ATTENTION: MR. N LALA
Dear Sir RE: ANTI-TERRORISM BILL B12-03 ___________________________________________________
SUBMISSIONS ON THE ANTI-TERRORISM BILL
___________________________________________________
1. The MLA expresses its sincere appreciation to our Government for allowing the public the opportunity of making submissions to the Anti-terrorism Bill. We hope and trust that the criticism of the Bill contained herein will not be interpretated in any way to be an attack on our government‘s integrity.
2. The Bill, as is apparent from a reading of its provisions, has both substantive and procedural provisions.
The substantive provision relates to the criminalisation of terrorist acts and the banning of terrorist organisations, the definition of terrorist acts and terrorist organisations, and the criminalisation of conduct of the perpetrators, accomplices, conspirators and broadly those who have common purpose with or who assist terrorists or terrorist organisations.
The procedural content of the Bill relates to the arrest and detention of terrorists, the power of the police to investigate, search and seize, obtain warrants and so on. This paper does not examine the procedural components of the Bill. Much of the procedural provisions of the Bill have been the subject to other critiques and a number of earlier complaints have in fact been remedied in the latest draft. The procedural aspects of the Bill are thus not dealt with in this paper.
KEY FEATURES OF THE SUBSTANTIVE COMPONENTS OF THE BILL
The Bill criminalises the commitment of terrorist acts. A terrorist act is defined as "an unlawful act, committed in or outside the Republic - (a) which is a convention offence; or
(b) which is likely to intimidate the public or a segment of the public.".
Section 2(1) and (2) criminalises the conduct of the actual perpetrators, their conspirers, associates and those who have common purpose. Section 2(2) criminalises those who facilitate the commission of a terrorist act.
The Bill also criminalises membership of terrorist organisations. A terrorist organisation is defined as an organisation declared as such under Section 14. In terms of Section 14, the Minister may declare a terrorist organisation by:
adopting the international terrorist organisation list adopted by the security council of the United Nations. If the Minister adopts such list he is not required to give a hearing before adopting the list as section 14(3) is not applicable to this situation,
the Minister may declare an organisation to be a terrorist organisation by notice in the Gazette if there are reasonable grounds for believing that the organisation or any of its members on its behalf has claimed responsibility for a terrorist act or has committed a terrorist act or has endangered the security or territorial integrity of the Republic or another country. Prior to making such a declaration, the Minister must follow the procedural requirements set out in Section 14(3). THE REACH OF THE BILL
The Bill is far-reaching. As appears from what is set out above, the actual perpetrators of terrorist acts fall within the net. But the reach is much wider. It includes conspirers, accessories those with a common purpose and in a very broad manner those who assist or support terrorists or terrorist organisations.
The Bill stipulates that not only are accessories co-accomplices leaders and perpetrators built within its net but also :
those who "knowingly (does) anything to support a terrorist organisation economically or in any other way" (Section 2(4)); and
those who knowingly :
harbors or fails to report to the authorities the presence of a member of a terrorist organisation;
furnishes weapons, food, drink, transport or clothing to a member of a terrorist organisation;
receives any benefit from a terrorist organisation or any member of such an organisation;
carries out any instruction or request by a terrorist organisation or any member of such an organisation on its behalf.
The sanctions provided for in the Bill range from life imprisonment in the case of actual perpetrators and conspirators to 15 years in the case of those who assist, harbor or support. THE BROADNESS OF THE DEFINITION Terrorist Acts
The definition of a terrorist act is very broad. It includes an unlawful act which is likely to intimidate the public or a segment of the public. It would for instance include any unlawful act of intimidation for whatever purpose political or non-political. Employees who for instance strike unlawfully and thereby intimidate their employer may conceivably be covered.
An examination of Schedule 1 which sets out the convention offences (which are included in the definition of a terrorist act) provide for broad-ranging offences including committing a terrorist act as is contemplated in Section 1 of the Organisation of African Unity Convention of the Prevention and Combatting of Terrorism and providing or collecting funds to be used to carry out terrorist acts as is contemplated in article of the International Convention on the Suppression of the Financing of Terrorism.
