What’s better than strong anti-terrorism laws? A smart strategy

Accused of bringing a butter-knife-wielding chef to the anti-terrorism fight, the Jubilee Government appears to have swung to the other extreme, prescribing medicine likely to kill the patient without necessarily curing the disease.

The Security Laws (Amendments) Bill 2014 raced through two accelerated readings in Parliament this past week, propelled by Jubilee’s majority in the House and a population desperate for some response to the growing threat of terrorism.

The Bill could be passed as early as this week and signed into law by Christmas.

After the removal of Interior Secretary Joseph ole Lenku and police boss David Kimaiyo, the Bill to tighten security laws is the second of a three-pronged strategy that also includes less-publicised and desperately-needed operational changes in the country’s counter-terrorism setup.

The Bill represents something greater than the sum of its clauses – evidence that President Uhuru Kenyatta and his government have finally acknowledged the existential threat that terrorism poses to the country, and the effort required to deal with it.

WRONG APPROACH
However, the only thing worse than being lacklustre towards the terrorism threat is to overreact to it. One has to only look back over the years, even long before the October 2011 invasion of Somalia, and long before the Jubilee Government came to power, to see how long we remained oblivious and indifferent to the threat of terrorism. We must not over-correct into over-reaction.

The assumed intention of the Bill – to give the President more authority over the security agencies and to stiffen the penalties for acts of terrorism and complicity – presupposes, wrongly, that the problem is legal, and a weak set of laws.

It is an emotional and even understandable response but it is the right solution to the wrong problem. In the post 9/11 period, many countries across the world took advantage of US President George W. Bush’s “with us or against us” narrative to tighten their anti-terrorism laws.

President Kenyatta offered the same narrative in the aftermath of the recent Mandera quarry attack in which Al-Shabaab fighters dragged 36 miners out of their tents at night and executed them.

“A time has come for each and every one of us to decide and choose,” President Kenyatta declared. “Are you on the side of an open, free, democratic Kenya which respects the rule of law, sanctity of life and freedom of worship, or do you stand with repressive, intolerant and murderous extremists?”

WAR ON TERRORISM
That line in the sand presupposes a black-or-white scenario, in which one can’t oppose murderous extremists while respecting the rule of law in an open and democratic country.

It now appears to have coloured the perhaps genuine attempts to close any loopholes in the law but evidence shows strong laws are not a magic bullet solution to the threat of terrorism.

For instance, Britain passed the Counter-Terrorism, Crime and Security Act in December 2001 while Uganda passed the Anti-Terrorism Act in 2003.

This did not stop Al-Qaeda from bombing the London underground in July 2005, or Al-Shabaab from bombing Kampala five years later. Weak laws might be part of the problem but stronger laws are not necessarily the solution.

Similarly, while the response to terrorists, sponsors and sympathisers needs to be strong and robust, there is little proof to show that strong-arm tactics that violate the rule of law, generally, and the laws of the land, specifically, work.

We don’t have to go far to see this. The United States Senate this week released a report that criticises the CIA for torture and widespread human rights violations in its post-9/11 War on Terrorism.

Significantly, the report, relying on the CIA’s own internal documents, found no evidence to suggest that the use of torture had given the agency intelligence that it would not already have or would not otherwise have been able to obtain.

ELIMINATE SECURITY THREATS
As Senator Dianne Feinstein said, “No evidence that terrorism attacks were stopped, terrorists captured or lives saved through the use of [enhanced interrogation techniques].

CIA director John Brennan defended his agency but admitted that the cause-and-effect relationship between torture and confessions from suspects was “unknowable”.

Kenya’s own counter-terrorism strategy has been questioned, including in an investigative piece aired by the Doha-based television channel, Al Jazeera, last week, in which operatives claiming to belong to government hit-squads confessed to extra-judicial executions of alleged terror suspects and Muslim clerics such as Abubakar Shariff Ahmed aka Makaburi and Aboud Rogo Mohammed accused of offering them support and the cover of religious ideology.

