Most
arguments by legal technocrats on terrorism are based on definitional
complexities and the eradication of this global phenomenon. The discussions
have mostly been centred on enforcement and institutional framework at the
expense of human rights concerns. A critical analysis of terrorism however
requires not only a consideration of the legal aspect but the embodiment of
various human rights principles.
Article 1(2) of
the League
of Nations Convention for Prevention and punishment of terrorism (1937)
was among the first international attempt of defining terrorism.
However, it was never ratified and thus does not form part of the international
law. Currently, major conventions on terrorism are drafted within the auspice
of the United Nations. These conventions require a state privy to the UN
Charter to introduce national legislations aimed at punishing specific offences
mentioned by the conventions.
Despite
the absence of a universally acceptable definition for terrorism, three elements
are required for a terrorism offence to suffice:
a.
The act must be a crime
under most municipal legal systems.
b.
The act must be aimed at
instigating terror through forceful and violent means directed to the public, a
legitimate government or a particular class of people.
c.
The act must be motivated
by political, religious or ideological reasons
There
is need for a universally acceptable definition for terrorism so that the
international community can combat terror uniformly. Cooperation among state
players is paramount to eradication of terrorism and the subsequent achievement
of a safer world.
From
recent happenings, Kenya has learnt that terror attacks against its innocent and
unsuspecting civilian population threaten the preservation of the rule of law. It
also threatens the protection of the right to life. Terrorism is easily identified
with the use of violence in place of the ordinary tools of civic engagement. It
has become an increasingly recurrent strategy for insurgent as well as identity
based groups to voice their opinions. Such
groups have opted for IED’s and violence instead of a legitimate public and
open dialogue.
For
a long time, Kenya did not have in place any specific counter-terrorism
legislation despite it being a victim of criminal activities carried out by
terrorists. Though there existed various legislation that criminalized
terrorism such as the penal code,
penalties were rather lenient and thus terrorist could walk free in most
circumstances.
Kenya
marked a mile stone in 2012 with the enactment of the Prevention of Terrorism
Bill 2012. The bill was however marred with controversy after a section of the
Muslim community and human rights groups opposed it. The Kenya Human Rights
Network, an umbrella organization of rights groups argued that the Bill gave
security personnel wider powers to arrest suspects, seize property and to investigate
terrorist offences. They also argued that the bill gives a cabinet secretary
the right to declare and render a person or an association to be a terrorist.
The
minority Muslim community argued that the legislation was formulated to oppress
and undermine their freedoms. They argued that most persons associated
terrorism with the Muslims given that most terrorist are radicalized jihadist
from the Islamic faith. These would be detrimental to the wider minority Muslim
community given the above facts. Despite all this controversies the bill was
enacted into law on 12th October, 2012.
The
contentious clauses sighted by the above groups include:
Section 31
that gives the police unsanctioned power to arrest persons on reasonable
suspicion.
The Act does not specify the legitimate limits of the “reasonable suspicion”
making the section vague and an impediment to the freedoms guaranteed by the
constitution.
Section 35(1)
it limits rights and fundamental freedoms protected under Article 24 of the
Constitution in so far as the Act is concerned. It is important to note that
Natural law theorist opine that rights emanate from nature and no authority can
limit the same. Although some rights provided for by the constitution are
derogable, opponents of the bill argue that it is detrimental to justice to
limit these rights since such provisions are subject to abuse by enforcement
agents.
Section 36 of
the Act gives the police power to intercept communication which is inconsistent
to the right to privacy.
Section 37 of
the Act gives enforcement agencies authority to seize property used in committing
any act considered as an offence in the Act thus limiting the right to
ownership of property.
Section 44(1)
provides that the DPP may apply to the High Court for an order of forfeiture in
respect of property that is owned or controlled by or on behalf of a specified
entity or is intended to be used in whole or in part thereof in the commission
of, or to facilitate the commission of an offence under the Act.
Section 46
gives a Cabinet Secretary power to declare a group or organization as a
terrorist.
Section 50
gives a Cabinet Secretary authority to make rules.
This section was deemed too wide because no limits have been specified within
the Act.
Section’s 46
and 50 gives a lot of power to a
cabinet secretary. Without stringent measures to regulate such authority, the
power vested in the cabinet secretary’s may be misused.
All
governmental action or recourse, even in exceptional situations must meet the highest
standards of reasonableness, non-arbitrariness and equality. By implication we
must be wary of the use of torture and other forms of unorthodox fact finding
techniques by law enforcement agencies. Coercive interrogation mechanisms more
often than not result in false confessions and do not help in preventing acts
of terrorism per se. The tolerance of
the same can breed a sense of complacency if they are viewed as an easy way out
by enforcement agencies. The apprehension and interrogation of terrorism
suspects must also be done in accordance with the law and with adequate
judicial scrutiny. This is required because in recent counter terrorist
operations, there have been several reports of arbitrary arrests, profiling of
certain communities and the concoction of evidence.
The
proposals for the admissibility of confessional statements made before the
police is also problematic since there are fears that such a change will
incentivize torture and coercive interrogation by enforcement agencies in order
to seek convictions rather than engaging in thorough investigation. Even in
United Kingdom, the House of Lords in the Belmarsh decision ruled against a
provision in the anti-terrorism, Crime and Security Act, 2001 which allowed the
indefinite detection of foreign terror suspects. As a result, the British
Parliament accepted a 42 day period as the maximum permissible for detention of
a suspect without charges being preferred against him/her..
1.
To examine the development of Counter terrorism legislation in Kenya.
2.
To examine the international legal framework regulating Terrorism
3.
To evaluate the effectiveness of the Prevention of Terrorism Act 2012
4.
To determine whether a balance can be achieved in upholding the bill of
rights under the constitution and enforcing the Prevention of Terrorism Act.
1. Has
there been development in terrorism legislations since independence
2. What
is the international legal framework with regard to terrorism?
3. Can
a balance be struck in upholding the bill of rights under the constitution
while enforcing the Prevention of Terrorism Act?
4. Is
the Prevention of Terrorism Act 2012 effective?
Although a wealth of literature on terrorism
exists in the public domain, there is an apparent scarcity of literature regarding
the treatment of terror suspects and conforming anti-terrorism legislations to
encompass human rights doctrines in Kenya. Many aspects of this paper, relating
to both form and substance, have been formulated with reliance on existing
literature resource from well-known legal scholars.
In Charles Lenjo’s thesis on the Legal Response to Terrorism, he
talks about various problems that face proposed and existing legislations. He
gives a comparative analysis of the criminal and justice system in Kenya with a
view of extrapolating the problems. He also analyses United Kingdom’s response
to terrorism.
