(FXI/IFEX) – The following is a 30 April 2003 FXI press release: FXI calls for withdrawal of Anti-terrorism Bill The Freedom of Expression Institute (FXI) has made a submission to the South African Portfolio Committee on Safety and Security on the Anti-terrorism Bill, B12-2003. The deadline for submissions is today. This is the third time […]
(FXI/IFEX) – The following is a 30 April 2003 FXI press release:
FXI calls for withdrawal of Anti-terrorism Bill
The Freedom of Expression Institute (FXI) has made a submission to the South African Portfolio Committee on Safety and Security on the Anti-terrorism Bill, B12-2003. The deadline for submissions is today. This is the third time that the government has introduced anti-terrorism legislation; the first two drafts were withdrawn after criticism of their fundamentally flawed nature. The government is attempting to push the legislation through, apparently to meet its international obligations in terms of various United Nations resolutions, especially in the wake of the attacks on the United States on September 11, 2001.
The submission was developed from a series of legal opinions commissioned by the Institute, coupled with many contributions received during a nationwide series of workshops on the Bill.
In the submission, the FXI noted that it was in principle opposed to the introduction of the Bill in South Africa for a variety of reasons, and called for its withdrawal. It further noted that if the Bill is passed, it will impact seriously on individual civil and political liberties, such as the rights to freedom of expression, association, personal security, belief, opinion, assembly and demonstration.
The FXI further noted that the Bill is fundamentally flawed. There is insufficient justification for its introduction, especially given the fact that the government itself has boasted about its ability to curtail domestic ‘terrorist’ activities using existing legislation. Most importantly, the Bill fails, as did its predecessors, to provide a simple, clear and unambiguous definition of what is meant by a terrorist act. The very vague and broad definition of ‘terrorist act’ in the Bill could be used to proscribe a whole range of legitimate civil and political activities in the country, such as demands for land, demonstrations, pickets or civil disobedience campaigns. The actions of South African organisations such as the Treatment Action Campaign, which campaigns for affordable treatment for the HIV-Aids infection, and the Soweto Electricity Crisis Committee, which opposes the cut-offs of electricity in poor areas, could be criminalised as ‘terrorist acts’. In the process, their members and supporters could be subjected to some of the severest penalties possible in South African law.
The FXI argued that the current war against terror is highly charged politically, and that any strictly legal and literal analysis of what is or what constitutes terrorism runs the risk of including the broader political, economic and ideological interests that tend to underlie legislation concerned with maintaining the security of existing state formations. To cite one example, the African National Congress was for many years branded a terrorist organisation in South Africa and the United States.
This bears witness to the fact that, unlike being a murderer, being a ‘terrorist’ is often a function of being on the wrong side of power rather than possessing any inherent and universally disagreeable qualities or having committed a readily identifiable act. This introduces a fair amount of uncertainty and scope for politically coloured interpretation into the definition of the proscription the Bill provides for the offence of terrorism. In terms of both criminal and constitutional jurisprudence, this is problematic.
In its submission, the FXI cautioned that terrorism is an offence in which those who legislate have very immediate, often personal, and certainly vested political and ideological interests. For this reason, the law should not have the effect of advancing sectional and elite interests under the guise of ensuring the safety of the public. Terrorism should also not be allowed to become synonymous with anti-government or, even, anti-state activism, nor should the law include in the compass of terrorism most of the vigorous, direct and effective tactics of political activism that are common in this country. Such activities are more than adequately mediated and handled in terms of existing legislation and policing practices.
There should be an understanding by law-makers that the political expressions of many opposition groups in the country, particularly those rooted within marginalised sectors of our society, will often be militant and even, in rhetoric, seditious. To have drafted legislation in such a way that social movements and militant student or community activists are apt to be sent to prison for the stiff terms provided in the Bill, is to create a very dubious domestic political instrument indeed.
Because politics is often about struggling against the policies of government or for a completely different kind of state, legislation that purports to deal with terrorism must be scrutinized very carefully to ensure that it does not proscribe legitimate struggle, inhibit fundamental rights and freedoms and ensconce the powerful.
Many political commentators have suggested that countries passing anti-terrorism legislation are using the events of September 11 and the purported need for such laws to establish a legal system to crush political dissent, especially because of the international support that many domestic political struggles now entail. Such legislation is also being used by the US and the European Union to further the US imperialist agenda, especially in relation to the Middle East. Legitimate national liberation movements have been criminalised as terrorist, especially those fighting for Palestinian national liberation and wars of national liberation in other parts of the world. Black people, Muslims, socialists, anti-imperialists and Muslims have been targeted especially by such legislation. In the process, a vital distinction recognised by the Organisation of African Unity’s Algiers Convention of 1999 is ignored. The Convention states that ‘…the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including the armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts’.
As an offence, terrorism is not an easy concept to define, a fact which even the state’s own legal drafters explicitly acknowledge. The explanatory memorandum accompanying the 2002 draft Bill states that “terrorism as a phenomenon” cannot be defined. Similarly, during a briefing by the South African Law Commission and the South African Police Services to the Safety and Security Portfolio Committee on January 29, 2003, it was argued that the Anti-terrorism Bill could only define a ‘terrorist act’ because of “a lack of international agreement on what constitutes terrorism”.
The FXI further noted that the Bill represented the third attempt on the part of the present democratic government to arrive at a definition of a terrorist act for purposes of legislation in South Africa. The first attempts to do so in the Draft Anti-Terrorism Bill of 2000 failed, and the draft 2002 Bill, which underpins the Anti-terrorism Bill, betrayed the same difficulties. The flawed nature of the state’s latest attempt to define terrorism or terrorist acts points to the fact that reaching a satisfactory definition of this offence is all but impossible and if that is the case, then it is extremely dangerous to criminalise actions that cannot even be properly defined. Also, terrorism as an offence is well covered by existing laws, with the crimes that the Anti-Terrorism Bill seeks to proscribe being punishable under South African common law and criminal procedures.
The submission is divided into two chapters. The first chapter critically analyses international jurisdictions that have passed similar legislation and considers how the anti-terrorism laws have been debated and opposed or passed, both in the public sphere and by the legislatures. It also presents a critical perspective of the European Union-wide measures implemented to tackle domestic and international terrorism and analyses the trends emerging from the manner in which the anti-terrorism laws have been implemented. This chapter also considers how particular individuals and groups have been specifically targeted in the so-called ‘anti-terrorism drive’, and the activities which led or have led to their being targeted. Finally, a summary is presented of how these anti-terrorism laws have impacted on or affected fundamental rights and freedoms, including the right to freedom of expression, and the impact which similar legislation could have on human rights and fundamental freedoms in South Africa.
Chapter two of the submission examines the content and substance of the Anti-Terrorism Bill by subjecting it to a critical socio-economic and legal inquiry. It dwells at length on the definition of ‘terrorist act’, as this forms the fundamental rationale for the introduction of anti-terrorism legislation. It also considers other contentious aspects of the Bill, such as the offences and penalties, the stringent bail conditions, investigative hearings, the blacklisting of organisations and the admission of secret evidence.
The full submission can be found on the FXI website at http://www.fxi.org.za/whats.htm
