Kenya: Concerns with Security Laws (Amendment) Bill
17 Dec 2014
ARTICLE 19 is deeply concerned by the Security Laws (Amendment) Bill 2014 (the Bill), which would amended a number different laws and which the Kenyan Parliament is being asked to approve on a fast-tracked timetable. ARTICLE 19 finds that the Bill in its current form would violate the Kenya’s obligation under international human rights standards. Hence, we call on the Kenyan Parliament to reject the Bill and to ensure that legislation deemed to address threats of terrorism fully meet international standards.
On 18 December 2014, the Kenyan Parliament will consider passage of the Security Laws (Amendment) Bill, 2014. The Bill itself is 90 pages, contains 109 provisions and amends no less than twenty-one Acts of Parliament.
The Memorandum appended to the law states 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 Kenyan government is seeking the swift adoption of the Bill on the back of recent terrorist attacks in the country. Far from introducing only minor amendments, 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.
ARTICLE 19 believes that the Kenyan government has failed to make the case for the Bill to be examined in such a rushed way. In our view, the Bill contains numerous provisions that are in breach of international human rights standards and deserve full parliamentary scrutiny. Our key areas of concern are detailed further below.
The Bill should not be fast-tracked
The Kenyan Government seems to have taken the old adage ‘never let a good emergency go to waste’ to extreme levels. Whilst security concerns in Kenya are very real, the Kenyan Government is seeking the approval of this Bill on a fast-tracked timetable without having made the case as to why new legislation is necessary at such short notice.
We note that the Kenyan government already passed the Prevention of Terrorism Act and the National Intelligence Service Act in 2012. It is unclear what new offences or powers the authorities need that they do not already have. In any event, it is incumbent on the government to make the case for new sweeping investigatory powers, in particular as regards communications surveillance.
Amendments to the National Intelligence Services Act
Section 66 of the Bill amends the National Intelligence Services Act by introducing a new Part V on covert operations. In particular, it introduces a new section 42, which gives the Director-General broad powers to authorise covert operations where he has reasonable grounds to believe that such operation is necessary to enable the Service to investigate or deal with any threat to national security or perform any of its functions. Among other things, the written authorisation issued by the Director General may authorise any member of the service to: (i) obtain any information, material, record, document or thing for the purpose of the operation; (ii) monitor communication; (iii) install, maintain or remove anything; (iv) do anything considered necessary to preserve national security. Such measures must be specific and are valid for 180 days. In making the decision, the Director-General is only subject to guidelines approved in Council.
ARTICLE 19 is seriously concerned that the proposed new section 42 of the National Intelligence Services Act would effectively give carte blanche to the Director-General to order mass surveillance of online communications for the purposes of national security. Worryingly, these incredibly broad powers are not constrained by statute - the DG is only subject to non-binding guidelines approved by the executive rather than Parliament. Moreover, these deeply intrusive measures are authorised by the executive rather than the courts. This is all the more concerning given that there are no safeguards against indiscriminate surveillance. In the absence of any procedural safeguards, the authorities are effectively granted an unfettered power in breach of the legality requirement under international law. As such, it should be removed from the Bill. At the very least, it should be subject to close scrutiny by Parliament and form part of a more comprehensive Bill governing the powers of the intelligence services in Kenya.
Amendments to the Prevention of Terrorism Act
Facilitation of terrorists acts
Section 72 of the Bill introduces a new section 9A in the Prevention and Terrorism Act (PTA), which criminalises anyone who ‘advocates, glorifies, advises, incited or facilitates’ the commission of a terrorist act or any at preparatory to a terrorist act. The offence is punishable by a term not exceeding 20 years.
Like the provisions outlined above, ARTICLE 19 believes that the new proposed section 9A PTA is unduly broad in breach of international standards on freedom of expression. International human rights bodies such as the UN Human Rights Committee and the UN Special Rapporteur on freedom of expression have made it clear on numerous occasions that only incitement to commit acts of terrorism may be prohibited under international law: the mere ‘advocacy’ or ‘glorification’ of terrorism are overly broad terms. It is equally unclear what ‘advice’ regarding terrorist acts might entail. In our view, this provision should be amended to be brought in line with international standards on freedom of expression as laid out by the UN Special Rapporteur on freedom of expression in his 2011 report. In particular, we recommend that the terms ‘advocates’, ‘glorifies’, and ‘advises’ should be struck out.
