NAME: NYAUNDI KENNEDY MONCHERE STUDENT NO: NYNKEN002 QUALIFICATION: MASTERS IN LAW SUPERVISOR: PROF. DERRY DEVINE

TOPIC

LEGAL ASPECTS OF TERRORISM:

AN INTERNATIONAL OVERVIEW WITH SPECIAL EMPHASIS ON EAST AFRICA

Research dissertation presented for the approval of Senate in fulfillment of part of the requirements for the degree of Masters in Law in approved courses and a minor dissertation. The other part of the requirement for this qualification was the completion of a programme of courses. I hereby declare that I have read and understood the regulations governing the submission of degree in Masters in Law dissertations, including those relating to length and plagiarism, as contained in the rules o this University, and that this dissertation conforms to these regulations.

TABLE OF CONTENTS Acknowledgements i 1. Chapter One: Looking at Terrorism

1.1 Introduction 1 1.2 What is Terrorism 1 1.3 Terrorism; Motivations and Causes 11 1.4 International Responses to Terrorism: The

Legal Framework 13 1.5 International Legal Provisions 15 2. Chapter Two: Responses to Terrorism

2.1 The African Response to Terrorism 22 2.2 International Terrorism: The East

African Response 25 2.3 Tracking Terrorist Finance: Kenya 27 2.4 Preparation or Instigation of Acts of Terrorism 28

2.5 Mutual Assistance and Extradition 2.6 Tanzania 29 2.7 Specific Entities 31 2.8 Specific Offences

2.9 Uganda 31 3. Chapter Three: Terrorism and Human Rights 3.1 Finding the Balance 34

3.2 Terrorism and Preventive Legislation in the International Field 34

3.3 In War, is Law Silent? 38 3.4 Torture 41 3.5 Fair Trial 42 3.6 Privacy 46 3.7 Concentration of power in the Executive 49 3.9 Other Human Rights concerns 50 4. Chapter Four: Conclusion

4.1 Finally 52 4.2 Looking ahead 53

Chapter 1

Looking at Terrorism 1.1 Introduction

Discussions on terrorism and terror crimes have been moved to the center stage of world

politico-legal arena by the September 11th 2001 attacks in the U.S.A.1 These attacks

introduced a new level of urgency in world determination to detect and prevent acts of

terror that have for decades consumed innocent blood and led to immeasurable

destruction of property.

Amidst well meaning measures to curtail terrorism activities are concerns touching on

infringement of fundamental rights and liberties especially privacy, due process, freedom

of speech and the right of free association. There is, too, a recognition that the challenge

to curb terrorism cannot be won without meaningful co-operation amongst state actors in

the international field.

There is a need to promulgate and implement Conventions and laws that focus on

individual culpability without discrimination on political or religious ideologies.

1.2 What is terrorism?

In spite of heated debates and frequent references to terrorism, there is no universally

accepted definition of what constitutes terrorism. The UN has 12 piecemeal conventions

and protocols on terrorism but none gives a conclusive definition of terrorism. The UN

conventions merely set out particular acts that have to be punished by State Parties. This

lack of agreement on definition has often been cited as a contributory factor in the lack-

luster fight against international terrorism.

1 On 11th September 2001, a determined group of men hijacked four jetliners and crashed two of them into the World Trade Centre in New York, and a third one into the Pentagon in Washington. A fourth hijacked airliner crashed in the Pennsylvania countryside. No one knows for sure whether persons on board or outside it brought it down. An estimated number of 3000 people perished in these combined hijackers.

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The earliest international attempt at a definition of terrorism is found in article 1(2) of the

League of Nations Convention (1937)2 which regards terrorism as “criminal acts directed

against a state and intended to or calculated to create a state of terror in the minds of

particular persons or a group of persons or the general public”. This definition clearly

runs counter to efforts in self-determination as it criminalizes a wide range of possible

legitimate acts of freedom fighters. It is in this context that it is often said that one man’s

terrorist is another’s freedom fighter; or that today’s terrorist is tomorrow’s president.

The League’s requirement that the violent acts of terrorism must be directed against a

state ignores acts of extreme violence that may be committed by the state itself against

the general public or a section of it.

In 1992, A.P. Schimid3 in a proposal presented to the UN Crime Branch suggested that;

“Terrorism is an anxiety-inspiring method of repeated violent action, employed by (semi-) clandestine individual group or state actors, for idiosyncratic, criminal or political reasons, whereby in contrast to assassination, the direct targets of violence are not the main targets.”

Schmid proposes that it might be a good idea to take the existing consensus on what

constitutes a ‘a war crime’ as a point of departure. He states that if the core of war crimes

- deliberate attacks on civilians, hostage taking and the killing of prisoners - is extended

to peacetime, we could simply define acts of terrorism as ‘peacetime equivalents of war

crimes’4.

The United Nations General Assembly in its resolution on Measures to Eliminate

International Terrorism5 declared that it;

“1. Strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed. 2. Reiterates that criminal acts intended or calculated to provoke a state of

terror in the general public or a group of persons for political purposes are 2 The League of Nations convention for the creation of an International Criminal Court, adopted in 1937, ostensibly as an anti-terrorism measure unfortunately did not come into force for failure to attract sufficient signatures. It was superseded to a large extend by the events signaling the oncoming world war. 3 A.P. Schimid, an expert on terrorism. Address to the UN crime Branch accessed at www.unodc.org/unodc/terrorism-definations.internation,accessed on 14th June 2004. 4 Ibid. 5 Resolution no. 5/10

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in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be involved to justify them.

This resolution did not attempt a definition of terrorism and did not seek to specify acts

that may be considered as terrorist acts.

It is suggested that a better approach in defining terrorism authoritatively would be to set

out acts that constitute terrorism and their specific elements. Alexander Aguirre6

recommends the following definition:

Terrorism is the use of, or the threat to use, violence or any destructive means against civilians or non-combatant targets for political or ideological purposes or otherwise calculated or intended to create a state of fear in the minds of a group of persons or the general public.

This definition has three important constitutive elements namely: (1) The use of or threat

to use violence or destructive means; (2) against civilians or non-combatant targets; and

(3) for political or ideological purposes or otherwise calculated to create a state of fear in

the minds of a group of persons or the general public7.

The use of, or threat to use violence spells out the methodology to the criminal act of

terrorism.

‘Violence’, as a constitutive element, presupposes physical force whilst ‘any destructive

means’ encompasses other more subtle methods that may not necessarily involve force,

say, chemical or biological means of destruction.8 For an act to qualify as terrorist, it

must be directed at civilians or non-combatants otherwise it may be seen as part of a

legitimate warfare activity. Generally, it is also acknowledged that methods used by

terrorists contravene international law conventions. On the other hand civilians are

generally accepted as all persons not involved in war and are soft targets to which the

terror is directed for reasons of spreading fear in the general population. On the third

6 See Alexander P. Aguirre, Legal Aspects of Terrorism; accessed at www.ndcp.edu.ph/ppapers/legal aspects of terrorism.htm page 6. 7 Ibid. 8 See Cherif Bassiouni, Legal Responses to International Terrorism; United States Procedural Aspects (1988)

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level, the act must have ‘a political or ideological purpose or otherwise calculated or

intended to create a state of fear in the minds of a group of persons or in the general

public’. Common acts of criminal activity without political or ideological foundations are

thus isolated from terrorist acts. On the larger level, activities which may be of a criminal

nature but which cause fear upon large segments of the public may well qualify as

terrorism. This is perhaps the reason why we would qualify the activities of Joseph Kony

in Northern Uganda as terrorist. The activities of the Chechens of Russia would also fall

into this category.

Cherif Bassiouni8 defines terrorism as an

“Ideologically motivated strategy of internationally proscribed violence designed to inspire terror within a particular segment of a given society in order to achieve a power-outcome or to propagate a claim or grievance irrespective of whether its perpetrators are acting for and on behalf of themselves or on behalf of a state.” This definition couched in general terms is all-inclusive as it concerns itself with the outcome of the action whilst retaining the core element of the offence, that is, violence. This is without doubt an advantage, as it does not tie us down to the methodologies of the offence. The international Law Commission, established under Article 13 of the Charter of the

United Nations for the function of promoting the progressive development9 and

codification10 of international law defines terrorism to include;

i) Any act causing death or grievous bodily harm or loss of liberty to head of state, persons exercising the prerogatives or designates successors, the spouse of such persons or persons charged with public functions when the act is directed against them in their public capacity.

ii) Acts calculated to destroy or damage public property devoted to a public purpose.

iii) Any act likely to imperil human lives through the creation of a public danger, in particular the seizure of aircraft, the taking of hostages and any

9’By progressive development’ is meant the preparation of draft conventions on subjects, which have not yet been sufficiently developed in the practice of states. 10 Codification means the more precise formulation of rules of international law in fields where there already has been extensive state practice, precedent and doctrine.

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form of violence directed against persons who enjoy international protection or diplomatic immunity.

iv) The manufacture, obtaining, possession or supplying of arms,

ammunition, explosives or harmful substances with a view to the commission of a terrorist act.

This definition is without doubt, defective. There is a tendency to see terrorism in the

eyes of traditional activities like hijacking and use of arms whilst recent experiences have

cast terrorism in new, innovative and less predictable spheres.

Terrorists have now a wide array of ever more effective weapons at their disposed and

have developed sophisticated techniques of persuasion11. Technology such as the Internet

has facilitated exchange of information and provided a new form of property to

sabotage12. Terrorists have developed enhanced methods of co-operation, providing

physical protection in exchange of monetary gain or other mutually beneficial

transactions. The threat of the use of chemical and biological or even nuclear warfare

stacks a new sense of universal vulnerability. It moves the concept of asymmetric

security threats from abstraction to an alarming reality13. The world has perhaps never

before felt such a sense of insecurity as pervasive as today. Nine –eleven made it

abundantly clear that no country can immune or isolate itself entirely from external

events; grievances bred elsewhere can have catastrophic consequences half a world away,

and the ease of transport, international communications and personal movement in and

out of countries have made it easier than ever before in history not only to plot evil but to

deliver it.14 Events in Afghanistan or Pakistan may have as deep an effect in Washington,

U.S.A. as though they were occurring in Memphis, Tennessee. Thus any un-lawful or

threatened use of violence against public property must be seen as potentially constitutive

of an inherent power to have a universal effect. Such violence attracts a terrorist label if

it is grounded on religious, political or ideological objectives. So whilst we all seem to

detect terrorism, we are unable to finger in detail its all inclusive elements. There are

many reasons for this dilemma.

11See International Criminal Law and Human Rights, (eds) Claire de Than and Edwin Shorts. London sweet & Maxwell, 2003 at page 231. 12Ibid 13 “Confronting the Challenge of Terrorism: International Relations after 911” Cohen lecture in International Relations, by Gareth Evans. Accessed at www.crisisweb.org/home/index.cfm. 14 Ibid.

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First the interpretation of the complex motivation and nature of a deed that at first blush

appears to constitute an act of terrorism loses clarity when placed within a particular

historical, political religious and ideological context simply because an interpretation of

what constitutes terrorism is a function of the vantage point of the commentator.15 Thus

for many years Nelson Mandela and all the convicts of the Rivonna trial plus all other

freedom fighters in all Asia and the continent of Africa were classified as terrorists by the

colonialist reluctant to allow independence to their colonized territories.

Second, the specificities of national legislation demand different approaches to the crime.

This situation is exacerbated by the different approaches that states adopt in

distinguishing between terrorism and other serious crimes such as murder and sabotage.16

Countries that face frequent threats of terrorism tend to adopt an open interpretation

policy, preferring to cast a wide net on activities that may qualify as terrorism as opposed

to the more secure states which have a narrow interpretation policy, allowing for existing

legislations to cover aspects of serious crime which possess elements of terrorism.

