By the South African Human Rights Commission

The promotion and protection of human rights is central to an effective strategy to counter terrorism. Inherent in this statement are two important and inter-related dimensions. Firstly, the need to ensure that measures designed to combat terrorism do not impermissibly limit human rights and fundamental freedoms and, secondly, the recognition that terrorism puts under threat the full enjoyment of civil liberties and human rights.

The need to ensure that the fight against terrorism remains vigilant to the protection of entrenched human rights has been the subject of much academic, international and non-governmental commentary. Equally, the link between terrorism and the achievement of human rights has received increasing attention. The progress report of the United Nations Special Rapporteur on Terrorism and Human Rights points out that there is probably not a single human right exempt from the impact of terrorism.

Nothing in the recent past has posed a greater challenge to human rights than the war on terrorism. Traditional human rights advocates within the United Nations and human rights organisations, even in the West, are now faced with new limitations on the scope of their advocacy. Governments of all political stripes are now freer to pursue more muscular policies towards their dissenters. Non-Western human rights thinkers -especially those who critique the corpus as Eurocentric and challenge its universality - have been put on the defensive because of suggestions that their views may further polarise cultural and political divides and harm the march toward universality. They have also been accused of stoking and fuelling anti-Western feelings, ideologies, and causes. In this climate, it will be difficult to pursue honest and robust conversations about the cultural inclusiveness - and exclusiveness - of human rights.

The new wave of anti-terror legislation across the world threatens to
undermine democracy especially in Africa where in the past, proxy wars
resulting from cold war rivalry between the East and West led to full
support and recognition of all sorts of dictatorships for decades. Now it
appears that all any corrupt, undemocratic or insecure government needs to
do to ensure the support of the West is to sign up to the anti-terror war
and introduce anti-terrorist legislation which is sure to be used to
suppress or undermine democratic opposition and human rights. At best,
even if not put to immediate use against civil society, such laws are
likely to be a sword of Damocles dangling over the neck of anyone overly
keen on exercising democratic rights even in the most peaceful and law
abiding way possible.

In the wake of September 11, 2001 attacks on the United States of America, the latter and its consorts have embarked on a crusade to secure unhindered, unhampered dominance of the world. One of the tools used to create such political subordination is through "Anti Terrorism Bills" contrived by the USA and subsequently imposed upon the rest of the world.

Resolution 1373 of 28 September 2001, which the Security Council adopted under the binding provisions of chapter VII of the United Nations Charter, requires states, inter alia, to criminalize the financing of acts of terrorism. Essentially, the Council fast-tracked elements borrowed from the Convention for the Suppression of the Financing of Terrorism, which became binding on all states, without the cumbersome process of signatures, ratification and reservations. Pursuant to paragraph 6 of Security Council resolution 1373, states are required to report to the Counter-Terrorism Committee, a subsidiary organ of the Council set up under resolution 1373 (2001), on steps taken to implement the resolution.

In his address to the Security Council's Counter-Terrorism Committee, the Director of the New York Office of the Office of the UN High Commissioner for Human Rights, Mr. Bacre Ndiaye warned that

The former United Nations High Commissioner for Human Rights, Mary Robinson, in her last annual report to the Commission, argued that the suggestion that it was not possible to effectively eliminate terrorism while respecting human rights was fundamentally flawed. The only long-term guarantor of security against such violence was through respect for human rights and humanitarian law.

Mahatma Gandhi once said: ‘Any eye for an eye only ends up making the whole world blind.’ The best defence to human rights is the prevention of their abuse and erosion through ignorance.

This paper makes an appraisal of the draft South African Anti-Terrorism Bill (ATB) of 2002 currently being debated in Parliament. It lays particular emphasis on the impact of the Bill on human rights and fundamental freedoms guaranteed in the 1996 Constitution and other international human rights instruments to which South Africa is a party. The paper also looks at the definition of terrorism or terrorist acts as provided in the Bill and makes a comparative analysis of the different definitions provided by other jurisdictions. The paper further examines the different human rights threatened by the bill (such as the freedom of association, freedom of expression and speech, the right to silence, presumption of innocence, etc) and analysis the guarantees that have been put in place within the Bill to comply with constitutional and international standards.

However, the fundamental questions for the government is: Is there a need for the ATB in the S.A. context considering the fact that there are other pieces of legislation that deal with criminal activities? And how would the proposed legislation affect the rights of persons within the jurisdiction of South Africa?

Before delving into an examination of the Bill and respond to the above questions, it is important to look at the "definitions" of terrorism.

A description and understanding of terrorism is easy. It is the unlawful, or threatened use of violence against individuals or property to coerce and intimidate governments or societies for political, religious or ideological objectives. Translating this into a common, internationally accepted legal definition has, however, proven impossible. There are a number of reasons for this:

Firstly, the interpretation of the complex motivation and nature of a deed that at first blush appears to constitute an act of terrorism, loses clarity when placed within a particular historical, political, religious and ideological context. Interpretation of what constitutes terrorism is a function of the vantage point of the commentator. For instance, when a violent act is aimed against a particular country, that country will define the act as terrorism and the perpetrators terrorists. But when the same act is aimed against another country, then the countries not affected may refer to the perpetrators as freedom fighters, guerrillas, an underground movement – terms with a more positive connotation than the word terrorist - hence the adage that one person's terrorist is another person's freedom fighter.

Second, the specificities of national legislation demand different approaches to the crime. This is a particular problem especially in Africa where often outdated colonial legislation lie uncomfortably next to one another - unencumbered by modernisation. This situation is exacerbated by the different approaches that States adopt in distinguishing between terrorism and other types of serious crime such as murder and sabotage. Most countries prefer an approach that restricts the domain of terrorism as narrowly as possible, rather than broadening the application of laws on organised crime, sabotage and sedition.

The effort to forge a united international front against terrorism entered a new phase within the United Nations after the September 11 2001, attacks on the United States of America. Since then, terrorism is clearly seen as no longer being a local problem of specific countries but as an issue involving a number of international aspects. Since terrorism (like human rights) is an international phenomenon, response to terrorism must also be on a uniform international scale and a compromise definition is required. But a controversy that has never been resolved and that resurfaced during this phase was the definition of "terrorism". There is no internationally recognised definition of the word. Resolution 1373 (2001) of the UN Security Council does not provide one and negotiations on a draft comprehensive treaty on terrorism are stalemated over the problem. Therefore, governments define a terrorist or terrorism in various ways. If the international community cannot agree on a definition, local mobilisation against it cannot lead to operational results that would pass constitutional muster.

The International Convention for the Suppression of the Financing of Terrorism is the most recent international convention adopted on terrorism. According to the Convention, a person commits an offence by providing or collecting funds with the intention or in the knowledge that they are to be used to carry out,

The cautious expansion in the definition of what constitutes an offence of terrorism is taken even further in the OAU Convention. Under the Convention, a terrorist act is any act that may cause serious injury or death to any person or group of persons, or may cause damage to public or private property and is calculated or intended to, among other things, intimidate, or coerce any government, the general public or segment thereof, to do or abstain from doing any act. Similarly, acts to disrupt any public service or create a general insurrection in a state are also defined as terrorist acts. The promotion, sponsoring, contribution to, attempt and threat, with intent to commit any of the earlier specified acts, is a terrorist act.

On the other hand, the Arab Convention for the Suppression of Terrorism defines terrorism as '[a]ny act or threat of violence whatever its motives or purposes, that occurs in the advancement of [a]…criminal agenda and seeking to sow panic among people, causing fear by harming them, or placing their lives, liberty or security in danger, or seeking to cause damage to the environment or to public or private installations or property…or seeking to jeopardize a national resource.

The lack of consensus internationally has been exemplified at domestic level. In Egypt, terrorism is defined as

The Algerian legislation defines an act of terrorism as

In terms of Section 3(2) of the Mauritius Prevention of Terrorism Act, 2002, an "act of terrorism" means an act which-

1. may seriously damage a country or an international organisation; and
2. is intended or can reasonably be regarded as having been intended to-

(i) seriously intimidate a population;

(ii) unduly compel a Government or an international organisation to perform or abstain from performing any act;

(iii) seriously destabilise or destroy the fundamental political, constitutional, economic or social structures of a country or an international organisation; or

(iv) otherwise influence such government, or international organisation; and

3. involves or causes, as the case may be-

On the other hand, the Arab Convention for the Suppression of Terrorism defines terrorism as '[a]ny act or threat of violence whatever its motives or purposes, that occurs in the advancement of [a]…criminal agenda and seeking to sow panic among people, causing fear by harming them, or placing their lives, liberty or security in danger, or seeking to cause damage to the environment or to public or private installations or property…or seeking to jeopardize a national resource.

