Proclamations in respect of entities involved in terrorist and related activities: Department Police briefing

Meeting report

South African Police Service (SAPS) briefing on Proclamations in respect of entities involved in terrorist and related activities identified by the United Nations Security Council, Proclamation No’s 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31, published in the Government Gazette No. 36689, dated 23 July2013; Proclamation No’s 40 and 41, published in the Government Gazette No. 36857, dated 20 September 2013.
Brigadier Kobie Strydom, Legal Services: South African Police Services, noted that proclamations made in respect of entities involved in terrorist and related activities, as identified by the United Nations Security Council, were made in terms of section 25 of the Protection of Constitutional Democracy Against Terrorist and Related Activities, 2004 (Act No 33 of 2004), and tabled in terms of section 26 of that Act.

Brig Strydom said that the Proclamations tabled were numbers 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31, published in the Government Gazette No 36689, dated 23 July2013; and Proclamation numbers 40 and 41, published in the Government Gazette No 36857, dated 20 September 2013.

She explained the background to that Act and proclamations. Article 25 of the United Nations Charter stated that Members of the United Nations (including South Africa) agreed to accept and carry out the decisions of the Security Council in accordance with the present Charter. Section 231(3) of the South African Constitution provided that an international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but should be tabled in the Assembly and the Council within a reasonable time.

The Protection of Constitutional Democracy Against Terrorist and Related Activities Act stated, in section 25, that the President should give notification in respect of entities identified by the United Nations Security Council, by proclamation in the Gazette,  when the UN, under Chapter VII of the Charter of the United Nations, had identified a specific entity as being an entity who commits, or attempts to commit, any terrorist and related activity or participates in or facilitates the commission of any terrorist and related activity; or was an entity against whom Member States of the United Nations must take the actions specified in Resolutions of the said Security Council, in order to combat or prevent terrorist and related activities”.

Section 26 provided for the Parliamentary supervision because every proclamation issued under section 25 must be tabled in Parliament for its consideration and decision.

Brig Strydom said that the United Nations Security Council Resolutions (UNSCRes) of 17 June 2011 made a distinction between Taliban and Al-Queda lists of terrorists.

In terms of listing, Member States were encouraged to submit names for listing as soon as supporting evidence was obtained, and the relevant UN Committee would consider proposed listings against the standard  “associated with” as set out in the UN Security Council Resolution 1617 (2005); Before proposing names, Member States were encouraged to approach state(s) of residence / citizenship of the individual / entity to obtain additional information. The Member States were also encouraged to propose names of individuals responsible or concerned with listing, and the Security Council Resolution 1735 (2006) stated that Member States needed to provide detailed statements of case in support of any proposals for listing. These should include specific findings demonstrating the association or activities alleged, the nature of supporting evidence, which included intelligence, law enforcement, judicial, media or admissions or documents supporting the evidence of any connection with a currently listed individual or entity.

Brig Strydom said that a standard form was made available by the UN Committee, for both individuals and entities. If listing was approved, the Committee updated a consolidated list. There was a description of the effect of listing and a procedure for delisting. Amendments and updating were made by the Committee on information provided by Member States, regional or international organisations. A monitoring team advised and assisted so as to convey information to requesting states. The effect of listing included freezing of assets, arms embargo, and travel ban.

Brig Strydom described that, in order to obtain a de-listing, a petitioner should submit a request for de-listing to the Office of Ombudsperson or by the Member State to the Committee, after bilaterally consulting with designating State(s), State(s) of nationality, residence or incorporation. The Chairperson should circulate a request including appropriate additional information provided by the monitoring team and place a request on Committees agenda. States were invited to submit their views. The Committee should give due consideration to opinions of designating State(s), State(s) of residence, nationality or incorporation. If an objection was received then the UN Committee should reject the delisting request.

Discussion
Mr B Nesi (Eastern Cape, ANC) said that every time the Committee discussed the listings, they invariably concerned the Taliban and Al-Queda. He wondered if South Africa could attend to any listings itself. South Africa was dependent on the United Nations (UN), United States (US) or Britain with regard to listed terrorist organisations, and he wondered what was being done about terrorist organisations such as Al Shabab in Africa, which come to the countries and carried out terrorist activities.

