EXPANDED POWERS, NEW OFFENSE IN KENYA

The Kenya government is pushing a raft of changes to security laws that if enacted would return the country to the dark days of dictatorship. An analysis of the Bill by the country’s statutory human rights body reveals that the proposed changes are momentous and seek to amend the Bill of Rights without a referendum and fundamentally alter the principles of criminal justice.
Articles 62 through 66 of the bill amending the National Intelligence Security Act broaden the powers of security officials to arrest and detain people and could violate due process rights. The bill expands the powers of the National Intelligence Service (NIS) to stop and detain suspects, search and seize private property, and monitor communications without a court warrant. The bill seeks to significantly expand the powers of intelligence officers. Such powers had been withdrawn in the 1990s after the then-Special Branch, now the NIS, was accused of the torture of political activists and of detaining them for several years without trial. 
Article 62 authorizes NIS officers to ‘do anything necessary to preserve national security’ and to detain people even on suspicion of ‘engaging in any act or thing or being in possession of anything which poses a threat to national security.’ Other amendments that propose alarming changes to current legislation include:

• Article 18, to enable police to extend pre-charge detention for up to 90 days with court authorization, well beyond the 24-hour limit that Kenyan law currently allows.
• Article 19, to allow prosecutors to not disclose evidence to the accused if ‘the evidence is sensitive and not in the public interest to disclose.’ 
• Article 66, to enable NIS officers to carry out ‘covert operations,’ broadly defined as ‘measures aimed at neutralizing threats against national security.’
Several other provisions introduce new, broadly defined offenses that could be used against people who associate, knowingly or not, with terrorist suspects, the organizations said.For example, article 72, section 9(a), on ‘facilitation of terrorist acts’ punishes ‘a person who advocates, glorifies, advises, incites, or facilitates’ acts of terrorism. This language could be used against the lawyers of suspects, (some Kenyan lawyers fear) or to limit speech. The offense is punishable with up to 20 years in prison.


Article 73, section 12(a) (2), creates a presumption that the ‘unlawful possession of improvised explosive devices, assault rifles, rocket-propelled grenades or grenades shall be presumed to be for terrorist purposes’ – placing the burden on the defendant to prove they were not using the weapon for terrorist purposes. The law provides punishment of up to 20 years in prison for anyone who uses a weapon for purposes of terrorism in committing an offense. The bill also would amend Kenya’s refugee laws, including article 58, which would cap the number of refugees in Kenya at 150,000 and compel refugees and their families to stay only in designated camps while their applications for asylum are processed.The proposal could result in forced return, or refoulement, of asylum seekers when the upper limit of refugees and asylum seekers is reached. Kenya, which now hosts more than 600,000 refugees, could be forced to expel refugees and asylum seekers to comply with this provision. The provisions contravene both Kenya’s Refugee Act of 2006 and international law, including the Organization of African Unity (OAU) Convention Governing the Specific Aspects Relating to Refugee Problems in Africa, which prohibit denying refugees and asylum seekers entry into the country. 

RESTRICTIONS ON SPEECH, MEDIA

The security bill includes provisions that would make it harder to expose and criticize violations by security forces, the groups said.

Article 75, section 30(a) of the bill would punish with up to 14 years in prison anyone 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.’ This overly broad provision could be interpreted to apply to social media or any other public forum. 

The bill expands the understanding of ‘radicalization’ to possibly include activism, with article 73, section 12(d), describing ‘a person who adopts or promotes an extreme belief system for the purpose of facilitating ideologically based violence to advance political, religious and social change.’ The unclear language could be interpreted to prosecute political and human rights activists, with sentences of up to 30 years. 

Article 75, sections 30(f) (1) and (2), also broadly prohibit broadcasting any information likely to undermine investigations or security operations without police authorization and prohibits publishing or broadcasting photographs of victims of a terrorist attack without police consent. 

RESTRICTIONS ON ASSEMBLY AND ASSOCIATION

The security bill would limit basic rights to freedom of assembly and association with vague provisions subject to abuse, the groups said. The proposals create even greater concern considering the current hostility toward non-governmental organizations working on governance and human rights in Kenya.

Article 4 would authorize the cabinet secretary for interior, a presidential appointee, to decide when and where public meetings can be held. Kenya has a history of retaining executive control over public gatherings that was used to restrict freedom of peaceful assembly during the Moi government.

The bill in article 107 would amend the Public Benefits Organizations (PBOs) Act, 2013, giving full discretion to the authority responsible for registration of organizations to classify organizations and, in consultation with the cabinet secretary, to review the classification.

