The Institute for Security Studies (ISS) is an independent, non-governmental research institute with a focus on human security in Africa. It is recognised both locally and internationally as a key applied research institute doing work on security issues in Africa. It is supported by a multi-disciplinary staff with experience in regional research projects of this nature. In the past few years the various programmes within the ISS have been actively involved in research, and influencing and impacting on policy issues.

The Institute for Security Studies is currently conducting an applied research project entitled "Combating Terrorism in the SADC region". The broad objectives are:

1. To assess the present and future threat of terrorism in SADC countries; and
2. To examine existing legislation relating to terrorism with a view to identify legislative and institutional needs, recommend legislative changes, and assist with the harmonising of such legislation in SADC region.

To ensure a well-balanced and thoroughly researched submission, ISS researchers conducted informal round-table discussions and interviews with Advocate Anton Katz, Advocate Johan de Waal, Dr Jakkie Cilliers (ISS Executive Director), Kathryn Sturman (ISS Senior Researcher) and Martin Schönteich (ISS Senior Researcher), Dr Philip C. Jacobs (Chief Manager: Legal Component Detective Service), Pierre van Wyk (Researcher: South African Law Commission), Nokukhanya Ntuli (Parliamentary Researcher: IDASA), Felicity Harrison (Parliamentary Researcher: Southern African Catholic Bishops' Conference) and Douglas Tilton (Parliamentary Researcher: South African Council of Churches' Parliamentary Office). A comparative legislative analysis of existing anti-terrorism legislation was undertaken including the Mauritian "Prevention of Terrorism Act of 2002", the Canadian Bill C-36, the American "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act" (USA Patriot Act of 2001), the Indian "Prevention of Terrorism Ordinance of 2001", the British "Anti-Terrorism, Crime and Security Bill of 2001" and the German "Gesetz zur Bekämpfung des Internationalen Terrorismus" (Terrorismusbekämpfungsgesetz 2002). In addition, relevant United Nations and Commonwealth documentation was consulted.

The evolutionary process of the South African anti-terrorism legislation has been marked by much controversy. Its roots can be traced back to the overhaul of the existing security legislation in the mid-nineties. The idea initially was to bring South Africa's collection of security legislation in line with the constitution. In November 1995, Safety and Security Minister Sydney Muffamadi approached the South African Law Commission (SALC) to undertake a review and rationalisation of existing security legislation. According to the Ministry, the history of security legislation and the new political climate required that existing legislation in South Africa, including the Internal Security Act of 1982 and similar acts in the former TBVC states be repealed and a new Act be enacted which conformed to international norms, the Constitution and the country's then current circumstances and requirements.

The South African Police Service conducted the initial research on terrorism and drafted a document containing a bill, which was submitted to SALC in October 1999. In mid-2000, SALC released its draft Anti-Terrorism Bill. The bill was severely criticised for its wide definition of what constituted terrorist activity as well as its proposed curbing of civil liberties, such as detention without trial. In its motivation for the draconian nature of the Bill, SALC said that effective anti-terrorism legislation was one of the tools available to governments in their fight against terrorism. It thus sought to bring South African legislation in line with international conventions dealing with terrorism. The bill was returned to legal drafters later that year.

The next draft of the South African anti-terrorism legislation was submitted to Parliament in November 2002. Although controversial clauses such as detention without trial had been scrapped, many critical clauses remained. Present Anti-Terrorism Bill was tabled in Parliament on 10 March 2003. Before looking at the Bill in greater detail, we would like to explore the need for anti-terrorism legislation.

It is important to note that in the aftermath of 11 September 2001, pressure grew on the government to show its commitment to counteract global terrorism. On September 28, 2001 the United Council Security Council adopted Resolution 1373 in terms of Chapter VII of the United Nations Charter. All states, including those who are not United Nations members were compelled to implement the resolution's operative provisions. This includes the criminalisation of the financing and other acts of support for terrorism, the freezing of bank accounts, the introduction of effective border controls and other measures to fast-track the exchange of operational information.

The operative provisions of UN Resolution 1373 are as follows:

1. To deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;
2. To ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to other measures against them, such terrorist acts are established as serious criminal offences in domestic law and regulations and that the punishment reflects the seriousness of such terrorist acts;
3. To afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings.

An analysis of existing South African security legislation shows that it fails to satisfy the operative provisions of UN Resolution 1373. In addition to South Africa's international obligations, it has to satisfy regional commitments, in particular the Organisation of African Unity Convention on the Prevention and Combating of Terrorism (The Algiers Convention of 1999).

We have structured our submission as follows:

Each section examines:

• Current phrasing of the section of the "Bill" under discussion
• Discussion: problems/ weaknesses of the section
• Suggestion: how to tackle/improve problem areas

Discussion

The objective of the proposed Bill will be to counter the threat presented by terrorism, enabling investigations and pro-active counter-terrorism measures. There is no question that the South African government and Public are against or "anti" terrorism. However, the proposed Bill should extend beyond a political in-principle commitment. In addition, referring to "anti-terrorism" a sentiment developed within the community that government is against a particular segment of the population that will be targeted with the new Bill. Although unfounded, the perception was created and should be guarded against - not only referring to the title, but also to the question on banning organizations, investigative hearings and outlawing all types of support.

The proposed Bill defines "property" as:

''property'' means real or personal property of any description, whether tangible or intangible;

The definition of "property" is the same employed in the "Prevention of Organised Crime Act". Investigators may use similar

There are many similarities between the proposed "Anti-Terrorism Bill" and the "Prevention of Organised Crime Act". Although there are some similar

Although the current proposed "Anti-Terrorism Bill" relies heavily on the "Prevention of Organised Crime Act" in countering and investigating the financing of illegal operations, a clear difference exists between the structuring, operations and objectives of organised crime syndicates and groups and individuals associated with terrorism. It is therefore suggested that another approach should be implemented in countering and investigating terrorism. The first step would be in using a narrower definition of "property". Additional approaches will be referred to throughout this submission.

The ISS recommends the following definition of "property":

"property" means any asset of any kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible, and legal documents or instruments in any form including electronic or digital evidencing title to, or interest in, such assets including but not limited to bank credits, travellers cheques, money orders, shares, securities, bonds, drafts, and letters of credit.

Previous drafts of the Anti-Terrorism Bill contained broad definitions of "terrorist act". The latest definition is as follows:

''terrorist act'' means an unlawful act, committed in or outside the Republic;

(a) a convention offence; or

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

The following section is divided into a section on the "convention offences" and the "Algiers Convention.

