The process of bringing domestic legislation in line with the international anti-terrorist agenda is glibly referred to as ‘harmonisation”, and South Africa is one of the countries in the midst of it. Yet aside from a few opinion columns decrying potential threats to hard-won constitutional freedoms, it’s a process that has not received any significant coverage in the local media.
In our case, harmonisation entails enactment of the proposed Anti-Terrorism Bill. A big concern is the bill’s failure to provide an adequate definition of the crime of terrorism. Despite this failure, some of the law’s heaviest penalties – ranging from life imprisonment to fines of up to R100 million – can be imposed on any person or entity found guilty.
The drafters of the bill grappled with the definition of terrorism for some time, and after several attempts chose to side-step the issue by using the term ‘terrorist activity”. It was acknowledged that this route was preferred because of a “lack of international agreement on what constitutes terrorism.”
Yet in the bill’s earlier drafts, even the definitions of terrorist activity employed were so broad that there was concern that they could encompass the activities of any number of civil or political organisations. An attempt has been made in the latest draft to rectify the situation.
The current bill defines terrorist activity in three ways. First, in terms of the destructive consequences of such activity – violence, exposure of the public or the environment to hazardous bio-chemical materials, interference with or disruption of essential services. Second, by the intention behind the activity – whether it is meant to threaten the integrity of the state, intimidate the public, or unduly compel any organisation to do or refrain from doing something. Third, the activity must have been committed (in whole or in part) to achieve a political, religious, ideological or philosophical end.
While the updated definition comes closer to distinguishing the crime of terrorism from ordinary criminal activity, it could still be used to target political demonstrations and civil disobedience campaigns. It is probably for this reason that the bill excludes from its definition of terrorist activity ‘any act committed in pursuance of any lawful protest, dissent or industrial action” – but only if no harm has been caused or services disrupted.
Also excluded is ‘any act committed during a struggle waged by peoples, including any action during an armed struggle, in the exercise or furtherance of their legitimate right to national liberation, self determination and independence—in accordance with principles of international law”.
Nevertheless, between the definitions and the exclusions, there is still ambiguity. This is a problem, not just because of the penalties imposed, but because of the wide powers of investigation and interrogation granted in respect of any person known or suspected to be involved in terrorist activity.
Journalists should be aware that the bill empowers the director of public prosecutions to institute investigations – before any civil or criminal proceedings have started – in cases where he believes a person is in possession of information relevant to terrorist activity.
Ultimately, imprecise definitions of words like “communist” or “terrorist” open the doors to abuse of power. If the media does not pick up on the legislative changes in this arena, the potential for abuse is exacerbated.
(At the time of going to print the Anti-Terrorism Bill had been passed under a new name, ‘The Protection of Constitutional Democracy Against Terrorist and Related Activities Bill”. It is anticipated that the bill will be made law before the end of 2003.)
Karen Willenberg is an attorney with Rosin Wright Rosengarten, a firm specialising in entertainment and media law based in Johannesburg.