What changes to controversial security law means to you

As Kenyans come to terms with the reality of the new security laws, The Standard on Sunday took a look at the amendments and walks you through what what was changed, what remained and what it means to you.

Jubilee MPs deleted a clause in the controversial Security (Amendment) Bill, 2014 which would have adversely affected political activities but left intact provisions which will curtail operations of the media.

The MPs deleted Clause 4 which sought to amend the Public Order Act by empowering the Cabinet Secretary in charge of Interior and Coordination of National Government to designate time and areas where public meetings, gatherings or public processions may be held.

In the justification published by State House, the provision infringed on Article 37 and 38 of the Constitution. The justification also said the “designation of meeting areas and picketing is a matter that entails wide consultation and is better addressed in a subsequent legislation”.

The justification was not offered when some MPs hurriedly passed the amendments during a chaotic session on Thursday, and whose legality is a subject of heated public debate.

Public rallies

The MPs also deleted Clause 5 which would have seen them jailed had they “unlawfully convened, organised or promoted a public rally, meeting or procession or neglected to comply with any law relating to public meetings”. In addition to jail terms, the politicians would also have to be held liable for any damage or loss suffered as a result of such public rally, meeting or procession.

The MPs, however, deleted Clause 2 which would have “protected” meetings held by Governors and Members of County Assemblies (MCAs) from the vagaries of the Public Order Act. The clause would have deleted the word “councillors” in the Public Order Act’s definition of “excluded meeting” and substituted it with “Governors and MCAs.”

Under the Public Order Act, “excluded meeting” is any meeting convened for lawful purposes, by members of a registered organisation, trade unions and trusts and includes meetings of organs of political parties and impromptu “meet the people” tours by MPs and councillors.

The excluded meetings are excused from Public Order provisions of having to issue at least three day notices to officers in charge of respective police stations in the areas where the meetings are held. “The matter entails wide consultation and is better addressed in a subsequent legislation,” the State House justification of the amendment read.

On provisions on revocation of IDs, the MPs deleted the original wording of the Bill which left the Director of Immigration with the discretion to revoke IDs obtained though misrepresentation of facts, concealment of material facts, fraudulently and forgery among others.”

They made it mandatory for the director to do so by substituting the word “may” with “shall”. In the same clause 31, the MPs amended sub-clause 2 to make it mandatory for the director to inform owners of ID holders he’s about to revoke in writing.

They also left a 15-day window for revocation victims to “appeal to a court of competent jurisdiction”.

In the original Bill, the MPs had amended the Evidence Act to say that if a person makes a statement but cannot read it, it shall be read to him before he signs it. The person who reads it to him will also make an endorsement.

In the amended clause, however, the MPs restricted this reading and endorsement to an officer of or above the rank of a Chief Inspector or a magistrate. This was ostensibly done to protect the rights of an accused.

Clause 38 of the original Bill provided for solitary confinement of terror convicts but in the Act signed by the President into law, this provision has been deleted. Terror suspects will now be restricted to interaction with fellow terror suspects only. They will, however, still be held in separate cells from other non-terror prisoners.

The MPs amended Clause 40 to include “silencers” in the definition of “firearm”. Firearms will now be defined to include silencers, telescopes, mufflers, bulletproof gear, night vision devices and “other similar accessories”.

Tenants and landlords

The lawmakers struck off KDF from representation in the new Firearms Licensing Board by amending clause 41 of the Bill. The State House justification said “the mandate is beyond that of KDF”. They, however, expanded representation in the board to include representatives from the office of the Attorney General, private gun owners and the Kenya Wildlife Service.

The MPs also deleted all proposed amendments to Radiation Protection Act, Rent Restrictions Act and the Kenya Airports Authority Act contained in the Bill. In the Radiation Act, the drafters had proposed to include regulation of the use of nuclear and radioactive material as one of the functions of the Radiation Protection Board.

In the Rent Restrictions Act, the drafters wanted every landlord to keep records of every tenant and to hand them over to police on demand. Any landlord who contravened this amendment would have been imprisoned for a term not exceeding six months or fined Sh100,000 or both.

