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SAFETY AND SECURITY PORTFOLIO COMMITTEE
6 August 2003
SAPS ON WORKING DOCUMENT FOR ANTI-TERRORISM BILL: BRIEFING
Documents handed out:
Working Draft of the Bill: Counter-Terrorism Bill
Anti-Terrorism Bill [B12-03] as tabled
The draft Bill contains several new definitions, with options for the definition of a terrorist act. Convention offences are now explicitly included and enumerated. The Bill makes use of existing legislation, including the Prevention of Organised Crime Act and Financial Intelligence Centre Act, amending it to deal with terrorism. The Bill no longer contains provisions to declare an organisation terrorist.
The Committee expressed concern about the exclusion of the declaration provision and considered ways of dealing with organisations using the Bill. The Committee asked about implications of the various options for defining a terrorist Act. The Committee agreed that it would accept written comment on the draft Bill, as long as that comment was received in good time, but there would be no further public hearings.
The Chairperson expressed his concern about the quality of Bills that came before Parliament. Drafters much ensure that members dealt with substance.
Adv P Jacobs (Legal Services, SAPS) briefed the committee. The Department sought to redraft the Bill taking into account evidence at the public hearings. The document was a team effort, involving the Intelligence Department, discussions with Adv J de Lange (Chairperson, Committee for Justice & Constitutional Development), and others. It had been extensively footnoted to explain provisions and to address concerns raised.
The drafters sought to address the concern that the preamble of the introduced Bill was too 'law enforcement' in style. The preamble of the new draft explicitly took account of constitutional rights and states that terrorism undermines the rights and values of the Constitution. It listed the nine ratified conventions and three conventions to be ratified that are relevant to the Bill. It also took account of liberation struggles.
New definitions were inserted, mostly relating to convention offences. The draft gave four options for the definition of a terrorist act. The first option was similar to the Law Commission report. There is considerable debate internationally over whether to include a phrase such as 'in whole or in part for a political, religious or ideological purpose, objective or cause' in definitions of terrorism. The second option used the wording from the African Union convention on combating terrorism and explicitly excluded struggles for liberation. The third option employed the Canadian definition. The fourth option was a hybrid option, seeking to combine the best of the other options.
The Chairperson interjected to ask if there was a definition of terrorist organisations.
Adv Jacobs replied that the draft Bill left out reference to terrorist organisations. It was based on the wording of United Nations Security Council Resolution 1373, which does not refer to organisations. The Bill contains no provision for declaring an organisation a terrorist organisation.
The Chairperson responded that there had been a general view at the hearings that a definition of terrorist organisations was needed. He would have liked to see one included in the draft Bill as an option.
Adv Jacobs responded that the declaration in the introduced Bill had been included to deal with terrorist property. The draft Bill had a different scheme and followed United Nations Security Council Resolution 1373 on property.
Adv Jacobs continued his briefing at Chapter 2 of the draft Bill, on offences and penalties. Clause 2 makes it an offence if a person commits or threatens to commit a terrorist act; engages in a terrorist act; acts in preparation for, or planning of a terrorist act. Clause 3 dealt with acts connected to terrorist acts. Where persons committed offences that are connected to terrorist acts, the Bill requires that the person could reasonably have known that his/her act was connected to terrorism, as suggested in the hearings. Clause 4 dealt with harbouring of terrorists and failing to report them. Clauses 5 to 14 dealt with convention offences, thus explicitly setting them out in the draft Bill. Clause 14, on dealing with property related to terrorism, gave effect to United Nations Security Council Resolution 1373. This provided the new way to deal with terrorist organisations. Clauses 15 and 16 dealt with other terrorist offences. Clause 16, which deals with substances employed in terrorist acts, could be used against hoax attacks. Clause 17 set out the duty to report terrorists. Clause 19 dealt with conspiracy and attempts to commit terrorism and further addressed dealing with terrorist groups.
Clause 20 set out penalties for offences in decreasing order of seriousness. A political decision had to be made on whether to prescribe penalties. Clauses 21 to 23 dealt with procedures for the forfeiture of property associated with terrorism. The provisions in these clauses were the same as those in the Drugs and Drug Trafficking Act. Criminal forfeiture was dealt with in the Bill, civil forfeiture in the Schedule.
Clause 24 laid out the jurisdiction of the Bill. This was the same as in the introduced Bill since it had not been in dispute. Clause 25 requires the consent of the National Director of Public Prosecutions for prosecutions under the Bill. Clause 26 dealt with powers to stop and search persons and vehicles. Explicit reference was made to cordoning off to clarify the use of the Clause. Although there are similar powers under Section 13(7) of the South African Police Service Act, they are inadequate to the task envisaged in the draft Bill. The Clause explicitly stated that police rights and powers under other Acts are not constrained by the Clause.
Clause 27 is almost identical to Section 72 of the Prevention of Organised Crime Act. Clause 28 made provision for the freezing of property related to terrorism. Clause 29 set out provisions for seizure of property and required judicial consent. This Clause also does not limit police rights and powers under other legislation.
