In whose interest? South Africa ’s new Anti-Terrorism Bill is a monster in the making

(Article published as "Hard to tie down terrorism", Sowetan, 4/04/2003)

Not long ago, two articles on terrorism appeared in the local press and though they were important, they failed to ignite any noticeable degree of media or public interest. The first one reported that Africa’s premier anti-terrorism center had been opened in the small Botswana town of Otse under the guidance and support of the United States . The second one quietly told readers that the South African Reserve Bank had issued a blacklist of 400 people and companies associated with the Al Qaeda as part of the international campaign to shut down financial networks which provide support for terrorist groupings.

About a week earlier, government had tabled the Anti-Terrorism Bill in Parliament, a move that once again passed by with scarcely a hint of interest from the public.  For almost three years government has been attempting without much success to introduce legislation that would cater specifically for the crime of terrorism in South Africa . After the initial setback in year 2000, the state once again seized the opportunity presented by the attacks in the United States on September 11 2001 to make a second attempt at the re-introduction of such legislation in the country.

A draft Anti-Terrorism Bill appeared on the government’s website in September 2002 for comment and debate. There was little publicity around this draft legislation and since then, and well until the tabling of the much-downsized version in Parliament on 10 March, there has been virtually no effort to publicise its presence.

The problem with this new Bill is that it does not deviate significantly from its predecessor. It is fundamentally flawed and the logic behind its motivation remains unclear. Its preamble is essentially a recitation of international doctrine with repeated calls about the need to support the global community in the crusade against terrorism. But with the US and the UK having decided to flaunt international opinion and wage war contrary to the Charter of the United Nations, one wonders whether there is still any conceivable sense of talking about a community of nations with shared values and ideals.

Terrorism is an offence that attracts some of the severest penalties known in law and it would have been thought that the Bill would at least attempt to provide a simple, clear and unambiguous definition of this crime.  Unfortunately this has not been done and what the Bill does instead is to offer an incomprehensible explanation of what is meant not by terrorism, but by a ‘terrorist act’. It calls this “… an unlawful act … that is likely to intimidate the public or a segment of the public”.

Such a wide and vague definition could be used to proscribe a whole range of civil and political activities such as demands for land, demonstrations, pickets or a civil disobedience campaign. Even the state’s legal drafters acknowledge that it is not easy to define properly what is terrorism. An explanatory memorandum accompanying the 2002 draft Bill states that “terrorism as a phenomenon” can not be defined, while during a briefing to the Safety and Security Portfolio Committee, it was argued that the Bill could only define a ‘terrorist act’ because of “a lack of international agreement on what constitutes terrorism”.

In the voluminous report on security legislation done by the South African Law Commission and which formed the basis of the draft Bill, it was argued strongly that terrorism is ideologically, politically or religiously driven.  This is the reason why terrorists commit acts well beyond the normal range of what ordinary criminals do. Such underpinning essentially informs the rationale behind imposing punitive sanctions for acts of terror. This line of argument was well reflected in the draft version but in contrast, the definition of ‘terrorist act’ provided by the final Bill has totally steered away from this paradigm.

It is not easy to understand the motivation behind such shift, but it should be noted that this is the third attempt on the part of legal drafters to arrive at a definition of terrorist act. The flawed nature of their latest attempt points to the fact that reaching a satisfactory definition of terrorism is all but impossible and if that is the case, then it is extremely dangerous to criminalise actions that cannot even be properly defined.

Alongside with imposing severe sentences of up to life imprisonment for a variety of offences, the Bill also moves out of the ambit of normal criminal justice inquiry by empowering police offices to secure orders to question individuals through what it calls ‘investigative hearings’. Government has often claimed that these kinds of hearings are the alternative to the politically unpalatable option of detention without trial, because law enforcement agencies will be able to secure crucial information without trampling on the safeguards enacted by the Constitution. It is an argument that found little favour with human rights groups in Canada from where the provision is borrowed. Consequently, the Canadian government agreed to a five-year sunset clause after which the provision will be reviewed, and possibly revoked.

One feature of the Bill that is likely to draw a lot of interest from individuals and groups is the power granted to the Minister of Safety and Security to ‘black list’ organisations, which he suspects, sometimes on questionable evidence, of committing terrorist acts. Again this is not a new innovation by the drafters. It is a central prong of the 1996 US Anti-Terrorism and Effective Death Penalty Act, and the 2001 USA Patriot Act, which allow the State Department to black list foreign and local organisations, seize their assets and freeze their bank accounts. Since the enactment of these provisions, a wide grouping of organisations ranging from welfare associations to the Popular Front for the Liberation of Palestine have found themselves slapped with banning orders.

As some opponents have argued, the Anti-Terrorism Bill is not in the interests of South Africa because anti-terrorism laws are yet another feature of imperialist hegemony. They are being forced on weaker states by powerful nations, mainly the US and the UK in their prosecution of the war against terror. With the invasion of Iraq , anti-US and anti-UK sentiments have shot up dramatically and there is a very strong likelihood of retaliatory actions in many parts of the globe.

South Africa must not and should not allow itself to become embedded unwittingly within the grand designs of the imperialist states. There is a handy lesson close by in Mozambique where attempts to pass anti-terrorism legislation floundered due to strong opposition from human rights organisations and the Muslim community. So far, no one has accused the Mozambican government of failing to abide by its international commitments.

True, government would be ill advised not to respond to the challenges thrown up by the events of September 11, but the way to do this is to allocate more resources towards the detection and prosecution of crimes and activities covered by the Bill. There are already more than twenty-two pieces of legislation covering the nature of crimes sort to be penalised by the Bill. These, one may argue, are more than enough to take care of terrorism in the country.

Simon Kimani

Head: Anti-Censorship Programme
Freedom of Expression Institute

31 March, 2003