Medical Ethics and The Law

By Victoria Tabut LLB

Medical Ethics and the Law

Introduction

Clinical Ethics is the field of activities that investigate what medical practitioners as professionals should do or how they should behave concerning a certain case, especially in the process of decision making[1].

The newborn period is defined as beginning at birth and lasting through the 28^th day following birth[2].

A child is defined as any person who has not attained the age of eighteen (18)[3].

Background

The debate as to the meaning of medical futility and what physicians should do in such cases; in the course of Medical Practice, dates back to the time of the writings of Hippocrates and Plato where it was said, "To attempt futile treatment is to display an ignorance that is allied to madness".[4]

The claim that an intervention is futile is used to justify a shift in the ethical obligations owed to a patient[5]. This is the shift from the recognition of a patient’s negative rights (the right to refuse treatment) to the decision to withhold or withdraw treatment by a physician. In the English case of Airedale NHS Trust ν Bland[6],' Lord Goff of Chieveley said: Medical treatment is [not] appropriate or requisite simply to prolong a patient's life, when such treatment has no therapeutic purpose of any possible kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition[7].

Definition

There has been difficulty in construing the exact definition of medical futility. The earliest known attempt to define futility comes from the Hippocratic Corpus in what is currently recognized as the quantitative definition[8]. It is further explained as a situation when physicians conclude (either through personal experience, experiences shared with colleagues, or considerations of published empirical data) that in the last 100 cases a medical treatment has been useless, then that treatment is regarded as futile.  This argument is a purely quantitative account based on a probability established by the empirical methods of medicine as a science[9].

On the other hand, Plato had a qualitative perspective of futility which emphasized the inappropriateness of persisting with treatment which leaves the surviving patient with a "useless" life[10]. The qualitative approach to futility is based on an argument that physicians should not be required to provide treatments to achieve objectives that are inconsistent with legitimate medical goals[11].   Futility occurs when there is a goal, there is an action aimed at achieving the goal, and there is virtual certainty the action will fail.[12]

Controversial Agenda

The problems associated with defining futility have encompassed: Patient rights and speculations about the limits of patient autonomy, economic capacity, professional integrity and the role of the physician in the physician-patient relationship, as well as the lack of shared values as to what may be regarded as medically necessary in a particular case[13].

Drafting a concrete medical or legal definition of futility as well as setting parameters in regard to such would be instrumental in deciding when treatment should be withdrawn or withheld[14]. However, fashioning such terminology and scope would be in direct contravention of a patient’s constitutional rights, patient’s autonomy in respect of decision making, as well as inconsistency with cultural and religious aspects.

In what is regarded as the developing world, certain socio-cultural backgrounds as well as religious beliefs have adverse effects in the recognition of medical futility. As a result, there are limited legal provisions; that is statute and case law, in this field.

Despite this fact, the evolution of medicine to reliance on technological advancements to sustain life, together with a steady erosion of doctor decision-making authority, and societal pressure to contain health care costs[15] demand for a reform of laws to address these emerging issues[16].

Legal Provisions

The Constitution of Kenya, 2010, (“The Constitution”) recognizes the right to life, and that life begins at conception[17]. The Constitution guarantees every person the highest attainable standard of health inclusive of health care services, maternal and reproductive health care and the right to emergency medical treatment[18]. The Constitution ensures that the vulnerable groups, marginalized groups and minorities (including but not limited to the illiterate, the medically incapacitated, the uneducated and uninformed) should have reasonable access to health care services[19].

Article 2 (5) of the Constitution of Kenya, 2010, recognizes that the general rules of international law shall form part of the law of Kenya. The right to life is an inherent universal right that is protected by Law. As a qualified right, Article 2 of the European Convention on Human Rights only recognizes the limitation of execution upon a conviction or with use of reasonable force where necessary only[20]. Article 5 of the African Charter on the Rights and Welfare of the Child states that every child has a right to life. States are encouraged to ensure that all individuals enjoy the best attainable standard of health care[21] and this is also specified to children[22], this is because children are regarded as in need of special medical care and assistance[23].  Medical practitioners, and especially physicians, are held to high standards under International laws as evidenced in the Declaration of Geneva.  Physicians are required to maintain utmost respect for human life and that their patients’ health and welfare be their principal concern[24].

