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The Security Laws (Amendment) Act 2014

12 Dec

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:

  1. Changes to the Immigration Department functions and operations that require applicants for work permits to apply for them while still outside the country;
  2. 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;
  3. 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);
  4. 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.”

 

Public Order

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.

 

Conclusion

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.

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7 Comments

Posted by on December 12, 2014 in Politics

 

7 responses to “The Security Laws (Amendment) Act 2014

  1. mutongamaraigua

    December 12, 2014 at 1:21 pm

    Reblogged this on mutongamaraigua and commented:
    Chrenyan has captured my thoughts on the new proposed security bill very well. Sometimes we need as a country to think through issues critically before passing.

     
    • Chrenyan

      December 15, 2014 at 12:32 pm

      Hello Mutonga,

      Not sure how you saw this piece but thank you for reading, reblogging, and commenting.

      We need to critically think through issues all the time! It needs to affect our voting, our stand on issues, etc etc. I fully agree with you on this score.

       
  2. fredokono

    December 12, 2014 at 2:02 pm

    An insightful piece as always Brother Sam. To steal the words of one of my favourite thinkers: “When your response to everything that is wrong with the world is to say, ‘there ought to be a law,’ you are saying that you hold freedom very cheap. As long as human beings are imperfect, there will always be arguments for extending the power of government to deal with these imperfections. The only logical stopping place is totalitarianism — unless we realize that tolerating imperfections is the price of freedom.” – Dr. Thomas Sowell, Economist, Social Theorist, Political Philosopher, Author

     
    • Paul

      December 13, 2014 at 2:13 am

      And what was the context of Dr Sowell’s words? The war against terror?

       
    • Chrenyan

      December 15, 2014 at 12:35 pm

      Fred,

      I actually had not thought of it like that – that imperfections are the price to pay for freedom. Also the corollary thought that we cannot legislate for every kink in human nature. Dr. Sowell’s is a statement that can be stretched in both directions, but it lends much light to the argument of how to legislate for freedoms.

       
  3. Paul

    December 13, 2014 at 12:32 am

    Dear Chrenyan,

    Thank you for raising these issues. I followed the debate in Parliament and I am pursuaded that the issue is about drafting and construction of the law, which should be an easy enough challenge for a competent legislative institution to surmount.

    That said, I am not particularly convinced that the existing laws are adequate to address all the current security problems merely through enforcement. If you look at the way terror suspects are released on bail only to complete their unfinished acts, it will be easy to see how part of the legal framework keeps a judge hobbled.

    Corruption is a major problem in Kenya, but maybe it is so because we never had stringent enough laws, with serious penalties earlier on.

    I hear in China corruption earns you death, not even Death Row. Seeing how large their population, would it be too far-fetched to imagine that their laws are a deterrent?

    I think we should be calling upon Parliament to make good laws, without any pressure from the Executive, and expect the Judiciary to interpret these laws correctly.

    Otherwise the whole deal about the Sovereignity of the people in exercising their vote for their representatives, and the Separation of Powers, are precepts we are incapable of as a country, and we might as well lay down and die.

    Just my view, although I might need a healthy dose of realism and cynicism.

     
    • Chrenyan

      December 15, 2014 at 12:44 pm

      Hey Paul,

      The Jubilee Government has at least taken the first step and admitted that there are shortcomings in the law. Let us hope that we shall see a redrafting of this Bill to lasso it into the realms of reason and logic.

      Existing laws are more than adequate to solve the security problem through enforcement. I’m not sure if it is the case that terror suspects have in the past been released on bail. But bail can be denied, why is it then given? (Speaking of which, why were the Akashas released on bail the other day?) Is it against the law to release terror suspects on bail?

      When the President opened a website for the reporting of corrupt acts, he tacitly admitted that it is not the law that is a problem where corruption is concerned. It is enforcing these laws (how to stamp it out now that the laws are in place) that is a problem. The reason people continue to be corrupt in Kenya is that no-one is jailed. Making corruption punishable by death will similarly not reduce corruption in Kenya for the simple reason that no-one will die.

      The bottom line is that what we need is effective service delivery by those who claimed they were willing to transform Kenya when they sought our vote. Not new laws.

       

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