It would appear that there are two possible approaches to defining terrorism. The first, a

subjective approach, lays emphasis on the “mens rea” of the deed.17This approach is

referred to as subjective because the person making the value judgement must decide

whether the reason for the act is borne of a legitimate reason. Defining terrorism on this

level requires taking a position on whether there are limits on the reasons for violence

and the relative relations between weak and strong parties involved in the dispute. It

must be shown that the act complained of was conceived or calculated to influence or

affect the conduct of a Government or to create and subject the general public to a state

of terror, fear or anxiety for purposes of obtaining an interest or retaliating for certain

conduct. The present kidnappings of diplomats and foreigners in Saudi Arabia and Iraq

would certainly fall under this category.

15 Africa and Terrorism; Joining the Global Campaign’. J. Cilliers and K. Sturman, published in monograph no. 74, July 2002 page 1 accessed at www. Iss.co.za/pubs/MONOGRAPHS/no. 74/chapl/ltml. 16Ibid.page 2. 17 See the general discussion in ‘The QC Resercher: Combarting Terrorism,’ accessed at www.cqpress.com/context/articles/cqr19950721.html

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On the objective level, terrorism may be defined by the characteristics of the actors or the

nature of the acts18. This may be done by classifying certain serious acts and/or the

persons engaged in such acts as terrorist. The intention needed to prove the offence is

then superceded by the fact that the actor is already labeled as a terrorist and all his

actions are deemed terrorist. These two classifications may have their flows with the

resultant risk of including or excluding terrorist acts when they do qualify as such.

Moralists campaigning against abortion or environmentalists expressing disdain against

certain eco-unfriendly construction may blow up buildings in acts motivated by interests

totally removed from terrorism yet the same may appear as terrorism.

The most recent and comprehensive description of terrorism (as opposed to a legal

definition) is contained in the Common Position adopted by the European union on

December 27th 2001. Reflecting on a recent trend, the common position makes a

distinction between a terrorist act or deed and terrorist persons, groups or entities.19 This

is an important distinction since it provides leeway in categorizing specific actions as

being of a terrorist nature without the associated problems of classifying groups or

organisations as essentially terrorist in all their aspects.20 Yet this does not make the

matter any lighter as it is then left to determine when a group is acting in a legitimate,

logical manner and when it is engaged in terrorism. A number of terror actors in East

Africa like ‘Help Africa’ are registered as relief agencies supplying food aid in the

Muslim North Eastern part of Kenya while at the same time aiding and abetting terrorism

in Mombasa and Nairobi.21

The European common position holds that22

“2. For the purposes of the Common Position, ‘persons, groups and entities involved in terrorist acts shall mean:

• Persons who commit, or attempt to commit, terrorist acts or who participate in, or facilitate, the commission of terrorist acts.

18 “American Bar Association Task Force on Terrorism; Law comments on pending House and senate Anti-terrorism legislation”. www.abanet.org/leaderago/ant-terrorism-legislation.hml page 2. 19 Supra, note 15 at page 2. 20 Ibid 21 See Chesney Robert ‘Civil Liberties and the Terrorism Prevention Paradigm : The Guilt By Association Critique accessed at http://papers.ssrn.com/sol13/papers.cf?abstaract:id=396503 22 ibid

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• Groups and entities owned or controlled directly or indirectly by

such persons; and persons, groups and entities acting on behalf of, or under the direction of such persons, groups or entities, including funds derived or generated from properly owned or controlled directly or indirectly by such persons and associated persons, groups or entities.

3. For the purpose of this Common Position, ‘terrorist act’ shall mean one of

the following international acts which given its nature or its context, may seriously damage a country or an international organisation, as defined as an offence under national law, where committed with the aim of:

i) Seriously intimidating a population, or ii) Unduly compelling a court or an international organisation to

perform or abstain from performing any act or iii) Seriously destabilizing or destroying the fundamental political,

constitutional, economic or sound structures of a country or an international organisation:

a) Attacks upon a persons life which may cause death b) Attacks upon the physical integrity of a person;

c) Kidnapping or hostage taking

d) Causing extensive destruction to a Government or public

facility, a transport system, an infrastructure facility, including an information system, a fixed platform locates on the continental shelf, a public place or private property, likely to endanger human life or result in major economic loss.

e) Seizure of aircraft, ships or other means of public or goods

transport.

f) Manufacture, possession, acquisition, transport, supply or us of weapons, explosives or of nuclear, biological or chemical weapons as well as research into and development of biological and chemical weapons.

g) Release of dangerous substances, or causing fires,

explosions or floods the effect of which is to endanger human life.

h) Interfering with or disrupting the supply of water, power or

any other fundamental natural resource, the effect of which

is to endanger human life.

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i) Threatening to commit any of the acts listed under (a) to (l)

j) Directing a terrorist group

k) Participating in the activities of a terrorist group including

by supplying information or material resources, or by

funding its activities in any way with knowledge of the fact

that such participation will contribute to the criminal

activities of the group.

It will be noted that the European Common Position restricts its definition of terrorist acts

to the international arena and permits each state to promulgate its own national definition.

The Common Position is then deficient in the sense that it does not help in rendering a

universal definition of terrorism.

On the African context the OAU Convention on the Prevention and Combating of

Terrorism (The Algiers Convention) of 1999 expressly excludes struggles of self-

determination from the definition of terrorism. Article 1(3) provides:

3. “Terrorist act” means

a) Any act which is a violation of the criminal laws of any state party

and which may endanger the life, physical integrity or freedom of, or

causes or may cause damage to public or private property, natural

resources, environmental or cultural heritage and is calculated or

intended to:

• Intimidate, put fear, force, coerce or induce any

Government, body, institution the general public or any

segment thereof, to do or abstain from any act, or to

adopt or abandon a particular standpoint, or to act

accordingly to certain principal; or

• Disrupt any public service, the delivery of any essential

service to the public or to create a public emergency;

or

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• Create general insurrection in a state.

b) Any promotion, sponsoring, contribution to, command, aid,

incitement, encouragement, attempt, threat. Conspiracy, organizing

or procurement of any person, with the intent to commit any act

referred to in paragraph a(i) –(ii).

The exclusion clause specifically provides

Article 3(1)

- Notwithstanding the provisions of Article 1, the struggle waged by people in

accordance with the principles of international law for the liberation or self-

determination, including the armed struggle against colonialism, occupation,

aggression and determination by foreign forces shall not be considered as

terrorist acts.

Article 3(2)

• Political, philosophical, ideological, racial, ethnic, religious or other

motives shall not be a justifiable defense against a terrorist act.

Finally it may be said that whereas there is no universally accepted definition of

terrorism, certain elements cut across the definition board. These are;

a) That terrorism can be perpetrated either by individuals, groups or Governments.

b) The motivational factors of terrorism include rational consideration of goals

and options- a cost benefit analysis. It is a planned event.

c) Terrorism can exist in the name of political, religious, socio-economic or other belief systems.

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d) The objectives of terrorism are often fear, extortion and radical change. In this regard the process has three elements;

- The act or threat of violence, including techno-terrorism and other serious

economic crimes that are committed for political or other non-profit motive. - The emotional reaction or extreme fear on the part of the potential or future

victim; and

- The social effects that follow the violence23.

Common elements in most anti-terrorism laws also require that all the offences set within

it should be extraditable and that punishments for terrorism and terror related offences

must be comparatively heavier than similar acts without terror intent.

1.3 Terrorism; motivations and causes

The world is abound with numerous causes of conflict and discontent. These may range

from the political, philosophical, ideological, religious, racial or even cultural. Terrorism

has been associated with an expression of discontent by a group that feels oppressed and

ignored.

During the cold war, it was generally thought that socialist-leaning countries were the

natural sponsors of terrorism.24 The fact that terrorism has out-lived the cold war means

that it’s causes and motivations may lie elsewhere. Terrorism must have its anchor in

matters and issues deeper than the cold war and larger than it’s previous sponsors.

In Western Europe monumental acts of indiscriminate violence have been activated by

the age-old separatisms that exists within the Irish republicans in Northern Ireland and

Basque nationalism in Spain. Between them, the Irish Republican Army and the ETA

have contributed more than eighty percent of the violence in Western Europe.25

23 Supra note 15 at page 4. 24 See Anderson H James, International Terrorism and Crime: Trends and Linkages, accessed at www.jmu.edu/orgs/wrni/it.htm on 15.9.04 25 For a deeper discussion on this subject see, Khan Ali, A Legal Theory of International Terrorism,19 Connecticut Law Review 945-972(1987)

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In Eastern Europe, the Chechen Separatists continue to provide as much horror as was

witnessed in the Bosnia wars of autonomy.26 The arrival of independence, the softening

of state hold on expression has given way to multiple conflicts akin to those on the

African continent where mass killings and property destruction sporadically arise. The

cases of Rwanda and the Democratic Republic of Congo are recent reminders of terror

acts of genocidal proportions.27 Incidents of ethnic cleansing in Europe find their

equivalent in tribal clashes in Africa. The typical ethnic cleansing finds expression

through gangs of armed militias armed with modern and primitive armaments who

terrorize the civilian populations through the use of torture, rape and wanton massacres.

Ethnic cleansing, like tribal wars, is primarily motivated by politics. Often, it has the

potential to acquire cross-boarder implications. Political instability in the Democratic

Republic of Congo has in the recent past sucked in the neighboring countries of Rwanda,

Uganda, Zimbabwe and to a limited extend far-flung Namibia. The spillover of such

cross-border hostilities is manifested in terrorism activities inside the borders of countries

seen as intruders. For this reason bombs have been planted in Kampala and Kigali and

attributed to Congolese fighters protesting Uganda and Rwanda’s involvement in the

politics of the D.R.C.28

Of all terrorist prone societies, the Middle East provides the worst affected in terms of the

number of incidents and persons killed in terror activities. In spite of numerous meetings

and agreements reached between the Israel Government and the Palestinian Liberation

Organization together with the continuing efforts by the United States and other Western

countries to reach a peaceful settlement to the Palestinian question, this region remains

the most dangerous source and field of terror activities in the international arena. There

are groups opposed to Yaser Arafat’s conduct of negotiations with Israel-fronting the idea

that Mr. Arafat has compromised the Palestinian efforts of self-determination. The most

dominant of these are the Popular Front for the Liberation of Palestine, Hamas and

Islamic Jihad.29 These groups are anchored in Islamic extremism and a common hatred

26 ibid 27 Daily Nation of October 24th 2002.This is a daily newspaper editorial of the events in the Great Lakes Region written by Wangethi mwangi. 28 ibid 29 See International Crisis Reports on the Middle East for the period 2000-2001.ICG Middle East Report, Amman,Jordan

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for Israel.30 Given the horrid conditions in which Palestinians live on the West Bank and

the occupied territories, the extremist groups find ready support and willing recruits for

the now common suicide acts of terror against Israel targets. Unless peace is reached,

there is a high probability that the Palestinians will increase the level of ‘export terror’,

which has already been witnessed in Europe, East Africa and North America. The

Palestinian question provides evidence that localized events have the potential to create

international terror of extreme proportions.

In terms of sponsorship of terrorism, Iran, Iraq, Syria, Sudan and Libya have traditionally

been seen as countries that support Arab Terror. The support comes in form of financial

assistance, intelligence, weapons and training. The common denominator in these

countries is not only Islam as a state religion but a hostile rejection of Western influence

on the policy and socio-cultural activities in those countries.

In mainland Europe, the demise of left-wing politics has reduced left-wing terrorism,

removing the threat of wanton violence previously committed by the Red Army in West

Germany, the Red Brigade in Italy and Direct Action in both France and Belgium.31 The

cropping worry in Europe today is terrorism introduced by Islamic militants touching on

international issues reflected on the policies of the home countries.

