No rational person has cause to doubt that the attacks on the United States (US) on September 11, 2001^[6] constituted an illegal act bordering on insanity that intended to bring about maximum damage to the lives and property of innocent civilians.

The scale of the attacks that resulted in a large number of civilian deaths on US soil, shocked the world and led to a perceptible sense of fear and vulnerability throughout the world especially in emerging democracies. The sheer propensity with which they were executed from within the US led many states to re-evaluate their state of preparedness in the advent of such an eventuality.

In the period since the September 11, 2001 attacks, the repercussions reverberated across the globe with grave and lasting implications with regard to human rights protection. One of the most serious casualties of the post-September 11 environment was the erosion of civil and political rights in the US as well as throughout Europe and Asia. Africa has also joined in the fight against 'terrorism'.

In response to the tragedy, the member states of the United Nations, both individually as well as collectively, immediately turned their attention to a re-evaluation of their security requirements in the light of the imprimatur underpinning UN Security Council 1373. In the months that followed since the tragedy, states in Europe and Asia have inter alia increased the powers of law enforcement and intelligence institutions, including to interrogate and detain persons, to intercept private communications and to conduct searches of private homes and personal property without the normal procedural safeguards; have tightened border controls that impede access to their territory and adopted new, restrictive asylum and immigration measures that may limit access for bona fide asylum seekers; and have authorized various registration and profiling schemes that appear to target certain groups solely because of their race, ethnicity or religion. Some of these measures are necessary and appropriate. However, many of the measures that have been adopted appear to be disproportionate to the threats posed or the goal of enhancing national security. A number of these measures violate fundamental human rights that the member states are committed to uphold, including some which are absolute rights even in times of emergency.

There are many examples of the erosion of rights in the OSCE^[7] region in Europe especially since September 11, but nowhere is the concern more acute than in the United States, itself a country that has strong traditions of ensuring due process and fair trials to criminal defendants.

Post September 11, 2001 finds the human rights landscape substantially, albeit negatively altered, placing at the behest of the US for instance, a large number of persons termed as 'enemy combatants' in legal limbo in Guantanamo Bay, Cuba - outside the jurisdiction of any state and unable to avail themselves of even the most basic due process guarantees accorded to prisoners of war. Suspects inside the US have been detained on immigration charges, as material witnesses, or designated "enemy combatants", in order to deny them due process rights.

In the American system of justice, it is submitted that guilt must be personal and that it must be proved by a specific intent to further an organization's unlawful agenda Further more this constitutional principle was introduced ' as an antidote to the loyalty oaths and communist witch-hunts of the McCarthy era, and they remain essential to the functioning of a democratic society.'^[9]

The constitutional principles mentioned supra have, as Nancy Chang writes, 'tossed to the wayside by President Bush, who (had) vowed to bring to justice not only those who (had) engaged in terrorist activities but "anyone who espouses a philosophy that is terrorist.'"^[10]

The US is certainly not the only country in the region that has experienced a significant deterioration in human rights protection since September 11.

The United Kingdom (UK), for instance, which already prior to September 11 had among the strongest anti-terror laws in Europe, arrested more than a dozen suspects under new powers allowing it to detain indefinitely without charge or trial persons suspected of terrorism. Germany has weakened privacy safeguards that were built up over decades, and carried out nationwide computer profiling of men of Muslim faith or Arab descent, demanding access to private and public computer databases. In Belarus, a new anti-terror law gives security forces virtually unlimited rights to enter homes and businesses and search persons and property without the need for court permission. In Russia, a new anti-extremism law is so vaguely formulated that it could be used to restrict virtually any anti-government protests. A number of countries - including countries such as Sweden, which for decades has been at the forefront in defending human rights at the international level - have extradited, expelled or deported people in violation of the principle of non-refoulement. In Uzbekistan, the government has used its involvement in the international coalition against terrorism as a guise to continue to crack down on religious, political and civil opponents on a massive scale. Many of these measures have also been rushed through parliaments without sufficient transparency or opportunities for public debate.

The human rights violations contained, for instance in Human Rights Watch reports raise serious concern about the extent of the willingness of the member states of the UN to fulfil their international human rights obligations while fighting terrorism. However, what is most troubling is that many states apparently do not view human rights as a matter requiring due consideration in the fight against terrorism.

In their rush to counter terrorism after September 11, member states of the OSCE for instance have often focused exclusively on the security aspects of the anti-terrorism campaign with little or no willingness to make human rights protection a core component of any anti-terrorism initiative. While the importance of respecting human rights in the fight against terrorism has been rhetorically affirmed, the balancing of individual rights against the security interests of the state has in practice tended to tip in favour of the state. International human rights norms that had been deemed beyond question prior to September 11 have suddenly become open for reconsideration. So, for example, comments that torture may, under certain circumstances, be acceptable if it is to fight terrorism, are particularly troubling.^[11] As a result, international human rights standards, which have been so painstakingly developed since World War II, are now vulnerable to being eroded by the pressures exerted by the anti-terrorism campaign.

Many in government^[12] and even outside government seem to argue that human rights protection is actually an impediment to the campaign against terrorism. However, there is no evidence whatsoever supportive of the foregoing considering the fact that that government does not need more power than that which is authorized by international human rights law in order to counter terrorism effectively. Human rights conventions specifically provide for the possibility of limitations and derogations in times of crisis, recognizing that some emergencies are of such a serious nature that states may need to have access to additional tools to counter them.

Moreover states have accepted that their power cannot be absolute, even during emergencies, and have thus established procedural and substantive conditions for the exercise of emergency powers, accompanied by international or regional oversight. These norms are codified in international human rights conventions and are, in fact, core values of democratic states ruled by law. Thus, international law has recognized that emergency powers, while sometimes necessary, must be narrowly drawn in order not to erode the very rights that are being defended.

Scholars^[13] note that any fight against terrorism that does not maintain scrupulous respect for human rights is incompatible with a state's efforts to achieve national security. They make the point that "A state may be said to be secure only when all of its constituent elements, its territory, its inhabitants, and its government are secure. Security in regard to the inhabitants consists of the inviolability of their human rights. In a state where security to inhabitants is completely lacking, state security cannot be said to exist".^[14]

Respect for human rights is a core component of any state governed by law. Any anti-terrorism legislation that undermines human rights is both morally bankrupt and self-defeating. In a March 2002 speech to the United Nations (UN) Commission on Human Rights, Mary Robinson, then-High Commissioner for Human Rights, observed: "Some have suggested that it is not possible to effectively eliminate terrorism while respecting human rights. This suggestion is fundamentally flawed. The only long-term guarantor of security is through ensuring respect for human rights and humanitarian law".^[15]

Contrary to arguments and perceptions, the struggle against terrorism and the scrupulous protection of human rights are not conflicting priorities, but integral parts of the long-term fight for liberty and security. Terrorism clearly poses a threat to the most fundamental values of personal liberty and security. Its means are antithetical to human rights and the rule of law. Given the fact that enormous harm and loss of life has already occurred as a result of terrorist violence, government has a right and obligation to ensure that those in its territory are protected from terrorist violence and that the perpetrators of such violence are brought to justice.

However, the state response, in the shape of the Anti-Terrorism Bill^[16], to terrorism itself endangers the very freedom it seeks to protect and poses a serious threat to our security and liberty.

Emergencies exert great pressure against continued adherence to protection of human rights. In times such as these, governments often consider protecting human rights and civil liberties to their fullest extent as a luxury that must be dispensed with if the nation is to overcome the crisis it faces.

Moved by perceptions of physical threat both to the state and to themselves as individuals, motivated by growing fear and by hatred toward the "enemy," the citizenry may support and even goad the government to employ more radical measures against the perceived threats. Aroused emotions frequently overshadow rational discourse both among ordinary citizens and among their leaders. In these circumstances, notions of the rule of law, rights, and freedoms take a back seat, considered as legalistic niceties that bar effective action by the government.^[17]

Inevitably in times of crisis and fear, states and their citizenry are more likely to make security the single priority, with little regard for the means used to achieve it. We were witnesses to , if not observers to what transpired during the apartheid era and abundant records of the Truth and Reconciliation Commission catalogue acts of omission and commission on the part of certain segments of civil society as well as the organised legal profession. The fact that in 1997, the then South African Law Society made submissions before the Truth and Reconciliation Commission and recorded serious breaches of fiduciary obligations against excesses of the apartheid regime is a damning indictment of the what can result from such acts of omission.

