Stalwart defenders of democracy, free speech and the freedom of the media such as the United States of America and Great Britain have since 9/11 shown a frightening disregard for those values in their attempts to curb terrorism by framing tough anti-terrorism legislation.
In one sense it is understandable that these two countries, both of which have suffered the horrors of suicide terrorist attacks with serious loss of life and damage, should push aside the freedoms which have been built up with so much difficulty, pain and suffering over many centuries to try to fashion legal instruments to stop these attacks.
After all, in major wars the first casualties are truth, freedom of expression and freedom of the media and no one appears to lament their loss in the wider interest of winning the war and preserving the lives of one's population.
That simple philosophy appears to underlie the current dismissal of freedoms by such legislation as America's Patriot Act and Britain's Terrorism Act 2000. The latter was highlighted in the closing days of March when three terrorism suspects were held under the Act for detention for up to 28 days, long beyond the 48 hours which was once the prescribed period for holding a prisoner before bringing him or her to court. The loss of freedom in Britain was underlined almost the same day by the Home Office announcing that 18 people, nine of them Britons, had been served with ”control orders,” which imposes a form of house arrest.
And the malady is spreading.
Civil society in South Africa raised eyebrows at the speed with which the South African government hastened to bring in its anti-terror legislation and how rapidly it ignored the fine principles of freedom contained in the country's vaunted new Constitution, now barely a decade-old.
Government spokespersons cited United Nations, African Union and Non-Aligned Movement protocols adopted by South Africa and pressures from America as the reasons why the legislation had to be passed and why they tackled it with speed and vigour.
South Africa's first attempt at an anti-terrorism law raised howls of protest from media organisations such as the South African National Editors' Forum, the South African Chapter of the Media Institute of Southern Africa and the Freedom of Expression Institute because of the dangers the legislation held for journalists and the media. The Law Society also protested about the loss of freedoms.
But it was a trade union federation, the Congress of South African Trade Unions (Cosatu), that pulled the government up short. It feared that the law did not make sufficient distinction between acts of terrorism and legitimate worker protests and industrial action and threatened a national strike if the Bill was passed by parliament. The Bill was postponed.
A year later, in 2004, the Government produced the Protection of Constitutional Democracy Against Terrorism and Related Activities Act which clearly stated the difference between the two, and the legislation became law.
Not much attention was paid to the protests of the journalists and lawyers, however.
The Act is draconian in its destruction of freedom and human rights and continues to hold dangerous threats for journalists and the public generally.
Despite the narrowing of the definition of terrorist activity to specifically exclude worker demonstrations, that definition and the defining of activity which aids or finances terrorist activity remains extremely broad and can easily result in innocent people being arrested.
It deals with imparting skills or expertise or providing documentation which enables an organisation to carry out terrorist activity; letting or selling property to someone engaged in terrorist activity; and a range of other normally innocent activity. Implied in the law is the necessity for a person to prove that if any aid was given to a terrorist it was done innocently and without knowledge.
The need for a person to be aware of a possible terrorist runs as a constant thread through the legislation. It states that a person who knows or ought reasonably to have known or suspect that the activity he or she was engaged in with a person, such as skills training (which may have nothing to do with planting a bomb but how to operate a computer or a mobile phone) was done to enhance the ability of an organisation to engage in terrorist activity.
It lays down that a person who suspects another person of intending to commit or of having committed a terrorist act must report that knowledge or suspicion to the police -- and failure to do so is an offence.
For journalists who are constantly suspicious about the people they come into contact with in the course of their duties, the latter requirement places an onerous duty on them and lays them readily open to prosecution for failing to report their suspicions to the police.
The law, in effect, turns ordinary citizens into unpaid police agents charged with spying on their neighbours and friends. This would also apply to journalists who are frequently close to the edge in incidents involving terrorism. There is no exemption clause for them while carrying out their duties.
The same onerous requirements to report even a suspicion apply to the perpetration of ”terror” hoaxes through the use of communications, again an area where journalists could be vulnerable.
The legislation also provides for inquiries by Investigating Directors of the
National Prosecuting Authority conducted in secret under which people – including those who have suspicions which they have not reported to the police – are interrogated about what they know and what they should have suspected.
This Star Chamber process includes demanding documents from people being inquired into, the raiding of premises for information -- and the requirement for a warrant can be waived by the investigator if he believes obtaining a warrant could frustrate the operation.
For years, journalists in South Africa have been fighting a law which during the apartheid regime was used to try to obtain the identity of their confidential sources and which police still try to invoke.
It is Section 205 of the Criminal Procedure Act where they are told to tell what they know about a suspected crime or to identify the person who told them about a suspected crime. They have managed to erect certain barriers against indiscriminate use of this law against them, but under the anti-terrorism legislation, there is no protection and they could be very vulnerable.
The penalties under the anti-terrorism law are severe, ranging from two years imprisonment to life with or without a fine which is graduated to a maximum of R100-million (US $14-m).
In addition, there is the Regulation of Interception of Communications and
Provision of Information-Related Communications Act which provides for monitoring of telephones, mobile phones and other forms of communication. This contains the added threat of the authorities gaining access to journalists’ phone calls or to the identity of their confidential sources of information.
The three mobile phone companies in South Africa together receive 8,000 requests a month from police and lawyers seeking the numbers and identities of people who were phoned from a particular cellphone.
Fortunately, there are no recorded cases of journalists having been caught up in the tentacles of the anti-terror legislation but there have been a few cases of journalists' mobile phone number contacts being identified in court cases without their knowledge though not related to terrorism.
But with so much secrecy and excessive powers involved does anyone know how many victims there are of the use – and abuse – of these laws? And as one of the objects of terrorism is to generate fear and paranoia among people our democratic governments are speeding its achievement.
Raymond Louw is the Editor and Publisher of the current affairs weekly newsletter, Southern Africa Report. Mr Louw is also the chairperson of the Media Freedom Committee of the South African National Editors' Forum and Africa Representative of the World Press Freedom Committee.