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report/report.html.
42
One of the final changes made to the Bill by the NCOP was meant to address concerns of
the Congress of South African Trade Unions (COSATU). It aimed to ensure that workers
who take part in unprotected strikes do not fall within the ambit of the definition of
terrorism.
43
In particular, it objected to the complete removal of the political offence exception, the
vagueness of the definition, the duplication of offences, the reverse onus of proof, the
disproportionately high sentences, the discretion enjoyed by the executive to declare
organizations terrorist and the offence of wearing clothing which creates the reasonable
apprehension that the wearer supports a terrorist organization.
44
The final Act has reworded the definition of terrorism, adding significant detail but
retaining much of the breadth of the previous definition (section 7). Offences are still
duplicated and the executive retains its discretion to declare organizations terrorist
(compare section 7 with sections 12–14 and sections 23–9, and see section 10).
However, the previous blanket immunity of executive officials has been reduced to civil
immunity only (section 32) and the offence of wearing clothing which creates the reason-
able apprehension that the wearer supports a terrorist organization has been dropped (see
clause 16 of the Ugandan Suppression of Terrorism Bill of 2001).
TERRORISM AND GOVERNANCE 563

of terrorism, and the trial phase, which describes the range of possible
offences, the rules of evidence which go to prove them, and the consequences
of conviction. The description of the South African draft legislation includes
an extra section on the constitutionality of the legislation. South Africa forms
the focal point of the analysis and its draft Bill is situated in the context of
both the constitution and other South African legislation. The Kenyan,
Tanzanian and Ugandan regimes are set out more briefly.
The aim in this section is to demonstrate the similarities between the states
in this region and to identify their points of agreement and disagreement with
South Africa. In particular, this section will examine the role of the executive
and identify how its powers have grown through the anti-terrorism regime.
The extension of executive power is problematic, not just because it runs
counter to human rights law, but also because it often leads to other danger-
ous results as well. By weakening the governmental institutions which are
meant to keep a check on executive action, an imbalance of power threatens
the rule of law. In extreme cases, where democracy is fragile or the govern-
ment has doubtful legitimacy, the imbalance fails to achieve its underlying
aim, the prevention of terrorism.

A. South Africa’s draft anti-terrorism legislation
1. Prevention
Previous drafts of South Africa’s anti-terrorism Bill introduced controversial
changes to criminal procedure in the case of suspected terrorism and allowed
the executive considerable freedom to act against suspected terrorists without
judicial oversight.45 Most of the objections to these changes have been met
and detention without trial has been dropped completely.46
The regime of investigation into and prevention of terrorism has largely
been integrated with the regime against organized crime. The Bill proposes
extensive amendments to the Prevention of Organized Crime Act (POCA),
expanding its ambit to include terrorism. Chapter 6 of POCA, which
provides for civil forfeiture of property connected to a crime, would, once
amended, also apply to ‘property associated with terrorist and related

45
For criticism of the various drafts see E. Steyn, ‘The draft Anti-Terrorism Bill of 2000: the
lobster pot of the South African criminal justice system?’ (2001) 14 South African Journal
of Criminal Justice 178–94; M. Cowling, ‘The Return of Detention without Trial? Some
Thoughts and Comments on the Draft Anti-Terrorism Bill and the Law Commission
Report’ (2000) 13 South African Journal of Criminal Justice 344–59; Powell and Goodman,
‘Reconciling the Fight’; C. Powell, ‘South Africa’s Legislation against Terrorism and
Organised Crime’ 2002 Singapore Journal of Legal Studies 104–21; and I. Goodman, ‘The
Draft Anti-Terrorism Bill’ 2002 Responsa Meridiana 1–21.
46
See Strydom, ‘South Africa’s Response’, at 96–7 for the history of the detention clause up
to 2002.
C. H. POWELL
564

activities’. By this process, the National Director of Public Prosecutions can
get an order of forfeiture of property which was ‘acquired, collected, used,
possessed, owned or provided for the benefit of, or on behalf of, or at the
direction of, or under the control of an entity which commits or attempts to
commit or facilitates the commission’ of the crimes in the anti-terrorism
Bill. A criminal prosecution of any person involved in this ‘entity’ will not be
necessary.47
In addition, clause 22 brings Chapter 5 of the National Prosecuting Authority
Act (the NPA) into operation.48 The powers of investigating officers in cases of
suspected terrorism will, by this mechanism, be the same as those of officers
investigating organized crime. Under Chapter 5 of the Act, the Investigating
Director of the Directorate of Special Operations (the DSO)49 may choose to
conduct a particular investigation and assign particular officers to deal with it.50
The officers assigned to such an investigation then enjoy expanded powers of
search and seizure. In particular, although designated officers need to apply for a
court order to search a suspect’s property, they do not need to specify the
particular articles they hope to find.51
Two additional procedures in the Bill complement the powers in the NPA.
A judge can authorize the stopping and searching of vehicles, which order
would be valid for ten days.52 A more important addition to the normal
South African criminal procedure, however, is contained in clause 23, which
allows for an ex parte application by the National Director of Public
Prosecutions to freeze the property of a terror suspect.53 This last provision
is worth emphasizing, because it provides an example of executive discretion
without judicial oversight: under clause 23, to obtain a freezing order, the
National Director of Public Prosecutions need prove merely that the assets in
question are controlled by an entity identified by the UN Security Council as
terrorist.54 It is not necessary to show that the assets will in fact be used for a
terrorist purpose, or that the entity identified by the UN Security Council is
in fact a terrorist organization. As a corollary, the Bill does not provide that



47
The schedule to the Bill amends s. 38 of POCA, which provides for civil forfeiture of
property.
48
Act no. 32 of 1998.
49
Colloquially known as ‘the Scorpions’, the DSO has special powers to investigate organi-
zed crime.
50
Section 28 of the NPA. See generally J. Redpath, The DSO: Analysing the Scorpions (2004)
Monograph no. 93, Institute for Security Studies, Pretoria.
51
Section 29 of the NPA. 52 Clause 24 of the South African Bill.
53
Persons who may be prohibited from dealing with property include persons with previous
convictions for terrorism and associated offences, as well as entities identified as terrorist
by the Security Council of the United Nations (see clause 25).
54
Clause 23(1)(b) of the South African Bill, referring to clause 25.
TERRORISM AND GOVERNANCE 565

persons affected by the freezing order may challenge the UN Security
Council’s categorization.

2. Trial
Once the terrorist suspects are brought to court, they face a substantial
problem: the crimes of which they are accused are the most broadly and
vaguely defined in all of South African law. The new Bill codifies a range of
treaty crimes and introduces two main new offences: terrorism itself and a
so-called ‘offence connected with terrorist activities’, which provides for
extensive accomplice liability.55 Faced with the problem presented by the
right to self-determination and the criticism that previous definitions out-
lawed political opposition as well as terrorism, the drafters chose not to
narrow the definition but to add two exceptions exempting acts committed
in pursuance of advocacy, protest, dissent or industrial action as well as acts
committed during armed struggles in the exercise of a legitimate right of self-
determination.56
The offence of terrorism57 consists of three elements: an act, an intention
and a motivation. Each element is broadly defined. Part (a), which sets out
the act, appears extremely detailed, but is nonetheless unclear and broad. For
example, the ‘systematic, repeated or arbitrary use of violence’ constitutes
‘terrorist activity’. It is difficult to imagine which form of violence could not be
qualified by one of those three adjectives, which means that only the require-
ments of intention and motivation – themselves very broad – distinguish
between any act of violence and the very serious crime of terrorism itself.
The rest of part (a) lists activities which, for the most part, cause severe
harm. Examples are the release of dangerous chemicals into the environment,
seriously endangering life, causing serious risk to public health, causing
destruction or substantial damage to property, a natural resource or an envir-
onmental or cultural heritage, causing major economic loss or extensive
destabilization of an economic system and creating a serious public emergency
or general insurrection. Within part (a), two extra mens rea requirements
are inserted into the description of interfering with or disrupting an essential
service, facility or system. In these cases, the interference or disruption
must be ‘intended or calculated’.58 The Bill provides a non-exhaustive
list of possible services, facilities or systems, including information,



