Terrorism Profile - South Africa

When the events of September 2001 were taking place in the United States, South Africa was already recovering from an intense debate regarding its Anti-Terrorism Bill. In fact since 1996 the country has been trying to establish an anti-terrorism law.

The country already has a number of laws dealing with internal security, developed in the apartheid era.[1] The 1962 General Law Amendment Act criminalised sabotage to include tampering with any property. Detention laws were created through the 1960s, including the power of 'preventing detention' for up to 12 months at a time. This was geared towards individuals suspected of having committed or intending to commit sabotage or possessing information about such an offence. The Terrorist Act of 1967 created the crime of participating in terrorist activities, and allowed detention without a time limit.

In 1996 the new South African legislature passed the Safety Matters Rationalization Act that repealed a number of the more problematic security statutes. A new policy was devised shortly thereafter that promotes a strategy that upholds the rule of law, does not resort to any form of general and indiscriminate repression; defends and upholds the freedom and security for all; and acknowledges and respects the country's obligations to the international community.[2] In 1998 the South African law Commission began reviewing South African security legislation.

The Anti-Terrorism 2000 bill was introduced to deal with urban terror problems in the Western Cape, involving repeated bombings. In 1999 the South African Police Service drafted an Anti-Terrorism Bill that was then submitted to the Law Commission for review, which then came forward with a draft Anti-Terrorism Bill in 2000. It implemented into law the idea of 'terrorist acts' and 'terrorist organisations'. It then implemented powers to stop and search vehicles and person, detention for the purpose of interrogation of individuals suspected of withholding information.

The South African Human Rights Commission came out against the bill arguing that the definition of terrorism was 'too wide' and could be used against road blockades and trade union activities. The Human Rights Commission also argued that the law involved excessive powers and could infringe civil liberties. One of the most controversial powers in the Anti-Terrorism Bill 2000 was the detention clause, which allowed for detention without trial for up to 14 days.

The terrorist attacks in the U.S. were seen as an opportunity to make the bill into law. According to the Minister of Safety and Security, one of the larger problems with the state of South African law was the failure to acknowledge terrorism as a crime.

"While the world unites to condemn those dastardly acts in the United States, we have to skirt around the issue. We go around making promises to cooperate with everyone but as our law stands, we cannot deal with terrorism. We are the only country that refuses to look terrorism in the face as a unique crime."[3]

The Minister was insisting that the bill was required for South Africa to join the global fight against terrorism. If South Africa did not pass such a law, government ministers warned that the country would become a safe haven for international terrorists and fugitives.

The Law Commission revisited the situation in light of the terrorist attacks, as well as due to the renewed international focus on financing. The Commission also made use of "numerous precedents set by other countries which have passed legislation since September 11, 2001."[4] In August 2002 released a review and a draft bill (in a 1000-page report, incorporating consultation and comparative studies), submitted to the Minister for Justice and Constitutional Development.

The Commission argued that existing laws were inadequate or too narrow to combat terrorism effectively. Also, South African law needed to be made consistent with international conventions, while also providing for extra-territorial jurisdiction. But the Commission removed the 'detention for interrogation' power from the 2000 bill and opted instead for the Canadian model of investigative hearings, which the Commission argues "closely resemble the procedure contained in section 205 of the Criminal Procedure Act of 1977 in order to obtain information from a person suspected of being in possession of information on terrorist acts."[5] A brief period of detention is possible but legal representation and bail may be granted.

The bill also copied directly from the Canadian Anti-Terrorism bill the definition of 'terrorist activity', that excludes activity "taken as a result of lawful advocacy, protest, dissent or stoppage of work." This is despite the fact that the Canadian bill was changed to prevent its application against union activities and 'unlawful' protest. The Law Commission selected the earlier and more problematic language.[6]

Between 2003 and 2004 a number of organizations and experts came forward with their concerns regarding the proposed Anti-Terrorism Bill.

In June 2003, Business Day reported that veteran human rights lawyer George Bizos declared the bill vague and unconstitutional.[7] He questioned why the draft bill had been changed after the Law Commission review of August 2002. The commission draft had given detailed definitions of what constituted an act of terrorism and a terrorist organization, by these had been changed, Bizos said.

The lawyer who spoke on behalf of the Legal Resources Centre questioned the procedures behind declaring an organization "a terrorist organization". According to the bill, an organisation can be proscribed by the Minister, but organisations may then question that decision. The Centre argued that "[t]his effectively shifts the onus of the potentially proscribed organization and calls upon it to defend itself after it has effectively already been found guilty."

According to the Mail & Guardian,[8] the LRC argued: "Vagueness and ambiguity in legislation is an invitation for abuse."

The South African national Editors' Forum (Sanef) took the vagueness point even further by stating:

"The danger with the legislation, as was the case with apartheid era security legislation, is that it is deliberately vague and ill-defined, making it an ideal instrument for selective application against perceived foes by the authorities of the day."

