HUMAN RIGHTS COUNCIL
Distr. General Assembly
5 November 2007
HUMAN RIGHTS COUNCIL
Item 3 of the agenda
PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS, CIVIL,
POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS, INCLUDING
THE RIGHT TO DEVELOPMENT
Report of the Special Rapporteur on the promotion and protection of human rights
and fundamental freedoms while countering terrorism, Martin Scheinin
*MISSION TO SOUTH AFRICA
* The summary of this mission report is being circulated in all official languages. The report itself contained
in the annex to the summary is being circulated in the language of submission only.
At the invitation of the Government, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism undertook a visit to South Africa from 16 to 26 April 2007. The main purposes of the visit were to gather first-hand information about initiatives in the area of counter-terrorism and how such measures affect human rights, and to begin a process of cooperation with the Government. The Special Rapporteur is very grateful to the Government of South Africa for extending its cooperation to him.
The Special Rapporteur acknowledges the remarkable achievements of South Africa over the last 15 years in establishing a society founded on democracy, pluralism and a strong Constitution, based on the full respect of human rights. This includes the establishment of a robust judicial system, of an inclusive South African Police Service, and strong efforts to improve the social and economic situation of large segments of the previously disenfranchised population.
In the field of counter-terrorism, South Africa has not in the period following the terrorist attacks of September 2001 been affected by terrorist acts. The Government is committed to the global measures to counter terrorism, and remains vigilant.
In this report, the Special Rapporteur seeks to highlight particularly central issues for the promotion and protection of human rights while countering terrorism, and in his conclusions and recommendations, to point out particular areas of interest or concern.
The country adopted new counter-terrorism legislation (the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004), on the basis of broad consultations. The Special Rapporteur commends South Africa for this process, and the efforts to ensure that the protection of human rights and the safeguards normally embedded in criminal procedures are also applicable to the investigation and prosecution of crimes related to terrorism. He notes that the definition of terrorist acts in the law, when read cumulatively, sets up several thresholds of severity in order for an act to constitute terrorism in the meaning of the law. There are, however, elements of the definition which
may convey the idea that even less severe acts may amount to terrorism. He recommends that the Government closely monitor the implementation of the new law and be prepared to amend it, should its interpretation suggest a threat to human rights.
The issue of the sanctions regime under Security Council resolution 1267 (1999) is also addressed in the South African counter-terrorism law. The names of individuals and entities listed by the Security Council are to be published by Presidential declaration in the Government Gazette, and to be communicated to Parliament. While the Special Rapporteur sees it as positive that the procedures are outlined in the law, he found a need to clarify the practical implications of this procedure, including the possibility of judicial review.
The Special Rapporteur found that criminal investigations, prosecutions and trials generally fall within the normal provisions for criminal procedure in South Africa. He commends South Africa for maintaining this stance, and cautions against the use of special procedures in terrorist or security-related trials, such as in-camera trials.
The immigrant community of South Africa has grown remarkably during the period of democracy in the country, and is seen partly as an important source of labour, but partly also as a problem and possibly even as a security threat. There are sentiments of xenophobia in the country, and despite the generally strong protections which the Constitution offers to all those residing in South Africa, the Special Rapporteur got varied and sceptical responses from authorities concerning the rights of immigrants in the country. In particular, two areas in relation to the human rights of immigrants in the context of counter-terrorism are of concern to the Special Rapporteur: the detention of immigrants, and the application of the principle of non-refoulement.
While the South African counter-terrorism law does not allow for administrative detention, the Immigration Act allows for detention for up to 30 days without mandatory judicial review. In detention cases related to security concerns or suspicions of links to terrorism, detention often takes place in ordinary police stations, where monitoring and access to legal counsel are lacking. The Special Rapporteur recommends the setting up a comprehensive system of monitoring of immigration detention, and for legislation calling
for mandatory judicial review within 48 hours, and the right to legal counsel from the time of apprehension.
The principle of non-refoulement, which prohibits the extradition, deportation or any other kind of removal of an individual to a country where he or she may risk torture or cruel, inhuman or degrading treatment or punishment, has been articulated in important South African jurisprudence: S v Makwanyane and Another by the South African Supreme
Court and Mohamed by the Constitutional Court. During his mission, the Special
Rapporteur found, however, that the content and binding nature also of this principle of customary law was not clear to all government officials. As removals often take place in the context of counter-terrorism, this issue is particularly pressing for the mandate. The Special Rapporteur recommends that South Africa include in its legislation clearly the principle of non-refoulement.
South Africa recognizes the international nature of measures to counter terrorism, and therefore, also actively supports regional and subregional efforts in this respect. The Special Rapporteur encourages South Africa to support such cooperation and particularly to ensure that the promotion and protection of human rights is mainstreamed into all efforts to counter terrorism, be it on the African continent as a whole or in the context of Southern Africa.
REPORT OF THE SPECIAL RAPPORTEUR ON THE PROMOTION AND
HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS WHILE COUNTERING
TERRORISM ON HIS VISIT TO SOUTH AFRICA (16-26 APRIL 2007)