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09 January 2000
Insight
Trial better than detention for urban terror suspects
second opinion: Jean Redpath
A NEW anti-terror law for people suspected of being potential urban terrorists is neither necessary nor desirable. Such "handlangers " (accomplices) of criminal gangs could easily be put away for up to six years under legislation already in existence. There is no need to pass detention laws reminiscent of the security era.
There are two types of bombers. There are those who belong to some sort of gang or organisation which seeks to make a political or other point by engaging in terrorism.
Then there is the loner who, in an entirely unpredictable moment of rage, jealousy, spite, lust or anarchist angst, goes out and sets off a bomb. Such a person could be you or me in a moment of stress. Any state that claims to have forewarning or foreknowledge of such a bomber is a dishonest state. There is little that can be done about such a bomber, other than to encourage the public to be vigilant.
But the potential bomber attached to a cause or a gang is a different matter. It is likely and, indeed, even expected that the state has an idea of which person attached to what organisations is likely to be engaged in urban terror in the future.
It is these people whom certain law-enforcement officials, in the aftermath of the St Elmo's bomb, wanted to lock away without trial "for questioning", and for which purpose the Minister of Safety and Security, Steve Tshwete, wants new anti-terror laws. But it is precisely these sorts of people who can be convicted - before even engaging in any violent act - in terms of the Prevention of Organised Crime Act.
The Act has a number of provisions which effectively criminalise gang membership coupled with merely the threat to commit violent acts.
To my knowledge, no prosecutor has yet invoked these provisions. The provisions are designed for easy conviction of those who could slip through the net for lack of evidence on other charges, or who have threatened to but have not yet committed a serious crime. As such, the Act is a useful device not yet being utilised against urban terror and gang warfare.
What do the suspects wear? With whom do they hang out? Have they spoken loosely about acts of violence or revenge? The wrong answers to these questions could put such suspects in prison. According to the Act, anyone who participates in, or is a member of, a "criminal gang" and who threatens to commit any criminal activity by or with the assistance of a criminal gang, or who threatens retaliation in any manner or by any means in response to any act or alleged act of violence, is guilty of an offence. Such an offence holds a penalty of up to six years' imprisonment.
All a prosecutor needs to show, therefore, is that the suspect is either a gang member or participates in a gang, and that the suspect has threatened violence by the gang. Alternatively, that the gang member suspect has threatened retaliation by any means.
A "criminal gang" is defined in an open-ended way. It includes any established group of three or more persons, which group commits one or more criminal offences, and which has a name, sign or symbol, and whose members have engaged in a pattern of criminal gang activity. The word "includes" is used, which means that groups which do not have all the listed characteristics may not necessarily be excluded.
A "pattern of criminal gang activity" includes the commission of two or more criminal offences covered by the Act ( basically any offence carrying a penalty of more than one year's imprisonment). At least one offence must have occurred after the law came into force. The most recent offence must have occurred within three years of the previous offence. The offences must have been committed on separate occasions. If they were committed on the same occasion, they must have been committed by two or more persons who are members of, or belong to, the same criminal gang.
Given these definitions, most of the known Western Cape gangs, as well as Pagad, would probably easily be proved to be a "criminal gang". To assist the courts in determining whether a particular person is a member of a criminal gang, the Act says the court may have regard to certain factors. These are whether such a person:
Admits to criminal gang membership;
Is identified as a member of a criminal gang by a parent or guardian;
Resides in or frequents a particular criminal gang's area and adopts their style of dress, their use of hand signs, language or their tattoos, and associates with known members of a criminal gang (the gang associate);
Has been arrested more than once in the company of identified members of a criminal gang for offences which are consistent with usual criminal gang activities (note: no conviction, only arrests required); and
Is identified as a member of a criminal gang by physical evidence such as photographs or other documentation.
Obviously these provisions are not specifically enacted with potential bombers in mind, but the possible application of the Act to such persons linked to criminal gangs is clear.
It may be argued that convicting a person who simply associates him- or her-self with a gang and is heard to threaten violence is constitutionally suspect. Of course, these provisions are open to constitutional challenge on the basis of freedom of association and freedom of expression - but they may yet pass the limitation test.
Such provisions, which at least require a person to be charged and heard in a court of law, are far more preferable to detention laws. Detention for any length of time without trial is far more prone to constitutional challenge.
Of course, none of this may have been of any use if and when the truth about Deon Mostert's involvement in the St Elmo's bombing is revealed. But that is another issue entirely.
Redpath, an attorney, is a researcher with the Institute for Human Rights and Criminal Justice Studies |
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