The South African Human Rights Commission (SAHRC) welcomes the opportunity to comment on the draft Anti-Terrorism Bill (B12-2003, 15 November 2002). The Commission has a number of concerns about the draft Bill in its current form and accordingly calls upon the Committee to carefully consider the issues raised in this Submission about the potential impact the Bill may have upon fundamental rights and freedoms. Although the Commission is commenting on the Bill it is not convinced, for reasons set out more fully below, that there is a need for this legislation at present.

• To promote respect for human rights and a culture of human rights,
• To promote the protection, development and attainment of human rights, and
• To monitor and assess the observance of human rights in South Africa.

The SAHRC has been monitoring the passage of the Anti-terrorism Bill. In 2000, the Commission provided input and commentary on the work of the South African Law Commission (SALC). The Commission convened a seminar on the issues of crime, urban terror and human rights in Cape Town on 6 November 2000. The seminar brought together members of Government, the Judiciary, civil society and community organisations to discuss the then draft Bill. At this stage, no one knew that the events of September 11, 2001 would so fundamentally impact on the international debate around terrorism. In late 2002, the SAHRC considered a further draft Bill and produced a paper, ‘An appraisal of the South African Anti-terrorism Bill from a Human Rights perspective" that is attached herewith (Annexure ‘A’). Despite this paper being a comment on a previous draft of the bill, many of the comments are still relevant to the current draft Bill. The comments in this Submission are to some extent based on this paper.

The purpose of this submission is to summarise the human rights concerns of the Commission about certain provisions of the draft Bill that is currently under discussion in Parliament.

There is a debate amongst civil society and various role-players as to whether there is a need for specific anti-terrorism legislation. Some argue that although there are gaps in our law - such as complying with UN Resolution 1373 that seeks to criminalize the financing of acts of terrorism and the granting of extra territorial jurisdiction for acts committed against foreign targets and/or individuals within South African borders - that can be attended to by amendments to current legislation. Those who are not in favour of legislation argue that our existing legislation and common law are adequate to combat acts of terrorism.

The Commission has not conducted a thorough analysis of all current legislation that is used to combat crime forms that are considered to be terrorism. However, it does not appear that our laws are inadequate given recent events in which the State has successfully responded to right wing threats to the internal security of the country. There thus does not appear to be a need to reintroduce legislation of the nature proposed. The SAHRC is of the view that we should amend current legislation to deal with the current lacunae in our law. This is necessary to bring South Africa in line with its international obligations. Comprehensive anti-terrorism legislation should only be developed within a clear framework of what it is that we wish to legislate against. In order to do this we need to participate in and observe international developments in order to assist us in developing anti terrorism legislation at a later stage.

This position is further strengthened by the current Preamble to the Bill that indicates clearly that there are certain aspects of current legislation that are lacking when prosecuting and controlling international terrorist acts. It is not abundantly clear from the Preamble that there is a need for comprehensive new legislation.

The drafters of current anti-terrorism legislation are in an unenviable situation at present as there is no general consensus internationally on a definition of terrorism. In attempting to provide the necessary safeguards to protect citizens against acts of terrorism there is the potential of infringing individual rights of citizens. It is this careful balancing act of determining justifiable limitations in terms of section 36 of our Bill of Rights that faces legislators when drafting legislation of this nature.

From the initial drafts of the Bill that provided lengthier and more detailed definitions of terrorism, the current draft Bill adopts a minimalist approach. By simply defining terrorism as "… an unlawful act, committed in or outside the Republic…" the Bill opens itself up for harsh criticism. The definition is vague, wide and offends against legal certainty. It would certainly not pass the test of constitutional scrutiny. The current broad definition of ‘terrorism’ would certainly not pass the test of justifiable limitation of rights in terms of section 36 of the Bill of Rights. This criticism of the definition goes to the heart of the proposed legislation as an evaluation of the remainder of the Bill is determined and shaped by the definition that is afforded to the term ‘terrorism’.

The definition fails to incorporate many of the common elements of a definition that have been debated within the international community, which include the following:

• Terrorism can be perpetrated either by individuals, groups or by governments;
• The motivational factors of terrorists include rational consideration of goals and options—a cost benefit analysis. It is a planned event;
• Terrorism can exist in the name of political, religious, socio-economic or other belief systems;
• The objectives of terrorism are often fear, extortion and radical change. In this regard the process has three elements;

• The act or threat of violence, including techno-terrorism and other serious economic crimes that are committed for a political or other non-profit motive;
• The emotional reaction or extreme fear on the part of the potential or future victim; and
• The social effects that follow the violence.

