State should rethink new terror law

The National Assembly has ratified the new Security Bill, which has elicited serious public concern. There is no doubt that we need to feel safe and secure against internal and external threat. It is easy to understand the frustrations of the leadership due to insecurity.

However, any changes to the law must and should be within the framework of the Constitution. A few of us will acknowledge the link between democracy, security and peace and development.

So are we experiencing insecurity because our democracy is still developing, or are we experiencing it in some areas because they are the least developed?

There is what is commonly referred to as the soft aspects of insecurity. That is nationalism, patriotism and development. In countries where large populations feel like they are part of the governance system, patriotism levels are high.

It is easy to tell those who compromise security. It is hard to compromise a person who feels proud to be Kenyan.

Terrorists will not bribe their way (through police or immigration officials) to Nairobi, rent a house and assemble a bomb if we all felt a passion for our country.

This is the first line of defence for any society. Yet this is Kenya’s Achilles heel when it comes to insecurity.

Imagine if in a family no one cared for one another, what would happen? Some defenders of the new law will want to argue that democracy will only flourish under a climate of peace and security. That is true. But have we addressed the soft issues?

Any legislation enacted outside the Supreme Law might raise disaffection from the citizenry and could even become the subject of a legal challenge.

That disaffection is what counters the need for national coherence and patriotism. But for this discussion, let us stick to what many feel are the flaws of the proposed law.

The Constitution states the significance of protecting human rights through the Bill of Rights. Even suspects are accorded a right that protects their fundamental human dignity because one is presumed innocent until proved guilty.

Some of the contentious aspects of the bill include the right of the authorities to detain terror suspects for up to a year. The law is also seemingly handing over powers to the intelligence agencies to tap communications without court orders.

But the most absurd is the requirement that journalists obtain police permission before investigating or publishing stories and pictures of domestic terrorism and security issues.

Whereas the intention of the State might be, to some extent, ethical, it might not be entirely right. Any law that curtails the freedom of the Press will not help enhance democracy, national pride, development or peace. All these exist cheek by jowl with the Fourth Estate.

In short, there are genuine fears that the proposed National Security Law would leverage stiff criminal penalties for media workers who publish information that authorities deem undermining to “investigations or security operations relating to terrorism” and for Internet users who “post updates that praise, advocate or incite acts of terrorism”.

In short, the proposed legislation will limit the degree to which law enforcement and military agencies can be held accountable before the public. There is a danger of propping up rogue institutions. The police is no stranger to this labelling. It is an institution with records of a dubious past.

What’s more, the bill will allow national security agencies to “intercept communication for the purpose of detecting, deterring and disrupting terrorism and related activities,” but it does not specify what procedures would be used in order to authorise and ensure accountability for interception procedures.

The bill equally targets those suspected of sympathising with terrorists groups or assisting terror-related activities. The danger in all this is the fact that there is no clear definition of how this law might not lead to infringement of Kenyans’ privacy.

The problem in Kenya is not really lack of laws to deal with terrorism or other crimes. In my view, the problem is lack of enforcement. The 10th Parliament passed the anti-terror bill. Take the example of the 77 Chinese nationals who have overstayed their welcome in Kenya and are suspected of involvement in cyber crimes.

There are laws that govern such crimes. However, our major undoing is the inability of the State to ensure compliance. As long as corruption is rampant in Kenya, the country will continue facing security challenges.

These laws, while designed with the best of intentions, are meant to a large extent to make the lives of the good guys difficult. Any good law would attempt to isolate the bad guys from the good guys. The new law targets Kenyans more than our enemies. Yet we know that most of the terrorists who have hurt us do not even live in the country.

In most cases, they come in and commit the crimes then stroll back into no man’s land in Somalia. In the recent horrid attacks, the murderous gang strolled into the country and had the time to pick their target, kill then melt into the darkness.

Is a law that targets Kenyans, the good guys, going to stop such attacks? The answer is no.

The idea of “Uncle Sam watching over you” as depicted by George Orwell’s novel, 1984, could become a reality. Not many people look forward to that.