By Augustine Lokwang
(2015)
On January 2, 2015, Justice George Odunga ruled that eight sections of the new anti-terrorism law would be suspended over human rights violations.
The High Court suspended clauses 12, 16, 26, 29, 48, 56, 58 and 64 of the Security laws Amendment act which was enacted by parliament recently.
The contested clauses relate to ;the right to hold terror suspects for close to one year without trial; excessive police surveillance powers; imprisonment of journalists for up to three years if their reports undermined investigations or security operations relating to terrorism or publishing "insulting, threatening, or inciting material or images of dead or injured persons which are likely to cause fear and alarm to the general public and the right for the prosecution not to disclose given material evidence useful to the defence's submission in favour of the accused before the determination of the case by the court. Generally the security law sought to limit the freedom of expression.
Further, some sections were seen as contravening international conventions and instruments because of capping refugee number to be hosted in Kenya to 150,000 breaches international conventions/protocols on refugees which Kenya is a signatory to.
It is not the whole law being expunged. Only the contentious clauses are to be reviewed. The security thinkers behind this law did their job right, the High Court with its ruling has done its job right, the hitch was with the parliament which chose to behave as conveyor belt by hastily hearing and passing the Bill with all the mentioned contentious concerns, the parliament chose to be a rubber stamp by not doing that that befits its noble role. Then the president urgently signed into law, the Bill that many termed draconian.
The High court's suspension of the controversial clauses; 12-, 16, 26, 29, 48, 56, 58 and 64) of the new security Bill was to push for a review of the said law to be consistent with the 2010 constitution (Bill of Rights and other laws). This appears to have been the reason for the court to take this decision.
More pressure is expected to be mounted on the government by the opposition and the civil society groups (the complainants) following this ruling. There will be calls for the law to be returned to parliament for further all-inclusive deliberations and consensus building towards an acceptable version.
While the opposition and civil society groups went to court wanting a security law with a human face (Human Rights), government's philosophy is that "security doesn't mix very well with human rights" especially in the context of our current security at cross roads.
The said philosophy is synonymous with all governments, it applies where there's worsening security situation, and championed as a realist's philosophy that seeks to apply a strict and tough approach as a different way of going about security challenges.
No criminal, insurgent, terrorist respects human rights, while they have caused havoc with unleashing deadly violence leading to many loss of lives, wanton destruction of property, exponential increase in numbers of survivor victims living in psychological trauma from intense violence meted on them, etc. Maybe this would sound reasonable, logical and realistic but not necessarily legally or ideally acceptable, that "He who does not respect the human rights of others, his human rights should not equally be respected".
In times of heightened and volatile security situations, most perpetrators of violence, crime, terrorism, insurgency, etc. bank a lot more on the fact that human rights provisions exist to facilitate their heinous acts against their targets, most suspects of terrorism, violent criminal activities, etc., have in many situations been set free because human rights and human rights activists made strong submissions to facilitate the scot-free release of persons who were known to have infringed the human rights of others, begging the question, who then demands for the respect of the human rights of the victims whose same rights were infringed?
Security minds are not legal minds, and are charged with the enormous responsibility of protecting citizens. Their duty is understandably difficult to balance with the rhetoric of human rights. Where violence is being applied by the criminals against other citizens and security officers, the matter of human rights takes the backyard. With this background and explanation, security therefore hardly mixes very well with human rights demands.
Therefore, the case of our new security laws is underpinned by that philosophy, given that government is charged with the responsibility to protect the people and their property. It therefore must do all it can to deal with insecurity. This informs the kind of direction we have gravitated towards in the recent times.
Augustine Lokwang, Capt (Rtd) is a security consultant and researcher.