Any definition should thus give careful consideration to the factors highlighted above and they should be incorporated in the definition.

The definition of a ‘terrorist organisation’ is equally problematic in that the current definition provided in the draft Bill is ungrammatical and non-sensical.

The offences and penalties section of the Bill are difficult to comment on as most offences are linked to the inadequate definition of ‘a terrorist act’. It is thus difficult to provide substantive input on these sections of the Bill. It is also not possible to comment on the appropriateness of the penalties proposed for the offences that are created in the section.

Given the wide definition afforded to ‘terrorism’ in the Bill, it becomes questionable whether all the potential prosecutable offences should be subject to the stringent bail conditions that apply to Schedule 6 offences. Again, further clarity on the definition of terrorism would elicit further consideration of this point. The Bill as it stands currently impinges on the right set out in Section 35(1)(f) of our Bill of Rights which states that everyone who is a arrested has the right to be released from detention if the interests of justice permit, subject to reasonable conditions.

This is a broad section that could potentially be abused and used to target groups within society including vulnerable groups and minorities. The police already have search and seizure powers in terms of section 22 of the Criminal Procedure Act and thus it is unclear why this section is included and what additional powers it will afford the police. In the light of these comments, this provision could impact on right to privacy (section 14 of the Bill of Rights) and may constitute an unjustifiable limitation on the right to privacy

This chapter sets out procedures for the gathering of evidence. It is administrative in nature and because the person is neither an accused or detained person it is arguable that the provisions attempt to evade many of the constitutional protections afforded to such persons. It is not a settled debate internationally the extent to which these rights (e.g. right to be presumed innocent; remain silent and non-incrimination) may be impinged during investigative hearings. Recent international trends indicate a trend towards extending these rights to persons who are subject to such hearings. Given the nature of the legislation and the potential consequences to the person from whom evidence is gathered and those people affected thereby, this chapter ought to be carefully considered.

This section should clearly incorporate the rights of detained and accused person set out in the Bill of Rights that a legal practitioner will be assigned to the person by the State at State expense if substantial injustice would otherwise result (Section 35(2)(c) and 35(3)(g)).

This Chapter sets our preventative pre-emptive mechanisms to combat terrorism.

Given the broad definition of a ‘terrorist act’ this section in the Bill, as it currently stands, is open to abuse. This has given rise to the now oft quoted examples that the section could be used against organisations such as the Treatment Action Campaign (TAC) and the Landless Peoples Movement (LPM).

The procedure to be followed by the Minister is a problematic for a number of reasons. The Minister need only give notice of the intention to declare an organisation a terrorist organisation in the Government Gazette. Given the consequences that flow from being declared a ‘terrorist organisation’ (section 15 of the Bill onwards) it is argued that notice should be served directly on the organisation and where this is not possible that other forms of service be determined on application to court by the Minster to ensure that the organisation is made sufficiently aware of the impending declaration.

It is disconcerting that the onus shifts to the organisation to approach the courts for an interdict restraining the Minster from declaring the organisation a ‘terrorist organisation’. This in effect places an onus and the inconvenience, financial and otherwise to prove that the organization is not a ‘terrorist organisation’. Again, given the far-reaching consequences that flow from being declared a ‘terrorist organisation’ it would be far preferable that a judicial mechanism is created within the Bill that is subject to judicial review and appeal before such declarations are made.

As the section currently stands in the Bill, it could potentially impact on and compromise the right to freedom of association (section 18) and expression (section 16) that is guaranteed in the Bill of Rights.

Given the vague definition afforded to ‘terrorism’ in the Bill and the obligations on institutions this section offends against the principle of legality.

This section is in conflict with section 5 of PAIA (Promotion of Access to Information Act 2/2000), which states clearly that PAIA takes precedence over all other legislation that makes reference to access to information. It appears as if the drafters have not applied their minds to this potential conflict.

This section affords the Minister a wide discretion in terms of the implementation of the Bill. Given that this legislation has the potential to adversely impact on individual rights and freedoms, it is strongly recommended that any proposed Regulations be placed before Parliament to exercise its oversight function.