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July 2003

Bill to curb terrorism stirs controversy

A new Bill to curb terrorist activities in the country is facing = rejection following revelations that it is a replica of an American Law.
Zachary Ochieng

In a bid to fight terrorism, the government of Kenya, taking a cue from the US administration has published a Bill that has sent shockwaves to all human rights advocates. The Bill comes hot on the heels of the August 1998 bomb attacks on the US embassy in Nairobi, the September 11 2001 twin attacks on the World Trade Centre, New York and the November 2002 bombing of the Israeli owned Mombasa's Paradise Lodge.

While the government is justified in publishing a Bill to fight terrorism, which has almost crippled the tourism industry, Attorney General Amos Wako has come under fire for publishing what is being seen as a replica of an American Law. The Suppression of Terrorism Bill, 2003 borrows heavily from the USA Patriot Act, a law hastily passed in October 2001, soon after the World Trade Centre twin tower attacks as an American response to terrorism on American soil.

Even before being presented for debate in parliament, the Bill is bound to be scuttled as the main opposition Kenya African national Union (KANU) and a section of back- benchers in the ruling National Rainbow Coalition (NARC) have vowed to oppose it.

At the centre of controversy is the definition of terrorism, seen as narrow and disturbing. According to Section 3 (1) of the Bill, "terrorism" means

a) use of threat or action where

b) the use of threat is designed to influence government or to intimidate public and

c) the use of threat is made for the purpose of advancing a political , religious or ideological cause.

From the above definition, it cannot be gainsaid that the proposed law literally suspends fundamental freedoms and personal liberties enshrined in the Kenyan constitution.

As if that is not cruel enough, section 3 (11) of the Bill takes ordinary criminal acts of assault, damage to property (malicious or otherwise), public health and criminal trespass and classifies them as "terrorism". The section -also available in the USA Patriot Act - contravenes Section 78 (1) of the constitution of Kenya which, guarantees freedom of conscience and religion.

Needless to say, Section 3 (1) of the Bill implies that advancing ideological beliefs will amount to terrorism. It therefore follows that Christians preaching hell can be branded "terrorists" as preaching hell is a threat. According to the section, criticizing the government also amounts to terrorism.

Had the Bill been published at the height of the clamour for multiparty politics in the early 1990s, a number of organizations would have been proscribed as Section 9 of the Bill gives the minister in charge of national security power to declare any organization a "terrorist" organization. Once proscribed, it is an offence to be a director of such an organization, and the minimum penalty is a life sentence.

According to Section 9 (5), a person who directs, at any level, the activities of an organization which is concerned in the commission of acts of terrorism shall be guilty of an offence and shall be liable to conviction to imprisonment for life. No doubt, this is also a replica of section 411 of the USA Patriot Act.

The Bill also encroaches on the freedom of association as Section 10 (1) makes it an offence for one to be a member of a declared terrorist organization, an offence which attracts a ten year jail sentence.

But more outrageous is Section 12 (1), which spells a dress code, thus limiting what one can wear. It states: "A person, who in a public place,

a) wears an item or clothing or

b) wears, carries or displays an article, in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a declared terrorist organization shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding six months".

The Bill also certainly violates Kenyans' property rights. Section 21 (1) of the Bill stipulates that a citizen's property or cash may be seized any time as long as an "authorized officer" has reasonable grounds to suspect "that it is terrorist property". It therefore goes without saying that an authorized officer can move to seize cash or property to settle personal scores.

The Bill also infringes on an individual's privacy. Section 35 (4) permits the Attorney General to secure a court order to tap an individual's phone and make the transcripts or recordings available to the CIA or FBI or any other security organization of a "foreign state".

But the Section that makes this Bill a "killer law" is Section 40 (3), which authorizes police officers to kill without any criminal or civil liability. In a country where police killings have been the order of the day, the passage of this law will certainly result in a number of unexplained deaths, especially of suspects held in police custody.

It states: "A member of the police force, customs officer or other officer who uses such force as may be necessary for any purpose, in accordance with this Act, shall not be liable in any criminal or civil proceedings for having, by the use of force, caused injury or death to any person".

The very section violates Section 71 (1) of the constitution of Kenya which provides: "No person shall be deprived of his life intentionally, save in execution of the sentence of a court [death penalty] in respect of a criminal offence under the law of Kenya of which he is convicted".

From its very contents, observers argue that this Bill was drafted not with the interest of Kenyans at heart, but for the propagation of foreign interests. The spotlight is once again on Wako, who has on a number of occasions been accused of publishing faulty Bills, thereby failing in his noble task as the government's chief legal advisor.

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