CONSTITUTIONAL PHILOSOPHY 

3. Chapter One of the Constitution of the Republic of Kenya begins with affirming the sovereignty of the people[5] Constitutional supremacy[6] and obligates everyone to respect, uphold and defend the Constitution. The Constitution grants a robust Bill of Rights, creates various institutions, and provides guiding principles and national values to deliver the promise of the new Constitution.

4. KNCHR appreciates and acknowledges that security and development are integral components of human rights and supports the government’s efforts to addressing the spiraling insecurity in the country. However, there is need to balance a tough government stance on security alongside its human rights obligations under national and international law. Towards this end the ongoing security measures and policies should be consistent with human rights standards and principles and must ensure meaningful civilian oversight of security institutions and security policies. There is urgent need to prioritize security sector reforms as detailed in the Ransley Task Force Report[7] . 

C. LAWS AMENDED

5. The Bill seeks to amend 22 Laws of Kenya namely; Public Order Act (Cap 56), Extradition (continuous and foreign countries) Act (Cap 76), Penal Code (Cap 63), Criminal Procedure Code (Cap 75), Prevention of Terrorism Act (2012), Sexual Offenses Act (2006), Registration of Persons Act (Cap 107), Evidence Act (Cap 80), Prisons Act (Cap 90), Firearms Act (Cap 114), Radiation Protection Act (Cap 243), Rent Restriction Act (Cap 296), Kenya Airport Authority Act (Cap 395), Traffic Act (Cap 403), Investment Promotion Act (Cap 485), Labour Institutions Act (2012), National Transport Safety Authority Act (2012), Refugee Act (2006), National Intelligence Service Act (2012), Kenya Citizenship and Immigration Act (2011), National Police Service Act (2011) and Civil Aviation Act (2013),Public Benefits Organizations Act,2013. 

6. The Memorandum of Objects and Reasons states that “The Security Laws (Amendment) Bill 2014 is in keeping with the practice of making minor amendments which do not merit the publication of a separate Bill and consolidating them into one Bill”. However, an analysis of the Bill reveals that the proposed changes are neither minor nor miscellaneous and should have been amended through various Acts as is the procedure. They are momentous and seek to amend the Bill of Rights and fundamentally attach the principles of criminal justice. Accordingly, Article 255 states that any changes to the Bill of Rights require a referendum. This proposals impact on several other Acts of Parliament including the laws relating to the County Governments. They further erode the principle of separation of power by giving enormous powers to the executive.

D. KEY CONCERNS

(i) Process: KNCHR is concerned that contrary Article 118(b) Parliament has not facilitated meaningful and effective engagement of the public with the proposed Bill. The Bill was published on 10th December 2014 and was not made immediately accessible before it was debated. The tight timelines given by the Departmental Committee on the Administration and National Security for making submissions have limited effective public participation given the complexity of security issues. Art.10 of the Constitution obligates all state organs (including parliament) to observe the national values and principles of governance which include participation of the people; inclusiveness, human rights, non-discrimination, transparency and accountability;

(ii) Unconstitutionality of a number of provisions: Most of the main proposals in the Bill are in conflict with the Constitution or will upon implementation result in a limitation of the Bill of Rights.

(iii) Article 238 provides that National Security shall be promoted and guaranteed subject to the authority of the Constitution and Parliament. Further, that the national security shall be pursued in compliance with the law and with utmost respect for the rule of law, democracy, human rights and fundamental freedoms. This is an absolute requirement and not subject to the exercise of discretion. 

(iv) The Constitution provides for separation of power between the executive, legislature and judiciary. The current proposals shift this balance by promoting an exceedingly powerful executive, removes the oversight from Parliament with no other accountability to any other institution.

a. Freedom of Assembly and Association: Clause 4, 5 and 7 proposes to amend the Public Order Act so as to give powers to the Cabinet Secretary to designate areas where and times at which public gatherings or public processions may be held under Article 36. This contravenes Articles 10, 36,37 and 119. The limitations have the effect of negating the essence of the right and gives unfettered powers to the Cabinet Secretary without any oversight from Parliament. The current law requires an individual to notify the authority, give details of the purpose, date, duration, location and route of the procession are adequate. Amend: the CS should Gazette designated areas and times when public meetings should be held only after public participation, public review and approval by Parliament. This must contain a rationale. In respect to meetings, this can only be limited only in the interest of national security and order.