1.4 International Response to Terrorism;

The legal framework

Terrorism has become a worldwide phenomenon. It has become a scourge to civilized

society.32 It endangers innocent lives. It causes extensive loss to property and puts the

security of states in great jeopardy. 33(see wording article 2(4) ). The fight against

terrorism requires concerted efforts on the part of all states. The United Nations

recognizes that what is required are imperatives to strengthen international co-operation

30 ibid 31 ibid 32 Supra note 6 at page 1. 33ibid

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at all levels and the establishment of international anti-terrorism measures34. Over the

years the United Nations, regional organizations and individual countries have

formulated conventions, laws and resolutions aimed at combating terrorism. For the fight

against terrorism to succeed, states require mechanisms to gather evidence, recognize

clear targets and adapt comprehensive/preventive measures. There is a need to

strengthen dialogue, develop co-operation and join hands in an endeavor to eradicate the

root cause of terrorism.

Unfortunately customary and statutory international law has not developed an all-

embracing style of combating terrorism35. The approach has been piecemeal and

incremental, with new developments occurring as a response to each fresh terrorist attack

and the change in perception of threats that attacks provoke36. All international treaties

on terrorism have been an answer to an isolated incident creating a series of documents

whose intent and purpose is to be deduced from their cumulative objectives. The

conventions and protocols, starting from the 1963 Convention on Offences and Certain

other Acts on Board Aircraft37 to the International Convention for the Suppression of

Financing of Terrorism38 are penal in nature with a typically common format. Common

in all the instruments are requirements to define acts of terrorism within particular

circumstances, placing state parties under an obligation to criminalize the acts, establish

jurisdiction and allow extradition in the event of inability or unwillingness to prosecute.

This last element is meant to remove any safe haven for terrorists, making them

vulnerable and available for prosecution wherever they may be. The weakness in this

clause is reflected by the fact that certain states sometimes refuse to prosecute and/or

even to extradite. The Lockebie case demonstrates the impotence of all the conventions

34 Following the terrorist attacks of September 11 in New York and Washington, the United Nations security council at its 4385th meeting on September 23rd 2001, adopted resolution 1373 in terms of chapter vii of the charter of the United Nations. Resolution 1373 re-affirmed resolutions 1269(1999) and 1368 (2001) as well as the principle established by the UN General Assembly (Resolution 2625(XXV) namely every state has a duty to refrain from organizing instigating, assisting or participation in terrorist acts in another state or acquiescing in organizing activities within its territory directed towards the commission of such acts. 35 Supra note 11 at page 236. 36 Ibid 37 This convention was adopted in Tokyo in 1963. There are 171 states partied to the convention. It authorizes the airplane commands to impose reasonable measures on any person who has committed or is about to commit a class of acts regarded as terror acts. It requires state parties to take custody of offenders. 38 Adopted by the General Assembly in 1999, the convention obligates state parties either to prosecute or to extradite persons accused of funding terrorist activities and requires Banks to enact measures to curb suspicious transactions.

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and was brought to a solution only by a begrudging compromise reached between the UN

and Libya.

1.5 International legal provisions

The United Nations conventions addressing hijacking of aircraft (1970 and 1971),

damage to airports(1988), attacks on diplomats and heads of state (1973) hostages-taking

(1979), attacks on ships (1988), attacks on fixed platforms on the continental shelf

(1988), safety of nuclear materials (1980), terrorist bombing (1997), and terrorist

financing (1999) all set out specific offences along with rules on jurisdiction and other

matters.39 Whilst not making any definition of terrorism the measures laid down by the

UN in these documents ban specific acts of terror. The Financing Convention bans not

only provision or collection of funds in connection with the specific acts banned by the

other conventions but also in regard to ‘any other act intended to cause death or injury to

a civilian, or to any other person not taking an active part in the hostilities in a situation

of armed conflict, when the purpose of such act by its nature or context, is to intimidate a

population, or to compel a Government or international organisation to do or abstain from

doing an act.’30

It is a matter of great concern that despite the International community’s anti-terrorism

strategies, vicious acts of terror still abound around the world. There is hardly any

country that has not been touched by the effects of terrorist activities. This calls for a

need to exercise greater responsibility in state obligations towards enforcing strict

measures to curb terrorism. For us to succeed, all member state of the UN must move

with haste to ratify all the 12 anti-terrorism conventions. It is sad to note that the United

States still refuses to ratify any of the anti-terrorism conventions whilst it is in the midst

39See EU Responses to Terrorism, International and Comparative Quarterly, Vol 52 page 228 at page 230.The full text of the conventions may be obtained from the following sources; The Suppression of Unlawful Acts against the safety of Maritime Navigation (27 ILM 668); Protocol Concerning the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (27 ILM 685); The Suppression of Unlawful Seizure Of Aircraft (Hague Hijacking Convention-10 ILM 133); The Suppression of Unlawful Acts Against Civil Aviation (Montreal Hijacking Convention);Protocol for the Suppression of Unlawful Acts of Violence at Airports serving Civil Aviation (27 ILM 627) on The Protection and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (13 ILM 41);against the taking of Hostages (18 ILM 1476) ON The Suppression of Terrorist Bombings( UN Doc A/Res/52/164);on the Protection of Nuclear Material (18ILM 1419);AND FOR The Suppression of the Financing of Terrorism (UN Doc/A/52/109

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of what it calls a ‘war against terrorism’. There is a need also to adopt the two draft UN

Conventions; the International Convention for the Suppression of acts of Nuclear

Terrorism and the Comprehensive Convention on International terrorism40. On the

practical level, states must increase the level of intelligence sharing and policy co-

ordination in order to effectively detect and deter acts of terror. Of the 12 UN

conventions on terrorism, three recent conventions are noteworthy for discussion; the

Declaration on Measures to Eliminate International Terrorism, “which unequivocally

condemns all acts of terrorism as a grave violation of the purposes and principles of the

United Nations and incapable of justification on any grounds whatsoever”,41 the

International Convention for the Suppression of Terrorist bombings42 (“Bombing

Convention”) and the International Convention for the Suppression of Financing

terrorism43 (“Financing Convention”).

The Bombing Convention sets forth a broad regime of jurisdiction for international co-

operation in connection with the unlawful and international use of explosives and other

lethal devises, in, into or against various defined public places with intent to kill or cause

serious bodily injury or to cause extensive destruction of the defined public place.44 It

represents recognition of the ever-growing international demand for new measures to

prevent and prosecute terrorist acts.45 Although the convention borrows format and

content from previous anti-terrorism conventions its preamble in replete with a sense of

urgency and far much strange language as the “UN is deeply concerned about the

worldwide escalation of acts of terrorism in all its forms and manifestations”, “noting that

terrorist attacks by means of explosive or other lethal devises have become increasingly

widespread and also noting that existing multilateral legal provisions do not adequately

address these attacks. For the reasons the convention urges “the need to enhance

international co-operation between states in devising and adopting effective and practical

40See UN Doc A/54/109, Article 2. 41 International Criminal Law and Human Rights edited by Claire De Than & Edwin Shorts page 238. 42 37 ILM 249 (1998) (hereinafter referred to as the bombing convention). The bombing convention is annexed to General Assembly resolution 52/164 (Dec. 15 1997) the convention entered into force on 23rd May 2001 which was the 30th day following the date of the deposit of the 22nd instrument of ratification, acceptance, approval or accession with the Secretary General of the UN. This was in accordance with article 22(1) of the convention. 43 ibid 44 Samuel M. Current Developments; The International Convention for the suppression of Terrorist Bombings; The American Journal of International Law Volume 92 (1998) page 775. 45 Supra 32 at page 239.

16

measures for the prevention of such acts of terrorism and for the prosecution and

punishment of their perpetrators”. Article 2 of the convention states that:

Any person commits an offence within the meaning of this convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal devise in, onto or against a place of public use, a state or Government facility a public transportation system or an infrastructure facility; with intent to cause death or serious bodily injury; or with intent to cause extensive destruction of such a place, facility or system, Where such destruction results or is likely to result in major economic loss.

The definition article46 of the convention is wide and comprehensive, holding that a state

or Government facility ‘includes any permanent or temporary facility or conveyance that

is used or occupied by representatives of a state, member of Government, the legislature

or the judiciary or by officials or employees of a state or any other public authority or

entity or employees or officials of an intergovernmental organization in connection with

the official duties.” Similarly infrastructure facility is defined to mean, “any public or

privately owned facility providing or distributing services for the benefit of the public”.

Places of public use are any places accessible to the public. One would suggest that the

definitions and proactive clauses in the convention are geared towards meeting new

challenges in the struggle against terrorism. Under Article 2 of the convention any person

who delivers, places, discharge or detonates an explosive or other lethal devise in a public

place is guilty as is any person who attempts to procure the delivery, placement,

destruction or discharge of a lethal devise. Article 2 creates an all-inclusive offence,

holding liable any one who in any other way contributes to the commission of any one of

the acts above mentioned. The convention does not apply where the offence is

committed within a single state, and where the alleged offender and the victims are

nationals of that state.47 The convention limits itself to acts of an international nature. A

state may establish jurisdiction over any offence where an offence has been committed

against its national or a Government facility of that state abroad, or by a stateless person

who has habitual residence in the territory of that state or when an offence is committed

in an attempt to compel that state to do or abstain from doing any act or the offence is

committed on board an aircraft which is operated by the government of that state.48

46 Article 1. 47 Article 3. 48 Article 6.

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Extradition of offenders in instances of inability or un-willingness to prosecute is a

cardinal principle of the convention.49 It is instructive that each State Party is under

obligation to establish criminal offences under its domestic law that recognizes the

offences set forth in article 2 and to set out penalties that “take into account the grave

nature of those offences”.50

The convention makes use of the five accepted bases of jurisdiction in international

criminal law- territorial, national, universal, passive personality and protective

jurisdiction.51 Article 7 provides for the rights of a person placed under custody either

for the purpose of prosecution or extradition. An extradited person may, if his state of

nationality requests be permitted to serve his sentence in his state52. To meet the

exigencies of piecemeal extradition treaties between states, the convention provides that

states which do not have extradition treaties may consider the convention as a legal basis

for extradition in respect of the offences set out in article 253 and that states which have

existing extradition treaties shall consider offences in article 2 to be included as

extraditable offences.54 In an innovation over prior counter-terrorism conventions, the

convention includes a provision in article 8(2), proposed by the United States, to the

effect that the convention’s obligation to extradite or submit for prosecution can be

discharged by a temporary transfer of its nationals for trial by those states that could not

otherwise extradite their nationals, provided that both parties agree to such

arrangements.55

Article 10 provides for a wide berth of assistances and co-operation in investigations or

criminal or extradition proceedings with respect to article 2 offences in accordance to

both domestic and international law. The extradition difficulties posed by classifying

certain offences as political is removed by article 11 which provides that none of the

offences set out in article 2 shall be regarded as political offences and that mutual

49 Ibid. 50 Article 4. 51 Supra N. 35,, at Page 778. 52 Article 8(2) 53 Article 9(2) 54 Article 9(1) 55 Supra 35,at Page 779.

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assistance “may not be refused on the sole ground that it concerns a political offence or

an offence connected with a political offence or an offence inspired by political motives”.

Article 12 provides the only limitation to extradition, declaring that a requested state may

delay to extradite if it has substantial grounds for believing that the request for extradition

has been made for the purposes of prosecution or punishment of a person because of his

race, religion, nationality, ethnic origin or political opinion.

Article 13 sets out conditions for transfer of a person detained or is serving a sentence in

the territory of one state and whose presence in another state party is requested for

purposes of testimony, identification or otherwise providing assistance in obtaining

evidence for investigation or prosecution. In this situation the person sought to be

transferred must give an informed consent and the two states must agree.

