David Bruce This e-mail address is being protected from spam bots, you need JavaScript enabled to view it
Responses to the Anti-Terrorism Bill, currently before Parliament, are likely to be coloured by attitudes to the US, as the Bill bears the stamp of US influence.
As a result there is a risk that the debate around the Bill will be defined by attitudes to the US while the issues which should be the focus of concern are key questions to do with the content of the Bill.
Amongst 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" which 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 mobilization 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 which 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 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 are already a wide range of laws on our statute books which can be used to tackle terrorism there is nothing in principle wrong with democracies strengthening 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.
Clearly provisions requiring reporting of the financial affairs of organisations alleged to be linked to threats to public security, and which punish not only participation in the planning or carrying out, but also 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 which is significant to existing provisions of this kind.
Most worrying however are provisions enabling government (subject to judicial approval) to outlaw organisations defined as terrorist and which criminalise membership of such organizations. These go beyond the provisions of the 1998 Prevention of Organised Crime Act which outlaw activities which contribute to the perpetration of criminal acts, but do not, as the Anti-Terrorism Bill does, criminalise membership of an organization per se.
Ironically, the Bill is now being promoted by a government lead by a political party which 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 that the African National Congress was once silenced.
But the right to freedom of association may be both South Africa, and the worlds, 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 news dispensation, at least have the security that they may pursue their political objectives through non-violent means. Denial of the right to organize 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 legitimize their actions against those fighting for democracy and freedom.
David Bruce is a Senior Researcher in the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.
In Mail & Guardian, 25 April 2003.
© Centre for the Study of Violence and Reconciliation
CSVR is a multi-disciplinary institute that seeks to understand and prevent violence, heal its effects and build sustainable peace at the community, national and regional levels.
