Anti-Terrorism Bill will stamp on human rights

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When Parliament opens this year, one of the first draft laws it will debate is the Anti-Terrorism Bill. According to the government, this Bill will bring South African law into line with many other countries who have passed similar legislation since the terrorist attacks on America on September 11: a process referred to, without a trace of irony on the part of the lawmakers, as ‘harmonisation’.

Superpowers like America and the European Union (EU), as well as the United Nations (UN) have argued that such harmonisation is necessary to prevent terrorists from using more open countries as safe havens to continue their activities. South Africa is following suit, and further pushing for a common definition of terrorism to prevent ‘cultural relativism’: a euphemism for countries targeting groups they do not like, especially those of Muslim origin.

Apart from playing its part in the international ‘war against terror’, South Africa also seeks to curtail domestic terrorism given its history of urban terror in the Western Cape, and the more recent spate of right-wing bombings. South Africa also has to operationalise numerous United Nations Conventions on terrorism, which it has chosen to do through the development of one omnibus Anti-Terrorism Bill rather than through amending existing laws.

It is pursuing this path on the recommendation of the South African Law Commission (SALC), which commenced work as early as 1995 at the request of the Minister of Safety and Security. Last year, it re-wrote an earlier version of the Bill – drafted by the police – to bring it into line with post-September 11 developments in international anti-terrorist law, and to address the sharp public criticisms of the anti-human rights stance of the earlier Bill, which included repressive measures like detention without trial. The result is a new Bill, informed by the SALC’s meticulous study which runs into a mind-boggling one thousand and fourty eight pages. Detention without trial has been replaced by the softer option of investigative hearings, which allow the alleged terrorist access to family, legal counsel, and most importantly, a judicial hearing.

The study and Bill lean heavily on Australian, British and Canadian legislation, with the definition of terrorism and other measures being taken virtually word for word from Canada’s Anti-Terrorism Act of 2001. The SALC justified this plagiarisation on the basis that South African law is modelled on the Canadian human rights dispensation.

So what is the problem if everyone else is passing these laws, and if such studied legal acumen has been brought to bear on our own version? The true nature of the problem is largely hidden from public view, namely that America is using the anti-terrorism drive to further its global imperialist aims. South Africa stands to become America’s latest client state on security matters, with the potential to become the latter’s policeman on the African continent. The SALC has demonstrated extreme political naivety by failing to address the political economy of the current anti-terrorism drive: an oversight that South Africans may yet pay for dearly.

This drive stopped being about the terrorism of Osama Bin Ladin very shortly after September 11. America very quickly turned crisis into an opportunity to renew its economy through military expansion after the crash of its information technology sector. With great political skill, it used the crisis to cajole more and more countries and multilateral organisations to create a permanent state of emergency against proscribed (or ‘banned’) terrorist individuals and organisations, leading to wars being declared against their ‘host’ nations such as Afghanistan (and soon probably Iraq).

These countries also further America’s cause by closing the spaces for opponents of its foreign policy agenda in the Middle East, where it pumps billions of dollars into supporting its buffer-state, Israel, on the basis that ‘United States policy is to keep the sources of oil in the Middle East in American hands’. In the process, the freedoms of expression and association are being routinely violated on the pretext of ‘winning the war against terror’. South Africa is willingly walking into this terrain in a manner that confirms that it is with George Bush and against a host of now ‘terrorist’ national liberation movements, even those that ironically enough are following eerily similar political trajectories to that of the ruling African National Congress (ANC). Numerous countries like Spain and Israel have taken full advantage of heightened tolerance of repressive measures to stamp out organisation they themselves have found troublesome.

A cursory examination of how these measures are being used in practice bears this argument out, and shows that the war against terror has mutated very quickly from its original intentions of targeting Osama Bin Laden and his supporters. America and the EU have effected anti-terrorist measures, including the blacklisting of organisations. Apart from focussing on increasingly global organisations, the compilers of the blacklists have also taken heed of the American Federal Bureau of Investigation definition of domestic terrorism to include ‘left-wing groups’ who ‘profess a revolutionary socialist doctrine and view themselves as protectors of the people against the dehumanising effects of capitalism and imperialism’. The central thrust of all the legislation is to introduce unprecedented powers to outlaw, interrogate and jail opponents of the ruling political establishment.

These blacklists have undergone three broad phases of the development in delineating the global and domestic ‘axis of evil’; initially they listed Al Qaeda and related organisations and individuals, proceeding to list revolutionary national liberation organisations opposed to American imperialism and Palestinian occupation, such as the Kurdistan Workers’ Party (PKK), the ETA, the Lebanon-based Hizbollah, and the Popular Front for the Liberation of Palestine (PFLP). The third trend, which is still emerging, is to target the anti-globalisation and social movements that have emerged independently of the older and increasingly mainstream liberation movements.

