'If new detention laws were to be used successfully against Pagad, that could give the organisation legitimacy'
Almost a year ago today, a bomb exploded at St Elmo's restaurant in Camps Bay, Cape Town. The Minister of Safety and Security, Steve Tshwete, called for new detention laws to combat terrorism, even if the Constitution had to change.
The St Elmo's bomb had been the 12th since June 1998. Since then, there have been another 12 bombs. The culprits remain unidentified, although possibly related convictions have occurred. Is this because we do not yet have those detention laws? If detention laws meant it would be easier to convict terrorists, should we get them?
New detention laws have been proposed in an SA Law Commission discussion paper. The commission itself says that, given our history, the detention measures in its draft Anti-Terrorism Bill will require the "most compelling justification" to be passed. The Bill was drafted by the police. The commission made some changes.
The draft Bill says a judge would be able to issue a warrant of arrest if a director of Public Prosecutions submitted information on oath that there was reason to believe a person possessed or had been withholding information regarding terrorist offences.
The person need not be suspected of any terrorist crime - all that would be required for his or her detention was evidence that he or she knew something about a terrorist crime. Ordinarily, only people suspected of committing a crime are arrested.
Detention for interrogation could continue until the judge ordered a release, or a period of 14 days had expired, whichever came first. The police originally suggested a limit of 30 days. Release would be ordered if the judge was satisfied that the person had satisfactorily replied to all questions in interrogation or that no useful purpose would be served by further detention.
The draft proposes that the detainee be brought before a judge within 48 hours of arrest, and then again after five days. At these appearances, the onus would be on the state to show reasons for further detention. A detainee could make representations to the judge regarding the continuation or conditions of the detention at any time.
How does this measure against the Constitution? The Bill of Rights says arrested people have the right to remain silent, and to be informed promptly of that right and of the consequences of not remaining silent. They have the right not to be compelled to make any confession or admission. They must be brought before a court no later than 48 hours after arrest and then released if the interests of justice permit it, subject to reasonable conditions, or charged and informed of the reason for their continued detention.
The proposals infringe these rights. To survive, they must be justified in terms of the limitations clause, or the Constitution must be amended. The limitations clause says that an infringement is still constitutional if it is in terms of a law that is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
Various factors decide this. Here, a court would weigh up the nature of the right, the extent to which the proposed law limits it, the importance of combating terrorism, why detention for interrogation is needed and whether there are less restrictive measures to combat terrorism.
The proposed law will make the jobs of terror fighters easier. The mere threat of detention may induce the reluctant to talk. If that does not work, it is expected that repeated interrogation during detention will.
But under these conditions, abuses outside the law may occur. Even without abuse, this could be an unpleasant 14 days, especially for an innocent person. And might not the innocent but weak attest to facts not within their knowledge to avoid such unpleasantness?
There are considerations outside of the Constitution and Bill of Rights. The Muslim community feels marginalised by the state's verbal attacks on "Muslim extremists", although few Muslims now support Pagad. Some perceive that detention laws will be aimed at those the state suspects of bombing: elements of the Muslim community. Further alienating the Muslim community may be an unfortunate unintended consequence of passing the law.
If Pagad is responsible for all the bombs, it has not gained by them. It is vilified popularly and by the state. But if new detention laws were to be used successfully against Pagad, that could give it legitimacy. A conviction reliant largely on evidence from forced interrogation might leave public doubt as to guilt, and Pagad claims of victimisation would be bolstered. The state cannot afford Pagad martyrs, guilty or not.
Ironically, if Pagad is the terrorist organisation the state says it is, its aim - to undermine the state - will be most elegantly achieved by forcing the state to choose these bullyboy tactics, thereby becoming the "gangster government" Pagad claims it is.
Redpath is a researcher at the Institute for Human Rights and Criminal Justice Studies
