GRATITUDE
With all our reservations (which will emerge later) it must be placed on record at the outset that our Government representatives (including Ministers and other high powered officials) have granted us several audiences to state our views and are committed to more such meetings.

We are blessed to live in a democratic country, and to have a government that permits the open expression of honest disagreement, and which is prepared to hear our views. It must be acknowledged that because of its overwhelming popular support our Government is, whether it is right or wrong on this issue, likely to get its way regarding the passing of the Bill. Nevertheless it is prepared to discuss with groups that lack economic or political clout. Whilst it is no more than our right to be heard, there are few governments, which are so willingly do so.

THE SHORT TIME PERIOD FOR SUBMISSIONS NOTICE:
The Anti-Terrorism Bill ("ATB") was published in the Government Gazette in March 2003. In the Sunday Times of Friday 13 April 2003 the public was, in order to uphold the ideal of "making democracy work", invited to lodge written submissions within 10 working days. It has also been available on the internet for the privileged few.

In the same issue of the newspaper a longer response period was granted for submissions on the Local Government Property Bill, and the response period for submissions on the Liquor Bill was extended. It is submitted that the time that is required to study and comment on these Bills is considerably shorter than that required to study and comment on the ATB.

A poorly advertised limited extension until 23 May 2003 has been granted. We are aware that many other persons and groups also requested an extension. We fear that they may be many persons who, faced with the seemingly impossible task of making the 30 April 2003 deadline (or the 23 May 2003 deadline, for those who knew of it), simply took the attitude that there was no point in even trying.

The ATB will fundamentally affect the lives of every citizen. It goes to the very core of our Bill of Rights and infringes upon cherished and hard won democratic values. The scope and breadth of the body of law to be studied is immense. The ATB (which differs substantially from the previous 2 attempts) should have been widely advertised and interested parties engaged in intense and meaningful dialogue. Unlike say a Liquor Bill or a Road Transportation Bill, the matters raised by the ATB do not affect focused, vested and economically powerful interest groups, who will immediately be aware of its publication and have the resources to be able to quickly make inputs at various levels.

Instead the ATB has been poorly advertised and hurried through. In all likelihood it contains an error in its most crucial definitions. The matter has been so badly handled to the extent that the authorities have not even considered it appropriate to publish a correction of the apparent error.

The ATB claims that its final published form is the result of a "comprehensive review of the law relating to terrorism conducted by the South African Law Commission during which extensive consultation" took place. Before a proper submission on the ATB can be made one ought to study, amongst other things:

The Anti Terrorism Bill;

The SA constitution;

The Financial Intelligence Centre Act No. 38 of 2001;

The 22 legislative Acts in South Africa, which deal with "terrorist acts";

The 8 international conventions, which are listed in Schedule 1 of the ATB;

The form of ATB legislation in other UN member countries;

The application of ATB legislation in other United Nation member countries, which have already adopted it;

The laws (statutory, common law, by-law, national and municipal) of every other country in the world.

To do this will take enormous time and resources. The task is simply monumental. The State functionaries with their considerable resources have been engaged on this task for about 3 years, during which time they have had to go back to the drawing board on at least 2 occasions. The ATB infringes on entrenched fundamental constitutional rights (such as to liberty, property, rights of speech and association, the assumption of innocence until proven guilty, the prohibition of law by administrative decree). There is no pressing need to forgo proper consideration, debate and consultation, or to be rushed into passing the ATB.

The procedure (including holding of workshops) followed for the Muslim Personal Law Bill allowed for more meaningful debate and input from all stakeholders. White papers, and papers of various other colours, precede many Acts of Parliament.

Merely paying lip service to, and going through the motions of, the ideal of "making democracy work" does not in itself mean that in fact a democratic process has been followed.

With the limited opportunity granted to us these preliminary submissions are made. The right to make further submissions is reserved until the matter has been more properly digested, discussed and considered.

APPROACH AND FOCUS

The ATB has followed the pattern of AT legislation in other countries. A mere 17 days after September 11, the United Nations passed Resolution 1373 calling on member states to report on the steps that they will take to suppress terrorism. Legislation, particularly that which affects fundamental rights so drastically, ought to be passed only after careful consideration and should never be passed in haste riding on a wave of emotion. It has been argued that the United Sates has exploited the tragedies of September 11 to craft a grand scheme of a permanent global state of emergency to skilfully advance its imperial interests.

It is accepted by all reasonable people that the Bill of Rights in our Constitution should be protected and that terrorism needs to be addressed. Yet the approach that one takes to these two imperatives can lead to startlingly different results.

If a person’s starting point is that the ATB must be passed and that we must find a way of using the "lowest common denominator" to enact legislation that will only just not fall foul of the Constitution, then you will get a first draft that provides for detention without trial and other draconian provisions. The Law Commission rejected the previous draft arguing that it would not pass constitutional muster. This final draft is the ATB has been described

by Professor Andre Thomashausen as containing devious and unconstitutionally loose drafting, being intellectually dishonest, and as bringing in detention without trial through the back door by curtailing the right to bail. The ATB reflects the mindset and ethos of the State through its law enforcement arms. It is not surprising that the South African Police Services had a great input.

If, however, one approaches the matter from the viewpoint that the Bill of Rights is paramount and attempts must be made, within that framework, to accommodate the legitimate concern of fighting terrorism, then it is respectfully submitted that one will get a result vastly different from the ATB.

We have attached to this submission an extract of Section 36 of the Constitution 108 of 1996, which sets out the very stringent conditions under which limitations of our Bill of Rights are permitted. Our Honourable Members of Parliament are requested to refer to this Section when considering each provision of the ATB and decide for themselves whether or not these conditions have been met. Our Bill of Rights fosters an ethos of an open and democratic society based on human dignity and freedom. In particular, any necessary limitation must use the less restrictive means to achieve the purpose. If the ATB does not do this, then our Honourable Members as the custodians of our Constitution are duty bound to reject those provisions, which fail to meet the acid test. It would be unfortunate if the Bill of Rights of our young and fragile democracy is thrown on the scrap heap after only 10 short years in order to meet our realpolitik needs. As the sections of the ATB are analysed below we request the Honourable Members on each occasion to revisit Section 36 and we ask you to be the judge.

The South African Government appears to be under enormous pressure from the United Nations to urgently enact ATB legislation.

The future of NEPAD (which appears to be dependant on "western" funding), our country’s economic well-being by way of investments and trade deals, and our country’s prominent role in regional and international affairs will all be affected by whether or not we pass the ATB.

Recently groups have on a few occasions been granted an audience by Government representatives (who are in the main unaware of the specific provisions of the ATB) only to be told that ATB will be passed soon because of intense pressure from the United Nations, and because of the serious adverse consequences of failing to do so. Although modifications to the ATB will be considered, our Government has already resolved that the ATB will go through.

The truth of the matter is that South Africa does not face any real internal or international threat of terrorism and in all likelihood there is no necessity, other than for the aforementioned reasons, for us to pass the ATB.

As loyal South Africans it is only right to seek to advance the vested economic and political interests of our country. However, let us show honesty and openly admit that our freedoms must yield to pragmatic expedience.

The preamble records the background, and significant factors pertaining, to the ATB. In the light of the above it is submitted that the preamble does not tell the whole truth, because it omits those other factors of expediency, which may in reality be as important and persuasive.

The other relevant factors are that:

c) there is no real internal or international threat of terrorism to our country;

d) there is in all likelihood in law no necessity for us to pass the ATB;

e) it is vital to the economic and political interests of our country that the ATB is passed;

1. compelled its members to pass AT legislation (in particular those countries which have already complied by virtue of the fact that they already have adequate domestic legislation in place to deal with the phenomenon of terrorism);
2. set a time frame for the passing of AT legislation;

The preamble will be a record for posterity of our thinking and reasoning around the ATB. It should, therefore, be an accurate and complete record of the position. It is submitted that the preamble be amplified to more closely reflect the reality of the situation, alternatively it be deleted in its entirety.

