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UN SPECIAL RAPPORTEUR ON HUMAN RIGHTS AND COUNTER TERRORISM ISSUES PRELIMINARY FINDINGS ON VISIT TO SOUTH AFRICA

26 April 2007


The United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, issued his preliminary findings during a press conference held in Pretoria.

The Special Rapporteur conducted a 10 day visit to South Africa from 16 to 26 April 2007, at the invitation of the Government.

The Special Rapporteur visited Pretoria, Johannesburg, Midrand and Cape Town. He had high level meetings with Ministers or officials responsible for foreign affairs, justice, defense, safety and security, intelligence, corrections and home affairs. During the visit, he met with the national police force, the national prosecuting authority, the judiciary, parliamentary committees, the Human Rights Commission, a representative of the United Nations High Commissioner for Refugees, lawyers, academics and non-governmental organizations (NGOs). The Special Rapporteur also had the opportunity to visit a correctional detention centre and to observe a trial in the High Court of Pretoria related to charges that could fall under the notion of terrorism.

The purpose of the visit was two fold: firstly, to examine South Africa’s laws, policies and practices on counter terrorism and to assess how such measures affect the protection and promotion of human rights, and secondly, to examine the role South Africa plays in southern Africa and on the African continent in countering terrorism in the international context.

HISTORICAL CONTEXT

After the repression of apartheid, South Africa, in the early 1990s, made its transition from apartheid into a full-fledged parliamentary democracy, marked particularly by the adoption of the Constitution in 1995. The transition process was in many ways exceptional through its non-violent and inclusive approach. The strong Constitutional foundation on which South Africa rests today is evident and enjoys broad support within society. South Africa has also demonstrated a leadership role on both the African continent and internationally, which includes at present holding a seat on the UN Security Council.

The country continues to grapple with many challenges, particularly related to access to the most essential social and economic rights. An active civil society in conjunction with a full-fledged judicial system, including the Constitutional Court, has deepened the practical meaning of South Africa’s human rights commitments.

PERCEIVED TERRORIST THREATS

This historical setting forms the background for South Africa’s measures in the context of the promotion and protection of human rights while countering terrorism. The issue of protecting human rights while countering terrorism has a particular significance in today’s South Africa. During apartheid, the notion of “terrorism” was used as an instrument of widespread and systemic human rights violations by the regime.

Today, the Government of South Africa does not perceive terrorism, from national or international groups, as a serious threat to the country. The Government, however, remains vigilant and expresses its readiness to co-operate in international measures to combat terrorism. Further the Government stresses its preference for multilateral action within the framework of the United Nations on this issue. The Government sees terrorist acts primarily as crimes, which are to be dealt with using the methods of intelligence, investigations and prosecutions within the framework of the ordinary criminal justice system.

In the last decade, this approach is reflected in two incidents which could be referred to as terrorism. Firstly, the violence by PAGAD (People Against Gangsterism and Drugs) primarily in the Western Cape, and the violence attributed to “Boeremag”, a group of white South Africans suspected of carrying out acts of violence, including bombings with human casualties, in 2001-2002. PAGAD is today seen as a spent force without recruitment or financial basis. The Boeremag trial is ongoing since several years, but the violent attacks have ceased.


THE COUNTER-TERRORISM ACT OF 2005

Due to internal pressures and certain gaps in South Africa’s national legislation, where particular terrorist acts committed outside South Africa were not criminalized, a report was prepared by the South African Law Review Commission. After extensive consultation with civil society, Parliament approved the Protection of Constitutional Democracy against Terrorist and Related Activities Act (POCDATARA) in 2005. Today, this law provides the overall legal framework for counter-terrorism in South Africa. The Ministry of Safety and Security has main responsibility for its implementation.

To date, no jurisprudence is available regarding the implementation of the new terrorism law. However, there is a pending prosecution, related to an associated crime in the Boeremag trial, which is scheduled to commence pursuant to the new law in the coming months. Hence, areas of concern can, at this stage, only be raised regarding the text as it stands, having not been applied. Thus, the Special Rapporteur draws attention in particular to the following:

· On the face of it, section 1, subsection 1 (xxv)(a) of the definition of terrorist activity appears overly broad, covering several offences that do not necessarily include deadly or otherwise serious violence against members of the general population or segments of it;
· Taking into account that the above concern is mitigated by the fact that in practice the range of crimes covered by the notion of terrorist activity would be narrowed down by the cumulative requirements of subsection (b) on terrorist intent and subsection (c) on political or analogous aim, subsection (a) nevertheless projects to the world, including other African countries, an incorrect message as to what kind of acts may amount to terrorism;
· The reporting duty set out in section 12 of the law in respect of all crimes under the Act raises issues related to the freedom of expression generally and, in particular, journalists’ ability to protect their sources.