Despite the inability of the international community to provide a single accepted definition of terrorism, there are a number of common elements to the existing definitions:

• 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.

A common theme that runs through both the international and domestic instruments to combat terrorism is the broad range of conduct defined as terrorism. The starting point for many definitions of terrorism is a violent act committed with the intention of intimidating a population or compelling a government to do or abstain from doing something. Thus, the basic concept of the definition rests on two pillars: first, the commission of an act that causes or may cause death or injury (damage); second, that the act was intended to intimidate the government, the population or disrupt any public service.

In the light of the human rights instruments discussed above, we now move on to highlight some of the human rights concerns which arise from both international and domestic initiatives to combat terrorism. In particular, we look at the human rights concerns raised by the South African Anti-Terrorism Bill (ATB) of 2002, and more specifically at: the definition of terrorist act; the right to a fair trial, the right to freedom of expression; the right to privacy; investigative hearing and the right to silence.

In analysing these issues, we shall examine the extent to which the Anti-Terrorism Bill would impact on the enjoyment of these rights and the extent to which appropriate safeguards have been introduced within the Bill as justifiable and legitimate suspension or limitation of these rights. In determining the rationale for the limitation imposed by the Bill we will weigh the limitation against the requirements set out under section 36 (1) (a-e).

It must be noted forthright that the permissible derogations under international law – for example, the International Covenant on Civil and Political Rights (ICCPR) are very limited. There are a number of non-derogable rights. In addition, article 4 of the ICCPR allows derogation from its provisions only 'to the extent strictly required by the exigencies of the situation.' Any derogation measure must in addition be of an exceptional nature, subject to regular review and must not involve discrimination.

Between 1994 and the end of 2000 the legislative capital, Cape Town, was plagued by numerous bombings, drive-by shootings and assassinations. Initially, most of this violence occurred in the context of internecine gang warfare and vigilante action against criminal gangs and suspected drug dealers. However, after mid-1996 the motive for some of the violence changed. It would appear that the violence was no longer solely committed by gangs battling for territory, or by vigilantes in their attempts to eliminate suspected drug dealers. This new violence sought to create a climate of fear and terror among the residents of and visitors to Cape Town.

After mid-1998, bomb attacks and assassinations occurred not only in the gang-ravaged areas on Cape Town's impoverished periphery, but also in the city centre and tourist destinations of Cape Town itself. The violence-primarily bombings-increasingly began to target the State in the form of police stations, courts and personnel of the justice system, as well as popular tourist and entertainment areas, restaurants and the Cape Town International Airport.

Government ministers responsible for security and justice laid the blame firmly at the door of the People Against Gangsterism and Drugs (Pagad), a vigilante group formed in late 1995 as a response to high levels of crime, particular wide-scale drug trafficking in and around Cape Town. Within a year of its establishment two factions appeared within the organisation: a moderate Pagad factions focused on fighting crime and drug dealers, and a 'Pagad-Qibla' faction made up of militant populists and Muslim fundamentalists who interpreted the fight against drugs as a jihad or holy war. During the late 1990s the Pagad-Qibla faction successfully took control of the organisation as a whole.

Faced with the upsurge of violence in the province, in 1999, the SA Police Service (SAPS) conducted a research on terrorism and internal security and drafted an Anti-Terrorism Bill which was submitted to the South African Law Commission’s (SALC) project committee on security legislation.

The draft Bill contained, amongst other things, a clause providing for, among other things, detention without charge for unto 14 days purposes of interrogation, no visitation and no bail. It was considered by the drafters that detention for interrogation would enable law enforcement to obtain information it would not otherwise be able to obtain. 

The draft Anti-Terrorism Bill thus spawned out of the urban terror campaigns in the Western Cape in the late 1990s.

The SAPS' draft formed the basis of a discussion paper which was considered by the SALC. The draft was enhanced by additional research focusing, inter alia, on the issues relating to detention for interrogation. Amendments to the discussion paper and the draft Bill were effected and the working committee of the Commission considered and approved the publication of Discussion Paper 92, project 105, for general information and comment on 8 June 2000.  The Anti Terrorism Bill was published by the South African Law Commission (SALC) in October 2000 for public comments.

After encountering massive opposition from human rights groups both at home and abroad, the Bill was temporarily shelved. But in the wake of September 11 attacks on the USA, the latter got the United Nations to pass a resolution that made it compulsory for all its members to pass an ATB.

Western countries and the United Nations argue that it is necessary, in order to effectively combat terrorism world-wide to adopt a common approach–as such harmonisation is necessary to prevent terrorists from using more open countries as safe havens to continue their activities.

The Anti-terrorism Bill 2002 is therefore aimed at meeting the requirements set out in the Security Council Resolution 1373/2001 and to this end will give effect within the Republic of South Africa to the relevant international instruments, principles, and requirements relating to terrorism; to provide for certain offences related to terrorist acts in order to ensure the security of the Republic and the safety of the public against threats and acts of terrorism; to combat terrorist acts; to prohibit support and harbouring of proscribed organisations; and to provide for matters connected therewith.

South Africa's draft Anti-Terrorism Bill, 2002 also proposes to consolidate the country's security laws, seeking to create an omnibus statute to address the issue of terrorism and a variety of related crimes in one piece of legislation.

Criticisms of the draft Bill have not been limited to its substantive provisions but have also extended to the necessity of the Bill in South Africa. Is South Africa compelled to enact a legislation simply because the international community says so?

Saber Jazbhay argues that rather than attempt to define terrorism, (and enact an anti terrorism legislation) the legislature should focus on defining the activity that constitutes a crime, adding that, no new laws may be necessary because virtually all the violent activity commonly associated with terrorism is already a crime. Other critics of the Bill argue that the South African statute books contain numerous laws that can be used to combat terrorism and related criminal activities.

Available to the State are laws that: protect the country's internal security (much of it remnants of legislation enacted before 1994); permit the State to restrict gatherings and demonstrations; enhance the State's power to collect information on suspected terrorist organisations, and target terrorism's foot soldiers and sources of money: criminal gangs and organised criminal groups respectively.

These legislation include among others: the State of Emergency Act of 1997; the Defence Act of 1957; the Internal Security Act of 1982; the Intimidation Act of 1982; the Criminal Law Second Amendment Act of 1992; the Regulation of Foreign Military Assistance Act of 1998; the Armaments Development and Production Act of 1968; the Explosives Act of 1956; the Dangerous Weapons Act of 1968; the Firearms Control Act of 2001; the Non-Proliferation of Weapons of Mass Destruction Act of 1993; the National Key Points Act of 1980; the Diplomatic Immunities and Privileges Act of 1989; the Civil Aviation Offences Act of 1972; and the Merchant Shipping Act of 1951.

However, the SALC which prepared the Bill ascertained that there are shortcomings in South African legislation and that they should be remedied. And according to the government, the legislation will bring South African law on terrorism into line with many other countries that have passed similar legislation since the terrorist attacks on America on September 11 2001.

The government and the SALC argue that the existing offence of terrorism which is contained in section 54(1) of the Internal Security Act, 1982, relates only to terrorism in respect of the South African Government or population. The international threat of terrorism is, however, often directed at foreign officials, guests, embassies and the interests of foreign states. For example, an attack on the US or Israeli Embassy in South Africa would not be considered a terrorist action under the current legislation because it is not against a South African target. The offence of terrorism as it exists in South African law is in this respect deemed inadequate.

The South African legislation for combating terrorism should be brought in line with the international conventions dealing with terrorism, our law should provide for extra-territorial jurisdiction, and financing of terrorism must be addressed.

While it is true that the existing legislation does not cover certain aspects of what might constitute terrorist activities especially under international law, it is not necessarily through new legislation that this might be covered. There is not legislation currently dealing with the financing of terrorist groups nor dealing with attacks on foreign concerns, but these can be remedied by amending relevant existing legislation.

