Hurrying of Security Bill could lead to its downfall

In his speech on the day he announced that Interior Secretary, Joseph ole Lenku, and Inspector-General of Police, David Kimaiyo, would leave office as part of changes necessary to improve the country’s security situation, the President also announced that he had “directed my government’s security actors to engage with the members of the relevant committees of the Legislature, with a view to rectifying administrative and legal hurdles that limit our ability to deal with the very real and existential threat that we face”.

The President said he was expecting within the week, “a final report of their deliberations and recommendations for my consideration and further action” and that “to this end, I have written to the National Assembly to ask them to extend their sitting until this process is concluded.”

Putting together all the facts that have emerged, it is clear that the Security Laws (Amendment) Bill that was rushed through the National Assembly last week was the result of the report that the President said he was waiting for. His speech therefore provides the only publicly available information regarding the process that had gone into the developments of the Bill.

Ordinarily, legislation is preceded by consultations that seek to identify the problem to be resolved, and the measures necessary for solving the problem. A correct identification of the problem promotes the possibility that correct solutions can be found.

LACK OF RIGOUR

From the speech, it is clear the consultative process that went into the Security Bill was narrow and involved only “my government’s security actors” and unnamed “relevant committees of the Legislature”. Whatever consultation was necessary, it could have been extended to actors outside of the government but was not. This is a criticism and demonstrates a lack of rigour and inclusion in the consultative process.

The narrow nature of the consultative process is reflected in the solutions that were eventually proposed. It is clear that the President’s security chiefs see the problem as consisting of the new Constitution, which they regard as tying their hands and making it difficult to deploy a robust response to security challenges. It is not surprising that the solutions proposed, the ones that went in the Bill, are a series of amendments that take away civil liberties and also amend the Constitution informally.

Not all problems need a legislative response. The President seemed aware of this in his speech saying that “my government has invested heavily in terms of increasing the recruitment of security personnel and improving their welfare, providing vehicles for our security services, equipping them with the hardware and technology needed to keep Kenya safe”.

The legislative response that has resulted in the Bill was the President’s own idea. He said: “Despite this progress [the heavy investment in vehicles and personnel] we acknowledge some weaknesses in our security architecture.”

It is these weaknesses that had led him to direct the security actors to engage with the National Assembly with a view to finding a solution. The conclusion, therefore, is that the solution would be legislative in nature and the emergence of the Bill is the evidence.

FAILED INTERVENTIONS

However, Kenya has many examples of legislative interventions that did not improve the situations they were set out to sort out. The Traffic (Amendment) Act passed in 2012 is a good example. Designed to rein in the madness in the matatu industry, the Bill introduced new traffic offences and also significantly increased penalties for existing offences.

Two years later, it is clear that the Act did not change anything. More recently, following the increase in elephant poaching, the government has been discussing the death penalty for poachers. Even if this penalty is introduced, it will not end poaching if fundamental law enforcement problems are not addressed.

The Security Bill takes this old unsophisticated approach that the way to make an unwanted phenomenon to go away is to criminalise it with heavy penalties.

It is also interesting to consider how much time it has taken the government to process all this. The President’s speech said he had directed his security chiefs to start this process “last week” and had in the meantime asked the Assembly not to break for its recess as the consultative process might result in work for it.

Putting everything together, it is clear that the Bill is two weeks of work involving the security actors in the government, committees of the Assembly and finally the Assembly in plenary.

CONTENT OF LEGISLATION

While the President referred to a process that could possibly lead to legislation, he did not articulate the content of that legislation, which he could not have known at the time since according to his own speech he expected the report within the week. The effect is that the last week saw the surprise publication, tabling, and passage of legislative measures whose content had not been articulated anywhere before, and whose rationale has not been explained to the public.

Presumably, the President meant his words when he said: “We ask every Kenyan to take a principled stand against the evil of terror, and to support this war.” The people whose support the President craves need a little more respect than has been exhibited in the processing of this Bill.

It is clear that the Jubilee Government’s analysis of the country’s security needs remains weak and will not deliver solutions.

The Bill alienates public support, which the government needs to address insecurity, and merely consolidates the authoritarian image of the Jubilee government, without improving national security.

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