In the middle of this month, I read three sets of papers that told the same story – do not fight terrorism with terrorist methods. The first was a book by Thomas Hammarberg, the distinguished Swede who has long fought for human rights and social justice (a former secretary general of Amnesty International, Representative of the UN Secretary-General on human rights in Cambodia, and until recently the Commissioner for Human Rights in Europe). In his book, Human Rights in Europe: no grounds for complacency, he reflects on the state of human rights in the West, including the impact of “terrorism”.

He demonstrates that the US and Europe (the latter to a considerable extent under the influence of the US) have used highly objectionable methods to combat “terrorism”, in which the police and other forces have been deeply compromised, thousands of innocent people have been victimised, families broken and lives destroyed. A large number of people have been “arrested” by the police and the army without any grounds whatsoever, often through some sort of “profiling” and held in custody, sometimes for years, tortured in the most brutal ways — and then released without an explanation, much less apology.

Their most fundamental rights and freedoms, including security of the person, presumption of innocence, protection property, freedom of association and more are constantly violated. “Profiling” that targets the members of a particular community, in the case of the US and Europe mostly Muslims, leads to the “radicalisation” of its members, greatly aggravating social and security problems. Under the influence of the US, the UN Security Council has generally sanctioned these violations of human rights and other norms of international law.

As I read the second document, the June 15 report of the Human Rights Watch and the Kenya Human Rights on the killings in Lamu and Tana counties, I was constantly reminded of Hammarberg’s account and analysis: total incompetence, moving into action ever so slowly leaving villages unprotected, haphazard and brutal, without investigation of any kind, and detention for long periods without any legal authority.

The security forces “arbitrarily detained residents of the two counties and subjected them to cruel, inhuman or degrading treatment, including rounding up men and boys, searching and ransacking homes and businesses, and beating male residents. Members of the security forces also stole money and valuables from residents”.

Muslims and ethnic Somalis from both counties were targeted, following the Western practice of “profiling” (as I read this bit I wondered whether they had been trained by US or British forces to do this). “A year later, despite numerous law enforcement operations along the coast, hundreds have been arrested and mistreated, only to have charges dropped for lack of evidence, and no one has been held responsible for the attacks”.

The report goes on, “The government’s failure to implement long delayed security sector reforms has also been a lost opportunity to improve the protection of human rights and the rule of law, as well as build confidence and necessary cooperation with affected communities”.

Instead, as we know, the government moved to remove several constitutional safeguards, and reinforce the powers of the security, secure in the knowledge that they would be used in the brutal way it has become accustomed to, knowing that there would be no sanctions. As Gabriel Dolan has reminded us recently in another place, “In former regimes (in Kenya) the threats from democrats and dissidents were used as justification for torture and inhumane treatment. Today the so-called war on terror is the justification and excuse for torture, detention, denial of bail, and harassment of civil society organisations”. This again reminded me of the contemporary practice in the US and Europe as recounted by Hammarberg, and his repeated concern at how casually the West has been prepared to arm and train security forces in the use of violence, abandoning human rights long cherished (and long fought for).

The third set of papers I read appear in the blog of the long established Asian Human Rights Commission (whose founder, Basil Fernando won this year’s Alternative Nobel Prize). In the last two weeks (as in the months and years gone by), well founded accounts of the Philippines, Pakistan, Sri Lanka (even after the recently elected government), Myanmar, India, China, Bangladesh, Indonesia, Thailand and Nepal tell stories of the brutality of security forces, often targeting a community, ethnic or religious — and yet fearing “radicalisation”. The stories are of the use of great brutality, which include beatings and torture, long detentions, appropriation of properties, and all too frequently cold blooded murders, often massacres, with the tolerance or connivance of state authorities, when not actually motivated by them. Laws, even constitutions, are thus regularly violated — with impunity.

It seemed to me that the state authorities and their allies all over the world were conspiring to suppress the freedoms and rights of citizens and communities, achieved after struggles of centuries. Because almost all states are implicated in these acts of brutality, no state is criticised by another, or UN agencies, much less brought to answer charges. The West spends its time attacking the Muslims (however disguised), while at the domestic level, in all places, there is huge suppression of classes that the authorities fear might threaten their dominance.

I did not set out to answer these problems of the world. So let me return to the sensitive and wise Thomas Hammarberg who draws lessons from the experience of the US and Europe. Hammerberg is particularly critical of the US, especially of Bush’s “war on terror” following September 11 attacks. Europe was reluctant to object to Bush’s “war” and involved itself in gross violence of human rights — and stupidities that greatly aggravated problems of peace and security.

He says that security agencies must not be allowed to operate without oversight — “nor, as they have described, as a state within state.” The European approach to the “war on terror”, he says, exposed double standards, but also ineptitude as well as confusion about what human rights standards require. He advocates the reforms which were undertaken in Northern Ireland after the recommendations of an international commission head by Chris Patten. The reforms included repeal of laws undermining human rights: “such laws corroded the normal criminal justice system and politicised the rule of law”; stopping “war” measures which “proved ineffective in deterring terrorism tended to demonise and alienate the very communities that could be of the most assistance in fighting terrorism”. “War” policies “fuelled the violence it attempted to contain, by making real or perceived grievances worse, by normalising violence and by giving potential propaganda victories to those engaged in violently attacking the state”.

Hammerberg noted that while there were some institutions for review of and safeguards against illegal police acts, “references to ‘national security’ tended to hamper any independent analysis. The executive was left largely unchallenged in determining what constituted national security, and what needed to be done to uphold it”. Reforms included strengthening of the legal system; stopping of “internment by remand”; the principle of “innocent until proven guilty” should be maintained by stopping torture and other means aimed at “self-incrimination”; trials should be held promptly in independent courts with adequate legal representation. Police should become more representative of all groups in society – “community police”.

As I read these prescriptions by Hammerberg, I could not help thinking that the 2010 constitution had all these provisions, and some supporting legislation was duly enacted. But from the very beginning senior and junior police officers disregarded these norms (often purely for reasons of personal greed); and the Uhuru government has now fully supported the police and shows little respect for the basic principles of a fair criminal legal system. We are back to the repressive police system of Northern Ireland that the Patten reforms abolished, and restored the basis and beginning of peace and prosperity.

* Eminent legal scholar Yash Pal Ghai is a director of the Katiba Institute in Kenya.

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