Cosatu submission on The Anti-Terrorism Bill Summitted to the Portfolio Committee on Safety and Security

Table of content

1         introduction

Prior to the end of the 20^th century, particularly after the Second World War, political violence assumed an extraordinary place in the resolution of the many colonial, religious and ethnic conflicts. This surge in violent conflicts occurring mostly in the Third World was mainly both as a result of anti-colonial resistance wars and post-colonial divisions and conflicts, occasionally manipulated by external superpowers with vested interests in gaining control or influence in the ideological direction or economic resources of these fledging independent states. In this context, legitimate militant resistance was tenuously distinct and often blurred with terrorism.

 

The history of the 20^th Century suggests that the use of the word “terrorism” has unfortunately been subjective, largely depended on the context of legitimacy, ideology or point of view of those making that charge. Notwithstanding the fact that many of these conflicts have been resolved and that there has since been world and continental conventions, protocols and resolutions dealing with terrorism, it is still very much a subjective description of a political activity, subject to abuse, not least by the incumbent authorities both at a national and supranational levels.

 

It would appear that violent conflicts and causes thereof in the 21^st Century both perpetrated by governments and groups are assuming a lot more complex forms and manifestations, both in Africa and around the world. Equally complex are the underlying causes of such conflicts, ranging from poverty, mineral endowments to ethnic and religious intolerances. Therefore, defining terrorism is a challenge in itself.

 

COSATU acknowledges the responsibility and obligation on the part of the South African government to give effect within the Republic to the relevant United Nations, Non-Alignment Movement and African Union’s conventions, protocols and resolutions relating to terrorism.

 

In South Africa, where until 1994 the majority of the population were oppressed by Apartheid colonialism, those who used any means necessary in their resistance were accused of terrorism, not only by the state but also a variety of other institutions in civil society with vested interest in the maintenance of the status quo, in one form or other. It must also be added that this reflected the response of some governments and institutions internationally.

 

The citizens of South Africa have a right to safety, and rightly expect of their government and state in general to protect this right. This means that the government bears the responsibility and obligation to protect the citizen against such acts. However, this obligation is subject to limitations, where it would be carried out at the expense of other rights and freedoms the citizens are equally entitled to in terms of our Constitution and common law.

2         The need for a Comprehensive Review of the Existing Situation

COSATU believes that the transformation of the administration of justice must be accompanied by the on-going transformation of our statutory laws inherited from the Apartheid past, in line with our human rights-based Constitution as well as the international conventions, protocols and resolutions to which South Africa has subscribed since 1994.

 

For this reason we believe that there should be a comprehensive review of the existing legislative framework, including inherited apartheid legislation.  Such a review would first assess the extent to which internal security legislation has been reformed to ensure compliance with our Constitution.  This should then in turn be used as a basis for assessing the extent to which reform may be needed, including whether there is a need to scrap or amend existing legislation or enact new legislation.  We believe that such a process should have preceded the Bill.

 

We acknowledge the extensive review of security legislation conducted by the South African Law Commission (SALC).[1]  However, this review did not take into account the specific objectives that we have noted above, in particular that of assessing the overall compliance of the current framework with the Constitution.  Moreover the SALC review was premised on the principle that omnibus legislation would be drafted as opposed to merely amending existing legislation.  However, no reasons are given for choosing this route.

 

According to the SALC the existing legislation does not comply with international obligations.  Firstly, its scope is too narrow since it deals only with domestic terrorism and has no jurisdiction over international terrorism.  Secondly, there appear to be no provisions capable of dealing with the financing of terrorism.  There is no indication of there having been a comparative analysis of addressing these gaps through either option of omnibus legislation or amending present legislation.

 

Consequently, while COSATU notes the need to address both domestic and international terrorism, we are unable to say whether this should be achieved through new omnibus legislation or existing legislation.  Accordingly, we propose that a review be conducted in line with our concerns noted above.  In summary this would entail a comprehensive analysis of the existing legislation’s compliance with the Constitution, the adequacy of existing legislation to deal with legitimate concerns about threats posed to public safety and the extent to which this should be scrapped or amended and new legislation enacted.  Taking into account the wide ranging human rights implications and its political significance, we believe that such a review should be undertaken by the South African Human Rights Commission (SAHRC) and should include a Parliamentary Committee specially set up for that purpose.

 

If this proposal were to be accepted the current process on the Bill would have to be suspended pending the outcome of the review.  As an interim measure to address concerns about compliance with international obligations, amendments may be made to existing legislation to deal with international terrorism and financing.  We note in this respect that the SAHRC has called for the suspension of the current process and amendment of the current legislation pending the development of an adequate definition of terrorism.

