The Prevention of Terrorism Act empowers the Inspector-General of Police, where he has reasonable grounds to believe that an entity is involved in terrorism, to recommend to the Cabinet Secretary to declare it a “specified entity”.
A collection of specified entities are, in effect, a black list created and controlled by the Cabinet Secretary in charge of Security, on the advice of IG.
The IG is required to invite, in writing, the organisation proposed to be declared a specified entity an opportunity to oppose its intended listing.
The Cabinet Secretary can remove an organisation from the list and must, before listing an organisation, give written reasons for doing so within seven days.
When, following the Garissa attack, the IG published a list in the Gazette containing 85 entities, which he labelled as List of Entities Suspected to be Associated with Al-Shabaab, it was presumed that he was leading in the creation of a terrorism blacklist as provided for by the Act.
However, contrary to the Act, the IG had not notified the concerned organisations of his intention to blacklist them. Therefore, no legal process supports the list that the IG published in the Gazette.
To address complaints that no opportunity had been provided for the listed organisations to defend themselves, the IG subsequently announced through the media that the National Counter-Terrorism Centre would give the concerned entities a hearing.
However, the proceedings at the Centre took the form of organisations being required to show why they should remain in operation, rather than being confronted with accusations supporting the IG’s conclusion that they were terrorist entities.
This was an inversion of the legal duty and also left organisations in the difficult position of having to prove a negative, that they were not terrorist entities.
Last week, the Non-Governmental Coordination Board announced that three of the organisations that the IG had listed, including Muslims for Human Rights (Muhuri) and Haki Africa, had been deregistered.
The process leading to the cancellation of their registration commenced with the freezing of their bank accounts and the suspension of the medical facilities that their members of staff enjoyed by virtue of employment. The Kenya Revenue Authority also came in and carted away their office records, thus turning this also into a tax issue.
Thereafter, the NGO board was brought in and issued Muhuri with a 14-day notice to show cause why it should not be deregistered on the grounds of violating the provisions of the NGO Coordination Act.
Although Muhuri complied, furnishing the board with a detailed written reply, the Board went on to announce the ban, done through social media, without further reference to Muhuri.
Before that the government had tried to apply pressure on the funders of the two organisations to withdraw their funding, the consequence of which might have led to their collapse.
Since coming to power, Jubilee has had much success in contests against Western governments. However, it failed on this occasion, with both Norway and Britain publicly affirming Muhuri and Haki.
The government’s actions since publishing the list of suspected terrorist organisations raise some concerns.
First, casualness pervades the management of the process that has led to the purported ban of Muhuri and Haki. First fingered as terrorist entities, these organisations were then taken through the tax collector and, to sever their financial resources, they were then bad-mouthed before their funders.
When these tactics did not work, they were handed over to the NGO Board, which has purported to ban them through an announcement made only on social media.
The presumed reason for the ban does not involve terrorism, the alleged original sin, but a minor transgression of the NGO Act. What kind of government governs this way?
Banning an organisation is a drastic measure, which shatters livelihoods and hurts innocent business relationships that had been established around it.
Where the law authorises banning, it also usually provides clear procedural safeguards for the exercise of such powers.
Although the Prevention of Terrorism Act has clear procedures for banning organisations, those provisions have been set aside and, at every stage, the concerned officials have acted only in accordance with their wisdom, and without reference to any law.
Whereas bureaucracies ordinarily govern through written decision-making, informality typifies the dealings of government regarding counter-terrorism.
Neither the IG, nor the Cabinet Secretary has created a single document evidencing compliance with the legal duty to provide written information to entities affected by the drastic decisions they have taken. It seems that officials have chosen to govern orally or through social media, making it impossible to verify the basis of the claims they make.
Secondly, on the available evidence, it is tempting to conclude that the government lacks a counter-terrorism plan. In the face of public pressure to be seen to be addressing insecurity, the framing of NGOs is an appealing scapegoat.
Thirdly, why is so much effort being put into putting the few Muslim-led NGOs out of business? The answer seems to be that these are the only organisations speaking up against extra-judicial executions, a method that has come to characterise official responses to the threat of terrorism.
By speaking up, these organisations make the government to look bad. If these organisations were terrorist outfits, as officially alleged, it should be possible to arrest and charge their boards with terrorism.
However, it seems that the reason the government is pushing against these organisations is because it wants the space to respond to insecurity without the criticism that these organisations provide over its own shortcomings.