1. Dangers inherent in enacting anti-terrorism legislation

• AT laws tend to erode fundamental rights and freedoms
• Violate long established rules and constitutional procedures
• Among others stifle political dissent

1. Problems of defining terrorism (Section 1);

• No universally accepted definition of "terrorism"
• Tendency is to create broad, wide, over-reaching and all encompassing definitions
• Definition in ATB reflects this difficulty
• Has created a speculative offence.
• Is concerned more with "likelihood" rather than reality.

1. Offences and penalties (Section 2)

• The defective definition has roll-on consequences for the offences
• Results in draconian punishment being imposed for an offence that is not properly defined

1. The problem of bail (section 5)

• The very stringent bail conditions will effectively curtail suspects’/people’s right to liberty
• Is tantamount to "judicial detention" without trial

1. Investigative hearings (Sections 8-13)

• Has serious implications for media freedom in SA
• Individuals have limited rights under this procedure
• Though shielded from criminal liability, an individual may still be exposed to civil claims
• Open to abuse by law enforcement agencies

1. The banning (blacklisting) of organisations (Section 14)

• Will affect the right to freedom of association
• Minister has very wide and arbitrary grounds to proscribe organisations
• Fails to recognise the existence of liberation struggles and liberation movements contrary to international law (e.g. the OAU’s Algiers Convention of 1999).

1. Secret evidence in trials (Section 18)

• Persons making report to the Financial Intelligence Centre being "competent" but not "compellable" witnesses is a reintroduction of secret evidence

1. Why the ATB fails the constitutional test

• Does not meet the standard laid out by s36 of our country’s constitution.
• Law has to be reasonable and justifiable
• There are other less restrictive means to achieve the objects sought by the ATB

1. Conclusion- whether there is a need for this law in South Africa

• No need for this particular legislation
• Tighten other laws relating to the country’s security
• Address the structural problems in the country’s criminal justice system

Presented by:

Simon Kimani Ndung'u
Head: Anti-Censorship Programme
Freedom of Expression Institute
87 Juta St
Braamfontein
Johannesburg

Tuesday, 24 June 2003

National Assembly Portfolio Committee on Safety and Security

Committee Room: Rain Forest