Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill: comments

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Police

28 September 2022
Chairperson: Ms T Joemat-Pettersson (ANC)
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Meeting Summary

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Tabled Committee Reports

Public comments will be extended until 18 October 2022 on the Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill. In a virtual meeting, the International Committee of the Red Cross (ICRC)  commented on the Department's response to its public submission.

The ICRC maintained that it did not agree with the proposed deletion of Section 1(4) of the Act, as per the recommendation of the Financial Action Task Force (FATF). The ICRC does not agree with the FATF interpretation of International Humanitarian Law. The ICRC will soon be engaging with the FATF headquarters in Paris, to discuss the FATF recommendation that the ICRC believes is incorrect. The ICRC motivated why it proposed the inclusion of a humanitarian exemption clause and that the concern of the humanitarian exemption clause used by terrorist entities to impersonate humanitarian organisations is not enough to justify the exclusion of the exemption.

The Committee Content Advisor presented a research paper that contextualised the clauses of the Amendment Bill, indicating how the amendments and the proposed amendments by the public would affect the Act.

The Chairperson said that the Minister of Finance had made comments in the National Assembly last week where he had indicated the necessity of passing this Amendment Bill as soon as possible to avoid the grey-listing of South Africa. The Committee had certainly realised the urgency and looked forward to processing the Bill after obtaining further public comments.

Meeting report

Opening remarks
The Chairperson noted apologies from the Minister and Deputy Minister.

Mr O Terblanche (DA) said that the Members of the Committee have been receiving a lot of complaints about the non-performance of the police. There have also been complaints that the Committee is no longer responding to queries. He suggested that the Committee decides on a process to follow to ensure that people get the necessary response if the police are not performing.

The Chairperson replied that the Members are all in the same boat. The Committee has two staff members who are inundated with questions and respond to matters relating to police stations. It has become nearly impossible for the Committee to respond to every complaint, when in fact, the Committee should be responding to all complaints. The Committee had previously received a similar number of complaints about the Central Firearm Registry (CFR), where it would receive close to 100 emails a day. The Committee is now receiving complaints about police stations in different communities. The Committee had found that people thought they could all rush to the Committee to receive a response, but it almost resulted in the Committee having to micromanage the police. Instead of doing its oversight work, the Committee is now involved in the day-to-day running of police stations. This does make it very difficult for the Committee to operate and perform its oversight function. The Committee would need to raise this concern with the Minister, Deputy Minister and the National Commissioner who are not in the meeting today. She asked if Mr Terblanche agreed that the Committee should address this matter when the Ministry and National Commissioner were present.

Mr Terblanche agreed that it should be discussed in a meeting when the Ministry and National Commissioner are present. In the meantime, he suggested that Colonel Kevin Steyn, Parliamentary Liaison: Strategic Management, should raise this matter amongst senior South African Police Service (SAPS) members at head office. He understood that the Minister and Deputy Minister had other engagements to attend to, but this was the third consecutive Committee meeting that the Minister was not present. The Committee need to keep the Minister accountable.

The Chairperson replied that she would raise Mr Terblanche’s concerns with the Minister. With the current situation in this country, the Minister does get called for several engagements. The Minister has responsibilities toward the Executive, the President and the Committee. The Committee usually has the Deputy Minister in attendance, but it creates a vacuum if both the Minister and Deputy Minister are not present.

Mr H Shembeni (EFF) agreed with Mr Terblanche. He said that SAPS is currently in a crisis, which will be a problem for the Committee. He had said previously he did not want the EFF to be part of this failure by the Committee to do its oversight or hold the Executive accountable. It is clear that the country is going down the drain because SAPS is corrupt to its core. He suggested that the Committee should allocate a week to engage with the Ministry, SAPS top management and the Civilian Secretariat for Police Service (CSPS) in physical meetings, not via the virtual platform. It is a matter of urgency. The country is under siege because of the failures of this Department. If this Department operates in the right way, then this country will become 100% right.

The Chairperson noted that the Members had requested physical meetings as well as a strategic meeting. The Members have all agreed that the Committee should have detailed engagements with SAPS in physical meetings.

International Committee of the Red Cross (ICRC) submission on Department response
Ms Sarah Mabeza, Regional Legal Advisor, ICRC, said that the ICRC appreciated the opportunity to speak to the Committee. The ICRC has taken numerous opportunities to make oral and written submissions, which indicates how important this is to the ICRC. She referred to the proposed deletion of Section 1(4) of the existing Act which it referred to as the International Humanitarian Law (IHL) Savings clause:

4) Notwithstanding any provision of this Act or any other law, any act committed during a struggle waged by peoples, including any action during an armed struggle, in the exercise or furtherance of their legitimate right to national liberation, self-determination and independence against colonialism, or occupation or aggression or domination by alien or foreign forces, in accordance with the principles of international law, especially international humanitarian law, including the purposes and principles of the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the said Charter, shall not, for any reason, including for purposes of prosecution or extradition, be considered as a terrorist activity, as defined in subsection (1).

