AN ANALYSIS OF KENYA’S NEW ANTI-TERRORISM BILL
By Ahmed Issack Hassan, Advocate, High Court of Kenya.
The attacks on the Pentagon and the Twin Towers (the World Trade Centre) in the U.S.A. in September 11, 2001 involving the hijacking of Civilian aircrafts and the murder of at least 3000 people led the U.S. Government to announce a “war on terrorism” involving legislative and other measures.
On 7th October 2001, U.S.A. and its allies on the war on terror launched military action in Afghanistan targeting Taliban, Al Qaeda and Osama bin Laden. Other measures included declaring organizations terrorist and freezing their assets; Millitary Co-operation with other government e.g. Kenya and Philippines,
On the legislative Front, the U.S. congress passed the Patriot Act in October 2001 whose Provisions included new government powers to detain foreign nationals suspected of involvement in “terrorism” or “any other activity that endangers the national security of the
United States” for 7 days without charge. The Act authorized the Attorney General to continue to detain indefinitely on, “national security grounds” foreign nationals charged with immigration violations whose removal was unlikely in the foreseable future.
In November 2001, President Bush signed a military order allowing for Non-U.S. citizens suspected of involvement in “international terrorism” to be tried by special military commissions which would expressly bypass the normal rules of evidence and safeguards prevailing in the U.S. Criminal Justice System. Under the order, the commissions could operate in secret and pass death sentences which could not be appealed to a higher Court.
Following the enactment of the Patriot Act by the U.S. Congress and the Millitary order issued by the President establishing special Millitary Commissions, more than 1200 people, mainly Non-U.S. Nationals from South Asia, Middle East and North Africa, were arrested and taken into custody.
Civil Rights Advocates in the U.S. expressed concern at the unprecedented levels of official secrecy surrounding the detentions and at reports that some detainees were denied prompt access to attorneys and relatives, that some Muslim detainees suffered physical and verbal abuse from guards or other inmates, cruel conditions of confinement including prolonged solitary confinement, inadequate exercise and the wearing of shackles during non-contact visits.
International Human Rights watchdogs such as Amnesty International and Human Rights watch expressed grave concerns at the reports on the plight of these detainees. A.I’s concerns included reports of incommunicado detention, ill-treatment of detainees in custody, indefinite detention of foreign nationals on the basis of mere suspicion of involvement in terrorism, new powers of government to monitor communications between Lawyers and detained clients on national security grounds, the potential use of secret evidence and that trials under the special military commissions violated the principle of non-discrimination and international fair trial standards.
In 2002, Human Rights watch, in a report entitled; “Presumption of Guilt: Human Rights Abuses of post September 11 Detainees” reported extensively on the failure by the Department of Justice, the FBI and INS to respect the basic human rights of the detainees.
On 3rd June 2003, the Office of Internal Oversight (OIG) – (like an ombudsman), an internal agency watchdog, released a 198 page report entitled, “The September 11 Detainees: A Review of the Treatment of Aliens held on Immigration charges in connection with the Investigation of the September 11 Attacks” confirming abuses reported by Human Rights Watch and AI, including prolonged detention without charge, denial of access to legal Counsel, excessively harsh conditions of confinement; Blanket denial of bail, and the use of Immigration detention to investigate criminal activity.
As at the date of the Publication of the OIG report, several detainees had already filed Lawsuits against the U.S. Government and several of its agencies and officials.
The fact that an internal oversight agency like the OIG has issued such a damning report which is an indictment of the U.S. Government and its agencies of its unfair treatment of the detainees says a lot about the level of human rights abuse of the detainees in truth and reality. It could be worse.
The U.S. Government and its allies in the West maintain that the war on terror is not a war on Islam or on Muslims. However, the fact that most of the victims of this war on terror are mostly Muslims be they individuals, institutions or organizations have reduced the said statement to a mere rhetoric or cliché. It remains to be seen whether those involved in the war on terror can overcome their suspicion or mistrust of Muslims and turn them into Partners in the war on terror.
Other than the U.S, other countries in Europe, Asia and Africa that are Party to the Global war on terror have also passed similar anti-terrorism Laws. They are U.K, Australia, Phillipines, Indonesia, Ethiopia, Sudan, Uganda, Tanzania and now Kenya to name but a few. International Human Rights Advocates have expressed the concern that the U.S. led war on terror and accompanying anti-terrorism Laws have had a domino effect with other countries taking the cue from the U.S. and this has the effect of scaling down international human rights standards.