b. Clause 107 and 108. It is not clear how the proposed amendment to the Public Benefit Organisations Act addresses the security challenges with the proposed classification. This is not even mentioned in the memorandum of the bill. This only signifies an attempt to maintain control over these organisations especially those dealing with human rights and governance. The Cabinet Secretary gazetted a multi-stakeholder taskforce that is supposed to consider what changes needs to be put in place before the PBO Act is operationalised. Amend: delete.

c. Clauses 66, 75 and 80. The general international standards on freedom of assembly require that unnecessary restrictions be avoided. There is a presumption in favour of holding peaceful assembly without restrictions under Article 37. Any restrictions to this freedom must be based on clear evidence, must be comprehensive, purposeful and in keeping with international human rights law. The restrictions, if any, should be proportional and the authorities should prefer the least intrusive means to achieve the legitimate objective they pursue. The focus should be on the stated intentions of the organizers of an assembly rather than on the possibility of disorder. Therefore the authorities have the onus to ensure there is peaceful assembly rather than using the possibility of disorder to restrict or ban an assembly. Delete

d. Freedom of Expression and Information: Clause 15, 72 and 73 amends the Penal Code to create the offence of publishing or causing to be published or distributed obscene, gory or offensive material likely to cause fear and alarm to the general public or disturb public peace. This impacts on Articles 34(2) and 35 which prohibits state control of the media and parliamentary legislation. The Media Act 2013 and Kenya Information and Communication [Amendment] Act 2013 addresses the stated concerns and have not been fully operationalised due to pending cases. Is Parliament legislating in vain? What is the meaning of 'facilitating of terrorist act' and 'publication of offending material' and 'prohibition from broadcasting'? 

e. Whereas the import of these provisions is clear when applied to communication by extremist and terrorist groups, the section does not seem to make exception for the role media and other actors play in sharing information and social commentaries on current issues. The existing media regulatory framework can adequately address the concerns of responsible journalism.

f. Restriction of the media has the overall effect of diminishing the freedom of expression and freedom of opinion in Kenya. The General Comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights (ICCPR) underscores that these two freedoms are the corner stone for every free and democratic society. The General Comment mirrors the provisions of Article 24 of the Constitution on the limitation of rights. The limitation has to be proportionate to the nature of the offence and should be necessary in a free and democratic society. It also provides that other less restrictive means should be adopted rather than those that are severe in limiting the right or freedom. The proposed fines of 1million and 5 million are punitive and not proportional to the limitation intended by the amendment. Amend: delete.

g. Access to Justice: The principles of criminal justice in respect to equality before the law, rights of an arrested person, right to fair trail and innocent until proved guilty are eroded. Clause 18 (4) (c) and (10) makes it possible for persons to be held without charge for a period of up to 90 days. This provision allows for detention without trial as a person is merely produced in court but NOT charged. This violates Article 49 (g), 25 (a) and (c) which provides that the right to be charged, not to be subjected to torture, cruel, inhuman or degrading treatment or punishment; and the right to a fair trial. These rights are non-derogable. Amend: The Police must furnish the court with a charge sheet indicating the nature of the offence and the accused should be charged and allowed to take plea. The Amendment Bill should also provide a time frame within which the trial of the accused person should commence.

h. Clause 19 allows the prosecution to withhold information and witnesses from an accused person and forces the accused person to incriminate themselves by sharing their information and witnesses. This violates Article 49 (d), (f), (i), (j),(l) and Article 50 on the right to a fair trial with a special focus on the principle to innocence until proved guilty. The accused person should be given all information that will enable him/ her prepare his or her defence. Amend: The accused should have reasonable access to information assist him/her people prepare his/her defence.

i. Clause 77. Removes the necessity of the police to inform the court why they are holding suspects beyond 90 days to 360 days. This is an element of detention without trial and violates the Constitution. Amend: delete

j. Protection of Refugees and Asylum Seekers: A key principle of refugee protection is the principle of non-refoulement, which protects both asylum seekers and refugees from being returned to their places where their lives or freedoms could be threatened. Clause 58 proposes to limit the number of Refugees and Asylum seekers permitted to stay in Kenya to 150,000 persons. UNHCR current statistics provide that total population of concern is close to 600,000 (539,938 Refugees, 52,285 asylum seekers and 20,000 stateless persons). International law and practice does not put a cap on the number of refugees or asylum seekers that can be accepted by a state this is dealt with in an administrative and political manner. The rationale is that it is not the sole responsibility of a host state to cater for the refugees since they are seen to be the responsibility of the international community. Thus, international bodies such as the UNHCR are involved in supporting refugees within the designated territory of UN member states. Amend: delete this clause.

