AuthorMbaku, John Mukum
PositionIntroduction through IV. African Instruments Related to the Suppression and Prevention of Terrorism D. A Closer Look at Africa's Counter-Terrorism Instruments 2. Overview of the OAU Convention on the Prevention and Combating of Terrorism, with footnotes, p. 863-940 - Maseko v. Prime Minister

Part 1 of 2

INTRODUCTION 867 II. THE UN AS THE MAIN COORDINATOR OF THE INTERNATIONAL 875 FIGHT AGAINST TERRORISM III. UNIVERSAL INSTRUMENTS RELATED TO THE SUPPRESSION 898 AND PREVENTION OF INTERNATIONAL TERRORISM A. Introduction 898 B. International Convention for the Suppression of 899 Terrorist Bombings C. International Convention for the Suppression of the 907 Financing of Terrorism IV. AFRICAN INSTRUMENTS RELATED TO THE SUPPRESSION 916 AND PREVENTION OF TERRORISM A. Introduction 916 B. Terrorist Threats in Africa 922 C. Counter-Terrorism Instruments in Africa 926 D. A Closer Look at Africa's Counter-Terrorism 929 Instruments 1. Origins of the OAU Convention on the Prevention and 930 Combating of Terrorism 2. Overview of the OAU Convention on the Prevention and 934 Combating of Terrorism 3. The Provisions of the Algiers Convention 941 4. More on Extradition in International Law 946 5. The Algiers Convention and International Law 949 6. Protocol to the OA U Convention on the Prevention and 951 Combating of Terrorism V. THE JUDICIARY, SUPPRESSION OF TERRORISM LAWS 955 AND THE UNDERMINING OF HUMAN RIGHTS IN AFRICA: LESSONS FROM ESWATINI A. Introduction 955 B. Counter-Terrorism Laws and Human Rights 956 C. The Kingdom of Eswatini's Suppression of Terrorism 966 Act No. 3 of 2008 D. Maseko v. The Prime Minister: The Judgment of Judge 974 Mamba, with Judge Annandale Concurring 1. The Majority Judgment in Maseko, Written by Judge 976 Mamba, with Judge Annandale Concurring 2. How Not to Undertake a Limitation Analysis: The Dissenting Judgment in Maseko 995 VI. SUMMARY AND CONCLUSION 1014 Introduction

On August 7, 1998, almost simultaneously, bombs exploded at U.S. embassies in Dar es Salaam, Tanzania and Nairobi, Kenya. The explosions killed at least 224 people, wounded thousands more, and destroyed several buildings on the embassy compounds and the surrounding areas. (1) Andrea Mitchell, Chief Foreign Affairs Correspondent for NBC News, and Haley Talbot, NBC News Associate Producer, noted that "[w]hat no one knew then, [that is, in August 1998J... was that the bombers were ushering in a new era of terror that would culminate in the 9/11 attacks." (2) Today, Africa is considered "fertile breeding ground for the recruitment of terrorists, a potential terrorist hideout, a secured location for the acquisition of illegal arms as well as a privileged territory for obscure financial transactions linked to terrorist activities." (3)

Specifically, many parts of Africa, notably the Horn of Africa, East Africa, West Africa, and the Maghreb, are now considered breeding grounds for terrorist activity. In fact, among organizations that have been designated by the international community as terrorist organizations, several are found in Africa. These include (1) al-Qaeda in the Islamic Maghreb; (4) (2) Boko Haram; (5) (3) al-Shabaab; (6) and (4) the Lord's Resistance Army. (7) Cognizant of the important threat to international peace and security posed by these extremist groups, the UN Counter-Terrorism Committee ("CTC"), a subsidiary body of the UN Security Council ("UNSC"), and which was established in the wake of the September 11, 2001 terrorist attacks in the United States, called on African States "to ratify the international treaties against terrorist acts and to harmonize their internal law accordingly." (8)

