It’s time to review rights, bail terms for terror suspects

By PRAVIN BOWRY

The drafters of the Penal Code had not envisaged terrorism as an offence and so Parliament, in 2012, enacted into law the Prevention of Terrorism Act No. 30 of 2012, which seems to be under-utilised.

Today, Kenyans are constantly being bombarded with terror alerts and lately it seems that every day our bomb experts are detonating an explosive device in one place or the other, begging the question; are we sitting ducks?

In describing what a terrorist act or threat of action is, Section 2 of the Act casts a wide net such that it is anything from endangering the life of one person either by violence, use of firearms or explosives to the use of dangerous substances against the general populace, prejudicing national security and public safety, disrupting and destabilising institutions in all spheres or even intimidating the Government or any institution to do or refrain from doing any act.

The Act further stipulates in Part III, Sections 4 to 30, all the offences connected with terrorism. Part IV deals with the powers of the police and the manner in which they are to conduct investigations in cases involving terrorism and Part V provides for how the trials of suspected terrorists ought to be conducted and by whom.

It is important to note that Section 32, just like Article 49(1)(f) of the Constitution, provides that a person suspected of being involved in any terrorist acts upon arrest should be produced in court within 24 hours and has a right to be released.

According to Section 33 of the Act, the suspect can only be further remanded in custody where the police make an application in writing to the court giving the reasons why the suspect is to be further remanded. And in any event, they cannot be remanded for more than 30 days.

Likely to abscond

An accused convicted of a terrorist act faces a sentencing of anything from 20 years to life imprisonment depending on the nature and gravity of the offence.

Therein lies the problem – a suspect of terrorist activities is, upon release, likely to abscond and even flee the country like in the Westgate Mall attack where the terror suspects were found at our border points and airports trying to flee.

Perhaps our Constitution in relation to terrorism should be amended so that the right to be released on bail or bond should be limited much in the same way that Section 35 of the Act provides for the limitation of the fundamental rights and freedoms of persons whom the Act applies to for purposes of investigation and prevention of terrorist acts.

Perhaps it is time our law enforcers and Judiciary curtailed the fundamental rights and freedoms of suspected terrorists, if only to get ahead of this train that seems to have gone off the rails.

bowryp@hotmail.com