INTERNATIONAL AND REGIONAL OBLIGATIONS

The ATB contends that South Africa will meet its international and regional obligations in passing the ATB. Resolution 1373 of the United Nations is a procedural step, which imposes a reporting duty on member states. 11 of the 14 SADC have complied with that reporting duty. However, other than South Africa and Mauritius, the other 9 do not consider it necessary to pass any further specific AT legislation, because they believe they have sufficient legislation in place. Mauritius was placed on the IMF list of facilitating money laundering and had to quickly fall in step. In the light of this the claim that South Africa is seeking to fulfil its regional obligations does not appear to be correct.

At a briefing on the ATB to the Safety and Security Portfolio Committee on 29 January 2003, Dr P Jacobs (Chief Manager of the Legal Component, Detective Services) cautioned that nations are sovereign and regional groups and other organisations can only encourage nations to comply.

It will be useful at the outset to deal in broad terms with the objections to the ATB. These concepts will be expanded upon later. In the new world order certain doctrines appear to have become accepted as permissible. The ATB is premised on, and underpinned by, these doctrines.

Pre-emptive strike. It is permissible to attack some one not for what they have actually done, but for what they might some time in the future do to you or to your vested interests.

Shock and awe. In order to impress and cower your enemies it is permissible to use greater force than is strictly necessary (or overkill) to avert the actual or potential threat. In other words the punishment or deterrent can be disproportionately excessive (and does not need to be commensurate with) the actual harm or likely threat of harm.

Collateral damage. Although some, perhaps many, innocent persons will definitely be injured as a result of your strike that is a "price that is worth paying", provided those who suffer are not from amongst your own or are sympathetic to your enemies.

You are either for us or against us. Any support, even moral, for the enemy makes you my enemy and a legitimate target for an all out attack.

Acts of terrorism invariably evoke strong emotions. In the main they are perpetrated by persons against innocent third parties in order to draw attention to their cause. Such cause may range from the highly laudable to the absolutely despicable. The act of terrorism itself, however, is nearly always despicable. Acts of terror can be committed also by organs of a State, often against unarmed and helpless civilians.

It is right that the South the African government should pass legislation to combat terrorism.

In the same way it is right that our Government should pass legislation to deal more effectively with vehicle hijacking, credit card scams, drug trafficking and other crimes plaguing our country and which have a cross-border element. Anti-terrorism legislation must however not violate the human rights enshrined in our constitution, and furthermore it must not be capable of being used as a political tool in the hands of the government for the time being as a means of suppressing legitimate opposition or dissent. In other words it must be couched, as well as be implemented, in a reasonable and even-handed manner, and in a manner that does not violate our fundamental constitutional rights more than is absolutely necessary in the circumstances. To use the language of the ATB, it must not contain even the likelihood (or potential) of abuse.

It is a trite saying that "One man's Terrorist is another man’s freedom fighter". A violent act perpetrated by an individual may be viewed by persons who support his cause as being less despicable than would persons who do not support his cause. His supporters may therefore be less inclined to label his act as a "terrorist act" than would his opponents. This is where subjective elements tend to intrude in determining what does or does not constitute terrorism.

At the said briefing to the Safety and Security Portfolio Committee Dr Jacobs explained that the word "terrorism" was not defined in the ATB because of the lack of international agreement on the definition. The fact that the draftsperson abandoned the attempt to define the word "terrorism" shows just how problematic this aspect is. It hardly seems right to title the Bill "Anti-Terrorism", when neither we, nor the rest of the world, have been able to define that word.

A historical sample of the type of acts, which are outlawed by the ATB as "terrorist acts" are listed below:

a) by the Prophet Moses against the Egyptians;

The challenge to the legislature is therefore to find an appropriate definition of terrorism, which is clear and precise and leaves no room for subjective interpretation. This is, it is respectfully submitted, where the ATB falls horribly short.

A TAPESTRY OF TERRORISM

Where were you on September 11 of 1973 when the CIA ousted the democratic government of Chile and installed the brutal dictator General Norieaga?

But we have gone a little ahead. Let us go back and trace the history of modern terrorism, which began with Begin. Irgun wanted to show the world that it could take on Britain. The King David Hotel was the headquarters of the British Administration in Palestine, but it was also a hotel. It was bombed in July 1946. Of the 91 persons killed 54 were civilians and 18 were Jews. One of the Jews killed left behind a pregnant widow. In a recent interview, the wife of the deceased claimed that Begin was a nationalist, whilst her now middle-aged daughter said he was a terrorist. Later civilians were specifically and exclusively targeted. Begin won, Britain left and Israel was born. Begin the father of modern terrorism won the Noble Peace Prize and a prize from the National Council of Churches in the USA.

In Malaya British troops enlisted and trained local communists to fight the hated common enemy, including how to poison the Japanese. The leader Chin Peng was praised by Lord Mountbatten and was awarded the O.B.E. After the Japanese threat receded Chin turned his efforts to liberate his country. He ambushed and gunned down Commissioner Sir Henry Gurney and was promptly declared the world’s greatest terrorist. To marginalize Chen, Britain negotiated with the moderates and 9 years later Malaysia became independent. Chin claims victory, because his efforts led to his country becoming independent.

Algeria was the jewel in the French crown, a province of France, but only for the French. The Algerians were second-class citizens in their own country. The Algerians took the war to the cities. Pretty Algerian girls dressed up and smuggled bombs into restaurants, which they left behind. The most famous was Zohra Drif, now a successful lawyer. The French let loose their police in what became known as "the Battle of Algiers". It was a no holds barred affair of torture and mayhem against the "terrorists" and their sympathisers. Algeria became a "torture factory". After only 9 days in custody one of the Algerian leaders died. The French claimed that it was suicide. In a recent interview the chief interrogator candidly admitted that it was not suicide. The French won the Battle of Algiers, but that did not stop Algeria gaining independence in 1962.

In Ireland Patrick Mcgee got 8 life terms for his part in the IRA. As part of the peace negotiations he was released. The terror had served its purpose and achieved a political solution.

At home we have the world’s most celebrated "terrorist", our beloved former President Nelson Mandela. The ANC was inspired by the Algerian model when it was, with reluctance, forced to turn from peaceful methods to armed struggle. Madiba quite deservedly won the Noble Peace Prize.

The lessons from history are two-fold :

1. firstly, neither the political process, nor violence, can alone achieve the objective. If there are no political means to achieve freedom, then terror ensues. But once political negotiations commence violence has served its purpose;
2. secondly, the road from terrorist to revered statesman is rapid (and in the case of Arafat – also a Nobel Peace Prize winner - back again to terrorist, is equally rapid).

Having attempted to give a clearer understanding of the topic, let us move on to discuss the Bill itself.

The crux of the ATB is the definitions of a "terrorist act" and of a "terrorist organisation". Everything else in the ATB turns around these key definitions. It will be argued that these definitions in the ATB are illogical and fundamentally flawed. If this proposition is correct then merely "panel beating" is not going to save the ATB. At the very least it would need a complete overhaul, if not remodelling.

Only after re-reading the ATB did it appear to us to be either an error or misprint. We have made this assumption and have dealt with our submissions on this basis. If we are correct that this is a misprint, then we do wonder what else may also have been misprinted? If there are other errors or misprints, which we have not been astute enough to have discovered then we have been seriously prejudiced.

We fear that there may be others, who having read what was printed, decided that there was no point in making submissions on something so utterly meaningless, as there was no way that Parliament would ever pass the ATB.

The misprint concerns the 2 vital definitions in the ATB. The Bill has far reaching and serious criminal consequences. We suggest that the correct version of the ATB be published in the Gazette and broadly advertised so that all interested parties have a reasonable opportunity to make submissions on this very important matter.

The definition of a "terrorist act" in the ATB ought to have read as follows:

A "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; "

It is respectfully submitted that this definition lacks clarity and a person may, with good reason, be unaware that he is committing a "terrorist act" as defined by the ATB. Our constitutional court has ruled that in such circumstances a provision would be unconstitutional. We will now try to explain why we submit that the definition is vague and embarrassing.