55
Clauses 2 and 3. 56 Clause 1(3) and (4).
57
This offence is set out, rather incongruously, in the definition section. ‘Terrorist activity’ is
defined in clause 1(1)(xxv).
58
See Steyn, ‘The draft Anti-Terrorism Bill’, at 186–7, for an argument, based on general
rules of statutory interpretation, that this phrasing reduces the fault component of the
offence to negligence.
C. H. POWELL
566

telecommunication, banking and financial systems, emergency services, infra-
structural facilities and public services generally.59
The three terrorist intentions listed in (b) are the intention to threaten the
unity and territorial integrity of a state, to intimidate or cause feelings of
insecurity in the public, and unduly to compel or induce a person, government
or general public to do or abstain from any act. The already broad phrasing of
these intentions is underscored by the lowering of the standard of proof. Under
(b), the state can establish either that the accused had the intention or that such
intention can, by its nature and context, reasonably be inferred. In inferring this
intention, the court may rely on the accused’s ‘constructive knowledge’ of a
fact.60 Part (c) of the definition sets out the requisite terrorist motivation. An act
which satisfies one of the criteria in parts (a) and (b) of the definition becomes a
terrorist activity if it is carried out for an individual or collective political,
religious, ideological or philosophical cause.
Redundancy is a common feature of anti-terrorism legislation, because
definitions of terrorism often duplicate crimes already found in the munici-
pal legal system. But the South African legislation is remarkable in the extent
to which the draft Bill duplicates itself. Clauses 4 to 10 of the Bill create a wide
range of offences to implement separately the thirteen international conven-
tions mentioned in the preamble.61 The treaty offences prohibit bombing,
financing, hijacking, hostage-taking and harming a range of particular per-
sons or objects, namely, foreign representatives, fixed platforms and ships.
The offences in clauses 4 to 10 fit comfortably into the main crime of
terrorism, and the definition of terrorism incorporates the already existing
South African crimes of murder, culpable homicide, assault, arson and mali-
cious damage to property. However, it is in the area of accomplice liability
that the duplication reaches ludicrous levels.
Accomplice liability is provided for more than four times. To the extent
that the offences are consequence and not circumstance crimes,62 the various
forms of terrorism cover principal and accomplice liability already. Secondly,
facilitation, participation, assistance, contribution and planning are expressly
included within the crime of terrorism itself.63 Thirdly, clause 3 separately
criminalizes enhancing the ability of another to engage in terrorist activity,

59
For almost all of these acts, the Bill includes acts which cause harm outside of the republic.
The only exception, curiously, is creating a public emergency or general insurrection.
60
Under clause 1(6), a person is deemed to have knowledge of a fact if he or she had actual
knowledge, failed to obtain information to confirm the existence of a fact, or merely
believed that there was a reasonable possibility that the fact existed.
61
The conventions include the Financing Convention, the Bombing Convention and the
Algiers Convention. The Organized Crime Convention is not included.
62
See J. Burchell and J. Milton, Principles of Criminal Law (2nd ed., Cape Town, Juta, 1997),
107 for a discussion of the distinction between ‘consequence’ and ‘circumstance’ crimes.
63
Clause 1(1)(iv).
TERRORISM AND GOVERNANCE 567

providing or offering a skill and providing weapons or other logistical sup-
port. The distinction between this form of accomplice liability and that
contained within terrorism itself is that clause 3 creates liability for assistance
negligently given.64 Fourthly, clause 14 creates the separate offence of con-
spiracy and inducing another to commit an offence. Fifthly, the offence of
failing to report a suspected terrorist crime or person65 may be seen as
another form of accomplice liability.66 Finally, the convention crimes of
financing and harbouring also codify forms of accomplice liability.67 It is
worth noting that accomplice liability is incurred whether or not the terrorist
activity takes place.68
On conviction of terrorism or a related offence, the maximum sentences are
extremely high. Life imprisonment can be imposed for some of the offences
in the Bill69 and the maximum fine is R100 million – the highest in the sta-
tute books. In allowing the lower courts to impose some of these sentences, the
draft Bill follows POCA’s approach of raising the normal sentencing limits of
these courts.70 The Bill allows the district magistrates’ courts sentencing limits of
R250 00071 and five years, and the regional magistrates’ courts a maximum
sentence of R100 million and eighteen years.72 The rationale for the elevation of
sentencing limits is unclear, and the wisdom of the change is questionable. The

64
Liability arises when the person providing assistance ‘knows or ought reasonably to have
known or suspected’ the existence of the main offence.
65
Clause 12.
66
This provision was introduced in earlier versions of the anti-terrorism Bill. It carried a
severe sentence (the maximum penalty was five years’ imprisonment with no option for a
fine) and was problematic constitutionally. Failure to volunteer information could lead to
imprisonment but persons who provided information were protected only by conditional
indemnity (clause 21(2)). People caught under this provision also faced detention for
interrogation if the NDPP was not satisfied that they had revealed all their information
(clause 16). In its latest version, this provision forces people to reveal their information on
terrorist crimes or persons, but no longer threatens them with detention should their
information appear incomplete. However, the Bill does not grant indemnity to people
who incriminate themselves while providing the information.
67
See clauses 4 and 11. These forms of accomplice liability are also already offences under the
common law.
68
With regard to clauses 2, 3, 4, 11, 12(2) and 14; see also clause 17.
69
Terrorism itself (clause 2) and all the convention offences.
70
For example, POCA allows the regional magistrates’ courts to impose fines of R100
million and imprisonment of thirty years, whereas the normal sentencing limit for the
regional magistrates court is R300 000 and fifteen years’ imprisonment. See s. 92 of the
Magistrates Court Act 32 of 1944 and Government Gazette 19435, GN R1410 of 30
October 1998.
71
See clause 18 of the South African Bill. The maximum sentence which the District
Magistrates Court may impose in cases other than POCA cases is R60 000 or three
years’ imprisonment. See s. 92 of the Magistrates Court Act 32 of 1944 and Government
Gazette 19435, GN R1410 of 30 October 1998.
72
Clause 18.
C. H. POWELL
568

magistrates’ courts do not produce published judgments and are loath to engage
with constitutional issues.73
On conviction, forfeiture of assets connected to the crime is mandatory.74
Third parties have three years – the normal prescription period – to claim
restitution or compensation for their interests in the property.75 They face a
reverse onus of proof, as they need to establish that they acquired the property in
good faith and for consideration.76 In addition, they must show either that the
surrounding circumstances were not such as to arouse a reasonable suspicion
of terrorist use of the property, or that they could not prevent such use.77

3. Constitutionality
Despite attempts to render the latest draft more human-rights friendly, its
constitutionality is still in doubt. To the extent that the procedural rights of
terrorist suspects have been restored, not to the usual position in South African
criminal procedure, but to the regime applicable to organized crime, the Bill and
POCA face similar constitutional challenges.78 On its own, POCA can be
challenged for infringing various constitutional rights, particularly the right to
silence, the presumption of innocence, the right not to be deprived of one’s
property, the right to privacy, and the right to dignity.79
Most challenges to POCA have, however, been unsuccessful, and have focused
on the merits of the particular case rather than on the constitutionality of the
provisions of the Act. In addition, judgments which reject the occasional chal-
lenges to the constitutionality of POCA80 do not provide detailed reasoning to

73
The only limitation on magistrates courts’ constitutional jurisdiction is that they may not
pronounce on the constitutionality of legislation or the conduct of government ministers
(s. 170 Constitution of the Republic of South Africa Act 108 of 1996). In practice,
magistrates’ courts tend to assume they have no constitutional jurisdiction at all. See
S. Jagwanth, ‘The Constitutional Roles and Responsibilities of the Lower Courts’ (2002)
18 SAJHR 201 and Powell, ‘South Africa’s Legislation’, at 110.
74
Clause 19. A curious feature of this provision is the phrasing – the Court must order the
forfeiture of property ‘reasonably believed’ to have been used in the commission of an
offence. This formulation leaves unclear what standard of proof is to be applied.
75
Clause 20.
76
Compare clause 17(6) (those accused of financing terrorism under clause four of the Bill
can defend themselves by showing that they dealt with the property concerned purely to
preserve that property’s value).
77
Clause 20(1). The reverse onus of proof in cases of asset forfeiture is often justified on the
basis that the proceedings are in rem and are civil and not criminal in nature. This
construction is criticised by J. Pretorius and H. Strydom in ‘The Constitutionality of
Civil Forfeiture’ (1998) 13 South African Public Law 385.
78
See Powell, ‘South Africa’s Legislation’, at 106–12.
79
Sections 35(1), 35(3)(h), 25, 14, and 10 of the South African Constitution, Act 108 of 1996.
80
Director of Public Prosecutions: Cape of Good Hope v. Bathgate 2000 (2) SA 560 (C), 2000
(2) BCLR 151 (C); NDPP v. Phillips 2002 (4) SA 260 (W); NDPP v. Rebuzzi 2002 (1) SACR
128 (SCA); NDPP v. Mohamed 2003 (2) SACR 258 (T).
TERRORISM AND GOVERNANCE 569

explain why the limitations which POCA places on various constitutional rights
are justified.81 It is therefore difficult to forecast the fate of the terrorism
provisions before the Constitutional Court. In general, courts might respond
more sympathetically to legislation against organized crime than they would
to legislation against terrorism,82 as the former is a particular problem
within South African society.83 And indeed, the courts do refer to the
menace which organized crime poses to South Africa when they approve
the provisions in POCA.84 However, a strong theme in the POCA case law is
also the threat which organized crime presents to the international commu-
nity.85 If South African courts mould their judgments to the perceived needs
of the international community, they might well accept that terrorism is
even more of a threat than organized crime. Given the already sympathetic
response to POCA, this suggests that the anti-terrorism Bill could for the
most part survive constitutional review.
The courts are, however, fairly certain to interpret the anti-terrorism
legislation restrictively – a mechanism whereby some provisions in POCA
have been preserved as constitutional.86 In this vein, the duty to report in
clause 12 of the Bill might be saved by reading in a ‘use indemnity’,87 whereby
the information provided may not be used against the person who reported it.
Similarly, a court may read into clause 23 a right to challenge the Security
Council’s view that a particular organization is terrorist.88
As for the substantive aspects of the Bill, the vagueness of the main
definition of terrorism could possibly be cured by a very restrictive reading

