By Bosire Chrispin
‘The need to find the right balance between competing rights and competing interests is fundamental in all States.’
Law seeks to reconcile conflicting interests by securing the most and sacrificing the least. A balance – ‘eliminating friction and precluding waste in human enjoyment of the goods of existence’ – ought to be struck. This balance would be viewed as ‘social engineering.’
Proper, well-adjusted development of a country depends on the ability of government to balance the competing interests of security and human rights. ‘Kituo cha Sheria & 8 others v Attorney General’ restated reasonableness and proportionality of government action while declaring that the directive to close the Dadaab Refugee Camp was unconstitutional and against the principle of non-refoulment. The Constitution of Kenya requires national security to be guaranteed while also according utmost respect to human rights.
In the aftermath of the events of September 11, 2001, a recurring feature that has dominated both the academic and political arenas globally is the interplay between national security and human rights. In Kenya, the need to balance – rather prioritize – national security over human rights arose as a result of a number of sad and catastrophic attacks such as the Westgate and Garissa University terrorist attacks.
National Intelligence Service reports indicated that the various terrorist attacks were planned and facilitated from Dadaab Refugee Camp, which created the need to limit refugee rights while pursuing the objective of safeguarding national security. The 2007-2008 post-election violence that led to deaths of thousands of people and displacement of many Kenyans also contributed to the need for prioritising national security.
‘States may not adopt laws or practices that would make activities for the defence of human rights unlawful’
There exists a dysfunctional misconception in aggrieved societies that a curtailment of liberties leads to an increase in security. The argument here is that even if liberties obstructed the government from providing security, they rank remarkably lower than the real threats to national security.
Jack Donnelly argues that an antagonistic relationship between security and human rights is very likely to arise when the threat to security is perceived as moral rather than material, and coming from an internal source rather than external.
Studies have shown that the majority of people prefer tilting the prevailing balance in favour of national security. 67 percent of Kenyans believe that the terror attack perpetrated by Al-Shabaab militia at the Westgate mall could have been thwarted through increased surveillance. Such notions then validates the limiting of human rights with the objective of pursuing national security.
Ordinarily, assuring Kenyans of national security is viewed as part of the government’s mandate – to protect and promote human rights since the right to security is encompassed in the realm of Human Rights.
Conglomeration of factors
Development is a comprehensive economic, social, cultural and political process. It connotes a process of economic and social transformation that is based on complex cultural legal and environmental, among other factors, and their interactions.
In order for development to be manifest, it is accurate to assert that a democracy must strive to balance the competing interests of national security and human rights.
The acknowledgement that human rights must be enjoyed cumulatively drives a population to appreciate the need to limit rights, which speaks for the need to balance these competing interests.
Development, in the researcher’s view, in itself is a human right that should be enforced by states. Despite missing in various legal instruments as a human right, the right to development is equally important and should be given serious thought.
In Kenya’s context, development can only be realised if and when the state can balance the aforementioned rights, not pit them against each other.
Article 24 provides for the limitation of rights only to the extent that the limitation is lawful, reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
The principle of proportionality adopted by Article 24(1) is similar to that adopted under Article 1 of the Canadian Charter and Section 36 of the South African Constitution. ‘S v Manamela and Another’ stated, “Courts must engage in a balancing exercise and arrive at a global judgment on proportionality and not adhere mechanically to a sequential check-list.”
Just like German Basic Law, the Constitution of Kenya protects the “essence” of all rights, stating that no limitation may “limit the right or fundamental freedom so far as to derogate from its core or essential content.”
Restrictions on basic freedoms
While international and regional human rights instruments affirm and protect the right to freedom of peaceful assembly, they also allow states to impose certain limitations on that freedom. This chapter examines the legitimate grounds for the imposition of restrictions on public assemblies and the types of limitation which can be imposed.
The inherent imprecision of this term must not be exploited to justify the prohibition or dispersal of peaceful assemblies. Neither a hypothetical risk of public disorder nor the presence of a hostile audience are legitimate grounds for prohibiting a peaceful assembly.
Compelling and demonstrable evidence is required to show that those organising or participating in the particular event will themselves use violence. If there is evidence of potential violence, the organiser must be given a full and fair opportunity for rebuttal by submitting evidence that the assembly will be peaceful.
The state has a duty to protect public safety. Under no circumstances should this duty be assigned or delegated to the organiser of an assembly. Organisers and stewards may assist in ensuring the safety of members of the public. An assembly organiser could counter any claims that public safety might be compromised by his or her event by, for example, ensuring adequate stewarding.
Restrictions might also be justified on occasions where the health of participants in an assembly becomes seriously compromised. In ‘Cisse v. France’, for example, the intervention of the authorities was justified on health grounds, given that the protesters had reached a critical stage during a hunger strike, and were confined in unsanitary conditions.