A "convention offence" is in turn defined as meaning an offence listed in Schedule 1 to the Act. The schedule in turn refers to a number of different offences as contemplated in various different Conventions referred to therein. In the main there cannot be much argument against such (convention) offences being deemed to be terrorist acts. However, it would be impossible for a person reading the schedule to be aware of precisely what constitutes the offences referred to therein. By failing to spell out what act or activities constitute the actual offences, and to rely instead on the incorporation by reference of the conventions (which in any event were never intended to be applied as national law in a criminal trial), means that the first part of the definition of a "terrorist act" is vague and embarrassing. Furthermore one would need to carefully examine the wording of the various conventions to ensure that key definitions therein are not loosely and shoddily drafted.

The second part of the definition is even more problematic. In terms thereof, any unlawful act committed anywhere in the world will be deemed to be a terrorist act if it is likely to intimidate the public or a segment thereof. Here lies the rub. Any act committed anywhere in the world which is contrary to any law (i.e. the common law, statute or by-law, national and even municipal) of the place where the act was committed will constitute a terrorist act if it is deemed likely to intimidate a segment of the public.

Therefore South Africans are, for the purposes of the ATB, required to have detailed knowledge of the laws (i.e. municipal, provincial or national common or un-codified law, statute or by-law) of every country in the world. With the greatest respect to our Law Commission we doubt that they could, notwithstanding their "comprehensive review", boast such knowledge.

What does the word "intimidate" mean? Does it require a fear of physical harm? It is not even necessary for the act to in fact intimidate any person, it is sufficient that it is likely to do so. Our Jewish brethren suffer from a persecution complex and notoriously feel intimidated (or threatened) by anything and everything they consider anti-Semitic. Consider a peaceful protest gathering of more than 15 persons without permission (and therefore unlawful) outside the Israeli embassy in Pretoria at which anti-Israeli slogans are uttered. Now whilst our Courts may take a more objective and enlightened view, what assurance can we have that an Israeli court relying on extra-territorial jurisdiction will not interpret its own corresponding AT legislation to convict a South African citizen for having committed a "terrorist act" in South Africa? Our government could hardly protest because this is the vague and dangerous legislation that we would have bound ourselves to police and uphold.

The criticisms of the ATB regarding incorporation by reference and lack of clarity are, therefore, even more apposite in relation to the second part of the definition.

It must be noted that there are a host of countries with laws so oppressive that would not pass the muster of our noble constitution, but a contravention of such a vile law may in certain circumstances cause one to commit a terrorist act.

We ought to mention at this juncture that the golden rule of interpretation is that if the wording is not ambiguous one must apply the literal interpretation. We also mention that the dictionary defines a "segment" as "one ring in a worm". Accordingly a vast number of acts could fall within this broad ill- defined category, which would not, in the ordinary course, be considered to be an act of terrorism.

An obvious example would be armed robbery. If the robber brandishes a weapon in order to intimidate members of the public from resisting the robbery he would for the purposes of the ATB, be committing a terrorist act.

An even more bizarre example would be where participants in a lawful pavement demonstration block the pavement thereby breaching a by-law. Furthermore if, during the course of that otherwise peaceful and lawful demonstration by Cosatu, anything is said or done which could be construed as being intimidatory (such as for instance the overturning of a dirt bin causing the surrounding shop keepers to hastily board up their shop windows) certain of the participants in the demonstration would be guilty of a terrorist act.

This has been described by Esther Steyn as Lobster Pot variety of legislation, that is one that it is easy to be put into but well neigh impossible to get out of or be able to avoid. These are surely not the types of behaviour that the TB or the various United Nations conventions on terrorism are seeking to eliminate.

The concern is that the Director of Public Prosecutions would be entitled, if the ATB became law, to treat such activities as terrorism and prosecute in terms of the Act. As can be seen, therefore, an Anti- Terrorism Act, which contains such a loosely worded definition of "terrorist act" could be a useful tool in the hands of unscrupulous government officials for silencing legitimate opposition or dissent. It would be in the discretion of our Director to decide to whether to charge our thrash can offender under the ATB for committing a "terrorist act" with its serious consequences, or under public nuisance with its not so serious consequences. Thus the same act can have different consequences depending upon the arbitrary executive decision of:

a) the policeman who makes the arrest;

b) the Director.

The consequences could be more catastrophic if a member of the public decides to make a citizen’s arrest pursuant to such a crime under the ATB.

As touched on earlier the ATB introduces extra-territorial jurisdiction and the principles of reciprocity and prosecute or extradite. There is, therefore, a very real possibility (or rather probability or should we say likelihood) that AT legislation containing such a loosely worded definition of "terrorist act" will be a useful tool in the hands of unscrupulous governments of other countries for silencing legitimate opposition or dissent world-wide.

The ATB does not seek to discover how evil the law is, only that it is the law. For instance, Pharaoh decreed that all new born Jewish children must be killed. Or Hitler decreed that Jews must be placed in death camps. Any action opposing this and which intimidates a segment of the public, seems under the ATB to constitute a "terrorist act"? Whilst the examples given in this paragraph are extreme, there are many vile laws all over the world with varying degrees of grey in between. In terms of the ATB South Africa is bound to prosecute or extradite. Of course if that unscrupulous country relies on the extra-territorial powers of jurisdiction then our Courts will not even be brought into the picture.

A clear and precise definition of what constitutes a "terrorist act" is therefore required. The formulation of such a definition is no easy task. However, as is argued above the formulation arrived at in the ATB can (or, in the language of the ATB, is likely to) lead to absurd and unfair results.

There will be some that argue that such absurd results will not happen in South Africa, this is not what the legislature intends and that the ATB will not be misused to prosecute for political purposes an otherwise minor infringement. Furthermore, our Constitution Court will strike down provisions that violate the Bill of Rights. Accordingly we are adequately protected against such absurdity.

These assurances are small comfort to a person, who at considerable expense is released after a sojourn in prison. It would be a lot worse for a person who could not afford to mount a legal challenge. Accordingly the argument that we should not be alarmed because our Courts will ultimately protect us against any attempt by the authorities to enforce such minor infringements must be rejected.

It is beyond dispute that our ANC Government has impeccable credentials. Under immense pressure it stood up to the United States over Cuba and Palestine. Recently it has withstood pressure over Iraq. Whilst we may have the assurance and comfort that our present Government will act reasonably and fairly, we are not here considering the commendable track record of our Government, but instead analysing whether or not the ATB as it is presently worded can, in the hands of the unscrupulous, be used as a political tool.

Our Government representatives will tell you that we are on the same side, we grew up together in the liberation struggle and we must trust the ANC implicitly to protect us. After all if we are innocent what do we have to fear? When considering whether or not the ATB (or any legislation for that matter) is good or bad, we must not base our decision on how we think our courageous and morally upright ANC will apply it, but on how a Mugabe in his old age could abuse it. If it were otherwise then we may as well jettison our constitution and blissfully submit ourselves to the benign mercy of our government.

It is in the nature of things that governments come and go. The sun even (thankfully) set on the British empire. Our constitution is there to protect us against whatever government we have.

The proponents of the ATB will avoid dealing with how AT legislation can (is likely to) be abused by foreign governments to violate our rights.

One aspect that seems to be ignored by all proponents of the ATB is its stated principle of "extradite or prosecute" as required by the international instruments. Whilst we may have every confidence in our government and our courts, what will the situation be if we choose not to prosecute, and are therefore obliged to extradite? Judge Goldstone believes that the United States had no qualms in acting unlawfully, and Hans Blix believes that it had no qualms in fabricating documentary evidence. The United States is holding prisoners of war (or what it terms unlawful combatants) in the gulag of Guantanamo Bay under inhumane conditions for almost 2 years without them even being charged. (Periodically some are released, without being charged, after being manacled, left to the elements, tortured and threatened with release to less compassionate allies). Perhaps other countries, which are not such bastions of democracy and decency as is the United States, may be even less circumspect. What then would be the fate of our citizens who were extradited? If one of our citizens whilst on a visit to another country is arrested under the AT type legislation for an act, which we might consider to be a minor non-terrorist type act, we could hardly complain because this is the specific legislation to which we have bound ourselves to police, reciprocate and uphold.