Many international instruments focus on defining human rights and fundamental freedoms. Usually, most of these rights are qualified (not absolute) and are therefore subject to certain exceptions. It is the mandate of each member states to define the scope of these rights and their limitations so as to prevent either violation or infringement of these rights. Article 4 of the Convention on the Rights of the Child encourages member states to adopt or enact all appropriate legislative, administrative, and other measures for the implementation of such rights.

Statutes in respect of medical practice are very procedural and mostly make provisions in relation to registration and licensing of medical practitioners. Therefore, there is little if no statutory authority in regard to medical futility.

The Kenya National Patient’s Rights Charter of 2013[25] (“The Charter”) makes various provisions in regard to the rights of patients, and is legally binding. The Charter emphasizes on the right to informed consent to treatment[26] and the right to seek a second medical opinion[27].

The draft of the Charter had explicitly recognized the Right to special treatment in a clause that stated that: In addition to the right of health care services, a provision of persons with special needs who require special treatment shall be provided and the special needs are in the cases of new born babies, children, maternal and reproductive health care, pregnant women, the mentally incapacitated and mentally handicapped, the vulnerable groups (e.g. the uneducated and ignorant), disabled, HIV and AIDS patients and terminally ill patients[28].  This clause was subsequently omitted from the final draft of the Charter.

Another clause that was omitted stated that patient’s have the responsibility to observe and comply with the prescribed treatment, rehabilitation and counseling process[29].

This is clear indication of the reluctance of medico-legal service providers to engage in the controversial matter of medical futility, whilst expressly admitting that this is an emerging grey area.

Case Law

There is no Kenyan case law in respect of medical futility. As a result, inference will be drawn from an American case and contextualized to this particular jurisdiction.

In re Baby K. (1994)

Facts

In October of 1992, a baby girl was born in Fairfax Hospital, Virginia, who unknowingly became a symbol of medical futility[30]. Baby K was anencephalic[31], and as a result should have died a few days after birth[32]. However, when she began having trouble breathing, physicians provided her with assistance through the use of a machine called a ventilator[33]. At the insistence of her mother, ventilator treatment was administered in subsequent episodes of difficult breathing and, remarkably, this cycle of medical care kept her from dying for over two years[34]. Her physicians believed the continued provision of this kind of treatment was futile because she had no chance for a conscious life[35]. Thus, they recommended that the hospital seek a court order allowing them to refuse ventilator treatment during a future episode of difficult breathing[36].

A federal judge ruled in July 1993 that the hospital has a duty to provide full medical care, including ventilator support to Baby K under the Federal Law[37]. No weight was given to the claim that further prolongation of Baby K’s dying process was futile and inhumane[38].

Issues for Determination

The question of whether Congress, in passing EMTALA[39], had provided an exception for anencephalic infants in respiratory distress[40].

Ruling

The court explicitly stated that federal law overrode any state legislation[41]. The Court found the language clear, and it was the discretion and mandate of Congress to construct Federal legislation to clarify congressional intent that EMTALA’s requirement for stabilization be “consistent with reasonable medical standards”[42]

 

Call for Legal Reform

Baby K died at the hospital due to cardiac arrest in April 1995 after being vigorously resuscitated[43]. She was two and a half (2 1/2) years old, and it was her sixth admission to the hospital[44].

It can be inferred from the term ‘medical futility’ that the treatment of such a patient will not confer any benefits to the patient physiologically or otherwise. Essentially, this leads to prolong suffering and especially so for newborns. More so, in a country of limited resources like Kenya, this would directly deprive another patient of the opportunity to be provided with treatment and any chances of cure or even worse survival. It is also an infliction of psychological and emotional suffering to the family of said patient.

Conclusion

It is clear that life-sustaining measures and techniques are in a progressive state. As a result, there should be a forum of interactive discussion about medical futility in a world of constant and consistent technological advancement. The objective of such is to ensure that certain standards of medical ethics are upheld, communication to patient’s guardians about medical futility and subsequent effects are well delivered, and most importantly legal reforms to reflect this position are enacted.

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[1] http://www.l.u-tokyo.ac.jp/dls/cleth/e/introduction/intro_1.html <accessed 03/30/2016>

[2] http://www.eicd.com/guidelines/Newborn.htm<accessed 03/30/2016>

[3] The Age of Majority Act, 1974, Cap 33; Laws of Kenya.