Article 14-18 provide for the details of implementation of the convention outlining

standards of treatment of all persons under custody, applicable trial law and respect for

the territorial integrity of states. Respect for the UN charter and international

humanitarian law is highlighted in article 19. Interpretation of the convention is

surrendered to arbitration at first instance and to the ICJ if no common arbitrator is

agreed upon.

The Bombing convention is important because it broadens and strengthens international

law and co-operation in cases of international terrorism.56 The international convention

for the suppression of the Financing of Terrorism, which was unanimously adopted by

the United Nations General Assembly on December 9, 1999, requires state parties to

combat terrorism by criminalizing certain financial transactions made in furtherance of

various terrorist activities.48 The convention also criminalizes conspiracies and attempts

56 Ibid. 48Article 2.1 of the Financing Convention requires signatures to provide for the establishment of a criminal offence under domestic law if a person: “by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used in full or in part, in order to carry out; (a) An act which constitutes an offence within the scope of and as defined in (any one of nine listed international instruments addressing specific terrorist conduct such as hostage taking, aircraft and maritime hijackings and bombings and any other international instrument added to the list from time to time in the manner provided in the convention); or (b) Any other Act intended to cause death or serious bodily injury to a civilian, or to any other person not

19

to undertake such financing. The Financing Convention opens wide the legal framework

for investigation, arrest, prosecution and extradition of suspects. Like the Bombing

Convention, the Financing Convention requires state parties to promulgate domestic laws

that punish, with appropriate severity, the offences set out in the convention. 57 The

convention draws in private parties; placing Banks under a responsibility to monitor

suspicious heavy money transfers and any suspicious transactions. The objective of this

convention is to starve criminals of enabling finances. Sponsors of criminal activities are

as liable as the actual perpetrators. Anyone who avails or collects funds with the

knowledge that they shall be placed to criminal activity is held to be guilty by the

convention.

For the purposes of this convention, Funds means assets of every kind, whether tangible

or intangible, movable or immovable, however acquired and legal documents or

instruments in any form. 49 This broad and inclusive definition includes bank credits,

traveler’s cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters

of credit or any evidence to such interest.50 Under Article 1.2, a state or government

facility is given a similar definition as that given in the Bombing Convention. Article 2.3

provides that for an act to constitute an offence under paragraph 1 it is not necessary that

the funds were actually used to carry out an offence referred to in paragraph 1 sub.

Paragraph 5 (a) or (b). The import of this is that knowledge and intention that such funds

should be used for a terrorist activity is sufficient to prove involvement notwithstanding

that the funds were not placed into terrorist activity. This comes out more clearly in

Article 2.4 and Article 2.5, which criminalize attempts to commit an offence set forth in

par. 1 or 4 of the Article. The Financing Convention is not just about money laundering;

“The difference between money laundering and the financing of terrorism is that moneys

used to fund terrorist activities are not necessarily illegal. Assets and profits acquired by

taking part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature and conduct, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing any act.” 57 Article 4 of the Bombing Convention requires states parties to make the offences enumerated in article 3 punishable by appropriate penalties. 49 Article 1.1 of the Financing convention 50 Ibid

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legitimate means and even declared to tax authorities can be used to finance terrorist acts,

too.”51

In addition to requiring criminalization of terror Financing, the convention obligates each

state signatory under Article 8 to take appropriate measures, in accordance with its

domestic legal principles, for the identification, detection and freezing of funds used or

allocated for the purpose of committing covered offences and the forfeiture of such funds

and the proceeds derived from covered offences.52

51 Walter Gehr, Recurrent issues (Briefing for member states on 4 April 2002), available at www.un.org/Docs/sc/committees/1373/rc.htm at text following footnote 2. 52 Mark Kantor, Effective Enforcement of international obligations to suppress the Financing of Terror, The American Society of International Laws Task Force on Terrorism. (ASIL Task Force Papers) 2002

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CHAPTER TWO

Responses to Terrorism

2.1 The African Response to Terrorism

The events of September 11, 2001 in the United States of America did not occur in

isolation. The scourge of terrorism has touched every continent. Africa has not been

spared either.

There is much evidence to suggest that much of the world terrorist activities are a

carryover from the cold war years when both the United States of America and the Soviet

Union sponsored rival groups in certain countries in attempts to obtain and maintain

regional political dominance. Afghanistan, Pakistan and Iraq are examples from the East

whilst on the African continent Angola, Mozambique and the Sudan jump into memory

Terror activities carried out by anti-Government forces are most pronounced in the

Northern parts of Africa.53. Algeria is by far the bloodiest example of terrorist prone

countries. Constant heavy police presence on the streets of Cairo and Alexandria in

Egypt are meant to curb terror activities. Tunisia, and to a less extent Libya, experience

intermittent terror strife. One would be permitted to say that Sub-Saharan Africa and

recently East Africa, bear the blunt and edge of the continent’s pain of terror caused by

local groups. The August 1997 bombings of the U.S. embassies in Nairobi and Dar es

Salaam must be seen as imported terror – terror targeting not the local citizens but

western interests.

53 Tens of thousands of people die in Algeria every year. There are hundreds of thousands of internally displaced persons fleeing from marauding gangs. On the night of December 29th 1997, e.g. 412 men, women and children were hacked to death in three isolated villages in Algeria’s Elizane region.

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Global and African concerns about terrorism have obviously intensified in recent months

but have been evident for several years.54 As far back as 1992 OAU Heads of state and

Government adopted a resolution (AHG/Res. 213(XXVIII) aimed at enhancing co-

operation and coordination between member states in order to fight the phenomenon of

extremism.55 In 1994 in Tunis, the OAU Assembly adopted a Declaration on the Code of

Conduct for inter-African Relations.56 This Declaration condemned terrorists’ acts in all

their forms and rejected acts of religious fanaticism and extremism.

In 1999, the OAU, in the light of the Nairobi and Dar-es-Salaam bombings adopted the

Convention on the Prevention and Combating of Terrorism (the Algiers convention).57

The Algiers Convention draws from the purposes and principles enshrined in the Charter

of the Organization of African Unity, in particular its clauses relating to security,

stability, development of friendly relations and cooperation among its member states and

the provisions of the Declaration on the Code of Conduct for inter-African Relations. It

specifically refers to the need to promote human values based on tolerance and rejects all

forms of terrorism irrespective of their motivations. Although a regional treaty it finds its

basis in the numerous United Nations Conventions and resolutions that deal with counter-

terrorism measures.

Borrowing from Africa’s unique past, the Convention’s preamble re-affirms the

legitimate right of peoples to self-determination and independence and excludes any

endeavors to attain self-determination from its definition of terrorism.58 This distinction

between terrorism and national liberation struggles against occupation (and apartheid, at

the time) is sometimes said to be without a firm foundation in international law since

protocol 1 to the 1994 Geneva Conventions expressly requires those fighting against

54 J. Gilliers and K. Sturman Africa and Terrorism, joining the Global Campaign – published in Mimeograph 74, July 2002 55 Ibid 56 AHG/Decl. 2(XXX) 57 OAU in its ordinary session of the Assembly of Heads of State and Government in July 1999, at Algiers. This is why the Convention is often referred to as the Algiers Convention. 58 Article 3 of the Convention which provides the exclusionary rule on self-determination state; 3(1) Notwithstanding the provisions of Article 1, the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and dominion by foreign forces shall not be considered as terrorist acts.

23

occupation and colonial domination to obey the laws of armed conflict which expressly

prohibit targeting of civilians.

Article 2 of the OAU Convention on the Prevention and Combating of Terrorism requires

states parties to review their national Laws and establish criminal offences for terrorist

acts as defined in the Convention and make such acts punishable by appropriate penalties

that take into account the grave nature of such offences. States parties are also required

to notify the Secretary-General of the OAU of all the legislative measures on terrorist acts

within one year of ratification of, or accession to the Convention.

Article 4 of the Convention deals with areas of cooperation, enumerates certain forbidden

activities in furtherance of terror that states parties are expressly forbidden from

involvement and requires exchange of information without citing confidentiality and

allows for flexible extradition procedures. Investigation and arrest of persons involved

in terrorist activities is primarily within the jurisdiction of the national law of each state

but a measure of latitude is permitted in assisting each other.

Issues relating to extradition,59 extra-territorial investigations (Commission Rogatoire)

and mutual assistance 60 take the form and import of United Nations Conventions on

similar matters.

Africa’s biggest challenge in carrying out effective counter-terrorism measures is the

weak capacity of its states.61 Corruption, failed states, poor infrastructure, rudimentary

communications and on-going conflicts have created a haven for terrorists.62. Lack of

resources contributes to porous borders through which dangerous weapons are smuggled.

A determined individual may move through countries, evade airports and secure entry

points and roam the African capitals with no need for a passport. Intelligence collection

and effective policing are too often undermined by lack of funding.

59 Article 8 of the OAU Convention on the Prevention and Combating of Terrorism. 60 Article 14, Ibid 61 Human rights, the United Nations, and the struggle against Terrorism; a publication of the United Nations office of the High Commissioner for Human Rights, Center on International Organization, Columbia University, Page 6, accessed from the Website on 6TH august 2004 at www.unhcr.org 62 Ibid

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Prior to the OAU Convention on the Prevention and Combating of Terrorism, the OAU

spoke on Terrorism through the Convention for the Elimination of Mercenaries in Africa

(1997).63 This Convention categorized mercenaries as a special class of terrorists who

are not members of armed forces engaged in conflict but who fight in armed conflict for

personal gain. Like any common terrorist, mercenaries cause great danger to life and

property. The Mercenaries Convention excludes a mercenary from the status of a

combatant thus denying him a prisoner of war status.

In October 2001, President Abdoulaye Wade of Senegal hosted a conference of African

Heads of State and governments in Dakar. The highlight of this conference was the

Dakar Declaration against Terrorism which held terrorism as ‘a blow to fundamental

human rights, peace and democracy.” Re-affirming the common beliefs propagated in

the Algiers convention, the Dakar Declaration sought to strengthen cooperation between

states in the fight against terrorism and declared the need for an additional protocol to the

Algiers convention.

2.2 International Terrorism

The East African Response

Despite the macabre August 7th 1998 American embassy bombings in Nairobi and Dar-

es-Salaam and the frequent local terror attacks in conflict prone Uganda, no real efforts

were made to articulate measures to fight terrorism in East Africa until after the New

York and Washington attacks of 2001.

Of the three East African States, Uganda and Tanzania have passed special counter-

terrorism legislation whilst Kenya’s Suppression of Terrorism Bill, 2003 is caught up in

legislative twists and political horse-trading. Kenya’s Suppression of Terrorism Bill aims

at providing measures for the detections and prevention of terrorist activities and

63 OAU CM/817 (XXIX) annext. II Rev 1

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amending the Extradition (Commonwealth countries) Act and the Extradition

(Contiguous and Foreign Countries) Act.64

The Bill defines terrorism in broad terms, 65 spreading it to include the use or threat to

use action where there is any serious violence against a person, serious destruction to

property and any endangering or risk to health or safety of the public or a section of it.

The mens rea of the action is to be found in the motivation for the offence. The threat

constituting terrorism must be directed at influencing the government or to intimidate the

public or a section of the public for the purpose of advancing a political, religious or

ideological cause. Section 3(2) of the Bill holds any such action to be terrorist action

even when it is committed outside Kenya and to persons and property situated both

within and outside Kenya.

Terrorist offences include weapons training,66 directing a terrorist organisation, 67

possession of an article for terrorist purposes, 68 collection of information for terrorist

purposes 69 and incitement of terrorist offences outside Kenya.70

Under Section 9, the minister responsible for national security may declare an

organization a terrorist organization by making a declaration by notice in the Kenya

Gazette. He may also revoke any notice previously made thus clearing such an

organization of any guilt. For this purpose, it is the minister’s ‘belief’ that an

organization is engaged in terrorist activities that suffices.