Prof Wambua Musili in his article “going beyond legalism in the fight against
terrorism and piracy” talks about the effect of terrorism and its adverse
impact on humanity. He also brings out the aspect of human rights in fighting
terrorism.
A report by redress and reprieve, a
non-governmental organization titled “Kenya
and counter terrorism: a time for change” talk about mass detention in
Kenya. It explains the lack of judicial oversight of detainees, denial of right
to Habeas Corpus and access to advocates. It gives an insight of human right
abuse at the Guantanamo bay.
Thomas Michael McDonnell’s book, ‘The United States, International Law, and
the Struggle against Terrorism’ talks about fundamental legal issues raised
by the US response to the terrorist threat. The book analyses whether the Bush
administration’s policies and practices in the ‘war against terrorism’ were in
line with provisions of international law, and extends the inquisitorial
analysis to the Barrack Obama administration. He highlights specific topics of legal
interest including, extra-judicial detentions, torture and the invasion of both
Afghanistan and Iraq.
The book demonstrates in detail why current counterterrorism mechanisms should
be done away and recommends the adoption of mechanisms that are compatible with
international law.
Dominic McGoldrick’s book, “From ‘9-11’ to
the Iraq War 2003” considers the principle of international law used in the
fight against terrorism and the war in Iraq. It has shown the application of
human rights law and the international Humanitarian law in the fight against
terrorism.
The method to be used to gather information
for this paper will include the use of the library. The material in the library
will be used to analyse scholarly writings on terrorism and human rights
protection.
The internet will also be important in
development of this topic. Numerous materials on terrorism have been uploaded
so that the public can access and if possible develop on the said areas.
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2nd October
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Submission of the concept paper to instructor for
approval
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3rd – 22nd October
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Formulation of a detailed research proposal
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23rd October
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Submission of the final research proposal to the
course instructor
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29th October
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Assignment of dissertation supervisor
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2nd – 10th November
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Review and approval of research proposal
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11th -23rd November
24th – 28th November
1st
– 4th December
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Drafting of chapter One of the approved research
Presentation of the draft to supervisor for review
Incorporation of supervisors recommendations
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4th - 10th January 2014
11th – 17th January
18th – 27th January
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Formulation of chapter two of the research
Presentation of draft to supervisor for review
Incorporation of supervisors recommendation
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1st -7th February
8th – 15th February
16th – 21st February
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Formulation of chapter three of the research
Presentation of draft to supervisor for review
Incorporating supervisor’s recommendations
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22nd – 28th February
1st – 7th march
8th – 12th march
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Formulation of chapter four of the research
Presentation to supervisor for review
Incorporation of supervisors recommendations
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13th – 17th March
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Final compilation of the research
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CHAPTER I
CHAPTER II
CHAPTER III
CHAPTER IV
CHAPTER V
Kenya,
for a very long time, has not had a specific Counter-terrorism legislation
until the enactment of prevention of Terrorism Bill of 2012. However, despite
the definitional complexities associated with terrorism, it is not a new
phenomenon in Kenya. This chapter will endeavour to examine the development of
Counter-terrorism legislation in Kenya.
In
1952, Sir Evelyn Baring, a colonial governor declared a state of emergence. This
was in response to the Mau Mau uprising against the colonial British government
oppression of the indigenous population. He further obtained from the Colonial
Office authorization to detain suspected Mau Mau members without trial in an
operation known as “Operation Anvil”. It is estimated by historians that over
150,000 Mau Mau members and sympathizers were detained in camps. Detainees were
subjected to severe acts of inhuman and degrading treatment, torture, sexual
assault and arbitrary killings. The Fairn Report published on September 1959 in
part admitted the use of excessive force in the detention camps.
The
Britons deemed the Mau Mau to be terrorists.
In a House of Lords debate, Lord Earl of Munster stated that the Mau Mau
terrorism activities were carefully organised, centrally directed and that its
objective is to destroy all established authority other than them.
It is
however worthwhile to note that AP I elevated “wars of national liberation” to
the stratum of an international armed conflict. In its preamble, its
application is deemed to be in situations where people are fighting against
alien/colonial domination or against a racist regime such as the apartheid
regime in South Africa in the exercise of self-determination.
It is
therefore of immense importance to construe the Mau Mau rebellion as an
international armed conflict within the auspice of AP I.
The
1952 regulations by the Legislative Council criminalized Mau Mau movement and
further on declaring it a terrorist organization. The regulations also created
a special court to expedite Mau Mau cases and shifted the burden of proof from
the prosecution to the accused persons in cases of possession of firearms
contrary to standard criminal practice.
After
independence, Kenya did not have specific counter terrorism legislation in
place despite being a victim of terrorist attacks. However, acts of terrorism
were prohibited through various provisions in different Acts of parliament. Discussed
below is a brief analysis of the various provisions of law that prohibited acts
associated with terrorism;
Section
220 is to the effect that any person with intent to
unlawfully cause the death of another is guilty of a felony and is liable to
life imprisonment.
In case of a terror attack that resulted to the death of a civilian, the
perpetrator could be prosecuted using this provision.
Section
235 is to the effect that any person who unlawfully or with
intent to do harm puts explosives substance in any place is guilty of a felony
and upon conviction is liable to imprisonment for a maximum of 14 years. This
provision was rather lenient given the damage that would have been witnessed if
the explosive device went off.
This provision was used to try person found guilty of planting improvised
explosive devices (IED’S) with intent of causing harm to the general public.
Section
224 provides that anyone who conspired with another to
commit murder in Kenya or elsewhere was guilty of a felony and upon conviction
was liable to imprisonment for 14 years. In furtherance, section 393 provides that
any person who conspires with another to commit a felony is liable if no other
punishment is given, to imprisonment for 7 years.
This was used to charge persons who conspired to commit acts that resulted to
death of a person. Most acts of terrorism result in multiple deaths of innocent
civilians and could be prosecuted under this section of the penal code.
Section
220 is to the effect that any person who attempts to, or
with intent to unlawfully cause death of another does any act, or omits to do
any act which it is his duty to do, is guilty of a felony and upon conviction
was liable to life imprisonment.
Section
393 further is to the effect that any person who, knowing
that a person has designs to commit a felony, fails to use reasonable means to
prevent the commission of such a felony is liable of a misdemeanour.
This was with regards to persons who had prior knowledge of an impending attack
who did not take reasonable to stop such an attack.
It
provides that any person who, on board an aircraft flight, in Kenya or
elsewhere unlawfully by force or threat seizes control of an aircraft shall be
guilty of the offence of hijacking and is liable upon conviction to life
imprisonment.
