BRIEFING PAPER: ANTI-TERRORISM LEGISLATION IN NAMIBIA “organising” in connection with the already loose definition of “terrorist activity” creates opportunities for abuse of the law to target not just the main protagonists in protests, opposition and criticism but also others who might be seen to be aiding or encouraging them. The effect of this legal laxity could have far-reaching implications for the media, civil society and the citizenry in general. The problem in any law with lax and vague definitions of what constitutes criminality is that all the other actions and responses outlined in the law could be applied in a manner that undermines fundamental human rights. For example any person or organisation linked to “terrorist activity” as defined in the Act could be “proscribed” or effectively banned.7 Conceivably this could mean a media house, labour union, or civil society organisation. In addition people or organisations who simply “associate” with a proscribed person or body could also be proscribed. ‘ Other concerns Perhaps most tenuously Section 44 ends by stating that any person or organisation “in any way involved in any terrorist activity or proliferation activity” can be proscribed. The Minister can also act on a request from a foreign state to proscribe persons or organisations. ’ Part 4 of the Act dealing with Investigating Powers and Other Anti-terrorism and Proliferation Measures details a wide range of potentially necessary but also sometimes problematic interventions by the State. In some cases what might be considered normal rights and permissions are suspended. In section 38(1) the police are given the right to enter and search a vehicle or premises without a warrant if there are reasonable grounds for suspecting terrorist activity. However, there are also attempts in Part 4 to ensure the constitutional rights of those affected by the police’s actions are protected. If the right to privacy and/or liberty is affected through searches and arrests then such interference or deprivation may only be authorised on the grounds of the prevention of crime and the protection of the rights of others as contemplated in Article 13(1) of the Namibian Constitution. Similarly, interception and monitoring of communications can only be authorised taking cognisance of Article 13(1) which states: No persons shall be subject to interference with the privacy of their homes, correspondence or communications save as in accordance with law and as is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others. In terms of section 40 of the Act, the Inspector-General of the Police may, for the purpose of obtaining evidence of an offence, apply to a judge ex parte (without other affected parties being present) for a warrant for the interception of communications. The judge can order a communications service provider to intercept and retain a specified communication or communications of a specified description. A judge can also authorise a member of the police or the Namibia Central Intelligence Agency to enter any premises and to install or remove on such premises any device for the interception and retention of communication if there are reasonable grounds to suspect terrorist activity. A judge’s authorisation can also cover the interception of all postal articles to or from any person, body or organisation affected by the warrant. Information from such interceptions is admissible as evidence. The authorisation for 7 Proscribed means outlawed or forbidden. The Act states in Section 1 that organisations and individuals are proscribed by the Minister of Safety and Security in collaboration with the Security Commission. PAGE 8