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The passing of the Anti-Terrorism (Amendment) Act, 2015

Posted On: 19 Oct 2015

The passing of the Anti-Terrorism (Amendment) Act, 2015

Introduction

The Anti-Terrorism Amendment Act was passed by Parliament on 19 June 2015. This article discusses the Anti-Terrorism Amendment Act in light of its: importance; the procedure followed in passing it; andits implications including human rights considerations. It also makes recommendations for improvements in the legislative process.

Importance of the Act

The Amendment Act was important for various reasons. The Amendment Act had the objective of amending the Anti-terrorism Act 2002 to: redefine acts of terrorism including terrorism financing; giving the Minister of Internal Affairs powers to implement the Act; and to provide for the expeditious freezing, seizure and forfeiture of assets and property suspected to be linked to terrorism activities. The inclusion of terrorism financing as part of the definition of terrorism was necessary to align the Anti-Terrorism Act with the 1999 International Convention on the Suppression of Financing of Terrorism which Uganda signed on 13 November 2001 and ratified on 5 November 2003.It is interesting to note that although Uganda had signed the Convention in 2001, it appears not to have been considered when the Act had been passed in 2002.

The Amendment Act was also crucial because Uganda which is a member of the Eastern and Southern African Anti-Money Laundering Group (ESAAMLG),a regional body that combats money laundering, was due for an evaluation in August 2015. Previously, in September 2013, the Council of Ministers of the ESAAMLG had raised concerns about the need for Uganda to amend the anti-terrorism law to adequately criminalise the offences of financing of terrorism in line with the Financial Action Task Force (FATF) Standards, among other things. Therefore the Act was also meant for Uganda to conform to the FATF Standards and to meet its obligations under the ESAAMLG Memorandum of Understanding.

Procedure of passing the Act

Before the Act was passed it was reviewed by the Committee on Defence and Internal Affairs. The Committee considered the Bill in light of the Anti-Terrorism Act, the 1995 Constitution of the Republic of Uganda, among other documents. The Committee also consulted some stakeholders such as: the Financial Intelligence Authority; Bank of Uganda; Ministry of Finance, Planning and Economic Development; Ministry of Internal Affairs and the Internal Security Organisation. Furthermore, the Committee held public hearing meetings and went on a benchmarking trip to Ghana before making their report. It was conspicuous that the Uganda Human Rights Commission and some other Human Rights Organisations were not consulted. Moreover, it was also not clear whether the Human Rights Standing Committee of Parliament played any role in providing guidance on the Acts compliance with human rights standards as outlined in their Checklist.

Notably, there were two reports including a minority report that was presented on the floor of parliament. The minority report expressed the views of members who were concerned about the broad definition of terrorism including the extensive destruction of property and in relation to acts prejudicial to national security and public safety which they argued was ambiguous. Opposition Members of Parliament were worried and expressed concern that the Act could have been targeted at their activities and regarded the process with a lot of suspicion and mistrust.

There were initial complaints about the passing of the Act on grounds that there was no quorum. However, this seems to have been dealt with after a short recess. The Act was eventually passed with a few amendments with more Members of Parliament than the required minimum number, some of whom turned up after a short recess.

Implications of the Act

The Amendment Act basically: criminalizes the financing of terrorism; expands the definition of terrorism and provides new penalties for offences by authorizing courts to order forfeiture of property or funds used in the commission of a terrorism-related offense whenever they convict a person for the offense.  Notably, terrorism financing had already been somewhat criminalised in the Terrorism Act in Sections 8, 12 and 16. The Amendment in Section 17Agives the Inspector General of Police (IGP) broad powers to freeze or seize assets they deem are linked to terrorism. The IGP can order any financial institution to freeze any account it holds if they have "reason to believe" that the account contains funds "reasonably linked or intended for terrorism activities." If the funds or property in question are not held in a financial institution, the IGP is authorized to seize them.  However, once the IGP issues a directive ordering a financial institution to freeze suspected funds or seizes funds or property, they must refer the matter to the Director of Public Prosecutions (DPP), who is required to seek court approval of the directive or seizure within 48 hours of issuance of the directive or of the seizure. On the application of the DPP, the court may, if satisfied that the funds or property do not have ties to terrorist activities, revoke the IGP directive or the seizure of funds or property at any time.

Analysis of Act from a human rights perspective

In terms of procedure, laws should be passed after proper consultation processes and the process should be open to assessing the impact of existing legislation which requires close cooperation and frank engagement with the main stakeholders including with civil society and national human rights institutions. The process indicated inadequate consultations.

Under international human rights law, the law passed must comply with the principles of legality, necessity, proportionality and non-discrimination. It is important to underscore the fact that the amendment act was legal, necessary and the punishments prescribed are proportionate to the crimes. However, it may not pass the principle of non-discrimination.

Apart from the perception by the opposition members that the law was targeting them which would be discriminatory, there were also issues with the wide powers given to the IGP to order the freezing of suspected terrorist activity accounts. There is a danger in giving broad discretionary powers to the IGP without first recourse to independent courts of law. The powers can be used arbitrarily and indiscriminately with the potential for discrimination.

Conclusion and Recommendations

There is no doubt that the Anti-Terrorism Amendment Act was necessary and serves a purpose. However its passing highlights some pertinent issues that need to be addressed.

With regard to the process, there were insufficient consultationswith key human rights stakeholders. This could have been brought about because the legislature was operating under pressure brought on by the looming ESAAMLG evaluation. The process also showed the inadequate coordination between the signing and the passing of the Anti-Terrorism Act 2002. Furthermore, the law was regarded with mistrust and suspicion by the opposition members who feared that they were the targets, in which case if that were true, would be discriminatory. In terms of implementation of the Act the law gave wide powers to the IGP and did not provide for first recourse to independent courts of law.

In light of the above, there is need to increase and improve stakeholder participation in the passing of laws including close cooperation and frank engagement with the main stakeholders, in particular the Human Rights Standing Committee of Parliament, Civil Society Organisations and the Uganda Human Rights Commission Furthermore, there is need to effectively and efficiently coordinate the signing and ratification of international and regional treaties and conventions to the legislative process so that the Acts from the very beginning are aligned to the various international and regional standards. If the standards are considered before passing Acts, it could reduce the pressure on the government to pass amendment acts just before evaluations from regional and international bodies. Moreover, the process of legislation should allow time for meaningful consultations with key stakeholders before important legislation is passed. A coordinated and proper consultative process would minimise suspicion such as that which clouded the passing of the Anti-Terrorism Amendment Act where opposition members were concerned that the Act could have been targeting them. In the application of the Act, it would be important that caution is exercised by the IGP so that the wide discretionary powers given under the Act are not used indiscriminately, arbitrarily and in a discriminatory manner. It may be necessary to amend the Act to ensure that the point of first recourse for freezing or seizing funds or property is an independent court of law. This would also require that the courts be well equipped to handle emergencies and all cases brought before them in a fair and expeditious manner.

 Article by Roselyn Karugonjo-Segawa

In her capacity as consultant for HRCU

 
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