The main human rights treaties that protect freedom of assembly the International Covenant on Civil and Political Rights and European Covenant on Human Rights are “living instruments” and are thus attuned to diverse and changing moral values.
Measures purporting to safeguard public morals must, therefore, be tested against an objective standard of whether they meet a pressing social need and comply with the principle of proportionality.
Under Article 4 of the International Covenant on Civil and Political Rights and Article 15 of the European Convention on Human Rights, in times of war or public emergency threatening well-being of a state, nations may be excused from guaranteeing freedom of assembly. They may do so only to the extent strictly required by the exigencies of circumstances and in tandem with international law.
Since the right to assemble presumes the active presence of others for its realization, restrictions of freedom of association will often undermine the right to assemble.
Paramountcy of national security
‘International law recognises that certain rights may be limited by proportional and justified national security measures.’
The issue of national security is often given too wide an interpretation in relation to freedom of assembly. In his book, ‘Not a Suicide Pact: The Constitution in a Time of National Emergency’, Richard Posner explains that the judicial system should be pragmatic and accord national security the importance it deserves. He argues that national security is paramount and if need be, rights should be curtailed. He also states that the unique departure from civil liberties would only be applicable to cases that pose great and increasing danger.
Eric Posner, in ‘Terror in the Balance: Security, Liberty and the Courts’ also argues that governments should be granted greater latitudes to limit rights in times of emergencies. He further states that the gains achieved in maintaining national security outweigh the losses incurred in foregoing certain rights. Moreover, he points out, civil liberties interfere with the elimination of threats, hence the need to compromise them during emergencies.
Jack Donnelly focuses on the term “security”, and the understanding of the concept. As he puts it, its meaning is not always constant and obvious. It is not just about “protecting the national territory from invasion”.
Again, Donnelly considers a three-variable model: (1) What is to be secured? When security applies to the state, it is referred to as “national security”. (2) Where does the threat lie? Does the threat to security come from an external source or is it internal and therefore much more difficult to anticipate? (3) What is the nature of the threat? A threat to security can be material, with destruction of infrastructures, public places etc. It can also be moral and ideological, and have more consequences in the long-term, as again it is more difficult to discern.
Proponents of security over liberties, also argue that more restrictions on some liberties are warranted so as to provide more protection for the citizenry.
The systematic violation of human rights undermines true national security and may jeopardize international peace and security.
Arguments for paramountcy of rights
‘At the international level, the obligation to respect, protect and fulfill human rights rests with national governments.’
There is a school of thought that maintains that curtailing liberties is playing into the hands of terrorists and would amount to losing the ‘war on terror without firing a single shot’.
The International Covenant on Civil and Political Rights provides for derogation under Article 4. It implies that derogations are not homologous to abrogation or abolition of a right. The latter repeal the rule of law and completely eliminate a right while the former as reiterated by the Covenant, suspend a right under specific situations.
The systematic violation of human rights undermines true national security and may jeopardize international peace and security. A State responsible for such violation shall not invoke national security as a justification for measures aimed at suppressing opposition to such violation or at perpetrating repressive practices against its population.
France had been threatened on numerous occasions by terrorist groups affiliated with al-Qaeda or the Islamic State, because of several interventions in Africa and in the Middle-East. During the weeks leading to the first attacks in January 2015, other terrorist attempts were thwarted, according to the General Directorate for Internal Security, the French intelligence agency.
Following the November attacks, President François Hollande declared a state of emergency, which meant, among other things, that some public places were closed, road traffics forbidden, and police search warrants allowed in the Paris region.
New security measures were passed by the French government that tilted the balance between security and liberty. The concept of security had never been given a proper framework, unlike human rights. It is generally accepted that security interests should be considered a priority over other interests, especially in times of crisis, as Jack Donnelly demonstrates.
The courts in England have been quick to overrule decisions made by the Executive and parliament that pit human rights against national security and often sacrifice liberties for security. The judiciary, to its credit, has often risen to the occasion to ensure an appropriate balance is struck between the two interests.
In Canada, balancing national security considerations with human rights is a well-established approach. This is clear from several decisions of the Supreme Court of Canada. The court has adopted positions that seek to integrate human rights into national security systems without jeopardizing the security of Canadians. The Court in ‘R v Oakes’ dealt with limitations of fundamental rights and freedoms in the Canadian Charter of Rights and Freedoms. Those provisions are similar to those contained in Article 24(1) of our Constitution.
States must show that such constraints are rational and justified. This is the standard of proof placed on governments.
