A draconian new anti-terrorism bill

The proposal to detain suspected terrorists for 14 days without charge is an ominous reminder of the apartheid era. Comment by Martin Schönteich.

A DRAFT anti-terrorism bill proposes to consolidate South Africa's security laws. The bill is the government's reaction to the bombings that have plagued Cape Town since 1994 and the public pressure they have provoked to act against the perpetrators. But some of its provisions, such as an excessively broad definition of terrorism and permitting the 14-day detention of suspects for interrogation, sound depressingly familiar.

Initially, most bombings occurred in the context of internecine gang warfare and vigilante action against criminal gangs and suspected drug dealers. However, after mid-1996 an increasing number of bombings were motivated by a desire to create a climate of fear and terror. The bombers began to target central Cape Town and popular tourist spots, and the state, in the form of police stations and court buildings.

In late 1999 the acting premier of the Western Cape, Peter Marais, now the executive mayor of Cape Town, called for constitutional amendments, in particular to provisions that give terror suspects the right to remain silent and that require them to be released within 48 hours or be charged. "The police could not be expected to build watertight cases against terrorists in such a short period," he said. "You can't tell me that a terrorist who has killed 100 people with a bomb deserves the right to silence after being arrested." Minister for safety and security Steve Tshwete also called on Parliament to amend the Constitution to extend the 48 hours rule and to restrict suspected terrorists' access to legal representation during this period.

Earlier this year, Tshwete and minister of justice Penuell Maduna argued that new legislation was necessary because the lack of specific anti-terrorism legislation made South Africa a "safe haven" for international terrorists and fugitives. Tshwete said that a draft anti-terrorism bill released by the South African Law Commission was to be passed into law during 2001.

At the time of writing the Law Commission is still accepting submissions on the draft bill and it is unlikely that a new terrorism law will be promulgated this year. The security forces' Operations Good Hope and Crackdown have stabilised the internal security situation in the Western Cape and taken some of the pressure off the politicians. Their operations have been less successful, however, in prosecuting those suspected of committing acts of terrorism. A number of tight-knit terror cells could be lying low, waiting for a reduction in the activities of the security force before resuming their activities. In the event of a resumption the bill would most likely be fast-tracked through Parliament and opposition parties would be hard pressed to oppose tough legislation in the climate of fear and popular outrage that terrorist acts produce.

Governments can respond in one of two ways. Acts of terror such as murder, kidnapping or arson can be prosecuted in terms of existing criminal laws. A person who bombs a restaurant and kills someone is guilty of murder irrespective of his motives. Alternatively, specific legislation can be created to broaden the jurisdiction of the courts - for example, to prescribe especially severe sentences in respect of terrorist acts. The Law Commission has adopted the latter approach, proposing one omnibus law to address the issue of terrorism.

The draft bill contains a number of draconian clauses reminiscent of apartheid era internal security laws. The definition of a terrorist act is very broad, including "any act which may cause damage to property and is intended to disrupt any public service". Minibus taxi owners who blockaded a street used by municipal bus services and damaged parked vehicles, or a group of youths who destroyed a Post Office letter box would be guilty of committing a terrorist act under that definition. In its submission on the bill, Amnesty International says the broad definition could encompass legitimate activities, such as trade union strikes that result in damage to property or the disruption of the delivery of essential services. According to Amnesty, "if the definition remains vaguely or too widely worded, then the danger exists that the provision of the law will be open to abuse or used for repressive purposes".

The draft bill further proposes that any member of an organisation that has carried out, or is planning to carry out, terrorist acts commits an offence and is liable on conviction to imprisonment for up to five years without the option of a fine. It defines a terrorist organisation as "an organisation which has carried out, is carrying out or plans carrying out terrorist acts". Given the broad definition, such a provision could be used to criminalise the actions of a wide range of people. It could apply to all members of a taxi organisation that organised a street blockade, whether such members were involved in the blockade or not. Moreover, to secure a conviction the state would not have to prove that an accused knew that he was a member of a terrorist organisation. The state would merely have to prove membership of such an organisation.