In an environment beset by crisis and fear, there is a real danger that governments will overreact, as did successive Nat regimes, and that human rights values will become increasingly subordinated to the campaign against terrorism, and that minorities and those who represent critical voices in the society will be disproportionately affected. In the end, this process may result in an emasculation of human rights through abuses and a significant weakening of the mechanisms and institutions that limit absolute state power and help prevent such abuse. This in turn would lead to an increasingly insecure environment for all.

At the present point in time South Africa is not faced with such an emergency or the 'smoking gun' scenario.

On its own, the ATB raises serious human rights concerns. This submission identifies eight key areas of rights that stand to be eroded in the Anti-Terrorism Bill^[18]. It also notes that the South African government and the criminal justice system already has at its disposal an arsenal of anti-terrorism legislation passed before 1994 to combat acts of 'terror' and 'terrorist organisations'^[19].

In addition to the foregoing, since 1994, the government passed a raft of security-induced laws such as

•          Interception and Monitoring Prohibition Amendment Act 77 of 1995
•          Proceeds of Crime Act 76 of 1996
•          National Prosecuting Act 32 of 1998
•          Prevention of Organised Crime Act 121 of 1998
•          Financial Intelligence Centre Act 38 of 2001
•          Implementation of the Rome Statute of the International Criminal Court 27 of 2002
•          The Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (the Interception Act).

In total there are therefore over 37 laws already on our statute books collectively dealing with some aspect of terrorism. The question to be asked is whether a new draconian anti-terrorism legislation is therefore necessary in the circumstances.

Foremost among the concerns is the way the ATB defines terrorist acts and terrorist groups when they establish criminal liability for terrorist offences, using either vague and imprecise language that leaves doubts as to the acts being prohibited or excessively broad definitions that may encompass acts few would regard as terrorism. Vaguely worded laws may violate the fundamental principle of legality and lend themselves to arbitrary enforcement. Vague and/or overly broad definitions of terrorism involve a fundamental measure of uncertainty and risk criminalizing conduct that has nothing whatsoever to do with terrorism. These definitions may result in interpretations that unduly restrict the legitimate exercise of basic civil rights such as freedom of expression, association and assembly.

What is more, these definitions lend themselves to selective application against opposition groups on the basis of political considerations. By this the definitions also set a troublesome example for authoritarian regimes. In another worrying trend, the ATB like many of laws passed in Europe and Asia have been introduced through fast-track legislative processes that have granted little time for parliamentary scrutiny and public debate.

The ATB potentially abandons principles of liberty, due process and the right to a fair trial. A number of its provisions affect privacy. Already aided and abetted by a raft of security legislations, search and surveillance powers , for instance, have been enhanced even though judicial oversight over them has been included. Time limits for the retention of telecommunications traffic data have been extended, and safeguards on the collection of and access to personal data have been weakened at both national and regional levels.

Since the September 11, 2001, many states have adopted new laws or amended already existing laws for the purpose of combating terrorism. Many of the laws raise human rights concerns. Foremost among these concerns is the way the laws define terrorist acts and terrorist groups when they establish criminal liability for terrorist offences, using either vague and imprecise language that leaves doubts as to the acts being prohibited or excessively broad definitions that may encompass acts few would regard as terrorism. Vaguely worded laws may violate the fundamental principle of legality and lend themselves to arbitrary enforcement. Vague and/or overly broad definitions of terrorism involve a fundamental measure of uncertainty and risk criminalizing conduct that has nothing whatsoever to do with terrorism. These definitions may result in interpretations that unduly restrict the legitimate exercise of basic civil rights such as freedom of expression, association and assembly. What is more, these definitions lend themselves to selective application against opposition groups on the basis of political considerations. By this the definitions also set a troublesome example for authoritarian regimes. In another worrying trend, these laws have been introduced through fast-track legislative processes that have granted little time for parliamentary scrutiny and public debate.

In Kokkinakis v. Greece, the European Court of Human Rights pointed out that article 7 (1) of the ECHR "embodies ... the principle that only the law can define a crime and prescribe a penalty ... and the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him liable."^[21]

International law does not, however, require absolute precision in the wording of laws, as this is impossible to attain. The European Court of Human Rights has recognized that "the wording of many statutes is not absolutely precise"^[23] and that domestic courts may clarify points of law regarding the scope of a crime without violating article 7. Similarly, in the Sunday Times case, even though the court had "certain doubts concerning the precision with which that principle was formulated at the relevant time", it ruled that the applicants were able to "foresee, to a degree that was reasonable in the circumstances", that their conduct might fall within the scope of the law.^[24]

As the principle of legality is a cornerstone of the rule of law, all major international human rights treaties prohibit any derogation from it, even in times of public emergency.^[25] The European Court of Human Rights noted in Ecer and Zeyrek v. Turkey, for example, that "Article 7 [of the ECHR], which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency."^[26]

Even where a criminal law defining terrorism is sufficiently clear to meet the requirements of clarity laid down in international human rights law, it may still be excessively broad so as to risk criminalizing conduct that is protected under international human rights law, such as the right to freedom of association or expression. As the ICJ has noted, "When such definition allows the characterization as a criminal offence of acts which are not prohibited by international human rights law or international humanitarian law, they are at variance with the principle of legality", and thus, "any ambiguous, vague or imprecise legal definition, or a definition that criminalizes acts that are permitted and/or lawful under international law, are contrary to international human rights law and to 'the general conditions provided by international law'".^[27] Furthermore, overly broad definitions of terrorism risk criminalizing crimes committed in a political context. A person who commits a public order offence during a political demonstration in which other demonstrators used violence against the police might theoretically be convicted of a terrorist offence under several of the overly broad definitions adopted by OSCE member states. While such conduct may properly violate a state's criminal code, it is not the kind of conduct that is typically considered "terrorism" warranting the particularly severe penalties usually reserved for more egregious acts.

While intent is not always considered an essential element in criminal law, concern must be expressed that a law, such as the ATB, that includes severe criminal penalties for interaction with an organization that the individual does not know to be engaged in terrorist activities (in other words a strict liability standard) may have a particularly severe chilling effect on freedom of association. While it must be acknowledged that it is sometimes difficult to prove intent, and that terrorists organizations often conceal their true aims, for example, behind a façade of humanitarian work, it is not an impossible or unreasonable burden for the government to be required to show that an individual had some criminal intent in such cases and believes that this would strike a more appropriate balance between the government's interest in prosecution and the individual's interest in freedom of association.

By setting up strict liability in this area, states also violate the right to be presumed innocent and more generally to a fair trial. The European Court of Human Rights, for example, has stressed that when the law establishes a presumption against the accused, the courts must nevertheless have the freedom to accord the defendant "the benefit of extenuating circumstances", for otherwise this could violate the presumption of innocence contained in article 6(2) of the ECHR.^[28] According to the court, article 6 (2) "requires States to confine [presumptions of fact or law] within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence".^[29] Thus, the law cannot create an irrebutable presumption. A defendant must be able to present a defence by, for example, presenting evidence of "force majeure" or that he acted out of necessity or unavoidable error.

It is also problematic that such charges are sometimes based on lists of terrorist groups that have been drawn up by states on the basis of questionable evidence and procedure. The ICJ has noted that "In recent years, a new 'technique' has appeared whereby the authorities of certain States have drawn up official lists of so-called terrorist groups. Membership in and collaboration with any one of those groups is ipso facto a crime."^[30] The drawing up of such lists of terrorist groups raises a number of problems, as identified by the UN Special Rapporteur on Terrorism:

'Some of [the legislation] includes provisions in which groups are put on an official terrorist list, frequently with no analysis of the particulars of the situation or the nature of the group. Those groups and others espousing similar views but uninvolved with the groups concerned may face severe consequences. [...] judicial proceedings to challenge this false labeling or to defend a person charged with an offence under such anti-terrorism legislation may leave room for serious negation of a wide range of procedural rights'.^[31]

All the member states of the UN have the right and indeed the obligation to fight terrorism and ensure the security of those present in their territory. States do not, however, have unlimited discretion to choose the means they will use to combat terrorism. International human rights treaties establish the minimum rights that states must ensure to all persons in their territory and subject to their jurisdiction. International human rights conventions do recognize that some emergencies may be so serious as to warrant limitations on or the suspension (known as derogation) of certain rights. However, such limitations and derogations are, by definition, exceptional in nature, and the conventions set out both procedural and substantive limitations on what states may do in the face of such emergencies.