The former Consul General to South Africa Mr Craig Khuel was asked why, instead of invading Afghanistan, the United States did not simply accept the Afghan Government’s offer to try Bin Laden in a neutral country. His answer was that, after the International Court in Holland (tried under Scottish Law) found one of the Libyans accused of the Lockerbie atrocity not guilty, the United States would not again agree to an independent court trying such matters.

Of even greater concern is the power of extra-territorial jurisdiction. Consider the situation of a South African national and citizen who commits an offence under the AT legislation no matter how minor in South Africa, but which offends the sensibilities of another country which has also passed AT legislation. If that citizen of ours stepped out of our country and was hunted down, seized and tried either in that country (or sent to another country to be tried in for instance Libya or Israel) what assurance would we have of a fair trial. Would our citizen be tried in open court? What if that country imposed the death penalty for the offence upon conviction? There are so many questions (many not yet even thought of) that need to be answered. The ATB needs to be carefully unpacked and trashed out at workshops in order to iron out the many potential problems that could arise. It should not under any circumstances be rushed through with such indecent haste. The inputs to the Law Commission on the prior drafts does not do away with this need, because the ATB differs substantially from the previous drafts.

However, if bizarre, unfair and unjust consequences are not what is intended by the ATB, then it should not be beyond the expertise of our draftspersons to arrive at a better formulation of the core definitions in the ATB. It is respectfully submitted that the core terms are defined loosely, are subjective and are capable of administrative manipulation.

It is a sad and dangerous day when politicians play around with words to suit a political agenda so that they lose their ordinary meaning. Under apartheid the word "communism" was used to embrace every type of activity, no matter how peaceful, which opposed that crime against humanity. Whilst there is nothing fundamentally wrong or right in being a communist, the word was so corrupted that it became a badge of honour for a South African to be declared a "communist", regardless of whether or not that person was in truth one.

Under apartheid peaceful acts of civil disobedience were regarded as "likely to intimidate" a segment of the public or of knowingly supporting a communist organisation. The ATB seeks to introduce the same concepts into our law. But it goes much further. An offender becomes a pariah, a leper, one with whom no person (not even your parent or life partner) may have any dealings. Not even apartheid legislation dared to go this far.

To our shame, if the ATB had been law at the time of apartheid:

1. Nelson Mandela would be a "terrorist" and any one who "supported" him or associated in any way with his aims and objectives would be guilty of so serious an offence that their right to bail would be considered (like with murder and rape) only under Schedule 6 of the Criminal Procedure Act. All those (inside and outside of parliament, including those in the Ministries of Intelligence or Justice or Safety and Security) who supported Mr Mandela would be guilty of such an offence;
2. if you gave money to the Defence and Aid Fund to pay for the legal defence of persons charged with opposing apartheid, you would be guilty of a serious offence;
3. if you gave money to help Ma Albertina Sisulu to raise and educate her kids, you would be guilty of a serious offence;
4. if you gave money to the Nelson Mandela Children’s Fund, you would be guilty of a serious offence.

The scope of the definition of "terrorist act" is so wide under the ATB that it is unable in law to distinguish between satyagraha (that noble concept of the passive non-violent breach of oppressive laws espoused by that apostle of peace Mahatma Gandhi) and a Bali bomb.

We paraphrase from page 60 of the book "We Nehrus" by K N Hutheesing. During the Indian struggle for independence from the British, Gandhi was forced to accept that human nature can never be so perfect as to avoid all violence in a clash of the people against an oppressive government. Even if discipline was perfected a cynical enemy could always hire people to start a riot and then blame it on Gandhi’s followers. Gandhi announced that the Movement would not be stopped because of minor rioting.

Any legislation that has the effect of categorising Mahatma Ghandi and Martin Luther King as persons who commit "terrorist acts" quite simply lacks any legitimacy.

The ATB does not seek only to attack the "terrorist act" itself but it also attacks otherwise quite lawful and even laudable acts, such as giving charity to feeding schemes. We are reminded of the vivid image in the newspaper recently, which showed an Allied soldier giving a cigarette to a captured Iraqi soldier. If we ignore the fact that a cigarette is now considered a noxious and harmful weed, was the Allied soldier committing a serious offence or was he committing an act of humanity? The answer depends largely on whether or not you chose to try that soldier under the ATB.

Many of us attended a recent R100,00 a plate fund raising dinner held by the Palestine Support Committee, which wanted to establish a student exchange programme with the view of promoting a better understanding of the plight of the Palestinians. Was each guest committing a serious offence under the ATB? Perhaps not in a South African Court, but what about in a court of another country?

Our trashcan offender marching down Adderley street in a legal but noisy march may be guilty of a terrorist act.

In the kingdom of Alice in Wonderland words were declared by the government of the day to bear a meaning opposite of what they in truth were. Let us not go down that ridiculous route.

SEPTEMBER 11

It is naïve in the extreme if we were to ignore the fact that the ATB has a specific political context. It is not possible to consider the ATB in a vacuum without due regard to September 11 and all the other political factors at play. Resolution 1373 (which calls on member states of the United Nations to report on the steps they have taken to combat terrorism) came in the immediate aftermath (a mere 17 days later) of September 11. In fact the ATB in its preamble and elsewhere does not seek to hide this inescapable cloud that hangs over and permeates the ATB.

United States government agencies have for years been sponsoring terrorism in various countries, such as in Chile and Nicaragua. Kissinger is still eluding being charged for war crimes. On September 11 for the first time Americans felt the full brunt of terror. As a consequence the lives of every person in the world changed in a fundamental way. A new world order was introduced and this is a reality we all have to deal with.

However in order to appreciate how the ATB will be implemented it is necessary to take cognisance the new world order created by the events around the war on Iraq.

The Honourable Judge Richard Goldstone is reported in the Sunday Times of 30 March (a copy of the article is attached) to have said:

1. the war against Iraq is unlawful and morally unjustifiable;

d) I have seen no evidence linking Sadam to international terrorism.

f) both US and Iraq have been in breach of the Geneva Convention.

Now with regard to the last accusation by Judge Goldstone what are the chances of the any member of the Coalition forces ever being convicted of a breach of the Geneva Convention? It seems that the chances of an Iraqi being convicted of such a breach are much higher. This then is the type of illegitimacy and inequality that the Security Council of the United Nations is inherently subject to, and which the ATB seeks to harshly enforce and perpetuate.

Section 9 of The Constitution of the Republic of South Africa upholds the concept that everyone is equal before the law having the right to equal protection and benefit of the law. The composition of the Security Council and veto power of the permanent members has the effect that some are more equal than others. The principle of extradite or prosecute means that our country will be bound to uphold, police and enforce this inherent inequality and injustice. This is the principle of "might is right" (or the law of the jungle).

The United Nations and its Security Council were created in the context of the Cold War, which had the checks and balances of 2 opposing super power blocks. This situation has now changed so that one country alone, the United States of America, can unchecked dominate and impose its political will on the whole world. There is the old adage "absolute power corrupts absolutely". Whilst even now with regard to our international affairs, and considering political and military realities, the United Nations may be the best we have, there is no reason why this inherently unjust principle must be incorporated into our domestic law.

Chief Weapons Inspector Hans Blix is reported in the Mercury of 11 April 2003 (a copy of the article is attached) to have said:

1. the invasion of Iraq was planned a long time in advance;
2. the Coalition was not primarily concerned with finding any banned weapons, which had been relegated to fourth place;
3. he doubted that Washington believed that Iraq had banned weapons. (We attach an article from the Mercury of 14 May 2003. The US army search team states that, after investigating numerous sites identified by US intelligence as likely to harbour weapons of mass destruction in Iraq, it was winding down its search having accepted that it is unlikely to find any such weapons. We wonder what Tony Blair would say to the Iraqi child who lost both his arms, both his parents and all his siblings in the US and British smart bombardment of Baghdad?);
4. Washington had fabricated evidence, like the fake contract with Niger to import uranium;
5. Washington’s message was that a country that did not possess nuclear weapons risked being attacked.