TERRORIST ORGANISATION
The power to declare an organisation a terrorist organisation given to the Minister is in itself also far-reaching. As mentioned the Minister may rely upon a United Nations Security Council Declaration or in the broadest category may if he has reason to believe that an organisation "has endangered the security or territorial integrity of the Republic or another country" declare the organisation to be terrorist organisation. What is important in this far-reaching power is the Minister’s ability to declare organisations who are opposed to other countries as terrorist organisations. The power therefore to declare an organisation a terrorist organisation is not restricted to organisations that jeopardises the security of the Republic. It extends to any organisation jeopardising the territorial integrity of any other country. THE FAILURE TO COMBAT STATE TERRORISM
The old apartheid government committed many atrocities against its citizens. People were detained without trial, beaten and killed. The history of this country’s experience need not be traversed. In a broad sense many of us will concur that the acts of the old apartheid government were terrorist acts. They clearly intimidated the public and were meant to crush opposition. Despite that, the acts of the old apartheid government were not in the words of the definition unlawful as they had been sanctioned by statute. Moral or immoral, the fact that a statute authorised the act meant that it was not unlawful.
However the acts of those who opposed the government, however moral, were unlawful. It was unlawful for instance to be a member of the ANC and PAC. These organisations were banned under the Internal Security Act and people were put into jail for their mere membership of such organisations. (See for instance S v Xoswa & Others 1965 (1) SA 267 (C)). This despite the fact that the majority of us agree that it was noble and praiseworthy to be a member of the ANC and PAC which were liberation movements in the true sense.
Those who financed the government’s activities, who for example sold arms to the government which arms were used to suppress liberation movements acted lawfully despite the fact that those very arms were used to kill citizens. Their acts in financing or entering into commercial transactions with the government were legitimised as ordinary commercial contracts. Yet the acts of those who generously contributed to organisations like the ANC and PAC and who funded them in the belief that they were acting morally, were prosecuted. For instance in S v Aronstein 1967 (3) SA 371 (A), the accused was sentenced to four years’ imprisonment for financially assisting the South African Communist Party. Aronstein was viewed as a terrorist, his funding of the SACP was a terrorist act.
Many view George Bush (from a moral perspective) as a terrorist. Many view Ariel Sharon as a terrorist. Many view Tony Blair as a terrorist. Most of us believe that is inappropriate for Denel to enter into commercial transactions, to finance the supply of arms to the United States and Britain which arms are used to kill innocent civilians. Most reasonable people would concur that George Bush and Tony Blair are guilty of murdering innocent civilians. Even under our law, cases of collateral damage victims or friendly fire victims would constitute murder. Our law does not require dolus directus for murder to be proved. It is sufficient if one carries out an act and foreseeing its consequence continues to do so recklessly. In that case the law will say that one intended to kill another. To translate this into practical terms, it is quite foreseeable that if somebody drops a bomb in the middle of a city innocent victims will die. In legal terms one would say that the person who dropped the bomb in the city foreseeing that an innocent victim would die but reckless to that consequence continues to do so had the intention of murdering the innocent victim. This is called dolus eventualis in our law.
Most reasonable people would support liberation movements in Palestine. Most reasonable people would agree that the Israeli State is worse or if not the same as the apartheid South African State. Most people would agree that is morally praiseworthy for a person to take up arms against such a State in self defence. Most reasonable people would also agree that to provide financial contributions to liberation movements in the true sense is a laudable and morally praiseworthy act. The Anti-Terrorism Bill is flawed because it protects the terrorist acts (in a broad sense of the word) of States and State officials, their supports, conspirers and assistants. The Bill does not treat George Bush and his camp (including his supporters and assistants) on the same footing as a member of a liberation movement and its supports.
To provide the American Government with arms, to enter into commercial transactions with it and to supply arms to it is not criminalised under the Bill despite the fact that all know that those arms would be used to inter alia kill innocent people. To supply arms, financial contributions and the like to the Israeli State is not a terrorist act and not criminalised under the Bill because such transactions are not terrorist acts in accordance with the definition because they are not unlawful. Yet on the other hand to supply financial assistance to organisations which advance the struggle for the liberation of the Palestian people and others listed on the UN Terrorist List are criminalised.
