Egyptians Vote Today, but Islamic Opposition Group Is Barred

Egyptians are to vote on Wednesday in parliamentary elections that have emerged less as a challenge to President Hosni Mubarak's Government than a window on a widening rift between the Government and its outlawed Islamic opponents.

With the country's most influential Islamic organization, the Muslim Brotherhood, barred from competing as a political party, Mr. Mubarak's governing National Democratic Party is widely expected to maintain its commanding majority in Parliament, where it now holds 348 of 444 elective seats.

While Mr. Mubarak and his supporters have said they are committed to fair elections, the severe measures taken against the popular Islamic organization in recent weeks have underscored deep tensions that will not be measured in the polls.

"This election is like a play in the theater," Nabil Abdel-Fattah, an independent analyst at Al Ahram Center for Political and Strategic Studies, said in an interview today. "It certainly does not reflect political reality."

In the last week, dozens of Muslim Brotherhood leaders have been sentenced to prison terms and hundreds of their supporters arrested as part of what human rights campaigners say is a deliberate effort by the Government to disfranchise the country's largest political opposition movement.

With tacit backing from the West, the Government has defended the crackdown as a necessary step in its quest to suppress a campaign of violence by Islamic militants, who it says have drawn support and inspiration from the organization, which itself has long been outlawed.

Yet the Muslim Brotherhood has used the repressive measures as ammunition of its own as it renews its appeal to ordinary Egyptians, many of whom regard the Islamic organization as an important counterweight to what they consider a corrupt secular regime.

Permitted to compete only as independent candidates, members of the organization are running for only one-fourth of the seats and are not expected to play a large role in the outcome.

This election is the first in Egypt since 1987 that has not been boycotted by the major opposition parties, and television advertisements appearing on the Government-owned stations urge citizens to give their vote "to whoever deserves it."

But even as more than 4,000 candidates spent a final day on the hustings, the Government came under verbal attack from a prominent human rights organization, which declared itself "deeply troubled" about the climate in which the elections were taking place.

In a letter addressed to Mr. Mubarak, the New York-based Human Rights Watch/Middle East cited the measures taken against the Muslim Brotherhood, including the sentencing last week of 54 prominent members to prison terms of up to five years after a mass trial in military court.

Some of those sentenced had intended to run for seats in Wednesday's elections, and the human rights organization criticized their prosecution for nonviolent offenses as intended to keep them from taking part in the elections.

Even to students of Egyptian politics, many of the candidates' platforms this year are virtually indistinguishable, leaving their supporters to emphasize the symbols paired with names on Egyptian ballots.

Source: New York Times

Police, but Few Voters, in Ivory Coast Turnout

With tensions running high after opposition calls for a boycott, few turned out to vote today in the first presidential election since the death of the country's long-governing founding father, Felix Houphouet-Boigny.

In the days before the election, the interim President, Henri Konan Bedie, who took over after Mr. Houphouet-Boigny died in December 1993, sternly pledged to provide security throughout the country. He urged voters to defy his opponents by turning out in large numbers.

From daybreak, the streets of this city and many other Ivoirian towns were filled with security personnel armed with tear-gas grenades and dressed in riot gear. Adding to the tension was an announcement Saturday of Mr. Bedie's removal of the commander of the armed forces, Gen. Robert Guei. The general was reported to have resisted the President's orders that the military be deployed alongside the police in putting down demonstrations and maintaining order. This morning two protesters were reported to have been shot dead by security forces near the northern town of Korhogo. At least eight other people were killed in politically related violence leading up to the election.

But opposition supporters heeded the call of their leaders for an "active boycott" of the vote, while others, apparently considering the uncompetitive vote a mere formality, simply stayed at home. In Abidjan and in the interior, disgruntled citizens burned ballot boxes, ripped up voter lists or cut down trees to block roads to their towns in order to delay or prevent voting.

Mr. Bedie's main opposition rivals have charged that the Government rigged the voter lists and refused to allow independent supervision of the election process. On Saturday Mr. Bedie sought a settlement to ward off the election-day crisis. Opposition leaders said, however, that the President's offer amounted to what they called an unacceptable deal in which they would call off their boycott in exchange for revisions of voter lists in time for parliamentary and local elections starting next month. "From the moment they say they are willing to correct the lists, they are admitting there is a problem," said Abou Dramane Sangare, a senior leader of the Ivorian Popular Front, one of two main opposition parties that are boycotting the vote.

