December 22, 2014 Mad Hatter


It is instructive to note here, that in the US Senate for example, only 1 senator voted against the bill. That is how United the US was. Whether that Act was repugnant to modern rights, there was the legitimacy of collective acquiescence which government in Kenya can only in our current state, claim to if naïve.

By comparison too, the US Act took about, 30 days to put together and pass, it affected about 6 Acts. In Kenya, the putting together of the Bill was done in 7 days, quoting the President, and affected a total of 21 Acts of Parliament. The Kenyan Parliament has an impressive record of passing sub-standard bills, for whatever purpose, this time was not adequate for such extensive amendments and in my opinion, the hurry was certainly not justified.

President Kenyatta Signs into Law the Security Amendment Bill

President Kenyatta Signs into Law the Security Amendment Bill

The Country was treated to unprecedented chaotic scenes in Parliament, when the controversial Security Amendment Bill 2014 was being discussed. The opposition, having resigned to the fate that they will lose on the floor of the house, opted to disrupt the sitting unsuccessfully. The Bill was debated on and later passed and assented into law by the President.

Today Monday, the opposition is largely expected in Court to question the constitutionality of certain provisions in the Act, and is on record stating that if the court does not give a favorable ruling, they will engage the public directly through mass protests. (I am awaiting someone to criticize this statement by the way, the President is unable because he himself has disobeyed a court order before, a precedent that my hurt him soon) Human Right groups, the media, and several foreign nations, notably the US have expressed dissatisfaction with the process. The Kenyan public is divided, largely along partisan lines on the matter.

Before opining on the merit or otherwise of the law, it is imperative that I note the following:

That even if the law was one hundred and ten percent good, the very fact that it has attracted such visible division within Kenya itself, is the first sure step to failure. My personal disappointment, which I shared with the leader of majority and anyone who bothered to care, was our inability to pull together on this as a country.

For example, this law has been largely equated to the USA Patriotic Act, even by the Presidency in a statement. The circumstances of the two laws are largely similar, the USA Patriotic Act was a response to the September 2011 Attacks, just as the Kenyan Amendment was a response to the Mandera Massacre. The USA Act first draft appeared first on 19th September, 2001, 8 days after the attack. It underwent reviews by 8 congressional committees, then was passed on the house of the Representatives on 24th October, 2001, The Senate on 25th October, 2001 and signed into law by President Bush on 26th October 2001.

It is instructive to note here, that in the US Senate for example, only 1 senator voted against the bill. That is how United the US was. Whether that Act was repugnant to modern rights, there was the legitimacy of collective acquiescence which government in Kenya can only in our current state, claim to if naïve.

By comparison too, the US Act took about, 30 days to put together and pass, it affected about 6 Acts. In Kenya, the putting together of the Bill was done in 7 days, quoting the President, and affected a total of 21 Acts of Parliament. The Kenyan Parliament has an impressive record of passing sub-standard bills, for whatever purpose, this time was not adequate for such extensive amendments and in my opinion, the hurry was certainly not justified.

However, these are procedural concerns which can be excused if the substance validates its worth. So, in analyzing the Bill, I have taken time to read the initial Bill as proposed, the subsequent Amendments, and the Bill as passed and assented to by the President. I have also taken a general view of concerns raised against the bill, and also reasons advanced by the proponents.

In the Presidents words, the only intention for passing the bill was to secure Kenya. So how far is this intention advanced by this Act?

In determining this, I restricted myself to two things, Proactive Measures Proposed by the Bill which was not in existence before, and provisions that seal loopholes that led to insecurity before.

Several propositions stand out. The Bill provides in Part VI the establishment of a Counter-Terrorism centre. The structure and command of the centre is well delineated and in my opinion if effectively organized has the ability to realize the mandate of effective tracking of terrorist activities.

The Firearms Act is also amended to establish a Firearms Licensing Board whose composition radically departs from the current status. The centralizing of licensing to this properly constituted board takes away chances, if adequately Operationalize, of illegal arms licensing or criminals obtaining weapons.

