My take on the security laws ruling


A week ago the High Court made a ruling on what the Opposition CORD had successfully branded as a ‘controversial dictatorial Security Act only meant to return Kenya to the dark days of authoritarian rule Kenyans had sacrificed so much to get away from’. Many Kenyans, including some friends who otherwise support this government, believed them.

Publicly, CORD presented the new laws as Jubilee curtailing the civil liberties Kenyans had spent the last 25 years fighting for so as to rule without Opposition. Majority of us bought the CORD propaganda hook, line and sinker.

However, and to the surprise of everybody the High Court started by first alienating only 8 of the 98 clauses contained in the Act, as being worthy of further analysis as to their constitutionality. By default these distinguished judges we have mandated to interpret our laws were assuring us that 90 clauses out of the 98 … or 92 percent of the Act … was fine!

Then this week the five judges ruled on the 8 clauses. First they rejected the government argument that disclosure of evidence to suspects should be controlled; or that silence from a suspect should automatically be interpreted as guilt. Then they affirmed the government’s argument that the President should be allowed to nominate the Inspector General of Police; that the government has the right to revoke identification documents, and that the police can tap public communications.

The judges also agreed that the government can limit the movement of refugees to certain areas, but rejected allowing them to set a limit on how many refugees the country can host at a single time (On this one I have a problem. Kenyans should have the right to decide how many people from other countries we can host within our borders; even Europe does it all the time). But my favourite part of the ruling is the preamble, where the judges confirm that they do not live in ivory towers secluded from the realities of crime today. That single phrase “We are living in troubled times… ’ captured our reality perfectly.

However I do agree with the press statement issued by the lobby group ‘Terror Victims Support Initiative’ last Friday. There are several key concerns that must still be addressed from the 8pc of the law that the High Court did not uphold.

First, it is important for all of us to understand that terrorists are willing to die for their ‘cause’ as long as they can kill as many innocent people as they can in the process. These are people who would happily attend a court hearing with a bomb strapped to their chest and blow up the entire courtroom if they could. They are not interested in getting justice … especially from an ‘infidels’ court systems as they call us. Let us remember that in 2010 a Nigerian holding a British passport was arrested at the Kenyan Coast on suspicions of being a terrorist, then given bail only for him to sneak out of the country and off to London. A month or so later he attacked and beheaded a British soldier right on the streets of London, in broad daylight? What would have happened if that guy was not allowed bail? I therefore respectfully must disagree with Justice Lenaola and team, and agree with the terror victim’s initiative. Anyone suspected of wanting to blow himself up and kill innocents Kenyans should not be given bail UNTIL investigators are satisfied that such suspicions are unfounded.

The other ruling I do not agree with is on media coverage of terror incidences. We cannot argue that the media should cover terror incidences as per their existing code of conduct, when we remember that controversial picture that Sunday Nation run as a headline during the Westgate attack. Did anything actually happen to Nation after that really irresponsible picture? Did they not just apologize … and moved on? Is that enough to stop them doing it again? What about the fact that mainstream media is now happy to use material posted on the Internet, attribute it to some unverifiable social media identity, and then publicize it on the argument that such material is already in public domain? And why does our media think our constitution includes the ‘Right To Offend’?

I hope to see a successful appeal on these issues.

But meanwhile could we all agree on how someone qualifies to be categorized as a terror suspect? I have this suspicion that CORD’s resistance to these laws comes from their fear that such laws might be used to harass them for political reasons. If we can define who a terror suspect is, then this politicizing of the fight against terror will end. Then maybe we can all fight the terror war together across our various divides; which is the only way to win it.

(Wambugu is a Director at Change Associates, a Political Think Tank)

3 Replies to “My take on the security laws ruling”

  1. “…[And why does our media think our constitution includes the ‘Right To Offend’?]…”

    Our constitution under Article 19 (3) [b] and Article 21 (4) sets our constitutional Bill of Rights into the clasp of universality; I can assure you that Kenya is signatory to many more rights under the International human Rights Charter, that are NOT mentioned in our constitution, but still legally apply to our constitution….

    On the other hand the “Right to Offend” is a basic principal of rights, in that; you are NOT obliged by law to like, value or even respect my opinions, my race, my dress, my ethnicity, my ideological conscience etc etc – in fact they may offend-you, and in as such you are obliged by law to be practicable in your dislike to them; that is the definition of “My Right to Offend” or yours to be offended……in common language we simply term-it “to agree to disagree”…..

    “…[Kenyans should have the right to decide how many people from other countries we can host within our borders; even Europe does it all the time).]…”

    NOT TRUE: We are all Internationally obliged to declare our refugee status at the first haven-of-safety, Somali’s running-away from persecution can hardly call Sweden their first port-of-call from JKIA……how many Africans MUST die trying to sail floats to Europe, when they have relative safety in say – Libya….;)))

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