This Act
was enacted to regulate importation, licensing and usage of firearms. It
provides that a person cannot purchase a firearm without a license from the
firearms bureau.
Central
Bank regulation No CBK/PG/12 defined money laundering to include any
intentional disguising of money. This was in a bid to discourage money
laundering. Some of these disguised funds are channelled to terror groups by
sympathizers.
Part VI of the Banking Act
empowered the Central Bank to inspect and control financial institutions.
These
were some of the safeguards that were in place to prosecute persons engaged in
acts of terror. Most of the punishments provided therein were rather lenient
and could not deter criminals from committing the said felonies. These
provisions were not enough to protect the general population from the adverse
effects of acts of terrorism.
During
the 1976 Entebbe raid by Israeli Commandos, Kenya served as a refuelling stage
for the Israeli planes. This incident led to anger from Islamic extremist given
the conflict between Israel and Palestine. Below are some of the devastating
terror attacks on Kenya by extremists before the Suppression of Terrorism bill
(2003) was tabled in parliament:
A spate
of bombings hit Kenya’s capital Nairobi. These were some of the first major
blasts to be witnessed in post-colonial Kenya. In February, there were two
separate blasts inside a discothèque and the other at a travel bureau near
Hilton hotel. On 1st march, 1975, 30 people were killed after a bomb
was planted in a Nairobi bus.
The
second significant attack happened in 1980, where a bomb levelled the Norfolk
hotel which is located on University way a stone throw away from the University
of Nairobi. The attacked claimed the lives of twenty people and injuring a
further 80. The Palestinian Liberation Movement came out publicly and took
responsibility of the attack sighting Kenya’s role in the Entebbe raid. At the
time of the attack, the hotel was owned by a local Jewish firm known as the
block hotels.
On 7th
August 1998, a truck full of explosives exploded outside the US embassy in
Nairobi. The bomb flattened the adjacent building and further damaged
Cooperative House all located along Haile Selassie Avenue. The attack claimed
the lives of 224 Kenyans including 12 American and injuring a further 4500. On
the same day, the US embassy in Tanzania was bombed killing 10 Tanzanian
nationals. The US blamed the attacks on the al-Qaida terror network.
2.4.4 Kikambala attack
Two
missiles were launch at an Israeli aircraft shortly after it took off from the
Moi International Airport in mainland Mombasa. Subsequently, a hotel in
Kikambala was attacked while receiving Israel tourists.13 people were killed
and a further 80 injured in the attack. The main suspect was Fazul who was
linked to the al-Qaida terror movement.
By 2003, Kenya had lost a substantial
number of its citizens to terrorist attacks which were increasingly
jeopardizing security and well-being of general population. It is the
responsibility of a sovereign state to ensure that every person within its
jurisdiction enjoys his/her civil, political, cultural and economic liberties
peacefully as provided for under the constitution or any other legislation
therein recognized as law in the said jurisdiction.
One of
the principles behind the legislation of laws is the harm principle which is
explained below.
Laws
exist for various reasons. Laws created under the harm principle protect
persons from harm caused by other persons. This principle was first fully
articulated by John Stuart Mill. In his treatise, “On Liberty” he argued among
other things that;
“… That the only purpose for which power can
be rightfully exercised over any member of a civilized community, against his
will, is to prevent harm to others…”
John
Stuart Mill,
The
actions of a person should not prejudice the interest of others in the society.
Every person should be held accountable for his actions through social or legal
avenues.
It is
important to note from the brief summary of major terror attacks on Kenya
stated therein above, was as a consequence of Kenya’s close diplomatic ties to
the United States of America and her ally Israel. The 1998 bomb attack targeted
the U.S. embassy. The collateral damage in terms of civilian casualty suffered
by Kenya as a nation was immense compared to the number of Americans who died.
Below
is a pie chart representation of casualties from the 7th august 1998
U.S. embassy bombing in Nairobi from data provided for by the Report of the
Accountability Review Boards on the Embassy Bombing in Nairobi and Dar es
Salaam.
Fig. 1.1: pie chart representation of casualties from the August 7th
bomb attack on the U.S. embassy in Kenya
It is
because of this alarming statistics that a bill on terrorism was presented to
parliament in 2003 for deliberation
The
development of Counter-terrorism legislation has been a priority since the dawn
of the new millennium. Some of the key factors that led to the prioritization
of such legislation were:
a) Kenya
being a member of the UN has an obligation with regards to the relevant
resolutions passed by the Security Council in relation to international
counter-terrorism.
b) Its
geographical proximity to Somali which is in a state of anarchy. Some of the
regions in Somali are controlled by the rag-tag Al shabaab militia which is
linked to the Al Qaida terror network and other Islamic extremist groups.
c) Kenya,
being a strategic partner in the implementation of the American-led ‘war on
terror’, is in the direct line of fire from terror groups. Most of the attacks
in Kenya target US and Israeli interest in Kenya.
d) Porous
borders, corruption, an ill prepared police force and the rise in the number of
radicalized Muslim youth population has made Kenya an easy target hence the
need for a an anti-terror legislation.
The
suppression of terrorism bill was first tabled in parliament in 2003.The bill
was introduced in a bid to criminalize terrorism under our municipal law. This
was the first legislation ever brought to parliament that entirely targets
terrorism. The bill was criticized by human rights groups and the minority
Muslim community which argued that it was being targeted. The bill was heavy
handed partly because the 1952 state of emergency regulations established the
reactionary precedent of an iron fist by the authority in dealing with critical
situations that are likely to degenerate into a full blown crisis.
The
bill did not have a clear definition of terrorism as an offence. The bill also
gave the police force wider powers to search, seize and arrest suspects which
were contrary to the standards set by the UDHR. The bill was deemed oppressive
by minority groups. For example, clause 12 gave police power to profile certain
communities and even arrest Muslims by virtue of wearing religious regalia
similar to those worn by terrorists.
The
bill was never implemented due to pressure from the civil society and minority
groups because of the contentious clauses. Since 2003, Kenya has witnessed
renewed attacks especially after the Kenya Defence Forces invaded Somalia in an
operating known as “Linda Nchi” in a bid to flush out the Al shabaab militia
which was a threat to our nation security and economic prosperity. A US embassy
report indicates that in the period 2011/2012, Kenya has been hit by at least
17 attacks. The weapons of choice are grenades and improvised explosive devices
commonly referred to as IED’s.
The
prevention of terrorism Act (Act 30 of 2012) was accented to on the 24th
of October 2012 by the then president his Excellency Mwai Kibaki. This was
nearly after a decade long wait since the inaugural bill on terrorism was
brought before parliament for deliberation. The bill was an improvement of the
Suppression of terrorism bill of 2003.
