BY Kevin Motaroki
Last year could rightly be classified as one of Kenya’s darkest, when terrorists crossed the border from Somalia, once besieging a mall at the heart of Nairobi, hunting down and shooting people for hours, and twice taking hostages and picking out Christians to butcher, all in the name of God. Kenyans were rightfully angry – government was doing little to secure our borders, and there was the general feeling that the people tasked to run security agencies were grossly unqualified.
Our problem, it has been said, time and again, is that we enact but never implement. There are tons of laws which, if well applied, would effectively counter threats of terrorism. Retired President Mwai Kibaki, in his last year in office, signed into law the Prevention of Terrorism Act No. 30 of 2012, which security experts projected would put an effective stop to terrorism. Specifically, analysts thought it would ease the disruption of terrorist networks and cells, through crippling finance networks. And it almost got implemented, until Kibaki handed over power to a duo that seems unapologetically incapable of or unwilling to contain the littlest of threats.
Also at the centre of this desired implementation is the welfare of those tasked with executing existing laws – law enforcement agencies and officers. Today, there are still police stations which get the financial equivalent of four litres of fuel to cater for 30 square kilometres each day, rundown structures for offices and residences, and, of course, the less-than-appealing salary for a month’s work in the jungle. And we seem to have heard the last of the abortive police service reforms. This tendency to initiate matters and leave them half-baked is something even the pettiest criminal has come to know our governments for – whether this is deliberate or not is debatable.
If there are legal solutions that would help foster better security – speaking in the context of the Security Laws (Amendment) Bill 2014 – they should certainly be considered. But what government seems to have done is take advantage of a sad circumstance to gain an undue advantage over the citizenry, through taking away rights as basic as expression and privacy.
The law, some of whose provisions the High Court last month suspended, makes the distribution of “obscene, gory or offensive material which is likely to cause fear and alarm to the general public” a crime punishable by a fine of up to Sh1 million or three years in jail. ; empowers the National Intelligence Service (NIS) to intercept and record telephone conversations without a court order – something the NIS has hitherto done discreetly and which required approval from the High Court; and provides for the fining of media outlets (up to Sh5 million) and jailing of journalists who publish or broadcast photographs of terror victims without their consent or permission from the police for up to three years, or both.
The implications of the other provisions of the law are just as grave, but my particular concern is that the little privacy the Constitution accorded us has been snatched.
You will forgive me if I am wrong but sanctioning official snooping has got nothing to do with whoever attacked us, and has everything to do with the State exercising greater control. Given the level of discretion afforded heads of our security agencies – who are to be handpicked by the President, according to the law – who is to say they won’t use such a provision to terrorise their political enemies, for example?
The Opposition is angry. Activists are angry. Kenyans are angry. It is not over nothing. Individual privacy is one aspect of human life that must never be compromised. This law doesn’t affect Al Shabaab; they can cross the border, carry out their butchering, and slip back across the border, while government snoops on those within its borders. They have certainly done so and succeeded and, as they like to remind us on social media, they will return.
The idea of “suspected persons” is not unambiguous. Depending on the persons interested, it could well be a business person who owns a prime plot a certain influential figure is interested in. Most importantly, we must ask whether, in practice, this intrusion will be of much value to individuals who are never told what they are suspected of, and who may not be able to challenge the true case against them if and when it is eventually revealed. An easier way would be to man our borders well and act on intelligence as and when it is obtained.
For every short story about the need to create a permissive legal environment to combat crime you will read, there will be a dozen others of police torture, corruption and violence to give intelligence agencies such sweeping powers.
If the interim suspension orders issued by the High Court are lifted, tougher anti-terror laws and surveillance are coming. Kenyans’ right to privacy is about to be taken away. For a government that has not hid its desire to convert our country into an Orwellian society, this ought to have us all worried. For legislation that touches on such a fundamental right, the State should, at the very least, have brought Kenyans into an open dialogue on the need to have new measures, including explaining the nature, reach and implementation of the new laws, and provided for practical oversight for the implementing agencies, particularly the police and intelligence officers.
Nothing at this point warrants snooping into people’s private lives on the scale that the government wants to initiate. One is almost persuaded to think that Kenyans are being bullied into giving up their right to privacy by a government that is bent on totalitarianism.
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