It is also proposed that a judge may issue a warrant for the 14-day detention of any person where there is reason to believe that such a person possesses, or is withholding, any information regarding any offence in terms of the bill. Such a person may then be interrogated "until he has satisfactorily replied to all questions under interrogation". The detention provision is an ominous reminder of the 1966 General Laws Amendment Act, passed by the previous government in response to guerrilla activities on the borders of what was then South West Africa to provide for up to 14 days' detention of suspected "terrorists" for interrogation. The 14-day period was subsequently increased to 90 days, then 180 days and finally to an indefinite period.

According to the final report of the Truth and Reconciliation Commission there was a link between incidents of torture and detention-without-trial provisions. This has prompted Amnesty International to warn that "the depth and persistence of abuses in the past strongly suggest that the reintroduction of the power to detain without charge carries the grave risk of a repetition of the past pattern of human rights violations. The likelihood of repetition is increased by the reality that torture still occurs in South Africa, primarily in the context of criminal investigation." Amnesty's concerns are borne out by the Independent Complaints Directorate's (ICD) annual report for 1999-2000. According to the report, the ICD received 28 allegations of torture committed by the police between April 1999 and March 2000. In interpreting these figures, the ICD warns that "under-reporting is to be expected".

During the period 1999 to 2000, the ICD also received 4,380 complaints against the police. Of these, 209 complaints related to the death of crime suspects in police custody. The causes of death in these cases were: natural causes (31); suicides (63); injuries in custody (20); injuries prior to custody (28); and possible police negligence (67). There were a further 764 complaints of "serious criminal offences" allegedly committed by members of the police, including 500 cases of assault with the intent to commit grievous bodily harm or attempted murder.

The Law Commission is aware of the country's history of abuse of detention laws, and the draft anti-terrorism bill contains various safeguards for detained persons, such as the right to choose a legal representative who is entitled to be present during any interrogation process. It concedes that the 14-day detention period is a "thumb-suck". This is not surprising. Every terrorist investigation is likely to be different and some detainees will need to be interrogated for longer periods than others before they reply "to all questions". But the failure to set out a proper basis for a 14-day detention period could undermine some of the important liberal principles on which the Constitution of the new South Africa is based. Once policy makers and the courts accept the principle of detaining someone for 14 days as a legitimate investigative tool, they will be hard pressed to resist police requests for extensions of this period for particularly serious cases. Which ANC politician would resist increasing the detention period should there be a resurgence of right-wing terror activities targeted at black people or ANC officers?

It is further proposed that persons standing trial on any charge under the draft bill can be released on bail only if they adduce evidence that satisfies the court that "exceptional circumstances exist which in the interests of justice permit their release." Such a burden of proof on an accused seems harsh given the broad range of offences that the bill seeks to create. For example, in respect of bail, a person charged with trespassing on the property of a foreign diplomat (an offence in terms of the draft bill) would be in the same position as a person charged with terrorism.

Numerous pieces of legislation designed to combat terrorism, uphold internal security, and strengthen the hands of the security forces against terror groups are already on the South African statute books. Many of the available laws are not being fully used by the security forces because of a variety of operational weaknesses in the criminal justice system. Policy makers should direct their efforts at these weaknesses, before advocating draconian measures that seek to dilute rights entrenched in the country's Constitution.

Dealing effectively with a sustained terrorist threat is no easy task for liberal democracies. Civil liberties, constitutionally entrenched rights and the rule of law come at a cost when it comes to fighting terrorism: the state has to expend considerable resources and patiently collect evidence over frustratingly long periods of time to convict the kingpins of a closely-knit terrorist network. The alternative is to apprehend and lock away suspected terrorists at all costs. This might seem the better way to some. However, to sacrifice individual rights and liberal values to combat acts of terror is to accept the terrorists' belief that the end justifies the means. It would be a mistake to introduce legislation that seeks to combat terrorism by diluting the rights of all South Africans. The country's history is full of examples of tough temporary legislative measures becoming permanent fixtures on the statute books.

Martin Schönteich is a senior researcher at the Institute of Security Studies.