Thursday 9 April 2015

international law regimes affecting Kenya and importance if any

 An international law regime is a term commonly used for referring to laws that govern conduct of independent nations in their relationship with one another concerning certain issues. Kenya is a signatory to a number of international law regimes. They include:
a) African Nuclear Weapon free zone
It prohibits research development, manufacture, stock piling, acquisition, testing, possession control or stationing of nuclear explosive devices in territory of parties to treaty.
b) Arusha agreement
Aimed at establishing better economic relations between the East African community and African states.
c) The Nile treaty
It provides that Kenya, Uganda and Sudan cannot use waters of Lake Victoria and the Nile without the acquiescence of Egypt. The treaty signed by Britain on behalf of its east African colonies, forbids any projects that could threaten the volume of water reading Egypt.
d) East African Common Market Protocol
Allows free movement of goods, services, capital and labour in the block
e) Rome statute of International Criminal court
It is the treaty that established the international criminal court and Kenya is a signatory.
International law regimes seek to address co-ordination problems which may arise due to contact between different countries. Due to technological advancement, the world has been turned to a global village hence the need for a system to coordinate things arises. This is what led to formation of international law regimes.

A regime is a set of conditions most often of a political nature. International regimes are very important because they provide a socio-logical framework which enhances peaceful co-existence. However every good thing comes with its own set of disabilities. It is hard for any system to be one hundred percent (100%) efficient. There are issues which are bound to arise. Some pacts although beneficial have negative impact on one of the party involved or all the parties. “Kenya being a signatory to a number of such arrangements"

The East Africa Common Market Protocol was duly signed on November 20 last year (2009) _. It allows free movement of goods and services and labour in the bloc. The protocol is set to bring down barriers to movement of labour and goods in the region in what experts say to be a boon to the people of the bloc. This is one of the most significant pacts ever signed in the region. Taxation in the region is also set to be standardized. This is what prompted the finance Minister Uhuru Kenyatta to lower the tax of imported wheat. This led to demonstrations in parts of Narok. He did not have any choice because he was acting according to East African Common Market Protocol. This reduction in tax on whet led to the fall in price of wheat products at the expense of the local farmer.

The Rome statute of the International criminal court which established the international criminal court has also been vocal in solving disputes in Kenya. The international criminal court has also been vocal in vocal process of the post election skirmishes perpetrators. The process is being observed by ICC Prosecutor Luis Moreno Ocampo. The international criminal court establishment has provided a forum where past injustices can be put to rest. Controversy arises as to what why the Kenyan judiciary system cannot handle such an internal matter. Some people believe such arrangement is interfering with our internal issues. They believe that the Kenyan judiciary can handle such a matter. The question they are likely to ask anyone opposing their notion is, what is the purpose of the Kenyan judiciary?

The Nile treaty of 1921 is also one of the international law regimes which is controversial. It was signed by Britain on behalf of Kenya, Uganda, Sudan and Egypt. It gives Egypt veto powers on project which are likely to affect the progress of the Nile River. It also gives Egypt the largest share of the river. Egypt is entitled to 55.4 billion cubic liters of water out of the 84 billion cubic liters available. Kenya cannot undertake any project in Lake Victoria without consulting Egypt. The irony is that part of Lake Victoria is in Kenya and that Kenya being a sovereign state has control over it. This regime however restricts Kenya from its own territorial waters.
Article 2(s) of the recently promulgated constitution states that the general rules of international law shall form part of the laws of Kenya. Article 2 (6) then states that any treaty or convention ratified by Kenya shall form part of the laws of Kenya. Disagreements over international commitments are a persistent feature of international affairs. Some think it infringes the sovereignty of a country. These are some of the issues which need to be addressed to smoothen some of the issues further the institutions of international welfare. Although international regimes are a good idea they have their own set of limitations.










Are women disadvantaged in Kenya or is it a socio/cultural phenomenon?

