idasa did not seek to justify the financing of illegal organisations or anything undermining democracy. However, the Bill needed to clearly define what was illegal.

If the South African Police Services (SAPS) had accumulated enough information to lead them to believe that someone had committed a criminal act, the usual criminal procedure should be followed. The person concerned should be told of his/her right to remain silent and this should be accompanied by an explanation of the consequences of doing so. The assumption on the part of the SAPS that there might be something to hide might compel that person to confess, but otherwise their right to remain silent should be protected.

The Chair asked whether, if that person had information that could save lives, that would be taking the right to remain silent too far.

Mr Maziya also wondered about this.

Advocate Swart observed that all relevant sections in the Bill referred to an act that had already been committed and the attainment of information to help with the investigation to find the guilty person. In his example, the niece could not be charged with anything since to do so would require proof beyond reasonable doubt. Sections 8 -11 of the Bill were problematic and the Committee wanted to rectify this. Under what circumstances should they be able to compel a person to give information if the only way of getting that information was by taking away their right to remain silent?

Mr P Mbana, Legislation Monitor: Idasa, said that it was important to note that taking away the right to remain silent could well be unconstitutional. If one committed an act of terrorism, the right to remain silent was not automatically limited. The danger was that, once the right had been taken away, what methods would be used to obtain that information?

Imam Solomon noted that, under current jurisprudence, one could justify forcing someone to disclose information. However the disclosure could not be used as evidence against them. Was this not sufficient?

Ms Ntuli said that this might reverse the onus of proof on the person to prove their innocence. Idasa's concern was the methods that could be used to extract information once the right to silence had been withdrawn.

The Chair noted that, while these issues needed to be addressed, Idasa's concern about the ramifications of refusing to disclose information were, in fact, already covered in the Bill. He thanked Idasa for a valuable presentation, undertaking to make the amended definitions available in due course.

National Prosecuting Authority of South Africa
Dr S Ramaite, Deputy Director, presented the National Prosecuting Authority (NPA) submission.

He addressed the concerns discussed about the taking away the right to silence. The National Prosecuting Act allowed for this right to be taken away as an investigating tool with respect to organised crime. However, the Constitutional Court had ruled that any information obtained through this method could not be used in a court of law.

Advocate G Nel added to the submission by discussing technical amendments to the Bill.

Clause 2 (2): There was no difference between this and Clause 2 (1) (c).

Clause (7) (a) (ii): This should read 'obstructs and hinders', not just 'obstructs'.

Clause 3: The heading of this clause was a misnomer and did not relate to the clause at all.

Regarding Clause 4 (1) (a), at this stage the person was not yet an accused and should therefore be referred to as the person who had allegedly committed the offence. Reference in Clause 4 (1) (b) to a vessel or ship should be removed. Instead the Bill should provide a definition of territory. Also, extradition and the protocols of international law needed to be dealt with in the clause.

On the issue of bail provision, although many submissions had expressed concern about this section the NPA was not concerned as long as this provision was limited to serious instances of terrorist attack such as the hijacking of aeroplanes. A proviso should be included to specify this.

Clause 10: Under what circumstances might a person be detained? The drafters should look at the provisions of Sections of 50, 58 and 60 (11) of the Criminal Procedure Act, which provided guidelines to the circumstances in which a person might be detained.

Clause 14 (3): The public did not read Government Gazettes. The South African Law Reform Commission had recommended that the notice to declare an organisation terrorist should be released to the media.

Clause 18 (2): This provision could lead to a situation in which a bank teller, for example, was not compelled to bring evidence when that evidence was vital and there were no reasons for him/her to be excluded.

Clause 21: In effect, this gave the Minister the power to create a new offence by adding it to the Schedule. This provision might be inconsistent with Constitutional Court judgements.

Regarding Idasa's view about an organisation whose mandate was not criminal, Clause 14 clearly excluded that type of organisation.

The Chair asked the NPA if they were willing to assist with the process of amending the Bill and was told that they were.