81
For suggested analyses of possible ‘limitations’ enquiries in the context of various drafts of
the anti-terrorism legislation, see Cowling, ‘Return of Detention’, at 349–54 and Powell,
‘South Africa’s Legislation’, at 118.
82
See Powell, ‘South Africa’s Legislation’, at 118.
83
See Bayart, Ellis and Hibou, Criminalization of the State, at 49–68; Powell and Goodman,
‘Reconciling the Fight’ at 43.
84
Bathgate, at para 86.
85
See, for example, NDPP v. Mohamed 2002 (4) SA 843 (CC), in which Ackermann J
commented that ‘the rapid growth of organised crime, money laundering, criminal gang
activities and racketeering has become a serious international problem and security threat,
from which South Africa has not been immune’. See further paras 14–16 of the judgment.
86
For example, in Mohamed, the court read a rule nisi procedure into an asset forfeiture
provision, allowing persons affected to make representations after the initial order had been
given. See also National Director of Public Prosecutions v. Carolus and others 1999 (2) SACR 27
(C); 2000 (1) SA 1127 (SCA) and NDPP v. Seevnarayan 2003 (2) SA 178 (C) at para 38.
87
See Phillips and Mohamed. A use indemnity should not, however, be considered sufficient
protection of the individual’s rights under South African constitutional and international
human rights law. See Powell and Goodman, ‘Reconciling the Fight’, at 47.
88
This could raise serious problems, particularly if the Security Council’s view is communi-
cated through a chapter VII declaration. If the Security Council’s decision is valid under
international law (see below p. 578), South Africa’s constitutional rights would be forcing
the country to contravene international law.
C. H. POWELL
570

of the text. Without creative interpretation, the phrasing of these clauses
could easily be wide enough to infringe the ius certum principle.89 The wide
use of negligence as the required form of fault is extremely problematic and
has yet to be tested in court. The Constitutional Court has interpreted s. 12 of
the South African Constitution – the right not to be deprived of freedom
arbitrarily or without just cause – to include a substantive component.90
A penalty of imprisonment which is imposed for negligence could therefore
be argued to violate s. 12 if the reason for which the state is depriving an
individual of his or her liberty is insufficient.91
Finally, clause 23 of the Bill, which adopts the Security Council’s list of
terrorist organizations for the purposes of asset forfeiture, could be seen as an
unconstitutional delegation of legislative power. Because the Constitution
bestows legislative power on the legislature,92 the Constitutional Court has
already struck down a delegation of plenary legislative powers by the legis-
lature to the executive.93 It can be argued that a delegation of these powers to
an international body, which has no democratic mandate from South Africa’s
citizens, is even less acceptable.

B. Anti-terrorism legislation and draft legislation in East Africa
1. Prevention
In comparison to South Africa, the executive in Kenya, Tanzania and Uganda
enjoys a much wider discretion to decide who is suspected of terrorism and
how to act on that suspicion. All three countries allow the relevant Cabinet
Ministers to declare groups to be terrorist organizations. The Ugandan Act
allows the Minister of Internal Affairs, together with cabinet, to amend the list
of terrorist organizations created by the Act itself.94 Although Parliament may

89
See State President v. Hugo 1997 (6) BCLR 708 (CC) at para 99, citing The Sunday Times
v. The United Kingdom 17 (1979) 2 EHRR 245: ‘A norm cannot be regarded as a ‘law’
unless it is formulated with sufficient precision to enable the citizen to regulate his
conduct: he must be able – if need be with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a given action may entail.’
See Steyn, ‘The draft Anti-Terrorism Bill’.
90
Bernstein v. Bester 1996 (2) SA 751 (CC) and 1996 (4) BCLR 449 (CC); De Lange v. Smuts
NO 1998 (3) SA 785 (CC); S v. Coetzee 1997 (1) SACR 379 (CC); Lawyers for Human
Rights and Another v. Minister of Home Affairs 2004 (4) SA 125 (CC) para 36.
91
See V. Ramraj, ‘Freedom of the Person and Principles of Criminal Fault’ (2002) 18 South
African Journal on Human Rights 225 on the substantive element of due process in
Canadian and South African constitutional law and its impact on criminal fault.
92
Section 44 of the Republic of South Africa Constitution Act no. 108 of 1996.
93
Executive Council of the Western Cape Legislature v. President of the Republic of South Africa
1995 (10) BCLR 1289 (CC); 1995 (4) SA 877 (CC).
94
Schedule 2 of the Act declares the Lord’s Resistance Army, the Lord’s Resistance
Movement and the Allied Democratic Forces to be terrorist organizations.
TERRORISM AND GOVERNANCE 571

subsequently annul changes to the list of declared terrorist organizations, it
may not do so retrospectively.95 The executive therefore has a period of up to
two weeks of untrammelled power to take any measures it wishes against any
organization it chooses. In Tanzania, the Minister of Home Affairs may
declare a person or a group to be a terrorist or a terrorist organization.96
The Minister’s guidelines indicate that there must be a ‘reasonable suspicion’
of terrorism. This term suggests judicial oversight, but the guidelines, which
refer to the view of the UN Security Council, may add support to the
approach of the executive.97 In Kenya, the draft legislation would allow the
Minister of National Security to declare an organization terrorist if, in his or
her belief, it meets the guideline criteria of terrorism provided in the
section.98
Once an organization has been declared to be a terrorist organization,
Uganda allows its Minister of Internal Affairs to dissolve and wind up
terrorist assets and to declare them forfeit to the state99 and Tanzania
empowers the Minister to freeze the funds of a declared terrorist organization
or person.100 Kenya grants less special discretion to the executive to act
against terrorist organizations. Pre-trial asset forfeiture is permitted as a
general measure against terrorist suspects on an ex parte application to a court.101
Apart from organizations and persons declared to be terrorists, there will,
of course, be a wide range of persons and organizations suspected of commit-
ting the crime. The question is then what extra help the executive, particularly
the police, is given in investigating these persons and organizations. The
legislation in Uganda and Kenya does not provide any special police powers
in this respect and, in Tanzania, the Act states merely that police may arrest
without warrant on reasonable suspicion.102 They may also carry out search
and seizure without warrant (notwithstanding the Tanzanian Criminal
Procedure Act) if an application for a warrant would cause prejudicial delay.103

95 96
Section 10 of the Ugandan Act. Section 12 of the Tanzanian Act.
97
As discussed in the conclusion, reference to international bodies, and to the Security Council
in particular, is likely to exacerbate executive domination in the domestic sphere.
98
Clauses 9(4) and (5) of the Kenyan Bill. The Minister’s declaration is nonetheless
reviewable by a court as an administrative act, and would also be subject to constitutional
review under s. 84(1) of the Constitution.
99
Section 10(5) of the Ugandan Act. 100 Section 12(5) of the Tanzanian Act.
101
Clause 20 of the Kenyan Bill. It does not appear that a trial need ever be held to confirm
that the owner of the property is in fact a terrorist. There is also no special provision for
the rule nisi to allow those affected by the order a chance to be heard, although this might
be read into the provision.
102
By police officers of the rank of Station Commander or Assistant Superintendent. Section
28 of the Tanzanian Act. However, in itself, this power presents no unusual departure
from the Criminal Procedure of most countries, and the ‘reasonable suspicion’ require-
ment admits of judicial oversight.
103
Section 29 of the Tanzanian Act.
C. H. POWELL
572