The question seek to get a comprehensive opinion on ones view of a women in the society, if she is disadvantage in any way and finally if this phenomenon is legal or socio/cultural in nature. in Kenya women are basically disadvantaged in terms of discrimination .discrimination of women in Kenya has been institutionalized in that it can occur regardless of the desires or intentions of the people perpetuating it .the society structure has been equated with an institution where a male figure regains supreme opinions differ on this matter but I tend to agree with one thing an overlap exist between the legal framework and societal framework in relation to issues relating to disadvantages facing a Kenyan woman.
 Women have tried to find their place in a world that is predominantly male oriented. this is a phenomenon which is evident in Kenya women’s right to own, inherit and manage property are under constant attack from customs, laws and individuals who believe that women cannot be trusted with property .article 15 of convention on the elimination of all forms of discrimination against women (EDAW) requires state parties to give women equal rights to administer property. [1]This is however not that case in Kenya and most of other third world countries. The devastating effects of property violations include poverty, diseases, violence, and homelessness. This directly in most cases, or indirectly affects women

From basic family level women are disadvantaged in that they have little influence in decision making affecting their lives. Such a violation has the intent and effects of perpetuating women’s dependence on a dominant male figure. In most of these situations, women are mistreated by the dominant, egocentric male figure who acts as the sole provider.
The situation might even get worse if the woman has no formal education and depends on the husband for virtually everything. The societal and cultural setting provide a good basis for this kind of violation

In Kenya women are not allowed to inherit property .Kenya’s customary laws largely unwritten but influential that coexist with formal laws are based on patriarchal traditions in which men inherit and largely controlled land and other property rights. This practice deprives women a right and when also silence them this rights are violated sexist attitude has been fused into th4 Kenyan society. this is complex and lethal mix of cultural, legal and social phenomenon that underlies women’s property rights violation .when such cases are brought to court ,the courts often misinterpret family property and succession laws thus leaving women without remedies.  It’s wrong to allow one to suffer a wrong without a remedy.
In some Kenyan communities forced marriages is customary.
This contravenes article 16 of ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN WHICH Are allows women to freely choose a spouse and enter into marriage with full consent. Traditionally, women were married off at an early and tender age. Men had a financial benefit in doing this .most of rural conservative communities still practice this culture the society thinks that this is a normal phenomenon .This marriages undermine the education opportunities of women who are forced out of school. It also poses threats to their health and that of their off springs.

There are a significant low number of women in the formal employment sector. this  is  so ironical given that according to the recently leased census report by the ministry of planning women are a number than men .this can be attributed to lack of equal education in relation to their male counterpart, cultural attitude about working women, family obligation and chauvinistic nature of the dominate male figure. They are also underpaid and overworked. An example is the Export process Zone (ERZ) where women are preferred as employees, they are underpaid and overworked. Some senior employers make sexual advances to women who want to be employed. Although this is unethical, they usually give in because of the circumstances. Furthermore they cannot be able to handle legal fees if they decide to file a suit against such employers.


Another area where Kenyan women are disadvantaged is the education sector. Most women are under educated because of early marriages, teenage pregnancies and dropping out due to circumcision. Although free primary and secondary education was introduced in 2002 statistics show that female students have the lowest percentage of enrollment. This is a worrying trend. In a societal structure filed with cultural norms, girls are considered as home makers and need not to attend school. This is rampant especially in marginalized areas where traditions are still strong.

In general, women in Kenya are disadvantaged because of a variety of intertwined factors which include social cultural and legal constrains. It is however important to recognize a ray of hope eminent from a new political dispensation brought by the just promulgated constitution. Through affirmative action, the new constitution seeks to address the issue and thus bring gender parity to all spheres of the society





article 15 of convention on the elimination of all forms of discrimination against women (EDAW)
article 16 of ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN

DISSERTATION: TERRORISM AND THE LAW

CHAPTER 1

1.0 DISSERTATION PROPOSAL

1.1 INTRODUCTION

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[1]. 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[2]
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.

1.2 STATEMENT OF THE PROBLEM

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[3], 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[4].
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[5]. 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[6].
Section 36 of the Act gives the police power to intercept communication which is inconsistent to the right to privacy[7].
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[8].
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[9].
Section 50 gives a Cabinet Secretary authority to make rules[10]. 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[11].
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.[12].

1.3 OBJECTIVES OF THE RESEARCH

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.

1.4 RESEARCH QUESTION

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?

1.5 LITERATURE REVIEW

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[13].
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[14].
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[15].
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[16]. 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[17].

1.6 METHODOLOGY

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.