Clause 30 allow the President to give notice by proclamation that the United Nations Security Council has declared certain persons or entities to be terrorist. This is largely symbolic. The usual rules and procedures will apply to persons and organizations so declared. Clause 31 introduces oversight over such proclamations. The proclamation will have to be tabled in Parliament and Parliament may make recommendations on it.
Clause 33 gives the short title of the Bill. Currently it is still given as Anti-terrorism Bill, alternatives are given in footnote 22.
The Schedule included amendments to the Extradition Act. This allowed that offences under Clauses 8, 10, 12 and 13 (bombing offences, offences against internationally protected persons, offences with regard to nuclear materials and facilities, and financing offences) are deemed extraditable. Offences under Clauses 8 and 13 may not be refused on the sole ground of their political nature. This is in line with the Commonwealth Ministers' agreement. Bail legislation is amended to complement the Bill. The Internal Security Act is repealed. Prevention of Organised Crime Act civil provisions are made applicable to property associated with terrorism. The Financial Intelligence Centre Act is made applicable to property associated with terrorism.
The Chair asked Adv Jacobs briefly to outline areas of the introduced Bill that had been removed. What about the obligation to answer questions?
Adv Jacobs replied that the changes could be summarised as follows. The draft Bill contained new definitions and the notion of a terrorist organisation had been deleted. Offences and penalties had been reshuffled and convention offences explicitly included. Jurisdiction remained the same. Bail provisions had been moved to the Schedule. The stop and search provisions now include explicit reference to cordoning. The requirement of consent from the National Director of Public Prosecutions remains the same. Investigative hearings are now covered by reference to Section 72 of the Prevention of Organised Crime Act. Under this the National Director of Public Prosecutions or a Special Director appointed by him/her may summon a person who is then under an obligation to answer questions. No use of the evidence from such questioning may be made against the person answering. Warrants for arrest are also issued in terms of Section 72 of the Prevention of Organised Crime Act. The declaration of organisations as terrorist organisations falls away. Determination and reporting of accountable institutions, and the protection of persons making reports is dealt with by reference to the Financial Intelligence Centre Act. These Acts are amended as necessary in the Schedule so that they apply to terrorism. This is in line with the suggestion in the Public Hearings that existing legislation be used to deal with terrorism. The Regulations fall away since nothing must be prescribed.
The Chair asked why the Regulations fall away.
Adv Jacobs replied that there was no need for them since the Regulations of the other Acts dealt with the matter.
Mr M Booi (ANC) stated that the Bill was greatly improved. He was concerned about Clause 30 (Notification by the President in respect of persons or entities identified by the United Nations Security Council). If this was symbolic, why was it included? Would it not risk incapacitating the head of State?
Adv Jacobs explained that this Clause had come about as the draft Bill evolved. The introduced Bill had allowed the Minister for Safety and Security to declare an organisation terrorist. There had been a suggestion that s/he do this in consultation with the Minister for Intelligence. This had evolved into a suggestion that the declaration be done in consultation with the whole Cabinet. Actions in consultation with the whole Cabinet are Presidential not Ministerial. Thus, for technical reasons, it is the President and not a Minister that makes the proclamation.
Adv P Swart (DA) asked for clarity on the notion of property associated with terrorism. He wondered about the impact of the phrase 'entities owned or controlled directly or indirectly by such persons' when it came to minority shareholding.
Adv Jacobs replied that he would not like to deal with that question immediately.
Adv Swart asked if the amendments to various other Acts in the Schedule of the Bill meant that other Committees and Departments would have to become involved in the process.
The Chair replied that they would and asked if such amendments were the only option.
Adv Jacobs added that there had been consultation with the relevant Departments and Committees in the drafting to ensure that they were content with the draft. He stated that the draft followed the usual option. If legislation was repeated in a number of places, then a battery of Acts would have to be amended any time a change had to be made, such as because of a Court decision. Following this option, only the base Act had to be amended.
Mr Q Kgauwe (ANC) asked if the reference to the three unratified conventions implied concern that the conventions would not be ratified.
Mr J Schippers (NNP) asked if it was advisable to include unratified conventions in the Bill.
Ms A van Wyk (ANC) asked if the inclusion of the conventions meant that there would have to be an amendment when the conventions were ratified and every time a new convention was adopted.
Adv Jacobs replied that South Africa had indicated that it would be ratifying these conventions - there was no reason to think that they would not be ratified. If conventions were altered or new conventions adopted and these changes were incorporated then the relevant domestic legislation had to be amended. Since the Bill already incorporates the offences, it would not need to be amended when the three unratified conventions were ratified. This was in line with past conduct where legislation paved the way for ratification.
Mr Schippers asked the Chair about reports in the media that the draft Bill would be given to a different Committee.
The Chair replied that there was no change in the status of the Bill - it would be handled by the Committee for Safety and Security. He stated that the confusion probably resulted because the Minister for Defence did not know that the Safety and Security Committee were dealing with the Bill and so had made reference to the Justice Committee.
The Chair asked how the Bill could deal with cases where groups met to plan terrorist acts without a reference to terrorist organisations. If it only dealt with persons, might the Bill not limit preventive action?
