COUNTER-TERRORISM LEGISLATION

COUNTER-TERRORISM LEGISLATION

PORTFOLIO COMMITTEE FOR SAFETY AND SECURITY

2003-05-14

DRAFT COUNTER-TERRORISM BILL

International obligations. History. Definitions. Necessity. Process of drafting/ consultations. Contents. Objections. Motivation.

INTERNATIONAL OBLIGATIONS CONVENTIONS

RATIFIED/ACCEDED

1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation- In force : Ratified: 30 May 1972

1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft- In force: Ratified 20 May 1972

1970 Hague Convention on the Unlawful Seizure of Aircraft- In force: Acceded to 30 May 1972

1991 Convention on the Marking of Plastic Explosives for the Purposes of Detection-In force: Ratified 12 Dec 1999

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…Continued

List of instruments ratified/acceded to

1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Montreal Convention- In force: Acceded to 21 September 1998.

Organization of African Unity Convention on the Prevention and Combating of Terrorism- In force: Ratified 11 September 2002

Instruments ratified

International Convention for the Suppression of Terrorist Bombings- In force; (Ratification 24 March 2003.)

International Convention for the Suppression of Terrorist Financing- In force; Ratification 24 March 2003)

CONVENTIONS: RATIFICATION/ ACCESSION TO OUTSTANDING

Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms on the Continental Shelf- In force. [Dept Transport]

Convention for the Physical Protection of Nuclear Material, adopted in Vienna- In force.[Dept Minerals and Energy]

Convention on Maritime Navigation Continue….

…Continued

Instruments submitted to Parliament

Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents. Approved by Cabinet submitted to Parliament

International convention against the Taking of Hostages- In force. Approved by Cabinet submitted to Parliament.

HISTORY November 1995: Minister for Safety and

Security requested review of Security Legislation, including terrorism from Law Commission to bring it in line with new Constitutional dispensation and International obligations

Minister of Justice approved Project. First phase: Interception of Communications:

Finalized 2000 In meantime, research done by SAPS on

terrorism. On request of Law Commission, SAPS

presented draft discussion paper and draft Bill to SA Law Commission for consideration

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…Continued History

Terrorism in South Africa includes spate of bomb attacks in the Western Cape, directed at public, law enforcement, courts, as well as Boeremag activities.

International events such as Lockerbie, Pan Am 103, and other Terrorist Bombings -1st World Trade Center led to new Conventions adopted.

Process started in 2001, in New York to draft a Comprehensive United Nations Convention – ongoing.

11 September 2001 events and its effect.

…Continued History United Nations Security Council Resolution

1373/2001 Obligations on all states, especially to adopt

and apply measures in respect of terrorist financing- in line with Financing Convention

Periodic reporting in implementation of the Resolution by all States required by Security Council.

Resolutions in AU and NAM in support of combating and prevention of Terrorism/ OAU Convention on Terrorism- which requires considering to ratify all international instruments on terrorism, and to review legislation on terrorism, within one year.

NECESSITY FOR COUNTER-TERRORISM LEGISLATION Requirements in the respective international

instruments to create specific offences, such as hijacking, bombing offences

Necessity to create adequate legislative framework to suppress terrorist financing and to comply with Resolution 1373/2001

Legislation necessary in order to be not only willing, but also able, in all respects, to comply with international instruments- extradition, extended jurisdiction

Review of terrorist legislation required by OAU Convention

DRAFTING PROCESS/ CONSULTATIONS

SA Law Commission refined draft Bill and enhanced draft discussion paper with its own research.

Availability of Discussion Paper (92) announced at media conference on 8 August 2000- for general information and comments.

Comments from public and private sector taken into account in drafting final recommendations.

Legal developments following the 11 September 2001, events and global response on UN Security Council Resolutions also taken into account.

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SHORTCOMINGS IDENTIFIED Offence of terrorism – section 54 Internal

Security Act, too narrow – provides only for terrorism against South African Government contrary to global trends of international terrorism which can be aimed against any government.

Specific offences which must be created in terms of international conventions not provided for in our law –this also affects extradition.

Our law should provide for extended extraterritorial jurisdiction required by international law.

Measures to curb terrorist financing have to be created, as well as provisions in respect of asset forfeiture of terrorist property.

DEFINITIONS“Terrorist act” means an unlawful

act, committed in or outside the Republic; which is-

(a) a Convention offence; or

(b) Likely to intimidate the public or a segment of the public.