With Mr. Bedie's main rivals abstaining from the election, the only competition the 62-year-old leader faced was from Francis Wodie, a 59-year-old lawyer who heads the tiny, center-left Ivorian Workers Party and was not expected to win.

Earlier this year, an electoral code written by Mr. Bedie's supporters eliminated the man who was widely given the best chance of unseating the President, Alassane D. Ouattara, who served as Prime Minister under Mr. Houphouet-Boigny and is now deputy director of the International Monetary Fund in Washington. The other main opposition leader, Laurent Gbagbo, pulled out of the race in protest over other elements of the electoral code.

Source: New York Times

SOUTH AFRICAN POLICE SERVICE ACT 68 OF 1995

The purpose of the South African Police Services Act is to provide for the establishment, organisation, regulation and control of the South African Police Service; and to provide for matters in connection therewith.

WHEREAS section 214 of the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993), requires legislation to provide for the establishment and regulation of a South African Police Service which shall be structured at both national and provincial levels and shall function under the direction of the national government as well as the various provincial governments;

AND WHEREAS there is a need to provide a police service throughout the national territory to -
(a) ensure the safety and security of all persons and property in the national territory;
(b) uphold and safeguard the fundamental rights of every person as guaranteed by Chapter 3 of the Constitution;
(c) ensure co-operation between the Service and the communities it serves in the combating of crime;
(d) reflect respect for victims of crime and an understanding of their needs; and
(e) ensure effective civilian supervision over the Service:

Source: SABINET

HUMAN RIGHTS COMMISSION ACT 54 OF 1994

The purpose to the Human Rights Commission Act is to regulate matters incidental to the establishment of the Human Rights Commission by the Constitution of the Republic of South Africa, 1993; and to provide for matters connected therewith.

WHEREAS sections 115 up to and including 118 of the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993), provide for the establishment of a Human Rights Commission; the appointment of the members of the Commission; the conferring of certain powers on and assignment of certain duties and functions to the Commission, the appointment of a chief executive officer of the Commission; and the tabling by the President in the National Assembly and the Senate of reports by the Commission;

AND WHEREAS the Constitution provides that the Human Rights Commission shall, inter alia, be competent and obliged to promote the observance of, respect for and the protection of fundamental rights; to develop an awareness of fundamental rights among all people of the Republic; to make recommendations to organs of state at all levels of government where it considers such action advisable for the adoption of progressive measures for the promotion of fundamental rights within the framework of the law and the Constitution; to undertake such studies for report on or relating to fundamental rights as it considers advisable in the performance of its functions; to request any organ of state to supply it with information on any legislative or executive measures adopted by it relating to fundamental rights; and to investigate any alleged violation of fundamental rights and to assist any person adversely affected thereby to secure redress;

AND WHEREAS the Constitution envisages further powers, duties and functions to be conferred on or assigned to the Human Rights Commission by law, and that staff of the Commission be appointed on such terms and conditions of service as may be determined by or under an Act of Parliament;

Source: SABINET

Sierra Leone Civil War Is Causing Starvation

Hundreds of people are starving to death as thousands are fleeing a civil war in the south, officials and refugees said today. Many refugees come from Bo and Kenema, where ambushes by the Revolutionary United Front have cut off food supplies. "Life in Bo is very difficult," said Sam Morie, a refugee. "Three months ago there were eight of us in the family. Two of our daughters died of starvation a month ago and my brother died of cholera two weeks ago."

The rebels, who took up arms in 1991, brought their campaign near Freetown, the capital, in May. The army has taken the initiative in the fighting in the past two months and the rebels have responded by increasing ambushes. The war has devastated the economy as the rebels have closed diamond and bauxite mines. The military Government offered a truce and elections early next year but the rebels rejected the offer.

Source: New York Times

Mandela's push for women

President Nelson Mandela's office has intervened in the selection of Land Claims Court judges in a bid to include women on the shortlist of nominees. Presidential spokesman Parks Mankahlana confirmed this week that the office would be asking the Judicial Services Commission to discuss new candidates, despite the fact that public hearings to select candidates are over, and the JSC has already sent a shortlist of five names -- all men -- to the President.

This move by the President's office was prompted by the National Association of Democratic Lawyers (Nadel) and supported by a number of NGOs involved with land issues. Nadel complained bitterly last week that there were no women on the JSC's short-list, and then compiled its own list of women candidates which it sent to the President's office.

The JSC defended its own all-male list, saying that only one woman had been nominated for the position of judge, despite extensive advertising in all national newspapers. She dropped out near the end of the selection process.

