RE: ANTI-TERRORISM BILL 2003 (B12-2003)
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ORAL SUBMISSIONS ON BEHALF OF THE UNITED ULAMA COUNCIL OF SOUTH AFRICA (UUCSA)
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- The UUCSA has a two-fold objection to the Anti-Terrorism Bill:
- Firstly, South Africa’s present body of laws (both statutory and common law) is sufficient to meet its international obligations as required by Resolution 1373 adopted by the Security Council of the United Nations on 28 September 2001, and hence, the proposed legislation, whether in its present form or properly amended, is not necessary; and
- Secondly, even if the proposed legislation is necessary, it is flawed for a number of reasons, the principal of which, is that it fails adequately to define the offence of terrorism.
- Inasmuch as the committee is in possession of the UUCSA’s written submissions, it is not proposed to repeat those submissions insofar as they relate to the various provisions of the Bill, beyond the two issues just mentioned, namely, the legal necessity of further legislation to deal with the offence of terrorism and the proposed definition of terrorism as contained in the Bill.
Is there a need for the proposed legislation?
- It is submitted that the common law crimes of arson, kidnapping, murder, attempted murder and conspiracy to murder taken together with the present provisions of the Internal Security Act (No 74 of 1982) (which deal with the offence of terrorism) the Prevention of Organised Crime Act (No 121 of 1998), the Interception and Monitoring Prohibition Act (No 127 of 1992) and the Arms and Ammunition Act (No 75 of 1969) are sufficient to meet South Africa’s international obligations to curb the offence of terrorism.
- Given the preamble to the Bill, there is no mistaking the fact that its genesis is to be found in the Resolution of the General Assembly of the United Nations of 12 September 2001 and Security Council Resolution 1373 of 28 September 2001, adopted pursuant to the destruction of the World Trade Centre on 11 September 2001. This being so, it can properly be argued that the factual and legal necessity for the proposed legislation, are not attributable to the actions of any persons or groups of persons operating within the borders of South Africa.
- Apart from the fact that South Africa’s existing body of laws is sufficient to meet the offence of terrorism within the borders of South Africa, South Africa’s extradition laws are adequate to assist other countries as regards the rendition of any person or persons who are alleged to have committed acts of terror outside the borders of South Africa, to a foreign State.
- The case of Khalfan Khamis Mohamed v The President of the Republic of South Africa and Others 2001 (in the Constitutional Court) is ample evidence of the fact that South African law is flexible enough to allow a person who has perpetrated an act of terrorism in a foreign country to be extradited to a country with jurisdiction to try such person, whilst at the same time safeguarding such person’s constitutional rights.
- In sum, our laws our sufficient to provide for the combating and punishment of acts of terror, committed both at home and abroad.
- Whilst accepting that South Africa as a member state of the United Nations, has an obligation to comply with Security Council Resolutions, (see the application of Resolutions of the Security Council of the United Nations’ Act (No 172 of 1996) ), one cannot lose sight of the fact that the principal sponsor of Security Council Resolution 1373, is the United States of America.
- Bearing in mind that the United States is the primary sponsor of Resolution 1373, it is equally important to bear in mind that this country has a global agenda of its own. Here, I would like to repeat the words of Professor Joe Little, a Professor of law at the University of Florida who submits in his article published on January 5, 2003 under the heading "BUSH AUTHORISING HIS OWN BRAND OF TERROR" that:
"Bush’s war on terrorism is plainly a political contrivance. Its goal is to overcome the ordinary American aversion to military adventurism with fear and flag-wrapped patriotism. … My heart tells me, ‘terror has legitimate grievances’, that terror has not mindlessly attacked America without suffering, in its own mind, an intense sense of overwhelming and frustrated provocation."
- The evidence is overwhelming that America has flagrantly undermined the United Nations Charter and Security Council Resolution 1414 in its recent invasion of Iraq. It has by its aggressive war and invasion of Iraq, seriously undermined the principle of multi-lateralism which underpins the United Nations Charter and the basis upon which member states co-operate with each other in order to promote, secure and maintain peace in the world.
- It is a well-known fact that President George W Bush passed an executive order allowing for secret trials by military tribunals of persons who are alleged to have carried out hostile acts against America. These tribunals have the power to impose the death penalty – which is contrary to the provisions of our Constitution – they have powers to regulate their own procedures and rules of evidence and no appeal lies to any Civil Court.
- There is furthermore, more than ample evidence to prove that President George W Bush has recently restored the sordid practices of the CIA by revoking President Ford’s 1976 executive order 12333 which banned the CIA from conducting targeted assassinations. This time, however, the CIA is to receive orders to assassinate foreign leaders directly from the President.
- White House officials have said that capturing Bin Laden would be highly undesirable and he would be shot on sight rather than captured (Daily Telegraph, 22 October 2001). Washington has also hinted that it is not only Al-Queda which is being targeted, foreign leaders in "rogue states" or countries "which harbour international terrorism" could also be the object of targeted assassinations. (htpp:www.globalresearch.ca/articles/NSA112A.html)
- Bearing in mind America’s unflinching support of Israel and its continued failure to call Israel to account for its non-compliance with Security Council Resolutions to withdraw from the occupied territories, its refusal to allow the international community to intervene in the Middle East crisis, its dubious role in the supposed peace process in the Middle East, its arrest since 9/11 of thousands of Middle Eastern men and women for the purpose of profiling them and the shutting down of Islamic charities under suspicion of having links with terrorist organisations, have engendered strong disapprobation, bordering on hatred, by many Muslims and persons of Middle Eastern origin, throughout the world against America.
- To quote Professor Joe Little once more:
"Bush’s war on terror is but the latest attempt of an American Government to demonise an enemy it wishes to attack."
- It must also be borne in mind that America and Israel have refused to become signatories to the Rome statute giving rise to the establishment of the International Criminal Court, thus rendering immune its citizens and soldiers from prosecution for war crimes and other gross violations of human rights.
- It is accordingly submitted that this particular dynamic must be borne in mind in deciding whether or not to proceed with the Anti-Terrorism Bill.
As to the meaning of "terrorist act"
- There can be little doubt that the offence of terrorism has not been adequately defined in the Bill. This particular aspect has been adequately covered in the written submissions made on behalf of UCCSA and by other entities, and it is accordingly not proposed to expand upon them in these oral submissions.
MA ALBERTUS SC
Counsel for the UCCSA