Attached to the bill is Schedule 1, which stipulates convention offences. It includes offences listed in nine of the twelve United Nations Conventions on Terrorism and the Organisation of African Unity Convention on the Prevention and Combating of Terrorism (Algiers Convention 1999). The nine convention offences are:

• Interference with, seizure or exercise of control of an aircraft (Article 11 of Convention on Acts Committed on Board Aircraft (1963))
• Seizure or unlawful exercise of control of an aircraft (Article 1 of Convention for the Suppression of Unlawful Seizure of Aircraft (1970))
• Performing acts of violence on, damaging or destroying an aircraft (Article 1 of Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971))
• Murder, kidnapping or attack upon the person, official premises, private accommodation, transport or liberty of an internationally protected person (Article 1 and 2 of Convention on the Prevention and Punishment of Crimes against International Protected Persons (1973))
• Receipt, possession, use, transfer, alteration, disposal or dispersal of nuclear material (Article 7 of Convention on the Physical Protection of Nuclear Material (1980))
• Performing an act of violence at an airport or destroying or damaging the facilities at an airport (Article II of Protocol for the Suppression of Unlawful Acts of Violence at Airports (1988))
• Manufacture of unmarked explosives (Article 2 of Convention on the Making of Plastic Explosives (1991))
• Delivery, placing, discharge or detonation of an explosive or other lethal device (Article 2 of Convention on the Suppression of Terrorist Bombings (1997))
• Provision or collection of funds to be used to carry out a terrorist act (Article 2 of Convention on the Suppression of the Financing of Terrorism (1999))

The nine conventions are the ones that the South African government has ratified to date. South Africa is required to ratify all twelve of the United Nations Conventions on Terrorism.

The outstanding conventions are:

• Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (1988)
• Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf (1988)
• Convention on the Physical Protection of Nuclear Material (1980)

Firstly, it would be commendable to include all twelve conventions on terrorism in Schedule 1. The outstanding conventions are in the process of being ratified. It would be useful to have domestic legislation in place to speed up the ratification and implementation process. In fact, ratification of international instruments is often delayed because of a lack of domestic legislation. Instead of having to amend the Anti-Terrorism Bill at a later stage to provide for the domestic requirements for ratification, convention offences should include offences as specified in the three outstanding conventions.

Secondly, in terms of practicality of Schedule 1, it is recommended to spell out the offences by inserting the relevant articles. The United Nations Conventions may not be accessible at short notice. When time is of the essence, a defence lawyer may struggle to establish the offence his/her client has been arrested for. Similarly, it is unusual to criminalise an act, if it not defined.

The tenth convention offence is the commission of a terrorist act as contemplated in section 1 of the Organisation of African Unity Convention on the Prevention and Combating of Terrorism (Algiers Convention 1999). The 35th Ordinary Session of the Assembly of Heads of State and Government adopted the Convention in the Algerian capital Algiers in July 1999,. It entered into force on 6 December 2002. South Africa has both signed and ratified the Convention.

What differentiates the Algiers Convention from other conventions on terrorism is Article 3(1). Struggles for national self-determination are thereby excluded from its definition of terrorism. Article 3(1) provides as follows:

1. Notwithstanding the provisions of Article 1, the struggles waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts.

South Africa was one of the chief promoters of the Algiers Convention. Article 3(1) is of particular significance in the national and regional context, taking us back to the days when a myriad of liberation forces were declared "terrorist". It is surprising that same article is not included in the convention offences. South Africa has ratified the convention in its entirety. It is thus commendable that the definition of a "terrorist act" be included with its exclusion clause, Article 3(1).

Our suggestion is to add Article 3(1) to the Preamble following:

AND WHEREAS the Republic shares the commitment to prevent and combat terrorism with the African Union and the Non-Aligned Movement as expressed in various resolutions as well as the Organisation of African Unity's Convention on the Prevention and Combating of Terrorism

AND RECOGNIZING that the struggles waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts

The latter part of the definition states:

''terrorist act'' means an unlawful act, committed in or outside the Republic;

...

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

Part (b) should be omitted. The convention offences listed in Schedule 1 cover the terrain sufficiently. Section 1 of the Organisation of African Unity Convention on the Prevention and Combating of Terrorism stipulates:

"Terrorist act" means:

...

(i) intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles

The addition of "likely to intimidate the public or a segment of the public" is expedient due to the nature of the offences listed in the schedule. The definition fails to provide legal certainty by providing two mutually exclusive interpretations. To ensure legal certainty, not only should the mentioned clause be omitted but "convention offences" (as discussed above) be spelled out.

The following definition of a "terrorist act" is suggested

1. a convention offence;
2. endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to:
1. intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles; or
2. disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or
3. create general insurrection in a State.
3. any promotion, sponsoring, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organizing, or procurement of any person, with the intent to commit any act referred to in paragraph (b) (i) to (iii).
4. is designed or intended to disrupt any computer system or the provision of services directly related to governmental computer systems, communications infrastructure, banking or financial services, utilities, transportation or other essential infrastructure;
5. involves releasing into the environment or any part thereof of distributing or exposing the public or any part thereof to -

1. any dangerous, hazardous, radioactive or harmful substance;
2. any toxic chemical;
3. any microbial or other biological agent or toxin

6. An act which -

1. disrupts any services; and
2. is committed in pursuance of a protest, demonstration or stoppage of work

Motivation for including provisions d), e) and f):

Provisions d) and e) are regarded as essential elements of the definition in light of changes in the modus operandi of individuals and groups associated with terrorism. This includes the growth of cyber-terrorism and the use of weapons of mass destruction in acts of terrorism.

The inclusion of provision f) ensures the protection of fundamental rights as provided for in the Constitution.

The current "Bill" provides the following definition:

''terrorist organisation'' means an organisation declared as such under section 14

Later in this submission, the issue of banning of organisations will be discussed. An argument will be made that legislation should avoid an organisational focus, but rather concentrate on individuals. For the purposes of control over terrorist financing, we recommend to replace "organisation" with the concept "entity" throughout the "Bill" :

" terrorist enitity" means a person, group, trust, partnership, fund or an unincorporated association or organization"

In light of the discussion and suggestion of the definition of "terrorist act", we suggest the inclusion of "convention offences" in this chapter:

Suggestion1:

1. When a person on board has unlawfully committed by force or threat thereof an act of interference, seizure, or other wrongful exercise of control of an aircraft in flight or when such an act is about to be committed, Contracting States shall take all appropriate measures to restore control of the aircraft to its lawful commander or to preserve his control of the aircraft.
2. In the cases contemplated in the preceding paragraph, the Contracting State in which the aircraft lands shall permit its passengers and crew to continue their journey as soon as practicable, and shall return the aircraft and its cargo to the persons lawfully entitled to possession.

Any person who on board an aircraft in flight:

(b) is an accomplice of a person who performs or attempts to perform any such act commits an offence

It is suggested to merge Article 11 of Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963) and Article 1 of the Convention for the Suppression of Unlawful Seizure of Aircraft (1970). The wording of the "Anti-Terrorism Draft Bill" (2002) is recommended:

Any person who, unlawfully, by force or threat thereof, or by any other form of

intimidation, seizes or exercises control of an aircraft with the intent to -

(a) cause any person on board the aircraft to be detained against his or

her will;

(b) cause any person on board the aircraft to be transported against his or

her will to any place other than the next scheduled place of landing of

the aircraft;

(c) hold any person on board the aircraft for ransom or to service against

his or her will; or

(d) cause that aircraft to deviate from its flight plan,

commits an offence, and is liable on conviction to imprisonment for life.

Convention offence (2) is Article 1 of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971), as stipulated under (3) of the "Convention Offences":

1. Any person commits an offence if he unlawfully and intentionally:

1. performs an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft; or
2. destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight; or
3. places or causes to be placed on an aircraft in service, by any means whatsoever, a device or substance which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight, or to cause damage to it which is likely to endanger its safety in flight; or
4. destroys or damages air navigation facilities or interferes with their operation, if any such act is likely to endanger the safety of aircraft in flight; or
5. communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight.

