Two legal regimes

A new body of law is burgeoning. The development of an anti-crime and anti-terror regime is supported by the Security Council and is finding expression in international treaties such as the UN Convention on the Suppression of the Financing of Terrorism (1999) and the UN Convention against Transnational Organized Crime (2001). On the regional front, Africa has produced the Dakar Declaration on the Prevention and Control of Organized Transnational Crime and Corruption in 1997 and the OAU Convention on the Prevention and Combating of Terrorism (hereafter the Algiers Convention) in 1999.

In describing Africa's engagement with this problem, we approach terrorism and transnational, organized crime as interrelated aspects of an as yet undefined, but obvious, threat to the peace, security and well-being of the globe. As this paper will illustrate, terrorism cannot be divorced from organized crime. While the extent of international terrorism in Africa has arguably been limited, it has not been absent. Furthermore, the potential for African countries to serve as a safe haven for training and incitement for global terror has received considerable recent media attention. The challenge that Africa faces in respect organized crime is much more obvious. Some analysts have come to refer to the criminalization of economies whilst others have expressed grave concern about the extent to which organized criminal activity have become indistinguishable from the governance practices of selected African states.

As this paper will demonstrate, there are considerable areas of conflict between the anti-terror/anti-organized crime regime on the one hand and a human rights regime on the other. The co-existence of two legal systems, one to counter organized crime/terrorism and one to expand the domain of international human rights law, makes it imperative to explore the tension between them in a jurisprudentially coherent manner.


In this paper, we first describe the similarities and differences between the anti-terrorism and anti-organized crime regime on the one hand and international human rights law on the other. In the first two sections we set out the main sources of legal obligation in treaty and customary international law. In order to identify the areas of conflict between the legal regimes (anti-terror/anti-organized crime and human rights) we summarise the applicable law, devoting particular attention to trial rights and property rights. We then identify some central conflicts between the anti-crime and the human rights systems. A substantial part of this paper suggests legal criteria and practical considerations to describe the proper relationship between the anti-terror/anti-organized crime legal regime on the one hand and human rights law on the other, and suggests solutions for the specific conflicts we have identified. The final section draws our findings together and suggests the general direction which Africa might best take in the interests of harmonizing these sometimes contrasting requirements.

International human rights law

The two main sources of international law are treaty and custom.1 Whereas treaties create obligations only for the signatory states, rules of custom are binding by virtue of their general acceptance either by the entire community of states or by a region. Treaties, if accepted widely enough, can pass into custom.2 In this way a body of treaties are binding on African states either as treaty or customary law, or both. The most important of these is the African Charter on Human and Peoples' Rights and Duties (Banjul Charter) that was adopted in 1981 and came into force in 1986. The Banjul Charter is reaffirmed by the Constitutive Act of the African Union (1999), which promises to promote and protect human and people's rights. The Constitutive Act provides us with a clear picture of the direction that African states intend to take in the area of human rights law. It clearly envisages a broader source of human rights norms than the Banjul Charter. At least for interpretive purposes, it incorporates the Universal Declaration on Human Rights and the Charter of the United Nations, and its reference to 'other relevant human rights instruments' integrates other human rights instruments either drawn up, or signed, by African states.

Apart from being a source of treaty law, the Banjul Charter serves as regional customary law, having been signed by 53 of the 543 African states. The Universal Declaration of Human Rights is not only incorporated by reference into the Constitutive Act of the African Union, but is also accepted as customary international law. And finally, the International Convent on Civil and Political Rights (1966) is often viewed as customary international law. Globally, it has 144 signatories to date, and in Africa itself it may be seen as a source of local or regional customary obligations4 as it has been ratified by 41 of the 545 African states.

There are three areas of human rights law that are of particular importance in the area of international strategies to combat terrorism and its corollary, organized crime, namely property, privacy and the assumption of protection of accused persons.

First, property is guaranteed as a right in the Banjul Charter and the Universal Declaration of Human Rights.6 No one may be arbitrarily deprived thereof, and incursions into this right may be justified only by the public interest. The notions of arbitrariness and proportionality often contained within the formulation of the right to property offers states some discretion in their protection of the right. Many African states have constitutional protection against expropriation without compensation,7 and these provisions will guide the application of the rights. The constitutional provisions would exclude ad hoc confiscation of property.

