WHAT NGOs ARE NOT TELLING KENYANS The attention of the Ministry of Interior and Coordination of National Government, whose mandate includes national security, has been drawn to advertisements in the daily newspapers -- the Daily Nation, The Standard and The Star -- on Tuesday 16th December 2014. The write-ups by a whooping 12 NGOs are titled: A summary of human rights audits in the Security Laws (Amendment) Bill 2014. The main message of this group is consistent with their pattern to discredit the Government, and especially the false claim that the Government is flouting the Constitution of Kenya. Nothing could be further from the truth and fact. The Government is responding to new security challenges and is doing so within the parameters provided by the Constitution. Kenya is at war. Terrorism is a major threat to Kenya’s economy, welfare and its wellbeing. Terror attacks have increased in recent months. We are at war with terrorists in Somalia and their sympathisers and supporters internally. Westgate, the twin Mandera massacres, the bus attack on Thika Road, the many incidences in Wajir and Garissa, and the Gikomba explosion are a few cases that underline the seriousness of the matter. Many Kenyans have died, others maimed and property destroyed. These are unusual times and the Government cannot confront terrorism with old tactics. This is why we have proposed a package of strong measures to ensure national security, win this war and safeguard our hard-won freedoms. The Government will NEVER waver in its mandate to protect its people from terrorists, gangsters and bandits. These measures are aimed at those who wish us ill and plot terror against us. The Government is committed to implementing the Constitution of Kenya 2010, driven by the acknowledgement and appreciation that the constitution was overwhelmingly endorsed by Kenyans. This commitment is demonstrated by the support of devolution, the number of legislations that have been enacted and the institutions created to ensure that the principles and values of the constitution are given effect. The Security Laws (Amendment) Bill 2014 seeks to amend several statutes that have security implication and fill the gaps in the statutes to enhance security management in the Country. The Bill aligns provisions of the constitution. We have taken the approach of making minor amendments, which do not merit the publication of a separate Bill. Here below, we demonstrate to you why the NGOs are not telling Kenyans the truth in the adverts they have published: 1. Process The Bill was subjected to the due process as envisaged by the Constitution under Article 118 together with the National Assembly Standing Orders on fast tracking legislation. This process allows the National Assembly to shorten the legislation period. The Bill was also subjected to public participation at County Hall, Nairobi. The public was given the time and freedom to air their views on the security proposals. After the Bill was tabled in Parliament, the Departmental Committee on Administration and National Security conducted further public hearings, received petitions and memoranda as required by the Constitution The Publication of the Bill in the Kenya Gazette was meant to allow Kenyans an opportunity to comment on the Bill. 2. Alleged Unconstitutionality of a number of Provisions a. Freedom of Assembly and Association Clause 4 The clause addresses the rights of assembly, demonstration, picketing and petitioning. It is envisaged that a place shall be designated where the rights will be enjoyed. This is in line with the principle that in exercising a right, the rights and freedoms of others must be respected. Business and offices should not close when the public protests. In any case, the notification of purpose, date, duration and route of the procession shall remain intact. b. Freedom of Expression and Information – Clause 15 The clause does not infringe on the freedom of expression and information as NGOs allege. The proposal is meant for those who publish gory or offensive pictures. The intention is to protect victims’ families from traumatic experiences. Protection of families cannot in any way amount to gagging the press. This is already supported by codes of conduct by media houses themselves and is a deterrent against publication or sharing of grisly, gruesome, obscene, violent or bloody scenes. c. Access to Justice and Rights of Arrested Persons – Clause 18(4)(c) (10), 19 and 76 The provisions address custody of terror suspects, giving the duration of detention. It is instructive to note that a suspect can only be held in the manner described after a court authorizes it. In any event, Article 49(1 (h) is clear that a terror suspect can only be held in custody if there are compelling reasons. Clause 19 - on withholding of information - is justifiable as it is meant to preserve national security, identity of informants, method of gathering information and identity of a witness. The clause provides for the Court to receive such evidence in Chambers and confidence. d) Protection of Refugees and Asylum Seekers – Clause 58 The provision sets the capacity of refugees that Kenya can hold at any given time. e) Right to Privacy Clause 66 The clause provides powers to the NIS to respond quickly to crimes or to stop crimes before they are committed. This is the cure for instances when the NIS detects crime, but can do nothing about it. If the officers abuse the powers, they will answer under other laws. f) Citizenship Rights – Clause 31 The Bill gives power to the Director of identification and registration of persons to cancel national identity cards obtained fraudulently. The aggrieved person can, however, seek redress in court. The provision will help root out people who are in Kenya illegally. 3. Independence of the National Security Organ The Constitution envisages that the leadership of the national security organs shall be appointed by the President. The proposed law seeks to give effect to the law and harmonize the appointments of all heads. However, the National Assembly will vet the presidential nominee and make recommendations, ensuring proper oversight in the matter. The proposal takes the responsibility of appointment away from the National Police Service Commission to the President with whom the buck stops on national security as well as the overall governance of the country. Amb Dr Monica Juma Principal Secretary Ministry of Interior and Co-ordination of National Government
Posted on: Tue, 16 Dec 2014 17:22:37 +0000
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