Source: Mail & Guardian

Commission of Inquiry Into Alleged Arms Transactions Between Armscor and One Eli Wazan and Other Related Matters

On Sunday 18 September 1994, the Afrikaans Sunday newspaper,Rapport, reported that `a massive arsenal' of South African weapons - tens of thousands of AK 47 rifles and millions of rounds of ammunition - had been shipped from Port Elizabeth to the `terror-contaminated' Middle East. The weapons emanated from the South African National Defence Force (SANDF). The supplier was the Armaments Corporation of South Africa (Armscor), operating as the sales arm of the SANDF. The report quoted allegations that the weapons were destined for the Palestine Liberation Organisation (PLO), for use against Israel: the report's suggestion was that the new African National Congress-led government was seeking to bolster its old ally, the PLO. This was despite the official stand of Armscor that the arms shipment had occurred within government prescriptions, and that the export was in fact destined for the government of Lebanon.

Subsequent press reports revealed that the consignment had been headed for Yemen, but had been turned away at one of that country's ports. Armscor arranged for the return of the ship to South Africa, where its cargo was unloaded at Port Elizabeth and transferred to SANDF storage. (The ownership of the shipment, and related financial matters, are currently disputed in legal proceedings between various of the parties.)

Rapport's disclosure provoked a public storm in South Africa. World media attention focused on the activities of Armscor, and on South Africa's alleged role in supplying arms to dubious purchasers. The Minister of Defence, Mr J Modise, called on Armscor to furnish a report on the events. After receiving the report, and within twelve days of the original disclosure, he requested the Minister of Justice, Mr A M Omar, to appoint an independent commission to investigate the issue.

This Commission was the result.

Source: Polity

3 Charged in Killings Over Cocaine Dealing

For the third time in a year, the Manhattan District Attorney has dismantled a violent gang of young cocaine dealers who plied their murderous trade on the Upper West Side of Manhattan.

This time, the gang of 22 men and women called itself Natural Born Killers, an apparent reference to last year's Warner Brothers movie about serial killers. Of the 22 people indicted yesterday, 17 were taken into custody in morning raids. Two indictments charged them with three homicides, conspiracy, drug dealing and gun running in what investigators said was a thriving $70,000-a-week crack-cocaine business near two schools in Manhattan Valley.

The indictment illustrated the resiliency of drug gang activity even after previous crackdowns. District Attorney Robert M. Morgenthau said the gang sprang up last July to fill the void left when the police broke up two other crack-selling gangs, Young City Boys and Young Talented Children. In the two months that followed, the leaders of Natural Born Killers consolidated their power by assassinating two members of rival gangs and one rival within their own ranks.

"You can never declare victory and walk away, but I think these three indictments of these three gangs has had a major impact on the drug activity in Manhattan Valley," Mr. Morgenthau said.

Mr. Morgenthau said homicides in the 24th Precinct, where the gangs operated, have been cut in half since his office began cracking down on street gangs in 1994. So far, 81 people in three gangs have been arrested. In 1993 there were 23 homicides, while in 1994 there were 12. So far this year, the neighborhood has seen only one homicide.

Officials said, however, that fed by a deep-rooted demand for drugs, the gangs continue to spring up like dandelions as soon as others are ripped out. "I don't think that while there is a demand, you can completely wipe these gangs out," said Chief Patrick Harnett, who heads the Narcotics Division. "It's a business."

The Natural Born Killers gang has roots in a previous drug organization known as the Red Top Crew, which began in 1990, prosecutors said. Selling crack cocaine in vials with red plastic tops, the gang turned the area around Public School 145 at 104th Street and Amsterdam Avenue into a drug market.

But three years later, the orginal founders of the Red Top Crew were killed, and the Young Talented Children usurped their territory, selling yellow-capped vials, prosecutors said. The third gang, the Young City Boys, coexisted with the yellow-top gang, controlling the market around 105th and Amsterdam. They used vials with purple tops.

In June 1994, when the police arrested the leaders of Young Talented Children, some remnants of the Red Top Crew revived their drug organization and took over the other gang's territory.

The indictment says the leaders of the gang were Guillermo Urena, 22; Jose Lora, 18, and Norberto Russell, 20. Mr. Urena and Mr. Lora are charged with murdering Aries Santana, a member of the Young City Boys, on July 11, 1994, in front of 672 St. Nicholas Avenue.

A week later, all three men are accused of taking part in the assassination of Luis Quinones on 107th Street. Prosecutors said the men thought that Mr. Quinones had murdered a friend of Mr. Lora's father. The third homicide came on Aug. 8, when Mr. Urena and Mr. Lora are thought to have taken a dissident member of their own gang, Wilson Sanchez, to East Tremont Avenue in the Bronx. He was found shot several times in the head.

