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									    Presentation to Select
         Committee
for Safety and Constitutional
   Matters February 2003
  PROTECTION OF
 CONSTITUTIONAL
   DEMOCRACY
AGAINST TERRORIST
       AND
RELATED ACTIVITIES
      BILL
              INDEX

 International obligations
 History
 Definitions
 Necessity
 Process of drafting/ consultations
 Contents
               Background
The Bill was drafted under the
Chairpersonship of the Safety and Security
Portfolio Committee, by conferring with the-
 Joint Standing Committee of Intelligence
 Justice and Const Development Portfolio
  Committee
 Foreign Affairs Portfolio Committee
 Finance Portfolio Committee
 Drafting was coordinated by Legal Services
  SAPS, and officials of the NPA, Law
  Commission and Financial Intelligence Centre
  formed part of the drafting team.
 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
       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
        List of instruments
        ratified/acceded to
 Convention on the Prevention and
  Punishment of Crimes against Internationally
  Protected Persons, including Diplomatic
  Agents acceded to.
 International Convention for the Suppression
  of Terrorist Bombings- acceded to.
 International Convention for the Suppression
  of Terrorist Financing- acceded to.
 International convention against the Taking
  of Hostages- accede to.
      CONVENTIONS:
 RATIFICATION/ACCESSION
    TO OUTSTANDING
 Convention for the Suppression of
  Unlawful Acts against the Safety of
  Maritime Navigation.
 Protocol for the Suppression of
  Unlawful Acts against the Safety of
  Fixed Platforms on the Continental
  Shelf.
 Convention for the Physical Protection
  of Nuclear Material, adopted in Vienna.
                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
                   …Continued History

 First draft Bill drafted during spate of
  bomb attacks in the Western Cape,
  directed at public, law enforcement,
  courts.
 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
        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
      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
             Background
 The Portfolio Committee for Safety and
  Security allowed –
 ample time for comments; and
 Extensive public hearings on the Bill
 The Bill was extensively amended by the
  Portfolio Committee, and reflect consensus
  on a highly sensitive topic.
Definition of “terrorist activity”
 Any “act” / ”ommission”
 Committed in or outside Republic
 Involves use of violence by any means
 Involves release into environment exposure
  of public of hazardous substances, toxic
  chemicals or microbial or biological agents
  or toxins
 Endangers life , physical freedom or causes
  death or serious injury
 Causes serious risk to health or safety of
  the public.
Definition of “terrorist activity”
 Destruction or substantial damage to
  property
 Serious interference or serious disruption
  of essential services
 Cause major economic loss, destabilisation
  of national economy
 Create serious public emergency situation
  or general insurrection
  Definition of “terrorist activity”
Following INTENTION required:
 Threaten unity and territorial integrity of a
  State
 To intimidate or to induce or cause feelings
  of insecurity within the public
 Unduly compel, intimidate, force, coerce or
  spread feelings of terror, fear or panic in a
  civilian population
 Unduly compel a government, institution or
  organization, or public to do or abstain from
  doing something
 Definition of “terrorist activity”
Following MOTIVE required:
Act must have been committed for the
purpose of the advancement of an individual
or collective-
 Political