Creating additional offences without adequate funding may create a false sense of security. The government should rather make a concerted commitment to adequate funding for law enforcement agencies, intelligence gathering agencies and the military so that the tools already available to them can be used fully.

The following offences are created in the Bill:- Participating in and facilitation of a terrorist act and harbouring and concealing a terrorist (Clause 3); Membership of a terrorist organisation (Clause 4); Hijacking of an aircraft (Clause 5); Endangering the safety of maritime navigation (Clause 6); Bombing offences (Clause 7); Taking of hostages (Clause 8); Murdering or kidnapping an internationally protected persons (Clause 9); Offences relating to fixed platforms (Clause 10); Offences with regard to nuclear matter or facilities (Clause 11); Hoaxes involving noxious substances or things or explosives or other lethal devices or weapons of mass destruction (Clause 12); Use of weapons of mass destruction (Clause 13); Any conspiracy, instigation or attempt to commit a crime in the Bill (Clause 14); Offences relating to the non-compliance with the duty to report information on terrorist acts (Clause 18).

The Bill also provides for an extended jurisdiction of the courts in respect of terrorist offences, (Clause 15); the proscription, by the Minister of Justice and Constitutional Development of suspected terrorist organisations and review procedures in respect of such proscription (Clause 4); extradition of persons sought internationally in respect of terrorist offences. The principles of "prosecute or extradite", as reflected by the international instruments, are encompassed in the Bill (clause 16); bail in respect of offences in terms of the Bill are dealt with as if the accused is charged with an offence referred to in Schedule 6 of the Criminal Procedure Act, 1977 (Clause 17); powers to stop and search suspected vehicles in order to prevent acts of terrorism (Clause 19); investigative hearings, along the lines of the procedure in section 205 of the Criminal Procedure Act, 1977, in order to gather evidence. Application may be made by a police officer to a judge for an order to gather information. Prior consent of the National Director of Public Prosecution is required (Clause 21). An order for arrest may be obtained from a judge when a person is evading the service of the order, is about to abscond, or did not attend an examination; obligation to answer questions and produce things under an investigative order, subject to an exemption in respect of incrimination. (Clause 25); imposition of conditions to prevent terrorist acts - a judge may order that a person enter into an undertaking to keep the peace or to comply with other conditions. (Clause 30); and conditions relating to the surrender, disposal of weapons and explosives may be laid down (Clause 32).

In respect of the combating of financing of terrorism, the following measures are included in the Bill: dealing in property owned or controlled by a terrorist organisation is criminalized (Clause 34); reporting by accountable institutions to the Financial Intelligence Centre of existence of property in possession or control of a proscribed organisation (Clause 35); audits by accountable institutions (Clause 33); exclusion of the confidentiality rule (Clause 36); protection of persons making reports (Clause 37); criminalizing the failure to report prescribed information in respect of property (Clause 39).

The Bill further provides for the search, seizure and forfeiture of terrorist property (Clauses 38-40) and preservation of property orders (Clauses 43-52) in line with the procedures in the Prevention of Organised Crime Act, 1998.

The Bill also provides for the making of regulations by the Minister in respect of anything that may be prescribed in terms of the Bill, or any other matter which is necessary or expedient to promote the objectives of the Bill.

Terrorism, as a phenomenon, is not defined in the Bill, but "terrorist act" is defined in the Bill and a person who commits a terrorist act, shall be guilty of an offence, and liable to imprisonment for life. The definition of what constitutes a terrorist act is crucial as it affects everything that follows. In terms of the Bill, ‘terrorist act’ means an act, in or outside the Republic,

1. that is committed —

1. in whole or in part for a political, religious or ideological purpose, objective or cause, and
2. in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the person, government or organization is inside or outside the Republic, and

2. that —

1. causes death or serious bodily harm to a person by the use of violence,
2. endangers a person's life,
3. causes a serious risk to the health or safety of the public or any segment of the public,
4. causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of subparagraphs (i) to (iii), or
5. causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, including, but not limited to: an information system; or a telecommunications system; or a financial system; or a system used for the delivery of essential government services; or a system used for, or by, an essential public utility; or a system used for, or by, a transport system, other than as a result of lawful advocacy, protest, dissent or stoppage of work that does not involve an activity that is intended to result in the conduct or harm referred to in any of subparagraphs (i) to (iii),
6. but, for greater certainty, does not include conventional military action in accordance with customary international law or conventional international law.

This definition appears to cover a wide range of activity, and overlap significantly with other existing common law or statutory crimes. The only difference seems to be the motivation for the action. For instance, causing injury or damage to someone is an offence under the criminal law but causing injury or damage to someone with the intention of compelling government to do or refrain from doing something is a terrorist act.

Such a broad definition runs contrary to the principle of legality. By virtue of this principle, all measures taken by States must be prescribed by law and set out with sufficient precision so as to preclude arbitrary or discriminatory enforcement. A basic tenet of the principle of legality is that legislation should not be vague and should define with reasonable precision the ambit of prohibited conduct.

The broadness and vagueness of the definition of a terrorist act in the Bill embraces a wide array of other similar offences already provided for in the Criminal code and therefore needs attention and cannot be seen to be a legitimate limitation of rights.

Human rights groups have warned that the lack of clarity on the meaning and definition of terrorism or terrorist act means that some governments were likely to use the Security Council resolution to smear and attack political opponents.

Terrorist act in the Bill has been qualified to specifically exclude even intentional, serious and unlawful interference with an essential service as a result of advocacy, protest, dissent or stoppage of work, so long as it is not intended to cause death or serious bodily harm, endanger life or cause serious risk to the health and safety of the public. In short, such activity may be prosecuted as mischief, trespass or otherwise, but not as terrorism. Therefore, Trade Union strikes; student demonstrations, advocacy and protests by organisations would not constitute terrorist acts.

This guarantee notwithstanding, the definition remains very broad and imprecise, and open to abuse. The determination of intention is very difficult and considering the very wide powers endowed to the police and the Minister, a clear definition of what constitutes a terrorist act is necessary. Every action, protests included, directed towards the Public is a form of advocacy aimed at drawing the government’s or the international community’s attention to an issue. This can be done peacefully or through coercion.

In terms of the definition, a strike by teachers or municipal workers - an action that could be interpreted as being 'calculated' to 'disrupt a public service' - in the course of which some incidental damage is caused to public or private property, could be construed as a terrorist act; also, the Wits student who took the Dean of Studies hostage and disrupted services in school could be termed a terrorist; or a person who destroys a road sign or blocks traffic could be termed a terrorist; or a public servant strike that disrupts public services could be term a terrorist act – all this because the perpetrators intend to compel government to do or refrain from doing something. A students demonstration aimed at compelling government to release colleagues arrested during a previous demonstration which results to disruption of traffic and serious damage to public and private property would fall under the same category.

The overboard definition of terrorist act which target activities well in advance of actual commission, are in turn expanded by the incorporation of inchoate liability such as conspiracies, attempts, counselling or threats, into the definition of terrorist act. The overall effect is to lengthen the long reach of the criminal law in a manner that is complex, unclear and unrestrained.

Since the classification of conduct as an act of terrorism is frequently accompanied by an abridgement of procedural and fair trial safeguards, it is all the more crucial that the crime is precisely and restrictively defined. How to define terrorism is of course a particularly vexed issue - the Special Rapporteur on Terrorism and Human Rights notes that the 'definitional problem is the major factor in the controversy regarding terrorism'. Since counter-terrorism is designed to address specific conduct, the necessary definitions ought to be delineated with precision.

Section 2 of the Bill deals with participation and facilitating a terrorist act. The Bill does not define participation and facilitation in the definition section but provides in section 2(1-3) that any person who knowingly participates in, or contributes to, the activities of a terrorist organisation or does anything which will, or is likely to, enhance the ability of any terrorist organisation to facilitate or carry out a terrorist act is guilty of an offence and liable on conviction to imprisonment for a period not exceeding 15 years. An offence may be committed under subsection (1) whether or not — a terrorist organisation actually facilitates or carries out a terrorist act;

1. the participation or contribution of the accused actually enhances the ability of a terrorist organisation to facilitate or carry out a terrorist act; or
2. the accused knows the specific nature of any terrorist act that may be facilitated or carried out by a terrorist organisation.

