Going back to the Westgate promise

By Kethi D Kilonzo

finclegal@gmail.com

“Fear fear.  It is scary.  It is the Mind Killer.”  Frank Herbert, 1965.

One woman suffered such severe damage to her hippocampus that she could not recognise her doctor, even though she saw him everyday. Everyday they shook hands and introduced themselves as if for the first time.

One day, to test a hunch, the doctor placed a thumbtack in the palm of his hand before extending it to his patient. When she saw it she pulled her hand back suddenly. The next day, when she and the doctor were about to shake hands again, she pulled her hand back at the last minute. 

When the doctor asked why she had done so, the only explanation she could give was that she had experienced a sudden sense of fear. Hippocampus is that part of our brain that supports our explicit memory of events. It helps us to learn about the danger of an object or a situation. Your hippocampus enables you to remember such things as where the event happened, when it happened and whom you were with at the time. 

Terrorism and the fear of terrorist attacks is a real and global threat. On September 11, 2001 US suffered the worst terrorist attack in history. Just after 45 days of the attack, action was taken to stem any further terrorist attacks. The US Congress passed a 342-page law. The title of the law was the US PATRIOT Act, a ten-letter acronym that stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. The law was tailored to address specific gaps in intelligence gathering agencies that were found to have harmed the government’s ability to protect the nation from the horrific attack. 

The Patriot Act authorised indefinite detention of immigrants. It gave permission for law enforcement officers to search a home or business without the consent or knowledge of the owner or occupant. It also allowed the FBI to search telephone, e-mail, Internet, library, business and financial records without a court order. This law has subsequently been criticised, and sections of it declared unconstitutional by courts in the US, because it has been used to and violates many fundamental rights and freedoms protected by the Constitution.

Though it quickly put together an extensive law to address the threat of terrorism, the US government hesitated for months before authorising an official inquiry into the attack. A year after the attack, Congress published a report detailing many significant pieces of intelligence the government had lawfully collected before 9/11 but failed to properly analyse, disseminate or exploit to prevent the attacks.

A report on the Patriot Act published by the ACLU claims that the government should have first determined what led to the intelligence breakdowns before passing a law under pressure and in ignorance. 

Fear should not be allowed to drive government’s decisions and actions. The answer to terrorism should not be spontaneous or sporadic. It should be informed, systematic, and sustained. And founded on the law.

After the Westgate terrorist attack, President Uhuru Kenyatta undertook to establish a commission of inquiry. To date the country does not know how, why, who, where, and when. Terrorism and the terrorists have not been stopped. The question — what next? — remains unanswered. If the failings leading to Westgate had been uncovered, and these gaps and the persons responsible dealt with publicly and resolutely, would this have stopped the terrorism acts that have followed Westgate?

By accepting the inevitability of Westgate, terrorist attacks, and the threat of reoccurrence we are being conditioned to live in fear. Fear is the absence of courage.  It should not inform the decisions we take as a country in dealing with terrorism.  

The writer is an advocate of the High Court of Kenya