Experts poke holes in potential amendment to South Africa’s Terror Bill

While experts have welcomed the state’s commitment to align the war on terrorism with international law and norms, they have warned against any legal overreach, amounting to a suppression of freedom of expression, association and legitimate opposition – synonymous with apartheid South Africa.

Under the Nationalist Party, several activists opposed to apartheid, including the Rivonia treason trialists – Nelson Mandela, Walter Sisulu, Govan Mbeki, Wilton Mkwayi, Andrew Mlangeni, Elias Motsoaledi, Raymond Mhlaba, Ahmed Kathrada, Lionel Bernstein, James Kantor and Dennis Goldberg – were branded “terrorists”.

Making oral submissions to the portfolio committee on police in the National Assembly yesterday on the Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill, experts were unanimous in their message to lawmakers – the constitution remained supreme.

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 AfriForum campaign officer Ernst van Zyl, warned of “certain novel additions brought about by the amendment”, he described as “a threat to the rule of law and constitutional guarantees”.

He said amendments concerned with domestic terrorism and the investigation were “neither necessary, nor lawful”.

“They represent state overreach and, at the very least, require far more consideration before thought is given to passing them, with the potential to significantly restrict or violate guaranteed political freedoms and constitutional rights.

“The state has not identified in its explanatory memorandum exactly why highly invasive measures are necessary to combat terrorism at a local level.”

It was apparent that the problem did not lie with the legislation or the regulatory environment, “but with the execution thereof by state organs which are chronically and perennially under-resourced, mismanaged, incompetent and inept”.

He warned of the country being “an entry point and hub for terrorists and other agents operating outside of South Africa’s borders – rather than an immediate and pressing threat to the safety and security of citizens”.

“The threat of domestic terrorism – while certainly a growing threat – is presently embryonic.

“The state must build a legislative wall between specialist legal frameworks. “Aspects of the amendment, concerned with domestic terrorism and the investigation are neither necessary, nor lawful,” said Van Zyl.

Dr Albertus Schoeman of the Sussex Terrorism and Extremism Research Network said: “Under the current amendment, the Bill should clarify that terrorist training itself is an offence.

“In the current formation, the law can be interpreted to mean that only training for a specific act is criminalised – placing the burden on prosecutors to prove a specific terrorist act was planned.

“International examples clarify that training for the preparation of a non-specific terrorism-related offence, is criminalised.

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