Terrorism, Public Policy and Democracy in South Africa

Article excerpt

ABSTRACT

The democratic government of South Africa, after 1994, formulated a new official policy on terrorism. Stemming from this policy it undertook an overall review of security legislation, and promulgated a comprehensive counter-terrorism law, namely, the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No 33 of 2004). The legislative process took an entire decade to conclude and was met with stiff opposition from human rights and civil society groupings. The critical engagement between legislators and organs of civil society ensured that a delicate balance was struck in legislation between respect for human rights and civil liberties and the effective prevention and combating of terrorism.

1. INTRODUCTION

Shortly after coming into power in 1994, the democratic government in South Africa spelt out a new official policy on terrorism. Based on this policy it undertook an overall review of security legislation, and promulgated a comprehensive counter-terrorism law entitled, the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No 33 of 2004). The legislative processes took an entire decade to conclude. It was fraught with difficulties and was met with active opposition from human rights and civil society groupings. The process had begun in November 1995, when the former Minister of Safety and Security, Steve Tshwete, requested the South African Law Commission (SALC) to undertake a comprehensive review and rationalisation of security legislation. (1) Subsequently, the SALC appointed in 1998 the Project 105 Committee to undertake this task. (2)

By this time, however, the South African Police Services (SAPS) had conducted initial research on the matter and had already prepared a draft Anti-Terrorism Bill. This became the basis of the SALC's Discussion Paper 92 which was released in August 2000 for public comment. (3) This was followed by the publication by the SALC of its research findings entitled, Report on the Review of Security Legislation--Terrorism: Section 54 of the Internal Security Act, 1982 (Act No.74 of 1982). Subsequently, the Anti-Terrorism Bill (12B-2003) was introduced in Parliament. After a lengthy parliamentary procedure, the Protection of Constitutional Democracy against Terrorist and Related Activities Bill (12F-2003) was adopted by Parliament in 2004. The President finally assented to the Act in March 2005.

This article outlines the official policy on terrorism of the government of South Africa; lists security legislation of the previous era that remained on the statute books after 1994, which could be utilised to counter terrorism; highlights the SALC's review of security legislation and legislative proposals relating to terrorism; discusses the role of Parliament in processing the Anti-Terrorism Bill (12B-2003) after receiving extensive public responses to the Bill; and evaluates the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No 33 of 2004).

2. POST-1994 OFFICIAL POLICY ON TERRORISM

Shortly after coming to power in 1994, the South African government adopted a new policy on terrorism. It condemns all forms of terrorism. It would take all lawful measures to prevent acts of terror and to bring to justice those who are involved in terrorism. (4) In countering terrorism it is committed to upholding the rule of law; never resorting to any form of general and indiscriminate repression; defending and upholding the freedom and security of all its citizens; and acknowledging and respecting its international obligations in respect of combating terrorism. (5) The Government also declared its intention to introduce new legislation to counter terrorism. (6) It undertook to protect foreign citizens from acts of terror in South Africa. In the event of a terrorist incident occurring in a foreign country and involving a South African citizen, it would co-operate with the host government to investigate the incident. …