South Africa’s anti-terror laws out of sync with democracy

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The labyrinth of confusion regarding gay marriages so aptly depicted in a recent Zapiro cartoon could easily be recast to illustrate the convoluted entanglements likely to arise from the implementation of South Africa’s controversial anti-terror legislation.

Dubbed in legal pc terms as the "Protection of Constitutional Democracy Against Terrorist and Related Activities Act", the POCDATARA came into effect on May 20 after a lengthy period of drafts, followed by more drafts. So fundamentally flawed have these drafts been, that on the eve of parliament’s effort to promulgate it during Feb 2004, COSATU’s muscle flexing halted it. Now 15 months later, the ANC government has finally enacted what is described in the preamble of the act "to provide for measures to prevent and combat terrorist and related activities………….”

And herein lies the rub. How does any reasonable person, including legal minds, interpret an "offence of terrorism" when the act fails to define it? Conversely, the attempt to define "terrorist activity" is laborious and extends in excess of 500 words.

Notwithstanding "exemptions", we are confronted with the real possibility of having ordinary criminal transgressions politicized as "terrorist" and support of legitimate political struggles criminalized as "terrorist" too!

The Orwellian title of the anti-terror legislation conceals the fact that its draconian reach has arbitrarily substituted the rule of law with the rule of men.

Of particular alarm to journalists ought to be the powers vested in the Director of Public Prosecutions to institute investigations prior to any civil or criminal proceedings, whenever he has "reason to believe that any person may be in possession of information" related to "terrorist activities". Media lawyer Karen Willenberg commenting almost 18 months ago on the likely abuse flowing from "imprecise definitions" of this bill, lamented the fact that media has largely ignored it apart from a few opinion columns "decrying potential threats to hard-won constitutional freedoms".

And so it remains. Media silence in the face of the single most dangerous threat to media freedoms.

No wonder that NGOs such as Media Review Network and the Freedom of Expression remain concerned about the negative impact this new act is likely to have on civil liberties. Also the terror of de facto detention without trial makes its reappearance through the back door. By classifying "terrorism" as a Schedule 6 offence under the Criminal Procedures Act makes it virtually impossible for suspects to secure bail.

Now that the Financial Intelligence Centre has unleashed its campaign of public notices through a blitz of newspaper adverts on "Reporting Obligations of Terrorist Financing", the maze looks more intimidating. If I were in Iraq, I would easily have mistaken it for the endless list of commandments enacted by US President Bush’s envoy Paul Bremer.

Not surprising therefore that the wave of anti-terror measures insisted upon by Bush and facilitated with the courtesy of the United Nations is viewed as the globalization of its notorious Patriot Act. Prof Ali Mazrui, a renowned African scholar has been particularly vocal in his condemnation of a number of African states – Kenya, Tanzania and Uganda – as having capitulated to US and British dictates. He has been quoted in a weekend report warning against the imminent erosion of civil liberties at "the time when democratizing is gathering momentum".

Will South Africa heed the warning?

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