 |
|
|
SA’s Anti- Terrorism Bill is misconceivedReading through the definition sections of the draft anti-terrorism bills of 2000 and 2002, one senses a degree of frustration on the part of the state’s legal drafters in trying to come up with a clear meaning of what they mean by the term ‘terrorist act’. In the final analysis though, the lawmaker has only succeeded in confounding and confusing both the definition of the crime of terrorism, as well as the manner in which it ought to be tackled. It stands to reason that if passed, the Anti-Terrorism Bill (ATB) will seriously impact on individual civil and political liberties such as the rights to freedom of expression, association, security of the person, belief, opinion, assembly and demonstration. The definition of ‘terrorist act’ provided in the bill does not justify the enactment of this legislation, the extensive limitation of rights and the failure to use existing common law and criminal procedures to deal with the kind of offences it seeks to punish. There is the real threat that political dissenters and groups will be investigated, interrogated and prosecuted under an imprecise offence. Quite surprisingly the current bill, which was placed before Parliament on 10 March 2003 contains none of the political, religious and ideological baggage that, characterised the draft versions. Its content has been thoroughly trimmed down making it perhaps one of the shortest bills in comparison with the many jurisdictions that have passed similar legislation post September 11 2001. In the bill, a terrorist act is defined as " an unlawful act, committed in or outside the Republic, which is a convention offence”, or which “is likely to intimidate the public or a segment of the public”. Putting the convention offences to one side, it is in the second element of this definition that the state creates the same conceptual problems it has all along been struggling to overcome. By using the word ‘likely’, the state has sanctioned subjectivity and speculation as the foundational basis for prosecuting the offence of terrorism therefore making it difficult to distinguish a terrorist act from the lawful or even unlawful but common activities of a whole range of individuals and organisations. For instance if as happened last July municipal workers go on an extended strike with the objective of forcing government to meet their demands, they would be guilty of a terrorist act. This is because being in the essential services sector, they may not lawfully refuse to pick up garbage after 14 days. At this stage, their strike is no longer lawful, nor are pickets that they organize in support of this action. What is more worrying though is the manner in which the bill interfaces with the terrain of radical political protest in
Take for example Operation Khanyisa, the illegal reconnection of electricity from disconnected households in
Had this legislation been in place last year when a demonstration by members of the SECC outside the house of
A similar fate will befall the protest activities of the LPM in their demand for land and a stop to forced removals. In the last few years, the LPM has been on the receiving end of much of the state’s repressive apparatus including the forceful dispersal of lawful demonstrations, arrest and prosecution of its members and harassment by the state’s security agencies. Recently, the TAC has embarked on a civil disobedience campaign with the aim of compelling the state to provide anti-retroviral treatment for people living with HIV/Aids. Because the TAC’s action is unlawful, and because it is meant to elicit a particular response from the state, it is not too far-fetched to presume that the government, once tired of such antics, could charge its members under the anti-terrorism legislation. It may be argued that this legislation will not be used to target such activities, but the point is that, in terms of the definition, the state has the leeway, should it wish to do so, to treat all the above actions as terrorist acts. It is a chilling thought especially when one takes into account the wide powers granted to law enforcement agencies to interrogate individuals, the drastic provisions which make it almost impossible for a person to be released on bail and the limited rights an individual will enjoy during an investigative hearing. At the same time, the broad powers granted to the Minister of Safety and Security to declare organisations as terrorist and ban them will seriously circumscribe the field of political activity. In the draft 2002 bill, the state sought to allay fears raised about possible repression of legitimate protest by deigning to exclude from the compass of the bill lawful political advocacy. It brought no respite at all because it meant that the state could now be able to police the spectrum of dissent much more closely. This provision has for some reason been left out of the present bill. The failure to provide a reasonably precise definition of a terrorist act means that the bill does not pass the required constitutional muster. Had the state managed to do this, it could have supplied the justification required to limit fundamental rights and freedoms in the constitution. Such being the case, the state cannot be allowed to introduce a law that fails to disclose a clear separation between the extra-ordinary offence of terrorism and normal criminal activity.
Head: Anti-Censorship Programme 12 April, 2003 |