The International Covenant on Civil and Political Rights (ICCPR) provides for the possibility that states may limit a number of rights under certain specific conditions.^[33] Article 4 of the ICCPR provides that:

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

A state may not derogate from its obligations under the ICCPR unless a public emergency exists that is so serious as to threaten the life of the nation. The travaux préparatoires of the ICCPR indicates that:

In the Lawless case, the European Court of Human Rights interpreted language in article 15 of the European Convention of Human Rights (ECHR) that is identical to that in article 4 of the ICCPR. The court defined "public emergency threatening the life of the nation" as an "exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organized life of the community of which the State is composed".^[38] In the Greek case, the European Commission of Human Rights determined that a public emergency could only be said to "threaten the life of the nation" if it had the following characteristics:

1. It must be actual or imminent.
2. Its effects must involve the whole nation.
3. The continuance of the organized life of the community must be threatened.
4. The crisis or danger must be exceptional in that the normal measures or restrictions permitted by the Convention for the maintenance of public safety, health and order are plainly inadequate.^[39]

Some legal scholars have concluded from the general definition of "imminent" that, in order for a crisis to be covered by article 15(1) of the ECHR, it must "if not actually exist, be on the verge of breaking out at any moment".^[40] Thus, "the time element should make no room for measures that are merely intended to prevent a potential danger that may only materialize in a few weeks or months".^[41]

Even when a state can show that a public emergency exists that is of sufficient severity to threaten the life of the nation as set out in article 4(1), it does not have a free hand to adopt any measures it sees fit. All measures adopted in derogation of the obligations set out in the ICCPR "must be strictly required by the exigencies of the situation" reflecting the principle that such measures must be proportional to the aim pursued.

It must be stressed that it is not enough to show that the measures are justified by the exigencies of the situation, but that they must also be strictly required. "This condition requires that States parties provide careful justification not only for their decision to proclaim a state of emergency but also for any specific measures based on such a proclamation".^[43] It must also be noted that this requirement relates to the duration, geographical coverage and material scope of the state of emergency and any measures of derogation resorted to because of the emergency.

Similarly the Constitution^[47] permits derogation only in a state of emergency under similar conditions in terms of s 37 thereof and under extremely strict conditions^[48].

These were the words of U.S. Supreme Court Justice Robert Jackson in West Virginia Board of Education v. Barnette^[49]. The case arose when a group of Jehovah's Witnesses challenged public school regulations requiring students to salute the U.S. flag. The government sought conformity. A minority in the community sought freedom of expression. The Court upheld the rights of the minority and thwarted the will of the majority.The Barnette case, and Justice Jackson's words, illustrates a vital principle in our newfound democracy.

While the nation's drafters of the final Constitution celebrated democracy, I submit that they also recognized that certain individual freedoms must never be placed at the mercy of shifting political majorities or extraneous forces whose actions call to question the credibility of this country's sovereignty along with all the members of the UN . They adopted a Constitution that sets certain individual liberties apart from majoritarian rule requiring a process that was consonant with the ethos and values enshrined therein.

For want of repetition, the ATB is an unnecessary corollary or prolix to the arsenal of security legislation already on our statute books and that, if passed, it would constitute an overkill in that sense. Even with the most draconian measures, the government will not be able to bring down the levels of crime nor effectively fight and eradicate 'terrorism' unless it addresses the structural and operational weaknesses that are inherent in our criminal justice system. Notwithstanding the fact that since 1994, the government has passed 7 laws tackling crime with a strong emphasis on 'terrorism' the consensus is that the recent successes on the part of the security establishment in apprehending alleged right wingers of the Boeremag commando as well as the criminals ( such as those who murdered members of Gideon Zulu's family in Zululand and those who perpetrated the 'execution style killing at the Teasers night club) points to the fact that the government is deploying more resources in the area of crime and security and this is visibly yielding dividends. Even the conviction rate is high in the circumstances of the fact that the investment in training of prosecutors and police personnel has reached a stage where the tide is turning against crime and criminals.

In engaging in a critique of the ATB one must reflect upon three facts namely that

1. 1.       no rights enshrined in the Bill of Rights that is entrenched in the Constitution is absolute and that in fact the Constitution permits the limitation of rights but within strict parameters and subject to the test laid out in the limitation clause^[50] , and
2. 2.       the limitation clause tells us that the rights may only be limited where and when the stated objective behind the restriction is designed to reinforce the values which animate the Constitution, and
3. 3.       that , even under a state of emergency^[51] , there are certain 'non-derogable' rights under the Constitution.

It is also imperative, for the purposes of an objective assessment of the ATB, especially as regards to its reasonableness and necessity in an open and democratic society based on human dignity, equality and freedom, that we keep in focus the fact that we already have well over 30 laws already on our statute books which collectively deal with 'terrorism' and which have not been repealed by parliament.

Section 39(2) of the Constitution provides a guide to statutory interpretation under our nascent constitutional order. It states:' When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.'

This means that all statutes must be interpreted through a prism of the Bill of Rights enshrined in the Constitution. All law-making authority must be exercised in accordance with the Constitution. The Constitution is located in a history, which involves a transition from a society based on division, injustice and exclusion from the democratic process to one, which respects the dignity of all citizens, and includes all in the process of governance^[52].

The Bill of Rights enshrined in the Constitution is a permanent fixture in the South African legal landscape, not a fair weather friend. Its provisions remain in full force even during in times of crisis, although the balance that is struck between competing interests is often influenced by the presence of compelling governmental interest in the nations security.

The points expressed must be seen against the backdrop of our history and the fact that constitutional protection of human rights is new as well as in an evolutionary phase in this country. We need to be mindful of the sort of violations that were perpetrated with impunity by the legislature and the executive during the apartheid era.

In the words of Justice Thurgood Marshall " History teaches that grave threats to liberty often comes in times of urgency, when constitutional rights seem too extravagant to endure."^[53]

Such emphasis is necessary particularly in this period when South African society is still grappling with the process of purging itself 'of those laws and practices from our past which do not fit with the values which underpin the Constitution- if only to remind both authority and citizen that the rules of the game have changed'.^[54]

As such, the process of interpreting the Constitution must recognize the context in which we find ourselves presently, from whence we emerged and the Constitution's goal of a society based on democratic values, social justice and fundamental human rights.

The purport and objects of the Constitution finds expression in s 1, which lays out the fundamental values, which the Constitution is designed to achieve. The Constitution requires us to read and interpret legislation, where possible, in ways that give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, one is under a duty to examine the object and purport of the ATB and to read its provisions, as far as is possible, in conformity with the Constitution.^[55]

In the preamble to the ATB^[56], whilst it reaffirms its unequivocal condemnation of 'all acts, methods and practices of terrorism as criminal and unjustifiable', it makes specific reference to, inter alia, 'any circumstances unjustifiable, whatever their considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them'^[57].

Given official utterances by the likes of the late Steve Tshwete^[58] et al against Pagad and Qibla, as well as the stereotyping and religious profiling that has been blatantly been manifested in certain parts of South Africa where Muslims have been targeted in supermarkets^[59], at airports^[60] a reasonable man will reach the inescapable conclusion that it has an anti-Islamic bent. The foregoing has merits and hard evidence can be evinced from the experiences of Arab-American Muslims in the USA.

If a poll is carried out in South Africa, albeit by an independent organization, just as it was amongst the UK's 1,5 million Muslims^[61] an increased feeling of hostility towards Muslims will be detected^[62]. If the ATB is enacted it will constitute the sum of all their fears no matter how much and the level of assurances they receive from present day politicians who have personally experienced and who understand the position. Muslims feel vulnerable in the wake of subterranean and often naked prejudice that occasionally manifests itself at their expense. Despite US President George Bush's utterances to the constrary, an NGO, namely the Council of American Islamic Relations (CAIR) records, almost daily the negative impact of the implementation of the USA PATRIOT ACT on the fundamental human rights of American Muslims citizens and residents of Arab, Asian and Africa extraction.

It is for that reason that ordinary Muslim South Africans and civil society in general want to engage the government for fully on the ATB and the express their feelings. The process by which the ATB finds itself currently before the Parliamentary and Portfolio Committee is perceived as an attempt to by pass the people, many of whom are ignorant of the ATB and its ramifications, and to fast track it through Parliament in this parliamentary year.

One has to read this with the real motivation of the drafters as conveyed to the project committee of the SALC^[63]. Islam has been equated with terrorism in the world's media, given the hype associated with Emerson's Jihad in America as well as Hollywood inspired movies such as The Siege and Betty Mahmoody's Not without my Daughter. The fact that very recently even Martin Schonteich of the Instituted of Security Studies, a think tank, was reported to have said that Islam was a threat to security in South Africa reinforces the depth and dimension of their fears.

The official response attributing the criminal acts on unknown persons, in the absence of hard evidence, which lead to the loss of lives in the Planet Hollywood restaurant in the Western Cape to Pagad, for instance, is a typical case in point.

