Kenya: Kenya's criminal law is not sufficiently equipped to tackle the emerging security threats like terrorism, Director for Public prosecution (DPP) Keriako Tobiko has said.
While presenting his submission in court before a five judge bench in a case challenging the new security laws, the DPP termed the current criminal law as ‘archaic’ and outdated, thus they cannot adequately deal with the new wave of terror.
Tobiko said there was a need for Parliament to enact legislation that would give the State a mechanism to deal with the perpetrators of terror.
“Our criminal and evidence laws are archaic and completely out of tune to deal with current crimes. They have led to delayed conclusion of justice," Tobiko said in defense of the Security Laws (Amendment) Bill 2014.
He argued that the powers given to National Intelligence Service (NIS) were in sync with the security’s organs mandate. He said NIS, in the current law, was not in a position to protect Kenyans from harm as they cannot arrest a person when they are tipped off.
“No one has shown that powers to arrest a person are exclusive to the police, even citizens can arrest a perpetrator. There is nothing wrong to empower NIS in order to curb crime. NIS is a security organ but it had not been empowered to mitigate crime in the country, their work was to gather information but could not arrest the suspect,” he argued.
Tobiko argued that the Security Laws (Amendment) Bill 2014, allows for a suspect to be asked if new evidence can be adduced before a court. He said it was upon the suspect and the court to decide whether the prosecutor can introduce new evidence. In the current law, he said, new evidence before a court is unusable.
Tobiko asked the court to dismiss the case by CORD as they had not demonstrated that the law as assented to by the President infringed on their rights. He said the petition, as raised before the court, was not ‘ripe’ as the opposition had not utilised all the avenues for arbitration.
"Mere probability of abuse cannot be used to declare a statute o an Act as unconstitutional,’’ he said.
The Chief Justice constituted a five-judge bench to hear and determine the (CORD) and the Kenya National Commission on Human Rights (KNCHR) petition challenging the legality of the Security Laws (Amendment) Act 2014.
The bench comprising of Justices Isaac Lenaola (presiding), Mumbi Ngugi, Louis Onguto, Hilary Chemitei, and Hedwig Ong'udi. CORD and KNCHR want the court to declare the Security Laws (Amendment) Bill 2014 unconstitutional, illegal, invalid and untenable.
After hearing the submissions from all the parties, the judges will give their verdict before February 28, as directed by the Chief Justice Willy Mutunga.
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