64 See Preamble to The Suppression of Terrorism bill 2003. Printed and published by the Government printer, Nairobi 65 Section 3(1) of the Bill provides that “terrorism” the use or threat of action where (a) the action used or threatened (I) Involves serious violence against a person; (ii) involves serious damage to property (iii) endangers the life of any person other than the person committing the action (iv) creates a serious risk of death or safety of the public or a section of the public or (v) is designated seriously to interfere with or seriously to disrupt an electronic system (b) the use or threat is designated to influence the government or to intimidate the public or a section of

the public and (c) the use of threat is made for the purpose of advancing political, religious or ideological cause, provided

that the use or threat of action involves the use of (I) firearms or explosives (ii) Chemical, biological, radiological or nuclear weapons or (iii) Weapons of mass destruction in any form; shall be deemed to constitute terrorism whether or not

paragraph b is satisfied. 66 Section 4(1) 68 Section 6 69 Section 7 70 Section 8

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2.3 Tracking Terrorist Finance

The use and possession of ‘terrorist property’71 is an offence and any person who gets

involved in financial arrangements to aid terrorist activities commits a crime.72 The

Attorney General is granted a wide latitude in tracking terrorist property, with discretion

to apply to the High Court for orders to require a person to deliver to him any document

or record identifying suspected terrorist property and requiring banks to make available

records of transactions in any account.73 If there be a delay in delivering this

documentation the Attorney General may apply to the High Court for leave to search the

suspect premises.

There is obviously great difficulty in tracking terrorist finance. Yet it must be recognized

that some terrorist activities may be sponsored by small personal donations which, when

obtained from many people may cumulatively amount to a sizeable account. Moreover,

it is not always true that terror activities are the result of an accumulation of vast

resources. Certain help, given in kind for example information and facilitation may cost

pretty little but have fatal consequences. September 11, in New York, demonstrated that

terrorist networks each making a small contribution in air travel, training and

accommodation may be extremely difficult to detect and may pass without suspicion.

Unless terrorists are engaged in activities with a heavy financial input, the intricate web

of network and technology employed may pas for innocent transactions. This explains

the rather high-handed provisions in Kenya’s Suppression of Terrorism Bill with respect

to seizure and detention of terrorist cash. It takes an authorized officer who has

reasonable grounds to suspect that any cash is being imported into or exported from

71 ‘Terrorist Property’ is money or other property intended to be used for purposes of terrorism 72 Section 16

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Kenya, to seize the cash.75 It is not a requirement that all the suspect money be for the

same purpose. It is enough if only part of the cash is reasonably suspected to be for a

terrorist purpose.76

In a number of ways Kenya’s Suppression of Terrorism Bill builds upon the United

Nation’s Convention for the Suppression of Terrorism. The operative provisions in Part

IV of the Bill seek to deny terrorists access to funding. This is enhanced by Part V,

which allows for wide police powers of investigation into any suspected terrorist activity.

2.4 Preparation or instigation of acts of terrorism.

Under Part 1V, the Commissioner of Police is given authority to apply to the High Court

for the issue of a warrant for the purpose of a terrorist investigation. Once issued, such a

warrant allows entry into the premises specified in the warrant, search of the premises

and any persons found therein and inspection any document, record or thing found

therein.77 The police may also retain any relevant material found therein.

In cases of emergency, where there may be no time to make the necessary application,

Section 26 of the Bill permits a police officer of or above the rank of an Inspector to enter

and search premises without the warrant provided for in Section 25.

Powers to obtain financial information, port and border controls and authority to enforce

disclosure of information enable the police to obtain financial information and to examine

persons arriving or leaving Kenya for related purposes. Any information obtained thus

may be used to make a decision on the possible detention of any person suspected of

involvement in terrorist activities. The Executive’s arm is strengthened by Section 31(1)

which permits the Minister in charge of internal security to make an exclusion order

against anybody whom in his view is concerned or has been concerned with the

commission, preparation or instigation of acts of terrorism in Kenya. The same applies to

73 Section 19(1) 75 Section 21(1) 76 Section 21(1) 77 Section 25(1)

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someone attempting to enter Kenya with a view to being concerned with the commission,

preparation or instigation of acts of terrorism.

2.5 Mutual Assistance and Extradition

Kenya’s suppression of Terrorism Bill contains a clutch of measures intended to make it

easy to extradite suspected terrorists. Section 33(1) lays down instances where the

Commissioner of Police is obliged to disclose to any competent authority of a foreign

state any information in his possession relating to persons suspected of involvement in

acts of terrorism. To fulfill this obligation the Commissioner is authorized to access such

information from any government ministry.

The Attorney General of the Republic of Kenya is dressed with powers, under Section 35

of the Bill, to make similar requests for information on behalf of Kenya. It is Section

37(2) however, which translates a similar provision in the bombing Convention into

reality. It provides that

“Where Kenya is a party to a counter-terrorist convention and there is no extradition agreement in force between the Government of Kenya and another state which is party to that convention, the minister responsible for foreign affairs may, by order published in the Gazette, treat the counter-terrorism convention, for the purposes of the Extradition Acts, as an extradition agreement between the Government of Kenya and that state, providing for extradition in respect of offences failing within the scope of that convention.

To complete the opening of the extradition door, Section 37(3) removes all offences,

which cause or are likely to cause death of serious bodily harm to a person or serious

damage to property from “political offences” and thus removes any defense there may be

to extradition.

2.6 TANZANIA

Unlike Kenya, Tanzania already has a domestic anti-terrorism law in place. The

Prevention of Terrorism Act 2002 introduces several multi-layer provisions aimed at

prohibiting acts of terrorism, improving the investigative machinery and combating

29

money laundering and terrorist finance. On the more practical level, the Tanzanian

Government has introduced programs to enhance police capacity to deal with terrorism,

seal its porous borders and increase civil aviation protection. The Dar es Salaam US

embassy bombing was a wake-up call for the Government of Tanzania to take steps to

rein in increasing Islamic fundamentalism at the coast and in it’s island of Zanzibar.

In many ways, Tanzania’s prevention of Terrorism Act follows the form and substance of

the Kenyan Suppression of Terrorism Bill. It sets down comprehensive measures for

dealing with terrorism, including cooperating with other states in the suppression of

terrorism. Par. II of the Act makes it an offence to commit a terrorist act.

A terrorist act is committed if, “with terrorist intention” someone does an act or omission

which;

a) May seriously damage a country or an international organization or b) Is intended or can reasonably be regarded as intended to:- (i) Seriously intimidate a population (ii) Unduly compel a government to perform or abstain from performing any act (iii) Seriously destabilize or destroy the fundamental political constitutional economic

or social structures of a country or an international organization. (iv) Otherwise influence such government or international organization; or c) Involves or causes, as the case may be- (i) attacks upon a person’s life which may cause death (ii) attacks upon the physical integrity of a person

An act is said to constitute terrorism if it involves serious bodily harm to a person and/or

involves serious damage to property.79 Tanzania’s Act is an improvement on the Kenya

Bill in the sense that it criminalizes an act of terrorism and provides for the mens rea

(terrorism intention) in its definition of terrorism.

79 Section 4(3) of the Prevention of Terrorism Act.

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The Minister responsible for Home affairs may declare an organization a terrorist

organization and any person who belongs to such an organization commits an offence.80

Equally, rendering support to terrorism or harboring terrorists 81 is an offence.

2.7 Specified Entities

Section 12(1) empowers the Minister to declare any person to be a suspected

international terrorist where he reasonably suspects that such a person has been

concerned with acts of terrorism abroad, is a member of an international terrorist

organization or has links with an international terrorist organization. Such a person is

then notified and his funds may be frozen and he may be prevented entry into Tanzania.

2.8 Specific Offences

Provision or collection of funds to commit terrorist acts 82 collection of property or

provision of property and services for commission of terrorist acts,83 use of property for

commission of terrorist acts 84 and arrangement for retention or control of terrorist

property are serious offences attracting an imprisonment term not less than 15 years.

Soliciting and giving support to terrorist groups for commission of terrorist acts,85

harboring of persons committing terrorist acts or provision of weapons to terrorist groups

attract similarly serious penalties of not less than 20 years imprisonment.

2.9 UGANDA

Uganda’s story is not any different. The Ugandan version of the Suppression of

Terrorism Act, like Kenya’s Bill and Tanzania’s Act allows the minister for internal

80 Section 6(1) (2) 81 Section 7(1), Section 8 82 Section 13 83 Section 14 84 Section 15 85 Section 19

31

Affairs to declare a group as a terrorist organization. The only difference is that

Uganda’s Act allows a panel review of the Cabinet to revise the list prepared by the

Minister.88 If, however, Parliament is against the decision of the Cabinet, it may veto it.89

In spite of the stringent measures attendant to declaring a group as a terrorist organization

Uganda still holds Joseph Kony’s Lord’s Resistance Army together with the Allied

Democratic Forces (ADF) as terrorist organizations even though they are largely viewed

as anti-National Resistance Movement groups. It is the penal result of having a group

labeled as a terrorist organization, which is somewhat shocking. Uganda’s Act permits

the Minister for Internal Affairs to liquidate the assets of a terrorist group for the benefit

of the state.90 This is draconian when one considers that the Kenyan Bill and the

Tanzanian Act only allow the relevant minister to freeze the assets of a terrorist group

and to carry out a thorough investigation before a forfeiture order is made.91 Uganda’s

Act, like the Tanzanian one and the Kenyan Bill allow wide latitude of executive orders

that may apply to secret surveillance, electronic monitoring and bank investigations

against anyone considered a suspect.92 It does not appear that the Minister needs any

court order for this action. He only needs to satisfy himself that the action is necessary

for the purpose of bringing the suspect to justice.

There are serious complaints of blatant abuse of the anti-terrorism law in Uganda.

Human Right Watch complains that;

The anti-terrorism Act contains an overly broad definition of terrorism and generally refers to “opponents of the state” thus making those in the media and public life who have divergent views suspect. The terrorism law contains rather sweeping provisions, for example, possession of un-licenced firearms is tantamount to terrorism. Once the prosecutor proves possession the burden of innocence shifts to the defendant. The Act allows the minister to declare an organization terrorist without challenge in court.93

88 Supra note 83 89 Ibid 90 Section 14(5) 91 Section 22 read together with the first Schedule to Kenya’s Bill and Section 36 of Tanzania’s Act. 92 Section 24-25 of Uganda’s Act 93 Civil Liberties and Anti-Terrorism Measures accessed at www.questia.com/popularSearches/civil_liberties_and_anti_terror.josp on 15th August 2004.

32

The Ugandan Government justifies its actions on the pretext that it has a duty to resist

and defeat terrorists 94. To operationalize the Terrorism Act, the Government, in

September 2002, formed an ad hoc joint Anti-Terrorist Task Force.95 This committee

consists of agents from the chieftaincy of military intelligence, police, and the internal

security organization.96

Although this committee does not have any statutory powers of its own, it operates with

the residual authority of its members and may detain and interrogate suspects.

94 Kampala has often been a target of homegrown terrorism. From late 1997 to 1999 a wave of terror hit the city with home-made bombs hitting commercial premises in which an estimated number of 160 people died. The Allied Democratic forces were believed to have carried out most of these bombings. 95 Supra note 93 96 Ibid

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CHAPTER 3

TERRORISM AND HUMAN RIGHTS

3.1 Finding the Balance

In times of international conflict, individual liberties are often sacrificed for the benefit of

national security.100 September 11 introduced a universal scramble for legislation to

prevent a repeat of that event notwithstanding the inherent dangers to fundamental human

rights. United Nations High Commissioner for Human Rights, Mary Robinson, has

labeled Human Rights a ‘victim of September 11.’101 It is not a victim merely by way of

legislation negativing enjoyment thereof; it is a victim also because funding previously

set aside to promote good governance, democracy and respect for human rights has been

directed to fighting terrorism.

