Khadija Magardie
South Africa’s controversial draft anti-terror legislation will remain on the back-burner at least until the middle of next year
In the wake of the September 11 terror attacks on the United States, speculation has mounted that the government is under pressure to show its commitment to ending global terrorism by pushing through draft legislation so dogged by controversy that it received mention in Amnesty International’s 2001 human rights report. But law drafters say the government could be exploring other options in the short term.
The draft Anti-Terrorism Bill, spawned out of the urban terror campaigns in the Western Cape in the late 1990s, was severely criticised for its apparently “impossibly wide” definition of what constituted terrorist activity, as well as its curbing of civil liberties. One provision, which has come in for a particular hammering, allows for a 14-day detention without charge. Following its release for public comment, it was returned to law drafters late last year.
But the South African Law Commission said this week that out of procedural considerations alone, it was unlikely the draft Bill would resurface before the middle of next year.
According to Pierre van Wyk, who heads a working group on the draft Bill, the controversy surrounding the draft legislation meant it would take longer to evaluate the comments and responses. And because the US attacks have put terrorism at the top of the global agenda, the commission was waiting for the outcome of deliberations at the United Nations in order to incorporate any of its provisions in the final draft Bill.
After the law commission’s project committees have evaluated the Bill, it will go to the Ministers of Justice and Safety and Security, and then the Cabinet, for approval.
Van Wyk said there were short-term measures the government could adopt in the absence of an “omnibus” anti-terrorism Act. The International Convention for the Suppression of the Financing of Terrorism adopted by the UN in 1999, is one such measure.
The accord contains several key definitions of what constitutes terrorist activity, and sets out provisions by which governments can prevent funds raised by individuals or groups ending up in the coffers of terrorist groups. It goes on to empower each state to make the listed offences “punishable by appropriate penalties which take into account the grave nature of the offence”. South Africa has not yet ratified the convention.
Van Wyk says stemming funds to identified terrorist organisations through the convention, and either amending or introducing domestic legislation to facilitate the process is the more practical, realistic, short-term option for South Africa, in the absence of specific anti-terrorism legislation.
Stressing that much more work needed to go into the draft legislation, Van Wyk said it would be “foolish” to steamroll the draft Bill.
But regardless of whether the thorny piece of legislation takes everyone’s fancy may not be the issue. The government is reportedly being exhorted from certain international quarters to push through the legislation to prove its bona fides as an enemy of terrorism.
Speaking during a visit to the offices of the Muslim Judicial Council in Cape Town, target of an arson attack soon after the September 11 incidents, Minister of Justice Penuell Maduna said the government was “under pressure” and needed to act urgently to tie up its legislative loose ends. Maduna is reportedly anxious that, having attended several international conferences on terrorism and interacted with officials from countries that had specific anti-terror laws, South Africa still did not have any.
Similar sentiments were expressed this week by Minister of Safety and Security Steve Tshwete. His spokesman Andre Martin said South Africa was under pressure to act against global terrorism. He said the country was a signatory to a number of agreements related to international crime, as well as UN anti-terrorism conventions and needed to bring domestic statutes in line with those of the UN.
“For South Africa to say it does not have dedicated anti-terrorism laws places us under pressure,” Martin said.
Last week the UN Security Council passed a resolution obliging member states to adopt stringent measures to hamstring terror groups or face either sanctions or military force.
Several sources within the African National Congress said it was “expected” that certain countries would attempt to influence the government to reverse the decision to send the Anti-Terrorism Bill back to the drawing board.
According to one source, South Africa’s strategic position it chairs the Non-Aligned Movement (NAM), and will also play host to a high-level NAM ministerial meeting early next year meant government would need to put concrete plans on the table to show its commitment to combating international terrorism.
But the government has been circumspect in the face of pressure. Officials in several key departments said the country would do its bit in terms of its international treaty obligations but denied they were planning to prematurely push through legislation.
In the week the UN General Assembly convened a special session to discuss the implications of terrorism and plot a way forward, the Department of Foreign Affairs reaffirmed South Africa’s intention to cooperate with all efforts to apprehend the culprits behind the US attacks.
The government has from the outset ruled out military involvement in “the operations envisaged by the US administration”, but has said it would offer any assistance required “within the limits of its capacity”.
The language, nevertheless, is clear the South African government will not be bullied into taking arbitrary action. The South Africans were reportedly angered by the US’s listing of several local organisations, such as People Against Gangsterism and Drugs (Pagad) and Qibla on its terrorist organisations target list, without prior consultation. The US is currently lobbying for the adoption of its list by the UN.
The Deputy Director General in the Department of Foreign Affairs, Abdul Minty, said the government would take part in discussions on the course of world action but only “within the context of regional and other multilateral organisations to which we belong, including the UN”.
Acknowledging it was “likely” the anti-terrorism legislation would be re-examined, he said South Africa had signed several international conventions that carried weight in terms of curbing terrorist activity. Among these are UN Security Council resolutions proscribing a range of activities within the borders of individual countries that constitute threats to international peace and security.
Stressing the need to “avoid unilateralism” which could read as a veiled reference to the US, as opposed to the UN, drawing up a chargesheet and leading a subsequent charge he said there were no agreed definitions of what constituted terrorism, or a terrorist organisation. Moreover, South Africa was not in possession of any proof indicating who masterminded the US attacks.
“It simply wouldn’t be enough if, for instance, one country says, here they are, now march with us,” said Minty.