The three gang leaders face life in prison if convicted.

Soon afterward, the gang renamed itself Natural Born Killers, said Walter Arsenault, an assistant district attorney.

The police investigation began a year ago when a community patrol officer, A. J. Melino, began hearing talk on the street about the resurrected Red Top gang and alerted detectives. During the year, undercover officers and informers bought or recovered more than 2,100 vials of crack and 12 handguns.

Source: New York Times

Movie Violence Has Become Routine

In your June 4 news article on the general moviegoer's response to Senator Bob Dole's comments on the entertainment industry, I might submit that the 17-year-old high school junior who admits to seeing "Natural Born Killers" seven times graphically illustrates the magnitude of the cultural problem that Senator Dole and others decry.

For anyone at that impressionable age to repeatedly witness and "really like" such a wanton depiction of mindless, casual violence cannot but adversely affect the outlook of such a person, and, by extension, of society as a whole.

I am a surgeon of 30 years' experience, including a year's service in Vietnam in 1968-69 and, no, I have not seen this movie.

The reviews were enough to send me elsewhere.

This brings to mind the totally stunned silence with which the movie audience in Houston greeted the premiere of Alfred Hitchcock's "Psycho" in the Majestic Theater, with every one of the 2,000 seats filled. Not one sound was heard as everyone sat there in stunned silence, because of the wanton violence in the shower scene.

Nowadays such violence is considered routine, and audiences are inured to violence 10 times as horrific. BOONE BRACKETT Oak Park, Ill., June 5, 1995

Source: New York Times

Right to Life: S v Makwanyane and Another

CHASKALSON P: The two accused in this matter were convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder, one count of attempted murder and one count of robbery with aggravating circumstances. They were sentenced to death on each of the counts of murder and to long terms of imprisonment on the other counts. They appealed to the Appellate Division of the Supreme Court against the convictions and sentences. The Appellate Division dismissed the appeals against the convictions and came to the conclusion that the circumstances of the murders were such that the accused should receive the heaviest sentence permissible according to law.

Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977 prescribes that the death penalty is a competent sentence for murder. Counsel for the accused was invited by the Appellate Division to consider whether this provision was consistent with the Republic of South Africa Constitution, 1993, which had come into force subsequent to the conviction and sentence by the trial court. He argued that it was not, contending that it was in conflict with the provisions of sections 9 and 11(2) of the Constitution.

The Appellate Division dismissed the appeals against the sentences on the counts of attempted murder and robbery, but postponed the further hearing of the appeals against the death sentence until the constitutional issues are decided by this Court. See: S v Makwanyane en ‘n Ander [1994] ZASCA 76; 1994 (3) SA 868 (A). Two issues were raised: the constitutionality of section 277(1)(a) of the Criminal Procedure Act, and the implications of section 241(8) of the Constitution. Although there was no formal reference of these issues to this Court in terms of section 102(6) of the Constitution, that was implicit in the judgment of the Appellate Division, and was treated as such by the parties.

The trial was concluded before the 1993 Constitution came into force, and so the question of the constitutionality of the death sentence did not arise at the trial. Because evidence which might possibly be relevant to that issue would not have been led, we asked counsel appearing before this Court to consider whether evidence, other than undisputed information placed before us in argument, would be relevant to the determination of the question referred to us by the Appellate Division. Apart from the issue of public opinion, with which I will deal later in this judgment, counsel were not able to point to specific material that had not already been placed before us which might be relevant to the decision on the constitutional issues raised in this case. I am satisfied that no good purpose would be served by referring the case back to the trial court for the hearing of further evidence and that we should deal with the matter on the basis of the information and arguments that have been presented to us.

It would no doubt have been better if the framers of the Constitution had stated specifically, either that the death sentence is not a competent penalty, or that it is permissible in circumstances sanctioned by law. This, however, was not done and it has been left to this Court to decide whether the penalty is consistent with the provisions of the Constitution. That is the extent and limit of the Court's power in this case.

Source: SAFLII

Now for Hire: South Africa's Out-of Work Commandos

To the old apartheid regime and supporters of its influence in this region, they were heroes, fighters who in units with names like Selous Scouts or Crowbar carried out devastating clandestine operations against neighboring countries or propped up clients of South Africa. To most of South Africa's neighbors, they were seen as brutal enforcers of this country's unchallenged dominance in the region.

