Security laws compound existing threats to democracy and media freedom

On December 18, 2014, the National Assembly held a special sitting on the security laws.

The proceedings were disrupted on the third reading necessitating the Speaker to adjourn debate twice, only for the chaos to continue when it resumed a third time in the afternoon. The world witnessed MPs assaulting one another and fighting on live television.

In the midst of the chaos, the Speaker continued with the proceedings, calling upon the MPs to vote and adopt the amendments to the Bill in blatant violation of Standing Orders.

Adoption or rejection of any proposed amendments can be adopted by acclamation ‘I’ and ‘Nays’ but in case any 20 MPs rise to their feet, the House must proceed in a division requiring actual voting by MPs present. It was impossible to determine whether there was a division since the purported adoption of the Bill was done when all MPs were on their feet. The next day, on December 19, 2014, President Uhuru Kenyatta signed the Bill into law.

While national security is of great importance and the government needs to address the challenges appropriately, the adoption of Bill and its subsequent signing into law by the President begs the question whether, first the process was pursued in compliance with the law and, second whether contents of the Bill respect the principles of human rights, democracy, and fundamental freedoms.

On process, it can be recalled that the government published the Bill on December 10, proposing major amendments to at least 22 laws but also impacting on several others.

MISLEADING

The memorandum appended to the law was misleading, stating that the Bill was “in keeping with the practice of making minor amendments which do not merit the publication of a separate Bill” yet the Bill made several substantive amendments to the Penal Code, Criminal Procedure Code, Evidence Act, Prevention of Terrorism Act and National Services Act, among others. It also creates sweeping surveillance powers for the authorities.

Apart from not involving the organs of implementation of the Constitution such as Kenya Law Reform Commission and Commission on Implementation of the Constitution, there were no meaningful public consultations. With the limited time availed, various stakeholders scrambled to put in memoranda and commentaries on the proposals contained in the Bill. The relevant National Assembly committees of Security and that of Justice and Legal Affairs did not offer a forum for the critical stakeholders to articulate their views on the Bill.

Still on process, in the chaos that characterised the debate and the purported adoption of the Bill, parliamentary staff including clerks participated in the adoption by shouting in acclamation or disapproval. When the Speaker had lost control of the House, the only prudent thing should have been to adjourn but not to allow abuse of parliamentary democracy. It appears there were strict instructions that the Bill must be adopted by crook or nook.

As a result of the new laws, militarisation of the critical security dockets is almost complete. Apart from the military itself, the immigration services, intelligence and now the Cabinet Secretary in charge of national security are all in the hands of military men. With the abrupt retirement of Inspector General of Police David Kimaiyo and the law having been changed on the appointment, I will not be surprised if the docket is also militarised.

LIMITING MEDIA

The new law prohibits the broadcasting of any information, which may undermine investigations or security operations relating to terrorism without authorisation from the National Police Service. It further criminalises anyone who publishes or broadcasts photographs of victims of a terrorist attack without consent of the National Police Service and that of the victim. Both offences are punishable by a term of imprisonment not exceeding three years or a fine not exceeding Sh5 million.

In the world of social media where photographs can be published from anywhere in the world, it would be interesting to see how the government will be seeking extradition of offenders who post images from overseas. Journalism is the biggest loser since such photos must be vetted before publication and yet news should be real time.

However, there are positive aspects in the new laws including the new Section 215A of the Penal Code which criminalises intentional insults to the “modesty” of any other person “by intruding upon that person’s privacy or strips such person”.

The offence is punishable by imprisonment not exceeding 20 years. However, it can also be interpreted that a journalist reporting on an affair involving two people could broadcasts photographs of victims of a terrorist attack without consent of the National Police Service and that of the victim. Both offences are punishable by a term of imprisonment not exceeding three years or a fine not exceeding Sh5 million.

BIGGEST LOSER

In the world of social media where photographs can be published from anywhere in the world, it would be interesting to see how the government will be seeking extradition of offenders who post images from overseas.

Journalism is the biggest loser since such photos must be vetted before publication and yet news should be real time.

However, there are positive aspects in the new laws including the new Section 215A of the Penal Code which criminalises intentional insults to the “modesty” of any other person “by intruding upon that person’s privacy or strips such person”. The offence is punishable by imprisonment not exceeding 20 years. However, it can also be interpreted that a journalist reporting on an affair involving two people could be intruding upon their privacy.

An important legislation on security ought not to have been handled in such acrimonious manner and I am certain that there is course of action in court to challenge both the process and some contents of the new laws.

Apollo Mboya is Secretary, Law Society of Kenya