Closely linked to property is the right to privacy.8 This right is violated when documents and correspondence are interfered with, or where there is unlawful search and seizure. Most of the conventions afford privacy protection and it is posited as a right in many domestic constitutions.9

Thirdly, all the instruments listed above provide extensive measures for the protection of accused persons. The treaties recognise that those under suspicion are most vulnerable to oppression by the state and that safeguards must be created to promote their rights throughout the trial process.

The most basic right of the accused is to be seen as a person before the law10 and to be entitled to its equal protection.11 This is the essential component of many other trial rights, because people deprived of recognition by the law will not gain access to the compendium of rights at all. The right to protection by the law entails a right to an effective remedy,12 for which competent bodies must be set up by law. The composition of such a body is particularly important where the trial is criminal in nature. Because arbitrary detention and arrest must be avoided,13 accused persons are entitled to a public trial within a reasonable period of time14 by an independent, competent and impartial body.15 This essentially sets up a criminal justice system that respects and promotes human rights.

There are further requirements that protect each individual as his or her case is tried. All accuseds must be presumed innocent until proven otherwise,16 and a case of guilt must be made without relying on the accused incriminating him or herself.17 An additional principle is that every person is entitled to legal assistance of his or her choice.18 Failure to provide legal assistance may mean that a trial is unfair, and thus below the required human rights standard.

These rights vest in everyone and are activated when a person is charged with a crime. They are recognised (albeit to varying degrees) in all three of the conventions under consideration. The International Covenant on Civil and Political Rights and, to a lesser extent, the Universal Declaration of Human Rights, also afford exceptional rights to refugees and asylum seekers.19

The international regime to combat organized crime and terrorism

Any claim by the anti-crime and anti-terror regime to customary international law status must be treated with caution. Although treaties prohibiting specific acts popularly understood as 'terrorist' date back to the 1960's, the search for a single, global definition has only gained impetus since September 11, 2001. However, the binding force of anti-terror and anti-crime measures has been ensured by the UN Security Council. Under Chapter VII of the UN Charter, the Security Council may pass provisions binding on all members of the UN. The Council expressly used these powers in articles 1-2 of UN Security Council Resolution 1373 of 2001. The instructions contained within these articles are therefore binding on all Member States of the United Nations.

UN Security Council Resolution 1373 sets up the general model for anti-terror legislation. It prohibits states from providing any support of whatever kind to terrorist groups, and insists that states prevent terrorist acts through early warning systems,20 mutual assistance in investigation and prosecution and the establishment of justifiable criminal offences within the domestic criminal justice system.21 It adds that all these measures must conform to international human rights standards.22

In declaring terrorism a threat to international peace and security, the Council notes that there is an intimate connection between terrorism and transnational organized crime,23 especially money laundering, illicit drug trades, illegal arms-trafficking and illegal movement of potentially deadly substances. It therefore emphasizes the need for regional and international responses to this phenomenon. States are further called on to sign all "relevant international conventions and protocols relating to terrorism", including by name the Convention for the Suppression of the Financing of Terrorism (December 1999).24

The system of international treaties dealing with terrorism generally reflects the Security Council requirements. Its central aim is to strengthen state and international measures to a point where terrorism and organized crime are eradicated. This is done by a range of tactics which aim, either directly or indirectly, to prevent violent attacks. The prosecution of terrorists is a secondary measure which is triggered only once the main aim has not been achieved. This division is definitively illustrated in the Arab League Convention for the Suppression of Terrorism (April 1998), which explicitly separates preventative measures from methods of suppression of violent crime. It is again important to note that organized crime and terrorism are understood as being inherently linked, and substantially similar. The methods used to counteract crime generally are equally applicable to each. Thus, the principles and procedures laid down in the OAU Convention for the Prevention and Combating of Terrorism, the Convention for the Prevention of the Financing of Terrorism, the Arab Convention for the Suppression of Terrorism and the United Nations Convention against Transnational Organized Crime together set out a fairly uniform approach to eliminating certain forms of terrorism, as well as international and transnational crime.