“Convention offence” is defined as an offence listed in Schedule 1.Continue…

SCHEDULE 1(a)Interfering with or seizure or exercising control

of an aircraft as contemplated in Article 11 of the Convention of Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on 14 September 1963.

(b)Seizure or exercising control of an aircraft as contemplated in Article 1 of the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970.

(c)Performing acts of violence on or damaging or destroying an aircraft as contemplated in Article 1 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, signed at Montreal on 23 September 1971.

CONVENTION OFFENCESd)Murdering, kidnapping or attacking an

internationally protected person or endangering his or her person or liberty as contemplated in Article 1 of the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons including Diplomatic Agents, adopted by the General Assembly of the United Nations on 17 December 1973.

(e)Receiving, possessing, using, transferring, altering, disposing or dispersing nuclear material as contemplated in Article 7 of the Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 3 March 1980.

CONVENTION OFFENCES(f)Performing an act of violence at an

airport or destroying or damaging the facilities of an airport as contemplated in Article II of the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, signed at Montreal on 24 February 1998.

(g)Manufacturing unmarked explosives as contemplated in Article 2 of the Convention on the Marking of Plastic Explosives for the Purpose of Detection, signed at Montreal on 1 March 1991.

CONVENTION OFFENCES(h) Delivering placing, discharging or

detonating an explosive or other lethal device as contemplated in Article 2 of the International Convention on the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997.

(i)Committing a terrorist act as contemplated in section 1 of the Organisation of African Unity Convention on the Prevention and Combating of Terrorism, adopted by the Organisation of African Unity in Algiers on 14 July 1999.

CONVENTION OFFENCES(j)Providing or collecting funds to be

used to carry out a terrorist act as contemplated in Article 2 of the International Convention on the Suppression of the Financing of Terrorism, adopted by the United Nations General Assembly on 9 December 1999.

MINISTER MAY ADD BY NOTICE CONVENTIONS APPROVED BY PARLIAMENT IN SCHEDULE 1 [CLAUSE 21 OF BILL]

Offences in the BillCommits/threatens/conspires/

incites,aids,commands/encourages/ procures any person to commit a terrorist act[C.#2(1)]; and Facilitates terrorist act. C.#2(2). May include life imprisonment

Becomes or remains member of terrorist organisation. C.2(3) and Economic support to terrorist organisation C. 2(4). Max 15 years prison.

…Continued Terrorist Offences

Any person who knowingly-

• Harbours or fails to report a terrorist.

• Furnishes weapons, food, drink, transport or clothing to a terrorist

• Receives any benefit from a terrorist organisation

• Carries out any instruction or request by a terrorist organisation.

• Penalty for the above: imprisonment not exceeding 15 years Clause # 2(5).

Offences….Failure by person or accountable institution to determine possession/control of terrorist propertyClause # 2(6),15.Failure to report possession/ control of terrorist property Clause #2(6), 16.Penalty: 10 years imprisonment or fine or both.

Other offences Failure to comply with instruction of

police officer when searching persons or vehicles, or obstructs police officer in exercise of those powers; # 6 Penalty imprisonment not exceeding six months.

Offences in respect of internationally protected person: In passing sentence, when person convicted of an offence in respect of internationally protected person, court must take that into account as an aggravating factor. Clause #3.

JURISDICTION Clause # 4(1) Courts in Republic has jurisdiction if- Accused arrested in Republic, territorial waters on

board ship or aircraft registered in Republic Offence committed in Republic, on board vessel,

ship, installation in the sea over continental shelf, or an aircraft registered in the Republic, or operated under RSA law.

Offence ito Act committed by citizen of Republic, or person ordinarily resident in Republic.

Offence against the republic, citizen or resident of the RSA.

Against Government facility in RSA or abroad. Other grounds recognized for jurisdiction.

PRESENCE OF ALLEGED SUSPECT IN SOUTH AFRICA Clause # 4(2).

When information is received, NDPP must Order investigation. Inform any other State which might have

jurisdiction Indicates to other State whether h/she

intends to prosecute or not. If person is taken in custody NDPP must

inform other State with jurisdiction direct or via Sect Gen of United Nations of fact that person is in custody, circumstances, and if he/she declines to prosecute, that fact.