2. Any person also commits an offence if he:

1. attempts to commit any of the offences mentioned in paragraph 1 of this Article; or is an accomplice of a person who commits or attempts to commit any such offence.

It is proposed to then include "convention offence" (f) as listed in Schedule 1. The set of offences is contemplated in Article II of the Protocol for the Suppression of Unlawful Acts of Violence Serving International Civil Aviation (1988). We recommend the re-grouping of convention offences from a chronological order to a logical order, id est the grouping of similar offences such as offences pertaining to civil aviation, maritime navigation, etc.

Proposed Convention Offence (3):

Any person commits an offence if he unlawfully and intentionally, using any device, substance or weapon:

Article 3 of the Convention for the Suppression of Unlawful Acts against Safety of Maritime Navigation stipulates:

Any person commits an offence if that person unlawfully and intentionally:

1. seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or

a. performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or

b. destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or

c. places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or

d. destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such act is likely to endanger the safe navigation of a ship; or

e. communicates information which he knows to be false, thereby endangering the safe navigation of a ship; or

f. injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f).

2. Any person also commits an offence if that person:

attempts to commit any of the offences set forth in paragraph 1; or

a. abets the commission of any of the offences set forth in paragraph 1 perpetrated by any person or is otherwise an accomplice of a person who commits such an offence; or

b. threatens, with or without a condition, as is provided for under national law, aimed at compelling a physical or juridical person to do or refrain from doing any act, to commit any of the of fences set forth in paragraph 1, subparagraphs (b), (c) and (e), if that threat is likely to endanger the safe navigation of the ship in question.

We suggest Article 6. of the South African "Anti-Terrorism Bill" (2002). Proposed Convention Offence (4):

Any person who, in respect of a ship registered in the Republic or within the territorial

waters of the Republic or maritime navigational facilities, unlawfully and intentionally -

(a) seizes or exercises control over such a ship by force or threat thereof

or any other form of intimidation;

(b) performs any act of violence against a person on board such ship if

that act is likely to endanger the safe navigation of that ship;

(c) destroys such a ship or causes damage to such ship or to its cargo

which is likely to endanger the safe navigation of that ship;

(d) places or causes to be placed on such ship, by any means

whatsoever, a device or substance which is likely to destroy that ship,

or cause damage to that ship or its cargo which endangers or is likely

to endanger the safe navigation of that ship;

(e) destroys or seriously damages maritime navigational facilities or

seriously interferes with their operation, if such act is likely to

endanger the safe navigation of such ship; or

(f) communicates information, knowing the information to be false and

under circumstances in which such information may reasonably be

believed, thereby endangering the safe navigation of such ship;

commits an offence and is liable on conviction -

(i) to imprisonment for a period not exceeding 20 years; or

(ii) if the death of any person results from any act prohibited by this

section, to imprisonment for life.

We suggest the inclusion of offences as stipulated by Article 2 of the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf (1988):

Any person commits an offence if that person unlawfully and intentionally:

seizes or exercises control over a fixed platform by force or threat thereof or any other form of intimidation; or

a. performs an act of violence against a person on board a fixed platform lf that act is likely to endanger its safety; or

b. destroys a fixed platform or causes damage to it which is likely to endanger its safety; or

c. places or causes to be placed on a fixed platform, by any means whatsoever, a device or substance which is likely to destroy that fixed platform or likely to endanger its safety; or

d. injures or kills any person in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (d).

5. Any person also commits an offence if that person:

attempts to commit any of the offences set forth ln paragraph 1; or

a. abets the commission of any such offences perpetrated by any person or is otherwise an accomplice of a person who commits such an offence; or

b. threatens, with or without a condition, as is provided for under national law, aimed at compelling a physical or juridical person to do or refrain from doing any act, to commit any of the offences set forth in paragraph 1, subparagraphs (b) and (c), lf that threat is likely to endanger the safety of the fixed platform.

It is recommended to use Article 10. of the South African "Anti-Terrorism Draft Bill" (2002): Suggested Convention Offence (5):

(1) Any person who unlawfully and intentionally -

(a) seizes or exercises control over a fixed platform on the continental

shelf, or the exclusive economic zone or any fixed platform on the

High Seas while it is located on the continental shelf of the Republic,

by force or threat thereof or by any other form of intimidation;

(b) performs an act of violence against a person on board such a fixed

platform if that act is likely to endanger the platform's safety;

(c) destroys such a fixed platform or causes damage to it which is likely to

endanger its safety;

(d) places or causes to be placed on such a fixed platform, by any means

whatsoever, a device or substance which is likely to destroy that fixed

platform or likely to endanger its safety;

(e) injures or kills any person in connection with the commission or the

attempted commission of any of the offences referred to in paragraphs

(a) to (d); or

(f) damages or destroys any off-shore installation referred to in section 1

of the Maritime Traffic Act, 1981 (Act No. 2 of 1981),

commits an offence.

(2) A person convicted of an offence referred to in subsection (1) is -

(a) liable on conviction to a fine or to imprisonment for a period not

exceeding 20 years;

(b) in the case where death results from the commission of the offence,

liable on conviction to imprisonment for life.

It is suggested to include Article 1 of the International Convention against the Taking of Hostages (1979). The offences stipulated in the Convention have not been included in the proposed "Bill". The offences according to above Convention are:

1. Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the "hostage") in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages ("hostage-taking") within the meaning of this Convention.

2. Any person who:

It is suggested to employ Article 8 of the South African " Anti-Terrorism Draft Bill" (2002)

Proposed Convention Offence (6):

Any person, who, in the Republic -

(a) detains any other person, hereinafter referred to as a hostage; and

(b) in order to compel a State, international governmental organisation or

a natural or juristic person to do or abstain from doing any act,

threatens to kill, injure or continue to detain the hostage,

commits an offence, and is liable on conviction to imprisonment for life.

According to the proposed "Convention Offences" in Schedule 1 of the proposed "Bill", "murdering, kidnapping or attacking an internationally protected person or endangering his or her person or liberty" is an offence. However, Article 1 ( cited under "Convention Offence (d)) of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons (1973) stipulates:

"internationally protected person" means:

a Head of State, including any member of a collegial body performing the functions of a Head of State under the constitution of the State concerned, a Head of Government or a Minister for Foreign Affairs, whenever any such person is in a foreign State, as well as members of his family who accompany him;

a. any representative or official of a State or any official or other agent of an international organization of an intergovernmental character who, at the time when and in the place where a crime against him, his official premises, his private accommodation or his means of transport is committed, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household;

2. "alleged offender" means a person as to whom there is sufficient evidence to determine prima facie that he has committed or participated in one or more of the crimes set forth in article 2.

The cited Article fails to specify the offence, which is in fact contemplated in Article 2 of same Convention. We suggest Article 9 of the "Anti-Terrorism Draft Bill" (2002).

Proposed Convention Offence (7):

(1) A person who murders or kidnaps an internationally protected person is guilty

of an offence and is liable on conviction to imprisonment for life.