Then
Act creates over 30 0ffences in relation to activities related to terrorism. It
provides for special powers of arrest, procedures for gathering information and
limits certain fundamental rights and freedoms when conducting investigations.
It has a provision for the compensation of victims of terror attacks from funds
acquired after the disposal of property seized from terrorist as well as the
hefty fines imposed on those convicted.
Kenya
has come a long way in the realization of an anti-terrorism bill. Being the
most stable economy in the region, and the continued close diplomatic relations
with the US, Kenya had to impose stringent legal measures to end the loop holes
in our legal framework with regards to the crime of terrorism which is an
international catastrophe.
The
constitution is the supreme law of the land and any law that is inconsistent is
null and void to the extent of its inconsistency.
The constitution also affirms that any treaty or convention ratified by Kenya
shall form part of our laws.
This means that international law is equivalent to our municipal laws in its
application. In light of this, it is important to analyse the international
regime on terrorism with regard to Kenya’s obligation.
There
is no universally acceptable definition for the term terrorism. Article 1(2) of
the League
of Nations Convention for Prevention and punishment of terrorism (1937)
was one of the earliest international attempts which tried to coin a definition
for terrorism.
However, the convention was never ratified and thus does not form part of the
international law. There have been a number of unsuccessful attempts to coin a
universally acceptable definition since the early 20th century. The
attempts vary from the efforts under the League of Nations, UN General Assembly
and conferences on the Unification of Criminal Law.
A
well-known international scholar stated that it was almost impossible to define
terrorism in a way that was inclusive and unambiguous.
The different views of what terrorism is in the global arena makes an
internationally acceptable definition a nearly impossible undertaking.
Different scholars have different views with regards to the definition of
“Terrorism”.
With
the ever changing technology, the means and methods of terror have also
drastically changed. It is important to note that during the de-colonization
period, freedom fighters were regarded as terrorist organizations by the
occupying powers. A famous saying was coined to describe groups fighting for
national liberation; “one man’s terrorist
is another man’s freedom fighter”
It
is difficult to coin a single comprehensive definition of terrorism under the
auspice of international law because the actions of a group of persons may be
described as acts of terrorism by one faction while the same actions may be
described by a different faction as a freedom movement. A good example is the Palestinian Liberation Movement (therein
after referred as to PLO) which is regarded as a terrorist group by Israel.
However, Islamic nations from the Middle East consider PLO a liberation
movement fighting for the rights of Palestinians in the disputed regions of
Gaza Strip and West Bank occupied by Israeli forces. The Afghani Mujahedeen
were freedom fighters for the west but were regarded as terrorist by the Soviet
Union during the cold war period brought about by ideological differences.
Some argue that terrorism is just but a political ideology between western
powers and the marginalized Middle East bloc of nations.
In
a 1986 article, “is terrorism worth defining”, the author concluded that;
“The evident conclusion is that a deductive
legal definition is not really necessary. Indeed, it is not clear that such a
definition would even be beneficial. In the international context, given the
intractable conceptual and political differences among states on this issue, it
would be at best a watered-down, papered-over, exception-ridden orphan whose
main practical result would provide a further basis for dispute…”
The
1999 convention on the Suppression of Financing of Terrorism
was another attempt aimed at defining international
terrorism. The definition sought to explain the nature of terrorism as physical
violence directed against human being inclusive of the destruction of private
or public property‘
Despite
the failure to coin a single comprehensive definition of terrorism, there is a
consensus among the international community that co-operation is key to
fighting terrorism. With this in mind, the United Nations adopted a draft
resolution on terrorism in 1972. The draft led to the creating of an Ad hoc
committee on international terrorism. The committee was tasked with defining
terrorism under the realm of international law. However, at the end of
deliberation, the committee did not reach an agreement on whether a definition
was either necessary or desirable. This was due to ideological differences
partly blamed on the cold war crisis.
The
Soviet Union for example disagreed with an interpretation that was too broad as
to include wars of national liberation being considered as acts of terror under
the ambit of international law. A further attempt was made in 1977 by the Ad
hoc committee in order to re-examine the possibility of a defining terrorism.
This attempt was unsuccessful since a consensus was not reached. The committee
was dissolved in December 1977 due to lack of co-operation towards the
definition this concept.
In
1996, another Ad hoc committee was established by the United Nations General
Assembly to develop a comprehensive convention(s) that would deal with
international terrorism.
Within a year, the committee had elaborated the International Convention for
the Suppression of Terrorist Bombings. The General Assembly gave them an
additional mandate to develop an agreement on financing of Terrorism which
resulted in the 1999 International Convention for the Suppression of Financing
of Terrorism.
It is
important to note that prior to the 11 September 2001 attack, the UN Security
Council employed Ad hoc interventions on counterterrorism with regards to
particular incidences of a ‘terroristic’ nature.
In his
book ‘The United States, International
Law, and the Struggle against Terrorism’ TM McDonnell states that the 9/11
attack shocked the Americans more than the Japanese bombing of Pearl harbour.
The attack had changed the notion among most Americans that the oceans
protected the US from foreign attacks. The UN Security Council condemned the
9/11 attack on the World Trade Centre. The attack was deemed to be a threat to
international peace and security. The Security Council issued a detailed
resolution with the aim of taming and possibly ending the international
terrorism epidemic. The Security Council, acting under chapter VII provisions,
adopted resolution 1373 with measures to stop among other things:
v Financing
of Terrorist organisations
v To
ensure that individuals engaged in terrorism be prosecuted
v Ensuring
that terrorist acts are established as serious offences under municipal law
v Cooperating
with other states in investigation of terrorist acts and early warning systems
v Adoption
of border controls to prevent movement of persons involved in acts of terror
The
resolution also established a committee of the Security Council to monitor the
implementation of the resolution.
Further, Article 25 of the UN Charter requires all member states to follow
Security Council Resolution under Chapter VII.
