Protection of Constitutional Democracy Against Terrorist & Related Activities Bill; Prevention & Combating of Corruption Activit

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
4 February 2004
PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES BILL (ANTI-TERRORISM BILL); PREVENTION AND COMBATING OF CORRUPTION ACTIVITIES BILL (ANTI-CORRUPTION BILL): DELIBERATIONS

Chairperson: Mr. M Mokoena (ANC)

Documents handed out
Prevention and Combating of Corrupt Activities Bill [B19B-2002]
Protection of Constitutional Democracy Against Terrorist and Related Activities Bill [B12B-2003]
Proposed amendments to Protection of Constitutional Democracy against Terrorist and Related Activities Bill
Note on Cape Bar Council's Comment on Clause 1(4) of the Bill
COSATU comments on the Anti-terrorism Bill
Proposed Amendments to the Prevention and Combating of Corrupt Activities Bill

SUMMARY
Members were concerned that Clause 1(4) of the Anti-terrorism Bill would make it easy for people to commit terrorist activities and then argue that they were involved in liberation struggles. The drafter pointed out that people who are involved in liberation struggles would not go unpunished as they would be dealt with as prisoners of war. The drafters outlined the proposed editorial amendments to the Bill which were technical and not substantive changes.

In its submission on this Bill, COSATU noted its concern about the definition of "terrorist activity" as it would seriously undermine the right to strike. The Committee felt that its concerns were addressed by the Bill but they were encouraged to provide an alternative formulation.

The drafters suggested certain amendments to the Prevention and Combating of Corrupt Activities Bill such as the insertion of the definition of "valuable security" and the addition of a number of Acts to be amended by this Bill.

MINUTES
Protection of Constitutional Democracy Against Terrorist and Related Activities Bill: discussion
The Chairperson asked Members to raise any questions they had on this Bill.

Some members were concerned that Clause 1(4) excluded certain activities from being classified as terrorist activities.

Adv J Schneeberger (Department of Foreign Affairs) addressed the issue of whether people involved in armed struggle would be regarded as terrorists. She said that there are laws that define and determine if a conflict has broken out. If there is a conflict humanitarian law regulates the conduct that people might engage in. This conduct should comply with the rules of war in that civilians should not be targeted.

Mr. P Mathee (NNP) said that the problem is that some people might be able to establish the right to self-determination. He asked as if people who, in their quest for self-determination, target the state machinery would be classified as terrorists.

Adv Schneeberger replied that chances are that such persons might be regarded as having committed a terrorist activity. It also depended on one's subjective understanding of terrorism. The fact that one has committed an act against the government does not necessarily mean that such an act is terrorist in nature. One can fire at government troops in self defence and that would not be classified as terrorism.

Mr. Mathee referred to a person who proves to be a member of group that, in terms of international law, is entitled to self-determination. If this person attacks the machinery of the government, would the person be excluded from the ambit of the Bill and be dealt with in terms of international instruments?

Adv Schneeberger replied that one should read Clause 1(4) in light of Section 235 of the Constitution. She said that it should be the whole of South Africa which is fighting for the right to self-determination. She did not see a situation where the whole of South Africa would fight for self-determination as it is inconceivable that South Africa would be invaded. She indicated that the Boeremag would not be able to invoke this defence as they are not the whole of South Africa.

The Chair asked why the Cape Bar Council thinks that the clause would encourage terrorism.

Adv L Lever (DA) suggested that it might be because the clause introduced an easy defence for one who is committing terrorist activities. He asked if the omission of this clause would affect the effectiveness of the Bill. He added that the concept of "domination by alien or foreign forces" is too wide and open for abuse. It was possible for a group to trace the origin of other people and classify them as foreign forces and then claim to be dominated by foreign forces. He wondered if it is desirable to leave it to the courts to decide what appeared to be political questions.

Adv Schneeberger replied that it is accepted that the judiciary has a role to play on issues like these. She indicated that if the judiciary feels that it should not be answering the question, it can defer decisions on such matters to Parliament. With regard to the Cape Bar Council's concern, the right to self-determination is qualified even under international law. It seemed as if the Cape Bar Council is not taking cogniscance of this. She added that the conduct engaged in should be consistent with international humanitarian law.

Mr. Lever read out Section 235 of the Constitution: The right of the South African people as a whole to self-determination, does not preclude, within the framework of the right to self-determination, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation". He again questioned if it was necessary to have Clause 1(4) for the Bill to be operative.

Dr P Jacobs (Department drafter) said that the clause reflects obligations which South Africa has in terms of international law. He indicated that cases referred to by the Cape Bar Council should be viewed in light of the prevailing conditions when they were decided.

The Chair asked the Department to respond to COSATU's view that the clause would make it difficult for workers to strike.

Dr Jacobs indicated that Clause 1(3) addresses COSATU's concerns.

Mr. Lever said that COSATU should be allowed to explain to the Committee as to why they think the clause would make it difficult for workers to strike. He asked if he was right in thinking that if one commits a crime outside the Republic and is prosecuted in terms of this Bill, international treaties would not apply. He also asked if the Bill applies only to offences inside the Republic or against South African installations elsewhere.