She understood that most of the concern is due to the recommendations from the Financial Action Task Force (FATF) requiring or agreeing to deleting Section 1(4). It is the ICRC’s perspective that the FATF recommendations are not binding and are soft law as guidance, whereas the provisions of international humanitarian law which would be protected by an IHL Savings clause are indeed legally binding by the state of South Africa. It is not only IHL that is binding, but also the obligations under the 1999 Convention for the Suppression of the Financing of Terrorism, to which South Africa is a state party. The ICRC believed that the interpretation of the 1999 Convention for the Suppression of the Financing of Terrorism would align with the retention of an IHL Savings clause. The ICRC does not agree with the FATF’s interpretation of IHL or its interpretation of the 1999 Convention for the Suppression of the Financing of Terrorism.

ICRC has noticed a trend, that the FATF had made recommendations to delete or not have a IHL Savings clause in a number of states. This is a great concern to the ICRC. The ICRC will soon be engaging with the FATF headquarters in Paris to discuss the FATF recommendations that the ICRC believes are incorrect.

Incorporating an IHL Savings clause in counter-terrorism legislation will not prevent South Africa from prosecuting the offence of financing terrorism. While it will slightly narrow the scope of activities included in the offence, it does not prevent prosecution of the offence in many instances. For example, where there is an alleged offence of channelling funds to non-state armed groups for the purpose of committing acts of terrorism against the civilian population, that offence would not be protected by the IHL Savings clause, and indeed prosecution could go ahead.

Ms Mabeza understood that there was concern that the inclusion of a humanitarian exemption clause would open the door to terrorist entities impersonating humanitarian organisations. However, the ICRC does not believe this is enough of a concern to justify the exclusion of a humanitarian exemption. She assured the Committee that a humanitarian exemption clause is not a blank cheque in any way, and there are a number of ways in which it can be narrowed. There might be concern that a humanitarian exemption clause can be abused but that is not a strong enough reason not to have an exemption. In the ICRC written submission, there are a few examples of how it can be very clearly ensured that humanitarian organisations that are not exclusively humanitarian in nature do not benefit from a humanitarian exemption.

Discussion
Mr Terblanche thanked Ms Mabeza for her input. It is always good to have views from all possible angles, which the Committee will further deliberate on and consult with the State Law Advisors to develop a well-suited position.

The Chairperson thanked the ICRC for consistently participating in the Committee’s work. The ICRC had made very valuable comments, which the Committee will not ignore. The ICRC had certainly made the Committee aware of important national and international perspectives. The Committee would have been less informed if the ICRC did not make its submissions. She would like the Committee Report to note that the Committee commended the ICRC inputs. The Committee certainly has a consultative approach with all stakeholders. By the end of any Amendment Bill, the Committee tries to have as much consensus as possible.

Contextualising the Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill
Ms Nicolette van Zyl-Gous, Committee Content Advisor, said that she had consulted with CSPS, and they saw it best to contextualise the clauses of the Bill and the proposed amendments as this will give Members a bird’s eye view of how the clauses and the proposed amendments will play into the principal Act.

The Amendment Bill is a fundamental component to avoid South Africa being grey listed and it is critical to address technical compliance deficiencies (updating of legislation) and effectiveness of the system to address risk of money laundering. The deficiencies relate largely to terrorist financing, sanctions related to terrorism and terrorist financing, freezing orders and the publication of notices by the United Nations Security Council (UNSC).

• Clause 1 introduces 21 new definitions, related to 10 pieces of legislation, including the SAPS Act, 1995. New definitions are mostly related to the Cybercrimes Act, 2020 and the Critical Infrastructure Protection Act, 2019. It further amends existing definitions to comply with international norms and standards.

The Banking Association of South Africa (BASA) made a public submission to request that the term “entity” be clarified. In response, the Department accepted that the relevant clause in the Bill would be amended to align with the relevant pieces of legislation as indicated by BASA.

BASA and AfriForum both made public submissions on the definition for “property”; the main concern was that “crypto-currency” should be included. The Department accepted that the definition would be amended to include “crypto asset” and a new definition of “crypto asset” will be inserted in the Bill.

The definition of “terrorist activity” was amended to be in line with the FATF recommendation.