"It is not difficult to see how such powers could be abused and citizens and organisations be denied due process, a cornerstone of any functioning constitutional democracy."[9]

At this same time, the Congress of South African Trade Unions (COSATU) submitted its own comments on the draft bill.

“If enacted in its current form the Bill is likely to make serious inroads into Constitutional rights and freedoms. The broad definition of what constitutes a "terrorist act" poses a serious threat to our hard won democracy, allowing for legitimate mass action by workers or other social movements at some time in the future to be demonised and categorised as ‘terrorist’. For example the bill defines any activity that might result in the "disruption of essential public services" as a ‘terrorist’ act. For unions in the public sector, this is a worryingly vague clause. Would the threatened wildcat strike in Johannesburg’s emergency services be classed as "terrorism"?[10]

Cosatu called for a parliamentary review and a review conducted by the South African Human Rights Commission.

There was also an increasing concern that the law included a clause that allowed detention without trial, 'through the back door'. In the original bill there were provisions for detention without trial but that was removed by the Law Commission. And according to Business Day,[11]

“Justice Minister Penuell Maduna is on record as saying that SA's history of detention without trial meant the new democratic order would never countenance provisions allowing its practice.”

But then during the hearings regarding the bill, the chairman of the Parliament's justice committee told the committee that there was a little clause allowing detention without trial. A professor of international law at the University of SA concurred.

"Special bail procedures apply that in effect bring back detention without trial through the back door, which is another instance of particularly devious legislative drafting, especially because a lot of media hype was created about the alleged dropping of detention without trial in the new bill."

In this situation, the accused are required to provide exceptional circumstances for his or her release on bail. "The onus rests on the accused to prove a position rather than on the state to prove bail should be denied."

Free speech concerns also arose. According to the South African Chapter of the Media Institute for Southern Africa (MISA-SA),

"[Firstly], it's unconstitutional; secondly, the definition of terrorism is extraordinarily broad. Anything you do in terms of demonstrations can be construed as an act of terrorism, and reporting on such an act could be construed as an act of terrorism according to the bill, because a reporter could be construed as aiding and abetting 'a terrorist organisation'."[12]

“far-reaching in the powers they give the authorities to bring people before a hearing - journalists as well as ordinary citizens - [and compel them] to tell what they know about any 'terrorist organisation'. [Giving them the choice to either] comply or go to jail for two or more years". (...)

"[A similar apartheid-era law] was used extensively by the apartheid regime against journalists [to compel them to reveal sources or go to jail], but this is worse. It is much more far-reaching, [and] there are fewer protections for journalists."

“[The bill] will erode the confidential relationship between journalists and their sources, upon which the credibility of the media and security of journalists is maintained, by imposing a duty to supply information of 'terrorist' acts or 'terrorist' organisations, therefore eroding the media's ability to fairly, safely and impartially provide coverage of political conflict in the public interest, in accordance with its constitutional responsibility."

The Freedom of Expression Institute echoes these concerns, claiming that this was again modelled from the Canadian statute, without regard to the the fact that this power was also modelled on Section 205 of the Criminal Procedure Act, which was used repeatedly against journalists in the past.[13]

At the end of February 2004 the bill was temporarily set aside after strike threats from Cosatu.

[1] Martin Schönteich, "Back to the Future? New South African Anti-Terror Law," Terrorism and Political Violence 14, no. 2 (2002).

[2] Ibid.

[3] Ranjeni Munusamy, "SA Puts Anti-Terror Law Back on the Agenda," Sunday Times, September 23 2001.

[4] South African Law Commission, "Media Statement by the South African Law Commission Concerning Its Investigation into Security Legislation: Terrorism (Project 105)," (2002).

[5] Ibid.

[6] Jane Duncan, "Anti-Terrorism Bill Will Stamp on Human Rights," (Freedom of Expression Institute, 2003).

[7] Business Day, "Human Rights Lawyer Leads "Criticism" against Anti-Terrorism Bill," Business Day, Supplied by BBC Worldwide Monitoring, June 24 2003 2004.

[8] Donwald Pressly, "Bizos Takes Sa Anti-Terrorism Bill to Task," Mail & Guardian, June 23 2003.

[9] Mail & Guardian, "Sa Editors Slam 'Vague' Anti-Terror Bill," Mail & Guardian, June 25 2003.

[10] Cosatu, "Cosatu Statement on the Anti-Terrorism Bill," (Johannesburg: Congress of South African Trade Unions, 2003).

[11] Parliamentary Editor, " Detention without Trial in the Back Door'," Business Day, June 25 2003.

[12] IRINnews.org, "South Africa: Journalists Call for Anti-Terror Bill to Be Scrapped," IRINNews, July 10 2003.

[13] Duncan, "Anti-Terrorism Bill Will Stamp on Human Rights."