(2) A person who commits any other attack upon the person or liberty of an

internationally protected person is guilty of an offence and is liable on conviction:

(a) where the attack causes death-to imprisonment for life;

(b) where the attack causes grievous bodily harm-to imprisonment for a

period not exceeding 20 years; or

(c) in any other case-to imprisonment for a period not exceeding 10

years.

(3) A person who intentionally destroys or damages (otherwise than by means of

fire or explosive):

(b) any official premises, private accommodation or means of transport, of

an internationally protected person; or

(c) any other premises or property in or upon which an internationally

protected person is present, or is likely to be present;

is guilty of an offence and is liable on conviction to imprisonment for a period not

exceeding 10 years.

(4) A person who intentionally destroys or damages (otherwise than by means of

fire or explosive):

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(a) any official premises, private accommodation or means of transport, of

an internationally protected person; or

(b) any other premises or property in or upon which an internationally

protected person is present, or is likely to be present;

with intent to endanger the life of that internationally protected person by that

destruction or damage is guilty of an offence and is liable on conviction to

imprisonment for a period not exceeding 20 years.

(5) A person who intentionally destroys or damages by means of fire or

explosive:

(a) any official premises, private accommodation or means of transport, of

an internationally protected person; or

(b) any other premises or property in or upon which an internationally

protected person is present, or is likely to be present;

is guilty of an offence and is liable on conviction to imprisonment for a period not

exceeding 15 years.

(6) A person who intentionally destroys or damages by means of fire or

explosive:

(a) any official premises, private accommodation or means of transport, of

an internationally protected person; or

(b) any other premises or property in or upon which an internationally

protected person is present, or is likely to be present;

with intent to endanger the life of that internationally protected person by that

destruction or damage is guilty of an offence and is liable on conviction to

imprisonment for a period not exceeding 25 years.

(7) A person who threatens to do anything that would constitute an offence

against subsections (1) to (6) is guilty of an offence and is liable on conviction to

imprisonment for a period not exceeding 10 years.

(8) For the purposes of this section kidnapping a person consists of leading,

taking or enticing the person away, or detaining the person, with intent to hold the

person for ransom or as a hostage or otherwise for the purpose of inducing

compliance with any demand or obtaining any advantage.

(9) Any person who -

(a) wilfully and unlawfully, with intent to intimidate, coerce, threaten or

harass, enters or attempts to enter any building or premises which is

used or occupied for official business or for diplomatic, consular, or

residential purposes by an internationally protected person within the

Republic; or

(b) refuses to depart from such building or premises after a request by an

employee of a foreign government or an international organisation, if

such employee is authorised to make such request,

commits an offence, and is liable on conviction to a fine or to imprisonment for a

period not exceeding five years or to both such fine and imprisonment.

Schedule 1 stipulates that the "receiving, possessing, using, transferring, altering, disposing or dispersing of nuclear material" is a "convention offence" according to Article 7 of the Convention on the Physical Protection of Nuclear Material (1980)

1. The intentional commission of:

1. an act without lawful authority which constitutes the receipt, possession, use, transfer, alteration, disposal or dispersal of nuclear material and which causes or is likely to cause death or serious injury to any person or substantial damage to property;
2. a theft of robbery of nuclear material;
3. an embezzlement or fraudulent obtaining of nuclear material;
4. an act constituting a demand for nuclear material by threat or use of force or by any other form of intimidation;
5. a threat:

1. to use nuclear material to cause death or serious injury to any person or substantial property damage, or
2. to commit an offence described in sub-paragraph (b) in order to compel a natural or legal person, international organization or State to do or to refrain from doing any act;

0. an attempt to commit any offence described in paragraphs (a), (b) or (c); and
0. an act which constitutes participation in any offence described in paragraphs (a) to (f)

It is suggested to include Article 11 of the South African "Anti-Terrorism Draft Bill" (2002). Proposed Convention Offence (8):

(1) Any person who unlawfully and intentionally -

(a) intends to acquire or possesses radioactive material or designs or

manufactures or possesses a device, or attempts to manufacture or

acquire a device, with the intent -

(i) to cause death or serious bodily injury; or

(ii) to cause damage to property or the environment;

(b) uses in any way radioactive material or a device, or uses or damages

a nuclear facility in a manner which releases or risks the release of

radioactive material with the intent -

(i) to cause death or serious bodily injury;

(ii) to cause damage to property or the environment; or

(iii) to compel a natural or juristic person, an international

organization or a State to do or refrain from doing an act,

commits an offence.

(2) Any person who -

(a) threatens, under circumstances which indicate the credibility of the

threat, to commit an offence referred to in subsection (1)(b); or

(b) unlawfully and intentionally demands radioactive material, a device or

a nuclear facility by threat, under circumstances which indicate the

credibility of the threat, or by use of force,

commits an offence.

(3) A person convicted of an offence in terms of this section is liable on

conviction to imprisonment for life.

It is suggested to omit "convention offence" (g) as stipulated under Schedule 1 in the proposed "Bill". (g) refers to Article 2 of the Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991):

Each State Party shall take the necessary and effective measures to prohibit and prevent the manufacture in its territory of unmarked explosives.

The "Firearms Control Act" and the SADC Protocol on Firearms Control" takes care of above offence.

"Convention offence" (h) refers to Article 2 of the International Convention for the Suppression of Terrorist Bombings (1997):

1. Any person commits an offence within this Bill if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

1. With the intent to cause death or serious bodily injury; or
2. With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

2. Any person also commits an offence if that person attempts to commit an offence as set forth in paragraph 1 of the present article.
3. Any person also commits an offence if that person:

1. Participates as an accomplice in an offence as set forth in paragraph 1 or 2 of the present article; or
2. Organizes or directs others to commit an offence as set forth in paragraph 1 or 2 of the present article; or
3. In any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 of the present article by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.

It is suggested to draw on Article 7 of the South African "Anti-Terrorism Draft Bill" (2002).

Proposed Convention Offence (9):

(1) Any person who unlawfully and intentionally delivers, places, discharges or

detonates an explosive or other lethal device in, into or against a place of public use,

a state or government facility, a public transport facility, a public transportation

system, or an infrastructure facility -

(a) with the intent to cause death or serious bodily injury; or

(b) with the intent to cause extensive damage to, or destruction of

such a place, facility or system, where such destruction results

in or is likely to result in major economic loss,

commits an offence, and is liable upon conviction to imprisonment for life.

(2) This section does not apply to the military forces of a State -

(a) during an armed conflict; or

(b) in respect of activities undertaken in the exercise of their official

duties.

Included under the proposed "convention offences" is the commission of a terrorist act as contemplated in section 1 of the "Organisation of African Unity Convention on the Prevention and Combating of Terrorism" (1999). It is suggested to take out the section, as the definition of "terrorist act" is included in our suggested definition of "terrorist act".

We also suggestion the omission of (j) listed under "Convention Offences". (j) refers to the provision or collection of funds used to carry out a terrorist act. The issue of terrorist financing is dealt with in Chapter 4 of the proposed "Bill". It is regarded as sufficiently covered in the chapter, and it is hence unnecessary to list it as a convention offence as well.

The proposed "Bill" omits the issue of hoaxes involving noxious substances, other lethal devices or weapons of mass destruction. We thus recommend the inclusion of Article 12 of the South African "Anti-Terrorism Draft Bill" (2003).