3         Constitutional Implications

Having noted our proposals above regarding the need for further investigation, we believe it is important to register our concern regarding the serious implications that the Bill has for human rights.  If enacted in its current form the Bill is likely to violate international human rights principles and make serious inroads into civil and political rights entrenched in the Constitution, especially those related to freedom and security, freedom of expression, fair trial and freedom of expression.  Moreover taking into account the discriminatory interpretation and application of similar legislation abroad, it is important to ensure adequate safeguards preventing the arbitrary use of such legislation to invade freedoms of the specific racial, cultural or religious groupings or legitimate social movements.  Accordingly COSATU is bound to reject the Bill as currently drafted.

 

The major concern about the Bill revolves around key definitions, which are far too vague and wide.  In so doing it fails to place adequate limitations on the discretion that will be exercised by officials tasked with its implementation.  Our own experience of the enforcement of the Internal Security Act under apartheid warrants careful consideration of type of powers that may be granted to the police and the judiciary.

 

For the purpose of this submission our comments are directed at key provisions and should not be treated as a comprehensive assessment of the Bill.  In line with this we wish to note various concerns below, which should be treated as an illustrative rather than exhaustive list of the potential problems around the Bill:

3.1        Definition of a Terrorist Act

Clause 1 of the Bill defines a “terrorist act” as

“an unlawful act, committed in or outside the Republic which is‑

(a)     a convention offence; or

(b)     likely to intimidate the public or a segment of the public.

 

This definition is clearly far too broad and vague.  This would have the effect of expanding the scope of the Bill to include activities, which though unlawful, in no way should be construed as an act of terrorism.  This understandably has raised concerns about the potential that this has to be used to suppress political dissent.

3.2        Power to Stop and Search Vehicle and Person

Clause 6 allows police officers of or above the rank of a director to make an ex parte application to a judge to search vehicles and persons if it appears necessary to the judge in order to prevent a terrorist act.

 

The combination of the subjective determination by the judge with the vague meaning of a “terrorist act” creates ample opportunity for this provision to be applied in a discriminatory manner.  Further, no provision is made for judicial review should police official abuse their powers in terms of this clause.

 

Such provisions pose a serious threat to our hard won democracy.  Should a right wing political party be elected into power at any time in the future, this vagueness may be used to demonise mass action by workers or other legitimate social movements as “ultra left” to create conditions for such legitimate mass action to be categorised as “terrorist” under the sweeping provisions of the Act.

3.3        Investigative Hearings

Clauses 8 to 12 provide for investigative hearings, entailing pre-trial procedures for the gathering of evidence.  Persons questioned in the course of proceedings may depending on the circumstances be subject to arrest and detention.  However, due to these proceedings being administrative in nature many provisions under section 35 on the rights of arrested, detained and accused persons are not complied with.  These include for example, rights to remain silent, to challenge the unlawfulness of detention and to have a legal practitioner assigned at state expense if substantial injustice would result etc.  These provisions raise serious concerns about the incursions into constitutional rights, some of which may not be suspended even in a state of emergency.

3.4        Declaration of Terrorist Organisations

Under clause 14 the Minister is authorised to declare an organisation by notice in the Gazette if certain factors are applicable.  These include the declaration of that organisation as an international terrorist organisation by the United Nations Security Council; or where an organisation or any of its members has committed or claimed responsibility for a terrorist act or has endangered the security and territorial integrity of the Republic or another country.

 

Considering the broad definition of a terrorist act upon which this provision is dependent, it is understandable that this provision has raised concern about it being used against organisations perceived to be left of government.  Further, it is unclear how legitimate liberation movements may be distinguished in respect of acts endangering the security and territorial integrity of other countries.

3.5        Regulations

Clause 20 provides for the making of regulations.  Taking into account the number of concerns raised, we believe that it would be important to make the regulations subject to public comment and parliamentary scrutiny.

4         Conclusion

We have noted a number of substantive concerns regarding the provisions of the Bill and proposed particular procedures to deal with these concerns.  We do not believe that it will be possible to address these in the absence of having conducted an adequate review as we have suggested.  Furthermore, we are aware that as yet there has been no consensus on the Draft Comprehensive UN Convention on Terrorism.  The proposed review and suspension of the Bill would allow legal implications flowing from the UN process to be factored into the South African legislative framework.

---

Footnotes

[1] See South African Law Commission Report, Project 105, Review of Security Legislation (Terrorism: Section 54 of the Internal Security Act, 1982 (Act NO. 74 of 1982)) August 2002.