INTRODUCTION - Office of the High Commissioner for Human Rights

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INTRODUCTION - Office of the High Commissioner for Human RightsINTR




     Distr. General Assembly



    5 November 2007

    Original: ENGLISH


    Sixth session

    Item 3 of the agenda




    Report of the Special Rapporteur on the promotion and protection of human rights

    and fundamental freedoms while countering terrorism, Martin Scheinin



     * 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.


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    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


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    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


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    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.


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     Paragraphs Page

    Introduction ........................................................................................... 1-5

     I. MAIN FINDINGS ..................................................................... 6-59

     A. General political and legal background ................................. 6-17

     B. Priority issues ....................................................................... 18-59

     1. The definition of terrorism and related issues ................. 18-36

     2. Immigration policies in the context of countering insurgencies or -terrorism ..


     3. Mercenaries in the context of counter-terrorism .............. 53-54

     4. Community relations ...................................................... 55-56

     5. Regional role ................................................................. 57-59

     II. CONCLUSIONS AND RECOMMENDATIONS ...................... 60-81

     A. Conclusions .......................................................................... 60-70

     B. Recommendations ................................................................ 71-81


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    1. Pursuant to his mandate, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism visited South Africa

    1from 16 to 26 of April 2007 at the invitation of the Government.

    2. 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 taken upon itself the responsibility of a leadership role on both the African continent and internationally, which includes holding a seat on the Security Council until the end of 2008.

    3. In the context of global measures to counter terrorism, South Africa has expressed its commitment. Measures to counter terrorism, in the context of South Africa‟s particular history, exist against a background of extremely harsh anti-terrorism legislation of the apartheid era, which was used as a vehicle of gross and widespread violations of human rights. In the period following the September 2001 terrorist attacks in the United States, South Africa has not been a significant target of terrorist attacks. In the late 1990s, the Western Cape was plagued by attacks by PAGAD (People Against Gangsterism and Drugs), a Muslim-based organization with no apparent ties to international terrorism. In the early 2000s, the extreme right-wing group Boeremag carried out some violent attacks. The Government of South Africa does not today see terrorism as a major threat, but remains vigilant. The country adopted counter-terrorism legislation, the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (POCDATARA), after lengthy consultations.

4. The mission to South Africa was the Special Rapporteur‟s second country visit after

    he accepted his appointment as mandate-holder on 8 August 2005. Its main purpose was to


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    gather first-hand information about past, current and future initiatives in the area of counter-terrorism in South Africa and how such measures affect the protection and promotion of human rights. The Special Rapporteur is very grateful to the Government of South Africa for its invitation and its assistance in facilitating the mission. He hopes that the recommendations will be useful for all those within the Government, the Parliament, the judiciary and civil society who strive to promote and protect human rights while countering terrorism.

    5. During his visit, the Special Rapporteur visited Pretoria, Johannesburg, Midrand and Cape Town. In Pretoria, he had high-level meetings with Ministers or officials in the following government bodies: the Ministry for Foreign Affairs, the Ministry of National Intelligence, the Ministry of Defence, the Ministry of Justice, including the National Prosecuting Agency and the South African Law Reform Commission, the Ministry of Safety and Security as well as the South African Police Service (SAPS) and the SAPS College, and the Ministry of Home Affairs. In relation to an ongoing major trial, he also

    visited the C-Max Prison, privately interviewed detainees and briefly attended the trial in the Pretoria High Court. He also met with the South African Human Rights Commission. In Johannesburg, he met with a current justice and a retired Chief Justice of the Constitutional Court and several non-governmental organizations, including the Freedom of Expression Institute, the Wits Law Clinic, the National Coalition on Refugee Affairs, and the Southern Africa Migration Project (SAMP). In Midrand, he had a joint meeting with parliamentarians in the Security Cluster of Parliament‟s portfolio committees. In Cape Town, he met with civil society representatives. During the visit, he also had discussions with numerous legal practitioners and academics, and gave two public lectures organized, respectively, by the Centre for Human Rights at the University of Pretoria and the Institute for Security Studies. He also had consultations with the local office of the Office of the United Nations High Commissioner for Refugees (UNHCR). The Special Rapporteur was not able to complete the full agenda envisaged due to Parliament and many of the courts being in recess. He also regrets that requests made during the mission to visit, in particular, police detention facilities were not met. In light of the Terms of Reference for Fact-Finding Missions by Special Rapporteurs, such visit requests ought to be accommodated by the host

     1 The Special Rapporteur conducted his mission assisted by the Office of the United Nations High Commissioner for Human Rights and Ms Kristina Stenman of the Institute for Human Rights at Åbo Akademi University. A draft mission report was sent to the Government on 28 June 2007.


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    2Government, and they would have contributed in an important way to a greater insight into South Africa‟s counter-terrorism measures.


    A. General political and legal background

    6. South Africa evolved from an apartheid system into a democracy in 1994, in a transition which in many ways remains unparalleled in its level of ambition and commitment by all actors in society and the international community. The new South

    African Constitution was adopted in 1996, hailed for its inclusiveness and reflection of international human rights standards. South Africa is party to most international human rights instruments, but has not yet acceded to the International Covenant on Economic,

    3Social and Cultural Rights.