Government has denied the claims but whoever is bumping off Muslim clerics at the Coast and elsewhere is adding bloody anecdotes to the victim narrative used by the recruiters who hang around mosques across the country, ensnaring youths into radical views and recruiting them into extremist violence.

Significantly, we have seen more terrorism attacks after these assassinations, not less.

Supporters of the proposed amendments say they will centralise command, control and political supervision of the counter-terrorism effort.

“The President must be given the powers to deal with the Inspector-General of Police and the Director-General of NIS if they do not deliver,” Mr Asman Kamama, the chair of the Parliamentary Committee on Administration and National Security, told the House last week.

President Kenyatta weighed in on the matter in his Jamhuri Day speech on Friday, defending the proposed amendments. “We have reflected profoundly and interrogated the adequacy of our laws and security institutions in meeting new security demands.

Our conclusion is that Kenya must enhance its ability to detect, monitor and eliminate security threats,” he said. “In conducting this urgently required necessary process, no freedoms are being curtailed unless you are a terrorist.”

MOI DAYS
Critics say clauses of the Bill that limit freedom of expression and the media, allow for telephone intercepts without court orders, and restrict political activities are a giant leap backwards in Kenya’s pursuit of civil liberties.

One official familiar with Kenya’s counter-terrorism strategy told the Sunday Nation that the response to the growing threat of Al-Shabaab, which has carried out a series of deadly attacks over the last 18 months, paints a mixed picture.

“Some good, some bad, but most of the legal changes definitely very retrogressive,” the official, speaking on condition of anonymity because of the sensitivity of the matter, told this newspaper.

“Many people are concerned about the increasing State House control over security and the rolling back of civil liberties. Holding suspects for one year without trial? Phone taps without court orders? Some might say it’s like a return to the Moi days.”

So what should Kenya do? Counter-terrorism experts say the most urgent reforms are at the top and at the bottom – the need to clarify command and oversight at the top of the operational chain, and the need to co-ordinate quicker and appropriate responses at the local or county level.

In other words, who should decide what to do when a dozen suspected Al-Shabaab fighters are spotted approaching a target in Mandera, who should act on the ground, and how to flatten the layers in-between?

ENFORCING EXISTING LAWS
Many of the proposals to flatten this security bureaucracy have been on the table for many years; focus must now turn to quicker execution and implementation. This might require the tweaking of a law or two but it demands a lot of political supervision.

More important than strengthening laws is enforcing the existing laws, for instance on immigration, that create the lawlessness within which terrorists hide.

The reason for the non-enforcement of laws is the elephant in the room – corruption, and its link to national security.

Al-Shabaab’s loss of territory in Somalia and, by extension, most of its control on the charcoal trade out of Kismayu should have undermined its financial position and ability to plan and organise attacks.

Instead, reports indicate that our own officials simply replaced the group’s officials in the trade. Such corruption, which helps finance the group and facilitates people and arms smuggling, poses a much greater threat to our national security than publishing a photograph of a terror attack victim – one of the “evils” the new Bill seeks to cure.

In his post-Mandera quarry attack speech, Mr Kenyatta appeared to put the country on a war footing. This has implications on the ground, including a larger and more visible deployment of the army in lawless areas, a war-time budget, and a rallying of citizens to the cause and to the course of justice, not a curtailment of their liberties.

GOOD GOVERNANCE

Patriotism and civil liberties must not be mutually exclusive – the question should not be whether Kenyans are with the government in the fight against terrorism, but whether the government is with Kenyans in building a peaceful and prosperous society governed by the rule of law.

Ultimately, part of the solution to terrorism lies in the nuanced and persuasive argument of soft power.

President Kenyatta, addressing the nation surrounded by Kenyan-Somalis and respected Muslim clerics, would offer a powerful and credible antidote to the false and poisonous allegation that the anti-terrorism operation is a war against Muslims in the country.

Our soldiers can bring stability to areas like Mandera but it will take an army of doctors to treat the sick and engineers to build roads to bring lasting peace to disaffected areas.

A strong response to terrorism is good in the short-term but a smart response, that includes an effective government and good governance, is always better in the long-run.