If it were enacted as it stands, the anti-terrorism Bill now before Parliament would outlaw most contemporary political protest — including action for land, cheaper electricity and universal access to anti-Aids drugs. This is because there is no clear definition of what constitutes a “terrorist act”.
Reading through the definitional 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 arrive at one. They have not succeeded.
Instead, the drafters have only confounded and confused both the definition of the crime of terrorism and the manner in which it ought to be tackled.
Because the word is itself so ill-defined, the anti-terrorism Bill will seriously impact on individual civil and political liberties because without a proper definition, any activity can be drawn into its ambit.
The current Bill, which was placed before Parliament last month, contains none of the political, religious and ideological baggage that characterised the draft
versions. This was a response to criticism that its ambit was too wide, too prescriptive and too speculative.
The Bill has been thoroughly trimmed down making it perhaps one of the shortest Bills in comparison with the many other countries that have passed similar legislation post September 11 2001. But this does not deal with the problem.
In the Bill a terrorist act is defined as “an unlawful act, committed in
or outside the Republic, which is a conventional offence”, or which “is likely to intimidate the public or a segment of the public”.
The conventional offences are internationally recognised terrorist activities like aeroplane hijacking, kidnapping, transporting illegal nuclear material, planting or detonating bombs. Putting these aside, 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 drafters have sanctioned subjectivity and speculation as the foundational basis for prosecuting the offence of terrorism. This makes it difficult to distinguish a terrorist act from the lawful or even unlawful but common activities of a whole range of individuals and organisations.
What is more worrying, though, is the manner in which the Bill could limit radical political protest in South Africa. One can easily surmise that the activities of social movements such as the Anti-Privatisation Forum (APF), the Landless People’s Movement (LPM) and the Treatment Action Campaign (TAC) will soon come under the attention of this legislation.
Take for example Operation Khanyisa, the illegal reconnection of electricity from disconnected households in Johannesburg by the Soweto Electricity Crisis Committee, an affiliate of the APF. This operation falls within the parameters of the Bill because firstly, it is unlawful, and secondly, it is meant to dissuade the city council from going ahead with cut-offs.
A similar fate will befall the protest activities of the LPM in its demand for land and a stop to forced removals. In the past two years the LPM has been on the receiving end of much of the government’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 TAC 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 the draft law grants to law enforcement agencies to interrogate individuals, the drastic provisions that 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 terrorist and ban them will seriously circumscribe the field of political activity.
In the 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”. While we believe it brought no respite because it meant that the state would now be able to police the spectrum of dissent much more closely, it is still worrying that this provision has now 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.
The government cannot be allowed to introduce a law that fails to secure a clear separation between the extra-ordinary offence of terrorism and normal criminal activity.
Simon Kimani is the head of the anti-censorship programme at the Freedom of Expression Institute