By Melusi Simelane
In May, the AU held an extraordinary session on Terrorism and Unconstitutional Changes of Governments in Africa in Malabo, Equatorial Guinea, resulting in a declaration titled “robust response, deepening democracy and collective security”.
The declaration condemns and expresses zero tolerance for all forms of “unconstitutional changes of government”. However, the declaration’s preamble also commits states to promote constitutionalism, separation of powers, judicial independence, political pluralism and meaningful public participation.
This point is critical since anti-terrorism interventions can easily be used as a pretext to curb civic space. The paradox of fighting terrorism through increased regulation of civic space while protecting constitutional rights has not gone unnoticed.
Of particular concern is the extent to which a wave of counter-terrorism, data protection and cybersecurity responses have emboldened states to exercise total control over the exercise of assembly, expression and association, especially to control ideas placed in the public domain and limit criticism of the state and its leaders.
Five years ago, the African Commission on Human and Peoples’ Rights concluded in Resolution 368 that states are still enacting and implementing certain aspects of counter-terrorism legislation that violate fundamental human rights and result in a shrinking of civic space.
The Resolution specifically called on states to implement its 2015 Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa. The principles call on states to refrain from using “combating terrorism as a pretext to restrict fundamental freedoms, including freedom of religion and conscience, expression, association, assembly, and movement, and the right to privacy and property”.
Sadly, Resolution 368 acknowledged that few states knew or acted to implement the principles, which means that many discussions on countering terrorism continue to take place without consideration of the rights impact of such actions and the need for a proportionate and measured response.
Over the past decade, states in Africa have passed new terrorism laws. These laws are often overbroad in the definition of terrorism or the powers provided to declare persons or groups terrorists. In some countries, judicial review of these declarations is also not possible.
These laws have also often been passed quickly, with little space for public participation. What is more concerning is that these laws are passed in a context where there is increasingly less space for individuals to take their concerns to regional bodies such as the African Court, and the complete removal of jurisdiction for rights issues raised by citizens from the ambit of the SADC Tribunal.
The International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation (FATF Recommendations) make specific recommendations to governments relating to non-profit organisations (NPO).
While the FATF recommendations are not binding, their endorsement by international bodies such as the International Monetary Fund or the World Bank and implementation as international standards create quasi-legal obligations to implement the recommendations.
These recommendations have resulted in various law reform processes throughout the region over the past decade to strengthen NPO regulation and oversight.
On the one hand, the FATF Recommendations emphasise a proportionate response and repeatedly refer to the need for flexibility, “focused measures”, and to ensure that the measures do not disrupt or discourage legitimate charitable measures.
On the other hand, the FATF Recommendations require regulation and risk-based supervision and monitoring of NPOs. Whilst the above recommendations are worded as possible “options”, they are stated as requirements in the FATF Handbook for Countries and Assessors on AML/CFT Evaluations and Assessments.
As a result, several African countries face over-regulation that governments justify based on addressing international policies designed to prevent money laundering and financing terrorist threats.
There has been international criticism about how the pressure to implement the FATF Recommendations have resulted in increased repression of NPOs in the name of transparency.
Concerns have also been raised that the FATF as a global standard-setting body is not bound by a treaty, unaccountable and ought to provide space for civil society to give input into evaluations of states’ compliance with FATF Recommendations.
In particular, there are concerns around restrictions on access to funding and registration, criminalisation of unregistered associations, broad and discretionary grounds for revocation of registration, and suspension and deregistration on the grounds of non-compliance with legislation.
That said, the over-regulation is not always at a state’s instance – states are rushed to implement NGO laws to avoid grey or black listing, and the result is often a copy and paste from already badly drafted laws in other countries.
Following concerns raised in FAFT assessments, states have responded with surprising speed to pass laws to increase NGO regulation, often in countries where the threat of financing terrorism through NPO operations is remarkably low or non-existent. Angola In 2015, following a FAFT assessment, Angola enacted the NGO Presidential Decree in March 2015.
The decree, among other things, empowered the Public Prosecutor’s Office to suspend the activities of national and international NGOs on suspicions of money laundering or illegal or harmful acts against “Angola’s sovereignty and integrity”.