[4] I. Kerridge, K, Mitchell, J. McPhee; Defining Medical Futility in Ethics, Law and Clinical Practice: An Exercise in Futility? (1997) 235, 4, Journal of Law and Medicine.

[5] Ibid.

[6] [1993] AC 789.

[7] Ibid at 869

[8] LJ Schneiderman, N S Jecker and A R Jonsen, "Medical Futility: Its Meaning and Ethical Implications" (1990) 112, Annals of Internal Medicine 949.

[9] Ibid.

[10] Plato, The Republic (G. M Grube, trans, Hackett Publishing, Indianapolis, 1981), p 76

[11] I. Kerridge, K, Mitchell, J. McPhee; Defining Medical Futility in Ethics, Law and Clinical Practice: An Exercise in Futility? (1997) 235, 4, Journal of Law and Medicine.

[12] Trotter, G. (1999). Mediating disputes about medical futility. Cambridge Quarterly of Healthcare Ethics, 8(4): 527-537.

[13] I. Kerridge, K, Mitchell, J. McPhee; Defining Medical Futility in Ethics, Law and Clinical Practice: An Exercise in Futility? (1997) 235, 4, Journal of Law and Medicine.

[14] M. A. Bonanno, the Case of Baby K: Exploring the Concept of Medical Futility, Annals of Health Law, Vol. 4 [1995], Iss. 1, Art. 9

[15] Soobramoney v Minister of Health, KwaZulu-Natal, 1998 (1) SA 765 (CC), 1997 (12) BCLR 1696 (CC).

[16] M. A. Bonanno, the Case of Baby K: Exploring the Concept of Medical Futility, Annals of Health Law, Vol. 4 [1995], Iss. 1, Art. 9

[17] Article 26, the Constitution of Kenya, 2010.

[18] Article 43 (1) (a) and (2) of the Constitution of Kenya, 2010.

[19] Article 21 as read together with Article 56 (e) of The Constitution of Kenya, 2010.

[20] Amended by Protocols Nos. 1 and supplemented by Protocols Nos. 1, 4, 6, 7, 12 and 13

[21] Article 16, African (Banjul) Charter on Human and Peoples' Rights.

[22] Article 14, the African Charter on the Rights and Welfare of the Child.

[23] Article 25, Universal Declaration of Human Rights.

[24] World Medical Association, Declaration of Geneva (1948), International Code of Medical Ethics (1949),

[25] 1^st Edition, October 2013.

[26] 1.8 Of the Kenya National Patient’s Rights Charter of 2013.

[27] 1.11 Of the Kenya National Patient’s Rights Charter of 2013.

[28]Medico-Legal Practice Committee of the Law Society of Kenya, Draft Of The National Patients’ Right Charter, 2012.

[29] Ibid.

[30] M. A. Bonanno, the Case of Baby K: Exploring the Concept of Medical Futility, Annals of Health Law, Vol. 4 [1995], Iss. 1, Art. 9.

[31] Anencephaly is a medical condition characterized by an incomplete brain; that is, the brain is "entirely or substantially absent."

[32] M. A. Bonanno, the Case of Baby K: Exploring the Concept of Medical Futility, Annals of Health Law, Vol. 4 [1995], Iss. 1, Art. 9

[33] Ibid.

[34] See Marylou Tousignant & Bill Miller, Baby K's Mother Gives Her the Prayer That Many Deny She Has, WASH. POST, Oct. 7, 1994, at A01.

[35] M. A. Bonanno, the Case of Baby K: Exploring the Concept of Medical Futility, Annals of Health Law, Vol. 4 [1995], Iss. 1, Art. 9

[36] M. A. Bonanno, the Case of Baby K: Exploring the Concept of Medical Futility, Annals of Health Law, Vol. 4 [1995], Iss. 1, Art. 9

[37] Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the Emergency Medical Treatment and Active Labor Act.

[38] http://web.stanford.edu/~mvr2j/sfsu09/extra/court%20cases%20futile%20treatment.pdf <accessed 03/30/2016>

[39] “The use of a mechanical ventilator to assist breathing is not ‘futile’ or ‘inhumane’ in relieving the acute symptoms of respiratory difficulty which is the emergency medical treatment that must be treated under EMTALA. To hold otherwise would allow hospital to deny emergency treatment to numerous classes of patients, such as accident victims who have terminal cancer or AIDS, on the grounds that they eventually will die anyway from these diseases and that emergency care for them would therefore be futile.”

