Kenya being the geo-political
hub of East Africa has experienced its fair share of benefits and suffering.
The benefits range from ease of trade and many more however the main suffering
for the above thematic concern is terrorism.
Kenya was caught up in the cold
war and chose to align with the west as a result the west’s enemies view Kenya
as a potential enemy by virtue of being an ally to the west. This is the
inter-link that came about in 1998 when a group of terrorists bombed the U.S
Embassy in East Africa killing hundreds, a majority of whom were Kenyans[1]. Following the bombing the
U.s Government in a bid to enhance tougher counter terrorism measures sought to
limit the fourth amendment of their constitution, which related to the search
and seizure requirements. This was done so in the Second Circuit’s decision in
the case of re Terrorist Bombings of
United States Embassies in East Africa[2]. The judges ruled that a warrant in a foreign jurisdiction would
be a dead letter and as such the U.S government did not need a warrant to
arrest U.S citizens in foreign land.
Counter Terrorism measures
consist of two strategies; there is soft counter terrorism: which entails
fighting it peacefully and in a friendly manner such as offering amnesty to
terrorists who surrenders and operational counter terrorism, this involves
using security agencies such as the anti-terror police unit[3]. In Kenya both measures
have been used
Following the entrance of Kenya
into Somalia under the Wing of African Union Mission in Somalia (AMISOM), a
group known as Al Shabaab started attacking Kenya calling for their withdrawal
from Somalia. It started with bus attacks, club attacks and mall attacks. The
Government of Kenya in a Kneejerk reaction rounded up all Somalis and put them
in enclosed camps at various stadia pending deportation back to Somali. it was
believed that the local Somali community was aiding Al Shabaab in their
terroristic endeavors. Human rights organizations led by Kituo cha Sheria
quickly moved to the Court. The Constitutional and Human Rights Division of the
High Court ruled in the Kituo Cha Sheria
and others v the Attorney General[4]that
the government directive that instructed the rounding up and encamping of the
Somali community was null as it violated the rights to fair administrative
action, movement, dignity and to livelihood. The Court balanced the national
security concerns vis. a vis. Article 24 of the Constitution that is on the
limitation of rights. This begs the question with such a robust human rights
framework is it possible for the courts to capture a terrorist without
overlooking their human rights? The Problem also lies with shoddy investigation
and prosecution of terrorist crimes. Picture the scenario of the decision in Richard Baraza Wakachala v Republic[5], a man was arrested near
the Kenya Somali border but on the Kenyan side when taken to court he was
charged with travelling to a terrorist designated country through an exit point
without consulting the immigration officer, this was under section 30 of the
Prevention of terrorism Act, whereas the judge held that there is no such
offence under section 30 all the offense there related to training and
instruction for terrorism purposes. Further the prosecution never attached the
gazette notice that declared Somali a designated terrorist country.
What is the legal Framework?
Before 2012 there was the Suppression of Terrorism Bill 2003. 2012 saw the
passing of the Prevention of Terrorism Act 2012. The Act was consultative in
nature and abided by the Constitutional safeguards of civil liberties. A brief
analysis follows;
The 2012 Act seeks to define
acts of terrorism[6]
as opposed to terrorism, which is subject to many different interpretations
based on one’s cultural background. This helps us to move away from theoretical
underpinnings that eventually pose practical problems[7].
The 2012 Act is
extra-territorial, its provisions not only apply to terrorists that commit
crimes to Kenyans in Kenya but also to terrorist activities that are planned
outside Kenya and committed in Kenya[8].
The 2012 Act gives the scope of
terrorist offences to include financing, recruitment, training, preparation,
for each of these offences the Act provides hefty penalties ranging from life
imprisonment to imprisonment of up to 20 years[9]. It is to be noted that
there is no death penalty as it is unconstitutional and that terrorists are
normally ready to die as such it would not be the most proportionate punishment
Under the 2012 Act the
Inspector General may recommend to the cabinet secretary specific entities that
are related to terrorism activities and when such an entity is gazette as such
its accounts and activities are frozen. The Inspector general gazetted Al
Shabaab as a terrorist entity alongside other 85 individuals and organizations
that were presumed to be related to Al Shabaab. The organizations moved to
court and in the decision of Muslims for
Human Rights (Muhuri) & another v Inspector-General of Police & 4
others[10]
the court issued a conservatory order to the Inspector general preventing him
from forwarding the names of the organizations and individuals to the cabinet
secretary until the petition is determined.