Dr Jacobs answered that the Bill extends the jurisdiction of our courts to crimes committed outside the Republic. South Africa would also extradite a person who is wanted for terrorist activities committed outside the Republic. If the person concerned is a liberation fighter he would not escape punishment as he would be dealt with as a prisoner of war.

Proposed Amendments to Protection of Constitutional Democracy Against Terrorist and Related Activities Bill
Dr Jacobs said that the proposed amendments do not change much in the Bill since they were merely editorial improvements. He went through these amendments:

Preamble
The insertion of "in accordance with such international law" after "committed" on page 3, in the 5^th line of the 11^th paragraph of the Preamble.

Clause 1
- The addition of the definition of 'engages in a terrorist activity' after paragraph (iii). This definition used to be Clause 2(2) and was removed since it was felt that it does not apply to one clause only.
- The insertion of the words "in the Republic" after "insurrection" Clause 1(1)(xxiv) (a)(Viii).
- The substitution of "state" by "the Republic" in Clause 1(1)(xxiv)(b)(i). Also the word "the" placed after "especially" in Clause 1(4).
- Reference to paragraphs (a)(i) to (vi) in Clause 1(3) should change to paragraphs (a)(I) to (v).

Ms N Kondlo (ANC) asked if this would mean that strikes that are designed to interfere with essential services would become a terrorist activity.

Dr Jacobs indicated that any industrial action intended to interfere with any of the services listed in paragraph (vi) would become terrorist activities.

Clause 2
The omission of subclause (2) as it has been moved to Clause 1.

Clause 15
-The deletion of "that" in subclause (2)(b) and (c) as it is unnecessarily repeated.
- "South Africa" should be substituted by "the Republic" in subclause (2)(b)and (c).
- The insertion of "or" after "resident" in subclause(3)(a).

Ms J Kgoali (ANC) asked why "South Africa" has to be substituted by "the Republic" given the fact that there were many republics.

Dr Jacobs replied that in terms of the Interpretation Act 'Republic' means the Republic of South Africa.

Clauses 19 and 25
- "Gazette" should be in italics in both clauses.

Clause 26
- "tabled" should replace "laid upon the table".

Schedule
Non-Proliferation of Weapons of Mass Destruction Act 87 of 1993:
Item 1(h)
The insertion of "or her" and "or" after "Council" should be in bold.

Financial Intelligence Centre Act 38 of 2001:
Item 2(a)
The word 'expression' should be substituted by "definition".

Item 4
The removal of the underlining and "control measures" should be in bold.

Item 6
The underlining in item 6(1)(a) should extend until the end.

COSATU submission on Anti-terrorism Bill
Ms P Govender thanked the Committee for allowing COSATU to make an oral submissions at a very late stage. She said that the COSATU has no problems with legitimate measures to deal with terrorism. However, it felt that the definition of "terrorist activity" would have the unintended effect of undermining the right to strike and other forms of legitimate industrial action.

She continued that there are instances where workers are unduly provoked by employers or police officials into causing damage to property. Although COSATU does not condone such acts of violence, it felt that such acts should not be considered as terrorist activities but as some other offence such as malicious damage to property. The definition would also classify unlawful strikes as terrorist activities. She said that it was important to understand that in terms of labour law, an unlawful strike means an unprotected strike. The word "unlawful" should not be understood in terms of its criminal sense. By criminilising an unlawful strike, workers would lose the hard fought gains that they were denied under apartheid.

Ms Govender said that terrorist activity would also include industrial action that seriously interferes with essential services, regardless of whether such action is lawful or not. There were existing problems regarding the excessive limitation of rights with regard to essential services. The definition of essential services was too broad such as the work of a gardener at a hospital. In view of existing restrictions on the right to strike in the context of essential services, further limitations should not be implemented at this stage.

By including industrial action under the definition of terrorist activity one was limiting the right to strike. Every right is subject to the limitations clause but there are already existing limitations on the right to strike and therefore no need for further limitations.

In conclusion she called on the Committee not to pass the Bill until COSATU's concerns have been addressed. She indicated that the Congress is willing to help in the formulation of the definition.

Mr Lever and Dr Jacobs both indicated that if Ms Govender reads the definition as a whole (i.e.(xxiv)(a) to (c)) she would realise that the concerns she had raised are adequately addressed.

Ms Govender said that COSATU had read the definition as a whole and had come to the conclusion that it is unacceptable.

The Chairperson welcomed COSATU's suggestion that it propose a new formulation of the definition.

Proposed Amendments to the Prevention and Combating of Corrupt Activities Bill
Adv G Nel (Department drafter) took the Committee through the proposed amendments:

Clause 1
The definition of "valuable security" should be added.

Clause 25
"of Chapter 2" should be added before "it" where it appears for the second time.

Clause 26
"of Chapter 2" should be added in subclause (1)(a) after "section 18".

Schedule
The drafter went through the additional Acts that would be amended by this Bill. (See proposed amendment document).

The meeting was adjourned.