1.7 OUTLINE OF TIME SCALE

2nd October
Submission of the concept paper to instructor for approval
3rd – 22nd  October
Formulation of a detailed research proposal
23rd October
Submission of the final research proposal to the course instructor
29th October
Assignment of dissertation supervisor
2nd – 10th November
Review and approval of research proposal
11th -23rd November
24th – 28th November
1st  – 4th December
Drafting of chapter One of the approved research
Presentation of the draft to supervisor for review
Incorporation of supervisors recommendations
4th - 10th January 2014
11th – 17th January
18th – 27th January
Formulation of chapter two of the research
Presentation of draft to supervisor for review
Incorporation of supervisors recommendation
1st -7th February
8th – 15th February
16th – 21st February
Formulation of chapter three of the research
Presentation of draft to supervisor for review
Incorporating supervisor’s recommendations
22nd – 28th February
1st – 7th march
8th – 12th march
Formulation of chapter four of the research
Presentation to supervisor for review
Incorporation of supervisors recommendations
13th – 17th March
Final compilation of the research







PRELIMINARY TABLE OF CONTENT

CHAPTER I
CHAPTER II
CHAPTER III
CHAPTER IV
CHAPTER V

CHAPTER 2

2.0 DEVELOPMENT OF COUNTER TERRORISM LEGISLATION IN KENYA

2.1 INTRODUCTION

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.

2.2 HISTORICAL BACKGROUND

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[18].
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.[19]
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.[20]
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.

2.3 POST-INDEPENDECE DEVELOPMENT

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;

2.3.1 Penal Code (cap. 63)

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[21]. 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[22]. 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[23]. 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[24].
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[25]. This was with regards to persons who had prior knowledge of an impending attack who did not take reasonable to stop such an attack.

2.3.2 Protection of Aircraft Act

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[26].

2.3.3 Firearms Act

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[27].

2.3.4 FINANCING OF TERROR ACTIVITIES

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[28].
Part VI of the Banking Act empowered the Central Bank to inspect and control financial institutions[29].
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.

2.4 MAJOR TERROR ATTACKS BEFORE THE OF THE SUPPRESSION OF TERRORISM BILL

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:

2.4.1 Nairobi Bombings- 1975

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[30].

2.4.2 Fairmont attack- 1980

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[31].

2.4.3 United States Embassy bombing-1998

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[32].



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[33].
      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.

  2.5 Harm principle

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[34];
… 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[35]
It is because of this alarming statistics that a bill on terrorism was presented to parliament in 2003 for deliberation

2.6 THE SUPPRESSION OF TERRORISM BILL 2003

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[36].
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[37].
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[38].
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[39].
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.

2.7 PREVENTION OF TERRORISM ACT 2012

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.

 


 

 

 

 

 


                                                                


CHAPTER 3

3.0 INTERNATIONAL LAW AND TERRORISM

3.1 INTRODUCTION

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[40]. The constitution also affirms that any treaty or convention ratified by Kenya shall form part of our laws[41]. 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. 

3.2 DEFINITIONAL COMPLEXITY

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[42]. 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.[43]
A well-known international scholar stated that it was almost impossible to define terrorism in a way that was inclusive and unambiguous.[44] 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[45]. 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…[46]
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[47]

3.3 DEVELOPMENT OF TERRORISM LAW UNDER INTERNATIONAL BODIES

3.3.1 UNITED NATIONS

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[48].
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[49]. 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[50].
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.

3.3.2 POST 9/11 UN SECURITY COUNCIL ACTION

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[51]:
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[52]
The resolution also established a committee of the Security Council to monitor the implementation of the resolution[53]. Further, Article 25 of the UN Charter requires all member states to follow Security Council Resolution under Chapter VII[54]. 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[55].Kenya has acceded to all conventions set out in the resolution which include:[56]
§  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[57]:
§  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

3.3.3 SHORTCOMINGS OF RESOLUTION 1373

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[58]. 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[59].

3.4 REGIONAL MECHANISMS

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[60]. 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.

3.5 INTERNATIONAL HUMANITARIAN LAW AND TERRORISM

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[61]. 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[62]. Nicholas Lemann describes the war against terror as a metaphoric war without a definite ending unlike conventional wars which have a definite ending[63]. Slavoj Zizeck argues that the war on terrorism has replaced the cold war[64]. 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[65].





CHAPTER 4

4.0 EFFECTIVENESS OF THE PREVENTION OF TERRORISM ACT 2012

4.1 INTRODUCTION

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[66].
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[67]. 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[68]. 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.