Proposed Convention Offence (10):

(1) A person is guilty of an offence if he or she -

(a) places any substance or other thing in any place; or

(b) sends any substance or other thing from one place to another (by

post, rail or any other means whatever);

(c) with the intention of inducing in a person anywhere in the world a

belief that it is likely to be (or contain) a noxious substance or other

noxious thing or a lethal device or a weapon of mass destruction.

(2) A person is guilty of an offence if he or she communicates any information

which he or she knows or believes to be false with the intention of inducing in a

person anywhere in the world a belief that a noxious substance or other noxious

thing or a lethal device or a weapon of mass destruction is likely to be present

(whether at the time the information is communicated or later) in any place.

(3) A person guilty of an offence under this section is liable on conviction to

imprisonment for a period not exceeding 10 years or a fine or both.

(4) For the purposes of this section "substance" includes any biological agent

and any other natural or artificial substance (whatever its form, origin or method of

production).

(5) For a person to be guilty of an offence under this section it is not necessary

for him or her to have any particular person in mind as the person in whom he or she

intends to induce the belief in question.

(6) The court, in imposing a sentence on a person who has been convicted of an

offence under subsection (1), may order that person to reimburse any party incurring

expenses incident to any emergency or investigative response to that conduct, for

those expenses. A person ordered to make reimbursement under this subsection

shall be jointly and severally liable for such expenses with each other person, if any,

who is ordered to make reimbursement under this subsection for the same expenses.

An order of reimbursement under this subsection shall, for the purposes of

enforcement, be treated as a civil judgment.

2. (1) Any person who-

(a) commits or threatens to commit a terrorist act;

(b) conspires with any person to commit or bring about a terrorist act; or

(5) (a) Any person is guilty of an offence if he or she knowingly-

(7) (a) Any person is guilty of an offence if he or she-

(ii) wilfully obstructs a police officer in the exercise of those powers.

Part (1) and (2) broadly define the principal act. Clause (3) holds dangerous implications. Firstly it criminalises membership of a terrorist organisation. The issue of banning organisation is particularly within the South African political and historical context controversial. By banning organisations, the law forces offenders underground. From a practical and strategic vantage point, banning erases any trace of the organisation. The organisation will go underground which may hamper police and intelligence investigations. Notwithstanding that a name change may sideline or render ineffective the banning of such an organisation.

Secondly, the criminalisation of membership of terrorist organisations seems to ignore the current international climate and modus operandi, in which acts of terror occur. There is a tendency for terrorist groupings to move away from a strong centralised core to small and independent cells.

In terms of clause (3) it furthermore remains unclear how a person can renounce membership of a banned terrorist organisation. In some cases, a person may not know that the organisation has been banned. It is also not specified whether there is a grace period of person being able to renounce membership. Another question arises with regards to the issue of proof of membership of a terrorist organisation. The days of card-carrying members are long over. What are investigators and prosecutors looking out for? Symbols, flags or a favourable sentiment?

Learning from our very own history, South African lawmakers should stay clear of banning orders. One should not ignore that some so-called terrorist organisations have political factions with objectives that most South Africans would support (such as the struggle for national self-determination in the case of the Palestinians).

It is hence recommended that clause (3) is omitted altogether or be amended by adding the word "knowingly". The clause would read:

3. Any person who knowingly becomes or remains a member of a terrorist organisation after the date on which it is declared as such is guilty of an offence and liable on conviction to imprisonment for a period not exceeding 15 years.

The addition of this word would indicate that a person professes membership of an organisation in full knowledge that is a banned entity.

(5) (a) Any person is guilty of an offence if he or she knowingly-

With regards to clause (4) and (5) a similar argument can be made about the wrong focal level. The clauses address support for organisations, but no cognisance is taken of individual actors. Furthermore, there is no consideration of coercion. A person may be forced to support a terrorist entity.

As part of a broader strategy to counter terrorism through encouraging community support and participation Articles 2(2) and 2(5) are regarded as counter-productive in making it a criminal offence in a situation were it is essential to establish community support as a more effective instrument in countering terrorism. Cooperation and cohesion with community members are more important in countering the harbouring suspected "terrorists" through countering an "us versus them" approach.

(a) commits or threatens to commit a terrorist act;

(b) conspires with any person to commit or bring about a terrorist act; or

.

(5) (a) Any person is guilty of an offence if he or she knowingly-

(7) (a) Any person is guilty of an offence if he or she-

(ii) wilfully obstructs a police officer in the exercise of those powers.

(b) Any person convicted of an offence contemplated in paragraph (a) is liable to a fine, or imprisonment f or a period not exceeding six months.

In the current Bill only section 3 relates to the "UN Convention on the Prevention and Punishment of Crimes Against International Protected Persons".

Although its inclusion again re-affirms the suggestion to include the other Conventions to prevent confusion as Schedule 1(d) only refers to Article 1 of the particular Convention:

This clause should be left out. The reason for this is threefold. Firstly, it is not clear whether the offender commits an act against an internationally protected person, knowing his or her status. A petty thief may steal a diplomat's purse ignorant of the fact that the person he/she has robbed is an internationally protected person. There is thus a presumption of intention.

Secondly, this clause instructs the court how to analyse evidence. The court is under an obligation to treat the fact that a victim is an internationally protected person as an aggravating factor in passing sentence.

In terms of suggestions made on the particular Convention, it is regarded necessary to include "intent" in that the suspect knowingly targeted an "international protected person". In terms of being equal before the law the burden of proof should be on the prosecutor to provide sufficient evidence that the "protected person" was not simply at the wrong place and time when the crime was committed. This will also be made easier with including Article of the Convention (currently excluded).

(b) the offence was committed-

(i) in the territory of the Republic;

(iii) by a citizen of the Republic or a person ordinarily resident in the Republic;

(c) the evidence reveals any other basis recognised by law.

(a) order an investigation to be carried out in respect of that allegation;

(a) fact that the person is in custody; and

(b) circumstances that justify the person's detention.

Matters of jurisdiction with regards to terrorist investigations could be tricky. There are five bases of jurisdiction in International Law:

• Territorial jurisdiction
• Active Personality
• Passive Personality
• Crimes against the State
• Universal Jurisdiction

In terms of jurisdiction in general there are 5 different possibilities.

• The first is jurisdiction that is based on territory. What this means is that a state would have jurisdiction over any crime committed in its territory, which would include its property overseas, or aircraft or ships registered in that country. This is usually the most important type of jurisdiction found in countries with an adversarial Anglo-American Type of law, although the inquisitorial continental type systems also recognise this type of jurisdiction.
• The second is based on the person of the accused. If that person is a citizen of the specific country, or normally resident in that country, that country would have jurisdiction, no matter where the crime was committed. This type of jurisdiction is especially important for inquisitorial legal systems like the continental European systems. This type of jurisdiction is also called active personality.
• The third is also based on the person of the victim of the crime. Some countries, like the United States for example, ascertain that they have jurisdiction over persons who commit crimes against their citizens outside of the territory of the United States. This is also called passive personality jurisdiction.
• The fourth is crimes against the state itself. This would include crimes like forgery where official government documents like passports or perhaps the money of the country is produced illegally (forged). It could also involve the damaging or theft of other government property outside of its territory.
• The fifth is universal jurisdiction. This concept involves crimes of such a revolting nature that the nature of the crime itself forces all states to gain jurisdiction over these crimes and to prosecute the persons responsible for these crimes. This would include acts of terrorism, crimes against humanity and genocide.

