In the run-up to either the first or the second referendum on a new Constitution, I recall my Dad drily remarking that we did not need a new Constitution in order to jail certain corrupt individuals. He was right. Now, as then, we are being asked to believe that new laws are necessary in order to contain a new threat – terrorism. And now, as then, we need to carefully examine whether this is true.
The Security Laws (Amendment) Act, 2014, has a broad scope and seeks to make numerous changes to the law. It includes some excellent provisions, such as:
- Changes to the Immigration Department functions and operations that require applicants for work permits to apply for them while still outside the country;
- The strengthening of the Evidence Act to allow digital evidence and to allow any police officer (as opposed to a particular one) to submit evidence;
- Changes to the Investment Promotion Act that require investors to be sponsored by Kenyan citizens (this is how Gulf states have kept their wealth within their own nations);
- Changes to the Labour Institutions Act that require employment agencies to obtain Government approval before sending Kenyan citizens abroad.
However, like the proverbial Trojan Horse, the Bill slips in a lot of bad with the good. Let’s look at 4 key areas.
What is terrorism?
The first point to note is that the new Bill does not in fact define terrorism. It also speaks of acts of terrorism, without defining what these may be. This ambiguity and open-endedness is a grave concern. If terrorism can be construed to mean almost anything, hundreds of people could be arrested as “terrorists” without explanation. Then there are further provisions that rest on the concept of the undefined concept of terrorism, for example: “A person who publishes or utters a statement that is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism commits an offence.” In the absence of a definition for terrorism or terrorist acts, publishers and the media are at risk of being jailed for up to 14 years (there are no fines) for publishing whatever the Government decides has “indirectly encouraged a person to prepare a to commit an act of terrorism.”
The new Bill states: “Any person who unlawfully convenes, organizes or promotes a public rally, meeting or procession or neglects or refuses to comply with any law relating to public meetings commits an offence… The Cabinet Secretary may by notice in the Gazette designate the areas where, and times at which public meetings, gatherings or public processions may be held.” It is a matter of great puzzlement to many as to how these provisions will help us to fight terrorism. Terrorists are not known to hold public meetings/gatherings or processions. So who exactly does this law target? Concerned citizens who try to hold an ineffective Government accountable by holding peaceful demonstrations? In a democratic society the right to demonstrate should be protected, and indeed our Constitution enshrines it in Article 37. Indeed it has been said that public outcry at the President’s assertion that security and safety is the citizens’ own responsibility and the subsequent demonstrations contributed to the dismissals of the Immediate former Cabinet Secretary for the Interior and the Inspector-General of Police. We would do well to continue to protect this right.
Interception of Communications Without Warrant
The new Bill also allows the national security organs to intercept communication without warrants. We understand the grave risks associated with terrorism but this provision can also be construed as a contravention of Article 31 of the Constitution (The Right to Privacy), which accords every person the right not to have the privacy of their communications infringed. It may have been better to have a way to expedite terrorism-related search warrants in the Courts, rather than create the potential for Kenyans’ right to privacy to be revoked.
Security of Tenure
The principle of security of tenure is supposed to ensure that a competent person is able to perform their official duties without the fear of being sacked. The risk, of course, is that an incompetent person may be appointed to the position, in which case the security of tenure would protect the office-holder rather than the public. The Constitution mitigates for this in at least two ways. The first way is that the office-holder can be removed for incompetence. The second way is through (Parliamentary) vetting. The President’s nominees to various positions are supposed to be subjected to scrutiny by a supposedly objective Parliament (representatives of the people) such that ineffective people are weeded out at this stage.
Unfortunately, rather than appoint the best individual for the job, our leaders tend to appoint someone with a view to balancing tribal mathematics, (in)competence notwithstanding. Parliament, believing that opposing the President’s choice is playing into the Opposition’s hands, rubber-stamps the President’s choice (a process that is even further compromised by despicable tendencies such as the tyranny of numbers). When the individual proves incompetent, it then proves constitutionally difficult to remove them.
The way to solve this problem is to appoint competent people to office, and to use the grounds of incompetence to remove them, or else have them resign (as we have seen). Not to revoke security of tenure.
The Government would have us believe that to oppose the new Bill is to be on the side of the terrorists. This is a dangerous and fallacious argument. If we take this thinking to its logical conclusion, it will not be long before the act of opposing Government incompetence and corruption will fall neatly into the vague non-definitions of terrorism we saw earlier. Insecurity in this country is not a legal problem. Our borders are porous – a fact that was most crudely illustrated by the fact that our President’s own escort vehicle was stolen and somehow conveyed into Uganda. Corruption and graft are endemic – the rampant smuggling of sugar and charcoal across the Somali border has the political backing of wealthy politicians. There are now about 10,000 police assigned to guard VIPs – about a quarter of the police force if a 2010 report is to be believed. There is no accountability in the security forces – it is only two weeks ago, over one year after Westgate, that we saw senior officials being held to account for incompetence.
We do not require new laws to solve these problems. What is required is the enforcement of existing laws.