SOUTH AFRICAN CHAPTER OF THE MEDIA
INSTITUTE OF SOUTHERN AFRICA in association with the
WORLD PRESS FREEDOM COMMITTEE
REPRESENTATIONS ON THE ANTI-TERRORISM BILL (B12-
2003) AND AMENDMENTS
We are disturbed that there has been publication of a further draft
of the Bill which has confused the issue. However, it does not
improve definitioopn of terrorism which is so wide that ordinary,
innocent demkonstrations could fall under the Bill. We wish to
emphasise this aspect which is at the core of the Bill and results in
the vulnerability of innocent people to its provisions.
We request an opportunity to appear before the Portfolio Committee
of
Safety and Security to talk to and amplify on the representations
made
in this submission.
1) We have perused the representations made by the Freedom of
Expression Institute and wish to state that we support them and
request the committee to bear in mind our association with those
documents when it considers their import. We wish to emphasise
that we agree with the statements in the FXI submission.
2) In addition we wish to stress the issues raised in the Bill which
we believe directly or indirectly threaten the freedom of the media
and freedom of expression and which we discuss below.
3) We believe we do not need to remind you of the clauses in the
Constitution that enshrine freedom of the media and freedom of
expression (Section 16) but we wish to emphasise the following:
a) The rights enshrined in Section 16 of the Constitution carry much
more weight than mere permissions to exercise these rights.
Sections 7
places an onus on the state to respect, protect, promote and fulfil
those rights and Section 8 binds the legislature, the executive, the
judiciary and all organs of state to apply the rights to all law and,
further, indicates that the rights contained in the Constitution
impose duties on all to exercise and promote those rights.
4) An overall appraisal of the Bill leaves us with the impression --
which raises especial concerns -- that apart from specific provisions
which we object to, it also contains provisions which give excessive
powers to the Minister of Safety and Security and officials to take
action which are based on their deeming certain presumptions
without
clear cut evidential requirements being met. All they require are
unspecified ``reasonable grounds'' to make assumptions before they
are
able to invoke the extreme powers given them in the Bill. We believe
this is unacceptable especially in a country which has experienced
over a period of some 50 years how a previous government made
use of
similar powers. We believe this places people and institutions,
including the media and their employees, at risk beyond the due
processes of law. The ability of the authorities to deem organisations
to be terrorist organisations is reminiscent of apartheid legislation
and is totally unsatisfactory. There should be evidence and a court
trial to determine whether an organisation can be classified and
punished in the way contemplated. However, with the definition of
terrorism being so wide, practically any organisation dealing in
protest against the government could be found to be a terrorist
organisation.The Bill outlines ostensible
procedures to provide protective mechanisms through the use of the
judiciary to examine requests for permission to act. But as these all
depend on ex parte statements from the police and investigating
officers, there is no real protection. A judge presiding over an
application of this kind would have little discretion to refuse and
thus the protection envisaged is nullified. Indeed, it amounts to a
smoke and mirrors practice.
5) Our general concerns about the Bill are that journalists are
vulnerable because of their relations or association in a reporting or
news gathering capacity with organisations which are, or may be
deemed
to be, terrorist or because of what they have reported about such
organisations.
6) Among the specific objections we wish to lay before the
committee are:
i) The preamble: The last paragraph (And whereas legislation is
necessary in the Republic to prevent and combat terrorism, to
criminalise terrorist acts, the financing of terrorist acts and the
giving of support to terrorists, and to ensure that the jurisdiction
of South African courts enables it to bring to trial the perpetrators
of terrorist acts) suggests that the SA legislation is inadequate to
deal with terrorism. There are more than 22 laws on the SA statute
books which deal with crimes which could be classified under the
mantle of terrorism and we believe that these are quite adequate
(they
have enabled the authorities to bring before court 22 alleged
members
of an organisation which allegedly had terrorist objectives). The
deficiency appears to arise from a requirement brought about by SA
ratifying, among others, the United Nations Bombing Convention that
SA
legislation be extended to deal with situations beyond our borders. It
is contended that such a requirement is not in itself a sufficient
reason to create a special Anti-Terrorism Bill. The extension of SA
law can be accomplished by amending the appropriate legislation
already in existence to provide for cross- border prosecutions.
