Not only has the media failed them: Parliament and government has failed them; our democracy and sadly, to a great extent, civil society has failed them too. We have collectively failed the Thulsie twins.
My reasons for believing this are set out in this article.
On 7 February 2022 the Voice of America (VOA) website reported:
“Tony-Lee Thulsie and Brandon-Lee Thulsie, both 28, were arrested in South Africa in July 2016 and have been held in custody since. The arrests of the brothers in 2016 were the first in South Africa relating to alleged IS membership.” According to the VOA report, the brothers planned attacks against US, British, Russian or French diplomats in Pretoria, as well as Jewish institutions.
Details of the plea bargain with South African prosecutors, which included the sentencing by the Johannesburg high court, are reported thus: “Tony-Lee [was served with] an 11-year jail term, while Brandon-Lee was sentenced to eight years. Both pleaded guilty to planning to travel to Syria to join IS, media reports said. Tony-Lee also admitted to planning a terrorist attack in South Africa.”
First off, I must state that the very idea (not action) that they could have contemplated killing innocent people, particularly Jewish people at their places of worship, was wrong and was rightfully criticised.
Local media have brought the name of the cartoonist Jonathan Shapiro (“Zapiro”) as being on a hit list as contained in one of the original charges, although this was not what they pleaded guilty to nor was this a charge pursued by the state.
I love Zapiro and count him as a friend and comrade. Over the years our paths crossed many times. For example, a notable experience was during a Muslim Views convened conference in late 2006, where we shared a platform and discussed matters of media, faith, justice and international solidarity. I cannot come to grips with the idea that people could “think of harming him” or any other person for their ideas. People cannot be prosecuted or harmed for their thinking or dissenting. This case tests these principles in our everyday lives and in the courts.
My first call is simple: Can we please call the Thulsie brothers by their real names? They have the right to dignity and to be called by their names in line with their faith. They are not the “Terror Twins”, as the South African Jewish Report was the first to call them in its 20 July 2016 report.
Brandon-Lee and Tony-Lee Thulsie now go by the names Sallahuddin and Yakeen, respectively. The media owes them that, at least.
Secondly, as regards balanced media reporting, almost all the media houses were found wanting. Nadeem Mohammed, the lawyer for the Thulsies, told local humanitarian news outlet Salaamedia that “none of the non-Muslim media houses, save for The Citizen” had contacted him for comment. They simply went with the mainstream line, and I quote from social media and web page comments, that “The boys are terrorists”, “They pleaded guilty to terrorist acts”, “We’ve been saved from these bombers” and “They should be locked up and the key thrown away.”
The accused are being charged with offences in terms of the Protection of Constitutional Democracy against Terrorist and Related Activities Act (Pocdatara). This act was gazetted on 11 February 2005 (No. 27266).
To date, only two cases, as far as I know, have been heard under this act, the other involving local white right-wingers. This means that the argument posited in 2003, that South Africa has sufficient laws to deal with terrorism and did not need this new act, may have some truth to it. Suffice to say that the opening lines of the Pocdatara preamble read:
“Whereas the Republic of South Africa is a constitutional democracy where fundamental human rights, such as the right to life and free political activity, are constitutionally enshrined …”
Yet the practice of this act, as revealed in this matter, does not show the “best constitution in the world” — as President Cyril Ramaphosa boasted at his State of the Nation Address recently. If it is the best constitution in the world it should also be for the poor, the hungry, the marginalised and the victims of terror, real and imagined.
Pocdatara Act, or the “terrorism act”, had a hasty, nasty and rushed caesarean birth. It was controversially pushed through Parliament in 2005 by the ANC government under the leadership of then-president Thabo Mbeki. Before that, there had been allegations that the US had been pushing for the adoption of such anti-terror laws throughout the world, and that South Africa adopting such a law was the African cherry on top.
The brothers were kept as awaiting trial prisoners for close to six years. This amounts to detention without trial. Keeping people in jail without charges undermines the principle of the presumption of innocence, the rule of law and due process under South African law as well as international law.
