Kenya can learn what to do and what not to do from US statutes on terrorism

There is a growing argument that the newly enacted Kenyan security laws are better than the US Patriot Act and Homeland Security Act. First, the Homeland Security Act is predominantly a reorganisation law that set up the Department of Homeland Security and its sub-agencies and does not contain major prescriptions.

The US Patriot Act of 2001 has undergone major transformations and most of the contentious provisions have either been struck out by federal courts, amended by Congress, or expired.

Both the US Patriot Act of 2001 and the Kenya Security Laws (Amendment) Act 2014 were a response to a terrorist attack of major proportions within the interior. Both were passed within a month of the trigger attacks — for the US, it was the attacks of 9/11 and for Kenya, the Mandera attacks.

They both exploited the resulting public emotion. Both laws contained amendments to other public laws and were aimed at strengthening measures against terrorism. The Kenyan law, however, contains laws aimed at other purposes.

The US Patriot Act was passed in an environment of general consensus among the American public after a successful campaign that excited public emotion and appeased perceived target groups. The Kenya security laws were passed in an environment of dissent and amid chaos.

The most controversial portions of the US laws included authorisation of enhanced surveillance, wire tapping of private communications, roving wiretaps, sneak and peak warrants, and access to business records in foreign intelligence investigations.

All these, however, require a warrant or order from a judicial officer before they can take place. The US Act also contained provisions permitting warrantless wiretapping of conversations but was specific and only allowed this and interception of communications when there was “a reasonable basis to conclude that one party to the communication is a member of Al-Qaeda, affiliated with Al-Qaeda, or a member of an organisation affiliated with Al-Qaeda...” These provisions remain, but have been substantially watered down.

The idea of re-authorisation of provisions in the law every four years is to serve as a safeguard by providing for periodic review of the law by Congress to determine how well it has worked, the extent to which it infringes civil liberties as determined by the courts, and to determine whether it is necessary to continue with it or whether it continues to serve the purpose for which it was/is intended.

The Kenya Act does not have this crucial safeguard and gives extensive discretion to security agencies and officials.

An immensely controversial aspect of the US Act is the designation of Guantanamo Bay as a prison/camp for holding suspected terrorists indefinitely as they await trial by military tribunals.

OUTCRY

There has been international outcry and condemnation of some of the practices at the camp that involve torture and mistreatment of suspected terrorists.

For the most part, due to the outcry, many of those practices have been scrapped and enhanced monitoring introduced to prevent such practices. Kenya does not have such a camp or programme similar to Guantanamo.

Another contentious piece of the Patriot Act is provision that permits the use of enhanced interrogation techniques, which have been the subject of international condemnation in the past month.

Controversial aspects of the Kenya Security Act include claims that most of its provisions are vague, ambiguous, or broad, making it susceptible to abuse.

Secondly, the Kenyan Act is not purely an anti-terrorism law as it contains laws that are not related to terrorism, such as criminalising public stripping and limiting media freedoms.

We have not had time to see how well the Kenya Security Act will work. Moreover, there is already a court case challenging its constitutionality.

Hopefully, this litigation will resolve some of the faults in the law and make it more acceptable. However, we should be concerned about the Kenyan law as it has the potential to be used to target private citizens instead of suspected terrorists.

It places wide discretionary powers in the hands of incompetent and often corrupt public officials, creating a recipe for disaster.

Ms Njogu is an attorney and counsellor at law in the US. ([email protected])