4.2 DEFINITION OF TERRORISM IN THE PREVENTION OF TERRORISM ACT

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[69].
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[70]
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[71]

4.3 SPECIFIED ENTITIES

An entity is defined as a person, group of persons, trust, partnership, fund or an unincorporated association or organisation as the case may be[72]. A specified entity is described as an entity that falls under the orders issued with respect to section 3 of the act[73]. 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[74]. 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[75]. 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)[76].

4.4 OFFENCES AND SENTENCING

An offence is an act the doing of which is forbidden by a penal law or omitting to do what it commands to[77]. 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[78]. If the act results into the death of a person, the perpetrator shall be liable to life imprisonment upon successful conviction[79]. 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[80].
 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[81].
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[82]. 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[83].
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[84]. 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[85].
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.

4.5 INVESTIGATION OF ACT AND OMMISSIONS

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[86]. 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[87].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[88].
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[89].
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[90]. 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.

4.6 TRIAL OF OFFENCES

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[91]. 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[92].

4.7 MISCELLANEOUS PROVISIONS

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[93].  Further, the Act requires banks to give quarterly reports on accounts owned or controlled on behalf of specified entities or terrorist[94].
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[95].
The Act establishes a Compensation of Victims of Terrorism Fund[96].  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[97]. 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[98]. Kenya’s obligation under international law has also been stressed at length in chapter 3 above.



















CHAPTER 5

5.0 STRIKING A BALANCE IN ENFORCEMENT OF PREVENTION OF TERRORISM ACT AND UPHOLDING HUMAN RIGHTS

5.1 INTRODUCTION

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[99]. 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[100].
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[101]. 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[102].
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.

5.2 BROAD AND VAGUE DEFINITION

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[103]. 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[104]. 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[105]. 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[106]. With such vague provisions, it is very hard to strike a balance in implementing the Act and at the same time uphold human rights.

5.3 POLICE POWERS

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’[107].
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’[108]. 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[109]. 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[110]. 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.

5.4 PRIVACY PROTECTION

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[111]. 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[112]. Such information obtained in contravention of article 31 of the constitution is further qualified as admissible evidence[113].
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.

5.5 CRIMINALIZATION OF SPECIFIED ENTITIES

Under the ICCPR, restriction on the freedom of association can only be imposed where it is prescribed by law and is necessary[114]. 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[115]. 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[116]. 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[117]. 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[118].

5.6 IMPORTANCE OF UPHOLDING HUMAN RIGHTS IN THE IMPLEMENTATION PROCESS

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[119].
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:

5.6.1 Radicalisation of youth

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[120].
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[121]. 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.

5.7 CONCLUSION

The African Commission on Human and Peoples’ Rights stated that the extreme measures used to fight terrorism usually create more harm than good[122]. 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[123].
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
Randu Nzai and 2 others v Internal Security Minister and Another Misc. Application No. 486 0f 2010
Regina V Dedan Kimathi (1956) e KLR 13
WEBSITES