The PKK and the ETA have drifted towards bourgeois electoral politics since the collapse of the Soviet Union in 1990, leading them establishing political wings with the latter even calling in the Irish Republican Army and its political wing, Sinn Fein to assist with its transformation. The ETA’s political wing, Batasuna, has since been banned by the Spanish government for its links with the ETA, and for advocating the right to self-determination of the Basque people. The government also used its newly-aquired jackboot powers to close down the Basque free press. Then there are the individuals that have been listed by the EU and the US, such as Professor Jose Maria Sison, a leading figure of the Philippine national democratic revolution for almost fourty years, and a leading member of the Communist Party of the Phillippines. South Africa looks set to follow suit and outlaw these organisations and individuals under its own law, which will see the ruling ANC banning organisations that share remarkably similar political histories.

Is this too far fetched? The Canadian example is particularly instructive, given that we are set to adopt its definition of terrorism. At the outset, the Liberal Democratic government promised the Canadian public that the Act would not be used to repress dissent. In September 2002, members of a special anti-terrorist police unit raided the homes of prominent indigenous rights activists for supposedly stockpiling weapons, and then proceeded to question them about their political activities. Last month, the government changed its mind and added the political wing of Hizbollah to the list of usual suspect banned under the law, after months of insisting that it was a legitimate national liberation organisation. This about-turn took place after pressure, including court action, by Zionist groups. South Africa’s model country has also been banning foreign students from Iraq, Iran and Libya from taking university chemistry courses, arguing that they may use their new-found knowledge to make bombs.

Then there is the fact that the SALC did some highly selective shopping in the Canadian law. Canada made several concessions after a huge public outcry over the law. For example, it agreed to remove the word ‘lawful’ from the those activities that it considered to be expressions of dissent not to be defined as terrorism. It made this concession after organisations such as the Canadian Auto Workers Union pointed out the fact that wildcat strikes or sit-ins by nurses, for example, could be defined as terrorist acts. However, the word still appears in South African definition.

What this means is that the authorities can use their discretion to define unlawful dissent as ‘terrorism’. For example, the Soweto Electricity Crisis Committee’s Operation Khanyisa – involving the ‘illegal’ electricity reconnections of disconnected households, as a result of their inability to afford the rising costs of electricity, could well qualify as a terrorist act. The SECC could then be proscribed as a terrorist organisation, its members could be jailed for up to ten years and active participants could get life. The littering of streets by SAMWU workers could also fall foul, as could many other forms of direct action. ‘Illegal’ gatherings could also qualify, which is especially worrying given the almost-certainly unconstitutional nature of the Regulation of Gatherings Act. The inclusion of attacks on property, coupled with the provision around public and private services, in the definition of terrorism literally turns the government into a security firm for local and transnational capitalism.

In fact, the South African law goes further than Canadian law in that it outlaws simple membership of terrorist organisations: even claiming to be a member is illegal. The Canadian law uses the more active notion of participation. The government also proposed the addition of a new clause stating that the definition of terrorism would not apply to the expression of political, religious or ideological ideas that are not intended to cause the sorts of harm outlined in the Act, and would be bolstered by an interpretive clause stating that expressions of political, ideological or religious beliefs alone is not a terrorist activity. In spite of having access to all these details through the Law Commission report, the SA govt has not included these Canadian concessions. Why?

Another difference is that South Africa’s has no sunset clause for the investigative hearings: the Canadian government acceded to a five year period after human rights activists pointed out that the hearing of ‘evidence’ outside of a formal trial was unprecedented and dangerous. However, it is at one with the Canadian law in relation to its threats to journalists. There is nothing to prevent this clause, and another one, being used to force confidential information and journalistic material out of the media: a provision around privilege relates only to attorneys and their clients. The fact that this clause has been modelled on Section 205 of the Criminal Procedure Act – notorious for the manner in which it has been used to subpoena journalists in the past – should be additional cause for worry and not for reassurance as the SALC would have us believe.

Another telling omission in this definition is a clause contained in the Organisation of African Unity’s Algiers Convention of 1999, which states that ‘…the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including the armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts’. Similar provision in the Arab Convention for the Suppression of Terrorism, as well as in UN documemts. The SALC argued that it is sufficient to instruct the authorities to have due regard to the principles of international law in implementing the legislation, and not to include a specific clause reflecting this sentiment.

Countries such as Lebanon have not been willing to see this provision being buried away in this manner, and have argued at the UN that it must be foregrounded and extended: a stand which has scuppered attempts to agree on a common definition of terrorism (that is, a definition that America will feel happy with). It has repeatedly refused to ban Hizbollah, arguing that the organisation is pursuing a just was and pointing out that the organisation has been responsible for the ejection of Israeli forces from South Lebanon and a buffer zone on the border. It has also repeatedly refused to pass a law that will lead to liberation movements being banned. South Africa could have followed suit, but it is not.

All these concessions to the American war machine expose the ‘third way’ that social democratic governments are supposed to be charting in the context of globalisation – including South Africa – as self serving nonsense. In fact, it is the social democratic governments in Britain, German and France that have spearheaded the anti-terrorist measures, in the process doing the dirty work for repressive right-wing regimes. Up to this point, there has been no evidence that South Africa will steer a course different from America, Canada and the EU: on the contrary. One does not even have to speculate on the consequences. They are already there for all to see. In short, if you are a left-wing political activist in South Africa, be afraid, be very afraid.

Jane Duncan is executive director of the Freedom of Expression Institute (FXI). An edited version of this article was published in the Sowetan newspaper on 10 January 2003.

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