Terrorist attack has created legal minefield

By PRAVIN BOWRY

Last week’s terrorist attack has provoked a national exercise of self-examination and inevitably the legal structures dealing with various aspects of terrorism will and must come under scrutiny.

Terrorism is covered by the Prevention of Terrorism Act (Act 30 of 2012) which came into force only on 24th October, 2012.

It is a little surprising that most Kenyans are not aware of the law and little has been done to publicize some of its pertinent provisions. Section 49 of the Act provides for a “Compensation of Victims of Terrorism Fund”, but how and what compensation to victims is payable is not known as no regulations appear to have been promulgated by the Cabinet Secretary responsible for matters relating to internal security.

Destroyed property

It is time the Attorney General and Law Reform Commission woke up and addressed the plight of victims of such heinous crimes. Perhaps parliamentarians will retroactively pay all the bona fide claimants from last week’s attack.   Hopefully all the funds collected during the tragedy will be disbursed fairly and equitably to the deserving victims through the fund. It behoves the Cabinet Secretary, legal fraternity, the Judiciary and the Law Society to immediately set up a machinery of assisting the families of the deceased, the injured and even those whose property was destroyed.

Additionally, under the 2010 Constitution there exists Article 50 (9) which reads “Parliament shall enact legislation providing for the protection, rights and welfare of victims of offences” but so far no legislation has been passed.

I have alluded to this before in this column and do so again; and it is sad that victims of crime are not protected, and have no remedy available presently under Kenyan law. There is a growing body of international law on terrorism which, to some extent, shapes domestic law, though there is no agreed global definition.

The approach of international law is to concentrate on the more egregious aspects of terrorism about which condemnation can be universal, no matter whose cause it serves.

Examples include conventions about attacks on diplomats and against the taking of hostages, a range of treaties against the hijacking of aircraft or attacks on marine platforms, and some more wide-ranging measures against the financing of terrorism and the bombing of civilian targets.

Following 9/11, the United Nations established the Counter-Terrorism Committee to oversee the implementation of such measures.

Virtually every Kenyan has been affected. The legal fraternity mourns the death of a friend and colleague, Peter Simani. Security personnel — from police service, military, national youth service and even private security firms — lost their lives or limb, all in the course of duty. Before the ink dries from thousands of scripts, I am afraid; their families will in true Kenyan fashion be forgotten.

Colossal medical bills, pain and suffering of loved ones, compensation are the issues at hand. By law their paltry family entitlement from their employers will take months to process, NSSF emoluments will take time. Thankfully there is ray of hope if the authorities work expeditiously and in cohesion in the present climate of national mourning.

Countless visits

The deceased’s families will have a horrendous legal process to go through; most will not have made their wills, there will be hundreds of visits trying to get death certificates, P3 forms, getting letters of administration/probate etc. and lawyers will be engaged at a cost.

Regrettably, Kenyan bureaucracy and red tape and hurdles in the path of the heroes will be a reality and it is time we address these matters.

The Prevention of Terrorism Act creates over 30 offences and provides for special powers of arrest, procedures to gather information and even limits certain rights when conducting investigations. These are new frontiers and the investigating and prosecuting agencies must move with urgency to punish the criminals.

Despite all the rhetoric new laws and new bodies and going by our past history of such events, it can be stated that in Kenya there is little scientific and forensic back up and goodwill to bring the culprits to justice.

There is never and perhaps never will be any successful prosecutions from national disasters. Examples are the 1998 attack, the Nakumatt fire on Kenyatta Avenue, the Sachangwan and other tanker fire related cases, various collapsed buildings, massacres in Tana District. The lesson from the Westgate attack should be to bring about change in the judicial system.

Will the tables turn this time round depends on the willingness of the new breed of leaders assisted by various new laws.

Kenyans must realise that they are paying a heavy price for all the corruption, inefficiency and total disregard for the law. Obtaining falsified Kenyan IDs, Passports, Visas, PIN Numbers and other documents are daily occurrences known to law enforcers and no attempts are made to curb the scourge. Importation of arms and ammunition and disregard to the Firearms Act is yet another concern. Ask any Kenyan, and he will all allude to the massive cartels of illegal imports through Eldoret Airport.

Even as Kenyans unite and try to heal the wounds, both physical and emotional of the past week’s events, difficult questions of how the terrorists freely moved around with firearms, ammunition and other explosives, which they used to execute the attack must be addressed and ultimately responsibility must be taken.

 

The writer is a lawyer.

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