The Act also amends the Prisons Act providing for a comprehensive profiling of all persons by way of their biometrics, personal data, physical address and what have you. This is in attempt to ensure adequate follow up, and will certainly, if implemented go a long way in determining recurrent offenders and flagging potential threats and also enhancing police surveillance.

This provision also however brings out the inherent inadequacy in this Act, while the Patriotic Act for instance increased the budget for counter-terrorism initiatives, this bill does not allocate resources for its operationalization. The Biometric database for instance is an expensive venture, which unless the government suggests supplementary budgeting, may have to wait till June during the routine budget cycle.

If there was such urgency for its passage, there should been a commensurate urgency in its implementation I believe if the state believes this is the key to fixing insecurity.

The Labour Act was also amended and an inter-ministerial committee to advise the minister in charge of labor on matters involving work permits and vetting applications of registration of employment bureaus and Agencies.

This is a welcome amendment in view of the many sufferings many Kenyans have undergone in countries especially in the Middle East.

However, while work permits may be issued by the ministry of labor, the loophole in my opinion lies with Immigration. Ministers Gideon Konchella and Otieno Kajwang’ have been blamed for allowing an influx of immigrants in the guise of work permits. This forced, then President Kibaki, to move the final stage of application from the ministry to the office of the President.

With the restructure, I was unable to establish where this function lies; assuming that it lies with the ministry of labor, this inter-ministerial committee then will certainly work.

The other provisions, as regards the National Intelligence Service we will discuss them later on.

At this point, let us address ourselves to the issue of Appointment of the Inspector General of Police. The National Police Service Act was amended to give the President Powers to Appoint the Inspector General of Police and essentially remove the National Police Service Commission from the Equation.

The President will therefore appoint a person and submit their name to the National Assembly for vetting and approval.

The justification for this was that since the buck stops with the Presidency, he should have a certain level of control on the IG.

The level of control here can only mean two things, that the President can either fire you or direct you.

Section 15 of the Police Service Act provided for the procedure of removing the Inspector General of Police which included a petition to the commission, formation or tribunal, review of the petition, submission to parliament then President. The deletion of the section effectively enables the President, when he satisfies himself that the threshold of Article 245 (7) of the Constitution has been reached, to fire the IG and appoint another person.

Whoever, the President still lacks power to give directions to the Inspector General of Police. This is since, Article 245 (2) of The Constitution provides that The Inspector General of Police shall exercise an Independent Command over the National Police Service.

In fact, the constitution only envisages only one instance when the Inspector General can receive instructions; that is from the Director of Public Prosecutions.
Is there a need to have an inspector General who is directly appointed by the President and fired at will, no. When the constitution and attending Acts were being enacted, the drafters had our history, and particularly the Kenya post election violence in mind. The Police were blamed for being partisan and undertaking partisan commands. There was therefore need to have an Inspector General who owes their loyalty to the constitution and not a mere political appointee.

The very nature of security operations of a country does not afford anyone the luxury of firing the Inspector General of Police at will. That in itself is a risk. Whether the President can do a better job singly than an entire commission in identifying a suitable person is another question. And will the President televise the vetting as Kenyan’s have come to be accustomed to.

One may argue that anyway, that public vetting still gave us Kimaiyo, but I certainly believe, it is a far much better process that ceding the appointment to the President and his advisers.

The other Amendment worth our consideration is to the Refugees Act. Interestingly, the bill seeks to restrict the Number of Refugees who can be in Kenya at any time to one hundred and fifty thousands only.

I do not understand the motivation of this provision, but either way, Kenya has approximately 534, 938 Refugees, 52, 285 Asylum Seekers and about 20,000 Stateless Persons. This gives us an approximate Number of 607,000.

Immediately the President Assented the Bill into law, the state, or however should be responsible for that aspect of the law started committing an illegality. Another glaring question is, if a war breaks out in Uganda, and over 150,000 people cross our border, will we close our border and say well, our laws can only take 150,000. What if our neighbors had such laws and a fight started in Kenya, would we all die here just because already 150,000 of us have already gone out.

