The controversial apartheid-style 14-day detention proposed in the initial draft anti-terrorism law has been dropped in favour of investigative hearings before a judge, according to recommendations from the South African Law Commission who have drafted a new Bill.
This is a fundamental shift from the heavily criticised provisions of the initial draft Bill, compiled in 2000 by police lawyers, in reaction to a three-year bombing spree in Cape Town. That draft law was blasted by human rights organisations and researchers as draconian and unconstitutional.
The anti-terrorism proposals were sent back to the drawing board in late 2000. On Thursday the Law Commission handed over its 1000-page recommendations and draft Bill to Minister of Justice and Constitutional Development Penuell Maduna.
Under the provision for investigative hearings, police must obtain written permission from the Director of Public Prosecutions and a judge’s consent before detaining a person suspected of knowing of terrorism.
Although the detainee must answer all questions, any information or evidence obtained in such a hearing cannot be used in a criminal prosecution.
Evidence gathering, including obtaining fingerprints and DNA samples, evaluating documents or tracing other witnesses, is not grounds for continued detention, according to the commission’s recommendations.
To stop the commission of a terrorist act police may detain a person without a warrant, but must immediately bring him/her before a judge to prove reasonable grounds for such detention.
A judge may order a release on bail or warning, with or without conditions such as agreeing to keep the peace and maintain good behaviour for up to a year.
However, the proposals still impose a duty on anyone with information about a terrorist act to notify law enforcement authorities, or face five years in jail. It would be an offence punishable by up to 10 years’ imprisonment to belong to organisations formally classified as ”terrorist”.
Anyone knowingly participating in a terrorist act faces up to 15 years’ jail.
The minister may ban an organisation as terrorist, but groups have the right of appeal through the courts.
The reference to ”urban terrorism” in the 2000 draft has fallen away. It has been replaced with a general section on bombing, which proposes life imprisonment for setting off an explosive device in public.
The proposed new law criminalises the financing of terrorist activities, but aims to coordinate any crackdown via the Financial Intelligence Centre and the asset forfeiture unit, while placing an onus on financial institutions to alert the authorities.
The draft Bill expressly states the anti-terrorism law does not apply to legal demonstrations, work stoppages or fund-raising for democratic advocacy. This is in response to criticism that earlier provisions could apply to strikes and protest marches, in violation of the Constitution.
The terror attacks on September 11 last year have clearly influenced the recommendations. The hijacking of aircraft is made a specific offence, while hostage taking incurs life imprisonment. Hoaxes about ”noxious substances” like anthrax microbes are classified as terrorism punishable by up to 10 years in jail.
Although analysts say there were sufficient laws on the statute books to prosecute terror suspects, the government has committed itself to an anti-terror law in line with international trends. South Africa has participated in various international discussions and pledged anti-terrorist legislation.
”We are preparing for anything that may happen where a law of this kind is needed,” said Maduna’s spokesperson, Paul Setsetse. He referred to the Pretoria rightwingers charged with treason under the apartheid-era Internal Security Act for planning to overthrow the government.
Maduna must decide whether to refer the draft Bill and recommendations to the Cabinet for approval before the Bill is tabled in Parliament. If passed, it will repeal the apartheid Internal Security Act in its entirety.