All three states allow for seizure of property on suspicion of terrorist
connections, but place different controls on executive discretion. In
Uganda, Schedule 3 provides for court orders to search for and seize property
if there are reasonable grounds to believe that the property will be of sub-
stantial value to an investigation.104 In Tanzania, the Inspector-General of
Police may issue a detention order against vessels and aircraft,105 which order
the Minister may vary. The police may seize property on suspicion of a
terrorist connection, after which they must apply for a court order allowing
for further detention of the property. The Court order, valid for sixty days, is
renewable.106 In Kenya, the procedure of search and seizure is permissible in
three circumstances: if the person or institution fails to heed a court order
compelling a bank or financial institution to reveal the account details of their
clients, if search and seizure have been separately authorized by the court, or
if such application would cause delay prejudicial to public safety and public
order.107 The phrasing of the latter provision108 suggests that the lawfulness
of the initial search is subject to judicial review. Two contradictory clauses in
the Kenyan Bill each provide for a different regime of retention of seized
articles. The most likely view is, however, that articles may be retained
indefinitely, subject to periodic judicial review.109
All three states provide for surveillance of suspects. The Ugandan Minister
may authorize surveillance operations, under which letters, electronic data
and bank accounts of a suspect may be monitored.110 In granting the author-
ity to monitor, he or she is required to protect, inter alia, the public interest
and national economy. The Tanzanian surveillance procedures may be
authorized by both the Minister and the Court, both of whom may co-opt
private bodies in the interception of information.111 In Kenya, it is only on a
court order that terrorist suspects or financial institutions must grant access
to information and documents in their possession.112
Outside the arena of criminal investigation, the executive in Uganda,
Tanzania, and Kenya is granted other powers to ward off possible terrorist
attacks. The Tanzanian Minister may pass regulations to prohibit the entry of
persons to Tanzania and to prohibit arms sales. The Tanzanian Director

104
Certain items are excluded from the search warrant, including personal and journalistic
material. See Schedule 3 to the Ugandan Act.
105
Section 32 of the Tanzanian Act. 106 See sections 33 (1) and (5).
107
Clauses 19, 25, and 26 of the Kenyan Bill.
108
Clause 26(4) may not be ‘construed as a derogation from the lawful right of any person in
the defence of person or property’.
109
Under clause 40(4) of the Bill, property seized on suspicion of terrorist connections may
be retained for as long as necessary; clause 21 provides for ninety-day renewable court
orders to allow the executive to retain property until trial.
110
Sections 18 and 19 of the Ugandan Act. 111 Sections 30–1 of the Tanzanian Act.
112
Clause 19 of the Kenyan Bill.
TERRORISM AND GOVERNANCE 573

of Immigration may also refuse entry to suspected terrorists and the Minister
may deport suspected terrorists already in Tanzania.113 He or she may also
refuse refugee status to applicants on the basis of suspected terrorist involve-
ment.114 Similarly, the Kenyan Minister may issue exclusion orders against
non-nationals suspected of terrorist involvement, and even against Kenyan
nationals if they have dual nationality.115 Such an order both prevents
the entry of persons and allows for the removal of persons already in
Kenya.116
Finally, all three East African states grant immunity to members of the
executive who act against suspected terrorists. The immunity covers damage
to property and the causing of injury or even death.117

2. Trial
In all three states, the legislation creates the offences both of terrorism and of
a range of ancillary and convention crimes.118 The definition of terrorism is
generally arranged around the three constituent elements of act, purpose and
motivation, although these elements are not always set out schematically and
it is not always clear whether all three elements are required.
The clearest outline is found in Kenya’s legislation. Its first requirement is
an action of particular severity, such as serious violence to a person, damage
to property, endangering life, seriously risking health or public safety and
seriously disrupting an electronic system.119 The action must be intended to
influence the government or intimidate the public and the motivation behind
it must be political, religious or ideological.120 Where weapons are used, the
purpose of the action is irrelevant.121 The Kenyan Bill also provides for
specific offences, based on the two recent UN Conventions against terrorist
bombings and against the financing of terrorism.122 These specific offences
criminalize weapons training, directing a terrorist organization, possessing
articles for terrorist purposes, collecting information for terrorist purposes


113
Section 46 of the Tanzanian Act. 114 Section 47 of the Tanzanian Act.
115
Clause 31 of the Kenyan Bill. 116 Schedule Four, clause 4 of the Kenyan Bill.
117
The Ugandan Act grants civil immunity to all public officers or persons assisting them for
anything done by them in good faith in the exercise of functions conferred by the Act
(s. 32). Under the Tanzanian Act, all police officers who seize property or cause injury,
death or damage under the Act enjoy civil and criminal immunity (ss. 29, 33). Kenya
grants immunity for injury, damage to property and death under clause 40(3) of its Bill.
118
In an apparent oversight, the Kenyan draft Bill defines terrorism but does not expressly
render it an offence. I am assuming that this will be corrected before the Bill is enacted.
119
See clause 3(a) of the Kenyan Bill. The last-mentioned element has an additional mens rea
requirement: the action must be ‘designed’ seriously to disrupt the electronic system.
120
Clause 3(b) and (c) of the Kenyan Bill. 121 Clause 3.
122
K. Nyaundi ‘Synopsis of the Suppression of Terrorism Bill, 2003 vis a vis International
Conventions’ (unpublished paper, 17 December 2003).
C. H. POWELL
574

and inciting offences outside of Kenya.123 A range of accomplice offences
focus strongly on the financial support of terrorism124 but are broad enough
to include all forms of accomplice liability.125 Finally, the Bill empowers the
Minister to declare organizations to be terrorist after which membership in
them becomes a criminal offence.126
Uganda’s definition sets out a list of activities which constitute terrorism if
they are carried out with the aim of influencing the government or intimi-
dating the public, for a political, religious, social or economic aim, indis-
criminately and without due regard for the safety of others.127 The activities
reflect both treaty offences and common-law crimes and include acts of
violence (murder, bombing, hijacking and kidnapping), collecting funds
for ‘terrorist activities under this Act’, interference with electrical systems
and the manufacture of explosives and biological weapons. The Act provides
for wide accomplice, attempt, conspiracy, and accessory liability and creates
the separate offence of running or supporting a terrorist institution.128
A separate list of financing crimes partly duplicates the main crime of
terrorism.129 A list of organizations is declared terrorist by the Act itself
and membership therein is made an offence.130
Tanzania’s definition is particularly unclear. Under s. 4(2), an act or
omission which may seriously damage the country or an international organi-
zation, or is intended to influence the government, intimidate the population
or destroy the fundamental social structure of the state, or involves attacks
upon life, physical integrity and the freedom of a person are all terrorist acts. In
addition, s. 4(3) sets out a list of accomplice terrorist activities, some of which
overlap with s. 4(2). These activities occasionally have special mens rea require-
ments and generally deal with damage to life and limb, use of firearms or
explosives, the release of dangerous substances into the environment and the
disruption of essential services. Lawful protest activities are excluded from the
definition.131 Sections 5 to 10 then create wider sets of accomplice offences, all
of which also count as terrorism under s. 4(5). Sections 13 to 27 set out more
specific offences, covering financial support for terrorism, weapons training,
membership of a terrorist organization and yet more accomplice liability in
various forms.
In attempting to prove these charges, all three East African countries grant
the state additional assistance by relaxing the rules of evidence. The most

123
Clauses 4 to 8. 124 Clauses 14 to 17.
125
Clause 17(e) refers to the provision of ‘any service, skill or expertise’ either intentionally
or negligently for the purposes of terrorism.
126
Clauses 9–10. 127 Section 7(2) of the Ugandan Act.
128
Sections 8, 23, 25–28, and 9.
129
Sections 12 to 14, duplicating in part s. 7(2)(d).
130
Sections 10 and 11 and Schedule 2. The list can be varied by the Minister.
131
Section 4(4) of the Tanzanian Act.
TERRORISM AND GOVERNANCE 575

important example of this change to the normal rules is found in the
introduction of a reverse onus of proof for many of the offences. In
Uganda, for example, a person charged with helping to finance a terrorist
organization bears the onus of proving that he or she did not know of the
organization’s terrorist nature and a person charged with hindering an
investigation (either by making a prejudicial disclosure or by destroying
evidence) must prove that he or she neither knew nor could reasonably
have suspected that his or her actions would hinder the investigation.132 In
Tanzania, a person accused of membership of a terrorist organization must
establish the organization was not a terrorist organization at the time of his or
her membership.133 The Kenyan Bill creates a reverse onus in the cases of
weapons training,134 the use of money and property for terrorist purposes,
and membership of a terrorist organization. In prosecuting the crime of
possession for terrorist purposes under clause 6, the state is relieved of two
evidentiary burdens. It need prove only that the article was found on the
premises which the accused habitually used, and that the surrounding cir-
cumstances ‘give rise to a reasonable suspicion that his possession is for a
purpose connected with the commission, preparation or instigation of an act
of terrorism’. The accused must then either disprove the mens rea of posses-
sion or prove that the possession was not for a terrorist purpose. If charged
with making available a document which is ‘likely to be useful to a person
committing or preparing an act of terrorism’,135 the accused must similarly
establish that the document was not to be put to terrorist use. Collecting or
transmitting information has a reverse onus in that the accused may establish
a ‘reasonable excuse’.136 Finally, the Bill provides a reverse onus in the offence
of membership of a terrorist organization. It is particularly interesting, as it
allows the accused to prove that he or she was not a member of the organiza-
tion at the time it was a declared a terrorist organisation,137 but does not
suggest that the accused can challenge the categorization of the organization
as terrorist.138
In Uganda and Tanzania, penalties on conviction for terrorist offences are
harsh. In Uganda, the death sentence is mandatory for acts of terrorism which
result in death and may be imposed for all lesser forms of terrorism.139 If
convicted of financing terrorism under sections 12–14,140 an accused faces a
maximum sentence of ten years.141 In Tanzania, the only offence with a

