We, the undersigned organizations, wish to express our deep concern with the provisions of the Security Laws (Amendment) Bill, 2014, which the government hastily published on December 10, 2014.
We acknowledge that there are serious security issues in our country and we support government efforts to address the spiraling insecurity. However, any and all efforts must be in line with the principles and values espoused in the Constitution
The Bill seeks to amend the following Laws;
Public Order Act (Cap 56), Extradition (continuous and foreign countries) Act (Cap 76), Penal Code (Cap 63), Criminal Procedure Code (Cap 75), Prevention of Terrorism Act (2012), Sexual Offenses Act (2006), Registration of Persons Act (Cap 107), Evidence Act (Cap 80), Prisons Act (Cap 90), Firearms Act (Cap 114), Radiation protection Act (Cap 243), Rent Restriction Act (Cap 296), Kenya Airport Authority Act (Cap 395), Traffic Act (Cap 403), Investment Promotion Act (Cap 485), Labour Institutions Act (2012), National Transport Safety Authority Act (2012), Refugee Act (2006), National Intelligence Service Act (2012), Kenya Citizenship and Immigration Act (2011), National Police Service Act (2011) and Civil Aviation Act (2013),Public Benefits Organizations Act,2013. The bill once enacted as it is will have an impact on many more laws.
In exercise of our respective mandates we bring to the attention of the public the under-listed summary of our concerns, our detailed submissions will be made available on our respective websites
- PROCESS: We are concerned that contrary to the express provisions of Article 118(b) Parliament has not facilitated meaningful and effective engagement of the public with the Bill. The Bill was published on 10th December and was not made easily accessible. The tight timelines given by the Departmental Committee on Administration and National Security for making submissions combined with the difficulty in accessing the Bill limited public participation in the process. The proposed changes are not minor. They are momentous and seek to amend the Bill of Rights through the back door. Accordingly, any changes to the Bill of Rights require a referendum as per Article 255. The proposed Security Laws (Amendment) Bill 2014 makes major amendments to at least 22 laws and impact on several others including the laws relating to County Governments.
- UNCONSTITUTIONALITY OF A NUMBER OF THE PROVISIONS. We are concerned that a number of the provisions are in conflict with the provisions of the constitution or will in implementation result in a limitation of the rights provided for in the constitution.
Article 238 of the Constitution provides that National Security shall be promoted and guaranteed subject to the authority of the constitution and parliament and further, that the national security shall be pursued in compliance with the law and utmost respect for the rule of law, democracy, human rights and fundamental freedoms. This is an absolute requirement and not subject to the exercise of discretion.
Freedom of Assembly and Association: Clause 4 proposes to amend the Public Order Act so as give powers to the Cabinet Secretary to designate areas where and times at which public gatherings or public processions may be held. This contravenes Articles 10, 36,37 and 119 of the Constitution. The Limitations have the effect of negating the essence of the right. The current law that requires that an individual in notifying the authority give details of the purpose, date, duration, location and route of the procession are adequate. It is not clear how the proposed amendment to the Public Benefit Organisations Act will address the security challenges. The proposed amendment signifies an intention to maintain control over these organisations.
Freedom of Expression and Information: Clause 15 amends the penal code to create the offence of publishing or causing to be published or distributed obscene, gory or offensive material which is likely to cause fear and alarm to the general public or disturb public peace. The offence created is a felony and if committed by an individual the penalty is a fine not exceeding 1 million and imprisonment for a term not exceeding 3 years. If committed by a media enterprise a fine not exceeding 5 million shillings. Whereas the import of these provisions is clear when applied to communication by extremist and terrorist groups, the section does not seem to make exception for the role media and other actors play in sharing information and social commentaries on current issues. As framed the clause is an infringement on the right to expression and information. The existing media regulatory framework can adequately address the concerns of responsible journalism.
Access to Justice and Rights of Arrested Persons: Clause 18 (4) (c) and (10) make it possible for persons to be held without charge for a period of up to 90 days. As framed therefore the provision allows for detention without trial. So as to comply with constitutional standards it is necessary that the provision require that the Police furnish the court and the arrested person with a charge sheet that would indicate the offence for which the individual is being held. Clause 19 allows the prosecution to withhold information from an accused person. This is in direct contravention of the Constitutional requirement that the accused person be given all information that will enable him/ her prepare his or her defence. At the same time the accused person is obligated to furnish all the details of his/ her defence to the prosecution. This is an abrogation of the constitutional right not to incriminate oneself. Clause 76 extends the period of detention of terror suspects to 31 hours. This contravenes the constitutional timeline of 24 hours. As with other suspects it is necessary that courts sanction extended detention.