Under International law
Limitations may only be applied to certain rights if national laws that are consistent with the Covenant allow for it. Moreover, no laws that provide for limitations should be arbitrary.
The Siracusa Principles acknowledge that there is no model for a democratic society. They, however, interpret this term to mean a society that respects human rights. Therefore, it is upon the state to ensure that the limitations do not interfere with the democracy in the society.
Necessity and Proportionality
Necessity and proportionality are elements synonymous with restrictions on liberties. As discussed earlier, the limitations must be proportionate to the expected ends and necessary to achieve the ends sought. In ‘Morais v Angola’ the Human Rights Committee observed that necessity and proportionality can be used interchangeably as necessity implies a level of proportionality.
The International Covenant on Civil and Political Rights and the European Convention on Human Rights dictate that, derogations should only be carried out ‘to the extent strictly required by the exigencies of the situation.’
Proportionality standards question the validity of the measure(s) taken and the manner of implementation applied. The Siracusa Principles add, “The severity, duration and geographic scope of any measure shall be strictly necessary to deal with the threat to the life of the nation and proportionate to its nature and extent.”
In determining the level of proportionality, states are afforded a margin of appreciation. This is the freedom to act or the latitude of deference or error. Distinct from derogation, certain liberties under human rights instruments contain in-built limitations that prescribe the conditions under which the right may be restricted. Limitation of rights in the ICCPR is only licit under the following conditions:
“The limitation must be prescribed by law and necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”
The Siracusa Principles provide a detailed outline on application of limitations. They state that no limitation shall be permitted, other than those applied in the Covenant. Furthermore, all limitations shall be applied in favour of the right and in a proportionate and non-discriminatory manner.
National security and public safety
The Siracusa Principles define public safety to mean protection against danger to the safety of persons, to their life or physical integrity or serious damage to their property.
In 2015, France declared a state of emergency following the Paris attacks that left 130 people dead. The government derogated from the right to privacy so as to enhance national security and public safety during the tumultuous times
The European Convention on Human Rights provides for limitations on rights in the International Covenant on Civil and Political Rights. Similar to the International Covenant on Civil and Political Rights, the European Convention on Human Rights also prescribes three conditions that must be adhered to when limiting rights: legality, necessity and legitimacy.
The African Court on Human and People’s Rights permits for limitation of some rights such as the right to association and assembly. The conditions accompanying these limitations are legality and legitimacy.
The Africa Commission on Human and Peoples’ Rights justified the absence of derogation clauses and minimal limitations in ‘Media Rights Agenda and Constitutional Projects v Nigeria’, stating the Charter does not contain a derogation clause and therefore limitation on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances, the reasons for possible limitation must be founded in a legitimate state interest.
The Kenyan government between 1998 and 2014 faced challenges in its course to ensure an effective security framework while observing the fundamental liberty of the people. This still remains the case in 2018, judging from the sad and traumatic events that led even to deaths of children by bullets owned by the state.
The principles of human rights sustenance are provided for in the Universal Declaration on Human Rights in 1948, The 1993 Vienna World Conference on Human Rights, emphasizing on conditions for human rights.
The counter insecurity approaches in Kenya have worsened the sustenance of human rights due to the inability of the state to ensure strong implementation and operationalisation of international human rights instruments in its counter insecurity approaches.
Article 3 of the UN Universal Declaration of Human Rights sets out the rights of individuals that must be observed, and the preambles of the International Covenants recall the obligation of States under the Charter of the United Nations to ensure that human rights are protected.
This article therefore draws the conclusion that sustaining the balance between national security and the respect and promotion of human rights is achievable through the use of derogations and limitations provided for in various instruments. It is suggested that Kenya ought to emulate jurisdictions such as but not limited to France and Turkey that have successfully derogated and limited rights when faced with threats to their national security, while ensuring compliance with international human rights law. Given this background, the following recommendations inevitable.
One, any human rights violation or abuse in the context of managing assemblies by police forces, under the umbrella of safeguarding national security, must be investigated promptly, thoroughly and impartially.
Two, derogations on human rights ought to be utilized as a measure of last resort when attempting to safeguard national security. It has been proven that some of the greatest democracies in the world such as the United States have managed to sustain their eminence precisely because they temporarily suspended some liberties during tumultuous times.
Three, the Kenyan Judiciary must adopt the same stance to ensure that the war on insecurity is characterised by strict adherence to human rights standards, and that decisions made by other arms of government heed to these standards. On a positive and encouraging note to that effect, the striking out of some sections in the controversial Security Laws (Amendment) Act was a bold move in the right direction.
Lastly, limitations on human rights must be effected within constitutional bounds. Kenya can borrow from practices in Britain and Ghana that have proven effective in upholding the human rights whilst addressing security challenges. (