[40] http://web.stanford.edu/~mvr2j/sfsu09/extra/court%20cases%20futile%20treatment.pdf <accessed 03/30/2016>

[41] Ibid.

[42] Ibid.

[43] http://web.stanford.edu/~mvr2j/sfsu09/extra/court%20cases%20futile%20treatment.pdf <accessed 03/30/2016>

[44] Ibid.

The Law of Gifts, Kenyan Property Law

By Cynthia Mbugua LLB

Definition

The lay definition of the word gift is something voluntarily transferred by one person to another without compensation[1]

A gift is defined as a voluntary transfer or conveyance of property or property intrest from one individual to another, made gratuitously to the recipient and not upon any consideration. If there is any consideration, then the law of gifts does not apply. The individual makes the gift is known as the donor, and the individual to whom the gift is made is called the donee.[2]

The Transfer of Property Act defines a gift as “122.”Gift” is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.”

Origin of the Principle of Gifting

The earliest record of gift giving is recorded in the Bible. This is whereby God granted man, in Genesis Chapter 1, the right to exercise dominion over all the earth. It is argued that this grant of authority conveyed title to mankind[3]. Man was to make use of all that was on the land, to use it as appropriate. This can be compared to the modern law of property whereby an owner possesses the rights of use and disuse.

A few theorists were in support of this view, among them, Sir William Blackstone who stated that the dominion mandate was an “immediate gift of the Creator” and therefore became the “general property of mankind”.[4] John Locke referred to King David’s statement in Psalms 115:16 also assumed that God had given the earth and its contents “to mankind in common”.[5]

Locke saw the moral foundation of property rights as embodied in one’s output. That is the labour theory, of one’s property is determined by the labour made on it. This was however criticised by Drukheim whereby he stated that the theory did not justify acquisition of property by gift, that is, without labour.

A.M Honoroes incidents of ownership provide for the right of transmitability that is, an owner may transfer the entitlements of ownership to another person including by gifting.

Gift giving has grown with civilization being witnessed through the Egyptian early ages whereby gifts were given to leaders as a show of loyalty. They were in form of silver and gold and jewels: chalices, medallions, statues and other articles. 

Elements required for a gift to be valid

There are specific requirements needed to consider whether or not a gift has been made from one person to another. The requirements are stated in the case of Gruen v Gruen [6].The Court reiterated in Gruen that the elements of a valid gift are intent on the part of the donor to make a present transfer, actual or constructive delivery to the donee, and acceptance by the donee. 

First and foremost, there has to be a form of delivery to the donee or to a third party whereby the item in question may eventually be termed as a gift when it reaches the donee. It will be termed as a gift when the donor of the gift lets go of the gift to the donee. If the gift is still under his or her name, it ceases to be a gift because he/she still possesses it. In the case of Mirvish v Mott[7], the Court held that “requirement of delivery may be met by physical delivery of the gift itself or by a constructive or symbolic delivery such as by an instrument sufficient to divest the donor of dominion and control”. 

Therefore there are two types of delivery of gifts. The first one is symbolic delivery which according to the Black’s Law dictionary states that it is The constructive delivery of the subject-matter of a sale, where it is cumbersome or inaccessible, by the actual delivery of some article which is conventionally accepted as the symbol or representative of it, or which renders access to it possible, or which is evidence of the purchaser’s title to it. The other type of delivery is known as constructive delivery. In this case, the property itself is not transferred but something giving access to and control over it. For example giving the donee the keys to a safe deposit box[8]

The other requirement is donative intent. For an item to be classified as a gift, the donor has to show that he had intended to make it a gift. Delivery only does not indicate that the item in question is a gift. However the legal capacity also determines whether the court will rule in the favour of the donor or donee. An infant in this case will not be held liable because they are not of the legal capacity. Most of the time donative intent and delivery happen simultaneously in that if for example I give you a pencil, I’ll have delivered the pencil to you with the intention of you accepting or denying it.