Discussion
Ms S Camerer (DA) commented that it was a great pity that the NPA had not been given the opportunity to provide input at the beginning of the hearings. Their comments would have saved the Committee a great deal of trouble. How had the Bill come before the Committee if it was viewed as flawed by the NPA? Why had the NPA not been consulted earlier?

The Chair commented that Ms Camerer's question had been answered before on numerous occasions. The Bill had been completely changed by the State Law Advisors who had made mistakes but were only human.

Advocate Swart asked how the NPA justified not involving a judge in the process referred to in Section 8. How could the NPA justify the concept of detention without trial and without a time limit? The Committee was struggling with sections 8 to 11.

Mr Booi asked about the constitutionality of what they were attempting to do with the Bill. He was also concerned about the definitions. Many presenters had said these were problematic, which made it very difficult to proceed with the Bill. He asked the NPA to assist in formulating appropriate definitions. Media representatives had also drawn attention to concerns around the removal of the right to silence. Some had even suggested that Government intended making spies out of community members. What did the NPA think about this? Did the NPA support the concept of an omnibus Bill or was existing legislation sufficient?

Mr Maziya asked why there was a tendency on the part of so many lawyers to avoid defining terrorism.

A member appealed to the NPA to liaise with the State Law Advisors.

Mr Ramaite replied that the Bill was a noble attempt at countering terrorism. Regarding Section 11 and the possibility of indefinite detention, the NPA would be concerned if such a situation occurred without any safeguards. A mechanism was required to safeguard the rights of individuals. The NPA was committed to upholding rights enshrined in the Constitution. The NPA had not intended to be critical of the Committee's work; they had merely tried to point out some flaws. The first draft of the Bill had been more in line with their thinking.

Regarding the constitutionality of the Bill, there was no guarantee that any legislation would not be subject to constitutional attack since it was the legitimate and democratic right of any citizen to challenge any legislation. It was incumbent on the NPA to assist the Committee as much as possible to ensure that the Bill was sound. It was difficult for the NPA to comment on the media issue and a personal view would not be appropriate.

The need for an omnibus Bill depended on whether issues of terrorism were dealt with separately or in the same way as a common law criminal offence. It might well be necessary to have special legislation for dealing with organised crime. The NPA needed the legislative tools to enable them to work more efficiently and appropriately in dealing with the types of criminal activity now becoming so prevalent. The NPA had not avoided defining terrorism. Clear definitions assisted lawyers in the work they had to do. However, the regulation of human conduct did not lend itself easily to definitions.

The Chair thanked the NPA for their submission.

Advocate Swart again asked the NPA for assistance in finding a mechanism to address concerns about Sections 8 to 13.

The Chair said that the NPA had already committed Advocate Nel full-time to this process. The view expressed by some organisations that the Bill was not necessary had not been substantiated by any credible argument and had therefore failed to convince the Committee. South African Law Reform Commission
Advocate P van Wyk presented a submission from the South African Law Reform Commission (LRC)

Advocate Swart observed that the Committee had received a great many submissions during the hearings pointing to the Bill's potential for violating human rights. Had the Canadian and Australian models for addressing the threat of terrorism made provision for declaring an organisation or any of its members terrorist?

Mr Booi said that the day's hearings had raised two more issues. Should the Minister be required to consult Parliament before declaring an organisation terrorist, even if Parliament was not sitting? What was the LRC's view on Idasa's suggestion of dealing with the individual rather than the organisation?

Ms A van Wyk (ANC) asked if there was a difference between declaring an organisation terrorist and banning it. What did it mean to declare an organisation terrorist? Was the impact of doing so on members and assets different if the organisation was banned? The Bill did not use the term 'banning'. It had been said that investigative hearings would be an easy way for the SAPS to avoid investigative policing, since the hearings would force witnesses to give evidence. What other advantages would investigative hearings have?

