Terrorism and the separation of powers in the national and international spheres

• Jurisdiction: South Africa
• Published date: 19 August 2019
• Pages: 151-166
• Author: CH Powell
• Date: 19 August 2019
• Citation: (2005) 18 SACJ 151

Terrorism and the separation

of powers in the national and

international spheres

CH POWELL

∗

A

BSTRACT

ABSTRACTA

The United Nations Security Council produces a list of terrorist organizations and

persons and requires states to take certain measures against these entities. This

article focuses on the ‘listing’ aspect of the South African legislation, that is, its

adoption of the Secur ity Council list and the measures that may be taken against

the entities placed on the list. The article considers various objections to the listing

procedure, including those based on human rights, on the doctr ine of separation

of powers and on the rule of law. The main discussion centres on the doctrine of

separation of powers, arguing that the doctrine has a role to play in both domestic

and international law, and exploring the extent to which the anti-terrorism regime,

and the listing process in particular, infringes the doctrine. The f‌i nal section of the

article explores the options available to South African courts should they be faced

with a challenge to the decisions of the United Nations Security Council.

Introduction

South Africa’s anti-terrorism legislation improved considerably during

its long and controversial drafting.

1

Earlier versions included detention

without trial, a unique regime for search and seizure, collection of

evidence and preventive measures, and an extremely broad def‌i nition of

the offence of terrorism.

2

The Protection of Constitutional Democracy

151

∗

BA LLB (UCT) LLM (Humboldt, Berlin),

Senior Lecturer, Department of Public Law,

University of Cape Town

. This article grew out of a seminar presented at the University

of Cape Town in April 2005. Thank you to those who made comments at the seminar,

especially Kent Roach. Thank you, too, to Michael Osborne for his ideas on impermissible

delegation of legislative power in South Africa, and to Tom Bennett for his comments on an

earlier draft of this paper.

1

For the drafting history of the legislation, see South African Law Commission Report

(Project 105)

Review of Security Legislation (Terrorism: Section 54 of the Internal

Security Act, 1982 (Act No 74 of 1982))

(2002); H Strydom ‘South Africa’s response to

international terrorism’ (2002) 27

South African Yearbook of International Law

82 at

96-7; C Powell ‘Terrorism and governance in South Africa and Eastern Africa’ in VV Ramraj,

M Hor and K Roach (eds)

Global Anti-Terrorism Law and Policy

(2005 forthcoming);

K Roach ‘A comparison of South African and Canadian anti-terrorism legislation’ the

preceding article in this issue.

2

The nadir of South Africa’s search for a def‌i nition was contained in the 2003 draft, which

def‌i ned terrorism as ‘an unlawful act, committed in or outside the Republic’.

(2005) 18 SACJ 151

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152

SACJ •

(2005) 2

against Terrorist and Related Activities Act,

3

which came into force in May

2005, has dropped detention without trial, incorporated its preventive

and investigative measures almost completely into an existing cr iminal

procedural framework

4

and contains a highly detailed, albeit broad,

def‌i nition of terrorism.

There is still, however, cause for concern. Among the troubling features

in the Act, Kent Roach notes an overbroad def‌i nition of ter rorism,

buttressed by negligence-based liability for terrorist offences. Furthermore,

suspicion of terrorism triggers extensive investigative powers on the

part of the prosecuting authority and a severe regime of asset forfeiture,

generally without suff‌i cient judicial control. Finally, an extensive reporting

obligation rests on any private person who suspects a terrorist act will

occur or has occurred.

5

This article analyses the anti-terrorism programme with particular

emphasis on its effect on the relationship between the three branches

of government. It identif‌i es an increase in executive power at both the

domestic and the international level, chief‌l y through the lens of the ‘listing’

mechanism, which was introduced by the Security Council in 1999.

6

While

the r ights implications of this listing mechanism are brief‌l y considered,

the main aim of this discussion is to explore possible limits to executive

power in domestic and international governance.

The inf‌l uence of the executive is not as apparent in South Africa’s new

anti-terrorism Act as it is in the legislation of some other states. The South

African Act does not allow preventive or investigative detention,

7

assign

to the executive the power to determine terrorist status and dispose

of terror ist property or grant the executive immunity for acting against

terrorism.

8

But it is nonetheless clear that all the troubling features listed

above serve to support the police, either directly or by easing the load of

the prosecution in a criminal trial. A more subtle and pervasive executive

3

Act 33 of 2004; Proc R18 in Government Gazette 27502 of 15 April 2005. In this paper, the

Protection of Constitutional Democracy against Terrorist and Related Activities Act will be

referred to as the ‘new Act’ or the ‘anti-terrorism Act’.

4

Section 22 of the new Act brings chap 5 of the National Prosecuting Authority Act 32 of

1998 into operation. Chapter 5 is itself not immune to criticism. See Roach op cit (n1).

5

See Roach op cit (n1).

6

See Security Council Resolution (hereafter SCR) 1267 of 1999, available at

http://

daccessdds.un.org/doc/UNDOC/GEN/N99/300/44/PDF/N9930044/pdf?OpenElement,

accessed 20 June 2005.

7

Compare, for example, the legislation in the United States of America, Australia and Canada.

See W Banks ‘United States responses to September 11’ in Ramraj, Hor and Roach op cit

(n1); S Less ‘Country report on the USA’ in C Walter et al (eds)

Terrorism as a Challenge

for National and International Law: Security versus Liberty?

(2004); G Williams ‘The

for National and International Law: Security versus Liberty? (2004); G Williams ‘The for National and International Law: Security versus Liberty?

rule of law and the regulation of terrorism in Australia and New Zealand’ in Ramraj, Hor

and Roach op cit (n1); Roach op cit (n1); and K Roach ‘Canada’s response to terrorism’ in

Ramraj, Hor and Roach op cit (n1).

8

Compare the examples of Uganda and Tanzania in Powell op cit (n1).

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