The final requirement is acceptance of the gift. The gift can be revoked before acceptance but once it is taken by the donee, ownership is transferred to the donee. Ownership of the gift depends on the decision of the donee and the donor cannot at any point forcefully make the donee take the gift. The Transfer of Property Act of 1882[9] states that acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void

Types of Gifts

There are 2 types of gifts according to Law. 

· Inter vivos gift. 

This gift is one among living persons and delivery, donative intent and acceptance have to be proved so that a gift can be valid. 

· Gifts causa mortis or donation causa mortis. 

The Blacks’ Law dictionary states that it is a gift made by a person in sickness, who, apprehending his dissolution near, delivers, or causes to be delivered, to another the possession of any personal goods, to keep as his own incase of the donor’s decease. The sickness must be major and one that higher chances are that the donor will die. In the case whereby the person wants to reserve his property and he dies before transferring ownership but he had told someone he would gift them invalidates the gift because there was no delivery and acceptance. 

The Law of Succession act states in section 31 about the gifts causa mortis. It is stated that four things have to be proved so as to prove that a gift is a gift causa mortis. They are:

i. The gift must be in contemplation of death. This is that the donor must believe that they are dying soon

ii. The gift must be conditional on the donor’s death .Section 31(d) provides that a gift in contemplation of death would be valid if the donor makes the gift in such circumstances as to show that he intended it to revert to him should he survive the contemplated illness or danger .A donatio mortis causa is revocable and section 31(ii) states that the donor may at any time before his death lawfully request the donee to return the gift.

iii. The gift must be delivered to the donee. Section 31(c) of the Act states that a gift in contemplation of death would be valid if there is delivery to the intended beneficiary of the possession of the property or of the documents or other evidence of title of the party.

The property in question must be one that can be defined as a causa a donation mortis causa. Section 31(b) of the Act provides that a gift in contemplation of death would be valid if a person gives movable property that he could otherwise dispose of by will. The subject matter should be something that can be given out as a gift.

Other laws of Kenya Relating to Gifts

The Matrimonial Property Act of Kenya under section 15 provides; “Where a spouse gives any property to the other spouse as a gift during the subsistence of the marriage, there shall be a rebuttable presumption that the property thereafter belongs absolutely to the recipient.”

It is important to take note of section 124 Transfer of Propert Act that states “A gift comprising both existing and future property is void as to the latter” . This is to mean that a gift promised is void and therefore cannot be enforced, further such a person has no rights over the property in question.

The general rule is that a gift that is proved to consist all required elements may not be revoked unless as per section 126 of Transfer of Property Act which states:

The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. 

The final part of the section simply denotes instances such as fraud or misrepresentation.

The Transfer of Property Act also provides that Subject to the provisions of section 127, where a gift consists of the donor’s whole property, the donee is personally liable for all the debts due by the donor at the time of the gift to the extent of the property comprised therein.

[1] Merriam Webster Dictionary


[2] Black’s Law Dictionary


[3] Biblical Principles of Law_ Herbert W. Titus


[4] W. Blackstone, Commentaries on the Laws of England(1776) Vol 2,3


[5] John Locke Second Treastise of Government (1764) , 19


[6] 68 N.Y.2d 48, 505 N.Y.S.2d 849, 496 N.E.2d 869 (1986)


[7] 18 N.Y.3d 510 (2012)


[8] Property: Examples and Explanations page 67


[9] Section 122

Marxism, Jurisprudence

By Lujain Abbas LLB

Introduction

The purpose of this paper is to reflect on the Marxist theories of Law and State. It will seek to establish whether Marxism is a materialistic or idealistic theory of Law. Thereafter, it will continue to intricately elaborate on the why this school of thought shaped my thinking throughout my study of Jurisprudence.

1.1 Materialistic or Idealistic?

Marxism in my understanding can be defined as the concept which propounds that in analyzing society, one should look into the material conditions of man and the society’s history in order to understand its laws. It can also be defined as; the theory which states that for one to conceptualize an idea, one has to experience the material things[1]. In this regard, materialism is the theory of knowledge which is interested in the material things, physical comforts than in spiritual values. In other words, for the mind to respond to an impression, it must determine it first with something material. Idealism on the other hand, is the theory of knowledge which is the practice of forming or believing in ideas and that these ideas are the only real things.