First and foremost, no one may belong to either a criminal or a terrorist group.25 Liability here is extended to cover anyone, including a government, who supports such a group, either by financing, funding or supplying arms or refuge to terrorists. In rights terms, the most onerous method of discouraging the financing of international crime is the prescription of measures that allow for the freezing and seizure of assets or resources. The Convention on the Suppression of Financing of Terrorism allows such seizure for benefits related to terrorism, and envisages states drawing up specific agreements to enable sharing these benefits, or using them to provide relief to victims. Similarly, the Convention on Prevention of Transnational Organized Crime permits signatory states to appropriate proceeds into a fund, which will then be used to develop and strengthen technical procedures, especially within developing states which would otherwise be unable to maintain the standard required. The Arab League Convention, however, seems directly opposed to these measures of confiscation, and specifically sets out that any property or proceeds seized may be used in evidence provided there is a guarantee that they will be returned.26

These measures aim to create a sophisticated system, which will make maneuvering almost impossible for criminals and thereby increase state security, but this in turn depends upon wide signature and adherence to the Conventions. Unless this uniform approach applies, certain states may continue to act as safe havens27 and illicit activity will continue under their protection. The Convention places a heavy emphasis on effective border control through the careful checking of travel documents and visas.28 This allows specific crimes, for example human trafficking, to be detected, but more generally creates safeguards to prevent the abuse of refugee status and asylum seeking. Interpol is expected to play an active role in this, and an early warning system will have to be developed.29

The secondary level of rules deals with situations where violence or crime has not been prevented and states must react to identify and prosecute the perpetrators. Both terrorism and transnational organized crime are considered to be serious offences for which punishment must be harsh.30 All signatories are required to create specific crimes within their domestic criminal justice systems,31 including corruption, money laundering and the obstruction of justice. States are faced with a decision to prosecute or extradite persons accused of terrorism or organized crime, and may not choose to grant the accused reprieve from trial proceedings.32 The Convention on the Suppression of Financing of Terrorism and the Arab League Convention are particularly careful in this regard: they forbid terrorist acts being considered as either fiscal or political crimes, since this may render them non-extraditable offences.33 Extradition is further made possible by provisions that extend state jurisdiction over crimes so that more states would be entitled, on various grounds, to make extradition requests.34

Under the Arab League Convention, accused persons may be held for up to 60 days without being tried pending extradition.35 This amounts to detention without trial. Although the other conventions do not specifically authorise detention without trial, it is not explicitly excluded. The UK and South Africa propose to incorporate detention without trial in their legislation, evidently in terms of their treaty obligations. These states provide for detention, not pending extradition, but for the purposes of interrogation. Both suspected offenders and witnesses may be subjected to this form of detention.36

Whether it is prosecution within the capturing state or extradition that leads to trial of the accused, states are expected to cooperate with one another. There are various requirements for information exchange, and technological improvements must be made to facilitate these.37 This aspect is emphasised in the OAU Convention on the Prevention and Combating of Terrorism which creates procedures for mutual legal assistance. It requires states to provide the 'best possible' 38 assistance through setting up and allowing jurisdiction to a commission rogatoire.39 Similarly, the Arab Convention for the Suppression of Terrorism dedicates an entire section to judicial delegations,40 designed to perform judicial processes in one state on behalf of another.

The actions of these delegations include hearing witness testimony, effecting judicial documents, executing search and seizures and obtaining relevant documents.41 Whilst it is asserted that such delegations must act in accordance with the domestic legislation of the host state, it remains unclear how they will be constituted, and which branch of government will effect these actions.

The tension between the regime against terrorism, organized crime and human rights law

The anti-crime Conventions summarised above and UN Security Council Resolution 1373 specifically hold that none of the rules developed may impact on the maintenance of human rights standards.42 The Algiers Convention and the Arab League Convention clearly exclude self-determination struggles from the definition of terrorist acts,43 and the provisions of the Convention on the Suppression of the Financing of Terrorism do not apply to civil unrest.44 However, despite the apparent deference to human rights shown by the anti-crime legislators, there are extensive conflicts between the anti-crime/anti-terrorist and human rights regimes. In this section we demonstrate six specific examples of conflict between the two regimes. They are, first, that the anti-crime regime allows the state to deprive people of their property. Secondly, the onus borne by individuals who attempt to recover their property from the state can amount to a reverse onus of proof. Thirdly, individuals may be forced to allow access to their records to the point of self-incrimination. Fourthly, the public may be excluded from judicial and quasi-judicial hearings. Fifthly, the anti-terror regime allows for detention without trial. Finally, a problem underlying many of the areas of conflict is that the executive is empowered to act at the expense of control over it by the judiciary.

