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Terror victims to appeal High Court decision on security laws

By John Muthoni | March 2nd 2015

A lobby group comprising victims of terrorism says it will move to the Court of Appeal this week to challenge the High Court ruling on Security Laws (Amendments) Act, 2014.

Terror Victims Support Initiative (TVSI) complained Sunday that the High Court's declaration that two sections of the laws were unconstitutional had left a void that could have far-reaching ramifications on Kenya's ability to fight terror.

The lobby specifically raised concern with the striking out of two sections of the law regarding the rights of an accused person, specifically Section 20 of the Act on the right of an accused person to be released on bail and Section 16 which sought to allow the prosecution to withhold information from an accused person until trial time.

"It is our feeling that the court's ruling was skewed in favour of suspects at the expense of victims," said TVSI's convenor Ben Mulwa, a victim of the Westgate attack.

Mulwa said they were concerned that the declaration would give suspects a wide range of rights to bail, saying the laws should have been maintained to ensure that terror suspects are held in custody while their trial progresses.

"Terrorism is not a petty crime. By the time a suspect is arrested by law enforcers as a terror suspect and taken to court, there must be some high degree of evidence linking him/her to the offence. Letting such a person loose only grants him more time to hit again, and we have seen this in the past where suspects have been bailed," Mulwa said at a Press conference in Nairobi.

He added: "We have instructed our lawyers to this coming week move to the Court of Appeal and challenge the High Court ruling. These judges may never know the pain victims of terror undergo. If anyone of them became a victim I am sure he would not grant suspects the liberty that they gave them in their ruling."

The TVSI's lawyer Tom Macharia, who represented the group during the suit filed by Coalition for Reforms and Democracy where they were admitted as interested parties, said the two pieces of legislation, which were part of the eight that were declared unconstitutional, left a void which might be the weak link in the fight against terrorism.

Human rights

Mr Macharia said whereas the law provided for the rights of accused persons, terror suspects should not be allowed to perpetrate heinous crimes in the name of respecting their rights.

"There is a lot of concern among victims of terror...Assume a terror suspect is a well up person and can afford to pay bail, then it means he will be let loose to continue with the crime," Macharia said.

Macharia argued that even in First World countries, the issue of terror suspects and human rights had also been challenged in courts.

He said despite the laws in these countries, hard stands on terror suspects had been carried along by successive Presidents.

''These are hardened criminals (terror suspects). They have already given up their lives. To release a person like that is like setting up another terror attack. Guantanamo Bay has not been closed to date despite the promise by President Barack Obama. You have to be realistic about the world we are living, rights exists for citizens,'' he said.

On disclosure of evidence, Macharia said the Act had not entirely barred a suspect from getting information on what they were accused of.

"Parliament got an A plus if it was an exam. Britain had to do their law three times, the USA Patriot Act was done several times... For the first time getting that mark, (Kenyan) Parliament got it right," he said.

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