To give George Bush water, food, drink, transport or clothing is not criminalised. To give a member of the IRA food, drink, transport or clothing is criminalised and one would go to jail for up to 15 years. Nobody can give Bin Laden water, not his parents, spouse or children.
To receive benefits from the State of Israel is not a criminal act. To receive benefits from a liberation movement that has been declared a terrorist organisation is.
To carry out an instruction or request of George Bush or Ariel Sharon or Tony Blair is not criminalised. To carry out an instruction of somebody who is a part of a terrorist organisation, no matter how moral or praiseworthy that instruction is, is prohibited.
The Bill is inherently inconsistent. It prevents the articulation of the true debate : who are terrorists? It inherently accepts that States, State organisations and members of State cannot commit terrorist acts. It is in this respect fundamentally flawed. In fact the Bill protects foreign States and its members. This is evident from a number of its provisions. The definition of a terrorist act for instance incorporates any act against an internationally protected person (Schedule 1(d)). The Minister, as set out above, may declare an organisation a terrorist organisation if there are reasonable grounds for believing that it has endangered the security or territorial integrity of any country including the Republic? Section 3 is explicit "whenever a person is convicted of an offence involving an act committed against the person or property of an internationally protected person the Court must treat the fact that the victim is an internationally protected person as an aggravating factor in passing sentence". An assailant of George Bush is in trouble. An assailant of Osama Bin Laden is protected. An assailant of Ariel Sharon is in trouble. An assailant of those who oppose him are protected. It is submitted that the Bill is inherently flawed in this respect and is inequitable.
THE BURDEN OF PROOF : ELIMINATING OPPOSITION
Is the Bill really needed?
Let us take the case of a person who plants a bomb in a market square and kills innocent civilians. Does the law not provide sufficient protection to such persons already? We would suggest that it does. Any person who plants a bomb in a market square is guilty of murder and can be tried in terms of the normal common law principles.
The legislature has already enacted legistation to implement its international obligations, for example, the Aviaition Act 74 of 1962 and the Civil Aviation Offence Act 10 of 1972 (as amended).
Similarly any person who intimidates members of the public commits a criminal offence under the common law and can be convicted. Any person who hijacks a plane or kidnaps a dignitary can be convicted in terms of the kidnapping laws of the country or the hijacking laws of the country. Why then is the present Bill needed?
Traditionally States have used terrorist legislation to eliminate opposition movements and to enable the State in doing so to act:
lawfully in terms of act of Parliament no matter how immoral the acts are, or
to make it easier to prove a case against the opponent, and
to deny human rights
Usually, for the State to prove a criminal case against a person, the State must prove every element of the offence beyond reasonable doubt. For instance where a person is accused of murder, the State must prove that the person beyond reasonable doubt had the intention of killing, and committed the act of killing. Each element of the offence must be proved beyond reasonable doubt.
Anti-Terrorist legislation is designed to make the State’s case easier against its opponents. We only need to look at the case of Xoswa and many others which appear in our law reports to show how this works. Xoswa is convicted of being a member of the ANC a terrorist organisation. The ANC is declared a terrorist organisation by an Act of the Minister. The mere fact that X is a member of the ANC means that he has committed a criminal offence. The State’s case is easy to prove. All the State needs to do is to produce the Minister’s Gazette to show that the organisation is declared a terrorist organisation and that X is a member. X then is liable to conviction if he knew the organisation was banned. X however cannot raise the argument in Court that the organisation is in fact not a terrorist organisation. Nor does the State have to prove beyond a reasonable doubt that the organisation was a terrorist organisation in the true sense. The State’s case to incarcerate X is made easier by the Minister’s declaration.