South Africa was celebrated for campaigning against torture and unfair detentions in its war against apartheid, but it seems that under the rubric of the “war on terror” our hard-won rights to freedom of association, freedom of expression and freedom from arbitrary imprisonment and torture, as well freedom from racism and to believe as we choose, have been thrown away.
Our own history against repression has taught us that justice delayed is justice denied, and it begs the question as to why this has happened.
In a written reply to Parliament to questions from the leader of the Al Jamah-ah Party MGE Hendricks, the minister of justice and correctional services explained the delays as being:
“…caused by the various interlocutory applications brought by the accused and the continuous change of legal teams by the accused and not by the State.”
The Minister also argued that “On 18 July 2016, the defence brought a request for disclosure of the case docket in preparation of a bail application.”
In its reportage, the Daily Maverick (see Bheki Simelane and Peter Fabricius, 7 February 2022) noted that “the delays included an unsuccessful attempt by the Thulsies to seek bail as well as an ongoing effort by their defence team to have their case dismissed or referred back from the high court to the regional court where the case had started in 2016.
The defence claimed the case had been wrongfully transferred to the high court.”
However, this does not detract from the fact that it is the role of power holders, like the state, to ensure that those charged are provided full information and support to defend themselves in line with the administration of justice.
Due process, the presumption of innocence and other principles must be applied by the government and the justice authorities to set an example to society at large.
The Department of Justice and Correctional Services is the custodian of our Constitution and a guide to our democracy. As an arm of government, the ministry must set out to do right and just and not blame the victims. The ministry, the department and the institutions that are supposed to support democracy, like the SA Human Rights Commission or the Commission for Gender Equality, are obliged by law to ensure the rights to a fair trial and the presumption of innocence.
This has been flouted.
We still hear many commentators in the mainstream and on social media platforms argue that the evidence of terrorism, in this case, is “overwhelming”.
I was saddened to hear a radio presenter comment during a prime time slot that the state “clearly has so much evidence”.
Really? This evidence is never discussed. However, what should be of concern for us is that with such a broad definition of terrorism anyone can fall foul of the law, which I believe is unconstitutional.
It has been argued by groups such as the Media Review Network (MRN) that Sallahuddin and Yakeen have always wanted their day in court. However, the plea deal has closed this path.
What remains a topic for debate are the arguments the MRN has put out in the public domain. It alleges entrapment by undercover intelligence agents who baited the Thulsies. According to an article in Salaamedia in his judgement and sentencing, Judge Ratha Mokgoatlheng “maintained this is only the second trial of a criminal matter that has been adjudicated in accordance with Pocdatara and it is vastly distinguishable from the first”.
The report goes on to say, that having read the plea and sentence agreement Judge Mokgoatlhleng said:
“The boys were motivated by ideological beliefs and their faith, but this court does not punish people for their ideological beliefs and for their faith. … It is only when the belief or the faith culminates in conduct which is criminal in accordance with the statutes of our country. Even then, having read what was stated in the agreement, the boys were baited, the boys were controlled, and the boys were conspired against by their own friends. It is only by virtue of their association with that criminal that they were ultimately convicted.”
The same article gives Sallahuddin and Yakeen’s background as well as their thinking and the motivations behind them wanting to leave the country.
Their father had been killed when they were three years old and they were raised by a single mother. It was a loving but tough upbringing, during which it is believed the youngsters were under varied influences. They embraced Islam when they were 14 years old.
They desired to live under Islamic law and what they believed would be a perfect life. I quote:
“‘For that reason, they opted to go to the first place they believed they could go to and that happened to be Syria and it happened to be with a guy who was radicalised by Islamic State in Iraq and the Levant (ISIL) and [who] did want to fight for [ISIL]. They didn’t want to fight but they were hitching a ride on the wrong wagon. That’s it. But that unfortunately is a crime,’ says a source close to the case.”