The anti-terror regime mandates the confiscation of property which may be connected to certain crimes, whereas the human rights regime affirms the right not to be deprived of one's property. Even in cases where expropriation is allowed within the state, it must be subject to equitable compensation, and for the public benefit. Property rights are intimately linked to trial rights in this context. Seizure of property as a preventative measure against crime is often posited not as a punitive but as a civil measure.45 Once the confiscation is characterised as civil, the state is entitled to make incursions into property rights, without having to follow up a confiscation with a criminal charge. This means that the onus lies with the alleged criminal to show that the property is not linked to criminal activity, a difficult requirement to meet. To the extent that this creates a reverse onus, it violates the right against self-incrimination and the right to a fair trial.46 Furthermore, property in the African context is often subject to communal ownership. Even if the property is not communally owned,497 various parties may have other legal rights vested in it. A confiscation in this context will prejudice not only the accused, but also innocent third parties. Rules of standing or interests of speed and efficiency may mean that procedures for hearing these third party claims are not in place.48

A human-rights friendly approach to property seizure is found in the Arab League Convention. This allows the confiscation of property if it is to be used in evidence, provided it is returned to the accused (even where conviction ensues).49 This manifests reliance on traditional criminal investigation methods, but in the context of the international anti-crime regime, may still be problematic. The various conventions make provisions for bank records to be scrutinised by the police, and also allow investigation of records held by the alleged offender. This means that he or she may be required to answer questions or make statements which lead to the admission of property into evidence. This, again, may constitute a violation of the right against self-incrimination. This problem has been recognised in South African jurisprudence, where the content of such a disclosure was not permitted be used as evidence against the person making the disclosure.50

The infringement of trial rights may occur in a myriad of ways, and the effects may range from minor to extensive enough to vitiate the fairness of the trial. The anti-terror regime occasionally excludes the public from hearings, based on the fact that the material under consideration goes to national security. The logic of such a measure is clear, but nevertheless is contrary to the requirements of the human rights regime. If this is combined with the provisions made for extra-territorial investigation, the effect is far-reaching. Commissions rogatoires (established under the Algiers Convention) may not necessarily be competent or impartial bodies to deal properly with the matters with which they are entrusted. The judicial delegations provided for in the Arab League Convention are even more problematic. States may undertake various judicial procedures from hearing witnesses to examining evidence, but are not specifically required to ensure that these processes are undertaken by a branch of the judiciary.

Perhaps the most serious problem is the option of detention without trial. This is, rightly, the least widely supported measure in the international instruments. As we note above, only the Arab League Convention specifically allows for 'provisional detention', although this is only pending an extradition. Detention without trial is not, however, explicitly rejected by the other conventions, which have been interpreted to allow for detention without trial by the UK and South Africa.51

Underlying many of these conflicts is what we call the 'executive-minded' approach to the prevention of crime. Although it surfaces where-ever the executive is given wide discretion and extensive, unchecked powers, it is also prevalent where laws are vaguely phrased. The lack of a definition for terrorism and of criteria to identify members of a terrorist group open a path for discriminatory action. The charging of a person under terrorist or organised crime laws will mean that the state may take a course involving various rights infringements. Where this is done to establish or consolidate power against an opposition group, it will amount to persecution of a group and will violate the very essence of human rights law.

Harmonization

Applicable legal criteria

The goals of the two regimes, those to combat terrorism and organized crime on the one hand, and human rights on the other, should ideally coincide. The Algiers Convention provides a particularly poignant motivation for the fight against terrorism: the preamble to the Convention states that terrorism affects women and children most adversely; it infringes rights to life, physical integrity, freedom and security, and impedes the realisation of socio-economic rights.

The Convention further stresses that terrorism is inherently contrary to notions of tolerance, and restricts a state's sovereignty and self-determination. While some of these motivations strike us as slightly whimsical,52 this passage illustrates the union which, in theory at least, exists between the two legal regimes. The message behind the Algiers Convention is that the human rights dream of a free, secure and prosperous society can only be achieved if the major forms of crime (in this case terrorism and organized crime) are eradicated.

