Illegitimate process in the enactment of security laws

Illegitimate process in the enactment of security laws

BY APOLLO  MBOYA

The Security legal framework is governed by a complex statutory framework composed of about 22 statutes which have been established over the past twenty years. 

On 18th December 2014, the National Assembly held a special sitting to deliberate on the Security Laws (Amendment) Bill 2014. The proceedings were disrupted on the third reading necessitating the Speaker to adjourn the debate twice, only for the chaos to continue when it resumed a third time in the afternoon. 

The whole world witnessed Members of Parliament (MPs) assaulting one another and fighting on live television broadcasts. 

In the midst of the chaos, the Speaker of the National Assembly purported to continue with the proceedings calling upon the MPs to vote and adopt the amendments to the Bill in blatant violation of the Standing Orders. 

Adoption or rejection of any proposed amendments can be adopted by acclamation ‘I’ and ‘Nays’ but in case any 20 MPs rise on their feet, the House must proceed in a division requiring actual voting by MPs present. 

It was impossible to determine whether there was a division since the purported adoption of the Bill was done when all the MPs were on their feet. The next day, on 19th December, 2014, President Uhuru Kenyatta signed the Bill into law amid continued opposition.

While national security is of great importance and the Government need to address the challenges appropriately, the purported adoption by the National Assembly of the Security Laws (Amendment) Bill 2014 and its subsequent signing into law by the President of Kenya begs the question on whether, first the process was pursued in compliance with the law and, secondly whether the contents of the Bill respect the principles for human rights, democracy, and fundamental freedoms.

On the process, it can be recalled that the Government of Kenya published the Security Laws (Amendment) Bill 2014 on 10th December 2014 which proposed major amendments to at least 22 laws but also impacting on several others. The Memorandum appended to the law misleads by stating that the Bill is “in keeping with the practice of making minor amendments which do not merit the publication of a separate Bill” yet the Bill makes several substantive amendments to the Penal Code, Criminal Procedure Code, Evidence Act, Prevention of Terrorism Act and National Services Act, among others. It also creates sweeping surveillance powers for the authorities. 

Apart from not involving the organs of implementation of the Constitution such as Kenya Law Reform Commission and Commission on Implementation of the Constitution, there were no meaningful public consultations. Various stakeholders scrambled to put in memoranda and commentaries within the limited time. 

In the chaos that characterised the debate and the purported adoption of the Bill, I witnessed parliamentary staff including clerks and Sergeant-at-Arms also participating in the adoption by shouting in acclamation or disapproval. When the speaker had lost control of the House, the only prudent thing should have been to adjourn but not to allow abuse of parliamentary democracy. It appears that there were strict instructions that the Bill must be adopted by crook or nook on December 18 2014. 

 

An important legislation on security ought not to have been handled in such acrimonious manner and I am certain that there is course of action in court to challenge both the process and some contents of the new law.

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