Without limiting the generality of subsection (1), participating in or contributing to the activities of a terrorist organisation includes — providing, receiving or recruiting a person to receive training; providing or offering to provide a skill or an expertise for the benefit of, at the direction of or in association with a terrorist organisation; collecting, providing or making available, directly or indirectly, property or inviting a person to provide, facilitate or make available property or financial or other related services on behalf of such an organisation; using property, directly or indirectly on behalf of such an organisation; possessing property intending that it be used, directly or indirectly on behalf of such an organisation; recruiting a person in order to facilitate or commit —

1. a terrorist act, or
2. an act or omission outside the Republic that, if committed in the Republic, would be a terrorist act;
3. entering or remaining in any country for the benefit of, at the direction of or in association with a terrorist organisation; and
4. making oneself, in response to instructions from any of the persons who constitute a terrorist organisation, available to facilitate or commit — (i) a terrorist act, or (ii) an act or omission outside the Republic that, if committed in the Republic, would be a terrorist act.

Any person who knowingly facilitates a terrorist act is guilty of an offence and liable on conviction to imprisonment for a period not exceeding 15 years. A terrorist act is facilitated whether or not — (a) the facilitator knows that a particular terrorist act is facilitated; (b) any particular terrorist act was foreseen or planned at the time it was facilitated; or (c) any terrorist act was actually carried out.

The principles of proportionality and necessity are inherent under domestic and international law. Outside of emergency situations, it is also permissible to limit rights for legitimate purposes if the measures taken are proportional to the objective, and is the least intrusive means to achieve the objective.

The principle of proportionality is embedded in almost every national legal system and underlies the international legal order. Its function in domestic law is to relate means to ends. In armed conflict, the principle is used to judge first, the lawfulness in jus ad bellum of the strategic goals in the use of force for self-defence, and second, the lawfulness in jus in bello of any armed attack that causes civilian casualties.

The principle of proportionality (or the prohibition of excess) has proved a reasonable standard of examination for the constitutionality of legislation and State infringements of civil rights. Along with its sub-principles – suitability and necessity, it produces comprehensible safeguards.

The principle requires that, the means adopted by the legislature must be suitable to the protection. Unsuitable means contravene not only the prohibition of excess, since they limit freedom without protecting a legal interest. The infringement of fundamental rights must be necessary, that is the legislature must be satisfied with the mildest means that are effective. As far as protection is concerned, every excessive measure restrictive of freedom must be avoided. 

The principle of proportionality (or the prohibition of excess) has proved a reasonable standard of examination for the constitutionality of legislation and state infringements of civil rights. Along with its sub-principles - suitability, necessity and proportionality in strict sense - it produces comprehensible solutions.

While it is believed that measures to combat terrorism must be seen as part of the State's obligation to promote and protect human rights, all measures to counter terrorism must be in strict conformity with international law, including international human rights standards.

All statutes, all administrative actions have at least to be proportional. The principle often is the last anchor to protect a right. The Constitution provides this opportunity. In terms of section 36 the State may restrict the right of outdoor assemblies by a statute. However, the law may offend the Principle of Proportionality. This principle demands that the purpose of the restriction or any action by the administration (say the police) has to be fulfilled by an appropriate, necessary and adequate law or action. This means that a restriction shall only go that far as necessary, not further.

For instance, if there is an outdoor assembly the State could have several means to avoid riots. It could prohibit the whole assembly. This is an appropriate means, as it will surely take effect. But is this the only (proportionate or necessary) way to avoid riots? If there is any other action imaginable which could reach this aim (avoid riots) as good as a prohibition but which does not totally restrict the right of assembly a prohibition would be disproportionate and unnecessary.

In this particular case one could also think about a restriction to the place where the assembly can meet. If there is a place where riots can easily be controlled it is not necessary to prohibit the whole assembly. It would be sufficient to allow the assembly under the condition that it has to take place at a less dangerous place.

But at least this less restricting means has also to be adequate. That means that after a comparison of the disadvantages on both sides, the restriction means must not be less important than the restricted right of the assembly.

This principles of proportionality and necessity are to be applied on all law, on all statutes, on all ordinances and of course, on all judgements.

From the foregoing it can be argued that the Anti-Terrorism Bill would not pass the test of proportionality and necessity given the extent to which certain basic rights are encroached upon in the Bill.

This part of the paper looks at the extent to which measures designed to combat terrorism in the Bill constitute a violation of certain basic rights guaranteed in Chapter Two of the 1996 constitution. The paper will address at least five main rights that risk of being violated if the Bill were enacted into law as it currently is. They include – the right to silence, the right to privacy, freedom of expression, freedom of association.

Investigative hearings and the Right to silence, presumption of innocence and non-incrimination

According to the Bill, a person suspected of a crime could be called before a judge - to an "investigative hearing" - and be obligated to answer questions about that crime. The bill also proposes to place a duty on anyone who knowingly possesses any information, which may be essential to investigate any terrorist act, to provide such information to a law enforcement officer or public prosecutor. Intentionally withholding such information constitutes an offence leading on conviction to imprisonment for up to five years without the option of a fine.

One of the issues that ensue from this procedure and that would require particular attention is the possible waver a person's right to silence. According to Amnesty International, the implementation of this provision could result in abusive prosecutions, given the broad definition of what constitutes a terrorist act. Moreover, the provision may be in breach of the right not to incriminate oneself, which is enshrined in international instruments and the South African constitution.

Section 24 of the Bill provides that

A judge will preside over an investigative hearing - essentially an information gathering exercise involving solely the questioning of a suspect. In practice, it will entail police applying for such a hearing to question a particular individual they believe has information. The judge will then decide whether to hold the hearing immediately, or set a future date, in which case a bail application can be lodged.

The actual hearing will follow normal forensic court procedure, with a representative of the State and the subject's legal representative in attendance. The procedure requires answers from the subject, even incriminating him or herself, but none of this can be used in evidence against the person if he or she is charged.

The Bill’s novel procedural and investigative mechanisms are intended to pre-empt and prevent terrorist activity rather than just to punish after the fact. This provision does not affect a suspect’s right to remain silent in their own criminal trial, because evidence given cannot be used against them except for perjury. Nor can the provision be used to force a lawyer to break the legal duty not to disclose information about a client.

Investigative hearings under the Bill are no more than just public inquiries with virtually no legal consequences. The hearing ends when the subject is excused by the judge, and the whole process is open to appeal and review.

At first instance, one can argue that this procedure is unconstitutional as it infringes on the accused’s right to remain silent guaranteed under section 35(3)(h) of the 1996 Constitution. This subsection of the Constitution covers three separate but interrelated rights – presumption of innocence, right to silence and non-incrimination.

In view of the bargaining chips available to guarantee cooperation between the investigators and the suspect, this process will be rarely used, for as Pierre van Wyk, South African Law Commission researcher puts it

This guarantee notwithstanding, the question may be asked whether a citizen is under any legal obligation to assist the police or any person in authority in whatever investigation, whether he/she is a suspect or not.

In the context of criminal investigations, a suspect has a right to refuse to answer police questions. This right was expressed in the following way by Lord Parker in Rice v Connolly [1966] 2 All ER 649, 652:

The scope of this right was defined in the case of Petty v R thus

What is at issue in an investigative hearing is the consequences which can flow from the accused's exercise of their right to pre-trial silence. The orthodox view, confirmed in Petty v R (1991) 173 CLR 95 is that the pre-trial right to silence can be exercised without penalty. To use the words of Brennan J, `It is a "right" which attracts an immunity from any adverse inference which might otherwise arise from its exercise'. In other words, a suspect has both a right to refuse to answer official questions, and a right to not have that refusal used against him or her at trial. The passage from Petty v R above was followed by these comments:

It is this aspect of the pre-trial right to silence which is controversial. When people talk about curtailing or abolishing the right to silence, they are not usually talking about forcing a suspect to answer official questions, or making it an offence not to do so; they are talking about allowing the fact that a suspect refused to answer official questions to be used against him or her at trial.

