Reconciling Counter-Terrorism & Democracy: A View on President Mbeki’s Perspective for Africa

In the 38th Commonwealth Parliamentary Association (CPA) African regional meeting, held on 27 July 2007, the South Africa President Thabo Mbeki called for all African countries to adopt adequate measures to comply with the Convention for the Prevention and Combating of Terrorism (AU Convention). Believing that enacting such legislation would enormously strengthen the capacity of the African continent to defeat the threat of terrorism, President Mbeki called on his counterparts to ensure that Africa equips itself with adequate tools to counter terrorism. Africa is currently facing intense pressure in this matter, as has been demonstrated by the interest of the United States of America (USA) to fund Kenya’s counter-terrorism training. This is also demonstrated through the United Nations meetings between West African countries and donors in an attempt to strengthen the region’s counter-terrorism measures.

However, it would be incorrect to say that the continent has failed to react in the current fight against terrorism. Amongst the Commonwealth countries in the African Union, eleven have ratified the AU Convention, while seven more have gone on to sign it. Between these countries, six countries (Mauritius, Seychelles, South Africa, Tanzania, Gambia and Uganda) have adopted anti-terrorism laws while, Malawi has enacted a law focussing on the financing of terrorism. Botswana and Lesotho have relied on their internal security Acts to fight terrorism. Other countries, such as Kenya, Namibia and Nigeria are currently in the process of adopting security legislation. Moreover in Article 2 of the AU Convention, member states are obliged, amongst other things, to “review their national laws and establish criminal offences for terrorist acts”, and to “implement the actions, including enactment of legislation and the establishment as criminal offences”. This is often done by the enactment of acts modifying the criminal code. There is, however, no obligation for states to adopt specific anti-terrorism legislation.

Specific anti-terrorism legislation is undoubtedly a very visible way of demonstrating the country’s commitment to counter-terrorism. However, visibility does not always equal efficiency, and other legislative ways ought to be considered first, beginning with an assessment of the adequacy of already existing norms.

Before considering adopting legislation on this topic, a sine qua non condition must be complied with to ensure its adoption as an effective counter-terrorism measure: establishing a clear definition of terrorism. If this first question is not thoroughly and clearly answered, the good intentions of the government will only give birth to a law enhancing its own arbitrary powers. This question of definition has been a concern for national legislators and the international community for the past four decades, and as yet, every attempt to define terrorism has failed to respect the basic principle of legal certainty. In the context of Africa, many groups involved in illegal activities that could be classified as terrorism are traditionally labelled as the opposition, rebels, guerrillas, independent military factions instead of terrorists, therefore showing that concepts are not clear cut and as stated earlier need to be clearly defined.

Like all the others, the definition enshrined in the AU Convention is not an exception and fails to provide an unambiguous meaning of terrorism. It encompasses any criminal act (including those causing death, injuries, damage to property or restriction of freedom) committed in order to intimidate a government, or the general public, to disrupt a public service or to create a state of general insurrection. Breaking a window during a demonstration could fulfil this criterion, leaving the choice of prosecuting the offender as a terrorist or not to the discretion of the government, a good way to crush legitimate dissent. Therefore without fulfilling this fundamental condition, any counter-terrorism law would be in contradiction of the position of President Mbeki, that ‘only through a democratic system of governance can the masses of the African people acquire the space to give free reign to their ingenuity and creativity in an environment liberated from the choking fetters of oppressive, autocratic and dictatorial government systems.’

An important step in establishing a model law is to make sure that its contents do not violate human rights, but promote them instead. Human rights are fundamental in the fight against terrorism; it is by respecting and promoting them that a state clearly demonstrates the difference between terrorists and itself. Governments have the duty to counter terrorism, but this cannot be durably achieved if states, by enhancing police discretion and powers whilst reducing the accountability of law enforcement bodies, spread fear as do the terrorists. National security must be guided by the need to protect the physical boundaries, symbols and infrastructure of the state and the ideal of democracy. Democracy requires that national security cannot be achieved unless each and every person in the country feels safe. In other words, national security requires human security. Laws and actions that provide safeguards are necessary for the safety of the state and its people, where they protect life and property as well as liberty and rights. To be effective the powers provided to police, to counter terrorism, must be appropriate, proportionate and humane, complying with the standards set out in international law. If not, they undermine the democratic legitimacy of the state.

Democracy must be promoted. Deep consideration, wide consultation and careful review by experts committees are required for the review and enactment of laws around such sensitive topics that are likely to have an impact on human rights. Pressure to act quickly too often curtails such processes; terrorism is an ongoing issue that must be thoroughly thought through for counter-terrorism not to be counter-productive. This has been illustrated in South Africa, where the Anti-Terrorism Bill (2000), whose provisions extended the powers of the police to stop and search, and allowed a 14-day detention for interrogation, was abandoned after a careful four-year Pressure on governments to legislate quickly rarely encourages democracy, and enhanced and uncontrolled police powers are unlikely to enhance the security of the citizen. In Kenya, bills to introduce a strong counter-terrorism law have been successively rejected. The government and the international community are, however, still pushing for the adoption of such a law, very much against the will of Kenyan citizens and therefore against the principles of democracy. Such undue pressure only contributes to alienate a government from its citizens and, in no case enhances effective counter-terrorism practices.

President Mbeki suggested writing a model law for countries who seek help in this difficult process to draft the adequate norms to counter terrorism. Such a task has been completed by the Commonwealth Secretariat, whose Commonwealth Model Legislative Provisions on Measures to Counter Terrorism was used as a reference both by the UN Office on Drugs and Crime and by some Commonwealth countries. However, the model law fails to respect the two steps described previously: the principle of legal certainty and the protection and promotion of human right - although the drafting body considered the human rights obligations of the Commonwealth in their deliberations, there is no evidence of this in the model law. If the CPA undertakes such a task, it should consider as a starting point both the conclusions of the UN Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism and the Security Council Resolution 1566 (2004), which provides a working definition of what constitutes a terrorist act.

The African Union includes a wide range of political systems: some governments are stable and legitimate while others bend more towards autocracy and dictatorship and there are still others that lack legitimacy. Anti-terrorism legislation in countries often seen as models for human rights have led to dramatic abuses. One can therefore imagine how such legislation could be used in countries where corruption, torture and police misconduct are already widespread and civilian freedom and liberty is restricted. Africa must reconcile the fight against terrorism and the promotion of democracy. This can only be done by respecting and promoting the rule of law, democracy and human rights, and should be the basis of the assessment of existing legislation and the adoption of the provisions to fill in the legislative gaps that may be identified.

(CHRI has written a report titled ‘Stamping Out Rights – The impact of anti-terrorism laws on policing.’ For more information on the report contact the writer at arnaud@humanrightsinitiative.org)