Again as in Discussion Paper 92 (Project 105) , and in the draft ATB ,there are serious definitional flaws that are repeated in the ATB. The principle of legality-"nullum crimen sine lege " is enshrined in our law and, I submit, in the Constitution. It means that an offender should not be punished for any action without a clear and definite legal basis which existed when he acted. A statute must make it clear to a reasonable man that a crime is being created and therefore the uncertainty and vagueness that bedevilles the ATB is going to create the same scenario as with the detainees in Guantanamo Bay, in Cuba because the US administration (which has detained well over 300 'enemy combatants) is yet to charge them. According to the New York Times of April 2002, the administration is considering charging them with membership in Al Qaeda.. "It could be enough to show that they were part of Al Qaeda and furthered its aims" explained one administration official.

• 'Terrorist act' ?

The definition of a 'terrorist act' is so broad as to include lawbreakers who would clearly not be terrorists inthe normal meaning of the word. For example, the draft bill includes in its definition of a terrorist act 'an unlawful act committed in or outside the Republic'. Minibus taxi owners who blockade a street used by municipal bus services whereby some parked vehicles are damaged, or a group of youths who destroy a Post Office letter box would be guilty of committing a terrorist act as defined by the bill. People who block public streets and cause damage to property or those who destroy letter boxes need to be punished. it is, however, questionable whether they deserve life imprisonment as mandated by the draft bill for anyone convicted of a 'terrorist act.

The draft bill proposes that any person who is a member of a 'terrorist organisation' commits an offence through such membership and would be liable, on conviction, to imprisonment for up to five years without the option of a fine. The bill defines a terrorist organization broadly as 'an organization that has carried out, is carrying out or plans carrying out terrorist acts'. Given the broad definition of what constitutes a terrorist act, such a provision could be used to criminalize the actions of a wide range of people. Using the aforementioned example, this could apply to all members of a taxi organization that organize a street blockade, whether such members are actually involved in the blockade or not. Moreover, to secure a conviction under this provision the state would not have to prove that an accused knew that he was a member of a terrorist organization. The state would merely have to prove membership of a terrorist organization.

Thus the definition of a 'terrorist act'^[64] is too wide and is bound to become unstuck when it becomes subject to constitutional challenge. The SALC's recommendation that it should read ' any act which does or may endanger the life, physical integrity or freedom of any person or persons............'^[65] has been rejected in the definition of a 'terrorist act'. So widely is it framed that it covers acts of random violence that have the maximum effect on the country's psyche for instance.

Martin Schonteich^[66] submits that the definition is so broad as to include lawbreakers who would not be terrorists in the meaning of the word. He correctly cites as an example of minibus taxi owners who blockade a street used by municipal bus services, damaging parked vehicles in the process. They would be guilty of committing a terrorist act as defined in the Bill. It is questionable whether they deserve to be imprisoned for life as mandated by the ATB for any one convicted of a 'terrorist act'. I submit that this is true even though it may be amplified by reference to a 'convention offence' as contained in Schedule 1 to the ATB. ^[67]

With the proliferation of organized crime in this country, sophisticated crime syndicates could use the hysteria and the hype generated by the anti-Pagad or Boeremag sentiments publicly expressed to whip up support against terrorism to implicate those bona-fide organizations, including Pagad, who were fighting organized drug syndicates as well as crime especially in the Western Cape region. The Deon Mostert expose has shown us the dark side of this potential whilst we wait for the truth to unveil itself regarding this affair.^[68]

 A good example to use would be the taxi related violence throughout South Africa recently, apart from the Western Cape which has led to the deaths of many people, including drivers of the Golden Arrow bus company. The perpetrators are unknown criminals who have no agenda other than driven by inter alia greed, and their acts come within the definition of terrorism or terrorist acts despite the fact that persons with a criminally intentional point to dissuade the bus company to drop its fares are committing them. Such acts are already punishable at law but bringing them within the ambit of terrorism is sheer extravagance. Another live example is the rolling mass action and civil disobedience campaign unleashed by the Treatment Action Campaign (TAC) and the violent response on the part of the authorities in Durban in March 2003 which violated the TAC's right to engage in free political activity.

Thus the anti-terrorism measures in the ATB so broadly define terrorism as to be an unacceptable expansion of law enforcement authority and therefore would be unconstitutional. Under its proposal, the following unlawful acts would become "terrorism": any crime of passion involving a gun; cutting the brake cable of a parked bicycle with intent to injure the rider or "hijacking" the bicycle; using a gun to cause "substantial damage" to a highway sign, or even shooting at the sign and missing or merely planning with one's friends to shoot at the highway sign. Though no criminal penalties are directly attached to the definition of terrorism, the definition has several indirect but important consequences.

 The proposed definition of terrorism is clearly far too broad. One of the indirect consequences of such a broad definition would be increasing the amount of politically motivated selective enforcement that would inevitably occur.

Rather than attempt to define "terrorism," the legislature should focus on defining the activity that constitutes a "crime." No new laws may be necessary because virtually all violent activity commonly associated with terrorism is already a crime.

 Without answering the question of "what is terrorism," I submit that the principle of nullum crimen sine lege (there can be no crime without law) applies. This principle requires that the forbidden conduct should be defined to a reasonable degree of certainty so that the terms of the law can operate as an intelligible guide to people and the courts that are called upon to try them. The ideal is that people must be given a fair warning of the nature of the conduct declared to constitute an offence. The definition as couched in the ATB covers such a broad range of activities that almost any conduct can be brought within their terms.

•          'organization'?

The ATB does not define what is meant by 'organization'. The Concise Oxford dictionary defines it as  'an organized body of people with a particular purpose, such as a business or government department'. This is too wide for it brings within its ambit the Taxi Associations or the Treatment Action Campaign and includes, law societies and trade unions such as Cosatu and bona fide charitable bodies such as the Gift of the Givers Foundations and Religious Bodies such as Jamiatul Ulemas of KwaZulu-Natal etc.

 Lets say a group of people dissatisfied with the increase in electricity and rates decide to hold a meeting and embark in mass action which results in violence and intimidation as well as disruption to services . Their action will be regarded as 'unlawful conduct' and under the definition will be regarded as terrorists!

During March, 2003 the Treatment Action Campaign embarked on a mass action which saw incidents of violence allegedly initiated by the state which used water campaigns and arrested members of TAC who were peacefully protesting outside the CR Swart police station in Durban^[69].

If the much deprived inhabitants of the Wallacedene squatter community, in the Kraaifontein area of the Western Cape, who are tired of waiting for the courts to come to their rescue regarding the provision of adequate housing in terms of their constitutional rights guaranteed to them which the authorities in the region are slow to deliver or make real, decide to invade vacant lands belonging to the municipality as well as private persons and they resort to acts of violence as they resist attempts to evict them. Or if the Treatment Action Committee embarks on a national campaign to force the government from fast-track the order of the Constitutional Court to provide nevirapine to pregnant mothers, and this lead to intimidation and unrest and even in a few deaths. Their acts could fall within the definition of terrorism even though a limited degree of violence is used.

 The experiences of PAGAD AND QIBLA , both organizations which were declared terrorist organizations by the US and which SA will , under the Resolution 1373 and the international conventions be obliged to proscribe under the ATB cannot and must not be forgotten. This is especially so in the case of PAGAD which started as a bona fide public-spirited organization established to confront and eradicate the scourge of drug dealers and gangsters menacing the Cape Flats.

• 'terrorist organisation'

1. (a)      a convention offence; or
2. (b)      likely to intimidate the public or segment of the public.

•         facilitates' ^[70]?

Clearly the ATB makes it a crime for S.A citizens to provide any material support to the lawful political or humanitarian activities of any foreign group designated by the Minister for Safety and Security as "terrorist" Banks and other 'financial institutions' will be obliged to freeze the assets of any domestic organization or SA. citizen believed to be an agent of such a designated group. The provision does not specify how the banks and other 'financial institutions' identify the domestic "agents" of terrorist groups, nor does it provide any mechanism for a domestic organization to get its funds unfrozen.

Lessons from the USA PATRIOT ACT inform that anyone subject to the laws of the US may be criminally punished for providing material support to any of the approximately 33 organizations that the secretary of state has designated as 'foreign terrorist organizations'.

It also denies visas to foreigners visiting the SA. based on mere membership in groups designated as terrorist Minister of Safety and Security. Denying visas based on membership and not on terrorist activity represents a return to the discredited ideological exclusions standard of the apartheid era.

