Having gone through the proposed amendments to our security laws the below is my specific assessment and contribution.
In general these are good amendments proposed for the laws and are definitely the right step towards fighting terrorism and other organized crimes. Obviously the law alone is insufficient to deal with the phenomenon of extremist violent radicalization, in itself a departure from commonly held norms. Further still laws alone cannot protect a nation from impunity or abuse of office and power through the security machinery. Conscientious leadership, democratic values and respect for the purpose and role of security agencies by our leadership will always guarantee it. How that can be achieved for posterity is outside the purview of this document yet it should be pursued by all with similarity of urgency and intensity as these security laws have been worked on.
In passing these amendments all adherences to the constitution and laws of the land, itself a significant requirement in an effective anti terrorism strategy must be followed. As we legislate, let us not forget Kenyan history and the reasons why we made the laws we now wish to amend. In order to protect those concerns it may be better in some aspects to find strategic, technical or operational means within the security mechanism to move on. As a measure of this same spirit we could evaluate if some currently desired changes if not made actually have the potential to deny us the victory in the war on terror or if protecting/ preserving, previously hard fought for rights may be more advantageous for posterity.
That having been said, I should mention here that it is very apparent to me that a security agency with completely bound hands is and shall remain an impotent one. To that end I am glad that in my assessment of the proposed security law only 07/109 clauses – 7.6% would need to be deleted from the list.
Suggestions for Amendment to the Bill
Amendment Section 32 - Evidence Act Cap 80
Section 20A (2) & (5) - Require a 2 day notification of objection to prosecutor prior to being tendered in evidence. A period sufficient to scrutinize the same documents not less than 3days should be required for production of the documents to concerned parties so they have ample time to go through and launch any objection they may have.
Amendment Section 39 - Prisons Act Cap 70
Insertion of new section 70A - include in details to be recorded by the Commissioner after (g) & before (f); “the record of prisons, specific cell numbers and commensurate dates where the suspect has been held”. Which is critical data declaring specific location and period for those held will be needed in an investigation and should not be left to chance.
Amendment Section 17A - KAA Act Cap 395
Establishment of Inter- Agency Security Advisory Committee – potential for conflict with the National Civil Aviation Security Committee indeed the Kenya Civil Aviation Authority Act Section 3B – Functions of the Authority Section 1: (f) the coordination and direction of search and rescue services; (g) the provision of services and facilities in relation to the investigation of aircraft accidents and incidents; (i) dealing with incidents of unlawful interference with aviation security. Section 3 No.(6) In the discharge of its responsibility for aviation safety and security the Authority shall coordinate its activities with other agencies of the Government, including the Kenya Ports Authority, the Department of Defence and the Police. The Civil Aviation Regulations 2013 Part 3 section 10 on National Civil Aviation Security Committee (a) & (b) see especially B 3) Without limiting the generality of sub regulation (2) the Minister shall, in appointing members of the National Civil Aviation Security Committee, ensure that it comprises one member from each of the following departments, agencies or organizations— (a) the Authority; (b) the Chairperson of the National Air Transport Facilitation Committee; (c) the airport authority; (d) the ministry responsible for security or internal affairs; (e) intelligence organizations;
Amendment Section 59 - NIS Act CAP 28
Section 2 (b) in the definition of preventive intelligence include after important personalities or any other matters of national interest
Amendment Section 62 - NIS Act Cap 28
6A. (1) An officer of the Service may stop and detain any person whom the officer— Allow powers to arrest but require the NIS to detain in an authorized police station & notify the OCS/ OCPD of the same and to produce the suspect before court in accordance to the laid down Criminal Procedure Code laws. Furthermore these powers can be limited to specific cases including organized transnational crime like terrorism & drug trafficking only. This amendment seems to have been proposed to deal with breeches of intelligence operations emanating from possible National Police Service Officers who may have leaked information to suspects. If so, measures to promptly prosecute them, internal investigations and counter espionage operations should deal with such occurrences in near term while organization wide culture change/ reform program can be pursued in a 3-5 year plan. Rather than pass the amendment as proposed, one reason to pursue these technical and operational steps is that those who have previously colluded with the police in the past, probably on a corrupt basis, will only change their client to the NIS after the law is changed so that in effect the demand follows the supply and the status remains the same.
NIS act has proposed greater empowerment of the service without providing for commensurate increase in oversight, being that all the work they do is on behalf of the citizens. A prosecution process for intelligence officers who commit crimes should be placed in the mainstream court system. Although the process must then take cognizance of the need for appropriate facilitation when it comes to hearings involving national security matters where disclosure of material would be damaging to the public interest. Central to this is introduction of legislation to make the mechanism known as closed material procedures part of that processes such a system will advance greater public trust and a more ethically run institution. To the end that Kenyans will bear higher confidence in the workings of the agency;
Amendment Section 73 - Prevention of Terrorism Act Failure to prevent entry of weapons - 12C (1) Any person, who, being in charge of any place of worship institution or public place within which illegal weapons are recovered, shall be deemed to be in possession of such weapons and shall be liable to imprisonment for a term not exceeding twenty years. (2) It shall be a defense if the person referred to in subsection (1) shows that he had no control over the entry of the weapons in the place of worship institution or public place or he took appropriate step to prevent into the place of worship, institution or public place. – insert a close to allow the Cabinet Secretary authority to list what the appropriate steps are to leave no room for contention or wider interpretation. Example appropriate measures could include ensuring suitable (specified) training and general awareness programs/ announcements for staff and for all users of the facility, appointment of certain officials to ensure security of the premises, regular search of premises, locking of rooms, facilities that could be used to conceal weapons etc
Amendment Section 75 - Prevention of Terrorism Act Cap No. 30 of 2012
Prohibition from broadcasting 30F (2) A person who publishes or broadcasts photographs of victims of a terrorist attack without the consent of the National Police Service and of the victim commits an offence and is liable on conviction to a term of imprisonment for a period not exceed three years or to a fine of five million shillings, or both – Insert; after photographs, “ that visually identify an individual”, so as to achieve the desired effect in controlling traumatic exposure of personal identities through regular media reporting but at the same time avoid what appears to amount to gagging the media.