He also asked whether the Taliban individuals mentioned in page 7 of the document presented to the Committee were individual names of people who were known and could be identified.

Mr L Nzimande, (KwaZulu-Natal, ANC) asked whether in South Africa or any other countries there were “inter-country” lists held, to notify other countries about the individuals of whom they should be wary.

Mr Nzimande asked what the implications were for South Africa should there be non-compliance with the proclamation.

Ms M Makgate (North West, ANC) asked what the situation was with people from South Africa acting as missionaries in African countries.

Mr J Gunda (Northern Cape, ID) reminded the Members of a statement that one country’s freedom fighter was another country’s terrorist. The UN, US and Britain should not dictate terms to others and tell them simply to accept that certain individuals and entities were regarded as terrorists. He believed it was high time that in Africa, especially South Africa, own research was done to and see what the purpose was of those people fighting in their own countries. He did not believe that South Africa should be merely accepting a “terrorist list” from the UN; the UN could be wrong, as it had at one stage listed Mandela also as a terrorist, which he was not. He believed that South Africa should be keeping its own list, and define what a “terrorist” was.

Mr A Matila, (Gauteng, ANC) cautioned that South Africa, as a UN member state, was bound by the resolutions taken by the UN and that was one problem. He agreed with Mr Gunda that the dividing line between terrorist / freedom fighter was problematic, reminding Members that even the ANC members were called terrorists in some countries whilst in others they were called freedom fighters. The challenge was the membership of the UN.

Brig Strydom said that the UN had taken note of the fact that the members of the Al Shabab were involved more in Kenya and Somalia, whereas the Taliban and Al-Queda were more widespread. South Africa’s own legislation - The Protection of Constitutional Democracy against Terrorist and Related Activities Act - had a wide definition of “terrorist”, so there was no implication that South Africa would concentrate on the UN-defined “terrorists” alone. South Africa was concentrating on and investigating also, at the request of its neighbouring countries, and countries in the rest of Africa, anybody who was allegedly committing terrorist activities. The reason for that was that South Africa was also a member of the African Union (AU) and a signatory to the OAU Convention on Combating and Prevention of Terrorists, and the OAU definitions were more closely aligned to South Africa’s in so far as “terrorist activities”  were concerned. There was not only on one group. Al Shabab concentrated on bombing buildings, and unfortunately killing innocent people. It was not only possible for South Africa to look internally, because the legislation had extra territorial application.

Brig Strydom explained the process. Every second year, the UN would ask government what it was doing in relation to counter-terrorism in South Africa, to check that South Africa was on the same level and standards as other members of the UN. South Africa was rated well in this regard, on both its legislation and investigations.

Brig Strydom added that amongst all African countries, it was really South Africa, Mauritius and Tanzania that had effective anti-terrorist activities legislation, and the effectiveness of it was really measured by the way that they would enforce the legislation and work on extra territorial legislation with other countries with full extradition treaties – which meant that those countries should also regard the same activities as being an extraditable offence as South Africa did. Where other countries did not have anti-terrorist activities legislation extradition would be very difficult. It was very important that South Africa should encourage its African partners to set up legislation regarding terrorist activities and terrorist activities. According to the definitions a person committing a terrorist activity would have committed a criminal offence and would not be regarded as a freedom fighter.

Brig Strydom clarified also that it was not in fact the US and Britain who were dictating to South Africa for the resolutions were those of all UN member states – currently about 193 countries and they included all African countries. The Security Council at the UN was currently promoting an African permanent seat. South Africa did listen to what the UN was saying but it was not true that it was merely being dictated to.

Adoption of Committee Report
The Chairperson read out the Report of the Select Committee on Security and Constitutional Development on Proclamations, noting that the Committee had received a briefing on the proclamations made in terms of section 25 of the Protection of the Constitutional Democracy Against Terrorist and Related Activities Act, and recommended that the National Council of Provinces approve the Proclamations. Members agreed to the adoption of the Report.

The meeting was adjourned.