The ATB refers to the word 'facilitates' A 'terrorist act' is defined to be "facilitated" whether or not the facilitator knows that a particular terrorist activity is facilitated. The broad definition of facilitates therefore applies to all acts under the rubric of 'terrorism'. The Concise Oxford Dictionary defines 'facilitates' as to make easy or easier and, again as in the case of a 'terrorist act' and 'organization' the definition is too broad and brings within the ambit a host of permutations. It is presumed that he 'facilitates' the 'terrorist act' with the requisite knowledge . The Constitutional Court has on at least two occasions struck down provisions which create such a presumption as being unconstitutional and therefore invalid on the grounds that the relevant statutory presumptions offend against the presumption of innocence principle enshrined in the Bill of Rights.

 'Facilities' includes the provision of training, providing expert advise or assistance as well as almost all human services including political activities aimed at the peaceful resolution of conflict, such as writing an op-ed article on behalf of a 'terrorist organization' or advocating the interests of such an organization in public or before Parliament, or providing the organization with training on human rights advocacy or international law or distributing its political literature.

 Just as in the case of the Internal Security Act of the apartheid vintage, 'facilitates' consists of the performance of an act furthering an object of the proscribed organization as well as encouragment to the achievement of such an object (or to an act or omission which furthers it).

 By way of ordinary observation, attention is directed to two salient points, namely

1. the crime is constituted by the performance or encouragement of any single object of the organization.
2. the question is not whether the accused intended his act or omission to further the object of the organization, but whether objectively speaking, his act or omission did or reasonably could further an object of the proscribed organization.  

It is the essence of democracy that people can know the laws that define their rights and responsibilities. A bare resolution, whose application is interred in the breast of the legislator, without manifesting itself by some external signs, can never be properly a law.

 The concept of the 'rule of law' infuses the Constitution. It is one of the foundational values of our sovereign, democratic state. Whilst rights and freedoms can compete, and government may limit our rights and freedoms for certain specified and legitimate purposes, in constitutional jurisprudence, a legitimate aim and a proportionate response alone are insufficient to justify derogation from a right guaranteed under the Constitution.

 A derogation must be 'in terms of a law of general application'. This means more than a simple search for a national legal rule, such as the proposed ATB, which permits the derogation. The starting point is that the derogation must be in terms of a law. The idea of lawful action connotes concepts of accessibility, foreseeability and certainty to a reasonable degree in its application and consequences.

This means that it must be precise so as to permit an individual to plan his or her life so as not to fall foul of the law. Laws, on this account, may not simply grant officials the discretion to use their power however they wish. Nor should they be so vaguely worded as to lead reasonable people to differ fundamentally over their extension.

 The ATB, I submit, falls on both the forementioned counts.

 This section provides that any person who commits a terrorist act, or any other contravention of this Act, commits an offence and shall be liable on conviction to imprisonment for life.

The Constitution seeks a positive basis for an interference with fundamental rights. The concept of legality requires, firstly, that must be an identifiable and established legal basis in ATB for restrictions on human rights.

To constitute a lawful fetter, however, the ATB must be accessible in two senses, namely:

 The ATB falls on the second count. Norms are unlikely to be considered as sufficiently 'accessible' if the criteria for interpreting them are themselves secret and unpublished.

 What this means is that a norm cannot be regarded as 'law' unless it is formulated with sufficient precision to enable a person to regulate his or her conduct. He must be able to foresee, if necessary with appropriate advice, to a degree that is reasonable in the circumstances, the consequences that a given action may entail.

 Thus if an ostensible law such as the ATB does not fulfil the foregoing criteria, any action taken in reliance upon it will not be sufficiently foreseeable to amount to a "law" under the Constitution. Helen Mountfield^[71] submits that the requirement of foreseeability is a 'reference to the protection of the rule of law itself, in that it proscribes any interference with rights save in relation to a set of knowable norms, which are not applied arbitrarily, but in a sufficiently predictable fashion to give them a character of law at all.'

 If anything the ATB, which is imprecise and vague, is flawed. I submit that, in the circumstances, if its scope is known, then our courts have it in their power to prevent secret, arbitrary or unreviewable actions. Since its scope is uncertain, then our police and security forces may act on ways that our courts are unable to restrain.

 'Material support'^[72] 

 To re-iterate, the ATB is an example of poor draftsman ship. It is riddled with imprecision and appears to be a bye-product of cut and paste and is thus nothing but a crude document.

 This is taken from the American s 2339A Title 18 (Crimes and Criminal Procedure) and is straightforward in its meaning. What is onerous though is that any person who has knowledge that another person intends to commit or has already committed an offence under the ATB commits an offence and is liable to punishment as if he intended to or has committed the offence and he can be sentenced to fifteen years imprisonment.

 Section 2(4) of the ATB says that a person commits an offence if he or she knowingly 'does anything' such as participates in , or contributes to, the activities of a terrorist organisation or does anything which will, or is likely to enhance the ability of any terrorist organization, will be guilty of an offence and will be imprisoned for a period not exceeding 15 years. So if a journalist interviews a person designated as a 'terrorist' he or she commits an offence. If he or she writes an article based on that interview he or she commits an offence.

 The ATB would provide for a list under which certain organizations would be designated as "terrorist organisations". Once this happened to an organization, South Africans would be prohibited from donating to it, raising money for it, and even dealing with its property. The government on the recommendation of the minister would make the listing. No hearing would be required and no evidence need be produced. While the organizations could subsequently challenge the listing in court, there would still be a significant risk of permanent stigmatisation. Even a cleared organization might never be free from suspicion. At the very least, therefore, no listing should occur unless a court first vetted it.

 Under the ATB, individuals could be listed as "terrorists". It's one thing to prohibit dealing with the property of an organization, but it's another thing entirely to apply such a sanction against individuals. On this basis, it would be unlawful to purchase houses, cars, or even clothes from such people. While organizations have limited activities, individuals also have ordinary lives to lead. It would simply be repugnant to transform individual citizens or permanent residents into such pariahs without ever convicting them of anything. Besides, how necessary are such extreme measures? After all, any candidates for individual listing would likely be under intense surveillance - a factor that would substantially increase the ability to intercept their harmful behaviour.

 The first substantive provision of the ATB brings about the dissolution of an organization by declaring it a 'terrorist organization'. The Minister is given the power, to be exercised by proclamation in the Government Gazette, to declare organizations 'terrorist organizations'. It is expressly provided^[73] that he does not have to give notice to the organization concerned. As it stands, the relevant provision of the ATB seems to exclude the audi alteram partem rule even though it is required that the declaration of a 'terrorist organization' may take place 'if there are reasonable grounds..' for believing , inter alia, that such an organization or any of its members has committed a 'terrorist act'. Unlike the case of South African Defence and Aid Fund v Minister of Justice^[74], the now proscribed organization does have a period of 60 days to apply for an interdict prohibiting the proposed declaration^[75].

 The problem with this is that the provision is premised on the guilty until proven innocent principle which, I submit, is unconstitutional. There is no right to a hearing at the exact moment when the Minister publishes the notice stating that he intends to declare an organization to be a 'terrorist' organization although he is obliged to state on what grounds he intends to make the declaration. He is not obliged to provide the evidence and accordingly this could lead to an abuse of due process that is guaranteed under the Constitution as well as the right to access information that is equally guaranteed therein^[76] as well under the Access to Information Act^[77].

 A 'terrorist organization' is defined as 'an organisation declared as such under section 14 which is-(a) a convention offence; or (b) likely to intimidate the public or a segment of the public'.

 The consequences of the declaration upon individuals, whether formal or informal members is devastating. All persons, be they formal or informal members are prohibited from engaging in activities which may be designated, broadly speaking 'terrorist acts' or facilitating the commission thereof.

 Section 2(3) provides that ' Any person who 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 Act is silent as to the criteria that would make it a 'terrorist' a term that is too wide. Would the organization, for instance, be a beneficiary of the audi alteram partem rule. The ATB is silent on this point. Although the organization is not proscribed, such a drastic step as declaring it a 'terrorist' organization is in effect of such an effect and this would put is at odds with the constitutional guarantees of freedom of association as well.

 Nevertheless, these consequences may legitimately be criticized on account of their vague and sweeping nature, and as being too severe. The provision that makes it an offence to facilitate or to be a member of a 'terrorist organization' is at the same time too broad and too severe. By way of an example, lets say that someone displays, in his or her home, a photograph of Ussama bin Laden. In terms of the ATB he is facilitating, which is the same as enhancing the image of a 'terrorist' and he can be imprisoned for that!

