In Kenya, we have a knack for knee jerk reactions to our problems and over reliance on legislation whenever things go wrong, especially with regards to our security. We have experienced several terror attacks from Al-Shabaab in the past four years, since our entry into Somalia, which have culminated in terror attacks in Mandera, Wajir, Lamu, among many other areas. The antidote to this, we have been made to believe, is a security amendment bill that has been proposed to parliament.
On December 11, 2014, the Parliamentary Committee on National Security and Administration (PCNSA) sent the Security Laws (Amendment) Bill, 2014 to parliament. It seeks to amend to 21 laws, and may be adopted by parliament in the coming days. Our president is convinced that this bill will improve how we handle security issues in Kenya, and I feel that we must examine this proposed legislation to see if this is true.
The Bill seeks to amend laws that refer to offices that no longer exist under the new constitution/government, or offices whose role has been changed. For example, amendments to the Public Order Act where “Director of Public Prosecutions” is substituted for “Attorney General”, “Inspector-General of National Police” is substituted for “Commissioner of Police” and “county” is substituted for “province.” This mainly happens in the amendments to The Public Order Act (Cap. 56).
A proposed new section (128A) of Cap. 63 states that “A public officer who in the cause of his or her employment aids or facilitates the commission of a felony, facilitates the entry of a criminal into Kenya, or conceals the whereabouts of a criminal is guilty of a felony.” This will facilitate the trial and punishment of public officers such as police officers who take bribes and let criminals run wild.
A proposed new section (251A) in Cap. 63 also protects the bodily integrity of Kenyans, stating that “A person who intentionally insults the modesty of any other person by intruding upon that person’s privacy or strips such person, is guilty of a felony.” This seems to be in response to the recent stripping menace, and provides an additional basis on which such crimes can be prosecuted.
Section 343 – 345 propose police supervision for persons convicted twice of offences punishable with imprisonment for a similar term, for up to five years after the date of their second release. This could go either way – it may make it easier for police to curb repeat crimes, but it may also make it easier for them to harass former convicts or even frame them for more crimes. The fact that a police officer can arrest without warrant a person whom he suspects to have committed an offence under section 345 (which speaks on failure to comply with police supervision) shows how this could happen.
Electronically recorded evidence would be admissible under a proposed insertion of section 33(1) in Cap. 80. Section 63(A) also allows oral evidence via teleconference or videoconference, while section 78(A) permits electronic messages and digital material as evidence. There is great emphasis on reliability of its identification, generation, storage and maintenance. This is progressive, as it would bring our evidence laws up to 21st Century standards, however, it is not farfetched to imagine people getting prosecuted because of seemingly harmless Facebook or Twitter posts that a powerful person did not like.
Section 11 of Cap. 76 would be amended to make extradition of suspects easier, allowing courts to issue warrants of surrender without holding proceedings as long as the authenticity of the warrant and the issuing authority are proper and verifiable. This would make it harder for white collar criminals and international terrorists to hide out in Kenya.
The Prisons Commissioner, under a proposed new section 70(A) in Cap. 90, shall maintain records of all prisoners detained in Kenyan prisons. They shall consist of personal and biometric data, physical and postal addresses, reasons for detention and number of times detained, and other particulars. The Commissioner shall also ensure control and regulation, as well as the necessary safeguards and database and network infrastructure for this information. The common sense nature of this insertion worries me – we are just now providing for this? However, the requirement for an integrated biometric system to enable sharing of information with the criminal justice system is a step in the right direction.
A proposed amendment (21A) to Cap. 296 seeks to have landlords keep records of tenants – such as their name, ID number, email address and telephone number – and provide them upon demand from law enforcement officers. This is generally good for record keeping and tracking down criminals, but it could be used to create a fascist surveillance state, something I have warned against before.
The Labour Institutions Act is to be amended to include section 54C which requires that employment bureaus seek and obtain government approval before sending Kenyans to work overseas. This would serve to reduce the number of Kenyans stuck in slavery in the Middle East and other parts of the world under the guise of working as domestic servants.