The decision by the Security Council to declare an organisation as an "international terrorist organisation" is a political act. Any country not siding with the United Sates has been warned that it will be viewed as being against the world’s only superpower. The consequences of rousing the wrath of the United States are immense and could range from economic disadvantage to military action. Even the so-called "dove" Colin Powell has stated that France will pay a heavy price for having opposed the war on Iraq.

Now it is not only the United States that exerts pressure on member states of the United Nations to vote in a certain manner. A Francophone country may feel that its best interests lie with France, or that perhaps it owes allegiance to NEPAD, or that it may fear that it will be next to feel someone’s wrath in some meaningful way if it does not deliver.

It does not seem right that such purely political and even self-serving decisions should be allowed to impact on our constitutionally protected domestic rights. The proponents of the ATB cannot bury their heads in the sand and simply ignore (or wish away) the manner in which decisions are reached in the Security Council.

We have been told that the ATB is a fait accompli and all we can hope to do is panel beat it to make it more workable and acceptable. One of the reasons advanced are that our Government is facing enormous pressure from the United Nations to have the ATB in place soon or face losing financial assistance for NEPAD.

If the primary purposes (which justifies) the passing of the ATB are other than the real threat of "terrorism", which is a pretext and in truth only in "fourth place" in the order of concerns, then let us, if necessary, amend Section 36 of our constitution to allow for greater pragmatic interests to override the presumption of innocent until proven guilty and other provisions in our Bill of Rights.

Let us assume that recent acts of terrorism and the international and regional obligations of South Africa necessitate new AT legislation being passed in South Africa. It then needs to be asked why if the United Nations does not enforce all its laws and resolutions (such as allowing Israel with impunity to consistently violate its resolutions over a period of more than 30 years), how can it legitimately expect member States to enforce AT legislation? It is the same United Nations that the United States (the sponsor of AT legislation) ignored and declared it to be irrelevant over Iraq. Is this the equality before the law that is espoused by our constitution?

Is there a need then to pass AT legislation to deal with international terrorism? If the answer is in the affirmative then the following questions arise:

1. is it possible to arrive at a formulation that is just and even-handed ?
2. if the answer is yes, then what specific form should the ATB take?

In its present form the application of the ATB has the potential danger of blatant political abuse (from international sources, from foreign governments and from a future government of ours). This will be even more obvious when Section 14 of the ATB is discussed below.

The consequences of an organisation being declared a "terrorist organisation" are severe. For example, the provisions of the Prevention of Organised Crime Act 21 of 1998 become applicable to the organisation and it may lose its assets. Therefore clearly the provisions of Section 14 of the Bill will have to be strictly interpreted in order to ensure the constitutionality thereof.

There are 2 routes for the Minister for Safety and Security to declare an organisation to be a "terrorist organisation".

The first route is contained in Section 14 (1) read with Section 1 of the ATB. The Minister "may" declare an organisation to be a "terrorist organisation" if it has been declared an "international terrorist organisation" by a decision of the Security Council of the United Nations.

We need to find out what the basis is for the Security Council to declare an organisation a terrorist one, and not another? If there are no legal rules to govern such a decision, but it is left to the arbitrary decision of the majority of the members of the Security Council, then the determination is no longer a judicial one but will be politically driven.

There could be 2 organisations, which conduct themselves in an identical manner. The one organisation is supported by the USA whilst another is supported by some impoverished African state. The likely result is that the USA vetoes the declaration of the one it sponsors, and bribes the declaration of another as a terrorist organisation. What sort of legitimacy is this? The Iraq war has shown how vulnerable members of the Security Council are to the (blatant and brazen) bullying, blackmail and bribery by the USA to vote in a particular fashion.

There will be trade offs, so that if you vote to declare my enemy a terrorist organisation. "I will reciprocate by voting against your enemy".

If our judiciary could be subject to such pressure in determining the legal fate of our citizens we would regard it as bribery and corruption and any such decision would never survive a constitutional challenge. Why then should it be any different simply because it is the UN Security Council that is susceptible to prostituting itself.

For any organisation to be, in terms of Section 14 (1), declared a terrorist organisation in South Africa it is a prerequisite to be declared an "international terrorist organisation" by the Security Council. It is submitted that any decision of the Security Council (with its built in non-democratic veto power) inherently lacks the validity and legitimacy and checks and balances demanded by our constitution.

It is submitted that the mere fact that the rich and powerful nations have a veto vote violates our constitution, which is premised on fairness, equity and justice and cannot countenance any decision that offends against these principles.

Our views are moulded by the information from embedded journalists of Reuters and CNN. As a result it is the common perception that it is only Muslims who are terrorists. Thus we have no problem with the fact that of the organisations declared as "international terrorist organisations"

by the Security Council of the United Nations, no about 80% were Muslim. It must come as a surprise to learn that in the year 2001 out of the 219 attacks in which citizens of the United

States suffered casualties, only 8 incidents took place in the Middle East, whilst 191 were in Latin America. These are the official figures supplied by the U.S. Department of State and we attach a copy of its release. Are we still going to bury our heads in the sand?

There is no compulsion on the Minister to declare any organisation as a "terrorist organisation" merely because it has been declared as such by the Security Council. The Minister may, but is in no way obliged, so to declare. Although the word "may" is used, South Africa as a loyal member of the UN seems to feel itself obliged to follow the "urgings" of the United Nations. If the pressure on South Africa is intense now, it will be ratcheted up then.

The mere declaration by the Minister by way of a notice in the Gazette pursuant to Section 14 (1) makes the organisation a "terrorist organisation". There is no forewarning and no provision for a person affected thereby to challenge such declaration in Court. The mere fact that the Security Council and the Minister declare a body to be a "terrorist organisation" is final. This is a case of law by administrative decree.

Although there is no provision for compliance with the audi alteram partem principle before an organisation may be declared a terrorist organisation under Section 14 (1), the Minister is given a discretion whether or not, in those circumstances, to declare an organisation a terrorist organisation. He is not obliged simply to follow the Security Council. That being so, his decision would amount to "administrative action" as referred to in the Promotion of Administrative Justice Act No 3 of 2000 and could be reviewable in terms of that Act if his decision was found not to be rational.

Although the Minister is not obliged to follow the Security Council, the manner in which the Security Council arrives at a decision is known to be subjective, prone to political influence and inherently unjust. Whilst various countries will be forced to abandon their nuclear and other weapons programmes (real or imagined), will the Security Council ever be able to force Israel to abandon its nuclear programme? The moment the Security Council decides to declare an organisation a "an international terrorist organisation" the United States will bring intolerable pressure on our Minister to follow suit.

When we argue that the "may" in the ATB will in practice result in a "shall" by the Minister, the proponents of the ATB invariably express righteous indignation and accuse us of disloyalty in questioning the bona fides of the ANC government. Let us, however, be objective and avoid speculation by looking at the facts. The Financial Intelligence Centre Act No. 38 of 2001 is part of a basket of legislation to combat terrorism. The United Nations Security Council has issued sanctions against Unita and Taliban/Al Qaida. In terms of the UN resolutions all financial resources of identified persons must be frozen. The Registrar of Banks has expressed the view that United Nations member states are obliged to ensure the full implementation of these Security Council resolutions, and that he had a duty to issue a directive to the banks.

Accordingly he issued a directive to the banks under Section 7 (1) (a) of the Banks Act 1990. We attach the 2 directives dated 13 March 2002 and 27 August 2002 respectively and the new consolidated list updated as at 8 July 2002. It would appear that the Registrar has not exercised any independent judgment, but believes that he is obliged merely to rubber stamp and endorse the Security Council resolutions.