This danger is inherent in the present Bill also. The Minister promulgating organisations as terrorist organisations can act simply by relying on the United Nations Resolution or on reasonable cause. Where the Minister acts in either of these capacities, any person who is a member of that organisation or who assists somebody from that organisation or who finances its activities despite a moral belief that that is right, will be convicted in a similar manner to Xoswa. That person cannot raise in Court the legitimacy of the organisation’s activities and the immoral acts of the Government that organisation opposes. The true issue then i.e who is the terrorist and who is the freedom fighter is not ventilated in a Court. The liberation movement in this scenario is always the terrorist if it is declared as such, the State is never the terrorist. The Government does not have to prove beyond a reasonable that the State is acting unlawfully because inherently it always acts lawfully as a State because it has one or other piece of legislation to back its activities.
The power to declare organisations as terrorist organisations operates retrospectively. The UN may have declared an organisation a terrorist organisation a few years back. If the Minister relies on that list, the legislation would apply retrospectively and offend a general principle of South African law.
Charitable organisations must be concerned. An organisation may have the view that the funding of a liberation movement internationally is morally praiseworthy because the Government who it opposes commits acts of terrorism against its citizens and is oppressive. This activity is now criminalised.
The criminalisation of activities is given impetus by an inducement on the part of the public to whistle blow. Whistle blowing is entrenched in the Act and whistle blowers are in fact given protection. This could lead to the following scenario:
Organisation A declares publicly that it has donated money to country B. Most people believe that country B is an oppressive dictatorship committing acts of terror against its citizens. Organisation A’s donation to country B is not criminalised. Nothing can be done against A although A intentionally donates the money to the organisation for it to purchase arms against its citizens. In the same example Organisation A hopes that country B will use the money to buys arms to crush Organisation C because Organisation A hates Organisation C. Organisation A knows that other institutions such as D contribute money in South Africa to Organisation C. Nothing stops Organisation A from levelling charges against such contributors who contribute monies to Organisation C. Again the impetus is given to protect governments against its citizen no matter how immoral they act.
SPECIFIC PROVISIONS
It has already been mentioned that the definition of terrorist act is very broad. It is unduly broad and embraces any unlawful act which is likely to intimidate the public or segment of the public. The definition is problematic and vague.
In addition it has already been mentioned that the reach of the Bill is too wide. To criminalise a person’s act in giving somebody water no matter who he is or food or drink or transport or clothing is simply morally unjustifiable. The mother, father, child, and the prison warder are all involved. The Constitution itself for instance stipulates that every person has the right to basic nutrition.
Thirdly the discretion given to the Minister to promulgate an organisation as a terrorist organisation is problematic. It prevents proper adjudication of the true issues i.e. whether in fact that organisation is a liberation movement and whether in fact its activities are justified having regard to the oppressive practices of the government it seeks to oppose. It also prevents the accused from raising a defence or makes it easier for the State to prove its case against a purported perpetrator.
THE RIGHT TO A HEARING
In terms of Section 14(2), the Minister may declare an organisation to be a terrorist organisation by notice in the Gazette. The prospective organisation or any member thereof may within 60 days apply to the High Court for an interdict.
The attempts to ensure audi alteram partem is we suggest impractical. This applies both locally and internationally.
It is rare that organisations are appraised of what is contained in the Government Gazette. Also this procedure will not apply to a South African organisation on the UN list as the procedure envisaged does not apply to Section 14 (1).
It is clear that the Minister is not restricted geographically when declaring an organisation a terrorist organisation under this section and therefore he may declare an international and local organisation a terrorist organisation under this section.
Internationally if Mr X forms an organisation and the members of that organisation are in hiding somewhere in the district in Panjas in India, how would they ever get notice of the Minister’s intention to declare that organisation a terrorist organisation.
Only the organisation and its members must have locus standi to challenge. What is the likelihood of any person opposing getting on a plane flying to South Africa to oppose the particular application? Will he be given diplomatic immunity when he comes to South Africa? What are the chances of him surviving the plane ride and the actual Court appearance?
The same can be said of a prospective organisation locally. The Minister may use the provisions of Section 14(3) as a mechanism to identify those who are behind the organisation. The respective organisers and members would have to identify themselves and suffer the indignity of a possible Court application. It is unlikely that the procedural provisions set out in Section 14(3) will ever be utilised in practice.