The tension between human rights requirements and anti-terror/organized crime regimes is a function of the methods by which these two systems attempt to achieve their goals. At first glance they are irreconcilable: the former attempts, first and foremost, to ensure freedom by protecting the individual against the state, and the latter seeks to destroy crime/terrorism through a procedure that gives the state power over the individual. Nominally the regimes are mutually exclusive—one can only ever operate by suppressing the other. Exactly where the line is to be drawn between the two regimes might seem to be a matter of policy rather than law.

Our argument goes to the guidance which law itself can provide to drawing this line. Applied with sensitivity, each body of law can support the other. As we have indicated above, most of the anti-terror/anti-organized crime conventions insist that they leave established human rights law untouched—although they do not say how. On the other hand, the international human rights regime itself contains principles to demarcate the limits of its own norms.

Some of the rights contained in the applicable rights instruments are internally limited—that is, the relevant article itself sets out situations in which the right may be restricted (such as the right to property in the Banjul Charter). However, even where the right itself is phrased in absolute terms, it is subject to the general limitation clauses contained within the Universal Declaration on Human Rights (in article 29) and the International Covenant of Civil and Political Rights (in article 19(3)), and therefore within customary law.53 The criteria for permissible derogation, as synthesised from the Universal Declaration and the International Covenant, are that the right must (a) be provided by law, (b) serve a legitimate purpose, and (c) be necessary in a democratic society.

From our description of the common goal of the two bodies of law, it would seem that the purpose that the anti-terror/anti organized crime regime serves is legitimate and that criterion (b) above is therefore satisfied. We will need to examine, however, whether the proposed measures can in fact serve the goal of a free, secure and prosperous society. We need, in particular, to check what the practical effect of the anti-terror provisions will be in the African context.

To fulfil the criterion 'provided by law' (criterion (a) above), it is not enough that the infringement is provided for in a treaty (a source of 'law'). The infringement also needs to be formulated in such a way that it satisfies the substantive requirements of a 'law'.

Two main issues emerge here. The first is that some of the terms in the relevant treaties and UN Security Council Resolution 1373 may be too broad to serve as reliable guidelines for acceptable behaviour and are therefore too vague to count as 'law'. This is a requirement emphasised in the case law of various legal systems: '[A] norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able—if need be with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.' 54

We submit that there is a second problem connected to the 'law' criterion. From our sketch of the anti-terror regime above, it is clear that this body of rules is an almost complete legal system in itself. If this legal system is incorporated in its entirety, without sensitivity to the legal system on which it is superimposed, what will the effect be on the legal system that it supplants? This question relates to the interrelationship between the international and indigenous legal systems, as well as to the effectiveness of the imported legal regime.

The third criterion for a permissible restriction on a right (criterion (c) above) is that the restriction be 'necessary in a democratic society'. This criterion asks whether there are less restrictive means available to achieve the same goal. We must obviously enquire whether there are other mechanisms by which the gains won by the anti-crime regime might be attained with less cost to human rights. At the same time, the issue of general effectiveness emerges again, because, if the anti-terror/organized crime regime is not effective, it can hardly be 'necessary'. If it cannot achieve its goal, it is, indeed, irrelevant, not only unnecessary, to the goal.

Factual analysis

Thus far, Africa has, on the whole, been spared terror attacks in the September 11, 2001 sense. Indeed, the only two recent terror attacks that fit the usual Western conception of 'terrorism' have been directed at American embassies (the bombings in Nairobi and Dar-es-Salaam). Africa's insistence on fighting this form of terrorism therefore arises more from her role in the global community than from any urgent need to face a local problem. On the other hand, most African states have been suffering prolonged sectarian violence throughout the 20th century. These civil wars have often been fought with little if any regard for humanitarian law and included war crimes such as indiscriminate attacks on civilians, conscription of child soldiers and outrages on civilians and prisoners of war. The difference between 'Western' terrorism and the terror of unrestrained military activity is that the African form is still an ancillary tactic of guerrilla or even, occasionally, of conventional warfare, aimed primarily at gaining benefits such as control of territory, governmental resources or lines of supply for weapons or food. However, to the extent that war in Africa is conducted by intentionally spreading terror amongst the population and destabilising both civilian communities and civilian government, there is an overlap with the form of terrorism that the West is trying to suppress. Africa has certainly felt, and is still affected by the trauma of terror and disregard for human life.