132
Sections 13, 14, and 17 of the Ugandan Act.
133
Or professed membership. See section 25(2) of the Tanzanian Act, which allows the
Minister to declare organizations terrorist on a ‘reasonable suspicion’ of terrorism (s. 12).
134
Clause 4(6). 135 Clause 7(1). 136 Clause 7(3). 137 Clause 10(2).
138
Compare s. 25 of the Tanzanian Act. 139 Sections 7(1)(a) and (b) of the Ugandan Act.
140
As opposed to under the ‘terrorism’ section itself, which also covers the financing of
terrorism in section 7(d).
141
Section 16(1) of the Ugandan Act.
C. H. POWELL
576

minimum sentence below fifteen years is that of arranging a terrorist meet-
ing,142 for which crime the sentence ranges between ten and fifteen years.
Funding terrorism, using and retaining terrorist property and recruiting for
terrorism carry sentences of between fifteen and twenty years, while provid-
ing property for terrorist use and dealing with terrorist property carry
sentences of between twenty and twenty-five years.143
Kenya’s draft legislation currently appears mild by comparison, but its
clemency may be accidental. It provides a maximum sentence of ten years
imprisonment for ancillary offences such as weapons training, possessing
articles for terrorist purposes, collecting and transmitting information and
membership of a terrorist organization.144 By a curious anomaly, however,
no penalty is attached to terrorism as such because terrorism is not expressly
rendered an offence by the Bill.145
In both Kenya and Uganda, the courts have a discretion to order the
forfeiture of property on conviction for a terrorist or terrorist-related offence.
Kenya’s draft Bill does not provide any guidelines for how a court should
exercise this discretion, whereas Uganda allows the forfeiture order to be
made if the court believes the property will be used for further terrorist
offences. However, the onus rests on the person who attempts to preserve
the property to prove that it will not be used in this way.146 Both Kenya and
Uganda allow third parties to establish their rights in the property.147

V. Conclusion
The international anti-terrorism regime threatens a range of human rights,
including the right to property, the right to be presumed innocent until
proven guilty, the right to a fair trial and various freedoms, such as freedom
and security of the person and freedom of association.148 However, as pro-
ducts of negotiation, the anti-terrorism treaties are broad enough to allow for
a range of interpretations, and they also defer expressly to the international


142
Section 26 of the Tanzanian Act.
143
Sections 13 to 17 and 21 of the Tanzanian Act.
144
Clauses 4, 6, and 10 of the Kenyan Bill.
145
See above note 118.
146
Section 16(5) of the Ugandan Act.
147
The Ugandan Act appears to expect interested parties to make an application immedi-
ately after the conviction of the person who used the property for terrorist purposes as it
does not set aside a period in which third parties can make their claims (s. 16(6)). The
Kenyan Bill allows third parties six months to bring an application (clause 22 and the
third schedule).
148
S. Jagwanth and F. Soltau, ‘Terrorism and Human Rights in Africa’ in (2002) Africa and
Terrorism Monograph no. 74, Institute for Security Studies, Pretoria, 27–8; Powell and
Goodman, ‘Reconciling the Fight’, at 39–41.
TERRORISM AND GOVERNANCE 577

human rights regime.149 Where a norm of the international anti-terrorism
regime threatens human rights, therefore, the domestic regime could be
expected to implement the norm at only a minimal level.
Within the four states in this study, the approach to human rights varies
widely. On the whole, legislation which passed through Parliament quickly,
and avoided prolonged consultation, is the most draconian, while legislation
which has run the gauntlet of a protracted and controversial consultative
process has become considerably more rights-friendly. Nonetheless, a com-
parison between the domestic regimes and the treaties reveals that all of the
domestic anti-terrorism regimes have to some extent adopted and even
exceeded the treaties’ repressive provisions. Thus, for example, the
Financing and Organized Crime Conventions, the only conventions to pro-
vide for asset seizure,150 do not mandate seizure before a criminal conviction
is obtained. Yet all four states provide for seizure of property prior to criminal
conviction151 and both Uganda and South Africa provide expressly for
permanent forfeiture of ‘terrorist’ property. While such forfeiture requires
a court order in South Africa,152 it can be achieved by executive fiat in
Uganda.153 Similarly, although only the Organized Crime Convention sug-
gests that states might lower the standard of proof in criminal trials, all the
states introduce a reverse onus into their criminal offences.154
Finally, there is no obligation in the treaties to deprive the judiciary of
ultimate control over the process of counter-terrorism. However, our case
studies demonstrate that the focus of power has shifted significantly to the
executive. Many examples of unchecked executive power are obvious. They
include the power to determine terrorist status and to act against persons and
property, coupled with wide immunity protecting officials from the legal
consequences of their actions. But other examples of executive discretion are
more subtle. An almost invisible, but powerful, factor is the role of the
executive in the foreign sphere. As the organ responsible for foreign affairs,
the executive forms the interface between states and between international
and domestic legal regimes. To the extent that a domestic anti-terrorism
regime is being driven, not by internal necessities but by international law or


149
Articles 15 and 17 Financing Convention; articles 3(1) and 22(1) Algiers Convention; and
articles 12 and 14 Bombing Convention. See also article 3(f) of SCR 1373.
150
Article 8 Financing Convention; article 12(1)(b) Organised Crime Convention.
151
Tanzania and Kenya allow seized assets to be held indefinitely, but not necessarily
disposed of. See s. 33 of the Tanzanian Act and Clauses 21 and 40(4) of the Kenyan Bill.
152
On a lowered standard of proof. See above notes 47 and 77.
153
Section 10(5) of the Ugandan Act.
154
Clause 17(6) of the South African Bill; sections 13, 14(2) and 17 of the Ugandan Act;
section 25(2) of the Tanzanian Act; clauses 4(6), 6(1) and (2), 7(1) and (3) and 10(2) of
the Kenyan Bill.
C. H. POWELL
578

the political pressure of other states, this regime can have a strong executive
bias from its inception.
In the modern state, the executive usually initiates legislation, which may
give it the power to import the international regime into its domestic system
with little regard for internal needs. The legislature is meant to provide a
democratic check on executive proposals, but it may not always be up to the
task. This is evident not only in the repressive measures in the legislation but
also in the outward-looking perspective which permeates it. Sometimes this
perspective emerges clearly, as when the view of the UN determines which
organizations are prohibited and which property may be forfeited. But it is
also an underlying theme of the system as a whole, in that it moulds the
domestic system towards the needs of other states and implicitly assumes the
legitimacy of the international anti-terrorism regime.155
Uganda’s removal of the political offence exception in its extradition
regime156 is a clear example of such an assumption. The measure demon-
strates that Uganda assumes that violent opposition to the government of a
foreign state is illegitimate. In a similar vein, Uganda must assume that the
action of the foreign executive is legitimate, that is, that the executive speaks
both for the rest of the government and for the state as a whole. These
assumptions, which conform to classical international law, have been chal-
lenged by international human rights law. The human rights regime recog-
nizes the potential disjunction between a government and the people of a
state, and it vests statehood in the latter by insisting on democratic rule.
Similarly, the doctrine of separation of powers reminds us that the executive
should not be conflated with the government as a whole; it is but one power
structure, which must be kept in check by the other two.
Conflicts between two international law regimes warn us against a blind
adherence to international law as a system. From observation of the anti-
terrorism regime, it is clear that international law is not a monolith but a
patchwork of norms and values. Conflict between the norms results not only
from differing goals within a single system (in this case, the promotion of
human rights and the prevention of terrorism) but also from the fact that, as a
legal system without a central legislature, international law reflects competing
sources of authority.