Section 74 of the National Intelligence Service Act is amended by making it mandatory for every state Organ, department, agency or public entity that receives intelligence from the NIS to act on or otherwise utilize the intelligence, and to provide information requested for by the Service. This will no doubt make security operations more efficient, and we may hear less of inter-agency communication breakdowns that lead to terror attacks. However, as mentioned before, unfettered access does lead to a surveillance state.
The establishment of a National Counter Terrorism Centre in the proposed amendment (40A) of The Prevention of Terrorism Act is a good move. This centre would be mandated to carry out duties such as: establishing a database to assist law enforcement agencies, conducting public awareness on prevention of terrorism and developing strategies such as counter and de-radicalization. While this sounds good on the surface, if our last effort to stem radicalization is anything to go by, serious effort will have to go into ensuring that this effort does not lead to further oppression of already marginalized communities.
The National Police Service Act has a proposed insertion (95A) which creates a National Police Service Disciplinary Board which will “inquire into matters related to discipline, undertake disciplinary proceedings in accordance with the regulations issued by the Commission, and determine and make recommendations to the Commission, including recommendation for summary dismissal, based on its findings.” This, if well implemented, could reduce the corruption and impunity of the police service.
A proposed amendment (5A) to Cap. 56 of the Public Order Act states that “The Cabinet Secretary may by notice in the Gazette designate the areas where, and times at which public meetings, gatherings or public processions may be held.” This may be used to curtail freedom of movement and expression, especially in the cases of protests, rallies and opposition party meetings. The Cabinet Secretary may very well forbid such meetings under dubious grounds, pushing back democratic gains since the 90s.
The deletion of Cap. 56 (8) (4) which states that “Every curfew order shall, forthwith on its being made, be reported to the Minister, and the Minister may, if he thinks fit, vary or rescind the curfew order” leaves me to wonder whether the IG has unchecked power to declare curfews at will with no one else being able to revoke them.
Many sections of the Bill are vague when it comes to defining what constitutes an offence. For example, in Cap. 63 (66A) “A person who publishes or causes to be published or distributed obscene, gory or offensive material which is likely to cause fear and alarm to the general public or disturb public peace is guilty of a felony.” What is the threshold for obscenity, goriness or offensiveness? Is this not subjective? Can it not lead to a witch-hunt of people who those in power find “annoying”?
The process of obtaining and owning a firearm in Kenya has now become more straightforward with the amendments to The Firearms Act (Cap. 114). It establishes the Firearms Licensing Board, which will, among many other things, issue firearm permits, assess suitability of applicants and proficiency of firearm holders, register civilian firearm holders, dealers and manufacturers of firearms and maintain a centralized record management system. I am saddened that it has come to this, and worried that we may go in the way of the USA when it comes to the right to bear arms – what with mass shootings and class violence. I feel that it may fuel more crime, with more guns being available. Firearm theft may become rampant, especially with the maintenance of a register of all firearm holders and their personal details.
A proposed new section (42A) of Cap. 75 allows the prosecution not disclose to certain evidence on which it intends to rely “if the evidence is sensitive and it is not in the public interest to disclose” and goes on to say that something may be in public interest if it “discloses some unusual form of surveillance or method of detecting crime” or “touches on matters of national security.” Here, this bill not only attempts to justify state surveillance, but also wants to legalize and cover it up.
Still under Cap. 75, section 118A also proposes that “an application for a search warrant under section 118 shall be made ex-parte to a magistrate and the police officer carrying out the search pursuant to such warrant shall not, if acting in good faith, be liable to any legal proceedings.” Police officers may use this to intimidate Kenyans and coerce them, as their input in this process would not be present – the policeman only has to convince a judge. The threshold for good faith is also subjective, and the fact that such a warrant may not be subject to legal proceedings is worrying.