The same methodology, however, cannot serve to fight both forms of terror. The anti-terror system mandated by UN Security Council Resolution 1373 and elaborated by the associated conventions we have described can only be used where the state has a legitimate monopoly on the use of force. Where a government has no democratic pedigree, particularly if it is oppressive or facing strong resistance, its claim to mechanisms to counter this threat may exacerbate the internal strife by arbitrarily increasing the clout which one illegitimate faction enjoys over another.

This particular danger is well illustrated by the role which organized crime plays in a number of African states. Power struggles, particularly violent power struggles, often result in a symbiotic relationship between political and criminal groups. Organized crime provides the means to access the resources through which military campaigns are fought: weapons can be bought (often against drugs, diamonds or other illegal forms of trade) and transported through covert channels. Organized criminal networks become particularly useful during a military campaign when there is an arms embargo in place (as is the case with UNITA in Angola). However, both established governments (such as that of Liberia) and rebel movements (such as the Revolutionary United Front) form links with organized crime in the management of their conflicts.55

Another result of factional power struggles is the 'shadow' state phenomenon found in Africa. The term is used when the 'visible' leaders and government officials rely on informal, personal linkages, often with criminal connections, to maintain control of the state machinery. It is a recipe for institutionalised corruption when the real power in a state does not vest in the official government, because members of the government can maintain their precarious grip on power only by serving the demands of their true power base. In the worst cases, the state itself has been described merely as a private resource56 and political life as the management of factional intrigues for personal gain.57 Organized crime does not, however, require corruption on so grand a scale. The experience of the Special Investigating Unit in South Africa has been that, for each organized crime operation it has uncovered, there has been a government official on the organisation's payroll.58 The official is in many cases extremely low ranking, but the link between corruption (and therefore government) and organized crime is central to a proper analysis of the problem.

In contrast to the relative paucity of 'classical' terrorism in Africa, organized crime is an enormous problem on the continent. There are 32 organized crime groups in South Africa alone.59 Surveys reveal that, in nine of the fourteen Member States of the Southern African Development Community that were included in the research, the crimes of dealing in counterfeit banknotes, arms smuggling, vehicle theft and hijacking are well established. Other forms of organized crime widespread in eight of these nine countries included drug trafficking, forgery and smuggling of ivory and rhino horn.60 There is evidence that sub-Saharan Africa has become pivotal in international drug smuggling, functioning as a staging post for heroin to North America and cocaine to Western Europe. Drug trade routes have been identified through Nigeria, Togo, Côte d'Ivoire, Cape Verde, Sierra Leone, Liberia, Mauritania, Zimbabwe, South Africa, Ghana, Senegal, Ethiopia and Kenya.61 Fraud and money laundering occur on a massive scale.62 The illegal export of diamonds, gold, precious minerals, agricultural products and game meat is increasing.63 The prevalence of these forms of crime is shocking in itself, but is also frightening as an indication of the growing criminal infrastructure. Once the mechanisms for organized crime are in place, the business of crime can diversify. In Western Europe, for example, networks previously specialising in drug smuggling have reportedly begun to use their expertise to smuggle illegal migrant workers.64 Part of the evident resurgence in human trafficking in Africa may relate to the war crime of forcing young people in particular to serve in a military campaign, witnessed in such countries as Angola, Mozambique, Uganda and Sudan. Some military factions have moved from recruiting soldiers by force, to slavery for the purposes of economic production. The unspeakable logic leads inevitably to the sale and export of captured slaves, already reported in Sudan.65

Earlier in this paper we described the legal system by which international law attempts to prevent and suppress transnational, organized crime. The emphasis is on prevention, via quick detection of possible criminal operations, co-operation across borders to aid and speed up investigation, and the blocking of resources that will be used for criminal purposes. Some African states do not have sufficient legislation to provide for such a system, particularly the mutual assistance required between nations. In these cases, the international model may provide a useful blueprint for the municipal system, but only if the municipal system can move from paper to practical implementation. This is an important caveat. A structure similar to the international anti-crime regime is often already present on paper within the various African systems of criminal law and procedure, but it is not effectively enforced.66 We have already noted that corruption may play a role in this regard, but the problem is also largely one of capacity. The legal framework may not be applied in practice due to various practical obstacles: the legal mechanisms may be too expensive, too cumbersome, too time-consuming or simply too-little known. Staff who handle mutual assistance matters, such as extradition, often have no formal training in this area and carry out the tasks as an addendum to other work.67 A survey conducted by the Institute for Security Studies in the SADC region demonstrates that the type of improvements for which these states request funding in their fight against transnational crime generally focuses on the nuts and bolts of investigative technique rather than the often sophisticated procedures of the international regime to combat organized crime. A common request for international aid from the SADC countries has been aimed at training detectives, strengthening border control and developing the technical ability to draft the necessary legislation.68

