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1. The United Ulama Council of South Africa ("UUCSA") is the largest representative organisation of the Muslim community in South Africa. It consists of the leadership of each of the various Muslim communities throughout South Africa.
2. UUCSA’s mission statement is to unify, co-ordinate and represent all Muslims of South Africa on a national and international basis. UUCSA in fact represents at least 90% of South Africa’s Muslim community. Amongst others, its objectives are to protect, preserve and promote Islamic values, and to procure religious freedom.
3. In its composition, UUCSA may be defined as an umbrella body comprising of a wide-ranging group of theologically orientated Muslim organisations within South Africa. Its founding members are:

1. Muslim Judicial Council which has a large following within the Cape Province;
2. Jamiatul Ulama Transvaal which has a large following within Gauteng;
3. Jamiatul Ulama KwaZulu-Natal which has a large following in the Natal area;
4. Sunni Council; and
5. Sunni Jamiatul Ulema.

4. In its constituency, UUCSA now has in excess of 500 mosques and 450 educational institutions in South Africa. UUCSA, through its affiliates control the overwhelming majority of religious institutions, and mosques throughout South Africa. It is representative of and enjoys the confidence of the greater Muslim populace in the country, which at present is estimated at just under 2 million South Africans of all races.
5. On 10 October 2000, UUCSA submitted a ten-page comment to the Law Commission, after being invited to do so at the early stages of the drafting of the present Bill. That submission has, to UUCSA’s knowledge not reached the Parliamentary Portfolio Committee. For that reason that submission is included in this submission, as an addendum, annexed hereto-marked UUCSA1. UUCSA1 has, in itself, certain annexures, which are referred to in UUCSA1.
6. Much of the submission in response to the first draft Bill, which was directed to the Law Commission is pertinent and applies to the present Bill. The committee is therefore required, in the execution of its administrative function for various policy considerations, to take into consideration the full content of UUCSA1.
7. Apart from the submissions made in UUCSA1, it is our submission that the issue of whether the present Bill in its existing or any other form, as a concept should be entertained by our Parliament and, secondly, if as a concept it may be entertained, what the form and structure of that concept is to be.

NECESSITY OF THE BILL

8. Is there a need to pass the Bill? This question is a separate and distinct one to whether there is an obligation on our country to pass the Bill, in the light of international law, particularly the United Nations Resolution 1373.
9. At first blush, it might appear, to the Parliamentary Portfolio Committee that the question of a "need to pass the Bill" is an irrelevant one. It might appear to the committee, that, in the light of Resolution 1373, South Africa is obliged to pass such a Bill, and that flowing from that obligation, the issue surrounding the need and necessity to draft the Bill pales into insignificance and irrelevance.
10. Later in this submission we deal with the question of the international obligation on South Africa to pass such a Bill, and consequences of not passing such a Bill. At this point however, we simply restrict its impact, within the context of the domestic legal precinct.
11. It is emphasised that this submission is not intended to be an exhaustive constitutional analysis of the Bill. This, we believe is something that the committee will in any event embark upon in due course, after having received all its submissions.
12. Unlike other statutes, which do not affect the so-called first generation rights as enshrined in our Constitution, the present Bill very much does so. In this submission, we will outline, very briefly some of the unconstitutional aspects of the Bill.
13. Since the Bill contains various principles which offend our democratic and constitutional order, by offending first generation rights, the issue as to whether its present form will pass constitutional muster must be examined in the light of section 36 of our Constitution which reads as follows.

1. the nature of the right;
2. the importance of the purpose of the limitation;
3. the nature and extent of the limitation;
4. the relation between the limitation and its purpose; and
5. less restrictive means to achieve the purpose.