Nevertheless, the Special Rapporteur recognizes certain elements of the Act as examples of good practice:

· The criminal proceedings pursuant to the Act basically fall under general South African criminal law and all its safeguards;
· The authorities clearly state that racial/ethnic/religious profiling are neither a part of the collection of intelligence or used in investigations, but rather any profiling is based on individual behaviour;
· There are no provisions of administrative detention in the South African counter-terrorism law.

The Special Rapporteur draws attention to the fact that, in many countries, cases related to terrorism often trigger special procedures or even the jurisdiction of special courts, and that Governments may feel justified to proceed in an exceptional manner to such generally accepted practices such as the right to a public trial. In this context, the Special Rapporteur is concerned that the Government of South Africa has made an application for an in camera trial in a security-related case.

Further, in the context of countering terrorism, national legislation is often borrowed and copied by other countries in a piecemeal way, and if sections of the South African Counter-Terrorism Act are inserted into a national framework with less developed legal safeguards, it may indeed threaten human rights.


LISTING OF INDIVIDUALS AND ENTITIES

Sections 25 and 26 of the Act relate to the listing of individuals and entities by the United Nations Security Council as terrorists pursuant to Security Council resolution 1267. According to section 25, the listings when completed are published by Presidential Proclamation in the Government Gazette. The lists are then submitted to Parliament, which may take any action which it may deem appropriate.

The Special Rapporteur notes as a good practice that the law sets out a clear procedure for the publication of the list, as for instance, financial transactions with persons placed on the list may place other individuals within the ambit of criminal liability. However, for the individuals and entities listed, the nature and scope of the Parliamentary action envisaged remain unclear. The Special Rapporteur received several interpretations of the proceedings that follow from the listing and the form and scope of potential judicial review, not provided explicitly by the Act itself.

The Special Rapporteur is troubled by the fact that these discussions of a proper parliamentary procedure and a prospect of judicial review appear to have arisen only recently and in respect of a public discussion on the possible United Nations listing of two South African nationals. This current situation in South Africa also demonstrates the shortcomings of the UN listing process.

POLICE SERVICES

Law enforcement agencies naturally play a crucial role in counter-terrorism, and professional conduct and adherence to human rights is a central pillar in their ability to collect intelligence and conduct investigations in relation to terrorist acts.

The apartheid era of South-African law enforcement was grim, and therefore, it has been an enormous task to create a South African Police Service (SAPS) which has the trust of the community. However, allegations of police brutality persist in South Africa. For clarity and transparency on the issue of police unjustified use of force, the Special Rapporteur draws attention to the Concluding Observations by the Committee against Torture (CAT), which include the recommendation to prohibit in law all forms of torture and ill-treatment, and to incorporate in the law a specific criminalization of torture.


IMMIGRATION IN THE CONTEXT OF COUNTER-TERRORISM

In the international debate on terrorism, foreigners are often depicted as a risk. South African authorities and NGOs generally do not perceive immigrants as a risk for potential terrorist acts. It came to the attention of the Special Rapporteur that arrests of foreigners have taken place on the basis of security-related issues. Although formally, detention took place due to overstepping of immigration rules. At the same time, allegations or rumours were frequently raised concerning huge backlogs and corruption in the practices of the Department of Home Affairs. These trends raise concerns both in terms of the rights of foreigners and the risk of South Africa becoming a safe haven for organized crime or terrorist activities.

South Africa has a determined policy of non-discrimination and promotion of equality, enshrined in both its Constitution and legislation. Most rights in the Constitution apply to every person in South Africa, including the right to housing and the right to emergency health care. For instance in the Lawyers for Human Rights case the Constitutional Court delineated the applicability of the rights protections under the Constitution to foreigners. Despite the clarity of the law, the Special Rapporteur was surprised at statements by even high-level governmental persons to the effect that illegal aliens would not enjoy rights in South Africa.


NON-REFOULEMENT

Before and during the visit, the case of Khalid Rashid, a Pakistani national who left South Africa on 6 November 2005, allegedly on a chartered airplane escorted by Pakistani authorities was brought to the Special Rapporteur’s attention. Until April 2007, the whereabouts of Mr. Rashid was unknown. Numerous court submissions have been filed on his behalf, and the case is ongoing. Without assessing the merits of the case, the Special Rapporteur notes that the discussion around it gives rise to a number of general concerns:

· The distinction between extradition and deportation and the respective provisions to be followed;
· The principle of non-refoulement in South African law and practice, whilst clearly anchored in the Constitution and reaffirmed in the Mohamed case, does not appear to be understood by all authorities and is included neither in the Extradition Act nor in the Immigration Act;
· The detention practices in respect of foreigners subject to removal

The Special Rapporteur recommends the insertion of a general non-refoulement clause in the legislation, prohibiting any removal of a person, be it extradition, deportation or other form of removal to face a real risk of capital punishment, torture, or any form of inhuman, cruel or degrading treatment or punishment.

