Submission on the Anti-Terrorism Bill  

1. Introduction

The Southern African Catholic Bishops' Conference welcomes this opportunity to make a submission on this important piece of legislation.

The Church condemns all acts of terrorism; terrorism is seen as a grievous affront to peace, justice, reconciliation, the common good and the intrinsic dignity of each person. The State has an obligation to ensure that citizens are protected from such acts. There are, however, limits within which this can be done.

1. Human rights must be respected - this includes the rights of the accused, as well as convicted terrorists. If their rights are not protected "rights run the risk of losing their nature ... and are subordinated to the subjective decision of others". Rights are universal and indivisible, no right is safe unless there is a commitment to respect all human rights. When one is violated or endangered, claiming that in doing so one is protecting the others, one is endangering all of them.
2. Responses and pre-emptive measures against terrorism need to respect the Rule of Law. Terrorism "cannot be combated by violating [the] laws and bases of democracy".
3. Anti-Terrorism laws should not be used to stifle legitimate political dissent or free expression. "Those pressures would be, in fact, a lack of tolerance and could hamper the construction of an authentic peace".
4. Anti-Terrorism laws should also not be passed to empower state law-enforcement agencies and impose draconian measures for fighting "ordinary" crime.

It is also important that the State not only look at ways to protect those within its borders, but that addresses the conditions that nurture the emergence of terrorism. People and groups in a just society do not feel the oppression, marginalisation or voicelessness that creates the environment for terrorism to breed. Every effort must be made to ensure that all people and all groups are given an opportunity to participate in the cultural, social and economic life of the country.

1. The Anti-Terrorism Bill

The present version of the Bill is a vast improvement on the draft Bills of 2000 and 2002. We welcome the changes made in response to the objections raised by the legal community and civil society.

1. Need for the Law

The first question that arises is the need for such legislation at all. The events of September 11 and South Africa's obligations under international agreements are given as the reasons for enacting comprehensive legislation on terrorism.

Legal practitioners and civil society organisations have questioned this rationale. While not denying that the government has a duty to ensure the safety of all, it is important to know why extra-ordinary measures are needed to combat acts of terror. All acts of terror are in themselves already pre-existing criminal acts that are committed with a political motive. We would argue that in order to combat terrorism existing legislation can be used, modified or amended as necessary.

The history of South Africa since 1994 shows that using "ordinary" legislation and the common law can be very effective in combating terrorist threats. From Pagad to the white-right, the police have successfully been able to find and apprehend some of the culprits. We share the fear that if the Anti-Terrorism Bill is enacted, it may be used to limit some civil liberties and against groups expressing legitimate political dissent.

More urgent, we would argue, is the need to allocate resources to the criminal justice system. If one looks at the situation in South Africa at the moment it is not that new laws are required, but rather that there should be better enforcement of the laws that exist. The pace of transformation within the police force, limited resources, low pay, and low conviction rates all need urgent attention.

2. Definition of "Terrorist Act" (Clause 1)

The definition as contained in the official version seems to have been incorrectly printed. It should read: "'terrorist act' means an unlawful act, committed in or outside the Republic; which is (a) a convention offence; or (b) likely to intimidate the public or a segment of the public".

The definition as it currently stands is very broad and vague, and offends against the requirement of legal certainty. It is possible to conceive of any number of acts which while unlawful and intimidatory to at least a segment of the public, would not ordinarily be considered terrorist. For example, reckless driving is clearly unlawful and can certainly intimidate other road users, but there is obviously no "terrorist" motivation involved. Likewise, an armed robbery is very likely to intimidate and even terrify that segment of the public who happen to be in its proximity, but is in most cases a crime of violence carried out for personal gain.

One of the consequences of combining the elements of a "terrorist act" is that the law could be used to stifle legitimate political dissent or protest. Illegal strikes and civil disobedience could fall foul of the law, for example a "illegal" march or demonstration, or a picket associated with an illegal strike would be both "unlawful" and "likely to intimidate" some segment of the public. It would be a matter of great regret, however, if these were labelled terrorist acts, which given the present definition they could be.