We attach an extract of Section 7 of the Banks Act, which states that:

"The Registrar may by notice in writing-

(a) direct a bank …."

We respectfully submit that the Registrar and his advisors have failed to appreciate that in making an "administrative action" the Registrar is obliged to exercise his mind to reach an independent and rational decision, and that a failure to have done so could lead to it being set aside on review under the Promotion of Administrative Justice Act No 3 of 2000. Nevertheless this is precisely what in practice will happen under the ATB. The reason the Registrar has not been challenged, is due to the lack of locus standi.

It is submitted that Section 14 (1) be jettisoned in toto. If administrative decisions are going to be countenanced then our Minister must be left to make a decision free from undue pressure. For our Minister to make a decision he must have first given due consideration to the matter. If he has applied his mind to the matter there cannot be any reasonable objection to him giving reasons for his decision. It is submitted, therefore, that in every case the Minister must be obliged to follow the notification procedure under Section 14 (2), but with the proviso that the further safeguards mentioned below must be implemented.

If, however, Section 14 (1) is retained then in order to make it democratic and untainted by the veto power, the decision should be that of the majority of members of the General Assembly and not that of the Security Council.

THE NEED

Is there a need for AT legislation to deal with local home-bred terrorism? One argument advanced by proponents is that we do need the ATB to combat urban terrorism. The example given is that of the AWB and right wing extremists. If home-bred local (or urban) terrorism is indeed the true reason why ATB is required, then we need to answer the following questions:

1. do we, or do we not already, have "appropriate domestic legislation" to deal with it? or
2. is it that our enforcement (policing and prosecution) that needs tightening up? or
3. could we not simply pass a separate Bill dealing with domestic terrorism only?

It must be pointed out that the recent right wing threat and that of Pagad have been effectively dealt with by our existing laws and prosecuting capabilities.

Although it is not strictly correct to say that section 14 (2) deals only with local terrorism, it is fair to say in this country this is what will in practice happen.

In terms of Section 14 (2), the Minister may also declare an organisation to be a "terrorist organisation" if he has "reasonable grounds for believing that an organisation, or any of its members on its behalf, has:

(a) claimed responsibility for a terrorist act; or

(b) committed a terrorist act; or

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

There is provision for compliance with the audi alteram partem principle before an organisation may be declared a terrorist organisation under Section 14 (2). Before acting under this sub-section the Minister must first publish a notice in the Gazette stating his grounds.

Certain practical considerations come to mind arising from the provisions of this section.

The definition of "terrorist act" is so wide that it includes a multitude of "sins", some relatively minor.

The use of agent provocateurs to discredit organisations is widespread and it would be naïve or dishonest to contend otherwise. Anyone can phone in and claim responsibility for a bomb going off.

The world was duped by Powell’s high tech fabrications (based on shaky intelligence, or fabricated evidence as Hans Blix termed it, or on plagiarism of a 10 year old thesis passed off as compelling new evidence). What chance does our Minister or a High Court judge in chambers or an ordinary citizen have against such overwhelming odds?

Try appreciating the task faced by poor Derek Bond, who was locked up in SA for 20 days based on FBI intelligence gathered over a period of 5 years, to prove his innocence.

It may be near impossible for an applicant to discharge the onus cast on her of proving that the Minister does not have reasonable grounds for his belief.

It is unclear what an organisation has to do in order to qualify as a "terrorist organisation". Can Cosatu be declared one because of the trashcan offender? If the ATB is interpreted literally under Section 14 (2) (b) it could be. Even more "curiouser" says Alice. There is no objective measure or yardstick to judge the conduct. How then does one go about proving one is not a "terrorist organisation"?

The dictionary defines "behalf" as "in the interest of". Therefore if some one acts without a mandate or even contrary to instructions, it could still be argued that an organisation can be named if the Minister reasonably believes that a member was acting in its interest. For instance, if Robert Mac Bride (an ANC cadre) blows up Magoos Bar, even if the ANC can prove he was a renegade acting on his own, the ANC it is submitted could be declared a terrorist organisation. Thus even when Arafat, who is under indefinite house arrest, condemns a suicide bombing, he is still held personally responsible by the United States and Israel for each and every suicide bombing that takes place any where in Palestine or Israel.

Section 14 (2) which says "on its behalf" should be amended to read "under its command" or "under its direction" so that such confusion (and likelihood of deliberate manipulation) can be avoided. Always bear in mind "prosecute or extradite" and extra-territorial jurisdiction.

Only the organisation or its member has the power within 60 days to challenge such notice by way of an interdict to the High Court. However, the potential number of persons that can be affected by the declaration of an organisation as a terrorist organisation is infinite.

Just pause to consider the wide ambit of Section 2. Under sub-section (3) if you life partner is a member of an organisation declared as terrorist by the Minister then you must not let her into your home or give her supper and you must report her presence to the authorities. Why should you be prohibited by the ATB from having locus standi in respect of an administrative decision, which will have such a devastating impact on your life and constitutional rights?

Surely every person affected by the declaration ought to have locus stand? We submit that Section 2 of the ATB is so wide in its scope that every citizen and resident of South Africa ought to have locus standi.

What is an "organisation"? The dictionary defines it as an "organised body or system or society".

Firstly if state terrorism is not checked by the ATB, but only freedom struggles then does the ATB have any legitimacy? For instance, is the state sponsored terrorism of Mugabe, any different from any terrorism inflicted by the MDC?

How large in number, or formal in structure, must it be to qualify as an organisation? Does it need paid up members? Can an idea, a movement, a popular uprising (which is formless and unstructured), a thread of persons so different in many respects but sharing a common purpose (such as the anti-apartheid movement) constitute an organisation?

What does it mean to be a member of an organisation? Does one need a membership card? What if a person’s dues are not paid up?

The ATB ought to redefine the words "terrorist organisation". In order to achieve fairness and equality it is submitted that any definition be amplified as set out below.

"A terrorist organisation may include any organ of the State".

Whilst it will not be possible for the State to prosecute itself, it will be possible for our government to declare organs of rogue states as "terrorist organisations". In this way if that organ or any of its members ever come into our clutches we can deal with them under the ATB in an appropriate manner. This will to some extent ameliorate the inherent injustice of the ATB, which in its present form has the effect of protecting and promoting State terrorism.

It is ironic but pertinent that the word ‘terrorism" originated from the Reign of Terror imposed on its citizens by the French Government after the Revolution achieved in the name of democracy.

"A terrorist organisation shall exclude a liberation organisation". A liberation organisation shall mean "any organisation that is declared as such by the General Assembly of the United Nations".

Although many of the arguments advanced against the reliance on a decision of the Security Council apply equally here, at least it will be a democratic majority decision unsullied by the veto power.

As the Freedom of Expression Institute points out in its submission that the "liberation movement" exception is a well known feature of international law and accepted by South Africa. The OAU Algiers’ Convention states that "the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination , including armed struggle against colonialism, occupation, aggression and domination by foreign forces, shall not be considered as terrorist acts."

The Minister does not need to serve any notice on affected members, or even on the organisation itself. He merely has to publish a notice in the Gazette and if that organisation does not apply to court for an interdict within 60 days and thereafter discharge the onus of proving it is not a "terrorist organisation", then it becomes a terrorist organisation. Do we now all have to

subscribe to and forthwith scrutinise every single issue of the Gazette to find out whether or not an organisation of which we are members, or of whose members are persons whom we may at some time in our lives come into contact with, has been named. Who even reads the Gazette?

It takes up to 2 weeks for the Durban Law Library to receive the Gazette. How much time does some illiterate person in the outer Karoo, who is not so fortunate to have the internet, have to react to a notice? What if you are out of the country for 3 months?

How detailed must the "grounds" which the Minister has to disclose in the notice be? If he does not supply any evidence, but places reliance on top secret and sensitive intelligence evidence, how does one go about discharging the onus of proving innocence?

If you are out of time, can you apply to Court to set aside the ministerial declaration?