The above provisions (a) to (c) incorporate all bases of jurisdiction. Suspects and their defence could abuse loopholes provided by the different types.

It is suggested to include (a)

(a) the accused was arrested in the territory of the Republic, or in its territorial waters or on board a ship or aircraft registered in the Republic, or

in (b) or to omit the word "or" . It otherwise carries the presumption that an act of terror falls either within universal jurisdiction or the other types of jurisdiction. The question arising here is whether or not all acts of terror should be considered crimes of universal jurisdiction, bearing in mind that victims of terror attacks often bear an array of nationalities. (c) is unnecessary as all types of jurisdiction have been covered in (a) and (b).

The current proposed Bill exclude provisions for formally providing for "mutual legal assistance" as mandated under Resolution 1373. Although Southern Africa presented though the SACD "Protocol on Extradition" and "Protocol on Mutual Legal Assistance in Criminal Matters" for the implementation of requirements set by Resolution 1373. Despite this step additional work is required towards implementation. It is therefore suggested that South Africa in this Bill should make provision for the following:

Despite reference to "Jurisdiction" the Bill excluded "Extradition". Despite the need for specific attention the following argument needs consideration as South Africa is also a member of SADC: Considering that under Resolution 1373 sub-paragraph 3(g) countries must ensure that claims of political motivation are not recognized as grounds for refusing requests for the extradition of suspected terrorists:

"Ensure, in conformity with international law, that refugee status...

In contrast SADC Protocol on Extradition stipulated that under Article 4 "Mandatory Grounds for Refusal to Extradite - that Extradition shall be refused (inter alia): "If the offence for which extradition is required is of a political nature..."

Provision should therefore be made for the following:

Despite sensitivity towards struggles towards liberation and against occupation, states needs to guard that these sympathies be used against counter-terrorism initiatives. In other words commemorate it but guard against it being used as a loophole.

5. Notwithstanding anything to the contrary in any law, where an accused is in custody for an offence under this Act, the provisions relating to bail contained in the Criminal Procedure Act, 1977 (Act No. 51 of 1977), apply as if the accused were charged with an offence referred to in Schedule 6 to that Act.

The proposed "Bill" makes provision for less serious offences than listed under Schedule 6 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977)

One might argue that the proposed Bill also make provision for less serious offences, for example under: (7)(a) Any person is guilty of an offence if he or she-

(ii) wilfully obstructs a police officer in the exercise of those powers.

(b) Any person convicted of an offence contemplated in paragraph (a) is liable to a fine, or imprisonment for a period not exceeding six months

questioning whether it is appropriate to refer to Schedule 6 offences in bail applications, making it almost impossible to grant bail?

However, not all of the offences under this act are of such a serious nature as to warrant this stricter procedure. In terms of article 2 (7)(a) of this act persons who fail to comply with instructions from police officers, or who obstruct police officers in the exercise of their duty are guilty of an offence for which a punishment of not more than 6 months imprisonment is stipulated. Surely this offence would not merit bail in terms of schedule 6 of the CPA?

It is suggested that conditions for bail should be dealt with on a case-by-case approach considering the seriousness of the offence, the threat presented by the suspect and the conviction in a guilty verdict.

Stop and search powers are presented under the South African Police Service Act and should be included in the Bill to acknowledge that the Police on sufficient suspicion could perform these duties, probably under a crime-prevention strategy.

In terms of this requirement, the question must be asked whether it should be necessary for a policeman to actually have to obtain a search warrant from a judge to stop as well as search vehicles and persons in light of article 13 (8) of the South African Police Services Act (1995). In terms of article 13 (8)(a) of Act the permission to set up roadblocks can be given by the National or Provincial Commissioner. In terms of article 13 (8)(d) such roadblocks can be set up without such permission if it is (reasonably) felt that the delay in waiting for the permission will defeat the purpose of the roadblock. Search warrants still have to be issued by judges or magistrates. But, in terms of roadblocks done in terms of article 13 (8)(d) such searches can be done provided that the persons searched is informed of the reason for searching them or their vehicles (article 13 (8)(g)(ii) of the act).

In addition it is also accepted as a balancing of power instrument to include a Judge to issue a warrant to stop and search a vehicle and person for 10 days as presented in the Bill:

(a) an offence in terms of this Act has been committed;

(4) An order made under subsection (3) may-

(a) allow the examination, on oath or affirmation, of a person named in the order;

(d) designate another judge as the judge before whom the examination is to take place; and

(5) A judge may vary the terms and conditions of an order for the gathering of information.

There exist justifiable concerns about the rights of the individual and the need to guard against arbitrary arrest and detention. This should be weight against the particular circumstances and the immediate threat presented by acts of terrorism. In contrast to a set timeframe (10 days) to stop and search a person of vehicle with the inclusion of a Judge no time limit is set for investigative hearings. Despite the safeguard of the involvement of a Judge, detention for investigative hearings should be set for short periods (36 to 48 hours that might be extended under special circumstances to 5 days).

In addition, although a judge is involved in the investigative hearing might excuse himself/herself from the actual trail proceedings no formal provision is made that the judge involved in the investigative hearing should not be the presiding judge in the trail.

It is suggested that a distinction should be made between two categories of investigative hearings:

1. Investigative hearing in preventing acts of terrorism (pro-active) - If the aim of the investigative hearing is to prevent an act of terrorism and time is of the essence the reasoning for an investigative hearing is clear and acceptable as presented in the Bill.
2. Investigative hearing in investigating and/or building a case (retro-active) - If an investigative hearing is used with the intention of building a case in reaction to an act associated with terrorism without a time constrain, clearer justifications should be presented in justifying the Court's involvement. Although the aim of investigative hearings will be to built a stronger case against primary suspects (considering that information revealed during proceedings cannot be used against the person involved) the process lend itself to be considered as a "fishing" for information due to a lack in evidence and information on the part of counter ineffective intelligence capabilities or unconfirmed roomers.

(a) no answer given or thing produced; and

For the purposes of this discussion Section 205 of the Criminal Procedure Act No. 51 of 1977 has been included:

From a journalistic perspective, Article 11 to 13 may infringe on reporters' ability to work in dangerous environments. It furthermore may temper with freedom and protection of the media. Two recent court battles deal with the issuing of subpoena to journalists to testify as witnesses in trials.

Rashaad Staggie, the former co-leader of the Hard Livings gang, was shot and set alight by a lynch mob during a march on his Salt River home in Cape Town on August 4, 1996. Pagad national co-ordinator Abdus-Salaam Ebrahim, security chief Salie Abader and three others were accused of conspiring to kill Staggie in Salt River. They have pleaded not guilty to charges of public violence, attempted murder and murder. They have also pleaded not guilty to alternative charges of inciting violence and inciting violence.