In East Africa, a sizeable part of donor funding and foreign aid hitherto directed at

agriculture, health and education has now been prescribed for counter-terrorism

initiatives.102 The result is seen in poor harvests, rising figures in child mortality and a

worsening of education facilities.

3.2 Terrorism and Prevention Legislation on the International Field:

100 Therese Lee, Malaysia and the Internal Security Act; The insecurity of Human Rights after September 11. Singapore Journal of Legal Studies (2002) 56 – 72. 101 “Robinson urges Rights Protection,” See CNN.com (6th June 2002), accessed at www.cnn.com/2002/WORLD/europe/06/06/un.robinson/index.html (accessed on 8/7/04). 102 This is evident from the large and generous contributions being made to that antiterrorism campaigns while there is a cut on previous spending on essentials.

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The flurry of international conventions and domestic legislation that flowed after

September 11 is heavily criticized as rolling back the curtain on the gains in the field of

human rights.

Whilst recognizing the need to combat terrorism, there must be creative measures to

advance the cause of Human Rights. There is need to harmonise substantive anti-

terrorism criminal law with basic and acceptable standards of Human Rights protection.

Recent developments have shown that anti-terrorism legislation tends to provide for

special powers, eroding a suspect’s rights with respect to investigation, detention and

prosecution. This has been observed as a general trend worldwide.103 The United States

of America, a country with immense military and economic power has subordinated all

its activities to its fight against terrorism. Whereas it was previously seen as a protector

of human rights it is now seen as a violator of the rights it previously supported.

Soon after the terrorist attacks that took place in New York, Washington D. C and

Pennsylvania on 11th September 2001, the UN Security Council unanimously adopted a

resolution with a wide-ranging and comprehensive structure aimed at laying out

strategies to combat international terrorism. By Resolution 1373 (2001) the Security

Council placed all member states under an obligation to take positive action to obstruct

the financing of terrorist groups and to make a report to the counter-terrorism committee

on the steps they had taken to do so. The Resolution also required amending local

legislation to criminalise the willful provision or collection of funds for such acts.

Resolution 1373, made under Chapter VII of the Charter of the United Nations made

inroads into the area of human rights by declaring that “methods and practices of

terrorism are contrary to the purposes and principles of the United Nations.” This

blanket condemnation, made without defining what constitutes terrorism, has been cited

by a country like Uganda to mean that the United Nations supports the fight against its

own definition of terrorism.

103 See Amnesty International, Amnesty International Report 2002 ( Amnesty International Publications, 2002.)

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In an attempt to deny terrorists any comfort or place of safe refuge Article 2(d) of

Resolution 1373 requires all states to “deny a safe haven to those who finance, plan,

support or commit terrorist acts.” For the same reason and by the same text, Resolution

1373 required that before a state allows any person refugee status it must ensure that the

asylum seeker had not planned, facilitated or participated in terrorist acts. Further, States

were placed under a duty to ensure that refugee status was not used as a camouflage for

perpetrators, organizers or facilitators of terrorist acts and that a claim to political

motivation for a terrorist act would not be used as a defence in refusing extradition.

It was to under-score the serious nature of the declarations made under Resolution 1373

that the Security Council created the Counter-Terrorism Committee to which all states are

required to report compliance with International Counter-Terrorism measures.

This Committee monitors and assists efforts by countries to combat terrorism through

enhanced national laws and administrative structures. It;

• Reviews reports by states on steps taken to implement measures in the resolution.

• Identified gaps in countries’ implementation of the resolution and facilitates assistance bilaterally and multilaterally, to help them improve their capacity to prevent and fight terrorism.

• Shares information with international, regional and sub-regional organizations engaged in the fight against terrorism and

• Provides periodic assessments to the Security Council on the committee’s progress.104

The Committee’s mandate has been strengthened and expanded in Resolutions 1377

(2001) and 1456 (2003).105

On the African continent, the provisions of Resolution 1373 are reflected in the Algiers

Convention. Both Resolution 1373 and the Algiers Convention pose a range of

challenges in their implementation. Besides weak democracies and inadequate

infrastructure, dictators on the continent may have been handed an excuse with which to

emasculate fundamental rights as they deal with their version of terrorism. This fear is

104 See internet LSC Resolution 1373 – Implementation 105 ibid

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strengthened by the fact that the fight against terrorism is not one to be won in the near

future.

Unless the emerging body of anti-terrorism legislation is in-built with provisions for

Human Rights protection from the beginning, then liberty, the rule of law and basic

principles of fundamental justice will suffer. Whilst we must bring all the force to bear

on terrorism we must not destroy the fragile democratic principles that are just starting to

emerge in the constituent African States.

This exposes Africa to potential conflicts between two or more competing legal regimes.

For examples, Article 12.3 of the Convention against Transnational Organized Crime

requires states to enact domestic laws that grant wide powers of confiscation, freezing, or

seizure of property or proceeds derived from organized crime.106 Article 8 of The

International Convention for the Suppression of the Financing of Terrorism requires

states to take appropriate measures, in accordance with its domestic legal principles, for

the identification, detection and freezing or seizure of any funds used or allocated for the

purpose of committing the offences set forth in article 2 of the Convention as well as

proceeds derived from such offences, for purposes of forfeiture. Both these Conventions

presume that the person setting in motion the process of seizure of funds or property has

ascertained correctly that the funds or property are “for the purpose of committing

terrorist acts.” There is no provision for the return of the property until the person whose

property has been seized provides conclusive evidence that the property is actually not

meant for the alleged crime. On this, it is important to remember that the Algiers

Convention107 protects the right to property and allows for a suspect’s case to be heard in

a court of law before a determination can be made on seizure. Unfortunately the Kenyan

Suppression of Terrorism Bill108 Tanzania’s Prevention of Terrorism Act109and Uganda’s

Suppression of Terrorism Act provides for property seizure and confiscation before due

106 . Cilliers and K. Sturman, Africa and Terrorism, joining the Global Campaign, published in monograph No. 74, July 2002 assessed at http:/www.iss.co.za/PUBS/MONOGRAPHS/NO 74/Chap/: html 107 Article 7(1) read together with Article 3 and 14 of the Convention. 108 See Section 20 with respect to attachment of property 109 S. 33 of Tanzania’s Act provides for powers to seize property used in commission of terrorist acts. Under the provision, property may be seized ‘where the Inspector General of Police or Commissioner of Police has reasonable grounds for suspecting that any property has been, or is being used to commit a terrorist act.

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process. It is in this light that one may conclude that it would be “a pyrrihic victory if

terrorism were defeated at the cost of sacrificing Africa’s commitment to those values

reflected in the Banjul Charter.”110 Africa must seek to implement international anti-

terrorism conventions within the confines of international Human Rights commitments.

Provisions contained in the Universal Declaration of Human Rights (1948), the

International Covenant on Civil and Political Rights (1966) and the African Charter on

Human and People’s Rights (1982) must be respected.111 This is by no means an attempt

to downplay the threat of terrorism. The question to be answered is whether we can trust

the executive to make an impartial determination as to whether a situation is grave

enough to call into operation the emergency measures of the terrorism law, which

restricts enjoyment of fundamental rights. It is because history has taught us to distrust

the executive that we think it fit to call in the adjudication authority of the courts to

review a situation before a citizen has been denied his liberty and/or property.

3.3 In war, is law silent?

September 11 prompted an international reconsideration of the self-defence doctrine

embodied in Article 51 of the UN Charter. Similarly, it stimulated a debate on the

essential line of demarcation between security and liberty. For the United States, a

country most affected by terrorism, September 11 “generated substantial controversy

concerning three related issues: (i) the most appropriate forum for prosecuting

individuals responsible for the September 11 attacks;112 (2) The International legal status

of combatants captured in Afghanstan;113 and more generally (3) the most appropriate

role for the law in any comprehensive strategy against international terrorism.114 On the

whole, the U.S.A and the United Kingdom, her most ardent supporter, held that Article

51 of the U.N Charter permitted the use of force against Afghanistan for her refusal to

110 Supra note 106 page 8 111 ibid 112 See Derek Jinks on International Human Rights Law and the War on Terrorism, quoting from Harold Hongju koh, we have the Right Courts for Bin Laden, N.Y Times Nov. 23 2001 at page 39. 113 Initially the U.S.A argued that the combatants captured in Afghanistan did not qualify to be treated as prisoners of war under the Geneva conventions. This position has changed somewhat. 114 See Supra 110, quoting from Sofaer & Williams, Doing Justice During Wartime; why military Tribunals make sense, III Policy Review 3 (2003).

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hand over Osama Bin Laden on whom September 11 was blamed. The U.S.A invoked

Article 2(4) of the Charter as a reason for departing from the plain meaning of the terms

of Article 1 of the Charter. It was argued that by allowing Bin Laden to operate inside

Afghanistan, the Government of Afghanistan had acted in a manner inconsistent with the

territorial integrity and political independence of the U.S.A. For this reason, action

against Afghanistan was seen as a legitimate act of self-defence.115

On the same plane, the U.S.A justified its invasion on Iraq as an act of pre-emptive self-

defence, aimed at averting a threat of the use of chemical and/or biological weapons,

which Saddam Hussein was said to be manufacturing. In the circumstances, it would be

fair to conclude that the invasions on Afghanistan and Iraq were seen as actions within

the permissible limits of the UN Charter. The issues that arose after Afghanistan and Iraq

are:

• The applicable law on the war on terrorism and

• The applicability of the Geneva Conventions to alien detainees

These issues find their answers in International Humanitarian Law. It cannot be denied

that all persons have a right to basic judicial standards: - the right not to be detained

without just cause, the right to certain basic standards whilst in detention and the right to

a fair trial.

The characterization of the September 11 attacks as “armed attacks” justifying response

by way of self-defence and the action against the Taliban (at lease the de facto

government of Afghanistan) meant that the operations of the coalition were part of an

international armed conflict so that the law of armed conflict applied.116

The question thus as to whether the Geneva Conventions applied to the Afghan detainees

is moot. It must be said that right from the point of capture in Afghanistan to detention at

Camp X-ray at Guantanamo Bay in Cuba, the detainees had prisoner of war status as laid

115 See Safety and Security Portfolio Committee: Justice and Constitutional Affairs; Joint Meeting on 23rd June 2004 accessed at http//www.pmg.org.. 116 September 11 and the U. K response,’ International and Comparative Law Quarterly, Vol. 52 pg 245 – A commentary

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down in the Geneva Conventions. It is un-helpful for the U.S.A to argue that Al-Qaeda

combatants do not form a recognized army or that the Talibans did not fight under a

responsible command. It is the British Foreign Secretary who said that;

“the struggle for human rights has to be a major part of the fight against terrorism. Combating terrorism, however, must not become a pretext for setting aside the human rights norms so painstakingly established over the last 50 years.”

Even if it were to be successfully argued that the Geneva Conventions do not apply to the

Al-Qaeda fighters, they certainly have rights under international customary law. It was

perhaps on this basis that the High Commissioner for Human Rights emphasized that all

the detainees were entitled to the protection of International Human Rights and

International Humanitarian Law and in particular of the relevant provisions of the

International Covenant on Civil and Political Rights and the Geneva Conventions.117

Amnesty International, on the other hand, has voiced strong protests against the actions

and statements of the American Government and has stated that the holding of the Al-

Qaeda and the Taliban fighters in sub-human conditions and in a legal limbo is

inconsistent with International Human Rights Law as they have not been informed of

their rights, have not been taken before an impartial tribunal and have no access to legal

advise.118

It must not be forgotten, also, that the Geneva Conventions presume these detainees to be

prisoners of war until a competent tribunal decides against that presumption.119

117 ibid 118 See Amnesty International’s memorandum to the U.S Government on the detention of Taliban and Al-Qaeda prisoners at US Base in Guantanamo Bay, Cuba 16th Jan. 2002 accessed at www.unhchr.ch/hurican/hurican.nsf./newsroom>. 119 Article 5 of the Geneva Convention provides that; Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the Convention until such time as their status has been determined by a competent tribunal.

