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Kenya: Parliament Considering Security Laws Amendment Legislation

(Dec. 16, 2014) Kenya’s Parliament is considering passage of the Security Laws (Amendment) Bill, 2014, which would amend over 20 different laws. (Mohammed Yusuf, Kenya’s Proposed Security Law Stirs Debate, VOICE OF AMERICA (Dec. 11, 2014).) The proposed legislation follows a series of terrorist attacks launched by Al-Shabab, a Somalia-based terrorist group, and mounting public anger over security lapses that failed to thwart such attacks. (Id.) The legislation seeks to broaden the powers of security agencies to conduct surveillance, search and detain terror suspects without judicial oversight, and impose stringent restrictions on refugees and asylum seekers, who are mostly from Somalia. (Id.) The following are some of the proposed amendments to the country’s existing laws.

National Intelligence Service Act (NISA)

If adopted in its current form, the amending legislation would lower the threshold for limiting the privacy rights of persons under investigation and remove the requirement for judicial oversight. The NISA currently allows for the restriction of a person’s constitutional right to privacy, through investigation or monitoring of or interference with the person’s communications, by the National Intelligence Service under two conditions: the person must be “suspected to have committed an offence” and the security officer seeking the restriction must first obtain a warrant. (Id.; Act Title: National Intelligence Service, No. 28 of 2012, § 36, LAWS OF KENYA.) The bill seeks to lower the required conditions by permitting members of the Service to curtail the privacy rights of a person “who is subject to investigation by the Service” and by removing the requirement for a warrant. (The Security Laws (Amendment) Bill, 2014, § 65, Office of the President of Kenya website.)

The bill would remove the entire Part V on warrants in the NISA and replace it with an entirely Part V on covert operations. Under the proposed new part, the Director General of the Service is empowered to authorize covert operations without judicial oversight whenever he has “reasonable grounds to believe that a covert operation is necessary to enable the service to investigate or deal with any threat to national security or to perform any of its functions.” (Id. § 66.) Such authorization may be used by a member of the Service to gain access to any premises or to “obtain access to anything,” to monitor communications, or to “do anything considered necessary to preserve national security.” (Id.)

Prevention of Terrorism Act (PTA)

The bill would make a number of amendments to the PTA. It adds broad language criminalizing “facilitation of terrorist acts.” Under this provision, a person “who advocates, glorifies, advises, incites or facilitates the commission of a terrorist act or any act preparatory to a terrorist act” would commit a crime, punishable on conviction, by up to 20 years in prison. (Id. § 72; Prevention of Terrorism Act No. 30 of 2012, LAWS OF KENYA.) It also seeks to criminalize publication of “offending material.” It states, “[a] person who publishes or utters a statement that is likely to be understood as directly or indirectly encouraging another person to commit or prepare to commit an act of terrorism” would commit a crime and, on conviction, be subject to a maximum of 14 years’ imprisonment. (Security Laws (Amendment) Bill, § 75.)

In addition, the legislation would ban dissemination of certain information related to terrorism without prior police approval. It specifically states:

1. Any person who, without authorization from the National Police Service, broadcasts any information which undermines investigations or security operations relating to terrorism commits an offence and is liable on conviction to a term of imprisonment for a term not exceeding three years or to a fine not exceeding five million shillings, or both.
2. A person who publishes or broadcasts photographs of victims of a terrorist attack without the consent of the National Police Service and of the victim commits an offence and is liable on conviction to a term of imprisonment for a not exceed three years or to a fine of five million shillings, or both.
3. Notwithstanding subsection (2) any person may publish or broadcast factual information of a general nature to the public. (Id.)

Further, the legislation would switch the burden of proof in cases involving possession of weapons charges. It provides that “unlawful possession of improvised explosive devices, assault rifles, rockets propelled grenades or grenades shall be presumed to be for terrorism purposes.” (Id. § 73.) A person, apprehended with any of these explosives, would have the burden of proving that the weapon was in his possession for non-terrorist purposes; that burden would not belong to the public prosecutor. Failure to do so would result in a conviction and a punishment of at least 20 years in prison. (Id.)

Criminal Procedure Code

The bill seeks to add a provision to the Criminal Procedure Code authorizing public prosecutors to withhold from the defense certain evidence they intend to use at trial. The Kenyan Constitution provides that every accused person is entitled to a fair trial and that this includes “to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.” (The Constitution of Kenya, art. 50(2) (2010), LAWS OF KENYA.) If adopted in its current form, the legislation would permit prosecutors to withhold evidence they intend to use at trial, including if “the evidence is sensitive” and its disclosure is not in “the public interest.” (Security Laws (Amendment) Bill, § 19.)

Refugees Act

The bill is likely to lead to the forced return (refoulement) of hundreds of thousands of refugees and asylum seekers. If enacted in its current form, the legislation would cap the number of refugees and asylum seekers who can be present in Kenya at 150,000 persons. (Id. § 58.) Currently, Kenya is host to around 650,000 refugees and asylum seekers, including about 463,000 from Somalia, 99,000 from South Sudan, and 30,000 from Ethiopia. (2015 UNHCR Country Operations Profile – Kenya (last visited Dec. 12, 2014), Office of the United Nations High Commissioner for Refugees website.) In addition, the legislation would require all asylum seekers and their family members to remain in designated refugee camps until a determination is made on their application for refugee status. (Security Laws (Amendment) Bill, § 56.)