Be that as it may, Marxism is a materialistic school of thought which falls within the realms of positivism. Positivism is that theory of law that suggests; our knowledge is derived only from what we have experienced and that it can be tested and verified from our senses[2] and not from ideas as suggested by the idealists. In a more jurisprudential response, positivism is legal examination of what the law is and not what it ought to be.

1.2 Marxism in Modern Day

Going back to my first definition of Marxism, which can be linked to his concept of history which in summary is for one to conceptualize an idea that is they must experience the material things. I will apply the above definition to the societal context and conclude that for one to understand the laws of the society, one must look into its economic history.

The starting point of ascertaining the economic history is to observe what individuals take into progress and also those that which they shun all together. For that reason, the process of production is a core activity in the development of laws in society. It is with that, that I slowly begun to concur with Marx whereby Law should be seen as a social institution and not something completely alien from society. I entirely believe that law emerges from realities and I will use this reasoning against the example of the acceptance of homosexuals in different parts of the world. In my humble opinion, homosexuality is the problem only the well off face. Why do I say that you would ask, my answer would be if you look at the less fortunate in society, they do not have time to question about their sexuality because they are  busy trying to make ends meet, right? Contrast this to a wealthier individual who doesn’t have to worry about rent, school fees, food et al because they have it all better yet in surplus, so what does that individual do with his time? Dwell into ‘restricted’ territory of having his sexuality questioned by his sub conscious. The realities as you can see are completely different and hence why most African countries will not accept these individuals not just because it’s immoral in their customs but because it is not a priority in their quest for development as was properly put by the President, His Excellency Uhuru Kenyatta.

It is with this that Marxism’s concept of class struggle emerges. The concept of class struggle in a nutshell is where the views of the dominant class (land owners and bourgeoisie) are what gradually become laws in society. Class in my understanding, can be construed as; gender where the male chauvinists overshadow the women; ethnicity for instance in Kenya, where political power tends to favour a specific community over another; race where a certain race is prejudiced over another an example being the Black African Americans in the USA.

From the above concepts, one that combines the two is that of, the concept of state and law comes to play. In this notion, law is said to be an expression of the class relations, but isn’t that true? Let me delve into this for a moment, a while back a school situated in Langata had a land dispute with a supposed politician who was out to grab the schools playground as an extension to his hotel. The events of that dispute were surreal whereby the police were seen launching tear gas canisters at the students who were fighting for what essentially belonged to them.

According to Marx, the state machinery that is, the army and police are a tool meant to subdue the interests of the proletariats in a bid to safeguard the interests of the ruling class. If you notice from the aforementioned hypothesis, you can see it in black and white that that which Marx highlighted is actually what society is facing at this modern time.

Conclusion

Marxism despite its recommendation to go into communal sort of system which may encourage laziness (but I am open to other opinions) is a practical theory of Law, in that one need no special knowledge to understand it because it is what it is. Marx may have submitted his work in such harsh wordings but even in our dreams we wake up and face reality and I think that is what Marx was going for. I conclude that for us to reach the utopia that Rawls had envisaged in his work, we need to reduce the gap between the less fortunate and wealthy class in order to have a balance in society and thus formulating laws that favour both sides of the coin and not just one.

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[1] Key issues in Jurisprudence, Omony John Paul

[2] Ibid

An Analysis of Kenya's National Security Measures, National Security Law

By Lujain Abbas LLB

The world today faces many challenges. Sometimes, the community of nations, through established structures, comes together to prescribe normative and policy framework geared towards, solving, containing or generally dealing with such global challenges. The greater challenge, however, is that such broad frameworks leave it to individual nations to come up with boundary specific measures that accord to the broad prescriptions to deal with the problems or challenges.[1] One of these global challenges therefore is terrorism.

Kenya in its bid to counter terrorism due to the wake of successive terrorist attacks on civilian targets has two laws in place. One, the Prevention of Terrorism Act, 2012 and two, the Security Laws (Amendment) Act, 2014. These national policies give the legal framework on what amounts to terrorism on Kenyan soil. In the Prevention of Terrorism Act No.30 of 2012 for instance, the term ‘terrorism’ has not been provided for however; the term ‘terrorist act’ has under section 2.