"Cape Times" photojournalist Benny Gool, who witnessed and recorded Staggie's murder subsequently was subpoenaed. "Die Burger's" editor Arie Rousseau also was issued a subpoena to be witness in the Staggie murder trial. Benny Gool and fellow journalists argued that the subpoenaing of journalists may fuel the perception among members of the public that journalists act as agents of the police. Considering that seven state witnesses in cases against Pagad had been killed since May 1998, the subpoena also placed his life in danger. Cape High Court Judge Foxcroft declined to issue a warrant for the arrest of Gool, who failed to arrive to testify in trial of the Pagad members. Back then, omissions and inadequacies on the subpoena were cited for this decision.

On an international level, the subpoena against former "Washington Post" journalist Johnathan Randal to testify at a United Nations International Criminal Tribunal for the former Yugoslavia in The Hague caused an outcry amongst international news agencies. Randal was issued a subpoena in February 2002 to appear at the trial of Radoslav Brdjanin, a former deputy prime minister of the Bosnian Serb government, who was accused of killing, torturing or expelling from their homes more than 100 000 non-Serbs during the 1992-1995 war in Bosnia. In a Washington Post article published on 11 February 1993, Randal quoted Brdjanin as advocating the expulsion of Croats and Muslims. Brdjanin's defence counsel challenged the accuracy of parts of the article during the trial. Subsequently, the prosecution sought Randal's testimony to defend it.

Randal refused to testify. His attorneys argued that journalists have qualified immunity from testifying for reasons of personal safety and freedom of the press. A lower court at the tribunal ruled in June 2002 that Randal's testimony was "pertinent" and that he would have to take the stand. Randal's attorneys appealed that decision. In December 2002, an appeals panel at the tribunal upheld Randal's argument that the personal safety and independence of journalist could be jeopardised if they were required to give evidence in such trials. The judges stated that testimony from war correspondents had to be "direct and important" to the core issues in a case and had to convey information that could not reasonably be obtained from other sources.

Journalists are divided over the issue, with some saying immunity is needed whilst others say they have a moral obligation to testify. The British Broadcasting Corporation's former Belgrade correspondent, Jacky Rowland, testified against Serb leader Slobodan Milosevic at the same war crimes tribunal in The Hague. She said that she did not believe that she endangered her life by testifying.

Going back to the proposed anti-terrorism legislation, it is suggested to make a clear distinction between preventative and investigative trials (refer back to the debate on "Investigative Hearings"). In terms of a journalist's code of ethics, he/she is likely to volunteer information that may lead to the prevention of an act of terror or possible loss of life.

In terms of investigative trials, the above examples hold. Innvestigators may argue that media practicioners have created evidence that

(a) claimed responsibility for a terrorist act; or

(b) committed a terrorist act; or

(c) endangered the security or territorial integrity of the Republic or another country.

(b) the grounds for such declaration; and

(a) revoking the interdict; and

One of the key elements of United Nations Resolution 1373 is the blocking of terrorist financing. Paragraph 1(d) stipulates:

"Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons".

For the prohibition of making funds available as presented in UN Resolution 1373 it is regarded as a useful instrument to present a list of individuals and groups associated with terrorism (or entities as suggested in the above-mentioned discussion). Through this list it will not be necessary to establish a link to terrorist acts in each individual case.

The banning of organizations should however not be regarded as the primary focus, as currently presented under 14(1) and (2) in the strategy to counter and prevent acts of terrorism.

Especially in taking note that Resolution 1373 acknowledges the growing role of individuals. Previous historic examples provided that specific acts directed against terrorist organizations and its members is counter-productive, it even lend itself to the justification for its activities. We therefore would suggest a shift in focus from organizations to the activities of individuals for the following reasons:

1. As a guard against perceptions, especially since Islamic organizations predominates the list, while other groups/organizations with other ideologies are excluded. Questioning who would determine whether an organization should be classified as a "terrorist organization", individual countries should guard against "adopting" without acknowledging domestic and regional conditions, thus becoming an instrument of US foreign policy.
2. Despite the high profile attention names, such as al-Qaeda, receives the current trend in the organization and structuring of terror initiatives shifted from well-structured centralized organizations to a more decentralized structuring in which individuals and informal communication forms the basis. Individuals associated with terrorism no longer carry membership cards, making it increasingly difficult to differentiate between active members and supporters. The latter seldom actively commit acts of terrorism, but by targeting these individuals, governments will play into the hands of the former category. In other words the question could be asked in terms of what category will investigators and state-actors classify between members and supporters, particular considering that the onus rest on the "suspect" to prove that he/she is not a member of a "terrorist organization". In other words, whether they are part of a larger organization or not - the focus in legal terms needs also to shift to decentralization.
3. The question of membership, classifying it an offence to be an informal member or for a person to take steps to become a member of the "proscribed organization" could seriously question basic human rights, in particular freedom of association and speech.
4. In addition to the threat presented by individuals a counter-strategy (in focussing on organizations) may include a "name-change", the use of bona fide cover organizations and NGO's or a split between overt and covert structures.

It will also be difficult to prove that "a member of the organization has committed, or is committing, a terrorist act on behalf of the organization" especially when the basis of the "organization" is a broader ideal.

It is suggested that instead of banning an organization, an "entity" could be listed, with the following strategic consequences:

• It will broaden counter-terrorism initiatives while avoiding sensitive connotations towards the term "ban". Enabling investigations without "targeting" specific groups.
• Rather issue an "order to investigate" - Still acknowledging the Security Council's list of suspected groups and individuals - investigations and counter-actions could still continue (for example, the freezing of assets) without indiscriminately arrest or "target" suspected "members" without clearly qualifying support. In other words, instead of enabling an investigation of individuals associated with terrorism (without acknowledging that within an organization not all its members are equally involved in illegal activities) "banning" would imply that all its members are guilty (by association) - this step will hamper investigations. Instead of encouraging "members" or other individuals (with information) to come forward without the fear of being prosecuted the opposite will be achieved.

The following sections relate to the issue of terrorist financing.

(2) For the purposes of subsection (1)-

From what could be gathered from United Nations the primary counter-terrorism strategy is aimed at countering the financing of terrorism initiatives. Despite provisions under the Prevention of Organised Crime Act as the proposed instrument in facilitating proceedings against the property of "terrorist organisations" distinctions need to be made between terrorism and organised crime. Funding for terrorism, unlike for criminal organisations may also include income derived from legitimate sources or from a combination of lawful and unlawful sources. In other words, funding from legal sources is a key component in differentiating between terrorism and traditional criminal organisations. In contrast to other forms of transnational organized crime, non-profit organizations that engages in raising and distributing funds for charitable, religious, cultural, educational, social and/or other legitimate reasons are being used in the financing of acts of terrorism.