In 2004, an Executive Directorate for the committee was established to provide
expert assistance to the committee and technical advice to member states with
regards to the implementation of the resolution.Kenya
has acceded to all conventions set out in the resolution which include:
§ Convention on Offences and Certain Other Acts
Committed on Board Aircraft 1963
§ Convention for the Suppression of Acts of
Nuclear Terrorism 2005
§ International Convention against the Taking of
Hostages, 1979
§ Convention for the Suppression of Unlawful
Seizure of Aircraft 1970
§ Protocol for the Suppression of Unlawful Acts
of Violence at Airports Serving International Civil Aviation 1988 ( this
convention is supplementary to the Convention for Suppression of Unlawful Acts
against the Safety of Civil Aviation)
§ Convention for the Suppression of unlawful
Acts against the Safety of Civil Aviation 1971
§ Convention for the Suppression of unlawful
Acts against the Safety of Maritime Navigation 1988
§ Convention for the Physical Protection of
Nuclear Material 1980
§ Convention for the Suppression of unlawful
Acts against the Safety of Fixed Platforms located on the Continental Shelf
§ Convention on the Making of Plastic
Explosives for the Purpose of Detection 1991
§ Convention for the Prevention and Punishment
of Crimes against Internationally Protected Persons, Individual Diplomatic
Agents 1993
§ Convention for the Suppression of Financing
of Terrorism 1999
The
technical support envisaged under resolution 1373 is provided through:
§ Identification of existing financial,
regulatory and Legislative assistance programmes
§ Promotion of international and regional
assistance programmes
§ Dissemination of information with regards to
best practice
§ Acting as intermediary between potential
donors and recipients while maintaining an online database of donors
The
resolution does not specify the repercussions of failing to abide its
provisions. It does not stipulate the consequences that will accrue to a state
that does not or refuses to obey the resolution in total.
It also does not specify particular individuals or entities whose funds must be
frozen because those persons are involved in acts of terrorism. It also does
not establish a listing mechanism of identifying the said entities.
There
are various regional conventions that prohibit acts of terror. At a regional
level, Kenya has ratified the convention on Prevention and Combating of
Terrorism protocol of 1999. A plan of action for the prevention of terrorism in
Africa was developed in 2002. The plan of action makes a reference to the
obligation set out under UN resolution 1373.
The peace and Security Council of the African Union was tasked to oversee the
implementation of the convention. The council requires members to submit annual
reports.
An
office of the Commissioner for Peace and Security is established whose mandate
is to:
·
Analyse the reports submitted to the
committee by member state as set out in paragraph 16(b) of the action plan
·
Give advice on policy matters with regards to
terrorism
·
Update the plan of action by reviewing it and
there after giving recommendations
From
the above discussion, it is of great importance to note that the international
community has joined hands in the fight against terrorism which is a common
problem. It is also important to notice that there is no definition of
“terrorism” at the international plane. There have been a number of attempts
aimed at defining the term but all have fallen short of coining a universally
acceptable definition.
International
Humanitarian Law is basically a set of regulations which limit the effects of
an armed conflict on humanitarian grounds. It is generally referred to as the
law of war.
Terrorism is an undefined set of ideologies which vary rather than a defined
entity. In an article by Jerry Jones, he argues that one cannot wage war
against an abstract noun (terrorism). He equates waging a war against terrorism
to bombing murder.
Nicholas Lemann describes the war against terror as a metaphoric war without a
definite ending unlike conventional wars which have a definite ending.
Slavoj Zizeck argues that the war on terrorism has replaced the cold war.
Opinions differ on what constitutes terrorism and the war against terrorism.
The war
on terrorism is not an international armed conflict because it is not between
two states and neither is it a non-international armed conflict (NIAC) within
the provisions of Article I of AP II to the 1977 Geneva Conventions. With
respect to the military aspect of the War on Terror, the application is rather
complex. The easier applied on a case to case basis.
For a
long period of time, Kenya did not have in place a legislation that dealt with
acts of terrorism. The prevention of Terrorism Act no 30 of 2012 came into
force at a time Kenya was experiencing increased sporadic attacks from the rag
tag Al Shabaab militia group which is an affiliate of the Al Qaida. Kenya has
always been on the direct line of fire from such groups given our geographical
proximity to failed states such as Somali and a foreign policy that supports
the U.S. led ‘war on terror’ initiative. The collateral damage witnessed in
attacks aimed at U.S. and Israeli interest in Kenya is enormous. Since the
Kenya Defence Forces entered Somali, the spates of attack have increased
considerably. Conservatory estimates indicate that Kenya has lost over 300
innocent civilians to cowardly acts of terrorism perpetrated by terrorist. Most
of the casualties are women and children.
The Act
was brought to the floor of the house on the 27th of July 2012 by
the then minister in-charge of Internal Security Haji Yusuf.
The 2003 Suppression of Terrorism bill had raised a number of legal concerns
from different quarters. The Muslim community, which is a minority group,
raised a number of issues which in their own opinion were fundamental. They
argued that the Bill was biased and that it discriminated against them.
The 2012 Act was drafted in a bid to cure the shortcomings witnessed in the
2003 draft Bill. However, the 2012 bill was also criticized. Critics termed
some of the sections as giving too much power to security agents in enforcement
of the provisions of the Act.
Below
is a review of the Act in a bid to establish its effectiveness in the fight
against terrorism which is a global phenomenon.
For a
definition to be useful, it has to be precise. Definition of a term is of great
importance in the drafting stage of any particular legislation. A faulty
definition may cause numerous problems in the implementation of the various
provisions of an Act of parliament. A law may fail to achieve its enforcement
objective because certain terms were not defined properly.
The
definition of the term ‘terrorism’ has proved to be elusive both at the
international plane (as discussed in chapter three) and under our municipal
law. The term has defied any attempt to define it. The Prevention of Terrorism
Act purports to define ‘terrorism’ by defining acts which amount to terrorism.
An act
of terrorism is defined as a threat of action which:
·
Involves the use of violent force against any
person
·
Endangers peoples lives
·
Creates a risk to the health of the general
public population
·
Damages property
·
Disrupts communication, financial, transport
or interferes with provision of essential services
·
Prejudices national security
·
Poses a risk to the environment through
release of toxic or radioactive substances
The Act
also further provides under paragraph (b) that acts of terrorism shall include
acts carried out with the aim of:
·
Advancing political, religious, ideological
or other causes
·
Causing fear amongst the public or compelling
the government or international organisation to do or refrain from doing any
act
An
entity is defined as a person, group of persons, trust, partnership, fund or an
unincorporated association or organisation as the case may be.
A specified entity is described as an entity that falls under the orders issued
with respect to section 3 of the act.
The Inspector General of Police (therein after referred to as the IG) may
recommend to the Cabinet Secretary (therein after referred as to the CS) for
the issuance of an order against certain entities.
If the CS is satisfied and on reasonable grounds, shall declare through a
Gazette notice, the entity in respect of which the recommendation has been made
to be a specified entity.
The CS is obligate to inform the entity in respect to which the order has been
made, in writing, reasons for arriving at the decision.