The Security (Amendment) Laws Act was passed in December 2014 by President Uhuru Kenyatta which amends 21 different laws, including the Penal Code, Criminal Procedure Code, Evidence Act, Prevention of Terrorism Act, and the National Police Service Act.[2] However, the Act was challenged on the grounds of violating fundamental rights and freedoms that have been protected in the Constitution of Kenya by human rights activists and the opposition in government leading to the alleged provisions being struck out by the Court of Law[3].

Despite the unconstitutionality of some of its provisions being raised by human rights activists, the Security (Amendment) Laws Act under Section 64 is seen to try and tighten the existing laws on terrorism. For instance with regards to foreign training of the ‘fighters” outside the borders of Kenya, whereby it criminalizes acts carried out for the commission of a terrorist act in foreign states and is punishable by serving a sentence of at least ten years in prison.[4] Furthermore, the Act seems to provide for a certain surveillance program that accords the country’s national security organs broad, unchecked surveillance powers. It states, “National Security Organs may intercept communication for the purposes of detecting, deterring and disrupting terrorism in accordance with procedures to be prescribed by the Cabinet Secretary”.[5]

This however poses as a challenge because the powers envisaged in this section are “incomprehensibly broad,” in that the law does not provide any instruction as to what specifically these powers entail or how they may be implemented, leaving such decisions exclusively to the executive body without any oversight. This to me will consequently open up a pandora’s box with regards to the balance of fundamental rights on one hand and national security on the other, whereby the executive body on seeing any potential threat on national security might deploy actions that may otherwise prejudice a group of people more than the rest of the citizenry. This is best illustrated by Operation Usalama Watch where the Somali community was rounded up in Concentration camps in Kasarani Stadium in a bid to smoke out illegal immigrants who are allegedly a national security threat. Additionally, these actions might cause more harm than good in that the youth for instance in those affected communities might be radicalized into joining the militia groups so as to fight the system that seems to oppress their own.[6]

The law further amends the PTA by inserting a new provision on radicalization. This provision criminalizes the adoption or promotion of “an extreme belief system for the purpose of facilitating ideologically based violence to advance political, religious or social change.”[7] Therefore if a person is charged under this provision he is subject to a maximum of 30 years in prison. Rights groups maintain that the language in this provision is so broad and unclear that it could conceivably be used to prosecute rights activists and political opponents.[8]

Despite these laws governing terrorism in Kenya, it can be said that the Kenyan government in its mission to do away with this issue is acting arbitrarily whereby the rights and fundamental freedoms of the accused for instance are compromised yet they have been protected under the Kenyan bill of rights as well as international conventions that Kenya is party to.

The question therefore posed earlier of whether the Kenyan government has put in place adequate measures in the fight against terrorism is not fully satisfied on the basis of the above laws. As mentioned earlier, in order to tackle this menace of terrorism a balance of rights vis-a vis national security has to be achieved because countering terrorism is itself a human rights objective, since States have a positive obligation to protect people under their jurisdiction against terrorist acts. This positive duty on States requires them to prevent, punish, investigate, and redresstheharmcaused by such acts. At the same time, States must accept that this positive duty to protectapplies both to those who may be at risk from terrorism and to those who may be suspected of terrorism. The State has no authority in law to determine that some people do not qualify to have their rights respected.[9]

This paper at this juncture will try and give recommendations on how the Kenyan government can put counter terrorism measures that are reasonable and legally guided. First, the government may approach this issue using the soft counter-terrorism approach. This approach is that which involves the ability of an entity to shape the preferences of others through economic or cultural appeals, rather than through coercion in the form of strength or military might.[10] Therefore, the soft approach to counter terrorism seeks to undo the radicalization process by engineering the individual’s return to moderate society, usually by providing them with a stable support network, probing their original reasons for radicalizing, and divorcing them from their extreme beliefs and social contacts and this could be achieved by understanding and refuting the ideology behind it, rather than simply strive to eliminate every terrorist in sight.[11]

Secondly, the Kenyan government must take initiative to review its counter terrorism laws so that they conform to international standards with regards to the protection of human rights. As mentioned in this paper respect of human rights is a core issue in fighting terrorism. Therefore there is the need to provide a framework at national level that avoids arbitrariness and abuse of counter terrorism initiatives.[12] This is because counter-terrorism, security, human rights and law enforcement are not mutually exclusive. In the context of the threat of terrorism, they should be designed to work together. In most circumstances, they cannot work effectively independently of each other. Counter-terrorism measures need human rights standards to ensure that their implementation does not undermine their very purpose, which is to protect and maintain a democratic society.[13]

