Tuesday, December 16, 2014
The Security Laws (Amendment) Act, 2014 seeks to make numerous changes to the law. It includes some excellent provisions on immigration, digital evidence and the employment of Kenyans abroad. However, the Bill also slips in a lot of bad with the good.
The bill does not in fact define terrorism or acts of terrorism. This 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." This vagueness opens the way to the curtailment of Kenyans' freedom.
The bill states: "Any person who unlawfully convenes, organises 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." Terrorists are not generally known to hold public gatherings. So who exactly does this law target? Concerned citizens who try to hold an ineffective gvernment 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. It has even been said that public demonstrations at the President's indication that security is the citizens' own responsibility contributed to the dismissal of Joseph ole Lenku and the resignation of David Kimaiyo. We would do well to continue to protect this right.
The proposed Act allows the national security organs to intercept communication without warrants. While we understand the grave risks associated with terrorism but this provision is 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 is better to legalize the expedition of terrorism-related search warrants in the Courts than to create the potential for Kenyans' right to privacy to be revoked.
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 law 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.
Unfortunately, rather than appoint the best individual for the job, our leaders tend to appoint people with a view to balancing tribal mathematics, (in)competence notwithstanding. Parliament rubber-stamps the President's choice, then when the individual proves incompetent, it proves constitutionally difficult to remove them.
The way to solve this problem is to appoint competent people to office, and to remove them on grounds of incompetence, or else have them resign. Not to revoke security of tenure.
The President would have us believe that to oppose the Bill is to take the terrorists' side. This is a dangerous and fallacious argument. If we take this thinking to its logical conclusion, it will not be long before 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 Somalia border enjoys 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.