“Maintenance of landlord and tenant records is a matter that entails wide consultation with the National Land Commission and is better addressed in a subsequent legislation,” State House said in a justification.

The deleted provisions on Kenya Airport Authorities Act would have zoned land adjacent to aerodromes for security purposes and created 250 metres buffer zone from runway and not less than 50 metres from the airport’s outer perimeter fence.

It would have also created an Airports Inter-Agency Security Committee.

Also deleted altogether are the provisions which would have required motor vehicle dealers to submit to police a database of all vehicle stock sold on a monthly basis, suspension of driving licences of negligent drivers who cause fatal accidents and Interior cabinet secretary to regulate motor car dealership enterprises.

Also in the amendments, the National Intelligence Service officers were denied the power to detain suspects, a power they had been given in the original Bill. They will now have to hand over suspects to the nearest police station.

The MPs deleted Section 6A (1)(c) which would have given NIS officers power to arrest any person they “suspect of engaging in any act or thing or being in possession of anything which poses a threat to national security”. The provision would have created room for arbitrary arrests.

They also restored the requirement for NIS to obtain court warrants if they wanted to limit a suspect’s right to privacy. This provision had been knocked in the original Bill by deletion of Section 36(2) of the NIS Act.

The MPs softened the wording in Clause 16 which gave NIS director the power to authorise “covert” operations. They replaced “covert” with “special” saying the term “covert” was not appropriate in the circumstances.

Also curtailed in the new amendments is NIS seemingly vague and general power to “do anything considered necessary to preserve national security”. It has been replaced with the requirement to “take all necessary action within the law to preserve national security”.

Special operations

The NIS Director’s authorisation of a “special operation”, previously referred to as a “covert operation,” will now have to be accompanied by a warrant from the High Court if it entails entering places, searches, monitoring of communication, installation or removal of anything.

Head of Public Service Joseph Kinyua will be affected by the deletion of sub-section (dd) of Section 64(1) which would have seen him sit in the National Intelligence Service Council. In the original Bill, MPs had proposed to add him in the council alongside the CS interior, CS finance, CS foreign affairs, the AG and the NIS Director-General as among the people who sit in the council.

“The Head of Public Service is not a public officer under the Constitution,” the justification posted by State House said.

The amendments have tasked the intelligence body to provide “specific, actionable and timely” intelligence.

The amendments toned down language in the Prevention of Terrorism Act which appeared to limit the need to give suspects the opportunity to be heard.

They also removed the word “glorifies” from the definition of the new crime of “facilitation of terrorist” act crime and added the aspect of “intent” in the definition. They enhanced the punishment of persons caught with weapons for terrorist acts from a term of “not less than 20 years” to “not less than 25 years”.

Suspects’ rights

Also removed from wordings of the new terrorism crimes is the term “place of worship, institution” which was replaced with the term “premises, institution”. The crime of failure to prevent entry of weapons from any “premise or institution” was enhanced with an imprisonment term “not exceeding 30 years” up from “not exceeding 20 years”.

The amendments further restored the rights of a terror suspect not to be held for more than 24 hours unless an extension of the time order has been obtained from a court. The original Bill had extended the hours to 31 and quashed the need to apply for extension in court contrary to Article 29 and 50 of the Constitution.

The provision giving the “national security organs” the power to intercept communication for purposes of detecting terrorism has been moderated with requirements that the CS for Interior makes regulations which must be approved by the National Assembly.

The amendment also made it clear that the provision was seeking to limit the right to privacy under Article 31 of the Constitution and for what purpose.

Article 24 of the Constitution invalidates any limitation of rights and fundamental freedoms which is not expressive of the intention to limit, which is not clear and specific. It also forbids adverse limitation as one that would “derogate” the right from its core or essential content.

The amendments deleted amendments to the National Police Service Act which required every police station to obtain record of all hotel guests of hotels within their jurisdictions. Also amended were provisions of section 10 of the NPS Act to provide for clear administrational command of both policing arms under the national police service.

The justification for the amendments were distributed by State House but were signed by Asman Kamama, the chairman of national assembly’s committee on administration and national security