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3.4 Torture

There is another human rights issue at stake here. This is the issue of torture of detainees.

It is conceded that public emergencies may lead to a suspension of certain rights. The

absolute prohibition against torture, however, is always present. The Geneva

Conventions and their Protocols expressly forbid the suspension or derogation from the

injunction to torture. As a matter of fact, torture is such a heinous act that Protocol 1 to

the Geneva Conventions of 12th August 1949 and relating to the protection of victims of

international armed conflicts calls all aspects of torture terror and provides that: -

In cases not covered by this protocol or by international agreements, civilians and combatants remain under protection and authority of the principle of international law derived from established custom, from the principles of humanity and dictates of public conscience.120

Protocol 1 applies itself from the beginning of any situation referred to in Article 1.121

Article 15 of Protocol 1 and Article 13(2) of Protocol II relating to the protection of

victims of non-international Armed conflicts have similar provisions with respect to

protection of civilian populations present in an area wrought with armed conflict.

Common Article 2 of Protocol II reiterates the protection given in the similar article in

Protocol 1. One may thus conclude that “civilians and combatants remain under the

protection and authority of international law” without such exceptions as the U.S.A has

sought to create. Further, it is clear that Article 4 of the Protocol II guarantees human

treatment (fundamental guarantees) to all persons who do not take a direct part or who

have ceased to take part in hostilities. For avoidance of doubt, Article 4(2) provides:

120 Article 2 of Protocol 1 to the Geneva Conventions 121 Article 1 provides that “the High Contracting Parties undertake to respect and to ensure respect for this protocol in all circumstances.

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Without prejudice to the generality of the foregoing the following acts against persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever;

(a) Violence to the life, the health and physical or mental well being of persons,

in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment.

(b) Collective punishments. (c) Taking hostages. (d) Acts of terrorism. (e) Outrages upon personal dignity, in particular humiliating and degrading

treatment, rape, enforced prostitution and any form or indecent assault. (f) Slavery and the slave trade in all their forms. (g) Pillage (h) Threats to commit any of the foregoing acts.

Under Article 5 of Protocol II persons whose liberty has been restricted shall enjoy the

same rights as the local civilian population; they shall be provided with food and drinking

water, and shall be a afforded healthy and hygienic place of abode. In all circumstances

great emphasis is laid on ‘humane’ treatment, which all persons should be given whatever

their status may be.

3.5 Fair Trial

International Human Rights law informs the legal analysis of the most controversial

aspects of anti-terrorism law. The U.S.A has decided, with mixed reactions from its legal

experts, to try terrorism cases arising from Afghanistan and Iraq by military

commissions.122 There seems to be a general consensus within the U.S.A that America

can hold the terrorist suspects indefinitely, without trial. It is important to note that

several international human rights treaties,123 declarations124 and resolutions125 establish

122 Military order of Nov 13, 2001, Detention, Treatment and Trial of certain non-citizens in the war against Terrorism, 66 Fed. Reg. 57833 (Nov. 16, 2001). The Department of defense has implemented the order by issuing the rules of procedure and evidence for the Commissions. See Department of Defense, Military Commission, Order NO. 1, Procedures for Trials by Military Commissions of certain non-United States citizens in the war against Terrorism, (March 21, 2002). 123 See e.g International covenant on Civil and Political Rights, Dec 16, 1966 Articles 9, 14 and 15, 999 U.N.T.S; The African Charter on Human and People’s Rights, June 27, 1981 Articles 3,6, & 7, 21 ILM 58, American Convention on Human Rights, Nov. 22, 1969 Articles 7, 8 & 9, 1144 U.N.T.S 123; European Convention for the Protection of Human Rights and Freedoms, Nov 4, 1950, Articles 5,6, & 7 213 U.N.T.S, 221 as amended by Protocol N0. 3 E. T. S 45, Protocol No. 5, E.T.S 55 and Protocol No. 8 E.T.S

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minimum procedural protections for all individuals deprived of their personal liberty.

Amidst many debates and endeavors to combat terrorism, the question still remains as to

whether the gravity of terrorism as an offence deprives terrorist suspects of their

fundamental rights under these international instruments. The U.S.A’s response has been

to empower the President to adopt methods and procedures that may deter and prevent

acts of international terrorism against the United States.126

Reacting from September 11, the President of the U.S.A, citing Article II of the U.S

constitution coupled with a congressional joint resolution of September 18, 2001 issued a

Military Order directing the “detention Treatment and Trial of Certain Non-citizens in the

War against Terrorism. 127

Acting on that Order, the Secretary of Defense, Donald Rumsfeld established military

commissions to prosecute all detainees subject to it. Quite contrary to basic American

standards, the Military Order gives the president the sole prerogative of determining who

is subject to the order.

The president alone has the discretion to determine the jurisdiction of the military

commission. It would appear that the Military Order flies in the face of the International

Covenant on Civil and Political Rights (ICCPR). Under Article 9 of the ICCPR.

9(1) Everyone has the right to liberty and security of person. No. one shall be subjected to arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law. 2. Anyone who is arrested shall be informed, at the time of his arrest, of the reasons for

his arrest and shall be promptly informed of any charge against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a

judge or other officer authorized by law to exercise judicial power and shall be

118; Convention against Torture and other cruel inhuman or degrading treatment or punishment, U.N GAOR, 39th Sess. Supp. No. 51 at 197. 124 See Universal Declaration of Human Rights, articles 9-11, G. A Res. 217, UN GAOR, 3d. Sess at 72, UN Doc. A/810 (1948). Ibid. 125 See standard minimum rules for treatment of prisoners, UN Doc A/CONF/ 611. Ibid 126 “Rethinking the Security at Airports” The New York Times (September 19, 2001) 127 Military Order of November 13, 2001, 66 Fed. Reg. 57833 (November 16,2001).

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entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take

proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

The Human Rights Committee of the United Nations128 has interpreted Article 9 of the

ICCPR to mean that a detained person must be brought before a judge or other officer

“within a few days.” Article 9(4) provides for what in domestic legislation is called a

right to Habeas Corpus. Besides the ICCPR, all regional treaties contain elaborate, fair

trial procedures, guaranteeing suspects ‘a fair and public hearing by a competent,

independent and impartial tribunal by law established.”129 The presumption of innocence

‘until proven guilty” is reinforced by the right of a suspect to be informed promptly and

in detail in a language which he understands the nature and cause of the charge against

him and to have adequate time and facilities to prepare for a defense and to communicate

with a counsel of his choice.130 Such a suspect is to be tried without delay and to be

informed of his right to legal counsel. Article 9 thus lays down what may be called the

minimum procedural requirements for a fair trial. This notwithstanding, the anti-

terrorism legislation in East Africa appear to permit a derogation from the principle laid

down in Article 9.

Kenya’s Bill, 2003 gives the police powers to hold a terrorist suspect indefinitely "until

completion of the search and/or investigation."131 The Tanzanian Act is even more

draconian. Section 28 of the Act permits any police officer to arrest without a warrant

any suspect whom he has reasonable grounds to think has committed or is about to

128 The ICCPR established the United Nationals Human Rights Committee to monitor state parties’ compliance with the treaty. This monitoring function involves three complementary procedures; first the ICCPR establishes a periodic reporting process. Second, the Committee drafts ‘general comments’ typically concerning the interpretation of the substantive rights and freedoms contained in the treaty each committee oversees. Thirdly and perhaps importantly, the committee received written ‘communications’ or petitions’ from individuals alleging that a state party has violated one or more rights projected by the ICCPR. Supra, note 122, Jenkins. 129 Article 14(1) of the ICCPR 130 Section 2(b) of Kenya’s Bill under the heading “Powers of Investigations in cases of Emergency.” 131 Section 28(2)

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commit a terrorist act. A senior officer above the rank of assistant superintendent, an

immigration officer or a member of Tanzania intelligence service may undertake such

police action. However notwithstanding this restriction any policeman may arrest and

detain a person whom he reasonably suspects of having committed or is about to commit

an offence under the Act.131 The Act also allows the police to use such force as may be

necessary for the exercise of obtaining an arrest. To protect the police in their use of

force during an arrest the Act provides that

“A police office who uses such force as may be necessary for any purpose in accordance with this Act, shall not be liable, in any criminal or civil proceedings, for having, by the use of force, caused injury or death to any person or damage to or loss to any property.”132.

The prevention of terrorism allows arrest of suspects on reasonable grounds but goes

deeper to permit indefinite detention. It is clear that the extra-judicial powers given to

police officers are incompatible with the requirement of Article 9 of the ICCPR and

threaten the realization of fundamental rights of any suspect. Further, it must be clear

that such powers of arrest and detention are contrary to the Bill of rights present in the

Constitutions of the three East African Countries. Given the poor human rights records

of these countries, any opening of space for the Executive shall be prone to abuse and can

be used to settle political scores.

It is appreciated that perhaps the most effective weapon in the fight against terrorism is

the successful prosecution of suspects. Indisputably, also, effective prosecution must be

preceded by quick action on the part of the security apparatus. Within the development

of human rights law there are fundamental tenets, which guarantee respect for individual

rights whilst assuring international and national level security. Constitutional law

resents the violation of individual rights as a means of assuring corporate security.

Traditionally African countries use national peace and security as an excuse for

committing abuses of human rights.

132 Section 28(6)

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One does not wish to think that what has been achieved by heavy sacrifices is going to be

swept aside by legislating for strong Executive actions. This fear is real partly because

courts in East Africa have not been known to have a strong culture of protecting human

rights. The law is often used as a tool of executive power used for suppressing political,

academic and social activities that do not agree with government thought and actions. It

is feared that the governments will use existing legislation to wrongfully label certain

social groups as terrorist organizations so as to give the executive an excuse to

emasculate alternative opinion.

It is evident, also, that anti-terrorism legislation affords the executive more political space

in which to exercise its powers of coercion, pretending to prioritize national security

interests over individual liberties. The anti-terrorism legislation thus contains elements of

opportunity for oppressive leaders to abuse human rights.

3.6 Privacy

Perhaps in no area of Private law is an anti-terrorism law regime as negatively perceived

as in the privacy rights of individuals.

The International Convention for the Suppression of the Financing of Terrorism in

adopting regulatory measures to prevent and counteract movements of funds suspected of

being intended for terrorist purposes has in many ways impeded freedom of legitimate

capital movements. In an attempt to detect, seize and freeze any funds that may be used

for terrorist activities, the Convention provides for extreme invasions into privacy,

permitting secret investigations of bank accounts and other assets privately held.

The 1999 OAU Convention on the Prevention and Combating of Terrorism places states

parties under obligation to develop and strengthen methods of detecting terrorists and

movement of suspect funds and requires the promotion of exchange of information

between countries on possible terror suspects. This allows for private tracking of the

movements of suspects even when there is no more than just suspicion of their activities.

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In a number of respects, national anti-terrorism legislation builds upon the presumption

that denying it the necessary finance may prevent terrorist action. The opening and

operation of heavy capital bank accounts is thus one aspect that must be closely

monitored. Yet not all terror acts involve heavy capital consumption. September 11

showed that armed with an air ticket and a penknife, a determined individual can cause a

heavy casualty toll.

The three East African countries anti-terrorism legislation, borrowing from the

Convention on Suppression of Terrorism Financing, all aim at cutting off the link

between the terrorists and their financiers.