155
A view also reflected in South Africa’s case law, as Bathgate and Mohammed demonstrate.
156
By allowing states to recognize some forms of violence against another state as legitimate,
the political offence exception mirrors the right to self-determination, although it is
broader. The recent blossoming of the anti-terrorism discourse has avoided the seem-
ingly impossible task of determining which politically inspired violence is acceptable by
simply rejecting the political offence exception altogether. While all four states in this
study exclude the political offence exception to differing extents, s. 5 of the Uganda Act
excludes it for the entire range of offences.
TERRORISM AND GOVERNANCE 579

In the international sphere, the Security Council has claimed the power to
create a long-term, binding regime against terrorism, a shift by which it
extends its role from a primarily executive organ157 to a source of law. The
precursor to this development was its creation of International Criminal
Courts in the 1990s, but these judicial structures were at least independent
of the Security Council.158 SCR 1373 of 2001 now attempts to fast-track the
usual process whereby states create treaty and customary international law.
Although it does not oblige signature of the Financing Convention,159 its
recommendation that states become parties, coupled with article 25 of the UN
Charter,160 puts states under strong pressure to set up the long-term, legal
regime proposed by this treaty.
As discussed above, the treaty regime may, with some effort, be capable of a
fairly benign implementation. However, domestic implementation of the
treaties seems to accord more closely with the approach of the Security
Council, a role model which is showing scant regard for international
human rights constraints in its counter-terrorism programme. The Council
has itself gone well beyond the requirements of the treaty regime by declaring
a list of persons and organizations to be terrorists and by obliging states to
carry out a wide range of measures against them, including freezing of
assets.161 The Security Council acts without any judicial oversight, and with
little consideration for the rules of natural justice. The party who is desig-
nated a terrorist does not receive a hearing and cannot apply directly to the
Security Council to have its name removed from the list.162


157
Although the UN cannot be divided neatly into the domestic categories of legislature,
judiciary and executive, the Security Council most closely resembles an executive and is
the most powerful body in the UN. Designed to take speedy action to deal with threats to
world peace in the short-term, it was the only organ empowered to bind states to carry
out particular courses of action (see article 25 and Chapter VII of the UN Charter).
158
´
See Prosecutor v. Tadic , Case No. IT–94–1–AR72, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, 2 Oct 1995 reprinted in (1996) 35 I.L.M. 32. Here
the Court guarded its independence as a judicial organ from the Security Council (paras
5–22) and implied that the Security Council was bound to respect certain trial rights in
the creation of the Court (para 42).
159
Article 3(d) of SCR 1373 of 2001.
160
By which states agree to abide by Security Council decisions.
161
The list predates SCR 1373, but many of the measures are new. See note 162 below.
162
The list of terrorist organizations and individuals is updated by the Security Council
Committee established pursuant to resolution 1267 (1999) concerning al Qaeda and the
Taliban and Associated Individuals and Entities. Names are added to the list via the ‘no
objection’ procedure: a government circulates the names of organizations and indivi-
duals whom it wants designated terrorist. If no objections are received within 48 hours,
the names are accepted. The delisting procedure is more onerous. Persons affected by the
listing have no direct access to the Committee, and can appeal their listing only with the
assistance of their own governments.
C. H. POWELL
580

Terrorism is best countered if its incidents are prevented and not merely
prosecuted. As a result, swift executive action, untempered by judicial or
legislative oversight, may be needed to respond effectively to terrorist threats.
But this does not dispense with the need for a legal framework for the
executive action. The blurring of the line between the executive and judicial
spheres is accompanied by a blurring of the distinction between law and
power. Without a determinate definition at its foundation, the international
anti-terrorism regime itself has doubtful status as a legal regime. At the same
time, the indiscriminate application of anti-terrorism legislation at the
domestic level leads to a conception of terrorism as any criminal behaviour.
This is alarming, and not just because an overbroad concept of terrorism
enables the government to use extra and repressive powers. An overbroad
concept ceases to be a legal one. It suggests that the entire counter-terrorism
programme is neither based on, nor subject to, law.
While domestic courts consider the proper limitations on executive power
within the anti-terrorism regime, international courts and writers have begun
to grapple with the charge that the Security Council is transcending its
boundaries as an executive organ of the UN. This constitutional question
accompanies criticism that the executive-led anti-terrorism regime ignores
international law and particularly international human rights. It would
appear that we cannot fight terrorism globally while restricting the doctrine
of separation of powers to the domestic sphere.
26

Rocks, hard places and human rights: anti-terrorism
law and policy in Arab states
LYNN WELCHMAN


Introduction
This chapter provides an overview of legislative developments in Arab states
following the passage of Security Council resolution 1373 (2001), focusing on
definitions of ‘terrorism’ and ‘terrorist’ offences. It considers the Arab
Convention for the Suppression of Terrorism before proceeding to review
the responses of a number of individual states. Moves towards political
reform and the opening of public space for dissent and criticism are chal-
lenged by the exigencies of the ‘war on terror’. Certain practices in violation
of human rights in Arab states have apparently been endorsed by the US
alongside a newly stated policy focus on ‘democratization’ in the region.
Dissonance between law-related word and deed of the states leading the
‘war on terrorism’ – particularly the US, but also the UK – sustains the
arguments of those who seek to undermine the discourse of rights and rule
of law, complicates the considerable challenges posed to local and regional
human rights groups, and seriously undermines the credibility of inter-
national law in the region; the efficacy of all of which in the ‘global war on
terrorism’ must surely be open to question.

I. Regional context
The US overview of Patterns of Global Terrorism for 2003 confirmed that ‘the
Middle East continued to be the region of greatest concern in the global war
on terrorism’.1 At the same time, it is the lives and freedoms of the popula-
tions of Arab states in the region that have probably been the most directly
affected by the anti-terrorism laws and policies being implemented and
promoted by the US since 9/11. Uncounted thousands of non-combatants
have been killed by the US-led forces in Afghanistan and Iraq. Hundreds of
Arabs of different nationalities are held in Guantanamo Bay, and Arab men

1
Office of the Coordinator of Counter-terrorism, Patterns of Global Terrorism – 2003,
Washington, 29 April 2004, 58; available at http://www.state.gov/s/ct/rls/pgtrpt/2003/
c12153.htm.

581
LYNN WELCHMAN
582

have been major targets of various domestic ‘counter-terrorism’ arrest and
detention procedures which have been roundly criticized.2 In the region,
thousands have been arrested in Arab states, many held for prolonged periods
without trial and others sentenced after trials that failed to meet international
standards of due process.3
Nationals from different states in the region have been implicated in
attacks attributed to or claimed by al Qaeda and various groups associated
with it, both before and after 9/11. Since 2001, the Arab region has seen major
bombings and other armed attacks in states such as Tunisia, Saudi Arabia and
Morocco, with scores of dead and injured. Recent decades also saw consider-
able ‘domestic’ political violence, with thousands of lives lost. Arab states
have underlined their prolonged exposure to terrorism and promoted the
ways in which they have sought to deal with it as potential models which
others in the international community might do well to follow. The Egyptian
Prime Minister said that ‘maybe Western countries should begin to think of
Egypt’s own fight against terror as their new model’, and Syria’s President
Bashar al-Asad pressed the USA to ‘take advantage of Syria’s successful
experiences’.4 As a regional grouping, ‘Arab states were among the first to
reach an anti-terrorism agreement’ and were ‘the first to warn against the
danger of terrorism and the importance of taking collective measures to
combat it’.5 All twenty-two state members of the Arab League have signed
up to the 1998 Arab Convention on the Suppression of Terrorism.
Implicit in these statements are rebukes to states now seen to be leading the
‘global war on terrorism’ for their past criticisms of the Arab states; both Syria
and Egypt have been heavily criticized for human rights abuses involved in
precisely the approaches that they now present as potential models of efficacy.
There is also reproach for a less than vigorous engagement with the ‘terrorist
threat’ until the attacks of 9/11. In its first report to the Counter-Terrorism
Committee (CTC), Algeria opened with these words:

2
See, for example, Human Rights Watch, United States: Abuses Plague September 11
Prosecutions, 15 August 2002; and ‘United States: Ensure Protection for Foreign
Detainees’ 1 December 2001; Neil Hicks, ‘The Impact of the September 11 Attacks on
Civil Rights in the United States’ in Ashild Kjok (ed.), Terrorism and Human Rights after
September 11 (Cairo Institute for Human Rights Studies, 2002), 55–64.
3
Two Amnesty International reports are pertinent: ‘The Gulf and the Arabian Peninsula:
Human rights fall victim to the ‘‘War on Terror’’’ AI Index: MDE 04/002/2004 22 June
2004; and ‘Morocco/Western Sahara: Torture in the ‘‘anti-terrorism’’ campaign’ AI Index
MDE: 29/004/2004 24 June 2004.
4
Joe Stork, ‘The Human Rights Crisis in the Middle East in the Aftermath of September 11’
in Kjok, Terrorism and Human Rights, 41–54, at 43 and 45.
5
Respectively, the Secretary-General of the League of Arab States ` Amr Mousa, in Kjok
(Terrorism and Human Rights, 21–23 at 21) and the Saudi Arabian Interior Minister quoted
after the May 2003 Riyadh bombings in the Kingdom of Saudi Arabia (newsletter, London
Embassy) July 2003.
ANTI-TERRORISM LAW AND POLICY IN ARAB STATES 583

Having long suffered the ravages of terrorism often in the face of indiffer-
ence and occasional complaisance on the part of certain sectors of the
international community, Algeria welcomes the adoption of the resolution
[1373] insofar as it reflects a welcome acknowledgement by the inter-
national community of the potential threats both to national stability and
to international peace and security represented by the scourge of terrorism.
On September 11, the world paid the price of underestimating the dangers
posed by the terrorist threat and its potential for destruction. . . . As a
victim of terrorism, Algeria urges the international community to firmly
commit itself to definitively abandoning erroneous and selective percep-
tions surrounding the phenomenon of terrorism.6