Indeed, similar amendments could be effected in other laws to repair
deficiencies brought about by these UN requirements.
ii) Section 2 (1) (c) This section states that any person who incites,
commands, orders, advises, encourages or procures a person to
commit a terrorist act ois guilty. Given the lack of specifics in the
definition of of a terrorist asct this could affect a wide range of
people .
iii) Section 2 (4) : The wording of this section is so
broad that it could apply to a media organisation broadcasting or
publishing in print certain information about or statements by
terrorist organisations, especially the activities outlined in Section
4 (5) This could result ion charges being brought against a media
institution (or other institutions merely copying what the media
institution has published or broadcast) which could result in 15 years
imprisonment. We refer to the broadcasts of statements by al
Quaeda.
iv) Section 4 (11): This section imposes duties on the public to
supply any information they may have about a terrorist act or
organisation to the authorities or suffer the penalty of imprisonment
of up to five years. Given the heavy penalties in the Bill and the
difficulties associated with identifying terrorism acts, this
provision could easily frighten people to divulge information which
has no relation to terrorism. In effect it would turn the people into
police informers and snoopers for the authorities. As far as the
media
is concerned, the same difficulties apply and this could result in a
conflict with the Constitution. It would negate their ability to act
in accordance with the duties imposed on them in the Constitution
(Section 16). You cannot operate a free media if journalists are
forced to supply information to the authorities.
v) Section 5 Bail: The provisions of this section create a situation
which is in effect no different to detention without trial or
preventive detention as exercised by the previous regime. A person
may
be repeatedly detained for periods of seven days which effectively
would be similar to apartheid era detention for 90 (or 180 days). The
fear here is that journalists who were targets in the apartheid era
for indefinite detention could well be victims in the light of the
uncertainties in this legislation. (We are not suggesting that they
will be targets of the authorities).
vi) Section 8: Investigative Hearings and procedures: This is
the worst aspect of the Bill as far as journalists are concerned. The
clauses relating to the powers of the authorities to compel people to
appear before investigative hearings and supply information,
documents
and materials which are deemed to be relevant to police inquiries are
draconian. The procedures are more stringent than Section 205 of
the
Criminal Procedure Act -- the so-called ``reveal your sources or
what
you know'' legislation that was used to intimidate and curb
journalists during the apartheid era -- indeed they are more coercive
and would negate a journalists' ability to carry out his or her
professional duties. They also conflict with the interim Record of
Understanding reached between the Ministers of Safety and
Security and
Justice Department and the SA National Editors' Forum (Sanef) on
the
use of Section 205 by the authorities to gather information on
February 19 1999 (see addendum). If a person does not comply
with an
order to appear, a warrant of arrest can be issued and the person
detained until the information requested is supplied. The penalty for
failing to answer questions to the satisfaction of the judge or to
hand over material -- the hearing is conducted in secret by a judge
without a lawyer to represent the interrogated person -- is between
two and five years' jail. Journalists believe that if they are made to
provide information to the authorities, their independence is placed
at risk and their news gathering abilities -- mainly in regard to
people coming forward and voluntarily supplying confidential
information -- would be jeopardised, if not ended.
vii) Section 14 Declaration of a Terrorist Organisation: As we
have contended above these procedures are unsatisfactory --
deeming
organisation a terrorist organisation ``on reasonable grounds''. We
need not belabour the points that this is reminiscent of apartheid era
government conduct and that no credible evidence would be relied
on.
viii Section 8: There is no provision for public hearings or for a
person subject to hearings to have a legal representative, tghus one
must presume that these are intended to be secret inquiries and this
is unacceptable.
I have just returned from Morocco where there have been five
terrorist attacks and where similar anti-terrorist legislation to that
envisaged in SA has been passed. There is no indication who is
responsible -- no one has claimed responsibility -- but the policve
have arrested 100 people. On e person I was told was arrested
becvause he said he was pleased that the blast took place in
Casablanca and not nin Rabat where he worked.
This Bill suggests that similar conduct will occur here.
Yours sincerely
Raymond Louw
Member of the General Council,
South African Chapter of the
Media Institute of Southern Africa
Africa Representative
World Press Freedom Committee
In South Africa on the 19 February 1999 the Minister of Justice, the
Minister of Safety and Security and the South African National
Editors' Forum signed a Record of Understanding about the
implementation of existing laws which relate to the duty to testify
and the protection of journalists' sources and information.
It was accepted that there was ``a need to balance the interests of
the maintenance of law and order and the administration of justice on
the one hand with the right of freedom of expression and specifically
freedom of the press and other media''.
The parties agreed to investigate the possibility of amending section
205 of the Criminal Procedure Act in order to accommodate the
concerns
of the representatives of the press.
The Record of Understanding provides for a special interim
arrangement
between the parties.
If the state wants to subpoena a member of the press in order to give
evidence or to deliver documents, the matter may be referred to the
National Director of Public Prosecutions for consideration and must
also be discussed with the relevant editor before it is served.
After hearing the interested parties the ``National Director
undertakes to make a determination with regard to the issuing of the
subpoena by weighing the need to uphold the maintenance of law
and
order and the administration of justice against the right of freedom
of expression and freedom of the press and other media''.
Raymond Louw
Editor & Publisher
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