Fear of police listening in on phone calls turns Muslims against anti-terror Bill

Ten years after a law to combat terrorism was drafted in Kenya, with amended versions mooted in between the years, the country remains without legislation, even with increasing terror threats.

Civil society and Muslim human rights groups have, over the years, led campaigns against such law, forcing the government to withdraw the Suppression of Terror Bill, 2003, from Parliament, the only time it came close to becoming law.

The government then brought a remake three years later, the Anti-Terrorism Bill, 2006, which was also shot down at parliamentary committee level.

Of late, the government has drafted the Prevention of Terrorism Bill, 2012, and it is expecting a smooth ride this time round since some of the hostile groups have softened their stances.

The Association of Muslim Organisations in Kenya (Amok) was the first to support enactment of an anti-terror law in Kenya, setting a precedent, and similar groups have joined in.

The groups have not expressly opposed the Bill but want to be involved in the drafting, with a view to making some amendments, before the proposed law is taken to Parliament. The draft law is currently pending before the Cabinet.

Amok director-general Fazul Mohamed said the organisation would hold meetings in mosques and schools to mobilise support for the new law.

“Terrorism is no longer an international problem. It is here with us and we can no longer ignore it and a good law can really help in dealing decisively with it, and the inclusion of other interventions, of course,” he said.

Mr Mohamed added: “But we have a problem with the way the Bill defines terrorism. It is too general while we think the definition should be specific. If left without changes, a rogue police officer can abuse the law and arrest someone for making noise on the streets and press terrorism charges.”

The law also seeks to give the police immense powers when spying on suspects, including taping telephone conversations to collect evidence against them, another provision which Amok is uncomfortable with, saying it violates human rights.

Mr Mohamed led Amok officials to the Internal Security ministry headquarters in a bid to have permanent secretary Mutea Iringo agree to their proposals before the Bill is discussed by the Cabinet.

In part, the Bill defines terrorism as “an act or threat of action that involves death, serious bodily harm, serious damage to property, endangers a person’s life, creates serious risk to the safety and health of the public, involves use of firearms or explosives”, among others.

Seize property of suspects

A section of MPs has vowed to fight the Bill once tabled in Parliament.

Nominated MP Sheikh Mohamed Dor told a meeting of Muslim groups in Nairobi that he was opposed to it if the government presented it without changes.

“Previous attempts faced criticism.  I can assure you that this Bill will be rushed the way they do it but we have learnt a lesson. As secretary-general of the Council of Sheikhs and Imams in Kenya, we don’t support this Bill as it is,” he told the participants.

The meeting was attended by officials of the Muslim for Human Rights (Muhuri), the Muslim Rights Forum and the Empowered Muslim Youth Initiative.

Sheikh Dor is uncomfortable with the provision that empowers the government to seize property of suspected terrorists.

“This is just an avenue of taking away property (of citizens),” he said.

Nominated MP Amina Abdallah, who is also opposed to the enactment of the Bill as it is, told the forum: “There are so many things we need to work on, including definition of terrorism. We know it is going to be used to intimidate a certain clique in this country.”

Sheikh Hassan Omar of the Council of Imams and Preachers of Kenya has cautioned that the Bill should be implemented while upholding the rule of law.

In supporting the Bill, Amok chairman Sheikh Athman Mponda said: “We have lost many young men who have been recruited (into Al-Shabaab) and taken to Somalia. They were recruited because they are poor and others joined because of lack of religious knowledge. Where I come from, I know of nine such young men who have been killed in Somalia.”

Upon receiving the petition by Amok, Mr Iringo promised to involve other participants other than those from the government to discuss the Bill, with a view to introducing amendments.

“We shall ensure all stakeholders are involved. The Bill is in line with the Constitution as it preserves human rights and it ensures that the courts are involved before police take action such as occupying seized property,” the PS said. The draft law has provisions for a range of new and stiffer penalties that target terrorists and their associates, including life imprisonment.

Human rights defender Al-Amin Kimathi said: “At a time the country is faced with great threat from terrorism, we should ensure emotion will not override reason, otherwise we will have a rushed Act. And so much power is given to police yet they are not accountable.”

He wants the Bill to become law after the pending police reforms are completed and is also uncomfortable with clauses that provide for ex-parte hearings in court.

“As a matter of legal and political reality, Kenya must have it (anti-terror law). There must be police and security services reforms before enactment of such a law,” said Mr Kimathi.

If Parliament passes the Bill into law as it is, victims of terror attacks would be compensated. The funds would come from disposal of property seized from terrorists as well as fines imposed on those convicted by courts of law.

In throwing out the Bill the government presented in 2003, MPs said it was sponsored by the United States Government, it was anti-Muslim and was targeting Kenyan Muslims for harassment in the name of fighting terrorism.

Mr Mohamed said the previous Bill gave the Internal Security minister powers to detain terror suspects unlike the current one that outlaws such acts.

“This Bill says a suspect must be produced in court not more than 24 hours after being arrested. It is in line with the Constitution. We have read the Bill, sought legal interpretation from lawyers and we want all stakeholders to do likewise before thinking of any opposition,” he added.

According to the Bill, the maximum life imprisonment would be handed to anyone convicted of causing the death of a person by engaging in a terrorist act.

Associates — including those caught sheltering suspects, offering training premises, fund-raising, recruiting youth into terror groups, offering military training to recruits, providing money and weapons as well as helping suspects hide from the police — would be jailed for between seven and 20 years.

Those who escape custodial sentences would be required to pay a fine as high as Sh1 million.

Mr Kimathi is also uncomfortable with the clauses on associates, saying they might be used to victimise innocent citizens.

Last year, the United Nations Monitoring Group on Somalia and Eritrea reported that former Tourism minister Najib Balala and nominated MP Amina Abdallah contributed money for mosques and youth projects in Kenya, but the funds ended up with Al-Shabaab, the Somalia-based terrorist group.

Intercept communication

Section 30 of the draft law reads: “A police officer of rank of chief inspector may for the purpose of obtaining evidence apply ex- parte to the High Court for an interception of communication order.”

The subsequent sub-section says the court may authorise “the police officer to enter any premises and instal any device for the interception and retention of specified communications, and to remove and retain such device”.
The Bill further requires service providers like Safaricom and Airtel to intercept communication required for investigations.

This is, however, not a new practice in Kenya because police, working with telephone service providers, have cracked many cases using this technology, only that it has no legal status.

Banks and financial institutions would also have a crucial role in the war against terrorism. Every three months, they would be required to report to the Central Bank, giving details of transactions involving accounts and properties owned by groups or suspects flagged by the government.