It is alarming that the ATB seems designed to make it as difficult as possible for persons to object to the notice by the Minister. Even those who are committed to the ATB cannot reasonably object to the requirement to first serve notice on the organisation. Of course if it is not possible to serve notice on an organisation then the Minister can apply to court to serve by way of substituted service by way of publication in the Gazette and in the newspapers with the purpose of giving adequate publication of the notice.

It seems very clear that in terms of the ATB with regard to what is and what is not a terrorist organisation the practical reality will be that:

1. in South Africa the government of the day will determine which organisation to name as terrorist. Accordingly if ANC and IFP are having a turf war in IXOPO, the Minister can choose to name one and not the other. The crime is no longer a purely legal one, but an administrative one. It will be driven by the Executive.

The circumvention of law by administrative decree, notwithstanding the rather weak checks contained in the ATB, are dangerous concepts which are being introduced into our law and they need to be thoroughly investigated and our Bill of Rights jealously guarded. Rights given up are not easily won back. Furthermore, the principle of extra-territorial jurisdiction contained in the ATB will allow other countries who are less "constitutionally minded" to abuse the situation.

Section 14 (7) provides that the Minister must, in a notice in the Gazette, give details known to him which might enable the public to identify, inter alia, the members of such an organisation.

Section 2 (5) sets out certain offences in relation to members of such organisations. In our view, for a number of reasons, the provisions of this sub-section are deeply flawed. For example it is not clear whether the members referred to in Section 2 (5) are intended to be only those members identified in the notice referred to in Section 14 (7). If not, then how is a member of the public to know whether a person is a member of a terrorist organisation or not? Often an organisation which may be declared a "terrorist organisation" would not have a fixed constitution and detailed membership lists. That being so, when is a person deemed to become a "member" of such an organisation and, more particularly when does she cease to be such member so that the provisions of Section 2 (5) no longer apply to her?

A member of a person's family may belong to an organisation, which has been declared a terrorist organisation in terms of Section 14. Taken literally the provisions of Section 2 (5) would render it an offence for such person to be fed and clothed by her family even though there is a common law duty to do so.

To our mind, insufficient thought has been given to the wording of Section 2. It also represents an overkill.

SECTION 4 (1) (a)

In Section 4 (1) (a) of the ATB the Courts of the Republic are to be given jurisdiction to try an offence, irrespective of where that act was committed, provided only that the accused was arrested within the Republic or on board a ship or aircraft registered in the Republic.

There would appear to me to be no reason for authorising our Courts to prosecute offences committed elsewhere. Surely it is sufficient if the offender, once arrested in South Africa is extradited to a country whose Courts having proper jurisdiction to hear the offence. Assuming the power (and possibly also the moral obligation) to prosecute terrorists who commit acts outside the Republic could be opening the proverbial "can of worms".

If the state authority where the terrorist act was committed decides not to prosecute why should the South African Court prosecute? The only possible exception to this would be where South African citizens are injured or killed in a terrorist act committed in another country and the authorities in that country decline to prosecute. Special provision could be made in the Bill to allow the perpetrator of the Act to be prosecuted in our Courts in such circumstances. Perhaps an application to the International Court could remedy this situation. However, the extra territorial jurisdiction power takes the matter dangerously further. A South African citizen can be seized in another country, which has a government and courts less scrupulous than ours and can be held and convicted under AT legislation. We do not even know if their corresponding AT allows for audi alteram partem, or access to legal representation etc, etc. We may then lose the checks and safeguards guaranteed by our Bill of Rights. We are being hurried to plunge into unchartered waters.

One must understand that many of the provisions may simply be cloned from AT legislation in other countries without any proper consideration being given to our own imperatives. The true reason for this particular provision is that the United States wants to be able to seize and try those whom they regard as "terrorists" and their supporters wherever they can find them without interference from local courts. We must guard against this if it can lead to injustice. It is submitted that it will.

Section 4 (1) (b) provides that even where a terrorist is not arrested in South Africa, our Courts may still prosecute him or her if the act giving rise to the prosecution was committed on board any vessel, ship or "installation" which at the time was, inter alia, over the "continental shelf', However, the ATB unlike the Maritime Zones Act 15 of 1954 does not define an "installation" or the "continental shelf'.

One must consider the practical application of the Act in circumstances where it could lead to an absurdity. The ATB may create offences under the following circumstances.

Section 2. (5) (a) (ii) makes it an offence for anyone to knowingly furnish food, transport or drink to a member of a terrorist organisation. Sub-section (iii) prohibits receiving any benefit and 2. (1) (c) prohibits encouragement. There is no requirement that the furnishing etc be unlawful. Consider the following scenarios in which it is known that a person is a member of an organisation declared by the Honourable Minister to be a "terrorist organisation":

A mother feeds dinner to her child who is member of a terrorist organisation. But a mother has a legal duty to feed and clothe her children and a failure to do so is also unlawful!

A person is convicted of being a member of a terrorist organisation is sent to Westville prison for 15 years, and he is fed his porridge, is the warden guilty of an offence under the ATB?

A child eats at the home of his father who is a member of a terrorist organisation. Must the child starve?

A mother transports her child, who is a member of a terrorist organisation, to school. But she has a legal duty to make sure the child attends school !

A person goes into MacDonalds, declares that he is a member of a terrorist organisation and purchases a burger after paying his R5,00. Is BigMac guilty of an offence?

If Arundhati Roy writes about a freedom struggle, then could she be guilty of encouraging a person to commit or bring about a terrorist act?

If one adopts the golden rule of interpretation then the answers may become rhetorical. As Alice said in her Wonderland, it gets "curiouser and curiouser".

If these types of conduct can be interpreted as being offences under the ATB, although they are not what it intended to prohibit, then the draftspersons must go back to the drawing board and come up with a better formulation for us to consider.

It is noteworthy that the ATB does not incorporate the sunset clause of Canada, which allows for the review of these similar investigative provisions after 5 years, which raised much opposition from legal and other bodies in that country.

There are many other crimes, which operate by way of international syndicates, such as hijacking, child pornography, credit card scams, drug trafficking etc which poses even greater threats to South African citizens. The application of investigative hearings would assist in eradicating such crimes. Why then is "terrorism", which does not pose the same immediate and real threat, being targeted? Are victims of other crimes not being treated unequally? If these measures are going to be retained in the ATB then it is submitted that, in the interests of equality, they be extended to apply to all the other crimes mentioned in this paragraph.

ACCESS TO INFORMATION

A very practical matter needs to be considered. The State has vast powers of investigating banking accounts in foreign lands, search and seizure. An organisation seeking to discharge the onus cast on it to prove it is innocent has no such powers and may not have such financial resources.

The naming of an organisation as terrorist by the Minister is not an objective legal decision, but an arbitrary executive decision. The State will have unlimited use of tax-payers’ funds to oppose any interdicts brought against its decision. To level the playing fields the State ought to make unlimited legal aid available as of right to persons, who wish to apply for an interdict. If the matter warrants senior counsel, or paying for investigators to go overseas to obtain necessary information, then so be it. With the nature of the task that an organisation is faced with (such as gathering information internationally) then how will it be able to comply with the usual time limits for filing affidavits. Government is allowed to access bank accounts and share information with other states. How does Josephine Soap access the information she requires? Do other countries have an Access to Information Act to assist Josephine Soap? The ATB has made us a global village, and the acts of every citizen on earth have the potential of affecting every other citizen.

How does one procure or compel the presence of a necessary witness from overseas to give evidence? Even if a witness is willing to come then who is going to pay the costs of travel, accommodation and food. What happens if the matter is adjourned to another date?

The Derek Bond case shows the extreme danger of acts not based on the normal rules of law.

Our rights as citizens of a democratic country must be jealously guarded, and ought to

subordinate only in cases of real and dire need. It is all very well to say that our system came through for Bond in the end. But at what cost to Bond? One of the compelling arguments against the death penalty is that mistakes do happen.

