On terrors and fears

On Monday, October 8, we had a couple of MRC leaders arrested with Mr Mraja, Mr Gwashe and Mr Mwachaunga charged with counts of incitement to violence, Mr Mwanguza was charged with being in possession of articles of witchcraft, and Mr Ngome was charged with illegally collecting money to fund MRC. Barely a week later, the president has assented the Prevention of Terrorist Act 2012, with minimal disregard of how this act will affect the rights of the Kenyan people as a whole and not the fears of a few people. If we look at the bill closely, one of its definitions of a "terrorist act" is “an act or threat of action which prejudices national security or public safety; and which is carried out with the aim of advancing a political, religious, ethnic, ideological or other cause; and causing fear amongst the members of the public or a section of the public, or intimidating or compelling the Government or an international organization to do or refrain from doing any act;” 

In a situation where the government uses it’s machinery in an act or threat of action which prejudices national security or public safety (e.g refusal to pay doctors leading to loss of life – public safety, refusal to facilitate security personnel to increase security within its borders – national security,) uses public funds to further advance a political, religious, ethnic, ideological or other cause (GK vehicles in campaign trails, religious gatherings), and causing fear amongst the members of the public or a section of the public (citizens being falsely accused of crimes they haven't committed and sometimes losing life in the hands of government officials) can we prosecute the government or is the government (or any part of it) above the law? What do we do if terrorism is used by state authorities (and individuals with access to state support) to delegitimize political or other opponents?

Moving on swiftly, let’s look at these scenarios more objectively here.

1.   If an act done by the Government is illegal and repugnant to moral justice, the Constitution imposes a duty of one to expressly refuse to endorse it using the appointed courts,  and ask to be granted an injunction against the Government for vindicating fundamental rights and freedoms. Part III (Clause 15-19) of this act that deals with offenses states, “15. (1) A person who carries out any act for the purpose of obstructing or hindering the cause of justice under this Act commits an offense and is liable on conviction to imprisonment for a term not exceeding twenty years, 16. A person who willfully obstructs a public officer in the execution of his duties under this Act or a person lawfully acting under the direction of the officer commits an offense and is liable, on conviction, to imprisonment for a term not exceeding twenty years, 17. A person who does or omits to do any act against a person or a member of the family of a person in retaliation for the person having given information or evidence under this Act commits an offense and is liable, on conviction, to imprisonment for a term not exceeding twenty years.”

This part of the law has legislated the government’s ability to limit ones right as per Article 49 (1)(b), to remain silent (if an act of silence is deemed as obstructing or hindering the cause of justice under this Act), it also takes away an arrestees’ right to refuse to answer questions posed by police officers even where such an answer would incriminate them as stated in Article (7) of the new law which expressly states that “a person shall not be excused from answering a question or producing a document or thing under subsection (6) on the ground that the answer or document or thing may incriminate the person or subject the person to any proceedings or penalty” (a right guarantee in Article 49 (1)( (l) to refuse to give self-incriminating evidence.). In reality, this bill waters down the whole chapter on Bill of rights by limiting freedoms and rights which begs the question, does the government in passing this law expect us to fight terrorism by making its citizens victims of human rights abuse? 

One of the reasons why the right to remain silent and to refuse self-incrimination was guaranteed in the constitution is as a government check against illegal arrests, torture and renditions by the state who from its past record has confirmed that it cannot be trusted to protect them. We have heard of state sponsored torture (Nyayo house should be still fresh in your minds), illegal arrests (recent bloggers arrested for information posted in private blogs) killings (Ngong forest and Karura forests were once dumping grounds for bodies once in police custody not forgetting the unsolved mystery of Sheikh Aboud Rogo, Samir Hashim Khan, Mohammed Bakhit Kassim whose bodies were found in Tsavo Nationa park) in past and present governments. Taking away this right is to open a door to illegal arrests, torture and renditions, disappearances and killings of those against state policies even when those policies are oppressive to the citizens. 

2.   Article 24 of the Kenya Constitution states that. (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including––  (a) the nature of the right or fundamental freedom;  (b) the importance of the purpose of the limitation;  (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

In this bill, The Court may, in determining an application under subsection (1), make an order —“ (a) requiring a communications service provider to intercept and retain specified communication of a specified description received or transmitted, or about to be received or transmitted by that communications service provider; or (b) authorizing the police officer to enter any premises and to install on such premises, any device for the interception and retention of a specified communication and to remove and retain such device” thus negating gains in fighting for the right to privacy, the freedom of expression, of security of a person, the media and of conscience, religion, belief and opinion and that of the rights of an arrested person, to the extent of preventing the commission (where being a suspect is so close to the commission its scary) of an offense under this Act. It also clearly states in Clause 37. (1) “The Inspector-General may, where he has reasonable grounds to suspect that any property has been, or is being used for the purpose of committing an offense under this Act, seize that property whether or not any proceedings have been instituted for an offense under this Act in relation to such property”, giving the government powers to legally take away anyone’s right to property.

If the basis of limitation of these rights is pegged on (b), (d) and (e) above, we should find away to ensure that these factors are not decided by the government because if (b) (the importance of the purpose of the limitation) is guided by a tyrant government, (d) (the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others) is used to fight a minority agitating for their rights, or (e) (the relation between the limitation and its purpose) is decided by the same institution that will prosecute the suspects, then we have a problem.

When we pass laws because they favor the majority regardless of how they affect the minorities, if it ever happens that the minority have grown and are now a majority, the children of your children will also face the atrocities the minorities of today will go through. If the purpose of terrorism is to exploit the media in order to achieve maximum attainable publicity as an amplifying force multiplier in order to influence the targeted audience(s) in order to reach short- and midterm political goals and/or desired long-term end states, what stops the state to label the media houses as proponents of terrorism if they are against government policies, or those using the media to check governments doings. What will become of cyber worlds who preach ideology governments are not comfortable with?

In assenting the bill as highlighted by Billow Kerrow, if an act of arson or assault is terrorism if done to further a religious or ethnic cause, it suggests that when Pokot raiders attack a Turkana village they're terrorists even when such an act is driven by government negligence of their needs, it is to allow the government  to declare MRC or a similar group set up in pursuit of a lawful socio-political agenda a terrorist group without prior judicial authorization, it is to limit the threshold required by security agencies to secure conviction of a suspect, in obvious contradiction of provisions in the Bill of Rights, it is state-sponsored terrorism and it's the citizens who will be squashed because they don't think this bill will ever affect them directly, until your brothers are prosecuted for being suspected of being members of the many outlawed sects in the country because he tried to further an ideology that the government is not comfortable with.