[1] League of Nations Convention for Prevention And Punishment of Terrorism Article 1(2)
[2] Turkish law weekly journal http://www.turkishweekly.net/article/103/definition-of -terorism-in-international-law.html (accessed on 13th November 2013)
[3] Act 30 0f 2012 Sec 220,224, 234, 235 and 393
[4] The daily mail publication 17th September 2012 (accessed on 12th November 2013)
[5] Act 30 of 2012 Sec 31
[6] Act 30 0f 2012 Sec 35(1)
[7] Act 30 of 2012 Sec 36(1):
[8] Act 30 of 2012 Sec 37(1)
[9] Act 30 0f 2012 Sec 46
[10]Act 30 of 2012 Sec 50(1)(a)
[11] Act 30 0f 2012 Sec 46 & 50
[12] A and Others v Secretary of State for Home Department [2004] UKHL 56
[13] CL Mwanzighe ‘Legal Response to Terrorism: Case Study of the Republic of Kenya’ Published MA thesis, Naval Graduate College, 2012
[14] Prof W Musili ‘Going Beyond Legalism in the Fight Against Terrorism’ (2013) The law society of Kenya Journal volume 9 2013 No. 1
[15] Kenya and counter-terrorism- a time for change :  Redress and Reprieve (2009)
[16] TM McDonnel, The United States, International Law, and the Struggle against Terrorism 2nd Ed (2011)
[17] D McGoldrick, From 9-11 to the Iraq War 2003 1st Ed (2004)
[18] CL Mwazighe “Legal Response to Terrorism: Case Study of the Republic of Kenya” published MA thesis, Naval Postgraduate School, 2012
[19] CL Mwazighe (n 15 above) at 55
[20] Additional Protocol I to the Geneva convention
[21] Penal Code, Cap 63, Section 220
[22] Penal Code, Cap 63, Section 235
[23] Penal Code, Cap 63, Sections 224 & 393
[24] Penal Code, Cap 63, Section 220
[25] Penal Code, cap 63, Section 393
[26] Protection of Aircraft Act , Act no 11 0f 1981 section 3
[27] Fire Arms, Act 46 of 1996
[29] Banking Act, Act no 8 of 2009, Part IV
[30] Terrorism in Kenya ,http//en.m.wikipedia.org/wiki/Terrorism_in_Kenya (accessed on 18th February 2014)
[31] Terrorism in Kenya, www.stanford.edu/clas/e297a/Terrorism%20in%20Kenya.htm (accessed on 19th February 2014)
[34] ‘Why laws exist’  civilliberty.about.com/od/history profiles/tp/Why-laws-Exist.htm (accessed on 12th February 2014)
[35] “Report of the Accountability Review Boards on the Embassy Bombing in Nairobi and Dar es Salaam on August 7, 1998”
[36]“ REDRESS and REPRIEVE (n 15 above)
[37] Terrorism in Kenya by Koome Gikunda
[38] Mwanzighe CL (n 9 above)
[39]The suppression of Terrorism bill, 2003, Kenya gazette supplement Nairobi, clause12(2)
[40] Kenya Const. art 2(1) & (4)
[41] Kenya Const. art 2(6)
[42]League of Nations Convention for Prevention and punishment of terrorism Article 1(2): criminal acts directed against a state and intended or calculated to create a state of terror in the minds of particular persons, or groups of persons or the general public.
[43] Prof W Musili, ‘Going Beyond Legalism in the Fight Against Terrorism and Piracy’ Vol.9 (2013) The Law Society Of Kenya Journal
[44] M. Bassiouni, ‘A Policy Oriented Inquiry of “International Terrorism” (1998) Legal Response to International Terrorism
[45] S Fidanci, ‘Definition of Terrorism in International Law” 4th March (2014) Turkish Weekly Journal
[46] G Levitt, “is terrorism worth defining” (1986) Hein online Law Journal
[47] Defining Terrorism in National and International Law’ http://edoc.mpil.de/conference-on-terrorism/index.cfm (accessed on 15th March 2014)
[48] S Fidanci, ‘Definition of Terrorism in International Law” 4th March (2014) Turkish Weekly Journal
[49] General Assembly Resolution 51/210 of December17 (1996) http://www.un.org/document/ga/res/51/a51r210.htm  (access on 15th march 2014)
[50] Legislative Guide to the Universal Legal Regime Against Terrorism” 2008 United Nations Office on Drugs and Crime
[51]TM Mcdonnel, The united states, International Law, and the Struggle Against Terrorism 2nd ed (2011)