It is for this reason that the Bill, while compelling the suspect to answer questions, has traded the right to remain silent with the prosecutor’s obligation to prosecute. Thus in terms of section 24(3) of the Bill,

But can it be argued that with such guarantees a suspect loses his/her constitutional right to remain silent?

The right to silence, like the presumption of innocence, is firmly rooted in both our common law and statute. The common law principle is that no one can be compelled to give evidence incriminating him/herself, either before or during the trial. The Criminal Procedure Act prescribes that an accused shall not be called as a witness except upon his own application.

The Constitution is more explicit. It provides that everyone who is arrested (including anyone suspected of an offence) has the right to remain silent and to be informed of that right and of the consequences of not remaining silent. It further provides that every accused person has the right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during the proceedings and not to be compelled to give self-incriminating evidence. Thus, whether you are a suspect, a detainee or an accused person, the rights apply in the same measure as guaranteed in the constitution.

Evidence obtained in a manner that violates these rights must be excluded if the admission thereof would render the trial unfair or otherwise be detrimental to the administration of justice.

The investigative hearing mechanism provided for in the Bill resembles the evidence-gathering mechanism provided for in section 205 of the Criminal Procedure Act, that allows for a person who is likely to give material or relevant information as to any alleged offence, but who will not voluntarily furnish such information, to be required or subpoenaed by a judicial officer to appear before him or her for examination by the prosecuting authority. Where such a person gives the requisite information before the date in the subpoena, the obligation to so appear lapses.

However, should such a person fail or refuse, without a just cause, to appear before the judicial officer and give the requisite information, provision is made in the Act for the imposition of a sentence of imprisonment for a period not exceeding two years.

Before imposing such a sentence, the judicial officer must be ‘of the opinion that the furnishing of such information is necessary for the administration of justice or the maintenance of law and order’.

The sentence imposed under the provisions of section 189(1) for the purposes of a section 205(1) enquiry is ‘subject to appeal in the same manner as a sentence imposed in any criminal case’.

Section 189 of the Criminal Procedure Act does not create any offence; the recalcitrant suspect does not, therefore, go to prison for a criminal offence. He/she is simply detained, and if, at a later stage, he or she changes his or her mind and becomes willing to testify and complies with the provisions of section 205(1) of the Act, this would entitle him or her to immediate release from detention.

The Criminal Procedure Act further makes provision for the discharge of such a person from prosecution where he or she has answered all relevant questions frankly and honestly. It also precludes the use of such information as evidence at a later trial of such a person if he or she does not qualify for a discharge from prosecution, unless he or she is prosecuted for perjury arising from the giving of evidence under section 205.

In Nel v Le Roux NO and Others, the Constitutional Court was called upon to determine the constitutionality of the provisions of section 205 of the Act. Ackermann J, who delivered the Court’s unanimous judgment, confirmed that the recalcitrant suspect could not be sentenced under section 189 of the Criminal Procedure Act if he or she furnished "a just excuse" or "sufficient cause".

It was the duty of the judicial officer before whom the suspect appeared, to determine, bearing in mind the spirit, purport and objects of the fundamental rights guaranteed in the Constitution, whether he/she has a just excuse or sufficient cause to refuse to provide the necessary information.

The Court further held that the provisions of section 205 were not trumped by the general limitation clause of the Constitution.

It held in particular that:

Under the Bill, like under the Criminal Procedure Act, a person who appears for investigative hearing is not an accused person, and it would be a misnomer to talk of "a fair trial" in this regard. The Court held in Nel v Le Roux NO and Others that:

The Court, after a meticulous examination of all the issues raised in the case, concluded and declared that the provisions of section 205 of the Criminal Procedure Act were not inconsistent with the Constitution.

However, does the fact that the suspect summoned to appear before an investigative hearing has not been accused of an offence deprive him/her from enjoying the right to silence?

It has been said that the right to silence is not a single right but consists of a cluster of procedural rules that protect against self-incrimination. The right to choose whether or not to respond to questioning or to testify is guaranteed by the right not to be compelled to testify against oneself or confess guilt. The corollary of the presumption of innocence is that an accused or a suspect has the right to remain silent both before and during the trial.

Any discussion of the right to silence requires reference to the presumption of innocence, a cornerstone of our criminal justice system, now firmly entrenched in the Bill of Rights of the constitution. The significance of the presumption of innocence to the right to silence is that the presumption of innocence places the burden of proving guilt beyond a reasonable doubt on the prosecution alone. The accused cannot be forced to assist the prosecution in proving its case against him by providing testimonial evidence either at the investigation stage or at trial.

A leading case that sets out the purpose of the presumption of innocence is the Canadian case R V Oakes in which Chief Justice Dickson (as he then was) states:

The right to remain silent says Galligan DG, is general and abstract, concealing a bundle of more specific legal relations. It is only when examining the surrounding legal rules that this right can be more precisely identified. These surrounding rules include the common law confession rule, the privilege against self-incrimination and the right to counsel.

The right to silence has also been reaffirmed internationally. Through its jurisprudence, including General Comments, Concluding Observations on States’ reports and decisions from individual petitions, the Human Rights Committee established under the ICCPR has elaborated somewhat on the meaning of these rights and on States Parties obligations under the Covenant. The Committee, in General Comment 13, noted that in many countries, the presumption of innocence has been expressed in very ambiguous terms or entails conditions which render it ineffective. The committee has clearly stated that "by reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of the doubt. No guilt can be presumed until the charge has been proved beyond a reasonable doubt."

It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial. The Committee calls on States to pass legislation to ensure that evidence elicited by means of such methods that compel the accused to confess or to testify against himself or any other form of compulsion is wholly unacceptable.

In 1995, the Human Rights Committee reviewed the fourth periodic report of the United Kingdom and found that the modification of the right to remain silent in allowing the judge and jury to draw adverse inferences in certain situations "violate various provisions of Article 14 of the Covenant [fair trial], despite a range of safeguards built into the legislation and the rules enacted thereunder".

While the right to remain silent is not explicit in the European Convention on Human Rights and Fundamental Freedoms, the Court held in Murray v UK that an individual’s right to remain silent under police questioning and the privilege against self-incrimination are "generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6".

Those in favour of maintaining this right argue that any inferences from silence operate as a means of compulsion, shifting the burden of proof from prosecution to the accused. Simply put, the argument suggests that, the law cannot grant a fundamental right and penalise a person who chooses to exercise it.

More recent international documents have explicitly included the right to remain silent. Both the Rules of Procedure and Evidence adopted by the criminal tribunals established by the United Nations Security Council for the Former Yugoslavia and Rwanda provide for an explicit right to silence during investigation stage. The Rome Statute of the International Criminal Court not only confers a right to silence, but also provides that silence cannot be used as "a consideration in the determination of guilt or innocence".

This explicit expression of the right to remain silent in the most recent articulations of criminal justice in international instruments indicates the movement of the position that any procedural measures which may have the effect of pressuring suspects and defendants into speaking against their will violates international human rights standards.

The indictment or formal charge against any person is not evidence of guilt. Indeed, the person is presumed by the law to be innocent. The law does not require a person to prove his innocence or produce any evidence at all. The Government has the burden of proving a person guilty beyond a reasonable doubt, and if it fails to do so the person is (so far as the law is concerned) not guilty. The burden of proving guilt is entirely on the State.

The defendant enters the courtroom as an innocent person, and must be considered to be an innocent person until the State convinces the magistrate beyond a reasonable doubt that he is guilty of every element of the alleged offence. If, after all the evidence and arguments, there is a reasonable doubt as to the defendant having committed any one or more of the elements of the offence, then he must be found not guilty. Forcing or tricking the accused to answer questions or making inferences from his refusal to answer is not enough to establish guilt.