Kenya has been a victim of terrorism before and after 9/11. Examples are; – the Norfolk Hotel bombing of 1970’s, the August 1998 Bomb blast and the December 2002 Paradise Hotel Bombing. Most of the 1998 Bomb blast terror suspects were arrested, charged and/or extradited under the existing Criminals Laws of Kenya. However, after the 9/11 terror attacks in the U.S, the Kenya Government declared that it had joined the U.S. led global war on terror and the then President of Kenya even led a Public demonstration in Nairobi, the first of its kind, against the 9/11 terror attacks.
Since the end of the first quarter of 2003, several Western Governments, notably the U.S, U.K. and Australia have declared Kenya as one of the countries facing potential and at times Imminent terror attacks and have issued travel advisory and warnings to their nationals not to visit Kenya. These fears were given credence by a Statement from the Minister for internal security of Kenya confirming the presence of a terror suspect in Kenya. This was followed very closely by a decision by the U.K. Government to cancel B.A. Flights to Kenya. This state of affairs is predictably going to negatively affect tourism in Kenya and by extension the Kenyan economy as tourism is one of the major exports and foreign exchange earner for Kenya.
The new anti-terrorism bill published by the Kenya Government must be seen in the context of the foregoing. Even before the Publication of this bill and in an effort to restore confidence in Security in Kenya, the Government has embarked on what it describes as a crackdown on terror suspects and their networks in Kenya. This has come in the form of increased security and patrols at border points and the arrest and detention of many people, mainly of the Muslim faith, on allegation of links to terrorists. Most of those arrested have been released without any charges after days in custody. These arrests have provoked protests from the Muslim Community with Supkem accusing the Government of targeting the Muslims for harassment and illegal arrests and detention.
Analysis of the Draft Anti-Terrorism Bill
The suppression of Terrorism Bill, 2003 was published in a special issue of the Kenya Gazette as Supplement No. 38 on the 30th April 2003. It is now awaiting debate and eventual enactment by the National Assembly.
Though the name of the Bill is, “Suppression of Terrorism”, the short title of the Bill states that it is an Act of Parliament to provide measures for “the detection and prevention of terrorist activities and for related purposes”.
The Bill contains 44 Sections and 4 Schedules and is divided into 9 parts. Part 1 deals with preliminaries, Part II with Terrorist Offences, Part III with Declared Terrorist organizations, Part IV with Terrorist Property, Part V with Terrorist Investigations, Part VI with Exclusion orders, Part VII with Mutual Assistance and Extradition, Part VIII with Amendments and Part IX with Miscellaneous Provisions.
- The Bill sets out very stiff penalties for any person or organization associated or connected with terrorism, a terrorist or terrorist organization, whether directly or indirectly and in whatever form. The wide definition of terrorism under Section 3(2) of the Bill to cover offences committed outside Kenya shows that terrorism is now viewed as part of crimes against humanity such as Genocide mass murder and other war crimes. While there is an International Convention against genocide and war crimes providing mechanisms for such extra territorial jurisdiction, there is no such convention as yet on terrorism. Moreover, the imprecise, equivocal and at times general language used in the definition of the offences created under the Bill coupled with the fact that the fines provided as alternative punishment to imprisonment are not clearly determined appear to offend Section 77 (8) of the Constitution which provides that no person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is provided for.
- The Bill creates certain offences of strict liability requiring no proof of intention and motive (No mens rea. Only actus reus). For example Section 6 creates the offence of possession of an article for terrorist purposes and in sub-clause 3, it is provided that where such an article is found in any premises at the same time as the suspect, it shall be assumed that the suspect was in possession of that article whether he knew of its presence or not. This violates the rights of the suspect as stipulated under Section 9 of the Penal Code, Cap. 63, Laws of Kenya which provides that a person is not criminally responsible for an act or omission which occurs independently of his will. It also has the potential of abuse in that unscrupulous Police Officers could use this Provision to “plant” evidence on suspects to their detriment.