The CTC was established through UN Security Council Resolution No. 1373 (2001). (9) In the resolution, the UNSC reaffirmed "its unequivocal condemnation of the terrorist attacks which took place in New York, Washington, D.C. and Pennsylvania on 11 September 2001, and [expressed] its determination to prevent all such acts" and noted that "such acts, like any act of international terrorism, constitute a threat to international peace and security." (10) The UNSC also stated that it was "[djeeply concerned by the increase, in various regions of the world, of acts of terrorism motivated by intolerance or extremism" and then called "on all States to work together urgently to prevent and suppress terrorist acts, including through increased cooperation and full implementation of the relevant international conventions relating to terrorism." (11)

The UNSC then instructed UN Member States to:

(a) Prevent and suppress the financing of terrorist acts;

(b) Criminalize the willful provision or collection, by any means, directly or indirectly, of funds by their nationals or their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;

(c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;

(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons. (12)

The UNSC also asked Member States to (1) refrain from assisting or supporting any "entities or persons involved in terrorist acts"; (2) take all necessary actions to "prevent the commission of terrorist acts"; (3) "[d]eny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens"; (4) prevent those individuals or groups, "who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens"; (5) ensure that anyone who participates in terrorist activities is brought to justice--Member States were also required to criminalize terrorist acts and make them serious criminal offenses in domestic laws; and (6) prevent the movement of terrorists or terrorist groups, as well as cooperate with other Member States and grant them necessary assistance in connection with the investigation and prosecution of individuals accused of committing terrorist acts. (13)

Member States were also directed by the UNSC to, with deliberate speed, become States Parties to "relevant international conventions and protocols relating to terrorism, including the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999." (14) Specifically, the UNSC instructed Member States to "harmonize their international law accordingly," criminalize all terrorist acts, as well as the financing of terrorism, and restructure their asylum and immigration policies to minimize the chances of granting residency or citizenship to asylum-seekers and immigrants who have committed terrorist acts. (15)

Many African countries, "under political and economic pressure from the international community," as well as what the IFHR calls "internal security opportunism," signed and ratified "the international and regional treaties against terrorism, notably the OAU Convention on the Prevention and Combating of Terrorism" ("Algiers Convention"). (16) In addition to signing and ratifying it, some African countries have actually incorporated specific provisions of the Algiers Convention in their domestic law in an effort to enhance their ability to fight terrorism. For example, in 2004 the Parliament of the Republic of South Africa enacted the Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33. (17)

However, laws designed to enhance the ability of African countries to fight terrorism could potentially conflict with provisions of international human rights instruments or national laws designed to protect fundamental rights. The IFHR has noted, for example, that "under the pretext of fighting terrorism, numerous states have adopted and applied provisions that derogate from international human rights instruments binding upon them." (18) Other African countries have actually used the fight against terrorism as "a pretext to act outside of any legal context and judicial control." (19) For example. Amnesty International ("AI") has determined that Cameroon is using its anti-terrorism law to abuse many basic rights. (20) AI noted that the country's new anti-terrorism law is "so broad and vague in its definition of terrorism that it's effectively opened the way for authorities to treat anyone as a suspect, with devastating consequences." (21) In fact, as noted by AI, "[m]ore than 1,000 people [in Cameroon] have been accused of supporting Boko Haram, mostly based on very little evidence." In addition, "[w]hole villages have been destroyed and hundreds of men and boys have been rounded up, loaded into military trucks, and never seen again." (22)

Throughout many countries, the fight against terrorism is considered a very sensitive issue and is often undertaken through processes that lack transparency and are carried out by government operatives (e.g., special anti-terrorism regiments) who can act with impunity. (23) Former UN Secretary-General Kofi Annan argued that all States must ensure "the compatibility of anti-terrorist laws with human rights and democratic principles for the very success of the fight against the authors of such terrorist acts." (24) In fact, in his keynote address to the closing plenary of the International Summit on Democracy, Terrorism and Security in Madrid, Spain, in March 2005, Kofi Annan noted that he had "strongly endorse[d] the recent proposal to...

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