A member asked what would happen to nations that chose not to adopt UN Resolution 1373. How did Canada deal with terrorism without laws such as the one Government was seeking to implement?

The Chair said that there was a process for declaring organisations terrorist, but no method for taking them off the list. If you had a process for putting someone in jail, you needed a process for getting them out.

Advocate Van Wyk replied that the LRC submission recommended a procedure for de-listing. If a prescribed organisation made a written submission to the Minister alleging that there were reasonable grounds for revoking the declaration of that organisation as terrorist, the Minister should be required to deal with that submission without delay.

Regarding press freedom, the LRC realised that this was not absolute. There were circumstances in which it might need to be limited. On the issue of investigative hearings, the Constitutional Court has just ruled that these were constitutional for insolvency procedures.

There was a fine distinction between banning and listing. Parliamentary approval of a change to the list of terrorist organisations might be problematic in respect of compliance with changes to the United Nations (UN) list, although there were probably procedures in terms of which Parliament could respond quickly in such a situation.

Australia and Canada had attempted to build all the necessary safeguards into their laws. Although, in Canada, an organisation could be listed as terrorist and its assets frozen, membership of that organisation did not constitute an offence. Investigative hearings were a last resort in both Canada and Australia and no such hearings had been conducted in Canada the previous year. The Judiciary needed to be presented with reasonable grounds to convince them that an investigative hearing was not premature.

If a country chose not to comply with Resolution 1373, the UN's Counter Terrorism Committee (CTC) required that an interdepartmental working group should be established to compile a report explaining why existing legislation was deemed sufficient. The CTC worked on the assumption that existing laws were not sufficient to counter terrorism. A number of countries did not have statutes for dealing with the interception of communication and were likely to experience difficulty in dealing with the issues concerned under common law without finding themselves in breach of the international conventions. They would not be able to prosecute or extradite people properly.

The Chair thanked all the presenters. The public hearings had raised some important issues. One of these was the need for Parliamentary involvement in regulating the legislation. While media freedom needed to be respected, the media should not be treated as super-citizens. They should not be prevented from doing their jobs, but needed to understand that they had the same responsibilities as all citizens to report crime.

The Committee had not been persuaded not to proceed with the Bill. A group of lawyers including Advocates Van Wyk, De Lange, Jacobs and Nel would now finalise the Bill with the State Law Advisors. They will take into consideration all the submissions that had been made and prepare a written response for the Committee. This document should be ready within three weeks and would then be sent to the various political parties so they could discuss it internally. The Bill would be taken very seriously.

The Bill did not target any group of people in South Africa. Moslem communities should not assume that problems experienced elsewhere in Africa would apply in South Africa, where there is no anti-Muslim movement. Government was not a puppet of the United States, and would never become one. Neither, however, would they adopt an anti-US position as this would not benefit anyone. Instead, they would continue to voice their disagreement responsibly in the proper forum. Regarding the UN, it could not be influenced by way of defiance. South Africa could not be governed on the basis of emotionalism.

The meeting was adjourned.

APPENDIX: IDASA SUBMISSION

Anti-Terrorism Bill 2003
Submission to the Portfolio Committee on Safety and Security

Introduction:
Much attention has been focused in recent years on the problem of terrorism and its threat to international peace and security. However following the attacks in the United States of America on 11 September 2001, many states including South Africa are taking legislative and other law enforcement steps to protect their populations from similar criminal acts.
Generally, Idasa supports the introduction of The Anti Terrorism Bill 2003. This Bill aims to give effect to the relevant international instruments relating to terrorism as well as to try and prevent South Africa from becoming a stage for planning, organising and the execution of terrorism. Of course there are several laws that are on the statute books which could be used to combat terrorist activity. It seems, however that as with the Prevention of Corruption Bill, there is a trend towards omnibus legislation.
Idasa supports the intention of the Bill and acknowledges the increased necessity for legislation to deal with terrorism not only in South Africa but globally. However we are concerned that in an attempt to address the problems of terrorism, there is a potential to make provisions which maybe in contravention with the provisions of the Constitution.

