Much of the Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill updated existing legislation by including cybercrime, and computers, but also by bringing it in line with updated international conventions and standards.

That includes, for example, “disparity” in sentencing which allows that “a more severe penalty may be imposed in respect of money laundering as opposed to terrorist financing”, according to the bill’s memorandum. 

Tabled in Parliament on 19 July by Police Minister Bheki Cele, the draft law is part of South Africa’s efforts to fix shortcomings identified by the global anti-terrorism and anti-money laundering standards body, the Financial Action Task Force (FATF), as long ago as October 2021. South Africa must show progress in remedying compliance defects by the February 2023 FATF meeting — or face greylisting, which would increase investment costs and complexities.  

Finance Minister Enoch Godongwana is also steering through Parliament the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Bill that will tweak a range of laws from the Financial Intelligence Centre Act, and also the non-profit organisations, trusts and companies laws.

Concerns of overreach

At Wednesday’s police committee public hearings, AfriForum raised concerns that, for example, the new Section 3A would effectively make the call by the Cape Independence Party — a properly registered political party — for the secession of the Western Cape a terrorist activity, on the grounds that it threatened the integrity of South Africa, the lobby group’s campaign strategy and content officer, Ernst van Zyl, told MPs. 

“Normal people criticising government policies are then criminalised,” he said, arguing that the Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill, under the guise of fighting terrorism, gave the police additional “intrusive tools” in an overreach that would not pass constitutional muster.

“At times, [the bill] is going further than US anti-terror laws and apartheid legislation to curb dissidents.”

The proposed Section 3A, headed “Prohibition of publication with unlawful terrorism-related content”, included that which is intended to “directly or indirectly encourage or otherwise induce the commission, preparation or instigation of any offence”, or intended to provide assistance to commit an offence.  

This would apply to, among others, threats to the unity and territorial integrity of South Africa, the intimidation or inducement of fear or feelings of insecurity, terror or panic in the public or part of the public.  

Publication includes distribution, circulation, selling or lending of such material, or the offer to loan, or to assist in transmitting electronically, including on the internet and social media platforms. The proposed legislation allows the shutting down of such internet and social media sites.

Academic and journalism exclusion

Academics and journalists arrested for possessing such terrorist content “may raise as a defence … the action or possession was for the purposes of carrying out work as a journalist; or (ii) academic research,” according to the bill. 

This exclusion of academics and journalists emerged during an earlier round of departmental public consultations.

On Wednesday, Sussex Terrorism and Extremism Research Network researcher Albertus Schoeman cautiously welcomed this, although he said it did not go far enough. 

Many organisations were involved in doing work to prevent radicalisation, including, for example, imams who research this thread to explain to and educate congregations. They would not be covered by the exclusion of academics and journalists, cautioned Schoeman. 

It was also important to reconsider the inclusion in the definition of terrorist activity of “advancement of a collective political, religious, ideological or philosophical motive, objective, cause or understanding”. 

Such motives were difficult, as was illustrated by narcoterrorism, or the use of violence in the drug trade.

‘Democracy must be preserved’

Schoeman told MPs it was important to remember the proposed law was to protect South Africa’s constitutional democracy. 

“What is really necessary is to preserve our democracy. We really need to preserve freedom of expression, information and legitimate political activity.” 

International Committee of the Red Cross (ICRC) legal adviser Sarah Mabeza faced sharp questions after arguing for the continued exclusion of humanitarian assistance from potential terrorism activities’ definitional reach. As the draft law stood now, it could criminalise humanitarian assistance such as providing medical treatment or distributing information.

Did that mean humanitarian aid was given to terrorists or people who were fugitives from justice in their own countries? asked ANC MPs. 

The response: the ICRC did not classify people as such — humanitarian assistance was available to everyone — and the fact that the ICRC did not use implementing agencies but had local checks and balances in place, did not seem to satisfy lawmakers.  

While South Africa was found to fall short in the FATF Recommendation 8, or identifying organisations funding terrorist activities, Mabeza argued that exempting exclusively humanitarian activities like the ICRC from the scope of counterterrorism would not detract South Africa from meeting the global FATF requirements. 

In amending the definition of terrorism activity in the bill, the governing ANC proposes deleting the recognition that people’s struggles, “including any action during an armed struggle, in the exercise or furtherance of their legitimate right to national liberation, self-determination and independence against colonialism,” would not be deemed terrorism. 

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Between the clauses defining terrorist activity as something that endangers life and also poses a serious risk to the health and safety of the public, the new draft law includes a clause defining it as anything that “is calculated to overthrow the government of the Republic or any other government”. 

Elsewhere, terrorist activities are expanded to also apply to critical infrastructure and complexes, effectively the updated label for National Key Points. And while the original law protected electronic communication and information systems, the amendment has a new separate clause on “information infrastructure or part thereof”. 

Crucially, the proposed legislation deletes the original 2004 act’s clauses 25 and 26, which contain accountability and oversight stipulations that require the President to publish in the Government Gazette any announcement by the United Nations Security Council of an entity as terrorist, and for Parliament to consider such presidential proclamations and take its own steps. 

That, alongside other concerns raised on Wednesday, should raise red flags, never mind the government’s eagerness to show progress in the last six months of an 18-month window before the FATF February 2023 meeting. 

In an unusual step, the National Treasury, in a media statement on 29 August, set a definite deadline for the police’s Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill — “expected to be enacted by November 2022”. 

It might be a stretch. And in any case, it’s up to Parliament to decide how to conduct its business. DM