The legislation provides for measures that monitor the movement of funds, allow the

seizure of cash and freeze all and any assets whenever they may be found.

Tanzania’s Act makes it an offence to provide or collect funds for commission f terrorist

acts.133 Consequently,

“Every person who provides, or collects by any means, directly or indirectly any funds, intending, knowing or having reasonable grounds to believe that the funds will be used in all or in part to carry out a terrorist act commits an offence and shall on conviction be liable to imprisonment for a term not less than fifteen years and not more than twenty years.”

The Tanzanian Act also empowers a police officer, for the purpose of obtaining evidence

of the commission of an offence under the Act to apply, ex parte, to the court for an

interception of communications data order.134 At this ex parte level the Act allows a

court to make an order.

“requiring a communications service provider to intercept and retain a specified communication or communications of a specified description received or transmitted or about to be received or transmitted by that communication service provider.”

133 Section 13 134 Section 31

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Section 31 (3) (b) of the Act allows the court to permit,

“a police officer to enter any premises and to install on such premises, any devise for the interception and retention of a specified communications of a specified description and to remove and retain such device.”

All that the police officer needs to demonstrate is that he has reasonable grounds to

believe that information or material relating to the commission of a terrorist act may be

present in the premises.

Section 24 Bill provides for far-reacting powers of investigation. Under this section the

Commissioner of Police may apply to a judge for the issue of a warrant for the purpose of

a terrorist investigation. Under this provision, the judge may issue a warrant authorizing

any member of the police force:-

a) to enter the premises specified in the warrant b) to search the premises and to search any person and inspect any document, record or

thing, found therein and c) to seize and retain any relevant material including any relevant document, record or

thing found therein. Like in the Tanzanian Act, all the Police Commissioner has to demonstrate to the judge

is that he has reasonable grounds to believe that a terrorist act has or is about to be

committed.

Section 27 of Kenya’s Bill read together with the second schedule to the Bill permits

police inspection of Bank accounts, placing financial institutions under an obligation to

provide customer information for the purposes of the investigation. An institution, which

fails to comply with a requirement under such an investigation order, shall be guilty of an

offence. It may however raise a defense that the information was not within its possession

at all or when requested. This invasion of private financial records of citizens is more

offensive when you consider that financial institutions are under an obligation, on their

own, to make a report of any suspicious financial transaction. It is an offence not to

make such a report and the burden shifts to the financial institution to demonstrate that a

suspicious transaction did not raise its concern.

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In a way, anti-terrorism legislation would appear to offend privacy rights. It is clearly

against the spirit of Article 7(1) read with Article 3 and 14 of the African Charter with

respect to the right to property, the right to have one’s case heard before a court and the

right to be presumed innocent until proved guilty. The pervasive orders of search and

seizure given by the anti-terrorism legislation almost always proceed ex parte. The

suspect does not have a right to be heard until after his rights have been violated.

3.8 Concentration of power in the executive

This discussion, so far, has demonstrated legislative expansion of powers for the

executive. The executive has powers to declare an organization as a terrorist group, thus

taking away the adjudicative powers of the courts. Similarly, the executive has power to

take away property and liberty on ‘reasonable grounds or belief’ that a person in engaged

in terrorism before that person has been heard on his defense. Experience has shown that

the executive is not to be trusted with un-checked powers, that it is wont to take more

than it has been allowed and is given to abuse discretion to its advantage. By taking

authority away from the judiciary and the legislature and resting it in the executive, anti-

terrorism legislation has put at risk good governance, due process and the rule of law.

Although it has been argued that a strong executive is necessary in order to respond to the

continuing threat of terrorism, there are genuine concerns with respect to individual rights

that are subsumed by natural security issues. If we shelve human rights in favour of a

strong executive, we shall be allowing terrorists one more achievements. States are, we

agree, under a duty to protect their citizens, yet this duty does not over-ride respect for

citizens fundamental rights. Uganda, for example, has used the suppression of Terrorism

Act to crack down aggressively on opposition groups, using a vague definition of

terrorists to curtail the enjoyment of legitimate expression of dissent to President

Museveni’s government. States like Uganda “exploit the situation by applying

draconian steps like using secret warrants, illegal arrests, prolonged and clandestine

detention, torture and other cruel treatment, inhuman or degrading treatment in

organizing secret trials, banning organizations, seizing property, closing down radio

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stations and newspapers and freezing bank accounts.”135 To scare off any help that may

come to those who suffer executive abuse, governments hold all associates of the victims

terrorists thus causing them to suffer by association.

President Charles Taylor of Liberia, in his last days in power, labeled any critic “an

unlawful combatant’ and had them locked up.136 The cantankerous Mugabe of Zimbabwe

labeled international journalists ‘terrorists’ and expelled them giving way to extensive

rigging of the 2002 general elections.

3.8 Other human rights concerns

It is safe to conclude that anti-terrorism legislation deals a major blow to fundamental

human rights. Besides creating a loosely defined offence of terrorism prone to abuse by

oppressive governments, the legislation severely curtails the rights of legitimate refugees

by allowing the executive the power to return them to the country from where they are

fleeing if it is not conclusively determined that they are free of terrorist connections. The

American Patriot Act permits the Executive to send back immediately an undocumented

alien to his country of origin unless he can prove, at the border inspection point, a

credible fear of prosecution. At this time, the alien has not had legal representation and

the decision of the officer at the entry point is not court review-able. Section 31 of

Kenya’s Bill permits the Minister to make exclusion orders against a suspect – effectively

keeping him out of Kenya or requiring his exit without recourse to a court order. Once

the exclusion order is made and served the continued stay in Kenya of the suspect

consists of a former criminal offence. Section 46 of Tanzania’s Act gives the Director of

Immigration or other authorized officer power to prevent entry and to order the removal

of suspects to or from Tanzania. All that is needed to make this order is possession of

“reasonable grounds to believe that such a person has been, is, or will be involved in the

commission of a terrorist act.” Again no court order is needed.

135 William G. O’Neil Terrorism and Human rights accessed on the Internet at www.unhcr.org on 2nd September 2004 136 See “Year of Loss, 2002-2003” at www./chr.org

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The context and intent of anti-terrorism legislation is to cut down on the great writ of

‘Harbeas Corpus’ by which courts have prevented abuse of citizen’s liberty. A detaining

authority may proceed under anti-terrorist legislation, circumventing the need for

warrants of search and arrest and shutting the eye of the court from inquiring into the

legitimacy of the actions of the police.

In the U.S.A., anti-terrorism law denies illegal aliens due process even though their initial

entry and continued presence is not related to terrorist activities. Persons who belong to

certain organizations labeled terrorist will have their movement heavily curtailed by not

only the exclusion orders but also by the permitted exchange of their identities between

states.

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Chapter IV

Conclusion

4.1 Finally

The recent terrorist attacks on the United States have opened the door to a principled

dialogue on the relationship between rights and security, a dialogue that might well be

able to go forward on a shared understanding of the guide norms. 137 Central to this

dialogue are issues of national security and individual liberty - finding a balance between

corporate security and fundamental freedoms. Amidst the promulgation of domestic anti-

terrorism legislation is the need to adhere to international conventions that define the

minimum rights protection necessary to prevent arbitrary exercise of power. We must

not forget that international human rights law provides the framework through which the

fairness of all legislation must be measured. We may say that it is still early to attempt an

assessment of how well the execution of anti-terrorism legislation will measure against

practical enjoyment of fundamental freedoms but the legislation has potential for abuse.

For this reason countries like Kenya, which have not yet enacted the anti-terrorism Bill

into law, must ensure that sufficient protective provisions are in-built to guard against

exposure of citizens’ rights. Further, it remains to be seen what quantitative and

qualitative gains will be obtained through the legislation of specific anti-terrorism laws.

It is hoped that the extensive powers granted to the executive shall reduce reaction time

on investigation and prosecution of terror suspects and thereby increase the level of

efficiency and prevent further attacks. This is perhaps desirable in securing aviation,

train travel and commercial premises. Either way, the necessity for security does not

137 Ramji victor v, Terrorism, Security and rights; a new Dialogue, Singapore Journal of Legal Studies (2002) 1-15 at Page 14

52

alleviate the fundamental requirement that all legislation keep within constitutional

parameters.

In general terms, concern centers around familiar themes, in particular the introduction

of powers to deal with a specific problem and their potential use in other situations, and

the erosion of constitutional safeguards as contained in the ECHR and the other human

rights conventions.138 However it is the nature (and doubtless also the design) of terrorist

attacks that they produce a climate of public opinion, which favors legal control at the

expense of constitutional freedoms.139 Looked at in that way, the public is willing to

accommodate a measure of restriction of its freedoms so as to achieve the more desirable

goal of common security. This is the positive element that may lie in the much negative

control and cost consumed in terrorism surveillance. Several questions, of course, still

remain to be answered on the effectiveness of having an open-ended definition of

terrorism, the labeling of certain organizations as terrorist, financial tracking of terrorist

funds and the ease of extradition conveyed by the new legislation.

4.5 Looking ahead

The problem of terrorism is by no means a unique issue restricted to a particular country

or region. Terrorism has become an international problem from which no state is spared.

Modern day terrorism touches on modern-day civilization and threatens the existence of

the nation-state as well as the comforts of our every day living. The challenge to

democracy and human rights posed by anti-terrorism legislation is a creation of terrorism

itself. It is within that purview and framework that we must perhaps appreciate the

domestic legislative response. Commenting on the possibility of an “unforced consensus

on human rights norms” philosopher Charles Taylor recently observed.

“The continued co-existence in a broad consensus that continually generates particular disagreements, which have in turn to be negotiated to renewed consensus, is impossible without mutual respect. If the sense is strong on each side that the spiritual basis of the other is ridiculous, false, inferior, unworthy, these attitudes cannot but sap the will to agree of those who hold these views while engendering anger and resentment among

138 Harding Christopher, International Terrorism; The British Response, Singapore Journal of Legal Studies (2002) 16-29 at page 28 139 Ibid

53

those who are depreciated. The only cure for contempt here is understanding. This alone can replace the too-facile depreciatory stories about others with which groups often tend to shore up their own sense of rightness and superiority.”140

One may say that this ‘forced consensus’ which Taylor depreciates, has been forced upon

states by both domestic and international pressure arising out of a need to control a

situation for which there has been no known precedent.

Fashioned as a tool for fighting terror, the anti-terrorism legislation is not without traces

of the anger and bitterness that people generally feel towards the loss of lives and

property caused by terrorism. It reflects in many ways, the public frustration and anxiety

with which terrorism is viewed. For countries like Kenya and Tanzania where there is

little respect for human rights, the legislation gives the Governments a weapon to curtail

the civil liberties of citizens. This fear is even more real in an international climate

where the anxiety caused by terrorism has reduced the level of scrutiny of government

actions. The remedy to this situation is for human rights groups to increase their

advocacy and watchfulness otherwise there may be truth in Ewing’s prediction that

“That residue of liberty just gets smaller and smaller until eventually, in some areas it is extinguished altogether, with freedom becoming no more than the power to do that which an official has decided for the time being not to prohibit.”141

On the whole, the saving grace for civil liberties will be court’s willingness to recognize

that anti-terrorism legislation must not be interpreted so widely so as to dim the lights of

fundamental freedoms.

140 Charles Taylor, “consensus of an unforced consensus on human rights” in Joanne R. Bauer and Daniel a Bell, eds, The East Asian challenge to Human rights (Cambridge, UK, Cambridge UP, 1999) 124-44 ct Page 138 quoted by Ramraj, supra 137 141 K.D. Ewing ECA Gearty, Freedom under Thatcher; Civil liberties in modern Britain (Oxford; Clarendon Press, 1990) at 9.

54

55

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