However,
an entity may apply to the IG for the revocation of the order which is made
under sub-section (2). If the entity is further aggrieved by the decision of
the IG as provided under sub-section 5, may apply to the High court for a
review of the decision within a period of sixty days from the onset of receipt
of decision. The High court may revoke the order issued by the CS if in its own
opinion, guided upon by evidence adduced before it by both parties, is
satisfied that there are no reasonable grounds for issuance of the order under
sub-section (2).
An
offence is an act the doing of which is forbidden by a penal law or omitting to
do what it commands to.
A wide array of offences falls under part III of the Act. They range from
commission of terrorist act, recruitment of members to a terrorist
organisation, training of person to carry out terror activities, conspiracy to
commit offences under the act to possession of articles connected with
commission of an offence under the Act.
Any
person who commits an act of terrorism is liable on conviction for a term not
exceeding 30 years.
If the act results into the death of a person, the perpetrator shall be liable
to life imprisonment upon successful conviction.
Most terrorists consider themselves martyrs if they die in battle. This
ideology has often advanced the cause of the politically repressed groups. An
example is the 1915 execution of 15 leaders who were involved in the Easter
Rebellion. This event led to the formation of the Irish Free State five years
later.
A death sentence will preserve that status if
carried out. It is thus an injustice to victims of cowardly acts of terror if a
terror suspect is sentenced to death because no punishment would have been
meted to him/her. A death sentence is also contrary to the provisions of human
rights law.
Leaders
of terrorist outfits also face life imprisonment if they are found guilty of
commanding or facilitating their followers to commit acts considered as ‘acts
of terrorism’ under the Act. This is because they bare a huge responsibility.
Their followers are just foot soldiers who follow orders from their seniors
without second thoughts.
Persons who knowingly support or solicit support for the commission of
terrorist acts are liable to imprisonment of a term not exceeding 20 years on
conviction.
Persons
who knowingly recruit or facilitate the recruitment of persons to join
terrorist groups or participate in an act of terrorism are liable on conviction
to imprisonment for a term not exceeding 30 years.
This section is relevant given the challenges Kenya is facing with regards to
recruitment of young energetic men from informal settlements to this terror
groups. Al Shabaab recruitment drive in Kenya has been aided by the presences
of sympathisers. Radicalisation of Muslim youth by controversial Muslim clerics
has also worsened the already delicate situation.
Most of
the punishments meted upon conviction under part three vary from prison terms
of between 20 and 30 years and life imprisonment. It is however important to
note that fines have not been provided for as an alternative form of punishment
of offences under part III. This is in a bid to act as deterrence for persons
who might want to engage n ‘acts of terrorism’. Safe guards of law provide that
persons should be presumed as innocent until proven guilty by a competent court
or tribunal as the case may be. The
burden of proof also lays on the prosecution and the standard set is that of
beyond reasonable doubt.
This is
provided for under part IV of the 2012 Act. The police have been given powers
to arrest persons on reasonable suspicion that the person has committed or is
committing an offence under the Act.
This section is vague because it does not give the legal limits at to what is
to be considered “reasonable grounds’. Reasonable grounds may vary from one
person to another and may be subject to abuse by the police. Suspects however
should be released within 24 hours of arrest depending on the supervening
circumstances.The
Act also limits some rights and fundamental freedoms provided for under article
24 of the constitution for the purpose of investigation, detection of acts of
terrorism and protection of rights of others.
The
rights of an arrested person protected by article 49 shall be limited only for
the purpose of protection of the suspect or witness, avoid interference of
investigation and for the preservation of national security. Rights groups
differ with this section arguing that rights should not be limited because the
police to avoid abuse. Further, right to property is restricted to the extent
of detaining property used in the commission of an offence under the Act for
purposes of investigation.
The Act
also allows the interception of communication. An officer above the rank of
Chief Inspector of Police, with a written consent from either the IG or DPP,
may make an ex parte application to a subordinate court for an interception of
communication order. The court may make an order authorizing a police officer
to install an interception device in a premises so us to intercept and retain
communication.
Such evidence acquired is admissible. Opponents of the Act question this
section because it is against the right to privacy guaranteed under the
constitution and thus term this section illegal to the extent of its
inconsistency with the constitution.
The
subordinate courts have jurisdiction to try offences under this Act. Acts or
omissions committed outside Kenya which would ordinarily constitute an offence
if committed in Kenya are also deemed to have been committed in Kenya if the
perpetrator is a Kenyan citizen or ordinary resident in Kenya. The act should
be against a Kenyan citizen, against the government’s property outside Kenya or
an act to compel the government of Kenya to do or refrain from doing any act.
The person should thereafter committing the offence be in Kenya for him to be
prosecuted under this provisions as stipulated above.
Upon conviction, the court may order any property in connection to the
commission of an offence under the Act be forfeited to the state. Such property
shall be vested in the state if no appeal is lodged to challenge the order.
An
obligation is bestowed upon a person with information relevant to preventing an
act of terrorism from being carried out to disclose to a police officer. This
however does not cover the disclosure of information protected under any
written law which relates to non-disclosure and privilege. Further, the Act requires banks to give
quarterly reports on accounts owned or controlled on behalf of specified
entities or terrorist.
The CS
is also empowered to issue an order that would bar an association/entity
seeking registration on reasonable grounds that the association is directly or
indirectly supporting a terrorist organisation. Such an order should also be
filed with the High Court for examination. If the court considers the order
reasonable after according both parties fair opportunity to be heard, the court
shall confirm the orders, which shall subsequently Gazetted. An order not
confirmed by the high court has no effect.
The Act
establishes a Compensation of Victims of Terrorism Fund. Moneys paid to the fund shall emanate from:
·
Moneys realised from property forfeited to
the state under the Act
·
Gifts or donations received with the approval
of the CS
·
Any moneys vested in the fund by virtue of
any other written law
The
Cabinet Secretary is also empowered under the Act to make rules prescribing
anything that required to be prescribed.
Such rules are restricted to the carrying out of provisions under the Act. This
section has also aroused a lot of debate among human rights watchdogs. They
argue if not sanctioned will lead to the abuse of human rights.
Enactment
of this legislation has been a step closer to containing acts of terrorism in
Kenya. The harsh sentence meted out under the Act is in a bid to deter persons
from committing the said offences. It is also Kenya’s obligation under the
auspice of the UN to legislate laws that prohibit terrorism at the municipal
level. This was through the Security Council Resolution 1373 of 2001.
Kenya’s obligation under international law has also been stressed at length in
chapter 3 above.
The
history of human rights stretches back to antiquity where it was necessary to
establish a common understanding between an individual and the political class
to ensure that individuals were protected against arbitrary conduct by those in
position of power and influence.
