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Kenya: High Court Temporarily Suspends Parts of Security Laws (Amendment) Bill

(Jan. 2, 2015) On January 2, 2015, Kenya’s High Court temporarily suspended, pending a full hearing, the implementation of parts of the recently enacted Security Laws (Amendment) Act, after determining that the parts in question raised human rights concerns. (Kenya Court Suspends Parts of the Two-Week-Old Security Law, REUTERS AFRICA (Jan. 2, 2015).) The Court expressed concern that the Act may be an overreach on the part of the government, stating “we cannot limit freedoms and inalienable rights in the pretext of fighting terrorism.” (J.C. Finley, Kenya High Court Suspends Terror Law Provisions, Citing Protection of Rights, UPI (Jan. 2, 2015).) It will now form a three-judge panel to fully examine the Act’s constitutionality. (Id.)

One of the provisions of the Act that the Court suspended amends the Penal Code and criminalizes the publication of certain materials. (Id.) Under this provision, anyone who “publishes, broadcasts or causes to be published or distributed, through print, digital or electronic means, insulting, threatening, or inciting material or images of dead or injured persons which are likely to cause fear and alarm to the general public or disturb public peace” commits a crime. (Security Laws (Amendment) Act, 2014, § 12, The Presidency website.) A person convicted of this offense is subject to a maximum of three years in prison and/or a fine of up to KES5 million (about US$55,049). (Id.)

Another part of the Act suspended by the Court includes provisions amending the country’s Refugees Act to impose restrictions on refugees and asylum seekers. (Kenya Suspends Parts of Controversial Anti-Terrorism Law over Human Rights Concerns, BUSINESS INSIDER (Jan. 2, 2015).) One of these provisions states that all asylum seekers and their family members must remain in the designated refugee camps until their cases are concluded. (Security Laws (Amendment) Act, § 45.) Another caps the number of refugees and asylum seekers that may be present in Kenya at a time at 150,000 persons. (Id. § 48.) This is a dramatic shift, given that Kenya currently hosts around 650,000 refugees and asylum seekers, most of whom are from Somalia. (2015 UNHCR Country Operations Profile – Kenya, Office of the United Nations High Commissioner for Refugees website (last visited Jan. 2, 2015).)

Also suspended is a provision amending the Prevention of Terrorism Act and according the country’s security agencies broad surveillance powers. (Kenya Court Suspends Parts of Security Law, BBC NEWS (Jan. 2, 2015).) The Act states, “National Security Organs may intercept communication for the purposes of detecting, deterring and disrupting terrorism in accordance with procedures to be prescribed by the Cabinet Secretary.” (Security Laws (Amendment) Act, § 69.) It does not define the surveillance powers or impose any form of judicial or legislative oversight on their use. (Hanibal Goitom, Kenya: Security Laws (Amendment) Bill Enacted, GLOBAL LEGAL MONITOR (Dec. 30, 2014).)