Third, the Kenyan government must uphold and follow the rule of law whereby despite the promulgation of the Constitution in 2010, there are credible allegations of extrajudicial killings, the beatings of numerous suspects, arbitrary detention, renditions, and the disappearance of some suspects. This was documented in the Open Society Justice Initiative and Muslims for Human Rights. The steps therefore to be taken by the government in such instances is to thoroughly investigate and prosecute human rights violations by government security, police, and armed forces equally and compensate victims of torture, ill-treatment and arbitrary detention swiftly and adequately.[14]

Fourth, the Kenyan Government must put an end to impunity and corruption. From the documentaries and newspaper articles being published it is noted that the Kenyan border to north is porous. This therefore means that terrorist militia may at any point enter the country and cause havoc. This however, is facilitated by the government officials at the border whereby they are bribed into letting in illegal immigrants who are not properly screened and thus might bring into the country weapons which consequently are a national security threat. The government therefore must put stringent measures on any official caught in a corruption scandal and also ensure that they do face the law.

Another recommendation would be to intensify border controls not only along Kenya-Somalia border but also on all exit points reducing the number of illegals getting in the country and this therefore would reduce the number of illegal weaponry getting into the country and this in turn would render the supposed attacks not operational.

Lastly, the Al Shabab and IS militia are Islamic extremist groups that believe they are fighting a holy war (Jihad) which in itself is a misguided ideology considering the Islamic religion in its teachings has no place for terror. This has therefore created the mentality in many civilians both Muslims and non Muslims who have no background in Shariah to either be radicalized or feel contempt towards this group of believers. Therefore, the government together with Muslim Clerics should come up with programs that teach constructive Islam and foil extremist ideologies among the citizens in the country[15]. In addition to these programs, the Muslim clerics should also monitor all those who preach extremism in order to stop radicalization in areas of worship.

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[1] 'Legal and policy dilemma in the fight against terrorism: The bail question in terrorism cases in Kenya' (2013) <http://kenyalaw.org/kenyalawblog/legal-and-policy-dilemma-bail-question-in-terrorism-cases/> accessed 19 October 2016

[2] <http://www.bloomberg.com/news/articles/2014-12-11/kenya-mps-debate-tough-security-laws-criticized-by-opposition> accessed 23 October 2016

[3] Coalition for Reform and Democracy (CORD) & another v Republic of Kenya & another [2015] eKLR

[4] <http://www.loc.gov/law/foreign-news/article/kenya-security-laws-amendment-bill-enacted/> accessed 23 October 2016

[5] Ibid, Footnote 4

[6] <https://issafrica.s3.amazonaws.com/site/uploads/Paper265.pdf> accessed 23 October 2016

[7] Ibid, Footnote 4

[8] <https://www.hrw.org/news/2014/12/13/kenya-security-bill-tramples-basic-rights> accessed 23 October 2016

[9] Daniel J, 'Counter Terrorism And Human Rights In Kenya' [2016] <https://www.academia.edu/11750578/Counter_Terrorism_And_Human_Rights_In_Kenya> Accessed 24 October 2016

[10] Jessica Stern, “Mind over Martyr,” Foreign Affairs 89 (2010): 108.

[11] Gabriel, '‘Soft’ approaches to counter-terrorism: An exploration of the benefits of Deradicalization programs' (2015) <https://www.ict.org.il/UserFiles/ICT-Soft-Approaches-to-CT-Hoeft.pdf> accessed 24 October 2016

[12] Ibid, Footnote 12

[13] Ibid Footnote 12

[14] Gabriel, '‘Soft’ approaches to counter-terrorism: An exploration of the benefits of Deradicalization programs' (2015) <https://www.ict.org.il/UserFiles/ICT-Soft-Approaches-to-CT-Hoeft.pdf> accessed 24 October 2016

[15] Megged M, 'Kenya Government counter-terrorism measures against Al Shabaab Islamists' (23 October 2016) <http://intelligencebriefs.com/kenya-government-counter-terrorism-measures-against-al-shabaab-islamists/> accessed 23 October 2016