The February 23, 2015 ruling by a bench of five High Court Judges on the Security Laws (Amendment) Act, 2014, is hyped as a victory for the opposition and human rights fundamentalists in civil society and the media.
On the contrary, the verdict is perhaps one of the most judicious efforts to balance between the imperatives of security and those of civil liberties in the age of terrorism.
The ruling marks a giant leap in the evolution of Kenya’s anti-terrorism architecture.
Kenya has been on the vortex of terrorism. Yet, it has the most under-developed counter-terrorism architecture in the region. Tanzania adopted its Prevention of Terrorism Act in 2002 and Uganda enacted the Anti-Terrorism Act in 2002.
Parliament shot down its proposed Suppression of Terrorism Bill amid protests in the streets of Nairobi against the law, throwing the country into a prolonged legal vacuum.
This vacuum has been costly. Although Kenya adopted the Prevention of Terrorism Act in October 2012, this was a classic too-little-too-late scenario.
Terrorist attacks on the Kenyan soil have increased steadily from less than 20 at the end of 2011 to an average of 30 in 2012-2014. Nearly a thousand people have lost their lives in terrorism-related violence in the same period.
The killing of 28 non-Muslim passengers on a bus on November 22, 2014, and the follow-up massacre of 36 quarry workers on December 2 in Mandera County brought the issue of terrorism to a tipping point. On December 11, the government took the Security Laws (Amendment) Bill, 2014, to the National Assembly.
WENT TO COURT
Parliament passed the Bill on December 18, 2014 and President Kenyatta signed it into law the next day.
But the Coalition for Reforms and Democracy (Cord) went to court on December 23, 2014 and won a reprieve when Justice George Odunga of the High Court put on ice eight sections of the new Act, including sections 12, 15, 26, 29, 48, 56, 58 and 64.
And on February 23, five judges — Isaac Lenaola, Mumbi Ngugi, Hillary Chemitei, Hedwig Ong’udi and Joseph Onguto — ruled on the constitutionality of the eight sections suspended by Justice Odunga.
Renditions of the legal tussle on the new Act are coloured by the political calculations of the 2017 elections, with some claiming that the recent judgment was a win for Cord and struck a blow against the government.
However, claims of “victory” are unqualified and misplaced. Revealingly, the judges considered only eight (8) out of a total of 98 clauses or 8.2 per cent of the Security Laws (Amendment) Act.
They left intact 91.2 per cent of the Act.
A deeper scrutiny reveals that the judges made a bold and reasoned attempt to strike a perfect balance between human rights and security in what has emerged as a judgment judiciously calibrated to strengthen the government’s hand in the fight to contain terrorism and crime while shielding civil liberties from the imperatives of counter-terrorism.
On human rights, the judges focused on three areas. The first is the right of accused people during trial. They rejected parts of Section 16 on disclosure of evidence, declaring disclosure of evidence as “very important to enable the accused prepare his defence”.
They rightly argued that failure to disclose evidence is “totally unjustifiable as it would lead to trial by ambush”.
The court also rejected parts of Section 26 of the Act provided that silence would automatically be assumed to be proof of guilt and upheld the right of an accused person to remain silent during proceedings.
Second, the judges ruled that Section 48 of the Act which limited the number of refugees residing in Kenya to no more than 150,000 violated Kenyan laws and international treaties. Apparently, Kenya was borrowing a leaf from “Fortress Europe” where Europe and America have introduced legal regimes aimed at shutting out refugees.
Third, the judges declared Section 12 of the Act as “unjustifiable in any democratic society” because it limited media freedom by slamming a Sh5 million fine or three years’ imprisonment for those found guilty of publishing or broadcasting materials or images on terrorist attacks. But broadcasting obscene and gory images and offensive materials from the scene of terrorist attacks will remain a contested and unfinished business in the war on terrorism.
On security, the judges declared from the outset that they would not hinder the fight against terrorism and insecurity. Accordingly, they retained intact those sections of the Act aimed at bolstering institutional coordination and “chain of command” in the anti-terrorism architecture.
First, the court upheld section 86 which amended the National Police Service Act to give the President power to appoint the Inspector-General of Police Service and restore the requisite “chain of command” in the police force.
However, it rejected the created National Police Service Disciplinary Board modelled on the court martial system in the defence forces to instil and maintain discipline and swiftly punish offenders.
Second, the court upheld sections allowing the Registrar of Persons to revoke an identity card and the National Intelligence Service (NIS) to tap private telephone calls. Third, it also sustained the government’s position to limit refugees’ movements, and to confine them to designated areas.
Despite the judgment, the new security laws have introduced into the legal nomenclature a slew of new vocabulary, phrases and concepts aimed at redefining the new environment in which Kenya is fighting terrorism. Kenya’s new anti-terrorism architecture is still work in progress, but it signifies the triumph of reason in Kenya’s reformed Judiciary.
Prof Peter Kagwanja is Chief executive of Africa Policy Institute and former Government Adviser.