The wave of clamor and protest in Senegal over the adoption of the anti-terrorism law on June 25, 2021, has inevitably put the dilemma between security and freedom back on the agenda. Defined as acts of violence targeting civilians and pursuing political or ideological goals, terrorism has experienced a meteoric rise since the assassination of Muammar Gaddafi and the subsequent dismantling of Libya in 2011. This resulted in the uncontrolled explosion of jihadist movements in the Sahel with rear bases in countries south of the Sahara.
Following the United Nations recommendation that states must “take all necessary measures to protect the fundamental rights of their populations against terrorist acts,” most African states facing or exposed to the terrorist threat have adopted exceptional legislation under the name of “anti-terrorist laws.” However, this inflation of anti-terrorism laws raises fears of a threat to public freedoms in some countries where leaders seem to have found a subtle way of putting certain public freedoms on hold in the name of state security.
Overview of Counter-Terrorism Legislation in Africa
The adoption of anti-terrorism legislation is now considered a fashionable phenomenon on the continent. The trend toward introducing anti-terrorism legislation began early in South Africa with the Terrorism Act of 1967, which was repealed by the new Anti-Terrorism Act of 2002, and has spread to Uganda and Tanzania with the adoption of anti-terrorism laws on March 20, 2002, and November 5, 2002, respectively. Côte d’Ivoire followed suit with the adoption of the anti-terrorism law of July 3, 2005, and Mali with the law of July 23, 2008. Ethiopia adopted an anti-terrorism law in 2009.
The adoption of counter-terrorism laws accelerated on the continent from 2010 with the adoption of the law of July 21, 2010, on the fight against terrorism in Mauritania. Faced with the threat of the Islamist group Boko Haram, Nigeria adopted a law on the prevention of terrorism on February 17, 2011. Exposed to the acts of this same group in its northern part, Cameroon adopted the law on the repression of acts of terrorism on December 23, 2014. Faced with the threat of the Somali Islamists Shebab, Kenya adopted the Anti-Terrorism Act on December 18, 2014.
Tunisia legislated on terrorism through the Organic Law No. 2015-26 of August 7, 2015, on the fight against terrorism and the repression of money laundering. On May 20, 2020, Chad enriched its legal arsenal with a new law on the repression of terrorist acts. This global overview gives a good idea of the profusion of anti-terrorist laws on the African continent and questions their relationship to civil liberties.
Public Liberties Tested by Anti-Terrorism Laws
While it is unquestionably necessary for the name of preserving the security of the state and its populations, the inflation of anti-terrorism laws is not without consequences for the development of public freedoms. In Cameroon, as in most states, the adoption of these laws has always been viewed with suspicion by human rights defenders who see them as a leaden blanket against public freedoms in violation of UN Security Council Resolution 2178, which emphasizes in its preamble that “States must ensure that any measures are taken to combat terrorism comply with all their obligations under international law, in particular international human rights law (…).”
The mistrust of these laws is essentially due to two fundamental elements: the catch-all definition of the concept of “terrorist acts,” which is subject to multiple interpretations, and the severity of the penalties (death penalty). This is undoubtedly why, aware of the shortcomings of the anti-terrorism law in Kenya, the High Court did not hesitate to order the suspension in 2015 of eight main sections of this law “because of the risks to human rights” that are presented.
But beyond that, it is the risk of political instrumentalisation of these laws that remains feared. In Cameroon, since the adoption of the anti-terrorism law, some of the abuses observed suggest that, in its application, this law is not far from being used as a weapon of repression against opponents and journalists and as an instrument to bring society into line. In Ethiopia, the adoption of a new anti-terrorism law on 2 January 2020 follows accusations that the government has “used and abused the anti-terrorism law to stifle dissent and increase repression against members of legal opposition parties, human rights activists, journalists, bloggers, and civil society that criticize the ruling party and its policies.” It appears that beyond the fight against terrorism, anti-terrorism laws can be used with the aim of neutralizing the expression of public freedoms.
The proliferation of anti-terrorism laws on the African continent is the translation of the security reflex of states in the face of rampant terrorism. While the inappropriateness of these laws is not seriously questionable, it is nevertheless important that judges act as true sentinels of public freedoms by neutralizing any attempts by political leaders to exploit them. The rule of law must be strengthened and cannot be relegated in the name of security.
Steve TAMETONG is the Deputy Director of Democracy and Governance Division at the Nkafu Policy Institute of the Denis & Lenora Foundation. He holds a Ph.D. in Public Law from Dschang University. He also holds a Ph.D. in Governance and Regional Integration from the Institute of Governance, Humanities and Social Sciences of the Pan-African University (African Union).