 Religious
 Ideological
 Philosophical
motive, objective, cause or undertaking
Definition of “terrorist activity”
Exclusions:
 Lawful labour actions which does not
  result in the harm mentioned in the
  definition
 Act committed during a struggle, including
  armed struggle in exercise of right to
  national liberation, self-determination and
  independence against colonialism or
  occupation or aggression or domination by
  alien or foreign forces, IF in accordance
  with UN Charter, AU principles, and
  international law, especially the
  international humanitarian law
     SUBMISSION BY BAR
         COUNCIL
 After adoption of Bill by National Assembly
  Cape Bar Council submitted appeal to Minister to
  remove Clause 1(4), ie exclusion of liberation
  struggles
 Opinions being obtained from State Law
  Advisers, Justice, Law Reform Commission
 Opinions already obtained from the NPA and
  State Law Advisers International Law, Dept of
  Foreign Affairs)
 Preliminary view that the clause is acceptable in
  terms of law, and precedents elsewhere exist –
  New Zeeland, Canada
 Copy of request and opinion available.
 UNJUSTIFIABLE DEFENCE
 Political, philosophical, ideological,
  racial, ethnic, religious and other
  similar motive, shall not be considered
  a justifiable defense for any purpose
  in respect of which “terrorist
  activity” is an element, including for
  purposes of extradition and
  prosecution
             OFFENCES
 Offence of terrorism –engaging in any
  terrorist activity
 Offences associated or connected with
  terrorist activities
       Convention offences
 Offences associated or connected with
  financing of specified offences
 Offences relating to explosive or other
  lethal devices
 Offences relating to hijacking, destroying
  or endangering safety of a fixed
 platform
 Offences relating to taking a hostage
 Offences relating to causing harm to
  internationally protected persons
 Offences relating to hijacking an aircraft
 Offences relating to hijacking a ship or
  endangering safety of maritime navigation
                    Other offences
• Offences relating to harbouring or concealment of
  persons committing specified offences
• Duty to report presence of person suspected of intending
  to commit or having committed an offence and failure to
  so report
• Offences relating to hoaxes
•    Threat, attempt, conspiracy and inducing another person
    to commit offence
  Jurisdiction i.r.o. offences
 Courts of Republic has jurisdiction i.r.o.
  of any “specified offence” defined in
  paragraph (a) of the definition if-
 accused arrested in territory of Republic, in
  its territorial waters, on board ship or
  aircraft registered or required to be
  registered in Republic; or
 the offence was committed—
  – (i) in the territory of the Republic;
  – (ii) on board a vessel, a ship, off-shore
    installation, a fixed platform, or an aircraft
    registered or required to be registered in the
    Republic
   at the time the offence was committed;
    Jurisdiction i.r.o. offences
 by a citizen of the Republic or aperson ordinarily
  resident in the Republic;
 against the Republic, a citizen of the Republic or a
  person ordinarily resident in the Republic;
 on board an aircraft in respect of which the
  operator is licensed in terms of the Air Services
  Licensing Act, 1990 (Act No. 115 of 1990), or the
  International Air Services Act, 1993 (Act No. 60
  of 1993);
 against a government facility of the Republic
  abroad, including an embassy or other diplomatic
  or consular premises, or any other property of the
  Republic;
    Jurisdiction i.r.o. offences
 when during its commission, a national of
  the Republic is seized, threatened, injured
  or killed;