[52] Kenya and Counter-Terrorism: A Time for Change; 2009 REDRESS and REPRIEVE
[53] S.C. Res. 1373, U.N. Doc.S/res/1373 (Sep. 12, 2001)
[54] Mcdonnel (n 10 above) 265
[55] REPRIEVE and REDRESS (n 11 above) 32
[56] http://www.un.org/sc/ctc/law.html (accessed on 1st March 2014)
[57] Counter Terrorism committee, ‘Technical Assistancehttp://www.un.org/sc/ctc/page2.html (accessed on 1st March, 2014)
[58] TM McDonnell (n 10 above) 266
[59] REDRESS and REPRIEVE (n 11 above) 34
[60] REDRESS & REPRIEVE (n 11 above) at 34
[61] htpp://www.icrc.org/eng/war-and-law/ (accessed on the 13th of March 2014)
[62] G McGoldrick ( n 14 above)
[63] N Lemann ‘the war on what?’ 1st Ed 2003
[64] G McGoldrick ( n 14 above)
[65] Nelly Kamunde Aquino ‘armed Conflict and Terrorism: assessing the legal boundaries of the application of IHL’ Unpublished (2014)
[66] Filipspagnoli.wordpress.com/stats-on-human-rights/statistics-on-war-conflict/statistics-on-terrorism (accessed on the 21st March 2014)
[67] Kenya Gazette Supplement No. 77
[68] CL Mwanzighe (n 10 above)
[69] Prevention of Terrorism Act  30 of 2012sec 2(1)
[70] Act 30 0f 2012 Para (a) (i to ix)
[71] Act 30 0f 2012  Para (b) (i) &(ii)
[72] Act 30 0f 2012  sec 2(1)
[73] Act 30 0f 2012 Sec 3
[74] Act 30 0f 2012 Sec 3(b) (ii)
[75] Act 30 0f 2012 Sec 3(2)
[76] Act 30 0f 2012 Sec3 (5), (6), (7), (8) & (9)
[77] Burton’s Legal Thesaurus, 2007 by William C. Burton
[78] Act 30 0f 2012 Sec 4(1)
[79] Act 30 0f 2012 Sec 4(2)
[80] McDonnel ( n 7 above)
[81] CL Mwanzige ‘LEGAL RESPONSE TO TERRORISM: CASE STUDY OF THE REPUBLIC OF KENYA’ published MA thesis, Naval Postgraduate School, 2012 75
[82] Act 30 0f 2012 Sec 12
[83] Act 30 0f 2012 Sec 9(1) & (2)
[84] Act 30 0f 2012 Sec 13
[85] ‘Kenya’s Muslim Youth Centre and Al Shabaab’s East African Recruitment’ http://www.ctc.usma.edu/posts/kenyans-muslim-youth-center-and-al-shabaab-east-african-recruitment (accessed on 23rd March 2014)
[86] Act 30 0f 2012  sec 31
[87] Act 30 0f 2012  sec 32
[88] Act 30 0f 2012  sec 35(1) & (2)
[89] Act 30 0f 2012  sec 37
[90] Act 30 0f 2012  sec 36 (1), (2) & (3)(B)
[91] Act 30 0f 2012   sec 38
[92] Act 30 0f 2012  Sec 40
[93] Act 30 0f 2012  sec 41
[94] Act 30 0f 2012   sec 42
[95] Act 30 0f 2012  sec 46
[96] Act 30 0f 2012   sec 49
[97] Act 30 0f 2012  Sec 50
[98] McGoldrick (n 5 above) 359
[99] K Kibwana, Fundamental Rights and Freedoms in Kenya 1st Ed (1990) 
[100]What are human rights, http://www,ohchr.org/en/issues/pages/whatarehumanrights.aspx (accessed on the 24th of march 2014)
[101] Security Council Resolution 1456 of 2003, McGoldrick (n 5 above) 369
[102] REPRIEVE & REDRESS (n 10 above) 38
[103] Act 30 of 2012 Sec 2 Para (a) and (b): interpretation
[104] Act 30 of 2012 Sec 37(2)
[105] Act 30 of 2012 Sec 3 (b) (ii)
[106] Human Rights Abuse by ATPU: Open Society Foundation (2013)
[107] Open society Foundation (n 102 above) 56
[108] Act 30 of 2012 Sec 31
[109] Act 30 of 20112 Sec 33(10)
[110] Kenya Const. art 47
[111] Act 30 of 2012 Sec 35 (3) (a)
[112] Act 30 of 2012 Sec 36 (1), (2) & (3)
[113] Act 30 of 2012 Sec  36(5) (a) & (b)
[114] International Convention on Civil and Political Rights Art 22
[115] African Charter on Human and People’s Rights art. 11
[116] Gazette Notice No. 12585 of 2010 (Accessed on the 24th of March 2014)
[117] The Mombasa Republican Assessment - Threats and Opportunities for Engagement: Civil Society Strengthening Programme (2011)
[118] Randu Nzai and 2 others v Minister of Internal Security and Another Misc. Application No. 486 0f 2010
[119] Open Society Foundation (n 102 above) 57
[120] Open Society Organisation (n 102 above) 58
[121] ‘Countering the radicalisation of Kenya’s Youth’ http://www.africaymca.org/k2africanews/item/1515-countering-the-radicalisation-of-kenyas-youth ( accessed on 25th March 2014)
[122] Open Society (n 22 above) 67