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SAFETY AND SECURITY; JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEES: JOINT MEETING
5 September 2003
ANTI-TERRORISM BILL: DELIBERATIONS
Chairperson: Mr M George (ANC)
Documents handed out:
Fourth Draft of Definitions
Draft Counter -Terrorism Bill (2003-08-01)
The Chair of the Justice and Constitutional Development Portfolio Committee presented two definitions he had drafted on what constitutes a "terrorist activity". Option 1 of the definitions is drawn from the Africa Union Charter whilst Option 2 is a general model. The Committee settled for Option 1 which it considered more comprehensive and user friendly.
Adv de Lange (ANC) took members through the draft definitions he had prepared. He had come up with two options for "terrorist activity" to assist members to capture a clear picture of the problematic areas. This would enable members to choose the most comprehensive set of definitions that would give clarity to the law as enunciated.
Mr Ferriera (IFP) noted that the definition in the Africa Union Charter is based on a philosophical reasoning in that terms - such as 'eco-terrorism' - which in essence are non-political, are given a new meaning in terms of the definition
Mr Groenewald (FF) wondered whether (c) under Option 1 of the draft definitions was not too wide in its application noting that 'advancement of a ... cause' would be far preferred than the phrase 'individual or collective'.
Ms Kota (ANC) said that the suggestion made by Mr Groenewald was unnecessary if one were to bear in mind there are some people who harbour individual philosophies that drive them into engaging in terrorist activities.
Adv de Lange explained that the reason it is crafted on the basis of "individual or collective" criteria is to ensure that courts do not arrive at a different interpretation other than the one intended by Parliament. When you state categorically what Parliament intends then courts are left with no room to wander further afield in search of an appropriate definition to suit the occasion. He noted that many countries have adopted the definition that refers to "individual or collective".
The Chair pointed out that the country is under transformation and therefore it is important for the legislature to state categorically what the purport of the law is so that the legislation does not lend itself to judicial imagination.
Imam Solomons (ANC) wanted to know where one would place an organisation that is recognised as a liberation movement where such an organisation decides to set up office in another jurisdiction where it would not be recognised as such.
Adv de Lange acknowledged the dilemma countries face when it comes to drawing the line between a struggle for self-determination and terrorist activities. There has been heated debate in international law on where to draw the line between a self-determination struggle and terrorist activities until the OAU came up with an exclusion clause, which has been adopted in this Fourth Draft of Definitions that they are looking at now. He however underscored the importance of operating within the confines of international law, which forbids such groups from directing their attacks on civilian targets. He agreed that it is indeed unprincipled to discriminate against some internal organisation such as the Boeremag that may purport to aspire to norms of self-determination.
Mr Ferreira (IFP) expressed concern at the repeated referral to the Boeremag as the yardstick for defining the reach of the law in targeting organisations that take refuge under the norm of self-determination. He pointed out that the Boeremag has been accused of engaging in criminal activities, which are not exempt from prosecution under the national and even international law. He asked members therefore to desist from belabouring the issue regarding the status of the Boeremag.
Ms Kota sought clarity on whether state-sponsored terrorism falls under and is criminalised by the definition of "terrorist activity".
Adv de Lange replied that it did. The definition under Option 1 states that any person or entity, which acts with the stated intentions, does commit terrorist activities. He clarified that one would not put a state on trial but those individuals that carry out the actual execution of the stated acts.
The Chair sought clarity on the position where the state itself is involved in terrorising its own people.
Adv de Lange referred the Chair to the jurisdiction clause and pointed out that when a matter falls within South Africa's jurisdiction it would have the competence to try those that are involved in the carrying out of the terrorist activities. He added that the newly launched International Criminal Court and the African Union Human Rights Court have the competence to try state-sponsored terrorism. He insisted that it is irrelevant whether such groups are sponsored by the state or not so long as they carry out terrorist activities within South African borders they would be apprehended and tried accordingly.
In answer to the Chair asking if in fact it was necessary to adopt one of the two draft definitions, Adv De Lange replied that it was because as a matter of principle, South Africa is obligated to abide by International Law.
Mr Groenewald referred to subsection (a)(ii)(cc) under Option 1 and pointed out that drafters should check with relevant experts to get the correct terminology when it comes to very scientific jargon like "a virus" in order to clearly establish what the term entails.
The Chair said that it is the duty of the drafters to liase with IT experts to determine the appropriate wording for the definition.
Dr Cwele (ANC) held the view that the term "virus" is not synonymous with damage to computers but that the wording is wide enough to cover other areas that may be affected by other harmful biological agents.
Adv de Lange agreed with the Chair that it was necessary to check on the correct wording. He then clarified that the definition is fairly elaborate to the extent that it covers nine areas that the release of such a harmful agent can affect - as long as it endangers the life of a person and/or poses damage to the national economy.
Mr Groenewald noted that "an attempt" is covered as an offence and wanted to know what this offence implies in terms of the definition.
Adv de Lange explained the law makes it clear that 'conspiracy' and 'an attempt' should carry the same penalty as terrorism. Even a hoax is covered as an offence and he noted that there was no need to keep the two in a separate category.
The Chair agreed that terrorism is terrorism and that it does not matter that it is attempted or executed.
Ms Kota said that the main concern revolves around the issue of whether in fact somebody's life was indeed endangered.
Adv de Lange cautioned members to be careful and differentiate between the definition of a "terrorist act" and the offences created thereunder noting that there are a host of offences that fall under the act of terrorism and that "attempted terrorist activities" is one such offence.
Ms Camerer (DA) expressed concern at the exclusions that are tabulated under 1(2) in the Option 1 and 2 definitions and noted that it would be tricky to distinguish activities that fall under industrial action.
Adv de Lange said that 1(2) is an exclusion, which every country has adopted since the act of terrorism is very elaborate, and that there was danger that the definition may capture legitimate industrial action. He added that where such an industrial action endangers life and takes away liberty then the exclusion falls away and the relevant national law kicks in to punish the proven criminal activity.
Ms Camerer asked if these are the only standard exclusions or are there others left out.
Adv de Lange said that these are the only exclusions but that he had adapted those of the African Union.
The Chair noted that the exclusions are in keeping with the overwhelming demand during public hearings for such exclusions to act as a safeguard against criminalising legitimate civil action. He then asked whether members were comfortable with Option 1 of the definition to which all nodded in approval. He directed the drafters to confine their work to Option 1 and come up with the right wording in the Bill. He thanked Adv de Lange for the good work he had done in coming up with elaborate definitions.
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