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Proposed law could take us back to the dark days

By Al Kags | June 26th 2020

I was alarmed to read an article in this newspaper on Wednesday that said Interior Cabinet Secretary Fred Matiang’i may soon access mobile phone data from any individual suspected of spying for a foreign power without a court warrant as the State switches gear in the fight against cyber espionage.

I was shocked by this because it took me back to the atrocities meted on many innocent Kenyans by the State in 1980 when the law gave the then Minister for Internal Affairs Hezekiah Oyugi sweeping powers to clamp down on people suspected of conspiring to overthrow the government.

These powers saw students, journalists, lawyers and academics arrested at all hours of the day by the police and officers of the Special Branch (now the National Intelligence Service). These people were detained in police stations and often transferred to other stations at night and eventually ended up in the Nyayo House torture chambers, where they would be coerced to name their co-conspirators. Many would give names of other people, who would also be arrested and tortured.

Checks and balances

Many Kenyans died in the torture chambers and those who survived were arraigned in court, sometimes at night, where the guilty plea was recorded and the judge would sentence them to prison.

To read that our current “Minister for Internal Affairs” is to be given powers to act on suspicion without any checks and balances is scary and forebodes dark days ahead. Whether Dr Matiang’i himself would act unfairly is besides the point. The holder of that office would be unchecked and that is a dangerous thing for Kenyans to even consider.

I have read the Statute Law (miscellaneous Amendments) Bill, 2020. Miscellaneous amendment bills tend to change multiple laws at once. I found some interesting changes being proposed - including some that have not been publicised.

With regard to that alarming one, the Bill literally states “where it appears to the Cabinet Secretary that it is in the public interest to do so, the Cabinet Secretary may, by warrant under his hand, require any person who owns or controls any telecommunications apparatus used for the sending or receipt of any data to or from any place outside Kenya, to produce to the Cabinet Secretary or any person named in the warrant, the original or transcripts of all such data and all other documents relating to such data".

This, in fact, gives the Cabinet Secretary the widest possible power over all our equipment – your computer, phone or tablet would be fair game. What’s worse is that according to that framing, the Cabinet Secretary has the power to order you to open up your email or social media correspondences - even those in your direct messaging (DM).

The only requirement is that s/he would need to decide that it is in the public interest. There is no requirement that he should define what that public interest is or that he should justify himself anywhere.

Consider the repercussions of this provision. Imagine a whistle-blower being required to open up their email after sending evidence of corruption to a friend in another country so that that evidence is made public. That whistle-blower could then be accused of “making a plan that might be useful to a foreign power or disaffected person” under the Official Secrets Act.

One of the legal principles that this law could endanger is your right not to  incriminate yourself. A Kenyan has the right not to give testimony or evidence that can be used against them in a court of law.

In essence, by looking at your email or social media private messages, the Cabinet Secretary would have access to information that you wished to keep private that can then be used against you. The Cabinet Secretary could have ordered you to show him your phone on the basis that you are a spy for a foreign power and instead see your accounts, which he could share with KRA to find that you have been dodging your taxes.

While the motive behind the law is ostensibly designed to protect Kenyans from, say cyber terrorists, it is necessary that Kenyans remember that a key principle for revamping the constitution in 2010 was to ensure that there are checks and balances. It is important that robust checks are built into that provision. The Cabinet Secretary should be required to justify the public interest to a court of law before s/he looks through your phone.

Of interest is that the Bill also proposes to delete section 184 of the Criminal Procedure Code (Cap 75), which says: “Where a person is charged with rape and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under one of the sections of the Sexual Offences Act, he may be convicted of that offence although he was not charged with it.” 

My reading is that should the Statute Law pass as it is, then a person who is found not guilty of rape but is guilty of another offence in the Sexual Offences Act - such as sexual harassment - the judge would still be obliged to set the defendant free because that was not the charge. This technicality is also proposed for section 186, which deals with the defilement of a girl under the age of 14.

Mr Kags is a serial social entrepreneur. [email protected]

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