k. Clause 55 and 57. The obligation to report to the Commissioner of Refugees immediately is important. However the grace period of 30 days is important to allow the asylum seeker time to be able to submit themselves within a certain period. The requirement also of reporting once exit from the camp is an administrative matter which is already happening through the Protection or Camp Officers. Amend: delete.

l. Right to Privacy: Clause 66 amends the National Intelligence Service Act by deleting the entire Part V of the Act and replacing it new Part V- Covert operations and allows the Director General 'to do anything' which is repeated four (4) times!. This part eliminates the need for the NIS to seek a warrant from court meaning that the officers are able to carry out their functions without due regard to the law and respect for human rights, contrary to Article 238. It also suspends the role of the judiciary to ensure protection of privacy. Amend: delete.

m. Like the defunct Special Branch, the Bill seeks to give the NIS powers to arrest suspects. In essence the NIS is given powers and functions outside of its constitutional mandate and begins mixing the powers of policing and intelligence! It should be noted that there is no civilian oversight authority over the conduct of the NIS like the Independent Oversight Authority (IPOA) is to the National Police Service. The NIS should concentrate on their core constitutional mandate of gathering intelligence on criminal activity that assists the police into preventive action and if there is to be any amendment is to extent the civilian oversight of IPOA to NSIS. We remind Kenyans of the heinous atrocities committed by NIS’s predecessor, the Special Branch, which wielded similar unfettered powers as the proposed ones. Hundreds of Kenyans were held incommunicado, killed and tortured in the infamous Nyati and Nyayo house torture chambers for speaking out against bad governance. To date the survivors and families of victims are still seeking justice. Amend: Delete or/Build an accountability mechanism by expanding the IPOA powers to include NIS to enhance transparency.

n. Citizenship Rights: Clause 31 which proposes to amend the Registration of Person Act, Section 19. It gives broad powers to the Director of Registration to take away citizenship rights through withdrawal of identity cards. It expands the grounds provided for under the Constitution by including a vague and indefinable ground ‘any other justifiable cause’. The criteria should be specific and not open ended to limit abuse of office and political manipulation. There should be a mechanism to check the powers given to the Director. This would lead to discrimination especially of persons whose nationality is an issue or in question. The person whose identity card has been revoked by the Director has no recourse for redress and violates Article 47 to fair administrative action. Amend: The reason for withdrawal of an identity card should be provided in writing and a process of how administratively the individual can appeal the decision should be provided before they consider going to court. 

o. Security of tenure and independence of the national security organs: Clauses 63, 64 and 98. A key recommendation of the National Task force on Police Reforms (Ransley Task Force) was the need to ensure that appointments to the National Police Service and especially at the leadership level be through a transparent and competitive process. The removal of the security of tenure of the Director General of the National Intelligence Service and the Inspector General of the National Police Service reverts us to the position of the repealed Constitution thereby politicizing these positions! As framed the President would exercise unfettered discretion. The holder of the position would therefore be beholden to the appointing authority for all intents and purposes and will not be insulated from political and executive interference. The amendments also remove the fixed term of the Director General and Inspector General and therefore they would serve for an indeterminate period. The Bill also takes away security of tenure of the Deputy Inspector Generals. The amendment violates Chapter 14 with the Executive suspending the powers of the people and Parliament that ensures accountability and oversight. Amend: delete.

E. CONCLUSION

The passage of more legislation will not resolve the insecurity of the nation. It is evident that current legislation including the Constitution is not being implemented to the letter especially by the Executive. The law must be clear and must ensure that the Constitutional balance of power is maintained with the Executive, Legislature and Judiciary for effective safeguard of the Constitution.

There is also urgent need for the political leadership through the Hon. President be guided by Articles 10(2), 131 (1) (c), (d) and (e) and (2) and 118 to ensure patriotism, security organs discipline, leadership in security sector reforms and public engagement. 

We therefore recommend;

a) The immediate withdrawal of the Security Laws (Amendment) Bill, 2014 from further discussion in the National Assembly.
b) The subsequent Bill or Bills should therefore be made accessible immediately, simplified (drafted in simple language for Kenyans) with and reasonable timelines to allow quality public participation.
c) A clear separation of the substantive and minor amendments through respective Bills and Miscellaneous amendment Bill respectively.
d) All amendments MUST comply with the Bill of Rights and the Constitution in totality.