Countering this initiative in providing prove of intent in the financing of activities associated with terrorism is more difficult to prove and to counter. Despite the sensitive nature, fundraising initiatives could be divided into two categories, each with its own structure, modus operandi and counter-initiatives:

The actual, intentional financing of terrorism is not easy to prove and even more difficult not to create a negative sentiment, particularly since funds might be collected without the knowledge of the donors or even the administrators of the organization that collected funds will be used in the facilitation of acts of terrorism. Despite financial support other logistical support could also be used. Realizing the vital role of non-profit organizations the solution would not be found in the banning of organizations or by freezing the assets of suspected organizations, but rather through creating an atmosphere of mutual trust between government, the organization, people who support the charity and those who benefit from the charity. In promoting transparency and accountability, government oversight should be flexible, effective and proportional to the risk of abuse. Therefore excluding smaller, local based organizations whose function it is to redistribute resources domestically. Again reaffirming the sensitivity surrounding the specific "targeting" of specific religion-based organizations governments need to work on a system of oversight that will not target the organization but rather individuals. This will only be possible through the sharing of information. It is therefore suggested that a program should be formulated that could verify the activities of that particular non-profit organization, through asking the following suggested questions:

1. The aim and objectives of the organization as a standard in determining whether the projects were actually carried out.
2. Determine whether the beneficiaries are real and not a cover.
3. Determine whether the intended beneficiates received the funds as stated by the organization.
4. Establish a system of accountability in ensuring that all funds and assets are accounted for.

History however proved that international non-profit organizations provide the necessary loopholes for individuals associated with acts of terrorism. In other words, the question of jurisdiction is used to the advantage of furthering activities associated with terrorism. In addition to the involvement of governments, law enforcement communities and other financial regulatory authorities the establishment and involvement of the private sector through "watchdog" committees are suggested. Although it should not be enforced, making it an offence it community members do not come forward with information, community support is needed, if not essential. Those individuals who contribute to non-governmental organizations are entitled to feedback and should be encouraged to establish oversight committees within non-governmental organizations. In being part of the oversight, government involvement will not be regarded as harassment, countering an "us versus them" feeling as currently perceived. In establishing a working relationship based on trust government officials will be granted more access through countering misperceptions.

It is suggested that the following provision should be included in countering the abuse of charities for the financing of terrorism and in protecting legitimate charities that function within its set framework:

Although legitimate, no control exists making oversight almost impossible. Commitment and involvement from the particular communities needs to form the backbone of countering the use of funds collected in informal fundraising initiatives to be used in other ways as initially intended. Through encouraging communities to participate in more structured (better controlled) humanitarian initiatives - with visible prove of its effectiveness - informal initiatives will decrease.

Although similar tactics are used by individuals associated with terrorism and organized crime, with reference to money laundering, the smuggling of firearms and the use of narcotics, endangered species and the smuggling of precious stones, a different approach is suggested in the countering of terrorism. Due to its sensitive nature whether political or religious a different approach is needed to guarantee that governmental actions do not breed terrorism. In working and providing the best possible medium- to long-term solution to the threat presented by terrorism the following strategic and tactical approaches are suggested:

Holistic Approach - A holistic approach is needed in preventing individuals and groups to resort to violence as a form of political and/or social dissent. In classical terms violence and terrorism is only a manifestation of a larger deeper-lying political and/or social problem. Tolerance, socio-economic upliftment and understanding will not only guard against the formation of perceptions and misconceptions it will counter the breeding ground for terrorism. Although the creation of an utopia is beyond the reach of any single government a strategic approach is suggested:

Strategic Approach - Balance between the threat (and the strategy adopted by terrorist elements) and legislation - In strategic terms it is suggested that legislation should provide for "loopholes".

In enforcing strict measures, individuals associated with terrorism are "forced" to adopt new strategies to counter legislation and investigation techniques, making it increasingly difficult to prevent and investigate terrorism. It is rather suggested that a fine balance exists between strategy and legislation. Individuals or organizations involved in acts associated with terrorism will always find a way - it is rather suggested to keep taps on their activities than "drive" them underground.

Universal Jurisdiction - Due to the international nature of terrorism, in particular the global reach of terrorist financing, consideration should be given to provide for universal jurisdiction within the International Criminal Court over relevant offences.

RESOLUTION 1373 Requirements: With reference to bilateral and multilateral instruments for cooperation, work still needs to be done on the full implementation of the "mutual legal assistance" and "extradition" obligations. Southern Africa presented though the SACD "Protocol on Extradition" and "Protocol on Mutual Legal Assistance in Criminal Matters" for the implementation of requirements set by Resolution 1373. Despite this step additional work is required towards implementation. Considering that under Resolution 1373 sub-paragraph 3(g) countries must ensure that claims of political motivation are not recognized as grounds for refusing requests for the extradition of suspected terrorists:

"Ensure, in conformity with international law, that refugee status...

In contrast SADC Protocol on Extradition stipulated that under Article 4 "Mandatory Grounds for Refusal to Extradite - that Extradition shall be refused (inter alia): "If the offence for which extradition is required is of a political nature..."

Provision should therefore be made for the following:

Despite sensitivity towards struggles towards liberation and against occupation, states needs to guard that these sympathies be used against counter-terrorism initiatives. In other words commemorate it but guard against it being used as a loophole.

A common perception exists that counter-terrorism legislation is a vital necessity in response to a threat and to restore public safety. On the contrary it resulted in public outcry and in forcing the public to come forward with information it is driving them away. South Africa should in particular guard against this development, especially since the South African Police Service in just in the process of restoring its negative image in restoring confidence. By making the community responsible for its own safety, public frustration (that counter public participation) will be countered that will on the medium and long-term strengthen democratic principles of participation. These instruments should be considered as the ultimate strategy in countering terrorism in that it undermines support terrorists receives, since support primary derives from "playing" on the sentiment that government and democracy failed the particular segment of the community.

In other words, a community-level counter terrorism policy/strategy needs urgent consideration that would emphasis community responsibility for countering terrorism. It is unfortunate that even a very "liberal" "Anti-Terrorism" Bill will be accepted with caution and suspicion. Instead of using government and the law enforcement to drive the counter-terrorism strategy, a more effective approach will include constant consultation with the public through non-governmental organizations and the media to inform ordinary citizens of the dangers of terrorism, the modus operandi of individuals and groups associated with terrorism as well as its reach. Through knowledge ordinary citizens will feel more responsible, and be the eyes and ears of more formal counter-terrorism strategies, without being forced.

Legislators wThe development of any effective anti-terrorism legislation needs to tak consider the present national, regional and international milieu in which acts of terror occur. Since the 1960s, the phenomenon of terrorism has reflected different developmental stages in its manifestation, modus operandi, target selection and objectives. Various regional and international counter-terrorism strategies to date have failed to contain terrorism. Increasing globalization not only facilitates transnational terrorism it also reflects the need for the international community to commit to a transnational counter-terrorism strategy.

It is important that any process adopted in countering terrorism strikes an appropriate balance between effective law enforcement, including according protections to national security and other secure information and the rights of individuals. Any Bill should be in reaction to the current and future threat, applying a strategic approach that would allow counter measures, through investigations and convictions within tactical considerations. In order to start with a national strategy and policy against terrorism, the first step would be to complete a realistic threat analysis, based upon an analysis of terrorist motivations, structuring, modus operandi and target selection. Terrorists have all the advantages; they can choose the time, place, means and an almost infinite variety of targets. In loosing sight of the movement and operations of individual associated with terrorism through the application of strict measures, the most sophisticated counter-terrorism measures will be ineffective. The best strategy against terrorism will be to win the hearts and minds of "potential supporters" - whether in principle or actual supporters - that will not be achieved by forcing compliance to a legal instrument, but rather through sentiment and community commitment, responsibility and oversight.