Montesquieu once stated that the greatest hindrance to the full enjoyment of
human liberty by citizens was the uncontrolled power vested in and exercised by
Governments. Human rights are rights that are accrue to all human beings
without discrimination on basis of gender, nationality, ethnicity, colour or
even religion. They accrue to a person by virtue of being a human being. These
rights are universal, inalienable, interdependent, indivisible, equal and
non-discriminatory.
The SC
resolution 1373 did not make any reference to compliance of states to existing
international human rights frameworks. This position was cemented by the first
chair to the Counter Terrorism Committee (there in after referred to as the
CTC), Sir Greenstone Jeremy, in a briefing to the SC where he categorically
submitted that human rights lay outside the jurisdiction and mandate of the
CTC. This was the earlier reasoning behind CTC not necessarily requiring states
to comply with provisions of the Human Rights law.
This
position drew a lot of criticism from other UN bodies and NGO’s. The implied notion for such an omission is
that the war against terrorism was to be carried out at any cost such as
sacrificing fundamental rights and freedoms. However, in 2003, the SC adopted a
resolution that required states to ensure that they comply in particular with
international human rights and humanitarian law in any measure undertaken to
combat terrorism.
In furtherance, to ensure human rights were upheld in countering Terrorism, a
senior human rights officer was appointed to the CTC. The CTC is in constant
communication with the offices of the special Rapporteur on Protection and
Promotion of Human Rights at an operational plane in the fight against
terrorism.
It is
important to note that through the SC Resolution 1456, states have been
obligated to ensure they uphold international human rights in their counter
terrorism strategies. Kenya is no exception to this implied obligation. This
chapter seeks to evaluate if Kenya can strike a balance in implementing the
Prevention of Terrorism legislation and at the same time uphold human rights
provided for in our constitution and under international law which forms part
of our laws by virtue of article 2(6) of the constitution.
As
extrapolated earlier in the previous chapter(s), definitions should be clear
and precise. Legislation should be utterly precise to avoid misconceptions
which are usually associated with interpretation. A provision which is vague
may have a very wide scope which may be used by technocrats and other law
enforcement agencies in a manner that is likely to distort its intended
application. This overly excessive application may lead to the deprivation of
basic human rights accorded by the constitution and other legislations
including conventions which form part of our law by virtue of article 2(6) of the
constitution.
Firstly,
the Act does not give a definition as to the term ‘terrorism’. This is an
international phenomenon. Various attempts at the international plane have
fallen short of defining this rather elusive terminology. In an attempt to
define this rather amorphous concept, the Act enumerates acts and omissions
which are considered to be terrorist acts.
The Act criminalizes inter alia
activities that cause damage to property, prejudice national security,
interfere with essential services and endanger the life of persons other than
the person committing the act. The Act does not further define this vague
offences listed herein above. It leaves the interpretation by implication to
the courts.
The IG
is not required to make an ex parte
application to a judge in order to seize property if it is reasonably impracticable
to do so having regards to the urgency of the situation. The IG has been given
a 72 hour window in which such an application can be made to the judge.
What is an urgent situation has not been described nor is the criteria to
determine the urgency of the situation given. The IG may plead urgency as a
defence in any case even where it was not urgent since the Act is not clear.
The IG
may also recommend to the Cabinet Secretary (referred thereinafter as CS) to
declare a person, group or trust a terrorist entity where reasonable grounds
exist and the group has acted in association with specified entity.
The term ‘in association’ when broadly defined is likely to provide wide prosecutorial
powers to the enforcement authorities against person or entity who comes into
contact with a specified entity directly or through a proxy.
With such vague provisions, it is very hard to strike a balance in implementing
the Act and at the same time uphold human rights.
Anti-Terrorism
Police Unit (hereinafter referred to as ATPU) is a branch of the National
Police Service established in February 2003.
It was mandated with among other things to ‘prevent, disrupt and
interdict imminent terrorist activities in the country; investigate any acts of
terror: secure all scenes of terror attacks; establish a data bank for profiled
suspects; share intelligence with other security organs and monitor security
detail of foreign missions’.
Although
the ATPU has been tasked with thwarting any eminent terror attack, the police
have been given a wide array of power in dealing with terrorism by the Act. The
Act gives the police unsanctioned power to arrest persons on what is termed
‘reasonable ground’.
The parameter ‘reasonable grounds’ is rather vague at both the face value and
after careful consideration. Reasonableness is not a factual matter but rather
based on opinion. What may seem reasonable to one police officer may be
unreasonable to another. The Act does not enumerate acts or omissions that may
be regarded reasonable or unreasonable for the purpose of uniformity. The term ‘reasonable ground’ gives the police
a discretion hence enlarging the scope of its interpretation.
Although
the right to be produced before a court of competent jurisdiction is upheld
under the Act, the police may seek orders from the court to extend the
detention of a suspect pending further investigation for between 30 day and a
cumulative maximum of 90 days.
Such an elongated custodial order is an impediment to justice. This is contrary
to article 47 of the constitution which provides for the right to an
administrative action that is expeditious, efficient, lawful, reasonable and
procedurally fair.
Justice unnecessarily delayed is justice denied.
With
the wide powers given to the police, it is very hard to strike a balance in
implementing the Act and ensuring that basic human rights are protected. Such
wide powers will more often than not overlap and may interfere with the
absolute enjoyment of protected rights. Those rights should be limited or
alternatively be sanctioned by a different authority to create a system of
checks and balances. This will go a long
way in ensuring that human rights are protected. The Act should also endeavour
to define vague terms and provide parameters within which the police can apply the
provisions provided.
The
right to privacy is protected under article
31 of the constitution. The constitution prohibits property from being
searched and seized. It also prohibits unnecessary revelation of private
information and interception of private
communication. The Act allows the police to tap into communications for
purposes of obtaining information concerning an impending commission of an
offence. The Act limits the right to privacy by allowing the house of a person
to be searched, possessions seized, private information to be revealed and
communication to be intercepted.
Upon an application by a police above the rank of a Chief Inspector of police
with the written consent of the IG or DPP, a court may give an order requiring
a communication service provider to intercept specified communication. It may
also issue an order authorizing the police to install in specified premises any
device to intercept specified communication.
Such information obtained in contravention of article 31 of the constitution is
further qualified as admissible evidence.
Although
most provision limits the information obtained to the investigation of
terrorist activities, the quantity of private data collected and recorded is a matter
of great concerned. The data may be recorded for purposes of distinguishing
which information is relevant to the offence being investigated. The data
recorded but not of importance to the investigation should be disposed.
However, the Act is silent on this matter.
