Members of diplomatic missions present
Hon. Judges present,
The Chair of the ICJ-Kenya,
Members of the Council of the ICJ-Kenya
My Learned Friends,
Ladies & Gentlemen,
Some things happen only once in a person’s life. Such is the humbling honour, privilege and recognition that the ICJ-Kenya has bestowed on me this evening/tonight. I also appreciate that this honour comes with the burden that the recipient will maintain the same standards that led the distinguished Selection Committee of the Jurist of the Year Award to pick the recipient. I promise you tonight that I will try to do so, even though I know, I am told authoritatively, that it is a one term award.
My journey to this humbling award has already been told and I will not repeat it. However, let me say something about the area that in the eyes of the public seems to define me at this moment i.e. human rights and counter-terrorism.
Our country has had to deal with the deadly scourge of international terrorism for a long time. Prior to the entry of the Kenya Defence Forces (KDF) in the Somali conflict in October 2011, intended to rout the Al Queda linked Al Shabaab militants, the country had been used by international terror groups as a ground for launching attacks against Western interests particularly Israeli and US interests. This was the case with the bombing of the Norfolk Hotel on 31st December 1980, the bombing of the US Embassy on 7th August 1998 and the bombing of Paradise Hotel, Kikambala on 28th November 2002 and simultaneous attempt to shoot down an Israeli Arkia Airlines Boeing 757 as it took off from Moi International Airport, Mombasa. As it turned out, our own people – Kenyan citizens, always bore the greatest brunt of these attacks.
Justifiably, following these terror attacks the government through the security agencies embarked on robust counter-terrorism measures including the establishment of the Counter-Terrorism Centre and the Anti-Terrorism Police Unit (ATPU). Prior to the enactment of the Prevention of Organized Crimes Act, 2011 and the Prevention of Terrorism Act, 2012, all counter-terrorism measures and strategies were done outside any legislative framework. They were extra-legal. It is in the period prior to these two legislations that I got involved in the legal discourse of counter-terrorism and human rights. I vividly remember that my first engagement in this discourse was as a substitute paper presenter at a workshop organized by the Kenya Human Rights Commission (KHRC) and the Muslim Human Rights Forum (MHRF) sometime in mid 2007 at Lenana Mount Hotel. My colleagues Mr. Paul Muite and Mr. Harun Ndubi were the key presenters. However, Ndubi got pressing engagements and I was prevailed upon by Mr. Mikewa Ogada to replace him a day before the event. It was at that event that I met Mr. Al Amin Kimathi, the Executive Director of MHRF with whom, 3 years later, on 15th September 2010, we were arrested, tortured and detained in Kampala, Uganda on allegations that we were armed and dangerous terrorists!
Since the Lenana Mount Hotel workshop, I have worked in the area of counter-terrorism as a human rights, rule of law/legal consultant, defence lawyer and constitutional law litigator. In the course of my work in this area, I have represented individuals charged with terror related cases including those who are generally viewed as the leaders of terror in this country. I have also interacted with the security agents who are tasked with enforcing counter-terrorism legislation and strategies. I can therefore say that I am in a position to make comments in this area, particularly in light of the heightened terror attacks from the Al Queda affiliated Al Shabbab and the Security Laws (Amendment) Bill, 2014 with some measure of authority.
But first, let me say this for the record; the fact that I represent terror suspects does not mean that I am a supporter or sympathizer of terror. Every terror related case I take always troubles my conscience. However, I also remind myself of the oath we take on admission to the Roll of Advocates, to execute our professional duties as advocates without fear, favour or ill will, and the constitutional ideal that every person is entitled to counsel – even the scam of the earth. The true cumulative significance of the Advocates oath and the constitutional right of everyone to counsel is that advocates should not choose clients. As my learned friend, Judy Thongori, puts it; “advocates in private practice are public citizens who owe a legal duty to be accessed by everyone in need of legal representation.” In any case, it must also be remembered that the role of defence counsel is simply to ensure a fair trial for the accused. A fair trial is not synonymous with acquittal. Therefore, to resolve the moral dilemma in these cases and to maintain sanity, I restrict myself to taking such instructions that are only necessary to meet the case/charges at hand.
