Kenyans express concern over anti-terror bill amendments

Activists protest outside the parliament building in Nairobi on November 21, 2013, over bills they say will curb media freedoms, muzzle government critics and undermine democracy. [Tony Karumba/AFP]

By Julius Kithuure
Tuesday, December 16, 2014

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NAIROBI, Kenya — Civil society organisations are expressing concern over a bill to amend Kenya's anti-terrorism legislation, saying that if the changes are made as proposed they will stifle Kenyans' civil rights.

The Security Laws (Amendment) Bill 2014 proposes changes to 21 existing laws which the government says will enable security agencies to adequately address rampant national insecurity.

The new bill would make it a felony punishable by a fine of up to 1 million shillings ($11,000) or three years in jail to distribute "obscene, gory or offensive material which is likely to cause fear and alarm to the general public" if it is passed into law.

The bill also would empower the National Intelligence Service (NIS) to intercept and record telephone conversations without a court order -- an action that now requires High Court approval.

In addition, media outlets and journalists who publish or broadcast photographs of terror victims without their consent or permission from the police would receive a jail sentence of up to three years or a fine of up to 5 million shillings ($55,200), or both, according to the bill.

Media organisations are currently free to publish such materials but are guided by the Media Council of Kenya's code of ethics and individual outlets' principles.

The amendment also gives the president sole power to appoint the inspector general of police, which critics say makes the position vulnerable to politically motivated handpicking. The National Police Service now has the authority to appoint the inspector general.

The bill also removes the security of tenure of the inspector general, director general of intelligence and that of the directorate of criminal investigations, which some opponents say will hamper job performance and undermine their independence, making them vulnerable to manipulation by the appointing authority.

Security Law vote this week

Members of the National Assembly are scheduled to return from recess Thursday (December 18th) for a special session and to vote on the bill.

"The time to act on insecurity is now and we want to do things expeditiously since there is no time to waste wrangling on this bill," National Assembly Majority Leader Aden Duale told Sabahi.

The bill is well-intentioned, he said, and has no motive other than to safeguard the lives of Kenyans and their property.

"This bill is wholesome in content and aims to revamp laws that will help law enforcement agencies to tighten the noose on terror masterminds, terrorists and hard-core criminals," he said.

Duale asked Kenyans to support the government's initiative and said "all law-abiding citizens have nothing to fear", as the bill targets "only criminals and terrorists who know the noose is tightening around their necks".

Opposition to proposed amendments heats up

However, strong dissent over the bill continued over the weekend, with international human rights groups and Kenyan civil society organisations raising concerns that the legislation is regressive and will negatively impact civil liberties.

Kenyan human rights watchdog Haki Africa executive director Hussein Khalid faulted the government for attempting to circumvent the constitution by proposing laws that he said would turn Kenya into a police state.

"To pass a law that gives police powers to hold suspects for more than a year, yet the constitution requires a suspect to be presented in court within 24 hours, is unconstitutional because it disrespects the Bill of Rights," Khalid told Sabahi.

It also infringes on civil rights to deny terror suspects bail for no valid reason other than that they are suspects, he said. "Everyone is entitled to a fair hearing and is presumed innocent until proven guilty by a court of law and not police," he said.

The wrong approach to insecurity

The proposed laws will engender a false sense of security among Kenyans and law enforcement agencies, said Kefa Were, executive director of the Centre for Restoration of Human Rights and Democracy in Kitale County.

"Proposing stricter laws to a complex security situation when we cannot even get our security units to work in tandem to share and act on intelligence is to cure the wrong disease," he told Sabahi.

Rushing to pass these laws is not a solution to insecurity, he said.

"In my opinion, police corruption and failure of the law enforcement agencies to implement already existing laws is the biggest problem facing the country, and the president and parliament should find out why and solve it," Were said.

Laws that undermine people's rights to privacy must be opposed through public pressure, he added, and if parliament passes the bill without making necessary amendments, "then civil society should go to a court of law to have their voices heard".

Ben Muoki, a Nairobi-based security consultant, said Kenya has adequate laws to address national security, but the problem is security agencies "lack pro-action".

"What is lacking is implementation of [existing laws], plus the lax security agencies who only rush to act [after] an attack has occurred," he told Sabahi, questioning whether stricter laws will change officers' work attitude.

Lawmakers should not rush to pass the legislation without allowing Kenyans a chance to scrutinise and debate the bill, he said.

"People's rights should be upheld even as the government fights terror," Muoki said, adding that any clauses that contravene Kenya's constitution, such as those limiting freedom of expression and freedom of the press, should be removed from the bill.

For his part, Charles Nyachae, chairman of the Commission for the Implementation of the Constitution, acknowledge that critics of the bill have raised some valid concerns and that the commission addressed these in its recommendation to the president last week.

"We have carefully looked at this bill and it is our opinion that 80% of it is good but the bill in entirety has been marred by the 20% which introduces ambiguity in the law and contradiction to constitution," Nyachae told Sabahi.

"We have made our suggestions which if [enacted] will create constitution-conforming laws effective in achieving their intended purposes," he said. "The head of state promised to have the National Assembly consider the [changes], so we too hope they will be [implemented] accordingly."

Support for the bill

On the other side of the debate is University of Nairobi engineering student Anthony Njaramba, 27, who said he is prepared to give up his constitutional right to privacy if that will guarantee him safety.

"I have my rights but they do not exist in vacuum," he told Sabahi.

Njaramba said Kenyans have been pleading with the government to use all means to protect them, and should therefore "not cry foul when it flexes its muscles".

"A law that proposes heavy penalties on people who misuse houses of worship as safe sanctuaries for terrorists and weapons is much welcome," he said.

Roselyne Ouma, 41, who sells second-hand clothes in Nairobi's Gikomba Market, said she suffered a shrapnel injury to her left leg during al-Shabaab's May 10th attack on the market.

The mother of three said she supports the bill because it closes the loopholes that terrorists have been able to exploit.

Ouma said she is confident Kenyans will embrace the new law, but urged the government to reassure them they will respect civil liberties.

"[The government] should not seem to be pushing [the amendments] on people with a gun pointed on their heads, because eventually [security agencies] will require the public's support in volunteering crucial information on terror and criminals," she said.

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