Adv Jacobs replied that the Bill included offences of conspiracy, recruitment and incitement. These could be used to deal with organisations.
The Chair asked about United Nations declarations of organisations as terrorist. How is this accommodated?
Adv Jacobs replied that United Nations Security Council Resolution 1373 did not refer to terrorist organisations, only to persons. There was only one sentence that referred to groups. The references in the Bill to entities could be construed to refer to organisations.
The Chair responded that the United Nations issues lists of terrorist organisations. If South Africa wished to be in line with this international practice, how could it do so under the Bill?
Adv Swart suggested that this could be done by using 'entities' to refer to organisations.
Mr Booi asked a question inaudibly. Adv Jacobs's reply characterised it as asking whether the Bill was looking to individuals instead of organisations.
Adv Jacobs replied that terrorists were acting according to informal structures. He stated that a definition could be put into the Bill so that 'entity' included organisations.
Mr D Gibson (DA) asked if Parliament scrutinised conventions adequately. Was there not a risk that Parliament would adopt a convention that is in conflict with the legislation?
Adv Jacobs replied that there was a good system of scrutiny in place. Conventions were examined by the State Law Advisors in the Justice Department and by the International Law Advisors in Foreign Affairs. The advisors had to certify the conventions and provide the certificates and an explanatory memorandum when the conventions were brought before Parliament.
Adv Swart expressed concern that under option 1 for the definition of a terrorist act, cases where someone murdered under compulsion from someone else would count as terrorist.
Mr Gibson raised questions about the first option for the definition of a terrorist act. He asked what was meant by the 'information system'. He suggested it could mean a computer, did it refer to a bookkeeping system? He asked if the reference to 'a system used for the delivery of essential government services' covered switching off the electricity supply. He stated that (d)(ii), excluding 'action, if such action is lawful advocacy, protest, dissent or industrial action' from the definition of a terrorist act, was an important saving clause. Would someone daubing the Voortrekker monument with paint demanding nevirapine 'or else' be committing a terrorist act?
Adv Jacobs replied that the definition options employed legislation from other countries. Careful attention must be paid to the 'and's and 'or's in the definitions. In the case of Adv Swart's concern, 1(a) had to apply because of the 'and'. References to information systems, and so on, had to be read in context. The wording was the wording used in the African Union convention and in the Canadian legislation.
Adv G Nel (Legal Services, SAPS) added that the National Prosecuting Authority wanted the motivation of the act included in the definition, using the phrase 'in whole or in part for a political, religious or ideological purpose, objective or cause'. This would further tone down the wording.
Adv Jacobs pointed out that the fourth option attempted to cover the concerns the drafters had and had encountered with the first three.
Adv Swart returned to his earlier question about ownership, control and minority shareholdings. He suggested that in the phrase 'entities owned or controlled directly or indirectly by such persons', the 'or' be replaced with an 'and'. He was concerned that the current wording meant that if a terrorist bought ten shares in De Beers, this rendered the whole of De Beers property associated with terrorism.
The Chair suggested that the drafters re-examine the wording of the Bill. Whilst he saw nothing wrong with it, he was concerned that it might still create the impression that the Bill was being passed under pressure from the USA. The wording should be juggled to eliminate such an impression.
Ms Van Wyk raised the Pick 'n Pay extortionist case - would this be covered under the offence relating to substances?
Adv Jacobs replied that the Pick 'n Pay case could be addressed under current law. However, this raised the question of including the motivation phrase 'in whole or in part for a political, religious or ideological purpose, objective or cause' in the definition. Someone holding a nuclear facility for purely economic gain would not be covered by such a motivation phrase. This sort of consideration favoured the more expansive phrasing of option four: 'in whole or in part for an unconstitutional political, social, economic, financial, religious or ideological purpose, objective or cause'. Extortionist actions can take on a scale that renders them terrorist. It would be up to the National Director of Public Prosecutions to decide when to prosecute under terrorism legislation.
Adv Swart asked if any of the options rendered the killing of police terrorist since killing police officers intimidates the public.
Adv Jacobs responded that certain South American countries were subject to narco-terrorism. Drug cartels engaged in the systematic killing of police, judges and witnesses. If one could prove that this was done for a political or economic purpose, then it could qualify as terrorist. The mere killing of a police officer would not count as terrorist.
The Chair stated that members should take the draft Bill to their party study groups to examine the issues. He was not convinced that his concerns about the removal of the declaration of organisations as terrorist organisations had been answered. It must not seem that an easy option was taken.
Mr Gibson asked if copies of the draft Bill would be sent to the people that had made representations on the introduced Bill.
Adv Swart asked if they would be able to comment on the draft Bill.
The Chair replied that copies would be sent, but that there would be no further public hearings. Written comments would be sent to the drafters of the Bill and to parties. Comments would be helpful.
Adv Swart asked that a letter accompany copies of the draft giving a timeframe for written comments.
Mr Booi responded that one had to be careful not to create the impression that discussion on the Bill was being re-opened.
The Chair stated that comments would be considered, though the Committee was not obliged to take them into account. The onus was on people to comment on the Bill in good time. The letter will make clear that there would be no further public hearings.
The meeting was adjourned.
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