The lawyers representing the brothers had to deal with many unknowns such as who a mysterious person named “Abu Harb” is. Was he an undercover agent, a mole or seeking to entrap these young people for some ulterior motives? The plea of guilty to the supposedly “identified” establishments and people went according to the prompts and the requests he “specifically” asked for.
Sources with knowledge of the case who are close to the family as well as Sallahuddin and Yakeen hold that they were trapped and never contemplated killing or harming a single person.
The Jamestown Foundation, whose board members consist of retired US military personnel, reported on its website that the Thulsies’ friend Renaldo Smith was “questioned by security authorities and became a witness. However, Smith later disappeared until resurfacing in May 2018 in northern Mozambique’s Cabo Delgado province, where he joined the jihadist group that locally calls itself ‘al-Shabaab’ but one year later became Islamic State in Central Africa Province (Iscap). A photograph circulating among IS supporters on Telegram showed Smith and other jihadists in Mozambique posing in a field with weapons and the black-and-white Islamic State flag.”
A state witness simply goes missing and is now working with terror groups in Mozambique?
This is a dereliction of duty on the part of the State. The failure of justice is clear and needs further investigation. This would have been a story for the media and all of us to have explored, but that avenue has been closed now.
This is why there is an urgent need for action, but where was or is civil society?
Oversight of civil society and the media
South African civil society has been weakened, but it was not always like this.
The MRN’s Iqbal Jassat, in an article in The Citizen on 18 July 2003 headed “Anti-Terror Bill Overkill”, pointed out that there were over 20 human rights organisations including Cosatu, the United Ulama Council, the South African Council of Churches (SACC), the Legal Resources Centre, the South African National Editors’ Forum, the Media Institute of South Africa, Freedom of Expression Institute and the MRN that opposed what they called the Anti-Terror Bill (ATB).
Jassat quotes Cape Bar Council representative Michael Donen SC as saying that the “ATB threw its net so wide that even the ‘theft of a chicken’ or ‘parking in a loading zone’ could be construed as terrorism”.
Elsewhere, human rights groups have been fighting such laws and winning in courts. In the UK, where Pocdatara-type laws were imposed, the NGO Cage has complained that: “The breadth of terrorism laws in the UK has grown exponentially over the years and has created new terrorism crimes that have little to do with acts of violence.”
The battle lines are drawn: those who stand for equality, justice and fundamental human rights for all have reason to be alarmed at this plea deal on an act that I believe to be so wide off the mark that when justice sees it, it will run scared.
By entering a plea deal with the state, the brothers are taking responsibility for their actions or intended actions.
But what about us in civil society and what about the media?
The media is often called the fourth estate, but they have been missing in action. The Press Council’s constitution shows clear commitment to the Constitution and the Bill of Rights, in particular “freedom of expression — and thus freedom of the press” because, as they state, they believe that “ethical journalism is essential to realising the promise of democracy”.
The fact that the Daily Maverick, the Mail & Guardian and the other papers and media houses reportedly failed to speak with the lawyers of the brothers undermines ethical journalism.
The Ethical Journalism Network writes that: “Most stories have at least two sides. While there is no obligation to present every side in every piece, stories should be balanced and add context. Objectivity is not always possible, but impartial reporting builds trust and confidence.”
What is clear is that apathy seems to be engulfing liberal-left groupings like Cosatu, the South African Federation of Trade Unions and the SACC. Those activists who raised alarms decades ago are now silent and they have left the space open to the conservatives who praise the outcome as a victory for the war on terror.
Why the left and liberals have abdicated their role as custodians of our democracy is a complex question. But it must not be ducked, as the battle is fought only with a handful of genuinely critical voices. We need more voices than those of the brave few who have raised their heads above the parapet. Civil society, Parliament, government, the judiciary — all of us have been asleep.
This case clearly shows that there has been no fairness and there has been no justice. It also does not reflect our better selves, and it undermines our democracy. It is a misreading of the Constitution. Pocdatara must be challenged in the Constitutional Court because it is unconstitutional. DM/MC