Section 73 of the Bill introduces a new section 12D in the PTA on radicalisation. This provision criminalises anyone who adopts or promotes an extreme belief system for the purpose of facilitating ideologically based violence to advance political, religious or social change. This offence is punishable by 30 years.
In ARTICLE 19’s view, this offence is excessively broad in violation of the legality requirement under international law. To begin with, it entirely fails to define what an ‘extreme belief system’ might be. It is unclear whether such extremist system may be religious, political or social. It could include some forms of anarchism, for instance. As such, this provision is likely to be used to silence political or critical speech in violation of international standards on freedom of expression.
Moreover, it is in contradiction with the recommendations of several UN bodies, which advocate policies based on tolerance and aimed at addressing the root causes of extremism, such as poverty and exclusion.
Publication of offending material
Section 75 of the Bill introduces a new section 30A in the PTA dealing with publication of offending material. The new proposed section criminalises anyone who publishes or utters a statement that is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism. Section 30A (3) specifies that it is irrelevant whether any person is in fact encouraged or induced to commit or prepare to commit an act of terrorism.
As with the provisions highlighted above, ARTICLE 19 believes that this provision is unduly broad in breach of international standards in this area, including those articulated by the UN Special Rapporteurs on freedom of expression and counter-terrorism. In particular, this provision fails to include an element of intent on the part of the maker of the statement. All that is required is that the statement may be wrongly interpreted as indirectly inciting to acts of terrorism.
Moreover, the provision fails to require a causal link between the expression at issue and the acts committed. There is no requirement that there must be an actual risk that such an offence may be committed as consequence. In fact, section 30A (3) provides for exactly the opposite.
More generally, ARTICLE 19 is concerned that this provision could criminalise legitimate expression, such as artists writing poems or songs about political matters. In light of the above, we would recommend that at a minimum, the terms ‘indirectly’ should be struck off, the term ‘intentionally’ and ‘unlawfully’ should be inserted between ‘anyone who’ and ‘publishes’. The terms ‘that is likely to be understood as directly or indirectly’ should also be deleted and replaced with ‘with a view to incite another person to commit an act of terrorism’ so that the provision would read ‘anyone who intentionally and unlawfully publishes or utters a statement with a view to inciting another person to commit an act of terrorism commits an offence’.
Finally, section 30A (3) should be withdrawn.
Prohibition from broadcasting
Section 75 of the Bill introduces a further amendment to the PTA. The new proposed section 30F (1) prohibits the broadcasting of any information, which may undermine investigations or security operations relating to terrorism without authorisation from the National Police Service. New section 30F (2) further criminalises anyone who publishes or broadcasts photographs of victims of a terrorist attack without the consent of the National Police Service and that of the victim. Both offences are punishable by a term of imprisonment not exceeding three years or a fine not exceeding 5 million shillings (i.e. over USD 50,000), or both.
In ARTICLE 19’s view, the proposed amendment constitutes an unjustified interference in journalistic activity. We believe that this section is highly likely to be used by government officials to prevent any criticism of the way in which the authorities handle terrorist attacks. The criminalisation of legitimate reporting activities will inevitably have a chilling on freedom of expression and unduly interfere with the public’s right to receive information about matters of public interest. Whilst section 30F (3) provides that anyone may still publish or broadcast ‘factual information of a general nature to the public’, it is highly unclear how this provision would operate since as a general rule, failure to seek authorisation from the police would potentially lend those reporting on terrorist investigations in jail. In any event, it is clear that only innocuous information could be published or broadcast without fear of censorship. As such, we believe that the amendment should be removed from the Bill.
Interception of communication by National Security Organs
Section 80 of the Bill amends the Prevention of Terrorism Act by introducing a new section 36A, which provides that ‘National Security Organs may intercept communication for the purposes of detecting, deterring and disrupting terrorism in accordance with procedures to be prescribed by the Cabinet Secretary’.
