By Billow Kerrow
The recent spate of terrorist attacks in various parts of the country has focused debate once again on the need to enact anti-terrorism law urgently. Nearly 10 years ago, such an attempt failed when the Suppression of Terrorism Bill was rejected primarily on grounds that it was not homemade and infringed on human rights and civil liberties, and that it would be used by the Government to stifle dissent and strangle their opponents.
The Anti-Terrorism Police Unit has had minimal convictions against suspects. But the Unit has often been accused of illegal rendition of suspects, mostly Kenyans, to the US, Ethiopia, Somalia and Uganda; literary kidnapping people and spiriting them out of the country at night.
Muslims have complained of incessant harassment, arbitrary arrests, illegal detention and torture, among other human rights abuses, especially in Nairobi and Mombasa.
Ever since the enactment of the US Patriot Act in 2001, the war on terror has degenerated into an attrition of human rights globally. Criticisms of gross violation of human rights of suspects abound globally. The UN has decried the cruel, inhuman and degrading treatment of suspects and the rollback of civil rights of people in many countries under the guise of fighting terrorism.
Barely three months ago, several independent UN groups criticised Ethiopia for using anti-terrorism laws to convict three journalists and two opposition politicians to 14 years in prison. The proposed Prevention of Terrorism Bill 2012 establishes a legal framework for detection, prevention, investigation and punishment of terrorism.
But it is fundamentally flawed, and inconsistent with the Constitution. Government did not seek public participation in its drafting, instead hoping to take advantage of the current anxiety about terrorist attacks.
Terrorist act is given the widest possible definition, and includes the mere threat of action. Usual penal code offences such as murder, serious bodily harm to a person, arson, environmental pollution, intimidation, incitement, etc will be terrorist acts under this law.
It criminalises any form of activism and public dissent to compel Government ‘to do, or refrain from doing any act’, stifling the simple freedom to picket or demonstrate, unless such a ‘protest, demonstration or stoppage of work is not intended to result in any harm’.
As usual, it includes the often-abused, vague term of any ‘prejudice to national security or public safety’ and strangely ‘any act or threat of action intended to intimidate the public’ whatever that means.
The Bill waives the constitutional right to presumption of innocence until proven guilty. The burden of proof will be on a balance of probability and is on the suspect to prove his or her innocence in court, rather than the prosecution. You are guilty once you become a suspect.
Under section 29, the Bill limits ‘the rights and fundamental freedoms of a person or an entity’ under investigation, including the ‘right to privacy, freedom of expression, freedom of the media, freedom of conscience, religion, belief and the right to property’.