Amendment Section Part - VI: Mechanism for coordinating counter-terrorism measures: in addition to establishment of NCTC it is critical to consider establishment of County Data Fusion Centers to be used as intelligence focal points manned by all agencies in the fight against crime including terror which often feeds off other illegal activities such poaching, drugs & small arms trafficking etc these centers working at county level would be used to better facilitate intelligence led policing which in turn will feed into NCTC, NIS & NPS overall mandates.
Establishment in law of a congruent border security unit involving immigration, customs and excise, NIS, administration police or other relevant security agencies should be a significant inclusion in so much as that terror resources are being imported into the country while supplies and fresh recruits go through the very same borders only to return later to attack among other places the border towns as recent incidents in Mandera & Garissa have shown.
Establishment of a Homeland Security Authority/ ministry that works on a day to day basis to plan, develop, manage, regulate and direct an efficient comprehensive national strategy for all security and non security activities geared towards finishing terrorism and other transnational organized crimes should be a priority and should have informed these amendments even if a separate act of law will be required to establish it. That establishment of such an authority should have come first and the amendments after that to avoid double work and confusion in the running of internal security matters.
Public Order Act Cap 56
Amendment Section 4 - New Section in Public Order Act Cap 56 - 5A The Cabinet Secretary may by notice in the Gazette designate the areas where, and times at which public meetings, gatherings or public processions may be held. Curtails/ challenges freedoms declared in the Constitution of Kenya Chapter Four––The Bill of Rights No. 37; Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.
Amendment Section 5 - Section 6 of the Public Order Act is amended— (a) by inserting the following subsections immediately after subsection (1)— (1A) Any person who unlawfully convenes, organizes or promotes a public rally, meeting or procession or neglects or refuses to comply with any law relating to public meetings commits an offence. – Supporting curtailing above mentioned freedoms
Penal Code Cap 63
Amendment Section 15 - Inserted Section 66A, A person who publishes or causes 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 is guilty of a felony and is liable, upon conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding three years or both, or, where the offence is committed by a media enterprise, to a fine not exceeding five million shillings. – risks curtailing freedom of press/ has no measure to determine content thus open to abuse
NPS Act Cap of 2011
Amendment Section 97/98/99/100 - (Section 12) of the National Police Service Act is amended by— (a) Deleting subsection (2) and substituting therefore the following subsection— (2) The President shall, within fourteen days after a vacancy occurs in the office of the Inspector-General, nominate a person for appointment as an Inspector-General and submit the name of the nominee to the National Assembly. (b) Deleting subsections (3), (4), (5), and (6). (Section 15) of the National Police Service Act is amended by deleting subsections (2), (4), (5), (6), (7) and (8). (Section 17) of the National Police Act is amended by deleting subsections (2), (3), (4), (5) and (6) – (Section 29) of the National Police Service
Act is amended by deleting subsections (2) and (3).These changes do not affect the war against terror if anything it leaves the office prone to abuses similar to those witnessed historically in the misuse of police by the political class. It is a clear move to de-professionalize the service.
Example of Numerous ‘Acceptable’ Sections
The Majority of 109 clauses in the amendment act are good these parts selected here are just examples;
- The increase in penalties e.g. from 1k to 10k or 100k from 3months to 2years
- Corrections of titles Commissioner to IGP Minister to CS Province to County etc
- - Insertion of new section 128A - Offences by public officers
- - Insertion of new section 251A - Insulting modesty by intruding privacy or stripping
- - Insertion of section 36A - Remand by court – giving lee way for terror investigations yet maintaining judicial supervision of the curtailment of individual freedom
Other articles of interest:
Ø My Top 10 Things in the 1st Month for the New Security Chiefs: http://www.winnermanconsult.blogspot.com/2014/12/my-top-10-things-in-1st-month-for-new.html
Ø What specific role do you have, when it comes to national security? http://www.winnermanconsult.blogspot.com/2014/12/what-specific-role-do-you-have-when-it.html
Ø To Separate or Not To Separate AP & KP: http://www.winnermanconsult.blogspot.com/2014/12/to-separate-or-not-to-separate.html
Ø Addressing Current Public Dissatisfaction in Policing: http://www.winnermanconsult.blogspot.com/2014/12/addressing-current-public.html
Ø Suggestions in Realignment in Administration Police Functions
Bernard M. Makau
Winnerman Consult & Training Ltd.
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