Definitions:
Terrorist Act:
Chapter 1 of the Bill defines "terrorist act" to mean an unlawful act committed in or outside the Republic.
The definition of "terrorist act" has been changed from that in the 2002 draft Anti-Terrorism Bill whose definition included acts which intentionally intimidate the public, cause death or serious bodily harm or endanger a person's life.
The current definition is extremely broad and does not give clarity as to what acts constitutes terrorism. It is so wide that any unlawful act could be construed as a terrorist act. The dictionary defines unlawful as " something, which is not lawful, contrary to accepted morality or convention or illegal". C.R. Snyman defines "unlawfulness" as (consisting) "in the violation of certain (legally protected) interests or values." Therefore, the definition of "terrorist act" as it appears in the Bill incorporates unlawful acts are already covered by criminal law, civil, customary, indigenous and constitutional law.
The lack of a clear definition of terrorist act further creates a problem in relation to section 2 (1) and (2). This section stipulates that:
(1) Any person who-
commits or threatens to commit a terrorist act;
(b) conspires with any person to commit or bring about a terrorist act; or
(c) incites, commands, aids, advises, encourages or procures any other person to commit a terrorist act is guilty of an offence and liable on conviction to imprisonment which may include life imprisonment.
(2 ) Any person who knowingly facilitates the commission of a terrorist act is guilty of
an offence and liable on conviction to imprisonment which may include imprisonment
for life.
The offences created above impose heavy sentences on the accused yet the definition does not afford the accused clarity on what would constitute a terrorist act. Further lack of clarity on what constitutes a terrorist act does not provide certainty or guarantee that future government or police officers will not interpret the Act differently and use it to crack down on those they view as opponents.
It must be noted at this stage that there is no single, universally accepted definition of what exactly constitutes a "terrorist act". Some countries use the term "terrorist act" whilst others use the term terrorism. Regardless of which term is used, there seems to be no consensus about the definition of either term. The Federal Bureau of Investigation in the United States of America defined Terrorism as the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.
The Terrorism Research Center found in that most definitions of terrorism or terrorist act have common elements. These elements were oriented around terrorist act as the systematic use of physical violence--actual or threatened--against non-combatants but with an audience broader than the immediate victims in mind, to create a general climate of fear in a target population, in order to effect some kind of political and/or social change.
In their book Political Terrorism, Schmidt and Youngman cited 109 different definitions of terrorism worldwide. From these definitions, the authors isolated the following recurring elements, in order of their statistical appearance in the definitions:
Violence, force (appeared in 83.5% of the definitions); political (65%); fear, emphasis on terror (51%); threats (47%); psychological effects and anticipated reactions (41.5%); discrepancy between the targets and the victims (37.5%); intentional, planned, systematic, organized action (32%); methods of combat, strategy, tactics (30.5%).
In light of the above information, we recognise the difficulties of reaching consensus on the definition of "terrorist act". However we submit that to create an offence of a certain conduct without giving clarity on what the conduct is, could lead to abuse of the legislation and has the potential to stifle rights enshrined in the Constitution.
Perhaps looking at other jurisdictions definitions of terrorism or terrorist act will assist in coming up with a clearer definition.
The Terrorism Suppression Bill in New Zealand defines "terrorism" as a threat to intimidate a population in any country or pressure a lawful government or an international organization in the interest of an ideological, political or religious cause with the intention of killing or maiming others or posing a serious risk to the health and safety of a country's population, or destroying property of great value or causing major environmental damage or disrupting an infrastructure facility or seriously damaging the national economy.
The Anti Terrorism Legislation in Canada defines "terrorist act" as an act or omission, in or outside Canada that is committed in part or in whole for a political, religious, or ideological purpose, objective or cause with the intention of compelling a person, a government or domestic or international organization to do or refrain from doing any act, whether the person, government or organization is inside or outside Canada and that the intention is to cause serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of lawful advocacy, protest, dissent or stoppage of work.
Drawing from various elements identified above as common elements of the definition of terrorism or terrorist act, it is suggested that any definition of "terrorist act" should incorporate the intention behind the acts. This would then include the use of force for the purpose of advancing a political, religious or ideological cause. This definition is similar to that used in the Canada, New Zealand as well as other jurisdictions like the United Kingdom.