With the apartheid era now over and the cold war a memory, South Africa's special forces, as they were known, briefly found themselves without a role. But now, with civil wars still dotting this continent and outside powers less interested than ever in becoming involved, scores of retired officers have signed on with a new breed of military outfit that straddles the line between the role of classic foreign adviser and outright guns for hire.

Nowhere have these new outfits played a larger role than in Angola, which has been embroiled in civil war for most of the last two decades. There, a Pretoria-based company known as Executive Outcomes has been credited with quickly turning around the civil war in favor of the nominally socialist Government, and forcing a settlement on Jonas Savimbi, leader of the badly battered rebel movement known as Unita, the National Union for the Total Independence of Angola. In the proxy conflicts in sub-Saharan Africa during the cold war, many of the 500 or so South African recruits with Executive Outcomes fought alongside Mr. Savimbi, a longtime client of South Africa and the United States. Their enemies at the time, in addition to the Angolan Army, were the 50,000 Cubans sent by Havana to bolster the forces of a Communist ally.

In addition to training Angolan Government soldiers, military observers here say that in the last two years the recruits have moved into remote bases that were abandoned after the Cubans pulled out in 1991, upgrading communications and flying highly effective combat sorties in Soviet-made Hind helicopters and MIG-23 fighters. "We consider that they made a very considerable difference to the success that M.P.L.A. has been able to achieve," said William Sass, a retired brigadier of the South African Defense Force, referring to the governing Popular Movement for the Liberation of Angola. "The line of what is a mercenary and what is not is a matter of interpretation, but they made an invaluable contribution to the operations of M.P.L.A. on the ground. If Unita had not signed the cease-fire, one could easily conceive of them having been wiped out."

South African officials describe Executive Outcomes as a dangerous outfit and concede that it could destabilize the region. So far, however, the officials say current laws leave the Government nearly powerless to crack down on such groups. With its Angolan successes high on its resume, Executive Outcomes has been aggressively marketing itself to other African countries with civil wars or other security problems. Just last week, the company announced that it had signed a deal with the Government of Sierra Leone to help its poorly organized army fight its civil war against a shadowy but increasingly effective rebel force known as the Revolutionary United Front.

Beyond Angola and Sierra Leone, Executive Outcomes has declined to specify the African countries in which it is involved. Experts in African military affairs say there are indications that the group has opened talks with the Sudan, Somalia, Mozambique and Malawi.

With the arrival of Executive Outcomes in Sierra Leone, diplomats and other experts in African affairs say the chances for a peaceful resolution there may be receding. The country's leader, Capt. Valentine Strasser, has repeatedly offered to negotiate, but the rebels have said any talks must come after the withdrawal of foreign military personnel. Unlike the rebel movement in Angola, where an effective international embargo and the loss of his outside patrons prevented Mr. Savimbi from rearming, the insurgents in Sierra Leone have free rein over much of a mineral-rich countryside. With growing receipts from the sale of diamonds, timber, gold and other resources, there is little to stop them from beefing up their forces with outside help, thus turning a relatively low-intensity conflict into a much more devastating war.

Officials of Executive Outcomes have always declined to reveal the terms of their agreements with African countries, or even how many men they employ. Military experts and diplomats here say that the company typically pays $2,000 a month or more, and provides recruits with generous insurance coverage in case of injury or death. The company said that at least 10 recruits had been killed in Angola, including at least 2 executed by Mr. Savimbi's men. Officials of the company said that only Eeben Barlow, its general manager, who is a veteran of the Angolan conflict and a former officer in the South African intelligence service, was authorized to speak publicly about Executive Outcomes. But Mr. Barlow, who is 38, has neither returned calls nor responded to a detailed fax seeking comment. Assistants said he was out of the country this week and could not be reached.

In the past, Mr. Barlow has reacted angrily to suggestions that he is running a mercenary outfit. "Where the security in a country is a problem, we assist," he recently told the Reuters news agency. "We assist in water purification, construction and medical services. White South Africans are the only ones prepared to make a difference."

People familiar with the operations of the company scoff at the notion that civil construction is a large part of its activities. Instead, they describe a business that takes little interest in the moral implications of its work and is willing to sign on with whoever can pay them. If it is true that the company is primarily involved in training, experts say that its men also become closely involved in battlefield operations, if its record in Angola is any indication. "Our concern with Executive Outcomes is that something of a rogue in the region has been created," said Jackie Cilliers, director of the Institute for Defense Policy, a Johannesburg research organization. "While it may have actually contributed to a settlement in Angola, we may be witnessing the creation of something outside the control of government that could easily become a force for destabilization in Africa. It is guns for hire."