Back to the conundrum of terror-related insecurity: In my view, the answers to the current security conundrum posed by terror attacks carried out by the Al Queda affiliated Al Shabbab is not the enactment of draconian and unconstitutional legislation as proposed by the Bill. The answers lie elsewhere. And some of the answers are basic. First, the security agents must research the problem. By now, the security agents should have realized that the Al Queda affiliated Al Shabbab terror group is a complex phenomenon. It is an international and complicated web of networks. As the West Gate attack demonstrates, its membership is not just Somalia and Kenyan based. All the four actual attackers of the West Gate Mall lived in Western countries in the period before the attack. The network also has sympathizers who act alone without any command – just like the Boston Marathon attackers in the US.
The presence of Kenyan university graduates within its ranks and file as was the case with the car bomb explosion at the Pangani Police Station in May 2014 demonstrates that the Al Queda affiliated Al Shabbab is not just a bunch of illiterate, crazed, fundamentalists who cannot secure regular jobs – according to information given to my client, the car owner, by the police, the actual suicide bomber in the blast was a university graduate son of a KDF officer. Thorough research into this criminal network is therefore absolutely necessary in order to inform the counter-strategies that will properly identify the true causes of enlistment into the group, its membership and therefore nip its potential for recruitment.
Secondly, the Government must realize and appreciate that the provision of adequate security and supportive infrastructures are not optional or matters to be left to the people themselves. Whereas the President is right when he says that it is impossible for the State to provide a police officer to every citizen and that assisting security agents is a collective duty on all of us, the Government must realize that provision of security to all is one of the fundamental pillars of the social contract between the State and its citizens. Citizens surrender their individual right of self-defence to the collective protection of the State – to avoid the Hobbesian State of Nature. Counseling individual self-defence entails the danger of encouraging vigilantism and mob violence – what Kenyans popularly call “mob justice.” Community security strategies must remain voluntary and the Government has no right to lay a duty on citizens to protect themselves.
The absence of security officers in large areas of the country is unacceptable. Yet, these areas also remain largely inaccessible with no meaningful roads or no roads at all. This was the case in the two recent Mandera incidents where reports indicate that the terrorists had all the time to fire their assault rifles in the air to celebrate the brutal murders of innocent, hardworking Kenyans. The terrorists must have done this in the full knowledge that there would be no counter-response anytime soon. Unfortunately, it is evident that the Mandera incidents can happen anywhere in the country – including the suburbs of Nairobi where we hardly see police patrols.
Thirdly, the Government must realize that the phenomenon of international terrorism is a complex matter that cannot be assigned to regular security officers. It is therefore not sufficient to just put together a group of regular cops, regular intelligence officers and regular soldiers and call them an Anti-Terrorism Unit or National Counter-Terrorism Centre. Such units must comprise of specially trained officers in counter-terrorism.
Fourth, counter-terrorism operations must be done strictly in accordance with the rule of law. Security operations that are mounted on the basis of collective guilt and mass victimization of communities must stop. Similarly, security operations that are themselves criminal (some even international crimes) such as kidnappings, enforced disappearances and extra-judicial execution of suspects must also stop. Such operations are simply counter-productive. They alienate individuals and communities that are otherwise valuable partners with the security agents in combating terror. These counter-productive operations also add to the grievances that in some cases are the motive of joining terror groups. Instead of diminishing the problem, such operations provide fertile platform for recruitment and enlistment into the terror groups.
Fifth, there should be greater and structured co-operation between the security agents and the Office of the DPP in the cause of investigations aimed at prosecutions. This will avoid the increasing cases of needless, baseless and trumped-up prosecutions. Many are times when investigation officers expressly confide in me that they do not have evidence in some of the cases brought to court. In some cases, the IOs will say all they have is “intelligence information” that the accused committed the offence in question. Such prosecutions only serve to erode public confidence in the criminal justice system and are similarly counter-productive in the fight against terrorism. They add to the perceived grievances of the affected terror suspects.