 Custody of persons suspected of committing terrorist acts for the purposes of interrogation)

The ATB would also require that people answer questions, if there were "reasonable grounds" to believe they had information about a terrorist crime that had been, or would be, committed^[78]. It's one thing to compel testimony at an adjudicative hearing (such as a criminal trial) where the issues are reasonably well circumscribed; it's another thing entirely to do so at an investigative hearing where the issues are largely still to be determined. In the latter situation, the probe would be much less focused, thereby substantially expanding the intrusion into the lives of the witnesses. That's one reason why our criminal law tradition has generally frowned upon the compulsion to speak for investigative purposes. Since the police have long managed without it, the need for this power is doubtful.

According to the project and working committees of the SALC, they have not been told why the measures of the sort set out in section 10 for the detention of persons for interrogation are required and why conventional policing methods are inadequate^[79].

 In terms of s 8(3) , a judge of the high court has the discretion to grant a warrant for the detention of any person suspected of possession of or is withholding any information regarding any offence under the Act at the instance of the Director of Public Prosecutions upon submission of information under oath to that effect.

 Unlike s 29(5) of the National Prosecuting Act^[80] which places certain constraints on the exercise of the powers of search and seizure, the section does not require that there should be a reasonable belief on the part of the DPP. The provision is accordingly in violation of the Constitution since it permits the granting of a warrant of detention on mere suspicion. The absence of reasonable grounds for the belief would be constitutionally impermissible^[81].

By comparison, the National Prosecuting Authority Act makes provision^[82] for persons who suspect that a specified offence has been committed or that an attempt has been or is being made to commit such offence, to lay the matter before the Investigating Director who has the discretion to either conduct an enquiry or preparatory investigation. This provision requires such person to have a reasonable ground to suspect that a specified offence has been or is being committed. This then requires the Investigating Director to assess the evidence before him and to be satisfied (such evidence being obtained on oath presumably) that an enquiry is warranted in terms of s 28(1) of the Act. If the evidence is insufficient to institute an inquiry, s 28(13) empowers him to conduct a preparatory investigation. He obtains the necessary warrants in terms of s 29(5) which contains what information a judicial officer needs to consider before a search and seizure warrant may be issued.

 In short the scheme of the Act is such that it contains adequate safeguards to protect the constitutional guarantee of privacy^[83].

 By contrast the ATB is lacking such constitutional safeguards. I submit that it is manifestly deficient in that it is insensitive to the constitutional rights of detained persons, notwithstanding the fact that prior judicial authorisation is required for such detention. My point is that the safeguards fail to take into consideration the psychological effects behind detentions irrespective of the so called safeguards that are contained in the ATB.

Section 12^[84] of the Constitution combines the right to freedom and security of the person with a right to bodily and psychological integrity^[85]. It guarantees both substantive as well as procedural protection. The substantive component requires that there must be good reason for depriving someone of his freedom whereas the procedural component requires that the deprivation takes place in accordance with fair procedures.

Section 12(1)(b) guarantees the right not to be detained without the benefit of a trial. As Ackermann J argued in Ferreira v Levin NO ^[86], the right amounted to a presumption against the imposition of legal and other restrictions without sufficient reasons.^[87] What s 12 does is that it protects the individual specifically, though not solely, against invasions of physical integrity by way of arbitrary arrest, violence, torture or cruel treatment or punishment.^[88]

 An analysis of s 12(1)(a) of the Constitution clearly evinces the requirement for a rational connection between the deprivation of freedom and some objectively determinable purpose. According to Ackermann J in De Lange v Smuts NO^[89][, one must first determine whether the deprivation of physical freedom is arbitrary and then whether the reason for deprivation is a just one^[90]. Though his test was not supported by the majority, I submit that there is merit in the learned judge's postulation that the concept of a 'just cause' must be grounded upon and consonant with the values expressed in s 1 of the Constitution and gathered from the provisions of the Constitution as a whole^[91]. This, as De Waal et al point out 'corresponds loosely with the approach of the Canadian Courts in dealing with the standard of 'fundamental justice' in s 7 of the Canadian Charter of Rights and Freedoms^[92].

I submit that, in view of the foregoing, the limitations constituted by this provision are not reasonable and justifiable since prevalence of terrorism in South Africa , though a matter of serious and grave concern, is not the same as in Britain and Northern Ireland and that, in any case the countries from which South Africa would be happy to take the lead( like the USA) have not considered it necessary, in the light of the problems they raise, to providing for the kind of measures proposed in s 16 of the ATB^[93].

 Given the odious history of detention for interrogation purposes under the apartheid era, especially s 6 of the Terrorism Act of 1967 which permitted indefinite detention of person suspected of involvement in terrorist activities, even under the 'ticking bomb' scenario, the provisions clearly violate the Constitution^[94] and there is no way it can survive constitutional challenge. Indeed as Ackermann J stated in De Lange v Smuts NO ^[95] the ' substantive aspect (of the right to freedom and security) ensures that a deprivation of liberty cannot take place without satisfactory or adequate reasons for doing so.'

 We need to be mindful of the late Didcott J's remarks in De Lange ^[96] that 'detention without trial was a powerful instrument designed to suppress resistance to the programmes and policies of the former government. The process was an arbitrary one, set in motion by the police alone on grounds of their own...'

The drafters of this provision have borrowed from the Canadian Anti-Terrorist legislation. In any event, the provision is dubious especially the duty to disclose one's possession of property owned or controlled by terrorist groups. It's one thing to require this disclosure from agencies licensed to handle property, but it's another thing to impose such an obligation on everyone. With few exceptions, our society has avoided compelling people to inform on one another. Among other things, we have believed that a climate of compulsory informing would erode social harmony. Since this measure would apply to the property of unlisted, as well as listed, organizations, each citizen would have to decide whether the unlisted property owners were "terrorist". In order to avoid breaking the law, there would be pressure to err in favour of informing. This could exacerbate social tensions.

 The ATB offers protection to informers in the sense that their identity or the contents and the nature of the information or grounds thereof will not be revealed to the accused. In other words the ATB permits the use of secret evidence.

This would, I submit bring the administration of justice that our courts are in control of into disrepute. Criminal prosecution is potentially harmful to basic human rights, especially the right to personal freedom. It is therefore a requirement of the rule of law that legality should apply fully in the area of criminal law. I believe that under s 32 of the Constitution as well as the Access to Information Act, this provision would be declared unconstitutional if it is not tailored to make it consonant therewith.

Section 36 of the Constitution prescribes that any limitation of a constitutional right has to be reasonable and justifiable in a democratic society based on equality, dignity and freedom. This naturally entails that there be a sense of proportionality and a rational nexus between the law and the object it seeks to address, notwithstanding the pressing needs underpinning the legislation. In this case, I submit that, given the fact that there are already existing well over 40 laws in our statute books, it is a case of an overkill as well as having the effect of a sledgehammer to eradicate a mosquito.

It specifically provides that such limitation must be prescribed by a law of general application. This phrase 'law of general application', I submit means that the law must

•          adequately accessible . Every person must have an indication that is adequate in the circumstances of the rules applicable to a given case;
•          a norm cannot be regarded as "law" unless it is formulated with sufficient precision to enable a person to regulate his or her conduct. It is submitted^[99] that he or she must be able 'if need be with appropriate advice- to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail'^[100].

The ATB is grotesquely deficient in this regard in the sense that it is not adequately accessible and it is not formulated with sufficient precision to enable people to regulate their conduct. There is no certainty of what the law is especially and specifically what actions or conduct are in danger of breaching the law.

As Gubbay CJ said in Chavunduka and Another v Minister of Home Affairs, Zimbabwe^[101] 'It is the guidance of conduct, and not the absolute direction of conduct, which is the appropriate objective of legislation'. He went on to say that 'if human conduct is to b subjected to the authority of any criminal law, the terms of such law must not be vague, for otherwise there will be a denial of due process'(italics for emphasis)^[102].

 Structural and operational weaknesses in our criminal justice system

 It would be a Pyrrhic victory, if 'terrorism' were defeated at the cost of sacrificing South Africa's commitment to those values enshrined in the Constitution.

 "There is" wrote Mathews, 'an intimate relationship between freedom and the rule of law' and that if one wishes to understand what freedom means and any one who wishes to secure it for society, he or she 'must understand the rule of law'^[103].

 It is my submission that both fundamental freedom and the rule of law , the enshrining principles of the Constitution, are extremely compromised or tarnished in an environment where structural as well as operational weaknesses are legion. This is pertinently relevant if one examines our criminal justice system especially the lack of training and skills development which, together with the provision of resources, constitute the juridical bedrock law and order and through it peace and social justice.