2. Except as provided in sub-section (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights."

1. Having regard to the above, and in particular sub-section (1) of section 36 of the Constitution, any restriction or conflict in any law, with the first generation rights, must be balanced on the one hand with the nature of the right against inter alia, the importance of the limitation, the nature and extent of the limitation, the relationship between the limitation and its purpose and whether there are less restrictive means to achieve that purpose on the other hand. This means that the committee is, in law, obliged to consider the necessity, but more particularly, the degree thereof in passing the Bill. Ultimately, this is the very question that will, in the light of the content of section 36 of our Constitution, be the acid test if the Bill is ever to be challenged, constitutionally.
2. In UUCSA1 we have already made the submission relating to Mr Justice Richard Goldstone’s comments about the need of the existing Anti-Terrorism Bill. He has on several occasions, and publicly intimated that there is no need, and that there are several other less restrictive means within which to achieve the objective that the Bill seeks to achieve. Mr Justice Goldstone is, as the committee is aware, a Judge of the Constitutional Court whose present credentials needn’t be elaborated upon.
3. In the unlikely event of there being no constitutionally offending provision within the Bill, our submission in relation to section 36 does not apply, and the question of the need or necessity of having to pass the Bill then falls away, and need not be considered by the committee.
4. To pass the Anti-Terrorism Bill into law is indeed a challenging and daunting task for the committee. The limitation contained in section 36 will have to be weighed carefully in each of the provisions of the Bill and then holistically. We give examples of only a few:

1. Section 14(1) of the Draft Bill empowers the Minister to declare an organisation to be a terrorist organisation by notice in the Gazette if that organisation is already labelled an international terrorist organisation in terms of a decision of the Security Council of the United Nations.
2. Sub-section (2) also empowers the Minister to declare an organisation (including a local organisation) to be a terrorist organisation by notice in the Gazette, if there are reasonable grounds for believing that the organisation or any of its members has inter alia claimed responsibility for a "terrorist act".
3. One can imagine the mischief that may ensue with this: if there is a bomb that has exploded at a stadium and a hypothetical member of the public has a particular prejudice against a specified ethnic or religious organisation, that member of the public may anonymously telephone any police or media centre, and falsely, on behalf of that ethnic or religious organisation, claim responsibility for the bomb blast. In law, this would afford the Minister, reasonable grounds for believing that the (falsely accused) organisation in question is a terrorist organisation.
4. Although there may be no malice on the part of the Minister or the South African government, mischief-makers who have prejudice against one or other ethnic or religious organisation may utilise this procedure to destroy such organisations. Many of these organisations could be performing sterling community and charitable functions.
5. Even worse, any reputable member of that organisation, in terms of section 2(3), who becomes or remains a member of "a terrorist organisation" after the date on which it is declared as such, is guilty of an offence and liable to be convicted to imprisonment for a period of fifteen years!
6. After the date of such a declaration by the Minister, that organisation must disband. If it does not, the continued membership of its members is in itself an offence, which is liable to conviction of an offence, carrying with it a sentence of fifteen years. This is particularly because the organisation in question would not have received written and effective notice of the Ministers intention. Notice in the gazette is not effective notice.
7. In addition, the starkest contravention of the Constitution is the failure in any way, to afford such an organisation an administrative hearing. None of the requirements of administrative justice, as contemplated in section 33 of the Constitution have been included in the Bill.
8. Section 2(5)(ii) prohibits giving a person food and drink, if he is alleged to be a member of a terrorist organisation. This is in contravention of section 27 of our Constitution. What conceivable ground could justify this?
9. Three years ago, in our previous submission, UUCSA1, we set out that the effect of the Bill will largely discriminate against the Muslim population. We made the submission without the empirical evidence, which we have now gathered, and which proves the veracity of that submission. We allude to this later.
10. Section 9(4) of the Constitution states: "No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of sub-section (3) [which includes religion, conscience, belief, culture, language and birth]. National legislation must be enacted to prevent or prohibit unfair discrimination".
11. In the light of the evidence we adduce to you, it is realistic to accept that the enactment of the present Bill, in its present form, will foster seeds of unfair discrimination against the Muslim population. Our fear is that people with beards and traditional Muslim wear will be targeted and prejudiced inter alia by various ranking officials, whether it be in the police force, or other security forces.
12. Thus, the enactment of the present Bill, is contrary to the spirit and purport of section 9(4) of the Constitution, in that it is contrary to enacting national legislation to prevent unfair discrimination. The committee might perceive this submission as one, which is clothed with unjustified fear or paranoia. It is not. We enclose herewith research conducted by international scholars which demonstrates the effect that such an Anti-Terrorism Bill may have:

1. The first of that is a paper titled "The Status of Muslim Civil Rights in the United States – 2001 - Accommodating Diversity" by Mohamed Nimer PhD. That evidence is annexed hereto marked "UUCSA2".
2. Then there is an article from the Guardian, in England, on Friday 21 February 2003 entitled "FBI Arrests Academic on Terror Charges". A copy of that is annexed hereto marked "UUCSA3".
3. The salient feature of "UUCSA3" is that the university academic who is Palestinian, and who lived in America for 28 years and who has never been convicted of a crime, was arrested because he "ran an Islamic charity thinktank, in the early 90’s". The article is extremely enlightening. The pinnacle of the article is an adage "they have allowed anonymous phonecalls to dictate their policies". This is the real danger with the Anti-Terrorism Bill.
4. An article entitled "Good Dictators are Good Business" from Impact Magazine, May 2001 is annexed hereto marked "UUCSA4".
5. An article entitled "Muslims Today Who Tomorrow – Islamaphobia" by Impact Magazine, September 2002 is annexed hereto marked "UUCSA5".
6. An article entitled "Double Jeopardy of Being Muslim" in Impact Magazine International, October 2002 is annexed hereto marked "UUCSA6".
7. An article entitled "Media Stokes Islamaphobia the Other Terrorism" in Impact Magazine; October 2001 annexed hereto marked "UUCSA7".

5. It is clear from the various articles annexed hereto and the media that the Anti-Terrorism Bill will serve to foster a great anti-Muslim environment in South Africa. The empirical evidence over the world, which has unequivocally demonstrated that, cannot be ignored by our policy makers.
6. In the Bill, a terrorist act is defined as any unlawful act, committed in or outside the Republic –

1. which is a convention offence; or
2. which is likely to intimidate the public or a segment of the public.

1. Given this extremely broad definition of what a terrorist act is, if a drunk person leaves a bar, and in a state of drunkenness waves a stick to members of the public and retorts to them in a threatening manner, his unlawful intimidation could, on the present definition, be considered a terrorist act!
2. That conduct of the drunk, automatically, in terms of section 5 of the Bill, renders the offence as one in terms of Schedule 6 of the Criminal Procedure Act, for the purposes of bail!
3. The point barely needs to be put: the entire definition of a terrorist act is in itself offensive to the Constitution, particularly in that it irremedially offends sections 12, 34 and 35 of the Constitution. This is the heart of the Bill.
4. The provisions relating to the search of vehicles are without the need to state so offensive to section 14 of the Constitution, which entrenches the rights to privacy.
5. Section 8 in its entirety offends the provisions of our Constitution, in particular clauses 12, 14, 27, 33, 34 and 35.
6. Section 8 read with section 11 are in contrast with section 35(1) and 35(3) of the Constitution. It is in contravention with the provisions of the right to remain silent, and not to answer questions, which incriminate one. This is so particularly in the light of the provisions of section 11(3)(b) of the Bill. Thus, the entire of sections 8 and 11 cannot pass constitutional muster.
7. Moreover, if any organisation is, in terms of the Bill, declared a terrorist organisation, and any other institution, for example a charitable institution, holds money on behalf of that organisation that has been so declared, irrespective of the veracity of any claim or allegation about the "terrorist" nature of that organisation, a failure on the part of the accountable institution to report that matter over to the financial intelligence centre is an offence which carries with it a ten-year sentence! Once again, there is no administrative procedure or hearing in terms of audi alteram partem in any of these procedures. This is flagrantly offensive to section 33 of the Constitution.
8. Generally, the thematic structure of the Bill, in its present form, particularly in the light of its glaringly absent administrative procedures for declaring organisations as "terrorist organisations, manifests a great threat to section 18 of our Constitution namely the right to freedom of association. An individual’s civil liberty to associate freely becomes hampered by an arbitrary decision (without any administrative justice or fairness in terms of section 33), to associate with an organisation. These provisions therefore are in contravention of the Constitution, vis-à-vis every member of the South African public.
9. In making these submissions to the Parliamentary Portfolio Committee, we considered furnishing a draft proposal of the Bill, having regard its aims and objectives. We are unable to do so at such short notice. It is a daunting, task, for the committee to put together this Bill, in such a manner that it is to pass constitutional muster, because it resembles, in many ways, the infamous Internal Security Act.
10. It may be difficult to justify the drafting and passing of the Bill in its present or any other form, when the Achilles heal to the draftsperson of the Bill are the sub-paragraphs (a) to (e) of section 36 of the Constitution. That hurdle, in our respectful submission, is an insurmountable, alternatively very difficult one.
11. This submission is not intended to be an exhaustive analysis of the unconstitutionality of the Bill. That will follow in a supplementary submission. It is a brief insight into the draconian nature of the Bill.