For
privacy to be ensured, methods that are aimed at recording specific data that
is relevant to commission of a crime under the Act should be employed. Other
methods are rather expansive and may collect data that may be deemed
confidential and irrelevant to the investigation. The Act should also stipulate
how data not useful to the investigation should be disposed for a balance to be
struck in implementing the Act and upholding the right to privacy. It is also
important for the government to look into other avenues of gathering
information which do not necessarily infringe the right to privacy.
Under
the ICCPR, restriction on the freedom of association can only be imposed where
it is prescribed by law and is necessary.
Such restrictions should be in the interest of national security, public
safety, protection of public health or the protection of rights and freedoms of
others. However, a state must justify the restrictions it makes to the freedom
of assembly through sound legal principles.
Some of the organizations profiled as specified entities carry out legitimate
activities. The acts of a single
individual may risk the entire existence of an organization if those acts lead
to its criminalization.
The
Mombasa Republican Council (therein after referred to as MRC) is one such
organisation that was criminalised after the government linked it to the
Harakat al-Shabaab al-Mujahidin commonly referred to as the Al-shabaab.
The MRC had a historical legitimate claim citing the 1895 and 1963 agreement
transferring the ten-mile coastal strip to the Government of Kenya. The Sultan
of Zanzibar oversaw the agreement in 1895.
The MRC contest the agreement because the stakeholders of the coastal region
were not involved. MRC filed a civil suit against the minister of Internal
Security for illegitimating the group basing it on a few individual who caused
unrest in the coastal region. The ban was later termed unconstitutional and
lifted after a successful petition.
The
ATPU as earlier discussed was formed to combat terrorism in Kenya as a special
branch of the Kenya Police Service. In the process of fulfilling its mandate,
it has been accused of violating human rights enshrined both under our
constitution and in international law. The unit has been accused of torture,
arbitrary detention and ill-treatment of suspected terrorist.
The
abuse of human rights has proved to be counterproductive rather than acting as
deterrence to commission of the offences listed under the Act. Some of the ways
that the abuse of human rights has affected the fight against terror is:
Radical
and extremist clerics mostly from the Muslim faith have used the human rights
abuse by the ATPU and police in general to justify jihadist violence and
recruit others into groups that have been outlawed by the government. The
radical clerics are exploiting the poor economic status of the majority
youthful population, abuse of basic human rights principles by law enforcers,
an anti-terror legislation that is deemed to profile and discriminate against a
given section of the society and a government that is ill equipped to alleviate
these socio-economic challenges. Such clerics position themselves as providers.
The
Muslim Youth Council is a purportedly charitable organisation in Kenya.
However, the group has been accused of advocating for a rather extreme
interpretation of the Quran which is supporting jihad. The Al Shabaab is
alleged to have announced a merger with this organisation in 2012.
Such organisations are run by sympathisers who offer refuge to the youth by provision
of basic necessities and ideological solace.
The
government should ensure it creates enough job opportunities for the youth by
implementing better policies and cutting on corruption. The government should
also invest on the moderate clerics who preach peace. An ideological battle can
only be won by countering it with another ideology.
The
African Commission on Human and Peoples’ Rights stated that the extreme
measures used to fight terrorism usually create more harm than good.
Such extreme measures distort the general populace trust in a legitimate
government especially from the socially, economically and culturally
marginalized groups. It is rare that terror attacks target up market
residential or business areas because they are usually well manned. These
attacks and police operations are usually witness in socio-economic challenged
areas due to the prevalence of insecurity and the small number of security
installations and apparatus.
The
Kenya police have had a poor human rights record for a long time. With the
leading corruption index among government departments, abuse of human rights is
also rampant. The United Nations Special rapporteur Philip Alston found the
Kenya police guilty of abuse of human rights. He found them responsible for
extra-judicial killings and torture. He recommended the dismissal of the then
commissioner of police Major General Hussein Ali and the AG for encouraging
impunity in the police force.
The
disappearance of suspects under police custody is also worrying. The ATPU was
accused of executing Kassim Omollo and Salim Mohammed in June 2013. In 2010 the
ATPU arrested, arbitrary detained and extradited suspects to Uganda after the
aftermath of the Kampala world cup bombings in contravention of extradition and
Human Rights laws. Such incidences have further radicalised the Muslim youth
most of whom taught by extremist clerics. They have rendered such acts of abuse
a legitimate reason to invoke their presumed Quran right to jihad.
It is
clear from the above excerpts, that the abuse of human rights in counter
terrorism strategies in Kenya is very rife. The police who have the mandate to
ensure that serenity is upheld in the society breach the same provisions of law
in carrying out their duties. The police should ensure that they uphold the
rule of law in performing their responsibilities. Human rights should be put at
the fore front as a consideration in the fight against terrorism.
LIST OF REFERENCES
CONVENTIONS
Additional Protocol to the GC’s of 1977
African Charter on Human and People’s
Rights
African Union Convention on the
Prevention and Combating of Terrorism of 1999
African Union Protocol on the Prevention
of Terrorism of 2002
Geneva Conventions of 1948
International Convention in Civil and
Political Rights
Universal Declaration of Human Rights
KENYAN LEGISLATIONS
The Prevention of Terrorism Act No. 30
of 2012
Kenya Gazette Supplement No. 38,
Suppression of Terrorism Bill 2003
BOOKS
McDonnell, TM (2011) United States, International Law, and the Struggle
against Terrorism: Routledge
Baderin, MA (2009) International Human Rights and Islamic Law: Oxford University Press
McGoldrick, D (2004) From 9-11 to the Iraq War 2003: Hart
Publishers
Gray, C (2008) International Law and the Use of Force: Oxford University Press
Nielsen, JS & Christoffersen L
(2010) Shari ’a As Discourse- Legal
Traditions and Encounters with Europe: Ashgate Publishing Limited
El Fadl, KA (2003) Rebellion & Violence in Islamic Law: Cambridge University Press
JOURNALS
Prof Musili, W ‘Going Beyond Legalism in
the Fight against Terrorism and Piracy’ (2013) 9 Kenya Law Journal
REPORTS
REDRESS and REPRIEVE: (2009) ‘Kenya and Counter Terrorism- a Time for
Change’
United Nations office on Drugs and
Crime: (2009) ‘International Law Aspects
of Countering Terrorism’
Open Society Justice Initiative: (2013)
‘Human Rights Abuse by Kenya’s
Anti-Terrorism Police Unite’
United Nations office on Drugs and
Crime: (2008) ‘Legislative Guide to the
Universal Legal Regime against Terrorism’
THESIS
Mwazighe, CL ‘Legal Response to Terrorism: Case Study of the Republic of Kenya’
Published MA thesis, Naval Postgraduate School, (2012)
CASE
LAW
