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Kenya: Security Laws (Amendment) Bill Enacted

(Dec. 30, 2014) On December 19, 2014, Kenyan President Uhuru Kenyatta signed into law the controversial Security Laws (Amendment) Bill 2014, a day after Parliament approved the law amid nationally televised chaos involving heckling and fistfights, as some members sought to air their strong opposition to the proposal. (Chaos in Kenyan Parliament, CAPITAL FM KENYA (Dec. 18, 2014) YOU TUBE.) In a statement he released after signing it, the President defended the law as a measure that will improve Kenya’s capacity to “detect, deter, and disrupt any threats to national security.” He criticized the members of Parliament who opposed the measure as “oblivious to the threat that is upon our country.” (Statement by President Uhuru Kenyatta During an Address to the Nation After Signing into Law the Security Laws (Amendment) Bill 2014, the Presidency website (Dec. 19, 2014).)

Proposed in the wake of successive terrorist attacks on civilian targets and mounting public pressure to curb those attacks, the law’s progression was fast-tracked; it was enacted within ten days of its initial proposal. (Kenya Al-Shabab Massacre: Kenyatta Replaces Security Chiefs, BBC NEWS (Dec. 2, 2014); Security Laws (Amendment) Bill, 2014, KENYA GAZETTE SUPPLEMENT, NATIONAL ASSEMBLY BILLS, 2014 (Dec. 8, 2014.) It amends 21 different laws, including the Penal Code, Criminal Procedure Code, Evidence Act, Prevention of Terrorism Act, and the National Police Service Act. (David Malingha Doya, Kenya MPs Debate Tough Security Laws Criticized by Opposition, BLOOMBERG (Dec. 11, 2014).)

The following are the amendments that have been introduced. (For additional details on the amendments, see Hanibal Goitom, Kenya: Parliament Considering Security Laws Amendment Legislation, GLOBAL LEGAL MONITOR (Dec. 16, 2014).)

Foreign Fighters

The 2012 Prevention of Terrorism Act (PTA) includes a provision that criminalizes “acts carried out for the commission of a terrorist act in foreign states.” A person who, among other activities, promotes or facilitates the commission of a terrorist act or receives military training for the “purpose of carrying out or facilitating the commission of a terrorist act in a foreign State, “commits a crime, punishable on conviction by a maximum sentence of 30 years in prison. (Prevention of Terrorism Act No. 30 of 2012,§§ 2 & 21, LAWS OF KENYA.) A person who conspires to commit a terrorist act abroad while in Kenya or with a person in Kenya commits an offense and is, on conviction, subject to a maximum of 20 years of imprisonment. (Id. § 23.)

The new law tightens these existing provisions. It makes training or instruction for the purpose of terrorism in or outside of Kenya an offense punishable by at least ten years in prison. (Security Laws (Amendment) Act, 2014, § 64 (Dec. 19, 2014), the Presidency website.) In regard to this offense, it is immaterial whether “the person in fact receives the training” or whether “the instruction is provided for particular acts of terrorism.” (Id.) In addition, it provides that any alien who enters into or travels through Kenya for the purpose of engaging in terrorist activities in Kenya or elsewhere commits a crime, on conviction, punishable by up to 30 years in prison. (Id.) Significantly, it reverses the burden of proof by establishing a legal presumption that a person who travels to a country deemed a terrorist training country “without passing through designated immigration entry or exit points” would be considered to have done so for the purpose of being trained as a terrorist. (Id.)

Surveillance Program

The law also amends the PTA by adding a section that accords the country’s national security organs broad, unchecked surveillance powers. It 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.” (Id. § 69.) The powers envisaged in this section are “incomprehensibly broad,” in that the law does not provide any instruction as to what specifically these powers entail or how they may be implemented, leaving such decisions exclusively to the executive body without any oversight. (Kenya: Concerns with Security Laws (Amendment) Bill, ARTICLE 19 (Dec. 17, 2014).)

Radicalization

The law further amends the PTA by inserting a new provision on radicalization. This provision criminalizes the adoption or promotion of “an extreme belief system for the purpose of facilitating ideologically based violence to advance political, religious or social change.” (Security Laws (Amendment) Bill, 2014, § 62.) A person convicted under this charge is subject to a maximum of 30 years in prison. (Id.) Rights groups maintain that the language in this provision is so broad and unclear that it could conceivably be used to prosecute rights activists and political opponents. (Kenya: Security Bill Tramples Basic Rights, HUMAN RIGHTS WATCH (Dec. 14, 2014); Kenya: Concerns with Security Laws (Amendment) Bill, supra.)

Legal Challenge

On December 23, 2014, the Opposition, the Coalition for Reform and Democracy (CORD), filed a suit in the High Court challenging the constitutionality of the law. (CORD Files Suit Against New Security Laws, Terms Legislation Unconstitutional, STANDARD DIGITAL (Dec. 23, 2014).) The Kenya National Commission on Human Rights has also joined in the suit, and the Law Society of Kenya will do so soon. (Mazera Ndurya, LSK Appoints Nzamba Kitonga in Suit Challenging New Security Laws, DAILY NATION (Dec. 29, 2014).)

The groups are challenging the law on grounds both of substance and procedure, arguing that its provisions violate rights enshrined in the Constitution and that its passage violated parliamentary procedure, a key issue being the fact that the Senate was not involved. (Isaac Mugabi, Kenya Opposition to Clock up ‘Political Mileage’ over Anti-Terror Law, DEUTSCHE WELLE, (Dec. 29, 2014).) While the Court refused to grant the plaintiffs’ petition for the immediate suspension of the law, on December 24, 2014, it ordered the government to file a defense within the next five days. (Ndurya, supra.)

The Senate

On December 24, 2014, a few days after the law was enacted, Ekwee Ethuro, Senate Speaker, recalled the Senate for a special sitting to be held on December 30, 2014, at the request of Moses Wetang’ula, the minority leader. (Jeremiah Kiplang’at & Paul Ogemba, Senators Recalled to Discuss Terror Laws, DAILY NATION (Dec. 26, 2014).) They are expected to discuss the Senate’s exclusion in the adoption of the law. (Id.)

According the country’s Constitution, the Senate must be involved in the adoption of bills that concern county governments. (Constitution of Kenya, art. 109 (2010), LAWS OF KENYA.) These include bills “containing provisions affecting the functions and powers of the county governments.” (Id. art. 110(1)(a).)