A particular concern voiced by Algeria, shared by other states in the region,
concerns a feature of most new anti-terrorism legislation which criminalizes
‘supporting actions abroad which satisfy the definition of terrorism’.7 As the
Algerian government put it, ‘the need for rigorous counter-terrorism efforts
concerns first and foremost the countries whose territories are known to
harbour support networks and to be used by terrorist groups as staging
areas’.8 States such as Algeria and Egypt had long been objecting to the
activities of dissident Algerians and Egyptians in the UK, urging the intro-
duction of measures finally realized in the UK’s Terrorism Act 2000 –
according to Kent Roach, ‘something of a gold standard after September 11’
in Commonwealth countries.9 Considerable scepticism has been voiced as
to whether the critical distinction between ‘dissident/opposition/resistance’
and ‘terrorism’ is adequately preserved in new anti-terrorism legislation;
practice (not only judicial but executive and security practice) rather than textual
analysis alone is likely to be the key. Algeria went on to propose a ‘series
of concrete proposals’ for a global counter-terrorism strategy.10
US officials have on various occasions indicated that they are listening. In
2004, the deputy commander of the US European command noted that ‘we
think we have a lot to learn from the Algerians’.11 US Secretary of State Colin

6
UN Doc S/2001/1280 27 December 2001, (first report of Algeria to the Counter-Terrorism
Committee pursuant to paragraph 6 of Security Resolution 1373 (2001)), 4.
7
Kent Roach, ‘The World Wide Expansion of Anti-Terrorism Laws After 11 September
2001’, (2004) 116 Studi Senesi 481 at 492. I am grateful to Professor Roach for providing
me with this text.
8 9
Note 6 above. Roach, ‘World Wide Expansion’, 3.
10
´
UN Doc. S/2001/1280 Appendix 1: Aide-memoire.
11
Giles Tremlett, ‘US sends special forces into north Africa’, Guardian, 15 March 2004.
Tremlett observes that ‘states previously shunned by the international community, such as
Algeria, are being provided with arms and military training and may become a corner-
stone of US military interests in the region’. On plans by US Defence Secretary Donald
Rumsfeld to ‘thrust special forces into the lead role in the war on terrorism, by using them
for covert operations around the world’, see Jennifer D. Kibbe, ‘The Rise of the Shadow
Warriors’ 83/2 Foreign Affairs March/April 2004, 102–15.
LYNN WELCHMAN
584

Powell agreed that Egypt was ‘really ahead of us on this issue’ and that the US
had ‘much to learn’ from Egypt’s anti-terrorist tactics, although Joe Stork of
Human Rights Watch points out that such tactics ‘have been used against
non-violent critics as well’.12 At the end of 2002, it was reported that CIA
agents in Bagram and Diego Garcia were ‘contracting out their interrogation
to foreign intelligence agencies known to routinely use torture’; specifically, it
was reported that ‘low-level suspects have been handed over to Jordanian,
Egyptian and Moroccan agencies . . . with a list of questions from the CIA’.13
This indicates particular challenges for the Arab human rights movement.
Implicit in Arab states’ reports to the CTC is a vindication of existing
draconian legislation and practice, in defiance of sustained criticism by
domestic and regional human rights groups as well as by international
human rights organizations and the dedicated United Nations mechanisms.
The threat perceived to human rights in the ‘global war on terrorism’ is of
course not limited to the Middle East. Irene Khan, Secretary General of
Amnesty International, has said that ‘in a world engaged in the so-called
‘‘war on terrorism’’, human rights were seen as an obstacle to ensuring victory
and human rights defenders as defenders of ‘‘terrorists’’’.14 As mass arrests
began after the Casablanca bombings in May 2003, the official Moroccan
discourse accused human rights activists of being ‘soft on terrorism’ by
indulging in ‘knee-jerk criticism of the security services’.15 In Egypt just
after 9/11, the Prime Minister took the human rights movement to task for
its long-standing campaigns against torture and unfair trials, criticizing
groups for ‘calling on us to give these terrorists their ‘‘human rights’’’.16
And in Yemen, Amnesty International reported a climate of fear in the period
directly following 9/11 that stifled internal dissent to an unprecedented
degree – fear of a possible US military attack or economic sanctions.17 This
last example, albeit lifting by late 2003, illustrates one of the specificities of the
Arab world: a fear of being ‘next on the list’. Another is the long-standing and
profound grievance in the region at the treatment of the Israel/Palestine


12
Stork, ‘Human Rights Crisis’, 45.
13
Suzanne Goldenberg, ‘CIA accused of torture at Bagram base: some captives handed to
brutal foreign agencies’, Guardian, 27 December 2002. Original Washington Post report
‘US Denies Abuse but Defends Interrogations’, 26 December 2002; see Human Rights
Watch press release and intervention, ‘United States: Reports of Torture of al Qaeda
Suspects’, 27 December 2002.
14
Irene Khan, ‘Human Rights Challenges following the events of September 11 and their
impact on universality and the human rights movement’ in Kjok, Terrorism and Human
Rights, at 35.
15
Eileen Byrne, ‘Escaping from the Chains of History’, Financial Times, 16 April 2004.
16
Stork, ‘Human Rights Crisis’, 44.
17
Amnesty International, ‘Yemen: The Rule of Law sidelined in the name of security,’ AI
Index: MDE 31/006/2003 24 September 2003.
ANTI-TERRORISM LAW AND POLICY IN ARAB STATES 585

dispute by the major Western powers: specifically, the failure to hold Israel, as
the occupying power, to its established duties under international law over
the decades, exemplified most recently at George Bush’s apparent endorse-
ment of Israel’s intention to keep control of major settlement blocks in the
West Bank, and to deny Palestinian refugees the right to return inside the
1948 borders. The Director of the Cairo Institute for Human Rights Studies,
Bahey el-Din Hassan, outlines the impact of such actions in producing an
‘accumulated feeling of injustice’:
This undermines the credibility of international human rights law and
international humanitarian law and increases the reservation of many
people in the Arab and Islamic worlds as to the universality of human
rights principles and values.18

The Iraq war has increased these reservations, fuelled most recently by the
attack on Falluja and the release of photo documentation of the torture and
inhuman treatment of Iraqi detainees. The situation of detainees in
Guantanamo Bay is a further exacerbating factor. Governments of Arab states
are likely to feel less pressure in regard to their own abusive practices.
Domestic actors seeking socio-political reform are considerably constrained
by the resulting dynamics.

II. Legislative themes
A regional overview of the Arab states presents a varied picture. It will clearly
be important to have detailed country studies on a number of states in the
region in order to meaningfully inform a ‘global’ comparative process and to
integrate the Arab experience into the development of mainstream paradigms
in this emerging area of study.
With this caveat, certain legislative themes can be identified across the
region. All Arab states are party to the Arab Convention on the Suppression
of Terrorism and to a growing number of related international conventions.
All are party to two or more of the United Nations human rights treaties,
although some are not yet party to the ICCPR or the ICESCR19 and others
have not yet signed up to the Convention Against Torture.20 A number of
Arab states are party to the African Charter on Human and Peoples’ Rights.
A regional human rights instrument, the Arab Charter on Human Rights, was
criticized by international human rights groups for serious flaws and gaps
upon its adoption in 1994 by members of the League of Arab States. The

18
Bahey el-Din Hassan, 13–16 in Kjok, Terrorism and Human Rights, 15.
19
These include Bahrain, Comoros, Mauritania, Oman, Qatar, Saudi Arabia and the United
Arab Emirates.
20
Iraq, Mauritania, Oman, Syria and the United Arab Emirates.
LYNN WELCHMAN
586

Charter failed to secure any ratifications in the years following.21 Most
recently (in 2003) a process of review for the ‘modernization’ of its contents
was initiated in the Arab League, matching a number of governmental
initiatives on human rights ‘institutionalization’. Most Arab states have yet
to ratify the statute of the International Criminal Court.22
Domestically, individuals are rarely able to realize human rights protec-
tions by directly invoking international human rights instruments in national
courts. Weak and unempowered national judiciaries are usually unable to
assert their independence against the executive to secure judicial protection
of human rights, even though the rights enshrined in international instru-
ments are also guaranteed in most of the constitutions of the region. The
prospect of a ‘dialogue’ between courts and legislatures on the limits being
set to rights and freedoms, particularly on ‘security’ issues, is minimal.
Moreover, state security courts or other ‘special tribunals’ – including mili-
tary courts – are often assigned jurisdiction over perpetrators accused of
offences against state security. Such courts have fewer procedural protections
than the ordinary court system. Unfair trials that fail to meet the standards set
by international law or required in domestic law have been documented
across the region well before 9/11.23 Political opponents and non-violent
critics have been the targets of such procedures, including alleged or sus-
pected Islamists and communists, human rights defenders, journalists and
newspaper editors. There are widespread reports of torture by police and
security services, and all Arab states retain the death penalty, although it is
used more commonly in certain states.24 Some states have semi-permanent
‘states of emergency’ in force, and several face the threat of serious political
violence from groups included in the ‘proscribed’ or ‘terrorist’ organizations
listed by the US or the EU.25 Tempering this picture are a set of developments
indicating moves towards political and social reform with greater space for
debate and dissent.
Legislatures in the region have generally acceded to the executives’ deter-
mination of the exigencies of security in matters of new or amended


