The Anti-Terrorism bill is Dragonian and is intended to violate Human Rights and promot Torture

By Evans Wafula

Advoacy Officer(Independent Medico-Legal Unit)

Pressure is mounting in the country against the anti-terrorism bill officially known as The Suppression of Terrorism Bill 2003. In addition to the public campaign against the bill, the human rights network is collecting signatures from Kenyans, and using these hopes to pressurise the government to withdraw the bill. The Law Society of Kenya (LSK), the International Commission of Jurists (ICJ) Kenya chapter, and the religious organisations have also voiced their concern against the bill. Indeed, the LSK has offered to write a bill for the government if such a law is badly needed in the country.

However, the government, through the Ministry of Justice and Constitutional Affairs, has indicated that the bill will not be withdrawn. Talking to members of the Supreme Council of Kenya Muslims (SUPKEM), recently in his office, the Minister Mr. Kiraitu Murungi said that the bill would be amended and not withdrawn. SUPKEM has led the campaign against the bill, which apparently discriminates against the Muslim community.

On July 8th, the Chambers of Justice, a civil society legal lobby, argued at a public forum that there is need to form a panel of legal experts to review the bill and advise the Attorney General on the way forward. That review should be against the backdrop of the current criminal law regime, and should at best propose a new legislation.

According to the Chambers, this bill highly repressive runs against the national spirit and militates against our national sovereignty in favour of American and British interests. The chambers further says that the bill germinates out of the US Patriot Act 2001, whose official title is Uniting and Strengthening America by Providing Tools Required to Intercept and obstruct Terrorism Act. In the US, the chambers notes, the “application of the Patriot Act by the US government has resulted in some of the grossest violations of human rights ever revealed since the Nuremberg trials.” It cites the case of the al-Qaeda suspects who are still incarcerated incommunicado at the US military base in Quatanamo Bay in Cuba, two years after they were arrested in Afghanistan.

But whereas the US law targets foreign nationals, the Kenya government is eager to go along with her “development partners” by instituting such a law, which is against her own citizens. Indeed, this bill elevates security above liberty and abrogates constitutional rights and freedoms.

Section 30 of the bill says, “ Any police officer above the rank of an inspector is allowed to hold a suspect incommunicado for up to 36 hours without access to a lawyer or family members.” This section allows inhuman and degrading treatment.

It contravenes section 72, which says, “ A detained person has the right to be taken to court within 24 hours and to have prompt access to a lawyer of his choice.” It also contravenes section 74 (1) of the constitution, which says, “No person shall be subject to inhuman or degrading punishment or other treatment.” Secondly, the general and imprecise manner in which terrorist offences are defined, and the indeterminate fines as alternates to imprisonment leave too much latitude and offends core principles of criminal law. Indeed, it contravenes section 77(8) of the constitution, which says, “ No person shall be convicted of a criminal offence unless that offence is defined and the penalty thereof provide for.” Moreover it extends the definition of a terrorist to cover a person who has been involved in terrorist activities before the enactment of the law, something that offends section 77(4) of the constitution, which says, “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 chambers analysed the bill further and argued that it lowers the standard of the burden of proof as required in all criminal cases, to the detriment of the suspect. That means it has the effect of declaring a suspect guilty until proven innocent, whereas section
77(2a) of the constitution states, “every person who is charged with a criminal offence shall be presumed to be innocent until proved or pleads guilty.” In addition, the bill gives sweeping powers to the police to arrest any person whose dressing is suspicious in his/her opinion. This curtails personal freedom as to choice of clothing, and amounts to legalising discrimination against dress codes of certain religious organisations. It’s inconsistent with section 82 of the constitution, which outlaws treatment that is discriminatory on account of inter alia religion, political opinions or place of origin.

And the bill confers upon the police and other security officers the power to use reasonable force in the performance of work and if from the exercise of such powers death or injury to a person or loss or damage to property is occasioned, the officers are indemnified from any claim in any civil or criminal proceedings. In the face of it, it does not define what constitutes reasonable force.

Coming from a government that is eager to distance itself from police brutality and human rights abuses of the previous administration, this is shocking, for, in effect, the bill allows torture, maiming and even killing of suspects by security officers. Indeed, the bill mocks the human rights campaigns of the last ten years. It contravenes the bill of rights, which guarantees every person the right to life, liberty, property & protection from torture and inhuman treatment. The bill does not define reasonable force and therefore this blanket immunity is illegal even in emergency cases because it actually sanctioning terror. There are other concerns about this bill. These include its lack of adequate provisions for compensation of victims of terrorism and provision of sweeping powers to the police; powers to detain cash belonging to a suspect and forfeits the property of suspected persons to the state.

It also mortgages our sovereignty and allows foreign security forces, notably American and British, to arrest and detain Kenyans. Not surprisingly, there are reports that both the Kenyan CID officers and the American FBI agents tortured those who were arrested recently in Mombassa on terrorism suspicion. One shudder to imagine what will happen if this law is enacted.

Finally, the bill is not drafted in the spirit of international human rights conventions and creates a general climate of fear and suspicion in which the state is invested with coercive, intrusive and intimidating powers. It also introduces a new concept in criminal jurisprudence under section 26 when it grants the police powers to use excessive force to punish members of the public by detaining them in buildings or establishments where there are suspected terrorists. The concept of communal guilt is obviously highly oppressive.

Because of the above, the human rights network opines that the country does not need an entirely new piece of legislation to combat terrorism; the current criminal legal regime is sufficient to do that. In any case, the so-called war against terrorism is not Kenyan war. It has its roots in Middle East and is being waged against the Americans and the British because of their policies in that region. Why then drag Kenyans into other people’s wars?

The writer is an Advocacy Officer with the Independent Medico Legal Unit a human rights organisation working with victims and survivors of torture by providing them free legal and medical assistance.