When it comes to the matter of
arrests and searches, the Act complied with the criminal procedure code where
an officer wishing to make an arrest may in the absence of a warrant rely on a
reasonable and probable suspicion that the suspect is about to or has committed
a crime. This saves the time that could be wasted while trying to seek a
warrant of arrest.
Intelligence agencies are
allowed to intercept communication for the purpose of Intel collection subject
to the approval of the high court[11]. The high court will
balance the right to privacy as against national security and come up with a
wise decision. In the case of Coalition
for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10
others it was held that the intercepting of communications subject to the
approval of the court is totally compliant with Article 24 of the Constitution
which deals with limitation of rights.
Even with the Prevention of
Terrorism Act, terrorism still thrived. The government sought to come up with
an amendment. The Security Laws Amendment Act, it sought to do a lot of things
many of which were ruled as unconstitutional by the court for example, certain
provisions sought to limit the freedom of expression of the media from airing
gory images, intercepting communications, rights to a fair trial etc. The court
balanced the interests of the public as against national security interests and
limited the right to privacy, expression but to a limited degree. It however
upheld the rights to a fair trial that was threatened, rights to bail and bond,
and the principle of non-refoulment[12].
In summary Kenya has applied
both soft and operational counter-terrorism measures but terror still remains a
real threat. The reason is that laws need to enforced strictly and in the
presence of corruption it defeats the purpose. As such Kenya must fight
corruption so as to create an enforcement that is rigid, strict and effective.
There is no need to stricten border laws or even build a wall whereas one can
bribe their way through. Apart from that there have been numerous complaints
stating that the anti-terror police unit are trigger happy and kill and maim
many blankly citing that they are terrorist[13]. They are also known to
target a particular section of the community.
We must first deal with the
devil within before we can defeat the outer devil.
Bibliography
Laws
1. Constitution
of Kenya 2010
2. Suppression
of Terrorism Bill 2003
3. Prevention
of Terrorism Act 2012
4. Security
Laws Amendment Act 2014
Books/Articles/ Theses
1. C. Mwazighe,
Legal Responses to Terrorism: A Case Study of Kenya (Theses, Naval Postgraduate
School, 2012)
Cases
2. Coalition
for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10
others 2015
3. Muslims
for Human Rights (Muhuri) & another v Inspector-General of Police & 4
others
4. Richard
Baraza Wakachala v Republic
5. Re
Terrorist Bombings of United States Embassies in East Africa
6. Kituo
Cha Sheria and others v the Attorney General
[1] Library
C, ‘1998 U.S. Embassies in Africa
Bombings Fast Facts’ CNN (3 August 2016)
<http://edition.cnn.com/2013/10/06/world/africa/africa-embassy-bombings-fast-facts/>
accessed 24 October 2016
[2] 552
F.3d 157 (2d Cir. 2008),
[3] Raisa,
‘Kenyans Call out Anti-Terrorism Police
Unit’ (Al Jazeera, 24 August 2015)
<http://stream.aljazeera.com/story/201508241439-0024970> accessed 24
October 2016
[4]
Petitions No. 19 and 115 of 2013, H.C, Milimani, (Majanja J)
[5] Criminal
Appeal no 100 of 2015, H.C, Garissa, (Dulu J)
[6] Prevention
of Terrorism Act 2012 Section 2(1)(a)
[7]
C.Mwazighe, Legal Responses to Terrorism:
A Case Study of Kenya (Theses, Naval Postgraduate School, 2012) pg 73
[8]
Section 21, Prevention of Terrorism Act 2012
[9] C.Mwazighe,
Legal Responses to Terrorism: A Case
Study of Kenya (Theses, Naval Postgraduate School, 2012) pg 89
[10]
Petition 19 of 2015, H.C, Mombasa (Emukule J)
[11]
Section 36, Prevention of Terrorism Act
[12] Coalition for Reform and Democracy (CORD)
& 2 others v Republic of Kenya &10 others 2015
[13] Human
Rights Watch, ‘Kenya: Killings,
Disappearances by Anti-Terror Police’ (4 September 2014)
<https://www.hrw.org/news/2014/08/18/kenya-killings-disappearances-anti-terror-police>
accessed 24 October 2016.
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