21
See Mona Rishmawi, ‘The Arab Charter on Human Rights: A Comment’ 10 INTERIGHTS
Bulletin 1996.
22
Those that have are currently Jordan and Djibouti.
23
See Amnesty International, ‘State Injustice: Unfair Trials in the Middle East and North
Africa’ 16 April 1998 AI Index: MDE 01/002/1998.
24
Robert Postawko, in ‘Towards an Islamic Critique of Capital Punishment’ [2002] UCLA
Journal of Islamic and Near Eastern Law 269–320 at 270, notes (albeit based on an AI
reference from the 1980s) that Bahrain and Djibouti can be considered ‘abolitionist in
practice’.
25
Including the Abu Nidal organization, the Armed Islamic Group (GIA), al-Gama `a al-
Islamiyya, Egyptian Islamic Jihad, and the Salafist Group for Call and Combat, as well as
al Qaeda. See Patterns of Global Terrorism, Appendix B, 113 ff.
ANTI-TERRORISM LAW AND POLICY IN ARAB STATES 587

legislation; civil society groups have been more critical. Some states already
had extensive and explicit anti-terrorism legislation, such as Egypt and
Algeria; others have introduced amendments to their Penal Codes addressing
the issue of terrorism, such as Jordan and Morocco. Tunisia, which already
exercises particularly tight political control through its criminal legislation
and press law, has promulgated a new Law Against Terrorism and Money
Laundering. Syria at first gave the impression of not standing in need of
amending its laws or regulations, satisfied that its existing penal code already
met the requirements of Security Council resolution 1373, but its second
report mentions a draft law on money-laundering.
This examination focuses on the definition of terrorism in legislative
instruments, as well as measures taken that would not appear critical to the
anti-terrorism mandate, but have the potential to considerably restrict the
scope for non-violent political dissent. It is unlikely that the Arab states
present an exception; as Christopher Harding has observed, it is ‘in the
interest of governments to take advantage of any opportunities for extending
the scope of their measures of legal control when political circumstances are
conducive to such developments’.26
Legislative responses of Arab states match those of the Anglo-American
systems examined by Kent Roach:27 the expansion of the definition of terror-
ism; the introduction of new offences, particularly regarding funding and
financing activities, that apply ‘long before an act of terror is committed’; the
expansion of crimes of ‘association’; and the expansion of police powers, in
`
particular the extension of pre-arraignment detention (garde a vue) with
counsel excluded. There are detailed listings of potential offences, frequently
with ‘catch-all’ phrases, and an increase in penalties where ‘ordinary crimes’
are classified as ‘terrorist offences’. Terrorism is not defined by identification
of the act or threat with advancing a ‘political, religious or ideological cause’;
indeed, the phrase ‘whatever the motives’ may be added, to emphasize that
the accused’s possible political or ideological motive is not an element in the
offence. In certain cases, the definition of ‘terrorism’ appears to be disso-
ciated also from the ‘much less controversial’28 purpose of intimidation or
causing fear to the public as well as from seeking to influence the actions of
government or public bodies. The acts through which terrorism is established
do not, in some cases, appear to have to be of particular severity or danger.
There is a fairly standard exemption or reduction in penalty for those who
inform the appropriate authorities of the preparation of an act of terrorism.
In none of the legislation reviewed in this chapter is there an exemption such as
Roach notes to be contained in Canadian and Australian laws for certain acts

26
‘International Terrorism: The British Response’ [2002] Singapore Journal of Legal Studies
16–29, 18.
27
Roach, ‘World Wide Expansion’, 489. 28 Ibid. 491–2.
LYNN WELCHMAN
588

of ‘advocacy, protest, dissent or stoppage of work’.29 Victor V. Ramraj
observes that ‘in jurisdictions where political opposition is otherwise mini-
mally restricted, a broadly worded definition of terrorism may well have a
chilling effect’.30 In the Arab states, where political opposition is considerably
restricted, such definitions may be more than chilling. On the other hand,
they may be met with resilience by non-violent opponents and critics as
‘more of the same’, stronger tools in harder times, which may or may not
be offset by the discourse of democratization running parallel. Their ‘effect-
iveness’ in relation to actual or would-be violent groups or individuals is
open to question.31

III. The Arab Convention for the Suppression of Terrorism
The Arab Convention for the Suppression of Terrorism, adopted by member
states of the Arab League in 1998, came into force in 1999. It is pointed to by
Arab states in their reports to the CTC as evidence of forward-thinking and
responsible action by governments in the region. The Convention defines
‘terrorism’ in Article 1(2) as:
Any act of violence or threat thereof, whatever its motives or purposes, that
occurs in execution of an individual or collective criminal undertaking, and
is aimed at sowing fear among people, or causing fear by harming them or
exposing their lives, liberty or security to danger, or causing damage to the
environment or to a public or private installation or property, or occupying
or taking over the later, or exposing a national resource to danger.
This definition requires the element of violence or threat thereof, together
with an undertaking that is criminal under national legislation and aimed at
one of the list of purposes or actions. The phrasing in Arabic does not seem to
require that the element of ‘sowing fear among people’ or ‘causing fear’
condition the remainder of the purposes, which potentially renders many
ordinary criminal activities acts of terrorism. However, if the intention is in
fact that the clauses following the word ‘danger’ are to be read as conditioned
by a necessary element of causing fear, the definition is still extremely broad.
At the time of the Convention’s promulgation, an Amnesty International
report held that the definition was so broad that it ‘does not satisfy the
definition of legality in international human rights law’ and that it could be
read as posing a threat to the freedoms of association and of expression.32 The

29
Ibid. 496–7.
30
‘Terrorism, Security and Rights: A New Dialogue’ [2002] Singapore Journal of Legal
Studies 1–15, at 4.
31
Ibid.
32
Amnesty International, ‘The Arab Convention for the Suppression of Terrorism; a serious
threat to human rights’ 21 January 2002 AI Index: MDE 01/002/2002, 8.
ANTI-TERRORISM LAW AND POLICY IN ARAB STATES 589

definition could be applied to certain forms of attack not prohibited by inter-
national humanitarian law regulating non-international armed conflict, and that
if it were indeed to render such conduct ‘terrorism’, ‘armed political groups will
lose an important incentive to comply with international humanitarian law’.33
Three elements have been identified by the UN’s Office of the High Commissioner
for Human Rights that could be included in a definition of terrorism: ‘criminal
acts intended or calculated to provoke a state of terror in the general public, a
group of persons or particular persons for political purposes’.34 In the Arab
Convention’s definition, the only definite overlap is with the first element of
‘criminal acts’, although it adds the element of violence or threat thereof.
A ‘terrorist offence’ is defined in Article 1(3) as:
Any offence or attempted offence committed for a terrorist purpose in any
of the Contracting States, or against their nationals, property or interests,
that is punishable by their domestic law. The offences stipulated in the
following conventions shall be considered terrorist offences unless such
offences have been excepted by the legislation of the Contracting State or
the State has not ratified the said convention.
The ‘terrorist purpose’ here presumably relates to the definition of ‘terrorism’
in the preceding clause, and there follows a list of international terrorism-
related conventions. In Article 2(a) come a clarification and a caveat:
Cases of struggle by whatever means, including armed struggle, against
foreign occupation and aggression for the sake of liberation and self-
determination, in accordance with the principles of international law,
shall not be considered an offence. Such cases shall not include any act
prejudicing the territorial integrity of any Arab state.
This clause reflects the concern to exclude from the definition acts done in the
Palestinian struggle for self-determination, while at the same time not to exclude
acts committed in any self-determination struggle against any existing Arab state –
implicitly even if such claims were recognized ‘in accordance with the principles of
international law’. This caveat clearly sits uneasily with the prior invocation of the
general principle of self-determination. The insistence on the distinction between
‘resistance to foreign occupation and aggression’ and terrorism, inspired by the
position of Palestine, is a cornerstone of the Arab states’ promotion of a definition
of international terrorism. The CTC asked Saudi Arabia a follow-up question:
The CTC would welcome an indication of how Saudi Arabia would deal
with a request by a state that is not party to that [Arab] Convention for


33
Ibid.
34
OHCHR, Digest of Jurisprudence of the UN and regional organizations on the protection of
human rights while countering terrorism, Geneva n.d., 3, citing the Declaration on
Measures to Eliminate International Terrorism annexed to UNGA resolution 49/60.
LYNN WELCHMAN
590

the extradition of a person accused of an offence against, say, the
International Convention for the Suppression of Terrorist Bombings com-

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