 Laws touching on the basic rights of citizens must be narrowly and precisely drafted so as to constitute a clear guide to official action and citizen conduct. Restrictions on fundamentals rights must not erode their basic essence, which, this submission maintains is what the ATB does to the contrary.

 If one has regards to the recently published final report of the Truth and Reconciliation Commission, one would that there was a definite link between incidents of torture and detention-without-trial provisions. This had prompted Amnesty International to warn that "the depth and persistence of abuses in the past strongly suggest that the reintroduction of the power to detain without charge carried the grave risk of a repetition of the past pattern of human rights violations. The likelihood of repetition is increased by the reality that torture still occurs in South Africa, primarily in the context of criminal investigation." Amnesty's concerns were borne out by the Independent Complaints Directorate's (ICD) annual report for 1999-2000, according to which the ICD received 28 allegations of torture committed by the police between April 1999 and March 2000. In interpreting these figures, the ICD warns that "under-reporting(was) to be expected".

 During the period 1999 to 2000, the ICD also received 4,380 complaints against the police. Of these, 209 complaints related to the death of crime suspects in police custody. The causes of death in these cases were: natural causes (31); suicides (63); injuries in custody (20); injuries prior to custody (28); and possible police negligence (67). There were a further 764 complaints of "serious criminal offences" allegedly committed by members of the police, including 500 cases of assault with the intent to commit grievous bodily harm or attempted murder.

 Although the ATB makes provisions for release on bail for persons standing trial on any charge under the draft bill, they can be released on bail only if they adduce evidence that satisfies the court that "exceptional circumstances exist which in the interests of justice permit their release." Such a burden of proof on an accused is harsh given the broad range of offences that the bill seeks to create.

 To reiterate, numerous pieces of legislation designed to combat terrorism, uphold internal security, and strengthen the hands of the security forces against terror groups are already on the South African statute books. Many of the available laws are not being fully used by the security forces because of a variety of operational weaknesses in the criminal justice system. Even the best legislation is ineffective if it is not properly implemented and used by the personnel (primarily the police and the prosecution service) of the criminal justice system. Many forms of crime can be effectively combated. As Martin Schonteich wrote that 'what is needed is a well-run and adequately resourced criminal justice system staffed by trained and motivated personnel. Amending the constitution and restricting accused persons' rights is not the answer'^[104].

As the editorial of a national Sunday paper commented: 'The constitution (was) in no need of repair. Our policing strategies are.'^[105]

 The government should direct its efforts at these weaknesses, before advocating draconian measures, in the form of the ATB, that seek to dilute rights entrenched in the country's Constitution.

 Dealing effectively with what is perceived as a 'sustained terrorist threat' is no easy task for civil liberties, constitutionally entrenched rights and the rule of law invariably come at a cost when it comes to fighting terrorism. For instance the state has to expend considerable resources and patiently collect evidence over frustratingly long periods of time to convict the kingpins of a closely-knit 'terrorist' network. The alternative is to apprehend and lock away suspected terrorists at all costs. This might seem the better way to some. However, to sacrifice individual rights and liberal values to combat acts of terror is to accept the terrorists' belief that the end justifies the means. It would be a mistake to introduce legislation that seeks to combat terrorism by diluting the rights of all South Africans. The country's history is full of examples of tough temporary legislative measures becoming permanent fixtures on the statute books.

 Even the best legislation is ineffective if it is not properly implemented and used by the personnel (primarily the police and the prosecution service) of the criminal justice system. Many forms of crime can be effectively combated. What is needed is a well-run and adequately resourced criminal justice system staffed by trained and motivated personnel. Amending the constitution and restricting accused persons' rights is not the answer. As the editorial of a national Sunday paper commented: 'The constitution is in no need of repair. Our policing strategies are.'^[106]

 Conclusion

 I submit that what the ATB does is that very much, like the USA-PATRIOT Act, and its antecedent the (US) Antiterrorism and Effective Death Penalty Act of 1996 , if it passes muster it will embolden the government to pass further laws that emasculate constitutional and human rights with impunity.

This can best be explained in its vagueness as well as in the manner it has been formulated. For example within months of the passage of the 1996 anti-terrorism bill, Congress enacted two other laws - the Illegal Immigration Reform and Immigrant Responsibility Act and the Prison Litigation Reform Act - that also shielded executive authority over disfavored minorities from review by neutral judges. While not a direct response to terrorism, each of these laws targeted a population - immigrants and prisoners, respectively - thought to contribute to domestic insecurity. All three laws are part of the same dangerous experiment of dubious constitutionality known as court-stripping.

 I submit that a review of our own legislative history will possibly reflect similar trends, given previous pronouncement by the late Minister Steve Tshewete that the Constitution could be amended in order to strengthen the hands of government to fight 'terrorism'.

 Since 1994 , government has adopted an increasingly cavalier attitude to protecting the rights of crime suspects and convicted offenders. Reasons for the change include consistently high levels of crime, operational demands and weaknesses of the criminal justice system, public pressure, and a general perception that the constitution is overly protective of the rights 'of criminals' at the expense of law abiding citizens. The provisions in the ATB reflects that trend.

 The reasons do not warrant the dilution of constitutional rights. The infringement of such rights inhibits the development of a free society and is unlikely to reduce crime levels or restore public confidence in the criminal justice system over the long-term. Numerous pieces of legislation designed to combat crime, and strengthen the hands of the law enforcement agencies are on the South African statute books. Many of the laws are not being used fully because of operational weaknesses in the criminal justice system. Policy makers need to direct their efforts at these weaknesses, before advocating Draconian measures which could have the effect of curtailing the rights and liberties entrenched in the country's constitution.

 Tough legislation and law enforcement policies are likely to fail in their aims if they are not properly implemented and used by the personnel of the criminal justice system. Many forms of crime, especially serious premeditated crime of the kind committed by organised crime syndicates can be effectively combated. What is needed is a well-run and adequately resourced criminal justice system staffed by trained and motivated personnel.

 Does UN Security Council Resolution 1373 oblige the South African government to pass the Anti-Terrorism Bill as many proponents thereof proclaim? It is deeply ironic that whilst the ATB seeks to combat 'terrorism' within the framework of the UN, two veto powers have opted to operate outside its framework. It is our submission that considering the wording of the Resolution itself all South Africa is obliged to do is to strengthen its criminal justice as well as security apparatus and considering that it has , since 1994, passed no less than seven laws empowering and enhancing their capacity, it needs to do no more than that.

 Laws already in existence¹⁰⁵

 There are already over 30 laws on our statute books which collectively have the capacity to address the concerns that have been raised by this amorphous crime of 'terrorism'.

Parliament has, since the Commission was requested to conduct this investigation, adopted the Safety Matters Rationalization Act, 1996 (Act No. 90 of 1996), which repealed all the security legislation of the Republic, including the legislation of the former TBVC states, which was clearly inconsonant with the interim Constitution. A total number of 34 laws were repealed in the process, whilst the operation of the following Acts of the Republic of South Africa were extended to the whole national territory of the Republic:

•       Riotous Assemblies Act, 1956 (Act No. 17 of 1956) Explosives Act, 1956 (Act No. 26 of 1956).
•       Intimidation Act, 1982 (Act No. 72 of 1982).
•       Internal Security Act, 1982 (Act No. 74 of 1982) (as amended by section 1 of the Safety Matters Rationalization Act, 1996).
•       Demonstrations in or near Court Buildings Prohibition Act, 1982 (Act No.71 of 1982).
•       Regulation of Gatherings Act, 1993 (Act No. 205 of 1993).

•   protect the country's internal security (much of it remnants of legislation enacted before 1994);
•   permit the state to restrict gatherings and demonstrations;
•   enhance the state's power to collect information on suspected terrorist organisations; and
•   target terrorism's foot soldiers and sources of money: criminal gangs and organised criminal groups respectively.

1.   Dealing with Emergency situations

•      The detainee must be allowed to choose, and to be visited at any reasonable time by, a medical practitioner and legal representative.
•      A court must review the detention as soon as reasonably possible, but no later than 10 days after the date the person was detained. The court must release the detainee unless it is necessary to continue the detention to restore peace and order.
•    The detainee must be allowed to appear in person before any court considering the detention, to be represented by a legal practitioner at those hearings, and to make representations against continued detention.
•    The state must present written reasons to the court to justify the continued detention of the detainee, and must give a copy of those reasons to the detainee.
•   If a court releases a detainee, that person may not be detained again on the same grounds unless the state first shows a court good cause for re-detaining that person.

