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.
[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
[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
[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
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