Another crime which certainly is fascinating is the prohibiting of publication of information which undermine investigations and also images of victims of terrorism. Both offences are punishable by imprisonment of up to 3 years or a fine of Ksh. 5,000,000. With the extensive use of Social media, I doubt this law can be enforced when a photo posted gets shared by 1000 other people. But say for instance, a journalist in the United Kingdom publishes the photo; will Kenya seek their extradition to come and face trial here? Or is it just a law to ensure when terrorists hit, Kenyans have no opportunity of seeing what actually happened.

So if a bomb hits Nairobi, God forbid, what is KTN expected to broadcast? According to the act you cannot broadcast images of the injured or the dead. But on the other hand, this serves as a good warning shot at the Press which in my opinion has established a compromising relationship with the state.

Finally, I will address myself to the issue of Immigration and Citizenship reforms. Amendments to the Kenya Citizenship and Immigration Act was amended to among other things establish a Border Control and Operations Coordination Committee charged with the development of Policy on entry and exit points a welcome idea in my view.

The Registration of Persons Act was amended by inserting Section 18 (A) which sought to give the Director Powers to give cancel any Identity Card issued under the Act. An Amendment to the Original Bill saw an introduction of a safeguard that the cancellation will only take effect after 15 days to give the person an opportunity to appeal in court.

The New law only requires the Director to give you a notice of intention for cancellation of your Identity Card and you will have 15 Days to show cause why the cancellation should not be effected.

Now this is where the problem lies. There is no one in Kenya capable in my opinion, of proving that their identity card is genuine. No one takes a photo of themselves when being finger-printed and there are no copies of application papers you retain.
It is unfair in my view for the law to expect a citizen to prove that their identity card is not genuine. In my opinion, the law may have perhaps required the Director, when expressing intention for cancellation to show reason for the cancellation.

What the government was hoping to achieve here in my opinion, was how best to deal with Identity cards fraudulently obtained. In my opinion, this can be dealt with in two ways.

The first is to seal the loopholes through which such fraud occur; this law does not address that. It does not expressly place a burden on its officials to ensure they issue genuine cards. It does not address the corruption embedded within our registration process.

Then secondly it would create a law with a sunset, that is to expire after a certain period, say 2 years, within which period it would audit all Identity Cards issued and subject those questionable to further scrutiny or even provisions of Section 18(A).
The danger in this provision is that it can be abused. Someone can wake up one day and their identity card is cancelled and they become stateless.

I am unable to address myself to all provisions, but my opinion is this: Whereas this law largely is good, it has parts that were conceived with sinister motives and several questions must be asked.

For example, even though some of these provisions were dropped, why did the government under any circumstance think that by requiring the Cabinet Secretary to designate areas of picketing, security would be improved? What is the relationship of demonstration and insecurity?

The only incident that comes to mind was the Mombasa riots which resulted in deaths after certain clerics were shot. It is impossible to see any connection to security, perhaps the government was reacting to‪#‎OccupyHarambeeAvenue‬.
It will certainly be a disservice to this opinion, if I do not comment on what happened in Parliament. The Chaos are inexcusable and an outright shame and should not be celebrated, encouraged or tolerated. And I want to support the ethics and anti- corruption commission to investigate this incident, and many such that have occurred in County Assemblies.

As we do this however, I have to note one thing, at no point should anyone in this country feel that their opinion does not matter. The members of opposition I am certain are aware that they are the minority, and that they may not have their way, but certainly they must have their say.

An outcome of a democratic election cannot be autocracy. The opposition should never accept to feel helpless, that their say does not matter because the government can whip its membership.

I am concerned that Parliament has failed to understand that ours is a Presidential System and they owe to Kenyans and the constitution to check Executive Excesses. The Speaker of the National Assembly is an impressive joke and I can’t describe it in a better way than Gitobu Imanyara writer who said, Jubilee Mps love him, CORD hate him, but they all are united in their disrespect of him.

I wrote a while back, that President Uhuru’s chance to leave a legacy lies in two things, either taking a bipartisan approach and healing the divide or deeply supporting devolution, he is not doing well on both, and Kenya gets divided some more again.

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