We need a new anti-terror law, but not this one

Responses to the anti-terrorism Bill are likely to be coloured by attitudes to the United States, as the draft law bears the stamp of US influence.

A prevailing view is that because it is so influenced, it should be trounced.

South Africa needs a new law — but does it need this one? I believe not.

Among other flaws, the Bill threatens to fundamentally undermine the right to freedom of association — part of the bedrock of our multi-hued and still emergent constitutional state.

New anti-terror legislation was first considered by the South African government during the spate of ”urban terror” that gripped the Western Cape in the late Nineties.

The draft law was, however, given renewed impetus subsequent to the September 11 2001 attacks on the World Trade Centre and other targets in the US.

During this period the US has used its influence both domestically and at the United Nations to push countries like South Africa to pass anti-terror laws.

While after September 11 US mobilisation against terrorism may have been received with some sympathy, the subsequent invasion of Iraq has seen unprecedented levels of hostility to the US, and to policies or laws that appear to be linked to US influence.

But though we may be appalled by the arrogance and belligerence of the US, this does not make us immune to terrorism, and our attitudes to the US should not be what dictate our responses to the anti-terrorism Bill. Instead we should focus on two basic questions. Firstly, do we need new legislation to deal with terrorism? And secondly, what are the foundations on which we aim to build our own responses to potential terrorism?

While there is already a wide range of laws on our statute books that can be used to tackle terrorism there is nothing in principle wrong with democracies trengthening

legislation of this kind.

South Africa’s anti-terror laws were originally designed to uphold the interests of an authoritarian system. Existing laws could be amended or new legislation introduced to serve the purpose of combating terrorism within the parameters provided by the norms of a democratic state and its democratic international obligations. At the end of the day, however, the value of new measures will depend substantially on their quality.

How does the new Bill measure up?

Clearly provisions requiring reporting of the financial affairs of organisations alleged to be linked to threats to public security and that punish the financing of terrorist acts can easily be justified.

But these, potentially the main strengths of the Bill, are themselves undermined by a hopelessly vague definition of the core focus of the Bill, the terrorist acts themselves. Other seriously flawed aspects of the Bill include excessively punitive sentencing provisions and unnecessary limitations on access to bail. On the other hand, the sections allowing for investigative hearings before a judge add little that is significant to existing provisions of this kind.

Most worrying, however, are provisions enabling the government (subject to judicial approval) to outlaw organisations defined as terrorist and that criminalise membership of such organisations. These go beyond the provisions of the 1998 Prevention of Organised Crime Act, which outlaw activities that contribute to the perpetration of criminal acts, but do not criminalise membership of an organisation.

Ironically, the Bill is now being promoted by a government led by a political party that itself was previously outlawed. Were a less democratically minded government to be elected in South Africa, legal provisions of this kind could be used to silence political opposition, in the same way the African National Congress was once silenced.

But the right to freedom of association may be both South Africa’s, and the world’s, firmest bulwark against terrorism.

The Bill risks jeopardising long-term reconciliation in South Africa by undermining the confidence of some who, while they may be displeased with aspects of the new dispensation, at least have the security to pursue their political objectives through non-violent means. Denial of the right to organise and to speak may therefore be a step towards providing opponents of the new dispensation with a justification for violence.

Domestic concerns aside, measures of this kind may also be used by repressive governments elsewhere who outlaw organisations using South Africa’s laws and moral authority to legitimise their actions against those fighting for their democracy and freedom.