Human Rights:
We are concerned that the Anti Terrorism Bill 2003 contains provisions that may result in the contravention of human rights enshrined in chapter two of the Constitution.
The Bill establishes in section 2 a range of offences applying to parties involved with organisations designated by the Minister of Safety and Security under the procedures of this Bill as a terrorist organisation.
The Bill in section 2 stipulates that:
(3) Any person who becomes or remains a member of a terrorist organisation after the date on which it is declared as such is guilty of an offence and liable on conviction to imprisonment for a period not exceeding 15 years.
(4) Any person who knowingly does anything to support a terrorist organization economically or in any other way is guilty of an offence and liable on conviction to imprisonment for a period not exceeding 15 years.
(5)(a) Any person is guilty of an offence if he or she knowingly
(i) harbours or fails to report to the authorities the presence of a member of a terrorist organisation;
(ii) furnishes weapons, food, drink, transport or clothing to a member of a terrorist organisation;
(iii) receives any benefit from a terrorist organisation or any member of such an organisation
(iv) carries out any instruction or request by a terrorist organisation or any member of such an organisation on its behalf;
(b) Any person convicted of an offence contemplated in paragraph (a) is liable to
imprisonment for a period not 15 years.
The Bill makes it an offence to be a member of an organisation designated as a terrorist organization. It further creates very severe punishment for anyone who is deemed to have committed the above offence of association with a terrorist organisation.
We are concerned that these offences may not be in line with the provisions in section 18 of the Constitution, which grants to a person the right to freedom of association. Every individual has the right to decide which organisation he or she wishes to join and with whom, when and why they want to associate.
Freedom of association is essential in that it makes participatory politics meaningful and genuinely representative politics possible. A democracy depends on associations to collect, articulate and present the views of people. Freedom of association advances social goals as well as enabling individuals and communities to organize around particular issues of concern. Individual and groups are able through freedom of association to pursue and maintain those attachments, which are important to their being whether they are cultural, religious, political or social.
Our Constitution recognises the importance of this right and hence has made provisions for the protection of this right in section 18. Section 36 of the Constitution stipulates that the rights in the Constitution are not absolute rights and may be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The Prevention of Organisation Crime Act of 1998 in addition has set a useful precedent which may be instructive here. The Act outlaws acts which contribute to criminal activities but does not criminalise membership of an organization.
If the organization interferes with or threatens the existence of a well-ordered society or the continued existence of a free, democratic and constitutional order then the limitation of the right to freedom to associate may well be justifiable.
It is however very important to carefully scrutinize the manner in which the Bill criminalizes association in section 2. Without a clear unambiguous definition one is unlikely to know whether or not they are associating with a terrorist organisation unless the Minister has declared it as such.
Section 14 of the Bill stipulates that the Minister will declare an organisation as a terrorist organisation if the organisation is an international terrorist organisation, has claimed responsibility for a terrorist act or committed a terrorist act.
An organisation will be declared to be terrorist organisation if among other things it has committed a terrorist act. However if the definition of a terrorist act is merely an unlawful act committed within or outside the Republic, belonging to an organisation that committed an unlawful act should not automatically render the members to be a terrorists.
Individuals who join an organisation in the interest of advancing their religious, social or political ideas, but may not be aware of criminal activities do not support any unlawful activities of the organization and do not participate in unlawful activities, ought not be painted with the same brush as members who commit unlawful activities.
We are therefore of the opinion that the right to freedom of association will be limited by section 2 of this Bill and that this is not sufficiently justifiable taking into account the severity of the sentence, that not all members of an organization which commits and unlawful act join the organization with intention to commit an unlawful act and also that the definition of "terrorist act" is so vague.

