Fighting Terrorism or Introducing Dictatorship?
On December 10, 2014 The Kenyan government published the Security Laws (Amendment) Bill, 2014. The government argued that the amendment was required in order to curb the runaway insecurity especially the ever-present threat of terrorism. However, once this announcement was made, the drums of war were sounded and war cries rent the air with the main opposition CORD Coalition claiming the proposed amendments contravene the Bill of Rights while the ruling Jubilee Coalition argued that the amendments were necessary and overdue. When a special session of parliament was convened on December 18 to debate the Bill, Kenyan MP’s did not ‘disappoint’ as they exchanged kicks and blows, shredded papers, insulted and poured water on each other. The pandemonium notwithstanding the Bill was passed and signed into law by the president the following day.
So what is the Security Laws (Amendment) Act, 2014, that politicians on both sides were ready to risk their political lives defending or opposing it? The Act makes fundamental amendments to at least 22 laws and impacts others. To mention a few, the Act brings changes to the Public Order Act, empowering the Interior Minister in Charge of Security to sanction a meeting, thus undermining the right of association. It also changes the Penal Code to punish anybody who publishes material that are “likely to cause fear or alarm to the citizens.” It authorises the National Intelligence Service to arrest a suspect and punish citizens who aid terrorists to enter Kenya. Additionally, the Act amends the Registrations of Persons Act giving the Registrar of Persons power to revoke identification and citizenship.
If this law comes into effect as it is, it will erode the democratic and human rights that are enshrined in the Kenyan Constitution especially the Bill of Rights. For example, freedom of expression is under threat as the new law contravenes articles 10, 36, 37 and 119 of the Constitution. In addition, Clauses 18(4) (c) and (10) of the new law makes it possible for persons to be held without charge for a period of up to 90 days, effectively re-introducing detention without trial through the backdoor. Clause 15, amending the Penal Code to punish any person who publishes material deemed offensive, without explaining how that will be determined, is an infringement on the right of expression and information. Clause 66 which amends the National Intelligence Services Act eliminates the need for NIS to seek a court warrant and thus enables NIS officers to carry out their functions with scant regard for law and human rights. This is dangerous as the NIS is being given powers to arrest suspects - powers and functions outside of their constitutional mandate. Through Clause 31 the Director of Registration receives broad powers to revoke citizenship rights. In addition, the Act expands the grounds provided in the Constitution by including the vague and indefinable ‘any justifiable cause.’ This is alarming as it is reminiscent of the 1990’s when Kenya’s Director of Registration could determine without definable grounds who was a citizen and who was not.
The proposed amendments contravene the Constitution in many respects. However, the sad part is that citizens have become cheerleaders and have abrogated their duty to protect the Constitution and their rights enshrined in it. The silver lining to this whole cloud is that the High Court has blocked the enforcement of these new amendments to the Security Bill. However, since the Attorney General has announced his intention to appeal that ruling, it remains to be seen whether the issue of these amendments will be resolved in court, or on the streets, as the main opposition party is calling for. Time will tell whether Kenya is able to combat terrorism effectively, or whether it sinks into dictatorship.
Ken Ogot SJ is a final-year theology student at the Jesuit School of Theology of Hekima College in Nairobi, Kenya.