IMMIGRATION DETENTION

The Immigration Act of 2002 gives immigration officers the power to detain a foreigner and to within 48 hours determine the status of the foreigner. If the person is illegally in the country, deportation procedures are to be instituted and the person can be detained by order of the immigration officer. No judicial or administrative review is required, and despite, inter alia, the right to legal counsel upon stated in Section 35 (2) of the Constitution, access to legal advice or counsel appears problematic. This is a cause of concern particularly in the counter-terrorism context, as the Special Rapporteur heard several reports of persons in security-related cases having been detained not in facilities subscribed as immigration holdings, but in police stations, especially in the Pretoria area. No independent monitoring agency is conducting visits to police detention facilities where detained foreigners might be held in terrorism-related cases.

The Special Rapporteur regrets that the authorities were unable to facilitate his requests to visit these facilities in order to conduct interviews with staff and detainees, including on issues concerning access to counsel and access to judicial review of detention.

Mindful of the commitment by post-apartheid South Africa to the principle “no detention without trial”, the Special Rapporteur regrets that this principle may not be complied with in respect of foreigners who, rightly or wrongly, are suspected by other countries of terrorism.

The Special Rapporteur finds that the current practices of immigration detention may raise issues under Article 9 of the International Covenant on Civil and Political Rights (ICCPR) concerning the right to personal liberty, and recommends that detention practices be reformed so as to allow for mandatory judicial review of detention decisions, for access to legal counsel, and the institution of an independent body for oversight of immigration detention.

COMMUNITY RELATIONS
South Africa is committed to maintaining good community relations across ethnic, religious or other lines. Many of the governmental interlocutors of the Special Rapporteur also emphasized that South Africa’s foreign policy is deliberately pursuing a strategy that is broadly supported at home so as to give the least possible occasion for resentment both within and outside its territory. The Special Rapporteur commends South Africa for its commitment to prevent terrorism.
Concerns however have been raised in relation to the violence and even murders targeted towards Somalian nationals, mainly in the Cape. For good community relations to persist, concerted action is needed. The Special Rapporteur encourages South Africa to formulate clear policy objectives and concrete programmes for the eradication of xenophobia and inter-ethnic violence.

REGIONAL ROLE

South Africa plays a key role in all major political forums on the African continent, including the African Union (AU), New Partnership for Africa’s Development (NEPAD), and Southern African Development Community (SADC). The Government supports both the AU counter-terrorism centre in Algiers and the establishment of an early warning mechanism on conflict in the SADC region. The Special Rapporteur also learned about the research network on counter-terrorism, ANTCT. This is particularly encouraging in light of the need for multi-disciplinary, international research on terrorism and conditions conducive to terrorism.

The Special Rapporteur encourages South Africa, both within the AU and SADC, to work towards the development of model laws on counter-terrorism which are in conformity with international human rights standards. Also in this context the Special Rapporteur encourages accession to international human rights instruments. In particular, South Africa should take a leading role in promoting the ratification of the ICCPR, the CAT and their Optional Protocols, as well as other human rights treaties, by all African states, so as to ensure the international monitoring of the compliance with human rights in countering terrorism.

The Special Rapporteur thanks the Ministry of Foreign Affairs for its cooperation. He would also like to thank all his interlocutors, both governmental and non-governmental institutions for sharing their insights and ideas. The Special Rapporteur expresses his appreciation for the logistical support provided by the Office of the High Commissioner for Human Rights in Pretoria.

The Special Rapporteur will submit his full report on the visit to the UN Human Rights Council.


Mr. Scheinin accepted the appointment of Special Rapporteur by the United Nations Commission on Human Rights on 7 August 2005. The mandate, established by Resolution 2005/80, has since been assumed by the Human Rights Council. In this capacity, the Special Rapporteur is mandated to develop a regular dialogue and to cooperate with all relevant actors, including Governments, to exchange information, make recommendations and to identify and promote best practices on measures to counter terrorism that respect human rights and fundamental freedoms. As Special Rapporteur, he is independent from any Government and serves in his individual capacity

Mr. Scheinin has previously served as a member of the United Nations Human Rights Committee (1997-2004). He is a Profession of Constitutional Law and International law and Director of the Human Rights Institute at Abo Akademi University in Turku, Finland.

For further information on the mandate of the Special Rapporteur, please visit the website: http://www.ohchr.org/english/issues/terrorism/rapporteur/srchr.htm