Well many innocent persons are going to suffer under the ATB, especially if you fit the profile and happen to be at the wrong place at the wrong time, or if reliance is placed on "compelling evidence" and "fabricated evidence" as it is likely to be, or if our country’s economic well-being is directly dependant on our Minister’s decision. Even if justice is done, it will not be seen to be done.

There are few absolute rights. Rights of privacy, freedom of expression, right to property, right to freedom to give a few examples, may have to give way when faced with competing rights such as a real threat to the safety of the State. Where fundamental rights are being infringed then the questions to be asked are:

1. does our State in fact face a real ("pressing and substantial") threat to its very existence?
2. if indeed such a real threat exists, then are our existing laws in fact ineffective in dealing with such threat?
3. do the specific infringements of liberty and property (and of expression and association) contained in the ATB pass the proportionality test?

Certainly common crime and drugs pose a far greater, real and immediate threat. Crime (such as hijacking or drug trafficking) is now ruled by international syndicates, against which ordinary laws may be ineffective. Yet there is not the same clamour to use unconventional and radical methods to curtail these dangers.

Section 36 of the Constitution sets out the onus (the proportionality test) that the State has to discharge before it can infringe on any right in the Bill of Rights. We attach for the convenience an extract containing Section 36. Our Honourable Ministers should study this section so that they appreciate the stringent test imposed by our Constitution on any legislation, which infringes those rights protected in the Bill of Rights.

The ATB seeks to introduce legislation that goes against the culture of human rights and democracy that we have become accustomed to. This kind of legislation is frightening and should be considered with great caution.

If South Africa is not faced with any pressing and substantial threat, either locally or from international sources, then it is respectfully submitted that there would appear to be no constitutional justification for the ATB to be passed. Certainly the "overkill" limitations in the ATB are neither reasonable nor justifiable in an open and democratic society.

The lack of time has meant that we have not had an opportunity to even touch on certain important issues such as bail. The ATB does not treat a murder as a Schedule 6 offence and overturning trashcans as a lesser offence. For purposes of bail they are all lumped together as serious crimes to be dealt with as Schedule 6 offences (such as murder and rape). We cannot see any justification for this.

BALI

People in Kenya and Bali lost lives in crazy evil terrorist atrocities. As members of the human community we ought to play our part in making this world a better and safer place for all. But if the ATB cannot distinguish between a Bali Bomber and a freedom fighter like Mandela, then it is an Anti Freedom Struggle Bill.

Would we today be a democratic nation if the ATB had been in place during the struggle? Every other nation would have been legally bound to support and protect apartheid, which was declared a crime against humanity.

If the ATB becomes the death knell for every future liberation struggle then we may have unintentionally become part of the problem. South Africa will then become the Gestapo to enforce injustice (and entrench dictatorships) all over the world, and we then make ourselves legitimate targets of Freedom Fighters. The United States has chosen sides in the Middle East and other areas around the world with inevitable results. By becoming part of the jackboot knee-jerk machinery we will unwittingly become embroiled in a spiral that we may not be able to extricate ourselves from.

Professor Thomashausen more elegantly says that the "sad truth that some countries fail to resolve their own problems of internal unrest and insurgency, such as for instance the UK in Northern Ireland, or that other countries, through their conduct, fail to live in peace with the rest of the World, and become targets for collective violence, is no excuse for using the "terrorism" concept to erode the rule of law or for suggesting that other nations, with totally different conflict resolution traditions and experiences, and no particular security threats, should do the same".

The question remains whether or not, in the light of existing legislation, and the common law in South Africa, an Anti- Terrorism Act is truly necessary. It seems that it is not. Common and often violent crime has touched more South Africans than terrorism, so this need objectively speaking is far greater.

In terms of Section 36 of our Constitution the rights in the Bill of Rights may be limited only under stringent conditions, such as using less restrictive means to achieve the purposes.

The ATB provides for overkill. Many innocent persons are likely to be affected by the implementation of AT legislation inside and outside South Africa. Is this going to be justified by the accepted principle of collateral damage? It is submitted that there is real concern that the ATB if enacted in its present form has the potential to cause undue harm to the culture of human rights that we now enjoy in South Africa.

The entire concept of addressing the question of "terrorism" is subjective and complex. The remedies proposed in the ATB are vague and dangerous, and likely to lead to abuse.

It is our humble view that the core definitions are fundamentally flawed. As a result the ATB ought not to be passed in its present form, if at all.

There being no immediate threat to our citizenry our legal advisors in Government ought to engage interested groups who have sincere reservations with regard to the ATB in proper debate so that the entire matter can be effectively dealt with in a truly democratic manner.

Besides being fundamentally flawed in respect of the key definitions there are a number of aspects in the detailed provisions of the ATB, which need to be thoroughly considered. When one is dealing with laws and its application, which transcend our borders throughout the whole world, there are a host of problems that can and will arise.

As ordinary right thinking members of the South African community we see no need for the draconian legislation of the nature encompassed by the ATB. We emphasise in particular the comments and views we have espoused on the need for a clear and unambiguous definition of the definition of "terrorist act" and "terrorist organisation" and the safeguards relating to Section 14.

The ATB needs to be thoroughly debated. During the course of such discussions problems will arise that one may not have conceived. For instance, if the State declines to prosecute for a minor infringement of the ATB, could a member of the public bring a private prosecution? A person convicted would have difficulty emigrating or even getting a visa to visit a foreign country. We recall the problems faced by ANC comrades convicted of opposing apartheid when they tried to visit the United States, even as members of an official delegation.

As pointed out this submission and the views and contents recorded above should be received as a preliminary position rendered necessary by the stringent deadline. The deliberation and debate on the matter has not been finalised. We will if it becomes necessary in due course submit further analysis, which will no doubt take into account the responses that this submission elicits.

We are grateful for he opportunity extended to us, and trust that this submission will be received in a constructive spirit and in the interests of our fledgling democracy.

We place on record our request to address the Portfolio Committee at a oral hearing, preferably in Durban. We trust that you will be able to accommodate us as regards a mutually acceptable time, date and place.

The ATB has abandoned trying to define "terrorism" because of the subjectivity and difficulties associated therewith. Instead it has chosen to cast a wide net over all "unlawful activities". Even if the definition of a "terrorist act" in the ATB were to be more rigidly and rationally defined so as to encompass only those very violent acts which cause great fear in the populace at large, it fails miserably to distinguish between evil terrorism and glorious freedom struggle. The Late Walter Sisulu was an exemplar and embodiment of the latter. Lest we forget, let us reflect on the eloquent acclamation by our President Mbeki of this gentle yet heroic man:

"The dreaded memory of what yesterday was is fleeing the conscious mind as the shadows flee the rays of the sun. It has taken to flight because of what Walter Sisulu and his comrades did. Because they embedded the humanist spirit into the very soul of their struggle, their movement and their people, they defined liberty as the right of all our people to happiness and human fulfilment, though they were denounced as terrorists.

For many decades Walter Sisulu taught the mass army of liberators to hate oppression, to hate racism, to oppose the social conditions that resulted in untold violence against other human beings, to overthrow the social order that, because of deliberate policy, precise and immaculate in its design, and its execution, subjected the majority to pain, indignity and humiliation and death by starvation.

But he never said that we should hate other human beings, including those that oppressed, did great harm to others and dehumanised millions because of the colour of their skin and because of boundless and selfish greed.

He told us that were we ever to hate other human beings, we would sacrifice our own humanity, transforming ourselves into the cannibal beasts of the wild that do not hesitate to feed on their own kind.

He instructed us that were we ever to hate other human beings, we would corrupt a movement for human liberation, and turn it into a predatory animal whose pillars of a blind ideology would be fear and hatred that would consume us as well".

The spear of the nation has fallen. "Let us pick up the spear now to build a country after the example that Walter Sisulu set for us" – Nelson Mandela.

The lack of time and lack of proper consultation with us has meant that we have not had an opportunity to give adequate consideration before making these humble submissions. This is not our fault, but that of the authorities who have placed unreasonable time constraints on us whilst reserving for themselves the luxury of an extended period.