• Clause 2 proposes to amend the principal Act's section 3 (Offences associated or connected with terrorist activities) by providing for an offence in respect of entering, departing from, or transiting through or remaining in any country, for purposes of joining or supporting terrorist groups, in other words, to address “Foreign Terrorist Fighters”. The clause further seeks to provide that it is an offence to support an entity engaged in terrorist activities.

“support” includes the provisioning of hardware and software tools; “support” also refers to the joining of a terrorist entity or forcing someone to join.

The Sussex Terrorism and Extremism Research Network (STERN) made a public submission to propose that the provisioning of terrorist-related training should also be criminalised. The Department accepted this and the necessary amendments to Sections 3 and 4 will be effected to provide for online training to be included; and not only the receipt of training, but providing training.


• Clause 3 proposes the insertion of Section 3A in the principal Act, which provides for the prohibition of any publications with terrorist-related content.

• Clause 4 proposes the amendment of the principal Act's Section 4 (Offences associated or connected with financing specified offences) by providing it is an offence to facilitate the retention or control of property on behalf of, or for the benefit of, a specific entity identified by a Resolution of the UNSC and which is announced by the Minister of Finance in terms of Section 26A of the Financial Intelligence Centre Act, or in a notice given by the Director of the Financial Intelligence Centre (FIC) in terms of Section 26A of the Financial Intelligence Centre Act.

• Clause 5 seeks to insert Section 4A (New: Offences relating to attempt to leave Republic) in the principal Act to provide for an offence in respect of an attempt to leave the Republic for the benefit of, at the direction of, or in association with a terrorist group.

• Clause 6 seeks to amend the principal Act's Section 5 (Offences relating to explosives or other lethal devices) by extending the offence related to terrorist bombings from only public places to include private places.

• Clause 7 proposes to amend the principal Act's Section 6 (Offences relating to hijacking, destroying or endangering safety of a fixed platform), by inserting additional offences in accordance with international law.

• Clause 8 proposes to amend the heading to Section 7 (Offences relating to taking a hostage) to read “Offences relating to taking hostage”, thus deleting the word “a” in accordance with legislative drafting practices.

• Clause 9 proposes to amend the principal Act's Section 9 (Offences relating to hijacking an aircraft) to provide that it will be an offence to, by any other means, seize or exercise control of an aircraft for the purposes listed in Section 9. Section 9 currently provides only for the seizure of control of an aircraft through force or intimidation and/or the threat thereof. The proposed insertion expands the methods/circumstances under which an aircraft can be hijacked – by any other means, other than force or intimidation.

It is noted that the Bill does not expand on what is meant by “any other means” by which an aircraft can be hijacked, other than force, the threat of force or intimidation – clarity might be sought.

• Clause 10 proposes to amend the principal Act's Section 10 (Offences relating to hijacking a ship or endangering safety of maritime navigation) by providing for additional offences in accordance with the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988, as amended by the Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 2005.

• Clause 11 proposes to amend the principal Act's Section 11 (Offences relating to harbouring or concealment of persons committing specified offences) by substituting the reference to a specified offence with the offence of terrorism referred to in Section 2, an offence associated or connected with terrorist activities referred to in Section 3, any Convention offence, or an offence referred to in Section 13 or 14. The proposed amendment is consistent with the amendment proposed for Sections 13 to 15 of the principal Act (clauses 14 to 16).

• Clause 12 proposes to amend the principal Act's Section 12 (Duty to report presence of person suspected of intending to commit or having committed an offence and failure to so report) by providing that no duty of secrecy or confidentiality, or any other restriction on the disclosure of information, whether imposed by legislation or arising from the common law or agreement, affects compliance by an accountable institution, supervisory body, reporting institution as defined in the Financial Intelligence Centre Act or any other person.

• Clause 13 seeks to amend the principal Act's Section 13 (Offences relating to hoaxes) by providing that the use of false threats to intimidate the public or to divert police resources to enable the commission of a crime is an offence.

• Clause 14 seeks to simplify the language of Section 15 (Jurisdiction in respect of offences) following the Constitutional Court judgment of S v Okah [2018] ZACC 3. It further amplifies the jurisdictional issues of the principal Act and where a warrant for offences in terms of the principal Act may be obtained under the Criminal Procedure Act, 1977. The clause further provides that persons who are not citizens of the Republic, who are not ordinarily resident in the Republic or persons who are stateless, must be advised of their rights to consular assistance from the state, where they are ordinarily resident or of which they are citizens. The clause, in terms of international obligations, provides that the relevant governments must be informed of the arrest of such a person for a Convention offence.

