Why citizens should be conversant with basic terrorism-related offences

Courtsey.

The legal principle that ignorance of the law is not a valid defense is based on the idea that laws are publicly known and accessible, and that claiming ignorance cannot make people charged with criminal offences avoid the consequences.

Though there are certain exceptions to this rule – such as when a new law has been passed without sufficient time for the public to become aware of it – this principle should prompt citizens to acquire basic legal literacy to avoid finding themselves on the wrong side of the law.

In Kenya and other jurisdictions, terrorism-related offences are very serious and attract stiffer penalties due to their impact on the national security.

On this basis, it is critical for Kenyans to be familiar with the country’s legal framework for fighting terrorism for a number of reasons.

Firstly, understanding counter terrorism laws can enable citizens to support government’s war on terror including through volunteering information on terrorism activities to authorities.

Secondly, it will help prevent inadvertent committing of terrorism-related offences. 

The Prevention of Terrorism Act, 2012 (POTA) is the primary legislation for fighting terrorism in all its manifestations. It also provides detailed measures for detection and prevention of terrorist activities in the country.

Kenya enacted POTA as a response to rising terror attacks by Al-Shabaab. These attacks were attributed to the country’s porous border with war-torn Somalia, geopolitical position, regional hub status and closeness with Western powers.

POTA is aligned with global war on terrorism as provided in the United Nations Security Council Resolutions 1373 and 1267. Equally, Kenya is party to the African Union Treaty on Terrorism and at least three other conventions dedicated to war on terror.

The law provides detailed definitions of terrorism act, terror group and other terrorism-related offences. It also provides a framework for investigation, evidence gathering and prosecution of such offences.

Fully cognizant that the war on terror requires multi-sectoral approach, the law has detailed mechanisms for coordinating counter-terrorism measures.

It created the National Counter Terrorism Centre (NCTC), for example, to coordinate measures to prevent, detect, deter and disrupt terrorism acts. NCTC also leads in the implementation of the National Strategy for Preventing and Countering Violent Extremism (NSPCVE) including de-radicalization programs.

POTA also obligates citizens to disclose information on terror acts to authorities.

The most common and serious offence under POTA is carrying out a terrorist act which, upon conviction attracts a jail term not exceeding 30 years. If the terrorist act results to death, the accused person is liable to life imprisonment.

In 2019, a Kenyan court jailed Rashid Mberesero, a Tanzanian, for life, for carrying out a terror attack at Garissa University College that resulted in the death of 148 people. His fellow terrorists were jailed as well, while others died. 

The terror groups have increasingly been preying on vulnerable youth to indoctrinate them into terrorism. They conduct both physical and online recruitment through platforms like TikTok, Facebook and Telegram while others are enticed with fake jobs and other opportunities abroad only to end up in terror theatres in Somalia or Libya.

Radicalization and recruitment thrive on spreading extremist literature, both offline and online, in support of violent extremism and terrorism.

The slain extremist preacher Aboud Rogo, who was Al-Shabaab and Al-Qaeda member, perfected this strategy to spread terrorism propaganda by encouraging young people to join terror groups to fight for Jihadi, perceived government excesses and historical injustices.

It is against this background that POTA outlawed possession of an article or information for use in committing a terrorist act. Any breach of this section of the law attracts imprisonment for a term not exceeding 20 years.

POTA also has express provisions prohibiting facilitation of terrorist acts with a deterrent jail term not exceeding 20 years. 

It is also worth noting that section 30 (c) of POTA presumes that a person who travels to a designated country – that sponsors terrorism – without clearance by immigration officials, is doing so in furtherance of terrorism activities including training.

However, Kenyans residing in counties like Wajir, Mandera, Garissa and Lamu, bordering Somalia, which is a designated country, are exempted from this provision of the law.

In 2015, Kenya declared Somalia, Yemen, Iraq, Syria, Afghanistan and Libya as designated countries and warned Kenyans against travelling to these countries.

It is also instrumental in preventing flow of terrorists from the countries with high terrorist activities to Kenya. As part of border surveillance, security agencies have arrested persons crossing over to Somalia and charged them with this offence, which attracts a jail term of not less than ten years.

Currently, the criminal justice system actors are collaborating and utilizing POTA to arrest and prosecute terrorists in the country with the increased conviction attributed to the effective turning of intelligence into evidence as well as more consideration of circumstantial evidence.

On July 28, for example, the Director of Public Prosecutions (DPP) secured conviction of Ibrahim Hussein Hassan who was found guilty of seven counts, including being a member of Al-Shabaab and collection of information connected with terrorism.

Although POTA is sufficient, actors in the criminal justice system are contemplating amendments to propose stiffer penalties for convicted terrorists and seal loopholes in the law identified during litigation of terrorism-related offences. 

The writer is a senior security writer and a former law enforcement officer