Even in countries with a relatively strong criminal legal system and with more effective crime-fighting resources, the wholesale importation of a legal regime with little sensitivity to the law already in force has been strongly criticised.69 Importing an entire legal system at the expense of the existing law may prove particularly costly in the context of a state with a weak crime-fighting system, as it may further undermine the already fragile legitimacy enjoyed by the local authorities. The new set of mechanisms, imposed from above, may increase reservations about the crime-prevention system without providing either a legitimate or a working alternative.

The lack of legitimacy of the existing authorities is an impediment to the entire anti-crime system, as it impacts upon the key mechanisms by which this system aims to work. As we have illustrated, the emphasis of the anti-crime and anti-terrorist regime is prevention rather than prosecution of past crimes. Prevention requires speed and effectiveness. In the case of the fight against terrorism, the authorities may have to act immediately to prevent catastrophic events and massive loss of life. Where organized crime is concerned, the actual crime in question may not—necessarily—be of life-threatening importance. But, given the speed at which money can be transferred and information conveyed from one country to another, the most effective way to prevent crime in the long-term is by immediately freezing assets related to crime the moment they are identified. The way that the anti-crime regime often achieves the necessary speed, however, is by widening the discretion and increasing the powers of the authorities that have to act.

The resulting executive mindset is controversial even in the Western context, but potentially fatal in a state where the government has dubious democratic credentials and therefore suffers low legitimacy. An approach which concentrates power in the hands of government officials, allowing them to decide which crimes to prosecute and when and what to confiscate, both increases the potential for corruption (and thereby supports, rather than suppresses, organized crime and international terrorism) and also weakens public support and participation if the government is perceived as partisan.

If the main impediment to an effective anti-crime system is the lack of legitimacy of the state, then measures that improve the legitimacy of the state are indispensable to the success of the regime as a whole. As a corollary, any provision which detracts from the legitimacy of the public authority or encourages the abuse of power, is detrimental. In the arena of organized crime and terrorism, the best response to poor performance by the state might not be the imposition of 'new' laws but the strengthening of laws already in place. This entails improving the functioning, rather than the power, of the executive arm of the state.

Proposals for the delineation of specific rights

We submit that, in general, the anti-crime regime should be narrowly interpreted where-ever it allows for unchecked executive action. In the property arena, such executive action would be the confiscation of property which may be connected to a crime. To determine legally whether this deprivation of property is permissible, we have to examine generally whether it is in the public interest and, in individual cases, whether it is arbitrary. This enquiry will entail a consideration of the proportionality between the deprivation of the property and the goal pursued by the deprivation.

While the general goal of crime-fighting is legitimate, we need to examine how the confiscation assists this goal. The public benefit aspect is open to interpretation, but we suggest that it would require either that benefits devolve on the confiscating state or, if the funds are to accrue to a supranational fund, that control over that fund is transparent and that the criteria determining distribution from that fund are clear. The advantage of speed can be maintained by allowing for provisional confiscation, which must be confirmed by a court.

A court is the most appropriate body to decide whether confiscation is 'arbitrary'. Once the matter is before a court, we would argue that the reverse onus of proof cannot be sustained. Despite legislative attempts to categorise seizure of property as 'civil', a significant body of law and legal writing has concluded that confiscation can have far reaching effects and is ultimately penal in nature.70 On this basis, it is more appropriately categorised as a criminal measure and should only be permitted after the owner of the property has been convicted. Whereas some courts have occasionally allowed a reverse onus of proof to pass constitutional muster in order to facilitate the practical difficulties experienced by the state in proving its case, this is a dangerous general principle. If the problem stems from the capacity of the state to conduct effective investigations, it would be a better long-term remedy to improve this capacity—and thereby the legitimacy of the relevant authority—than to factor its incapacity into the limitations of a right.