3. Offences and Penalties (Clause 2)

Clause 2(1) and Clause 2(2) seem to be repetitious. We would suggest that the words "knowingly facilitates be added to the list of prohibited acts in Clause 2(1)(c) and that Clause 2(2) be deleted.

4. Search of Vehicles (Clause 6)

Clause 6 states that the police can apply to a judge for a warrant to search vehicles and persons if it "appears to the judge that it is necessary in order to prevent terrorist acts". This would seem superfluous since the police are already empowered to carry out such a search in terms of the Criminal Procedure Act.

5. Investigative Hearings (Clauses 8&11)

Clause 11 (3) states that no answer or evidence "may be used or received against the person in any criminal proceedings". In effect this creates a "forced" whistle-blower. Clause 11 also restricts the right to silence and the right against self-incrimination. In this regard we are concerned that it is not always possible for a court to know whether or not evidence has been "derived" from a hearing of this nature. Such provisions are open to abuse and create limitations upon constitutional rights.

6. Declaration of Terrorist Organisations (Clause 14(2))

Clause 14(2) states that the Minister may "declare an organisation to be terrorist by notice in the Gazette". Given that the Gazette is not widely distributed or read, and is often written in English or Afrikaans, there is a high likelihood that the information will be available to only a small section of the population. There are procedures within the Promotion of Administrative Justice Act Regulations that can be used as a guideline to the measures outlined there (see Appendix 1).

7. Regulations (Clause 20)

Given the serious nature of terrorism and the constitutional implications of limiting rights and freedoms, it is important for Parliament to have oversight of the regulations promulgated by the Minister.

2. Conclusion

Terrorist acts are "radically unjust and increase situations of injustice. No motive, no cause, no ideology can justify them". Terrorism violates "every person's legitimate right to life and to lead that life in security and peace. At the same time, "the success of the rule of law cannot be separated from the recognition of and respect for human rights and fundamental freedoms, which no human institution can alter or eliminate".

As we have mentioned this version of the Bi8ll is a great improvement on earlier drafts. However, we believe that it is still a threat to various fundamental rights and that it is unnecessary in view of existing legislation. The definition of "terrorist act" which is central to the Bill, is too vague to be of any use and opens the way for action by the authorities which could be overly restrictive of the rights to freedom of association, expression and silence. Finally, we urge government to concentrate its efforts on providing the criminal justice system with the necessary resources to combat crime effectively. Simply passing more and more legislation will not make for a safer and better society.

Felicity Harrison

Researcher

1. The Minister must give notice of his intention to declare an organisation to be a terrorist organisation -

in the Government Gazette and a newspaper which is distributed, or in newspapers which collectively are distributed, throughout the Republic.

2. A notice published in terms of subregulation (1) must -

1. contain an invitation to members of the public who wish to make written representations to the Minister regarding the intended declaration to submit written representations to the Minister;
2. state the closing date, which may not be earlier than 30 days from the date of publication of the notice, for persons to submit

written representations.

3. state the name and official title of the person to whom any written representations or requests for permission must be sent or delivered; and
4. state the -

1. work postal and street address and, if available, also an electronic mail address;
2. work telephone number; and
3. fax number, if any, of the person contemplated in paragraph (c).

3. the Minister may, in addition, publicise the information referred to above by way of communications through the printed or electronic media, including by way of press releases, press conferences, the Internet, radio or television broadcasts, posters or leaflets.

1. A notice published in terms of (1) must be in at least two of the official languages.
2. A notice published in terms of must take account of language preferences and usage in the province or area concerned.
3. Written representations may be in any official language.

1. a notice must be publicised in the area in a manner that will bring the matter to be investigated to the attention of the community at large; and
2. the Minister must take special steps to solicit the views of members of the community on the matter to be investigated.