BAIL Clause # 5

Where accused is in custody in respect of any offence in terms of this Act, the provisions relating to bail, in the Criminal Procedure Act, 1977, apply, as if the accused were charged with an offence referred to in Schedule 6 of that Act

POWER TO STOP/SEARCH VEHICLES AND PERSONS # 6

On application ex parte by police officer of SAPS(director or above) if appears necessary by Judge in order to prevent terrorist acts.

Judge may issue warrant for stopping and searching vehicles and persons for period not exceeding 10 days.

After identifying police officer may stop and search vehicles/persons.

Police officer may seize articles. Section 29 of Criminal Procedure Act, 1977,

applies.

CONSENT OF DPP TO INSTITUTE PROCEEDINGS Clause #7.

Prosecution under this Act may only be instituted with consent of National Director of Prosecutions

Warrant for arrest may be issued, person may be arrested and person may be remanded in custody or on bail pending decision of NDPP.

If person is prosecuted under Act, NDPP must communicate outcome to Secretary-General of the United Nations for transmission to other members of the UN

INVESTIGATIVE HEARINGS #8 Police officer may apply ex parte to

Judge for order to gather information Prior written consent of National Director

of Public Prosecutions prerequisite Also required- reasonable grounds that

offence in terms of Act committed, information on offence, whereabouts of suspect likely to be obtained, and

All other avenues for obtaining information have been tried without success

INVESTIGATIVE HEARINGS…..Clause # 8.

Order may allow- Examination of person named in order Require attendance of hearing. Require person to produce any object in

his/her possession Designate a judge to do examination. Terms and conditions, including to protect

person may be determined. Judge may vary conditions of order.

WARRANT FOR ARREST #9 Judge may issue warrant for arrest, if person

is- Evading service of order. About to abscond. Did not attend examination or not remained

in attendance Warrant may be executed by police officer. After arrest, person must be brought before

Judge who must inform him/her of reasons for arrest.

Detention/release on bail/warning Clause #10

Judge may order arrested person to be detained in custody, released on bail or on warning.

If ordered to be detained Judge must inform him or her of right-

To retain or instruct legal practitioner. To communicate with or be visited by his/her

spouse/partner or next of kin, chosen religious counsellor, chosen medical practitioner

Obligation to answer questions/produce things Clause #11 Person in order ito section 8 must answer

questions of Judge /NDPP and must produce items ordered to produce.

May only refuse if answer or thing is protected by law relating to non-disclosure of information or privilege.

Incriminating questions must be answered, but –

No answer, thing produced; No evidence derived from answers, may be

used or received in proceedings against that person other than for perjury/ section 319(3) of Criminal Procedure Act, 1977.

POWERS OF COURT IN RESPECT OF WITNESS Clause #13

Section 189 of the Criminal Procedure Act, 1977, applies to person under section 8 order.

Person who refuses to give information may be sentenced to imprisonment as contemplated in section 189;

UNLESS

Judge satisfied information is necessary for the maintenance of law and order.

Declaration of Terrorist Organisation Clause #14

Minister may declare terrorist organisation by notice in Gazette if organisation is international terrorist organisation in terms of decision of UN Security Council.

Minister may also declare organisation as such if organisation or member–

Claimed responsibility for terrorist act. Committed terrorist act. Endangered security or territorial integrity of

the Republic or another country.

Requirements before declaration # 14(3 Minister must publish notice in Gazette, stating- Intent to declare organisation in notice, and Grounds for declaration. Organisation may apply for interdict to High Court

prohibiting declaration by Minister Member of organisation may apply for interdict to

High Court. If no interdict is applied for or granted, Minister

may after 60 days declare organisation by notice in Gazette as terrorist organisation.

If interdict is granted, Minister may apply to High Court for an order to set it aside; and to declare the organisation as terrorist organisation. Details known to identify organisation, must be stated in declaration

CONSEQUENCES- DECLARATION AS TERRORIST ORGANISATION #

Determination by accountable institution in respect of terrorist property in its possession or control.# 15

Duty to report on property of organisation---duty of secrecy or confidentiality do not apply to reporting EXCEPT common law right to professional legal privilege in respect of communications between attorney/client # 17

Person making report protected-not compellable to give evidence # 18(1)

No evidence on identity of person making report, contents or nature or grounds for report, admissible unless person who made report testifies at proceedings# 18(3)

FURTHER CONSEQUENCES Offences in respect of economic and other

assistance, harbouring, etc to terrorist organisation becomes applicable.

Membership of organisation becomes unlawful.