Sec 160A proposes that “an accused person who has been called upon to enter his defense, shall disclose to the prosecution the nature of his defense including witness statements and documentary evidence.” Yet, the prosecution may not reveal their evidence to the defense, perhaps under the guise of “national interest” as shown above. This already sets the accused up for a potentially unfair trial. Such a provision is unnecessary if the prosecution builds a good case, however, it seems to exist to protect the prosecution even when they do not have a good case.
While the proposed power to cancel registration and revoke an ID card obtained improperly in section 18(A) of Cap. 107 may seem good on the surface (in order to deal with Kenya’s fake citizenship problem), it may actually lead to the revocation of citizenship of genuine Kenyan citizens from marginalized regions or from marginalized communities. This would not be far-fetched considering we found it okay as a nation to detain members of one community in a stadium for weeks.
A proposed new insertion (16A) into The Refugees Act seeks to limit the number of refugees in Kenya to no more than 150,000, subject to variation by The National Assembly. Even then, such a variation would not exceed six months, and any further variation would not exceed another six months. This is cruel, considering that Kenya borders Somalia, South Sudan, Ethiopia and Uganda, whose refugees in Kenya are far more than 150,000. Will we expel them and send them back to the conditions from which they ran? Is this right?
The National Intelligence Service Act has perhaps the most proposed amendments that violate basic human rights and freedoms. NIS agents (6A) can stop and detain any person whom he “suspects of engaging in any act or thing or being in possession of anything which poses a threat to national security.” This has the potential to take us back to the oppressive days of the Special Branch where torture and unlawful detention for years was the order of the day.
The amendments to Part V – Covert Operations, are equally as worrying. Written authorization by the Director-General allows NIS agents to “obtain any information, material, record, document or thing and for that purpose – enter any place or obtain access to anything, search for or remove or return, examine, take extracts from, make copies of or record in any manner the information, material, record, documents or thing, monitor communication, install, maintain or remove anything; or do anything considered necessary to preserve national security. This shall be specific and shall be valid for a period of one hundred and eighty days unless otherwise extended.” If this sounds dangerous and like unchecked power, that’s because it is. NIS agents would basically be operating on god-mode, free to plant evidence and even steal from suspects. We know how law enforcement agents in Kenya are easily bought. Is this proposal really in public interest?
A proposed amendment (30F) to The Prevention of Terrorism Act prohibits the broadcast of any information which undermines investigations or security operations relating to terrorism without authorization from the Police. However, any person may publish or broadcast factual information of a general nature to the public. What is the threshold for what counts as general information and what undermines investigations? Isn’t this subjective? Wouldn’t such a law gag journalists and prevent them from reporting malpractices in Kenyan security, such as the alleged looting of Westgate mall by soldiers?
Another proposed amendment to the same Act (36A) allows national security organs to “intercept communication for the purposes of detecting, deterring and disrupting terrorism in accordance with procedures to be prescribed by the Cabinet Secretary.” Surely, there should at least be a court order before this can happen to ensure that such interception is actually justified, otherwise this will further lead to a fascist surveillance state.
This Bill is inspired by something we all care deeply about: security. However, its letter leaves many avenues open for misuse, and could lead to the repression of Kenyans. It disregards the right to privacy, freedom of assembly and movement, freedom of expression, right to information, right to a fair trial as well as freedom from arbitrary detention and torture, in the attempt to arrest insecurity in Kenya. The hasty manner in which it was introduced to parliament, and the fervor with which its supporters have sought to bypass standard procedure so that it may become law, is worrying. This Bill alone has the power to catapult us back to the nightmare inducing Kenya of the 80s and 90s.
It is up to us – the people of Kenya – to fight for a better legislation that will not trample on our rights and freedoms. We stand to suffer and lose much of our progress should we return to the fascism of the Moi error. We can legislate all we want, however, we will only ever make progress once we focus on implementation – it takes good leadership, hard work and proper allocation of resources to solve fundamental problems such as these. Laws such as these on their own achieve nothing much. It is tough, but it must be done. We cannot hand over our rights and freedoms – which make us human – over to the government for some semblance of security.
“Those who surrender freedom for security will not have, nor do they deserve, either one.”