Six, the country needs a candid discussion on the continued presence of the KDF in Somalia. Kenyans must reject the current formulation of the debate that suggests that a discussion of possible withdrawal of the KDF from Somalia is simply a sign of defeat by the Al Queda affiliated Al Shabbab. On the contrary there are multiple facets to this debate. One, the debate must seek to assess the impact of the KDF in Somalia on the country’s predisposition to terror attacks by the Al Queda/Al Shabbab. As it is, all evidence suggests that prior to the entry of the KDF in Somalia in October 2011, there was not a single terror attack by the Al Shabab on Kenyan soil. Yet, for the last 4 years of the KDF presence in Somalia, Al Shabab sponsored terror attacks have continued unabated. It is therefore necessary to revisit the strategic and security logic in the original AU AMISOM mandate that expressly excluded countries bordering Somalia from contributing troops to AMISOM. The debate must also be informed by the fact that the AMISOM mandate is not indefinite. The current AMISOM mandate expires on 31st November 2015 and Kenya is at liberty to request not to be included in the next extension of the mandate. Kenya must appraise its strategic presence in Somalia particularly given the fact that the warring factions have been at it for 24 years now. Kenyans must answer the question whether we are prepared to go it for such a long period, which it appears, given the history of Somalia, the Al Shabab and other groups are prepared for. The discussion must also be entertained in the context of possible growth of Somali nationalism against continued “occupation” of Somalia by AMISOM troops. History teaches that there are no people the world over who welcome permanent occupation of their land. As it is, there is already growing sentiments amongst Somali MPs that the current AMISOM mandate should not be extended and the troops must begin preparing to leave Somalia. It would be an unforgivable strategic blunder if the KDF was caught up in Somalia in a situation where the Al Shabab and the Somali Government agree that AMISOM must leave.
A few comments on the Security Laws (Amendment) Bill, 2014; I have just browsed through the Bill and my comments are really from a first impression of the Bill. First, no doubt, the Bill contains some important and useful provisions in the fight against terrorism that are informed by lessons learned from previous terror attacks in the country. For example, the provisions requiring landlords to maintain some basic information about their tenants which are to be given to security officers upon demand, the requirement for motor vehicle dealers to keep a record of motor vehicles sold and particulars of the purchasers, the provisions punishing radicalization, the provisions creating the National Counter-Terrorism Centre (which has hitherto operated without any legislative framework), among other provisions. There are also provisions that seek to tidy-up the language of existing laws to the new terminologies and offices created by the 2010 Constitution. However, about 70% of the provisions in the Bill go against the letter and spirit of the Kenyan State created by the 2010 Constitution. The proposed amendments make huge dents on the Bill of Rights, on fundamental rights to personal liberty and presumption of innocence (proposing pre-arraignment detention of up to 90 days for non-terror related offences and 360 days for terror-related offences) to a fair trial (by watering down the traditional safeguards of an accused, rules of admissibility of evidence and even trial of an accused by admission of statements without calling the makers!), the right to human dignity and freedom from torture (by proposing segregated incommunicado of untried terror suspects), the right to privacy and the right to independent practice of the media. As Miss Muthoni Wanyeki put it recently, some of the amendments seek to create numerous modern day Nyayo House Torture Chambers.
The amendments also propose that Kenya abandons some of its obligations under international conventions particularly the conventions on the status of refugees (by proposing a limit on the number of refugees that can be allowed into Kenya at a given time).
Given their obvious unconstitutionality, the provisions in the Bill, if passed, will certainly be struck out by the courts and the reaction by the executive will be, predictably, to criticize the judges and even label them supporters of terror. Instead of creating harmony within State institutions in the fight against terrorism, the amendments are bound to place the executive and the judiciary on a frosty relationship. The proposed amendments must therefore be keenly scrutinized and most of them rejected in the national interest.
If the 70% of draconian provisions in the proposed amendments are not rejected, they will certainly be received as a pleasant Christmas message by the Al Shabab. The Bill tells the Al Shabab that their attacks have paid off. They have forced the Government of Kenya to prepare legal measures that will undermine much of the gains brought by the 2010 Constitution to make Kenya a more free and democratic society. The Government has capitulated and opted to redesign the Kenyan State on the very oppressive and repressive form preferred by the Al Shabab – from a constitutional democratic state to a national security state or a Police State.
We must all resist this intended gift to the Al Shabaab.
Thank you very much.
God bless you all and God bless our country.
(Jurist of the Year, 2014)
11th December 2014
(Serena Hotel, Nairobi)