- The Provisions of the Bill relating to the tracking, attachment, seizure and detention and forfeiture of terrorist property under Sections 19, 20, 21 and 22 are flawed and legally untenable in the following manner:-
(a) The use of the Civil Jurisdiction of the High Court and Magistrate’s Court to issue ex parte orders in what is a criminal investigation and/or prosecution is unprocedural and an abuse of the Court Process.
(b) The automaticity in the grant of the ex parte orders, which have no provisal for setting aside or appeals and which violate the rules of natural justice, have the effect of presuming the guilt of the affected person or organization.
(c) Compliance of the ex parte orders may lead to a violation of the Privileges of Advocate – client relationship and that of a Bank and its customer.
(d) The appointment of a Receiver by the Court to manage the property of any suspect undermines the rights of such a suspect to be presumed innocent until proved guilty or he pleads so. Under the Bankruptcy Laws in Kenya, a receiver is appointed only after proof of such bankruptcy or insolvency. The appointment of Receiver assumes guilt when innocence may eventually be proved.
(e) The return of any detained or seized cash to the owner if found innocent is not clearly provided for. The ambiquity can be abused to deprive persons of money for the unjust enrichment of others.
(f) The Provisal that proof of terrorist property is on a balance of probability and not on proof beyond any reasonable doubt as required in all Criminal Cases is to lower the standard and burden of proof to the detriment of the suspect.
- The extension of the definition of a terrorist under Section 24 to a person who has been concerned in terrorism before the enactment of the Act as law amounts to a retroactive or retrospective application of the Bill or creating offences retroactively. This is against the principle of legality and violates Section 77 (4) of the Constitution which provides that no person shall be held to be guilty of a Criminal offence on account of an act or omission that did not, at the time it took place, constitute such an offence.
- The Powers given to the Police under Section 26 to detain any person found in a place which is the subject of an urgent Search permits the collective punishment and deprivation of liberty rights of persons who may have nothing to do with the Search. Further, the wide discretion given to any Police Officer, even one on general duty, beat and patrol, to arrest any person whose dressing is suspicious in his/her opinion coupled with the absence of a clear definition of what constitutes suspicious dressing cannot be justified in a reasonably democratic Society.
- Under Section 30 any Police Officer, above the rank of Inspector is allowed to hold a suspect incommunicado for upto 36 hours without access to a Lawyer or family members. This is a very clear abrogation of the rights of such a detained person to be taken to Court within 24 hours and to have prompt access to a Lawyer of his choice in accordance with Section 72 of the Constitution. The holding in detention of such a person for 36 hours incommunicado amounts to inhuman and degrading treatment and mental torture of that person.
- Section 37 of the Bill is speculative, presumptive and inconsistent with the practice in Kenya of domestication of International Instruments. It assumes that there will be an International Convention on Counter-terrorism to which Kenya will become a Party and then makes that Convention to be a basis for extradition.
- The procedure adopted for amending the schedules of the Extradition Acts under Sections 38 and 39 of the Bill is unusual. These Sections are amending a Section of two schedules of two Acts concerning extradition by reference. This is as opposed to the other known procedure of amending Acts by the enactment of an amendment Bill e.g. the Extradition Act Amendment Bill to amend the same Schedules.
- Section 40 of the Bill confers upon the Police and other Officers the power to use reasonable force in the performance of their work and if from the exercise of such powers death or injury to a person or loss or damage to property is occasioned, they are indemnified from any claim in any civil or criminal proceedings. Given the fact that “reasonable force” and the scope of its application in the Bill is not defined, the Blanket Immunity given to the Police for their actions, which immunity is not even given during a state of emergency, is a potential ground for abuse and the consequent violations of human rights of persons is quite high. This immunity is an unacceptable derogration from the right to life, liberty and property of accused persons which cannot be taken away without the due process of the law.
The Draft Suppression of Terrorism Bill as published has serious flaws and anomalies that necessitates its amendment before enactment. Several Provisions of the Bill contravene and are inconsistent with the Constitution and other Laws.
A careful analysis of the Bill reveals that it purports to set up a different criminal justice system for persons charged under the Bill separate from the other Criminal justice system which applies to other accused persons. It severely limits the rights of the accused person as guaranteed in the Constitution and International fair trial standards. It shifts the burden of proof and assumes that any person or organization charged under this Act is guilty until proved innocent. Its enactment in the form published will be a major reversal of the gains made in the human rights struggle in Kenya.