RESOLUTION 1373

12. Resolution 1373 does not oblige member states to pass a specific anti-terror bill, particularly not the one presently tabled. It simply urges member states to co-operate in such a manner that they have appropriate domestic legislation, within their power, in order to prevent criminal acts. We specifically refrain from using the word "terrorist act" because, we do not know what its definition entails. It has not been sufficiently defined in the Bill, nor do we know what the draftsperson meant by a terrorist act. The provisions in the criminal justice system, particularly the provisions relating to Schedule 6 offences are sufficiently armed in order to deal with serious crimes such as treason. These serious crimes may be dealt with effectively without breaching individual civil liberties, which our country has so valiantly fought to uphold.
13. A clear answer to Resolution 1373 is that South Africa already has appropriate legislation in place, which passes constitutional muster, and which can deal with all types of criminal conduct. There is no deficiency in our criminal, legal or penal code. This criminal conduct may, in certain instances include what is loosely defined as "terrorist activities".
14. In fact the perceived obligation to pass a "terrorism bill" is an issue that we have canvassed with international lawyers who are of the view that South Africa needn’t and is not obliged to pass a specific Anti-Terrorism Bill. Apart from the view publicly given by Judge Richard Goldstone, Professor John Dugard who is a renowned international law expert, has been requested to give us an opinion on South Africa’s obligation to pass an Anti-Terrorism Bill particularly if it is in contrast to the Constitution.
15. Professor Dugard’s opinion will be made available when it is received. However, even if South Africa considers itself bound, by Resolution 1373, it can answer the United Nations Security Council by stating that it already has legislation in compliance with Resolution 1373.
16. We request the South African government not to pass the Anti-Terrorism Bill, in its present or any other form. To the extent that there may be a real threat of terrorism of some or other kind, which seeks to de-stabilise our government, we as UUCSA stand firmly behind the government against those perpetrators. That is so because our government is a free and democratically elected government that respects the sanctity of every citizen. The government’s respect of the sanctity of its citizens has earned our respect.
17. For over 300 years Islam has survived the soils of South Africa. Our history is pure, free from any traces of unsavoury activities. Muslims over the 300 years in this country, have worked hard and diligently, to maintain the wellbeing of this country. Muslims have contributed in education both in secular and religious domains, medical, social activities, business and many other fields. Over the past 300 years, this minority group has never ever posed a threat to our country. Why should it suddenly do so now? We, the Muslim community support our government fully, particularly because of our close alliance with people from the government even before 1994.
18. We strongly urge the government to get involved in more discussions and dialogues with various Islamic organisations, before considering the fate of this Bill. The main reason for this exercise is to allow members of the government to get a true and deeper understanding of the Muslims and Islam in our country.
19. There are just under two million Muslims in this country who will immediately be affected, should the South African government pass the constitutionally offensive Bill. This will result, as we fear, in serious violations of the rights of South African citizens. The unhealthy and intolerable outcome of this type of legislation in other parts of the globe have already been referred to in our submission. We have little doubt that our government is aware of the draconian nature of the Bill, and additional violations in other parts of the world. We refrained from labouring the point by giving many more instances of atrocious human rights violations pursuant to this type of Bill.
20. Although the Bill expressly does not state that it is directed at Muslims, both its root, namely the previous Bill of 2002 as well as the existing one, make mention of an international terrorist list which has been prescribed by the United Nations Security Council. More than 80% of the organisations in that list consist of Muslim organisations. It would be engagingly naïve for us, as Muslims, to escape the reality of that fact, by thinking that the core target group of the Bill is some or other group of persons. It would similarly be naïve of our government to labour under the apprehension that the Bill seeks to protect our national interest. To the contrary it will fracture it. The ultimate prognosis being an amputation of our community from the broader South African community, as has happened elsewhere in the world.
21. It is in the light of that, and our historical relationship with this country and the government, that we request you not to pass the Anti-Terrorism Bill in any form whatsoever.
22. Finally we would like an opportunity to make further written submissions to you.

The Secretary

UUCSA

Tel & Fax:

013 2432423

30 April 2003