 in an attempt to compel the Republic to do
  or to abstain or to refrain from doing any
  act; or

 the evidence reveals any other basis
  recognised by law.
   Consent of National Director
    and reporting obligations
No prosecution under Chapter 2 may be instituted
without written authority of National Director.
The National Director must communicate the final
  outcome of the proceedings promptly to the—
 Secretary General of the United Nations, i.r.o. a
  prosecution for offences referred to in section 4,
  5, 7 or 8;
 the Council of the International Civil Aviation
  Organization, in respect of a prosecution for
  offences referred to in section 9; or
 Secretary General of International Maritime
  Organization, in respect of prosecution for
  offences referred to in section 6 or 10.
                  Penalties
Terrorism and Convention offences
 Any person who is convicted of an offence
  referred to in—
(a) section 2, 5, 6, 7, 8, 9 or 10 is liable-
 in the case of a sentence to be imposed by a High
  Court, to a fine or to imprisonment for a period
  up to imprisonment for life;
 in the case of a sentence to be imposed by a
  regional court, to a fine or to imprisonment for a
  period not exceeding 18 years;
 in the case of a sentence to be imposed by any
  magistrate’s court, to a fine or to imprisonment
  for a period not exceeding five years;
                Penalties
 section 3 (Offences associated or
  connected with terrorist activities) or
  11(Offences relating to harbouring or
  concealment of persons committing
  specified offences) is liable—
 (i) in case of a sentence to be imposed by a
  High Court or a regional court, to a fine or
  to imprisonment for a period not exceeding
  15 years;
 (ii) in the case of a sentence to be imposed
  by any magistrate’s court, to any penalty
  which may lawfully be imposed by that
  court;
       Penalties continued…..
 section 4(Offences associated or connected
  with financing of specified offences), is liable
 (i) in the case of a sentence to be imposed by a
  High Court or a regional court,
 to a fine not exceeding R100 million or to
  imprisonment for a period not
 exceeding 15 years;
 (ii) in the case of a sentence to be imposed by any
  magistrate’s court, to a fine
 not exceeding R250 000,00, or to imprisonment
  for a period not exceeding five years;
       Penalties continued….
 section 13(1)(a)or (b), (Offences relating
  to hoaxes) is liable—
 (i) in the case of a sentence to be imposed
  by a High Court or a regional court, to a
  fine or to imprisonment for a period not
  exceeding 10 years;
 (ii) in the case of a sentence to be imposed
  by any magistrate’s court, to any penalty
  which may lawfully be imposed by that
  court;
       Penalties continued….
 section 12(2) (Duty to report presence of
  person suspected of intending to commit or
  having committed an offence and failure to so
  report) is liable—
 (i) in the case of a sentence to be imposed by a
  High Court or a regional court, to a fine or to
  imprisonment for a period not exceeding five
  years;
 (ii) in the case of a sentence to be imposed by
  any magistrate’s court, to any penalty which may
  lawfully be imposed by that court;
        Penalties continued….
 section 14 (Threat, attempt, conspiracy and
  inducing another person to commit offence), is
  liable to the punishment laid down in paragraph
  (a), (b), (c) (d) or (e) for the offence which that
  person threatened, attempted or conspired to
  commit or aided, abetted, induced, instigated,
  instructed, commanded, counseled or procured
  another person to commit.
The court, in imposing a sentence on a person who
  has been convicted of an offence under section
  13(1)(a) or (b), (hoaxes) may order that person to
  reimburse any party incurring expenses incidental
  to any emergency or investigative response to
  that conduct, for those expenses.
       OTHER PROVISIONS
 The Bill Further provides for criminal asset
  forfeiture (clauses 19-21)
 Investigating powers (along the provisions of
  section 72 of the Prevention of Organised Crime
  Act. (see clause 22)
 Freezing orders where a High Court may, on ex
  parte application by the National Director to a
  judge in chambers, make an order prohibiting any
  person from engaging in any conduct, or obliging
  any person to cease any conduct, concerning
  property involved in the commission of
  Convention offences or entities identified by the
  President.(Clause 23)
   Cordoning off, stop and search

 Clause 24. On written request by a police official
  of or above the rank of director, a judge may
  issue a warrant for the cordoning off, and
  stopping and searching of vehicles and persons to
  preventing terrorist or related activities, in a
  specified area, and such warrant applies for the
  period specified therein, which period may not
  exceed 10 days.
 Police official may cordon off the area, stop and
  search any vehicle or person in that area, for
  articles in connection with the preparation for or
  the commission of any terrorist or related
  activity.
 The police official may seize any article or thing
  contemplated in subsection (2)
   RESOLUTION OF UNITED
 NATIONS SECURITY COUNCIL
 Clause 25. The President must, by Proclamation
  in the Gazette, give notice that the Security
  Council of the United Nations, has identified a
  specific entity as being—
 an entity who commits, or attempts to commit,
  any terrorist and related activity or participates in
  or facilitates the commission of any terrorist and
  related activity; or
 an entity against whom Member States of the
  United Nations must take the actions specified in
  Resolutions of the said Security Council, in order
  to combat or prevent terrorist and related
  activities.
  Parliamentary supervision

26. Every Proclamation issued
 under section 25 shall be laid upon
 the Table in Parliament for its
 consideration and decision and
 Parliament may thereupon take
 such steps as it may consider
 necessary.
    Amendment/ repeal of laws
   27. (1) Laws amended or repealed in Schedule.
   Extradition Act 67 1962
   Criminal Procedure Act 51 1977
   Internal Security Act 74 1982
   Non-Proliferation of Weapons of Mass
    Destruction Act 87 1993
   Criminal Law Amendment Act 105 1997
   Prevention of Organised Crime Act 121 1998
   Nuclear Energy Act 46 1999
   Financial Intelligence Centre Act 38 2001
   Regulation of Interception of Communications
    and Provision of Communication-related
    Information Act 70 2002

								
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