Some legal commentators however, find the right to silence to be outdated and unnecessary in the modern era. They argue that should an accused refuse to answer questions before or at trial, the magistrate or jury can make an inference from the refusal. Permitting adverse inference to be drawn suggest that this does not nullify the privilege against self-incrimination as it simply allows the court to make a common sense assessment of all the evidence before it. The question is whether the [power to draw adverse inferences is sufficiently coercive that the accused is not actually protected against self-incrimination. K Van Dijkhorst argues that

G L Davies on his part argues that

The European Court of Human Rights has accepted that the right to silence was not an absolute right. It acknowledged the argument that international standards were silent on the precise implications an accused’s silence would have when the trial judge or jury weighed the evidence. However, the court stated that a violation of the right to silence was a matter to be determined in light of all the circumstances of the case, did set some clear limits to the inferences that could be properly drawn. One such limit is that it would be incompatible with the Convention for a court to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or testify. Inferences could be made in a situation where the circumstances "clearly" called for an explanation and that the inferences were "reasonable". In these situations, an adverse inference could be drawn if certain safeguards were in place, including the right to counsel, providing a caution in clear terms and ensuring that the accused understood the possible consequences of their decision.

It is implicit in the above discussions that a person does not have a `right to silence' when being questioned or confronted with accusations by persons who are not in authority. Thus, inferences of guilt have been held permissible in cases where the accused failed to deny an accusation of guilt made by the mother of a woman he was alleged to have murdered; and where the accused failed to protest his innocence during the course of conversations with his friends about the fact that he was suspected of having murdered his wife. Silence in such situations cannot be construed as an exercise of the right to silence and can therefore be used against the accused.

In almost every sphere of human endeavour, other than in a criminal trial, it is thought to be common sense to draw an adverse inference from a failure to answer an incriminating question or accusation or incriminating evidence when a denial, explanation or answer would be reasonably expected. Unsurprisingly that sensible approach has been taken in civil cases where it is common to draw an adverse inference from a failure of a party to answer an accusation or evidence which he or she is capable of rebutting or explaining and might reasonably be expected to do.

So also in criminal trials, before the advent of police forces, the failure of a defendant to answer an incriminating question or accusation was commonly the subject of adverse inferences. And this has survived where the accuser or questioner is not a person in authority.

How does it come about then that where the questioner is a person in authority no adverse inference can be drawn from silence and, subject to a limited exception, no adverse inference can be drawn from a failure of a defendant to give evidence?

The right to silence should be researched further, in particular, its relation with the presumption of innocence. The law must be brought into conformity with community values and it must be consistent in its operation.

Preventative measures

The Bill provides for preventative measures, in terms of which a person suspected of planning to commit a terrorist act can be brought before a court to enter into an undertaking to refrain from certain activities, with the court imposing conditions to ensure compliance. The Bill provides that the court may impose conditions to ensure compliance, such as that the person be prohibited from possessing any weapon or explosive for any period specified in the undertaking. 

By virtue of section 29 (2) the judge may commit the person to prison for a period not exceeding twelve months if the person fails or refuses to enter into the undertaking in accordance with subsection (1). In terms of section 28 of the draft Bill,

1. A person detained in custody in accordance with section 27(4) shall be taken before a judge without delay, unless, at any time before taking the person before a judge, the police officer, is satisfied that the person should be released from custody unconditionally, and so releases the person.
2. When a person is taken before a judge under subsection (1) —

1. if an application has not been brought under section 27(1), the judge shall order that the person be released; or
2. if an application has been brought under section 27(1) —

1. the judge shall order that the person be released unless the police officer who brought the application shows cause why the detention of the person in custody is justified on one or more of the following grounds:

(aa) the detention is necessary to ensure the person's appearance before a judge in order to be dealt with in accordance with section 29,
(bb) the detention is necessary for the protection or safety of the public, including any witness, having regard to all the circumstances including —

(a) the likelihood that, if the person is released from custody, a terrorist act will be carried out, and
(b) any substantial likelihood that the person will, if released from custody, interfere with the administration of justice, and

(cc) any other just cause and, without limiting the generality of the foregoing, that the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the police officer's grounds under section 27(1), and the gravity of any terrorist act that may be carried out, and

2. the judge may adjourn the matter for a hearing under section 29 but, if the person is not released under subparagraph (i), the adjournment may not exceed forty-eight hours.

By compelling a suspect to sign an undertaking without having been tried is like putting the cart before the horse – find the suspect guilty and let him proof his innocence. By signing an undertaking, the suspect is admitting guilt. If the police officer reasonably believes that the suspect is about to commit a terrorist act, or has information relating to the commission of such an act, he/she should produce this before the judge and prosecute. In the absence of convincing evidence to that effect, detaining a person for twelve months on mere suspicion is disproportionate and unnecessary.

By doing this we are made to believe that the presumption of innocence of the suspect, his silence and the privilege against self-incrimination have been principally responsible for the increase in crime rate. This appears to be an unduly exaggerated picture of the failure of the criminal legal and justice system. It simply means that if you accuse me of a crime, you must establish the same and beyond all reasonable doubt.

The desire to do away with the presumption of innocence would violate article 14 (2) of the International Covenant on Civil and Political Rights to which this country is a party. This article reads: "Everyone charged with a criminal offence shall have the right to be presumed to be innocent until proved guilty according to law." This principle governs our criminal jurisprudence and is also a valid principle of international law. There is no law in this country, which contravenes Article 14 (2) of the covenant. In fact, the constitution lists the presumption of innocence, the right to remain silent and non-incrimination as non-derogable rights.

Concerns have also been expressed that the enforcement and application of the legislation, particularly as regards preventive detention and investigative hearings, might single out minorities - particularly Muslims – for differential and discriminatory treatment.

In terms of the Bill, any person commits an offence if he belongs or professes to belong to a proscribed organisation – a terrorist organisation. The Bill defines a terrorist organisation as an organisation that has as one of its purposes or activities facilitating or carrying out any terrorist act, which has carried out, or plans carrying out a terrorist act.

A person guilty of being a member of a terrorist organisation shall be liable on conviction to imprisonment for a period not exceeding 10 years, to a fine or to both.

A member of an organisation includes: a person who is an informal member of the organisation; and a person who has taken steps to become a member of the organisation and a prescribed organisation means an organisation in relation to which a declaration by the Minister under subsection (4) is in force.

The applicant may apply to a High Court for judicial review of the Minister’s decision. When an application is made to the High Court the judge shall, without delay —

1. examine, in private, any security or criminal intelligence reports considered in proscribing the organisation and making the Minister’s decision and hear any other evidence or information that may be presented by or on behalf of the National Director and may, at the request of the National Director, hear all or part of that evidence or information in the absence of the applicant and any counsel representing the applicant, if the judge is of the opinion on reasonable grounds that the disclosure of the information would injure national security or endanger the safety of any person;
2. provide the applicant with a statement summarizing the information available to the judge so as to enable the applicant to be reasonably informed of the reasons for the Minister’s decision, without disclosing any information the disclosure of which would, in the judge's opinion, on reasonable grounds, injure national security or endanger the safety of any person;
3. provide the applicant with a reasonable opportunity to be heard; and
4. determine whether the Minister’s decision is reasonable on the basis of the information available to the judge and, if found not to be reasonable, order that the applicant no longer be a proscribed organisation.

Section 18 of the Constitution provides that everyone has the right to freedom of association. The most important international human rights treaty dealing with freedom of association and assembly and the related right to freedom of expression is the International Covenant on Civil and Political Rights, Article 22 (ICCPR) (1976). The ICCPR provides, in relevant part, that:

Thus, the ICCPR speaks quite unambiguously about the freedom of association, and its provisions are binding on the States that are party to it.

The most recent United Nations document dealing with the freedom of association is the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms. This "Declaration of the Rights of Human Rights Defenders" provides in Article 5 that –

Many organisations pursue objectives (both locally and internationally) that may not necessarily be in line with the policies of the government or even the constitution and the only grounds upon which a government can interference with the freedom of association can be justified if the interference in question is in pursuance of "legitimate aims," which require that it be--

The European Court on Human Rights has held that the issue of the dissolution of a party that advocated rights of the Kurdish minority in Turkey that the party in question could not be dissolved in pursuance of the admittedly "legitimate aim" of ensuring national security. The important distinction it drew was that the party’s statement of aims could not be "considered a call for the use of violence, and uprising, or other form of rejection of democratic principles." The Court went on to make clear that espousing unpopular opinions does not, by itself, constitute a defensible reason to dissolve a political party:

There is no requirement under the Bill allowing the organisation to view "incriminating evidence against it" before the organisation is proscribed by the Minister. The organisation can wake up one day and realise through a government Gazette that it has to seize operating. This process might be very disruptive, especially if in the long run it is proven that the organisation is not a terrorist organisation.