We submit that before the Minister intends to declare an organisation as being terrorist, the Minister should convene a proper formal hearing where evidence can be lead. The state must have the onus of showing that the organisation is a terrorist organisation as this burden must be discharged beyond reasonable doubt. THE INTERNATIONALISATION OF THE BILL
The Bill is drafted in such a manner so as to oblige the Minister to declare organisations terrorist organisations even though they do not operate in South Africa or threatens is integrity.
Designed as such the South African Government may be unwittingly used as an agent of State terrorism especially by States who wish to crush position in the form of liberation movements.
The internationalisation of terrorism is problematic for all the reasons that we have identified in this paper.
We submit that the envisaged Bill should be restricted to protecting the territorial integrity of the Republic and its citizens against terrorist acts and should be localised. CONCLUSION
It is submitted that the Bill be substantially amended and that it not be adopted in its present form.
This paper has not set out the possible Constitutional challenges to the Bill even in its amended form. On the face of it having regard to the submissions set out above the Bill:
infringes a right to equality because of its inconsistent treatment of the problem;
infringes the right to administrative justice;
infringes the right to freedom of express and movement for the reasons already stated;
the right to basic subsistence.
It is submitted that those infringements are unjustified.
America has experienced one event in the last 100 years: September 11.
Iraq has experienced unprecedented bombing of all its cities from the Gulf war and every day for three weeks consistently. Nobody diarises those dates in their mind. There is an overwhelming impression that the Bill is designed to prevent happenings like September 11. It does not cater at all to prevent State terrorist such as that committed by the United States and coalition of the willing against the Iraqi citizens.
We call upon our government to amend the Bill by removing its international component. The Bill should be restricted to the internal security of the Republic. In this regard:
55.1 the definition of internationally protected person should be removed ;
55.2 the words "outside the Republic" contained in the definition of terrorist act must be removed;
55.3 the definition of terrorist act should be deleted in its entirety and must be replaced with the literal definition. For example terrorism is defined as ‘the act of terrorising’. The world book dictionary incidentally defines it as including "especially the use of terror by a government or other authority against particular persons or groups, or a condition of fear and submission produced by frightening people or a method of opposing a Government internally through the use of terror".
55.4 the provisions of Section 2(5) be deleted in their entirety as they are to wide and offend our constitution;
55.5 the provisions of Section 3 be deleted in their entirety and perhaps be replaced with the following "whenever a person is convicted of an offence committed against a citizen of the Republic…."
55.6 the reference to foreign states in Section 4 (2) be deleted;
55.7 the provisions of Section 14 be deleted and replaced with the procedure entailing a full hearing with evidence and an obligation on the state to prove that the organisation is a terrorist organisation beyond reasonable doubt alternatively at the very least Section 14(1) must be deleted in its entirety and if Section 14(2) is retained, the words "or another country" be deleted;
Insofar as our Government holds that it is necessary to internationalise the Bill, we submit that in order for there to be equilibrium, it is imperative that national governments their officials and armed forces also be subject to it and that the Bill therefore apply to all nation states to combat state terrorism. In this regard the Bill ought to expressly stipulate that the diplomatic state of an individual shall not be grounds for a defence to a charge of state terrorism. In this regard our alternative submission is that
(1) The definition of terrorist act be broad enough to cater for state terrorism
(2) The Minister be given the power to declare a state a terrorist state subject to the procedure envisaged above.
(3) The provisions of Section 2(1) be amended by stipulating that "any person, including a state, internationally protected person or a member of the police or armed forces of the state who … "
(4) The words "terrorist state" be included after the words terrorist organisation in Section 2(4) and in each case in Section 2(5), if 2(5) is to be retained.
(5) Section 4 be amended to provide for the jurisdictions of our courts to adjudicate on state terrorism and acts of state officials and a further provision be inserted to specify that reliance upon diplomatic immunity shall not constitute a defence.
_________________________________
Muslim Lawyers Association
We understand that oral submissions will soon be held and hereby kindly request an invitation to attend. Our representatives would further outline key arguments.