Submission to the Portfolio Committee on Safety and Security

INTRODUCTION

1. The South African Council of Churches (SACC) is the facilitating body for a fellowship of 24 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.



2. The South African Council of Churches (SACC) thanks the Portfolio Committee on Safety and Security for the opportunity of making a submission on the Anti-Terrorism Bill. We have stood alongside and with the majority of people who have longed and struggled for a South Africa freed from the tentacles of the past and its apartheid regimes. From that past, we remain committed to securing the best of the Constitutional and democratic gains that we have together achieved over the past nine years. In the spirit of ensuring justice especially for the marginalised of our nation, a Parliamentary Office has been established and hereby we make this submission.



3. We note that The ATB 2003 aims to "combat terrorism" or any activity connected therewith as well as ensure that South African courts are enabled to bring to trial perpetrators of "terrorist acts". We understand that the introduction of the ATB is intended to repeal Act No. 74 of 1982 ("The Internal Security Act") with omnibus security legislation. Moreover, we are mindful of the need for South Africa, admitted through our democratic progress to the family of nations, to respond to the "harmonised law" of the United Nations UNSCR 1373 of 2001 ⁽¹⁾. The incorporation of this law gives effect to international treatises, including those of the African Union, The Non-Aligned Movement and the Organisation of African Unity's Convention on the Prevention and Combating of Terrorism. These all seek to sustain international cooperation in the struggle against terrorism.



4. The South African Council of Churches has always and continues to hold in high esteem the peace brokering work of the United Nations. Our concern in upholding international law such as UNSCR 1373, however, lies with the manner in which the United States of America and its allies have overpowered the UN in the wake of threats to their national security especially after the disaster of 9/11. Such "harmonising" of international law appears to completely override the African and South African contexts of dealing with our social, political and Continental conflicts. Furthermore, we are concerned at the manner in which "anti-terrorist" measures have been abused by some nations that have adopted this legislation. In some instances left-wing political opponents and social groupings that cause ruling parties embarrassing problems have been branded "terrorist organisations" and their leaders charged with "terrorist acts". It is common knowledge that the United States, recently, at one stage regarded South Africa's ruling political party, the African National Congress, as a "terrorist organisation". Our greatest concerns, however, stem from basic inadequacies in the Bill. Vague definitions and protocols that are in stark contrast to our hard won Bill of Rights and Constitutional democracy make us believe that the framers of this Bill might not have not given sufficient thought to the possible consequences of such inadequate referencing.

INADEQUATE AND VAGUE LANGUAGE: DEFINITIONS

5. According to the Bill, 'a "terrorist act" means an unlawful act, committed inside or outside the Republic.' (Anti-Terrorism Bill, [B12-2003], Chapter 1, para. 41, p.4). Similarly the definition for a "terrorist organisation" hinges on what a "terrorist act" means and is so broad that it us either useless or sinister to the extreme. We doubt that the framers of this definition have given serious thought to the implications of such a broad definition and could hardly have been what they would have intended. We note with the deepest concern that such vague language and inadequate definition has led, for example in the USA, to further laws that have stereotyped people of Arabic and/or Eastern descent as well as organisations that may be regarded as "left of" government thinking. Further thought needs to be given to the impact such definition could have on South Africa's foreign policy on the African continent. The search for peace, peace building and conflict resolution initiatives on the continent may suffer severe blows as a result of such vague language and definition if, say, opposing rebel groups were/are declared "terrorist organisations" involved in "terrorist acts". For the ordinary citizen, on the other hand, a law needs to be clearly defined so that s/he is aware of what conduct is proscribed. Much more clarity is required.

CONTRAVENTIONS OF OUR CONSTITUTIONAL DEMOCRACY

Infringements on The Bill of Human Rights

6. We note with deep concern too the powers granted to " … a police officer (who) may apply to a judge for an order for the gathering of information" for the purpose of investigating an offence suspected of being a "terrorist act". (Anti-Terrorism Bill [B12-2003], Chapter 3, section 8, p.7). Our concern here is that while this section is headed "Investigative Hearings" we cannot help envisaging such law returning us to the days of apartheid styled "detention without trial". Not only would this be a severe blow to our emerging democracy but is a stark violation of the Constitutional Rights of Arrested, detained and accused persons (Constitution of the Republic of South Africa, 1996, as adopted by the Constitutional Assembly on 8 May 1996. Chapter 2, Section 35, paras. 1-5, pp. 14-16). Some of the violations of the Constitutional Rights of Arrested, detained and accused persons include, amongst others, the right according to The Bill of Rights, Chapter 2, section 35. (1):
   1. to remain silent;
   2. to be informed of that right; and the consequences of not remaining silent;
   3. not to be compelled to make any confession or admission that could be used in evidence against that person;
   4. to be brought before a court as soon as reasonably possible, but not later than 48 hours after arrest ...

   and section 35 (3):

   8. to be presumed innocent, to remain silent, and not to testify during (court) proceedings. We need not say more concerning the proposals of the ATB and the contradictions with our Constitutional Bill of Rights other than acknowledge serious flaws at this level.

   The South African Council of Churches understands, as a practical response to this dilemma, that South Africa has at least 33 pieces of legislation on the statute books which can adequately deal with terrorism, strengthen the hand of security forces as well as uphold internal security. We believe it might be far more expedient to redraft the ATB recognising that a "terrorist act" is a criminal act that can be dealt with adequately through existing legislation.

7. We are further deeply concerned at the limitations on association imposed upon persons suspected of "terrorist acts" and possibly linked with "terrorist organisations" as well as persons possibly associated with them. The Bill further limits the right to silence (noted above) by declaring that "no duty of secrecy or confidentiality or any other restriction on the disclosure of information whether imposed by legislation or arising from the common law agreement, affects compliance by an accountable institution or any other person ..." (Anti-Terrorism Bill, [B12-2003], Chapter 4, section 17.) While the limits on confidentiality do not apply between attorney and client, the religious profession to whom people in conflict with the law normally turn for spiritual guidance, is covered with the same limits on confidentiality. From a religious perspective, counselling a suspect would need to be prefaced with the warning that anything s/he shares with a religious counsellor will be taken in evidence against him/her. Needless to say, the integrity of such counsellor/religious worker would be at stake while political and legal determinants would seriously infringe upon the religious rights, if any, of the suspect. The freedoms of association by and of expression to religious workers are seriously compromised by the proposed Bill.

RECOMMENDATIONS

8. While we understand the international obligations placed upon us to frame "Anti-Terrorism" legislation, we believe that South Africa would best be served in formulating existing legislation to deal with "terrorist acts" as criminal acts within our criminal justice system. The ATB, we suggest, ought to be reworked to acknowledge its relationship to existing statues.



9. Finally, the South African Council of Churches requests to make an oral submission to the Portfolio Committee on Safety and Security in order to express, amongst other things, our concern at the impact such a Bill may have on our Constitutional rights as well as the relationship between religious workers and those who come into conflict with the law.

1. The "UN Legislative Guide to the Universal Anti-Terrorism Conventions and Protocols" quotes a pertinent section of Resolution 1373 as follows: "... acts, methods and practices of terrorism are contrary to the purposes of the United nations and that knowingly financing, planning, and inciting terrorist acts are also contrary to the purposes and principles of the United Nations", p.1