Only after an organization has been entered on the blacklist will it be able to challenge the designation before a judge. At these hearings, the government will be able to demand in the name of national security, national defence or international relations that much of the evidence on which its decision was based be withheld from the complaining organization. Also, the government will have the right to use evidence that would not be admissible in a regular court hearing.

The proscription of terrorist entities by the executive branch will be a problem because there is insufficient notice and procedural fairness before the listing takes place. The legislation also imposes significant liability on charities without provision for appropriate defences, such as due diligence, thereby "chilling" the work of charities.

It would be proper if the Minister could notify the organisation and allow the organisation to show cause why it must not be proscribed as a terrorist organisation within a specified period of time. Based on the organisation’s response, the Minister will then make a decision which the organisation can challenge before the courts if it is not satisfied. Alternatively, the Minister can present the incriminating evidence against the organisation to the court requesting for a court order to proscribe the organisation.

A number of other human rights issues also arise from the international and domestic regime designed to deal with terrorism. Given that the scope of what constitutes terrorist acts is extremely broadly defined, these provisions may constitute a serious violation of the right to privacy and may include the monitoring and collection of information on peaceful and non-criminal activity. The power of search and seizure provisions in the Bill may also constitute an unjustifiable limitation on the right to privacy.

Section 14 of the constitution provides that "everyone has the right to privacy, which includes the right not to have (a) their person or home searched, (b) their property searched, (c) their possession seized, or (d) their privacy of their communication infringed.

The Bill requires that a judge may on application ex parte by a police officer of the South African Police Service of or above the rank of Director if it appears to the judge that there are reasonable grounds to do so in order to prevent acts of terrorism, grant authority to stop and search vehicles and persons with a view to prevent such acts. Under such authorisation any police officer who identifies himself or herself as such may stop and search any vehicle or person for articles which could be used or have been used for or in connection with the commission, preparation or instigation of any terrorist act. The Bill also proposes that the law enforcement officers can compel anyone to disclose confidential information

Our Courts have dealt with the constitutionality of the provisions of section 22 of the Criminal Procedure Act, which allow any police official to search, without a search warrant, any person, container or premises for the purpose of seizing any article that is concerned or reasonably suspected to be concerned in the commission or suspected commission of an offence, or that may afford evidence of the commission or suspected commission of an offence, whether within or outside the Republic of South Africa, or that may be used, or is on reasonable grounds suspected to be intended to be used, in the commission of an offence.

In S v Motlousi, the State sought to tender the evidence of the finding and seizure of blood-stained banknotes which were allegedly found in the course of a search of the room occupied by the accused person. The Court found on the evidence that the police could not have acted bona fide in the matter. Similarly, in S v Moyokiso en Andere, the State sought to tender the evidence of the alleged finding of certain items which were seized during a search of a bag found at the residence of the first accused in the matter. It appeared that when the search was conducted, the police had no reason to believe that the deceased had been killed at the residence or that the third accused person, the owner of the bag, had been involved in the killing. In other words, the police had no reason to believe that the requirements of the Criminal Procedure Act relating to the searches and seizures were satisfied and that a search warrant would have been granted. It therefore followed that the police would not have been entitled to act under section 22 of the Act. The Court found on the facts that the search of the bag had constituted an infringement of the owner’s fundamental right.

In both Motlousi and Mayekiso, Farlam J and Van Reenen J respectively followed the Irish approach adopted by Kingsmill Moore in the People (Attorney-General) v O’Brien decision. In sum, the O’Brien approach was that where evidence is obtained as a result of illegal action, it is a matter for the trial judge to decide, in his or her discretion whether to admit or reject it. In exercising that discretion, our Courts have to make a choice between two desirable ends which may nonetheless be incompatible, namely between the public interest which requires that crime should be detected and punished, on the one hand, and, on the other, the public interest which requires that individuals should not be subjected to illegal or inquisitorial methods of investigation, and that the State should ordinarily not be permitted to combat crime by using the fruits of such methods.

The O’Brien approach may, in other words, in certain instances justify the admission of evidence despite the fact that it was obtained in breach of the constitutional rights of an accused person. Applying the logic of the O’Brien decision, both Harlam J and Van Reenen J in Motlousi and Mayekiso respectively declared the tendered evidence inadmissible in casu.

In Key v Attorney General, Cape of Good Hope Provincial Division and Another, the Constitutional Court was called upon to determine, inter alia, whether the provisions of sections 6 and 7 of the Investigation of Serious Economic Offences Act, which allowed for the search, seizure and utilization of items required in the prosecution of crime, were not inconsistent with the constitutionally guaranteed right to privacy. It is noteworthy, however, that Kriegler J.41 for the Court, without reference to the O’Brien decision, remarked, albeit obiter, that:

The issue has to be looked at in the context of the fairness of the trial. And, as Kriegler J. put it,

A police officer of at least the rank of director may authorise that special powers are given to all uniformed police officers within his area of authority, provided there are reasonable grounds to do so to prevent a terrorist act. Uniformed officers may then stop and search any vehicle or person for articles that could be used for the commission, preparation or instigation of any terrorist act. There is however, no guarantee that, a police officer shall exercise such powers only when he/she has reasonable grounds for suspecting the presence of such articles.

The right to freedom of expression may also be compromised under the Bill. The clearest example of this arises from the very broad definition of what constitutes a terrorist act. Under the Bill, the definition of a terrorist act embraces any promotion, sponsoring… incitement, encouragement … or procurement' of such act.

In terms of s 16 of the Constitution of Rights:

This right does not extend to propaganda for war, incitement of imminent violence or advocacy of hatred based on race, ethnicity, gender or religion, and that which constitutes incitement to cause harm. The right to freedom of expression in South African law is not absolute, however, any curtailment of the right must meet the limitation or the test laid down in the limitation clause, s 36 of the Constitution.

In terms of section 2(1) of the draft Bill, any person who knowingly participates in, or contributes to, the activities of a terrorist organisation or does anything which will, or is likely to, enhance the ability of any terrorist organisation to facilitate or carry out a terrorist act is guilty of an offence and liable on conviction to imprisonment for a period not exceeding 15 years.

An offence may be committed under subsection (1) whether or not - a terrorist organisation actually facilitates or carries out a terrorist act; the participation or contribution of the accused actually enhances the ability of a terrorist organisation to facilitate or carry out a terrorist act; or the accused knows the specific nature of any terrorist act that may be facilitated or carried out by a terrorist organisation.

This fear is supported by section 2(5) of the Bill which provides that in determining whether an accused participates in or contributes to any act of a terrorist organisation, the court may consider, among other factors, whether the accused - (a) uses a name, word, symbol or other representation that identifies, or is associated with, the terrorist organisation; (b) frequently associates with any of the persons who constitute the terrorist organisation.

Thus a person who researches on a terrorist organisation and constantly produces documentaries about such an organisation can be guilty of a terrorist act. Likewise a news media through which a terrorist organisation has decided to be passing through its message would be a terrorist organisation itself. This is because by broadcasting the views of the terrorist organisation, by producing items bearing the name of the organisation and by buying items of the organisation, you are promoting the organisation and indirectly promoting its cause.

By virtue of this section, one cannot buy any product - T-Shirts, diskettes, films etc produced by a terrorist organisation even if by buying the product your contribution fails to enhance the ability of a terrorist organisation to facilitate or carry out a terrorist act. It can be argued therefore that people who produce and sell items bearing the name of Osama Bin Ladin or Al Quaida would be committing an act of terrorism. Likewise anyone who buys such items would also be guilty of the same offence.

If this interpretation were correct it would have a serious implication on the right to free speech and freedom of expression. One might not be a member of an organisation but may want to express support for the organisation through posters, T-Shirts, stickers and through music. In terms of the Bill, should you do any of these you might be charged for participating and supporting a terrorist organisation – especially if you make use of a name, word, symbol or other representation that identifies, or is associated with, the terrorist organisation; or you frequently associate with any of the persons who constitute the terrorist organisation.

