Subject: CLAUSE 1(4) OF PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORISTAND RELATED ACTIVITIES BILL, 2004
Dear Adv Strydom
Your reference no 45/28/2(747) of 12 January 2004 refers.
Without going into detail, l am of the view that Adv Donen's proposal should, for the following reasons, not be supported:
(a) The principle contained in clause 1(4) of the above Bill was not contained in the original Bill. The decision to include clause 1(4) in the Bill was a well-considered political decision based on South Africa's obligations to the OAU Convention for the Prevention and Combating of Terrorism is also in line with Resolution 2105 (XX) of 20 December 1965 of the General Assembly, wherein the United Nations recognized the legitimacy of the struggle by the peoples under colonial rule to exercise their right to self-determination and independence.
(b) Apart from Adv Donen's viewpoint, there are various stake holders holding a different view and in particular pointed out to the Portfolio Committee on Safety and Security that the omission of such a provision is a serious flaw. In this regard Jane Duncan in an article titled "Anti-Terrorism Bill will stamp on human rights", stated the following:
"Another telling omission in this definition is a clause contained in the Organisation of African Unity's Algiers Convention of 1999, which states that '...the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including the armed struggle against colonialism,
occupation, aggression and domination by foreign forces shall not be considered as terrorist acts'. Similar
provision (is) in the Arab Convention for the Suppression of Terrorism, as well as in United Nations documents. The SALC argued that it is sufficient to instruct the authorities to have due regard to the principles of international law in implementing the legislation, and not to include a specific clause reflecting this sentiment.".
(c) In the article "Africa and Terrorism, Joining the Global Campaign"(Published in Monograph No.74, July 2002) J Cilliers and K Strurman came to the following conclusion:
"This monograph and the writings therein reflect largely on what can be termed 'international terrorism', as opposed to domestic or sub- national terror. Terrorism is neither necessarily international or sub-national, although the present campaign targets terrorist groups that have what US President Bush has termed 'global reach'. In Africa, particularly in Algeria, Sudan, Somalia and previously in Sierra Leone and Liberia terrorist acts have become
a recurring feature of essentially local conflicts-even if their actions sometimes have wider regional and global
consequences. The danger, from the perspective of many, is the tendency to conflate all into a global war on
terrorism, often with the real intention by governments and others to suppress political demands for some level of self-determination, political engagement or recognition of certain rights.
In some cases US and international support for tough action by governments may result in the escalation of conflicts and further polarisation within the countries concerned. In cases where terrorist acts are characteristic of essentially local conflicts experience suggests that security measures alone will not end the violence and that some form of political accommodation and settlement will be equally required.
African governments have always faced the dilemmas in balancing security interests and support for democracy and human rights. The events of September 11th, 2001 have shifted these balances, not always with predictable results. New opportunities for peace have emerged in some countries, in part a reflection of the adage that security is a prerequisite for development. In others international punitive action may exacerbate the tenuous degree of local stability that may exist as is the case in Somalia.
What is self-evident is that without a functioning, nationally recognised central government, failed and weak African states provide a safe haven for domestic and international terrorism alike. No military operation can make these countries safe if not linked with a process aimed ultimately at reconciliation and the reconstruction of a functioning state with a government in control of its territory, both urban and rural, and its land, sea and aerial borders. Above all, strong international engagement to bring peace internally and to reconstruct failed, weak and undemocratic states is the strategic challenge facing Africa and the international community.".
(d) In the article titled "Africa: Human Rights After September 11, 2001", Ebrima Sail of the Nordic Africa Institute
discussed the direct and indirect consequences the tragic events of 11 September 2001 have had for human rights in Africa. She, amongst others, remarked as follows:
"For human rights, this means greater risks of restrictions, for States often curtail liberties in the name of State security.", and further:
"Direct consequences have often taken the form the form of the passing of 9anti-terrorist' legislation that in effect translates into the curtailment of human rights. Kenya, Tanzania, Uganda and South Africa are amongst the countries where such legislation was passed...".
The author then pointed out on page 6 of the article that the South African Bill (the original version), is in contrast with article 3 of the above AOU Convention.
(e) In the final instance I wish to point out that the legislation of other democratic countries contains similar provisions and in some instances are even wider than the South African provision. In this regard, the definition of "terrorist activity" as contained in section 83.01 of the Canadian Anti-Terrorism legislation, provides that a terrorist activity "does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict".
Regards
Gerhard Nel