While the state met FATF requirements through this decree, the NPO sector in Angola, out of fear that the Non-Governmental Organisation Presidential Decree would be interpreted over-broadly in practice resulting in a crackdown on civil society, challenged its constitutionality in court.
In 2017, the Angolan Constitutional Tribunal declared this legislation unconstitutional.
Similarly, various legal amendments in Tanzania in 2019 made it increasingly difficult for civil society to operate freely by restricting the way NPOs can be registered and promptly deregistering NPOs that failed to meet the new registration requirements.
Within two weeks from the law being passed, the Business Registrations and Licensing Agency (BRELA) issued a public notice of its intention to deregister companies by 30 August, 2019.
BRELA subsequently notified that all companies whose objectives did not fall within the new definition of companies were struck off the Register of Companies from 1 September, 2019 and are legally inoperative.
The Non-Governmental Organisations Act (Rights and Duties of Assistant Registrars) Regulations further requires NPOs to obtain approval from the state where a funding contract exceeds Tsh 20 million. Regulation 4(e) empowers the Registrar “to ensure that an NGO’s objectives, programmes, projects and duties are in line with the Act, other laws of the land, national plans and priorities, and respond to the challenges of the area of implementation”.
This section suggests a much broader focus of the registrar to ensure that NGOs’ programmes comply with state objectives.
In 2020, despite civil society opposition, Zambia enacted the Non-Governmental Organisation (Amendment) Bill to include measures for monitoring the risk of using NGOs for severe violations.
In November last year, the Zimbabwe parliament published the Private Voluntary Organisations Amendment Bill to comply with the FATF Recommendations.
The bill seeks to impose severe penalties, including imprisonment, for non-compliance with the registrar’s prescriptions. It further allows for the suspension of the executive committee of a PVO in certain instances by the minister.
Additionally, the minister is granted the power to appoint trustees to run the organisation for up to 60 days pending the new executive committee’s election or temporarily appoint one or more provisional trustees with all the same powers as the executive committee.
Harsh measures such as a strict registration regime or a liability regime for members of an NPO hurts the civil society in each state. As many societies in southern Africa face challenges and issues that affect so many lives, it is often only the members of the civil society that stand up for the protection and enforcement of fundamental human rights.
Between these two worlds, the Eswatini government has carved its political strategy – condemning those seeking judicial independence, pluralism and participation as terrorists and engaging in unbecoming of Swazis.
Although necessary, the regional response to terrorism has proved a helpful cover for authoritarian states to target those critical of the state under the guise of dealing with terrorism.
This is undoubtedly the case in Eswatini and has been since political formations such as the People’s United Democratic Movement (Pudemo) were first declared terrorist entities in 2008.
Under the Suppression of Terrorism Act, an “entity” refers to a person, group, trust, fund or organisation. Section 28 of the Suppression of Terrorism Act addresses the powers of the Attorney General and the minister to declare an organisation a “specified entity”.
Of concern is the low threshold on which the Attorney General and minister can base their initial decision on when to designate an organisation as a terrorist, i.e. “reasonable grounds to believe”.
Given the severe consequences of such a declaration and the fact that once designated, the entity members can be liable for criminal charges; this threshold is too low. Section 28 was declared unconstitutional by the High Court in 2016.
The section was since amended to allow a judge to order the minister to revoke an order designating an organisation a “specified entity”. Section 28, however, still retains other problematic clauses, including allowing the High Court hearing the review to accept any evidence that would otherwise be inadmissible.
The state has now gone further to declare a journalist a terrorist entity. Instead of promoting freedom of opinion and expression, the Prime Minister of Eswatini recently warned that the country would “not hesitate to respond with the necessary force to protect our national security”.
Such statements directly contrast with the African Charter, the Constitution of Eswatini, and the spirit of ubuntu. Such State behaviour violates the right to freedom of expression and other linked human rights and democratic and political freedoms.
* Simelane is the Civic Rights Cluster Programme Manager at Southern Africa CHAD WILLIAMS Litigation Centre (SALC)