• Clause 15 seeks to amend the principal Act's Section 16 (Consent of National Director to institute proceedings and reporting obligations) and provides that the prosecution for an offence under Section 13 may be instituted without the written authority of the National Director and may be authorised by the relevant Director of Public Prosecutions.

• Clause 16 proposes the substitution in the principal Act's Section 17 (Evidential matters and exclusions) for the reference to the Department of Foreign Affairs with the Department responsible for International Relations and Cooperation. In 2009, the Department of Foreign Affairs was renamed the Department of International Relations and Cooperation.

• Clause 17 aligns the sentencing, as laid down in Section 18 of the principal Act (Penalties), with the severity of the offence, especially on the financing of terrorism, increasing the length of imprisonment by various courts, including High Court, magistrates court or regional court. It also provides for sentences for the offences listed in Sections 3A(3) and (4), 4A and 24B(13).

• Clause 18 proposes to substitute the principal Act's Section 23 as a consequence of the proposed repeal of Section 25 (see Clause 21) and expands on the ambit of, and what may be contained in: a freezing order; the making of ancillary orders; the publication of orders; the appointment of a curator ad litem and interim orders

• Clause 19 proposes to amend the principal Act's Section 24 (Cordoning off, stop and search of vehicle and person) by providing for the inclusion of “premises” which may be cordoned off and searched in accordance with a warrant issued by a judge i.e. no longer only vehicles and persons. The heading will read “Cordoning off, stop and search of vehicle, person and premises”.

• Clause 20 proposes the insertion of the principal Act's Section 24A, which provides for the application for a decryption direction by an officer of the Directorate in terms of Section 21 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002. The clause further proposes the insertion of Section 24B in the principal Act, which provides that a member of the Directorate may apply to a competent court for an order to disable access to an internet or social media site with unlawful terrorism-related content.

AfriForum submitted a public submission which argued that this inclusion violates RICA and violates the right to privacy of citizens. In response, the Department indicated that Section 24A would be revisited to specifically deal with decryption assistance and passwords or other access technology restrictions on electronic communications devices – Reference to United Kingdom laws (UK Terrorism Act, 2006).

• Clause 21 proposes repealing the principal Act's Sections 25 and 26 regarding parliamentary supervision. It is proposed that the publication of UNSC Resolutions on sanctions imposed on entities linked to terrorism and announced by notice in the Gazette should be performed by the Minister of Finance in terms of the Financial Intelligence Centre Act (no longer by the President for Parliamentary consideration). Amendments to such announcement may be made by the FIC Director. The proposal will ensure that all UNSC sanctions are dealt with by the FIC and through the same processes.

• Clause 22 proposes amendments to the principal Act's Section 27 (Amendment and repeal of laws and transitional provisions) by providing that any proclamations issued under Section 25(1), before the commencement of the Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Act, 2022, remain valid and have the same force and effect as a notice announced by the Minister of Finance under Section 26A(1) of the Financial Intelligence Centre Act, or in a notice given under Section 26A(3) by the FIC Director. Clause 22 also seeks to amend the principal Act to provide that any action taken in pursuance of a Proclamation issued under Section 25(1), before the commencement of the Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Act, 2022, remains valid.

Discussion
The Chairperson said that the presentation contextualising the clauses of the Bill was fair, independent and objective. She certainly thinks that the Committee’s work on this Bill will assist in improving the lives of the citizens and the position of the country globally.

Mr Terblanche thanked Ms van Zyl-Gous for her sterling work – the presentation was very helpful and will assist the Committee a lot.

Adv Dawn Bell, CSPS Chief Director: Legislation, thanked Ms van Zyl-Gous and said the presentation gave her a better understanding of all the comments and responses.

Way forward
The Chairperson asked Ms van Zyl-Gous to inform the Committee of the way forward.

Ms van Zyl-Gous said that the way forward is for further publication of the Bill for public comments for three weeks, thus extending the original period of two weeks. The deadline is 18 October 2022. Thereafter, the Committee will again engage in public participation and deliberations. The proposed programme will be circulated to the Members.

Closing remarks
The Chairperson said that the Committee had gone through the Amendment Bill in much detail and has progressed very well. She recalled that the Minister of Finance had made comments in the House last week where he had indicated the necessity of passing this Amendment Bill as soon as possible. The Committee had certainly realised the urgency of processing this Bill.

The Committee considered and adopted its Committee Report on the Addendum to the SAPS 2022/23 Annual Performance Plan (APP). The DA, EFF, ACDP and NFP reserved their rights not to vote until the plenary session in the National Assembly.

The Committee considered and adopted its minutes of 24, 31 August; 7, 14, 21 September 2022.

The meeting was adjourned.

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