Protection against Non-Refoulement: A key principle of refugee protection is the principle of non-refoulement, which protects asylum seekers and refugees from being returned to places where their lives or freedoms could be threatened. Clause 58 proposes to amend the refugee Act and limit the number of Refugees and Asylum seekers permitted to stay in Kenya to 150, 000 persons. UNHCR current statistics provide that total population of concern is close to 600,000. Of these 539,938 are Refugees, 52,285 are asylum seekers and 20,000 are stateless persons. If passed this amendment would directly impinge on Kenya’s commitments at the regional and international level.
Right to Privacy: Clause 66 amends the National Intelligence Service Act by deleting the entire Part V of the Act and replacing it new Part V- Covert operations. This part eliminates the need for the NIS to seek a warrant from court. This means that the officers are able to carry out their functions without due regard to the law and respect for human rights, contrary to Article 238 of the Constitution. Like the defunct Special Branch, the Bill seeks to give the NIS powers to arrest suspects. In essence the NIS is given powers and functions outside of its constitutional mandate. We remind Kenyans of the heinous atrocities committed by NIS’s predecessor, the Special Branch, which wielded similar unfettered powers as the proposed ones. Hundreds of Kenyans were held incommunicado, killed and tortured in the infamous Nyati and Nyayo house torture chambers for speaking out against bad governance. To date the survivors and families of victims are still seeking justice.
Citizenship Rights: Clause 31 gives broad powers to the Director of Registration to take away citizenship rights. It expands the grounds provided for under the constitution by including a vague and indefinable ground ‘any other justifiable cause’.
- INDEPENDENCE OF THE NATIONAL SECURITY ORGANS: One of the Key recommendations of the National Task force on Police Reforms (Ransley Task Force) was the need to ensure that appointments to the National Police Service and especially at the leadership level be through a transparent and competitive process. Clause 63, 64 and 98 relate to appointment, term of service and removal from office of the Director General of the National Intelligence Service and the Inspector General of the National Police Service. In effect the amendment would revert to the position obtaining under the repealed constitution. The amendments seek to make the appointments and dismissal from these core positions the sole prerogative of the President. As framed the President would exercise unfettered discretion. The holder of the position would therefore be beholden to the appointing authority for all intents and purposes and will not be insulated from political and executive interference. The amendments also remove the fixed term of the Director General and Inspector General and therefore they would serve for an indeterminate period.
The Bill also takes away security of tenure of the Deputy Inspector Generals.
We do not agree that Security and human rights are incompatible as suggested by the proposed amendments. We are concerned that the amendments target existing provisions on accountability and transparency. We argue that Security challenges can best be dealt with by restarting the stalled security sector reforms in order to enhance accountability, transparency and efficiency. The passage of a new law will not on its own solve Kenya’s security conundrum as there are over 30 existing laws related to security that have not been adequately implemented. While we support the government effort to stamp out terrorism and insecurity, it is our considered opinion that such efforts must uphold the Constitution. To this end we recommend;
- The immediate withdrawal of the said bill from parliament.
- The separation of major from minor amendments proposed in the Bill.
- Compliance with values and principles stipulated under Article 10 and 118 of the Constitution on public participation.
- The subsequent bill or bills should therefore be made accessible in a simple language to Kenyans with reasonable timelines to allow public participation.
- That any amendment proposed on any provision in the bills of rights should be subjected to a referendum in line with the Constitution
Signed: Kenya National Commission on Human Rights, ARTICLE 19, Constitution and Reform Education Consortium (CRECO), Gay and Lesbian Coalition of Kenya (GALCK) Human Rights Watch, Independent Medico-Legal Unit (IMLU), Katiba Institute, Kenya Human Rights Commission (KHRC), Legal Resources Foundation, National Coalition for Human Rights Defenders-Kenya (NCHRD-K) and UHAI-EASHRI