The last property-related limitation we need to consider is the right of an accused not to incriminate him- or herself. While this is technically a trial right, it is infringed in the crime-fighting/anti-terrorism context by forcing individuals to allow government officials access to their property in the form of bank records, etc. In this case the balance between the two legal regimes may be met if the information so gathered cannot be used against the owner of the property in a criminal trial. This safeguard, known as a 'use indemnity', is only sufficient in cases where the self-incrimination arises from access to property. Where, by contrast, witnesses or suspects are actually forced to speak, we submit that the infringement of dignity is too great for a use indemnity to cure the human rights violation.

There does not appear to be any justification whatsoever for detention without trial for the purposes of interrogation. The potential for abuse is simply too terrifying, particularly in weak, undemocratic states. In the context of an unchecked or weakly controlled executive, detention without trial for the purposes of interrogation is a doorway to torture, which is a non-derogable right.71 Detention pending extradition may be a necessary measure, and far less intrusive of the detainee's rights. A legal system which allows for such detention but includes regular visits, controls and access to judicial officers would probably satisfy the minimum requirements of both legal regimes.72

Excluding the public from hearings, particularly where the hearing is not conducted by a judicial organ, further promotes an executive-minded approach. There is a lack of both transparency in, and control over, the state organs exercising power. Where national security is genuinely threatened by the information (and one must, as a starting point, accept the executive's word for this) the worst aspects of executive-mindedness could possibly be cured by a system of appeals, allowing several judicial officers to consider at least the evidence itself and possibly also whether publication thereof threatens national security.

Furthermore, there does not appear to be any justifiable reason to erode the general control that the judiciary exercises over the executive. The main purpose behind unchecked executive action is to allow for speedy responses to emergencies. However, as we have argued above, speedy, irreversible action, is particularly necessary in the case of terrorism. Organized crime does not require irreversible action by the executive. Measures can therefore be taken when necessary by the executive but confirmed later by a court. As Africa does not have a pressing problem with 'classical' terrorism, but suffers instead from fragmented and weak state structures, the judiciary should rather maintain control.

Earlier, we identified vaguely-worded laws as an element of executive-mindedness. We have already argued that vague laws are inherently inimical to a human rights system, particularly if used as a lever to enhance executive control over the state. However, they are also self-defeating in practice. If laws have vague definitions combined with informal regulatory procedures that result in broad infringements of rights, judicial practice will generally restrict interpretation of such laws to make them as narrowly applicable as possible (although this will depend on the particular court's willingness to subjugate human rights to the effective prevention and control of crime). In the context of an anti-crime/anti-terrorist regime, this may mean that the rules are rendered meaningless as courts attempt to maintain control over executive power.

Conclusion

The growth of the 'new' anti-terror law suggests that the nature of the Security Council seems to be changing. This body was initially understood as an 'executive' body, empowered to respond to immediate threats to world peace in a short-term manner. However, it has recently begun to use its chapter VII powers in more long-term forms. In the 1990's it set up judicial structures (the International Criminal Courts set up by Security Council Resolutions 827 of 1993 and 955 of 1994) and this millennium it seems to be spearheading the creation of a legal regime. Security Council Resolution 1373 of 2001 provides states with a strong incentive to sign both the UN Convention on the Suppression of the Financing of Terrorism as well as the UN Convention against Transnational Organized Crime. It also imposes an obligation on states to prevent transnational crime to the extent that such crimes assist international terrorism.

An interesting parallel to the executive impetus behind the development of an international anti-crime regime is the ever stronger role that this regime seems to expect the executive to play within each state and region. Whatever the merits and dangers of such a trend elsewhere, the constitutional infrastructure is not necessarily prepared for such a strong executive role in Africa.

In the long term, an effective response to crime in Africa will, by its very nature, promote human rights. This can only happen, however, if the region is prepared to be patient and create the legal and practical infrastructure at least in parallel to its fight against crime. What should be avoided is a situation in which the human rights regime is considered suspended until international terrorism has been 'dealt with'. There is no indication that the current vigilance against international terrorism, and more particularly, organized transnational crime, will ever become unnecessary. Both the body of human rights law as well as the developing regime against terrorism and organized crime are therefore intended to last in the long term and to create a peaceful, just society, both internationally and domestically. If either legal regime supplants the other, the long-term goal of peace, prosperity and justice will be threatened.