For lifting ban, judges clothed wolf in sheep’s skin

By Anthony Kiratu

One of the milestones the country has made in fighting against organised crime is the enactment of the Prevention of Organised Crimes Act.

Before then, fighting organised crime was a tricky affair for law enforcement agents. This is mainly because there was no dependable legal regime as a tool with which to respond to inimitable challenges posed by gangs.

May be it is still early for the law enforcers to pop the champagne but a lot of ground has been covered. While crimes such as drug trafficking and terrorism continue to pose unique challenge given their sophistication, other crimes of less complexity have largely been contained.

Under the Act, if the minister in charge of security has reasonable grounds to believe a specified group is engaged in any organised criminal activity, he is mandated under section 22 to declare such a group as organised criminal group.

Some of the groups banned under the Act include Mungiki, Kalenjin Warriors, Sabaot Land Defense Force, Chinkororo, Mulungunipa Forest Group, Taliban, Kosovo, Baghdad Boys and the Mombasa Republican Council before the ban was lifted following judgment by the three-judge Bench in Mombasa. These groups have in the past been associated with criminal activities ranging from extortion, kidnapping, murder to administration of oaths during recruitments.

For a considerable period of time, the public knew no peace, as it would fall victim to the vicious atrocities of these gangs from time to time. It is, however, encouraging that in the recent past, much of the activities have been suppressed. Buoyed by the Prevention of Organized Crimes Act, the law enforcement agencies have swung into action and the results are there for all to see.

The Act casts its net far and wide by providing a myriad of situations and activities that may constitute conduct, which can pass as organised crime. This way, the inadequacies that are prevalent in the penal code have considerably been abridged.

Before coming into force of the Act, police had constantly been accused of resulting to extrajudicial killings in a bid to contain the activities of these criminal groups. Since members of these groups would occasionally turn their rifles at each other it was difficult to pinpoint the wielder of lethal force, which resulted in their systematic killing.

Arraigning the suspects of organized crime was frustrating to the law enforcement agencies because it became very difficult to connect the culprits to crimes under the penal code. These include charges of robbery with violence and murder. Relying on the penal code became a desperate fire fighting strategy by searching solutions in the aftermath of criminal activities.

In sheer frustration, this could have led to use of convenient methods by law enforcement agencies. In the end, a two pronged challenge of upholding the law and human rights while at the same time protecting the public from the blunt of these criminal activities emerged.

Enactment of the Act was long overdue! The beauty of the Prevention of Organised Crime Act is to be found in its twin approach to organised crime. It is proactive and counteractive.

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