These surveillance powers are incomprehensibly broad. The Bill entirely fails to set out what these powers are and how they are to be exercised. This is seemingly left to the Cabinet Secretary, i.e. outside any of any parliamentary scrutiny. This is effectively laying the ground for secret decrees guidance detailing the surveillance powers of unspecified national security organs. It is therefore in breach of international standards on the right to privacy.
Amendments to the Penal Code
Section 66A of the Penal Code on the publication of gory or offensive material
Section 66 A criminalises the publication of ‘obscene, gory or offensive’ material, which is ‘likely to cause fear and alarm to the general public or disturb public peace. It is punishable by a fine not exceeding one million shillings and imprisonment not exceeding three years. If the offence is committed by a media enterprise, it is punishable by a fine not exceeding 5 million shillings (i.e. over USD 55,000).
In ARTICLE 19’s view, this offence is overly broad in breach of international standards in this area. In particular, the terms of ‘obscene, gory or offensive’ are unacceptably vague. It is quite unclear for instance what constitutes ‘offensive’ content. It is an eminently subjective term, which can be interpreted in any number of different ways. Moreover, the section 66 A offence is meted out with criminal sanctions, which are both disproportionate and highly likely to have a chilling effect on legitimate expression. We believe that this provision should be deleted.
Section 251A of the Penal Code on insulting modesty by intruding privacy or stripping
Section 215A criminalises anyone who intentionally insults the ‘modesty’ of any other person ‘by intruding upon that person’s privacy or strips such person. The offence is punishable by imprisonment not exceeding 20 years.
Again, ARTICLE 19 is concerned that this provision is unduly broadly drafted. Key terms are both undefined and excessively vague. It is unclear what ‘modesty’ means, how such modesty can be insulted or intruded upon. This provision is therefore likely to criminalise legitimate speech, such as a journalist reporting on an affair involving a politician. Moreover, the criminal sanctions available for this offence are wholly disproportionate.
Finally, it is wholly unclear how this provision is related to the purported purpose of the Bill, i.e. security. We believe that this provision should be removed from the Bill.
Amendments to the Public Order Act
Section 4 of the Bill introduces a new section 5A in the Public Order Act. This provision grants new powers to the Cabinet Secretary to designate areas and times for public meetings, gatherings or public processions.
ARTICLE 19 believes that the new proposed section in the Public Order Act is an unjustified interference with the right to freedom of association and peaceful assembly as well as the right to freedom of expression under international law. It is also in contradiction with Article 37 of the Kenyan Constitution which protects the right to peaceful assembly. In particular, it is highly unclear on what basis the Cabinet Secretary may impose this restriction on public meetings and gatherings. The new provision is essentially couched in terms of an unfettered power. It also suggests that public meetings are subject to authorisation by the Cabinet Secretary in breach of international standards on freedom of peaceful assembly.
At the very least, this provision should be reviewed and amended to clarify that the Cabinet Secretary may only make such order if necessary for the protection of public order or national security.
Amendments to the Public Benefits Organization Act
Sections 107 and 108 of the Bill propose changes to the Public Benefits Organization Act (PBOA). In particular, these provisions seek to classify PBOs in a prescribed manner.
However, they fail to provide any clarity as to the reason why a PBO may be classified and what purpose such classification may seek to achieve with regard to national security. These changes are not even captured in the Memorandum of objects and reasons. It also runs counter to the recent public announcement that a multi-stakeholder task-force had been created with a view to examine PBO related laws and advise the Cabinet Secretary on appropriate legislative and administrative action.
Accordingly, we believe that sections 107 and 108 should be withdrawn.
Increasing number of databases without appropriate safeguards
Finally, we note that the Bill makes reference to the creation or need to record the personal information of several categories of people, such as prisoners, tenants or tourists in databases without giving any clear guidance as to the safeguards in place in order to respect individuals’ right to privacy. In the case of counter-terrorism, Article 40 B of the Bill makes provision for the creation of a database ‘to assist law enforcement agencies’ without any further detail. It is wholly unclear for instance, what information may be collected, how long such personal information may be kept, whether there is a cut-off period after which the data should be erased and any remedies available to data subjects in order to request the removal of their name and personal detail from the database.
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