At the same time, people who have followed the company's involvement in Angola say it has expanded into numerous business ventures in areas like shipping, fishing and trucking. "These groups encourage a country not only to continue a war, but to escalate," said Aileen Marshall, an expert in conflict management at the Global Coalition for Africa, a Washington-based research organization of retired American diplomats, academics and former officials of several African countries. "Down the road there is the risk of a Cambodia-type situation where the Khmer Rouge are using gems and forests to fuel the war so that when the war ends the resources are either gone or are in illegal hands."

Source: New York Times

NATIONAL ECONOMIC, DEVELOPMENT AND LABOUR COUNCIL ACT 35 OF 1994

The purpose of the National Economic, Development and Labour Council Act is to provide for the establishment of a national economic, development and labour council; to repeal certain provisions of the Labour Relations Act, 1956; and to provide for matters connected therewith.

Establishment of National Economic, Development and Labour Council
(1) There is hereby established a council to be known as the National Economic, Development and Labour Council.

(2) The Council shall be governed by an executive council and shall in addition consist of four chambers, namely -
(a) a public finance and monetary policy chamber;
(b) a trade and industry chamber;
(c) a labour market chamber; and
(d) a development chamber.

(3) The Council shall be a juristic person.

Source: SABINET

S v Zuma and others

Section 217(1)(b)(ii) of the Criminal Procedure Act 51 of 1977 provides that where a confession by an accused person has been made to a magistrate or has been confirmed and reduced to writing in the presence of a magistrate it shall be admissible in evidence against the accused. The subparagraph further provides that the confession shall be presumed, unless the contrary is proved, to have been freely and voluntarily made by the accused in his or her sound and sober senses and without having been unduly influenced to make the confession.

The accused were indicted on two counts of murder and one of robbery. At their trial before Hugo J in the Natal Provincial Division they pleaded not guilty. Two of the accused had made statements before a magistrate which were tendered by the prosecution as admissible confessions. The question arose whether s 217(1)(b)(ii) of the Criminal Procedure Act was inconsistent with the provisions of the Constitution. Counsel for the defence and the prosecution consented in terms of s 101(6) of the Constitution to the trial judge deciding the issue. Notwithstanding the consent, Hugo J refrained from deciding on the validity of the section, referring the matter to the Constitutional Court for decision and adjourning the trial sine die. The Attorney-General of Natal sought direct access to the Constitutional Court in terms of s 100(2) of the Constitution on the grounds that it was in the interests of justice that a binding decision be given as soon as possible on the validity of s 217(1)(b)(ii).

The Court granted the application for direct access. The Court found s 217(1)(b)(ii) to be in violation of s 25(3) of the Constitution (right to a fair trial). It held it to be a longstanding principle of English and South African law of evidence that the prosecution should prove that any confession on which it wished to rely was freely and voluntarily made. Section 217(1)(b)(ii) of the Criminal Procedure Act places on the accused the burden of proving on a balance of probabilities that a confession recorded by a magistrate was not free and voluntary. It is not sufficient for the accused merely to raise a doubt. The section therefore creates a legal burden of rebuttal on the accused -- a so-called 'reverse onus'.

The Court considered the common law rule requiring the prosecution to prove that a confession has been freely and voluntarily made to be inherent in the rights specifically mentioned in s 25(2), s 25(3)(c) and (d) of the Constitution and forms part of the right to a fair trial. These rights are the necessary reinforcement of the principle that the prosecution must prove the guilt of the accused beyond reasonable doubt. Reversing the burden of proof seriously compromises and undermines these rights. It followed that s 217(1)(b)(ii) violates these provisions.

The Court held that the tests of reasonableness, justification and necessity for limitation of fundamental rights set out in s 33(1) of the Constitution are not identical, and in applying each of them individually one will not always get the same result. But in the present case, it was held, reasonableness, justification and necessity may be looked at and assessed together. The rights interfered with are fundamental to concepts of justice and forensic fairness and have existed in South Africa for over 150 years. A drastic consequence of the alteration to the law brought about by s 217(1)(b)(ii) is the possibility that an accused may be convicted over the reasonable doubt of the court. It was not shown by the state that it was impossible or unduly burdensome for the prosecution to discharge its onus under the common law rule. Nor was it shown that the common law rule caused substantial harm to the administration of justice. Even if it were assumed that the reverse onus may in some cases obviate or shorten a trial within a trial on the admissibility of a confession, and released the prosecution from the inconvenience of marshalling and calling their witnesses before the accused gave evidence, these advantages do not outweigh and justify the substantial infringement of fundamental rights that are the result of the application of the subparagraph. Accordingly s 217(1)(b)(ii) does not meet the criteria laid down in s 33(1) of the Constitution. It is declared inconsistent with the Constitution and invalid.