The Bill does not define membership but states under section 3(3) that member of an organisation includes a person who is an informal member of the organisation; and a person who has taken steps to become a member of the organisation. It is not clear what constitutes informal membership and what would be considered as "taken steps to become a member".

Can a person who reports often or who writes often about a group be considered an informal member or that he/she has taken steps to become one? What about people who buy products produced by the organisation?

In Buckley v Valoe (1976) the US Supreme Court held that "When an individual donates money to a candidate or to a partisan organization, he enhances the donee’s ability to communicate a message and thereby adds to political debate, just as when that individual communicates the message himself. . . ."

It would be difficult to justify a blanket and far-reaching limitation of the right and unless it is carefully tailored to meet the ends of fighting terrorism, would not be permissible under either the constitution, the African Charter or the ICCPR.

The penalties for the offences provided in the Bill range from six months to life imprisonment. One of the fundamental features of the Bill is the provision of mandatory minimum sentences of life imprisonment for certain offences.

Statutory provisions that deprive the courts of their discretion in imposing sentence have been known to exist in the history of South African criminal justice.

The Van Den Heever Committee (South African Law Commission 1997:1) found that the rationale for mandatory minimum sentences can be traced back to a call from the community for heavier penalties and for offenders to serve a more realistic term of imprisonment: "The public renewed claims for sentences which give expression to the desire for retribution and that concern for the offenders must give way to concern for the protection of the public. There is also general dissatisfaction with the leniency of sentences imposed by the courts for serious crimes."

The most important legislation dealing with minimum sentences is section 51 of the Criminal Law Amendment Act, No. 105 of 1997. The introduction of a mandatory minimum sentencing scheme (by means of the Criminal Law Amendment Act 105 of 1997) meant that where an accused was convicted of a "listed" offence, the court would be bound to impose a certain minimum sentence. This legislation was interpreted as a commitment by the government to reduce crime and show society that there would be no tolerance when it came to serious offences, and the inclusion of rape as a listed offence was seen as an important step for the protection of women's interests.

The reaction of courts to the question of mandatory minimum sentences including the Criminal Law Amendment Actof 1997 has raises four fundamental issues: namely, the sentencing jurisdiction of courts; the interpretation of "substantial and compelling circumstances" as grounds for deviating from mandatory minimum sentences; the constitutionality of mandatory minimum sentences; and the relation between life imprisonment and other long term sentences.

The provision in the 1997 amendment act that the mandatory minimum sentence should be imposed, except where the trial court finds "substantial and compelling" circumstances that justify a lesser sentence, has resulted in differing interpretations of the words "substantial and compelling" by the courts. The one extreme interpretation is the view of Judge Stegmann in S v Mofokeng that these words leave the trial court with almost no discretion and in fact compelled to impose the minimum sentence. Another extreme interpretation is the view of Judge Leveson in S v Majalefa and Another that the words "substantial and compelling" are actually just a confirmation of the traditional principles of sentencing; and that the consideration of aggravating and mitigating circumstances should still remain the point of departure. According to this view, the 1997 amendment act is only a measure for establishing greater uniformity in sentencing. A middle road is followed in S v Blaauw . Judge Borchers favors the opinion that the 1997 amendment act does limit the traditional discretion of courts, in the sense that courts cannot deviate from the prescribed sentence on the grounds of "circumstances" alone. On the other hand, the legislator does not describe what is meant by the qualifying "substantial and compelling" circumstances. The legislator also fails to mention any "extraordinary" circumstances. To determine whether a deviation from the mandatory minimum sentences is permissible, "extraordinary" circumstances must be found, but the cumulative effect of all the aggravating and mitigating circumstances in a case should still be taken into account. If, in the light of this, the mandatory minimum sentence appears to be "startlingly inappropriate", a deviation is then justified.

•It is argued that the statutory provisions on mandatory sentences infringe the accused's constitutional right to a fair trial. In S v Dzukuda and others (unreported decision in the Rand supreme court of 17 May 2000), Judge Lewis stated that the statutory procedure that prescribes mandatory minimum sentences in the 1997 amendment act is unconstitutional because it infringes the accused's constitutionally secured right to a fair trial. She based her finding on the fragmentation of the trial (a regional court magistrate finds the accused guilty and a judge from the supreme court must impose sentence) and the fact that the accused is administratively disadvantaged in that a long period usually transpires after the finding of guilty in the regional court until sentence is imposed by the supreme court.

The stage has indeed been reached where crime threatens the very foundations of democracy and, therefore, there is no doubt that responsible and affordable allocation of punishment is needed to wipe out violent crime. Short-term solutions such as mandatory minimum sentences will not provide the ideal solution to this grave problem, and it is generally accepted that, instead, it is the certainty of punishment that can reduce crime.

Democracy is a balance between security and freedom. Human security is the first human right. However, total security is prison - total freedom is anarchy. The balance is contextual and the post-September 11 awareness of vulnerability justifies a shift. But how far?

A society that is striving in good faith for human rights is one that can lessen the risks of conflict. Strategies of conflict-prevention must, therefore, be built upon strategies of promoting and protecting human rights. The counter-terrorism strategies pursued after September 11 have occasionally undermined international human-rights standards and suppressed or restricted individual rights, such as the right to privacy, freedom of thought, presumption of innocence, and the right to a fair trial.

It was hoped that the September 11 terror attacks would inspire global unity in facing the challenges of global governance. But there are legitimate concerns among the human rights fraternity that the war on terror has the potential to weaken global institutions, undermine human rights and can result in significant social and economic fragmentation.

A world in which one group feels that another is looking down upon it is a world that will remain insecure. The war on poverty is an integral part of the quest for dignity, equality, respect and the chance to be given opportunities. Global security would not be possible in a world of increasing poverty.

Indeed, there is no doubt that the absence of the rule of law and democracy, rampant poverty, violation of the rights of ethnic and minority groups, and political situations of domination and discrimination contributed to the frustration and hatred of people, leading them to acts of terrorism.

Terrorism as a criminal phenomenon has never been defined - neither by the international community nor in the Bill, and the description of what constitute a terrorist act is very wide, embracing almost all criminal activities. The lack of a definition of terrorism from which elements of a terrorist act can be deduced makes it very difficult for legislators to legislate a law to combat the "undefined crime".

Any legislative initiatives taken to address persistent high levels of criminal violence in the Western Cape or other parts of the country or indeed internationally must preserve the gains made for human rights since the political transition in 1994, and are consistent with South Africa's regional and international human rights obligations.

In the adoption of anti-terrorism laws, States must be seen to be responding to their affirmative duty under international law to promote and protect the human rights of all their citizens.

If the Bill in its present form is enacted into law, it will place South Africa in breach of some of its international and regional obligations and may lead to human rights violations. It will grant the authorities what are in effect emergency powers, without any of the safeguards provided for under national and international law when there is a formal declaration of a state of emergency.

To ensure that an anti terrorism legislation meets the constitutional and international human rights standards and combat terrorism effectively, measures must be put in place to ensure the following

• it should not be used for any purpose other than to investigate, prevent or prosecute the most serious crimes for which traditional charges under the Criminal Code and normal police and prosecution powers are inadequate;

• dissent, protest, advocacy and non-violent civil disobedience, even if unlawful, should not be investigated or prosecuted as a terrorist offence;

• it should protect against hatred, generalized profiling and other improper discrimination. The normal rules of evidence that protect witnesses in criminal or civil trials and public inquiries must apply to investigative hearings;

• ministerial responsibility for authorizing extra powers or actions under anti-terrorism legislation should be personally exercised, judicially reviewable and publicly reported. In any judicial proceeding, it is the obligation of the presiding judge to ensure a fair trial and to dismiss charges, exclude evidence, order the appointment of counsel, or otherwise, if a fair trial in accordance with the principles of fundamental justice cannot be ensured.

Can the anti-terrorism Bill, 2002 pass this test?

For one thing, South Africa has today a new grundnorm, a post-apartheid State predicated upon human dignity, equality, the advancement of human rights, non-racialism, non-sexism, universal adult suffrage, regular elections, multi-party policy, constitutionalism, and the rule of law has since been born. The era where Parliament could make any encroachment it chose upon the life, liberty or property of any individual subject to its sway, where the role of the courts was essentially confirmed to enforcing the will of a transient majority in Parliament, is gone.