    7. Today, South Africa is a multi-ethnic, multilingual and multi-religious society. The total population in 2006 was approximately 45 million. According to the 2001 census, the population of South Africa was constituted as follows: Black African, 79 per cent; White, 9.6 per cent; Coloured, 8.9 per cent; and Indian/Asian, 2.5 per cent.

    8. The distribution of religions, according to the 2001 census, is: Zion Christian 11.1 per cent, Pentecostal/Charismatic 8.2 per cent, Catholic 7.1 per cent, Methodist 6.8 per cent, Dutch Reformed 6.7, per cent Anglican 3.8 per cent, other Christian 36 per cent, Muslim 1.5, per cent other 2.3 per cent, unspecified 1.4 per cent and none 15.1 per cent..

    9. The South African Parliament is bicameral, with the National Assembly and the National Council of Provinces. The National Assembly is to have 350 to 500 Members, elected every five years, and currently has 400 Members. The National Council of

     2 Terms of Reference for Fact-Finding Missions by Special Rapporteurs/Representatives of the Commission on Human Rights (E/CN.4/1998/45, appendix V). 3 South Africa has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).


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    4Provinces has 10 members from each of the 9 provinces. Elections are held every five

    years. The last parliamentary elections were held in 2004, and gave yet another overwhelming victory to the African National Congress (ANC), which took 69.7 per cent

    of the votes, and holds 279 seats in the National Assembly, followed by the Democratic Alliance (50 seats), the Inkatha Freedom Party (IFP, 28 seats), the United Democratic Movement (UDM, 9 seats), the New National Party (NNP, 7seats), and the African Christian Democratic Party (ACDP, 6 seats); 21 seats are held by smaller groups. Thabo Mbeki has been President since 1999. The President is elected by the National Assembly, and appoints the Cabinet.

10. Since its democratization in 1994, South Africa‟s political focus has centred on the

    eradication of the extreme poverty and disenfranchisement of the vast majority of the population, which was the legacy of apartheid. Although progress has been made, the white minority population still retains considerable concentrations of power in business and many areas of public life.

    11. A key area of focus in the field of justice and law enforcement has largely been crime, organized crime and corruption. South Africa has, and continues to struggle with an extremely high crime rate, and therefore, much effort has been put both into strengthening law enforcement, but also into social reform to combat poverty. However, there is ongoing criticism against the measures taken. Also, trust in the system of law enforcement is

     5undermined by allegations of corruption and police brutality.

    12. The high prevalence of HIV/AIDS also has socio-economic repercussions, and life expectancy in South Africa today is low, at 42.73 years, despite the relative affluence of the


    13. Democratic South Africa has also become a major host country for immigrants. South Africa maintains, and has in recent years tried to strengthen, an immigration policy which furthers immigration of skilled labour. At the same time, some of the Special

     4 See . 5 See e.g. the concluding observations of the Committee Against Torture (CAT/C/ZAF/CO/1) of 7 December 2006 6 Estimate in 2006, CIA World Factbook.


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    Rapporteur‟s interlocutors estimated there were up to 2 million undocumented migrants in the country. South Africa was one of the first countries on the African continent to set up

    7an individual asylum procedure, with the number of applications rising to 53,361 in 2006.

    14. Despite the high rate of crime, terrorism has not been seen as a major problem in South Africa. Two main organizations have emerged in the last 10 years which have carried out politically motivated acts of violence against members of the general population: the Islamic-based PAGAD, and the right-extremist group Boeremag.

15. PAGAD was set up in 1996. A rise in crime, the polices inability to tackle this

    trend and frustration within the Muslim communities, particularly in the Western Cape, has been seen as the motivation for its establishment. PAGAD`s G-Force (Gun Force) was considered responsible for committing terrorist acts. Organizations such as MAGO (Muslims Against Global Oppression) and MAIL (Muslims Against Illegitimate Leaders) were apparently also offshoots or fronts for PAGAD. During 1996-2000, PAGAD carried out a large number of violent attacks, first mainly against drug dealers, then academics and State structures; later, restaurants and public places were targeted. From 1998 onward,

    8PAGAD is described as having become more violent and indiscriminate. Altogether, 189

    9bomb attacks were carried out either by PAGAD or related factions of this group.

    16. During 2001 and 2002, the authorities started to uncover a series of planned bombings and violent attacks, traced to a new far-right, white-power group called Boeremag. It also managed to carry out eight bomb blasts in Soweto, killing 2 persons, and the bombing of a bridge on the border of the Eastern Cape and KwaZulu-Natal. The National Intelligence Agency (NIA) and the South African Police Service during that time managed to uncover several planned attacks. Some 20 suspected Boeremag members are

    10currently on trial. Two suspects escaped from police custody in May 2006. They were caught in January 2007. The court case against the Boeremag members resumed in February 2007 and the Special Rapporteur was able to monitor one session. Separate

     7 UNHCR, “Flow of asylum seekers to South Africa grows in 2006”, 2 February 2007 (see 8 CIA World Factbook. 9 Abdelk?erim Ousman, The potential of Islamic terrorism in sub-Saharan Africa”, International Journal of

    Politics, Culture and Society, vol. 18, No. 1, Fall 2004, p. 83. 10 Martin Schönteich and Henri Boshoff, “Rise of the Boeremag: a case study. „Volk‟, faith and Fatherland: The security threat posed by the White Right”,

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