In the absence of a specific order by the Constitutional Court in the interests of justice and good government giving retrospective effect to a declaration that a law is invalid, s 98(6)(a) provides that a declaration of invalidity shall not invalidate anything done or permitted in terms of that law before the coming into effect of the declaration of invalidity. The Court held that the likely result of ordering the declaration of invalidity of s 217(1)(b)(ii) to have full retrospective effect, invalidating earlier rulings on admissibility, would be numerous appeals with the possibility of proceedings de novo. In proceedings de novo the necessary evidence of voluntariness may no longer be available. The Court considered s 98(6)(a) to be intended to ensure that the invalidation of a law existing at the commencement of the Constitution should not ordinarily have retrospective effect, so as to avoid the dislocation and inconvenience of undoing transactions, decisions or actions taken under that law. The Constitutional Court's power to order otherwise in the interests of justice and good government should be exercised circumspectly. In some cases the interests of individuals must be weighed against the interest of avoiding dislocation to the administration of justice and the desirability of a smooth transition from the old to the new. The application of the subparagraph may well have caused injustice to accused persons, but the court cannot repair all past injustice by a simple stroke of the pen. In the present case, it was held, a proper balance could be struck by invalidating the admission of any confession in reliance on s 217(1)(b)(ii) of the Criminal Procedure Act before the date of the declaration of invalidity of the section, but in respect only of trials begun on or after 27 April 1994 and in which the verdict had not been given at the date of the declaration.

The judgment of the Court was delivered by Kentridge AJ and was concurred in by all the other members of the Court.

Source: SAFLII

23 Killed in Sierra Leone

Government troops killed 23 rebels during a six-hour battle in Tihun, Government radio said today. It quoted an army commander, Lieut. Col. Tom Carew, as saying the battle began on Thursday in the southern town when the rebel Revolutionary United Front tried to recapture it. The military Government has taken the offensive against the rebel bases, despite the efforts of foreign envoys to end the civil war, which began in 1991.

On Friday, state radio said Government forces had killed 70 rebels this week and destroyed a rebel base in the Kangari Hills in the north.

Source: New York Times

Strife in Sierra Leone

More than 30,000 Sierra Leoneans have fled into Guinea after a rebel attack on the northern town of Kambia last week, overwhelming towns in the border area, local officials in Guinea said. Mohamed Mounir Camara, the prefect of the border town of Pamelap, said on Saturday that food and drugs were urgently needed.

Rebels struck Kambia last Wednesday, kidnapping seven foreign nuns and a number of local people. The refugees said several people were killed in the attack. At the Gbalamouya border crossing, refugees carrying their belongings on their heads were crossing into Guinea, while others were heading back to collect their belongings.

Source: New York Times

INTELLIGENCE SERVICES OVERSIGHT ACT 40 OF 1994

The purpose of the Intelligence Services Oversight Act is to provide for the establishment of a Committee of Members of Parliament on Intelligence and to define its functions; and for the appointment of Inspectors-General of Intelligence and to define their functions; and to provide for matters connected therewith.

Establishment of Committee on Intelligence

There is hereby established a Parliamentary Committee to be known as the Joint Standing Committee on Intelligence, which shall, subject to the Constitution, perform the oversight functions set out in this Act-

(a) in relation to the intelligence and counter-intelligence functions of the Services, which include the administration, financial management and expenditure of the Services; and
(b) in respect of the administration, financial management and expenditure of the Intelligence Services Entities,

and report thereon to Parliament.

Source: SABINET

NATIONAL STRATEGIC INTELLIGENCE ACT 39 OF 1994

The purpose of the National Strategic Intelligence Act is to define the functions of members of the National Intelligence Structures; to establish a national Intelligence Co-ordinating Committee and to define its functions in respect of intelligence relating to the security of the Republic; and to provide for the appointment of a Co-ordinator for Intelligence as chairperson of the National Intelligence Co-ordinating Committee, and to define his or her functions; and to provide for matters connected therewith.

