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Anti-terror law a colossal mistake and will erode the gains made on reforms

By Makau Mutua | Dec 21st 2014 | 4 min read

Benjamin Franklin, the iconic American statesman and thinker, gave us a unique fund of pithy quotes. One of the most memorable is about the inextricable relationship between security and liberty.

He said “[t]hose who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” That nugget of wisdom has never been more relevant for Kenya than today.

The new anti-terror law, ominously titled Security Laws (Amendment) Bill sounds both Kafkaesque and Gestapo-like. Kafkaesque because it conjures up images of nightmarish repression devoid of basic rights. Gestapo-like because it would give the state sweeping powers to snoop and violate rights with impunity.

The law puts a dagger at the heart of the 2010 Constitution.
The Jubilee regime hasn’t seen a security measure it didn’t like. But let’s get one thing straight before you get the wrong impression. Like other normal people, I think terrorists are vile human beings. But being “vile” doesn’t make them “non-human.”

That means actual terrorists as well as terror suspects are protected by the Bill of Rights. Those rights are not granted as a privilege by the state. Nyet — they inhere in an individual by virtue of being human. No law should abridge, or abrogate, our basic humanity even under the colour of fighting terror. I’ll tear the anti-terror law apart in a minute, but let me say the law turns Kenya into a republic of fear.

States are by their nature like jealous husbands. They ward off fellow males even as they covet the wives of others. I’ve never seen a state that’s not addicted to power and authority. Let’s remember this — power corrupts, and absolute power corrupts absolutely.

That’s why citizens have an obligation — a civic duty — to naturally distrust states. That’s the only way democracy is possible. Tyranny grows where the citizenry becomes a herd of subservient lot. Citizens shouldn’t allow the state to scare them into giving it draconian powers. The state will come back to use those powers against citizens. Beware what you give to Caesar because he will use it against you. Let’s not be instruments of our own oppression.

Let’s take a leaf out of the United States. This past week, the US Senate released — against immense from the Executive — the so-called Torture Report. The voluminous document provides in painful detail how the CIA tortured terror suspects for years in the wake of the Al Qaeda attacks on September 11, 2001.

In the stampede of the moment, Congress, the Bush White House, and the CIA condoned chilling acts torture which are illegal under both American and international law. What’s even more damning, according to the report, is that none of the savage torture resulted in any useful intelligence. The fury of the terror attacks drove the US to abandon key tenets of its democracy and way of life.

Mr Kenyatta and the Jubilee government would have us believe that Kenya is faced with the same evil and should replicate the actions of the US. That’s why Kenya’s anti-law seems like a replica of the US Patriot Act which eroded civil liberties and permitted intrusive and often illegal actions by the state. The Kenya anti-terror law would kill many civil and political rights, including those of expression and the media.

It would void safeguards against stop and search detention without trial and it would effectively abolish the independence of the constitutional offices of the Inspector General of Police, the KNHCR, IPOA, and ODPP among others. These changes are tantamount to constitutional amendments through the back door.

We all want to defeat terrorists. But we can’t succeed if we act like them, or if our values aren’t different from them.

Enough laws and institutions exist to deal with terrorism. The problem isn’t that the law on the books are soft, or that somehow Kenyans are coddling terrorists.

No — the problem is that the spy and security agencies are either incompetent or riddled with corruption. Perhaps there is little coordination between the security agencies and the police. May be the training is inadequate.

I suspect morale is low. These problems can only be compounded if Jubilee creates an even deeper state with the new anti-terror law. The law will increase opacity and unaccountability. How will that fight terror?

Finally, let’s take another leaf again from the US. Available evidence suggests that terror attacks have been thwarted not by the surveillance state — collecting meta-data and listening in on zillions of innocent chatter — but by painstaking professional work within the bounds of the law.

The Senate report makes clear that inhuman tactics aren’t what’s kept America safe from another terror attack. That’s why Kenya needn’t replicate the mistakes of the US after 9/11. The law will only give Kenyans a false sense of security.

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