Asset forfeiture, preservation of property, etc, becomes applicable

COMBATING FINANCING OF TERRORISM

Prevention of Organised Crime Act made applicable to property of terrorist organisation

Instrumentality of offence and proceeds of unlawful activities deemed to include terrorist property.

See criminal offences in respect of failure to determine/ report terrorist property and economic support of terrorist organisations.

All measures in respect of orders, preserving property, forfeiture, etc in Prevention of Organised Crime thus applicable to terrorist property

GENERAL PROVISIONS Minister may make Regulations concerning

anything that must or may be prescribed or be necessary or expedient to properly implement the Act. Clause # 20.

Addition of Schedule 1 by Minister in Gazette of international counter-terrorism instruments after approval by Parliament. Clause #21

Repeal of Internal Security Act, 1982. [Schedule 2] Amendment of Financial Intelligence Centre Act, in

order to ensure reporting of terrorist property and transactions in support of terrorist activities. [Schedule 2]

OBJECTIONS AGAINST BILL That it is Anti-Muslim. That it is unconstitutional. That it is to support USA in Anti-Muslim actions. That it was “sneaked” into Parliament. That it is being dealt with in a “surreptitious”

manner. That the intention is to rush the Bill through

Parliament. That definition of “terrorist act” is too wide.

That existing 30 laws are sufficient to combat terrorism.

That it goes against the spirit of liberation. That it curtails freedom of expression and

association, right to fair trial, etc.

ARGUMENTS AGAINST OBJECTIONS

Purpose of review to align RSA legislation with international obligations and Constitution, United Nations, African Unity, Non-Aligned Movement.

Lengthy process of Law Commission followed. Every person had opportunity to comment on

Discussion Paper. Draft was amended substantially before Law

Commission made its final report. Constitutionality above reproach according to State

Law Advisers. Wide comparative research and follows best

practices

LAW COMMISSION Report p. 1 “The Minister for Safety and

Security stated that in view of the history of security Legislation, and changed circumstances in SA, all existing legislation in South Africa, such as the Internal Security Act, 1982,, and similar Acts in the former TBVC states should be repealed, a new Act be enacted which conforms to international norms, the Constitution and the country’s circumstances and requirements.”

ARGUMENTS AGAINST OBJECTIONS

Comments criticisms provided thus far was also put before Law Commission and dealt with.

Some arguments highly emotional, prejudicial and political rather than legally sound.

Bill aimed at legal reform- will repeal all remaining provisions of the Internal Security Act, 1982.

Detention without trial not included in Bill.

CONSULTATIONS Law Commission process with consultations. Introduced Bill in essence Law Commission

product. Submission to Cabinet preceded opportunity to

all Departments involved for comments. Introduced Bill again made available to all

Departments through Inter Departmental Working Group on Terrorism –mandated by Cabinet-Departments, institutions involved- SAPS, SASS, NIA, NICOC, Reserve Bank, Department of Home Affairs, Department of Foreign Affairs, SANDF, Finance, Financial Intelligence Centre, Justice.

INTERACTION IN PARLIAMENT

Bill referred to following Parliamentary Committees;

Safety and Security. Justice and Constitutional Development. Joint Standing Committee on Intelligence. Finance. Foreign Affairs. Portfolio Committee for Safety and

Security to report to National Assembly, after conferring with the other Committees.

AREAS of INTERACTION Powers of National Director of Public

Prosecutions, Extradition issues, jurisdiction, Prevention of Organised Crime Act/ financing of terrorism - Justice.

Amendments to Financial Intelligence Centre Act- Department of Finance.

Convention offences/international obligations- Foreign Affairs.

International security concerns/ interaction with intelligence services Joint Standing Committee on Intelligence

INTERACTION The Bill can be regarded as an omnibus

Bill, dealing with repeal of and amendment to different laws.

It is multi-disciplinary in nature, dealing with court procedures, jurisdiction, police powers, new crimes, financial matters.

This underlines need for conferral and tapping upon the expertise knowledge in other Departments.

VALUABLE INPUTS National Director of Public Prosecutions. SA Law Commission. Financial Intelligence Centre. (Dept.

Finance). Reserve Bank. Department of Justice- Extradition Desk. Department of Foreign Affairs State Law

Advisers: International Law. NIA and SASS.

Thank you

Asst Comm PC Jacobs Legal Support: Crime Operations South African Police Service