The drafters of the now controversial Security Laws (Amendment) Bill 2014, aim to enhance national security and combat terrorism. However, if enacted as it is, the Bill has created winners and losers as a result of the overarching re-organisation of power in the security and law sectors. Generally, Kenyans will gain and lose from the proposed Bill should it become law. Specifically, however, various categories of Kenyans and institutions would lose or win from the set of laws once passed. Major winners include the Cabinet Secretary (CS) in charge of Interior and Coordination of National Government. According to the proposed changes, the CS would single-handedly “designate” areas where public meetings, gatherings or public processions may be held. Through amendment of Section 8 of the Public Order Act, the minister would also take away powers of Inspector General (IG) of Police to declare and impose curfews. The minister also gets unique powers under Section 30 C (3) to “designate any country to be a terrorist training country”. Amendments to Registration of Persons Act grants the Principal Registrar of Persons enhanced powers to revoke registration of persons. National identity cards can now be revoked if they were issued through misrepresentation of material facts, fraudulently, forgery and “any other justifiable cause”. See Also: Curtailing freedoms undermines Security Bill Smoother prosecution Proposed amendments to the Evidence Act grants the Director of Public Prosecutions a smoother road to prosecution. The amendments allow for use of “electronically recorded” evidence, including electronic messages and digital material as well as use of teleconferencing and video conference as admissible evidence in trial. “The court shall not deny admissibility of evidence only on the ground that it is not in its original form,” Section 78 A (2) of the Evidence Act now reads. Also, when a person has been acquitted of charges and the DPP appeals to a superior court, that superior court would now be empowered to substitute the acquittal with a conviction if the appeal is successful. This would save the DPP time. The DPP would benefit from amendment of Evidence Act, which says the “court shall have due regard to the authenticity and accuracy of the evidence presented before it without due regard to technicalities of procedure”. An amendment of the Criminal Procedure Code limits article 50(2) (j) of the Constitution to the advantage of the DPP. As currently worded, the article says the prosecution shall inform accused persons in advance of the evidence they intend to rely on in trial. But the proposed amendment says the prosecution “may not disclose certain evidence which touches on matters of national security”. The National Intelligence Service ( NIS ) gets more powers in the amendment, including the power and discretion to detain suspects, tap communications without having to obtain court warrants and “do anything considered necessary to preserve national security”. The service further benefits from an amendment to Section 74 of the NIS Act, which makes it mandatory for every State organ, department, agency or public entity that receives intelligence from the service “to act on or otherwise utilise the intelligence”. Previously, NIS complained that intelligence churned from its systems was never acted upon. This was the case with the post-election violence of 2008 and the 2013 Westgate Mall terrorist attack. Various complaints on failure to utilise intelligence from the service were also raised in the spate of terror attacks in Lamu this year. The Director General of NIS is also a major beneficiary of the proposed amendments. The amendments scrap the 10 years term limit for the DG as well as all grounds for removing him from office. He can only resign or die in office. The director general is also given powers where he has “reasonable grounds” to authorise covert operations to stop perceived threats. Offensive material At the Directorate of Immigration, powers of the director to suspend or confiscate passports or travel documents have been enhanced. He can do so in “circumstances which in his opinion would be prejudicial to the interest of the State or holder of the passport”. See Also: Curtailing freedoms undermines Security Bill The President gets powers previously held by the National Police Service Commission to nominate the IG single- handedly. Should the Bill become law, police officers would lawfully hold suspects longer than the current constitutional limit of 24 hours after arresting them, provided they can demonstrate the reasons for doing so. With the Bill, the detention can take as long as 90 days or one year for terror suspects. The proposed amendments also come with a set of individual and institutional losers. Amendment of Section 8 of the Public Order Act takes away powers from the IG to impose curfew. The process of firing the IG has also been made a lot easier compared to the elaborate procedure for his removal as enshrined in the National Police Service Act. Journalists, bloggers and media houses face Sh5 million fine or three years in jail for publishing or distributing “obscene, gory or offensive material which is likely to cause fear and alarm to the general public or disturb public peace”. An amendment to Prevention of Terrorism Act also exposes a person 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 terror to a 14 year jail term. The Bill criminalises publication or broadcast of information “which undermines investigations or security operations relating to terrorism” as well as publication or broadcast of photographs of victims of terrorist attack without consent of the police or victims of the attack. People who get convicted twice for such offense will be supervised by police for about five years after release from prison. They can only live within certain areas, cannot leave their homes without written consent of area police boss and must keep police informed of their whereabouts. According to the amendment of the Rent Restrictions Act, landlords who fail to keep records of every tenant who rents their premises face a Sh100,000 fine, a jail term of six months or both. Developers near airports will be in for a rude shock if their developments fall within 50 metres from the airports’ “outer perimeter fence”. An amendment to the Refugees Act restricts the number of refugees and asylum seekers permitted to stay in Kenya to 150,000. But the National Assembly can tinker with the number.
Posted on: Sun, 14 Dec 2014 07:00:31 +0000
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