Functions relating to intelligence

(1) The functions of the National Intelligence Agency shall be:
(a) to gather, correlate, evaluate and analyse domestic intelligence, in order to -
(i) identify any threat or potential threat to the security of the Republic or its people;
(ii) supply intelligence regarding any such threat to the National Intelligence Co-ordinating Committee;
(b) to fulfil the national counter-intelligence responsibilities and for this purpose to conduct and coordinate counter-intelligence and to gather, correlate, evaluate, analyse and interpret information regarding counter-intelligence in order to:
(i) identify any threat or potential threat to the security of the Republic or its people;
(ii) inform the President of any such threat;
(iii) supply (where necessary) intelligence relating to any such threat to the South African Police Service for the purposes of investigating any offence or alleged offence; and
(iv) supply intelligence relating to any such threat to the Department of Home Affairs for the purposes of fulfilment of any immigration function; and
(v) supply intelligence relating to national strategic intelligence to the National Intelligence Co-ordinating Committee;
(c) to gather departmental intelligence at the request of any interested department of State, and, without delay to evaluate and transmit such intelligence and any other intelligence at the disposal of the Agency and which constitutes departmental intelligence, to the department concerned and to National Intelligence Co-ordinating Committee.
(2) It shall, subject to section 3, be the functions of the Service -
(a) to gather, correlate, evaluate and analyse foreign intelligence, excluding foreign military intelligence, in order to -
(i) identify any threat or potential threat to the security of the Republic or its people;
(ii) supply intelligence relating to any such threat to the National Intelligence Co-ordinating Committee;
(b) to institute -
(i) counter-intelligence measures within the Service; and
(ii) in consultation with the Agency, counter-intelligence measures outside the Republic; and
(c) to gather departmental intelligence at the request of any interested department of State, and, without delay to evaluate and transmit such intelligence and any other intelligence at the disposal of the Service and which constitutes departmental intelligence, to the department concerned and to the National Intelligence Co-ordinating Committee.
(3) It shall be the function of the South African Police Service:
(a) to gather, correlate, evaluate, co-ordinate and use crime intelligence in support of the objects of the South African Police Service as contemplated in section 205(3) of the Constitution;
(b) to institute counter-intelligence measures within the South African Police Service;
(c) to supply crime intelligence relating to national strategic intelligence to the National Intelligence Co-ordinating Committee.
(4) The National Defence Force shall, subject to section 3 -
(a) gather, correlate, evaluate and use foreign military intelligence, and supply foreign military intelligence relating to national strategic intelligence to the National Intelligence Co-ordinating Committee, but the National Defence Force shall not gather intelligence of a non-military nature in a covert manner;
(b) gather, correlate, evaluate and use domestic military intelligence excluding covert collection and supply such intelligence to the National Intelligence Co-ordinating Committee; and
(c) institute counter-intelligence measures within the National Defence Force.

Establishment of National Intelligence Co-ordinating Committee ("Nicoc")

(1) There is hereby established a National Intelligence Co-ordinating Committee, which shall consist of -
(b) the Co-ordinator for Intelligence appointed under section 5 (1), who shall be the chairperson;
(c) the Director-General of the National Intelligence Agency;
(d) the Director-General of the South African Secret Service;
(e) the chief of the intelligence division of the National Defence Force; and
(f) the head of the intelligence division of the South African Police Service,
or the alternates of the persons mentioned in paragraphs (b) to (f), and such members of departments of State who are co-opted by Nicoc on a permanent or an ad hoc basis.
(2) The functions of Nicoc shall be -
(a) to co-ordinate the intelligence supplied by the members of the National Intelligence Structures to Nicoc and interpret such intelligence for use by the State and the Cabinet for the purposes of -
(i) the detection and identification of any threat or potential threat to the national security of the Republic;
(ii) the protection and promotion of the national interests of the Republic;
(b) for the purposes of the functions contemplated in paragraph (a) -
(i) to coordinate and prioritise intelligence activities within the National Intelligence Structures;
(ii) to prepare and interpret intelligence estimates;
(c) to produce and disseminate intelligence which may have an influence on any state policy with regard to matters referred to in paragraph (a) for consideration by the Cabinet;
(d) after consultation with the departments of the State entrusted with the maintenance of the security of the Republic, to coordinate the flow of national strategic intelligence between such departments;
(e) at the request of any Department of State, to coordinate the gathering of intelligence and without delay to evaluate and transmit such intelligence and any other intelligence at the disposal of the National Intelligence Structures and which constitutes departmental intelligence, to the department concerned; and
(f) to make recommendations to the Cabinet on intelligence priorities.
(3) The Agency shall provide logistical, technical and administrative support to Nicoc.

Source: SABINET