Right to silence:
Section 11 of the act creates an obligation to answer questions and produce things. This is contrary to what section 35 (3)(h) and section 35 (3)(j) of the Constitution which grants everyone who is allegedly accused of committing an offence or is arrested the right to silence and the right not to be compelled to give self-incriminating evidence.
These rights are recognised internationally and lie at the heart of the notion of a fair criminal procedure. In S v Boesak 2001 (1) BCLR 36 (CC) the court held that the right to remain silent has application at different stages of a criminal prosecution. An arrested person is entitled to remain silent and may not be compelled to make any confession or admission that could be used in evidence against that person. It arises again at the trial stage when an accused has the right to be presumed innocent, to remain silent, and not to testify during the proceedings.
The reasoning behind the above rights is that in many cases suspects may be emotional, perhaps panicked, inarticulate, easily influenced, confused or a combination of all these. It is therefore well advised and reasonable that people faced with accusation such as that they committed a terrorist act consider their situation carefully before making any disclosure. Failure to remain silent may lead to self-incrimination even of people who are innocent purely because of the emotions evoked by being accused and question by the police.
Furthermore, many people hold a negative attitude of mistrust and fear of the police and do nit feel comfortable that the procedure will be fair.
The bill makes no mention of what the consequences of an accused exercising their right to silence would be. There needs to be clarity on this issues because in the case of Boesak mentioned above Langa DP went further to say that "the fact that an accused person is under no obligation to testify does not mean that there are no consequences attaching to a decision to remain silent during the trial. If there is evidence calling for an answer, and an accused person chooses to remain silent in the face of such evidence, a court may well be entitled to conclude that the evidence is sufficient in the absence of an explanation to prove the guilt of the accused. Whether such a conclusion is justified will depend on the weight of the evidence".
Further to the court's decision the Constitution does not create absolute rights and the above rights are subject to limitation. Section 36 of the Constitution stipulates that the above right may be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The question is then whether the limitation of the right to silence in the Bill is justifiable?
It is arguable that the limitation clauses should apply particularly to an offence as serious as terrorism. However because of the serious nature of the offence it is imperative that definition of the conduct be clearly stated and it seem unjustifiable to limit individual rights guaranteed by the Constitution based on a vague, ambiguous and wide definition of the offence.
The Boesak case and Osman and Another v The Attorney-General, Transvaal 1998 (11) BCLR 1362 CC which also dealt with the right to remain silent seem to suggest that there must be sufficient evidence to establish a case and that an accused who fails to answer question to rebut the evidence is at risk that lack of rebuttal of the prosecutions evidence may be sufficient to prove the elements of the offence. However this does not excuse the prosecution from proving his case beyond reasonable doubt.
Therefore the Bill should state that the prosecution must;
produce evidence prior to requiring the accused to answer any questions;
prove his case beyond reasonable doubt; and
state the consequences of not answering the question before the limitation of this right can be seen as justifiable.
Conclusion:
A successful anti-terrorism legislation must endeavour to build strong international norms and institutions on human rights and not provide a new rationale for avoiding and undermining them. The legislation should maintain a balance between combating the threat of national and international terrorism whilst maintaining the hard-won rights enshrined in the Constitution.
We are also mindful of the fact that South Africa is a signatory to international instruments which need to be adhered to but at the same time the legislation should not undermine the progress we have made in terms of building a human rights culture.
We should be mindful of our repressive history, which at the time passed legislation, which was intended to "protect" the country against organizations such as the ANC and the PAC which at the time were considered to be terrorist organisations.
Submitted By:

The Institute for Democracy in South Africa
6 Spin Street
Cape Town
8000
Contact: Nokukhanya Ntuli
Legislation Monitor at the Political Information Monitoring service (PIMS)
Tel: 021 467-5600
Email: [email protected]