 The act contains various provisions relating to the combating of terrorism. These include the mobilisation of the Citizen Force, the Reserve and the commandos for:

•   service in the prevention or suppression of terrorism;
•   compulsory service outside South Africa for the prevention or suppression of terrorism;
•   the safeguarding of the borders of South Africa for the prevention or suppression of terrorism;
•   the commandeering of, amongst other things, buildings, vehicles, aircraft and equipment for the prevention or suppression of terrorism; and
•   assuming control over transport systems for the prevention or suppression of terrorism.

1.       Terrorism, sabotage and intimidation

•   overthrow or endanger the state authority in South Africa;
•   achieve, bring about or promote any constitutional, political, industrial, social or economic aim or change in the country; or
•   induce the government to do or to abstain from doing any act or to adopt or abandon any particular standpoint.

•   endanger the safety, health or interests of the public anywhere in South Africa;
•   destroy, pollute, or contaminate any water supply intended for public use;
•   interrupt, impede or endanger the manufacture, storage, distribution or supply of fuel, power, water, or of medical, health, educational, police, fire-fighting, ambulance, postal, radio or television services, or any other public service;
•   cripple or interrupt any industry generally, or the production, supply or distribution of commodities or foodstuffs; or
•   impede or endanger the free movement of any traffic on land, at sea or in the air.

3. Assisting and training terrorists

•   taking part in the control, administration or management of any organisation;
•   organising, training, equipping or arming the members or supporters of any organisation; or
•   undergoing training in any organisation,

•   train anyone, or undergo any training, to conduct any military or paramilitary operation;
•   train anyone, or undergo any training, to construct, manufacture or use any weapon, ammunition, or explosive for the purpose of: endangering life or causing serious damage to property, promoting any political objective, or for military or paramilitary purposes; or
•   employ two or more persons trained, or intended to be trained, with a weapon, ammunition or explosive with the purpose of: endangering life or causing serious damage to property, promoting any political objective, or for military or paramilitary purposes.

•   Military assistance to a party to an armed conflict by means of: advice or training; personnel, financial, logistical, intelligence or operational support; personnel recruitment; medical or para-medical services; or procurement of equipment.
•   Security services for the protection of individuals involved in armed conflict or their property.
•   Any action aimed at overthrowing a government or undermining the constitutional order, sovereignty or territorial integrity of a state.
•   Any other action that has the result of furthering the military interests of a party to an armed conflict.

3.             Restricting protest and hatred
1. 4.1  Regulation of Gatherings Act of 1993

•   amounts to propaganda for war;
•   incites to imminent violence; or
•   advocates hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm.

3. Collecting and protecting information

6.                   Enhanced investigative power

•   the internal security of the country or the maintenance of law and order is likely to be endangered in consequence of any meeting which is being held or is to be held, or
•   an offence has been, is being or is likely to be committed, or that preparations for the commission of any offence are likely to be made.

•   a person who has been involved in the commission of a serious offence;
•   a person who is a witness to the commission of a serious offence;
•   a person who is suspected of intending to commit a serious offence; or
•   an object which may afford evidence of, or is intended to be used in the commission of a serious offence.

  7.          Targeting the tools of terrorism

9. Specific offences

•   on board an aircraft unlawfully seizes control of the aircraft by force, threat of force or intimidation, or assaults someone on the aircraft, thereby endangering the safety of the aircraft;
•   destroys or damages an aircraft which is likely to endanger its safety in flight;
•   places on an aircraft a device which is likely to destroy or damage the aircraft and is likely to endanger its safety in flight;
•   places at an airport a device which is calculated to endanger any person or any vehicle, aircraft, building or air navigation equipment;
•   wilfully pollutes any aviation fuel; or
•   performs any other act which may jeopardise the operation of an air carrier, the safety or good order of an airport,

10. Criminal laws

•   admits to criminal gang membership;
•   is identified as a member of a criminal gang by a parent or guardian;
•   resides in or frequents a particular criminal gang's area and adopts their style of dress, their use of hand signs, language or their tattoos, and associates with known members of a criminal gang;
•   has been arrested more than once in the company of identified members of a criminal gang for offences which are consistent with usual criminal gang activities; and
•   is identified as a member of a criminal gang by physical evidence such as photographs or other documentation.

•   it was planned or premeditated;
•   the victim was a law enforcement officer, or a person likely to give material evidence in a criminal trial; or
•   it involved rape or robbery with aggravating circumstances.

11. Common law crimes

We have over 30 laws on our statute books which can be suitably amended or fortified in response to the concerns or shortcomings expressed in the SALC report. My response is premised on two questions namely;

1. With over 30 pieces of existing legislation on the South African Statute Books designed to combat terrorism and related criminal behaviour as well as a brace of common law crimes that can be used against people engaging in terrorist activities, is there a need for an omnibus statute to address the issue of terrorism and a variety of crimes in one piece of legislation ?

 

2. Even the best legislation is ineffective, if it is not properly implemented and used by the personnel of our criminal justice system¹⁰⁶. Many of the existing laws designed to combat terrorism, uphold internal security and strengthen the hands of the security forces against terror groups are not being used fully. Martin Schonteich¹⁰⁷ submits that this is partly due to ' a variety of operational weaknesses in the criminal justice system such as a lack of detective and prosecution skills, resource constraints, a weak intelligence capacity and insufficient public co-operation with law enforcement agencies'. Should the government rather deal with the foregoing?

A strong argument against a new omnibus ATB is, in my opinion, made in the submission of Martin Schonteich¹⁰⁸ and others that many of the existing laws designed to combat terrorism, to uphold internal security and strengthen the hands of the security forces against terror groups were not being used fully and that this was partly due to ' a variety of operational weaknesses in the criminal justice system such as a lack of detective and prosecution skills, resource constraints, a weak intelligence capacity and insufficient public co-operation with law enforcement agencies'.

 If the heads of three leading inter-governmental human rights bodies^[110] affiliated to Amnesty International, could jointly caution governments on 29 November 2001, in an unprecedented move against excessive curbs on human rights and fundamental freedoms in tailoring measures to eradicate terrorism , I submit that we have enough laws on our statute books to meet the challenges of international terrorism. Apart from violating fundamental freedoms it also undermines legitimate dissent.

 Annexure B

There are more than 1 million Muslims living in South Africa. In the past, and on an on-going basis, the mainstream media has defined who Muslims are and what they represent for the general South African public. Their views and opinions, policy positions and strategic interests have always either been ignored or deliberately distorted.

 The Media Review Network, through a loose informal grouping of individuals, considered it imperative in the rapidly changing socio-political landscape of the new South Africa, to ensure that the dynamism of Islam not to be lost in the maze of perverse innuendos. The need to have Muslim opinions and insights heard on a daily basis as a matter of routine, rather than as an exception.

The aspiration of the Media Review Network is to dispel the myths and stereotypes about Islam and Muslims and to foster bridges of understanding. Muslim perspectives on issues impacting on South Africans are a prerequisite to a better understanding and appreciation of Islam. We believe that freedom of speech is a fundamental human right but it is also a responsibility which must be discharged with a sense of justice and a commitment to the truth.

• To monitor, analyse, dissect and evaluate distortions fabrications and double standards in the mass media.
• To research the impact on Islam caused by such misrepresentations and publish its findings on an on-going basis.
• To arouse curiosity, inquiry, research and interest in Islam.
• To counter the onslaught on Islam, it's norms and values.
• To identify and nullify certain stereotypes e.g.: "terrorists", "fundamentalists", "radicals", "fanatics", etc.
• To express alternate perspectives and policy positions on local and international issues.
• To be proactive in respect to projecting and promoting Islam.
• To establish rapport with journalists, editors and key opinion formers.
• To source appropriately qualified and articulate spokes-persons to represent Muslims on radio and TV; and to widen the network of informed Muslims to address the print media.
• To hold seminars and workshops on information gathering and dissemination.
• To promote the training of committed Muslims in the specialised fields of communication/journalism.
• To establish an effective network of co-operation with Muslims engaged in the publication of Islamic magazines, periodicals, newspapers and with those engaged in community Islamic radio stations

Tel: (012) 374 0326 / 1635 / 6987

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International Headquarters State of Kuwait

Safat

Established since 1977

Operations in Africa Branches in 34 Countries

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We are an internationally based non-governmental registered humanitarian and developmental organisation established since 25 years in 34 Countries of Africa.

We are extensively involved in practical humanitarian developmental projects that restore, maintain and enhance the self-respect and dignity of the most poverty stricken and down trodden needy people of the Continent of Africa.

The Human Rights Media Initiative is a media watchdog affiliated to Media Review Network, Africa Muslim Agency, Research And Information Network, and various other NGO's.

Its director is Saber Ahmed Jazbhay.

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